1

Reserved

AFR

Criminal Appeal No. 4702 of 2007

Vijay Narayan Misra …….....…………………………Appellant

Versus

State of U.P……………………….………………………..Respondent

Connected with

Criminal appeal No. 6109 of 2007

Shobh Nath and Others………....………………….Appellants.

Versus

State of U.P……………………...…………………..Respondent

Hon’ble Vinod Prasad J.

Hon’ble Surendra Singh J.

(Delivered By Hon’ble Vinod Prasad J.)

These two connected appeals are directed against the

impugned judgement and order dated 18.7.2007 passed by

Additional Sessions Judge, FTC 1, District Bhadoi Gyanpur

(Now Sant Ravi Das Nagar) recorded in S.T.No. 416 of 1998,

State versus Shobh Nath and others, by which learned trial

Judge has convicted all the four appellants herein namely

Vijay Narayan Misra, Shobh Nath, Ram Chandra, and Kailash

for committing offences u/s 302/149, 147,148,

Neutral Citation No. - 2013:AHC:107558-DB

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323/149,324/149 I.P.C. and has sentenced them for life

imprisonment with Rs 5000/= fine, 6months RI, 1 year RI,

6months RI, and 1 year RI respectively for all the charges

with further direction that in the event of default of payment

of fine each one of the appellants shall undergo 6 months

further RI and all the implanted sentences of them shall run

concurrently.

Succinctly narrating the prosecution version, as it

emerges from the FIR, Ext. Ka-1 and depositions of fact

witnesses during the trial, both the factions involved in the

incident are the residents of village Kankapur, P.S. Bhadoi

district Bhadoi. Rajmani, deceased in the incident was the

father of the Hub Narain (PW1/informant) and Yagya Narain

(PW2). They have a different genealogy than rest of the

persons involved in the incident, who all are the descendants

of a common ancestor Mohan. Disclosed pedigree indicates

that Mohan had three sons Ram Sumer, Gajadhar and

Kamlesh. Ram Sumer also had three sons Kalika, Shiv Nayak

and Shiv Bachcha. Rajendra Prasad (one of the injured in

the incident from the informant's faction) is the son of Shiv

Nayak. Shiv Bachcha had two sons Sarvajeet and Indrajeet.

Since Indrajeet was issueless therefore his estate delved

upon Sarvajeet who had sold his ancestral house to

Rajendra Prasad aforesaid. This was one of the motives for

the incident. Gajadhar had two sons Ram Mati and Ram

Nihor. Shobh Nath (appellant) and Amar Nath are the sons

of Ram Mati whereas Chandra Bali is the son of Ram Nihor.

Vijay Narayan (appellant) is the son of Chandra Bali who

himself was an accused in the incident but during trial had

died. Kamlesh, nephew of Shobh Nath and Chandra Bali

accused had a son Dev Raj. Appellant Ram Chandra is the

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son of Dev Raj and appellant Kailash is the son of appellant

Ram Chandra and grandson of Dev Raj. So much is for the

relationships of the persons involved in the appeals.

As mentioned above Sarvajeet s/o Shiva Bachcha had

inherited ancestral property of his sibling brother Indrajeet

who had died intestate. Sarvajeet aforesaid sold his

residential house to Rajendra Prasad (injured from the

prosecution side) which cropped up a dispute between

Rajendra Prasad and appellants from rival sides as in the

sold house Ram Sumer (grandfather of Rajendra) Gajadhar

(grandfather of Shobh Nath and Chandra Bali and great

grandfather of Vijay Narayan) and Kalika (uncle of Rajendra)

each had 1/3 share. Grove No. 163 and plot no. 162 were

also bone of contentions between the rival sides. Though it

is not very evident but it seems that concerning plot no. 162

an oral family settlement was arrived at between both the

sides but the same was never documented.

Regarding topography, in village Kankapur, south of the

house of Rajendra Prasad is a passage and further south of

the passage lies house and the disputed purchased open

land of Rajendra Prasad. On the incident date 11.4.98 at 1

P.M. Rajendra Prasad was stacking his pigeon pie/ yellow

lentil (Arahar) shrubs in the open space purchased from

Sarvajeet and because of that firstly a verbal tirade ensued

between Rajendra Prasad and the appellants which soon

transformed into an affray and battery, in which both the

sides started assaulting the other with lathi(clubs),

dandas(sticks) and spears(bhala). At that time informant

/PW1 Hub Narayan and his father Rajmani(deceased) were

at their machine. They after hearing the commotion and

assault rushed to the assault scene to intervene and pacify

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both the sides and subside the quarrel but then, it is alleged,

that all the five accused, the appellants herein, and dead

accused Chandra Bali instigated to settle the scores with the

informant and the deceased as they were unwanted

interveners in the fight and immediately thereafter appellant

Shobh Nath assaulted Raj Mani (deceased) on his head with

spear (ballam) and rest of the appellants assaulted him with

lathi & danda. In the incident informant Hub Narayan (PW1)

Rajmani (deceased), Rajendra Prasad, Yagya Narayan

(PW2), and Shyamdhar had sustained grievous injuries.

After making assault as aforesaid accused escaped from the

incident scene. Arranging a jeep all the injured were taken

to the district hospital at Bhadoi, but en-route Rajmani lost

his life and no sooner arrival of the jeep in the hospital he

was pronounced dead by the doctor on duty.

Informant Hub Narayan, PW1 got the incident FIR, Ext.

Ka-1, scribed through injured Rajendra and after being read

over the same and after verifying it’s contents he signed on

it and thereafter carried it to the police station Bhadoi were

he lodged it.

Head Moharrir Jiut Prasad,PW4 registered the crime at

4.45 P.M.by preparing Chik FIR No.92 /98, Ext. ka-3, vide

crime number 111/98 u/s 147,148,149, 323,324,302 I.P.C.

and Constable Moharrir 113 Bhupendra Nath Shukla PW3

prepared the crime registration GD No. 25 vide Ext. Ka-2.

Investigation into the crime was set out by SSI Sarvar

Khan, PW5 who after copying chik FIR and GD entry came to

Bhadoi hospital where under his instructions got the inquest

on the cadaver of the deceased performed through SI R.D.

Varma. Inquest memo is Ext. Ka-4 and other relevant

papers prepared simultaneously like photo lash , chalan

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lash, letters to RI and to CMO, all are Exts. Ka-5 to Ka-8.

