Hakim Singh … v. State of U.P

Judgment

1. Heard Shri Shashank Pandey, Shri Shubham Singh, Shri Prateek Srivastava and Shri Radheyshyam Shukla, learned counsel for the appellants, learned A.G.A. for the State and perused the records.

2. The present criminal appeal arises from the judgment and order dated 16.11.1984 passed by Shri Brahm Singh, learned III Additional Sessions Judge, Shahjahanpur, in Sessions Trial No.761 of 1983 (State Vs. Hakim Singh, Suresh Singh, Ram Pal Singh and Lala Ram), under Section 302 read with Section 34 I.P.C., Police Station Kant, District Shahjahanpur.

3. By the impugned judgment and order, the learned Court below convicted all the appellants Hakim Singh, Suresh Singh, Ram Pal Singh and Lala Ram for the offence under Section 302 read with Section 34 I.P.C. and sentenced each of them to undergo life imprisonment. 2 CRLA No.3167 of 1984

4. All appellants were enlarged on bail vide order dated

21.11.1984. During pendency of the appeal, appellant no.1 Hakim Singh and appellant no.4 Lala Ram died. Their appeal has already abated. The appeal survives on behalf of the appellant no.2 Suresh Singh and appellant no.3 Ram Pal Singh.

5. Prosecution story emerged on the Written Report (Ex.Ka.1 at the trial) dated 16.10.1983. In that, it was narrated, Gajraj Singh, the brother of Ram Pal Singh (appellant no.3), was murdered in the year

1979. In that case, allegations were made against the deceased

Bharat Singh, Sher Bahadur Singh, Suraj Pal Singh and the first informant-Prem Chand (P.W.-1). However, those accused were later released. That incident had led to animosity between the present appellants and the informant side. Two days before the present occurrence, appellant no.3-Ram Pal Singh, openly threatened the deceased Bharat Singh and his brother Prem Chand (P.W.-1), vowing to kill them whenever an opportunity arose.

6. In that context, on 16.10.1983 at about 6:00 a.m., the deceased-Bharat Singh, Bade Singh (P.W.-2) and Lal Bahadur Singh (not examined at the trial) were walking towards the agricultural field of the deceased and Prem Chand (P.W.-1). The deceased was walking a little ahead of the others. When they reached the agricultural field of Mulla Jatav, which had standing crops, the appellant Ram Pal Singh armed with a spear, alongwith Lala Ram, Hakim Singh and Suresh Singh, armed with wooden staffs/‘lathies’, emerged from the fields. They pulled the deceased towards the groundnut field in village Jamunia. The informant side tried to intervene and raised an alarm. As they moved towards the assailants, they were warned to stay back or they too would be killed. The assailants threw the deceased to the ground in the groundnut field and throttled him with the wooden staff and had also assaulted him. The occurrence was witnessed by other villagers, as well. Having caused the occurrence, the assailants fled. Thereafter, the first 3 CRLA No.3167 of 1984 informant and others reached the place of occurrence, where they found Bharat Singh had died.

7. The Written Report (Ex.Ka.1 at the trial) was prepared by Yaqoob Beg (not examined at the trial). Based on this report, the FIR (Ex.Ka.2 at the trial) was registered at 9:15 a.m. on 16.10.1983, at the Police Station Kant, District Shahjahanpur, reporting offence under Section 302 I.P.C.

8. On 16.10.1983, two shoes belonging to the deceased were recovered from the place of occurrence. That Recovery Memo is Ex.Ka.8 at the trial. It also appears, three Search Memos were prepared against the appellants Hakim Singh, Suresh Singh, Ram Pal Singh and Lala Ram, but no recoveries were made. These Search Memos are also part of the record.

9. The Inquest Report (Ex.Ka.3 at the trial), was prepared on

16.10.1983 between 10:00 a.m. and 12:00 p.m. On 17.10.1983, at about 1:00 p.m., Dr. U.D. Kapoor (P.W.-5) conducted the autopsy on the dead body of the deceased. In his report, he noted the following ante-mortem injuries: “1- Abrasion 2cm x 1cm on left side of forehead joint above the left eyebrow. 2- Abrasion 1.5cm x 0.5cm about 2cm above the injury no.1.2 3- Abraded contusion 8cm x 2.5cm x front of middle of neck extending towards left side. 4- Punctured wound 1.5cm x 0.5cm x tissue deep right side of chest, 4 cms below and lateral to right nipple. 5- Abrasion 2 cm x 0.5 cm on lateral side/left forearm, 6cm below elbow joint. 6- Abrasion, 2 cm tissue deep/ 2cm below inj. no.5. 7- Lacerated wound 2cm x 1cm x skin deep on the back of right scrotum. 8- Abrasion 4cm x 0.8 cm curation shape on the inner aspect of right forearm, 4 cm above wrist joint.”

10. In his opinion, death was caused about one and a quarter day earlier, due to asphyxia, as a result of ante-mortem strangulation.

11. Upon conclusion of investigation, charge sheet was submitted against the accused appellants. Upon the case being committed for trial to the Court of Sessions, the following charges were framed against the appellants: 4 Charge CRLA No.3167 of 1984 “I, B. K. Sharma, III Addl.Sessions Judge, Shahjahanpur, hereby charge you: 1. Hakim Singh, 2. Suresh Singh, 3. Ram Pal Singh and 4. Lala Ram, as follows:- That you on 16.10.83 at about 6 a.m. in village Jamunia, P.S. Kant, District Shahjahanpur in the field of Mulla Jatav in furtherance of the common intention of you all did commit murder by intentionally causing the death of Bharat Singh and thereby committed an offence punishable under section 302 read with Section 34 I.P.C. and within my cognizance.”

