# Devendra Shukla @ Mintu & Anr v. State of U.P

- **Citation:** (2024) 12 ILRA 401
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-20
- **Case number:** Criminal Appeal No. 689 of 2019
- **Bench:** Ashwani Kumar Mishra, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-shukla-mintu-anr-v-state-of-u-p-51215
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code,1860Section 302-Accused convicted u/s 302 of IPC
and associated offences as allegation against
accused persons that they assaulted informant's
father with knife and gupti - none of the other
family members sustained any injuries -
indicative of the fact that the incident has not
occurred in the manner suggested by the
prosecution-two circumstances with regard to
criminal traits of the deceased and unexplained
injuries on the accused are taken in conjunction
with the other facts -a distinct possibility of it
being an incident in which the accused persons
visited the house of deceased to discuss and
sort out conflicts -offence would not fall u/s 302
IPC but would fall u/s 304 (Part-I) IPC.

Appeal partly allowed. (E-9)

List of Cases cited:

Babu Ram & ors. Vs St. of Pun. (2008) 3 SCC
709

## Text

12 All. Devendra Shukla @ Mintu & Anr. Vs. State of U.P.
401
withstand the legal position and requires to
be reversed by acquitting the accused from
the charges levelled against him.

71. Consequently, the appeal deserves
to be allowed by setting aside the impugned
judgment and order of conviction.

72. In view of that following order is
passed:-

(i) Appeal stands allowed.

(ii) Judgment dated 28.08.2017
and order of conviction dated 30.08.2017 in
Sessions Trial No. 279 of 2012 and
Sessions Trial No. 280 of 2012 passed by
learned Addl. Sessions Judge, Court no.2,
Muzzafarnagar stands quashed and set
aside.

(iii)
The
accused-appellant-
Lavkush is acquitted of offence punishable
under Section 302 I.P.C. as well as under
Section 25 of Arms Act.

(iv) The accused-appellant be
released from jail forthwith, if not required
in any other offence.

(v) The amount of fine, if
deposited, be refunded to the accusedappellant.
----------
(2024) 12 ILRA 401
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 689 of 2019
With
Criminal Appeal No. 299 of 2019

Devendra Shukla @ Mintu & Anr.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Ramesh Chandra Yadav, Sri Saurabh
Yadav

Counsel for the Respondent:
G.A., Sri Kuldeep Johri

Criminal Law - Indian Penal Code,1860Section 302-Accused convicted u/s 302 of IPC
and associated offences as allegation against
accused persons that they assaulted informant's
father with knife and gupti - none of the other
family members sustained any injuries -
indicative of the fact that the incident has not
occurred in the manner suggested by the
prosecution-two circumstances with regard to
criminal traits of the deceased and unexplained
injuries on the accused are taken in conjunction
with the other facts -a distinct possibility of it
being an incident in which the accused persons
visited the house of deceased to discuss and
sort out conflicts -offence would not fall u/s 302
IPC but would fall u/s 304 (Part-I) IPC.

Appeal partly allowed. (E-9)

List of Cases cited:

Babu Ram & ors. Vs St. of Pun. (2008) 3 SCC
709

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This criminal appeal is directed
against the judgment and order dated
12.12.2018, passed by the 4th Additional
Sessions Judge/Special Judge, E.C. Act,
Pilibhit in Sessions Trial No.199 of 2015
(State Vs. Devendra Shukla @ Mantu &
Ors.), under Sections 148, 452, 302/149,
323/149, 504, 506 IPC, arising out of Case
Crime No.529 of 2015, Police Station -
Sungarhi, District - Pilibhit; Sessions Trial
Nos.200 of 2015 (State Vs. Rahul Shukla
Alias Rinku), 201 of 2015 (State Vs.
Devendra Shukla @ Mantu), 202 of 2015
402 INDIAN LAW REPORTS ALLAHABAD SERIES
(State Vs. Mahesh Shukla), under Section
4/25 Arms Act, arising out of Case Crime
Nos.530 of 2015, 531 of 2015, 532 of
2015, Police Station - Sungarhi, District -
Pilibhit; whereby the accused appellants
Devendra Shukla @ Mantu, Rahul Shukla
Alias Rinku and Mahesh Shukla have been
convicted
and
sentenced
to
life
imprisonment under Section 302/149 IPC
alongwith fine of Rs.10,000/- and in default
of payment to undergo three months
additional imprisonment; sentenced to one
year rigorous imprisonment under Section
323/149 IPC; sentenced to one year
rigorous imprisonment under Section 148
IPC; sentenced to three years rigorous
imprisonment under Section 452 IPC
alongwith fine of Rs.2,000/- and in default
of payment to undergo two months
additional imprisonment; sentenced to one
year rigorous imprisonment under Section
504 IPC; sentenced to three years rigorous
imprisonment under Section 506 IPC;
sentenced
to
one
year
rigorous
imprisonment under Section 4/25 Arms Act
alongwith fine of Rs.1,000/- and in default
of
payment
to undergo
one
month
additional imprisonment. All the sentences
are to run concurrently.

