# Chander & Ors. (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 622
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-20
- **Case number:** Criminal Appeal No.2368 of 1989
- **Bench:** Mrs. Sunita Agarwal, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chander-ors-in-jail-v-state-of-u-p-48828
- **Pages:** 18

## Headnote

Criminal Law- Indian Evidence Act, 1872 -
Section 3 - Indian Penal Code, 1860 -
Section - 97- No Explanation of Injuries of
Accused- Exercise of Right of Private
Defence by First Informant's side- It is
admitted by PW-4, the first informant at
the very first instance, i.e. in the first
information report that they also wielded
Lathi in defence. In the examination-inchief, PW-4 reiterated that he wielded
Lathi in defence though he had denied, in
cross, that he did not know as to whether
the accused persons sustained injuries or
not as he was busy in saving the injured.
This version of the PW-4 cannot be said to
be a denial of the injuries sustained by
two accused persons. Rather the version
of PW-4 in narrating that he also wielded
Lathi
in
defence
while
the
accused
persons were causing injuries to his
mother
and
brother
is
a
truthful
explanation of the simple injuries caused
on
the
person
of
the
accused-In
comparison
to
the
injuries
of
the
complainant (prosecution) side, amongst
whom the injuries on the person of Shanti
were on vital parts with that of the
injuries of the accused (defence) side, it is
difficult to accept that six persons on the
complainant side had suffered injuries as
the accused persons wielded Lathis in
their defence. The gravity of the injuries
on the person of the deceased Soma, his
mother Shanti and other four injured
persons on the complainant (prosecution)
side makes the defence story improbable.
The version of PW-4 that he wielded Lathi
in defence is acceptable being more
probable and trustworthy.

Where the prosecution witness admits that he
acted in Private Defence to save the lives of his
relatives as a result of which the accused
sustained only simple injuries in comparison to
the fatal and serious injuries suffered by the
complainant's side, then it cannot be said that
either the prosecution had denied the injuries of
the accused or that it was the defence side that
had exercised it's right of private defence.

Code of Criminal Procedure, 1973- Section
313 Cr.P.C. - No positive evidence has
been brought by the accused persons to
prove that the prosecution witnesses on
the complainant side were the aggressor
of the crime.

Where the accused have failed to adopt the plea
of right of exercise of private defence in their
statements recorded under Section 3131 of the
CrPC, and have also failed to establish the same
by leading any positive evidence, then the
subsequently adopted plea of exercise of right
of private defence is unacceptable. (Para 29,
30, 34, 35)

Criminal Appeal rejected. (E-3)

Judgements/ Case Law relied upon:-

## Text

_Characters 0–39,903 of 61,523. This is a partial read: ask again with offset=39903 for what follows._

622 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary information and compliance
forthwith.
----------
(2022)06ILR A622
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Appeal No.2368 of 1989

Chander & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri P. C. Srivastava, Sri Manoj Kumar Mishra, Sri
Santosh Kumar Upadhyay, Sri Vinod Kumar
Upadhyay

Counsel for the Respondent:
D.G.A.

Criminal Law- Indian Evidence Act, 1872 -
Section 3 - Indian Penal Code, 1860 -
Section - 97- No Explanation of Injuries of
Accused- Exercise of Right of Private
Defence by First Informant's side- It is
admitted by PW-4, the first informant at
the very first instance, i.e. in the first
information report that they also wielded
Lathi in defence. In the examination-inchief, PW-4 reiterated that he wielded
Lathi in defence though he had denied, in
cross, that he did not know as to whether
the accused persons sustained injuries or
not as he was busy in saving the injured.
This version of the PW-4 cannot be said to
be a denial of the injuries sustained by
two accused persons. Rather the version
of PW-4 in narrating that he also wielded
Lathi
in
defence
while
the
accused
persons were causing injuries to his
mother
and
brother
is
a
truthful
explanation of the simple injuries caused
on
the
person
of
the
accused-In
comparison
to
the
injuries
of
the
complainant (prosecution) side, amongst
whom the injuries on the person of Shanti
were on vital parts with that of the
injuries of the accused (defence) side, it is
difficult to accept that six persons on the
complainant side had suffered injuries as
the accused persons wielded Lathis in
their defence. The gravity of the injuries
on the person of the deceased Soma, his
mother Shanti and other four injured
persons on the complainant (prosecution)
side makes the defence story improbable.
The version of PW-4 that he wielded Lathi
in defence is acceptable being more
probable and trustworthy.

Where the prosecution witness admits that he
acted in Private Defence to save the lives of his
relatives as a result of which the accused
sustained only simple injuries in comparison to
the fatal and serious injuries suffered by the
complainant's side, then it cannot be said that
either the prosecution had denied the injuries of
the accused or that it was the defence side that
had exercised it's right of private defence.

