# Hari Shankar Rai v. State

- **Citation:** (2024) 5 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** THE HON'BLE SHIV SHANKER PRASAD J. Criminal Appeal No. 128 of 1983
- **Bench:** Rajiv Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-shankar-rai-v-state-51889
- **Pages:** 18

## Headnote

Criminal Law-Indian Penal Code-1860Sections-302 & 304 (I) -There is an
unsuccessful attempt by the defense specially the
accused to prove that the murder of the
deceased occurred in self-defence- Mother of
accused was not brought into the witness box to
testify about that incident- Ignoring the direct
evidence like testimonies of eye-witness in which
P.W.-1 is elder brother of the deceased whereas
P.W.-2 and P.W.-3 are independent witnesses as
also the medical evidence and the relevant
documents,
only
on
assumption
and
presumption, the trial court convicted the
accused under Section 304-I of I.P.C- Ocular
evidence always prevails over the medical
evidence- Minor discrepancy on the part of the
Investigating Officer does not effect on the
otherwise clinching evidence produced by the
prosecution-Result Impugned order set aside-
accused-appellant is convicted for the offence
under Section 302 I.P.C. and sentenced to
undergo life imprisonment.

Government Appeal allowed and Criminal
Appeal dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,936 of 61,930. This is a partial read: ask again with offset=39936 for what follows._

18 INDIAN LAW REPORTS ALLAHABAD SERIES
the mobile number mentioned on the
transporter's receipt were fake. Therefore,
the copy of the affidavit of Vishal Goyal
filed by the petitioner along with the review
application does not provide any good
ground for review of the earlier order.

23. In view of the foregoing
discussion, the review petition is dismissed.
----------
(2024) 5 ILRA 18
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD J.

Criminal Appeal No. 128 of 1983
Connected with
Government Appeal No. 877 of 1983

Hari Shankar Rai ...Appellant
Versus
State ...Respondents

Counsel for the Appellant:
Sri A.D. Gilani, Sri A.D. Giri, Sri R.K. Shahi,
Sri S.K. Rai

Counsel for the Respondents:
A.G.A., Sri Harish Chandra Tiwari

Criminal Law-Indian Penal Code-1860Sections-302 & 304 (I) -There is an
unsuccessful attempt by the defense specially the
accused to prove that the murder of the
deceased occurred in self-defence- Mother of
accused was not brought into the witness box to
testify about that incident- Ignoring the direct
evidence like testimonies of eye-witness in which
P.W.-1 is elder brother of the deceased whereas
P.W.-2 and P.W.-3 are independent witnesses as
also the medical evidence and the relevant
documents,
only
on
assumption
and
presumption, the trial court convicted the
accused under Section 304-I of I.P.C- Ocular
evidence always prevails over the medical
evidence- Minor discrepancy on the part of the
Investigating Officer does not effect on the
otherwise clinching evidence produced by the
prosecution-Result Impugned order set aside-
accused-appellant is convicted for the offence
under Section 302 I.P.C. and sentenced to
undergo life imprisonment.

Government Appeal allowed and Criminal
Appeal dismissed. (E-15)

List of Cases cited:

1. Jai Deo Vs St. of Pun. 1963 Cr.L.J. 493

2. Tara Chand Vs St. of Har. reported in 1972
SC Cr.R. 9

3. Darbara Singh Vs St. of Pun. reported in
(2012) 10 SCC 476

4. Mritunjoy Biswas Vs Pranab @ Kuti Biswas &
anr. (2013) 12 SCC 796

(Delivered by Hon'ble Rajiv Gupta, J.
&
Hon'ble Shiv Shanker Prasad, J.)

1. Heard Mr. R.K. Shahi, learned
counsel for the accused, Mr. Harish Chandra
Tiwari, learned counsel for the first
informant and Mr. Jitendra Kumar Jaiswal,
learned A.G.A. for the State in both the
appeals, as well as perused the record.

2. Since these criminal appeal as well
as government appeal are directed against
the judgment and order dated 19th January,
1983 passed in Sessions Trial No. 245 of
1981 (State Vs. Mahendra Rai & Hari
Shanker Rai) arising out of Case Crime No.
215 of 1979 (251/3), under Section 302 of
I.P.C., Police Station, Tariya Sujan, DistrictDeoria, whereby the accused Hari Shanker
Rai has been convicted and sentenced to
undergo four years rigorous imprisonment
for the offence punishable under first part of
5 All. Hari Shankar Rai Vs. State
19
Section 304 of I.P.C., whereas the accused
Mahendra Rai has been acquitted for the
offence punishable under Section 302 of
I.P.C., the same have been heard and
clubbed together and are being decided by
this common judgment.

3. During the pendency of the instant
Government Appeal before this Court, the
accused-respondent no.1 Mahendra Rai has
already passed away and the Government
Appeal
qua
accused-respondent
no.1
Mahendra Rai has been abated vide order
dated 31st August, 2022.

