# Gauri Shankar @ Bacchan & Anr v. State of U.P

- **Citation:** (2020) 6 ILRA 1036
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-29
- **Case number:** Criminal Appeal No. 346 of 2001
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gauri-shankar-bacchan-anr-v-state-of-u-p-45746
- **Pages:** 23

## Headnote

Criminal Law-Indian Penal Code, 1860Sections 147, 148, 302/34 - Appeal
against conviction.

Medical Evidence and Ocular Evidence:-
The medical evidence makes the ocular
testimony improbable, it create doubts the
prosecution version. (Para-16)

Benefit of doubt-
Prosecution concealing fact and presence of
alleged eye witnesses doubtful- accused are
entitled for benefit of doubt. (Para-65)
Prosecution has miserably failed to prove the
charge against the appellant accused. (Para67)

Criminal Appeal allowed. (E-2)

List of cases cited: -

## Text

_Characters 0–39,795 of 76,051. This is a partial read: ask again with offset=39795 for what follows._

1036 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)06ILR A1036
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.05.2020

BEFORE

THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No. 346 of 2001
connected with
Criminal Appeal 295 of 2001

Gauri Shankar @ Bacchan & Anr.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Ravindra Nath Rai, Sri Indra Kumar
Chaturvedi

Counsel for the Respondent:
A.G.A., Sri Sudist, Sri Shiv Narayan Singh,
Sri Santosh Tripathi

Criminal Law-Indian Penal Code, 1860Sections 147, 148, 302/34 - Appeal
against conviction.

Medical Evidence and Ocular Evidence:-
The medical evidence makes the ocular
testimony improbable, it create doubts the
prosecution version. (Para-16)

Benefit of doubt-
Prosecution concealing fact and presence of
alleged eye witnesses doubtful- accused are
entitled for benefit of doubt. (Para-65)
Prosecution has miserably failed to prove the
charge against the appellant accused. (Para67)

Criminal Appeal allowed. (E-2)

List of cases cited: -

1. Lakshmi Singh Vs St.of Bihar[1976] 1 SCC
(Cri) 671, (Para 11, 16).

2. Bhagwan Sahai & anr. Vs St. of Raj. [2016]
13 SCC 171 (Para 8).

3.
Govindaraju
@
Govind
Vs
St.
by
Sriramapuram P.S. [2012] 2 SCC (Cri) 533
(Para 39).

4. Balaka Singh & ors. Vs The St. of
Punjab1975 SCC (Cri) 601, (Para 9).

5. St. of U.P. Vs Wasif Haider etc.[2019] 1
SCC (Cri) 701, (Para 24, 25).

6. Balaka Singh & ors. Vs The St. of Punjab
1975 SCC (Cri) 601, (Para 7).

7. Badam Singh Vs St.of M.P. 2004 (2) JLJ 67
(SC), (Para 15, 23).

8. Balaka Singh & ors. Vs The St. of Punjab
1975 SCC (Cri) 601.

9. Md. Alimuddin & others Vs The St. of Assam
1992 2 Crimes(HC) 506; 1992 0 CrLJ 3287

10. Dahyabhai Chhaganbhai Thakkar Vs St. of
Gujarat, 1964 0 Supreme(SC)

11. KM Nanavati Vs St.of Maharashtra 1961
Supreme(SC) 374,

12. Digamber Vaishnav & anr. Vs St. of
Chandigarh (2019) 4 SCC 522.

13. Gurwinder Singh alias Sonu & anr. Vs St.
of Pun. & anr. (2018) 16 SCC 525.

(Delivered by Hon'ble Ali Zamin, J.)

1. Heard Sri I.K.Chaturvedi, learned
Senior Counsel assisted by Sri Ravindra
Nath Rai, Sri Vinay Saran, learned Senior
Counsel assisted by Sri Pradeep Kumar
Mishra & Sri Indu Shekhar Tripathi,
learned counsel for the appellants, Ms.
Mandvi Tripathi and Sri Shiv Narayan
Singh,
learned
counsel
for
the
complainant/victim,
Sri
M.C.Joshi,
learned A.G.A. for the State, considered
the written submission filed by Sri
6 All. Gauri Shankar @ Bacchan & Anr. Vs. State of U.P. 1037
Pradeep Kumar Mishra and perused the
record carefully.

2. These appeals are directed against
the judgment and order dated 05.2.2001
passed in S.T.No 104/1987, State vs
Gauri
Shankar
and
others,whereby
learned VIth Additional Sessions Judge,
Ballia has convicted the appellants Gauri
Shankar @ Bachchan Yadav, Ram Ashish
Yadav and Rama Kant u/s 147, 302/34
IPC and sentenced each of them to
undergo one year rigorous imprisonment
and life imprisonment, respectively, fine
Rs. 1000/ has been also imposed upon
them with default stipulation.

3. Accused Vishwanath has been
acquitted u/s 148 and 302 IPC by giving
him benefit of doubt.

4. At the very outset it may be noted
that accused Shiv Shankar and Munna Lal
@ Sachchidanand have died during the
trial and case has been abated against
them.

