Bhanwar Singh vs State Of U.P.

AFR
RESERVED
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 441 of 2020
Bhanwar Singh
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Ajay Dubey, Arvind Kumar Singh,
Harish Kumar Shukla, Kuldeep
Singh Chahar, Satya Dheer Singh
Jadaun, Sushil Kumar Chaturvedi,
Vikrant Pandey
Counsel for Respondent(s) : Devi Prasad Tripathi, G.A., Manish
Kumar Pandey
Along With:
1. Criminal Appeal No. 392 of 2020:
Beniram and 2 others
Versus
State of U.P.

Court No. - 2
HON'BLE J.J. MUNIR, J.
HON'BLE VINAI KUMAR DWIVEDI, J.
(Delivered by Hon’ble Vinai Kumar Dwivedi, J.)
1. Both these criminal appeals bearing Criminal Appeal No. 441 of
2020 (Bhanwar Singh v. State of U.P.) and Criminal Appeal No. 392 of
2020 (Beniram and 2 others v. State of U.P.), have been preferred by the

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convicts, to wit, Bhanwar Singh, Beniram, Om Prakash and Kaptan
Singh, against the judgment and order of conviction and sentence dated
13.01.2020, passed by the learned Additional Sessions Judge, Court No.
15, Agra, in Sessions Trial No. 1144 of 2007 (State v. Beniram and
Others) arising out of Case Crime No. 178 of 1998, under Section
302/34 of I.P.C., Police Station Kagarol, District Agra.
2. By the impugned judgment and order, the learned Additional
Sessions Judge, Court No. 15, Agra, has convicted the appellants for an
offence punishable under Section 302/34 IPC and sentenced them to
suffer imprisonment for life. Aggrieved by the judgment and order dated
13.01.2020, the appellants have preferred this appeal.
3. Brief facts of the case are that informant Harbhan Singh (PW-1),
son of Bhagwan Singh, resident of Bisalpur, Police Station Kagarol,
District Agra, has got scribed a written report dated 15.10.1998 (Exhibit
Ka-1) from Kishan Singh Rawat Jat and lodged at Police Station
Kagarol, District Agra. Informant Harbhan Singh (PW-1) has stated in
his written report (Exhibit Ka-1) that yesterday i.e. 14.10.1998, my
brother Sukhpal @ Munna had gone to Munna Khan's dairy at Gaharra
Ki Pyau to deliver milk. Usually, my brother would return home by
around 9:00 P.M., but when he did not return on time that night, I, along
with my brother Jawahar Singh, uncle Mahaveer Singh, brother-in-law
Jawahar Singh and cousin Udaiveer, went towards Gaharra ki Pyau to
look for him. On the way, we met Rajveer Singh, son of Hardam Singh
and Dharmpal Singh, son of Jagan Singh, who do milk business in my
village. When asked about my brother, these two men stated that Munna
was returning to the village with them. However, at the second kilometer
mark, they met Shivraj Singh & Mangal Singh, sons of Veeri Singh and
Harpal Singh, son of Laxman Singh, from the village, with whom
Munna started talking and stayed with them. Since there was an old
dispute with these three individuals, they became suspicious. Moving
forward, they noticed noise and screaming about three or four fields
ahead of the second kilometer mark. They ran toward the sound
shouting, we are coming and just as they were about to reach, they heard

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three or four gunshots. Upon hearing their voices, Shivraj Singh, Mangal
Singh and Harpal Singh fled, saying, now he is dead, his family
members are coming. In the light of our torches, we saw and identified
these three men fleeing. When we reached the spot, we found the body
of my brother Sukhpal @ Munna in the field of Laccho , a resident of
Beri Chahar . It was about 11:00 P.M. at night. There were several
wounds from gunshots and knives on my brother's body. Upon seeing
the dead body, we wept and screamed gradually, people from the
surrounding area gathered. Some local leaders prevented us from going
to the police station, saying that they would call the officials to the spot,
initiate action, and block the road. The leaders did exactly that as soon as
morning arrived. The aforementioned Shivraj Singh, Mangal Singh and
Harpal Singh brutally murdered my brother due to personal enmity.
4. On the basis of the written report (Exhibit Ka-1), a first
information report was registered at Police Station Kagarol, District
Agra, on 15.10.1998 at about 11:15 A.M., against the accused Shivraj
Singh, Mangal Singh and Harpal Singh, bearing Case Crime No. 178 of
1998, under Section 302 IPC.
5. After registration of the first information report, the investigation
was taken up by Investigating Officer Sanjeev Katiyar (PW-8). He
visited the place of occurrence, inspected the dead body of the deceased
Sukhpal @ Munna and prepared the panchayatnama (Exhibit Ka-4). He
also prepared other necessary police papers, such as, the photolash
(Exhibit Ka-5), the report to the C.M.O. (Exhibit Ka-6), the letter to the
R.I. (Exhibit Ka-7), and the challanlash (Exhibit Ka-8). He also
prepared the site plan (Exhibit Ka-9) and collected two empty .315 bore
cartridges and one bullet found near the deceased’s body, for which he
prepared a recovery memo (Exhibit Ka-10). The Investigating Officer
further collected and took into custody a bloodstained chappal (slipper)
found near the deceased’s body and prepared a recovery memo (Exhibit
Ka-12).

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6. The Investigating Officer (PW-8) recorded the statements of the
witnesses under Section 161 Cr.P.C. and sent the dead body of the
deceased Sukhpal @ Munna, for post-mortem examination. After
completing all necessary formalities of the investigation, PW-8
submitted a charge-sheet (Exhibit Ka-13) against the accused persons,
namely, Mangal Singh and Shivraj Singh, under Section 302 IPC. Since
accused Harpal Singh could not be arrested, the investigation against
him remained pending.
7. Meanwhile, an application (Exhibit Ka-2) dated 19.11.1998, was
submitted by the residents of village Bisalpur, Police Station Kagarol,
District Agra, before the Superintendent of Police, Agra. In the said
application, it was submitted by the villagers that in the night of
14/15.10.1998, near the Naga Beri Chahar Canal , the murder of
Sukhpal @ Munna, son of Bhagwan Singh, was committed by unknown
persons. It was also submitted in the application that, due to prior
enmity, the informant falsely implicated Shivraj Singh and Mangal
Singh, sons of Veeri Singh and Harpal Singh, son of Lakshman Singh, in
the present case. In their application, the villagers also submitted that the
deceased Sukhpal @ Munna, was a man of loose character and that
when he went to deliver milk, he used to halt at night in Nagla Mohana
at the house of Badan Singh and Phool Singh. The villagers also stated
that there were rumours about Sukhpal @ Munna that he had illicit
relations with a woman and a girl of Nagla Mohana . They further stated
that after the murder, dog squad reached the room of Phool Singh, from
which, it is apparent that in the night of the incident, the deceased
Sukhpal @ Munna was present in that room. On the basis of the alleged
illicit relations of Sukhpal @ Munna with a woman and a girl of Nagla ,
the villagers expressed their suspicion upon Phool Singh and Badan
Singh. They further stated that an impartial investigation must be done
so that innocent persons are not implicated in this case and the real
culprits are brought to justice.
8. On the basis of the aforesaid application submitted to the
Superintendent of Police, District Agra, by the villagers of Bisalpur, the

