State vs Pooran Singh And Others
2022 Latest Caselaw 21902 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Reserved on 23.09.2022
 
Delivered on 20.12.2022
 

 
Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 22 of 1984
 

 
Appellant :- State
 
Respondent :- Pooran Singh And Others
 
Counsel for Appellant :- A.G.A.,Satish Trivedi
 
Counsel for Respondent :- Prashant Vyas,Santosh Kumar Tiwari
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Rahul Chaturvedi,J.

1. Heard Sri Kailash Prakash Pathak, learned AGA appearing for the appellant State of U.P. as well as Sri Santosh Kumar Tiwari, learned counsel appearing for the sole surviving accused/respondent no.4-Man Singh.

2. In the present case out of four accused respondents persons, namely, (i) Pooran Singh, (ii) Kashmir Singh, (iii) Jaswant Singh and (iv) Man Singh, three accused persons being (i) Pooran Singh, (ii) Kashmir Singh and (iii) Jaswant Singh died and appeal in so far as the said accused persons has already been abated. Now, the only accused Man Singh is alive. Therefore, we proceed to hear the matter on merits in respect of accused Man Singh alone.

3. Present government appeal has been preferred against the judgement and order dated 07.09.1983, passed by the Vith Additional District and Sessions Judge, Bareilly in Session Trial No. 610 of 1982 (State vs. Pooran Singh and Others), arising out of Case Crime No.197/1982, under Section 302/34 and 307/34 IPC, Police Station Baheri, District Bareilly, whereby the accused persons have been acquitted by the learned Trial Court.

STORY AS PER FIR

4. Prosecution story, in brief, is that Dayal Singh- complainant, who is the resident of village Pandra, Police Station-Baheri, Bareilly has given a written report before the Station House Officer, Police Station Baheri, District Bareilly, stating therein, that he had some land dispute with the deceased- Pooran Singh and Others. A week prior to the incident, a panchayat was convened and that panchayat decided the dispute regarding the land but the accused Pooran Singh has not accepted the award of the panchayat. Pooran Singh thereafter, had threatened the complainant to regain the land in dispute by whatever means. On this very ground, Pooran Singh nursing grudge against Dayal Singh. For this very reason on 22.06.1982 at 8.00 am. accused Pooran Singh armed with Rifle, Kashmir Singh armed with D.B.B.L. gun, accused Jaswant Singh and Man Singh both armed with their S.B.B.L. guns came towards the house of P.W.2-Dayal Singh and have hurling abuses. On seeing the accused coming towards them, Dayal Singh with his son Randhir Singh (deceased) and his brother-in-law, Balbindra Singh (injured) ran towards the house of Jugendra Singh, who is Sadhu of P.W.2, raising alarm. Randhir Singh and Balbindra Singh climbed up on the roof top and Dayal Singh remained on the ground floor. On hearing the alarm of the aforesaid person, Jugendra Singh, Dalip Singh and Nishan Singh arrived at the scene of occurrence. The accused Pooran Singh, with intention to kill Randhir Singh (deceased), son of the complainant, fired shot from his rifle at Randhir Singh, which hit on his left leg causing wound. Kashmir Singh, accused also fired from his D.B.B.L. gun causing gun shot injuries to Balbindra Singh. The accused- Jaswant Singh and Man Singh have also fired from their respective guns. On being challenged by the witnesses, the accused escaped towards the Eastern side. Thereafter the complainant Dayal Singh went to the roof where his son Randhir Singh was lying injured with gun shot wound. The complainant wrapped his leg from cloth and get him down. Dayal Singh thereafter went to the police station with written report Exhibit Ka.1 which was written by Jasbir Singh on the dictation of Dayal Singh. The complainant left Balbindra Sigh at the house. He had submitted the written report Exhibit Ka.1 to the police station and on the basis of that written report, a chik report Exhibit Ka.10 was prepared. On the basis of that report, a case under section 307 IPC was registered against the accused persons. The complainant took the injured Randhir Singh in a trolley to Budia Farm. Injured Balbindra Singh did not accompany the complainant -Dayal Singh from the village. At Budia Farm the injured Randhir Singh (deceased) was put in a car belonging to Lala Bisambhar Nath and was thus carried to Police Station Baheri. The report was lodged to the police station at 1.10 am. The distance of police station from the place of occurrence is 9 miles. Randhir Singh was initially examined by the doctor at Baheri and thereafter the doctor has advised that his injuries are serious so he should be shifted to the District Hospital, Bareilly. On the advise of the doctor, Baheri, Randhir Singh was brought to the District Hospital, Bareilly for his treatment, where he died on the same day. The post mortem of his body was conducted on 22.06.1982 at 4.30 pm. by Dr. Balbir Singh of the District Hospital, Bareilly. Later on, the case under Section 307 IPC was converted into 302 IPC vide G.D. entry Exhibit Ka.10.

