# Kashi Prasad Revisionist v. State of U.P. Opp. Party

- **Citation:** (2022) 11 ILRA 954
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-06
- **Case number:** Crl. Revision No. 17 of 2009
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kashi-prasad-revisionist-v-state-of-u-p-opp-party-46174
- **Pages:** 10

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Indian Penal Code, 1860 -
Sections 147, 148, 149, 323, 324, 504,
506, 307 & 302 - prosecution owes a duty
to explain serious and grievous injury on
the accused during the course of incident
which gives rise to prosecution of the
accused - If the prosecution has failed to
explain the injuries on the accused, the
case of the prosecution becomes doubtful
as the prosecution has not come out with
11 All. Kashi Prasad Vs. State of U.P.
955
true
facts
regarding
genesis
of
the
incident/occurrence - non explanation of
the injuries sustained by the accused at
the time of occurrence or in the course of
transaction/occurrence
is
a
very
important
circumstance
-
mere
non
explanation of injuries by the prosecution
may not affect the prosecution case if
evidence
is
clear,
cogent
and
creditworthy. (Para - 20, 25)

Accused suffered severe injuries in a case - Two
interested witnesses were examined - no
independent one was present - prosecution's
case was not proven by trustworthy witnesses -
injuries were not mentioned in the FIR or
charge-sheet. (Para -24)

HELD:-Trial
Court
rightly
assumed
that
prosecution did not come out with truth
regarding
genesis
of
the
occurrence.
Prosecution case had become doubtful. Trial
Court had rightly not believed in the prosecution
story and acquitted the accused. Trial court has
not committed any significant errors in law or
facts, or has not correctly appreciated the
evidence. (Para -24)

Revision dismissed. (E-7)

List of Cases cited:-

## Text

954 INDIAN LAW REPORTS ALLAHABAD SERIES
charged and tried together, their case is also
to be separated and the other person, who is
not a juvenile, is required to be referred by
the Juvenile Justice Board to the regular
court having jurisdiction for his trial. In a
case where the accused is a juvenile, like in
the instant case, and the proceeding with
regard to the said offence is going on
before the Juvenile Justice Board, while
proceeding against the said accused, the
Juvenile Justice Board finds from the
evidence, which has come on record during
proceedings before it, that any person other
than the juvenile in conflict with law before
him is also involved in that very offence, in
my opinion, the Juvenile Justice board will
not be silent expectator or without power to
summon the said accused. Even Juvenile
Justice Board in exercise of the power
conferred in Section 319 Cr.P.C. for
summoning the additional accused may
summon either suo moto or an application
filed by the prosecution.

23. The summoning of the additional
accused is like taking cognizance of the
offence against an accused and then to
summon him to be charged with and tried
along with other accused. Obviously as in
the case at hand, additional accused, if
summoned on the basis of incriminating
evidence coming against him, is not a
juvenile, in view of Section 23 (2) of the
Act, 2015 (section 18(2) of old Act) he
cannot be charged and tried with by the
Juvenile Justice Board and his trial is to be
separated as required under sub-section (2)
of Section 23 of the Act.

24. Hence, after the submissions and
discussions
above,
this
court
is
of
considered opinion that the power under
Section 319 of the Cr.P.C. can be exercised
by the Juvenile Justice Board and if the
summoned accused is found to be not a
juvenile, his trial can be separated and such
person can be sent for trial to the regular
court of competent jurisdiction.

25. Resultantly, no ground is made
out to interfere in the order dated
26.05.2022 passed by Juvenile Justice
Board, Bulandshahar in Criminal Case No.
140 of 2015 (State vs Saleem @ Julla). The
Juvenile Justice Board is directed to
proceed in accordance with law.

26. The instant revision is devoid of
merit, and is hereby, dismissed.
----------
(2022) 11 ILRA 954
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.01.2020

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Crl. Revision No. 17 of 2009

Kashi Prasad ...Revisionist
Versus
State of U.P. ...Opp. Party

Counsel for the Revisionist:
S.P. Maurya, Arvind Kumar Srivastava, Nagendra
Mohan

Counsel for the Respondent:
G.A., Bal Keshwar Srivastava, Sushil Kumar
Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Indian Penal Code, 1860 -
Sections 147, 148, 149, 323, 324, 504,
506, 307 & 302 - prosecution owes a duty
to explain serious and grievous injury on
the accused during the course of incident
which gives rise to prosecution of the
accused - If the prosecution has failed to
explain the injuries on the accused, the
case of the prosecution becomes doubtful
as the prosecution has not come out with
11 All. Kashi Prasad Vs. State of U.P.
955
true
facts
regarding
genesis
of
the
incident/occurrence - non explanation of
the injuries sustained by the accused at
the time of occurrence or in the course of
transaction/occurrence
is
a
very
important
circumstance
-
mere
non
explanation of injuries by the prosecution
may not affect the prosecution case if
evidence
is
clear,
cogent
and
creditworthy. (Para - 20, 25)

Accused suffered severe injuries in a case - Two
interested witnesses were examined - no
independent one was present - prosecution's
case was not proven by trustworthy witnesses -
injuries were not mentioned in the FIR or
charge-sheet. (Para -24)

HELD:-Trial
Court
rightly
assumed
that
prosecution did not come out with truth
regarding
genesis
of
the
occurrence.
Prosecution case had become doubtful. Trial
Court had rightly not believed in the prosecution
story and acquitted the accused. Trial court has
not committed any significant errors in law or
facts, or has not correctly appreciated the
evidence. (Para -24)

Revision dismissed. (E-7)

List of Cases cited:-

1. Onkarnath Singh Vs St. of U.P., (1975) 3 SCC
276

2. Lakshmi Singh Vs St. of Bihar, (1976) 4 SCC
394

3. St. of Karn. Vs Jinappa Payappa Kudachi,
1994 Supp (1) SCC 178

4.
Takhaji
Hiraji
Vs
Thakore
Kubersing
Chamansing, (2001) 6 SCC 145

5. Rizan Vs St. of Chhattisgarh, (2003) 2 SCC
661

6. Padam Singh Vs St. of U.P., (2000) 1 SCC 621

7. M.P. Vs Mishrilal, (2003) 9 SCC 426

8. Dashrath Singh Vs St. of U.P., (2004) 7 SCC 408

9. Bishna Vs St. of W.B., (2005) 12 SCC 657

10. Nagarathinam Vs St., (2006) 9 SCC 57

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present revision is directed
against the judgment and order dated
12.12.2018 passed by the Addl. Sessions
Judge, Court No.9, Sultanpur in Sessions
Trial No.243 of 1998 under Sections 147,
148, 149, 323, 324, 504, 506, 307, 302 IPC,
Police Station Kadipur, District Sultanpur.

2. The facts of the case in brief are
that on the basis of a complaint given by
the complainant, P.W.1, an FIR at Case
Crime No.243 of 1999 under Sections 147,
148, 149, 307, 323, 504, 506 IPC came to
be
registered
against
the
accusedrespondents with allegations that accused,
Gurudeen on 04.07.1999 at 4:00 P.M.
snatched sickle from the wife of the
complainant and started assaulting her by
kicks and fits. On commotion and alarm
raised by the wife of the complainant, Smt
Shakuntala
w/o
Santram,
Ramdeo,
Rambhadal, Smt Imla, Santram, Kesh
Kumari, Jiana w/o Karia (deceased), Smt
Kamla, Smt Rampati, Smt Karona w/o
Jhuri rushed to save the wife of the
complainant. At the same time, accused,
Male Singh, Rangeele, Sache Lal, Akhilesh
Kumar and brother-in-law of Rangeeley
arrived there armed with gun and country
made pistol, dharia and lathi. They started
assaulting all the persons from the
complainant side. The aforesaid incident
was witnessed by Bakheru s/o Jairam and
other residents of the village. Smt Jiana
died in the hospital and thereafter, offence
under Section 302 IPC was added. It is said
that on the same day i.e. 05.06.1999 the
other injured were examined. Investigating
956 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer, Mujahid Ali, P.W.7 conducted the
inquest of the cadaver of the deceased on
05.07.1999 at 9:00 A.M. Postmortem was
conducted on the same day.

3. The Investigating Officer after
completing the investigation filed chargesheet against six accused named in the FIR
under Sections 147, 148, 149, 302, 307,
323, 504 and 506 IPC. Charges were
framed against the accused. Accused
adjusted charges and claimed to be tried.

4. Prosecution to prove its case
examined
P.W.-1
Kashi
Prasad,
the
complainant, P.W.-2 Santram, the injured
witness, P.W.-3 Dr. Anil Kumar Gupta,
P.W.-4 Dr.V.N. Tiwari, P.W.-5 Inspector
R.K.Singh, P.W.-6 Inspector Jitendra Singh
Parihar and P W.-7 S.I. Mujahid Ali.

Defence produced medical report of
injuries caused to the accused, Gurudeen in
the incident and examined Dr. V.N. Tiwari
who proved injury report of Gurudeen.

5. Trial Court after marshalling
evidence came to the conclusion that FIR
was not true account of the incident but
was
written
after
deliberation
and
employing legal brain inasmuch as the
complainant's son was lawyer practicing in
the Tehsil Court where the complaint was
alleged to have been scribed by one Ram
Tirath. Trial court was also of the view that
in the FIR place of incident was not
mentioned.
However,
P.W.-1,
the
complainant in his cross examination said
that the incident took place near the house
of Ramdeo and said that he gave the
statement to that effect to the investigating
officer. The Investigating Officer in his
examination specifically said that the
complainant in his statement under Section
161 Cr.P.C. did not tell him the place of
incident neither he tried to ascertain from
the complainant, the place of incident.
P.W.-1 in his further cross examination said
that the incident took place near a primary
school and his tube well would be 1 km
from the place of incident. Even in the site
map (Exh.Ka25), place of incident was
shown near primary school which was 50
ft., away from the house of Ramdeo. In
view thereof, Trial Court concluded that the
prosecution had failed to prove the exact
place of incident.

6. Trial Court also came to the
conclusion after analyzing the evidence on
record that P.W.-1 was not an eyewitness.
P.W.-1 said that he went out of his house at
3:30 P.M. and he did not know when his
wife, Rajdei went out from the house on the
same day. Rajdei was the person with
whom
the
accused,
Gurudeen
had
altercation and it was alleged that he
snatched the sickle from her and assaulted
her. P.W.-2 in his statement said that on the
date of incident he was not with P.W.-1 and
he met him on the next day in the hospital.
He also said that he did not know where
P.W.-1 was at the time of incident.

7. P.W.-1 in his statement further said
that he did not receive any injury in the
incident whereas in his medical report
(Exh.Ka-16)
a
lacerated
wound
was
mentioned. Rajdei was not examined with
whom it was alleged that altercation of the
accused, Gurudeen took place and she was
assaulted. It was also said that she received
gun shot injuries in the incident. Her
medical report (Exh.Ka-8) would show that
she received only one injury and she did
not have any other injury though it was
alleged that she was beaten up by sickle
and kicks and fists. Rajdei was an
important witness regarding the genesis of
the incident which was withheld by the
11 All. Kashi Prasad Vs. State of U.P.
957
prosecution. It was also said that the
witnesses' residences were away from the
place of incident and, therefore, it became
the duty of the prosecution to explain how
they arrived at the place of incident from a
distance of 0.5-1 km. Trial Court was also
of the view that there were glaring
contradictions between the statements of
the witnesses and medical report and did
not believe
that
the
deceased
gave
statement under Section 161 Cr.P.C. before
death to the Investigating Officer.

8. According to P.W.-1, deceased,
Jiana Devi became unconscious and was
taken to the hospital in that state. P.W.-2 in
his statement said that his mother became
unconscious after receiving gun shot
injuries and thereafter, she did not regain
consciousness and, therefore, under these
circumstances recording of her statement
under Section 161 Cr.P.C. is neither
believable nor credible. Trial Court was
also of the opinion that inquest proceedings
and injury report of the accused were
suspicious and doubtful. Trial Court further
held that accused, Gurudeen had received
nine injuries and injury Nos.1 to 3 were not
superficial. Prosecution was under duty to
explain the injuries caused to the accused.
In view of the non explanation of the
injuries of the accused, Gurudeen by the
prosecution,
prosecution
case
became
incredible and doubtful. The prosecution
did not come with true and correct facts.

9. In view of the aforesaid, it was held
that the prosecution had failed to prove the
case against the accused beyond reasonable
doubt. Trial Court in view of the aforesaid
findings had acquitted all the accused of the
charges.

10. Heard Mr. Sushil Kumar Singh,
Advocate assisted by Mr. Balkeswar
Srivastava, learned counsel appearing for
accused-respondents and learned A.G.A for
the State. No one has put in appearance on
behalf of the revisionist.

11. This case was listed on
17.10.2019 when counsel for the revisionist
sought adjournment on the ground of his ill
health. The case was adjourned and
directed to be listed on 24.10.2019
peremptorily. Thereafter, case was listed on
24.10.2019,
07.11.2019,
14.11.2019,
19.11.2019,
02.12.2019,
11.12.2019,
16.12.2019, 06.01.2020 but the learned
counsel for the revisionist did not put in
appearance on any of the aforesaid dates
despite the case having been listed
peremptorily.

12. Mr.Sushil Kumar Singh, learned
counsel for the respondents-accused has
submitted that in exercise of the revisional
power by the High Court under Section
397/401 Cr.P.C., it can call for record from
any of the inferior criminal courts and
examine correctness, legality, propriety of
any finding, sentence or order, recorded or
passed, and as to the regularity of any
proceedings of such inferior court, and to
pass appropriate order(s). Revisional power
of the High Court is to see that justice is
done in accordance with recognized rules
of criminal jurisprudence and that its
subordinate courts do not exceed the
jurisdiction or abuse the power vested in
the Cr.P.C. or to prevent abuse the power of
process of the inferior court or to prevent
miscarriage of justice.

13. When revision is filed against the
order of acquittal, High Court can interfere
where findings arrived at by the trial Court
are without considering the material
evidence on record or where the trial court
has wrongly turned down evidence which
958 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution wished to produce. He has
further submitted that in revision against
acquittal reappreciation of the evidence in
High Court is not permissible. Revisional
Court can interfere in order of acquittal
when there is legal infirmity or patent
illegality in conduct of the trial by the
lower Court.

14. He has further submitted that
there is material contradiction in the FIR
and the evidence. The prosecution failed to
explain nine injuries on the accused,
Gurudeen and did not come out with
correct genesis of the case. There being
material contradictions between P.W.-1 and
P.W.-2 and the testimony of ocular witness
and medical evidence, Trial Court rightly
held that the prosecution had failed to
prove the case against the accused beyond
reasonable doubt.

15. He has, therefore, submitted that in
case like this where the accused had received
nine injuries and there was no mention either
in the FIR or in the charge-sheet in respect of
the injuries suffered by accused, Gurudeen,
non explanation of the injuries caused to the
accused, Gurudeen by the prosecution had
been rightly held to be fatal to the prosecution
case by the Trial Court. He has, therefore,
submitted that this Court in exercise of
powers vested under Section 397/401 Cr.P.C.
should not interfere with the findings
recorded by the Trial Court inasmuch as the
findings arrived at by the Trial Court are
neither perverse nor palpably wrong. There
was no error or defect in law or procedure or
appreciation of the evidence and, therefore,
there is no ground to interfere with the well
reasoned judgment and order of acquittal
passed by the Trial Court. He has, therefore,
submitted that this Court should dismiss the
revision.

16. I have considered the submissions
advanced by learned counsel for the
accused-respondents and perused lower
Court record and impugned judgment and
order carefully.

17. Prosecution case is that Gurudeen
had commented on Rajdei that where was
Indira Gandhi going and this led to altercation
and Gurudeen started assaulting Rajdei
snatching sickle from her and giving her kicks
and fists blows. Rajdei was not examined. A
number of persons from the complainant side
got collected at the place of incident to rescue,
Rajdei. Accused, Gurudeen had lodged a cross
case at Case Crime No.243-A of 1999 under
Sections 147, 149, 323, 504, 506, 308 IPC. He
was examined on the same day i.e. 04.07.1999
by Dr.B.N. Tiwari who noticed following
injuries on the body of Gurudeen:-

"(i) one lacerated wound on skull 4 cm
x .5 cm x scalp deep bleedings present; 10
cm above from occipital probability

(ii) one lacerated wound on skull 2 cm
x .5 cm x scalp deep; 5 cm away towards
right injury No.(i)

(iii)
one
contusion
on
occipital
protuberance 3 cm x 2 cm red in color.

(iv) one lacerated wound on right face
2 cm x .5 cm x skin deep; 1.5 cm below
from right eyelid

(v) one abrasion on left shoulder 2 cm
x 3.5 cm.

(vi) one red contusion on right
shoulder 13 cm x 2.5 cm.

(vii) one red contusion of right arm 6
cm x .5 cm; 4 cm above from elbow front

(viii) one red contusion on left arm 11
cm x 2 cm; 8 cm below from left shoulder
joint

(ix) one red contusion in front of right
thigh 10 cm x 2.5 cm; 10 cm above from
right knee joint."
11 All. Kashi Prasad Vs. State of U.P.
959

18. Some of the injuries particularly
injury Nos.1 to 3 were grievous in nature
and Dr.V.N.Tiwari who examined him had
said that the injuries were fresh in nature
which could have been caused by hard
object like lathi and those injuries would
have been caused at around 4:00 P.M. on
04.07.1999.

19. Specific suggestion was put to
P.W.-2 that he and others from the
complainant side assaulted the accused,
Gurudeen by lathi in which he received
grievous injuries on his head and other
parts of the body. On alarm being raised by
accused, Gurudeen, other persons reached
there and in order to save him one shot was
fired which hit the deceased, Jiana, and
other persons received pallet injuries.

20. It is well settled law that
prosecution owes a duty to explain serious
and grievous injury on the accused during
the course of incident which gives rise to
prosecution
of
the
accused.
If
the
prosecution has failed to explain the
injuries on the accused, the case of the
prosecution becomes doubtful as the
prosecution has not come out with true
facts
regarding
genesis
of
the
incident/occurrence.

21. The Supreme Court in the case of
Onkarnath Singh v. State of U.P., (1975) 3
SCC 276 in para 36 has held as under:-

"36.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 will scrutinise their
evidence with care. Each case presents its
own features. In some cases, the failure of
the prosecution to account for the injuries
of the accused may undermine its evidence
to the core and falsify the substratum of its
story, while in others it may have little or
no adverse effect on the prosecution case. It
may also, in a given case, strengthen the
plea of private defence set up by the
accused. But it cannot be laid down as an
invariable proposition of law of universal
application that as soon as it is found that
the accused had received injuries in the
same transaction in which the complainant
party was assaulted, the plea of private
defence
would
stand
prima
facie
established and the burden would shift on
to the prosecution to prove that those
injuries were caused to the accused in selfdefence by the complainant party. For
instance where two parties come armed
with a determination to measure their
strength and to settle a dispute by force of
arms and in the ensuing fight both sides
receive injuries, no question of private
defence arises."

22. The Supreme Court in the case of
Lakshmi Singh v. State of Bihar, (1976) 4
SCC 394 in para 12 has held as under:-

"12.PW 8 Dr S.P. Jaiswal who had
examined Brahmdeo deceased and had
conducted the post-mortem of the deceased
had also examined the accused Dasrath
Singh, whom he identified in the court, on
April 22, 1966 and found the following
injuries on his person:

"1.Bruise 3′′ × 1⁄2 ′′ on the dorsal part
of the right forearm about in the middle and
there was compound fracture of the fibula
bone about in the middle.

2.Incised wound 1′′ × 2 mm × skin
subcutaneous deep on the lateral part of the
left upper arm, near the shoulder joint.

3.Punctured wound 1/2′′ × 2 mm × 4
mm on the lateral side of the left thigh
about 5 inches below the hip joint.

According to the doctor Injury 1 was
grievous in nature as it resulted in
960 INDIAN LAW REPORTS ALLAHABAD SERIES
compound fracture of the fibula bone.
The other two injuries were also serious
injuries which had been inflicted by a
sharp-cutting weapon. Having regard to
the circumstances of the case there can be
no doubt that Dasrath Singh must have
received these injuries in the course of
the assault, because it has not been
suggested or contended that the injuries
could be self-inflicted nor is it believable.
In these circumstances, therefore, it was
the bounden duty of the prosecution to
give a reasonable explanation for the
injuries sustained by the accused Dasrath
Singh in the course of the occurrence.
Not only the prosecution has given no
explanation, but some of the witnesses
have made a clear statement that they did
not see any injuries on the person of the
accused. Indeed if the eyewitnesses could
have given such graphic details regarding
the assault on the two deceased and
Dasain Singh and yet they deliberately
suppressed the injuries on the person of
the accused, this is a most important
circumstance to discredit the entire
prosecution case. It is well settled that
fouler the crime, higher the proof, and
hence in a murder case where one of the
accused is proved to have sustained
injuries in the course of the same
occurrence, the non-explanation of such
injuries by the prosecution is a manifest
defect in the prosecution case and shows
that the origin and genesis of the
occurrence
had
been
deliberately
suppressed which leads to the irresistible
conclusion that the prosecution has not
come out with a true version of the
occurrence. This matter was argued
before the High Court and we are
constrained to observe that the learned
Judges without appreciating the ratio of
this Court in Mohar Raiv.State of
Bihar[AIR 1968 SC 1281 : (1968) 3 SCR
525 : 1968 Cri LJ 1479] tried to brush it
aside on most untenable grounds. The
question
whether
the
Investigating
Officer was informed about the injuries is
wholly irrelevant to the issue, particularly
when the very doctor who examined one
of the deceased and the prosecution
witnesses is the person who examined the
appellant Dasrath Singh also. In the case
referred to above, this Court clearly
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 PW 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."

This Court clearly pointed out that
where the prosecution fails to explain the
injuries on the accused, two results follow:
(1) that the evidence of the prosecution
witnesses is untrue; and (2) that the injuries
probabilise the plea taken by the appellants.
The High Court in the present case has not
correctly applied the principles laid down
by this Court in the decision referred to
above. In some of the recent cases, the
same principle was laid down. InPuran
Singhv.State of Punjab[(1975) 4 SCC 518 :
1975 SCC (Cri) 608] which was also a
murder case, this Court, while following an
11 All. Kashi Prasad Vs. State of U.P.
961
earlier case, observed as follows: [SCC p.
531 : SCC (Cri) p. 621, para 20]

"InState
of
Gujaratv.Bai
Fatima[(1975) 2 SCC 7 : 1975 SCC (Cri)
384] one of us (Untwalia, J.) speaking for
the Court, observed as follows: [SCC p. 13
: SCC (Cri) p. 390, para 17]

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:

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

(2) It makes the prosecution version of
the occurrence doubtful and the charge
against the accused cannot be held to have
been proved beyond reasonable doubt. (3)
It does 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."

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
suppressed the genesis and the origin of the
occurrence and has thus not presented the
true version;

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

(3) that in case there is a defence version
which explains the injuries on the person of
the accused it is rendered probable so as to
throw doubt on the prosecution case."

The omission on the part of the
prosecution to explain the injuries on the
person of the accused assumes much greater
importance where the evidence consists of
interested or inimical witnesses or where the
defence gives a version which competes in
probability with that of the prosecution one.
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 inState of Gujaratv.Bai
Fatima[(1975) 2 SCC 7 : 1975 SCC (Cri)
384] there may be cases where the nonexplanation 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 creditworthy, 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
962 INDIAN LAW REPORTS ALLAHABAD SERIES
in the prosecution case on unconvincing
premises."

23. The Supreme Court in the case of
State of Karnataka v. Jinappa Payappa
Kudachi, 1994 Supp (1) SCC 178 in para
6 has held that normally non explanation of
injuries on the accused persons would
mean that the prosecution has not come out
with whole truth particularly regarding the
genesis
of
the
occurrence
and
the
prosecution evidence should be rejected.

Para 6 of the aforesaid judgment reads
as under:-

6.The effect of non-explanation by the
prosecution about the injuries on the
accused persons depends on the facts and
circumstances of each case. Normally if
there is such non-explanation, it may at the
most give scope to argue that the accused
had the right of private defence or in
general that the prosecution evidence
should be rejected as they have not come
out with the whole truth particularly
regarding the genesis of the occurrence. In
the instant case, the occurrence took place
in the bus itself at the Bastwad cross. A-1
to A-6 admitted their presence and also
admitted their participation. The evidence
of the injured witnesses amply establishes
that these six accused participated in the
occurrence causing the death of the three
deceased persons and causing serious
injuries to PWs 1, 3, 4 and 6.

24. The Supreme Court in the case
of Takhaji Hiraji v. Thakore Kubersing
Chamansing, (2001) 6 SCC 145 has held
that when the accused sustain injuries in a
same occurrence, prosecution is obliged
to explain the injury. However, the Court
has to be satisfied of the existence of two
conditions before non explanation of the
injuries on the persons of the accused
may affect the prosecution case. Two
conditions are (i) that the injury on the
person of the accused was of a serious in
nature; (ii) that such injuries must have
been caused at the time of occurrence in
question.

Para 17 of the said judgment reads as
under:-

"17.The first question which arises for
consideration is what is the effect of nonexplanation of injuries sustained by the
accused persons. InRajender Singhv.State of
Bihar[(2000) 4 SCC 298 : 2000 SCC (Cri)
796]
,Ram
Sunder
Yadavv.State
of
Bihar[(1998) 7 SCC 365 : 1998 SCC (Cri)
1630] andVijayee Singhv.State of U.P.[(1990)
3 SCC 190 : 1990 SCC (Cri) 378] , all threeJudge Bench decisions, the view taken
consistently is that it cannot be held as a
matter of law or invariably a rule that
whenever the accused sustained an injury in
the same occurrence, the prosecution is
obliged to explain the injury and on the
failure of the prosecution to do so the
prosecution case should be disbelieved.
Before non-explanation of the injuries on the
persons of the accused persons by the
prosecution
witnesses
may
affect
the
prosecution case, the court has to be satisfied
of the existence of two conditions: (i) that the
injury on the person of the accused was of a
serious nature; and (ii) that such injuries must
have been caused at the time of the
occurrence in question. Non-explanation of
injuries assumes greater significance when
the evidence consists of interested or partisan
witnesses or where the defence gives a
version which competes in probability with
that of the prosecution. Where the evidence is
clear, cogent and creditworthy and where the
court can distinguish the truth from falsehood
the mere fact that the injuries on the side of
the accused persons are not explained by the
prosecution cannot by itself be a sole basis to
reject the testimony of the prosecution
11 All. Vishnu Kumar Agarwal Vs. State of U.P. & Ors.
963
witnesses and consequently the whole of the
prosecution case."

25. Thus, non explanation of the
injuries sustained by the accused at the time
of occurrence or in the course of
transaction/occurrence is a very important
circumstance. But mere non explanation of
injuries by the prosecution may not affect
the prosecution case if evidence is clear,
cogent and creditworthy. This principle
applies
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
creditworthy which outweighs the effect of
the omission on the part of prosecution to
explain the injuries as held by the Supreme
Court in the case of Rizan v. State of
Chhattisgarh (2003) 2 SCC 661.

23. Similar view has been taken by the
Supreme Court in the following cases:-

(i) (2000) 1 SCC 621Padam Singh v.
State of U.P., (2000) 1 SCC 621;

(Ii) (2003) 9 SCC 426 M.P. v.
Mishrilal;

(iii) (2004) 7 SCC 408Dashrath Singh
v. State of U.P.;

(iv) (2005) 12 SCC 657 Bishna vs
State of West Bengal; and

(v) (2006) 9 SCC 57Nagarathinam v.
State

24. In the present case, the accused,
Gurudeen received grievous injuries in the
occurence. Two witnesses who were
examined, were interested witnesses. No
independent witness was examined. The
case of the prosecution was not proved by
leading cogent and trustworthy witnesses.
Non explanation of the injuries on the
person of accused, Gurudeen became
important
and
assumed
significance.
Neither in the FIR nor in the charge-sheet,
the injuries were mentioned. Thus, the Trial
Court rightly assumed that the prosecution
did not come out with truth regarding
genesis of the occurrence. The prosecution
case had become doubtful and, therefore,
Trial Court had rightly not believed in the
prosecution
story
and
acquitted
the
accused.

25. Considering the limited scope of
the power under Section 397/401 Cr.P.C., I
do not find that the Trial Court has
committed palpable error of law or facts or
it did not rightly appreciated the evidence.
In view thereof, the present revision fails
and is hereby dismissed.
----------
(2022) 11 ILRA 963
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.08.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Crl. Revision No. 111 of 2008

Vishnu Kumar Agarwal ...Revisionist
Versus
State of U.P. & Ors. ...Opp. Party

Counsel for the Revisionist:
Prabhu Ranjan Tripathi

Counsel for the Opp. Parties:
Government Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Section 452 - Order for disposal
of property at conclusion of trial, Indian
Penal Code, 1860 - Sections 394, 411 -
once the accused from whom the silver
was recovered had disclaimed stolen
silver, then there should not have any
reason to not return the said silver to the
complainant from whom it belongs. (Para
-10)