Code of Criminal Procedure, 1973- Section
313 Cr.P.C. - No positive evidence has
been brought by the accused persons to
prove that the prosecution witnesses on
the complainant side were the aggressor
of the crime.

Where the accused have failed to adopt the plea
of right of exercise of private defence in their
statements recorded under Section 3131 of the
CrPC, and have also failed to establish the same
by leading any positive evidence, then the
subsequently adopted plea of exercise of right
of private defence is unacceptable. (Para 29,
30, 34, 35)

Criminal Appeal rejected. (E-3)

Judgements/ Case Law relied upon:-

1. St. of Guj. Vs. Bai Fatima, AIR 1975 SC 1478

2. Lakshmi Singh & Ors. Vs. St. of Bih, AIR 1976
SC 2263

3. Subhash Kumar Vs. St. of UK, ( 2009) 6 SCC
641
6 All. Chander & Ors. Vs. State of U.P.
623
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri Vinod Kumar Upadhyay
learned Advocate for the appellant no.2
Dharm Pal and appellant no. 6 Jagpal. Sri
Patanjali Mishra learned AGA has argued
on behalf of the State respondent.

2. This appeal is directed against the
judgment and order dated 14.12.1989
passed by the IVth Additional District &
Sessions Judge, Saharanpur in Sessions
Trial No. 597 of 1987 (State vs. Chandra),
under Section 147, 148, 302/149 and
323/149
IPC,
Police
Station
Laksar,
District
Saharanpur,
whereby
eight
appellants namely Chander, Dharm Pal,
Mohar Singh, Ram Pal, Sewa, Jagpal, Palla
and Om Pal were convicted of the offences
under Sections 147, 302/149 and 323/149
IPC and have been sentenced for life
imprisonment for the offence under Section
302/149;
for
one
year
rigorous
imprisonment each for the offence under
Section 147 and for one year rigorous
imprisonment each for the offence under
Section 323/149 IPC. The trial court has
not imposed fine on any of the accusedappellant. All the sentences are to run
concurrently.

3. At the outset, it is pertinent to note
that the present appeal has been filed by
eight accused persons, out of whom only
two survive and they are appellant no. 2
Dharm Pal and appellant no. 6 Jagpal. This
appeal filed on behalf of other six
appellants has been abated.

4. The first information report of the
incident was lodged by Omi son of Chohal
Harijan, brother of the deceased. In the
incident occurred on 23.6.1987 at about
9:10 PM, six persons were injured, out of
whom, one Soma, brother of the first
informant, had died. The first information
report was lodged on 23.6.1987 itself at
about 10:35 PM.

5. As per the written report lodged by
the first informant/PW-4, there was a
dispute over encroachment of 'Nali' of the
'Village Well' made by accused appellant
no. 1 Chander son of Paltu Harijan. The
allegation in the written report is that
Chander son of Paltu had constructed the
door of his house covering the drain of the
Well, he was confronted by the villagers
and though he assured that he would not
make the construction but did not accede to
the request actually. On 23.6.1987 at about
9:00 PM, eight accused persons named in
the FIR (appellants in this appeal) went to
the house of the first informant and started
beating his brother Soma son of Chohal and
one Jhandu son of Chhittar, other four
injured persons intervened and tried to save
them who were also beaten by the accused
by Lathi.

It is stated in the written report
that the complainant side also wielded
Lathi in their defence and on hearing their
cries, other villagers named in the written
report came on the spot who saved them.
Six injured persons on the complainant side
were taken to the Laksar hospital because
of the grievous injuries sustained by them,
but amongst whom Soma, the brother of
the first informant, had died on the way to
the hospital.

The inquest of the dead body was
conducted on 24.6.1987 at about 9:00 AM.

6. On the lodging of the first
information
report,
Check
FIR
was
prepared which was proved by PW-7, the
police officer posted in the police station
concerned. PW-7 proved that the Check
624 INDIAN LAW REPORTS ALLAHABAD SERIES
report and GD entry were prepared in his
presence in the police station concerned by
Head Moharrir Balveer Singh whose
writing and signatures were identified by
him. The carbon copy of the GD filed on
the record was tallied with the original GD
brought in the Court. The Check FIR and
the carbon copy of GD were proved as
Exhibit Ka-8 and Exhibit Ka-9.