Completing inquest proceedings corpse of the deceased was

sealed and was handed over to constables Shashikant Singh

and Bhupendra Singh to be carried to the mortuary for

autopsy examination. Accused Chandra Bali, Shobh Nath

and Ram Chandra were arrested same day and their

statements were recorded. Following day(12.4.98) I.O.

penned down statement of Rajendra Prasad and at his

pointing out conducted spot inspection and prepared site

plan Ext. Ka-9. Blood stained earth and plain earth, broken

piece of spear were seized from the spot and were sealed

separately and it’s recovery memo, Ext. Ka-10, and seal

impressions were prepared. Other two accused, Kailash Nath

and Vijay Narayan had surrendered in the court. I.O.

thereafter observed other investigatory formalities, recorded

the statements of witnesses and accused on 12.5.98 and

the same day, charge sheeted all the five accused u/s

147,148 149,323,302 I.P.C. which is Ext. ka-11, vide memo

no.7A. Seized broken piece of spear is material Ext. 1, and

soils are Ext. 2 &3.

Dr. R.D. Diwedi, P.W.6 conducted post mortem

examination on the cadaver of the deceased and had

prepared his post mortem examination report Ext. Ka-12.

According to the doctor deceased was 65 years of age

having an average built body and rigor mortis had passed off

from the entire corpse but decomposition had not started.

On internal examination skull bones were cut and brain was

soft. Semi digested food material was present in the

stomach, small intestines had pasty material and large

intestines had faeces. 1 to 2 days had lapsed since death

and hemorrhage and shock due to sustained injuries were

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the cause of death. Following ante mortem injuries were

detected on the cadaver of the deceased:-

(1) Lacerated wound 1c.m.x1c.m.xskin deep in size on

the left of the face 0.5 cm below the outer angel of chin.

(2) 1c.m.x1c.m. in size on the left side of the face

chest below the injury no.1

(3) Incise wound 15 c.m.x1.5 cm x deep up to cranial

cavity on the right side of the skull 7 cm above the upper

head of right ear pinna.

(4) P.M. contusion 2 cm x 2 cm interior the upper

surface of the left shoulder.

(5) P.M. abrasion 2c.m.x 2 cm interior medial side of

the right lower leg 3 cm proximal right medial malleus.

Injuries No. 1&2 were the result of assault by blunt objects

whereas injury no. 3 was the outcome of assault by some

wide sharp edged weapon like ballam etc.

All the injured were examined by Dr. A.K. Singh, PW7

on 11.4.98 at 3.50 P.M. (Shyam Dhar Misra), 4.05 P.M.

(Hublal Misra), 4.20 P.M.(Rajendra Prasad) and 4.30 P.M.

(Jaynarayan) vide their medical examination reports Exts.

Ka-13, 14, 15 & 16. These injured had sustained following

injuries on their persons:-

Ext. ka-13

Injuries of Shyamdhar Misra:- (1) Abrasion 2-1/2 cm X

1 cm on left the side face 1-1/2 cm lateral to the lateral

carnal to the left eye.

(2) Contusion 8 cm x 1-1/2 cm left side angel of left

mandible lateral traversaly colour reddish.

(3) Abrasion 1c.m.x 1c.m. on the top of left shoulder.

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(4) Contusion 7 cm x 2 cm outer reddish side of left forearm

3 cm above left wrist colour reddish duration all injuries

fresh caused by blunt object. Nature all injuries are simple.

Ext. Ka-14:-

Injuries Of Hublal Misra:-

(1) Lacerated wound 1- ½ cm x ½ cm muscle deep on the

left side forehead 10 cm below lateral end of left eyebrow.

(2) Traumatic swelling 4 cm x ½ cm x all around the left

middle finger----------kept U-O. Advised X-ray left middle

finger.

(3) Traumatic swelling 1-1/2c.m. X 2 cm over the proximal

I.P. Joint.

(4) Injury no.1 from ---------injury no.2 could not be

ascertained caused by blunt object injury no.1 fresh injury

nos.2 and 3 could not be ascertained caused by blunt object,

nature injury nos.1 and 3 simple injury no.2 kept U-O

advised x-ray.

Ext. ka-15:-

Injuries of Rajendra Prasad:-

(1) Lacerated wound 2-1/2 c.m.x1/4 cm x muscle deep x

right side scalp 10 cm above right eyebrow.

(2) lacerated wound 3 cm x ½ cm x ½ cm x bone deep on

the right side forehead above right eyebrow situated

vertically.

(3) lacerated 2c.m.x ¼ cm x muscle deep on the left side

scalp 7 cm above left ear.

(4) lacerated wound 2 c.m.x1/2c.m.x muscle deep 7c.m.

Below left eyebrow.

(5) Contusion 15 cm x 2-1/2 cm on the right side back on

scapula region colour reddish.

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(6) Contusion 5 cm x 2 cm on the dorsum of left hand in

lower half kept U-O advised X-ray. Left hand right and left

colour reddish, duration all injuries are fresh caused by blunt

object. Injury no.6 kept observation. Injury nos.1 to 5 are

simple.

Ext.ka-16:-

Injuries of Jayanarayan :-

(1) Lacerated wound 2-1/2 cm x ½ cm x muscle deep on left

side scalp 9 cm above left ear.

(2) C-O pain in the middle finger. No-------of external injury.

(3) Complaints of pains left side -----scapular region. No

-----------of external injury.

(4) C-O pains of left thigh on left thigh of lateral aspect.

(5) N/O of external injury seen.

Duration injury no.1 fresh injury nos.2 and 3 could not

be ascertained caused by blunt object. All injuries are

simple.

According to the doctor these injuries could have been

inflicted at or about the time of the incident by blunt objects.

On the strength of charge sheet Ext. Ka-11 court

proceedings against the charge sheeted accused commenced

on 7.7.98 by registration of case No. 603 of 98, State versus

Chandra Bali and others in the committal court of CJM,

Bhadoi in which all the accused were summoned to stand

trial for the charge sheeted offences. Finding the disclosed

offence of murder exclusively triable by Sessions Court, CJM

committed the case to the court of Sessions vide committal

order dated 1.12.98 and in the Sessions Court it was

registered as S.T.No. 416 of 98, State versus Chandra Bali

and 4 others. It seems that after committal of case but

before the charge could be framed accused Chandra Bali

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expired as framed charge page does not contain his

signature.