12. At the trial, besides relying on the documentary evidence, the prosecution relied on oral evidence led through five witnesses. First, the younger brother of the deceased-Bharat Singh, and the first informant-Prem Chand was examined as P.W.-1. He was an eyewitness to the occurrence. Second, the brother-in-law of Bharat Singh, namely, Bade Singh was examined as P.W.-2. He was also an eyewitness. However, neither was injured in the occurrence.

13. Next, Constable Dheeraj Singh was examined as P.W.-3. He testified about the transportation of the dead body of the deceased for post-mortem examination. S.I. Ram Singh Verma, the first Investigation Officer was examined as P.W.-4. He proved the preparation of the check FIR and the relevant G.D. entries as well as the recovery of the shoes and the preparation of the Inquest Report.

14. Last, Dr. U.D. Kapoor was examined as P.W.-5. He proved the autopsy examination conducted on the dead body of the deceased. Thereafter, the statements of the accused persons were recorded under Section 313 of the Cr.P.C. and verbatim the same questions were put to all the accused persons.

15. Thereafter, the defence led evidence through witnesses, namely, Clerk Chandra Mohan Srivastava (D.W.-1). Lekhpal Lalaram (D.W.-2) was examined to prove that there was no agricultural holding in the name of the deceased-Bharat Singh and Prem Chand (P.W.-1), either at village Bhainsta Kala or village Bhainsta Khurd. Next, Deg Pal Singh was examined as D.W.-3 with respect to the receipt of the special report by the District Magistrate. Based on this evidence, the learned court below convicted the 5 CRLA No.3167 of 1984 present appellants for the offence under Section 302 read with Section 34 I.P.C.

16. Submission of learned counsel for the appellants are-the FIR is ante-timed. The occurrence may have been caused in the midnight of 15/16.10.1983. The Inquest Report does not clearly prove the time of its preparation. The Special Report that ought to have been sent forthwith to the learned Magistrate was sent with an unexplained delay of four days, on 20.10.1983. Thus, the FIR was lodged much after the occurrence, on a false and well thought-out case. In the absence of the scribe, Yaqoob Beg being produced in the Court, the defence could not establish that doubt beyond this point.

17. Second, the presence of Prem Chand (P.W.-1) is wholly doubtful. According to the prosecution story, Ram Pal Singh had equal motive to kill the deceased-Bharat Singh and Prem Chand (P.W.-1), as both were brothers of the accused in the murder of the brother of Ram Pal Singh, namely, Gajraj Singh. Yet, neither was Prem Chand (P.W.-1) was attacked by the assailants nor the latter made any effort to intervene and save the deceased-Bharat Singh. The presence of Bade Singh (P.W.-2) be accepted. He is married to the sister of the deceased and Prem Chand (P.W.-1) and is a resident of another village. He had no occasion to be present at the village of the deceased or to accompany him and Prem Chand (P.W.-1), in the early hours of 16.10.1983, when Lal Bahadur Singh (not examined at the trial)-the manual laborer, had been hired by the deceased to harvest crops. No material recovery was made from the appellants to corroborate the prosecution story.

18. Also, neither, Prem Chand (P.W.-1) nor Bade Singh (P.W.-2) had any occasion to be present with the deceased-Bharat Singh, in the early hours of 16.10.1983, in a way that may have allowed them an opportunity to witness any occurrence.

19. Third, referring to the long criminal history of the deceased- Bharat Singh-as discussed during the cross-examination of Prem 6 CRLA No.3167 of 1984 Chand (P.W.-1), it has been stressed, the deceased was a man of criminal antecedents who had also been charged with the heinous offence of dacoity. He remained confined for four years. In all, he had been sent to jail three times.

20. Fourth, doubt has also been raised on account of the alleged discrepancy in the statements of Prem Chand (P.W.-1) and Bade Singh (P.W.-2) as to the manner of the assault described by them.

21. Fifth, it has been stressed, the Investigation Officer proved that Prem Chand (P.W.-1) had made statements under the dictation of Bade Singh (P.W.-2). Therefore, there is enough reason to doubt the prosecution story as being neither truthful nor complete.

22. Last, the statement recorded under Section 313 Cr.P.C. are wholly deficient and contrary to the law. A single set of questions was put to all the accused persons, unmindful of the fact that besides Ram Pal Singh, accusations of assault with spear was not made against any of the three other accused. As to throttling, no specific query was put to Suresh Singh, as to that adverse circumstance.

23. On the other hand, learned A.G.A. would submit, Prem Chand (P.W.-1) is the real brother of the deceased-Bharat Singh. The F.I.R. was lodged promptly, within two hours of the occurrence. Despite extensive cross-examination, no material improvement, discrepancy or contradiction emerged in the prosecution story. In fact, the F.I.R. narration fully corroborates the prosecution story as proven by Prem Chand (P.W.-1) and Bade Singh (P.W.-2).