PW-7 further stated that the
investigation of the case was made by him
and after copying the FIR and the GD in
the Case Diary, he went to the Hospital
PHC Laksar and saw the dead body.
However, it being dark, inquest could not
be conducted. The police personnel were
posted for safety of the dead body and he
(PW-7) went to the site of the incident in
the night itself. He remained at the site
throughout the night and on 24.6.1987, the
statement of the first informant Omi was
recorded and he again went to PHC Luksar.
The
inquest
report
prepared
in
his
handwriting and signature was proved by
PW-7 as Exhibit Ka-10 and other related
papers as Exhibits 11 to 13. PW-7 stated
that he again went to the site of the
incident, prepared the site plan, collected
blood stained and plain earth, prepared the
recovery memo and proved the said
documents as Exhibits Ka-14 and Ka-15,
being in his handwriting and signature. The
blood stained and plain earth produced in
the Court were proved as Material Exhibits
'2' and '3'. The blood stained clothes of the
deceased Soma collected during the inquest
was documented in a recovery memo
proved and marked as Exhibit Ka-16, being
in the handwriting and signature of PW-7.
It was stated that on 25.6.1987, four
accused persons namely Chander, Mohar
Singh, Sewa Ram and Ram Pal were
arrested and on their pointing out, recovery
of Lathis were made which were proved as
Material Exhibits 4, 5, 6 and 7. Thereafter,
PW-7 was transferred and the investigation
was handed over to PW-9 namely P.C.
Panth, on 24.7.1987.

In cross, PW-7 stated that a cross
case was also registered in relation to the
incident and the investigation of the same
was also conducted by him and the charge
sheet was submitted in the said case. With
regard to the spot of the incident, PW-7
stated that he had seen Panchayati Well
(public Well) on the spot and it was found
to be a dry Well (being filled) and no drain
could be seen by him. He had also seen a
'pakka' platform of appellant Chander
towards the west side of the Well in front
of which there was an East facing
'Varanadah' with three openings. He could
not find any plinth of the old construction
on the spot. PW-7 further stated, in cross,
that the recovery of Lathis at the instance
of appellant no. 1 Chander was made from
the sugarcane field and that he did not see
blood
on
the
Lathis.
He
recorded
statements of four accused persons on
whose disclosure statements, recovery of
Lathis was made but there was no public
witness of the same. PW-7 had denied the
suggestion of false recovery of Lathis made
by him.

7. PW-9, the second Investigating
Officer proved that on receipt of the
investigation, he recorded statements of the
witnesses on 2.9.1987 in village Kheda and
also recorded statement of Head Moharrir
Balveer Singh and on completion of the
investigation, charge sheet was submitted,
proved as Exhibit Ka-18, being in his
handwriting
and
signature.
On
confrontation with the statements of the
witnesses recorded under Section 161
Cr.P.C., while looking to the case diary,
PW-9 stated that the witness Mange gave
6 All. Chander & Ors. Vs. State of U.P.
625
the statement that Chander went to his
house and brought Lathi and that Soma got
seriously injured and was taken to his
house.

8. PW-5 and PW-6 are the doctors
who had proved the injury reports of the
injured persons, whereas PW-8 is the
doctor who proved the postmortem report.
PW-5 the radiologist who proved the x-ray
reports of the injured.

9. PW-6 stated that he was posted in
the PHC Laksar and examined injured
Subhash, Mehar Chand, Shanti, Jhandu and
Paalu and the injuries which were found on
their person were noted in the injury
reports, which being in his handwriting and
signatures were exhibited as Exhibits Ka-3,
Ka-4, Ka-5, Ka-6 and Ka-7. It was noted in
the examination-in-chief of PW-6 that
genuineness of the injury reports were not
challenged by the counsel for the accused.

In cross for all the accused, it was
stated by PW-6 that the injuries on the
person of Mehar Chand were on his nonvital part and they were traumatic swelling,
whereas the injury no. 1 on the person of
Smt. Shanti was on her vital part.

With regard to the injuries of
the accused-appellant side, it was stated
by PW-6 that the injuries of Sewa Ram
and Mohar Singh were examined by him
and their injuries reports were proved by
PW-6 as Exhibits Kha-1 and Kha-2. It
was admitted by PW-6 that there might
be a difference of six hours in the
duration of the injuries. As regards the
injuries of injured Mehar Chand, it was
stated that it could be planted/created and
the injury no. 1 of Smt. Shanti, could
occur due to fall. With regard to the
injuries of accused-appellant Sewa Ram,
it was stated that it could occur due to
fall. On the injury report of accusedappellant Mohar Singh, it was stated that
injury nos. 2, 3 and 4 were contusions
which could be planted/created and Injury
no. 1 could occur due to fall.

10. The injuries found on the person
of injured Subhash, Shanti, Mehar Chand,
Paalu and Jhandu on the complainant side
are relevant to be noted hereunder:-

"Injuries of Subhash: (I) A
Traumatic Swelling 4cm x 3cm with
abrasion 2cm x 1.5cm on the right side of
the cheek, 1 cm anterior to the tragus of
the right ear - Reddish in colour & soft
clot Present in the Abrasion

(II) An abrasion 3cm x .5cm on
the right clavicle - soft clot present.

Opinion: Duration is fresh.
Injury No. (I) & (II) are simple in nature,
caused by blunt object.

Injuries of Smt. Shanti: (I) A
lacerated wound 4.5cm x 1cm x bone
deep on the forehead, 2cm above from the
root of the nose - fresh bleeding was
present with soft clot present.

