# Ashok Misra & Ors v. State of U.P

- **Citation:** CRIMINAL APPEAL No. 1466 of 2000
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-19
- **Case number:** CRIMINAL APPEAL No. 1466 of 2000
- **Bench:** Mrs. Sunita Agarwal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-misra-ors-v-state-of-u-p-46430
- **Pages:** 27

## Headnote

492 INDIAN LAW REPORTS ALLAHABAD SERIES
A.G.A.

Criminal law- Indian Penal Code - Section
146/148/149/302 - Appeal against conviction.

Testimony of single witness-

Held :- No inconsistency in the oral and
medical evidence which corroborated the eye
witness account.The testimony of the single
witness is enough for conviction of found to be
reliable on the touchstone of credibility. (Para
69)
Case proved beyond all reasonable doubt. (Para
72)

Appeals rejected. (E-2)

List of Cases Cited:-

## Text

_Characters 0–39,997 of 90,413. This is a partial read: ask again with offset=39997 for what follows._

3-5 All. Ashok Misra & Ors. Vs. State of U.P.
491
Stirland v. Director of Public Prosecution
(1944 AC (PC) 315) quoted in State of U.P.
v. Anil Singh AIR 1988 SC 1988. Doubts
would be called reasonable if they are free
from a zest for abstract speculation. Law
cannot afford any favourite other than
truth.

In matters such as this, it is
appropriate to recall the observations of
this Court in Shivaji Sahebrao Bobade v.
State
of
Maharashtra
MANU/SC/0167/1973 : 1973CriLJ1783 :

".....The dangers of exaggerated
devotion to the rule of benefit of doubt at
the expense of social defence and to the
soothing sentiment that all acquittals are
always good regardless of justice to the
victim and the community, demand especial
emphasis in the contemporary context of
escalating crime and escape. The judicial
instrument has a public accountability. The
cherished principles or golden thread of
proof beyond reasonable doubt which runs
through the web of our law should not be
stretched morbidly to embrace every hunch,
hesitancy and degree of doubt....."

".....The evil of acquitting a guilty
person light-heartedly as a learned author
Glanville Williams in 'Proof of Guilt' has
sapiently observed, goes much beyond the
simple fact that, just one guilty person has
gone unpunished. If unmerited acquittals
become general, they tend to lead to a
cynical disregard of the law, and this in
turn leads to a public demand for harsher
legal
presumptions
against
indicated
'persons' and more severe punishment of
those who are found guilty. Thus too
frequent acquittals of the guilty may lead to
a ferocious penal law, eventually eroding
the judicial protection of the guiltiness....."

".....a miscarriage of justice may
arise from the acquittal of the guilty no less
than
from
the
conviction
of
the
innocent....."

25. In view of the reasons given
herein above, we do not find any force in
this appeal and the same is liable to be
dismissed.

26. The appeal filed by the appellant-
Sanjeev @ Sanju Yadav, is thus, dismissed
and the judgment and order of the court
below dated 08.06.2007 is affirmed.

27. As per record of this Court and
report of office dated 07.02.2020, the
appellant- Sanjeev @ Sanju Yadav is in jail.
He will serve out the sentence as ordered
by the trial court.

28. A copy of this judgment be
immediately sent to the trial court for
compliance.
----------
(2020)03-05ILR A491
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

CRIMINAL APPEAL No. 1466 of 2000
Alongwith
CRIMINAL APPEAL No. 1498 of 2000

Ashok Misra & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri R.K. Gupta, Sri Arunesh Khare, Sri
Gautam Baghel, Sri Lav Srivastava, Sri
Mani Shanker Mishra, Sri Rajrshi Gupta,Sri
Shiv Badan Singh, Sri M.P. Yadav, Sri Om
Prakash Singh, Sri Neeraj Kumar, Sri
Muktesh Singh, Sri Rajan Srivastava, Sri
Dilip Kumar, Sri V. P. Srivastava

Counsel for the Opposite Party:
492 INDIAN LAW REPORTS ALLAHABAD SERIES
A.G.A.

Criminal law- Indian Penal Code - Section
146/148/149/302 - Appeal against conviction.

