Court No. - 43

Case :- CRIMINAL APPEAL No. - 3379 of 2002

Appellant :- Suresh

Respondent :- State of U.P.

Counsel for Appellant :- S.K. Mishra, Mohd. Raghib Ali,Mohd. Raghib

Ali,A.C.,Saghir Ahmad.A.C.

Counsel for Respondent :- A.G.A.

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

1. Accused appellant Suresh has been convicted under Section

302 IPC and sentenced to rigorous life imprisonment alongwith fine

of Rs. 1000/- and on failure to pay the fine to undergo six months

additional imprisonment; while his two brothers Hansu and Rakesh

who were charged under Section 302/34 IPC have been acquitted

vide a composite judgment and order of the Additional Sessions

Judge (Fast Track Court No. 4), Firozabad, dated 21.6.2002 and

22.6.2002. Thus aggrieved the accused appellant Suresh is before

this Court in the present appeal filed under Section 374 of the Code

of Criminal Procedure. No appeal is preferred by the State against

the acquittal of the two co-accused Hansu and Rakesh, who are the

real brothers of accused appellant Suresh.

2. A written report was given by the first informant Harish Kumar

Fanda (PW-1) stating that the accused appellant at about 10.30 in

the morning came to his shop to purchase Tobacco for Rs. 2.00. The

informant refused to accept the tender as the Two Rupee Note

offered was torn. The accused appellant went back after threatening

that he would see the informant and his family. At about 11.30

accused appellant armed with a knife, his two brothers Hansu armed

with a bottle of Acid and Rakesh armed with two iron rods (saria)

rushed towards him. The informant out of fear closed the door of the

shop. The accused then rushed to enter the adjoining house of the

informant, which was objected by the wife of informant Karuna

Fanda, when the accused appellant inflicted knife blow below her

chest. Accused Hansu is stated to have thrown acid bottle towards

Karuna Fanda which ricocheted and the acid got sprinkled on Hansu

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and Suresh. The informant rushed his wife to the hospital where she

died. The incident is said to have been seen by Ram Lal Fanda (PW-

2), Sumitra Devi (mother of informant) and Banwari. Sumitra Devi

has not been adduced in evidence while Banwari has died. On the

basis of such written report scribed by PW-2 the first information

report in Case Crime No. 509 of 1995, under Section 302 IPC, Police

Station Shikohabad, District - Firozabad, was registered at 12.45 pm

on 7.11.1995 in respect of the incident occurring at 11.30 am on the

same day.

3. The Investigating Officer recovered two iron rods (saria), edge

of one of which was pointed while the other was flat near the place

of occurrence vide Exhibit Ka-2. Bloodstained earth from the spot

was also recovered vide Exhibit Ka-3. Panchayatnama was conducted

at the hospital, where the dead body was kept, and the cause of

homicidal death appeared to be the wound six fingers below the

chest of the deceased. Panch witnesses were of the view that the

deceased has died on account of stab wound. The dead body was

accordingly sealed and sent to mortuary where the postmortem was

conducted by Dr. R.K. Garg (PW-4). In the postmortem, the cause of

death has been determined as shock and bleeding on account of

following ante-mortem injury:-

"1. Incised wound 4.0 cm x 1.0 cm x chest cavity deep

on (Lt) side front of chest 9.5 cm below and lateral to

left nipple at 5 ‘O’ clock position.”

4. The investigation proceeded and ultimately a charge sheet (Ex.

Ka. 11) was submitted by the police against the accused appellant

and his two brothers Rakesh and Hansu. The Magistrate took

cognizance and committed the case to the court of sessions where

the charges were framed against them. Vide order dated

23.10.1998, the accused appellant was charged of offence under

Section 302 IPC, while his two brothers namely Hansu and Rakesh

were charged under Section 302/34 IPC by a separate order. The

charges were read out to the accused who denied them and

demanded trial.