(II) A lacerated wound 1.5cm x
.5cm x muscle deep with swelling on the
left cheek, 1cm below the left eye lid -
fresh bleeding with soft clot.

Opinion: Duration is fresh. Injury
No. (I) & (II) are simple in nature, caused
by some hard blunt object.

Injuries of Mehar Chanda: (I) A
Traumatic Swelling 17cm x 11 cm on the
dorsal side of left upper & left forearm
(extended from the left supracondylar
626 INDIAN LAW REPORTS ALLAHABAD SERIES
region to the middle of the left forearm -
Reddish in colour.

(II) An abrasion 4.5cm x .5cm on
dorsal side of lower part of right upper arm
2 cm above the right elbow joint - soft clot
present.

(III) Patient complaints pain on
the dorsal side of left foot but no evidence
of external injury.

Opinion:- (i) Duration is fresh.

(ii) Injury No. (1) its nature can
be given after x-ray report of left arm - AP
- Lateral view. KUO for expert opinion,
caused by blunt object .
(iii) Injury No. (II )is simple in nature,
caused by blunt object.

Injuries of Pallu: (I) A lacerated
wound 1cm x 1 cm x muscle deep on the
lower part of right leg, 9cm above the right
ankle joint - soft clot & fresh bleeding
present.

(II) An abrasion 2 cm x 5 cm on
the right foot, 1cm below from the anterior
part of right ankle joint - soft clot present.

(III) A lacerated wound 3cm x
.5cm x muscle deep on the upper and in
between 1st & 2nd right toes - fresh
bleeding with soft clot present.

(IV) A contusion 4 cm x 1cm on
the right side of the back 13 cm from the
lumbar vertebra - Reddish in colour

(V) An abrasion 1.5cm x .5cm on
the right side of the chest, 5.5cm below the
right clavicle - soft clot present.

Opinion:- (I) Duration is fresh.

(II) All the above injuries are
simple in nature, caused by blunt object.

Injuries
of
Jhandu:
(I)
A
lacerated wound 3cm x 1cm x muscle deep
on the right leg, 21cm below the right
Patella - fresh bleeding & soft clot present.

(II) A lacerated wound 1.5 cm x 1
cm x muscle deep on the lower part of
anterior of left thigh - 11 cm from the left
Patella - fresh bleeding with soft clot
present.

(III) A lacerated wound 1cm x
.5cm x muscle deep on the upper part of the
left leg, 17cm below from the left Patella -
fresh bleeding with soft clot."

Opinion:- (I) Duration is fresh.

(II) All the above injuries are
simple in nature, caused by blunt object.

X-ray report of Mehar Chand:
X-ray left lower part of humerus:- In
skiagram, There is fracture of ulna bone
upper part seen.

The injuries on the accused side
namely Sewa Ram and Mohar Singh as
proved by doctor PW-6 in Exhibits Kha-1
and Kha-2, respectively; are also noted as
under:-

" Injuries of Sewa Ram: On
person of accused Sewa Ram, a lacerated
wound 3.5cm x 0.5cm x bone deep right
side of head, 13 cm above right ear 13cm
above, fresh bleeding. Injury is fresh and
simple injuries, caused by hard blunt
object."

"Injuries of Mohar Singh (1) A
lacerated wound 5.5cm x 0.5cm x muscle
deep right side of head, 14.5 cm above the
right ear, fresh bleeding.
6 All. Chander & Ors. Vs. State of U.P.
627

2. Contusion 4.5cm x 3cm on
right forearm, 7.5cm above the right wrist.

3. Contusion 20cm x 1.5cm from
right to left back of the chest, 3.00 cm.
below the right shoulder, reddish in colour.

4. Contusion 5cm x 1cm on
abdomen on left and towards the back, 19
cm back side left to the navel, fresh and
simple injury, caused by hard blunt object"

PW-8 the doctor who conducted
postmortem proved the injuries on the
person of the deceased as under:-

"i) Incised wound 2.00cm x
1.00cm x brain cavity deep on right
parietal region, 5cm above right ear with
depressed fracture of right parietal bone.
Margins are clean cut.

ii) Traumatic swelling 5.00 cm x
3.00 cm left side head 3.00 cm above left
ear.

iii) Traumatic swelling 3.00 cm x
2 cm. back of head.

iv) Traumatic swelling 4.00 cm x
2.00 cm back of left hand with fracture of
left index finger.

v) Abrasion 2.00 cm x 2.00 cm
back of left elbow.

vi) Lacerated wound 6.5 cm. x
1.00 cm. x scalp deep ..... Parallel to the
scalp on top and back of the head"

11. On internal examination, clotted
blood was seen beneath the scalp on the
head. Fracture of right Occipital, right
Parietal and right temporal bones was seen.
Membrance of brain were ruptured. Clotted
blood was present on both sides in the
brain. There were fractures in the base of
brain on posterior fossa and middle fossa
on the right side. The cause of death was
opined as shock, hemorrhage and coma due
to head injuries.