4. The prosecution case as cropped
up from the records of both the above
appeals is that on a written report given
by the informant/P.W.-1 Shivji dated 13th
December, 1979 (Exhibit-ka/1), first
information report (Exhibit-Ka/8) came
to be registered on 13th December, 1979
at 1305 hours at Police Station-Tariya
Sujan,
District-Deoria
against
the
accused Hari Shanker Rai @ Chhotey and
Mahendra Rai under Section 302 of I.P.C.
In the written report, it has been alleged
by the informant/P.W.-1 that his brother
Krishna Kumar was studying in Lok
Manya Inter College. The accused Hari
Shankar Rai @ Chhotey also studied in
the same school. There was a fight
between his brother Krishna Kumar and
accused Harishanker Rai @ Chhote a few
days back over some issue. Because of
said fight, on 13th December, 1979 at
08:00 a.m. in the morning, when his
brother Krishna Kumar was going to have
tea from the western side of the road,
while passing in front of the house of
Harishankar alias Chhote, he saw that
accused Harishanker Rai @ Chhotey and
his father Mahendra Rai assaulted his
brother Krishna Kumar by knives on his
chest and stomach with intention to kill
him due to which his brother Krishna
Kumar sustained injuries and fell down.
Due to noise, Navrang Prasad, Ramji,
Subhan, Radha Kishna, Prasad, Kanu and
Ram Kankan Ram, the informant and
many other persons reached there, by
then
the
accused
Harishankar
and
Mahendra Rai ran away. The informant
took his brother Krishna Kumar, who was
in a serious condition, to the Government
Hospital at Tamkuhi Road for his
treatment.
The
incident
has
been
witnessed by above witnesses and many
other people. While the treatment of his
brother Krishna Kumar was going, on at
the Government Hospital, Tamkuhi Road,
his brother succumbed to the said injuries
caused
by
the
accused,
namely,
Harishanker
Rai
@
Chhotey
and
Mahendra Rai. After leaving the dead
body of his brother at Government
Hospital, he came to the Police Station
for lodging the first information report.

5. After lodging of the first information
report, P.W.-4 Sub-Inspector Ausaf Ahmad
Khan, after taking over the charge of
Investigating
Officer,
went
to
the
Government Hospital, where the dead body
of the deceased was lying and at about 02:45
p.m. he prepared the inquest report (Exhibitka/2) of the body of the deceased. Thereafter
P.W.-4 prepared the diagram and chalan
(Exhibit-ka/3 and 4). After keeping the dead
body of the deceased in a sealed cover, the
same was sent to the Mortuary for postmortem.

6. An autopsy of the deceased has been
conducted by Dr. C.B. Singh (P.W.-5) on
14th December, 1979 at 11:15 a.m. and in
the autopsy report (Exhibit-ka/7), the cause
of death of the deceased has been reported
to be shock and haemorrhage as a result of
following ante-mortem injuries:
20 INDIAN LAW REPORTS ALLAHABAD SERIES

"1. Stab wound with incised
margins 1 cm. x 1 cm. x chest cavity deep on
the front and middle of chest, 8 cm. below
the sternal notch.

2. Stab wound with incised
margins 1 cm. x abdominal cavity deep on
the right side of abdomen, 6 cm above the
umbilicus at 11'0 clock position.

3. Multiple abrasion on an area of
2 cm. at the base of right thumb."

7. On the very day of incident i.e. 13th
December,
1979,
P.W.-4
i.e.
the
Investigating Officer inspected the place of
occurrence and prepared site plan (Exhibitka/5) and found the earth scratched. He
recorded the statement of Subhan and Radha
Kishun. He also arrested the accused
Mahendra Rai in Tamkuhi market. On 17th
December, 1979, a site plan (Exhibit-ka/11)
of the house of the accused was also
prepared. Thereafter the investigation was
taken over by Sri Lalji Singh, who after
conclusions of the statutory investigation
under Chapter XII Cr.P.C. has submitted the
charge-sheet (Exhibit-Ka/6) against both the
accused persons, namely, Mahendra Rai and
Hari Shanker Rai on 30th January, 1980.

8. On submission of charge-sheet, the
concerned Magistrate took cognizance in the
matter and committed the case to the Court
of Sessions by whom the case was to be
tried. On 12th April, 1981, the concerned
Court framed following charges against the
accused-persons:

"CHARGES

I, S.L. Tripathi, Sessions Judge,
Deoria, hereby charge you-

1. Harishanker Rai alias Chhote,
&

2. Mahendra Rai

as follows :-

That you, on 13.12.1979, at about
8.30 a.m. , in village Seorahi, P.S.
Tarayasujan of this district, did commit
murder by intentionally or knowingly
causing the death of Krishna Kumar (with
knife) and thereby committed an offence
punishable u/S 302 of Indian Penal Code
and within the cognizance of this Court of
Sess.