5. In brief, prosecution case is that
there is a Math and its Dhaba in village
Karo. Ramakant Singh son of Sri Tulsi
Singh, younger brother of informant,
Govind Singh was living in the dhaba. On
24.02.1987, Akhand Manas Path was
going on in the Math and Ramakant
Singh was present in the Dhaba. At about
9.00 a.m. due to old enmity, Gauri
Shankar @ Bachchan Yadav and Shiv
Shankar both sons of Rekha Yadav,
Vishwanath
Upadhyay
son
of
Raj
Narayan Upadhyay, Munna Lal @
Sachchidanand son of Yaduvansh Lal,
Ram Ashish Yadav s/o Gauri Shankar
Yadav and Ramakant Yadav s/o Basdev
Yadav, all resident of village Karo, police
station
Chitbada
Gaon,
Ballia
in
furtherance of their common intention
armed with lathi and bhala (spear) coming
to the Dhaba exhorted Ramakant Singh to
come out, on which by jumping back over
boundary wall he fled towards East side.
Assailants chased him with intention to
kill and till reaching moonj (Sarpat)
bushes of betel bhita (mound) of
Vishwanath Barai surrounding him they
assaulted with lathi and bhala, on account
of which he died. On hearing noise
informant, Satya Narayan Singh s/o
Havaldar Singh r/o village Sujayat, Vijai
Lal s/o Vishnu Lal r/o Basdev, Ram
Baran Chaudhary s/o Jagdish Chaudhary
r/o village Vishunpura police station
Chitbada Gaon Ballia and several persons
who were present in the Manas Path
followed up to the spot to save the
deceased and witnessed the incident.

6. On the basis of written report
Ext.Ka-1, Case Crime No.55/1987, under
Sections 147, 148, 149, 302 I.P.C. against
accused under chik F.I.R. Ext. Ka-2 was
registered at 12:30 p.m. on 24.02.1987
and its entry was recorded on G.D. No.16
(Ext. Ka-3). The investigation of the case
was handed over to S.H.O. Sri T.N.
Mishra.
Investigating
Officer
after
recording the statement of informant Sri
Govind Singh, reached the spot. He
prepared inquest memo Ext. Ka-5 and
relevant documents like letter to C.M.O.
(Ext. Ka-6), specimen seal (Ext. Ka-7),
photo lash (Ext. Ka-8), police Form no.13
(Ext. Ka-9) and dispatched the dead body
along with constable Uma Shankar Rai
(PW-6) and Krishna Kumar Pandey for
postmortem.

7. Dr. G.C. Upadhyay conducted
postmortem
of
the dead body on
25.02.1987 at 2:00 p.m. and prepared his
report Ext Ka-4, according to which
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
following injuries were found on the dead
body:

(i). Abrasion 2 c.m. x 1.2 c.m.
on the right arm 6 c.m. above elbow.

(ii). Abrasion 4 c.m. x 1 c.m. on
right ankle joint on the anterior part.

(iii). Abrasion 1 c.m. x 10 c.m.
On the back of thigh middle of right
thigh.

(iv). Abrasion 2 c.m. x 2 c.m.
on the right side face just below the right
eye.

(v). Lacerated wound 2 c.m. x
.05 c.m. x scalp and oblique at 9 O'clock
position just lateral and above the lateral
end of right eye.

(vi). Lacerated wound 2 c.m. x
0.5 c.m. scalp deep 1 c.m. above injury
no.5 oblique 2 O'clock position.

In internal examination right
parietal bone was found fractured. Right
membrane of the brain was congested and
200 gram blood was clotted. According to
his opinion cause of death was shock and
haemorrhage
as
a
result
of
antepostmortem injuries and injuries were
possible on 24.02.1987 at 9:00 a.m.
Ordinarily, the injuries were sufficient for
causing death and instantaneous death
was possible due to the injuries.

8. Investigating Officer took into his
possession five (four live and one empty)
cartridges, blood stained and plain earth
and two lathis from the place of incident
and prepared its memo Ext. Ka-10 to Ext.
Ka-12 respectively. He also prepared spot
map
Ext.
Ka-13. After
completing
investigation submitted charge sheet Ext.
Ka-14, under Sections 147, 148, 149, 302,
34 I.P.C. against the accused persons.

9. Since the offence under Section
302 I.P.C. is triable by Court of Sessions
only, therefore, learned Chief Judicial
Magistrate committed accused to the
court of Sessions where Case Crime
No.55 of 1987, under Sections 147, 148,
149, 302 I.P.C. was registered as S.T. No.
104 of 1987. Learned Sessions Judge
transferred the trial to the court of IInd
Additional Sessions Judge, Ballia, who
framed charge under Sections 147 and
302 I.P.C. against accused Ramakant,
Ram Ashish, Gauri Shankar and Shiv
Shankar, under section 148, 302 I.P.C.
against accused Vishwanath and Munna
Lal. In due course of trial it was again
transferred to the court of VIth Additional
Sessions Judge, Ballia.