Testimony of single witness-

Held :- No inconsistency in the oral and
medical evidence which corroborated the eye
witness account.The testimony of the single
witness is enough for conviction of found to be
reliable on the touchstone of credibility. (Para
69)
Case proved beyond all reasonable doubt. (Para
72)

Appeals rejected. (E-2)

List of Cases Cited:-

1. Mohar Rai Vs. St. of Bihar, 1968 (Cr.LJ) 1479,

2. Laxshmi Singh & ors. Vs. St. of Bihar, 1975
(5) SCC 394,

3. Babu Ram & ors. Vs. St. of Punj., 2008 CriLJ
1651,

4. Amar Jeet Singh Vs. St. of Hary., AIR 2010
(2) SC 2502,

5. Krisne Gowda & ors. Vs. St. of Karn, Arhalgud
Police, AIR 2017 (SC) 1657,

6. V. Subramani Vs. St. of T.N., 6.2005 (Cr.LJ)
1727,

7. Anand Ramchandera Chougule Vs. Sidaraj
Laxman Chougule & ors., 2019 (8) SCC 50,

8. Puran Singh Vs. St. of Punj., AIR 1975 SC
1674,

9. St. of Gujrat Vs. Bai Fatima, AIR 1975 SC
1478,

10. Mitter Sen Vs. St. of U.P., AIR 1976 SC
1156,

11. Babu Ram & ors. Vs. St. of Punj., 2008 (3)
SCC 709,

12. Veer Singh Vs. St.of U.P., 2014 (2) SCC 455,

13. St. of U.P. Vs. Satveer Singh, 2015 (9) SCC 44,

14. Sudip Kumar Sen Vs. St.of W.B., 2016 (3)
SCC 26,

15. Dinesh Singh Vs. St.of U.P., 2009 (67) ACC
737 (SC),

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.
&
Hon'ble Pradeep Kumar Srivastava, J.)

1. Heard Shri Dilip Kumar and Shri
V.P. Srivastava, learned Senior Advocates
assisted by Shri Ram Kishore Gupta,
Mukhtesh
Singh,
Rajan
Srivastava,
Advocates and Shri M.P.Yadav, learned
Advocate holding brief of Shri Shiv Badan
Singh; Shri Arunesh Khare and Shri
Gautam Baghel, learned Advocates for
appellant no. 10. Shri. L.D.Rajbhar; Shri.
Sunil Kumar Tripathi, learned A.G.As have
been heard for the State.

2. Two connected criminal appeal
No.1498 of 2000 and 1466 of 2000 have
been filed against the judgment and order
dated 20.06.2000 passed by the Special
Judge
(E.C.
Act)/Additional
Sessions
Judge, Hamirpur in Session Trial No.44 of
1991 and 44-A of 1991 under Section
146/148/149/302 IPC registered as Case
Crime No.20-A of 1990, Police Station-
Sumerpur, District Hamirpur. By the
impugned judgment, the appellants-herein
(12 in number) have been convicted for
offence under Section 302 read with
Section 149 IPC and sentenced for life
imprisonment. In addition to the same, they
have been convicted of the offences under
Section 147 and 148 IPC and sentenced for
six months imprisonment for each offence,
separately. All the punishments are to run
concurrently.
3-5 All. Ashok Misra & Ors. Vs. State of U.P.
493

3. At the outset, it is informed by the
learned Advocates for the appellants that
the accused appellants Shiv Baran Singh
son of Ranjeet Singh, Chunubad Singh son
of Pran Singh and Ram Gulam son of
Ranjeet Singh had died during pendency of
the appeal and the appeal has been abated
for them after ascertaining the factum of
their death by order dated 13.09.2019.

4. The prosecution story unfolded as
under:-

5. The first information report
regarding four murders committed in the
field near Village Mohar, Police Station
Sumerpur, District Hamirpur on 11.01.1990
at about 03.30 PM, was registered at 17.30
hours (5.30 PM) on 11.01.1990 itself, on a
written report filed by the Raja Bhaiya
Singh son of Phool Singh resident of
Village Surauli Buzurg, Police Station
Sumerpur,
District
Hamirpur,
under
Section 147, 148, 149 and 302 IPC against
15 persons. After completion of the
investigation, the police had submitted the
charge sheet.

6. The accused persons were
committed to the Sessions court on
18.01.1991. They were charge sheeted on
15.05.1992. They denied all the charges
against them being false and demanded
trial. The Sessions trial had commenced
against 15 accused (three of them had died
during the course of trial), 12 accused
persons have been convicted and sentenced
for
life
imprisonment
and
other
punishments as well.

7. As per the first information report
(written
report),
on
10.01.1990
first
informant Raja Bhaiya Singh son of Phool
Singh resident of Village Surauli Buzurg,
Police Station Sumerpur, District Hamirpur
had gone to Village Kiswahi alongwith
Arjun Singh son of Gulab Singh, Chatrapal
Singh son of Bheesam Singh both residents
of Village Surauli Buzurg and Mahesh
Chandra Shukla son of Shiv Narayan
resident of Mundaura, Awdhesh Kumar @
Raja Nigam son of Shiv Prasad resident of
Sumerpur, District Hamirpur and Sahab
Singh son of Dalgajan Singh, resident of
Village Swasa Haal Mukaam Kalauki Jaar.
The purpose to go to Village Kishwahi was
to fix marriage of Bhopat Singh son of
Chatrapal Singh with the daughter of
Chhiddu Singh son of Jaggu Singh resident
of Village Kishwahi. It is stated in the said
report that the above named persons
reached the house of Chhiddu Singh son of
Jaggu Singh at Village Kiswahi on
10.01.1990 and had a talk regarding
settlement of marriage. In the night of
10.01.1990, they stayed in Village Kiswahi,
witnessed Ramleela in the night and
remained there till the afternoon on
11.01.1990.

