Allahabad High Court · 2025 on 05 Mar 2025

Judgment

1. All the aforesaid three Criminal Appeals have been filed against a judgment and order dated 10.11.2024 passed by the Additional Sessions Judge, Court No.7, Raibareli in Session Trial No. 273 of 2008 arising out of Case Crime No. 269 of 2008 under Sections 147, 302, 504, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act, Police Station Salon, District Raibareli. Therefore, all the three Appeals are being decided by this common judgment.

Briefly stated, facts of the case are that one Sitapati gave a written complaint at Police Station Salon, District Raibareli stating that Genda Lal (the appellant No.1 in Criminal Appeal No. 1589 of 2014) had put some soil and staked a peg (Khoonta) at the open place in front of the old house of the informant. The informant had gone to her old house along with her husband Laxmi Shankar alias Nankutte on 19.03.2008 at about 7:00 p.m. Her husband asked Genda Lal to remove the soil and the peg whereupon Genda Lal started abusing him. When the informant’s husband objected, Bal Govind (the appellant No.1 in Criminal Appeal No.1595 of 2014), Mewa Lal (the appellant No.2 in Criminal Appeal No.1589 of 2014), Om Prakash (the appellant No.2 in Criminal Appeal No.1595 of 2014) and Vijay Kumar Pradhan (the appellant in Criminal Appeal No.1656 of 2014) came there carrying sticks and all of them started assaulting Laxmi Shankar with sticks and a brick. When the informant raised a hue and cry, her husband’s brother Kripa Shankar and son-in-law Kishan Lal reached there, whereupon the accused persons went away while threatening them. While the informant was arranging a vehicle for taking her husband to the hospital, he died. She had come to lodge the F.I.R. leaving dead body of her husband on the spot. Upon this information, the First Information Report No.57 of 2008 was registered in Police Station Salon, District Raibareli at 22:00 hours on 19.03.2008 against the aforesaid five persons for offences under Sections 147, 302, 504, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act. The inquest report mentions numerous injuries on the body of the deceased. The inquest proceedings were witnessed by (1) Kripa Shankar (brother-in-law of the deceased), (2) Smt. Sitapati (widow of the deceased and the informant), (3) Rajesh Kumar Verma, (4) Ram Bali and (5) Kishan Lal (son-in-law of the deceased). All the

4. witnesses opined that the deceased had died because of the injuries caused by the sticks and bricks.

5. The postmortem examination report mentions the following injuries on the dead body: - i. lacerated wound 3 cm X 2.5 cm, bone deep on the left side of forehead just above the left eyebrow. ii. Contusion 7 cm X 4 cm in the left side of forehead just medial to injury No. i, skin and underline bones depressed at the site, iii. Abrasion 5 cm X 2 cm on the right side of forehead, 1 cm above the right eyebrow. iv. Abraded contusion 7 cm X 6 cm on the front of left side of chest 7 cm below the left nipple. v. Contusion 7 cm X 1.5 cm on the back of chest on right side 10 cm below the top of right shoulder. vi. Abraded contusion 5 cm X 1.5 cm on the lower part of back of chest on right side. vii. Multiple small abrasions in an area of 14 cm X 2 cm on the front of right leg, 9 cm below the right knee joint. viii. Abraded contusion 11 cm X 8 cm on the front of chest on the right side, 8 cm below the right nipple.

8. Frontal bone on left side of the head was fractured. A large intra- cranial hemorrhage was present on the left side of brain. Third, fourth and fifth ribs on right side were broken. Cause of death was opined to be coma as a result of anti-mortem head injury. The accused Om Prakash Verma was arrested in the night of 20/21.03.

2008. The arrest / recovery memo mentions that he was carrying a Danda (wooden stick) in his right hand and he confessed having used it in assaulting the deceased. The Investigating Officer submitted a charge sheet dated 10.08.2008 against all the five accused persons for committing offences under Sections 147, 302, 504 and 506 I.P.C. and Section 6 of Criminal Law Amendment Act.