10. Prosecution to prove the charge
against the accused persons produced 08
witnesses.
P.W.1
Govind
Singh
informant, P.W.2 Vijay Shankar Lal,
P.W.4 Satya Narayan and P.W.5 Km
Rekha Singh are witnesses of fact, while
P.W.3 Shivanand Pandey scribe of the
chik F.I.R. and G.D., P.W.6 constable
Uma Shankar Rai carrier of dead body for
post mortem. P.W.7 Dr. G.C. Upadhyay
conducted post mortem and P.W.8
S.I.T.N.Mishra, Investigating Officer, are
the formal witnesses.

11. After examination of the
prosecution
witnesses
statement
of
accused were recorded under Section 313
Cr.P.C. in which Gauri Shankar @
Bachchan
Yadav
has
stated
that
Ramakant had asked him to collect
contribution, he refused to do so then he
beat him. Few people rescued him then he
went to the police station. Ramakant has
stated that case proceeded against him
due to enmity. Vishwanath Upadhyay has
stated that his partner Laliya is retired
daroga, who implicated him in collusion
with the informant. Ram Ashish has
6 All. Gauri Shankar @ Bacchan & Anr. Vs. State of U.P. 1039
stated that he has no knowledge why he
has been implicated.

12. In defence D.W.1 R.N. Singh,
X-Ray Technician has been produced,
who has proved injury of accused Gauri
Shankar as Ext. Kha.

13.

Learned
VIth
Additional
Sessions Judge, Ballia after hearing the
parties and perusal of the record passed
the impugned judgment and order as
disclosed in para 2 of the judgment.
Hence, this appeal.

14. Learned counsel for the
appellants submits that witnesses are not
resident of the same village Karo, their
presence is doubtful, that is why story of
Manas Path has been introduced.

15. He further submits that no one
was armed with fire arm but as per
recovery memo Ext Ka-10 live and empty
cartridges were recovered from the spot.
It is defence case that deceased Ramakant
Singh had asked accused Gauri Shankar
to collect contribution, he refused to do so
then Ramakant beat him. In this regard
accused Gauri Shankar had lodged NCR
No 14 u/s 325 (wrongly mentioned in
place of 323), 504 IPC against deceased
Ramakant and two others which has been
proved by PW-3 Shivanand Pandey also.
Injury report Ext. Kha of the accused
Gauri Shankar has been proved by DW-1
R N Singh. These facts show that
prosecution has deliberately suppressed
the genesis and origin of the occurrence
and has not presented true version which
is fatal to the prosecution. In support of
his contention learned counsel has relied
on
Lakshmi
Singh
vs.
State
of
Bihar[1976] 1 SCC (Cri) 671, (Para 11,
16) and Bhagwan Sahai and Another
vs. State of Rajasthan [2016] 13 SCC
171 (Para 8).

16. Next submission is that
prosecution evidence is, lathi and bhala
were used in causing the injuries but as
per medical evidence no injury is possible
by bhala, thus ocular evidence is also not
supported by the medical evidence. Even
the injuries alleged to have been caused
and found on the body of the deceased,
the story put forward by the prosecution
is not only improbable but is impossible
of being true. In support of the contention
learned
counsel
has
relied
on
Govindaraju @ Govind vs. State by
Sriramapuram P.S. [2012] 2 SCC (Cri)
533 (Para 39) and Balaka Singh and
others vs. The State of Punjab1975
SCC (Cri) 601, (Para 9).

17. It is also submitted that in site
plan position of witnesses from where
they saw the incident has not been shown
which is fault on the part of investigating
officer and benefit of doubt arising out of
a faulty investigation also accrues in
favour of the accused. In support of his
contention he has relied on State of Uttar
Pradesh vs. Wasif Haider etc.[2019] 1
SCC (Cri) 701, (Para 24, 25).

18. He further submits that as per
prosecution FIR was lodged on 24.2.1987
at 10:30 a.m. but in inquest memo time of
information at police station is mentioned
as 9:00 a.m. In the inquest memo it is
mentioned that papers including FIR were
sent for postmortem but according to PW8 investigating officer dead body was
received on 24.2.1987 at 9:00 p.m. and
papers were received on 25.2.1987 at 9:25
a.m. Since FIR was not in existence at the
time of preparation of inquest memo that
is why in the inquest memo time of
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
information at the police station has been
mentioned 9:00 a.m. and at the time of
receiving dead body papers were not
handed over to the doctor. Special report
was also received to concerned magistrate
on 07.3.1987 and prosecution has failed
to explain the undue delay in receipt of
the special report by the concerned
Magistrate. All these facts indicate that
FIR was not lodged at the time alleged
and it has no authenticity. In this regard
he relies on Balaka Singh and others vs.
The State of Punjab 1975 SCC (Cri)
601, (Para 7) and Badam Singh vs.
State of M.P. 2004 (2) JLJ 67 (SC),
(Para 15, 23)

