High Court · 2025

Case :- CRIMINAL APPEAL No. - 280 of 2006 Appellant :- Harish Chandra And 2 Ors. Respondent :- The State Of U.P. Counsel for Appellant :- B.P.Srivastava,B.P.Srivastava,Brij Mohan Sahai,Mohd. Mansoor,Raj Priya Srivastava,Rakesh Kumar Singh,Sudhir Kumar Misra,Vikas Shukla Counsel for Respondent :- Govt.Advocate (With) Case :- CRIMINAL APPEAL No. - 595 of 2006 Appellant :- Kunhai And Another Respondent :- State of U.P. Counsel for Appellant :- Manish Bajpai,Amul Mani Tripathi,Roshan Babu Gupta,Shubham Gupta,Shushil Kr. Sharma Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Shree Prakash Singh,J. (Oral)

1. We have been informed that the appellant, Kunhai S/o Pitambar in connected appeal no. 595 of 2006, has died and the said appeal is already abated, so far as the appellant no. 1 is concerned. The appellant no. 2 in Criminal Appeal No. 595 of 2006 Raju S/o Kunhai is concerned, he was released on remission on 14.11.2024.

2. We have gone through the report of the Chief Judicial Magistrate dated 25.4.2024 informing this Court that the appellant no. 3, Suresh S/o Kunhai Pasi has died on 14.1.2021. The statement of the Sub-Inspector, Salam Ulah Khan of P.S. Malihabad, Lucknow as well as one of the villagers, who is the complainant Gulab S/o Puran has given the statements which are enclosed to such report. The appeal stands abated so far as Suresh S/o Kunhai Pasi is concerned.

3. In so far as the appellant nos. 1 and 2 in Criminal Appeal No. 280 of 2006 are concerned, Sri B.M. Sahai has stated that both the appellants have been granted remission, but on request of the Court Sri B.M. Sahai has gone through the record and he has agreed to argue the appeal on merits.

4. He has argued that in short the prosecution story is that on 24.12.2021 at around 10:30 am, the complainant Gulabu S/o Purai R/o Village Hasmapur P.S.- Malihabad District- Lucknow had lodged the first information report, accused one Kunhai Pasi who was the resident of the same village and was enemical to the complainant because of some land dispute which has been going on for a longtime in the civil court with him. Also, around two and half years ago, the younger brother of Kunhai Pasi, Chhota had been murdered in which the complainant's two brothers namely, Mitthan and Nanhe were accused, but they were however, acquitted on 23.12.1991. Kunhai Pasi could not get over such set back and continued to hold grudge and could not forgive the complainant and his brothers.

5. It was alleged that the complainant's brother Lallu Ram was working in the Secretariat at Lucknow and he used to commute every day from the village to his ofÏce. On 24.12.1991 at around 8:30 am Lallu Ram after having breakfast left on his bicycle for Lucknow alongwith his elder brother Munna. The complainant was also behind them on his cycle as he was going to purchase oil. His two brothers, Lallu Ram and Munna were on one cycle and they were ahead of the complainant. At around 9 O' Clock, when the complainant and his brother reached Kasmandi Kala Road near the Grove of Parchammu Khan, the accused, Kunhai alongwith Raju, Siyaram, Suresh and Harischandra armed with Banka and Katta, suddenly came out of hiding and Kunhai exhorted the others. All the assailants thereafter attacked the complainant's brothers, Lallu Ram and Munna. Munna Lal left his cycle and ran to the East whereas, Lallu Ram left his cycle and ran towards the West. Suresh followed Munna Lal and hit him with his lathi, Kunhai as well as the other four assailants followed Lallu Ram and were able to apprehend him and one Harish Chandra shot Lallu Ram with his country made pistol and as soon as Lallu Ram fell, Harish Chandra caught hold of his legs and Suresh caught hold of his hands and Raju, Kunhai and Siya Ram, then attacked Lallu Ram with Banka on his head and face and he died. The complainant raised a hue and cry and Raghubir Prasad and Prasadi etc, who are of the same village and who were watching the incident from afar, but had not come to help. The assailants ran away towards the North, come forward and when the complainant went near his brother Lallu Ram, he found him dead. Munna Lal had returned from the place he was hit at by Suresh and leaving Munna Lal and other villagers, with the deceased, Lallu Ram the complainant had gone to the police station to file the First Information Report.