9. The Magistrate committed the matter to the Court of the Session Judge, from where it was transferred to the Additional Sessions Judge, Court No.7, Raibareli. The trial Court framed charges for commission of the aforesaid offences on 05.04.2010.

10. The informant was examined by the trial Court as PW-1. In her examination-in-chief, she reiterated the F.I.R. version. In her cross- examination, she stated that the accused persons had put soil in the Sahen of her old house and had staked a peg at a distance of 2–4 hands from the door of her house. She had seen the soil and the peg for the first time when she had gone to her old house four days prior to the incident. Earlier, it was not there. Some altercation had taken place four days ago also. The house and Sahen of Genda Lal is at some distance from the house and Sahen of the informant. On the date of the incident, she had asked Genda Lal to remove the soil and the peg, whereupon Genda Lal started hurling abuses and called the other 4 accused persons. Genda Lal was holding half a brick. He had hit on the head of her husband with the brick. She stated that Rajesh, brother of Kishan Lal had met her on the way to the police station she had told the entire incident to him and he had written the complaint. She had not dictated the complaint.

11. PW-2 i.e. Kishan Lal stated that he had visited and was staying in the new house of the deceased for two days prior to the incident. The incident took place at his old house. He had gone to the spot after hearing noise of the quarrel. He saw all the accused persons assaulting the deceased. Genda Lal was holding a brick and the other accused persons were carrying sticks and were beating the deceased with those. His father-in-law died 10-15 minutes after the incident due to the injuries inflicted by the accused persons while PW-2 was arranging a vehicle for taking him to the hospital. He stated that after completing the documentation, the dead body was taken away at about 12:30 in the night. His father-in-law and mother-in-law had left their new house at about 5:00-6:00 p.m. The deceased’s brother Kripa Shankar lives in the old house. He heard the noise of quarrel in the new house and upon hearing the noise, PW-2 had come from the new house to the old house. He had seen Genda Lal hitting the deceased with a brick once or twice. Genda Lal had hit on the head of the deceased on the backside and on the eye.

12. The Doctor who had conducted the postmortem of the dead body, was examined as PW-3. He proved the findings recorded in the postmortem report and said that it was possible that the victim died at about 7:00 p.m. on 19.03.2008 due to anti-mortem injuries. The injuries could have been caused by sticks and bricks and those were sufficient to cause death.

13. PW-4 was the head Moharrir who had written the FIR. PW-5 was the Sub-Inspector, who had prepared the inquest report and he was a part of the police team which had arrested the accused Om Prakash Verma and had recovered a stick from him. PW-6 was the Investigating Officer.

14. The trial Court recorded statements of the accused persons under Section 313 Cr.P.C. on 22.07.2014 wherein all the accused persons denied the allegations leveled against them.

15. Kripa Shankar Verma, younger brother of the deceased, Laxmi Shankar, was examined as DW-1. He stated that the deceased was his elder brother. Both the brothers used to live separately. In partition, he was given eastern portion of the old house whereas western portion went to the deceased. The deceased used to live in a separate house at a distance of about 300 meters from the old house, in a separate Purwa outside the village. At the time of the incident, DW-1 was in Salon, which is about 10 km away from his village. He had gone to Salon to get a token for storing potato in Kisan Cold Storage. He had gone from his home at about 05:00 p.m. on a motorcycle and accused Vijay Bahadur had also gone with him on his motorcycle to get a token. He was there in the Cold Storage till 08:00 p.m. and Vijay Bahadur was also with him and was standing in-front of DW-1 in the queue for taking a token. They could not get tokens because of huge number of aspirants and they came back to the village on his motorcycle. While returning from Salon, the residence of Vijay Bahadur falls first and DW-1 had dropped him at his resident and thereafter went to his home. When he reached home, police had already reached there. The dead body of his brother was lying on a cot. During cross-examination conducted by the ADGC Criminal, DW-1 stated that the accused Vijay Bahadur was Village Pradhan at the time of incident.