24. The presence of Prem Chand (P.W.-1) and Bade Singh (P.W.- 2) was wholly natural. They may not have gone to their agricultural field to perform manual labor, however, it is undisputed, it was harvest time. Therefore, the fact that they may have accompanied the deceased to the agricultural field to instruct the manual laborer-Lal Bahadur Singh, is not doubtful. 7 CRLA No.3167 of 1984

25. Third, in the face of such ocular evidence led by the prosecution through Prem Chand (P.W.-1) and Bade Singh (P.W.-2), a minor discrepancy or misrepresentation may not be relied to doubt the otherwise truthful prosecution story. Thus, how each injury was exactly caused to the deceased may not be relevant. To the extent, the prosecution witnesses described the spear injury caused by the accused Ram Pal Singh and the throttling caused by Suresh Singh alongwith Hakim Singh and Lala Ram, the prosecution story has been proven beyond reasonable doubt.

26. The fact that Prem Chand (P.W.-1) and Bade Singh (P.W.-2) did not suffer any injuries may not be a reason to doubt their presence. In the absence of effective cross-examination of those witnesses on the relevant point of their presence, such an inference should not be readily drawn.

27. As to the Special Report, the details of the FIR are present in the Inquest Report and the time of its preparation is not in doubt. Mere delay in the submission of the Special Report, if at all may not be a reason to doubt the otherwise truthful prosecution story. To the extent, there is no doubt that the check report and the G.D. entries were prepared at the relevant time, too much reliance should not be placed on the submission of the Special Report.

28. As to the criminal history and previous animosity, it has been submitted, those are double-edged weapons. No definitive conclusion can be drawn based on such facts alone.

29. With respect to the statement recorded under Section 313 Cr.P.C., it has been submitted, once substantive evidence had been led and the accused appellants given full opportunity to cross- examine the prosecution witnesses, no adverse inference may be drawn due to any deficiency in the statement recorded under Section 313 Cr.P.C. 8 CRLA No.3167 of 1984

30. Further, referring to the particular question, it has been submitted, the relevant adverse circumstances were presented to the appellants, both with respect to the injuries caused by spear and the injuries caused by wooden staff/‘lathi’.

31. Having heard learned counsel for the parties and having perused the record, we first need to consider whether the FIR was ante-timed. In that regard, we note, the occurrence is described to have taken place around 6:00 a.m. on 16.10.1983, while the FIR is disclosed to have been lodged at Police Station Kant at 9:15 a.m. In that, the police station is six miles to the South of the place of occurrence. It cannot be said that the first informant-Prem Chand (P.W.-1), did not have enough time to lodge the FIR.

32. Second, S.I. Ram Singh Verma-the first investigation officer, proved, the check report was given to him at about 9:15 a.m. and that he reached the place of occurrence at about 10:30 a.m. This fact is corroborated by the Inquest Report, which was prepared around 12:00 noon. In that report, all case details are present.

33. As to the submission of the Special Report, it may not carry much weight, as the defense itself chose to examine Constable Lekhpal Singh as D.W.-3. That witness proved, he had carried five copies of the Special Report from the Police Station for submission to the D.M., S.D.M.Sadar, S.P., DyS.P. and S.I. ICDCRS. He also proved, he had obtained receipt for the same and submitted parcha challan at the Police Station. That Special Report was dispatched at 10:00 a.m. on 16.10.1983, which was recorded in the General Diary. Seen in that light, we are not in a position to conclude that the FIR was submitted ante-timed.

34. At the same time, it was stated in the FIR, the deceased-Bharat Singh, the first informant-Prem Chand (P.W.-1), their brother-in-law Bade Singh (P.W.-2) and Lal Bahadur Singh (not examined at the trial) were walking to the agricultural field of Prem Chand (P.W.-1). 3-4 paces apart i.e. very close to each other. 9 CRLA No.3167 of 1984

35. The prosecution claims, the assailants suddenly emerged from their hiding place among standing crops and pulled away only the deceased-Bharat Singh. The assailants were not armed with any deadly weapon (such as firearm), and no use of such firearm or any other weapon was assigned or described at the beginning of the assault.

36. In normal occurrence of this type, where four persons are described to have been confronted by four others, with bare hands or ‘lathies’ and they assault only one, the three others accompanying that victim may not stand and remain mute spectators to the assault. It is wholly unnatural to accept that three on the victim side, who were very closely related-being real brother and brother-in-law, would not respond or try to prevent the assault. Neither the deceased-Bharat Singh was an infant or a very young person, nor any undue advantage was existing in favor of the assailants alleged or was established, by the prosecution.

37. Three accused persons were armed with wooden staffs/‘lathies’, whereas one was armed with spear. Here, we also note, there is a divergence in the prosecution story with respect to the weapons available to the victim side. While Prem Chand (P.W.-1) described, the victim side was armed with three ‘hasiya’, carried by Lal Bahadur Singh, Bade Singh (P.W.-2) described that they were carrying three ‘lathies’. This leads to further doubt as to the truthfulness of the prosecution narration. Being thus armed and confronted with a situation, wherein one (the deceased) was assaulted, and three others were neither attacked nor restrained by the assailants, those three, namely, Prem Chand (P.W.-1), Bade Singh (P.W.-2) and Lal Bahadur Singh, all able bodied adults armed with ‘lathies’/‘hasiya’ remained mute spectators. It may be wholly natural and normal to expect, if they were present, at the time and place of the occurrence, they would have intervened and tried to save the deceased. 10 CRLA No.3167 of 1984

38. Further, doubt emerges from the fact, though it is described that the deceased was thrown to the ground with his face down, the two injuries he suffered, one from the spear and the other from throttling, are described to have been caused, in quick session. While no definite conclusion may be drawn, whether the spear injury could have been caused on the chest with the deceased lying face down, it is wholly improbable that he could have been throttled to death with wooden staff/‘lathi’, while he was facing down, especially when according to the prosecution narration, the ‘lathi’ had been pressed on his neck by the appellants Suresh Singh and Hakim Singh. There is absolutely no narration in the prosecution story of when and in what manner the deceased turned around to allow the assailants to throttle him.