12. As per the doctor, the proximate
time of death could be same as the time
indicated in the report as on 23.6.1987 at
about 9:30 PM. All the injuries were
sufficient to cause death in the ordinary
course of the business. With regard to the
injury no. 1 namely the incised wound,
suggestion was given to PW-8 that the said
injury could have been caused if a leaf was
attached to the Lathi (wooden stick) to
which he replied that it could be possible.
PW-6, however, opined that all injuries
could be caused by 'Lathi-Danda' and
proved the postmortem report being in his
handwriting and signature as Exhibit Ka-7.

13. The formal witnesses, thus,
proved the reports prepared by them which
are relied by the prosecution to support its
case of commission of the offence by the
accused persons.

14. Amongst the witnesses of fact, the
first informant was examined as PW-4 who
stated on oath that the deceased was his
real brother. The incident occurred at about
9:00 PM and on hearing the cries of his
brother Soma, he went to the spot and saw
that all eight accused persons were beating
him. All the accused persons were carrying
Lathi and a leaf was attached in the Lathi of
accused Chander. The accused persons also
caused injuries to all injured and in defence
he (PW-4) also wielded Lathi. All the
injured were taken to the District Hospital
by him (PW-4) and deceased Soma died on
the way to the hospital. The report was
dictated by him to one Hariram in the
628 INDIAN LAW REPORTS ALLAHABAD SERIES
hospital and after dictation it was read over
to him and he sent the report to the police
station Laksar through two persons namely
Sakesh and Hariram.

In cross, it is stated by PW-4 that his
house was a distance of 8-10 paces from the
house of Soma and in between 2-3 houses
existed which include the house of Subhash
and Rati Ram. He heard the cries of people
''Bachao-Bachao' and a lot of noise was there
but he did not have an idea that his brother was
being beaten. PW-4 denied the suggestion that
when he came out of the house there was a lot
of crowd collected outside the house of his
brother. He further clarified that there were
eight accused persons, injured and children of
the house and no one else. He then stated that
he went empty hands and Subhash met him on
the spot but Rati Ram was not there, whose
houses were in between. The incident of
''Maarpeet' happened for about 11⁄2 minute and
the accused persons were having Lathis till the
end and they wielded them. On a suggestion,
PW-4 denied that he did not know as to
whether the accused also sustained injuries as
he was busy in saving all on his side. On
further confrontation of PW-4, he stated that
he did not notice whether there was blood on
the spot. He stated that apart from her mother,
no other ladies or children of the house came
in between. He further stated that he reached at
his house about 1⁄2 hours before the incident
and as soon as he finished his food, he heard
the noise. He did not know anything about the
incident prior to the time when he heard the
cries and only this much was known to him
that a Panchayat was to be held and he was
supposed to go there and for that reason he
was having his food. On confrontation, PW-4
denied that it was wrong that no incident
occurred in front of the house of deceased
Soma and that he was making stories to save
himself from the cross-case and a false case
was lodged by him.

15. PW-3 Mehar Chand is an injured
witness who stated on oath that on the
fateful day at about 9:00 PM, a Panchayat
was held in which he alongwith the injured
and other villagers, was present. The place
was lit up by the electricity light. One
Mangu called accused Chander. Chander
came. Mangu confronted him that "you
were told by the Panchayat not to open the
door on the Panchayati land towards the
Well, why did you do so". Chander replied
with anger challenging that whoever had
guts could come forward to close the door.
He then exhorted his brothers that they
should be taught a lesson as they were
being considered weak. Chander and his
brothers Dharm Pal, Mohar Singh, Ram
Pal, Sewa, Om Pal, Jagpal and Palla came
out with Lathis. Chander wielded Lathi on
Mangu, Soma caught his Lathi and then all
other accused persons wielded Lathis on
deceased Soma. When he, Jhandu and Pallu
tried to intervene, the accused persons also
beaten them. PW-3 stated that the bone of
his hand got broken. Shanti, the mother of
deceased Soma intervened so she was also
beaten. The people sitting in the Panchayat
then intervened. As Soma got injured, he
was taken to his house. The eight accused
persons then went to the house of the Soma
and did Maarpeet there also. Omi (the first
informant), i.e. the brother of the deceased
came there and he also wielded Lathi in
defence. The accused persons then ran
away to their house. After 10-15 minutes,
the first informant Omi took them to the
hospital in a Buggy and Soma had died on
the way. PW-3 stated that his injuries were
examined by the doctor and he remained
admitted for about 40 days in the hospital.

