# Iluwa & Ors v. State

- **Citation:** (2025) 9 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-12
- **Case number:** Criminal Appeal No. 118 of 1985
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/iluwa-ors-v-state-53962
- **Pages:** 7

## Headnote

A.G.A.

Issue for Consideration
The key issue was whether the prosecution
proved its case beyond reasonable doubt u/s
307 r/w 34 IPC, particularly the effect of the
prosecution's failure to explain the serious,
unexplained injuries on appellant which raised
doubts about the genesis of the incident and the
reliability of the prosecution witnesses.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 307 r/w 34-Challenge
to-Conviction-Non-Explanation
of
Accused's injuries-Effect on Prosecution
case-Appellant sustained serious injuries,
the prosecution denied or failed to offer
any explanation -Prosecution witnesses
become unreliable-Thus, the appellants
were entitled to the benefit of doubtAppeal allowed.
Held
Appellant sustained injuries in the incident,
including a fracture of the shaft of the ulna in
lower one third portion of the forearm-The
prosecution witnesses (PW-1) totally denied that
the accused were assaulted or sustained
injuries-The Doctor(PW-4) and X-Ray technician
duly proved the injuries and fracture of the
Appellant-the prosecution's complete failure to
explain the serious injuries sustained by the
accused renders the prosecution story doubtfulThe prosecution has suppressed the genesis and
origin of the occurrence and is not presenting
the true version of the incident-In such case,
the benefit of doubt must be accorded to the
accused.(Para 19 to 26) (E-6)

Case law cited
Mohar Rai Vs State of Bihar,(1968) 3 SCR
525,State of Gujarat Vs Bai Fatima, (1975) 2
SCC 7,Lakshmi Singh & Ors Vs State of
Bihar,(1976) 4 SCC 394,Nand Lal & Ors Vs State
of Chhattisgarh, (2023) 10 SCC 470,Lakshmi
Singh & Ors Vs State of Bihar,(1976) 4 SCC
394,State of Rajasthan Vs Madho (1991) Supp
(2) SCC 396,State of M.P. Vs Mishri Lal (2003) 9
SCC 426 & Nagarathinam Vs State (2006) 9 SCC
57 referred to.

List of Acts
Indian Penal Code, 1860, Criminal Procedure
Code,1973

List of Keywords
Appellants,
Acquittal,
Trial
Court,
Abated,
Attempt to murder with common intention,
Informant (Chunni Lal), Non-explanation of
injuries, Benefit of doubt, Firearm injuries, Vital
Part, Fracture, Blunt object, Country made
Pistol, genesis.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTIONCRIMINAL APPEAL No. - 118 of 1985
From the Judgment and Order dated 12.09.2025
of the High Court of Judicature at Allahabad.

Iluwa & Ors. Vs. State

Appearances for Parties
Adv. for Appellant(s)
Amar Saran, Rajendra Prasad, S.C. Srivastava
Adv. for Respondent(s)
A.G.A.

## Text

9 All. Iluwa & Ors. Vs. State
69
(2025) 9 ILRA 69
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2025

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Appeal No. 118 of 1985

Iluwa & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Amar
Saran,
Rajendra
Prasad,
S.C.
Srivastava

Counsel for the Respondent:
A.G.A.

Issue for Consideration
The key issue was whether the prosecution
proved its case beyond reasonable doubt u/s
307 r/w 34 IPC, particularly the effect of the
prosecution's failure to explain the serious,
unexplained injuries on appellant which raised
doubts about the genesis of the incident and the
reliability of the prosecution witnesses.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 307 r/w 34-Challenge
to-Conviction-Non-Explanation
of
Accused's injuries-Effect on Prosecution
case-Appellant sustained serious injuries,
the prosecution denied or failed to offer
any explanation -Prosecution witnesses
become unreliable-Thus, the appellants
were entitled to the benefit of doubtAppeal allowed.
Held
Appellant sustained injuries in the incident,
including a fracture of the shaft of the ulna in
lower one third portion of the forearm-The
prosecution witnesses (PW-1) totally denied that
the accused were assaulted or sustained
injuries-The Doctor(PW-4) and X-Ray technician
duly proved the injuries and fracture of the
Appellant-the prosecution's complete failure to
explain the serious injuries sustained by the
accused renders the prosecution story doubtfulThe prosecution has suppressed the genesis and
origin of the occurrence and is not presenting
the true version of the incident-In such case,
the benefit of doubt must be accorded to the
accused.(Para 19 to 26) (E-6)

Case law cited
Mohar Rai Vs State of Bihar,(1968) 3 SCR
525,State of Gujarat Vs Bai Fatima, (1975) 2
SCC 7,Lakshmi Singh & Ors Vs State of
Bihar,(1976) 4 SCC 394,Nand Lal & Ors Vs State
of Chhattisgarh, (2023) 10 SCC 470,Lakshmi
Singh & Ors Vs State of Bihar,(1976) 4 SCC
394,State of Rajasthan Vs Madho (1991) Supp
(2) SCC 396,State of M.P. Vs Mishri Lal (2003) 9
SCC 426 & Nagarathinam Vs State (2006) 9 SCC
57 referred to.