And I hereby direct that you be
tried by this Court on the aforesaid charge."

9. The charges were read out and
explained in Hindi to the accused, who
pleaded not guilty and claim to be tried.

10. The trial started and the
prosecution has examined six witnesses,
who are as follows:-

1 Shivji (complainant) (elder brother of the
deceased)/eye witness as per the prosecution

P.W.
-1
2 Subhan (resident of village Sevarahi, Police
Station-Sevarahi)/another eye witness as per the
prosecution

P.W.
-2
3 Radha Kishun (resident of Tamkuhi Road,
Police Station-Sevarahi), other eye-witness of
the
incident
as
per
the
prosecution

P.W.
-3
4 Sub-Inspector Ausaf Ahmad Khan, the first
Investigating
Officer

P.W.
-4
5 Dr. Chandra Bhushan Singh, the then Medical
Officer, Sadar Hospital, Deoria, who conducted
the autopsy of the deceased
P.W.
-5

11. The prosecution in order to
establish the charges levelled against the
accused-appellant has relied upon following
documentary evidence, which were duly
proved
and
consequently
marked
as
Exhibits:
1
Written
report
dated
13th
December, 1979
Ex.Ka.-1
5 All. Hari Shankar Rai Vs. State
21
2
First Information Report dated
13th December, 1979
Ex.Ka.-8
3
Injury report of the deceased
Krishna Kumar
Ex. Ka.-10
4
Entry of registration of case in
General Diary
Ex. Ka/9
5
Inquest
report
dated
13th
December, 1979
Ex.Ka.-2
6
Diagram of the dead body of the
deceased
Ex.Ka.-3
7
Chalan of the dead body of the
deceased
Ex.Ka.-4
8
Post-mortem report of the
deceased dated 14th December,
1979
Ex.Ka.-7
9
Charge-sheet
original
dated
30th January, 1980
Ex.Ka.-11
10
Site plan with index dated 13th
December, 1979
Ex.Ka.-5

12. The defence in support of their case
has also produced following documentary
evidence:

1
Injury report of accused Hari Shanker
Rai
Ex.Kha.-
1
2
Awadhesh Kumari wife of accused
Mahendra Rai
Ex.Kha.-
2

13.

After
completion
of
the
prosecution evidence, statement of the
accused was recorded under Section 313
Cr.P.C. The accused Hari Shanker Rai and
Mahendra Rai, while giving their statements
in the Court, denied the prosecution
evidence and stated that they have been
falsely implicated on account of harbouring
grudges. The accused have also stated that
they lived at a distance of about one furlong
from the house of the deceased. Accused
Hari Shanker Rai also conceded that he was
the rival contestant in the election of the
Students Union against the accused Krishna
Kumar and the deceased had beaten him in
that
connection.
However,
accused
Mahendra Rai had not accepted the said
grudge. Both the accused have also denied
that they had committed the murder of the
deceased Krishna Kumar or that any
witnesses had seen them in commissioning
of the alleged crime. They have also stated
that they did not know about the medical
examination of Krishna Kumar, his death on
account
of
those
injuries
and
the
postmortem examination. They also did not
know about the lodging of the report,
preparation of the site plan and the scratched
blood-stained earth. They have further
stated that they have been falsely implicated
due to enmity. The accused Hari Shanker
Rai has further stated that before the
occurrence, some heated conversations were
exchanged between him and the deceased
Krishna Kumar and the deceased Krishna
Kumar had threatened him. He has again
stated that on 13th December, 1979 at about
07:30 a.m. when he was sitting in his
verandah, the deceased along with three
other persons had come and beaten him
mercilessly by stick and when his mother
Avadhesh Kumari tried to save him, she had
also been beaten by them. Then, his mother
Avadhesh Kumari wielded a sickle in selfdefence due to which the deceased Krishna
Kumar sustained injuries. After that,
accused Hari Shanker Rai went to his
relative's place. He also got himself
medically examined and a police report has
also been lodged by him on which the Police
made local inspection.

14. Apart from the documentary
evidence, both the accused Hari Shanker Rai
as well as Mahendra Rai have also produced
two witnesses in their defence, who are as
follow:

1
Dr. Pavan Kumar Srivastava, who
had
medically
examined
the
accused Hari Shanker Rai and
prepared the medical examination
report (Exhibit-Kha/1)
D.W.-1
22 INDIAN LAW REPORTS ALLAHABAD SERIES
2
Dr. Satya Prakash Tripathi, who
had medically examined the wife of
accused Mahendra Rai, namely,
Smt.
Avadhesh
Kumari
and
prepared
medical
examination
report (Exhibit-Kha/2)
D.W.-2