6. It has been argued that the investigation was carried out by the then Station House OfÏcer, Malihabad, Sri Banke Bihari Singh who prepared the Site Plan and a panchnama/Inquest Report and sent the body to the mortuary for postmortem and took samples of blood stained soil and plain soil as well as empty cartridge and mufÒer which was found being on the spot. The two cycles as well as the deceased's pair of sandals were also taken and seizure memo was prepared. Harish Chandra was apprehended soon and on his pointing out, the weapon of assault a country made pistol was recovered and sent for forensic examination to the F.S.L. Lucknow alongwith the empty cartridge which was recovered from the place of the investigation, incident. chargesheet was prepared and submitted. On committal, the accused claimed to be not guilty and were tried. completing After

7. It has been argued by the learned Counsel appearing on behalf of the appellants that the trial court has placed reliance upon two witnesses of fact who are both real brothers of the deceased and their testimony could not have been relied upon to convict the accused.

8. We find it appropriate in this regard to refer to a judgement rendered by the Supreme Court in Khema Alias Khem Chandra and others versus state of U.P. 2023 (10) SCC 451, wherein paragraph 12, the Supreme Court observed as under: – "to examine the correctness of these findings, we will first assess the testimony of Om Veer (PW1) and Inder (PW2). Both these witnesses are brothers of the deceased Prakash as such, they would fall in the category of interested witnesses, being related to the deceased. However, their testimonies cannot be discarded on the ground that the witnesses are interested witnesses. The only requirement would be that the evidence of such witnesses is required to be scrutinised with greater care and circumspection." Similarly, in Dahari and others versus State of U.P. 2012 (10) SCC 256, Supreme Court observed in paragraph 11 as follows: – "11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. In case the evidence has a ring of truth to it, is cogent, credible, and trustworthy, it can, and certainly should, be relied upon (vide Himanshu versus State (NCT of Delhi) 2011 (2) SCC 36; Ranjit Singh versus State of M.P. 2011 (4) SCC 336 and Onkar versus State of U.P. 2012 (2) SCC 273)."

9. Having gone through the trial court judgement and the testimony of the two brothers of the deceased, Munna Lal and Gulabo, (P.W.-1), it has come out that P.W.-1 had stated that they were six brothers who lived as a joint family. The accused Kunhai had a younger brother by the name of Chhota who was murdered around two and a half years ago. Gulabo's two brothers, Mithan and Nanhke had been accused of murder of the brother of kunhai but they were acquitted by the trial court on 23.12.1991, i.e. just one day before the incident. Lalloo Ram, being educated and working in the Secretariat used to do pairvi on behalf of his brothers and the accused being annoyed with the acquittal of Mithan and nanhke had attacked Laalu and Munna Lal the very next day in the morning. Kunhai, Raju and Siya Ram had Banka with them Suresh had a lathi and Harish Chandra had a country made pistol.

10. The Trial Court considered the fact that Munna Lal is said to have been hit with the lathi by Suresh and his examination was conducted at the Primary Health Centre Malihabad on 24.12.1991 itself. Dr. A.K. Tyagi who had examined him had proved such report which was filed as Exhibit Ka-20, from the same it was evident that Munna Lal had suffered a contusion 13 cm x 1 cm on his back and had also complained of pain in other parts of his body. Injury was simple in nature, but there was no reason to believe that it may have been caused by the injured witness upon himself on his own. Since Munna Lal was also injured, the trial court has observed that in all likelihood he was present at the time when the incident occurred.

11. This court finds the observations made by the trial court while placing reliance upon testimony of injured witness, Munna Lal, to be in accordance with law settled by the Supreme Court in Brahm Swaroop and another versus State of U.P. 2011 (6) SCC 288; the observations of the Supreme Court in paragraph 28 are as follows: – "28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of the crime and he is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit and injured witness. (vide State of U.P. versus Kishan Chand 2004 (7) SCC 629; Krishan versus State of Haryana, 2006 (12) SCC 459; Dinesh Kumar versus State of Rajasthan, 2008 (8) SCC 270; Jarnail Singh versus State of Punjab 2009 (9) SCC 719, Vishnu versus State of Rajasthan 2009 (10) SCC 477; Anna Reddy Sambasiva Reddy versus State of Andhra Pradesh 2009 (12) SCC 546 and Balraje v State of Maharashtra 2010 (6) SCC 673)"

12. The trial court has also considered the fact that the F.I.R. was lodged the very same day 24.12.1991 in the morning at 10:30, whereas the incident is stated to have occurred at 09:00 am. He has rejected the argument raised by the counsel for the defence that injuries on Munna Lal were self inflicted or that the medicolegal examination report was a fake document. The trial court has taken into account the fact that in the F.I.R. itself, it had been written that Suresh had attacked Munna Lal from behind with his Lathi. Also, the trial court has taken into account the argument raised by the counsel for the defence that Gulabo was not present at the time of the incident and has rejected the same on the ground that if the argument of the defence is taken to be true that a fake medico legal examination report was prepared for Munna Lal at the Primary Health Centre, such fake medico legal examination report could also have been prepared for Gulabu, the informant by the same Primary Health Centre to ensure that he is treated as an injured eye witness also to the incident.