2.
At
11.45
AM on 6.3.2015,
informant Neelu Rupali Pandey was at her
house alongwith her parents and brother
Mudit Mishra when accused Devendra
Shukla @ Mantu, Rahul Shukla Alias
Rinku armed with knife, Triloki Nath
Shukla @ Tillu armed with gupti (a sharp
edged instrument), Anuj Shukla and
Mahesh Shukla armed with knife entered
informant's house at Nai Basti, near Chatri
crossing within Police Station Sungarhi,
District Pilibhit and in furtherance of their
common intention attacked informant's
father. Accused Mahesh Shukla exhorted
by saying that informant's father had dared
to lodge a report against his daughter so he
be not spared. Accused persons then
assaulted informant's father with knife and
gupti and when other family members tried
to save them, they (family members) were
also beaten and by extending threats the
accused left. Out of fear of accused none
from the neighbourhood came to their
rescue. Informant brought his injured father
to the police station. Some time before this
incident accused Mahesh Shukla had
allegedly extended life threat to informant's
father on phone. The incident was reported
by the informant vide her written report
dated 6.3.2015 which is exhibited as
Ex.Ka.1 during trial. On the strength of the
above written report First Information
Report came to be lodged under Sections
147, 148, 149, 302, 452, 323, 504, 506 IPC
at Police Station Sungarhi, District Pilibhit
on 6.3.2015 at 12.20 PM.

3. The investigation proceeded on the
basis of the FIR and the inquest was
conducted on 6.3.2015 at 2.30 PM. The
inquest witnesses were of the view that
deceased Nirmal Mishra has been done to
death apparently on account of injuries
caused by knife and to ascertain the correct
cause of death postmortem be conducted.
The body was sealed and sent for
postmortem.
Postmortem
was
also
conducted on the same day. The autopsy
surgeon found existence of following antemortem injuries and the cause of death was
reported as shock and hemorrhage due to
following ante-mortem injuries caused by
stabbing:-

"1. Abrasion on middle of chest 4
cm x 2 cm red in color

2. Punctured wound 2 cm x 0.5
cm bone deep on left side chest 8 cm below
left nipple red in color
12 All. Devendra Shukla @ Mintu & Anr. Vs. State of U.P.
403

3. Stitched wound 3 cm width on
left side abdomen 16 cm below from left
nipple horizontally placed on exploration it
was punctured wound through and through
in abdominal cavity with cutting peritonial
and muscles (stabbed)

4.Stitched wound 2 cm width
horizontally placed, 9 cm above from
umbilicus on exploration wound passed
through and through in abdominal cavity
with cutting peritonial and muscles

5. Abraded contusion on left side
8 cm x 3 cm obliquely placed 4 cm above
left anterior superior iliac spine red in
color

6. Abrasion 2 cm x 1 cm on left
thigh 10 cm below left iliac crest red in
color

7. Lacerated wound on right little
finger 1 cm width at palmar aspect red in
color

8. Lacerated wound on thumb left
1.5 cm x 0.5 cm at palmar aspect red in
color

9. Lacerated wound on left index
finger at palmar aspect 1 cm x 0.5 cm red
in color

10. Lacerated wound on left
middle finger at palmar aspect 1.5 cm x 0.5
cm red in color"

4. The accused Rahul Kumar Alias
Rinku, Devendra Shukla @ Mantu sons of
Mahesh Kumar Shukla and Mahesh Kumar
Shukla were arrested on 6.3.2015, who
confessed that daughter of accused Mahesh
Kumar, namely Shilpi was married to
Deepak Pandey of Bareilly. Brother of
Deepak Pandey, namely Prakash Pandey
was married to the daughter of deceased
Nirmal Mishra, namely Neelu @ Rupali.
Neelu @ Rupali had lodged an FIR
complaining dowry harassment by her
husband and in-laws in which Shilpi
(daughter of accused Mahesh Shukla) was
also implicated. Accused Mahesh Shukla
alongwith his sons Rahul Kumar Alias
Rinku, Devendra Shukla @ Mantu, Triloki
Nath Shukla as well as with grandson Anuj
Shukla visited deceased Nirmal Mishra to
enquire about the dowry related criminal
case and it was there that Nirmal Mishra
started abusing them and in a fit of rage
they assaulted Nirmal Kumar Mishra with
knives and gupti. These weapons were then
cleaned and hidden in the toilets at their
house. On the basis of such confession the
police took the accused to their house from
where three knives were recovered on the
pointing out of accused Mahesh Shukla and
his two sons Rahul Kumar Alias Rinku,
Devendra Shukla @ Mantu. Since the size
of the knife was more than the prohibited
size, as such second FIR came to be lodged
under Section 3/25 Arms Act as Case
Crime Nos.530 of 2015, 531 of 2015, 532
of 2015, Police Station - Sungarhi, District
- Pilibhit. Recovery memo was also
prepared in respect of three knives
recovered from possession of accused
Mahesh Shukla, Rahul Kumar Alias Rinku,
Devendra Shukla @ Mantu. On 6.3.2015
itself the Investigating Officer visited the
place of occurrence and took the blood
stained earth and plain earth in separate
boxes and sealed it vide Ex.Ka.4.