39. Further, absolutely no injuries were suffered either by Prem Chand (P.W.-1) or Bade Singh (P.W.-2) or Lal Bahadur Singh. The fact that the two witnesses, who are highly interested and closely related, maintained that they withdrew and backed away after being orally threatened by assailants, who were armed with nothing more than a spear and three ‘lathies’ and allowed the assailants to flee before they reacted, is highly doubtful as the victim side was neither out numbered nor over powered nor out-armed. 4:4, offered a fair chance, to defend.

40. Thus, it is wholly doubtful if such occurrence could have taken place without any objection or resistance from the victim side. This is particularly questionable in other proven facts, wherein, according to the FIR narration, the deceased-Bharat Singh and Prem Chand (P.W.-1) were real brothers and the main accused, in the murder of Gajraj Singh, who was the brother of Ram Pal Singh. That, animosity/motive has been established by the prosecution, itself. Hence, the doubt expressed above carries weight.

41. Insofar as presence of Bade Singh (P.W.-2) is concerned, we find his presence wholly doubtful. He established his presence on a 11 CRLA No.3167 of 1984 specious plea of illness suffered by his mother-in-law. As per his account, he visited his in-laws alone and his wife came later i.e. after death of the deceased-Bharat Singh. Second, it is also doubtful if such a person i.e. a son-in-law/‘jamai’ would have found reason or occasion to accompany the deceased-Bharat Singh, who may have been going to his agricultural field, only to instruct a manual laborer, hired at the rate of Rs. 5/- per day, to harvest the crops. The explanation given by Bade Singh (P.W.-2) to accompany the deceased-Bharat Singh and Prem Chand (P.W.-1) that he had no work at home, is difficult to believe or accept, considering his relationship with the deceased and lack of any pecuniary or other interest in the agricultural activity of the deceased.

42. Further, there is doubt due to the conflicting statements made by Prem Chand (P.W.-1) and Bade Singh (P.W.-2) about the presence of ‘hasiya’ and ‘lathies’. The prosecution may have tried to avoid this line of doubt raised by the defence by having the witnesses narrate statements that appear more favorable to them. A ‘hasiya’ is a sharp edged weapon while a ‘lathi’ remains a hard blunt object.

43. Then even, besides the description of two injuries proven by the prosecution witnesses, other injuries may have remained unexplained. Though, we may allow some margin to the prosecution, as those injuries are abrasions, however, a reasonable doubt arises from injury number no.7 as presented by Dr. U.D. Kapoor (P.W.-5) as that injury may have been caused by a specific weapon or assault not described by the prosecution. To the extent, the injury suffered by the deceased on his scrotum may have been caused by hard and blunt object or by squeezing, the complete absence of that narrative in the prosecution story-to explain that injury, leads us to a reasonable doubt about the truthfulness of the prosecution story.

44. Last, we also note, in face of digested food found in the intestine of the deceased and the admission by Dr. U.D. Kapoor (P.W.-5) that the occurrence may have taken place earlier, this also 12 CRLA No.3167 of 1984 gives credence to the defence theory that the occurrence may have been caused late in the night or very early in the morning when the deceased may have been alone. Here, we may also note that the deceased had a long criminal history. A history sheet was also opened against him. Therefore, he remained a person with whom many people may have animosity, besides the accused persons.

45. When so many doubts exist, we find it difficult to accept the prosecution story, as to the presence of the witnesses, namely, Prem Chand (P.W.-1) and Bade Singh (P.W.-2).

46. At best, Prem Chand (P.W.-1) may have remained a partially reliable witness. In absence of any corroboration and in the absence of any explanation for the injury suffered on the scrotum of the deceased, as also in face of other doubts noted above, it would be too risky to uphold the conviction, especially in absence of any independent witnesses.

47. Further, we note, different roles have been assigned to the accused persons. Assault with a spear has been assigned only to Ram Pal Singh and the role of throttling, to the accused Suresh Singh and Hakim Singh. Yet, a common set of questionair was prepared and put to all the accused persons under Section 313 Cr.P.C. This left them without a chance to offer their individual explanation to any individual adverse circumstance alleged against them. This also creates a legal difficulty. More than 40 years have passed since the occurrence and it is not possible to resolve that difficulty, at this late stage. The appellant, Ram Pal Singh is described to be more than 80 years of age and the appellant Suresh Singh more than 65 years of age.