13. The trial court has considered the fact that in the testimony of both witnesses, mention has been made of three of the assailants having Banka with them, which is a sharp edge weapon, and the postmortem report had mentioned multiple wounds on the head, and on opening the doctor had found injuries on the frontal cortex, left temporal bone and occipital bone. The left temporal bone was also found fractured. Also, an incised wound was found on the face of the deceased bone deep which had led to fracture of the bone underneath and the soft tissue and muscles had been severely damaged. An incised wound was found below the chin towards the left and the muscles and soft tissue underneath it were severely damaged and the mandibular bones were found fractured. All such incised wounds had clean inverted edges. And two incised wounds were also found on the left shoulder and and the upper part of the body. One gunshot wound of entry 15 cm x 7 cm muscle deep was found on the left shoulder, just below the joint with no blackening or tattooing.

14. The trial court considered the testimony of P.W.-1 who stated that initially Harish Chandra had fired upon Laloo Ram, who fell from his cycle and then started to run but Harish Chandra caught hold of his legs and Raju, Kunhai and Siya Ram attacked Lalloo Ram on his head and face with the Bankas held by each of them.

15. The ocular evidence matched the medical evidence of injuries as reported during postmortem of the deceased held on the same day. Dr Ganga Mahesh, who had conducted the postmortem on cross examination, had stated that the gun shot had been caused from a distance and was only muscle deep and the wound was such as it would not result in immediate death and the deceased could have survived the same and tried to escape. The incised wounds, however, were such on the head and the face that would have been caused after the deceased was pinned down and hit with sufÏcient force by sharp edged weapon like a banka and not a Kudal.

16. We have gone through the meticulously written judgment of the trial court and we find no legal or factual infirmity therein.

17. Accordingly, both the appeals stands dismissed. Order Date :- 11.4.2025 Mayank MAYANK PRATAP SINGH MAYANK PRATAP SINGH High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

Case :- CRIMINAL APPEAL No. - 280 of 2006 Appellant :- Harish Chandra And 2 Ors. Respondent :- The State Of U.P. Counsel for Appellant :- B.P.Srivastava,B.P.Srivastava,Brij Mohan Sahai,Mohd. Mansoor,Raj Priya Srivastava,Rakesh Kumar Singh,Sudhir Kumar Misra,Vikas Shukla Counsel for Respondent :- Govt.Advocate (With) Case :- CRIMINAL APPEAL No. - 595 of 2006 Appellant :- Kunhai And Another Respondent :- State of U.P. Counsel for Appellant :- Manish Bajpai,Amul Mani Tripathi,Roshan Babu Gupta,Shubham Gupta,Shushil Kr. Sharma Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Shree Prakash Singh,J. (Oral)

1. We have been informed that the appellant, Kunhai S/o Pitambar in connected appeal no. 595 of 2006, has died and the said appeal is already abated, so far as the appellant no. 1 is concerned. The appellant no. 2 in Criminal Appeal No. 595 of 2006 Raju S/o Kunhai is concerned, he was released on remission on 14.11.2024.

2. We have gone through the report of the Chief Judicial Magistrate dated 25.4.2024 informing this Court that the appellant no. 3, Suresh S/o Kunhai Pasi has died on 14.1.2021. The statement of the Sub-Inspector, Salam Ulah Khan of P.S. Malihabad, Lucknow as well as one of the villagers, who is the complainant Gulab S/o Puran has given the statements which are enclosed to such report. The appeal stands abated so far as Suresh S/o Kunhai Pasi is concerned.

3. In so far as the appellant nos. 1 and 2 in Criminal Appeal No. 280 of 2006 are concerned, Sri B.M. Sahai has stated that both the appellants have been granted remission, but on request of the Court Sri B.M. Sahai has gone through the record and he has agreed to argue the appeal on merits.

4. He has argued that in short the prosecution story is that on 24.12.2021 at around 10:30 am, the complainant Gulabu S/o Purai R/o Village Hasmapur P.S.- Malihabad District- Lucknow had lodged the first information report, accused one Kunhai Pasi who was the resident of the same village and was enemical to the complainant because of some land dispute which has been going on for a longtime in the civil court with him. Also, around two and half years ago, the younger brother of Kunhai Pasi, Chhota had been murdered in which the complainant's two brothers namely, Mitthan and Nanhe were accused, but they were however, acquitted on 23.12.1991. Kunhai Pasi could not get over such set back and continued to hold grudge and could not forgive the complainant and his brothers.