19. Learned counsel has referred
para 8 of the case of Balaka Singh
and others vs. The State of Punjab
1975 SCC (Cri) 601, in which it has
been
held
that
the
prosecution
witnesses
who
can
implicate
appellants
and
the
four
accused
equally with regard to assault on the
deceased, it is not possible to reject
the prosecution case with respect to
the four accused and accept it with
respect to the appellants. If all the
witnesses in one breath implicate the
four accused who appear to be
innocent, then one cannot vouchsafe
for the fact that even the acts
attributed to the appellants may have
been conveniently made to suit the
needs of the prosecution case. If the
case against the four accused fails,
then the entire prosecution case will
have to be discarded. He submits that
similar is the instant case in which
four accused have been alleged having
lathi and two accused having bhala.
One accused alleged having bhala has
been acquitted by the trial court and
the other accused has died. Accused
alleged having lathi on the basis of
suspicion have been convicted.

20. Lastly, he submits that
prosecution has to stand on its own leg
to prove the charge against the
accused-appellants,
from
the
prosecution evidence charge is not
proved and on basis of NCR lodged by
accused-appellant
Gauri
Shankar
appellants
have
been
convicted,
impugned judgment and order is not
sustainable and it is liable to be set
aside.

21. Per contra learned A.G.A.
submits that it is a case of direct evidence,
therefore, motive of the incident is not
important. P.W.1 Govind Singh, P.W.2
Vijay Shankar Lal, P.W.4 Satya Narain
Singh and P.W.5 Rekha Singh have
proved that there was Manas Path. In
statement under Section 313 Cr.P.C.
accused Gauri Shankar has also stated
that Manas Path was going on, thus the
fact that at the time of incident Manas
Path was going on, is established. In his
statement u/s 313 Cr.P.C Gauri Shankar
has admitted that he had lodged NCR No
14 u/s 325 (wrongly mentioned in place
of 323), 504 IPC on the same day, i.e., on
24.2.87. According to PW-3 Shivanand
Pandey NCR No. 14 was registered at
10.15 a.m. In original record NCR is
available in which time of incident has
been mentioned as 9.00 a.m. In the
present case also time of incident is
alleged 9.00 a.m. Thus, according to,
prosecution and defence, both, incident
had occurred on 24.2.87 at 9.00 a.m. He
further submits that P.W.1 Govind Singh,
P.W.2 Vijay Shankar Lal, P.W.4 Satya
Narain Singh and P.W.5 Rekha Singh
have proved the incident and presence of
the accused at the site. In the inquest
6 All. Gauri Shankar @ Bacchan & Anr. Vs. State of U.P. 1041
memo crime number 55/87 u/s 147, 148,
149, 302 IPC is mentioned, however, in
column of date and time of report at the
Police Station, starting inquiry and place
where the Investigating Officer has gone,
time of report at the Police Station is
wrongly mentioned as 9.00 a.m. For
postmortem dead body was received on
24.2.1987 at 9.00 p.m. and papers were
received on 25.2.1987 at 9:25 a.m. First,
inquest memo is prepared then it is signed
by the witnesses and in the inquest memo
it is mentioned that including FIR nine
papers were sent. Since crime number is
mentioned in inquest memo, therefore, on
the basis of wrong entry recorded in the
inquest memo regarding reporting time to
the police station, receiving dead body for
postmortem at 9.00 p.m. on 24.2.1987
and receiving of relevant papers next day,
FIR cannot be said to be ante timed.
Special report has been received to the
magistrate on 07.03.1987 but no question
in this regard has been put to P.W.3
Shivanand Pandey, the Head Moharrir
and ultimately it cannot be ground for
acquittal. Prosecution witnesses have
stated that Vishwanath Upadhyaya and
Munna Lal had bhala in their hand and
they had also assaulted with the bhala but
they have not stated that the assault made
by the bhala hit the deceased. Munna Lal
has died during trial and Vishwantah
Upadhyaya has been acquitted. Therefore,
on the basis of no injury of bhala was
found,
prosecution
case
cannot
be
doubted. Lathi injury is supported by
medical evidence and doctor has opined
that injuries are possible on 24.02.1987 at
9.00 a.m. and injuries were sufficient to
cause death. Thus, oral evidence is
consistent with the medical evidence also.
P.W.1 Govind Singh has stated that
height of the boundary wall was 5-6 feet
whereas Investigating Officer has stated
that it was 15 feet but these calculations
are hypothetical and cannot affect the
prosecution case. So for as submission is
concerned that live and empty cartridges
were recovered from the spot whereas no
accused was armed with fire arm it may
be there with a view to mislead the
prosecution case. From the prosecution
evidence coupled with NCR lodged by
accused, incident is proved. Learned trial
court has rightly convicted and sentenced
the appellants. Therefore, no interference
is required by this Court. Sri Shiv Narain
Singh, learned counsel for Sri Nikhil
Singh son of the deceased submits that
PW-5 Rekha is the eye-witness of the
incident,
investigating
officer
has
contradicted
his
presence
but
his
statement is wrong. There was a dispute
between deceased and accused with
regard to fishing lease, that is why he was
murdered. Ms. Mandavi Tripathi learned
counsel on behalf of Rekha Singh,
daughter of the deceased submits that
betel mound was next to mustard field
and deceased ran from the side of the
betel mound, not through the betel
mound. There was a dispute with regard
to fishing lease. PW-2 Vijai Shankar Lal
has stated that deceased was stabbed with
the spear. Three blows from the spear
were made and spear blows were inflicted
from the side and the spear blow hit the
thigh. He has further stated that he had
also seen the injuries on teeth and eyes.