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CRLA No. - 441 of 2020
case was handed over to the CBCID (The Crime Branch-Criminal
Investigation Department). The CBCID re-investigated the matter and,
after completing its investigation, rejected the previous charge-sheet
filed against Shivraj Singh and Mangal Singh. Thereafter, the CBCID
filed charge-sheets against the appellants, namely, Bhanwar Singh,
Beniram, Om Prakash and Kaptan Singh, under Sections 302/34 IPC and
Section 27 of the Arms Act, vide Charge Sheet Nos. 10, 10A & 10B. In
this way, the CBCID, in its investigation, found no role or involvement
of the accused named in the written report (Exhibit Ka-1).
9. Dr. A. K. Singh (PW-7), conducted the postmortem examination
of the deceased Sukhpal @ Munna, and prepared the postmortem report
(Exhibit Ka-2). According to the postmortem report, the following ante-
mortem injuries were present on the dead body of deceased:
"(i) Firearm entry wound measuring 3 cm × 3 cm. A gunshot wound of
entry measuring 4 cm× 3.5 cm was present just above the right ear. The
margins were inverted (turned inward).
(ii) A gunshot wound of entry measuring 4 cm × 3.5 cm was present on
the front side of the neck towards the right side. Blackening and tattooing
were present around the wound.
(iii) Superficial burn injury measuring 20 cm × 15 cm was present on the
front of the chest.
(iv) An incised wound measuring 1.5 cm × 1 cm was present on the right
side of the chest at the 4 o’clock position from the right nipple.
(v) Multiple incised wounds were present in an area of 28 cm × 20 cm,
approximately 13 in number, each measuring about 2 cm × 1.5 cm,
present on the upper abdomen. The intestines were protruding out.
(vi) Four incised wounds were present over an area of 15 cm × 10 cm on
the front aspect of the arm.
(vii) An abrasion measuring 10 cm × 8 cm was present on the front of the
left arm."

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According to Dr. A. K. Singh ( PW-7), the cause of death was shock and
hemorrhage as a result of ante-mortem injuries.
10. On 01.12.2007, the Trial Court framed charges against the
appellants, namely, Bhanwar Singh, Beniram, Om Prakash and Kaptan
Singh, under Sections 302/34 of IPC and Section 27 of Arms Act, on the
basis of the charge-sheets submitted by the CBCID against them. The
appellants denied the charges and claimed trial.
11. In support of its case, the prosecution initially examined twelve
witnesses, namely, Harbhan Singh (PW-1), Rajendra Singh (PW-2), Lal
Singh (PW-3), Mohan Singh (PW-4), Ajay Pal Singh (PW-5), Dharam
Pal Singh (PW-6), Dr. A.K. Singh (PW-7), Sanjeev Katiyar (PW-8),
Ranjeet (PW-9), Suresh Chand (PW-10), Suresh Chandra (PW-11) and
Gopal Singh (PW-12). Thereafter, the prosecution further examined
Jawahar Singh son of Bhagwan Singh as PW-1, Raj Kunwar Singh as
PW-2, Jawahar Singh son of Lakhan Singh as PW-3, Dharam Pal Singh
as PW-4, and Mahaveer Singh as PW-5. Apart from the oral evidence,
the prosecution also relied upon documentary evidence marked as
Exhibits Ka-1 to Ka-14.
12. After the examination of all prosecution witnesses, the Trial Court
proceeded to record the statements of the appellants under Section 313
Cr.P.C. In their statements recorded under Section 313 Cr.P.C., the
appellants denied all allegations levelled against them by the prosecution
and asserted that they have been falsely implicated in the case. They
further contended that the prosecution had relied upon false and
fabricated evidence and that they have wrongly been charge-sheeted.
The appellants, however, did not adduce any evidence in their defence.
13. After hearing the arguments advanced by the prosecution as well
as the defence, the Trial Court found the appellants, namely, Bhanwar
Singh, Beniram, Om Prakash and Kaptan Singh, guilty of the alleged
offence, therefore, convicted and sentenced them vide judgment and
order dated 13.01.2020, for the offence punishable under Section 302/34
I.P.C. to imprisonment for life, along with a fine of Rs. 20,000/- each.

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CRLA No. - 441 of 2020
However, the Trial Court acquitted the appellants of the charge under
Section 27 of the Arms Act in Sessions Trial No. 1144 of 2007 (arising
out of Case Crime No. 178 of 1998). Aggrieved by the impugned
judgment and order of conviction and sentence dated 13.01.2020, passed
by the learned Trial Court under Section 302/34 I.P.C. in the aforesaid
Sessions Trial, the appellants have preferred these two criminal appeals
before this Court.
14. We have heard the arguments advanced by Mr. Satya Dheer Singh,
learned Counsel for the appellants in both the appeals, Mr. Arvind
Kumar Singh, learned Amicus Curiae for the appellant in Criminal
Appeal No. 441 of 2020 and Mr. Shashi Shekhar Tiwari and Mr. Anil
Kumar Mishra, learned Additional Government Advocates on behalf of
the State. We have also perused the entire evidence on record, as well as
the impugned judgment and order of conviction and sentence dated
13.01.2020, passed by the learned Trial Court.
15. Learned Counsel for the appellants have submitted that the
impugned judgment and order dated 13.01.2020 passed by the Trial
Court, is based on conjectures and surmises, which is contrary to the
evidence available on record. The trial of three accused named in the
written report (Exhibit Ka-1) has been separated as Sessions Trial No.
1144-A of 2007, and they were acquitted by the Trial Court, vide order
dated 30.01.2014. Trial Court has wrongly decided the case of the
appellants and convicted them to life imprisonment. It is also submitted
on behalf of the appellants that they are elderly persons, suffering from
multiple ailments due to their advanced age.
16. The alleged incident occurred in the night, and none of the
witnesses has claimed to have seen the incident. However, the appellants
have been implicated in the present case only on the basis of suspicion
and doubt, which was also not proved against them. In the present case,
two stories were run by the prosecution. First by the informant, who
gave direct evidence against accused Shivraj, Mangal and Harpal, named
in the written report (Exhibit Ka-1) but did not give any evidence against

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CRLA No. - 441 of 2020
the appellants. Only on the basis of the statements of Raj Kunwar Singh
(PW-2) and Jawahar Singh (PW-3), who were not the eyewitnesses of
the alleged incident, and were later produced as prosecution witnesses,
the appellants have been convicted and sentenced to life imprisonment.
It is also submitted on behalf of the appellants that there is no eyewitness
of the incident, who could have seen commission of the crime by the
appellants with their own eyes. Only on the grounds of rumour,
suspicion and doubt, which have been expressed by the later prosecution
witnesses i.e., Raj Kunwar Singh (PW-2) and Jawahar Singh (PW-3), the
appellants have been wrongly convicted and sentenced by the Trial
Court, against the settled principle of law of evidence.
17. It is a well-settled principle of the law of evidence that no person
can be convicted of any offence merely on the basis of rumours
prevailing in the village or on the basis of doubt and suspicion. In the
present case, the Trial Court has misread and misappreciated the
evidence on record and has erroneously relied upon material which, in
law, was not admissible or could not have been safely relied upon
against the appellants. On the basis of the above arguments, it is
submitted by the learned Counsel for the appellants that the impugned
judgment and order passed by the Trial Court is contrary to law and not
supported by any reliable and cogent evidence, therefore, both the
criminal appeals preferred by the appellants are liable to be allowed.
18. Per contra , the learned Additional Government Advocate for the
State submitted that subsequent to the registration of the first
information report on the basis of the written report (Exhibit Ka-1)
lodged by the informant, Harbhan Singh (PW-1), the villagers of
Bisalpur submitted an application to the Superintendent of Police,
District Agra. In the said application, it was asserted that the persons
named in the written report (Exhibit Ka-1) have been falsely implicated
due to prior enmity, and a prayer was made for a fair and impartial
investigation. It is further submitted that, pursuant to the said application
submitted by the villagers, the investigation of the case was entrusted to
the CBCID. Upon re-investigation, the CBCID concluded that the