48. For all the reasons noted above, we are of the view that the appellants are entitled to a benefit of doubt. Consequently, this appeal succeeds and is allowed. The judgment and order of conviction dated 16.11.1984 passed by Shri Brahm Singh, learned III Additional Sessions Judge, Shahjahanpur, in Sessions Trial No.761 13 CRLA No.3167 of 1984 of 1983 (State Vs. Hakim Singh, Suresh Singh, Ram Pal Singh and Lala Ram), under Section 302 read with Section 34 I.P.C., Police Station Kant, District Shahjahanpur, is hereby set aside on a benefit of doubt. Appellants, namely, Suresh Singh and Ram Pal Singh are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. However, the appellants are directed to furnish bail bonds in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two months from today.

49. A copy of this judgment alongwith the trial court record be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record.

50. Pending application, if any, stands disposed of. (Tej Pratap Tiwari,J.) (Saumitra Dayal Singh,J.) September 9, 2025 Anurag/- ANURAG JAISWAL High Court of Judicature at Allahabad

Bharat Singh, Sher Bahadur Singh, Suraj Pal Singh and the first informant-Prem Chand (P.W.-1). However, those accused were later released. That incident had led to animosity between the present appellants and the informant side. Two days before the present occurrence, appellant no.3-Ram Pal Singh, openly threatened the deceased Bharat Singh and his brother Prem Chand (P.W.-1), vowing to kill them whenever an opportunity arose.

6. In that context, on 16.10.1983 at about 6:00 a.m., the deceased-Bharat Singh, Bade Singh (P.W.-2) and Lal Bahadur Singh (not examined at the trial) were walking towards the agricultural field of the deceased and Prem Chand (P.W.-1). The deceased was walking a little ahead of the others. When they reached the agricultural field of Mulla Jatav, which had standing crops, the appellant Ram Pal Singh armed with a spear, alongwith Lala Ram, Hakim Singh and Suresh Singh, armed with wooden staffs/‘lathies’, emerged from the fields. They pulled the deceased towards the groundnut field in village Jamunia. The informant side tried to intervene and raised an alarm. As they moved towards the assailants, they were warned to stay back or they too would be killed. The assailants threw the deceased to the ground in the groundnut field and throttled him with the wooden staff and had also assaulted him. The occurrence was witnessed by other villagers, as well. Having caused the occurrence, the assailants fled. Thereafter, the first 3 CRLA No.3167 of 1984 informant and others reached the place of occurrence, where they found Bharat Singh had died.

7. The Written Report (Ex.Ka.1 at the trial) was prepared by Yaqoob Beg (not examined at the trial). Based on this report, the FIR (Ex.Ka.2 at the trial) was registered at 9:15 a.m. on 16.10.1983, at the Police Station Kant, District Shahjahanpur, reporting offence under Section 302 I.P.C.

8. On 16.10.1983, two shoes belonging to the deceased were recovered from the place of occurrence. That Recovery Memo is Ex.Ka.8 at the trial. It also appears, three Search Memos were prepared against the appellants Hakim Singh, Suresh Singh, Ram Pal Singh and Lala Ram, but no recoveries were made. These Search Memos are also part of the record.

9. The Inquest Report (Ex.Ka.3 at the trial), was prepared on

16.10.1983 between 10:00 a.m. and 12:00 p.m. On 17.10.1983, at about 1:00 p.m., Dr. U.D. Kapoor (P.W.-5) conducted the autopsy on the dead body of the deceased. In his report, he noted the following ante-mortem injuries: “1- Abrasion 2cm x 1cm on left side of forehead joint above the left eyebrow. 2- Abrasion 1.5cm x 0.5cm about 2cm above the injury no.1.2 3- Abraded contusion 8cm x 2.5cm x front of middle of neck extending towards left side. 4- Punctured wound 1.5cm x 0.5cm x tissue deep right side of chest, 4 cms below and lateral to right nipple. 5- Abrasion 2 cm x 0.5 cm on lateral side/left forearm, 6cm below elbow joint. 6- Abrasion, 2 cm tissue deep/ 2cm below inj. no.5. 7- Lacerated wound 2cm x 1cm x skin deep on the back of right scrotum. 8- Abrasion 4cm x 0.8 cm curation shape on the inner aspect of right forearm, 4 cm above wrist joint.”

10. In his opinion, death was caused about one and a quarter day earlier, due to asphyxia, as a result of ante-mortem strangulation.

11. Upon conclusion of investigation, charge sheet was submitted against the accused appellants. Upon the case being committed for trial to the Court of Sessions, the following charges were framed against the appellants: 4 Charge CRLA No.3167 of 1984 “I, B. K. Sharma, III Addl.Sessions Judge, Shahjahanpur, hereby charge you: 1. Hakim Singh, 2. Suresh Singh, 3. Ram Pal Singh and 4. Lala Ram, as follows:- That you on 16.10.83 at about 6 a.m. in village Jamunia, P.S. Kant, District Shahjahanpur in the field of Mulla Jatav in furtherance of the common intention of you all did commit murder by intentionally causing the death of Bharat Singh and thereby committed an offence punishable under section 302 read with Section 34 I.P.C. and within my cognizance.”

12. At the trial, besides relying on the documentary evidence, the prosecution relied on oral evidence led through five witnesses. First, the younger brother of the deceased-Bharat Singh, and the first informant-Prem Chand was examined as P.W.-1. He was an eyewitness to the occurrence. Second, the brother-in-law of Bharat Singh, namely, Bade Singh was examined as P.W.-2. He was also an eyewitness. However, neither was injured in the occurrence.