The topography of the place of
the incident had been narrated by PW-3 in
his cross-examination and it was stated that
his house was located at a distance of 80
6 All. Chander & Ors. Vs. State of U.P.
629
paces from the Panchayati Well. He further
stated that injured Smt. Shanti was her
Aunt and his house and that of Smt. Shanti
were adjacent. He further stated that there
was a hut, earlier, at the place where the
accused Chander had built his house. He
denied the suggestion that the opening of
the hut was in front of the Well and stated
that it was towards the hill. He further
stated that they had complaint that Chander
had constructed his house beyond the drain
over the Panchayati Well and that the
construction was going on for about 8 days
prior to the incident. On confrontation,
PW-3 stated that he did not make any
complaint to the Gram Pradhan, the
villagers made a complaint but the said
complaint was not made in his presence.
He then admitted that the dispute started as
soon as the construction was started.
Neither the Gram Pradhan nor any member
of the Gram Samaj came on the spot at the
time of the incident and confronted
Chander. There were Abadi all around the
Panchayati Well. PW-3 further stated that
another witness PW-2, Singhara came from
that Abadi which was located after the
rasta, near the place of the incident. He
then stated that the dispute was mainly
because of the opening of the door and that
no one had an idea that the door would be
opened towards the Panchayati Well.

On a query made by the Court,
PW-3 clarified that the dispute was about
construction of the house by encroachment
of the land of Panchayati Well and not only
about the opening of the door and stated
that the door was opened in order to
encroach upon the entire public land
(Panchayat land).

On confrontation by the counsel,
PW-3 further stated that about 30-35
people were collected in the Panchayat.
The villagers had decided in the morning
that the Panchayat would be held at about
9:00 AM when they collected in the
morning at the Panchayati Well and in the
evening all of them came on their own at
about 9:00 PM. In the morning, only 10-20
people were collected to decide the time of
holding of the Panchayat and Chander was
not confronted at that time. In the morning,
they decided that they would talk to
Chander only in the evening. When at
about 9:00 PM, people were collected, it
was decided to also call Chander on the
spot. Chander came only after he was
called and when he came out, he was
confronted as to why he had opened the
door on the Well and did not listen to the
Panchayat.
Apart
from
the
said
confrontation, no other talk with Chander
was made and on the said confrontation,
Chander exhorted his brothers to show their
strength. His brother came with Lathis and
Chander also brought Lathi from his house.
All of them were empty hands as they did
not have any fear that they would be beaten
by the accused. Chander and his brothers
did not wield Lathis upon the people sitting
in the Panchayat immediately after coming
out. They first wielded Lathi on Mangu and
when Soma caught the Lathi, brothers of
Chander started beating Soma.

In cross, PW-3 further stated that
the Investigating Officer interrogated him
after about one month of the incident. On
further confrontation, he stated that the
Lathi which was caught by Soma hit in his
head. PW-3 had denied the suggestion that
the accused wielded Lathis on all the
people sitting in the Panchayat and stated
that the people in the Panchayat were
disbursed when 'Maarpeet' was going on.
They were present on the spot but no one
came in between. No one in the Panchayat
tried to snatch Lathis from the accused
630 INDIAN LAW REPORTS ALLAHABAD SERIES
persons and then stated that who would
have entered in between the Lathis. When
the accused persons were wielding Lathi,
Shanti came and no other person came with
her. It was reiterated by PW-3 that all on
the complainant side were empty hands and
no one did any 'Maarpeet'. When they
reached at their houses, the accused persons
also reached from behind, they again did
'Maarpeet' and Soma was heavily beaten in
his house and no person from Panchayat
came to their house; only Omi PW-4 came
and he was empty hands and he took Lathi
from the house of Subhash.

On confrontation PW-3 stated
that PW-4 Omi did not disclose the fact of
wielding Lathi by him to the Investigating
Officer and that he only challenged the
accused persons. The suggestion that PW-3
was making a false statement in order to
save himself from the cross-case was
categorically denied by him.

16. PW-1 and PW-2 are the eyewitnesses of the incident whose names
have
been
mentioned
in
the
first
information report as the persons who
intervened and defended the complainant
side. PW-1 Manga son of Nandu stated on
oath that the accused persons were
residents of the same village and belong to
his community and all the accused belong
to one family. Pedigree of the accused
persons has then been narrated by PW-1.
He further stated that a Panchayati Well
(Public Well) existed in between Harijan
Abadi and an electric pole was fixed near
the Well. The house of PW-2 Singhara was
adjacent to the rasta which goes from the
public Well towards the hill on the
Southern side. The place was lit up by the
electricity light and on the Southern side of
the Well, house of Ramesh existed. On the
Western side of the Well, there existed a
drain which was covered by accused
Chander to open the door of his house.
Earlier there was a hut belonging to
Chander, the door of which was opening
towards the hill. The accused Chander had
changed the direction of the door and
opened it towards the Well. The villagers
objected to it and instructed Chander not to
change the direction of the door of his
house. Prior to the incident, the accused
Chander though agreed to the objections
raised by the villagers and promised to
keep the door at the same place but he did
not accede to the same and the direction of
door was changed to the side of the Well.