22. Since learned AGA has
submitted that from the prosecution
evidence coupled with NCR lodged by
the accused Gauri Shankar incident is
proved and learned counsel for appellants
has submitted that prosecution has to
stand on its own leg, therefore, the issue
of liability of burden of proof is taken
first. To decide the issue it will be
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
apposite to refer the law laid down by the
High Court and Supreme Court in this
regard.

23. In para 24 of the judgment in
case of Md. Alimuddin & others versus
The State of Assam 1992 2 Crimes(HC)
506; 1992 0 CrLJ 3287 Hon'ble Gauhati
High Court has held as under:

"24. It is one of the fundamental
tenets of criminal jurisprudence that the
burden of proving the prosecution case
squarely lies on the prosecution. This
general burden never shifts. Defence is
not bound to open its mouth so long as
prosecution
does
not
discharge
its
general burden of proving its case beyond
reasonable doubt. Defence version may
even be false, because a falsely instituted
prosecution may compel the accused to
adopt a false defence. So, prosecution can
not derive any advantage from the falsely
or other infirmities of the defence version,
so long as it does not discharge its initial
burden of proving its case beyond all
reasonable doubt."

24. In para 6 of the judgment in case
of Dahyabhai Chhaganbhai Thakkar
VS
State
Of
Gujarat,
1964
0
Supreme(SC) 91, the Hon'ble Supreme
Court has held as under:

"It is fundamental principle of
criminal jurisprudence that an accused in
presumed to be innocent and, therefore,
the burden lies on the prosecution to
prove the guilt of the accused beyond
reasonable
doubt.
The
prosecution,
therefore, in a case of homicide shall
prove beyond reasonable doubt that the
accused caused death with the requisite
intention described in S. 299 of the Indian
Penal Code. This general burden never
shifts and it always rests on the
prosecution. But, S. 84 of the Indian
Penal Code provides that nothing is an
offence if the accused at the time of doing
that Act, by reason of unsoundness of
mind was incapable of knowing the
nature of his act or what he was doing
was either wrong or contrary to law. This
being an exception, under S. 105 of the
Evidence Act the burden of proving the
existence of circumstances bringing the
case within the said exception lies on the
accused, and the court shall presume the
absence of such circumstances. Under S.
105 of the Evidence Act, read with the
definition of "shall presume in S. 4
thereof, the court shall regard the
absence of such circumstances as proved
unless, after considering the matters
before it, it believes that the said
circumstances existed or their existence
was so probable that a prudent man
ought, under the circumstances of the
particular
case,
to
act
upon
the
supposition that they did exist. To put it in
other words, the accused will have to
rebut
the
presumption
that
such
circumstances did not exist, by placing
material before the court sufficient to
make it consider the existence of the said
circumstances
so
probable
that
a
prudent; man would act upon them. The
accused has to satisfy the standard of a
"prudent man . If the material placed
before the court, such as, oral and
documentary
evidence,
presumptions,
admissions or even the prosecution
evidence, satisfies the test of "prudent
man the accused will have discharged his
burden. The evidence so placed may not
be sufficient to discharge the burden
under S. 105 of the evidence Act, but it
may raise a reasonable doubt in the mind
of a judge as regards one or other of the
necessary ingredients of the offence itself.
6 All. Gauri Shankar @ Bacchan & Anr. Vs. State of U.P. 1043
It may, for instance, raise a reasonable
doubt in the mind of the judge whether the
accused had the requisite intention laid
down in S. 299 of the Indian Penal Code.
If the judge has such reasonable doubt, he
has to acquit the accused, for in that even
the prosecution will have failed to prove
conclusively the guilt of the accused.
There is no conflict between the general
burden,
which
is
always
on
the
prosecution and which never shifts, and
the special burden that rests on the
accused to make out his defence of
insanity."

25. In case of KM Nanavati vs
State
of
Maharashtra
1961
Supreme(SC) 374, relevant part as held
by Hon'ble Supreme Court in para 18 of
the judgment is quoted as under:

"In this view it might be said that
the general burden to prove the ingredients
of the offence, unless there is a specific
statute to the contrary, is always on the
prosecution, but the burden to prove the
circumstances coming under the exceptions
lies upon the accused. The failure on the
part of the accused to establish all the
circumstances bringing his case under the
exception does not absolve the prosecution
to prove the ingredients of the offence :
indeed, the evidence, though insufficient to
establish the exception, may be sufficient to
negative one or more of the ingredients of
the offence."