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CRLA No. - 441 of 2020
persons named in the written report (Exhibit Ka-1) have been falsely
implicated and have no role in the commission of the alleged offence.
19. It is further submitted that the CBCID, during the course of its
investigation, found evidence against the appellants, namely, Beniram,
Bhanwar Singh, Kaptan Singh and Om Prakash, in connection with the
alleged crime, hence, charge-sheeted them under Section 302/34 of IPC
& Section 27 of Arms Act. The prosecution witnesses, as adduced by the
prosecution, have fully supported the prosecution case, and there exists a
strong motive against the appellants for the commission of the alleged
crime. On the basis of the evidence subsequently adduced by the
prosecution witnesses, i.e., Jawahar Singh (PW-1) son of Bhagwan
Singh, Raj Kunwar Singh (PW-2), Jawahar Singh (PW-3) son of Lakhan
Singh, Dharam Pal Singh (PW-4), and Mahaveer Singh (PW-5), the Trial
Court found ample evidence in their depositions against the appellants.
Accordingly, the Trial Court, in the correct perspective and in a legal
manner, appreciated the evidence available on record, found the
appellants guilty and convicted them for the alleged crime. There is no
illegality or perversity in the impugned judgment and order passed by
the learned Trial Court. Hence, both the criminal appeals, preferred by
the appellants, are devoid of merit and are liable to be dismissed.
20. In light of the above submissions advanced by the learned Counsel
for the appellants and the counter submissions advanced by the learned
A.G.A. for the State, we have perused the evidence of the prosecution
witness, Harbhan Singh (PW-1). Upon perusal, we find that PW-1 has
deposed before the Court in the same manner as stated by him in his
written report (Exhibit Ka-1). In this way, the informant (PW-1) has
stated that he, along with other prosecution witnesses, saw Shivraj
Singh, Mangal Singh and Harpal Singh running away from the place of
occurrence in the light of a torch. However, Rajendra Singh (PW-2) has
narrated a different version of the incident.
21. From a perusal of the testimony of Rajendra Singh (PW-2), we
find that PW-2 stated that he was acquainted with the appellants, namely,

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CRLA No. - 441 of 2020
Om Prakash, Beniram, Kaptan Singh and Bhanwar Singh. He further
deposed that on the date of the incident, i.e., 14.10.1998 at about 11:00
PM, while he was returning from Kagarol after procuring diesel for his
tractor, he saw all four appellants in the light of the tractor. Upon
noticing him, the appellants turned back and moved down from the road.
According to this witness, on the following morning, at about 7-7:30
A.M., Ajay Pal, son of Rameshwar Ram, came to the Devi Mandir near
Bisalpur and informed that Sukhpal @ Munna, had been murdered and
that his dead body was lying in the field of Laccho . PW-2 further stated
that Sukhpal @ Munna, was a characterless man and he had illicit
relations with Chandravati, wife of Hari Singh and Savitri, daughter of
Om Prakash. According to PW-2, the murder was committed by the
appellants as an act of revenge for the alleged illicit relations. The
witness also stated that he had given his statement before the police as
well as before the CBCID.
22. Rajendra Singh (PW-2), in his cross-examination had stated that it
is correct that Harbhan Singh (PW-1) son of Bhagwan Singh, resident of
Bisalpur, had filed a written report (Exhibit Ka-1) regarding the murder
of his brother. The written report (Exhibit Ka-1) was filed on
15.10.1998. PW-2 stated that it is correct that Harbhan Singh had filed
the written report for this incident against accused, Shivraj Singh,
Mangal Singh and Harpal Singh under Section 302 I.P.C. PW-2 further
stated that it is also correct to say that the police had filed a charge-sheet
against named accused, Shivraj Singh, Mangal Singh and Harpal Singh
under Section 302 I.P.C. In connection of this case, a senior police
officer recorded my statement after two-three months. I have given
statement to the police that one kilometer before Nagla Mohana from the
direction of the canal, near Lachho's field, all four appellants were
coming towards the road and I identified them in the light of the tractor.
After that CBCID officials arrived, they interrogated me and recorded
my statement.
23. From perusal of the cross-examination of PW-2, we find that this
witness in a clear cut words stated that he did not inform the police

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CRLA No. - 441 of 2020
officers or any other officer or the Station In-charge of Kagarol, etc., in
writing or orally on the second, third, fourth day, or within a month of
the incident, that in the night of 14.10.1998, he saw appellants, namely,
Om Prakash, Beniam, Bhanwar Singh and Kaptan Singh coming from
the direction of the road near Laccho's field from the side of Beri
Chahar in Nagla Mohana and identified them in the light. PW-2 has
accepted in his cross-examination that he had not seen the alleged illicit
relations of the deceased Sukhpal @ Munna with Chandravati, wife of
Hari Singh, and with Savitri, the daughter of Om Prakash.
24. From a perusal of the evidence of the informant, Harbhan Singh
(PW-1), it is apparent that he deposed against the accused, Shivraj Singh,
Mangal Singh, and Harpal Singh, named in the written report (Exhibit
Ka-1), in a doubtful and uncertain manner. The CBCID, during its
investigation, did not find any involvement of the said accused in the
present case. Subsequently, after re-investigation, the CBCID submitted
charge-sheets against the appellants, namely, Bhanwar Singh, Beniram,
Om Prakash, and Kaptan Singh. It is noteworthy that the informant,
Harbhan Singh (PW-1), deposed against persons who are not parties to
these criminal appeals, and therefore, his evidence holds no relevance in
the present case. The deposition and testimony of Harbhan Singh (PW-1)
are neither reliable nor trustworthy, being entirely doubtful and
suspicious.
25. From a perusal of the evidence of Rajendra Singh (PW-2), it is
evident that despite his claim of having seen and identified in the light
the appellants, namely, Om Prakash, Beniram, Bhanwar Singh, and
Kaptan Singh coming from the roadside, he failed to disclose this fact
for a period of four months from the date of the incident, i.e.,
14.10.1998. In his cross-examination, this witness also admitted that he
had not seen the alleged illicit relations of the deceased Sukhpal @
Munna with Chandravati, wife of Hari Singh, and with Savitri, the
daughter of Om Prakash. In view of these admissions, it becomes amply
clear that Rajendra Singh (PW-2) has deposed falsely against the
appellants in his testimony before the Court. In reality, this witness did

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not witness the incident with his own eyes on 14.10.1998. From a further
perusal of the evidence of PW-2, it is apparent that he is giving false
evidence in the Court against the appellants only on the ground of doubt
and suspicion, which was based on the so-called illicit relations of the
deceased Sukhpal @ Munna with Chandravati, wife of Hari Singh and
with Savitri, daughter of Om Prakash.
26. In this way, we find that Rajendra Singh (PW-2) has given
evidence in the Court against the appellants only on the ground of
suspicion and so-called rumours which were prevalent in the village that
the deceased Sukhpal @ Munna had illicit relationship with Chandravati,
wife of Hari Singh, and with Savitri, daughter of Om Prakash. Thus,
evidence and statements which are wholly based on doubt, suspicion,
and rumours cannot be treated as evidence according to the settled
principles of law. Hence, we find no relevancy or reliability in the
evidence of the informant Harbhan Singh (PW-1) and Rajendra Singh
(PW-2).
27. The prosecution produced Lal Singh as PW-3. From the perusal of
the evidence of Lal Singh (PW-3), we find that this witness has not seen
the commission of the crime by the appellants with his own eyes. This
witness received information on 15.10.1998 at 7-8 A.M. that the dead
body of Sukhpal @ Munna was lying in the field. This witness has only
stated in his evidence that about one week prior to the incident, Phool
Singh and Madan Singh had come to the house of Bhagwan Singh
during the daytime and had said that he should advise his child not to
halt at night in their houses. At that time, according to this witness, he
was sitting at the chabutra of temple situated near the house of Bhagwan
Singh, and other people were also sitting there. According to this
witness, Bhagwan Singh stated that he would advise his child.
28. From a perusal of the evidence of PW-3, it is revealed that this
witness and many other villagers of Bisalpur had written a typed
application (Exhibit Ka-2) to the Superintendent of Police, Agra, stating
therein that the alleged murder had been committed by unknown