5. It was alleged that the complainant's brother Lallu Ram was working in the Secretariat at Lucknow and he used to commute every day from the village to his ofÏce. On 24.12.1991 at around 8:30 am Lallu Ram after having breakfast left on his bicycle for Lucknow alongwith his elder brother Munna. The complainant was also behind them on his cycle as he was going to purchase oil. His two brothers, Lallu Ram and Munna were on one cycle and they were ahead of the complainant. At around 9 O' Clock, when the complainant and his brother reached Kasmandi Kala Road near the Grove of Parchammu Khan, the accused, Kunhai alongwith Raju, Siyaram, Suresh and Harischandra armed with Banka and Katta, suddenly came out of hiding and Kunhai exhorted the others. All the assailants thereafter attacked the complainant's brothers, Lallu Ram and Munna. Munna Lal left his cycle and ran to the East whereas, Lallu Ram left his cycle and ran towards the West. Suresh followed Munna Lal and hit him with his lathi, Kunhai as well as the other four assailants followed Lallu Ram and were able to apprehend him and one Harish Chandra shot Lallu Ram with his country made pistol and as soon as Lallu Ram fell, Harish Chandra caught hold of his legs and Suresh caught hold of his hands and Raju, Kunhai and Siya Ram, then attacked Lallu Ram with Banka on his head and face and he died. The complainant raised a hue and cry and Raghubir Prasad and Prasadi etc, who are of the same village and who were watching the incident from afar, but had not come to help. The assailants ran away towards the North, come forward and when the complainant went near his brother Lallu Ram, he found him dead. Munna Lal had returned from the place he was hit at by Suresh and leaving Munna Lal and other villagers, with the deceased, Lallu Ram the complainant had gone to the police station to file the First Information Report.

6. It has been argued that the investigation was carried out by the then Station House OfÏcer, Malihabad, Sri Banke Bihari Singh who prepared the Site Plan and a panchnama/Inquest Report and sent the body to the mortuary for postmortem and took samples of blood stained soil and plain soil as well as empty cartridge and mufÒer which was found being on the spot. The two cycles as well as the deceased's pair of sandals were also taken and seizure memo was prepared. Harish Chandra was apprehended soon and on his pointing out, the weapon of assault a country made pistol was recovered and sent for forensic examination to the F.S.L. Lucknow alongwith the empty cartridge which was recovered from the place of the investigation, incident. chargesheet was prepared and submitted. On committal, the accused claimed to be not guilty and were tried. completing After

7. It has been argued by the learned Counsel appearing on behalf of the appellants that the trial court has placed reliance upon two witnesses of fact who are both real brothers of the deceased and their testimony could not have been relied upon to convict the accused.

8. We find it appropriate in this regard to refer to a judgement rendered by the Supreme Court in Khema Alias Khem Chandra and others versus state of U.P. 2023 (10) SCC 451, wherein paragraph 12, the Supreme Court observed as under: – "to examine the correctness of these findings, we will first assess the testimony of Om Veer (PW1) and Inder (PW2). Both these witnesses are brothers of the deceased Prakash as such, they would fall in the category of interested witnesses, being related to the deceased. However, their testimonies cannot be discarded on the ground that the witnesses are interested witnesses. The only requirement would be that the evidence of such witnesses is required to be scrutinised with greater care and circumspection." Similarly, in Dahari and others versus State of U.P. 2012 (10) SCC 256, Supreme Court observed in paragraph 11 as follows: – "11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. In case the evidence has a ring of truth to it, is cogent, credible, and trustworthy, it can, and certainly should, be relied upon (vide Himanshu versus State (NCT of Delhi) 2011 (2) SCC 36; Ranjit Singh versus State of M.P. 2011 (4) SCC 336 and Onkar versus State of U.P. 2012 (2) SCC 273)."

9. Having gone through the trial court judgement and the testimony of the two brothers of the deceased, Munna Lal and Gulabo, (P.W.-1), it has come out that P.W.-1 had stated that they were six brothers who lived as a joint family. The accused Kunhai had a younger brother by the name of Chhota who was murdered around two and a half years ago. Gulabo's two brothers, Mithan and Nanhke had been accused of murder of the brother of kunhai but they were acquitted by the trial court on 23.12.1991, i.e. just one day before the incident. Lalloo Ram, being educated and working in the Secretariat used to do pairvi on behalf of his brothers and the accused being annoyed with the acquittal of Mithan and nanhke had attacked Laalu and Munna Lal the very next day in the morning. Kunhai, Raju and Siya Ram had Banka with them Suresh had a lathi and Harish Chandra had a country made pistol.