8. At around late afternoon on
11.01.1990, they were returning to the
Village Sumerpur through Village Mohar
and Chhiddu Singh came to See off them
till the boundaries of Village Mohar. Soon
after they left Village Mohar, Chhiddu
Singh requested them to relax and have
'Supari' and then go. They sat near the road
to chew 'Supari' keeping their weapons on
the ground. At that point of time, Ashok
Kumar and Santosh Kumar sons of
Kanhaiya Lal resident of Village Mohar
came with 13 other persons each carrying
arms in their hands. All of the accused
persons were carrying weapons such as
Kulhari, Farsa, Rifle, Double Barrel Gun,
Lathi. Ashok and Santosh exhorted others
by saying that they (other party) were saved
at the instance of deceased Mahesh but no
enemy should escape. While shouting "मारो
494 INDIAN LAW REPORTS ALLAHABAD SERIES
सालो को", the accused persons opened fire
on all of them. But the first informant,
Chhiddu Singh and Sahab Singh ran from
the spot and succeeded in saving their life.
Whereas, four deceased persons were
gheraoed by the accused persons and
brutally murdered near the field from the
weapons they were carrying.

9. Leaving the dead bodies of four
deceased near the field, the informant
reached at the police station to lodge the
first information of the incident, which
occurred at around 03.30 PM as noted
above. On the said written report, chick
FIR was prepared with the case number
registered as Case Crime No.20-A of 1990
under Section 147, 148, 149 and 302 IPC.
The copy of Chick FIR was given to the
informant and is proved by him on record
as 'Exhibit Ka-3'. The written report
submitted by the first informant is proved
and exhibited as "Exhibit Ka-1".

10. The prosecution had produced
three eye witnesses of fact namely Raja
Bhaiya Singh (the first informant), Chhiddu
Singh (PW-2) and Sahab Singh (PW-4),
two of them namely Chhiddu Singh and
Sahab Singh, however, turned hostile. The
prosecution, thus, based its entire case on
the testimony of solitary eye witness Raja
Bhaiya Singh.

11. Amongst formal witnesses, PW-3,
PW-7, PW-9 and PW-10 were examined
being postmortem doctors. P.W-5 is the
officer who conducted inquest of the dead
bodies. P.W-11 is the investigating officer
namely Surendra Nath Yadav.

12. Apart from the above witnesses,
one more witness of fact (PW-8) Ram
Babu, Village Chowkidar of villages
Dundhpur and Mohar had been produced
by the prosecution in the witness box to
prove the occurrence of the incident as
reported by him in another report lodged on
11.01.1990 at about 03.40 PM. The said
report is exhibited as 'Exhibit Ka-6'. Five
witnesses (DW-1 to DW-5) had been
produced from the defence side to prove
injury reports of three accused persons
namely Balram Singh son of Phool Singh,
Santosh Kumar Mishra son of Kanahiya
Lal and Gaya Prasad son of Jagannath. The
recovery memo of one broken rifle (from
the butt) belonging to accused-appellant
Balram Singh son of Phool Singh handed
over by him to the police had been
documented as Exhibit Ka-'43'.

13. The recovery memo of SBBL gun
alongwith one canvas bag containing eight
cartridges (of red color and one white)
alongwith a license having photograph of
deceased Chatrapal Singh found near his
dead body, had been documented and
exhibited as 'Exhibit Ka-29'. Plain and
blood stained earth collected from below
the dead body of deceased Chatrapal is the
recovery memo 'Exhibit Ka-30'. The memo
of blood stained clothes of Chatrapal
deceased is exhibit Ka-31. The memo of
blood stained clothes of deceased Mahesh
Shukla son of Shiv Narayan Shukla is
exhibited as 'Exhibit Ka-32'. The memo of
one rifle, having one used cartridge in its
chamber and one empty cartridge (of brass)
found near the dead body of Mahesh
Shukla son of Shiv Narayan Shukla has
been exhibited as 'Exhibit Ka-33'. The
memo of blood stained and plain earth
collected from below the dead body of
deceased Mahesh Shukla is exhibited as
'Exhibit Ka-34'.

14. The memo of one SBBL gun
bolted and four empty cartridges (three
green
color
and
one
white
plastic)
3-5 All. Ashok Misra & Ors. Vs. State of U.P.
495
recovered from besides the dead body of
Awdesh Kumar @ Raja Nigam is exhibited
as 'Exhibit Ka-35'. The memo of clothes of
deceased Awdesh Kumar @ Raja Nigam
has been exhibited as 'Exhibit Ka-36'. The
memo of blood stained and plain earth
collected from below the body of deceased
Awdhesh Kumar @ Raja Nigam is
exhibited as 'Exhibit Ka-37'.