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5. The prosecution in order to establish the charges against

accused appellants produced oral testimonies of following

witnesses:-

“1.Harish Kumar Fanda PW-1

2.Ram Lal Fanda PW-2

3.Yogesh Kumar PW-3

4.Dr. R.K. Garg PW-4

5.Shiv Charan Pal PW-5

6.Siyaram Sharma CW-1

7.Dr. Lakhan Singh CW-2”

6. Documentary evidences have also been adduced by the

prosecution consisting of FIR as Ex.Ka. 12; written report as

Ex.Ka.1; recovery memo of Iron ‘Saria’ as Ex.Ka. 2; recovery memo

of blood from stairs as Ex. Ka.3; Postmortem Report as Ex.Ka. 10;

Panchayatnama as Ex. Ka. 4 and Charge Sheet as Ex. Ka. 11.

7. PW-1 is the first informant who has supported the prosecution

case by stating that the accused appellant Suresh is a resident of

Punjabi Colony Shikohabad who came to his shop and offered a two

rupee torn note for purchasing Kapoori Tobacco and as the note was

torn, the informant refused to accept it, on which Suresh threatened

the informant that he would see him and his family. After about an

hour, on the same day, Suresh armed with a knife alongwith Hansu

and Rakesh who had acid bottle and iron rods in their hands rushed

towards the shop of the informant. On seeing this PW-1 put the

shutters down. The accused then rushed towards the house of the

informant hurling abuses. Informant’s wife was standing near the

gate/shutter and she objected to their entry on which the accused

appellant Suresh stabbed her. Acid bottle was also allegedly thrown

by Hansu but the acid got sprinkled on Suresh and Hansu. PW-1 has

proved the written report (Ex.Ka-1) and has also supported the

recoveries of plain earth; bloodstained earth and two iron rods by

signing on the memo of recovery.

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8. In the cross-examination PW-1 has admitted that accused

Suresh, Hansu and Rakesh are the sons of his real uncle, which

indicates that the accused and the informant are first cousin. He has

also admitted that the lane passing between the house of accused

and his house is rather narrow. At the time of incident accused

appellant Suresh was not working while Hansu was working in a

hotel running a tandoor. He has stated that one of the two iron rods

recovered had a sharp edge while the other was flat and these rods

were used for preparing chapatis in tandoor. He has stated that these

iron rods have not been used for commissioning of offence and there

was no scuffle of accused with any of the witnesses. He has shown

ignorance about the arrest of Hansu or his medical examination. He

has also admitted that no injuries from acid have been caused to

first informant or the deceased or any of the witnesses. He has

further admitted that at the time of collection of bloodstained earth

no empty bottle of acid was found. PW-1 further stated that acid

bottles were taken by the accused persons and non mentioning of

such facts cannot be explained by him. He has further admitted that

acid stained earth have not been recovered from the spot, nor any

acid was found and even on the wall or the channel of his gate no

stains of acid were found. PW-1 has stated that he saw accused

appellant stabbing his wife while standing at a distance of 4 ft. in the

gallery from the place of occurrence. PW-1 denied the suggestion

that there was any dispute on account of his father having grabbed

the ancestral house of the accused or that Hansu was attacked with

knife by informant while he was going for work or that acid was

thrown on Hansu by the deceased and the deceased while turning

after throwing the acid got accidentally stabbed with the knife in the

hands of the informant. He has further denied the suggestion that he

did not allow the report of Hansu to be registered when he had gone

to the police station or that Hansu was falsely implicated.

9. PW-2 is the father of informant who has similarly supported

the prosecution case. In the cross-examination he has stated that he

saw the incident from the road in front of the shop of the informant.

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In cross-examination he has also denied the suggestion that he

wanted to grab the ancestral house of the accused or that the

incident occurred when his son (PW-1) attempted to stab Hansu and

the deceased threw acid and that she got accidentally stabbed while

turning back.

10.PW-3 Yogesh Kumar was posted in the concerned Police

Station and has proved the panchayatnama as also site plan. He has

admitted that he was not the Investigating Officer, but he had made

the recoveries on the asking of the SHO. The iron rods recovered,

however, have not been produced before the Court.

11.Dr. R.K. Garg is PW-4 who has conducted the autopsy on the

deceased. He has stated that there was only one injury on the

deceased and her 8

th

rib was cut. Both sides of injury were sharp. He

has also stated that it was not necessary that the weapon of assault

in this case be necessarily sharp for causing the aforesaid injury.