15. On the basis of above evidence oral
as well as documentary adduced during the
course of trial, the trial court, while passing
the impugned judgment, while relying upon
the defence argument that the role of
accused Mahendra Rai in the holistic view
as per the testimonies of P.W.1 Shivji, P.W.-
2 Subhan and P.W.-3 Radha Kishun, is
doubtful, has recorded its finding that
undoubtedly
the
prosecution
evidence
makes the participation of the accused
Mahendra Rai in the entire occurrence
extremely doubtful and the benefit of doubt
must be extended to him. Consequently, the
trial court has opined that the accused
Mahendra Rai had nothing to do with the
murder of the deceased Krishna Kumar and
therefore, he must be acquitted of the charge
of murder levelled against him. So far as the
role of accused Hari Shanker Rai is
concerned, the trial court has recorded that
there is absolutely no occasion to doubt that
he has not committed the murder of the
deceased. The trial court has also not
accepted the argument of the defence
counsel that since no blood was found on the
spot, therefore, the place of occurrence is
doubtful. In that regard, the trial court has
recorded its finding that the scratched earth
had been found by the Investigating Officer
(P.W.-3), then no blood was found anywhere
else nor even the accused had shown the
blood at any other place to the Investigating
Officer. Hence, the above argument too has
no force and particularly where the
witnesses had consistently testified to prove
the place of occurrence. The trial court has
also recorded that the edge of the motive
was also not very relevant where it was
established by cogent evidence that an
occurrence had really taken place.

16. The trial court has also not
accepted the theory of self-defence put forth
by the defence counsel on behalf of the
accused Hari Shanker Rai that the deceased
was the aggressor, who came inside the
house of the accused along with three other
persons and started beating him by stick and
when his mother, namely, Awadhesh Kumari
tried to save him, they also had beaten her
because of the same, accused Hari Shanker
Rai and his mother Awadhesh Kumari
sustained injuries and in the self-defence,
the accused caused injuries to the deceased
Krishna Kumar. The trial court has recorded
that neither the accused has produced
Awadhesh Kumari before the trial court as
defence witness nor any blood was found
inside the house. The stick which is alleged
to have been used by the deceased was also
not available nor has the same been
produced by the defence before the trial
court. Hence the theory of self-defence
could not be said to be correct.

17. So far as the medical examination
report of the mother of the accused Hari
Shanker Rai, namely, Awadhesh Kumari
(wife of accused Mahendra Rai) (Exhibitskha/1 and 2) produced by the defence in
order to prove the theory of self-defence, is
concerned, the trial court has opined that the
injuries sustained by Awadhesh Kumari
were not connected with the occurrence in
which the deceased Krishna Kumar had lost
his life.

18. Relying upon the injury report of
accused Hari Shanker Rai and the testimony
of D.W.-1, who medically examined him,
the trial court has recorded that it is possible
that the accused Hari Shanker Rai might
have received his injuries in the same
5 All. Hari Shankar Rai Vs. State
23
occurrence. The eye-witnesses of the
occurrence had seen the occurrence from the
stage where the two knife blows had been
given and not the earlier part of it which
occasioned the use of knife. As such, the
possibility could not be ruled out that the
deceased Krishna Kumar attacked the
accused Hari Shanker and caused injuries to
him and thereafter, accused Hari Shanker
whipped out a knife and committed murder.
The theory of self-defence has been put
forward before the trial court in that respect.
Although the said theory was not placed in
the same manner but as the facts are
sufficiently eloquent, that benefit could not
be withheld.

19. The trial court has further recorded
that in the circumstances, when the deceased
attacked accused Hari Shanker Rai, he had
right to protect himself in the form of selfdefence, but his attacking the deceased
Krishna Kumar twice with a knife shows
that he exceeded the right of self-defense.
Relying upon the judgment of the Hon'ble
Supreme Court in the case of Jai Deo Vs.
State of Punjab reported in 1963 Cr.L.J. 493
wherein it was held that the accused must
stop as soon as the apprehension to him
disappeared, the trial court has opined that
in the present case the accused Hari Shanker
had done the same, once he stabbed the
deceased and then followed him to a
distance of two steps and gave another knife
blow on the stomach of the deceased, which
clearly shows that the accused had exceeded
the right of self-defence. The trial court, in
view of the judgment of the Hon'ble
Supreme Court in the case of Tara Chand Vs.
State of Haryana reported in 1972 SC Cr.R.
9, has held that the accused Hari Shanker
was guilty of the offence punishable under
the first part of Section 304 I.P.C. The trial
court has, therefore, convicted him for that
offence and sentenced him to undergo four
years rigorous imprisonment, whereas the
trial court has acquitted the accused
Mahendra Rai for the alleged charge
granting him benefit of doubt.

20. Being aggrieved with the
impugned judgment and order of conviction
passed by the trial court, the accusedappellant Hari Shanker Rai has preferred the
present Criminal Appeal, whereas the State
of
U.P.
has
preferred
the
present
Government Appeal against the impugned
judgment of acquittal of accused Mahendra
Rai by the trial court.