13. Next, Constable Dheeraj Singh was examined as P.W.-3. He testified about the transportation of the dead body of the deceased for post-mortem examination. S.I. Ram Singh Verma, the first Investigation Officer was examined as P.W.-4. He proved the preparation of the check FIR and the relevant G.D. entries as well as the recovery of the shoes and the preparation of the Inquest Report.

14. Last, Dr. U.D. Kapoor was examined as P.W.-5. He proved the autopsy examination conducted on the dead body of the deceased. Thereafter, the statements of the accused persons were recorded under Section 313 of the Cr.P.C. and verbatim the same questions were put to all the accused persons.

15. Thereafter, the defence led evidence through witnesses, namely, Clerk Chandra Mohan Srivastava (D.W.-1). Lekhpal Lalaram (D.W.-2) was examined to prove that there was no agricultural holding in the name of the deceased-Bharat Singh and Prem Chand (P.W.-1), either at village Bhainsta Kala or village Bhainsta Khurd. Next, Deg Pal Singh was examined as D.W.-3 with respect to the receipt of the special report by the District Magistrate. Based on this evidence, the learned court below convicted the 5 CRLA No.3167 of 1984 present appellants for the offence under Section 302 read with Section 34 I.P.C.

16. Submission of learned counsel for the appellants are-the FIR is ante-timed. The occurrence may have been caused in the midnight of 15/16.10.1983. The Inquest Report does not clearly prove the time of its preparation. The Special Report that ought to have been sent forthwith to the learned Magistrate was sent with an unexplained delay of four days, on 20.10.1983. Thus, the FIR was lodged much after the occurrence, on a false and well thought-out case. In the absence of the scribe, Yaqoob Beg being produced in the Court, the defence could not establish that doubt beyond this point.

17. Second, the presence of Prem Chand (P.W.-1) is wholly doubtful. According to the prosecution story, Ram Pal Singh had equal motive to kill the deceased-Bharat Singh and Prem Chand (P.W.-1), as both were brothers of the accused in the murder of the brother of Ram Pal Singh, namely, Gajraj Singh. Yet, neither was Prem Chand (P.W.-1) was attacked by the assailants nor the latter made any effort to intervene and save the deceased-Bharat Singh. The presence of Bade Singh (P.W.-2) be accepted. He is married to the sister of the deceased and Prem Chand (P.W.-1) and is a resident of another village. He had no occasion to be present at the village of the deceased or to accompany him and Prem Chand (P.W.-1), in the early hours of 16.10.1983, when Lal Bahadur Singh (not examined at the trial)-the manual laborer, had been hired by the deceased to harvest crops. No material recovery was made from the appellants to corroborate the prosecution story.

18. Also, neither, Prem Chand (P.W.-1) nor Bade Singh (P.W.-2) had any occasion to be present with the deceased-Bharat Singh, in the early hours of 16.10.1983, in a way that may have allowed them an opportunity to witness any occurrence.

19. Third, referring to the long criminal history of the deceased- Bharat Singh-as discussed during the cross-examination of Prem 6 CRLA No.3167 of 1984 Chand (P.W.-1), it has been stressed, the deceased was a man of criminal antecedents who had also been charged with the heinous offence of dacoity. He remained confined for four years. In all, he had been sent to jail three times.

20. Fourth, doubt has also been raised on account of the alleged discrepancy in the statements of Prem Chand (P.W.-1) and Bade Singh (P.W.-2) as to the manner of the assault described by them.

21. Fifth, it has been stressed, the Investigation Officer proved that Prem Chand (P.W.-1) had made statements under the dictation of Bade Singh (P.W.-2). Therefore, there is enough reason to doubt the prosecution story as being neither truthful nor complete.

22. Last, the statement recorded under Section 313 Cr.P.C. are wholly deficient and contrary to the law. A single set of questions was put to all the accused persons, unmindful of the fact that besides Ram Pal Singh, accusations of assault with spear was not made against any of the three other accused. As to throttling, no specific query was put to Suresh Singh, as to that adverse circumstance.

23. On the other hand, learned A.G.A. would submit, Prem Chand (P.W.-1) is the real brother of the deceased-Bharat Singh. The F.I.R. was lodged promptly, within two hours of the occurrence. Despite extensive cross-examination, no material improvement, discrepancy or contradiction emerged in the prosecution story. In fact, the F.I.R. narration fully corroborates the prosecution story as proven by Prem Chand (P.W.-1) and Bade Singh (P.W.-2).

24. The presence of Prem Chand (P.W.-1) and Bade Singh (P.W.- 2) was wholly natural. They may not have gone to their agricultural field to perform manual labor, however, it is undisputed, it was harvest time. Therefore, the fact that they may have accompanied the deceased to the agricultural field to instruct the manual laborer-Lal Bahadur Singh, is not doubtful. 7 CRLA No.3167 of 1984

25. Third, in the face of such ocular evidence led by the prosecution through Prem Chand (P.W.-1) and Bade Singh (P.W.-2), a minor discrepancy or misrepresentation may not be relied to doubt the otherwise truthful prosecution story. Thus, how each injury was exactly caused to the deceased may not be relevant. To the extent, the prosecution witnesses described the spear injury caused by the accused Ram Pal Singh and the throttling caused by Suresh Singh alongwith Hakim Singh and Lala Ram, the prosecution story has been proven beyond reasonable doubt.