15. The memo of blood stained
clothes of deceased Arjun Singh son of
Gulab Singh had been exhibited as 'Exhibit
Ka-38'. The memo of plain and blood
stained earth collected from below the dead
body of deceased Arjun Singh has been
exhibited as 'Exhibit Ka-38'. One DBBL
gun with a sealing canvas (to hang it),
found on the chest of deceased Arjun Singh
and the memo thereof has been exhibited as
'Exhibit Ka-40'.

16. The inquest of the four dead
bodies as per the reports was conducted on
12.01.990 between 07.00 AM to 04.00 PM.
First inquest commenced at around 07.00
AM of the dead body of Chatrapal Singh
and completed around 09.00 AM and the
last one of the dead body of Arjun Singh
son of Gulab Singh had commenced at
around 02.00 PM and completed at around
04.00 PM. Five witnesses of four inquests
reports are; (i) Kallu Singh son of Gehwar
Singh resident of Dundhpur; (ii) Ram Sahai
Pal son of Chhidua Gram Pradhan
Dundhpur; (iii) Binda Prasad Kewat son of
Tulsi resident of Dhundhpur; (iv) Shiv
Narayan Kewat son of Rameshwar resident
of Village Dhundhpur; (v) Moti Lal Kewat,
Gram Pradhan Mohar, resident of Village
Mohar, Police Station Sumerpur.

17. Charge sheet was submitted by
the police against 13 accused persons as
two accused Mukhiya son of Suraj Pal and
Om Prakash son of Purshottam had died
before commencement of trial.

18. The Sessions trial of accused
Pancha Chamar son of Mahaveer was
separated and registered as Session Trial
No.44-A of 1991. Whereas 10 remaining
accused/appellants
were
tried
in
the
Sessions Trial No.44 of 1991 (State Vs.
Ashok Mishra and 9 others).

19. The Criminal Appeal No.1466 of
2000, arising out of Sessions Trial No.44 of
1991 by ten appellants (three died,
remaining
seven
accused
persons/appellants) has been argued by Sri
Dilip Kumar learned Senior Advocate
assisted by Shri Ram Kishore Gupta;
whereas the connected Appeal No.1498 of
2000 of Pancha Chamar and Jaihind Singh
arising out of Sessions Trial No.44-A of
1991 (State Vs. Pancha Chamar & others)
has been argued by Sri V.P. Srivastava
learned Senior Advocate assisted by Sri
Lav Srivastava. Both the appeals have been
heard and are being decided together by
this common judgment.

20. It is vehemently argued by learned
Senior
Advocates
appearing
for
the
appellants that as per the prosecution story,
seven
persons
were
surrounded
and
attacked by the accused persons (15 in
number) in a pre-planned manner while
they were sitting unaware and unarmed in
the field near Village Mohar. Every
accused person was armed with a deadly
weapon such as Kulhari, Farsa or Gun
(firearm). Four persons were murdered
whereas three of them had fled from the
scene.
This
prosecution
story
is
unbelievable as not a single injury had been
caused to any of the three prosecution
witnesses who as per their own version
were attacked by a mob of 15 accused
496 INDIAN LAW REPORTS ALLAHABAD SERIES
persons; whereas, on the other hand, three
persons on the defence side had received
firearm injuries. There is no whisper nor
any explanation by the prosecution of the
injuries caused to three accused persons,
i.e. the defence side. The injuries of three
above named persons (Exhibited as Exhibit
'Kha-2, 3 & 4') have been duly proved by
the defence witnesses. The FIR or the PW1 (sole eye witness) in his deposition is
completely silent regarding the injuries of
the defence. The first informant examined
as eye witness (PW-1) on a specific
question
put
to
him
in
the
cross
examination regarding the act of firing by
four deceased, had categorically denied
saying that no firing was made by any of
the deceased persons and that apart from
the four deceased, no other person from
their side was carrying any weapon. The
recovery memos of the firearms belonging
to four deceased found near their dead
bodies indicate that their firearms (guns)
was used during the incident. Empty
cartridges found on the spot and used
bullets found in the chamber of the gun of
one of the deceased persons, are ample
evidence of the said fact. The statement of
denial on the part of the prosecution
witnesses PW-1, thus, makes the whole
story of the prosecution doubtful. Nonexplanation of the injuries of defence by
the prosecution in the said scenario would
go to the root of the controversy and shake
the version of the prosecution regarding the
genesis and the manner, i.e. why and how
the murders took place. The genesis of the
incident is something else and the incident
has not occurred in the manner as put by
the prosecution. The prosecution has, thus,
not come with clean hands.