21. Assailing the impugned judgment
and order of conviction, the learned counsel
for the accused-appellant in present criminal
appeal and learned counsel for the accusedrespondent in the government appeal, has
advanced following submissions:

(i) P.W.-2 Subhan and P.W. -3
Radha Kishun are not eye-witness but
chance witnesses because, as per the
prosecution case, they reached at the place
of occurrence when the incident has already
taken place. Even otherwise, P.W.-1 Shivji
being the elder brother of the deceased is an
interested witness.

(ii).
There
are
major
contradictions in the statements of the
alleged prosecution witnesses i.e. P.W.-1,
P.W.-2 and P.W.-3, therefore, the same are
not reliable and trustworthy.

(iii) Crime weapon i.e. knife,
which is alleged to have been used by the
accused for stabbing the deceased Krishna
Kumar, has not been recovered nor the same
has been sent for its chemical examination
to the Forensic Science Laboratory.

(iv) Blood stained earth has also
not been collected by the Investigating
Officer nor the same has been sent for
chemical examination.
24 INDIAN LAW REPORTS ALLAHABAD SERIES

(v). No recovery memo has been
prepared by the Investigating Officer either
of the knife (Ala Katla) or the blood stained
earth.

(vi). There was no motive for the
accused to commit the alleged crime.

(vii). As per the prosecution
specially the eye-witnesses i.e. P.W.-1, P.W.-
2 and P.W.-3, the accused Hari Shanker
caused injuries to the deceased Krishna
Kumar by knife which does have one side
edge, whereas in his testimoney, P.W.-5 Dr.
C.B. Singh has opined that edges of both
sides of injury nos. 1 and 2 were clean cut,
meaning thereby that the injury nos. 1 and 2
can be caused by a weapon having edges on
both sides. As such, the medical evidence
does not support the prosecution version.

22. On the basis of the above
submissions, learned counsel for the
accused-appellant in Criminal Appeal has
submitted that since the prosecution has
completely failed to established its case
beyond reasonable doubt against the
accused-appellant and the evidence on
record has not been examined in correct
perspective by the trial Court, the impugned
judgment and order passed by the trial court
convicting and sentencing the accusedappellant under the first part of Section 304
I.P.C. to undergo four years rigorous
imprisonment cannot be legally sustained
and is liable to be quashed.

23. On the other-hand, learned counsel
for the first informant and the learned
A.G.A. for the State in criminal appeal as
well as in government appeal submit as
under:

i. The submission of the learned
counsel for the accused-appellant and the
accused-respondent that the motive is not
clear, is incorrect. From the version of the
first information report as well as from the
version of the first informant/P.W.-1,
wherein it has been stated that due to
students
union
election,
there
was
altercation between the accused Hari
Shanker Rai and the deceased Krishna
Kumar and the deceased had beaten accused
Hari Shanker Rai one or two months back
and because of the same, the accused Hari
Shanker Rai harboured grudge, it is
established that the accused has motive or
intention to commit the alleged crime. Even
otherwise, in the statement recorded under
Section 313 Cr.P.C., the accused Hari
Shanker Rai has admitted that due to
election of students union, the deceased had
beaten him.

ii. Medical examination reports of
the accused Hari Shanker Rai and his mother
Awadhesh Kumari i.e. Exhibits-kha/1 and 2
are fabricated, as no such injuries were
caused by the deceased nor the incident as
alleged by accused Hari Shanker Rai has
ever taken place. In order to establish a cross
case and also for establishing theory of selfdefence, such false incident has been built
up by the defence.

iii. In the site plan (Exhibit-ka/5)
dated 13th December, 1979 prepared by the
Investigating Officer, Point "D" has been
marked for indicating the presence of P.W.-
2 Subhan at the time of occurrence, meaning
thereby that P.W.-2 has seen the incident
with his own eyes. As such the submission
of the learned counsel for the accusedappellant and learned counsel for the
accused-respondent that he is a chance
witness is also incorrect. He is an eye
witness to the incident.

iv. For establishing the theory of
self-defence, the defence has shifted the
place of occurrence by submitting that the
verandah of the house of the accused was the
exact place of occurrence, where the
deceased came along with three persons and
5 All. Hari Shankar Rai Vs. State
25
had beaten the accused Hari Shanker by
stick and when his mother tried to save him,
they had also beaten her. In response thereto
his mother wielded the deceased with sickle
due to which he sustained injuries. When as
matter of fact, the incident took place in
front the shop of Jugul from where the house
of the accused Mahendra Rai is 15 to 16
steps away and the said place of occurrence
has sufficiently been proved by the
prosecution.

v.
Though
the
first
informant/P.W.-1 Shivji is the brother of the
deceased but he is one of the eye-witness,
who saw the entire incident with his open
eyes. He is throughout consistent from the
initial stage of lodging of the first
information report and till the conclusion of
his testimony before the trial court.
Therefore,
his
testimony
cannot
be
discarded on the ground of his being brother
of the deceased.