10. The Trial Court considered the fact that Munna Lal is said to have been hit with the lathi by Suresh and his examination was conducted at the Primary Health Centre Malihabad on 24.12.1991 itself. Dr. A.K. Tyagi who had examined him had proved such report which was filed as Exhibit Ka-20, from the same it was evident that Munna Lal had suffered a contusion 13 cm x 1 cm on his back and had also complained of pain in other parts of his body. Injury was simple in nature, but there was no reason to believe that it may have been caused by the injured witness upon himself on his own. Since Munna Lal was also injured, the trial court has observed that in all likelihood he was present at the time when the incident occurred.

11. This court finds the observations made by the trial court while placing reliance upon testimony of injured witness, Munna Lal, to be in accordance with law settled by the Supreme Court in Brahm Swaroop and another versus State of U.P. 2011 (6) SCC 288; the observations of the Supreme Court in paragraph 28 are as follows: – "28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of the crime and he is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit and injured witness. (vide State of U.P. versus Kishan Chand 2004 (7) SCC 629; Krishan versus State of Haryana, 2006 (12) SCC 459; Dinesh Kumar versus State of Rajasthan, 2008 (8) SCC 270; Jarnail Singh versus State of Punjab 2009 (9) SCC 719, Vishnu versus State of Rajasthan 2009 (10) SCC 477; Anna Reddy Sambasiva Reddy versus State of Andhra Pradesh 2009 (12) SCC 546 and Balraje v State of Maharashtra 2010 (6) SCC 673)"

12. The trial court has also considered the fact that the F.I.R. was lodged the very same day 24.12.1991 in the morning at 10:30, whereas the incident is stated to have occurred at 09:00 am. He has rejected the argument raised by the counsel for the defence that injuries on Munna Lal were self inflicted or that the medicolegal examination report was a fake document. The trial court has taken into account the fact that in the F.I.R. itself, it had been written that Suresh had attacked Munna Lal from behind with his Lathi. Also, the trial court has taken into account the argument raised by the counsel for the defence that Gulabo was not present at the time of the incident and has rejected the same on the ground that if the argument of the defence is taken to be true that a fake medico legal examination report was prepared for Munna Lal at the Primary Health Centre, such fake medico legal examination report could also have been prepared for Gulabu, the informant by the same Primary Health Centre to ensure that he is treated as an injured eye witness also to the incident.

13. The trial court has considered the fact that in the testimony of both witnesses, mention has been made of three of the assailants having Banka with them, which is a sharp edge weapon, and the postmortem report had mentioned multiple wounds on the head, and on opening the doctor had found injuries on the frontal cortex, left temporal bone and occipital bone. The left temporal bone was also found fractured. Also, an incised wound was found on the face of the deceased bone deep which had led to fracture of the bone underneath and the soft tissue and muscles had been severely damaged. An incised wound was found below the chin towards the left and the muscles and soft tissue underneath it were severely damaged and the mandibular bones were found fractured. All such incised wounds had clean inverted edges. And two incised wounds were also found on the left shoulder and and the upper part of the body. One gunshot wound of entry 15 cm x 7 cm muscle deep was found on the left shoulder, just below the joint with no blackening or tattooing.

14. The trial court considered the testimony of P.W.-1 who stated that initially Harish Chandra had fired upon Laloo Ram, who fell from his cycle and then started to run but Harish Chandra caught hold of his legs and Raju, Kunhai and Siya Ram attacked Lalloo Ram on his head and face with the Bankas held by each of them.

15. The ocular evidence matched the medical evidence of injuries as reported during postmortem of the deceased held on the same day. Dr Ganga Mahesh, who had conducted the postmortem on cross examination, had stated that the gun shot had been caused from a distance and was only muscle deep and the wound was such as it would not result in immediate death and the deceased could have survived the same and tried to escape. The incised wounds, however, were such on the head and the face that would have been caused after the deceased was pinned down and hit with sufÏcient force by sharp edged weapon like a banka and not a Kudal.

16. We have gone through the meticulously written judgment of the trial court and we find no legal or factual infirmity therein.

17. Accordingly, both the appeals stands dismissed. Order Date :- 11.4.2025 Mayank MAYANK PRATAP SINGH MAYANK PRATAP SINGH High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench