# Jumman Khan and others (in Jail) v. State of U.P

- **Citation:** (2002) 2 ILRA 550
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-19
- **Case number:** Criminal Appeal No. 682 of 1987
- **Bench:** J.C. Gupta, K.K. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jumman-khan-and-others-in-jail-v-state-of-u-p-40017
- **Pages:** 11

## Headnote

Indian Penal Code- Section 374- Rule of
pleadings of civil law does not apply to
criminal cases. Unlike in a civil case, it is
open to a criminal court to give benefit
to the accused of a plea even if not
stated by him in his statement under
section 313 Cr.P.C. It is not for the
accused to firmly establish his defence
and it is sufficient if he is able to create a
reasonable doubt in the mind of the
court
showing
a
preponderance
of
probability.

Held in para 26

Motive alleged by the prosecution has
not been firmly established, that both
the
witnesses
produced
from
-
prosecution side are highly interested
and inimical and independent persons
though admittedly present at the time of
alleged incident were withheld by the
prosecution and that it is not established
beyond doubt that the incident had
occurred at the place and in the manner
as alleged by the prosecution it would be
hazardous to hold the appellants guilty
of the offences charged for, particularly
when neither the prosecution nor the
defence has been able to show with
certainty how and where the incident
occurred and where persons on both
sides received serious injuries and the
court
is
left
with
guesses
and
conjectures. In these circumstances we
are left with no option but to acquit the
accused persons by giving them the
benefit of doubt.
Case law referred:
AIR 1974 SC 1950
1976 (13) ACC 372
2000 (41) ACC 696

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
550
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.7.2002

BEFORE
THE HON'BLE J.C. GUPTA, J.
THE HON'BLE K.K. MISRA, J.

Criminal Appeal No. 682 of 1987

Jumman Khan and others
...Appellants
(in Jail)
Versus
State of U.P.

 ...Respondent

Counsel for the Appellants:
Sri V.C. Tiwari
Sri A.K. Awasthi
Sri P.N.Misra
Sri R.L. Verma
Sri R.D. Verma
Sri V.C. Tewari.
Sri Satish Trivedi

Counsel for the Respondent:
Sri Amar Saran
A.G.A.

Indian Penal Code- Section 374- Rule of
pleadings of civil law does not apply to
criminal cases. Unlike in a civil case, it is
open to a criminal court to give benefit
to the accused of a plea even if not
stated by him in his statement under
section 313 Cr.P.C. It is not for the
accused to firmly establish his defence
and it is sufficient if he is able to create a
reasonable doubt in the mind of the
court
showing
a
preponderance
of
probability.

Held in para 26

Motive alleged by the prosecution has
not been firmly established, that both
the
witnesses
produced
from
-
prosecution side are highly interested
and inimical and independent persons
though admittedly present at the time of
alleged incident were withheld by the
prosecution and that it is not established
beyond doubt that the incident had
occurred at the place and in the manner
as alleged by the prosecution it would be
hazardous to hold the appellants guilty
of the offences charged for, particularly
when neither the prosecution nor the
defence has been able to show with
certainty how and where the incident
occurred and where persons on both
sides received serious injuries and the
court
is
left
with
guesses
and
conjectures. In these circumstances we
are left with no option but to acquit the
accused persons by giving them the
benefit of doubt.
Case law referred:
AIR 1974 SC 1950
1976 (13) ACC 372
2000 (41) ACC 696

(Delivered by Hon'ble J.C. Gupta, J.)

1. The above named six appellants
have
filed
this appeal
against the
judgement and order dated 3.3.87 in
Sessions Trial No. 714 of 1983 whereby
they have been convicted and sentenced
to imprisonment for life under Section
302/149 IPC, to five years R.I. each under
section 307/149 IPC and one year R.I.
each under Section 148 IPC Sentences are
to run concurrently.

2. The prosecution story in brief is
that all the appellants are resident of
village
Paisa
Khera
police
station
Pawayan district Shahjahanpur. Faiyaz
Khan P.W.1 is also a resident of same
village. It is alleged that election for the
post of delegate of the Co operative
society of Nyaya Panchayat Badehla was
to be held. Faiyaz Khan and accused
Jumman Khan both were candidates in
that election. Jumman Khan pressurized
Faiyaz Khan to withdraw his candidature
in his favour but Faiyaz Khan refused to
http://www.allahabadhighcourt.nic.in
2 All] Jumman Khan and others V. State
551
do so. Jumman Khan then threatened him
with dire consequences.

3.

Further
allegation
of
the
prosecution is that on 6.9.83 one Bankey
sweeper was taking his pigs through the
passage in front of house of the accused
Jumman. The accused told Bankey not to
take his pigs from the route. Bankey did
not listen. He was assaulted by accused
Jumman Khan and others. Bankey lodged
report against Jumman Khan and others
wherein Faiyaz Khan was cited as a
witness for Bankey. Accused party asked
Faiyaz Khan not to give evidence against
them but Faiyaz Khan told them that
whatever he had seen he would depose.
Jumman Khan and others were thus
bearing enmity against Faiyaz Khan.

4. It is alleged that on 25.9.83 at
about 5.30 p.m. Faiyaz Khan P.W.1
alongwith
his
brother
Eijaz
Khan,
deceased of this case, and Wasim Khan
P.W. 2 were sitting under a neem tree in
front of the house of Tauquir Khan. They
were talking with each other. Accused
Jumman Khan came there and asked
Faiyaz Khan to file affidavit in his favour
in the case instituted by Bankey sweeper.
Faiyaz Khan did not pay any heed to this
request
of
accused
Jumman
Khan,
whereupon accused started abusing him.
Eijaz Khan and Wasim Khan asked
accused Jumman Khan to stop abusing.
Accused Jumman Khan went back to his
house saying that he would see them just
now. With in a few minutes thereafter
accused Jumman Khan armed with rifle,
accused Sami Ullah, Ismail Khan, Laddan
armed with D.B.B.L. guns and Abrar,
Shafayat armed with S.B.B.L. guns came
there from south. Accused Jumman Khan
challenged and incited his companions to
kill Eijaz Khan and others. All the
accused persons started firing from their
respective arms. Jumman Khan any how
saved himself by going behind the neem
tree. Deceased Eijaz Khan and Wasim
Ullah however sustained fire arm injuries
at
the
hands
of
accused
persons.
Witnesses Ahmad, Masroor Ullah, Mohd.
Shafi, Majid Khan and many other
villagers
reached
there.
On
their
challenge, the accused persons ran away
towards south. Deceased Eijaz Khan on
receiving fire arm injuries fell down under
the thatch of Tauqir Khan and died on the
spot.

5. Jumman Khan went to the police
station in the same evening and lodged
oral First Information Report ( Ex.Kha.1)
at 9.30 p.m. Case was registered and
investigation ensued. The Investigating
Officer went to the place of occurrence
and found the dead body of Eijaz
deceased lying under the thatch of Tauqir
Khan. The dead body was taken into
custody and sent to mortuary for post
mortem
examination
after
holding
inquest.
Investigating
Officer
then
prepared site plan Ex. Kha. 11 . In this
site plan , the place where deceased with
the witnesses was talking, has been
indicated by letter 'A'. The place where
dead body of deceased was found has
been shown by letter 'F'. The distance
between 'A' and 'F' is noted at 12 paces.
The place from where accused persons
opened fire has been shown by letter 'B'.
The distance between A and B is
indicated as 30 paces. Letter C denotes
the place from where witness Maskalla
Khan had witnessed the incident from his
house, while letter D denotes the place
from where witness Mohd. Safi witnessed
the incident from his house. The distance
between B and C is 11 paces while
between B and D is 15 paces. E is the
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
552
place from where witnesses Ahamad
Hasan Khan and Majid Khan saw the
incident. This place was situated at a
distance of 18 paces from the scene of
occurrence. It may also be relevant to
mention here that when the Investigating
Officer inspected the scene of occurrence
he found no tikli, peilets or empty
cartridges either at place A or B or F or in
between. No drop of blood was also found
either near about the place A or in
between A and F . Blood was found by
the side of dead body in the Chhappar of
Tauqir Khan. Statements of witnesses
were recorded and on completion of
investigation, charge sheet was submitted
against all the six nominated accused
persons.

6. Before the trial court prosecution
produced six witnesses in all, of whom
only Faiyaz Khan P.W.1 and Wasim
Khan P.W.2 were witnesses of fact P.W.
3 Dr. P.S. Varma is the Medical Officer
who conducted autopsy on the dead body
of deceased Eijaz Khan on 27.9.83 at 3.30
p.m. Deceased was aged about 18 years
and probable time of death was reported
to be about two days. Rigor mortis had
passed off from both the upper and lower
extremities.
Body
was
decomposed.
Following ante- mortem injuries were
found:

1.
Multiple fire arm wounds of entry on
right side chest front in an area of 25 cm.x
10 cm. And eight fire arm wounds of
entry on left side chest in an area aof 17
cm.x 10 cm . Each wound was measuring
0.3 cm. X 0.3 cm. X chest cavity deep.
Margins were inverted and lacerated. No
blackening
or
tattooing
was
seen.
Direction was from front to back
horizontally.

2.
Five fire arm wounds of entry on
front of left arm in an area of 16 cm.x 8
cm. Each measuring 0.3. cm. X 0.3. c.m.
Margins were inverted and lacerated. All
were muscle deep. No blackening or
tattooing seen. Direction was front to
back horizontally.

3.
Four fire arm wounds of entry on
front of right arm, two on right wrist
dorsal side and five on left side. Each
wound was 0.3. cm. X 0.3. cm. X muscle
deep.
Margins
were
lacerated
and
inverted. No blackening and tattooing
found. Direction was front to back
horizontally.

The internal examination revealed
that pleura was lacerated on both
sides.Right and left lung were also
lacerated and about one litre of blood in
left chest cavity and half litre on right
chest cavity was found. Cause of death
was shock and hemorrhage as a result of
fire arm injuries. In all 23 small metallic
pellets were recovered from the body.
Post mortem Report of Eijaz Khan is Ex.
Ka. 2. In his deposition before the Court
Dr. P.S. Varma stated that death of Eijaz
in the evening of 25.9.83 was probable.

7. Dr. H.P.Bhatt P.W. 4 had
medically examined injured Wasim Khan
on 26.9.83 at 12.10 p.m. and he found
following injuries at the time of medical
examination:

1.
Lacerated wound 0.25 cm. X 0.25
cm. X scalp deep, surrounded by swelling
present on front of head 9 cm above from
root of nose. No blackening, charring
present.

2.
Lacerated wound 0,.25 cm x 0.25
cm. X skin deep present on right fore
http://www.allahabadhighcourt.nic.in
2 All] Jumman Khan and others V. State
553
head 4 cm above right eye-brow. No
blackening and charring present.

3.
Two circular lacerated wounds each
measuring 0.25 cm. X 0.,25 cm. X skin
deep present on nose. Bo blackening
present.

4.
Lacerated wound 0.25 cm. X 0.25
cm. X muscle deep present on middle of
upper lip. No blackening and charring
present.

5.
Lacerated wound 0.25 cm. X 0.25
cm. X not probed present on left side of
chest 15 cm. Below from left nipple. No
blackening and charring present.

6.
Lacerated wound 0.25 cm. X 0.25
cm. X not probed present on right side of
chest 13 cm. Below from right nipple. No
blackening and charring present.

7.
Two oval lacerated wounds 0.25 cm.
X 0.25 cm x not probed present on front
of abdomen just 6 cm away from
umbilicus and 2nd 8 cm away from
umbilicus. No blackening and charring
present.

8.
Seven oval lacerated wounds each
measuring 0.25 cm. X 0.25 cm. X not
probed present on front of left thigh in an
area of 22 cm. X 12 cm x 3 cm. Below
frominguing region. No blackening and
charring present.
9.
Six oval lacerated wounds each
measuring from 0.25 cm. X 0.25 cm. X
not probed present on front of inner
aspect of right thigh in an area of 29 cm.
X 13 cm. No blackening and scorching
present.

10. One oval lacerated wound 0.25 cm.
X 0.25 cm. X bone deep present on front
of left leg 9 cm. above from left ankle
joint. No blackening and scorching
present.

8. In the opinion of doctor except
injuries no. 2,3 and 4 which were simple,
rest of the injuries were kept under
observation and x-ray was advised.
Duration was about one day. The doctor
has also deposed that injuries of Wasim
Khan could be caused on 25.9.83 at about
5.30 p.m. Injury Report of Wasim Khan is
Ex. Kha. 4 The X-ray report. Ex. Ka 3,
was prepared by Dr. P.S. Varma. The Xray report confirmed that the injuries
sustained by Wasim Khan were pellet
injuries caused by fire arms.

9. PW 5 Head Constable Surendra
Pal has deposed that check FIR was
prepared by him on the basis of oral
report lodged by Faiyaz Khan P.W. 1 . On
the basis of this report case was registered
in the general diary at serial no. 39 at 9.30
p.m. Copy of the general diary entry has
been proved as Ex.Ka.5.

10. P.W. 6 V.P. Singh was posted as
Station Officer at P.S. Powayan. He
himself conducted the investigation and
submitted charge sheet.

11. Prosecution also filed affidavit
of Constable Dharmapal Singh who had
escorted the dead body to mortuary.

12. P.W. 1 Faiyaz Khan and P.W. 2
Wasim Khan in their statements before
the trial court have stated that the incident
had occurred at about 5.30 p.m.when they
were sitting under the neem tree.
According to them all the accused persons
started indiscriminate firing upon the
deceased and the witnesses. According to
them Eijaz Khan and Wasim Khan
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
554
received fire arm injuries in the firing
while Faiyaz Khan escaped injury as he
concealed himself behind the neem tree.

13. Jumman Khan appellant in his
statement recorded under section 313
Cr.P.C.
denied
the
prosecution
allegations. According to him he has been
falsely implicated on account of previous
enmity. He stated that Buddhan Khan and
others were convicted. In that case this
accused had done pairavi for Mukhtar
Khan. Therefore, Buddan Khan and
others were inimical to him Abrar Khan
stated that he was an old man of 82 years
of age and was not even able to move.
Accused Ismail Khan stated that he has
been falsely implicated on account of
enmity. Similar were the statements of
other accused excepting Sami Ullah
Khan. According to accused Sami Ullah
Khan, his brother was Mangal Khan
whose cousins were Liyaqat Khan and
Sharafat Khan. Deceased Eijaz and
Wasim used to go there. They used to
misbehave. On some occasions some
altercation had occurred between Mangal
Khan. Wasim and Eijaz Khan. On the
date of incident they fired upon Mangal
Khan in respect of which report was
lodged and cross case also proceeded. As
a counter blast the present case has been
instituted. Badhel Khan his maternal
uncle
had
given
evidence
against
Buddhan Khan in a case in which
Buddhan Khan was convicted. For that
reason Buddhan Khan was annoyed with
him.

14. Ex. Kha 2 is the copy of First
Information Report lodged by Mangal
Khan against Buddhan Khan , Dulare
Khan, Mukhtar Khan, Jumman Khan,
Faiyaz Khan and Eijaz Khan deceased.
This report was lodged on 27.9.83 on the
basis of which case crime no. 241 A
under Sections 147/148/307 IPC was
registered. This FIR was also investigated
and cross Session Trial proceeded before
the same Judge in the court below.
Injuries of Mangal Khan were examined
by Dr. Jasbir Singh C.W. 1 who was
examined as a court witness in appeal by
the order dated 7.2.2001. Dr. Jasbir Singh
found following injuries on the person of
Mangal Khan:

1.
Multiple lacerated oval fire arm
wounds measuring 0.5. cm x 4 cm. To
0.4. x 0.3. cm over the whole back 50 x
32 cm. Area From base of neck (upper
first) and apart occion (lower part) outer
part of back. In some wounds pellets are
palpable. No charring, blackening or
scorching present. Margins are inverted.

2.
Lacerated oval fire arm wound 0.4.
cm. X 0.3. cm. X muscle deep over the
right side of buttock 10 cm. Above anus
at 1.0 clock position. No charring,
blackening or scorching present. Pellets
palpable margins inverted.

3.
Lacerated oval small wound (fire
arm) 0.3 cm. X 0.2. cm. Over the lower
and medial part of right buttock 8 cm.
Below the arms at 5.9 clock position. No
charring,
blackening
and
scorching
present. Margins are inverted, pellets not
palpable.

4.
Lacerated oval fire arm wound 0.3. x
0.2 c over the left side of head of occipital
region 8 cm from left ear at 3.0 clock
position pellets is palpable and scalp
deep. No charring and blackening present.
Margins are inverted, pus is not present.

5.
Lacerated oval fire arm wound 0.4
cm. X 0.3. cm depth not taken over the
http://www.allahabadhighcourt.nic.in
2 All] Jumman Khan and others V. State
555
front and lateral part of left side of chest
17 cm. Below left axilla and 13 cm.
Below and lateral to left nipple. No
charring and blackening present. Margins
are inverted, pellet is not palpable,
advised x-ray.

6.
Abraded contusion 5 cm. X 4 cm
over the post lateral part of right hand at
the base of right thumb, 6 cm front of
right wrist. Irregular Radish blue.

7.
Contusion 16 cm x 12 cm area radish
blue over the front and medial part of
right elbow including lower portion of
upper right wrist and upper portion of
right fore arm. Defused swelling present.
Margins are red in colour.

8.
Two oval lacerated fire arm wound
0.4 cm. X 0.4 cm. Each 4 cm. Apart in a
line over the medial side of right upper
arm lower part , 8 cm. Above right elbow
proving
not
done.
No
charring,
blackening or scorching present. Margins
are inverted. Pellet is palpable.

9.
Lacerated oval fire arm wound 0.5
cm x 4 cm over the back of left elbow,
probing not done. Pellet is not palpable.
No charring, blackening or scorching
present. Advised X-ray. Margin inverted.

15. Dr. Jasbir Singh in his
deposition before this court has also stated
that in his opinion injury no. 6 was simple
while rest were kept under observation.
Injuries no. 6 and 7 were caused by blunt
object while rest were of fire arm. The
injuries were about one and half day old
Mangal Khan injured was brought before
him by Constable of P.S. Puwayan. Dr.
Jasbir Singh has categorically stated that
injuries of Mangal Khan could be caused
in the evening at about 5.30 p.m. He has
further deposed that most of the fire arm
injuries were on vital parts and pellets
were palpable and that these injuries
could
not
be
self-inflicited.
X-ray
examination of Mangal Khan was done by
Dr. P.S. Varma P.W. 3 who in his
statement before the trial court has stated
that on 28.9.83 he had taken x-ray of
Mangal Khan and found radio opaque
shadow in his chest, back and right arm.
He proved the X-ray Report as Ex. Kha.
1.

Accused
did
not
examine
any
witness in defence.

16. On appraisal of evidence the
learned Session Judge has found all the
appellants guilty and accordingly they
have been convicted and sentenced as
mentioned above.

17. We have heard Sri P.N. Misra,
and Sri Satish Trivedi Senior Advocate
for the appellants, learned A.G.A. for the
State and Sri Amar Saran for the
complainant.

18. It may be relevant to mention
here that as per the report of Chief
Judicial Magistrate, Shahjahanpur dated
18.3.2000 Abrar Khan has died during the
pendency of appeal, accordingly his
appeal stands abated.

19. As far as factum of death of
Abrar Khan is concerned the same has
neither been disputed nor assailed before
us by the learned counsel for the
appellants. It has been also not disputed
that injured Wasim Khan had also
sustained fire arm injuries in the same
incident wherein deceased had received
injuries. However the submissions of the
learned counsel for the appellants have
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
556
been that both the prosecution witnesses
examined at the trial are highly inimical
and interested and their evidence does not
inspire confidence, that the number of
injuries found on the deceased and the
injured do not coincide with the number
of assailants and the prosecution has
exaggerated
their
number,
that
the
prosecution has utterly failed to offer any
explanation regarding serious fire arm
injuries found on the person of Mangal
Khan on accused side and from this
failure it should be inferred that the
evidence of the prosecution witnesses is
not true and the prosecution has purposely
suppressed the genesis of the origin of
occurrence and that such non-explanation
will assume greater importance in this
case because the evidence consists of
interested and inimical witnesses only, as
independent
witnesses
have
been
withheld. It has also been urged that the
motive alleged by the prosecution has not
been
established
which
in
the
circumstances of the case cannot be lost
sight of as the defence has put a cross
version of the incident wherein Mangal
Khan on their side had suffered very
serious fire arm injuries on his person
which by no stretch of imagination could
be self-inflicted or self-suffered. On the
other hand learned counsel for the
complainant and the learned A.G.A. have
tried to support the judgement of the trial
court.

20. As far as motive part of the
prosecution case is concerned it is alleged
that before the occurrence in question an
election was to be held for the post of
delegate of Co -operative society. The
complainant Faiyaz Khan P.W. 1 and
accused
Jumman
Khan
both
were
candidates for the same. Accused Jumman
Khan wanted the complainant to with-
draw his name for which the later was not
agreeable, whereupon accused Jumman
Khan is alleged to have threatened him
with dire consequences. This motive has
been stated by P.W. 1 Faiyaz Khan. In
cross examination however he admitted
that he did not have any knowledge if any
notification of election had been issued.
He further admitted that no one had filed
nomination. There was no written order
fixing date for the election. He further
admitted that no such election was
however held. He also admitted that
neither he lodged any report nor had
moved any application against Jumman
Khan with regard to the alleged threat.
There is no other corroborative evidence .
Accused persons have denied the said
allegation. In our opinion this motive has
not been clearly established from the
evidence on record.

21. The other motive which the
prosecution has alleged is that prior to the
incident in question an incident had
occurred between Jumman Khan and
Bankey sweeper on the issue of the later
taking his pigs from in front of the house
of Jummnan Khan. Bankey sweeper had
lodged a report against Jumman Khan and
others wherein Faiyaz Khan was cited as
a witness. It is further alleged that
Jumman Khan accused asked Faiyaz
Khan not to give evidence against him in
that case and when he did not agree.
Jumman Khan extended threat to him.
Accused Jumman Khan has denied this
allegation
of
prosecution.
Bankey
sweeper has not been produced as a
witness in this case. As per the statement
of P.W. 1 Faiyaz Khan, Bankey sweeper
used to reside in the house of Babu which
was situated in the south of village. This
house was removed by about 50-60 paces
from the house of accused Jumman Khan
http://www.allahabadhighcourt.nic.in
2 All] Jumman Khan and others V. State
557
whose house was situated in south west of
the mosque. The witness further admitted
that in the case of Bankey sweeper,.
Masrullah who is also a witness in the
present
case,
was
also
a
witness.
Masrullah has not been produced in the
present case. Faiyaz Khan has admitted
that he did not receive any summon to
appear as a witness in the case of Bankey
sweeper. He further admitted that he had
no knowledge if any such case was
proceeding in court. He also admitted that
he was never interrogated by police in
that case. Though P.W. 2 Wasim Khan
has also stated of this motive but his
presence at the time of incident alleged to
have taken place between Jumman Khan
accused and Bankey sweeper has not been
stated by P.W. 1 Faiyaz Khan. This
motive thus has also not been fully
established. We therefore, find that it is
doubtful that the incident in question had
occurred for the reasons as alleged from
the prosecution side. This conclusion of
ours is further strengthened by other
circumstances appearing in the case
which we would point out in the later part
of this judgment.

22. It is true that where direct
evidence regarding assault is available the
question of motive looses much of its
importance and the absence or inadequacy
of motive would have no adverse effect
on the prosecution case if the direct
evidence is otherwise found trust worthy
and reliable However, in a case where
there is a cross version of the incident and
the prosecution fails to prove the alleged
motive and further the circumstances
appearing in the case raises a needle of
suspicion against the prosecution party
and the court is in a doubt that the
incident occurred for a reason other than
the one as alleged by the prosecution in
that event failure to prove motive assumes
greater importance. As per the First
Information Report lodged by Mangal
Khan Ex. Kha. 2 the deceased and his
party were having old enmity with him
and on the day of occurrence when
Mangal Khan was passing through the
way lying in front of the house of accused
persons he was fired upon and assaulted
and in the same incident deceased Eijaz
sustained fire arm injuries at the hands of
his own men and he fell down in front of
thehouse of Taukir Khan. However as per
the prosecution case the incident occurred
when Faiyaz Khan , Eijaz Khan deceased
and Wasim Khan were talking with each
other under the neem tree, accused
Jumman Khan came there and asked
Faiyaz Khan to file affidavit in his favour.
On his refusal he went back and after
about 10 minutes all the accused persons
arrived there armed with rifle, D.B.B.L.
guns and S.B.B.L. guns and all the six
accused persons made indiscriminate
firing upon Faiyaz Khan and others.
According to Faiyaz Khan he did not
sustain any injury as he went back behind
the neem tree. It is further stated by P.W.
1 Faiyaz Khan that Wasim Khan and
Eijaz Khan after sustaining fire arm
injuries ran in the west and Eijaz fell
down in the Chappar of Taukir Khan
while Wasim Khan went inside. On
examination of evidence on record, we
find that there is great deal of doubt that
the incident had occurred at the place and
in the manner as alleged by the
prosecution. As many as six persons
armed with rifle, D.B.B.L. guns and
S.B.B.L. guns had fired indiscriminately
upon Faiyaz Khan , Wasim Khan and
Eijaz Khan. Faiyaz Khan as per the own
case of prosecution was their dire enemy.
It does not sound to reason that if firing
was made indiscriminately by as many as
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
558
six persons, Faiyaz Khan would have not
gone unhurt. According to him he did not
receive any injury as he hid himself
behind the neem tree. No pellet marks
were found on the neem tree. The incident
occurred during day time it does not
sound to reason that the accused persons
would have left Faiyaz Khan without
making any attempt over him particularly
when he was their main target. His going
behind need tree would have also not
gone
unnoticed.
The
allegation
of
prosecution that Eijaz Khan deceased and
Wasim P.W. 2 had sustained fire arm
injuries under the neem tree also does not
get support from the spot position. No
blood was found at the scene of
occurrence or under the neem tree or at
any place nearby. Dead body of Eijaz
Khan was found at the place shown by
letter F in the site plan Ex. Ka. 11. This
place is shown in the Chappar of Taukir
Khan. The distance between this place
and the neem tree which is shown by
letter A was 12 paces, meaning thereby
that the deceased after sustaining fire arm
injuries ran to a distance of 12 paces. Not
even a single drop of blood was found
between point A and F. Accused persons
are alleged to have fired from a distance
of 30 paces from point B. If firing was
made from a distance of 30 paces that is
about 75 feet, the deceased and injured
would not have received injuries of the
kind which were in fact found on their
persons. Appellant Jumman Khan is
alleged to be armed with rifle. He is also
alleged to have open fire from his rifle.
No rifle injury was however found either
on the deceased or on injured Wasim . We
thus find that it is highly doubtful that the
incident had occurred at the place and in
the manner as alleged by the prosecution.
It is true that Wasim P.W. 2 is an injured
witness and his presence at the scene of
occurrence cannot be doubted but the
question which requires determination is
whether he has given a correct account of
the occurrence suppressing the genesis
and the origin of the occurrence. As
already pointed out above Mangal Khan
had himself lodged FIR at the police
station stating therein that he was
assaulted by Faiyaz Khan, deceased Eijaz
Khan and others when he was passing
through the way and during the course of
firing Eijaz Khan had sustained fire arm
injuries at the hands of his own men. The
First Information Report lodged by
Mangal Khan has been proved as Ex.
Kha. 2 . Injuries on Mangal Khan were
examined by Dr. Jasbir Singh C.W. 1. His
statement was recorded in the cross case
which proceeded before the trial court and
it appears that under a mistaken advice
the said doctor was not examined in this
case by the counsel who represented
accused persons in the trial court. Even
the learned Sessions Judge failed to
summon him as a Court witness though
the X-ray Report of Mangal Khan had
been brought on record and proved in the
statement of P.W. 3 Dr. P.S. Varma. Dr.
Jasbir Singh C.W. 1 has categorically
stated that injuries of Mangal Khan could
be caused in the evening of 25.9.83. Most
of the fire arm injuries were on vital parts
in which pellets were palpable. These fire
arm injuries could not be self-inflicted.
Injuries no. 6 and 7 were caused by blunt
object. As per the version of Mangal
Khan he was assaulted by lathi and fire
arms. Both P.W. 1 and P.W. 2 have
offered no explanation of the injuries of
Mangal Khan. It was vehemently argued
by learned counsel for the appellants that
the prosecution has utterly failed to
explain the serious injuries of Mangal
Khan who was undoubtedly a man of
accused party and it must be held that the
http://www.allahabadhighcourt.nic.in
2 All] Jumman Khan and others V. State
559
prosecution has suppressed the truth,
benefit, therefore, must go to the accused.

23. The law as to how far the
prosecution case will be effected on
account of non-explanation of injuries
suffered on defence side is now well
settled. In the case of Onkarnath Singh
and others Vs. State of U.P. AIR 1974 SC
1550, it was held that the question as to
what is the effect of the non explanation
of injuries on defence side is a question of
fact and not of law. Such non explanation
, however, is a factor which is to be taken
into account in judging the veracity of the
prosecution witnesses, and the court
should scrutinize their evidence with all
care and caution.

24. In Lakshmi Singh and others Vs.
State of Bihar 1076 (13) ACC 372, the
Apex Court held that non explanation of
the injuries on the defence side by the
prosecution witnesses may affect the
prosecution
case
and
such
non
explanation
will
assume
greater
importance where the evidence consists of
interested or inimical witnesses or where
the defence gives a version which
competes in probability with that of the
prosecution..