vi. In the statement recorded under
Section 313 Cr.P.C., the accused Hari
Shanker Rai built up a cross case by stating
that on the date of the incident i.e.
13.12.1979 at about 7:30 a.m. when he was
sitting in his varandah deceased Krishna
Kumar and three others came there and had
beaten him, when his mother came to rescue
him, she too was beaten. His mother in her
defence saved her with sickle in which
Krishna Kumar got injured. However, such
cross case has not been fully established by
the defence either by oral or by documentary
evidence. From the statement of D.W.-1 Dr.
Pawan Kumar Srivastava, which has heavily
been relied upon by the defence as he has
examined
the
accused-appellant
Harishanker and found five injuries on his
person, it crops up that injuries found by
D.W.-1 on the body of the accused Hari
Shanker Rai have been reported to be caused
at around 9 to 12 O'clock at day time on
13.12.1979 but as per prosecution story the
incident has taken place on 13.12.1979 at
about 8:30 a.m. meaning thereby the
incident dated 13.12.1979 at 8:30 a.m.
occurred prior to the receiving of injuries on
the
person
of
accused-appellant
Harishanker. It has not been established by
the appellant/ defence that the injuries on the
person of Harishanker has been inflicted by
Krishna Kumar in the same incident as
alleged by prosecution. It is also pertinent to
mention here that with regard to the incident
in which such injuries have been sustained
by accused Hari Shanker, no complaint or
first information was lodged by the accused
at the police station concerned.

vii. The medical examinations of
accused Hari Shanker Rai and his mother
Awadhesh Kumari have not been been
conducted through Majroobi Chiththi of
police station concerned. Even otherwise,
the medical examination reports of accused
Hari Shanker Rai and his mother Awadhesh
Kumari have been prepared in private
capacity after two days of the actual incident
occurred. Not only this Harishanker has
given an application at police station
concerned on 17.12.1979 as an afterthought
wherein he has stated that his mother had
caused injuries to Krishna Kumar with knife
in
her
defence,
whereas
accused
Harishanker has already stated in his
statement under section 313 Cr.P.C. that his
mother caused injuries to Krishna Kumar
with sickle.

viii. It is also noteworthy that this
application has not been proved by him in
his defence nor the same is exhibited as
defence document and it seems that this
application has been prepared and given to
the concerned Superintendent of Police as
an afterthought with ulterior motive.

ix. There are no inconsistencies or
contradictions in the testimonies of all the
prosecution eye witnesses i.e. P.W.-1, P.W.-
2 and P.W.-3 and the inconsistencies or
26 INDIAN LAW REPORTS ALLAHABAD SERIES
contradictions pointed out by the learned
counsel for the accused-appellant and
accused-respondent are too minor.

24. On the basis of the aforesaid
submissions, learned A.G.A. submits that as
this is a case of direct and clinching
evidence, the testimonies of eye witnesses,
namely, P.W.-1, P.W.-2 and P.W.-3, namely,
Shivji, Subhan and Radha Kishun who are
consistent throughout in their examinationin-chief and the cross-examinations inspire
confidence in the facts and circumstances of
the case and they have disclosed about the
commissioning of the offence of murder of
the deceased Krishna Kumar and the same
has also been supported by the medical
evidence
in
all
material
particulars,
therefore, trial court has committed gross
error in convicting the accused-appellant
Hari Shanker Rai under first part of Section
304 I.P.C. Despite the defence having been
failed to establish its case of self-defence
and the trial court has recorded its finding
that the accused Hari Shanker had exceeded
his right of self-defence, the trial court while
ignoring the entire evidence produced by the
prosecution, has passed the impugned
judgment. The accused Hari Shanker Rai is
liable to be convicted for the offence
punishable under Section 302 I.P.C. instead
of Section 304 Part-I I.P.C. As such the
appeal filed by the accused-appellants, who
committed heinous crime of murdering the
deceased Krishna Kumar is liable to be
dismissed.

25. In reply to the submissions made
by the learned counsel for the accusedrespondent in Government Appeal, learned
A.G.A. and the learned counsel for the first
informant submit that the prosecution has
fully established its case beyond reasonable
doubt against the accused-respondents by
oral as well as documentary evidence but the
trial court has not examined the same and
passed the impugned judgment of acquittal
of accused Mahendra Rai only on the
argument raised by the defence counsel
before the trial court, which is per-se illegal
and is liable to be quashed. The learned
A.G.A. and learned counsel for the first
informant further submit that in support of
the above argument, learned counsel for the
accused-respondent has failed to produce
any documentary as well as oral evidence
before this Court as well as trial court. There
exist direct evidence against the accused
Hari Shanker Rai by way of testimonies of
P.W.-1, P.W.-2 and P.W.-3. As such, the
Government Appeal filed by the State is
liable to be allowed by reversing the
impugned judgment of the trial court and
convicting and sentencing him for the
offence under Section 302 I.P.C. The learned
A.G.A. also submits that since the
Government Appeal qua the accusedrespondent Mahendra Rai has already been
dismissed as abated, nothing is required to
be said in his case.