Additional Sessions Judge, court No.1 Bhadoi charged

surviving four accused Shobh Nath, Ram Chandra, Vijay

Narayan(nath) and kailash Nath, with offences u/s 147,148,

323/149,302/149,324/149 on 29.8.2001. Since all the four

accused abjured those charges after it being read over and

explained to them hence to establish their guilt Sessions

trial procedure was resorted to by the learned trial Judge.

During the trial prosecution examined in all seven of it’s

witnesses, two of whom informant Hub Narayan (PW1) and

Jag Narayan (PW2)were fact witnesses. Rest of the formal

witnesses included Head Moharrirs, I.O. and the doctors as

mentioned above.

In their statements under section 313 Cr.P.C, the

accused-appellants denied the incriminating circumstances

appearing against them and stated that the witnesses have

given a mendacious version. Appellant Shobh Nath further

stated that he had seisin over the grove and plot nos. 162

and 111. Rajmani (deceased), Hub Narayan (informant/

PW1), Jag Narayan (P.W.2), Gulab Dhar, Shyam Dhar and

Guddu armed with spear, chopar, lathi and danda illegally

attempted to grab the said plots. Jag Narayan, assaulted

Shobh Nath with gadasa but Shobh Nath managed to escape

but the hurled blow caused injury to Rajmani on his head in

the melee. The miscreants caused injuries to Shobh Nath,

Chandra Bali, Kailash and Ram Chandra. Because of

sustained injury Chandra Bali expired after few days. Before

the incident Shobh Nath had testified against

Rajmani(deceased) and because of the aforesaid reasons

prosecution side had assaulted the appellants and others.

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Shobh Nath further stated that cross case is also pending

against informant's side. Appellant accused Kailash also

stated that adjacent to the place of the incident he had a

grove land. Hub Narayan had assaulted him. His right leg

had been fractured in 1994 and since then he is

handicapped. Thus, it is perceptible that through statements

of Shobh Nath and Kailash, the appellants have set up a

cross version respecting which a cross case was also

pending against the informant, deceased, P.W. 2 and others

in the same court.

Learned trial judge after appreciating oral and

documentary evidences found guilt of the accused

established beyond doubt and consequently convicted and

sentenced them as above and hence this appeal by the

convicted accused challenging the aforesaid impugned

judgement and order dated 18.7.2007.

In the background of the aforesaid facts, we have

heard Sri S.P.Giri learned counsel for the appellants and Sri

Sangam Lal Kesarvani, learned AGA for the respondent State

and have ourselves perused the trial court record.

Castigating and criticizing the impugned judgment,

appellants' counsel submitted that none of the prosecution

witnesses are reliable and they have narrated a false story.

In fact, it was the informant and the deceased and their

associates who were the aggressors to grab the disputed

property and the grove belonging to the appellants and it

were they who had started assaulting the appellants side

and in exercise of right of private defence, the injuries were

caused to the informant's side. Learned counsel submitted

that no explanation of the injuries sustained from the

appellants' side has been offered by the prosecution. Perusal

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of medical reports from the appellants' side duly proved as

Exhibit Kha 1 to Kha 4 indicates that the appellants side had

also sustained serious injuries including lacerated wounds

and, therefore, it was incumbent upon the prosecution to

explain those injuries. Deposition of the doctor P.W. 7

unerringly establishes that the injuries sustained by the

appellants could have been caused to them at or about the

time of the incident and, therefore, the prosecution was

under obligation to explain those injuries. Rajendra Prasad,

star prosecution witness with whom the incident had started

was intentionally withheld by the prosecution ostensibly for

the motives to tell tale a story against the appellants. The

two witnesses examined during the trial are the real

brothers both beings sons of the deceased and they have

narrated a concocted story. Chandra Bali, one of the person

from the side of the appellants later on died due to

sustained injuries in the incident and, therefore, prosecution

witnesses are not wholly reliable. It is further submitted that

there was no unlawful assembly and conviction of all the

appellants for the charge under section 147/148 IPC and for

other offences with the aid of section 149 I.P.C. is wholly

unsustainable. Those persons, who were armed with blunt

objects could not have been convicted under section 148 IPC

and that accused, who had wielded the ballam (spear) could

not have been convicted under section 147 urged appellants'

counsel. It was further submitted that the depositions of the

interested, related, partisan witnesses, who were eager to

nail-in the appellants being accused in the cross version

could not have been relied upon by the learned trial court.

Learned counsel further urged that the depositions of both

the fact witnesses P.W.1 and P.W.2 do not inspire any

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confidence, as they had tried to suppress the injuries

sustained by the accused appellants in the same incident,

which were neither insignificant nor manufactured and,

therefore, they had tried to suppress the genesis of the

incident or at least they are not telling the whole truth. In

either case it is hazardous to place any reliance on their

testimonies and dub them as wholly truthful witness.

Learned counsel further urged that the grove, which was the

bone of discord was also owned by the appellant side and

therefore, there was a genuine exercise of right of private

defence by the appellants. Some of the findings recorded by

the learned trial Judge is contrary to the weight of evidences

on record and at places, learned trial Judge has misread the

evidences and has convicted the appellants without

dispassionately examining the record and therefore,

impugned judgment is unsustainable. For the aforesaid

reasons, it was submitted by learned counsel for the

appellants that the appeal be allowed and conviction and

sentence recorded through the impugned judgment be set

aside and appellants be acquitted of the charges leveled

against them.

Learned AGA arguing to the contrary made all efforts to

countenance the impugned judgment and contended that it

were the appellants, who had murdered the deceased and

therefore, their conviction be affirmed.

We have bestowed our thoughts to the rival

contentions. Since both the sides have stated their own

versions, therefore to unravel the truth, it is apt to scan

testimonies of witnesses. So far as relationships and

pedigree mentioned herein above are concerned, there is no

dispute that the above to referred genealogy is correct. No

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serious attempt was made to contradict it and hence the

relationships between the rival sides slated in preceding

paragraph has to be accepted as correct, the residue being

that both the sides had a common ancestor except the

informant, the deceased and PW2, who were father and sons

and sibling brothers.

Regarding the topography both the fact witnesses were

cross examined searchingly wherein they have disclosed that

the openings of the house of Chandra Bali are towards east

and north both. He has got an open place outside northern

door. There is no way and chak road west to the house of

Chandra Bali. The road is towards south of the house of

Rajendra. The aforesaid passage comes from the west and

then bends towards north and thereafter bends towards

east. House of Rajendra is south of the house of Chandra

Bali. The afore mentioned common pathway is narrow and

only two wheelers can ply on it. The Yadav locality is

towards north of the house of Chandra Bali and from the

said locality house of Chandra Bali is visible. East and west

to the Yadav’s locality is the locality of scheduled castes

people. On the western sides of the passage lies the houses

of Yadav community and seven and eight houses of

scheduled castes community. It was further stated that

Shobhnath and Chandra Bali resided in the same house.