26. The fact that Prem Chand (P.W.-1) and Bade Singh (P.W.-2) did not suffer any injuries may not be a reason to doubt their presence. In the absence of effective cross-examination of those witnesses on the relevant point of their presence, such an inference should not be readily drawn.

27. As to the Special Report, the details of the FIR are present in the Inquest Report and the time of its preparation is not in doubt. Mere delay in the submission of the Special Report, if at all may not be a reason to doubt the otherwise truthful prosecution story. To the extent, there is no doubt that the check report and the G.D. entries were prepared at the relevant time, too much reliance should not be placed on the submission of the Special Report.

28. As to the criminal history and previous animosity, it has been submitted, those are double-edged weapons. No definitive conclusion can be drawn based on such facts alone.

29. With respect to the statement recorded under Section 313 Cr.P.C., it has been submitted, once substantive evidence had been led and the accused appellants given full opportunity to cross- examine the prosecution witnesses, no adverse inference may be drawn due to any deficiency in the statement recorded under Section 313 Cr.P.C. 8 CRLA No.3167 of 1984

30. Further, referring to the particular question, it has been submitted, the relevant adverse circumstances were presented to the appellants, both with respect to the injuries caused by spear and the injuries caused by wooden staff/‘lathi’.

31. Having heard learned counsel for the parties and having perused the record, we first need to consider whether the FIR was ante-timed. In that regard, we note, the occurrence is described to have taken place around 6:00 a.m. on 16.10.1983, while the FIR is disclosed to have been lodged at Police Station Kant at 9:15 a.m. In that, the police station is six miles to the South of the place of occurrence. It cannot be said that the first informant-Prem Chand (P.W.-1), did not have enough time to lodge the FIR.

32. Second, S.I. Ram Singh Verma-the first investigation officer, proved, the check report was given to him at about 9:15 a.m. and that he reached the place of occurrence at about 10:30 a.m. This fact is corroborated by the Inquest Report, which was prepared around 12:00 noon. In that report, all case details are present.

33. As to the submission of the Special Report, it may not carry much weight, as the defense itself chose to examine Constable Lekhpal Singh as D.W.-3. That witness proved, he had carried five copies of the Special Report from the Police Station for submission to the D.M., S.D.M.Sadar, S.P., DyS.P. and S.I. ICDCRS. He also proved, he had obtained receipt for the same and submitted parcha challan at the Police Station. That Special Report was dispatched at 10:00 a.m. on 16.10.1983, which was recorded in the General Diary. Seen in that light, we are not in a position to conclude that the FIR was submitted ante-timed.

34. At the same time, it was stated in the FIR, the deceased-Bharat Singh, the first informant-Prem Chand (P.W.-1), their brother-in-law Bade Singh (P.W.-2) and Lal Bahadur Singh (not examined at the trial) were walking to the agricultural field of Prem Chand (P.W.-1). 3-4 paces apart i.e. very close to each other. 9 CRLA No.3167 of 1984

35. The prosecution claims, the assailants suddenly emerged from their hiding place among standing crops and pulled away only the deceased-Bharat Singh. The assailants were not armed with any deadly weapon (such as firearm), and no use of such firearm or any other weapon was assigned or described at the beginning of the assault.

36. In normal occurrence of this type, where four persons are described to have been confronted by four others, with bare hands or ‘lathies’ and they assault only one, the three others accompanying that victim may not stand and remain mute spectators to the assault. It is wholly unnatural to accept that three on the victim side, who were very closely related-being real brother and brother-in-law, would not respond or try to prevent the assault. Neither the deceased-Bharat Singh was an infant or a very young person, nor any undue advantage was existing in favor of the assailants alleged or was established, by the prosecution.

37. Three accused persons were armed with wooden staffs/‘lathies’, whereas one was armed with spear. Here, we also note, there is a divergence in the prosecution story with respect to the weapons available to the victim side. While Prem Chand (P.W.-1) described, the victim side was armed with three ‘hasiya’, carried by Lal Bahadur Singh, Bade Singh (P.W.-2) described that they were carrying three ‘lathies’. This leads to further doubt as to the truthfulness of the prosecution narration. Being thus armed and confronted with a situation, wherein one (the deceased) was assaulted, and three others were neither attacked nor restrained by the assailants, those three, namely, Prem Chand (P.W.-1), Bade Singh (P.W.-2) and Lal Bahadur Singh, all able bodied adults armed with ‘lathies’/‘hasiya’ remained mute spectators. It may be wholly natural and normal to expect, if they were present, at the time and place of the occurrence, they would have intervened and tried to save the deceased. 10 CRLA No.3167 of 1984

38. Further, doubt emerges from the fact, though it is described that the deceased was thrown to the ground with his face down, the two injuries he suffered, one from the spear and the other from throttling, are described to have been caused, in quick session. While no definite conclusion may be drawn, whether the spear injury could have been caused on the chest with the deceased lying face down, it is wholly improbable that he could have been throttled to death with wooden staff/‘lathi’, while he was facing down, especially when according to the prosecution narration, the ‘lathi’ had been pressed on his neck by the appellants Suresh Singh and Hakim Singh. There is absolutely no narration in the prosecution story of when and in what manner the deceased turned around to allow the assailants to throttle him.