26. We have examined the respective
contentions urged by the learned counsel for
the parties and have perused the records of
the present appeal including the trial court
records.

27. The only question requires to be
addressed and determined in this appeal is
whether the conclusion of guilt arrived at by
the learned trial court and the sentence
awarded is legal and sustainable in law or it
suffers from infirmity and perversity.

28. Before entering into the merits of
the case set up by the learned counsel for the
accused-appellant
in
criminal
appeal,
learned counsel for the accused-respondent
in government appeal and the learned
A.G.A. as also the learned counsel for the
5 All. Hari Shankar Rai Vs. State
27
first informant in both the appeals qua
impugned judgment and order of conviction
passed by the trial court, it is desirable for us
to briefly refer to the statements of the
prosecution witnesses as well as the defence
witnesses.

29. P.W.-1 Shivji in examination-inchief stated that the accused Harishankar is
the son of accused Mahendra Rai. Both of
them are residents of Tamkuhi Road. House
of both the accused is 100 steps away from
his house to the west. He further stated that
he is elder brother of the deceased Krishna
Kumar He was murdered 2 years and 8
months ago at 08:30 a.m. (morning) in front
of Jugul's shop. House of accused Mahendra
Rai is 15-16 steps away from Jugul's shop.

30. This witness further stated that
when the deceased Krishna Kumar was
proceeding towards the station to have tea
while he himself was coming from the sugar
mill after collecting tax, the accused
Harishankar and Mahendra Rai stopped
Krishna Kumar and the accused Harishankar
stabbed Krishna Kumar. Mahendra had
exhorted the accused Hari Shanker Rai to
kill Krishna Kumar. The knife blow was
sustained by his brother in his chest, then
Mahendra caught hold the hand of Krishna
Kumar from behind and then accused
Harishankar gave the second blow of the
knife in the stomach of Krishna Kumar.
Krishna Kumar screamed and fell there.
This witness, Naurang, Subhan, Radha
Kishun, Ramji and Rama Kant while
making alarm reached there and then both
the accused ran away to their house. P.W.-1
picked up Krishna Kumar and took him to
Tamkuhi Road Hospital. When he went to
take medicine on the advise of Doctor, his
father Jamuna Rai reached there. Two hours
later, Krishna Kumar died in the said
hospital.

31. This witness again stated that the
accused Hari Shanker Rai and his brother
Krishna Kumar studied in Lokmanya Inter
College, Tamkuhi Road. The accused Hari
Shanker Rai was contesting election for the
post of General Secretary of Student Union
in which his brother was campaigning for
his opponent. A month or two, prior to the
incident, there was a fight between the
accused Hari Shanker Rai and the deceased
Krishna Kumar on the same issue and the
deceased Krishna Kumar hit the accused
Harishankar. Krishna Kumar was not
contesting the election for the post of
General Secretary of Student Union. In the
first information report, he did not mention
that the deceased Krishna Kumar hit the
accused Hari Shanker Rai. Later that quarrel
was resolved amongst them.

32. In the cross examination-this
witness denied that the deceased Krishna
Kumar was not going to take tea. He stated
that he did not lodge the first information
report under influence of anyone. The
deceased
Krishna
Kumar
became
unconscious after getting injured. The
deceased Krishna Kumar used to go to take
tea every day, therefore, he mentioned in the
first information report that he was going to
take tea. In normal course, he used to go
daily to collect tax.

33. This witness further stated that at
the time of incident, no one came from the
nearby shops because the shops were closed.
He saw the incident from a distance of 3035 steps away while the accused Hari
Shanker was stabbing the deceased with
knife. The accused Mahendra Rai did not
stab the deceased. In the first information
report he has not disclosed that the accused
Hari Shanker Rai was holding a knife at the
time of incident, as he was nervous. Then,
28 INDIAN LAW REPORTS ALLAHABAD SERIES
this witness stated that the first knife blow
was given on the chest of the deceased and
the second knife blow was given in his
stomach. Blood oozed from both the places.
This incident took place at 2-3 steps beside
the road. This witness stated that he took the
deceased Krishna Kumar to the hospital by
rickshaw. The doctor met him in the hospital
and admitted his brother there and examined
the injuries. His father reached the hospital
within 10-15 minutes. He denied the fact
that his father had taken the deceased
Krishna Kumar to the hospital.