P.W.1 further stated that west to the house of Rajendra

Prasad is the common grove. It was further stated that

south of the house of Rajendra Prasad is the disputed grove.

Vetting and summating their evidences further it

becomes more than evident that both the fact witnesses are

unreliable, incredible and untrustworthy. They both had

testified a mendacious story with complete suppression of

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real genesis of the incident and injuries caused to the

accused side. As stated above the accused also has a cross

version. Through the deposition of head mohrir Jiut Prasad

P.W.4, they have proved their chik F.I.R., Ext. Kha 1,

registered as cross case being crime no.111A of 1998, u/s

147, 148, 149, 323 and 366 IPC lodged by informant Rakesh

Kumar Mishra s/o Amar Nath Mishra. Accused arraigned in

that cross FIR were Rajmani (deceased), Hub Narayan,

(informant), Gulab Dhar and Shyam Dhar. The said FIR was

registered on 11.4.1998 at 6.30 p.m. From Dr. A.K. Singh,

P.W.7, the appellants have proved the injuries of Kailash,

Chandra Bali, Shobh Nath and Ram Chandra as Exhibits Kha

1 to Kha 4.According to the doctor these injuries could have

been inflicted at or about the date and time of the incident.

The injury reports from the side of the appellants Exhibit

Kha 1 to Kha 4 are reproduced herein below:-

Exhibit Kha1

Injuries of Kailash Mani Mishra, aged about

25 years, son of Ram Chandra Mishra R/o

Kanakpur P.S. Bhadohi District Sant Ravi Das

Nagar examined on 11/4/98 at 3.20 p.m.

Injuries: 1) Lacerated wound 6 cm. X ½ cm.

Lt. scalp 8 cm above Lt. ear.

2) Abrasion 7 cm. X ¼ cm. on the anterior

aspect of it arm 2 cm above Lt.

Duration fresh, Caused by blunt object,Nature

all injuries are simple.

Exhibit Kha2

Examined Chandrabali Mishra aged about 60

years, Resident of village Kanakpur P.S.

Bhadohi, District Sant Ravi Das Nagar on

11.4.98 at 3.00 p.m.

Injuries :

1) Lacerated wound 3 cm. X ½ cm. X Bone

deep on Lt. side scalp 7 ½ cm above Lt. eye

brow.

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2) Lacerated wound 4 cm. X ½ cm. X Bone

deep on the middle of scalp 7 cm. Above the

bridge of Nose.3) Abraded contusion 7 cmx

1 ½ cm border of Rt. Forearm just above

Rt. wrist with traumatic swelling 7 cm.

Kept U.O. adv. for X-Ray Rt. forearm and

wrist-A.P.- Lat. Colour reddish.

4) Lacerated wound ½ cm. X ¼ cm at the

nail bed with traumatic swelling all around of

Rt. middle finger.

Duration All injuries are fresh,Caused by blunt

object, nature Injury No.3 is kept U.O.Injury

No.1,2 and 4 are simple.

Exhibit Kha3

Examined Shobh Nath Mishra aged about 60

years R/o Village Kanakpur P.S. Bhadohi

District Sant Ravi Das Nagar.

Injuries: 1) Lacerated wound 6 cm. X Bone

deep on Lt. side scalp Lt. ear.

2) Contusion 10 cm. X ½ cm. On the

dorsum of Lt. forearm and elbow. Colour

reddish.

3) Lacerated wound 1 ½ cm. X 0.2 cm. X

muscle deep on Rt. side upper lip.

4) Lacerated wound 3 cm. X ½ cm. Muscle

deep over aspect of Lt. middle Kept U.O.

5) Traumatic swelling 9 cm. X 7 cm. Over

Lt. thumb.

Duration Injury (1) (2) (3) (4) are fresh,Injury

No.5 could not ascertained, Caused by

blunt object, Nature Injury No.1,2 and 3

and (5) are simple injury No.4 kept U.O.

Exhibit Kha 4

Examined Ram Chander Mishra aged about

58 years R/o Village Kanakpur P.S. Bhadohi

District Sant Ravidas Nagar on 11.4.98 at 3.10

p.m.

Injuries : 1) Lacerated wound 4 cm. X ½ cm

x muscle deep on Lt. side scab Lt. eye brow.

2) Abraded contusion 5 cm. X 3 cm. Mid line

of scalp and anterior to the colour reddish.

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3) Contusion 30 cm. X 3 ½ cm. 3 cm below

colour reddish

4) Contusion 8 cm. X 6 cm. On Lt. side back

…

5) Abraded contusion 8 cm. X 2 ½ cm on

the scapular region. Anterior to injury No.4

colour reddish.

6) Contusion 4 cm. X 1 ½ cm. On lateral

aspect of Rt. elbow colour reddish.

7) Contusion 5 cm. X 1 ½ cm. In dorsum of

Rt. colour reddish.

8) Lacerated wound 1 cm. X 1 ½ cm. X

scalp deep at the..

Duration All Injuries are fresh,Caused by blunt

object,Nature All injuries are simple.”

A glimpse of injuries sustained by four persons from

the appellant’s side leaves no room for doubt that some of

them which are lacerated wounds on the head were inflicted

on the vital part of the body (head) which could not have

been self- inflicted or self-suffered. They were neither

insignificant nor trivial. Not one but four persons from the

appellant’s side had sustained those injuries. What is most

significant is that prosecution side has not challenged

existence, nature and duration of those injuries. Both the

fact witnesses have completely feigned ignorance about all

these injuries and have concealed it. Thus what transpires is

that both of them are tutored witnesses who have deposed a

tutored mugged up story in a parrot like manner. What is

still most significant of immense importance is that neither

of them had divulged how the incident started and who were

the aggressors. They both claimed to have arrived at the

assault scene after hearing the commotion and assault by

each faction and therefore the genesis of the incident lies in

mystery and we are left to grope into that. In such a view

when informant and the deceased intervened into the

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incident siding with Rajendra Prasad, the appellants who