5. The investigation of this case was initially entrusted to PW.7-Indrajit Singh, Sub Inspector, who has proved the Chik Exhibit Ka.10. He further stated that as soon as the case was registered at Police Station he started the investigation of the case and tried to record the statement of deceased Randhir Singh at the police station, who was lying in the car, but Randhir Singh did not give his statement because he was in grim and somber mental condition. Immediately, he was sent to Baheri Hospital for his medical examination. Thereafter PW-4 recorded the statement of Dayal Singh, who is the father of Randhir Singh and Nishan Singh and went to the spot where he recorded the statement of Balbindra Singh, Jugendra Singh and Dalip Singh. He inspected the place of occurrence and prepared the site plan. He has collected bloodstained soil along with piece of broken bones and plain soil and kept them into separate containers. These are Exhibit 3 and Exhibit 4. A Fard to this effect Exhibit Ka.13 was prepared. He has collected two empty cartridges from the Rasta and both of them were kept under seal and a Fard Exhibit Ka.13 was prepared by him. These cartridges were sent for ballistic examination. Thereafter he has recorded the statement of other witnesses. He has also searched the accused for recovery of arms but no arms were recovered from them. Fard Talasi in respect of the house of the accused Kashmir Singh, Jasbir Singh, Pooran Singh was prepared by the PW-7. These Fards are Exhibit Ka.15, Ka.16 and Ka.17. On 23.06.1982, PW-7 received the injuries report of Balbindra Singh and Randhir Singh (deceased). He has further received an inquest report of the dead body of Randhir Singh and post mortem report and copy of the G.D. Thereafter, the case was altered to under Section 302 IPC. PW.7 Sub Inspector Indrajeet Singh investigated the case upto 23.06.1982 thereafter the investigation of this case was handed over to Station House Officer Sri Pal Singh, PW.8. from 26.06.1982.

6. During the course of investigation accused Kashmir Singh was arrested by the Station House Officer-V.R.Goyal and PW.13-Constable Jia Lal. A D.B.B.L gun and five live cartridges were recovered from his possession and sealed on the spot. Accused Kashmir Singh was brought to the police station Kitcha, Nainital where G.D. Entry No.13 was made by Constable Hari Nandan, PW.12. On 21.04.1983 the recovered gun and cartridges were brought from police station Kitcha to police station Baheri, District Bareilly by Constable Prem Pal Sharma, PW.14 where entry was made in the G.D. by Constable Ashiq Hussain, PW.11. Constable Sharafat Ali-PW.10 took the D.B.B.L. gun and cartridges to the Ballistic expert Lucknow on 03.04.1983 and submitted the same on 06.04.1983.

7. After completing the investigation of the case, Investigating Officer, Sri Pal Singh, PW.8 submitted a charge sheet against the accused Pooran Singh, Kashmir Singh Jasbir Singh and Man Singh on 26.06.1982. After inquiry, they were committed to the court of trial.