21. It is further stated that two
incidents of Maar Peet and firing had
occurred during the day time, before noon
on 11.01.1990 itself, i.e. before seven
persons (four died & three escaped) who
were guests took lunch at the Village of
Chhiddu Singh namely Kiswahi. The
incident-in-question which occurred at
around 03.30 PM was infact third incident
of fighting in a row during which 'Maar
Peet' and 'firing' took place between two
groups. The question would be as to who
was the aggressor of the crime reported by
PW-1. In fact, three accused persons were
attacked in their own Village by four
deceased persons who were carrying
firearms, consequently, in retaliation and in
defence of the accused persons, a mob of
Villagers
attacked
all
of
them
and
murdered four. The accused persons cannot
be said to be guilty as they have a right to
exercise their private defence.

22. The Village Chowkidar PW-8
lodged a written report exhibited as 'Exhibit
Ka-6', immediately reporting the incident.
The written report lodged by the Village
Chowkidar (PW-8) of the incident of firing
by four unknown persons was registered as
Case Crime No.20 of 1990. The said report
being prior in point of time to the FIR
lodged by PW-1 Raja Bhaiya Singh, his
report should be treated as a cross-version
of the defence and, accordingly, registered
by the police as Case Crime No.20-A of
1990.
The
version
of
the
Village
Chowkidar (PW-8) in the said report is
clear that he heard a 'Shoor' (noise) at
around 03.30 PM on 11.1.1990 while he
was in his Village and saw firing by four
persons who were unknown to him. He
immediately ran to the police Station
Sumerpur to report the incident and on the
information given by him, the report was
written by the Head Moharrir, copy of
which was read over to him during his
deposition before the Court and as he
proved it to be the same, it was exhibited as
3-5 All. Ashok Misra & Ors. Vs. State of U.P.
497
'Exhibit Ka-6'. In his cross examination by
the defence, the Village Chowkidar stated
that on the information given by him, the
police personnel alongwith the Station
House Officer reached the spot of the crime
before he himself reached back.

23. It is, then submitted by the learned
Advocates that, in fact, three accused
injured persons were taken to the hospital
by the police officers though admittedly
none of the accused persons were arrested
by the police on that day. The arrest of the
accused persons made later would go to
show that they were implicated falsely by
the prosecution after deliberations of the
first informant with others in connivance
with the local police.

24. It is vehemently argued that in the
above facts and circumstances, it was the
duty of the prosecution to explain the
injuries caused to the accused persons
during the course of occurrence of the
incident. There is no explanation nor a
whisper from the side of the prosecution as
to how injuries had been caused to three
accused persons and who took the injured
to the hospital and got them examined. For
the reason of non-explanation of injuries of
the defence, whole case of the prosecution
falls. None of the accused persons can be
held guilty of the alleged offence of murder
of four deceased who themselves were
aggressors of the crime.

25. Further, it is urged that there is no
evidence of any previous enmity of the
deceased persons with the accused. They
were from different Villages. In fact, they
were guests of the Villages Mohar and
Kiswahi as they came to see a girl,
daughter of a fellow villager Chhiddu
Singh for marriage. There was no animus.
The deceased persons were unknown to the
entire Village. There is not even a
suggestion of enmity of the villagers or the
accused persons with Chhiddu Singh of
Village Kishwahi. On the other hand, the
deceased persons and first informant had
criminal antecedents. The four deceased
persons were armed with licensed guns
which may be normal for persons living in
Bundelkhand
area
but
there
is
no
explanation on the part of the prosecution
as to what motivated the appellants to
assault them. Why would the accused kill
four persons who were guest in the
Village?

26. Further, the version of sole eye
witness PW-1 is inconsistent and highly
unbelievable, in as much as, he had simply
denied firing by the four deceased persons
whereas the said fact has been categorically
proved by P.W.-8, the prosecution witness
itself and also is corroborated from the
recovery memo prepared by the police of
the firearms of the deceased found besides
their bodies. The Star prosecution witness
PW-1 is a lair. The prosecution story of the
incident is, thus, completely belied by the
said fact.

27. It is further contended that there is
one more relevant fact which needs
consideration. One of the deceased Arjun
Singh was own nephew of PW-1 and it is
highly improbable rather inconceivable that
PW-1 had left the spot of occurrence before
the inquest of dead body of his nephew was
done that too to attend his duties in the
school. PW-1 admitted his presence on
duty on 12.01.1990 in the school at
Risaipara situated at about 50 KM away
from the scene of incident. His version that
he left the scene of incident at about 09.00
AM to attend his duty at the school
furthermore makes his conduct highly
questionable. Rather for his admission of
498 INDIAN LAW REPORTS ALLAHABAD SERIES
being present in the school on duty on
12.01.1990,
his
presence
in
Village
Kiswahi on 10.01.1990 and 11.01.1990
accompanying four deceased persons to
visit the house of Chhiddu Singh is
completely
ruled
out.
The
entire
prosecution story is a result of concoction
by PW-1 who is a related and interested
witness. Even otherwise, his own personal
character and that of his immediate family
as reflected in the cross-examination shows
that he is a man of criminal nature and was
implicated in several criminal cases prior to
the incident. He cannot be said to be
reliable or dependable witness and his
testimony being uncreditworthy cannot be
made basis to convict the accused person in
the murder of four strangers. PW-1 is not a
witness of any of the four inquest reports.
This clearly implies that he was not present
at the scene of occurrence.