5. On 22.5.2015 accused Triloki Nath
@ Tilu proceeded son of Mahesh Shukla
was arrested at 7.45 in the morning and on
his pointing out gupti was recovered from
an old tubewell room in the Barha railway
colony the accused appellant confessed that
it is with this gupti that he has assaulted
deceased Nirmal Kumar Mishra and had
hidden it there. Gupti was nine inches long
of which seven inches had wooden bait
while the sharp pointed part is of two
inches. It was pointed at the edge and flat
on the middle part. Deceased was aged
404 INDIAN LAW REPORTS ALLAHABAD SERIES
about 55 years with average body built.
The deceased was in his undergarments and
wearing a janeu (a piece of wired thread)
on him. The Investigating Officer recorded
the statement of witnesses including family
members and on the strength of recoveries
made from the place of occurrence as also
on the pointing out of accused appellants
submitted charge-sheets in both the FIRs
on 10.3.2015 and 24.5.2015. Cognizance
was taken on the aforesaid charge-sheets
and the case was committed to the courts of
Sessions where it got registered as Sessions
Trial No.199 of 2015, under Sections 148,
452, 302/149, 323/149, 504, 506 IPC,
arising out of Case Crime No.529 of 2015
and Sessions Trial Nos.200 of 2015, 201 of
2015, 202 of 2015, under Section 4/25
Arms Act, arising out of Case Crime
Nos.530 of 2015, 531 of 2015, 532 of
2015. On 19.8.2015 the accused appellants
were charged of above offences and since
they denied their implication and demanded
trial, the proceedings of trial commenced.

6. The prosecution has adduced
following documentary evidence:-

"1. FIR dated 6.3.2015
as
Ex.Ka.16

2. Written Report dated 6.3.2015
as Ex.Ka.1

3.
FIR
dated
6.3.2015
as
Ex.Ka.19

4. Recovery Memo of blood
stained & plain soil as Ex.Ka.4

5. Recovery Memo of knife as
Ex.Ka.5

6. Recovery Memo of 'gupti' as
Ex.Ka.7

7.
'Panchayatnama'
dated
6.3.2015 as Ex.Ka.10

8. P.M. Report dated 6.3.2015 as
Ex.Ka.2"

7.
In
addition
to
the
above
documentary evidence the prosecution has
produced informant, namely Rupali Pandey
@ Neelu as PW-1. She has told that she got
married to Prakash Pandey in 2007. She
was happy with her husband. Few months
prior to the incident her husband developed
inclination towards her jethani Shilpi
Pandey. This led to strained relations
between the family members. Father-in-law
Sudheer Pandey, mother-in-law Shakuntala
Devi, husband Prakash Pandey and jethani
Shilpi Pandey started harassing her for
demand of dowry. She came to her father's
house and lodged a police case of dowry
against her husband, in-laws and jethani.
On account of lodging of this FIR accused
Mahesh Shukla alongwith his sons and
grandson became annoyed. On 6.3.2015
accused Mahesh Shukla telephoned Nirmal
Kumar Mishra and extended life threats to
her father. On the same day at about 11.45
in the morning accused persons came to her
husband and started hurling abuses. It is
thereafter that all the accused collectively
attacked her father. Accused Mahesh
Shukla, Devendra Shukla and Anuj Shukla
were carrying knives, while accused Triloki
Nath had a gupti in his hands. These
persons indiscriminately inflicted blows
and seriously injured her father. It is
thereafter that PW-1 took her father to the
hospital in injured condition where written
report was prepared. She has proved the
written report and the same is exhibited as
Ex.Ka.1. After lodging of the report the
witness took her father to District Hospital,
Pilibhit where he was admitted and on the
same day at about 1.45 in the afternoon her
father died. Statement of the witness was
recorded by the Investigating Officer at the
Hospital. The Investigating Officer came to
her house and inspected various spots
where blood etc was lying and recovery
memos were prepared in the presence of
12 All. Devendra Shukla @ Mintu & Anr. Vs. State of U.P.
405
her brother Mudit Mishra, mother Santosh
Mishra and sister-in-law Shilpi Mishra.

8. In the cross-examination PW-1 has
stated that six months after her marriage
demand of dowry started which continued
till she was literally thrown out of the
house. Prior to her leaving the house she
neither lodged any FIR nor made any
complaints against the family members.
Report was lodged at Police Station
Sungarhi on 21.2.2015. In the dowry case a
compromise was worked out and she was
living in her matrimonial house. She had
not given any affidavit in the dowry case
that the report was lodged on the
persuasion of others. On 21.2.2015 neither
her in-laws came nor any threat was
extended to her father. These facts were not
disclosed by her in the FIR lodged by her.
In case such an assertion is contained in the
FIR then the same is not correct.

9. It was Holi on the date of incident.
People were playing colors in the locality.
She was inside her house. The accused
persons suddenly entered the house and
started hurling abuses. They also attacked
her father with knife and gupti. All
Accused entered the room. Initially they
assaulted her father with fists and kicks and
later caused the knife blows. Her father fell.
She tried to save her father but the accused
persons continued to cause injuries. Her
father sustained various injuries. No
injuries of knife and gupti were however
caused to PW-1 or her mother and brother
etc. After assaulting the father accused
persons did not cause any injuries of knife
or gupti to other family members. The
accused left hurling abuses. She had stayed
for about five minutes after the accused
left. She then took her father in the car
owned by her father. She has denied the
suggestion that on the saying of S.H.O. the
report was lodged by her. She was aware
that till the injured was brought to the
hospital the report would not be lodged.
She has specifically denied the suggestion
that the version of extending threats to her
father, on phone, sometime prior to
incident was subsequently added. She has
also stated that blood stains had appeared
on her cloths alongwith that of her mother
and brother. They had gone to the police
station in the blood stained cloths and that
Investigating Officer had seen it also. The
Investigating Officer, however, had not
collected their blood stained cloths. No
case was lodged against her father and it is
incorrect to state that he has any criminal
history.

10. PW-2 is Mudit Mishra, who
happens to be the son of the deceased and
is the real brother of informant. He has
substantially followed the version of PW-1
with regard to the genesis of the incident as
also the manner in which the incident
occurred. He has stated that a telephone
call was received from mobile number
9761216633 of accused Mahesh Shukla on
the mobile number 9411976624 of his
father. His father had another mobile
number also. Life threat was extended by
accused Mahesh Shukla on mobile. This
fact was told by the deceased to him. PW-2
has proved the panchayatnama, wherein he
was the witness and also proved the
recovery of bloodstained and plain earth
from the place of incident.

11. In his further cross-examination
PW-2 has stated that when his father
informed him of this threat he did not
suggest lodging of any report. He did not
lodge a report either. The accused in this
case were not arrayed as accused in the
dowry case of his sister. Only the in-laws
of Neelu were implicated as accused
406 INDIAN LAW REPORTS ALLAHABAD SERIES
therein. In a specific question posed to the
witness about threat to life extended in the
dowry case he told that he has no such
knowledge. He had read the FIR in the
dowry case. He is, however, aware of the
contents of the report lodged by his sister in
this case. He is aware that no threat to life
was extended to her sister by her in-laws.
His
sister
resumed
living
in
her
matrimonial house after about a month of
the incident wherein her father died. A
compromise has been arrived at. He was
not aware that his father had several
criminal cases against him or that he was
tried for the offence of murder. He has
explained the topography of his house
according to which there is a lawn in front
of his house which is double storied. He
was on the ground floor when the incident
occurred. The accused arrived and hot talks
continued for about 5-7 minutes. No
injuries were caused to him or to his
mother or sister in this incident. The
statement of PW-2, in this regard, reads as
under:-

"मेरा दो मांजजला मकान है। मेरी मकान
के ककनारे पर बाउण्री वाल में गेि लगा है। वह छोिा
गेि है। यह मेन गेि नहीां है। उस गेि में कार नहीां
घुस सकती है। मेन गेि से अन्दर घुसने पर लॉन है।
हम अपनी कार मेनगेि से गैलरी में खड़ी करते है।
लॉन करीब 10 x 6कफि लम्बा चौड़ा है। बरामदा नहीां
है। घिना के समय मैं नीचे था। कोई बातचीत नहीां
हुई थी,केवल गाली-गलौच हुई थी। कुछ झगड़ा 5-7
भमनि चला था। गाली गलौज 1-2 भमनि हुआ था।
मौहल्ले के कोई लोग झगड़े के समय नहीां आए थे।
मुझे झगड़े में चोि नहीां आई और न ही मेरी मम्मी
व बटहन को चोि आई।"

12. This witness has denied the
suggestion that FIR contents are based on
legal advise. He has denied the suggestion
that he was not present at the house when
the incident occurred or that accused are
falsely implicated. In a question posed to
the witness by court he stated as under:-