25. In Rajendra Singh Vs. State of
Bihar 2000 (41) ACC 696, it was held by
the Apex Court that it is too well settled
that ordinarily the prosecution is not
obliged to explain each injury on an
accused even though the injuries might
have been caused in course of the
occurrence then certainly the court looks
at the prosecution case with little
suspicion
on
the
ground
that
the
prosecution has suppressed the true
version of the incident.

26. Learned counsel for complainant
submitted
before
us
that
excepting
accused Sami Ullah Khan all other
accused persons have not stated that
incident had occurred with Mangal Khan,
and no right of private defence has been
pleaded by them. It was further argued
that it is ridiculous to believe that Wasim
Khan and deceased Eijaz Khan had
sustained fire arm injuries at the hands of
their own men. Sri Amar Saran argued
that as no right of private defence has
been pleaded nor any evidence led, it
must be held that Eijaz Khan and Wasim
Khan had received fire arm injuries at the
hands of present appellants. Accused
Sami Ullah Khan in his statement under
Section 313 Cr.P.C. has clearly stated that
Mangal Khan was his brother and he has
died. Therefore, the defence could not be
blamed for not examining him as a
witness in defence. We may also point out
that it is well settled law that onus of
proving all the ingredients of an offence
always lies upon the prosecution and at no
stage the same shifts to the accused. The
court has first to look into the evidence
led by prosecution to find out if the
incident had occurred in the manner as
alleged by it before scrutinizing the
defence plea. It is also well settled that
even in cases where the defence of the
accused does not appear to be credible or
is palpably false, the burden which lies on
the prosecution does not become any less.
It is only when this heavy burden lying on
the prosecution is discharged that it will
be for the accused to explain or controvert
the essential elements in the prosecution
case which would negative it. It is not for
the accused at the initial stage, to prove
something which has to be eliminated by
the prosecution itself. Rule of pleadings
of civil law does not apply to criminal
cases. Unlike in a civil case, it is open to a
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
560
criminal court to give benefit to the
accused of a plea even if not stated by
him in his statement under Section 313
Cr.P.C. It is not for the accused to firmly
establish his defence and it is sufficient if
he is able to create a reasonable doubt in
the mind of the court showing a
preponderance of probability. An accused
can be convicted only when the court is in
a position to come to a definite conclusion
beyond the possibility of reasonable doubt
that the accused has committed the
offences. No conviction can be placed on
mere possibilities nor it is permissible for
the court to speculate as to what had
really happened. Where both the parties
come
to
court
with
untrue
facts
concealing real truth they are themselves
to be blamed. They cannot expect the
Court to arrive at any definite conclusion
on the basis of unreliable evidence
produced either in favour or against by
either of the parties. In such cases the
court certainly owes a duty to make an
attempt to separate grain from the chaff
but if the circumstances appearing in the
case are such that it may be found to be an
inseparable task the inevitable result
would be to extend benefit of doubt to the
accused. That is particularly so when the
evidence of both the parties is thoroughly
unreliable and cannot be acted upon even
in part with safety. It is not open for the
court to bring out a third story entirely
different from the one set up by the
parties. In such cases the Court can only
say that the matter is doubtful in the trane
and it is not possible to arrive at any
definite conclusion one way or the other.
The mere fact that the version given in the
First Information Report lodged by
Mangal Khan was also not true, that
would not absolve the prosecution in
discharging its burden of proving the case
against the accused persons beyond any
reasonable doubt. Once we have found
above that the motive alleged by the
prosecution
has
not
been
firmly
established beyond doubt that the incident
had occurred at the place and in the
manner as alleged by the prosecution, it
would be hazardous to hold the appellants
guilty of the offences charged for,
particularly when neither the prosecution
nor the defence has been able to show
with certainty how and where the incident
occurred and where persons on both sides
received serious injuries and the court is
left with guesses and conjectures. In these
circumstances we are left with no option
but to acquit the accused persons by
giving them the benefit of doubt.

27. For the reasons stated above, this
appeal is allowed. The conviction and
sentence recorded by the trial court by the
judgement dated 3.3.1987 in Session Trial
No. 714 of 1973 are set aside and the
appellants are acquitted of the offences
charged for. They are on bail. They need
not surrender. Their bail bonds are
cancelled and sureties discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2002

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 27043 of 2002

Rajendra Prasad Maurya
...Petitioner
Versus
Dy.
Inspector
General
of
Police,
(Establishment) and another
 ...Respondents

Counsel for the Petitioner:
Sri Jagannath Singh
Counsel for the Respondents:
S.C.