26. In para 14 of its judgment Hon'ble
Supreme court in case of Digamber
Vaishnav and another vs State of
Chandigarh (2019) 4 SCC 522, has held
as under:

"14. One of the fundamental
principles of criminal jurisprudence is
undeniably that the burden of proof
squarely rests on the prosecution and that
the general burden never shifts. There
can be no conviction on the basis of
surmises and conjectures or suspicion
howsoever grave it may be. Strong
suspicion, strong coincidences and grave
doubt cannot take the place of legal
proof. The onus of prosecution can't be
discharged by referring to very strong
suspicion
and
existence
of
highly
suspicious
factors
to
inculpate
the
accused nor falsity of defence could take
the place of proof which the prosecution
has to establish in order to succeed,
though a false plea by the defence at best,
be
considered
as
an
addition
circumstance
if
other
circumstances
unfailingly point to the guilt."

27. Thus , from the law laid down in
the above referred cases, it is well settled,
that in criminal case the general burden of
proof unless there is a specific statute to
the contrary, squarely rests on the
prosecution to prove its case against
accused beyond reasonable doubt which
never shifts and special burden to prove
the
circumstances
coming
under
exception rests upon the accused. In
proving the case beyond reasonable
doubt, prosecution can not take advantage
of falsely instituted case or false plea
taken by the defence or infirmity in
defence. Suspicion, however strong can
not take the place of legal proof.

28. In view of the above, the
contention of learned AGA is not tenable
that from prosecution evidence coupled
with NCR lodged by accused Gauri
Shankar incident is proved. In proving the
charge against the accused, prosecution
can not take advantage of NCR lodged by
accused Gauri Shankar. Accordingly,
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution has to prove the charge u/s
147 and 302/34 IPC against the appellants
beyond reasonable doubt by its own
evidence.

29. Prosecution has produced four
witnesses of fact i.e PW-1 Govind Singh
resident of village Vishunpura, PW-2 Vijay
Shankar Lal resident of village Basdeva,
P.W.4- Satya Narain is resident of village
Ujayat and P.W-.5 Km Rekha Singh
resident of village Vishunpura. None of the
witness is resident of village Karo. As per
Ext Ka-1 at the time of incident Manas Path
was going on and PW-1 Govind Singh in
his oral testimony has stated that before two
days of the incident Manas Path was going
on and from his cross examination nothing
has been extracted so that any adverse
inference can be drawn. PW-2 Vijai
Shankar Lal and PW-4 Satya Narain too
have stated that at the time of incident i.e.
on 24.2.1987 at 9.00a.m. Manas Path was
going on and from their cross examination
also nothing has been elicited by defence so
that any adverse inference can be drawn.
Thus
prosecution
evidence
regarding
Manas Path at the time of incident is intact
and consistent. This fact is also supported
by statement of accused Gauri Shankar
made u/s 313 Cr PC in which he has stated
that from two days before the incident
Manas Path was going but persons
mentioned were not present in the Manas
Path. In view of the above, it is established
that on 24.2.1987 at 9.00 a.m., Manas Path
was going on, therefore, contention of
learned counsel for the appellants bears no
force that none of witness is resident of
village Karo that is why story of Manas
Path has been introduced.

30. As per Ext Ka-1 as well evidence
adduced by prosecution, none of the
accused was armed with fire arm but as per
Ext Ka-10 proved by PW-8 Sri T N Mishra
the investigating officer, four live and one
empty, cartridges were recovered from the
place of incidence. Since prosecution has
not alleged that accused were armed with
fire arm, therefore merely on the basis of
recovery of live and empty cartridges,
prosecution case can not be doubted.

31. Learned counsel for appellants
regarding suppression of genesis and
origin of the occurrence has referred para
11 of judgment in case of Lakshmi Singh
vs. State of Bihar (supra) in which
Hon'ble Supreme Court has held as under:

"According to the doctor injury
No.1 was grievous in nature as it resulted
in compound fracture of the fibula bone.
The other two injuries were also serious
injuries which had been inflicted by a
sharp-cutting weapon. Having regard to
the circumstances of the case there can be
no doubt that Dasrath Singh must have
received these injuries in the course of the
assault, because it has not been suggested
or contended that the injuries could be
self-inflicted nor it is believable. In these
circumstances, therefore, it was the
bounded duty of the prosecution to give a
reasonable explanation for the injuries
sustained by the accused Dasrath Singh
in the course of the occurrence."

32. In other referred case of
Bhagwan Sahai and Another vs. State
of Rajasthan (supra), in para 8 of the
judgment referred by learned counsel for
the appellant Hon'ble Supreme Court has
held as under:

"8. The aforesaid view of the
High Court is devoid of legal merits.
Once the Court came to a finding that the
prosecution has suppressed the genesis
6 All. Gauri Shankar @ Bacchan & Anr. Vs. State of U.P. 1045
and origin of the occurrence and also
failed to explain the injuries on the
person of the accused including death of
father of the appellants, the only possible
and probable course left open was to
grant benefit of doubt to the appellants.
The appellants can legitimately claim
right to use force once they saw their
parents
being
assaulted
and
when
actually it has been shown that due to
such assault and injury their father
subsequently died. In the given facts,
adverse inference must be drawn against
the prosecution for not offering any
explanation much less a plausible one.
Drawing of such adverse inference is
given a go-bye in the case of free fight
mainly because the occurrence in that
case may take place at different spots and
in such a manner that a witness may not
reasonably be expected to see and
therefore explain the injuries sustained by
the defence party. This is not the factual
situation in the present case. "

33. In the instant case PW-3
Shivanand Pandey scribe of chik FIR Ext
Ka-2 has admitted in his statement that on
the basis of oral information of informant
Gauri Shankar HCP No 14 had registered
a case on the same day at 10.15 a.m.
against
Ramakant,
Jai
Singh
and
Dharmakshad Singh u/s 325, 504 IPC.
PW-8. Sri T N Mishra, investigating
officer has also stated that on 24.2.87 at
10.15 a.m. NCR No 24/87 was registered
by Gauri Shankar against Ramakant and
two others. As per copy of NCR available
on record on 24.2.87 at 9.00 a.m. Gauri
Shankar had gone to worship in the Math
at that time Jaisheel and Dhareekshad
Singh caught hold of him and Ramakant
beat him with lathi from which he had
received injury on his head. As per injury
report Ext.Kha of Gauri Shankar dated
24.02.1987 one lacerated and three
contused injuries have been found as
under:

(i). Lacerated wound 1.5 cm. x
0.5 cm. skin deep on head.

(ii). Contusion 30 cm. x 1cm. on
upper part back of chest.

(iii). Contusion 11 cm. x 1cm.
on the Rt side back of chest 6.5 cm.
below the injury no. 2.

(iv). Contusion 1.5 cm. x 0.5
cm. on the Lt side-back of chest of
Scapula.

All injuries were simple in
nature caused by some blunt object
duration fresh. Thus from the injury
report of the accused Gauri Shankar it is
clear that his injuries were simple in
nature.

34. In para 10 of its judgment in
the case of Gurwinder Singh alias
Sonu and another vs State of Punjab
and another (2018) 16 SCC 525,
Hon'ble Supreme Court has held as
under:

"It cannot be held as an
invariable proposition that as soon as
the accused received the injuries in
the same transaction, the complainant
party were the aggressors -it cannot
be held as a rule that the prosecution
is obliged to explain the injuries and
on failure of the same, the prosecution
case should be disbelieved. It is well
settled that before placing the burden
on the prosecution to explain the
injuries on the person of the accused,
two conditions are to be satisfied:-(i)
the injuries were sustained by the
accused in the same transaction; and
(ii) the injuries sustained by the
accused are serious in nature."
1046 INDIAN LAW REPORTS ALLAHABAD SERIES

35. It is not the defence case that
accused Gauri Shankar had received
injury in the same transaction of the
incident as alleged by the prosecution.
Therefore, in view of the law laid down
by Hon'ble Supreme Court in the above
referred case of Gurwinder Singh alias
Sonu and another vs State of Punjab
and another supra, prosecution is not
obliged to explain the injury of the
accused Gauri Shankar.

36. Otherwise, also, in the instant
case injuries of accused are simple in
nature. In the case of Laxmi Singh vs
State of Bihar (supra) referred by learned
counsel for the appellant injury no. 1 of
accused
Dasrath
Singh
was
found
grievous in nature and in Bhagwan Sahai
and another vs State of Rajasthan
(supra) prosecution had not explained the
injuries on the person of the accused
including death of the father of appellants
from which it is clear that the injuries
received in the referred cases were
grievous in nature. Therefore in the
referred cases prosecution was obliged to
explain the injuries received to the
accused side. In the instant case appellant
Gauri Shankar has received simple
injuries. Since facts and circumstances of
the referred cases differ from the instant
case, therefore, the finding of the referred
cases are not applicable in the instant
case.

37. It is admitted fact that accused
Gauri Shankar had lodged NCR against
the deceased and two others on the same
day disclosing time of occurrence 9.00
a.m. which is the time of occurrence in
the instant case also but there is no
opportunity to test the veracity of its
content because it was not investigated as
stated by PW-8 T. N. Mishra in cross
examination that he did not investigate
the NCR registered by the accused taking
permission from the court.

38. Since, accused Gauri Shankar
did not receive the injuries in the same
transaction of the incident as alleged by
the prosecution as well as injuries of the
accused being simple in nature and there
was no opportunity to test veracity of the
contents of NCR lodged by the accused,
therefore, on the basis of injuries of
accused Gauri Shankar and NCR lodged
by him, it cannot be held that prosecution
has suppressed the genesis of the case.
Accordingly, contention of the learned
counsel for the appellants is not tenable
that prosecution has suppressed the
genesis and origin of the occurrence.