according to the defence case were attacked, had a genuine

apprehension of sustaining grievous injuries and hence if

they caused injuries to the prosecution side they cannot be

faulted with. Reiterating of the FIR version by both P.W. 1

and P.W. 2 too is a fib as in their FIR also they have

concealed the factum of inflicting injuries on the appellants

side. Thus the painted picture which emerges is that the

depositions of both the fact witnesses had an air of

mendacity creating a serious doubt on it’s authenticity. This

makes a serious inroad in accepting prosecution allegations

as a true story inspiring confidence. It is recollected here

that both, informant PW1 and Jayanarayan P.W.2 have

deposed without any ambiguity that they had not assaulted

the appellant’s side nor they had seen any injury on their

persons, while admitting the fact that they were being

prosecuted in a cross version, State Vs. Hub Narayan and

others, for committing crimes respecting the same incident

in the same court initiated by the appellant side. Thus what

is established on record is that prosecution has suppressed

accused injuries without offering any explanation for it. In

such fact scenario the inevitable conclusion which can be

drawn is that none of two fact witnesses are worthy of being

relied upon. Their depositions are untruthful concealed in

suppression of facts. Hence we find it difficult to place any

reliance on them moreso when perusal of the injury reports

Ext. Kha 1 to 4 indicates that appellant Kailash had

sustained a lacerated wound of 6 cm x 1-1/2 cm bone deep

on the left side of the scalp, 8 cm above left ear. Appellant

Chandrabali had also sustained three lacerated wounds, two

of which were on scalp 3 cm x ½ cm x bone deep and 4 cm

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x ½ cm x bone deep. Both the lacerated wounds were 7 cm

above the bridge of nose and left eyebrow. He had also

sustained a third lacerated wound 4 cm x ¼ cm at the right

middle finger. So also Shobnath, appellant had sustained a

lacerated wound 6 cm x ½ cm x bone deep on the left side

scalp 9 cm above left ear. He had another lacerated wound

on the left side upper lip and a third lacerated wound muscle

deep on the phalang of left middle finger. Appellant

Ramchandra had sustained a lacerated wound 4 cm x ½ cm

on the scalp with four contusions and others injuries. In all,

from the side of the appellants, four accused had sustained

19 injuries. At the cost of repetition we note that it is

categorical depositions of both the fact witnesses P.W.1 at

internal page 2 of his testimony and P.W.2 at page 10 of his

depositions that they had not assaulted appellants side nor

had seen their injuries. P.W.1had stated “ we have not

assaulted the accused nor seen the injury of any of the

accused. A criminal case State Vs. Hoob Narayan is pending

against us in this court regarding this incident”. So also

P.W.2 has deposed. The Public Prosecutor had not cross-

examined the doctor on this aspect of the matter and to get

it elicited from him that the injuries sustained by the

appellant accused could have been self- suffered,

manufactured, insignificant and trivial. In such a view, non-

explanation of injuries of the accused by the two fact

witnesses creates an irreparable inroad and dent in the

prosecution story and shows that they are not telling the

whole truth. In either case it is wholly unsafe to place any

reliance on their testimonies. Learned trial Judge while

dealing with the said aspect of the matter committed a

manifest error as he himself has opined that in both the

19

cross versions, the prosecution has suppressed the injuries

of the other side yet he acquitted one side and convicted the

appellants. Such a scrutiny and opinion by the learned trial

Judge is ex-facie illegal. The opinion by the learned trial

Judge that the accused have not pleaded exercise of right of

private defence was not relevant as, the prosecution had

failed to satisfactorily explained the injuries sustained by the

accused side. Thus, the reasonings of the learned trial Judge

are faulty. In our view we benefittigly derive support from

following apex court decisions:-

In Lakshmi Singh and others etc. vs. State of

Bihar:AIR 1976 SC 2263 it has been held by the apex

court as under:-

“According to the Doctor injury No.1 was grievous in

nature as it resulted in compound fracture of the fibula

bone. The other two injuries were also serious injuries which

had been inflicted by a sharp-cutting weapon. Having regard

to the circumstances of the case there can be no doubt that

Dasrath Singh must have received these injuries in the

course of the assault, because it has not been suggested or

contended that the injuries could be self-inflicted nor it is

believable. In these circumstances, therefore, it was the

bounded duty of the prosecution to give a reasonable

explanation for the injuries sustained by the accused

Dasrath Singh in the course of the occurrence. Not only the

prosecution has given no explanation, but some of the

witnesses have made a clear statement that they did not

see any injuries on the person of the accused. Indeed it the

eye-witnesses could have given such graphic details

regarding the assault on the two deceased and Dasain Singh

and yet they deliberately suppressed the injuries on the

20

person of the accused, this is a most importance

circumstance to discredit the entire prosecution case. It is

well settled that fouler the crime, higher the proof, and

hence in a murder case where one of the accused is proved

to have sustained injuries in the course of the same

occurrence, the non-explanation of such injuries by the

prosecution is a manifest defect in the prosecution case and

shows that the origin and genesis of the occurrence had

been deliberately suppressed which leads to the irresistible

conclusion that the prosecution has not come out with a true

version of the occurrence. This matter was argued before

the High Court and we are constrained to observe that the

learned Judges without appreciating the ratio of this Court in

Mohar Rai v. State of Bihar, (1968) 3 SCR 525 = (AIR 1968

SC 1281) tried to brush it aside on most untenable grounds.

The question whether the Investigating Officer was informed

about the injuries is wholly irrelevant to the issue,

particularly when the very Doctor who examined one of the

deceased and the prosecution witnesses is the person who

examined the appellant Dasarath Singh also. In the case

referred to above, this Court clearly observed as follows :

"The trial Court as well as the High Court wholly ignored the

significance of the injuries found on the appellants. Mohar

Rai had sustained as many as 13 injuries and Bharath Rai

14. We get it from the evidence of P.W.15 that he noticed

injuries on the person of Mohar Rai when he was produced

before him immediately after the occurrence. Therefore the

version of the appellants that they sustained injuries at the

time of the occurrence is highly probabilised. Under these

circumstances the prosecution had a duty to explain those

injuries ......... In our judgement the failure of the

21

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 probabilities the plea taken by the appellants."

This Court clearly pointed out that 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 present case has not correctly applied the principles

laid down by this Court in the decision referred to above. In

some of the recent cases, the same principle was laid down.

In Puran Singh v. The State of Punjab, Criminal Appeal No.

