Allahabad High Court
Maharaj Singh And Others vs State on 2 April, 2026
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 11.3.2026 Delivered on 02.4.2026 HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 1474 of 1984 Maharaj Singh and others ..Appellant(s) Versus State ..Respondent(s) Counsel for Appellant(s) : A.b.l. Gaur, D.s. Tewari, P.c. Sharma, Upendra Upadhyay Counsel for Respondent(s) : A.G.A. In Chamber HON'BLE SIDDHARTH, J.
HON'BLE JAI KRISHNA UPADHYAY, J.
(Delivered by Honble Siddharth, J.)
1. Heard Sri Upendra Upadhyay, learned counsel for the appellants; Sri Prem Shankar Prasad, learned AGA for State-respondent and perused the trial court record and judgement & order passed by the trial court.
2. This criminal appeal has been preferred against the judgment and order dated 31.3.1984 passed by Additional Sessions Judge, Etah, in Criminal Sessions Trial No.441 of 1982, connected with Sessions Trial No.479 of 1982, convicting and sentencing the appellants under Sections 302/149 IPC for life imprisonment and fine of Rs.2000/- each and in default of payment of fine to undergo one year additional simple imprisonment; under Section 148 IPC for a period of one year rigorous imprisonment each; under Section 452 IPC for a period of three years rigorous imprisonment each; under Section 323 IPC read with Section 149 IPC for a period of one year rigorous imprisonment each. All the sentences shall run concurrently.
3. During the pendency of this appeal, all the appellants except appellant no.5, Jahar Singh, have died. Thus appeal has been heard and being decided only regarding appellant no.5, Jahar Singh.
4. The prosecution case is that on the night, intervening between 17th and 18th April, 1982, at about mid-night, accused armed with deadly weapons, formed an unlawful assembly, in village- Amiratpur, Police Station- Jaithra, District- Etah and in prosecution of the common object of such assembly, they committed rioting. On the same date and time in prosecution of the common object of the said unlawful assembly, they committed house-trespass in the house of Amar Singh in village-Amiratpur, Police Station- Jaithra, District- Etah, having made preparation for causing hurt to complainant and his family members. They actually caused injuries to Smt. Ram Kali and Ram Narain, brother of the complainant with such intention and under such circumstances that in case Smt. Ram Kali and Ram Narain would have died as a result of those injuries, they all would have been guilty of their murder. On the aforesaid date, time and place, they in furtherance of the common object of the said unlawful assembly, committed murder of Ram Narain by intentionally causing his death inflicting gunshot wounds. It is also alleged that on the aforesaid date at about mid-night, knowing that the murder of Ram Narain, punishable with death has been committed, they did cause certain evidence of the said offence to disappear by putting the dead body of Ram Narain to fire in a 'Bitiya' near village- Rasidpur, Police Station- Jaithra, District- Etah with the intention of saving themselves from the legal punishment. The charge against the accused were framed by Sri K.P. S. Malik, the then VIIth Additional Sessions Judge, Etah. The accused pleaded not guilty to the charges under Sections 148, 452, 307, 302/149 and 201 IPC framed against them.
5. On 18.04.1982, at 07:05 a.m., Amar Singh, son of Gajadhar lodged a written report at Police Station- Jaithra. The allegations in this report are that Ram Kali the real 'Mausi' of the complainant is wedded to Deep Singh in the village- 2-1/2 - 3 years back, Jograj etc., had fired at Raj Bahadur son of his 'Mausi' in order to kill him and its trial is pending trial in the court. The complainant and other members of his family used to help Raj Bahadur in the case and for this reason, Jograj etc., had a grudge against them. 3-4 days prior to the occurrence, Jograj did not let Ram Narain, deceased to get labourers for cutting the wheat crop in the village. Jograj had also threatened him that he will see as to how long he helps Raj Babadur. He will not let him be fit enough to help Raj Bahadur within a week. On the night of 17/18.04.1982, at about mid-night, the complainant, his brother, Ram Narain and mother, Ram Kali were sleeping inside the 'chaupal'. The door was bolted from inside. The lantern was lighted inside the'chaupal'. Accused, Jograj Maharaj Singh and Ram Das, armed with guns, Ram Avatar, armed with an axe, Jahar Singh and Ajay Singh, armed with 'tamancha' came to his'chaupal'and knocked the door. When the door was not opened, they started breaking and open the door with an axe. In the meantime, the brother of the complainant started digging the back wall of the'chaupal'in order to escape. The door was broken by the accused and they came inside. The complainant and other family members opened the latch of the eastern door and ran outside raising alarm. Accused, Maharaj Sing said "Mar Do Saley Ko Ram Narain Bhaga Ja Raha Hai." Jograj fired at the brother of complainant but luckily he escaped. Ram Narain ran inside the village and when he reached near the house of Collector, Pandit Chameli 'Bhabhi' of the complainant, his niece, Panwati, Raj Bahadur and Ranjeet came there flashing their torches. The complainant and all others ran behind the accused. The moment, his brother, Ram Narain, entered the 'Madhaiya' of Shri Pal, accused surrounded him and Jograj, Maharaj Singh, Ram Das and Guru Dayal, at once fired at him with guns. Ram Narain fell down dead. The accused picked up the dead body of Ram Narain and proceeded towards village- Rasidpur. The complainant and other persons wanted to stop the accused. Jograj gave the blow of the barrel of his gun to his mother which struck her. The accused pointed out their 'tamancha' and gun towards the complainant party and said "Agar agey barhey to jan say mar daingey" they stopped. The accused were seen and recognized by the witnesses in the light of lantern and torches.