28. It is further pointed out that from
the inquest report, it is evident that the
inquest of Chatrapal Singh commenced at
about 07.00 AM and completed at about
09.00 AM. As per the version of PW-1 in
examination-in-chief, his statement was
recorded by the police on the spot at about
06.15 AM but the site plan was not prepared
as it was dark at that point of time. PW-1 is
also not the witness of the site plan. He,
however, states in the cross examination that
the police had first prepared the site plan on
12.01.1990 and, thereafter, they proceeded to
do the inquest. His version that the site plan
was of the place of the incident where the
dead bodies were
lying is in clear
contradiction to his own statement and his
presence at the scene of occurrence becomes
highly doubtful.

29. Further, the version of PW-1/first
informant in the first information report that
the murder of four persons had occurred in a
field near Village Mohar is not in-consonance
with the place of occurrence as shown in the
site plan prepared by the investigating
officer/PW-11.

30. Thus, once it is established that the
sole eye witness is a liar the creditworthiness
of the entire prosecution case based on his
sole testimony is completely ruled out.

31. It has been further argued that in
fact, non-explanation of the injuries of the
defence by the prosecution would lead to an
inference that the prosecution has suppressed
the genesis and origin of the occurrence and
has not presented the true version. The
defence version of the explanation of injuries
on the persons of three accused is sufficient
to create a serious doubt on the prosecution
case. Reliance is placed upon the decisions of
the Apex Court in Mohar Rai Vs. State of
Bihar1, Laxshmi Singh & others Vs. State
of Bihar2, Babu Ram & others Vs. State of
Punjab3, Amar Jeet Singh Vs. State of
Haryana4 & Krisne Gowda & others Vs.
State of Karnataka Arhalgud Police to
state that for the contradiction between the
version of PW-1 and the prosecution
evidence regarding the place of occurrence of
the incident and the inherent improbabilities,
the
omission
and
infirmities
of
the
prosecution
case
the
defence
version
becomes highly probable. Non-explanation of
injuries sustained by three accused persons at
the time of occurrence in the course of
altercation is a very important circumstance
which would lead to an inference that the
prosecution has failed to prove the case
against the appellants beyond reasonable
doubt.

32. Further argument is that moreover
the police had not conducted proper
investigation. One of the major lacuna
evident
from
the
version
of
the
3-5 All. Ashok Misra & Ors. Vs. State of U.P.
499
Investigation Officer is that the empty
cartridges were neither collected from the
scene of the occurrence nor tallied with the
recovered
guns/firearms
of
the
four
deceased. Though it was most necessary as
the incident of firing was first reported by
the Village Chowkidar/peon who has also
proved his report by entering in the witness
box. A reading of the report Exhibit 'Ka-6'
indicates that PW-8 had rushed to the
police station to report the incident when he
saw firing by four unknown persons in the
Village. His report being prior in point of
time was registered as Case Crime No.20
of 1990. It was, therefore, incumbent upon
the investigating officer to ascertain the
reasons for injuries found on the persons of
three accused. In a case of cross version of
the incident of a crime, it becomes
necessary for the investigating officer to
examine the probabilities of the defence
version. The entire investigation was
illegally
conducted
in
one
direction
oblivious of the above circumstance.

33. The learned counsel has also
argued that even the version of the
investigating officer (PW-11) that he had
prepared the site plan in the presence of the
first informant/complainant (PW-1) is in
contradiction with the deposition of the
complainant (PW-1). The statement of
'PW-11' that he did not go to the scene of
incident soon after lodging of the report by
the Village Peon registered as Case Crime
No.20 of 1990 under Section 307 IPC, is an
extra effort to establish the prosecution
story. In fact, he did not conduct proper
investigation of the case crime No.20 of
1990, which was nothing but a cross
version of the incident reported by PW-1 as
Case Crime No.20-A of 1990 giving a false
version, having been lodged after due
deliberations. The apparent lapses in the
investigation also establishes that the
prosecution has presented a wholly false
version of the incident.