List of Acts
Indian Penal Code, 1860, Criminal Procedure
Code,1973

List of Keywords
Appellants,
Acquittal,
Trial
Court,
Abated,
Attempt to murder with common intention,
Informant (Chunni Lal), Non-explanation of
injuries, Benefit of doubt, Firearm injuries, Vital
Part, Fracture, Blunt object, Country made
Pistol, genesis.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTIONCRIMINAL APPEAL No. - 118 of 1985
From the Judgment and Order dated 12.09.2025
of the High Court of Judicature at Allahabad.

Iluwa & Ors. Vs. State

Appearances for Parties
Adv. for Appellant(s)
Amar Saran, Rajendra Prasad, S.C. Srivastava
Adv. for Respondent(s)
A.G.A.

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Rajendra Prasad, learned
counsel
for
the
appellants
and
Sri
70 INDIAN LAW REPORTS ALLAHABAD SERIES
Satyendra Nath Tiwari, learned AGA for
the State.

2. Vide order dated 22.08.2025, the
instant appeal on behalf of the appellant
no.3 Munuwa has already been abated.
Therefore, the instant appeal on behalf of
the surviving appellants no.1 and 2 namely
Illuwa alias Hari Shankar and Bilua alias
Umashankar is being heard and decided.

3. The instant appeal has been filed by
the appellants being aggrieved by judgment
and order dated 16.01.1985 passed by the
IInd Additional Sessions Judge, Banda in
S.T. No. 343 of 1983 whereby the
appellants herein were convicted for the
offence under Section 307 read with
Section 34 IPC and were sentenced to
undergo five years rigorous imprisonment.

4. The brief facts as stated in the
prosecution case are that on 28.11.1978 at
5:00 P.M., the informant- Chunni Lal
lodged a report at police station Tindwari,
alleging therein that he has gone to the
agricultural land of Ram Avtar along with a
villager Shiv Nandan to cultivate the land,
which was taken on sharing. The accused
persons namely Illuwa, Bilua and Munuwa
armed with firearms came there at around
11:00 A.M. Illuwa came near the informant
who was sitting there, Illuwa had fired
upon him with a country made pistol due to
which he sustained inury above the right
eyebrow. At the same time, Bilua came
there and started assaulting with lathi, due
to which he sustained injuries on his head
and legs. On the basis of the aforesaid
allegation, the FIR was registered against
the appellants Illuwa, Bilua and Munuwa
for the offence under Section 307 IPC. The
medical
examination
of
the
injured
informant, who was conducted by Dr. V.P.
Bhargava. During medical examination of
the informant Chunni Lal, he found the
following injuries :

"(i) Lacerated would 6.5 c.m, x 1
c.m. x 0.8 c.m. on middle of head 10 c.m.
above the rest of nose.

(ii) Gunshot wound of entrance
0.3 c.m. x 0.3 c.m. x 0.2 c.m. on right side
of forehead 2 c.m. above the middle of
right eye brow.

(iii) Gunshot wound of entrance
0.3 c.m. x 0.3 c.m. x 0.4 c.m. on right side
of forehead 0.5 c.m. above two outer side
of eye brow.

(iv) Gunshot wound of entrance
0.3 c.m. x 0.3 c.m. x 0.3 c.m. on right side
of face 1 c.m. above the upper lip.

(v) Gunshot wound of entrance
0.3 c.m. x 0.3 c.m. x 0.3 c.m. on right side
of neck 5 c.m. below Loubule of right ear.
Margin of injury to (ii) to (v) are inverted ±
abraded collar.

(vi) Sub conjectival haemorrhage
± Ecchymosis of upper lid of right eye.

(vii) Red contusion 7 c.m. x 2
c.m. on left leg 2 c.m. inner to outer
malleolus."

5. As per the opinion of the Doctor ?
Injuries no. (i), (vi) and (vii) were simple in
nature and caused by blunt object. Injuries
no. (ii) to (v) were caused by fire arm and
kept under observation X-ray advised.

6. With regard to the same incident,
another FIR was lodged by Illuwa alias
Harishankar alleging therein that he was
having a previous enmity with Chunni Lal,
the informant herein and he along with one
9 All. Iluwa & Ors. Vs. State
71
Shivnandan came to his tube well and all of
sudden started beating him with lathis.
When he shouted for help, the witness Bala
came there and they were chased. The
accused persons ran away due to the assault
by the said Chunni Lal and Shivnandan. He
had sustained injury on head and left hand.
Dr. V.P. Varghava had also medically
examined the injuries found on the body of
appellant no.1, Illuwa alias Hari Shankar.
During medical examination of Illuwa alias
Hari Shankar, he found the following
injuries:

"(i) Lacerated wound 2 c.m. x 1.5
c.m. x 0.3 c.m. on left side of head 83.5
c.m. above the root of left pinna.

(ii) Lacerated wound 0.5 c.m. x
0.3 c.m. x 0.3 c.m. on right side of forehead
2 c.m. above the outer side of right eye
brow.

(iii) Red contusion 5 c.m. x 1.2
c.m. with swelling 7 c.m. x 6 c.m. on back
of left forearm 4 c.m. above the wrist joint.

7. As per the report, three injuries
were found. Injuries no. (i) and (ii) were
simple injuries and injury no. (iii) was kept
under observation. X-ray was advised and
as per the X ray report, there was a fracture
or shaft of ulna in lower one third portion
of forearm.

8. In support of the prosecution case,
the prosecution examined the informant
Chunni Lal as P.W.1. B.D. Katiyar, S.I.,
P.W.2, Shivnandan Singh, P.W.3 and Dr.
V.P. Bhargava, P.W.4.

9. In Section 313 Cr.P.C. statement,
the appellants herein had denied the
charges and submitted that the case has
been lodged due to the enmity. The
appellant no.1, Illuwa alias Hari Shankar
has stated that Chunni Lal and Shivnandan
came to his tube well and assaulted with
lathis. He stopped the lathi and in self
defence he also assaulted with lathi and
also got fracture in his hand. When they
were assaulting him, his father has fired
from a country made pistol. He has also
reported the case and cross case is also
going on. The appellant Munuwa has stated
that
the
informant Chunni
Lal
and
Shivnandan had assaulted his son Illuwa
alias Hari Shankar with lathis and to save
him, he had fired from country made pistol.

10.
Appellant
no.2,
Bilua
alias
Umashankar has stated that he was not on
the spot. In support of their defence they
had examined Rajdev Chaudhary as D.W.1
who was X ray technician.

11.
P.W.1
has
supported
the
prosecution case as stated in the FIR and in
his statement, he has further categorically
stated that the appellant no.1, Illuwa alias
Hari Shankar was having a country made
pistol, Bilua alias Umashankar was having
lathi and a gun, appellant no.3, Munuwa
was having a gun. The first fire was made
by Illuwa alias Hari Shankar from country
made pistol with intention to kill him, due
to which, he sustained injuries above the
right eye brow. In the meantime, Bilua alias
Umashankar also came near him and
assaulted him with lathi, due to which he
also sustained the injuries on his head and
legs. After he sustained the injuries since
the blood was oozing out, he banded the
same with a safi and went to his village and
thereafter
along
with
Shivnandan,
Shivadhar and Subba, he came to Police
Station- Tindwari. Thereupon, the report
was registered and his medical examination
was got conducted. His statement was
recorded after one and half month of the
72 INDIAN LAW REPORTS ALLAHABAD SERIES
incident by the Investigating Officer. He
has denied that he is not aware that the
appellant no.3 Munuwa lodged the report
of the incident prior to lodging of report by
him. He has also denied that he had
assaulted any of the accused persons or any
of his associates have assaulted any
accused person. Appellant no.2, Bilua alias
Umashankar has also stated that there was
previous enmity between them. It is further
stated by him that where he was assaulted,
the said place was 25 lathis away from the
tube well of the appellants. He has further
denied the suggestions that they have
assaulted
the
accused
persons
and
thereupon in self defence the injuries were
caused by the accused persons. P.W.2 is the
Investigating Officer, who had conducted
the investigation and having found the
charges proved against the appellants
herein, had submitted the charge sheet.

12. P.W.3, Shivnandan has denied the
incident as such he has not witnessed the
incident. He was declared hostile. He
denied that any statement was recorded by
the Investigating Officer.

13. P.W.4 is Dr. V.P.Bhargava who
has supported his medical examination
report as already noted herein above and
proved the same. On his subsequent
examination, he has admitted that on the
date of incident i.e. 28.11.1978 at around
8:00 P.M. in the night, he had also
examined P.W.1, Illuwa alias Hari Shankar
and he has also proved the injuries
sustained by the appellant no.1 as noted
herein above. He submitted the medical
examination report of Illuwa alias Hari
Shankar, which was exhibited as Kha-2.