12.PW-5 Shivcharan Pal, Investigating Officer, has proved the

chargesheet and has stated that PW-3 Yogesh Kumar was orally

directed to undertake investigation and that there was no order by

him in writing to conduct investigation by him. He has also stated

that plain earth was not taken from the place of occurrence and the

place from where the bloodstained earth has been taken has also not

been specified in the site plan. This witness has clearly stated that

neither any acid has been found on the spot, nor the place where

bottle of acid fell has been specified. It has also not been specified as

to what happened to the acid bottle.

13.Siyaram Sharma, Pharmacist, R.N.M. Hospital, Shikohabad has

appeared as CW-1 and has produced the records in respect of the

injury caused to Hansu S/o Deshraj. The original register has also

been produced by him. Dr. Lakhan Singh has also been adduced as

CW-2 who had examined Hansu at 5.15 pm on 7.11.95 and following

injuries have been found on him by the concerned doctor:-

6

^^pksV ua0 1 & tyus dh pksV ¼fu’kku½ iwjs psgjs ds vk/ks fgLls es] xnZu Nkrh isV

nksuks gkFkksa ds vxys fgLlks esa nksuks tkWa?kks ds vxys fgLls esa ;s pksV lqijfQf’k;y

FkhA yxHkx 45% 'kjhj ds fgLls ij Fkh yky jax dh FkhA Qqksys ugha FksA^^

It was, however, opined by the doctor that these injuries were

superficial and could be caused by chemical burn. He has also

certified that injuries were fresh and could come from acid. The

doctor has further stated that Hansu was kept under observation and

although he described the injury as superficial but it could prove fatal

since burn percentage was more than 20% and he was referred to

the district hospital. The doctor was not informed of any further

development in the matter.

14.Trial Court found the testimony of PW-1 and PW-2 to be

truthful and reliable and on its basis came to the conclusion that

deceased has been stabbed by the accused appellants and

consequently convicted the accused appellant for offence under

Section 302 IPC. So far as injuries on Hansu is concerned the court

below has not given much importance to it as the injuries were

allegedly superficial and thus ignored. A finding has been returned

that accused persons were present on the spot. The court below

however found that prosecution has not been able to prove the guilt

of Hansu and Rakesh beyond reasonable doubt and they were

acquitted by giving them benefit of doubt.

15.Sri Saghir Ahmad, learned Senior Counsel assisted by Sri

Raghib Ali, has appeared as Amicus Curiae for the appellant, and

submits that the prosecution has not established the genesis of

crime in the manner disclosed by it on the strength of prosecution

evidence. He further submits that the cause of death and the manner

of death have not been proved. He also argues that injuries of Hansu

have not been explained and as the witnesses are interested

witnesses their testimony is not reliable and trustworthy and

consequently the accused appellant is entitled to benefit of doubt. He

further submits that the acquittal of Hansu and Rakesh by the trial

court despite offences alleged under section 34 IPC, on the basis of

same set of evidence, is also a ground to extend same benefit to the

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accused appellant. Contention is that PW-1 and PW-2 since are not

reliable witnesses and are otherwise interested persons and the

injuries on Hansu have not been explained and the weapon of

assault i.e. the knife has not been recovered, as such, the conviction

of accused appellant is bad in law.

16.Learned AGA, on the other hand states that the ocular

evidence matches the postmortem report and since PW-1 and PW-2

have specifically seen the incident, in which solitary stab wound was

caused by the accused appellant, as such, the conviction recorded by

the court below is valid.

17.Having heard the respective counsels, we have examined the

original records of the case in order to determine whether the

prosecution has succeeded in establishing the guilt of accused

appellant, beyond reasonable doubt?

18.The first information report in the present case has been

lodged on the basis of written report wherein the genesis of crime is

alleged to be a dispute regarding non acceptance of tender of Rs.

2.00 on the ground that the note was torned. This, according to the

prosecution, is the cause of provocation and also the motive on

account of which the accused appellant came armed with a knife

alongwith his two brothers and attacked the informant with knife,

acid and iron rods.

19.The genesis of crime is thus required to be examined in the

facts of the present case before adverting to the credibility and

reliability of the two eye-witnesses, whose testimony forms the basis

of conviction of accused appellant. The FIR version as also the

statement in chief of PW-1 suggests that accused is a stranger and

on flimsy premise has stabbed the deceased. This apparent

impression, however, is not supported by the evidence on record.