"मैं नही बता सकता ककस मुलजजम ने
मेरे वपता के ककस अांग पर क्या मारा। वार होने से
पहले मैंने िारदार हधथयार देख भलए थे। मैंने
अभियुक्तगण के पास िारदार हधथयार देखने के बाद
शोर नहीां मचाया। वपता के चोि लगने के बाद मेरी
वपता से बातचीत नहीां हुई। वह बेहोश नहीां हुए, होश
में थे। मेरे वपता की ककसी और से िी बातचीत नहीां
हुई। अस्पताल इलाज को ले गए थे। मेरे वपता को
करीब 10 भमनि (Sic) रोके रक्खे थे कफर वपता वहीां
मर गए थे। यहाां खून धगरा था, वहाां पर भमट्िी पर
िी खून धगरा था और फशग पर िी खून धगरा था।
बत्रलोकी नाथ के पास गुप्ती थी। गुप्ती कहाां मारी थी,
नहीां पता गुप्ती बबना कवर की थी, खुली देखी थी।"

13. He also stated that:-

"प्रश्नः- क्या आपकी झगड़े से पहले
वपता से बातचीत हुई थी?

उ०ैः- मेरे वपता ने मुझे िमकी वाली
बात बताई थी। जजस फोन पर मेैेरे वपता को िमकी
दी गई वह मोबाईल मेरे पास रहा। पुभलस को नहीां
टदया।

दरोगा जी ने मेरे से मोबाईल लेकर कॉल
दरोगा जी ने मोबाईल का मेमोरी कार्ग नहीां भलया था
और उस मौबाईल की मेमोरी की िी जाांच नहीां की
थी। दरोगा जी ने केवल मोबाईल को देखा था,
कम्प्यूिर पर scan नहीां ककया था। मुझे दरोगा जी ने
बताया था कक उन्होनें मोबाईल का कॉल डर्िेल
ररकार्ग ननकलवाया है। दरोगा जी ने जो िी मुकदमें
की जाांच की उसकी प्रगनत ररपोिग मुझे नहीां दी।
दरोगा जी ने मुझे माचग 2015में कॉल ररकार्ग टदखाया
था।"

14. PW-3 is Dr. Rajesh Kumar, who
had conducted postmortem on the deceased
12 All. Devendra Shukla @ Mintu & Anr. Vs. State of U.P.
407
and has proved the postmortem report. He
has opined that the cause of death was the
stab injury which resulted in excessive loss
of blood. Injury no.2,3,4 and intestinal
injuries could have been caused by sharp
edged weapon, whereas other injuries could
have been caused by fists and kicks. Injury
no.6 could have been caused by a stick or
an iron rod. Injury no.7 to 12 also could
have been caused by a stick or an iron rod.
Injury no.7,8,9 could have been caused by
a broken bottle also.

15. PW-4 is Inspector Brajesh Singh,
who conducted investigation in the matter
and has proved the police papers including
the charge-sheet filed in the present case.
He has also proved the recovery of weapon
of assault. This witness has admitted that
the deceased had several cases of murder,
loot and dacoity pending against him. He
had a criminal background. He also
disclosed that the father of deceased Ram
Kumar and his uncle were also convicted
for murder.

16. PW-5 is Sub-Inspector Ashok
Kumar, who has proved the inquest and
some of the other police papers. He had no
knowledge as to whether the recovered
knives were sent for forensic science
laboratory or not. He had not seen the FIR
or GD at the time of filling up inquest.
Incident of death was already reported in
the GD.

17. PW-7 is SI Rahmat Khan. He
partly conducted investigation in the
present case and recorded statement of
witnesses.

18. The above evidence led in the
matter has been confronted to the accused,
who have denied the evidence and have
stated that police proceedings are all
fraudulent. Anti-time papers have been
prepared. On 6.3.2015, it was Holi and at
about 9.00 accused alongwith his sons were
hit by an unknown vehicle near the
crossing wherein the accused sustained
injuries and gave information to the police.
The accused were taken to the hospital
where they were examined. The informant
in collusion with the police has lodged a
false report.

19.
The
defence
has
produced
testimony of doctor Dr. Anupam Sharma,
Emergency
Medical
Officer,
District
Hospital, Pilibhit as DW-1. He has proved
the injuries of accused Rahul Shukla which
are as under:-

"1. Incised wound skin deep
1x0.5cm on palmar aspect of right hand 4
cm from right wrist.

2. Incised wound 1x0.5 cm on
dorsal aspect of right hand, 4 cm above
forearm, base of right little finger.

3. Complaint of pain in left
wrist."

20. All the injuries were fresh and
could have been caused by a sharp edged
weapon. Accused Mahesh Shukla has also
been examined by DW-1 on the same day
and following injuries have been found on
him:-

"1. Incised wound 1x0.5cm on
sternum, muscle deep, 8 cm from below left
nipple with tailoring 4 cm towards left
oblique.

2. Contused abrasion 6 cm from
wound, injury no.1.

3. Complaint of pain in right
middle finger.

4. Contused abrasion 7 cm long
on left side of chest, 2cm below from injury
no.1.
408 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Complaint of pain in head."

The patient was kept under
observation. Injuries were fresh and injury
no.1 could have been caused by a sharp
object. Injury no. 2 and 3 could have been
caused by a pointed object. The patient was
referred for expert opinion to surgeon. This
witness has produced the original records
of injury and its photocopy has been
produced. He has also stated that police had
taken all such original records from him
earlier.

21. It is on the basis of above evidence
that the trial court has convicted and
sentenced the appellants, as per above.

22. Learned counsel for the appellants
argued that all the accused appellants have
been falsely implicated in the present case.
It is submitted that the testimony of
witnesses are not reliable. Genesis and
manner of incident is not proved on the
strength of evidence led in the trial. In the
alternative it is submitted that the incident
occurred at the spur of the moment without
any intent to commit the murder of the
deceased. It is also submitted that the
injuries on the accused are not explained by
the prosecution, consequently, genesis is
not proved and since possibility of incident
having suddenly occurred cannot be ruled
out the conviction and sentence of accused
appellants cannot travel to Section 302 IPC
and would, at best, fall under Section 304
IPC. It is
also submitted that the
prosecution case about extending threat of
life to the deceased on phone is clearly a
case of improvement based on advise in
respect of which no evidence is collected.
Submission is that this part of the
prosecution case is a deliberate falsehood
introduced on advise with intent to make
out a case of murder for which no evidence
otherwise exists on record.

23. Per contra, learned AGA and Sri
Kuldeep Johri, learned counsel for the
informant submits that the incident was
pre-planned
and
was
executed
after
extending threat on phone to the deceased
for which specific motive was available to
the accused. Submission is that the manner
in which the incident occurred belies any
plea of it being a case of sudden
provocation. It is also submitted that
defence explanation that accused sustained
injuries in an accident or that the deceased
died in an accident are wholly misplaced
and the plea in that regard is clearly
inconsistent with the evidence on record. It
is, therefore, argued that the judgment of
trial court convicting and sentencing the
accused appellants requires no interference.

24. Background facts of the case, as
are noticed above, remain undisputed. The
daughter of deceased i.e. the informant as
well as daughter of accused Mahesh Shukla
were married in the same family to two
brothers. The daughter of accused Mahesh
Shukla is the jethani while the daughter of
deceased (informant) was her younger
sister-in-law (devrani).

25. The FIR came to be lodged by the
informant (PW-1) against her in-laws for
demand of dowry, wherein the daughter of
accused was also implicated. The evidence
further
suggests
that
the
informant
suspected
some
unholy
relationship
between her husband and her sister-in-law
(daughter of accused Mahesh Shukla). This
lodging of FIR led to differences in the
families of the deceased and the accused.

26. The incident occurred on 6.3.2015
when the festival of colors (Holi) was being
celebrated. This festival of colors culturally
provides an occasion for the estranged
relatives
and
friends
to
bury
their
12 All. Devendra Shukla @ Mintu & Anr. Vs. State of U.P.
409
differences and hug each other. However,
on this pious day just the reverse occurred.
In what context and manner this incident
occurred is the subject matter of issue in
the present appeals.

27. The prosecution in order to
demonstrate that it was a case of preplanned murder of the deceased has alleged
that on the date of incident a life threat was
extended by accused Mahesh Shukla to the
deceased on phone. The prosecution
witnesses alleged that it was in furtherance
of this threat that all the accused came
armed and assaulted the deceased as a
result of which he died.

28. The evidence on record has been
examined by us. Though it is the persistent
case of the prosecution that a threat to life
was extended by accused Mahesh Shukla to
the deceased but it remains undisputed that
no such threat was reported to the police.
The two prosecution witnesses of fact
allege that the deceased informed them of
such threat extended to him. None of these
two witnesses, however, suggested lodging
of police report nor actually any such report
was lodged. The threat to life is stated to
have been extended by accused Mahesh
Shukla on his mobile phone. Though PW-2
specifies the mobile number from which
this threat was extended as also the mobile
number on which it was received but the
I.O. has neither taken the phones in his
possession nor any investigation on this
aspect appears to have been conducted.
There is no call detail records collected
during investigation of these mobile phones
which could may demonstrate that any
phone call was received by the deceased
from the mobile phone of accused Mahesh
Shukla. The evidence, therefore, is found
lacking on the aspect of threat having been
extended to the deceased by the accused
persons. To reiterate neither any report is
lodged in this regard nor any call detail
record exits to prove that any mobile call
was made by the deceased to the accused as
is stated by PW-2. The possibility of this
aspect having been introduced as a result of
advice cannot be entirely ruled out.

29. We have already observed that the
date of incident was Holi which is an
occasion for estranged relations to be
normalized by meeting relatives and
friends. Though PW-1 has stated that all
accused
came
and
suddenly
started
assaulting the deceased but this version of
PW-1 is somewhat differently described in
the testimony of other witnesses of fact i.e.
PW-2. According to PW-2 all the accused
came on Holi and for initial 5-7 minutes
they had hot talks, whereafter accused
persons started assaulting the deceased.
The fact that parties talked initially for
some time before the incident occurred is
indicative of the fact that the accused
persons had some talks with the deceased
before the incident occurred. It is not as if
incident occurred in a pre-planned manner
where the accused having extended threat
on
the
phone
came
rushing
and
immediately caused the incident as is
sought to be suggested by the prosecution.

30. The evidence of PW-2, suggesting
a distinct course, seems more plausible.
The fact that none of the other family
members
sustained
any
injuries
is
indicative of the fact that the incident has
not occurred in the manner suggested by
the prosecution. We may also note that
PW-1 although has claimed that other
family members were also beaten but none
of their injuries are examined by the doctor.
PW-2, nevertheless, admits that none of
them sustained any injuries. We are,
therefore,
inclined
to
attach
greater
410 INDIAN LAW REPORTS ALLAHABAD SERIES
importance to the version of PW-2 over
what is stated by PW-1. This is, particularly
so as it was due to estranged relations
between PW-1 and the daughter of the
accused Mahesh Shukla that the entire
incident had occurred. The charge emotions
of PW-1, therefore, cannot be discounted
due to which we are inclined to place
greater trust in the version of PW-2.

31. There are two other circumstances
relating to the incident which have to be
borne in mind. The first circumstance is
that the deceased was a man of criminal
traits. This is admitted by the I.O. in his
testimony. A suggestion has been given by
defence to both the prosecution witnesses
of the fact about the criminal traits of the
deceased. The second circumstance is the
injuries sustained by the accused persons.
The testimony of DW-1 proving the
injuries of two accused has not been
doubted or controverted by the prosecution
or the informant. Though an explanation is
furnished for such injuries by the defence
of an accident but the defence version in
that regard is found wholly unreliable.

32. The law with regard to nonfurnishing of explanation of injuries on the
accused is by now well settled. The
prosecution is expected to prove the
injuries caused to the accused and the
failure to do so may result in generating
doubt about the genesis of incident. In
Babu Ram & Ors. Vs. State of Punjab
(2008) 3 SCC 709, the Supreme Court has
observed as under in para 18 and 19 of the
judgment:-

"18. It is a well-settled law that
in a murder case, the non-explanation of
the injuries sustained by the accused at
about the time of the occurrence or in the
course of altercation is a very important
circumstance from which the court can
draw the following inferences:

"1. that the prosecution has
suppressed the genesis and the origin of the
occurrence and has thus not presented the
true version;

2. that the witnesses who have
denied the presence of the injuries on the
person of the accused are lying on a most
material point and therefore their evidence
is unreliable;

3. that in case there is a defence
version which explains the injuries on the
person of the accused it is rendered
probable so as to throw doubt on the
prosecution case." (See Lakshmi Singh v.
State of Bihar [(1976) 4 SCC 394 : 1976
SCC (Cri) 671 : AIR 1976 SC 2263] , SCC
p. 401, para 12.)

19. Further, it is important to
point out that the omission on the part of
the prosecution to explain the injuries on
the person of the accused assumes much
greater importance where the evidence
consists of interested or inimical witnesses
or where the defence gives a version which
competes in probability with that of the
prosecution one."

33.
When
the
above
two
circumstances with regard to criminal traits
of the deceased and unexplained injuries on
the accused are taken in conjunction with
the other facts on record we find a distinct
possibility of it being an incident in which
the accused persons visited the house of
deceased to discuss and sort out issues
relating to conflicts between the two ladies
on account of lodging of report by PW-1
against her in-laws. It is also admitted to
PW-1 that after the death of her father she
has resolved the differences with her inlaws and has been residing with them. The
differences between her and her in-laws
were therefore such which could have been
12 All. Devendra Shukla @ Mintu & Anr. Vs. State of U.P.
411
sorted out. The attempt on part of accused
persons, therefore, to visit the deceased and
the informant for resolving their differences
by visit on a pious day appears to be a
distinct possibility. This is so as we have
found no evidence with regard to any
earlier threat having been extended to the
deceased by the accused. It is in this
background that the parties appear to have
entered into an altercation which led to the
fight in which blows were exchanged
between the accused and the deceased. This
is clearly reflective from the injuries on the
deceased caused by fists and kicks etc. An
analysis of injuries on the deceased and the
accused also throws some light on what
may have happened on the fateful day.
Injury no.7 to 10 of the deceased are on his
fingers and in the nature of laceration.
Injuries on accused are also such which
reflects that scuffle and exchange of fists
etc occurred before injuries no.2 to 4 were
caused to the deceased by knife and gupti,
which proved fatal.