16. One Ram Bali was examined as DW-2, who stated that house of the deceased Laxmi Shankar is adjacent to his house. Old house of Laxmi Shankar was situated in Pannah Nagar but he used to live with his family in village Jaraila. On the date of incident, about 6 ½ years ago, the deceased’s 11-12 years old daughter came to him about 07:00 - 7:30 p.m. and told that her father was lying at old house. DW-2 went with the girl and saw Laxmi Shankar lying there with blood on his body. No other person was seen there.

17. In his cross-examination, DW-2 stated that his house is situated at a distance of about 300 meters from the old house of Sitapati. The houses of the accused persons Genda Lal and Bal Govind are situated near the old house where the incident took place. All the accused persons are residents of Panah Nagar.

18. DW-3 Radhe Shyam stated that he was working as Muneem of Palledars (labours) in Kisan Cold Storage, Salon, District Raibareli for the past 12 years. The accused Bal Govind was working in Kisan Cold Storage, Salon, District Raibareli for the past about 20 years. He used to record attendance of Palledars in the attendance register. Bal Govind was present on his duty on 19.03.2008 till 11 p.m. and DW-3 has recorded his attendance in the register.

19. DW-4 Dhiraj Lal stated that in the year 2008, he used to carry bricks through a buffalo cart on the brick kiln of Sushil Rastogi in Rajapur Kateha, Police Station-Salon. The accused Om Prakash also used to carry bricks through bullock cart on the same brick kiln. They used to visit their homes on Sundays and the said at the brick kiln in on the week days. On 19.03.2008 also, Om Prakash was staying at the brick kiln with him and he had not gone anywhere. He was at the brick kiln at 7:00 p.m. also. The police had taken Om Prakash from the brick kiln on 20.03.2008 at about 5:00 p.m. while he was giving fodder to his buffaloes.

20. In his cross-examination DW-4 stated that he did not belong to the caste of Om Prakash. His village is about 5 km away from the village of Om Prakash.

21. The trial Court referred to a judgment of the Hon’ble Supreme Court in Bhaskar Ramappa Madar v. State of Karnataka: (2009) 11 SCC 690, wherein the Hon’ble Supreme Court quoted the following passage from the judgment in the case of Krishnan v. State: (2003) 7 SCC 56: - “22. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to “proof” is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [see “The Mathematics of Proof II” : Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)]: “The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.” 23. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. 24. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302].”

22. The trial Court stated that it is a well established principle that no person can be convicted on mere suspicion or assumptions. A suspicion howsoever strong, may not take place of evidence.

23. The trial Court held that the incident took place at 7:00 p.m. on

19.03.2008 and F.I.R. was lodged on the same day at 22:00 hours at Police Station- Salon, District- Raibareli, which is 8 km away from the spot of the incident. In these circumstances, the delay of 3 hours is insignificant.

24. The trial Court referred to the judgments in the cases of M.C. Alil v. State of Kerala; 2010 (69) SCC 683, Ramesh Baburao Devaskar & Ors. V. State of Maharashtra (2009) 1 SCC (Crl.) 212, Ishwar Singh v. State of U.P., 1979 CRLJ page 1883 para 5, Arjun Marik & Ors. v. State of Bihar, 1994 SCC (CRI) 1551, Radhakrishna Nair & Ors. v. State of Kerala, 1995 JIC 359 (SC), Mehraj Singh & Ors. v. State of U.P. & Ors., 1995 JIC 757 (SC), State of Rajasthan v. Tej Singh & Ors, 2001 SCC (CRL) 439, Jagdish Murao v. State of U.P. & Ors. (Criminal Appeal No.1664 of 2005) decided on

24.08.2006, State of Kerala v. Anil Chandranan @ Madhu & Ors. (2010) 1 SCC (CRI) 1131, Budh Singh v. State of U.P., AIR 2006 SC 2500, Ravindra Mehto v. State of Jharkand, 2006 (2) JIC 113, Kiledar Singh v. State of M.P., 2003 (1) JIC 22, Anil Rai v. State of Bihar, 2001 (43) SC 614, Balram Mehto v. State of Jharkhand, 2006 (2) JIC 113.