20.Firstly, the dispute regarding non acceptance of two rupee note

does not, on its own, constitutes sufficient provocation for the

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assault on the informant and deceased. Moreover, in the cross-

examination of PW-1 it is clearly admitted that the three accused are

the uncle’s son of informant and, therefore, informant is the first

cousin of the three accused. PW-1 moreover has admitted in his

cross-examination that the mother of accused has been

subsequently murdered wherein the informant is the prime accused.

21.Although there is no defence evidence substantiating any

alternative genesis of crime or motive for occurrence of incident or

false implication but a suggestion has been given to PW-1 that his

father wanted to grab the ancestral house, in which the accused also

had a share, which suggestion is nevertheless denied. It is also to be

noticed that according to the site plan the accused and informant live

in close vicinity and their houses are just across a narrow lane. The

close relationship between the parties as also the admission of PW-1

that he is accused of murdering the mother of accused appellant

clearly goes to show that relationship between them was not cordial.

22.In the facts of the case there are only two eye-witnesses who

are interested witnesses being the husband and father-in-law of

deceased. Law is settled that testimony of interested witnesses can

always be looked into but only after subjecting it to cautious and

careful scrutiny.

23.As we have already seen from the evidence brought on record

that the genesis of crime disclosed by the prosecution is not entirely

reliable and eye-witnesses are close relatives of the deceased the

facts asserted by the prosecution will have to be minutely

scrutinized.

24.The prosecution witnesses have stated that the accused

appellant alongwith his two brothers rushed towards the informant’s

shop on account of the motive disclosed i.e. non acceptance of two

rupee note. Accused appellant is alleged to have carried a knife

which admittedly is neither recovered nor produced before the court.

The two rupee torn note, which was the bone of contention as per

9

prosecution and provided the genesis has also not been recovered or

produced in evidence. So far as Hansu possessing acid bottle is

concerned neither any acid has been found on the ground at the

place of crime nor any acid marks were noticed on the nearby

walls/shutter. These are circumstances which adds to the cloud on

the prosecution case. The further fact that the informant or the

deceased did not sustain any chemical burn injuries despite the

prosecution case that acid was thrown on them by Hansu also puts a

question on the prosecution case.

25.PW-1 has disclosed that Hansu threw acid bottle and the acid

fell on Suresh and Hansu. No burn injuries from acid attack is found

on Suresh. Such injuries are found only on Hansu. The statement of

PW-1 that acid fell on Suresh is thus found incorrect.

26.It is difficult to believe that acid thrown on deceased/informant

from close distance would not cause any injuries upon them nor any

signs of acid would be available on the nearby walls/shutter/floor. No

acid bottle has been recovered either.

27.Although there is no defence witness on this aspect, yet, it

may be worth noticing that the accused Hansu in his statement

under section 313 Cr.P.C. has denied that he was carrying acid.

Moreover, he has stated that he was going to hotel for work when

the deceased threw acid on him and the deceased was hit by knife of

informant by which the informant intended to assault him. The reply

of Hansu to question no.13 is relevant and is reproduced

hereinafter:-

^^eS gksVy ij dke djus tk jgk FkkA d:.kk Q.Mk us esjs ij rstkc Mkyk FkkA gjh’k

pkdw esjs ekj jgk Fkk tks d:.kk Q.Mk ds yxkA esjk HkkbZ jkds’k fjiksVZ djus eq>s

fjiksVZ djus Fkkus ys x;k iqfyl us eq>s tyh gqbZ voLFkk esa ogha cSBk fy;k rFkk fjiksVZ

izkIr dj esjs HkkbZ dks ns nh rFkk eq>s esfMdy djkus ds uke ij ogha cSBk fy;kA^^

28.Accused appellant has also stated under section 313 Cr.P.C.

that deceased was hit by the knife of informant and that the

deceased threw acid on Hansu.

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29.Dr. Lakhan Singh has appeared as court witness and proved

that burn injuries were caused to Hansu on his half face, neck, chest,

both hands and thighs which was on 45% of his body. He has opined

that such burn injuries could be caused by acid attack. He has

further stated that though he recorded the injuries to be superficial

but as the burn was above 20% and could be fatal as such the

patient was kept under observation and was referred to S.N.M.

Hospital, Firozabad.

30.It is not clear whether Hansu was actually referred to S.N.M.