6. Subsequently, many persons of the village assembled. Due to fear of the accused, the complainant and his family members did not go to search out the dead body of Ram Narain. They did not go to lodge the report in the night for this reason. In the early morning, while they were searching the dead body of Ram Narain towards village - Rasidpur, Udaivir of village- Rasidpur met them and said "Merey Kandon Ka Bitiya Gaon say pachchim main hai usmain kisi ney aag laga di hai aur usmein jali hui haddiyan chamak rahi hain." The complainant and other persons reached there and saw that the 'Bitiya' was burnt and burnt bones were also there. Plastic shoe of Ram Narain, brother of complainant was lying there. On this report, Case Crime No. 69, under Sections- 147, 148, 149, 302, 201, 452 and 323 IPC was registered against the accused. The case was investigated by Sri Mukhtvar Singh Rana, S.O and Sri J.P. Rawat, S.I of Police Station- Jaithra who submitted a charge sheet against the accused. The case was originally investigated by Sri J.P. Rawat, S.I. and investigation was completed and charge sheet was submitted by Sri Mukhtvar Singh Rana, S.O., Jaithra.
7. To prove its case, the prosecution has examined four witnesses, P.W.-1, Smt. Ram Kali, mother of complainant, she is an eye-witness of the occurrence and is injured. P.W.-2, Amar Singh, complainant, he is also an eye-witness of the occurrence. He has proved his written report Ext. Ka-1 which was written by Kunwar Singh at his dictation. P.W.-3, Dr. Lajja Ram, Medical Officer Primary Health Centre, Jaithra who examined the injuries of Smt. Ram Kali on 18.04.1982 at 02:30 p.m. He has proved his injury report Ext. Ka-2. P.W.-4, Sri J.P. Rawat, S.I who investigated this case. The investigation was completed by S.O., Sri Mukhtvar Singh Rana who submitted charge sheet Ext.Ka-17 against the accused. The documents proved by P.W.-4 are chik F.I.R Ext.Ka-3, copy of G.D report dated 18.04.1981,Ext.Ka-4 copy of G.D. report for special reportExt.Ka-4, copy of G.D report No. 22 regarding the return of constable, Ram Pal Singh from Etah Sadar after handing over special reportExt.Ka-6, site-plan of the place of murder Ext.Ka-7, site plan of the place where the dead body was burnt Ext.Ka-8, memo of the lantern and 'khurpi' Ext.Ka-9, memo of broken door and latchExt.Ka-10, memo of torches used by the witnesses Ext.Ka-11, memo of taking blood stained and plain earth in possession Ext.Ka-12, memo of blank cartridgesExt.Ka-13, memo of shoe of Ram Narain, deceasedExt.Ka-14, memo of bones of the burnt dead body of Ram NarainExt.Ka-15, memo of the ashes taken from the 'bitiya' where the dead body of Ram Narain was burntExt.Ka-16 and charge sheetExt.Ka-17.
8. In their statements under Section 313 Cr.P.C., the accused admitted that prior to the occurrence, accused, Jograj and Maharaj Singh had fired at Raj Bahadur Singh, 'Mausera' brother of Amar Singh, complainant. They were prosecuted and subsequently convicted to seven years rigorous imprisonment each. The said case was decided after the murder of Ram Narain and the accused have filed its appeal. They have denied that in that case complainant and deceased, Ram Narain were doing 'Pairavi' for Raj Bahadur against the accused. The accused denied the other allegations and added that they have been falsely implicated in the case due to enmity. Jahar Singh added that his father was mentioned as witness by Ranjeet to give evidence but he refused to give false evidence, hence Jahar Singh has been implicated in this case. The accused did not produce any defence.