39. Further, absolutely no injuries were suffered either by Prem Chand (P.W.-1) or Bade Singh (P.W.-2) or Lal Bahadur Singh. The fact that the two witnesses, who are highly interested and closely related, maintained that they withdrew and backed away after being orally threatened by assailants, who were armed with nothing more than a spear and three ‘lathies’ and allowed the assailants to flee before they reacted, is highly doubtful as the victim side was neither out numbered nor over powered nor out-armed. 4:4, offered a fair chance, to defend.

40. Thus, it is wholly doubtful if such occurrence could have taken place without any objection or resistance from the victim side. This is particularly questionable in other proven facts, wherein, according to the FIR narration, the deceased-Bharat Singh and Prem Chand (P.W.-1) were real brothers and the main accused, in the murder of Gajraj Singh, who was the brother of Ram Pal Singh. That, animosity/motive has been established by the prosecution, itself. Hence, the doubt expressed above carries weight.

41. Insofar as presence of Bade Singh (P.W.-2) is concerned, we find his presence wholly doubtful. He established his presence on a 11 CRLA No.3167 of 1984 specious plea of illness suffered by his mother-in-law. As per his account, he visited his in-laws alone and his wife came later i.e. after death of the deceased-Bharat Singh. Second, it is also doubtful if such a person i.e. a son-in-law/‘jamai’ would have found reason or occasion to accompany the deceased-Bharat Singh, who may have been going to his agricultural field, only to instruct a manual laborer, hired at the rate of Rs. 5/- per day, to harvest the crops. The explanation given by Bade Singh (P.W.-2) to accompany the deceased-Bharat Singh and Prem Chand (P.W.-1) that he had no work at home, is difficult to believe or accept, considering his relationship with the deceased and lack of any pecuniary or other interest in the agricultural activity of the deceased.

42. Further, there is doubt due to the conflicting statements made by Prem Chand (P.W.-1) and Bade Singh (P.W.-2) about the presence of ‘hasiya’ and ‘lathies’. The prosecution may have tried to avoid this line of doubt raised by the defence by having the witnesses narrate statements that appear more favorable to them. A ‘hasiya’ is a sharp edged weapon while a ‘lathi’ remains a hard blunt object.

43. Then even, besides the description of two injuries proven by the prosecution witnesses, other injuries may have remained unexplained. Though, we may allow some margin to the prosecution, as those injuries are abrasions, however, a reasonable doubt arises from injury number no.7 as presented by Dr. U.D. Kapoor (P.W.-5) as that injury may have been caused by a specific weapon or assault not described by the prosecution. To the extent, the injury suffered by the deceased on his scrotum may have been caused by hard and blunt object or by squeezing, the complete absence of that narrative in the prosecution story-to explain that injury, leads us to a reasonable doubt about the truthfulness of the prosecution story.

44. Last, we also note, in face of digested food found in the intestine of the deceased and the admission by Dr. U.D. Kapoor (P.W.-5) that the occurrence may have taken place earlier, this also 12 CRLA No.3167 of 1984 gives credence to the defence theory that the occurrence may have been caused late in the night or very early in the morning when the deceased may have been alone. Here, we may also note that the deceased had a long criminal history. A history sheet was also opened against him. Therefore, he remained a person with whom many people may have animosity, besides the accused persons.

45. When so many doubts exist, we find it difficult to accept the prosecution story, as to the presence of the witnesses, namely, Prem Chand (P.W.-1) and Bade Singh (P.W.-2).

46. At best, Prem Chand (P.W.-1) may have remained a partially reliable witness. In absence of any corroboration and in the absence of any explanation for the injury suffered on the scrotum of the deceased, as also in face of other doubts noted above, it would be too risky to uphold the conviction, especially in absence of any independent witnesses.

47. Further, we note, different roles have been assigned to the accused persons. Assault with a spear has been assigned only to Ram Pal Singh and the role of throttling, to the accused Suresh Singh and Hakim Singh. Yet, a common set of questionair was prepared and put to all the accused persons under Section 313 Cr.P.C. This left them without a chance to offer their individual explanation to any individual adverse circumstance alleged against them. This also creates a legal difficulty. More than 40 years have passed since the occurrence and it is not possible to resolve that difficulty, at this late stage. The appellant, Ram Pal Singh is described to be more than 80 years of age and the appellant Suresh Singh more than 65 years of age.

48. For all the reasons noted above, we are of the view that the appellants are entitled to a benefit of doubt. Consequently, this appeal succeeds and is allowed. The judgment and order of conviction dated 16.11.1984 passed by Shri Brahm Singh, learned III Additional Sessions Judge, Shahjahanpur, in Sessions Trial No.761 13 CRLA No.3167 of 1984 of 1983 (State Vs. Hakim Singh, Suresh Singh, Ram Pal Singh and Lala Ram), under Section 302 read with Section 34 I.P.C., Police Station Kant, District Shahjahanpur, is hereby set aside on a benefit of doubt. Appellants, namely, Suresh Singh and Ram Pal Singh are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. However, the appellants are directed to furnish bail bonds in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two months from today.

49. A copy of this judgment alongwith the trial court record be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record.

50. Pending application, if any, stands disposed of. (Tej Pratap Tiwari,J.) (Saumitra Dayal Singh,J.) September 9, 2025 Anurag/- ANURAG JAISWAL High Court of Judicature at Allahabad