34. So far as the use of gupti and
injuries are concerned, the recovery made
from the accused appellants are not in the
presence of any independent witness. No
disclosure statement or panchayatnama is
otherwise on record for such recoveries to
be read in evidence under Section 27 of the
Indian Evidence Act, 1872. There are no
FSL report otherwise to prove the use of
these weapons in the commissioning of
offence. Nevertheless injuries on the
deceased since are caused by sharp edged
weapon it remains undisputed that accused
persons did inflict injuries on the deceased.
Suggestion has been given to the doctor
that many of these injuries could have been
caused by broken bottle or other household
items. Presence of some sharp edged
articles in the room otherwise cannot be
discounted. It is this context that we are
persuaded to opine that in the enraged
emotions the incident suddenly occurred in
which the deceased was inflicted injuries
causing his death. The cause of death is
otherwise loss of blood on account of
injuries caused by sharp edged weapon.
From the evidence placed on record it is
also not clear as to whether the common
object of the unlawful assembly was to
cause the death of the deceased. The entire
incident occurred on Holi after initial talks
for some time leading to a free fight in
which both sides sustained injuries. It is
thus possible that accused side visited
deceased to sort out differences and in hot
talks that followed the incident occurred.

35. We have gone through the
judgment of trial Judge in this case. The
Court of Sessions has not appreciated the
evidence on record in correct perspective,
inasmuch as lack of evidence on the aspect
of life threat extended to the deceased
earlier in the day; lack of evidence on the
recovery of knife and gupti for it to be read
in evidence under Section 27 of the Indian
Evidence Act, 1872; non-explanation of
injuries on accused etc. are overlooked.
The genesis and manner of incident is also
not considered in proper perspective.
Accordingly,
we
cannot
endorse
the
conclusion drawn by the trial Judge upon
appreciation of evidence and for the
reasons already enumerated substitute our
own findings in this case and modify the
sentence on the accused.

36. When the incident is taken in its
entirety in light of the evidence brought on
record we feel that the offence of the
accused would not fall under Section 302
IPC but would fall under Section 304 (PartI) IPC. The conviction of accused is thus
altered from Section 302 IPC to Section
304 (Part-I) IPC. None of the accused
412 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants have any criminal history. The
manner in which the incident appears to
have occurred would not warrant extreme
punishment of life and we, accordingly,
modify the sentence awarded to the
accused
appellants
as
rigorous
imprisonment of ten years in place of life
sentence. All the accused are family
members, otherwise. The imposition of fine
and the default fine is maintained. The
accused appellants shall be set free on
serving the sentence imposed on them.

37. Appeals, accordingly, are partly
allowed.

38. Let a copy of this order be sent to
the concerned Chief Judicial Magistrate for
necessary compliance.
----------
(2024) 12 ILRA 412
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 2054 of 2012

Sattar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Onkar Singh, Sanjay Srivastava

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860Section 302-Case based on circumstantial
evidence -no direct evidence to indicate the
involvement of the accused appellant -no date
of last seen-no other witness who may testify
the presence of enmity between the appellant
and the informant-St.ment of the accused
appellant for the recovery to be made under
Section 27 of the Evidence Act -has not been
recorded in writing by the Investigating Officerchain of circumstances is not complete-mere
suspicion, howsoever strong it may be, cannot
be a substitute for acceptable evidenceimpugned order quashed.
Appeal allowed. (E-9)
List of Cases cited:

1. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) 4 SCC 116

2. G. Parshwanath Vs St. of Karn. (2010) 8
SCC 593

3. Raju Vs St. of Raj. (2022) 121 ACC 954

4. Dharam Deo Yadav Vs St. of U.P. (2014) 5
SCC 509

5. Ashok Vs St. of Mah. (2015) 4 SCC 393

6. Niranjan Panja Vs St. of W.B. (2010) 6
SCC 525

7. Ravi Sharma Vs St. (NCT of Delhi) (2022) 8
SCC 536

8. Chandra Mondal Vs St. of W.B. (2023) 6
SCC 605

9. Jaikam Khan Vs St. of U.P. (2021) 13 SCC
716

10. St. of Orissa Vs Sitansu Sekhar Kanungo
(2002 SCC OnLine SC 1296)

11. St. of U.P. Vs Kishanpal (2008) 16 SCC 73

12. Munshi Prasad Vs St. of Bihar (2002) 1
SCC 351

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. This criminal appeal under Section
374(2) of the Criminal Procedure Code has
been preferred against the judgement and