39. To test veracity of the witness
learned counsel for the appellants has
referred para 39 of the judgment in the
case of Govindaraju @ Govind vs.
State by Sriramapuram P.S., (supra) in
which Hon'ble Supreme Court has held as
under:

"39. The injuries were piercing
injuries between the intercasal space and
the stab injuries damaged both the heart
and the lungs. It has been noticed by the
High Court that according to PW-1, the
victim was not able to talk. The post
mortem report clearly establishes injuries
by knife. But the vital question is who
caused these injuries. It takes some time
to cause so many injuries, that too, on the
one portion of the body i.e. the chest. If
the statement of PW1 is to be taken to its
logical conclusion, then it must follow
that when the said witness saw the
incident, the accused Govindaraju was
not stabbing the deceased but, was
watching the police coming towards them
6 All. Gauri Shankar @ Bacchan & Anr. Vs. State of U.P. 1047
and had called upon one of the other
accused, Goverdhan, to run away as the
police was coming. Obviously, it must
have also taken some time for the accused
to inflict so many injuries upon the chest
of the deceased. Thus, this would have
provided sufficient time to PW1 to reach
the spot, particularly when, according to
the said witness he was only at a distance
of 30 yards and was on a motorcycle. At
this point of time, stabbing had not
commenced as the accused were alleged
to be chasing the victims. Despite of all
this, PW-1 was not able to stop the
further stabbing and/or running away of
the accused, though he was on a motor
cycle, equipped with a weapon and in a
place where there were shops such as the
VNR
Bar
and
also
nearby
the
conservancy area, which pre-supposes a
thickly
populated
area.
Thus,
the
statement of PW-1 does not even find
corroboration from the medical evidence
on record. The High Court in its judgment
has correctly noticed that the place of
incident in front of VNR Bar of
Sriramapuram was not really in dispute
and having regard to the time and place,
it was quite possible, at least for the
persons working in the Bar, to know what
exactly had happened. With this object,
PW-7 was produced who, unfortunately,
did
not
support
the
case
of
the
prosecution. Having noticed this, we are
unable to appreciate the reasons for the
High Court to disturb the finding of
acquittal recorded by the learned trial
Court."

40. Learned counsel in this regard
has referred the other case of Balaka
Singh and others vs. The State of
Punjab, (supra) in referred para 9 of its
judgment Hon'ble Supreme Court has
held as under:

"9. In order to test the veracity
of the prosecution witnesses we find that
one of the eye witnesses, namely, Waryam
Singh has deposed that Gurmej Kaur, the
wife of the deceased, who was drawing
water, from the hand pump when the
accused came, ran towards Dharam
Singh and fell upon his body in order to
protect
him
from
receiving
further
injuries. At this the appellant Balaka
Singh is alleged to have given her a
barchha blow on her right hand and the
appellant Joginder Singh gave a barchha
blow on the left buttock of Gurmej Kaur.
According to the evidence of this witness
the two appellants Balaka Singh and
Joginder Singh appear to have assaulted
Gurmej
Kaur
with
a
sharp-cutting
instrument, namely, barchha and spear.
This version is completely falsified by the
medical evidence of Dr. Mohinder Singh
who examined Gurmej Kaur and who
stated in his evidence that all the injuries
on Gurmej Kaur were caused by blunt
weapon. Moreover out of the six injuries
which Gurmej Kaur received on her body
not a single one could be caused by a
sharp- cutting instrument because there
was no penetrating or incised wounds.
The injuries were either contusions,
abrasions or lacerated wounds. While the
witness Waryam G- Singh says that the
accused Joginder Singh had given a
barchha blow on the left buttock of
Gurmej Kaur, according to the medical
evidence, it was a lacerated wound deep
on the upper and outer part of the
leftbuttock.
This,
therefore,
clearly
demonstrates the extent to which the
witnesses could have gone in order to
implicate all the accused."

41. Before adverting to evidence for
purpose of testing veracity of the witness,
it would be proper to refer to Modi
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
Medical Jurisprudence and Toxicology,
23rd Edition Reprint 2011, according to
which for occurrence an abrasion, there
must be pressure of an object and it
should move on the skin to form an
abrasion. Bruise or contusions are injuries
which are caused by a blow from a blunt
weapon, such as a club, lathi, whip, iron
bar, stone, ball, fingers, fist, boots or by a
fall, or by crushing or compression. These
are accompanied by a painful swelling
and
crushing
or
tearing
of
the
subcutaneous tissues without solution of
continuity of the skin.

42. As per Ext. Ka-1 accused Gauri
Shankar
alias
Bachchan
Yadav,
Shivshankar
Yadav,
Vishwanath
Upadhay, Munna Lal @ Sachidanand Lal,
Ramashish Yadav and Ramakant Yadav
armed with lathi and bhala assaulted
deceased Ramakant on account of which
he died.