34. Above all, as stated by the learned
counsel, in a case of injuries sustained by
the accused persons at about the time of
occurrence or in the course of altercation, it
is the duty of the Court to consider the
circumstances of the case so as to see
whether
the
accused
persons
can
legitimately exercise the right of private
defence. It is not necessary for the accused
to take the plea of right of private defence
and to lead evidence. It would be sufficient
to create a doubt in the prosecution case by
establishing this plea by referring to the
circumstances
transpiring
from
the
prosecution evidence itself. The question in
such a case would be of assessing the true
effect of the prosecution evidence and not
the question of accused persons discharging
any burden. As soon as the defence placed
the necessary material on record for
claiming the right of private defence, it
becomes the duty of the Court to see as to
whether the defence has a reasonable and
probable version of his side of the story.
The law that the burden of establishing the
plea of self defence is on the accused
cannot be stretched to the extent that the
defence has to adduce positive evidence so
as to establish its case beyond doubt. In
other words, an accused is not under
obligation to prove his defence beyond all
reasonable doubts, rather, unlike the
prosecution, it is only to create doubt about
the prosecution case and the probabilities
of its defence. The proof of defence by
preponderance of probabilities is sufficient.
Reliance is placed on the judgment of the
Apex Court in V. Subramani Vs. State of
Tamil Nadu6 and Anand Ramchandera
Chougule Vs. Sidaraj Laxman Chougule
& others to state that the firearm injuries
on the persons of three accused and prompt
500 INDIAN LAW REPORTS ALLAHABAD SERIES
report of firing occurred in the Village by
the Village Peon (exhibit Ka-6) are
material circumstances coming out of the
prosecution evidence itself, which establish
that the accused persons are entitled to take
the right of private defence and that the
defence had proved their version that four
deceased persons were attacked by a mob
of Villagers when they opened firing at the
accused persons.

35. The defence version regarding the
genesis of the incident and the reasons for
altercation, in all probabilities, proved that
the deceased were aggressors of the crime.
The accused persons, thus, cannot be held
responsible for committing homicidal death
of four persons.

36. Learned AGA, on the other hand,
disputing the version of the learned
Advocates for the appellant submitted that
instant case is not a case where plea of
private defence can be pressed into service,
merely because some of the accused
persons have suffered firearm injuries as
the presence of the injuries itself does not
make it imperative to interfere with the
well reasoned and well discussed judgment
of the court below. From the defence
version itself, it is evident that the accused
persons had sustained injuries prior to the
time of occurrence and not in the course of
occurrence of the incident in question. The
prosecution need not give explanation of
the injuries sustained by the accused
persons as the defence version that the
firearm injuries were sustained by the
accused in the course of altercation is
neither reasonable nor probable from the
circumstances brought on record.

37. In any case, the burden to prove
the plea of legitimate exercise of self
defence is on the accused persons and in
absence of any proof much less cogent one,
it is not possible for the Court to presume
the truth of the plea of self defence. The
legal position is that the Court shall
presume the absence of such circumstance
and it is for the accused(s) to place
necessary material on record either by
adducing positive evidence himself or by
eliciting necessary facts from the evidence
of
the
witnesses
examined
for
the
prosecution to establish his/their plea of the
right of private defence.

38. The decisions of the Apex Court
relied upon by learned counsel for the
appellants do not come to the rescue of the
accused persons/appellants rather support
the stand of the prosecution that it was not
under obligation to explain the injuries
sustained by the accused persons.

39. Having heard learned counsels for
the parties and perused the record, to
appreciate
the
arguments
of
learned
Advocates for the appellants that the
accused persons have a right of self defence
and to ascertain the effect of alleged nonexplanation of the injuries of accused
persons by the prosecution, we would like
to first appreciate the prosecution and
defence evidences.

40. The prosecution case commenced
with the first information report lodged by
PW-1 on a written report given by him
after approximately two hours of the
incident wherein it was stated that four
deceased persons were brutally murdered
by the accused persons (who were 15 in
number). The accused were named in the
first information report with the details of
the weapons they were carrying. The
murder weapons which the accused persons
were carrying, as per the description in the
first information report and the deposition
3-5 All. Ashok Misra & Ors. Vs. State of U.P.
501
of the PW-1, are tallying with the injuries
sustained by the four deceased persons as is
clear from the Medico-legal reports. The
Doctors who conducted the postmortem
examination of four deceased had proved
their reports by entering in the witness box.
Nothing material could be pointed out by
the learned Senior Advocates for the
appellants which would make the injuries
of the deceased persons improbable from
the weapon assigned to the accused
persons. Learned counsel for the appellant,
thus, could not dispute the ocular version of
the prosecution regarding the homicidal
death of the four deceased. In this regard,
only submissions of learned Senior Counsel
Sri V.P. Srivastava for the appellant in the
connected appeal is that only one gun shot
wound of entry has been found on the
person of deceased Chatrapal Singh and
more than one gun shot wounds were found
on the person of the deceased Awdhesh
Kumar @ Raja Nigam, whereas two other
deceased namely Arjun Singh and Mahesh
Chandra Shukla did not receive a single
gun shot injury. Absence of gun shot
injuries to the two deceased persons, who
according to prosecution were gheraoed by
the accused persons and murdered, is
conspicuous and makes the prosecution
story improbable to the extent that four
deceased persons were cornered by the
accused persons carrying firearms and then
murdered. In its zeal to rope in all the
accused persons in the false case of murder,
the prosecution had shown firearms in the
hands of the four accused persons. The
injuries of the deceased do not correspond
to the murder weapons assigned to the
accused making the prosecution version
unbelievable.