8. At the trial accused persons pleaded not guilty and attributed their false implication on account of enmity.

9. In support of prosecution case, PW1-Balkar Singh, PW2-Dayal Singh (first informant), PW3-Balvindra Singh (injured), PW4-Ram Chandar (Sub Inspector), PW5-Dr. Balbir Singh, PW-6-Dr. Janki Prasad Gangwar, PW-7-Indrajeet Singh (Investigating Officer.), PW8-Shree Pal Singh (Station House Officer) PW-9-Harpal Singh (Constable), PW-10 Sharafat Ali (Constable), PW-11-Ashiq Hussain (Head Moharrir), PW-12 Hari Nandan Murari (Constable), PW-13 Jiya Lal (Constable), PW-14 Prem Pal (Constable) were produced and examined before the Court below.

10. PW-1-Balkar Singh has stated that Randhir Singh was killed in our village about 9 months back. He stated that a panchayat was held in his village wherein many people were present. He was also present there. That panchayat was held to settle the land dispute between Pooran Singh and Dayal Singh. Pooran Singh is the accused in the present case and Dayal Singh is the father of the deceased Randhir Singh. He further stated that Pooran Singh wanted to take the land in the village abadi and the panchayat decided in his favour. Some land of Pooran Singh was outside the village in lieu of the said land, he got the land in abadi near his land. At that point of time, both the parties had agreed with the decision of the panchayat, later they fought because the decision of the panchayat was not accepted by Pooran Singh. In his cross-examination he stated that he was not a panch in this panchayat. This panchayat is common, therefore, he was also present there. At other place he stated that the people who were coming there told him that a panchayat was held in the village, therefore, he also went there. There were total 15-16 people in that panchayat. He did not see the land of Pooran Singh, in lieu of which, he got the land in abadi by the panchayat, he also did not know as to how much land was given to him. He was not given any land by the accused persons. Alongwith him Gurbaksh Singh also got the land automatically. An agreement to sell was also done. Pooran Singh s/o Ishwar Singh was one of the witness in that agreement to sell. The said Pooran Singh s/o Ishwar Singh was the brother-in-law of the accused Pooran Singh. It is wrong to say that in order to get this land, he had to negotiate with the accused persons as Hakim Singh got more land and he got less. It is also wrong to say that he was not present in this Panchayat and because of this he was given false testimony. He had purchased a Tractor and accused- Pooran Singh was the guarantor. One of the installment was due on him, which he has to pay and it is wrong to say that Pooran Singh was asking him for this installment, therefore, he give false testimony.

11. PW-2-Dayal Singh (father of the deceased)-informant has stated on oath that he know the accused Pooran Singh, Kashmir Singh, Jaswant Singh and Man Singh. We had a land dispute with Pooran Singh. Some of his land was in the village and some of the land was outside the village. A week before the death of Randhir Singh, a panchayat was held to settle their land dispute. Two Biswa of land, which we had more in the village, the Panchayat decided to give it to Pooran Singh by reducing his land which was outside the village. Pooran Singh was given about two and a half biswas less land in the village and he was given more than two and a half biswas of land outside the village. He then stated that Pooran Singh was given two biswa land more in the villages and he was given two biswa less land outside the village. Pooran Singh did not accept the decision of Panchayat. He further stated that Kashmir Singh and Jaswant Singh are brothers of accused Pooran Singh and Man Singh is the son of Pooran Singh. They all are present in the court. After the decision of the panchayat, Pooran Singh started saying and we will take more land. He further stated that on 22.06.1982 at 8.00 am all four accused persons, namely, Jaswant Singh, Kashmir Singh, Man Singh and Pooran Singh armed with weapons came towards his house hurling abuses. Pooran Singh armed with Rifle, accused Kashmir Singh armed with D.B.B.L. gun, accused Jaswant Singh and Man Singh both armed with their S.B.B.L. guns. On seeing the accused coming towards them, he, after raising alarm, ran towards the house of Jugendra Singh. At that point of time alongwith him Randhir Singh and Balbindra Singh were also there. Randhir Singh (deceased) is his son. Balbindra Singh is his brother-in-law. On hearing the alarm of the aforesaid person, Jugendra Singh, Dalip Singh and Nishan Singh arrived at the scene of occurrence. Randhir Singh and Balbindra Singh climbed up on the roof of Jagendra Singh. Dayal Singh, outside the house of Jagendra Singh, where there is a place to make bread, he stood leaning against the wall. Accused Pooran Singh fired from his rifle at Randhir Singh (deceased). Kashmir Singh, accused also fired from his D.B.B.L. gun at Balbindra Singh. The accused- Jaswant Singh and Man Singh have also fired from their respective guns. Accused Pooran Singh fired many times. On being challenged by Jugendra Singh, Nishan Singh and Dalip Singh, the accused escaped. Thereafter complainant- Dayal Singh went on the roof his son Randhir Singh lying injured with gun shot injury. The complainant wrapped his leg wound with cloth and get him down. He thereafter went to the police station with written report Exhibit Ka-1 which was written by Jasbir Singh on the dictation of Dayal Singh. The complainant had left Balbindra Singh at home. Thereafter complainant took the injured Randhir Singh in a car and went to Police Station Baheri. The complainant submitted the written report to the police station on the basis of that written report a chik report Exhibit Ka-10 was prepared. Thereafter, Police Inspector advised him to take Randhir Singh to Baheri Hospital in a car and sent a Constable alongwith him, after reaching the hospital the doctor put a vaccine and advised him that his injuries are serious so he should be shifted to District Hospital, Bareilly. On the advised of the doctor, Randhir was brought to the District Hospital Bareilly for his treatment, where he died on the same day. PW.2 in his cross examination has stated that the dispute was only that the two biswa land, situated outside the village, which was less, Pooran Singh wanted to take it in abadi.

12. PW-3-Balbindra Singh has stated on oath that about 9 months ago at 8.00 am in the morning he was standing outside his house. Dayal Singh and Randhir Singh (deceased) were also there. They saw that all four accused persons, namely, Jaswant Singh, Kashmir Singh, Man Singh and Pooran Singh armed with weapons came towards his house hurling abuses and saying that don't leave them, kill them. Pooran Singh armed with Rifle, accused Kashmir Singh armed with D.B.B.L. gun, accused Jaswant Singh and Man Singh both armed with their S.B.B.L. guns. On seeing them, they after raising alarm ran towards the house of Jugendra Singh. On hearing the alarm Jugendra Singh and Nishan Singh arrived at the scene of occurrence. He and Randhir Singh climbed up on the roof of Jugendra Singh. Dayal Singh remained down. Accused Pooran Singh fired from his rifle at Randhir Singh (deceased), which hit his leg. After receiving gun shot injury, Randhir Singh fell down. Thereafter, Kashmir Singh, accused also fired from his D.B.B.L. gun at him, he also fell on the ground. The accused- Jaswant Singh and Man Singh have also fired from their respective guns. Accused Pooran Singh fired many times. Thereafter Jugendra Singh, Nishan Singh, Dayal Singh and Dalip Singh went on the roof where his son Randhir Singh lying injured with gun shot injury. They wrapped his leg wound with cloth and get him down. Thereafter a report was written by Jasbir Singh and then they took Randhir Singh in a tractor trolly. Randhir Singh thereafter died. His injuries also got medically examined. He further stated that on the same day, police inspector came in his village. Before the police inspector he stated that his injuries were minor in nature that's why he was not ready to go with Randhir Singh. Randhir Singh received serious injuries.

13. PW-4-Sub Inspector Ram Chandar, who is the formal witness has stated on oath that on 22.06.1982 he was posted as Sub Inspector in Police Station -Baheri. A memo Exhibit-A came from the Hospital at around 11.30 am., in which it is informed that Randhir Singh s/o Dayal Singh died in the hospital. He reached the hospital at about 14.30 hours and inspected the dead body of Randhir. The dead body was sealed and the possession of necessary documents were handed over to constables Harpal Singh and Shankar Prasad. Panchayatnama was prepared.

14. PW-5-Dr. Balbir Singh, District Hospital, Bareilly, who has conducted the post mortem of the dead body, has stated that he was posted as Medical Officer in the District Hospital, Bareilly on 23.06.1982. He has conducted post-mortem of the dead body of the deceased Randhir Singh at 4.30 pm. On 23.06.1982 the dead body was presented before him by Constable Har Pal and Constable Shankar Prashad. At that time the dead body was under seal. The age of the deceased was about 16 years and died about a day before. On 22.06.1982 the deceased was brought in the District Hospital, Bareilly at about 1.20 pm. He further stated that rigour mortis was present in the upper and lower part of the body. As per his examination, following ante mortem injuries were present on the body of the deceased:-

(i). Gun shot wound of entry 7cm x 6cm through & through with inverted and lacerated margin on the back of the left leg, 2cm below the left knee joint, in the middle. No blackening and tattooing present. Both bones fractured in multiple pieces. Large Vessel lacerated.

(ii). Gun shot wound of exit 12cm x 11cm through & through, connecting injury no.1 on the front of the left leg in middle 1 cm. Below the knee joint margin averted.

15. PW-6 Dr. Janki Pradad Gangwar, who was also posted as Superintendent of Combined Hospital, Baheri on 22.06.1982. He has examined the deceased Randhir Singh at 10:43 pm. In the night. The deceased was brought before him by Constable Suraj Pal Singh. The following injuries were found on the body of Randhir Singh:-

(a). Gun shot wound of entrance 9cm x 6.5 cm through & through to the past side on left leg, 2 cm below left knee joint margins are lacerated, and inverted. No tattooing, no scratching, no injury under lying tissues.

(b). Gun shot wound of exit 15 cm x 13.5 cm. connecting to the would of entrance (through and through) 2 cm below the left knee joint on the out side of left leg, margins were averted and lacerated, no tattooing no scartching, no injury (under) soft lying soft tissue and bones are broken and lacerated.

(c). Lacerated wound 1.5 cm x .25 cm x skin deep 2 cm below the injury no.1. Injury no.1 is a grievous caused by gun shot from a fire arm. As a result, of exit of shots no.2 is caused by blunt object and is simple. Duration of all injures is fresh.

16. PW.7-Indrajeet Singh, Sub Inspector, has stated that the present case was registered in his presence at the police station Baheri. He has further stated that as soon as the case was registered at Police Station he started the investigation of the case and tried to record the statement of deceased Randhir Singh at the police station, who was lying in the car, but Randhir Singh did not give his statement because his condition was not good. Immediately, he was sent to Baheri Hospital for his medical examination. Thereafter PW-7 recorded the statement of Dayal Singh, who is the father of Randhir Singh, and Nishan Singh and went to the spot where he recorded the statements of Balbindra Singh, Jugendra Singh and Dalip Singh. He inspected the place of occurrence and prepared the site plan. He has collected bloodstained soil along with piece of broken bones and plain soil and kept them into separate containers. These are Exhibit 3 and Exhibit 4. A Fard to this effect Exhibit Ka.13 was prepared. He has collected two empty cartridges from the Rasta and both of them were kept under seal and a Fard Exhibit Ka.13 was prepared by him. These cartridges were sent for ballistic examination. Thereafter, he has recorded the statements of other witnesses. He has also searched the accused for recovery of arms but no arms were recovered from them. Fard Talasi in respect of the house of the accused Kashmir Singh, Jasbir Singh, Pooran Singh was prepared by the PW-7. These Fards are Exhibit Ka.15, Ka.16 and Ka.17. On 23.06.1982, PW-7 received the injuries report of Balbindra Singh and Randhir Singh (deceased). He has further received an inquest report of the dead body of Randhir Singh and post mortem report and copy of the G.D. in which case was amended. This amended report was prepared by Charan Singh. It is Exhibit Ka.18. Thereafter, the investigation of this case was taken by Sri S.R. Shukla, Station House Officer, Incharge of the Police Station Baheri. On 26.06.1982 the accused Jaswant Singh, Pooran Singh and Man Singh has surrendered themselves in the court of Judicial Magistrate, Baheri.

17. PW-8-Shripal Singh, Station House Officer, has stated that he was posted as Inspector Incharge at the police station Baheri on 07.07.1982. The investigation of this case was taken by him on 07.07.1982 from S.I. Sri S.R. Shukla. He has recorded the additional statements of Dayal Singh, Guru Charan Singh Barja Singh, Ishwar Singh and Balkar Singh. He has submitted the chargesheet Exhibit Ka.19 against the accused persons after completing the investigation.

18. PW.9-Constable Har Pal Singh has stated on oath that he received the dead body of Randhir Singh under seal alongwith necessary documents.

19. PW-10-Constable Sharafat Ali, has stated that he took one sealed bundle in which gun and cartridges were kept and he has submitted them to the Malkhana Police Station, Baheri.

20. PW-11- Head Mohrir, Ashiq Hussain has stated that one gun was received at the police station from Constable Prem Pal. This gun alongwith the bundle of cartridges were sent for chemical examination at Lucknow.

21. PW.12-Constable Hari Nandan Murari has stated that he was posted as Head Moharrir at the police station Kitcha on 23.06.1982 at about 2.55 pm Station House Officer, Sri V.R. Goyal, Sub Inspector Jagdish Pal and Constable no.345 Ragunath Singh and others brought the accused Kashmir Singh to the police station alongwith one gun and 5 live cartridges. Gun and cartridges were deposited in the Malkhana of police station-Baheri. They were kept under seal. These are Exhibit 9 to 14, entry to this effect was made in the G.D. no.23, copy thereof is Exhibit Ka.26. He has further stated that he had re-sealed the aforesaid articles and thereafter handed over to the Constable Prempal. The entry to this effect was made in the G.D. No.24,copy thereof is Exhibit Ka.27

22. P.W.13- Jiya Lal has stated that he was posted as Constable at police station Kitcha in the month of June, 1982. He has stated that he alongwith Station House Officer, Sri V.R. Goyal and other police personnel were busy in patrolling and they were informed by the reliable informer that accused Kashmir Singh is coming from the side of Kitcha and is going towards the police station-Baheri. On getting this information, police party had taken position and arrested him and made a search. One D.B.B.L. gun, Exhibit Ka.9 and 5 live cartridges, Exhibit Ka.10, were recovered from the possession of accused Kashmir Singh. They were sealed on the spot and a fard in respect of these recoveries were prepared Sri V.R. Goyal. The recovered articles and accused Kashmir Singh were brought to the police station Kitcha.

23. PW.14 Prem Pal Sharma has filed his affidavit which is on record.

24. In support of defence case, DW1-Ishwar Singh and DW2-Jagga Singh were produced and examined.

25. DW-1-Ishwar Singh has stated that a panchayat had taken place in the village Pandra, two months ago from the date of the murder of the deceased Randhir Singh. This panchayat was held in connection with the land of Jangali village. He was the panch in that panchayat. Gurucharan Singh, Amar Singh and Baja Singh were also present in that panchayat. In that panchayat, Pooran Singh was one party and Dayal Singh was another party. There was no fighting on the point of any land situated in the village. The panchayat decided accordingly. The terms and conditions of panchayat were reduced into writing. He also made his thumb impression over the paper. He has proved Exhibit Kha.1

26. DW-2-Jagga Singh has stated that about one year ago the guest of Jugendra Singh gathered on the roof of the house of Jugendra Singh and they took their meal and thereafter they made some fire from their guns. This witness had stated that his buffalo was hit by one fire and Balbindra Singh and Randhir Singh were also injured from those fires. According to this witness the fire injuries were caused by those persons who gather at the house of Jugendra Singh.

27. The judgement of acquittal has been passed on the ground that there was no motive for the accused persons, namely, Pooran Singh, Kashmir Singh, Jaswant Singh and Man Singh to commit the murder of Randhir Singh. The testimony of PW-2-Dayal Singh and PW-3-Balvindra Singh does not inspire confidence inasmuch as their presence on the spot appeared doubtful and their testimony was in conflict with the medical evidence. The scribe of the first information report, namely, Jasvir Singh and other eye witnesses of the incident, namely Jugendra Singh, Dalip Singh and Nishan Singh were not examined at the trial. The D.B.B.L. gun recovered from the possession of accused Kashmir Singh on 23.06.1982 was sent from police station-Kitcha Nainital to police station-Baheri, District Bareilly as late as on 24.01.1983 and from the police station Baheri to the Ballistic Expert as late as on 03.04.1983.

28. Challenging the impugned judgment, Sri Kailash Prakash Pathak, learned AGA submits that there was cogent evidence to convict the accused persons herein. He submits that it is broad day light incident and in this incident one young boy lost his life and one young boy recevied gun shot injuries. The first information report was prompt. He further stated that presence of the witnesses are not doubtful, PW-2-Dayal Singh and PW-3-Balvindra Singh consistent by supported the prosecution case and their testimony finds material corporation from the prompt first information report and the medical evidence. He further submits that the court below has erred in holding that there was no motive for the accused persons to commit the murder of Randhir Singh as the motive is clear that there was a land dispute between the accused and the father of deaceased. He further submits that PW-3-Balvindra Singh received injuries during course of the incident and his presence could not be doubted. The learned Sessions judge also erred in holding that the evidence of eye witnesses Dayal Singh and Balvindra Singh was in conflict with the medical evidence and the incident took place in some other manner. Learned AGA further stated that learned Sessions Judge erred in not relying on the evidence of the recovery of D.B.B.L. gun from the possession of Kashmir Singh, accused, the gun having been used in the commission of the incident, there was no contradiction regarding weapons in hand of the accused, place of occurrence and manner of assault, and there is no motive for false implication therefore, the judgment of acquittal passed by the Trial Court is perverse in nature and is liable to be reversed.

29. Sri Santosh Kumar Tiwari, learned counsel appearing for the sole surviving accused respondent-Man Singh submits that there was no recovery of any weapon from Man Singh and there was no allegation that his fire caused any injury or damage to the anyone, hence involvement of Man Singh was not proved beyond reasonable doubt. He further submits that there was no motive for the accused persons, namely, Pooran Singh, Kashmir Singh, Jaswant Singh and Man Singh to commit the murder of Randhir Singh. He further submitted that the statement under Section 161 Cr.P.C. of PW-1 Balkar Singh was recorded after a long gap, therefore, his testimony was not reliable. He further submits that the testimony of PW-2-Dayal Singh and PW-3-Balvindra Singh does not inspire confidence inasmuch as their presence on the spot appeared doubtful and their testimony was in conflict with the medical evidence. He further submits that the scribe of the first information report, namely, Jasvir Singh and other eye witnesses of the incident, namely Jugendra Singh, Dalip Singh and Nishan Singh were not examined at the trial. He further submitted that the oral and medical evidence are contradictory. He next submitted that D.B.B.L. gun recovered from the possession of accused Kashmir Singh on 23.06.1982 was sent from police station- Kitcha Nainital to police station-Baheri, District Bareilly as late as on 24.01.1983 and from the police station Baheri to the Ballistic Expert as late as on 03.04.1983, therefore, recovery of gun and cartridges from Kashmir Singh is doubtful.

30. We have considered the submissions of the learned counsel for the parties and have perused the record.

31. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

32. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"

33. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.

34. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.

35. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

36. We have considered the rival arguments and the evidence in detail.

37. From perusal of record, we find that the names of three eye-witnesses were mentioned in the first information report but they are not produced before the trial court though they are closely related and explanation for their non production is not satisfactory. There was only one entry and exit wound and recovery of weapon was from Kasmira Singh, although was disbelieved by the trial court, and the empty cartridge as per balletic report was fired from the gun recovered from Kasmira Singh only hence, the involvement of the sole surviving accused Man Singh is not proved beyond shadow of doubt. As already noticed that there was no recovery of firearm from Man Singh. There was no allegation that his fire caused any injury to anyone or even caused damage to any property. We find that PW-1-Balkar Singh has narrated the motive behind the crime and had stated that in the panchayat where the land dispute between Pooran Singh and Dayal Singh was settled he was also present although he was not called for such panchayat. PW-2-Dayal Singh, father of the deceased, who is the informant has narrated the motive and manner of crime. He had taken Randhir Singh to the hospital in a car and Balbindra Singh was present in the house. PW-3-Balbindra Singh has also narrated the manner of incident. Both the witnesses have stated that Man Singh was carrying SBBL Gun and had also fired, from his gun, however, as already recorded, no recovery was made from the sole surviving accused Man Singh and his shot had not caused any injury to anyone. PW-4 is the formal witness. PW.5 Dr. Balbir Singh had conducted the post mortem and had certified that there was only one gun shot entry wound of 7cm x 6cm and one gun shot exit wound of 12cm x 11 cm. P.W.6, Dr. Janki Prasad Gangwar had also certified that there was one gun shot entry wound and one gun shot exit wound and one lacerated wound 1.5 cm x .25 cm x skin deep 2 cm. This clearly reflect that there was only one gun shot entry wound and one gun shot exit wound meaning thereby there was only single firearm injury caused to the deceased whereas as per the prosecution case, accused Pooran Singh armed with Rifle, accused Kashmir Singh armed with D.B.B.L. gun, accused Jaswant Singh and Man Singh both armed with their S.B.B.L. guns. The post mortem report clearly reflect that the injuries was caused by a .12 bore gun and not by the Rifle. Therefore, the prosecution story that the injuries caused by the Rifle is false has rightly been held by the trial court. It is also noticeable that as per prosecution case DBBL gun was recovered from the possession of accused Kashmir Singh on 23.06.1982. The recovered gun and cartridges were brought from police station Kitcha to police station Baheri, District Bareilly by Constable Prem Pal Sharma as late on 24.01.1983 and there was no explanation for such lapse. Thereafter the same was sent from the police Station Baheri to ballistic expert, Lucknow as late on 03.04.1983. This is a clear lacuna on the part of the Investigating Agency though by itself may not be a ground of acquittal, however, coupled with the fact that PW-12 in his examination in chief has admitted that the cloth in which the recovered gun was packed was torn therefore, he has changed the same and resealed the aforesaid articles and thereafter handed over to the Constable Prem Pal. This creates doubt in the prosecution story connecting the weapon recovered with the crime. Therefore, the prosecution case is full of contradictions and lapses on part of the prosecution. There has also been lapse on the part of investigating agency in preparation of site plan as well as explanation offered for non production of the eye witnesses mentioned in the first information report. The explanation that eye witness Nishan Singh had left the place immediately after the incident and had gone to Punjab and his whereabouts are not known is not convincing at all. PW-2-Dayal Singh and Nishan Singh are closely related and are first degree relation, therefore, the explanation for their non production is not satisfactory. Other eye witness Jogendra Singh, explanation for non production given was that he fell seriously ill, however, no medical documents were produced in respect of such serious illness, which may suggest that he was not in position to appear in the witness box.

38. In the totality of circumstances, we find that prosecution has failed to prove its story beyond doubt.

39. It is the settled law that after acquittal by the trial court there is a double presumption of innocence in favour of the accused which, in our opinion, cannot be overlooked in the present case.

40. Accordingly, the present government appeal stands dismissed.

Order Date :- 20.12.2022

Nitendra