34. This witness again stated that he
did not see mother of the accused Hari
Shanker on the spot. He also did not see any
injuries on the person of accused Hari
Shanker Rai. He denied that the fact that the
deceased Krishna Kumar went at the house
of Harishankar and assaulted him and his
mother. He further denied the suggestion
that the mother of accused Hari Shanker Rai
used sickle in defence. He further denied the
suggestion that the Investigating Officer
came to the spot and on his advice, they
changed the place of the incident. He further
denied that there were no witnesses at the
spot and the accused Mahendra Rai was not
at home on the day of the incident.

35. P.W.-2 Subhan, alleged star eye
witness stated in his examination-in-chief
that about 2 years and 8 months back, the
deceased Krishna Kumar was murdered at
08:30 a.m. in the morning. He was getting a
shave at the barber shop and was sitting
inside the shop. When the deceased Krishna
Kumar was going from the south, accused
Harishankar
abused
him
and
then
Harishankar stabbed the deceased Krishna
Kumar. One knife blow was given on his
chest and the other one was given on the
stomach of the deceased due to which the
deceased Krishna Kumar fell down. The
accused Mahendra was standing behind
him. On the alarm being raised, the accused
ran away. The incident was witnessed by
P.W.-3 Radha Kishun, Naurang, Ramji and
P.W.-1 Shivji. The deceased Krishna Kumar
was taken to the hospital, where he died.

36. In the cross-examination, this
witness stated that when Krishna Kumar fell
and screamed, he came out of the shop. The
deceased Krishna Kumar had fallen towards
his south on the unpaved track. He had fallen
2 to 4 steps away from him. He further stated
that at the time of incident he did not see the
wife of accused Mahendra Rai i.e. mother of
accused Harishanker Rai. He denied not to
have seen the incident and since he is a
servant of Jamnadas, he is giving false
deposition. He did not see any injury on the
person of accused Harishanker.

37. P.W.-3 Radha Kishun, other
prosecution star eye witness stated in his
examination-in-chief that the murder of
Krishna, son of Jamuna took place two and
half years back at 7:00 a.m. or 7:30 a.m. in
the morning. The murder took place near the
barber's shop on the other side of the road in
front of Mahendra's house. He was going
from the bank to the station. He saw the
incident from a distance of 20-25 paces. The
accused Harishankar assaulted the deceased
Krishna Kumar by a knife. He sustained
injuries in his chest and stomach. This
witness again stated that the incident was
witnessed by several people but the accused
ran away.

38. In the cross-examination, this
witness stated that there is a transformer at
the intersection and there is a bank 5-6 shops
away from it on the east side. On the date of
incident he was present on the west road in
front of transformer. When he saw, the
deceased Krishna Kumar had fallen. A
5 All. Hari Shankar Rai Vs. State
29
crowd of 50-60 people assembled there.
He also ran and reached there. The
deceased Krishna Kumar had fallen 10
steps west of the house of accused
Mahendra Rai. At the relevant time, only
the barber shop was open, whereas the rest
of the shops were closed. This witness
further stated that the deceased Krishna
Kumar was not stabbed after he fell down.
He disclosed to the Investigating Officer
that knife blows were given on the
stomach and chest of the deceased. He
then stated that Jamuna is his neighbour.
He did not notice, if blood spilled out on
the spot. The deceased Krishna Kumar had
fallen in supine position.

39. Lastly, this witness stated that large
number of persons assembled at the
doorstep of Mahendra as well as on the
terrace. He did not notice any injury either
on the person of wife of Mahendra (mother
of accused Harishanker) or on the person of
accused Harishanker. He denied to give false
statement being the neighbour of Jamuna
and he did not see the accused Mahendra Rai
on the date of incident.

40. P.W.-4 Sub-Inspector Ausaf
Ahmad Khan in his examation-in-chief
stated that he went to the hospital the same
day and recorded the statement of first
informant Shivji. He found the dead body of
the deceased Krishna Kumar in the hospital.
He prepared the inquest report, photo of the
dead body etc. He further stated that at the
spot, he found ground scratched but he did
not found any blood. The accused was
searched but was not found. On the same
day, the accused Mahendra was arrested
from Tamkuhi Road. This witness further
stated that he recorded the statement of
witness Radha Kishun.

41. In the cross-examination, this
witness stated that he did not found the wife
of accused Mahendra to be injured. He
denied that wife of accused Mahendra had
injuries and he was concealing the same. He
further denied that the incident took place
inside the house of accused Mahendra Rai
and the ground was not scratched.

42. P.W.- 5 Dr. C.B. Singh who was
conducted the post mortem examination of
the body of the deceased Krishna Kumar,
stated in his examination- in-chief that the
cause of death of the deceased was excessive
bleeding and shock due to ante-mortem
injuries noted in the post-mortem report. In
his testimony, this witness opined that injury
nos. 1 and 2 can be caused by a sharp knife,
injury no. 3 could have been caused by
rubbing of the knife. Death of the deceased
was likely to occur at 10:00 a.m. on 13th
December, 1979.