17. On the day of the incident, in the
morning, it was decided that a Panchayat
would be held in the evening to ask
Chander as to why he had opened the door
of his house towards the Well. At about
9:00 PM, villagers were collected at the
Well for the Panchayat. An electricity bulb
was lit up. In the said Panchayat, all the
injured persons namely Mangu, Hariya,
Mahaveer including PW-1 and other
villagers were present. Amongst Panchayat
people, Mangu called the accused Chander
and asked him as to why he had opened the
door towards the Well. Getting angered by
it, the accused Chander first challenged the
Panchayat people and then exhorted his
brothers to teach them a lesson. Hearing
that brothers of the accused Chander
namely other seven accused persons herein
came out with their Lathis and Chander
started wielding Lathi at Mangu which was
caught by Soma and then all the accused
persons started beating the deceased Soma.
The injured were also beaten by the
accused persons when they tried to
intervene. The mother of the deceased
Soma namely Shanti was also beaten by the
accused persons when she intervened.
There was blood at the place of the
6 All. Chander & Ors. Vs. State of U.P.
631
incident. The injured went to their house,
thereafter, and the accused persons also
reached at the house of Soma and they also
behind them. The accused again beaten the
deceased Soma in front of his house and in
the meantime, the first informant Omi, the
brother
of
the
deceased
came.
He
challenged and then the accused persons
ran away. Omi took all the injured to the
District Hospital Laksar and Soma had died
on the way.

18. It was admitted, in cross, by PW-1
that a cross-case was lodged against the
complainant side namely the injured, first
informant and other persons of 'Maarpeet'
of Sewa Ram and Mohar Singh (two
injured on the side of the accused). All the
persons on the complainant side who are
implicated in the cross-case belonged to an
extended family except Singhara (PW-2),
being related to each other. A suggestion
was given to PW-1 that a relative of
deceased Soma named as Jaipal who was
posted as Munsif Magistrate in District
Muzaffarnagar was instrumental in the
lodging the case. In reply, PW-1 stated that
he was not aware that Jaipal came in the
Pairvi of the case. The suggestion that
Panchayati Well was filled about 50 years
back was denied by PW-1 and it was stated
that it was filled only about 1 or 1-1/2 years
ago. It was admitted that there was no tap
near the Well and the suggestion that there
was no drain near the Well for drainage of
water was categorically denied.

19. It was admitted by PW-1 that he
had no concern with Gram Sabha and was
only a resident of the village. Other
accused persons were also not members of
the Gram Sabha and not even Mangu. He,
however, stated that they made a complaint
before the Gram Pradhan. PW-1, however,
could not recollect as to whether the Gram
Pradhan or the members of the Gram Sabha
came at the spot of the incident on the
fateful day. PW-1, on confrontation, stated
that the door towards the Well was opened
by accused Chander on the same day and
about one year prior to the incident, he
started filling the Well and drain was also
closed. About one week prior to the
incident, he was instructed not to change
the direction of the door for the reason that
he had already covered the drain. It was
further stated by PW-1 that since there
were taps in the village, no one had
objected to the act of the accused Chander
in filling the Well. He then stated that no
body takes interest in the matter of
Panchayat and when the accused Chander
filled the Well and covered the drain, they
did not have any idea that he would also
encroach upon the Panchayat land. PW-1
further stated that his statement was
recorded by the Investigating Officer.
When confronted, he replied that he did not
know as to why his correct statement was
not recorded. While stating that the
villagers were collected in the Panchayat
and they were all sitting near the Well, PW1 stated that all of them were empty hands
as they did not have any apprehension of
fight. Chander also came empty hands
initially, being angered, he went to his
house and brought Lathi. Before they could
understand anything, he wielded Lathi on
the complainant side and all other accused
persons also joined him. The Panchayat
people
had
disbursed
and
no
one
intervened. PW-1 stated that the house of
injured Shanti must be about 70-80 paces
from the place of the incident and the
suggestion that it was about 200 paces was
categorically denied. He then stated that no
one stopped Shanti from intervening and
the accused persons were not shouting
when they went towards the house of
Soma. All injured went away quietly after
632 INDIAN LAW REPORTS ALLAHABAD SERIES
sustaining injuries and they were not
shouting 'Bachao-Bachao'. The deceased
Soma went to his house on his own and the
accused persons also went behind him. A
suggestion that PW-1 belonged to the
extended family of deceased Soma was
categorically
denied
by
him.
The
suggestion was given about political rivalry
of the accused Chander with other persons
including PW-2 Singhara. PW-1, however,
denied that accused Chander had won the
elections. The suggestions that he did not
witness the incident and that he belonged to
the
family
of
the
deceased
were
categorically denied by PW-1.