25. The trial Court next held that the date 19.03.2008 is mentioned at Page-3 of the inquest report. PW-5, who is a witness of the inquest proceedings, has stated that the inquest report was prepared on

19.03.2008. The trial Court further held that the F.I.R. was lodged at 22:00 hours and the inquest proceeding started on 19.03.2008 at 23:00 hours and it was concluded on 19.03.2008 at 24:00 hours. Thus, it is clear that the inquest report was prepared after lodging of the FIR. The trial Court referred to the statements of the informant Sitapati, PW-2 Kishan Lal, PW-4 head Moharrir Siddharth Mishra and PW-6 Inspector Veer Singh and held that a perusal of the prosecution documents establishes that the F.I.R. was lodged at Police Station- Salon at 22:00 hours and it was not anti-timed and was not prepared after any consultation.

26. The trial Court recorded the submissions of the defense counsel that PW-5 Sub-Inspector Shyam Vrat Singh has stated in his statement that the inquest proceedings started at 23:00 hours and it concluded at 24:00 hours on the same day. 3:00 p.m. and 20.03.2008 have been written in the inquest report erroneously. PW-5 stated in his cross examination that while preparing the inquest report, he had a copy of the F.I.R.

27. The trial Court referred to the judgments in the case of Shri Ram v. State, 1984 AHC 43 para 6, Mohar Singh v. State of Rajasthan & Ors, 1998 JIC 677 (SC), Siyaram v. State of U.P., 2000 (1) UPCRR 686 and Nanku & Ors. V. State, Criminal Appeal No.204 of 1976 decided on 11.05.1981 relied by the defense counsel.

28. The trial Court also recorded that DW-1, who is real brother of the deceased and who has been described as an eye witness in the FIR, has stated in his statement that the report was written after Kishan Lal and his brother Rajesh reached the police station in the morning. However, the trial Court discarded the statement of DW-1 Kripa Shankar on the ground that he is named in the F.I.R. but he has not been produced by the prosecution as he has become hostile. Therefore, evidence of this witnesses is not trustworthy. The trial Court referred to a decision of the Hon’ble Supreme Court in Sohrab v. State of M.P., AIR 1972 SC 2020 wherein the Hon’ble Supreme Court held that it is very difficult to find a witness whose statement is completely reliable.

29. The trial Court held that the F.I.R. would not become suspicious by mere non-examination of the scribe of the complaint.

30. The trial Court further held that credible direct oral evidence regarding the incident was available and the discrepancies in the site plan would not amount to any major contradiction and the motive was not suspicious.

31. The trial Court held that PW-1 had stated in her statement that Genda Lal was holding a brick, Vijay was holding a Danda and the other three accused persons were carrying Lathis. She stated in her cross- examination that Genda Lal had hit the deceased with a brick and the other four accused persons had assaulted him with lathis. PW-5 i.e. Sub-Inspector Shyam Vrat Singh stated that Om Prakash Verma had told that a Danda had been recovered from Om Prakash Verma and he had said that he had used it in beating the deceased. PW-1 is an eye witness of the incident. She had not only witnessed the incident, but had tried to save her husband but she was dragged away by the accused persons. In these circumstances, she could not be expected to remember as to which of the accused persons was assaulting with Lathi and which of them was using Danda. Her entire attention would have been to save her husband.