Hospital, Firozabad. No complaint/report at the instance of Hansu is

otherwise on record. The only explanation furnished under section

313 Cr.P.C. is that Hansu went to police station for lodging the report

but he was detained and the report was received by the police.

31.The trial court has ignored the injuries caused to Hansu only

on the ground that such injuries were superficial. The statement of

Dr. Lakhan Singh that burn was above 20% and could be fatal or

that Hansu was referred to the district hospital has been completely

overlooked.

32.On the basis of evidence led by the prosecution on the aspect

relating to alleged throwing of acid by Hansu, and his sustaining

burn injuries as acid also fell/sprinkled on him, we are not impressed

by the reasoning assigned by the trial judge for ignoring the injuries

caused to Hansu. We are not inclined to accept that burn injuries

would be sustained on 45% of the body only because some acid fell/

got sprinkled on Hansu while throwing the acid bottle upon the

informant or the deceased, particularly when no burn injuries are

found on the deceased or the informant, although acid was allegedly

thrown on them.

33.Learned Senior Counsel for the appellant submits that where

the genesis of crime is suppressed and the injuries on accused are

not explained the evidence of prosecution witnesses relating to the

incident cannot be treated as true or at any rate not wholly true and

11

cannot be relied upon to convict an accused. Reliance is placed upon

a judgment of Supreme Court in Kumar Vs. State Represented by

Inspector of Police, 2018 (6) JT 85, wherein the Court observed as

under in para 27 to 29 of the report, which is reproduced

hereinafter:-

“27. Another point put forth by the learned counsel on

behalf of the accused—appellant is that the prosecution has

not explained the injuries suffered by the accused and hence

prosecution case should not be believed. At the outset, it

would be relevant to note the settled principles of law on

this aspect. Generally failure of the prosecution to offer any

explanation in that regard shows that evidence of the

prosecution witnesses relating to the incident is not true or

at any rate not wholly true [See : Mohar Rai and Bharath Rai

v. The State of Bihar, 1968 CriLJ 1479].

28. In Lakshmi Singh and Ors. v. State of Bihar, 1976 CriLJ

1736 this Court observed:

“Where the prosecution fails to explain the injuries on the

accused, two results follow :

(1) that the evidence of the prosecution witnesses is untrue;

and

(2) that the injuries probabilise the plea taken by the

appellants.

It was further observed that:

In a murder case, the non-explanation of the injuries

sustained by the accused at about the time of the

occurrence or in the course of altercation is a very important

circumstance from which the Court can draw the following

inferences :

(1) that the prosecution has suppressed the genesis and

the origin of the occurrence and has thus not presented the

true version;

(2) that the witnesses who have denied the presence of

the injuries on the person of the accused are lying on a most

material point and, therefore, their evidence is unreliable;

(3) that in case there is a defence version which explains

the injuries on the person of the accused assumes much

greater importance where the evidence consists of

interested or inimical witnesses or where the defence gives a

version which competes in probability with that of the

prosecution one.”

29. In the case on hand, admittedly, the accused—appellant

was also injured in the same occurrence and he too was

admitted in the hospital. But, prosecution did not produce

his medical record, nor the Doctor was examined on the

nature of injuries sustained by the accused. The trial Court,

12

instead of seeking proper explanation from the prosecution

for the injuries sustained by the accused, appears to have

simply believed what prosecution witnesses deposed in one

sentence that the accused had sustained simple injuries

only.”

34. Recently, a three judge bench of the Supreme Court in

Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh, Criminal

Appeal Nos. 64-65 of 2022, decided on 13.10.2022, has again

examined the issue and reiterated the law on the subject in paras

111 to 115, which are reproduced hereinafter:-

“111. In Dhananjay Shanker Shetty v. State of Maharashtra,

(2002) 6 SCC 596, in paragraph 10 in reference to the

circumstantial evidence, in the case of murder, the

nonexplanation of injuries on accused by prosecution was

held to be significant when there are circumstances which

makes prosecution case doubtful. For the relevant purpose,

the relevant extract of paragraph 10 is extracted as below:

“10. ....But nonexplanation of injuries assumes significance

when there are material circumstances which make the

prosecution case doubtful. Reference in this connection may

be made to recent decisions of this Court in the cases of

Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001) 6

SCC 145 : 2001 SCC (Cri) 1070] and Kashiram v. State of

M.P. [(2002) 1 SCC 71 : 2002 SCC (Cri) 68]. In the present

case, nonexplanation of injuries on the appellant by the

prosecution assumes significance as there are circumstances

which make the prosecution case, showing the complicity of

the appellant with the crime, highly doubtful.”

[Emphasis supplied]

112. In Mohar Rai and Bharath Rai v. State of Bihar, AIR

1968 SC 1281, it was observed:

“6. …..In our judgment the failure of the prosecution to offer

any explanation in that regard shows that evidence of the

prosecution witnesses relating to the incident is not true or

at any rate not wholly true. Further those injuries probabilise

the plea taken by the appellants.”

[Emphasis supplied]

113. In another important case Lakshmi Singh and Others v.

State of Bihar, (1976) 4 SCC 394, after referring to the ratio

laid down in Mohar Rai (supra), this Court observed:

“12. …..where the prosecution fails to explain the injuries on

the accused, two results follow: (1) that the evidence of the

prosecution witnesses is untrue; and (2) that the injuries

probabilise the plea taken by the appellants…..”

114. It was further observed that:

“12. …..in a murder case, the nonexplanation of the injuries

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sustained by the accused at about the time of the

occurrence or in the course of altercation is a very important

circumstance from which the court can draw the following

inferences:

(1) that the prosecution has suppressed the genesis and the

origin of the occurrence and has thus not presented the true

version;

(2) that the witnesses who have denied the presence of the

injuries on the person of the accused are lying on a most

material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the

injuries on the person of the accused it is rendered probable

so as to throw doubt on the prosecution case…..”

115. In Mohar Rai (supra) it is made clear that failure of the

prosecution to offer any explanation regarding the injuries

found on the accused may show that the evidence related to

the incident is not true, or at any rate, not wholly true.

Likewise in Lakshmi Singh (supra) it is observed that any

nonexplanation of the injuries on the accused by the

prosecution may affect the prosecution case. But such a

nonexplanation may assume greater importance where the

defence gives a version which competes in probability with

that of the prosecution. But where the evidence is clear,

cogent and creditworthy and where the court can distinguish

the truth from falsehood, the mere fact that the injuries are

not explained by the prosecution cannot itself be a sole basis

to reject such evidence, and consequently the whole case.

Much depends on the facts and circumstances of each case.

These aspects were highlighted by this Court in Vijay Singh

and Ors. v. State of U.P., (1990) CriLJ 1510.”

35.It appears that the trial court itself was not entirely convinced

with the prosecution case and that is why it granted benefit of doubt

to the co-accused Hansu and Rakesh on the basis of same set of

evidence. Since the two co-accused were also charged under section

34 IPC, therefore, their acquittal on the basis of same set of

evidence is also a ground available for the accused appellant to claim

benefit of doubt.

36.Upon overall evaluation of the evidence led in the matter we

are not convinced of the genesis of crime as disclosed by the

prosecution nor are we satisfied with the explanation offered by the

prosecution regarding injuries sustained by the accused Hansu in the

matter. The testimony of the two eye witnesses PW-1 and PW-2, in

our considered view, cannot be entirely relied upon to convict the

14

accused appellant when on the same set of evidence two other

accused have been acquitted by granting them benefit of doubt.

37.In Raghunath vs. State of Haryana, (2003) 1 SCC 398 the

Supreme Court in similar circumstances observed as under in

paragraph 22 to 24 and 33, which are reproduced hereinafter:-

“22. As already pointed out, accused Ram Kishan sustained

as many as six injuries on his body, Injuries 3 and 4 stated

to be grievous in nature. Both the trial court and the High

Court accepted the version of PW 2 that the injuries were

caused in self-defence. We have already disbelieved the

version of PW 2. No explanation whatsoever has been

afforded by the prosecution with regard to the injuries on

the person of the accused Ram Kishan.