266 of 1971 decided on April 25, 1975 = (reported in AIR

1975 SC 1674) which was also a murder case, this Court,

while following an earlier case, observed as follows :

"In State of Gujarat v. Bai Fatima (Criminal Appeal No. 67 of

1971 decided on March 19, 1975) = (reported in AIR 1975

SC 1478) one of us (Untwalia, J.,) speaking for the Court,

observed as follows :

"In a situation like this when the prosecution fails to explain

the injuries on the person of an accused depending on the

facts of each case, any of the three results may follow :

(1) That the accused had inflicted the injuries on the

members of the prosecution party in exercise of the right of

self defence.

(2) It makes the prosecution version of the occurrence

doubtful and the charge against the accused cannot be held

to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

The facts of the present case clearly fall within the four

corners of either of the first two principles laid down by this

22

judgement. In the instant case, either the accused were

fully justified in causing the death of the deceased and were

protected by the right of private defence or that if the

prosecution does not explain the injuries on the person of

the deceased the entire prosecution case is doubtful and the

genesis of the occurrence is shrouded in deep mystery,

which is sufficient to demolish the entire prosecution case."

It seems to us 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 it is rendered

probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain 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.”

Opining thus apex court in that decision has acquitted the

accused by perorating thus:-

“17. Thus in view of the inherent improbabilities, the

serious omissions and infirmities, the interested or inimical

23

nature of the evidence and other circumstances pointed out

by us, we are clearly of the opinion that the prosecution has

miserably failed to prove the case against the appellants

beyond reasonable doubt. Normally this Court does not

interfere in an appeal by special leave with concurrent

finding of fact, but this is one of these cases where the

judgement of the High Court is manifestly perverse and

where the High Court has not considered important

circumstances which completely demolish the prosecution

case. In fact the High Court has hardly made any real

attempt to analyse or discuss the evidence and has merely

affirmed the finding of the Sessions Judge by narrating the

evidence relied upon by it. We have already pointed out that

on one of the most important points arising in a criminal

trail, namely, the non-explanation of the injuries on the

person of the accused by the prosecution, the High Court

has not only committed an error of fact but an error of law

by showing a lack of proper appreciation of the principles

decided by this Court.”

In State of M.P. vs Mishrilal (dead) and others:AIR

2003 SC 4089 it has been observed by the apex court as

under:-

“NON-EXPLANATION OF THE INJURIES SUSTAINED

BY THE ACCUSED

17.The last and which appears to be fatal to the prosecution

case is non-explanation of the injuries sustained by the

accused. As already said accused Mishri lal received as

many as five injuries, which were dangerous to life.

Madusudan and Jamuna prasad received simple injuries. In

Ex. P-1 as well as in the entire deposition of PWs, the

24

prosecution has not explained the injuries sustained by the

accused. In the background of the defence, as set up by the

accused, it was incumbent on the part of the prosecution, to

have explained the injuries sustained by the accused. The

defence version is that on being retreated the bullock-cart of

Babulal, the complainant party - Maharaj Singh, Gopal,

Mathura Lal, Lakhan, Jagdish, Mulia, Kailash and Karan

Singh came with lathis and farsa. Mathura Lal hit Mishrilal's

head with the farsa and Babulal, Maharaj Singh and Karan

Singh beat Mishrilal with lathis. Madhusudan ran to save his

father Mishrilal and they also beat him. When Jamuna

prasad came to save, he was also beaten up and on that

Jamuna prasad ran towards the house and made two fires in

the air to save his father. It is the case of defence that the

bullet, which struck Bhavar singh, came from towards the

house of Babulal. In the face of defence version, which

competes in probability with that of the prosecution case, it

was mandatory on the part of the prosecution to have

explained the injuries sustained by the accused and non-

explanation of the injuries is fatal to the prosecution case.

In Lakshmi Singh and others v. State of Bihar, (1976) 4 SCC

394, referring to earlier decisions in Mohar Rai v. State of

Bihar, (1968) 3 SCR 525 : AIR 1968 SC 1281 : 1968 Cri LJ

1479, it was held by this Court:

". . . . . .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. . .

. . . .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

25

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.

The omission on the part of the prosecution to explain 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. . . . .

. . . . .However there may be cases where the non-

explanation of the injuries by the prosecution may not affect

the prosecution case. This principle would obviously apply to

cases where the injuries sustained by the accused are minor

and superficial or where the evidence is so clear and cogent,

so independent and disinterested, so probable, consistent

and creditworthy, that it far outweighs the effect of the

omission on the part of the prosecution to explain the

injuries."

18.In State of Rajasthan v. Madho, AIR 1991 SC 1065 at

page 1067 this Court held as under :

"The fact remains that both the respondents had sustained

serious injuries, Kishna mainly on the skull whereas Madho

on the skull as well as scapular region. If the prosecution

26

witnesses shy away from the reality and do not explain the

injuries caused to the respondents herein it casts a doubt on

the genesis of the prosecution case since the evidence

shows that these injuries were sustained in the course of the

same incident. It gives the impression that the witnesses

are suppressing some part of the incident. The High Court

was, therefore, of the opinion that having regard to the fact

that they have failed to explain the injuries sustained by the

two respondents in the course of the same transaction, the

respondents were entitled to the benefit of the doubt as it

was hazardous to place implicit reliance on the testimony of

the injured PW-2."

19. In Ex. P-1, as already noticed, there is no explanation

about the injuries sustained by the three accused. None of

the prosecution witnesses explained the injuries sustained

by the accused. The injuries sustained by Mishrilal were

dangerous to life. The prosecution witnesses consist of

interested and inimical witnesses. We are, therefore, of the

view that the prosecution has not presented the true version

on most material part of the story. Their evidential value

does not inspire confidence and it cannot be accepted on its

face value and relied upon. It is in these circumstances that

non-explanation of the injuries sustained by the accused

proved fatal to the prosecution case.”

In Raghubir Singh Vs State of Rajasthan and

Others:

(2011)12 SCC 235 it has been held by the apex court as

Under:-

“14. It has firstly to be borne in mind that the injuries on

the accused had not been explained as the prosecution

27

witness did not utter a single word as to how they had been

suffered by them. In this view of the matter, the defence

can legitimately raise a suspicion that the genesis of the

incident was shrouded in mystery and the prosecution had

suppressed a part of the proceeding. It is true, as contended

by Dr. Manish Singhvi, that each and every injury on an

accused is not required to be explained and more

particularly where all the injuries caused to the accused are

simple in nature (as in the present case) and the facts of the

case have to be assessed on the nature of probabilities.