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persons. Thus, from a perusal of the evidence of this witness, we find
that this witness is not an eyewitness to the alleged incident. Whatever
has been stated by this witness, in his evidence, is only hearsay evidence
as received by him from other persons of the village.
29. This witness was also a party in writing the application (Exhibit
Ka-2) to the Superintendent of Police, Agra, for fair and impartial
investigation in the case because, according to this witness himself, the
murder was committed by unknown persons. Hence, there is no
relevancy in the evidence of this witness, and the prosecution finds no
legal support from the evidence of Lal Singh (PW-3).
30. The prosecution adduced Mohan Singh as PW-4. From the perusal
of the evidence of this witness, it is revealed that this witness is also not
an eyewitness to the alleged incident. Information about the murder of
Sukhpal @ Munna was received by this witness from other people. After
receiving this information, he also reached the place of occurrence and
saw the dead body of the deceased Sukhpal @ Munna. Apart from this,
according to this witness, dog of the police after smelling the dead body
of the deceased Sukhpal @ Munna, reached the house of Phool Singh
situated in Nagla Mohana . This witness also stated that the deceased had
illicit relations with the wife of Hari Singh, due to which the wife of the
deceased Sukhpal @ Munna, being angry, had gone to her parental
home. The wife of Hari Singh wanted to keep Sukhpal @ Munna with
her.
31. We find that, according to Mohan Singh (PW-4), it was the
common opinion of the crowd that the murder of the deceased Sukhpal
@ Munna had been committed by appellants, namely, Om Prakash,
Beniram, Kaptan Singh, and Bhanwar Singh due to the alleged illicit
relationship, and after committing the murder, appellants had thrown the
dead body of the deceased Sukhpal @ Munna. However, in his cross-
examination, this witness has also accepted that Harbhan Singh (PW-1)
had lodged a report against Shivraj Singh, Mangal Singh, and Harpal
Singh, which was wrong.

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32. Thus, from a perusal of the whole evidence of this witness, Mohan
Singh (PW-4), it is amply clear that this witness is expressing doubt only
on the basis that it is the common opinion of the crowd that the deceased
Sukhpal @ Munna, was murdered by the appellants due to the illicit
relations. Thus, it clearly emerges from the evidence of this witness that,
on the ground of rumours prevalent in the village that the deceased had
illicit relations with Chandravati, wife of Hari Singh and Savitri,
daughter of Om Prakash, for this reason the appellants committed
murder of the deceased Sukhpal @ Munna. However, whatever this
witness has deposed in his evidence, is only based on hearsay facts and
rumours prevalent in the village Bisalpur and nearby villages, hence,
there is no relevancy or reliability in the evidence of this witness (PW-4).
The prosecution story finds no support against the appellants from the
evidence of this witness. Thus, the evidence of this witness has no
relevancy in respect of the prosecution case. The evidence of this witness
is wholly unreliable and unworthy of credit.
33. From a perusal of the evidence of Ajay Pal Singh (PW-5), it is
revealed that this witness has also not seen the commission of the
alleged crime with his own eyes. Information about the murder of the
deceased Sukhpal @ Munna was received by this witness from Virendra,
son of Ram Gopal, who told this witness that Sukhpal @ Munna of your
village had been murdered by shooting in the night by some unknown
person, and his dead body was lying in the field of Laccho . In his cross-
examination, this witness has accepted that till date he has no knowledge
as to who committed the murder of Munna.
34. Dharam Pal Singh (PW-6) has not supported the prosecution story
and was declared hostile. According to the evidence of this witness, on
14.10.1998, the deceased had gone to the dairy with milk, after which he
did not return and the next day his dead body was found. I do not know
who murdered deceased Sukhpal @ Munna. However, in a surprising
manner during course of his cross-examination by the defence, this
witness stated that 'I used to go with Rajveer to deliver milk to Agrasen
Dairy and on that day as well, both of us were returning. We met the

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deceased Sukhpal @ Munna at Gaharra Ki Pyau . Three of us were
going to our village Bisalpur on bicycles. When we were two km away
from the village, accused, Shivraj, Mangal Singh, and Harpal met us on
the way. They stopped Sukhpal @ Munna and started talking to him.
Rajveer and I returned to the village. After this, I do not know what
happened. No incident took place in my presence.'
35. Thus, we find that PW-6 has turned hostile towards the appellants.
However, he has wrongly pointed fingers towards accused, Shivraj
Singh, Mangal Singh, and Harpal Singh named in the written report
(Exhibit Ka-1). In this way, we find that highly contradictory statements
and evidence have been given by this witness, which we find to be
wholly unreliable and without any relevancy in support of the
prosecution case. Thus, we find that the evidence of this witness is also
wholly unreliable.
36. Prosecution adduced Ranjeet Singh as PW-9. In his examination-
in-chief, Ranjeet (PW-9) has stated that on 14/15.10.1998 in the night at
about 10:00 P.M., I was going to plough the field. There, I saw some
people standing in the shade of a tree. Among them were appellants,
namely, Om Prakash, Beniram, Kaptan and Bhanwar Singh. A dead body
was lying next to the burji . The body belonged to Munna. At that time, I
did not realize whose body it was, I found out in the morning that it was
Munna's body. By morning, this news had spread through my village and
the surrounding area. People had also blocked the road at Laheri Ki
Pyau . I also went near the body the next day. The deceased had been
shot in the chest. Sniffer dogs of police also arrived. The dogs went up to
the houses of the accused. This is all that I saw. Munna used to work in
the milk business.
37. In his cross-examination PW-9 has stated that, 'Harbhan Singh has
lodged the first information report of this case, who is the real brother of
the deceased Sukhpal @ Munna. Harbhan Singh had lodged the report
against accused, Shivraj, Mangal and Harpal at Police Station Kagarol. It
is true that today accused Shivraj has come to Court with me. It is true

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CRLA No. - 441 of 2020
that on the date of the incident i.e., 14.10.1998, I had met Munna at
Gaharra Ki Pyau at the time of delivering the milk. After that, I had not
met Munna. This thing is also true that I had also not seen the appellants
with Munna. I had seen the appellants in the light of the tractor about 1/2
km from the field. I had not asked the appellants standing in the night
why they were standing there. The appellants also had not talked to me.'
38. This witness has further stated in his cross-examination that on the
next day, he came to know at 9:00 A.M. in the morning that this dead
body was of Munna. It is true that I had not seen the dead body in the
night. I had told this fact of seeing the dead body in the night in my
examination-in-chief in the Court for the first time. It is true that I had
not told the Darogaji that I had seen the dead body in the night. This
thing is true that my statement was recorded by the CBCID after three
years. When I reached near the dead body of Munna, there were
thousands of people. The brothers of the deceased, Harbhan Singh and
Jawahar Singh were also present. I had not told the brothers of the
deceased, Harbhan and Jawahar that I had seen the appellants in the
night standing near the dead body. This thing is true that at that time
there were police and higher officials of the police present. I do not
know whether the police and higher officials of the police were inquiring
with the people present there or not. I had also not told the police and
other higher officers of the police that I had seen the accused persons
near the dead body of the deceased in the night. I had never told the
informant Harbhan Singh (PW-1) that I had seen the appellants standing
near the dead body in the night. There were gunshot injuries on the dead
body of the deceased. I had not seen any article near the dead body of
the deceased. The dead body was covered with a white cloth. Sniffer dog
arrived at the place of occurrence in the morning at 10-11 A.M. At that
time, I was also present there. After smelling the dead body, the sniffer
dog immediately proceeded towards Nagla Mohana . I have no
knowledge of what report was prepared by the police team regarding the
sniffer dog. There is no report on record indicating that the sniffer dog

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CRLA No. - 441 of 2020
went towards the houses of the appellants at Nagla Mohana , therefore, I
am unable to provide any reason for this.
39. In his cross-examination, PW-9 has further stated that I had told
the Darogaji of the CBCID that I had seen the dead body from the road.
If this fact has not been written in my statement, I cannot give any
reason for the same. It is correct to say that I had stated before the
Darogaji of the CBCID that on 15.10.1998 at about 9:00 A.M., I heard
from villagers that Sukhpal @ Munna had been murdered during the
night. After hearing this news, I went near the dead body. It is also
correct that prior to receiving this information, I had no knowledge
regarding the occurrence. It is further correct that the accused, Shivraj
Singh, Mangal Singh, and Harpal Singh, who were named in the written
report (Exhibit Ka-1), were taken to the police station after being
arrested. I had given my statement to the Darogaji of the CBCID after
three years of the incident. During this period of three years, I had not
disclosed these facts elsewhere, for which I cannot assign any reason.
40. Thus, from a perusal of the entire evidence of prosecution witness
Ranjeet (PW-9), it is revealed that although this witness, in his
examination-in-chief, stated that on the date of the incident, i.e.,
14/15.10.1998 at about 10:00 P.M., while he was going to plough his
field, he saw the appellants standing in the shade of a tree, but he did not
disclose this important fact either to the informant Harbhan Singh (PW-
1) or to any police officer, including the SHO in-charge present at the
place of the incident. This witness kept this fact to himself and concealed
it, and did not inform any person, including the informant Harbhan
Singh (PW-1), any police officer, or any superior police officer present at
the place of occurrence, although he also reached the place where the
dead body of the deceased Munna @ Sukhpal was lying. Despite these
circumstances, the witness withheld this information and did not disclose
it to any person, whether private or public, and stated it for the first time
before the Court during the course of recording his evidence. This fact
was admitted by the witness in his cross-examination.

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41. From an overall analysis and perusal of the evidence of this
witness, Ranjeet (PW-9), it is revealed that the prosecution produced and
projected this witness to support its case, however, during his deposition
before the Court, the witness narrated and fabricated a false story. From
the testimony of this witness, it is evident that his evidence inspires no
confidence and lacks reliability and truthfulness, on the basis of which it
could not be regarded as reliable and trustworthy.
42. The prosecution produced Gopal Singh as PW-12, who turned
hostile and did not support the prosecution’s case. This witness clearly
stated that he had no knowledge as to when the murder of Sukhpal @
Munna was committed. He also expressed his ignorance regarding the
prosecution case and its facts.
43. After examining twelve witnesses in support of its case, the
prosecution also adduced Jawahar Singh, son of Bhagwan Singh, as PW-
1. Jawahar Singh (PW-1), is the real brother of the deceased Sukhpal @
Munna. From a perusal of the evidence of this witness, it emerges that
Ajay Pal son of Rameshwar, a resident of the same village, had told this
witness that the dead body of Sukhpal @ Munna, was lying in Beri
Gaon in the field of Laccho . This witness has also stated that, due to
party bandi, his elder brother Harban Singh lodged a false report against
accused, Shivraj Singh, Mangal Singh and Harpal Singh. In the evidence
of this witness, it is also stated that at the place of occurrence, thousands
of villagers had gathered and blocked the road. At about 11:00 A.M.,
sniffer dog of the police came there and after smelling the clothes of the
deceased, went at Nagla Mohana up to the houses of appellants, namely,
Beniram, Kaptan Singh, Om Prakash and Bhanwar Singh.
44. During cross-examination by the defence, Jawahar Singh (PW-1)
stated that after reinvestigation of the case by the CBCID, appellants
were charge-sheeted and made accused in the present case. This witness,
in his cross-examination, also stated that it is true that the murder of his
brother, Sukhpal @ Munna, was committed at another place and after the
murder, the dead body was laid in the field of Laccho . He further stated

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CRLA No. - 441 of 2020
that it is true to say that accused, Mangal Singh, Shivraj Singh and
Harpal Singh have not commit the murder of his brother.
45. Thus, from a perusal of the evidence of Jawahar Singh (PW-1), it
is found that this witness has only stated that sniffer dog, after smelling
the dead body and the clothes of the deceased, went up to the appellants’
houses. This witness has not seen the commission of the offence by the
appellants with his own eyes. The witness clearly stated that his elder
brother, Harban Singh, due to party bandi, falsely lodged a report against
accused, Shivraj Singh, Mangal Singh and Harpal Singh. We find no
relevance, reliability, or truthfulness in the evidence of this witness.
From a perusal of the testimony of Jawahar Singh (PW-1), it is evident
that he has made self-contradictory statements in his deposition before
the Court. The prosecution derives no support from the evidence of this
witness. There is no reliability or creditworthiness in the evidence of
Jawahar Singh (PW-1) on the basis of which the appellants can be held
guilty for the alleged crime. Thus, the evidence of this witness is self-
contradictory and wholly unreliable.
46. Among the second set of witnesses, Raj Kunwar Singh has been
adduced by the prosecution in support of its case as PW-2. From a
perusal of the evidence of Raj Kunwar Singh (PW-2), it is evident that
this witness is the cousin brother of the deceased Sukhpal @ Munna.
From a perusal of the evidence of this witness, it is also evident that on
14.10.1998, he had seen on the way accused, Shivraj, Mangal and
Harpal, named in the written report (Exhibit Ka-1), interacting with
Munna. According to this witness, when Harbhan Singh, Udaiveer,
Mahaveer, and Jawahar, who were searching for the deceased Sukhpal
@ Munna, approached him, this witness had told them that he had seen
accused, Shivraj Singh, Mangal Singh and Harpal Singh on the way
interacting with the deceased Sukhpal @ Munna. Later, it came to be
known that accused, Shivraj Singh, Mangal Singh and Harpal Singh had
murdered Sukhpal @ Munna.

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47. From a perusal of the cross-examination of Raj Kunwar Singh
(PW-2), it is evident that he had not seen the accused, Shivraj Singh,
Mangal Singh and Harpal Singh murdering the deceased Sukhpal @
Munna. He only heard about the incident. He stated that the murder of
Sukhpal @ Munna, had been done by the accused persons present in the
Court. I am stating this fact solely on the basis of hearsay facts.
48. From a perusal and analysis of the evidence of Raj Kunwar Singh
(PW-2), it is evident that he did not witness the commission of the
alleged crime by the accused, Shivraj Singh, Mangal Singh and Harpal
Singh named in the written report (Exhibit Ka-1). He only saw them
interacting with the deceased, Sukhpal @ Munna, on 14.10.1998. The
statements of this witness are doubtful, suspicious, and appear to be
fabricated and concocted. During cross-examination, he admitted that his
evidence is based on hearsay, derived from what he heard from others.
49. Thus, from a perusal of the evidence of Raj Kunwar Singh (PW-
2) , it is clear that his testimony is based on hearsay facts and cannot be
relied upon according to settled principles of the law of evidence. In this
respect, the prosecution derives no support from the evidence of this
hearsay witness. The testimony of this witness has not inspired any
confidence. It is highly doubtful and suspicious and therefore, wholly
unreliable.
50. From a perusal of the evidence of Jawahar Singh (PW-3), son of
Lakhan Singh, as deposed by this witness in Court, we find that this
witness, after the alleged incident, had seen the dead body of the
deceased Sukhpal @ Munna, in the Laccho’s field of Beri Gaon and
identified the dead body. According to this witness, after hearing about
the incident, the family members of the deceased Sukhpal @ Munna had
gone to the place of occurrence. According to this witness, on the date of
the incident, the accused, Shivraj, Harpal and Mangal, named in the
written report (Exhibit Ka-1), had not met him on the way. This witness
became hostile and denied any involvement of the named accused in the
present case.

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51. However, during the course of his cross-examination by the
defence, PW-3 stated that later he came to know that Munna had illicit
relationship with Chandravati, wife of Hari Singh and Savitri, daughter
of Om Prakash. Due to the alleged illicit relations, the appellants,
namely, Om Prakash, Beniram, Bhanwar Singh and Kaptan Singh have
enmity with the deceased Munna. He further stated that, due to said
enmity, the appellants had murdered the deceased Sukhpal @ Munna,
the brother-in-law of this witness and had thrown the dead body in the
field of Laccho .
52. Thus, from the evidence of this witness, it clearly emerges that he
did not give any evidence against the accused, Harpal Singh, Mangal
Singh and Shivraj Singh, named in the written report (Exhibit Ka-1).
However, on the basis of hearsay i.e., rumors prevalent in the village, the
witness expressed doubt and suspicion against the appellants, namely,
Om Prakash, Beniram, Bhanwar Singh, and Kaptan Singh, alleging that
they had killed the deceased Sukhpal @ Munna because the deceased
had illicit relations with Chandravati, wife of Hari Singh and Savitri,
daughter of Om Prakash, residents of Nagla Mohana . This witness,
however, had not seen any direct facts or circumstances regarding such
alleged relations and only expressed suspicion against the appellants
based on hearsay facts.
53. This witness has also not seen the commission of the crime by the
appellants with his own eyes and has deposed against them solely on the
basis of hearsay facts. Thus, from a perusal of the evidence as discussed
and analyzed above, it is clear that there is no relevance or reliability in
the testimony of this witness, as it is based entirely on facts and
statements heard and known by others. Accordingly, we find that the
evidence of this witness is not reliable and cannot support the
prosecution’s case.
54. The prosecution adduced Dharam Pal Singh as PW-4. This witness
is also the cousin of the deceased Sukhpal @ Munna. From a perusal of
the evidence of this witness, it is clear that this witness stated that he had

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CRLA No. - 441 of 2020
not seen accused, Shivraj Singh, Mangal Singh and Harpal Singh, named
in the written report (Exhibit Ka-1), interacting with the deceased
Sukhpal @ Munna. This witness has not supported the prosecution
version and turned hostile.
55. During cross-examination by the defence, PW-4 stated that it is
true that the deceased Sukhpal @ Munna, was a characterless man. He
used to sleep in the village Nagla Mohana and he had illicit relations
with Savitri, daughter of Om Prakash and Chandravati, wife of Hari
Singh. The CBCID re-investigated the case and after completing the
investigation, filed charge-sheets against the appellants, namely, Om
Prakash, Beniram, Bhanwar Singh and Kaptan Singh and did not file
charge-sheet against accused, Shivraj Singh, Mangal Singh and Harpal
Singh, named in the written report (Exhibit Ka-1). According to this
witness, the sniffer dogs had went and stopped at the houses of the
appellants, namely, Om Prakash, Beniram, Bhanwar Singh and Kaptan
Singh. The murder of the deceased Sukhpal @ Munna had been
committed by the appellants.
56. Thus, from a perusal of the evidence of PW-4, it is clear that he
did not see the commission of the alleged crime with his own eyes.
Instead, on the basis of the so-called, unproven, and unseen illicit
relationship of deceased Sukhpal @ Munna with the aforementioned
ladies, this witness expresses the opinion that the appellants may have
committed the murder. From a perusal of the evidence of Dharam Pal
Singh (PW-4), it is further evident that this witness is stating the
involvement of the appellants in the present case solely on the basis of
hearsay evidence i.e., information he received from other persons. Thus,
we find no relevance in the evidence of this witness. His testimony lacks
trustworthiness and credibility, rendering the entire evidence unreliable.
Consequently, the prosecution derives no support from the evidence of
this witness.
57. Among the second set of witnesses produced by the prosecution in
support of its case, Mahaveer Singh has been adduced as PW-5. From

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CRLA No. - 441 of 2020
the evidence of this witness, it has emerged that this witness has not
stated against accused, Shivraj Singh, Mangal Singh and Harpal Singh,
named in the written report (Exhibit Ka-1), and has not supported the
prosecution story. Hence, this witness was also declared hostile.
58. However, in his cross-examination, PW-5 also stated the same
facts and story as narrated and stated by Dharam Pal Singh (PW-4), that
the deceased Sukhpal @ Munna, was a characterless man, who had illicit
relations with Chandravati, wife of Hari Singh and Savitri, daughter of
Om Prakash, residents of the village Nagla Mohana . According to this
witness, sniffer dogs had gone up to the houses of the appellants,
namely, Beniram, Kaptan Singh, Om Prakash and Bhanwar Singh,
situated at Nagla Mohana . According to this witness also, there is party
bandi in the village, due to which Harbhan Singh (PW-1) had lodged a
false first information report against accused, Shivraj Singh, Mangal
Singh and Harpal Singh. However, due to opposition of the villagers, the
CBCID had re-investigated the case, and after completing the
investigation, the CBCID had charge-sheeted the appellants.
59. According to PW-5, the murder of Sukhpal @ Munna had not
been committed by accused, Shivraj Singh, Mangal Singh and Harpal
Singh, named in the written report (Exhibit Ka-1), but had been
committed by the appellants, namely, Om Prakash, Beniram, Kaptan
Singh and Bhanwar Singh. Thus, from a perusal of the evidence of this
witness, it has emerged that this witness, on the basis of the so-called
illicit relationship of the deceased Sukhpal @ Munna with the
abovementioned ladies, and also on the ground that the sniffer dog had
gone up to the houses of the appellants, expressed his view that the
murder of the deceased Sukhpal @ Munna had been committed by the
appellants. However, this witness has also not seen the alleged incident
with his own eyes, as he was not present at the place of occurrence at the
time of the incident.
60. From the evidence of this witness, it becomes clear that this
witness is also deposing in the Court against the appellants only on the

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CRLA No. - 441 of 2020
basis of hearsay facts and rumours prevalent in the village. Thus, we find
no truth or creditworthiness in the evidence of this witness. The evidence
of this witness is also found to be unreliable and not creditworthy.
61. In this way, from a perusal of the evidence of all the prosecution
witnesses adduced in support of the prosecution case, it is clear that the
prosecution projected two versions of the case. First, in the written report
(Exhibit Ka-1), Shivraj Singh, Mangal Singh, and Harpal were named as
accused persons. Subsequently, the villagers of Bisalpur submitted a
joint application before the Superintendent of Police, Agra for fair and
impartial investigation. Thereafter, the CBCID re-investigated the
matter. However, earlier, a charge-sheet had been filed against the
accused, Shivraj Singh and Mangal Singh by the Investigating Officer,
and the investigation remained pending against Harpal Singh. Before the
framing of charges by the Trial Court, the CBCID rejected the earlier
charge-sheet filed against the accused, Shivraj Singh and Mangal Singh,
named in the written report (Exhibit Ka-1), and filed a charge-sheet
against the present appellants, namely, Om Prakash, Beniram, Bhanwar
Singh and Kaptan Singh, for the commission of the alleged crime. The
second prosecution story, as projected by the prosecution itself is that the
appellants committed the murder of the deceased Sukhpal @ Munna due
to the alleged illicit relations of the deceased with Chandravati, wife of
Hari Singh and Savitri, daughter of Om Prakash.
62. From a perusal of the record of the Trial Court, it is revealed that
after the submission of the charge-sheets by the CBCID against the
appellants, namely, Beniram, Bhanwar Singh, Om Prakash and Kaptan
Singh, when the evidence of Harbhan Singh (PW-1), Rajendra Singh
(PW-2), Lal Singh (PW-3) and Mohan Singh (PW-4) had been recorded,
then applications under Section 319 Cr.P.C. were filed against the
accused, Shivraj Singh, Mangal Singh, and Harpal Singh, named in the
written report (Exhibit Ka-1). These applications were filed on behalf of
the informant Harbhan Singh (PW-1) and a Senior Prosecution Officer of
the CBCID, praying for summoning the above persons as accused to
face trial. Accused, Shivraj Singh, Mangal Singh, and Harpal Singh were