14. D.W.1, Rajdev Chaudhary who
was the X ray technician, was examined as
defence witness. He has proved the X ray
report of the appellant no.1 Illuwa alias
Hari Shankar. In his cross-examination, he
has denied that the wrong X ray report was
submitted or X ray report was changed. On
the basis of the aforesaid evidence, the trial
court has found that the appellants, who
were armed with lathi and country made
pistol, were the aggressor in the incident
and thereby assaulted the informant and
caused the injuries to the informant as has
been noted.

15. The trial court has found that the
offence under Section 307 read with
Section 34 IPC is fully proved against all
the appellants herein. Accordingly they
were convicted under Section 307 read
with Section 34 IPC and were sentenced for
five years rigorous imprisonment, against
which the instant appeal has been filed.

16. Learned counsel for the appellants
submits that in the instant case, it is fully
established that the appellant no.1, Illuwa
alias Hari Shankar has also sustained
injuries in the said incident and there was a
fracture on his hand. However, there is a
total denial on the part of the prosecution
and injuries caused to appellant no.1. The
injuries of appellant no.1 have been duly
proved in the instant case. Therefore, there
is no explanation on behalf of the
prosecution with regard to the injuries
sustained by the appellant no.1. Thus they
are entitled for acquittal.

17. So far as the injuries caused to the
informant are concerned, the same are
categorically admitted by the appellants
herein.
However,
they
had
properly
explained how the injuries were caused and
it is the case of the appellants that they
have acted in self defence and thereby
caused injuries on the informant. Therefore,
any act done in self defence would not
9 All. Iluwa & Ors. Vs. State
73
amount to any crime. Thus, they are
entitled for acquittal.

18. Per contra, learned AGA submits
that it is admitted case of the appellants
no.1 and 3 that they have caused injuries to
the informant Chunni Lal and the informant
has categorically stated that it were all three
appellant who had caused injuries. The
manner of incident has already been
explained by the informant. The trial court
has categorically recorded the finding that
when three persons armed with lathi and
country made pistol had assaulted the
informant on the vital part and the informant
was alone assuming that the informant had
caused the injuries upon the appellant no.1
itself, then there was no occasion for appellant
no.1 to assault with a country made pistol.
Therefore, the appellants herein were the
aggressor in the incident and have caused the
injury with lathi and also with country made
pistol on the vital part of the informant.
Therefore, he categorically stated that the
offence under Section 307 read with Section
34 IPC proved against all the appellants
herein. Thus they were rightly convicted.
Learned AGA submits that the instant appeal
filed by the appellants deserves to be
dismissed.

19. Having heard the rival submissions
made by learned counsel for the parties, this
Court has carefully gone through the record of
the case. From the record, it is apparent that
the informant as well as the appellant no.1 had
sustained injuries on their body. The informant
has sustained two firearm injuries and three
gun shot injuries. All gun shot injuries are on
the vital part of the body. The appellant no.1
has also sustained injuries as has been duly
proved in the instant case and due to such
injury, there was a fracture on the left forearm
of the appellant no.1. There is a total denial on
the part of the prosecution with regard to the
injuries sustained by the appellant no.1
whereas the defence has categorically stated
that it were the appellant no.1 and 2 who had
caused the injuries on informant in self
defence as the informant has assaulted the
appellant no.1 with lathi. However, no
explanation with regard to the said injury
sustained by appellant no.1 has been given by
the prosecution.

20. In Mohar Rai vs. State of Bihar,
(1968) 3 SCR 525, the Apex Court has
observed as follows:

"The trial court as well as the High
Court wholly ignored the significance of the
injuries found on the appellants. Mohar Rai
had sustained as many as 13 injuries and
Bharath Rai 14. We get it from the evidence
of P.W. 15 that he noticed injuries on the
person of Mohar Rai when he was produced
before him immediately after the occurrence.
Therefore the version of the appellants that
they sustained injuries at the time of the
occurrence is highly probabilised. Under
these circumstances the prosecution had a
duty to explain those injuries.

...... In our judgment the failure of
the prosecution to offer any explanation in
that regard shows that evidence of the
prosecution
witnesses
relating
to
the
incident is not true or at any rate not wholly
true. Further those injuries probabilise the
plea taken by the appellants."