Examining the incident in the light of the above, we find that

the injuries in the present case were required to be

explained as there is a serious dispute as to the possession

of the land in which the incident had happened, more

particularly as Raghuveer Singh himself was uncertain as to

the nature of the possession as per the statements on

record and the Patwari had also warned the complainant

party not to trespass into the land. Undoubtedly, there are a

large number of injured witnesses, some of them grievously

hurt, to support the prosecution case, but in the light of the

finding of the High Court that there was uncertainty about

the possession, this fact by itself cannot preclude the

28

accused from claiming that no case was made out against

them.”

Recently in Mohd. Khalil Chisti vs State Of

Rajasthan: (2013) 2 SCC 541 apex court affirmed the

same view after taking stock of various other

pronouncements in Waman vs State of Maharastra

(2011) 7 SCC 295;Raghubir Singh (Supra);Krishnan vs

State of T.N.(2006)11 SCC 304.

Turning towards instant appeal and applying the ratio

of the above decisions we are of the view that both the

prosecution witnesses are untrustworthy and no reliance can

be placed on their testimonies.

Here at this point we would like to revert back to the

impugned judgement of the trial court which indicates that

the reasonings adopted by the learned trial Judge are faulty

and completely misdirected. Contrary to the well settled

and well established principles of law trial judge has failed to

confer benefit of exercise of right private defence on the

accused appellants for the reason that they have not

specifically pleaded the same. However the decisions are to

the contrary. Nowhere it is required in law that unless

accused specifically pleads or claims exercise of right of

private defence he cannot be conferred with such a right.

29

Unambiguous law is that if from the facts and circumstances

of the case if the accused is able to establish exercise of

right of private defence he has to be conferred the benefit of

the same and no special pleading is required for the same.

Right of self-preservation is too precious and sacrosanct a

right to be denied to the claimant thereof in deserving cases

on the technicalities of pleadings and suggestions and while

evaluating the evidences in such cases the courts should not

construe it narrowly. The opinion by the learned trial judge

that appellants cannot be anointed with that benefit because

they had not claimed or suggested it is a too feeble and

fragile opinion to be countenanced. Non explanation of the

injuries from the appellants side by the prosecution and

complete denial of the same irreparably damages

authenticity of the prosecution version which is liable to be

discarded. Both the witnesses are inimical, partisan,

interested and related. They both are accused in cross

version lodged from the appellate side and hence they

cannot be bracketed as independent and above board

witnesses. Their testimonies are of impeachable and

assailable character and hence it is too hazardous to place

any reliance on them. In fact prosecution has completely left

unchallenged the appellants injuries which was a must for it

30

to explain and since it has failed to offer any explanation for

the same we perorate that they have not disclosed the truth

and have suppressed the real genesis of the incident.

Besides above disquieting feature there are other

factors also which impels us to reject the prosecution case.

Ab initio we take up the FIR. It is the clear case of the

prosecution that after the incident first of all the injured and

the witnesses had gone to the hospital for medical aid in a

jeep and when the doctor declared the father dead that the

informant had gone to the police station leaving the corpse

of the father at the hospital. Informant Pw1 further testified

that only he and Rajendra Prasad had gone to the police

station immediately after the news of demise of the father

was divulged to them. He further deposed that after

reaching the police station, he orally narrated the entire

incident to the head constable, who directed him to get

himself medical aid first and get the bleeding stopped. P.W.1

further deposed that he had informed the head constable

regarding the demise of his father orally. He admitted that

the head constable and the other police personnel at the

police station had even come to the hospital. He further

admitted that in the presence of the constable a medical

prescription was also prepared by the doctor. The informant

31

and other persons stayed in hospital for half or quarter to

one hour during which period the constables remained

present. From these statements and circumstances what is

perceived is that it all introduces an element of concoction

and fabrication of FIR and into the prosecution story with the

aid of police personnel and thereby creates a doubt on the

authenticity of the FIR version.

Moreover it transpires from the impugned judgement

that learned trial court has looked into the evidences of

cross case also to pass the impugned judgement. This

approach by the learned trial Judge is against the settled

principles of procedural law. This is so evident from page 10

of the impugned judgement as the learned trial court had

considered the prosecution version of cross case where

appellants as prosecution witnesses have denied injuries

from the prosecution side in the instant case. Law relating to

the cross cases are very clear. Cross versions/cross cases

have to be tried by the same court one after another and the

judgment be also pronounced simultaneously but the

evidences of one case cannot be read into another. This

aspect of the matter is settled by a catena of Apex Court

decisions. In Mitthulal versus State of M.P.: (1975) 3

SCC 529 it has been held as under:-

“4. It is apparent from a bare reading of the judgment of

the High Court that it suffers from a serious infirmity and it

is impossible to sustain it. The High Court has based its

conclusion not only on the evidence recorded in the case

against the appellants and the four other accused but has

also taken into account the evidence recorded in the cross-

32

case against Ganpat, Rajdhar and others. This is what the

High Court has stated in so many terms in paragraph 7 of

the judgment:

" The two cases Cr. A. No. 188 and Cr. A. No. 202 of 1968

have to be read together and then alone the real position

can be understood. The witnesses in one case are

undoubtedly accused in the other. It is by going through the

evidence in both the cases that we can come to the real

story. The Nandwanshis claim that the fight took place in

the field belonging to them, and, therefore, they had a right

of private defence, whereas the other party similarly claims

that the fight took place in their field and they had a right of

private defence. Curiously enough both claim that the origin

of the trouble is the grazing of the cattle. If we read both

the cases together with the statement of the accused in one

case and the version of the witnesses of the prosecution in

the other along with the statement of the accused and the

version of the prosecution witnesses in the other we can

come to the true story. Independently considered a

particular case, it creates some confusion. If both the cases

are read together there leaves no room for doubt that the

incident happened in the following manner.... After going

through the evidence of both the cases I have come to the

conclusion that the convictions in both the cases are in

order. This was clearly impermissible to the High Court. It is

difficult to comprehend as to how the High Court could

decide the appeal before it by taking into account evidence

recorded in another case, even though it might be what is

loosely called a cross-case. It is elementary that each case

must be decided on the evidence recorded in it and evidence

recorded in another case cannot be taken into account in

33

arriving at the decision. Even in civil cases this cannot be

done unless the parties are agreed that the evidence in one

case may be treated as evidence in the other. Much more so

in criminal cases would this be impermissible. It is doubtful

whether the evidence recorded in one criminal case can be

treated as evidence in the other, even with the consent of

the accused. But here there was clearly no consent of the

appellants to treat the evidence recorded in the cross-case

against Ganpat and Rajdhar as evidence in the case against

them. The High Court was, therefore, clearly in error in

taking into consideration the evidence recorded in the cross-

case against Ganpat and Rajdhar. The High Court ought to

have decided the appeal before it only on the basis of the

evidence recorded in the present case and ought not to have

allowed itself to be influenced by the evidence recorded in

the cross-case against Ganpat and Rajdhar. It is regrettable

that the High Court should have fallen into such an obvious

error. The judgment of the High Court must, therefore, be

set aside and we must proceed to consider whether on the

evidence recorded in the present case - without looking into

the evidence recorded in the other cross-case - the

conviction and sentence recorded against the appellants can

be sustained.”