9. P.W.-1, Smt. Ram Kali, has stated that prior to this occurrence, accused, Jograj etc., had fired at Raj Bahadur son of her real sister, Ram Lali. The report was lodged, the accused were prosecuted and convicted. Her sons, Ram Narain deceased and Amar Singh did 'Pairvi' for Raj Bahadur in this case and looked after his treatment, hence, the accused had grudge against them. On the night of occurrence, she was sleeping in the room of her 'chaupal' along with Ram Narain and Amar Singh. There were two doors which were bolted from inside. The lantern was lighted there. The accused came and knocked the door and asked them to open the door. When they did not open, the door was broken by the accused. Her son Ram Narain had started digging the wall to make a way to escape but in the meantime, the door was broken by the accused and they entered in the room. She saw and recognized accused, Jograj, Maharaj Singh, Guru Dayal, Ram Das, Ram Autar, Ajai Singh and Jahar Singh. Maharaj Singh, Jograj, Ram Das and Guru Dayal, had guns and Ajai Pal and Jahar Singh had 'Kattas' and Ram Autar had an axe. The moment the accused entered the room, Ram Narain opened the other door and ran outside. All the accused ran behind him. She and Amar Singh also ran raising alarm. Maharaj Singh instigated to fire at Ram Narain. Jograj fired but it missed. Witnesses, Raj Bahadur, Ranjeet, Chameli and Pan Devi also came there and saw this occurrence. Raj Bahadur and Ranjeet had torches and they were flashing them. When Ram Narain entered the 'Madhaiya' of Shree Pal, the accused surrounded him and the four accused who had guns first fired at Ram Narain and then the other two accused who had 'tamanchas' also fired. Ram Narain died there. P.W.-1 tried to stop the accused when they wanted to carry the dead body of her son, Ram Narain. Accused, Jograj, gave her a blow from the barrel of his gun causing injuries to her. Accused took away the dead body of Ram Narain towards east. As the accused threatened to kill she and other witnesses did not go behind the accused. In the morning, her son and other persons went to search out the dead body and it was found burning in a 'bitiya' in village - Rasidpur. After that she and her son went to the police station on cycle. She remained sitting on a 'chabutra' near the police station and her son Amar Singh lodged the report which was written in the village. She was sent to the hospital where her injuries were medically examined. When she reached the hospital, the doctor was not available. She waited and the doctor examined her injuries at about 02:00 p.m.
10. In her cross-examination, she has stated that Jograj and Maharaj Singh, accused, are real brothers. Ram Das and Guru Dayal are real brothers. Jahar Singh is the son of Jaswant Singh and Ram Autar is the son of Raja Ram. All the accused are residents of her village. Accused, Ajai Pal belonged to Kunwarpur Nagariya. 2-1/2-3 years prior to the murder of Ram Narain, Jograj had fired at Raj Bahadur. Accused, Guru Dayal and Ram Das were accused in that case along with Jograj. The accused were annoyed with Ram Narain because he had helped Ram Bahadur in the case and looked after his treatment. She stated "Katal Gav Pahilav Jograj Bagehra Nay Hamarey Wa Raj Bahadur Kay Kheton Main Laee Bagehra Karney Kay Liye Majdoor Bhi Nahin Janey Diye, Mujhey Muljiman Sey Dar Tha Ki Wah Log Hamain Jan Say Bhi Mar Saktey Hain ........ Ham Logon Nay Muljiman Par Koi Mukadma Nahin Chalaya, Ham Log Muljiman Say Pareshan They." There are two doors, one in the south and other in the east in the 'chaupal' where she was sleeping. She stated " Is Chaupal Main Meri Charpai Pachchim Ki Taraj Thi Aur Merey Dono Larkon Ki Charpai Purb Ki Taraf Thi." She stated "Jahan Merey Larkhey Ko Goli Lagi Thi Wah Jagah Madhiava Hai, Wah Madhaiva Ek Diwar Kay Saharey Bahi Hai, Yahey Diwar Jispar Madhaiva Parhi Hai Purb Pachchim Bani Hai." She stated "Merey Larkey Ko Goli Madhiava Wali Diwar Kay Purb Tara 1-2 Kadam Par Lagi Thi Phir Kahan Ki Diwar Say Pachchim Taraf Lagi Thi, Jin Logon Kay Makanat Mainey Upar Batlave Hain Wah Log Shorgul Par Dar ki Wajah Say Nahin Aaye, Din Nilaney Par Gaon Waley Hamarey Pas Aaye They, Din Nikalney Tak Main Apni Chaupal Par Aa Gai Thi." She remained on the spot till the accused were visible to her carrying the dead body of her son and after that she returned to her 'chaupal'. None of the villagers came to the 'chaupal' in the night. In the morning, his son, Amar Singh, Ranjeet and Raj Bahadur went out searching the dead body of Ram Narain. No other person of the village accompanied. Amar Singh, Ranjeet and Raj Bahadur had returned after an hour and informed that the dead body has been burnt in the 'bitiya' of