23. The question whether the prosecution is obliged to

explain the injuries sustained by the accused in the same

occurrence and failure to explain injuries on the accused

would construe that the prosecution has suppressed the

truth and also the origin and genesis of the occurrence, has

been in controversy before this Court in a catena of

decisions. A three-Judge Bench of this Court in Ram Sunder

Yadav v. State of Bihar [(1998) 7 SCC 365 : 1998 SCC (Cri)

1630] (at SCC p. 366, para 3) referred to another three-

Judge Bench decision of this Court in Vijayee Singh v. State

of U.P. [(1990) 3 SCC 190 : 1990 SCC (Cri) 378] , SCC at

p. 202, para 10, which held as under:

“In Mohar Rai case [Mohar Rai v. State of Bihar, AIR 1968

SC 1281 : 1968 Cri LJ 1479] it is made clear that failure of

the prosecution to offer any explanation regarding the

injuries found on the accused may show that the evidence

related to the incident is not true or at any rate not wholly

true. Likewise in Lakshmi Singh case [Lakshmi Singh v.

State of Bihar, (1976) 4 SCC 394 : 1976 SCC (Cri) 671]

also it is observed that any non-explanation of the injuries

on the accused by the prosecution may affect the

prosecution case. But such a non-explanation may assume

greater importance where the evidence consists of

interested or inimical witnesses or where the defence gives

a version which competes in probability with that of the

prosecution. But where the evidence is clear, cogent and

creditworthy and where the court can distinguish the truth

from falsehood the mere fact that the injuries are not

explained by the prosecution cannot by itself be a sole basis

to reject such evidence, and consequently the whole case.”

24. In the present case, as noticed earlier, the prosecution

evidence consists of interested or inimical witnesses.

Therefore, non-explanation of the injuries sustained by Ram

Kishan may assume greater importance. There is also the

defence version which competes in probability with that of

the prosecution. In our view, therefore, non-explanation of

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the injuries sustained by the accused Ram Kishan, which

are grievous in nature, renders the prosecution story not

wholly true.

33. In the facts and circumstances recited above, we are

clearly of the view, that the prosecution has not come up

with the true story. It has suppressed the facts. If that be

the case, the whole prosecution story would stand on

quicksand. The prosecution has failed to establish its case

beyond reasonable doubts. It is now a well-settled principle

of law that if two views are possible, the one in favour of

the accused and the other adversely against it, the view

favouring the accused must be accepted.”

38.In Khema and others vs. State of U.P. and others, AIR 2022 SC

3765, the Supreme Court has reiterated the previous judgment of

the Court in Vadivelu Thevar vs. State of Madras, 1957 SCR 981,

wherein the Court emphasized that well established rule of law is

that the Court is concerned with quality and not the quantity of

evidence necessary for proving or disproving a fact. Generally

speaking, oral testimony may be classified into three categories,

namely: (1) wholly reliable, (2) wholly unreliable and (3) neither

wholly reliable nor wholly unreliable. In the first category the court

may acquit or convict on the testimony of a single witness, if it found

to be above reproach or suspicion of interestedness, incompetence

or subornation. In the second category the court has equally no

difficulty in coming to its conclusion. It is in the third category of

cases that the court has to be circumspect and has to look for

corroboration in material particulars by reliable testimony, direct or

circumstantial………….

39.On the conspectus of above consideration, we are of the

opinion that prosecution has not succeeded in proving the guilt of

accused appellant beyond reasonable doubt on the basis of evidence

led by it.

40.For the reasons recorded above, this appeal succeeds and is

allowed. The accused appellant is held entitled to the benefit of

doubt and consequently, the judgment and order dated

21/22.6.2002, passed by the Additional Sessions Judge (FTC-4),

16

Firozabad in Sessions Trial No. 157 of 1997, State Vs. Rakesh and

others; whereby the appellant Suresh has been convicted under

section 302 IPC in Case Crime No.509/1995, Police Station

Shikohabad, District Firozabad and sentenced to rigorous life

imprisonment alongwith fine of Rs. 1000/- and on failure to pay the

fine to undergo six months additional imprisonment, is set aside.

41.The accused appellant Suresh since is already on bail, his bail

bond and sureties shall stand discharged and he shall be set at

liberty, unless he is wanted in any other case subject to compliance

of Section 437A Cr.P.C.

42.We also record our appreciation for the pro bono services

rendered by Sri Saghir Ahmad, learned Senior Counsel, who has

appeared as Amicus Curiae for the appellant. Sri Raghib Ali,

Advocate, who has assisted the senior counsel shall however be

entitled to his fee from the High Court Legal Service Authority.

Order Date:- 20.10.2022

Ranjeet Sahu

(Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)