41.

Dealing
with
the
above
submission, it would be relevant to note
that all four deceased sustained at least 12
to 15 injuries which are "incised wound
bone deep", "lacerated wound" on their
head and forehead, i.e. mostly on the upper
and vital parts of their bodies. "Two Gun
shot wounds" of the deceased Awdhesh
Kumar @ Raja Nigam are deep inside
abdomenal cavity and lower part of the
right thigh with blackening and tattooing
present around both the wounds. "One gun
shot wound" with blackening and tattooing
around the wound at L-5 level 2 cm from
the middle on left side of the back was on
the dead body of Chatrapal Singh.

42. A perusal of the above injuries
sustained by four deceased shows that they
were attacked and brutally beaten in such a
manner that they could not escape the scene
of occurrence. The prosecution version that
four deceased were gheraoed/cornered and
then murdered by a group of persons who
were carrying deadly weapons cannot,
therefore, be said to be inconsistent to the
evidence on record.

43. Further, the presence of the
accused persons at the scene of occurrence
has not been disputed by the learned Senior
counsels nor can it be doubted in any
manner. Their argument, however, is that
none of the accused persons can be
pinpointed in commission of murder of
four persons, in as much as, three of the
accused persons themselves had sustained
serious gun shot injuries. The defence
version is that four deceased persons had
opened fire at the accused persons. Any
action on the part of the appellants accused
persons, therefore, was only in reaction and
they cannot be convicted of the offence of
committing
homicidal
death
of
four
deceased.

44. To appreciate the said argument,
we have to assess the probabilities of the
502 INDIAN LAW REPORTS ALLAHABAD SERIES
defence version sought to be established by
production of five defence witnesses (DW1 to DW-5) to prove the injuries of three
accused persons. We would also be
required
to
examine
the
prosecution
evidence to ascertain as to whether the
probabilities of the defence version would
make the prosecution story doubtful. We
would also have to assess the weight of the
report of the incident lodged by the Village
Peon (prosecution witness PW-8), the
written report of Case Crime No.20 of
1990, exhibited as 'Ka-6'. The statement of
the investigating officer PW-11 is also
relevant to assess as to whether the version
of the Village Peon (PW-8) would lean in
favour of the defence.

45. As noted above, the prosecution
has given its version of the occurrence of
incident that seven persons including
Chhiddu Singh a resident of Village
Kiswahi were attacked while they were
sitting leisurely chewing Gutka (Tambaku)
in a field near the border of Village Mohar.
The place of occurrence of the incident
being near the border of Village Mohar is
established from the version of the eye
witness PW-1 and the investigating officer
PW-11 as also from the site plan prepared
by him.

46. From a reading of exhibit 'Ka-6',
the report lodged by the Village Peon
registered as Case Crime No.20 of 1996, it
appears to us that he had simply reported
the incident of firing which was going on at
about 03.00 PM near the border of the
Village Mohar and Dhundhpur in discharge
of his duties as Village Chowkidar of
Villages Mohar and Dhundpur. His report
that four persons (unnamed) were firing in
the Village cannot be said to be cross
version of the defence. The submission of
the learned counsel for the appellants that
four persons mentioned in the report of the
Village Peon were in fact deceased persons
as they were not known to the Village
Chowkidar is only an assumption. There is
no basis or reason to accept the same. Mere
fact that the FIR lodged by the eye witness
(PW-1) was numbered as Case Crime No.
20-A/90 would not make the report of
village Peon a cross case of the defence.
There is no inconsistency in the version of
PW-1 (eye witness) and PW-11 (the
investigating officer) regarding the FIR
having been lodged by PW-1 (the eye
witness) at about 05.30 PM by submitting a
report
of
the
incident
in his
own
handwriting.
The
investigating
officer
(PW-11) stated that he went to the scene of
occurrence after registration of the FIR by
the eye witness (PW-1) and making entry
of his movement in the General Diary; the
statement of PW-1 was recorded at the
place of occurrence but since there was no
source of light on the spot, the inquest
could commence only in the next morning
at the site of occurrence itself. Two injured
accused namely Santosh Kumar Mishra and
Balram Singh were admitted in the Sadar
Hospital,
Hamirpur
when
they
were
arrested on 15.01.1990 and their statements
were recorded.