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CRLA No. - 441 of 2020
summoned by the Trial Court to face trial under Section 302/34 IPC vide
order dated 06.07.2009.
63. From the record, it is also apparent that the accused Shivraj Singh,
Mangal Singh, and Harpal Singh filed Application No. 124-B for the
separation of their trial. Thereafter, the then Presiding Officer, vide order
dated 27.01.2014, separated their trial as Sessions Trial No. 1144-A of
2007 (State v. Shivraj Singh and others) under Section 302 of the IPC.
After the trial, on 30.01.2014, the accused Shivraj Singh, Mangal Singh,
and Harpal Singh, named in the written report (Exhibit Ka-1), were
acquitted of the alleged charges. However, the learned Additional
Sessions Judge, Court No. 15, Agra, who delivered the impugned
judgment and order dated 13.01.2020, adversely commented on the
separation of the trial on page 5, in the last lines of the impugned
judgment and order dated 13.01.2020.
64. Thus, the prosecution itself projected two prosecution stories in
this case. From the above facts, it is evident that the prosecution is not
clear about its own case and appears to be confused between the two
prosecution stories. Regarding the two sets of accused persons, the first
set, as mentioned in the written report (Exhibit Ka-1), comprises Shivraj
Singh, Mangal Singh and Harpal Singh, while the second set, according
to the second prosecution story, comprises the appellants, namely,
Beniram, Bhanwar Singh, Kaptan Singh and Om Prakash, who were
charge-sheeted by the CBCID. Therefore, this is a very peculiar case
presented by the prosecution, in which there are two prosecution stories
against two sets of accused persons, one named in the written report
(Exhibit Ka-1) and the second charge-sheeted by the CBCID. Thus, the
prosecution itself is not clear and certain as to which prosecution story,
and against which set of accused persons, it is adducing evidence.
65. From a perusal of the evidence of all the prosecution witnesses, it
is evident that the informant Harbhan Singh (PW-1) is still giving so-
called doubtful evidence against the accused Shivraj Singh, Mangal
Singh and Harpal Singh, named in the written report (Exhibit Ka-1),

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CRLA No. - 441 of 2020
despite the fact that the CBCID, after reinvestigation of the case, rejected
the first charge-sheet filed against the accused named in the written
report (Exhibit Ka-1). Thereafter, the Presiding Officer (not the
Presiding Officer who delivered the impugned judgment dated
13.01.2020) of the Trial Court separated the trial of the accused persons
named in the written report (Exhibit Ka-1) and acquitted them of the
charges.
66. Rajendra Singh (PW-2), in opposition to and against the doubtful
evidence of the informant Harbhan Singh (PW-1), has given evidence on
a hearsay basis against the appellants, namely, Om Prakash, Beniram,
Kaptan Singh and Bhanwar Singh, based on so-called rumors prevalent
in the village that the deceased Sukhpal @ Munna had illicit relations
with Chandravati, wife of Hari Singh, and Savitri, daughter of Om
Prakash. Similarly, Lal Singh (PW-3), indirectly, on the basis of rumors
and suspicion regarding the illicit relationship of the deceased Sukhpal
@ Munna with the aforementioned two ladies, expressed doubt and
suspicion against the appellants, but also submitted that some unknown
persons may have killed the deceased. This fact is also written in the
application (Exhibit Ka-2), which was submitted to the Superintendent
of Police, Agra, for a fair and impartial investigation. Mohan Singh (PW-
4) also exonerated the accused Shivraj Singh, Harpal Singh, and Mangal
Singh, named in the written report (Exhibit Ka-1), from the alleged
crime, and expressed his suspicion against the appellants based on the
opinion of the crowd gathered at the place of occurrence, that the
appellants had committed the murder of the deceased Sukhpal @ Munna
due to the alleged illicit relations with Chandravati, wife of Hari Singh
and Savitri, daughter of Om Prakash.
67. Ajay Pal Singh (PW-5) has not supported the prosecution story
against any set of accused persons in his evidence. Dharam Pal Singh
(PW-6) has also not supported the prosecution case, has not given any
evidence against the appellants, and was declared hostile, clearly stating
that no incident had occurred in his presence. Prosecution witness
Ranjeet (PW-9) has given suspicious and doubtful evidence against the

27
CRLA No. - 441 of 2020
appellants, based on rumours and so-called tracking of sniffer dog
reaching the houses of the appellants. Gopal Singh (PW-12) has not
supported the prosecution story and was declared hostile. This witness
has also not implicated any set of accused persons in the commission of
the alleged crime.
68. Among the second set of prosecution witnesses adduced in
support of its case, Jawahar Singh (PW-1), son of Bhagwan Singh, has
not given any evidence against the accused persons named in the written
report (Exhibit Ka-1) and stated that the sniffer dogs, after smelling the
clothes of the deceased, went up to the houses of the appellants, namely,
Beniram, Kaptan Singh, Om Prakash and Bhanwar Singh, situated in the
village Nagla Mohana . Raj Kunwar Singh (PW-2) has given evidence
only on the basis of hearsay facts against the first set of accused Shivraj
Singh, Harpal Singh and Mangal Singh, named in the written report
(Exhibit Ka-1). Jawahar Singh (PW-3), son of Lakhan Singh, has clearly
exonerated the first set of accused Harpal Singh, Mangal Singh and
Shivraj Singh, named in the written report (Exhibit Ka-1), and only
expressed doubt that, due to the so-called illicit relationship of the
deceased Sukhpal @ Munna with Chandravati, wife of Hari Singh, and
Savitri, daughter of Om Prakash, the appellants had murdered the
deceased Sukhpal @ Munna and threw the dead body in Laccho’s field.
69. Dharam Pal Singh (PW-5) exonerated the first set of accused,
Shivraj Singh, Mangal Singh and Harpal Singh, named in the written
report (Exhibit Ka-1), and turned hostile. He stated that the sniffer dogs
had stopped at the houses of the appellants, namely, Om Prakash,
Beniram, Kaptan Singh and Bhanwar Singh, and on that basis, stated
that the appellants had murdered the deceased Sukhpal @ Munna.
Mahaveer Singh (PW-6) similarly exonerated the accused named in the
written report (Exhibit Ka-1) and turned hostile. He also, on the basis
that the sniffer dog, after smelling the dead body and clothes of the
deceased, reached the houses of the appellants, stated that the appellants
had committed the murder of the deceased Sukhpal @ Munna.

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CRLA No. - 441 of 2020
70. Therefore, from the above analysis and discussion of all the
evidence of the prosecution witnesses, it is evident that the prosecution
itself is not clear as to against which set of accused persons it is
adducing evidence, whether the evidence is against the persons named as
accused in the written report (Exhibit Ka-1) or against the appellants.
Some of the prosecution witnesses exonerated the accused persons
named in the written report (Exhibit Ka-1) and, on the basis of suspicion,
doubt, or hearsay, expressed their doubt against the present appellants.
Conversely, some of the prosecution witnesses exonerated the appellants
and implicated the persons named in the written report (Exhibit Ka-1) on
the basis of their suspicions and doubt. Hence, the prosecution is found
to be confused and has no clear idea about the accused persons against
whom it is prosecuting the case and adducing evidence.
71. From the above discussion of the evidence of all the prosecution
witnesses, it clearly emerges that those who implicate the appellants in
the commission of the alleged crime, do so, on the basis of hearsay
evidence and rumours prevalent in the village regarding the alleged
illicit relations of the deceased Sukhpal @ Munna. They have also
expressed suspicion against the appellants on the ground that the sniffer
dogs had reached the appellants’ houses. However, a perusal of the
record, as well as the statements of the prosecution witnesses, reveals
that there is no report or document on record to establish that the sniffer
dogs had, in fact, reached the appellants’ houses. Thus, there is no report
about the proceeding of sniffer dog.
72. In our opinion, there must be a reliable and complete record of the
exact manner in which tracking was done in the Panchnama . The dog
tracking evidence will have to be clear and complete, properly proved
and supported by the evidence of the handler. There must be no
discrepancy between the version as recorded in the Panchnama and the
evidence of the handler as deposed before the Court. The handler's
evidence will have to pass the test of cross-examination independently.

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73. However, in the present case, there is no document or report
regarding the movements of the sniffer dogs from the place where the
dead body of the deceased Sukhpal @ Munna was found, nor is there
any record to show that, after smelling the dead body or clothes of the
deceased, the sniffer dog reached and stopped at the houses of the
appellants. The handler of the sniffer dogs has also not been examined as
a prosecution witness before the Court. In view of the above facts and
circumstances of the case, the so-called evidence of the sniffer dogs, as
stated by the prosecution witnesses in their testimony, cannot be relied
upon as evidence against the appellants for the commission of the
alleged crime.
74. The Suprme Court in Gade Lakshmi Mangaraju alias Ramesh v.
State of A.P. ; (2001) 6 SCC 205 has held:
"There are inherent frailties in the evidence based on sniffer or tracker
dogs. The possibility of an error on the part of the dog or its master is
the first among them. The possibility of misunderstanding between the
dog and its master is close to its heels. The possibility of a
misrepresentation or a wrong inference from the behaviour of the dog
could not be ruled out. Last, but not the least, is the fact that from a
scientific point of view, there is little knowledge and much uncertainty as
to the precise faculties which enable police dogs to track and identify
criminals. Police dogs engage in these actions by virtue of instincts and
also by the training imparted to them. Criminal courts need not bother
much about such evidence based on sniffer dogs, although the
investigating agency can employ such sniffer dogs for helping the
investigation to track down criminals. Investigating exercises can afford
to make attempts or forays with the help of canine faculties but judicial
exercise can ill afford them."
75. However, upon examining the findings and reasoning recorded by
the Trial Court while convicting the appellants, we find that, only upon
the evidence of prosecution witnesses Rajendra Singh (PW-2), Lal Singh
(PW-3), Mohan Singh (PW-4) and Ranjeet Singh (PW-9), the Trial Court
held the appellants guilty and convicted them for the alleged murder of
the deceased Sukhpal @ Munna, solely on the basis of hearsay evidence.
The said prosecution witnesses have stated that the deceased had illicit
relations with Chandrawati, wife of Hari Singh and Savitri, daughter of
Om Prakash. However, these prosecution witnesses themselves admitted
in their testimonies that they had merely heard, as part of village
rumours, that the deceased Sukhpal @ Munna, had such illicit relations.

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This clearly indicates that the Trial Court relied upon hearsay evidence,
which was not proved by the prosecution beyond reasonable doubt
through cogent and reliable evidence, to conclude that the deceased had
illicit relations with the aforementioned ladies and that, on account of
which, the appellants committed his murder.
76. Thus, only on the ground of hearsay evidence, rumours prevalent
in the village, doubt and suspicion, the Trial Court by misreading and
misappreciating the prosecution evidence, wrongly held the appellants
guilty for the commission of the alleged crime, which is, in our
considered view, against the settled principles of law that no accused
person can be convicted and held guilty only on the basis of hearsay
evidence, which is based on suspicion and rumor. For the conviction of
any person in any crime, strong and irrefutable evidence beyond
reasonable doubt must be adduced by the prosecution. Therefore, we are
totally in disagreement with the findings and reasoning given by the
Trial Court. It appears that the Trial Court, only on the ground of
suspicion and doubt as expressed by the prosecution witnesses about the
illicit relations of the deceased Sukhpal @ Munna, held the appellants
guilty and convicted them for the alleged crime.
77. The Supreme Court in Sujit Biswas v. State of Assam ; (2013) 12
SCC 406 has held in para-13 as under:
“ 13. Suspicion, however grave it may be, cannot take the place of proof,
and there is a large difference between something that “may be”
proved, and something that “will be proved”. In a criminal trial,
suspicion no matter how strong, cannot and must not be permitted to
take place of proof. This is for the reason that the mental distance
between “may be” and “must be” is quite large, and divides vague
conjectures from sure conclusions. In a criminal case, the court has a
duty to ensure that mere conjectures or suspicion do not take the place
of legal proof. The large distance between “may be” true and “must
be” true, must be covered by way of clear, cogent and unimpeachable
evidence produced by the prosecution, before an accused is condemned
as a convict, and the basic and golden rule must be applied. In such
cases, while keeping in mind the distance between “may be” true and
“must be” true, the court must maintain the vital distance between
mere conjectures and sure conclusions to be arrived at, on the
touchstone of dispassionate judicial scrutiny, based upon a complete
and comprehensive appreciation of all features of the case, as well as
the quality and credibility of the evidence brought on record. The court
must ensure, that miscarriage of justice is avoided, and if the facts and
circumstances of a case so demand, then the benefit of doubt must be

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given to the accused, keeping in mind that a reasonable doubt is not an
imaginary, trivial or a merely probable doubt, but a fair doubt that is
based upon reason and common sense. ”
78. The Supreme Court recently in State of Odisha v. Banabihari
Mohapatra And Another ; (2021) 15 SCC 268 has held:
"It is well settled by a plethora of judicial pronouncement of this Court
that suspicion, however strong cannot take place of proof. An accused is
presumed to be innocent unless proved guilty beyond reasonable doubt."
79. Thus, in light of the above discussions and analysis, we find that
the impugned judgment and order dated 13.01.2020 passed by the
learned Additional Sessions Judge, Court No. 15, Agra, is not sustainable
in the eyes of law and is liable to be set aside.
80. Accordingly, the impugned judgment and order of conviction and
sentence dated 13.01.2020, passed by the learned Additional Sessions
Judge, Court No. 15, Agra, in Sessions Trial No. 1144 of 2007, State v.
Beni Ram and Others (arising out of Case Crime No. 178 of 1998),
under Section 302/34 IPC, Police Station Kagarol, District Agra, is
hereby set aside . Consequently, both the criminal appeals are allowed .
81. The appellants, namely, Bhanwar Singh, Beniram, Kaptan
Singh and Om Prakash , are on bail. Their bail bonds stand cancelled
and sureties discharged.
82. Let a copy of this judgment be transmitted to the learned Trial
Court along with the lower Court records forthwith for necessary
compliance.
(Vinai Kumar Dwivedi, J.) (J.J. Munir, J.)
July 01, 2026
Aditya
Digitally signed by :-
ADITYA KUSHWAHA
High Court of Judicature at Allahabad