20. PW-2, Singhara, another witness
mentioned in the FIR, is a villager whose
version is almost the same as narrated by
PW-1, PW-3 and PW-4 about the manner
and the reason for the occurrence. On
confrontation, PW-2 denied that he had
also encroached upon the Gram Sabha land
and on an application given by Chander,
his possession was removed. On the
suggestion of political rivalry with the
accused Chander, he stated that the said
election was held much earlier and it was
denied that the injured were on his side in
the said election. It was admitted by PW-2
that he was an accused in the cross-case.
The statements given by the prosecution
witnesses (PW-1, PW-3 and PW-4) that the
accused Chander had started filling the
Well and that he had earlier agreed not to
open the door towards the Well, had been
reiterated by PW-2. It was stated by him
that all on the complainant side were empty
hands. PW-2 was confronted with his
statement under Section 161 Cr.P.C. and
reiterated that the injured went to their
house after sustaining injuries and the
accused persons also followed them;
'Maarpeet' had occurred in front of the
house of deceased Soma for about 11⁄2
minutes. PW-4 Omi, wielded Lathi on the
accused persons. PW-2 admitted the fact
that Omi (PW-4) also wielded Lathi was
not told to the Investigating Officer and
then he stated that the Officer might not
have asked him. The suggestion that the
injured themselves went to the house of the
accused Chander carrying Lathi at about
9:00 PM, on the fateful day, and confronted
with accused Chander and Mohar Singh
and then started wielded Lathi on them and
Sewa Ram who came in between was also
beaten by Lathis was denied by PW-2. It
was denied that Sewa Ram and Mohar
Singh (injured on the accused side) wielded
Lathis in their defence. It was also denied
that in order to get away from the cross
case, a false story was concocted by the
witnesses.

21. Placing the above noted oral and
documentary evidence on record, learned
counsel for the appellants argued that it has
come in the evidence of the prosecution
witnesses that both sides wielded Lathis
though it is sought to be projected that the
victim side acted in self-defence. Two
accused persons namely Mehar Chand and
Sewa Ram had sustained injuries and their
injuries were examined by PW-6, the
doctor, who had also examined the injured
on the complainant side. It is, thus, proved
that two persons on the accused side had
sustained injuries in the same occurrence.
In the said scenario, non-explanation of the
injuries of the accused side will be fatal to
the prosecution case. The prosecution
witnesses who had denied the presence of
the injuries on the person of the accused are
proved to be liar on the most material point
and their evidence is liable to be rejected as
untrustworthy. The omission on the part of
the prosecution to explain the injuries on
the person of the accused assumes greater
importance as the prosecution evidence
6 All. Chander & Ors. Vs. State of U.P.
633
consisted
of
interested,
inimical
and
partisan witnesses. The defence version
which explains the injuries on the person of
the accused, therefore, is to be rendered
probable throwing serious doubt on the
prosecution case.

It is further contended that the
prosecution has suppressed the genesis of
the incident. In the first information report,
PW-4, the first informant very conveniently
suppressed the first place of the incident
and the story narrated by him in the FIR as
well as his version in the Court was only
with respect to the place of the incident
being in front of the house of the deceased.
Whereas, all other witnesses stated that the
incident had started from near the public
Well and after deceased Soma got injured
by the accused and went to his house, the
accused persons reached there and beaten
him again.

22. The act of PW-4 Omi in
suppressing the first part of the incident as
proved by other prosecution witnesses casts
a serious doubt on the prosecution story.
The defence version that the complainant
side came to the house of accused Chander
and wielded Lathis on him and two
accused-appellants namely Mehar Chand
and Sewa Ram got injured when they tried
to save accused Chander is more probable
and liable to be believed. At least, it is
proved that the genesis of the incident has
been suppressed by the complainant side.
The
prosecution
witnesses,
therefore,
cannot be said to be truthful when they
have given reason for the occurrence which
is that the accused Chander attacked
Mangu and deceased Soma was beaten
while he was saving Mangu and other
injured were beaten when they came to
save the deceased Soma. It is proved form
the statement of the prosecution witnesses
itself that no Gram Sabha member or the
Gram Pradhan was present. The assertion
by the prosecution witnesses that a
Panchayat was called is an utter lie. Six
persons were injured on the complainant
side whereas only one Mehar Chand had
entered in the witness-box and no other
witness came to depose in the Court. This
shows that the prosecution version about
the genesis of the incident is false. There is
no recovery from the place of the second
incident, i.e. in front of the house of the
deceased Soma whereas three Lathis were
recovered from Chander, Mohar singh,
Ram Pal and Sewa Ram.

23. With the above contentions, it is
vehemently submitted by the learned
counsel for the appellants that in view of
the cross-case lodged by the accused side
giving their version of the incident, it is
proved in the present case that the
prosecution had suppressed the genesis of
the incident. The trial court had, thus,
committed grave error in convicting the
accused persons for the offence of murder
under Section 302 readwith Section 149
IPC. The decision of the trial court is liable
to be set aside and the appeal deserves to be
allowed.

24.