The above view has been recently reiterated in Mohd.

Khalil Chisti(Supra) vide para 38, wherein it has been held

as under:-

“Mr. Jasbir Singh Malik, learned counsel for the State by relying

on a decision of this Court in Mitthulal V. State of M.P. submitted that

evidence in cross-case cannot be relied upon. It is true that in the

said decision, this Court held that it has not accepted the procedure

followed by the High Court which has based its conclusion not only

34

on the finding recorded in the case against the appellants therein

and the four other accused but also taken into account the evidence

recorded in the cross-case against Ganpat, Rajdhar and others. This

Court held that the course adopted by the High Court was clearly

impermissible. There is no dispute about the said proposition and in

fact in the case on hand, neither the trial court nor the High Court

relied on the evidence led in the cross-case but the same were tried

separately and in fact appeals are still pending before the High Court

against the conviction in the cross-case.”

Another damaging aspect of prosecution allegation

which goes to the root of the matter and makes the

prosecution version suspect is that the incident is alleged to

have started by a verbal onslaught and assault in between

Rajendra Prasad on the one hand and the appellants on the

other. Significant to note is also the fact that Rajendra

Prasad is also the scribe of the FIR Ext ka-1. He however

was not produced in the trial and, therefore, how the

incident started and who were the aggressors have been

clearly suppressed by the prosecution. It is the case of the

prosecution that the informant and the deceased had arrived

amidst the assault and had intervened in the incident from

the side of Rajendra Prasad and, therefore, it is difficult to

rely upon the prosecution story especially when the

appellants characterise them as aggressors. Non

examination of Rajendra Prasad is a significant omission on

the part of the prosecution because in absence of his

testimony we do not know how the incident had started. On

this score also learned trial Judge adopted a weird reasoning

of not multiplying the witnesses instead of considering

viability of accused submissioning and thereby fell in grave

error.

35

Another important aspect of the matter is that the

deceased had sustained a single fatal injury on the head,

which was an incised wound. According to the doctor the

said injury was most probable by a gadasa (chopar) blow. In

the F.I.R. it is not mentioned that the ballam was not used in

a piercing manner however to make the prosecution story

consistent with the medical evidences it was expatiate in the

trial that ballam was used like a lathi. Be that as it may, it

does not indicate any intention to commit murder by forming

of an unlawful assembly by all the six accused persons with

that common object. Otherwise also the number of injuries

sustained by the deceased were only three whereas he was

alleged to have been assaulted by as many as six accused

persons. The injury of the deceased being non-

commensurate with the number of the accused makes it

evident that bereft of common object all the accused

persons did not participate in the assault. Two of the non-

fatal injuries sustained by the deceased were simple in

nature which also is a clear indication that there was no

unlawful assembly with a common object to commit the

murder of the deceased and hence at the worst each

accused could have been made liable for his individual act

and this flaw in the impugned judgment makes recorded

convictions under sections 147, 148, 323/149, 324/149 and

302/149 unsustainable. The core issue which emerges is

that the entire approach adopted by the learned judge was

misdirected and faulty.

It further transpires that conviction of all the appellants

except Shobhnath who had wielded the ballam under section

148 IPC is unsustainable as none of the other accused

persons had any sharp edged cutting weapon in their hands

36

and so also conviction of Shobhnath for the charge under

section 147 I.P.C. is unsustainable because he was armed

with a ballam. Conviction of rest of the appellants except

Shobhnath u/s section 324/149 IPC is also unsustainable

because no other accused person was armed with any sharp

edged weapon and there was no unlawful assembly in

existence to commit such a crime. In such fact scenario each

accused could have made liable for his individual act only.

Since it is not known who were the three accused who had

assaulted the deceased and who three abstained from doing

so, therefore each of the accused could not have been

convicted u/s 302/149 I.P.C. as it is impossible to separate

the grain from the chaff and fathom out the exact truth. In

such a view, the opinion of the learned trial Judge in the

impugned judgment and order cannot be sustained at all.

No independent witnesses has been examined by the

prosecution. The two fact witnesses are the sons of the

deceased. There was no occasion for them and their

deceased father to participate in the incident and assault the

appellants. They had nothing to do with the property in

dispute as they belonged to separate pedigree altogether

than rest of the persons from both the sides. It is noticeable

that in the F.I.R. lodged from the appellants side, informant

P.W.1, P.W.2 and deceased Rajmani have been arraigned as

accused along with Guddu, Shyam Dhar and others as the

aggressors. The said F.I.R. of the cross version has been

duly proved as Exhibit Kha1, which has not been contested

by the prosecution side. Thus, on an overall examination of

facts and circumstances, the out come which can be safely

arrived at is that the prosecution has not been able to

establish the guilt of the appellant beyond all reasonable

37

doubt and has suppressed the real genesis of the incident.

Its witnesses have not deposed real truth and has concealed

very significant aspect of accused injuries, which makes

them untrustworthy witnesses. FIR is imbibed with an

element of concoction and hence looses its authenticity and

corroborative value and consequently for all these reasons

all the accused appellants are entitled to acquittal.

The net result is that both the above appeals are

allowed. Conviction and sentences of appellants namely,

Vijay Narayan Mishra, Shobh Nath, Ram Chandra, and

Kailash recorded through impugned judgment and order

dated 18.07.2007 passed by Additional Sessions Judge, Fast

Track Court No.1, Bhadohi-Gyanpur in S.T.No. 416 of 1998,

State vs. Shobh Nath and others are hereby set aside and all

the appellants are acquitted of the charge framed against

them.

All the appellants are on bail, they need not surrender,

their personal and surety bonds are discharged.

Let the copy of this judgment be certified to the trial

court for it's intimation.

Dt.2.8.2013.

RK/Tamang/-