Kacchi in village- Rasidpur. She stated "Ise Ek Ghantey Kay Bich Gaon Ki Aurtain Merey Pas Aai Theen Admi Kam Aaye They, Jab Amar Singh Ney Mujhey Batlaya Ki Lash Jala Di Gai Hai To Us Samai Gaon Kay Admi Aurain Merey Pas Baithi Theen. Us Samai Jaswant, Ganga Din Ki Ghar Ki Aurtain Thi Aur Admiyon Main Shree Krishna They, Aurton Key Nam Mujhey Nahin Malum, Muljiman Jahar Singh Key Baap Jaswant Singh Key Gharaney Ki Auratein Aaee Thee." Kunwar Sen, Dewar of her daughter had come when Amar Singh informed that dead body has been burnt. Kunwar Sen belongs to village Tikarpur which is at a distance of 4-5 miles from her village. Kunwar Sen came himself there knowing about the occurrence. If one goes to the police station- Tikarpur comes first, then Dhumri-Ka-Nagla, Pateli and police station- Jaithra. Kunwar Sen had come at about 7-8 a.m. The report was written in the 'chaupal' within half an hour of the arrival of Kunwar Sen. She stated that they stayed at Police Station for about one and a half hours. The Head Constable had seen her injuries. The S.I had interrogated her son, Amar Singh, at police station and her statement was recorded in the village. She had narrated about her injuries before the I.O she stated "Main koi wajah nahi batla sakti ki darogaji nay meri thorhi ki chot ke alawa baki choton ki baat kabhi nahin likhi." She returned to her village from Jaithra Hospital at 03:00 p.m and at that time, police was present there. She stated "Maine police walon ko waj jagah dikai thi jis rastey sey lash ko muljimon lay gaye they, aur khoon bhi jagah jagah rastey main police walon ko dikhaya tha, merey, ye merey larkey Amar Singh key kapron par khoon nahi laga tha." The S.I had seen the broken door and latches she stated "Jaisey hi badmash andar kamrey mein ghusey waisey hi Ram Narain dusrey kiwarh ki kundi kholkar Bhagey Thay. Amar Singh wa Ram Narain dono hi dusrey darwaja say nikalkar bhagey Thay. Agar in dono ko muljiman nay kamrey kay andar pakar liya hota to wah dono hi marey jatey. Amar Singh wa ram narain agey bhag rahey thay, unkey pichhey muljiman aur muljiman kay sath sath hi mai bhagi thi." Her daughter-in-law, Chameli, Natih Panwati, sister, Ram Lali, Raj Bahadur and Ranjeet accompanied from the door of Ram Collector. She was at a distance of few steps when the accused fired five shots at her son. She had not stated before the S.I. that many persons of the village had assembled at the 'chaupal' in the night. It is wrong that she did not see any occurrence and was not there in the 'chaupal' at that time. It is also wrong that she is giving false evidence due to enmity at the instance of her son.
10. P.W.-2 is Amar Singh. He stated that Ram Narain was his real brother. Ram Kali is the real 'Mausi' wedded to Deep Singh in the village. Ranjeet and Raj Bahadur are the sons of Ram Kali. About two and half years prior to the murder of Ram Narain, accused, Jograj, Maharaj Singh etc attempted to commit murder of Raj Bahadur Singh and fired at him. In that case, he and Ram Narain did 'pairavi' against Jograj, etc., and also looked after the treatment of Raj Bahadur. The accused had a grudge with him and his brother, Ram Narain for this reason. He stated "Main Fauj Main Naukar hoon. Jan Chhutti Par Aata Tha Tab Main Pairvi Karta Tha Aur Merey Na Honey Par Ram Narain Pairvi Kartey Thay." This case was decided after the murder of Ram Narain and in it, the accused have been convicted to seven years rigorous imprisonment and fine of Rs. 2000/- for 'pairvi' of the case of Raj Bahadur, the accused used to threaten his brother, Ram Narain that in case, he continues to do pairvi', they will kill him. Before his murder, his brother, Ram Narain had given an application to Collector in that connection on 30.03.1982 and he has filed its certified copy. The accused had threatened, Ram Narain 2-4 days prior to his murder and did not let the labourers to come for harvesting the crop. On the night of occurrence, at about mid-night he, his brother, Ram Narain and mother were sleeping in the 'chaupal'. A lantern was lighted there and the doors were bolted from inside. The accused asked from outside to open the door. He, his brother and mother woke up and did not open the door. The accused started cutting the door with an axe. Ram Narain started digging the back wall with a 'khurpi' to make way to run away. In the meantime, the accused were successful in cutting the western door and came inside. Jograj, Maharaj Singh, Guru Dayal, Ram Das, Ram Autar, Jahar Singh and Ajai Pal, were amongst the accused. He saw and recognized them in the light of lantern. Jograj, Maharaj Singh, Guru Dayal and Ram Das had guns and Ram Autar had an axe, Jahar Singh and Ajai Pal had 'tamanchas'. Ram Narain opened the eastern door of the room and ran outside. P.W.-2 and his mother also ran outside raising alarm. The accused chased them. Maharaj Singh said "Ram Narain Bhaga Ja Raha Hai, Usko Mar Do." At this, Jograj fired at Ram Narain but it did not hit him. Ram Narain must have rushed about 50-60 steps from the 'chaupal'. When he reached near the house of Ram Collector Pandit, Chameli Devi aunt Panwati, niece, cousin brother, Ranjeet and Raj Bahadur of P.W.-2 also reached there with torches and lathies. The accused chasing Ram Narain reached at the 'Madhaiya' of Shree Pal. Ram Nath went inside the 'Madhaiya'. The accused surrounded it. Accused, Jograj, Maharaj Singh, Guru Dayal and Ram Das first fired there at Ram Narain and after that Jahar Singh and Ajai Pal also fired with their 'Tamanchas'. Ram Narain fell down dead inside the 'Madhaiya'. The accused took out the dead body of Ram Narain and proceeded towards Rasidpur. P.W.-2 and his mother and Ram Bahaur etc., chased and tried to snatch the dead body. On this, Jograj gave a blow of the barrel of his gun to his mother and threatened to kill in case, they chase them. P.W.-2 and other witnesses stopped due to fear and the accused took the dead body towards village Rasidpur. P.W.-2 did not go to lodge the report at the police station in the night due to fear and in the morning, he along with Raj Bahadur and Ranjeet went searching out the dead body of Ram Narain. Udaivir Kachhi met him on the way who belonged to village Rasidpur. He said that "Merey Kandho Ki Bitiya Mai Raat Kisi Ney Aag Lagai Hai, Usmai Lash Jal Rahi Hai. Haddiyan Chamak Rahin Hain." P.W.-2 along with other reached there and saw the bones were smouldering and at a distance of about two steps, one-plastic shoe of his brother, Ram Narain was lying. He left Ranjeet and Raj Bahadur and returned to his 'chaupal' and there got his report written by Kunwarsen who had come there. The report is Ext. Ka-1, which was read over to him and then he put his signature. After that he along with his mother and sister's Dewar, Kunwarsen went to the police station on cycle and handed over the report there. The S.I recorded his statement and the statement of his mother there and then she was sent for medical examination. The S.I and the police came to the village. The S.I. went to the place where the dead body was burnt, inspected the site and the house in which the accused entered after breaking opened the door. He took in his possession, lantern, 'khurpi' cut door, latch, shoe of Ram Narain deceased, bones, ashes blood stained and plane earth etc. 'Khokha' cartridges was also taken into possession. The memos were prepared and the articles were seated.
11. In his cross-examination, he stated that he and Ram Narain had not given evidence against Jograj in that case but used to do 'pairvi' against him and also gave financial help to Raj Bahadur and Ranjeet. When the accused threatened, then they had a danger from their side. He has purchased a rifle on 20.03.1983. He stated "Jab Muljim Nay Dhamkiyan Di Tab Ham Logon Ko Khatra Jaroor Huya Par Mujhey Biswas Nahin Tha Ki Yahey Log Merey Bhai Ko Mar Daingey." The 'chaupal' where they were sleeping on the night of occurrence is outside the village. There is residential house in the Abadi of the village. Other members of the family, ladies, children, 'Bhabhi' etc., live in the house which is in the Abadi. They all used to have food in that house. The cattles are kept in 'chaupal' his mother was about 60- 65 years old at the time of occurrence. He stated "Jaisey Hi Muljiman Darwaja Katkar Ander Ghusey Merey Bhai Dusrey Darwaja Say Bahar Bhag Kharey Huye, Unkey Bhagney Kay Karib 1 minute Phir Kaha Kuch Second Baad Main Wa Meri Maan Bhi Bahar Bhag Liye .... Muljiman Mujhey Wa Meri Maan Say Bhagtey Mai Nahin Boley, Na Pakarney Ki Koshish Ki." His brother, Ram Narain, was running away 5-6 steps ahead of him. His brother was running at a high speed. He (P.W.-2) and his mother were not running with that speed. His brother, Ram Narain, reached first at the 'Madhaiya' of Shree Pal. The accused cross him (P.W.-2) and surrounded the 'Madhaiya' and then fired at his brother. At that time, his mother had reached just near the 'Madhaiya'. He stated "Main Madhaiya Kay Bahar Muljiman Kay Bilkul Pichey Kharhi Thi." His mother was in the North of the wall where the 'Madhaiya' was open and everything inside was visible. He stated "Report Main Mainey Yahey Baat Nahin Dikhai Hai Ki Baad Main Ajai Pal Singh Wa Jahar Singh Nay Tamachon Say Merey Bhai Kay Upar Fire Kiye. Jyada Badi Report This Isliye Likhaney Say Rah Gaya." He had stated this thing before the S.I. If he has not written in his statement, he cannot tell the reason. He stated that the other persons besides his family members did not come out from their houses hearing alarm raised by him and others. When he had returned at the 'chaupal', then Sri Krishna, Bankey Lal and Ajodya Prasad had come there. He had narrated the incident to them. While searching out the dead body, one or two drops of blood were found at some places. The place where the dead body of his brother was burnt is at a distance of about 50 steps in the west from the Abadi of village Rasidpur. After returning to the village, he must have stayed for 1520 minutes, got report written and then went to the police station. Kunwarsen who wrote his report had come probably 67 days prior to the occurrence to his 'sasural' in the house of Lakhan Singh in his village. He did not come in the night but had come in the morning. The police station is at a distance of 23 kms. The constable took his mother for medical examination and P.W.-2 accompanies the S.I to the place of occurrence. It is wrong to suggest that the occurrence did not take place as alleged. It is also wrong that he and his mother were not sleeping in the 'chaupal' on the night of occurrence. It is also wrong that he came to know in the morning that his brother is not traceable. It is wrong that the dead body which was burnt, was not of his brother and he got Yograj etc., falsely implicated in the case due to enmity. The witness was recalled and re-examined by the State counsel, and he stated that shoe Ext.-1 is the same, which was found on the spot near the 'bitiya'. It is of the left foot. The broken door with latch is Ext.-2.
12. P.W.-3 is Dr. Lajja Ram of Primary Health Center, Jaithra. On 18.04.1982, he had examined the injuries of Smt. Ram Kali, wife of Gajadhar and noted the following injuries found on her body :-
"(i) Complaint of pain in the neck region a bruise 6cm x 2cm in size on the right side of the neck pinkish blue in colour.
(ii) Bruise 4.5cm x 3cm in size over the right side of the mental region pinkish blue in colour, swelling of haemotoma for .... present.
(iii) A bruise 5cm x 3cm in size over the right side of the arm pinkish blue in colour. Obliquely placed."
13. All the injuries were simple and caused by sharp blunt object and the duration, at which these injuries were caused, was about 20 hours.
14. In his opinion, these injuries could be caused in the night of 17/18.04.1982 at about mid-night. He has proved his injury report Ext. Ka-2.
15. In his cross-examination, he stated that there can be difference of 5-6 hours in the duration of the injuries on either side.
16. P.W.-4 is Sri J.P. Rawat, S.I. who investigated this case. He has proved chik F.I.R. Ext. Ka-3 written by Constable Clerk, Virpal Singh, on the basis of written report Ext. Ka-1 and copy of G.D. report regarding the registration of the case Ext. Ka-4. The special report of the case was sent the same day through constable, Sri Ram Pal Singh and he has proved its copy on G.D. report no. 11 Ext. Ka-5, Ext. Ka-6 is the copy of the G.D. report regarding the return of this constable after handing over special report. He investigated this case, recorded the statements of Amar Singh and Ram Kali at the police station and went to the spot and recorded the statements of other witnesses there. He prepared site-plan Ext.Ka-7 on the pointing out of the complainant and also the site-plan of the place where the dead body of Ram Narain was burnt Ext. Ka-8. The lantern and the 'khurpi' were seen and given in 'supurdgi' of the complainant, vide 'supurdgi-nama' Ext.Ka-9. He took the cut door and broken latch in his possession and sealed it on the spot and prepared its memo Ext. Ka-10. Ext.Ka-11 is the'supurdgi-nama' of the torch used by Raj Bahadur. He took plane and blood stained earth in his position and sealed it into separate 'dibbis' and prepared its memo Ext. Ka-12.One Khoka cartridge found on the spot was also taken into possession and its memoExt. Ka-13was prepared. One shoe of the deceased found near the place where the dead body of Ram Narain was to have been burnt, was also taken into possession and sealed. He prepared its memoExt. Ka-14. The bones of the deceased were also taken into possession. The bones of the deceased, ashes from the Bitiya were also taken by him and sealed and he prepared their memos,Exts. Ka-15and Ka-16. ShoeExt.1and cut door Ext.2 are the same. Ext.3 are the bones, andExts. 4 and5 are blood stained and plain earth. Ext.6 is the Khoka cartridge and Ext.7 is the ash. After this much investigation of the case, Shri Mukhtyar Singh took the investigation in his hands and submitted chargesheetExt. Ka-17. He is familiar with the handwriting of ShriMukhtyarSingh.
17. In his cross-examination, he stated that he reached the spot first at about 09:30 a.m and inspected the place where the accused was alleged to have been sleeping and then he saw that place where he was shot dead. In the last he went to the place where the dead body was burnt. Ext. Ka-7 was prepared on the spot. At a distance of about 7 steps in the index that place is written where the shot of the deceased was found. He stated "Ext.Ka-8 Par Na Merey Koi Dashkhat Hai Aur Na Index Hai Yahe Seven Rah Gaya." It is wrong to suggest that Ext.Ka-8 was not prepared by him on the spot but at the police station. The distance between the place where the accused was sleeping and where he was shot dead is about 50 yards. There is a wall North-South at the place where the deceased was shot dead which he has shown in Ext. ka-7 and its height will be six feet. He has not shown the place fromwhere the witnesses saw the occurrence in Ext. ka-7. He stated "Gawahan Kay Aney Ka Rasta Dikhaya Hai. Ext.Ka-7 Mai Jo Mainey Purb Ki Taraf D-Isthan Ki Taraf Arrow Banaya Ya Wah Jhopdi Ki Taraj Ka Indication Nahin Hai Balik Yahe Bhi Muljiman Kay Aney Janey Ka Rasta Indicate Karta Hai." He stated "Naksha Najri Bahatey Samay Ext.Ka-7 Mai Mainey Jhopadi Kay Ander Pharsh Wa Diwar Par Khoon Kay Chhintey Dikhai Diye They Aur Jhopdi Say Talab Ki Taraf Janey Bala Rasta Jo Rasidpur Ko Jata Hai Uspar Jagah Ya Jagah Khoon Ki Boondey Parhi Thi, Jiska Taskra Mainey Case Diary Main Kiya Hai. Un Khoon Ki Boondon Kay Nishanon Ki Jagah Say Khoon Alooda Wa Sada Mitti Mainey Kabja Mai Nahin Li." He has written in the case diary the direction from which the dead body was taken by the accused from the 'jhopadi'. He stated that he did not send the bones, ashes, blood stained and plain earth for chemical examination till the investigation was in his hands. It is wrong to suggest that he prepared all the documents at the police station at the instance of the complainant and falsely implicated the accused.
18. In their statements under Section 313 Cr.P.C the accused denied the prosecution allegations and claimed to have been falsely implicated in the case due to enmity. The accused, who were prosecuted in the case for firing at Raj Bahadur, have admitted that they were prosecuted in that case. They also admitted their conviction in that case but added that its appeal is pending. Jahar Singh added that he was not prosecuted in that case. Ranjeet wanted his father to give false evidence and had mentioned his name as a witness but he refused, hence he has been falsely implicated. The accused did not produced any evidence in their defence.
19. After hearing the rival submissions and going through the trial court record and judgment and order passed by the trial court, we find that as per the prosecution case, there was enmity between the family of first informant, PW-1 and family of his Mausi, Ramkali, on the one hand and family of accused, Jograj, Maharaj Singh and Ramdas another. Prior to the incident, 2-1/2 - 3 years back, Jograj and others had fired at Raj Bahadur son of his mausi, Ramkali, PW-1, in order to kill him and trial was pending in the court. The complainant and his family members used to help Raj Bahadur in contesting the case against Jograj and others. 3-4 days prior to the incident, Jograj did not allowed Ram Narain, the deceased, to get labourers for harvesting the wheat crops in the village. Jograj had also threatened the deceased, Ram Narain that he will see how long he helps Raj Babadur. He will not leave him capable enough to help Raj Bahadur within a week.
20. It is alleged in the FIR that the accused, namely, Jograj, Maharaj Singh, and Ram Das, armed with guns; Guru Dayal and Ram Autar, armed with axes; and Jahar Singh and Ajay Pal, armed with country-made pistols, came to the place of incident and after breaking the door and chasing the deceased, committed his murder. When the deceased, Ram Narain, was being chased, he was surrounded by all the accused named above. Jograj, Maharaj Singh, Ram Das and Guru Dayal fired on him by their guns and he fell down in hut. There is no allegation in the FIR that any shot was fired by surviving appellant no.5, Jahar Singh, from country-made pistol on the deceased. We further find from the statement of PW-2, the informant that in his statement recorded by the police, he did not mention that surviving appellant no.5, Jahar Singh and Ajay Pal fired on his brother, Ram Narain. He also admitted that he did not mention this fact in the FIR because FIR was getting long. He stated that he had informed the Investigating Officer about the fact of Jahar Singh and Ajay Pal firing at his brother by country-made pistol. He cannot tell the reason why this fact was not recorded by the Investigating Officer in his statement under Section 161 Cr.P.C.
21. We find that for the first time, the role of firing on the deceased by country-made pistol was assigned to the surviving appellant no.5, Jahar Singh and the deceased, co-accused, Ajay Pal, before the court by PW-2.
22. Now coming to the testimony of PW-1, Ram Kali, mother of the deceased, we find that in her examination-in-chief, she has stated that Maharaj Singh, Jagraj Singh, Ram Das and Guru Dayal had guns while Ajay Pal and Jahar Singh had country-made pistols and Ram Autar had axe in their hands. She has stated that the first fire was made on the deceased by Maharaj Singh, which missed Ram Narain. Thereafter Maharaj Singh, Jograj, Ram Das and Guru Dayal fired on him first. Thereafter, accused having country-made pistol fired on Ram Narain. She was assaulted by barrel of gun of Jograj. In her cross-examination, she has admitted that 2-1/2 - 3 years ago, accused, Jograj had fired at Raj Bahadur. She denied that in that case, Jaswant, father of accused, Jahar Singh, was a witness. Accused were annoyed with Ram Narain because he helped Raj Bahadur and got him medically treated. She also alleged that Jograj and others used to stop labourers for harvesting her crops and crops of Raj Bahadur.
23. In her cross-examination PW-1 admitted that accused made five rounds of fire. She was not questioned during cross-examination whether she had informed about the role of different accused to the Investigating Officer or not.
24. From the trial court record, we find that statements recorded by the Investigating Officer under Section 161 Cr.P.C. of the witnesses are absent.
25. We find that the surviving appellant no.5, Jahar Singh, was not assigned any motive of the crime nor he had any enmity with co-accused, Jograj and others. The surviving appellant no.5, Jahar Singh, has been implicated with the help of Section 149 IPC read with Section 302 IPC and Sections 323, 148 and 452 IPC. The Apex Court in the case of Hatamantl. Kukkadi vs State Of Karnataka, 1994 (1) SCC 736 has held that the common object of the unlawful assembly has to be inferred from the membership, the weapons used and the nature of the injuries as well as other surrounding circumstances. In this case we have found that the motive of crime was assigned to the accused, Jograj, Maharaj Singh, Ram Das and Guru Dayal, who are alleged to have fired on the deceased from their guns. PW-2 did not assigned any specific role to the surviving appellant no.5, Jahar Singh, for causing any fatal injury to the deceased. The six persons were implicated including four persons, who had enmity with the deceased. The Apex Court in the case of Balwantbhai B. Patel v. State Of Gujarat & Others, 2009-S0-Supreme (SC) 1557 held that the prosecution attempts to rope in as many persons as possible from the other side where number of injuries on the injured party do not co-relate to the number of accused.
26. The Honble Supreme Court in the case of State of Punjab Vs. Sanjiv Kumar and others, MANU/SC/7797/2007 considered the requirements of Section 149 IPC as follows:-
The pivotal question is applicability of Section 149 IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it.
27. From the material on record, we do not find that the prosecution succeeded in proving that the surviving appellant no.5 shared common object with the other co-accused, who had motive of commission of crime against the deceased unlike the appellant no.5. There is also contradiction in the statements of PW-1 and PW-2 regarding the exact role of the appellant no.5. Hence we have found his implication in this case with the help of Section 149 Cr.P.C. as unwarranted under the totality of facts and circumstances of the case.
28. Finally, we find that the trial court has failed to consider the statement of surviving appellant no.5, recorded under Section 313 Cr.P.C., wherein he stated that Ranjit has made his father as witness in the case between Jograj and Raj Bahadur, but his father refused to give statement and hence he was falsely implicated. Ranjit is the elder brother of Raj Bahadur s/o Ram Kali. We find from the judgment of the trial court that defence of surviving appellant no.5 has not been considered at all by the trial court. It is settled law that the statements recorded under 313 Cr.P.C. are in the nature of defence of the accused based on the principle of giving fair opportunity to the accused to defend himself. The non-examination of the defence of the accused renders the judgment of the trial court illegal as held by the judgment of Apex Court in the case of Tanviben Pankajkumar Divetia vs State Of Gujarat, (1997) 7 SCC 156.
29. After considering the facts and circumstances of the case, the role assigned and evidence against the surviving appellant no.5 on record, we are of the view that prosecution has failed to prove its case against the appellant no.5 beyond reasonable doubt. Therefore, he deserves to be extended benefit of doubt.
30. Accordingly, judgment and order dated 31.3.1987 passed by the trial court in S.T. No.441 of 1982, connected with Sessions Trial No.479 of 1982 against surviving appellant no.5, Jahar Singh, is set a side.
31. This criminal appeal is allowed only with regard to surviving appellant no.5, Jahar Singh.
32. The appellant no.5 is on bail. His bail bonds are cancelled and sureties are discharged. He need not to surrender.
33. Office is directed to send back trial court record and notify this judgment to the trial court within two weeks.
(Jai Krishna Upadhyay,J.) (Siddharth,J.) April 2, 2026 Ruchi Agrahari