21. In State of Gujarat vs. Bai
Fatima, (1975) 2 SCC 7, the Apex Court
has observed as under:

"In a situation like this when the
prosecution fails to explain the injuries
on the person of an accused depending
on the facts of each case, any of the three
results may follow:
74 INDIAN LAW REPORTS ALLAHABAD SERIES

(1)
That
the
accused
had
inflicted the injuries on the members of
the prosecution party in exercise of the
right of self - defence.

(2) It makes the proseution
version of the occurrence doubtful and the
charge against the accused cannot be held
to have been proved beyond reasonable
doubt.

(3)
It
dos
not
affect
the
prosecution case at all.

The facts of the present case
clearly fall within the four corners of either
of the first two principles laid down by this
judgment. In the instant case, either the
accused were fully justified in causing the
death of the deceased and were protected
by the right of private defence or that if the
prosecution does not explain the injuries on
the person of the deceased the entire
prosecution case is doubtful and the
genesis of the occurrence is shrouded in
deep mystery, which is sufficient to
demolish the entire prosecution case."

22. In Lakshmi Singh and others vs.
State of Bihar, (1976) 4 SCC 394, the
following observations have been made by
the Apex Court :

" It seems to us 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
sup- pressed 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.

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 prosedition one. In the instant case,
when it is held, as it must be, that the
appellant Dasrath Singh received serious
injuries which have not been explained by
the prosecution, then it will be difficult for
the Court to rely on the evidence of PWs. 1
to 4 and 6 more particularly, when some of
these witnesses have lied by stating that
they did not see any injuries on the person
of the accused. Thus neither the Sessions
Judge nor the High Court appears to have
given due consideration to this important
lacuna or infirmity appearing in the
prosecution case. We must hasten to add
that as held by this Court in State of
Gujarat v. Bai Fatima Criminal Appeal No.
67 of 1971 decided on March 19, 1975 :
Reported in there may be cases where the
non-explanation of the injuries by the
prosecution may not affect the prosecution
case. This principle would obviously apply
to cases where the injuries sustained by
the accused are minor and superficial or
where the evidence is so clear and cogent,
so independent and disinterested, so
probable, consistent and credit-worthy,
9 All. Ravindra & Ors. Vs. State of U.P.
75
that it far outweighs the effect of the
omission on the part of the prosecution to
explain the injuries. The present, however,
is certainly not such a case, and the High
Court was, therefore, in error in brushing
aside
this
serious
infirmity
in
the
prosecution
case
on
unconvincing
premises."

23. In Nand Lal and others vs. State
of Chhattisgarh, (2023) 10 SCC 470, the
Apex Court has relied upon the above
observations made in Lakshmi Singh and
others vs. State of Bihar, (1976) 4 SCC
394, the Apex Court has further placed
reliance in State of Rajasthan vs. Madho
(1991) Supp (2) SCC 396, State of M.P.
vs. Mishri Lal (2003) 9 SCC 426 and
Nagarathinam vs. State (2006)9 SCC 57,
while acquitting the accused persons due to
non explanation of injuries of accused by
the prosecution.

24. Thus from the aforesaid judgments
of the Apex Court, it can be safely
concluded that non explanation of injuries
sustained by the accused person by the
prosecution, makes the prosecution story
doubtful. That means the prosecution is not
coming with clean hands and there is an
attempt
to
suppress
the
real
facts.
Therefore,
the
prosecution
witnesses
becomes unreliable, and in case, the
defence has given the explanation of the
entire incident that becomes more reliable.
Therefore, the benefit of doubt is to be
accorded to the accused persons.

25. In the instant case, prosecution has
completely failed to explain the injury
sustained by the appellant no.1 and nonexplanation of the injuries sustained by the
accused persons by the prosecution creates
a doubt about the prosecution story and it
gives rise to the suspicion in the minds of
the Court that the actual genesis of the
incident is being suppressed by the
prosecution and the prosecution is not
coming forward with the actual story and is
trying to suppress the actual incident.
Therefore, the accused persons are entitled
for benefit of doubt.

26. Accordingly, the instant appeal is
allowed. The impugned judgment and
order dated 16.01.1985 passed by the trial
court
convicting
and
sentencing
the
appellants no.1 and 2 herein is hereby set
aside. The appellants no.1 and 2 are hereby
acquitted of the charges.

27. The appellants no.1 and 2 are on
bail. They need not surrender. Their bail
bonds are cancelled and Sureties are
discharged.

28. Office is directed to send a copy of
this judgment along with the record to the
trial court to be consigned.
----------
(2025) 9 ILRA 75
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANIL KUMAR-X, J.

Criminal Appeal No. 319 of 1984

Ravindra & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Seema Pandey (A.C.), P.N. Misra, Yadvesh
Yadav

Counsel for the Respondent:
Dga