32. The trial Court referred to the judgments in the cases of State of U.P. v. Harimohan, 2001 Criminal Law Journal 170, Dr. Krishnapal Singh v. State of U.P., (1995) 2 Criminal Law Journal 399 and Dhanraj Singh v. State of Punjab, 2004 Criminal Law Journal 1807, wherein it has been held that an accused person cannot be acquitted for mere defects in the investigation when there is cogent evidence of events establishing their guilt.

33. The trial Court convicted all the appellants for committing offences under Sections 147, 302/149, 504 I.P.C. and found that the offence under Section 506 I.P.C. could not be established.

34. The learned Counsel for the appellants in Criminal Appeal No. 1589 of 2014 submitted that the incident took place suddenly due to a dispute arising out of putting up soil and a khoonta and refusal of the appellant no. 1 to remove the same. It was not a pre-planned incident. No weapon was used in the incident. The appellant no. 1 Genda Lal is said to have hit the deceased with a brick. These allegations would not attract Section 302 I.P.C. and it would at the most amount to committing an offence under Section 304 I.P.C. The appellant no. 2 is said to have hit the deceased with a stick and none of the blows given by the stick caused any grievous injury. Therefore, the appellant no. 2 can only be held guilty of committing an offence under Section 324 I.P.C.

35. The learned Counsel for the appellants in Criminal Appeal No. 1595 of 2014 and Criminal Appeal No. 1656 of 2014 adopted the submissions advanced by the learned Counsel for the Appellant in Criminal Appeal No. 1589 of 2014 in respect of the appellant no. 2 in that appeal.

36. The learned A.G.A. could not dispute the aforesaid submission.

37. After closure of submissions and after the judgment was reserved, the learned A.G.A. provided custody certificates of the appellants, as per which, till 26.01.2025, Genda Lal had spent 10 years 7 months and 16 days period in custody and he had earned 3 years 1 month and 19 days’ remission – totaling to 13 years 9 months and 5 days till then.

38. Mewa Lal has spent 1 year 8 months and 23 days’period in custody and he has earned 4 months’remission – totaling to 2 years 23 days.

39. Bal Govind has spent 1 year 9 months and 1 on day period in custody and he has earned 4 months’remission - totaling to 2 years 1 month and 1 day.

40. Om Prakash has spent 1 year 9 months in custody and he has earned 4 months’remission - totaling to 2 years and 1 month.

41. Vijay has spent 1 year 8 months and 23 days in custody and he has earned 4 months’remission - totaling to 2 years and 23 days.

42. We find force in the aforesaid submission of the learned Counsel for the appellants.

43. Accordingly, all the Criminal Appeals are allowed in part. The Judgment and order dated 10.11.2024 passed by the Additional Sessions Judge, Court No.7, Raibareli in Session Trial No. 273 of 2008 is modified to the extent that the appellants – accused persons are acquitted of the charge under Section 302/149 I.P.C. Genda Lal - the appellant no. 1 in Criminal Appeal No. 1589 of 2014 is convicted of the charges under Sections 147, 304 and 504 I.P.C. Genda Lal has already undergone 13 years 9 months and 5 days’period in imprisonment. He is sentenced to the period of imprisonment already undergone.

44. Mewa Lal (the appellant No.2 in Criminal Appeal No.1589 of 2014), Bal Govind (the appellant No.1 in Criminal Appeal No.1595 of 2014), Om Prakash (the appellant No.2 in Criminal Appeal No.1595 of 2014) and Vijay Bahadur (the appellant in Criminal Appeal No.1656 of 2014) are convicted for the offences under Sections 147, 324 and 504 I.P.C. They have spent 2 years 1 month and 1 day, 2 years 1 month and 2 years 23 days respectively in imprisonment and all of them are sentenced to the period already undergone in custody.

45. All the appeals are decided in terms of the aforesaid order. The parties will bear their own costs of litigation. (Subhash Vidyarthi J.) (Vivek Chaudhary J.) Order Date: 05.03.2025 -Amit K- AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench