# Kishori v. State of U.P

- **Citation:** (2023) 2 ILRA 989
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-31
- **Case number:** Criminal Appeal No. 404 of 1988
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishori-v-state-of-u-p-49759
- **Pages:** 9

## Headnote

Criminal Law
- Evidence Act,1872
-
Section 3 - Testimony of Witness - Minor
Contradiction - When Immaterial - One is
required to consider the entire evidence as
a whole with the other evidence on record
- Mere one sentence here or there and
that too to the question asked by the
defence in the cross-examination cannot
be considered stand alone - if there are
minor
discrepancies
or
minor
contradictions in the testimony of the
witness which does not adversely affect
the case of the prosecution then it should
not be taken into consideration - minor
discrepancies not touching upon the core
of the prosecution case, would not affect
the credibility of the witnesses or the
prosecution case (Para 31, 34)

Criminal Law - Indian Penal Code,1860 -
Section 308 - Attempt to commit culpable
homicide - In the F.I.R., PW-1, the
informant, mentioned that at the time of
the incident, he along with Sidhdha and
Mahipal was present on the spot - In his
evidence, he corroborated being present
at the place of occurrence - A minor
contradiction
occurred
in
the
crossexamination, when PW-1 stated that
 when injured raised an alarm, they
rushed towards him - But at the same
moment PW1, the informant stated that
he had seen the incident himself - During
his cross examination specific question
was asked from this witness "when you
had seen the incident then why did you
ask?" to which he replied "I did not ask
about who hit my brother, I only asked
where he was hit with the spear" - Held -
evidence of PW-1 and PW-2 as a whole,
inspires the confidence and has ring of
truth - considering the evidence of injured
witness PW-2 Ram Sanehi, PW-1 Ram
Asrey in the capacity of the informant as
well as the eyewitness, and the medical
evidence,
the
evidence
produced
in
defence by accused Kishori does not
create any doubt about the prosecution
version - trial Court rightly convicted the
990 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant under Section 308 IPC. (Para 39,
40)

Allowed. (E-5)

List of Cases cited:

## Text

2 All. Kishori Vs. State of U.P.
989
Section 482 of Cr.P.C. petition seeking
quashment of an FIR or a criminal
proceedings, he has taken a recourse to file
a writ petition under Article 226 of the
Constitution of India.

15. Looking to the contents of the
FIR, a prima facie case is made out against
the petitioners, which requires a detailed
investigation to be carried out by the
Authorities. In such circumstances, the case
does not fall under the category of rarest of
the rare cases, therefore, the relief praying
for quashment of FIR and for interim relief
not to arrest the petitioners, without
adhering to the statutory provisions of
criminal jurisprudence, this Court refrains
from entertaining the writ petition under
Article 226 of the Constitution of India.

15. With the aforesaid observations,
the writ petition stands dismissed.

16. However, the petitioners are at
liberty to file appropriate application under
Section 438 of Cr.P.C. seeking anticipatory
bail and, thereafter, may file an Application
under Section 482 of Cr.P.C. seeking
quashment of FIR.
----------
(2023) 2 ILRA 989
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2023

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Appeal No. 404 of 1988

Kishori ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri V.S.Singh
Counsel for the Opposite Party:
A.G.A.

Criminal Law
- Evidence Act,1872
-
Section 3 - Testimony of Witness - Minor
Contradiction - When Immaterial - One is
required to consider the entire evidence as
a whole with the other evidence on record
- Mere one sentence here or there and
that too to the question asked by the
defence in the cross-examination cannot
be considered stand alone - if there are
minor
discrepancies
or
minor
contradictions in the testimony of the
witness which does not adversely affect
the case of the prosecution then it should
not be taken into consideration - minor
discrepancies not touching upon the core
of the prosecution case, would not affect
the credibility of the witnesses or the
prosecution case (Para 31, 34)

Criminal Law - Indian Penal Code,1860 -
Section 308 - Attempt to commit culpable
homicide - In the F.I.R., PW-1, the
informant, mentioned that at the time of
the incident, he along with Sidhdha and
Mahipal was present on the spot - In his
evidence, he corroborated being present
at the place of occurrence - A minor
contradiction
occurred
in
the
crossexamination, when PW-1 stated that
 when injured raised an alarm, they
rushed towards him - But at the same
moment PW1, the informant stated that
he had seen the incident himself - During
his cross examination specific question
was asked from this witness "when you
had seen the incident then why did you
ask?" to which he replied "I did not ask
about who hit my brother, I only asked
where he was hit with the spear" - Held -
evidence of PW-1 and PW-2 as a whole,
inspires the confidence and has ring of
truth - considering the evidence of injured
witness PW-2 Ram Sanehi, PW-1 Ram
Asrey in the capacity of the informant as
well as the eyewitness, and the medical
evidence,
the
evidence
produced
in
defence by accused Kishori does not
create any doubt about the prosecution
version - trial Court rightly convicted the
990 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant under Section 308 IPC. (Para 39,
40)

Allowed. (E-5)

List of Cases cited:

1. Rakesh Vs St.of U.P., 2021 (3) SCC (Cri) 149

2. Sachin Kumar Singhraha Vs St. of M.P. (2019)
3 SCC Cri 575

3. Jai Prakash Vs St. of U.P. , (2021) 3 SCC Cri.
306

(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. Feeling aggrieved with the
judgment dated 12.02.1988 passed by Sri
Udai Pratap Singh Kushwaha, the then
Special
Sessions
Judge
(Essential
Commodities Act) Hamirpur, in Sessions
Trial No. 3 of 1987 (State Vs Kishori)
arising out of Crime No. 110 of 1985,
registered at police station Khanna, District
Hamirpur, under section 308 IPC whereby
the
learned
Special
Session
Judge
convicted the appellant under Sections 308
of I.P.C. and sentenced him to undergo
rigorous imprisonment for three years, the
present criminal appeal has been preferred.

2. Brief facts of the case are that the
informant Ram Asrey submitted a written
report (Ex.Ka-1) to police Station Khanna,
Sub Division Mohraha, District Hamirpur
on 28.06.1985, stating therein that his
brother Ram Sanehi was going with
animals across the pond at around 8:45
AM. When he reached opposite the house
of Tirra, accused Kishori was present there
having a spear in his hand. Upon seeing the
brother of the informant he said you are
against me a lot. He hit his brother on the
right side of the stomach with the spear.
Sidhdha S/o Baiju, the informant himself
and his relative Mahipal S/o Bhagirath
rushed and saved Ram Sanehi.

3. On the basis of the aforesaid
written report, case crime no. 110 of 1985
was registered against the appellantaccused under section 324 IPC.

4. The investigation was set to motion
and it was entrusted to S.I. Pradeep Kumar
Singh and thereafter to A.S.I. Ram Milan
Dubey, who after completing preliminary
formalities, sent injured Ram Sanehi for a
medical examination. He recorded the
statements of the informant, Ram Sanehi,
the injured, witnesses Sidhdha, Mahipal
and others. He inspected the place of
occurrence and prepared the site plan. After
the conclusion of the investigation, he
submitted the charge sheet against the
applicant-accused under section 327/307
IPC.

5. The case was committed to the
Court of Sessions. It was registered as
Session Trial No. 3/87 (State Vs Kishori).

6. Charge under section 307 I.P.C.
was framed against the accused-appellant
which he denied and claimed to be tried.

7. In order to prove its case, the
prosecution produced two witnesses of the
fact as P.W. 1 Ram Asrey, the complainant
and P.W.-2 Ram Sanehi, the injured,
formal
witnesses
P.W.-3
Dr.
P.K.
Bhadaura, P.W-4 H.C. Narvada Prasad.,
P.W.-5,
S.I.
Ram
Milan
Dubey,
Investigating Officer and P.W.-6 Dr. K.C.
Gupta.

8. After the close of the prosecution
witness, the statement of the appellantaccused Kishori was recorded under section
313 Cr. P.C. He denied the prosecution
2 All. Kishori Vs. State of U.P.
991
story and also denied that he caused any
injury to Ram Saheni with the spear. He
further stated that the charge sheet has been
filed against him on the basis of false and
unfair investigation. The case was registred
against him due to enmity The witnesses
Ram Asray and Ram Sanehi are inimical to
him. He submitted that Ram Rati is the
cousin of the informant Ram Asrey. Ram
Kripal the father-in-law of Ram Rati was
murdered before this incident. Bankey Lal
and others were arrayed as accused who
were convicted by the High Court. Under
the orders of the State Government,
Banekey Lal was released on parole. The
brother of the appellant Ram Charan stood
as surety for Bankey Lal before the present
incident. He did not permit Ram Sanehi
and Ram Asrey to keep their crops in his
field. For this reason, he has falsely been
implicated in this case.

9. DW-1 Rameshwar Prasad Pandey
was produced by the accused-appellant in
his defence.

10. I have heard Sri V.S. Singh,
learned counsel for the appellant and Sri.
M.P. Singh Gaur, leaned A.G.A. for the
State. I have perused the record and
reappreciated the evidence available on
record.

11. It is submitted by the Learned
counsel for the appellant that the learned
trial Court has not appreciated the evidence
available on record in a rightful manner and
has wrongly convicted the appellant. The
complainant in the FIR stated that he was
present on the spot when the accusedappellant hit his brother Ram Sanehi with
the spear. He claimed to be the eyewitness
of the incident but he is not the eyewitness
of the incident. He came to know about the
incident only when Ram Sanehi told him
about the incident. Thus, it is clear that he
has not seen the incident. The motive of the
incident is not proved. Important witnesses
Tirra and Sidhdha, before whom the
incident is said to have happened, have not
been produced by the prosecution. It has
come in the evidence of the injured that the
complainant asked him to depose against
the appellant in the Court and pursuant to
this, the injured deposed against the
appellant while no such incident had taken
place. The Investigating Officer did not
investigate the matter fairly and he
submitted the chargesheet against the
appellant in a casual manner. There are
material contradictions in the testimony of
the complainant PW-1 Ram Asrey and the
injured PW-2 Ram Sanehi. The medical
report is not in consonance with the ocular
evidence. The seat of injury as described by
the complainant is not corroborated by the
injured in his evidence. It is further
submitted that the learned trial Court has
wrongly
convicted
the
accused.
The
appellant in his defence produced DW-1
Rameshwar Prasad Pandey, to corroborate
the enmity of the complainant with the
appellant. As a result, the appellant had
been falsely implicated in this case. The
appeal deserves to be allowed.

12. Per-contra, the learned AGA
submitted that the complainant and the
injured have corroborated the incident by
their evidence There are no contradictions
in the ocular and medical evidence. The
prosecution has proved the motive behind
the commission of the offence by the
appellant. It is further submitted that the
appellant has rightly been convicted by the
trial Court and the trial Court has
appreciated the evidence available on
record in a rightful manner. The appeal is
liable to be dismissed and the judgment of
the trial Court is liable to be affirmed.
992 INDIAN LAW REPORTS ALLAHABAD SERIES

13. In the present case, it is to be
determined as to whether on 28.06.1985,
the appellant-accused Kishori hit injured
Ram Sanehi with the spear and caused
injury to his stomach.

14. PW-1 Ram Asray is the informant
of the case. He stated in his examinationin-chief that on the day of the incident at
around 8:45 AM, he was present opposite
the house of Tirra. Sidhdha and Mahipal
were already sitting there. When his brother
reached along with his animals opposite the
house of Tirra, the appellant, Kishori, who
was having a spear in his hand said that he
was against him a lot. The appellantaccused threatened him to kill. Kishori hit
Ram Sanehi with the spear and injured him
on the left side of his abdomen. The spear
was hit towards the stomach which went
through the body and came out a little
towards the back. Ram Sanehi was saved
by them. The accused Kishori ran away
from there. This witness has proved the
written report as Ext. Ka-1.

15. P.W. -2 Ram Sanehi is the
injured
witness.
He
stated
in
his
examination-in-chief that he knows the
accused/appellant. At the time of the
incident, he was taking his animals across
the pond. When he reached opposite the
house of Tirra near the pond, accused
Kishori met him having a heavy spear
with him. He said that this witness was
against him a lot, and he would kill him.
Saying this, the accused Kishori hit him
with the spear on the right side of the
back which went through his body and
came out a little. Ram Asrey, Mahipal
and Giddha came there and saved him.
The
accused-appellant
dislodged
the
spear from his body and ran away along
with the spear. His brother took him to
the police station Khanna. His injury was
seen by police personnel. He was
medically examined at Maudaha hospital.
From there he went to Hamirpur where
his x-ray was done.

16. P.W.-3 Dr. P.K. Bhadaura stated
in
his
examination-in-chief
that
on
28.06.1985 at 10.00 A.M. in the capacity of
the medical officer, PHC Maudaha, he
examined Ram Sanehi. The following
injuries were found on his body;-

1. Semi circular shaped wound
1.5 Cm. X 1 Cm. on posterial lateral
surface of Rt. Side of back of abdomen just
below the posterial floating rib margins are
inverted. Muscles are protruding out
continuous bleeding from the wound.

2. 1⁄2 cm semi circular wound over
abdomen 4 cm. Above & the right lateral to
the umbilical. Margin are inverted fresh
blood oozed .

X-ray was advised.

17. In his opinion the condition of the
patient was poor. The patient was kept
under observation. The above injuries were
possibly caused by some pointed object as
the spear. Injury no. 1 was the penetration
wound of the weapon and injury no. 2 was
the exit wound. The duration was fresh.
Both injuries were likely caused on
23.06.1985 at 8.45 am. The witness has
proved the medical report as Ext-Ka-3.

18. PW-4 H.C. Narvada Awasthi
stated in his examination-in-chief that on
28.06.1985 he prepared the chik FIR on the
basis of the written report submitted by the
informant Ram Asray. Its endorsement was
entered in G.D. vide report no. 14 at 9:30
A.M. on 28.06.1985. This witness proved
the FIR as Ex. Ka-3 and G.D. as Ex. Ka-4.
2 All. Kishori Vs. State of U.P.
993
He had seen the injuries of Ram Sanehi. He
was sent for a medical examination to the
government hospital in Maudaha.

19. P.W.-5 S.I. Ram Milan Dubey is
the investigating officer of this case. He
stated in his examination-in-chief that the
case was registered in his presence since
the first investigating officer was on leave
therefore, he was entrusted with the
investigation. He completed preliminary
formalities and reached the place of
occurrence and recorded the statements of
the informant, Siddha, Mahipal and others.
He inspected the place of occurrence and
prepared the site plan which is proved by
him as Ex- Ka-5. He converted the case
from section 324 I.PC. to 307 I.P.C. He
recorded the statement of the injured. He
submitted the charge sheet against the
appellant-accused Kishori, which he proved
as Ex-Ka-6.

20. PW-6 Dr. K.C. Gupta stated in his
examination-in-chief that on 06.07.1985 he
was posted as Radiologist in the District
Hospital. X-Ray of the stomach and chest
of injured Ram Sanehi was done under his
supervision and he prepared the X-Ray
report. On the basis of the X-ray plate, he
found a fracture on the last corner of the
right ribs. The witness has proved the XRay report as Ext-Ka-7 and the X-ray plate
as MEx. 1.

21. DW1 Rameshwar Prasad Pandey
was deposed in Court on the basis of record
pertaining to Bankey Lal. The entry made
at serial no. 72 relates to the bonds of
Bankey Lal. Ram Charan S/O Ganesha
stood surety for Bankey Lal which was
accepted by the Probation officer on
25.08.1984. He identified the signatures of
the officer concerned. He proved the copy
of the surety bond as Ex. Kha-1

22. Section 308 IPC provides;-

Attempt to commit culpable
homicide -

"Whoever does any act with
such intention or knowledge and under
such circumstances that, if he by that act
caused death, he would be guilty of
culpable homicide not amounting to
murder,
shall
be
punished
with
imprisonment of either description for a
term which may extend to three years, or
with fine, or with both, and, if hurt is
caused to any person by such act, shall be
punished with imprisonment of either
description for a term which may extend
to seven years, or with fine, or with both."

23. During their deposition before the
court PW-1 Ram Asrey, the informant and
PW2 Ram Sanehi, the injured witness
corroborated the prosecution version that
on the day of the incident at about 8:45 am
when Ram Asray was heading towards the
pond, he met the accused-appellant Kishori.
Kishori, who was having a spear in his
hand said that he was against him a lot and
threatened him to kill. Kishori hit Ram
Sanehi with the spear and injured him on
the left side of his abdomen. The spear was
hit towards the stomach which went
through his body and came out a little
towards the back. The injured witness
stated that the accused dislodged the spear
from his body and ran away with the spear.

26. Learned counsel for the appellant
drew the attention of the court to a
contradiction that occurred in the testimony
of the informant and injured witness about
the seat of injury. He submitted that the
informant in his FIR stated that his brother
Ram Sanehi was hit by the accused on the
right side of the stomach but in his
994 INDIAN LAW REPORTS ALLAHABAD SERIES
deposition in the court, he stated that the
accused hit his brother by a spear on the
left side of the stomach. The injured
witness stated that he was hit on the right
side
of
the
stomach.
There
are
contradictions between the ocular evidence
and medical evidence which falsify the
entire prosecution version.

27. Considering this argument, it is
pertinent to mention here that the seat of
injury described in the FIR and by the injured
witness is the same. Moreover, PW3 Dr. P.K.
Bhadura found injuries No. 1 and 2 on the
right side over and back of the abdomen.
Injury no. 1 was the penetration wound of the
weapon and injury no. 2 was the exit wound.
Both the injuries were fresh and likely to
have been caused on 23.06.1985 at 8.45 am.
Further
PW6
Dr.
K.C.
Gupta,
the
Radiologist, recorded a fracture in the last
corner of the right ribs. Therefore, the seat of
injury situated on the right side of the
stomach of the injured is corroborated by the
oral evidence of the injured witness as well
the medical evidence. In view of the above
appreciation, it is observed that oral evidence
is consistent with medical evidence.

28 . Learned counsel for the appellant
vehemently argued that the complainant in
his FIR stated that he was present at the
spot when the accused hit his brother Ram
Sanehi with a spear. He claimed himself to
be the eyewitness of the incident but he is
not the eyewitness of the incident. He came
to know about the incident only when Ram
Sanehi told him. He has not seen the
incident. The alleged eye witness Sidhdha
was not produced by the prosecution. Thus
there is no independent witness of the
incident.

29. Suffice to mention here that
PW2 Ram Sanehi, the injured witness has
stated that the witness of this case
Sidhdha colluded with the accused and
was not ready to depose before the Court
against him. Under these circumstances, a
proper explanation is offered by the
prosecution for not producing a witness
who was won over by the accused and
was not ready to support the case of the
prosecution in Court. So far as the
argument that the informant is not the eye
witness is concerned, it is pertinent to
mention here that in the First Information
Report, the informant mentioned that at
the time of the incident, he along with
Sidhdha and Mahipal was present on the
spot. In his evidence, he corroborated the
version of the First Information Report
about his presence at the place of
occurrence and corroborated that the
incident happened before him. A minor
contradiction occurred in the crossexamination of the informant when
injured Ram Sanehi raised an alarm they
rushed towards him. His brother told him
that he was hit with a spear by the
accused Kishori. But at the same moment
PW1, the informant stated that he had
seen the incident himself. During his
cross examination specific question was
asked from this witness "when you had
seen the incident then why did you ask?"
to which he replied "I did not ask about
who hit my brother, I only asked where
he was hit with the spear"

30. Conclusion can very well be
drawn in favor of the prosecution since
the aforesaid evidence indicates that the
query was made to his brother by the
informant confined to the extent only as
to know about the seat of injury, not
about the accused Kishori. Therefore, it is
proved that the informant was present at
the place of occurrence at the time of the
incident.
2 All. Kishori Vs. State of U.P.
995

31. In Rakesh Vs. State of U.P., 2021
(3) SCC (Cri) 149, The Hon'ble Apex
Court observed that the evidence of a
witness is to be considered as a whole:-

"One is required to consider the
entire evidence as a whole with the other
evidence on record. Mere one sentence
here or there and that too to the question
asked by the defence in the crossexamination cannot be considered stand
alone. Even otherwise it is to be noted that
what is stated by the Doctor/Medical
officer can at the most be said to be his
opinion. He is not the eye-witness to the
incident. PW1 & PW2 have categorically
stated that the other accused inflicted the
blows by knives."

32. In the present case also PW-1
informant Ram Asrey and PW-2 injured
Ram Sanehi have consistently stated that
the accused Kishori inflicted the injury to
injured Ram Sanehi. On reading the
evidence of PW-1 and PW-2 as a whole, it
inspires confidence and has a ring of truth.

33. The Hon'ble Apex Court in
Sachin Kumar Singhraha Vs. State of
M.P. (2019) 3 SCC Cri 575, observed that
if there are minor discrepancies or minor
contradictions in the testimony of the
witness which does not adversely affect the
case of the prosecution then it should not
be taken into consideration. The Hon'ble
Apex held that:-

"The Court will have to evaluate
the evidence before it keeping in mind the
rustic nature of the depositions of the
villagers, who may not depose about exact
geographical locations with mathematical
precision. Discrepancies of this nature
which do not go to the root of the matter do
not
obliterate
otherwise
acceptable
evidence. It need not be stated that it is by
now well settled that minor variations
should not be taken into consideration
while assessing the reliability of witness
testimony and the consistency of the
prosecution version as a whole."

34. The Hon'ble Apex Court in Jai
Prakash Vs. State of U.P. , (2021) 3 SCC
Cri.
306
distinguished
material
discrepancies in evidence of witnesses from
minor discrepancies. The Hon'ble Court
held that:-

"The witnesses who have deposed
in the court after considerable lapse of time
of course, cannot be expected to have
photographic memory of the case. We are
conscious of the well settled position that
the minor discrepancies not touching upon
the core of the prosecution case, would not
affect the credibility of the witnesses or the
prosecution case."

35. In view of the above observation
made by Hon'ble Apex Court, in the
present case on reading the evidence of
PW-1 and PW-2 as a whole, it inspires the
confidence and has ring of truth. The
evidence of PW-1 Ram Asrey does not
contain any material contradiction, which
can
adversely
affect
the
case
of
prosecution. In his statement, the informant
has proved that the accused-appellant
attacked his brother with a spear and
caused injuries. The evidence of P.W.-2
Ram Sanehi corroborates the prosecution
version and does not suffer from any
material contradiction which may create
doubt over the prosecution story.

36. Learned counsel for the appellant
argued that DW-1 Rameshwar Prasad
Pandey has proved on the basis of the
record that Ramcharan stood as surety for
996 INDIAN LAW REPORTS ALLAHABAD SERIES
Bankeylal. Ram Rati was the cousin of the
informant Ram Asrey. Ramkripal, the
father-in-law of Ram Rati was murdered
before this incident in which Bankeylal and
others were convicted by the High Court.
Bankeylal was released on parole by the
State Government. Ramcharan, the brother
of the accused stood surety for Bankelal so
informant Ram Asrey was inimical to the
accused Kishori. For this reason, accused
Kishori has been falsely implicated in this
case.

37.

Considering
the
aforesaid
argument, PW-1 Ram Asrey, although
admitted the fact that Bankelal and others
were convicted for the murder of Ram
Kripal, Ram Charan stood surety for
Bankelal is not within his knowledge. This
witness has categorically denied that for
this reason, he was inimical to the accused
Kishori. Further, considering the evidence
of injured witness PW-2 Ram Sanehi, PW1 Ram Asrey in the capacity of the
informant as well as the eyewitness, and
the medical evidence available on record
the evidence produced in defence by
accused Kishori does not create any doubt
about the prosecution version.

38. Learned counsel for the appellant
lastly submitted that PW-2 Ram Sanehi,
was compelled to give evidence against the
accused-appellant by his brother P.W.-1
Ram Asrey. PW-1 Ram Asrey stated in his
evidence that he told his brother Ram
Sanehi that he had lodged a report with the
police station against Ram Sanehi with
regard to the incident of causing injury to
him by a spear. He also asked his brother
Ram Sanehi to depose against accused
Kishori in the Court. Ram Sanehi accepted
it.

39.

Considering
the
aforesaid
argument advanced by the learned counsel
for the appellant, it is to be noted that PW-2
Ram Sanehi, the injured, in his evidence
has stated that his brother Ram Asray
accompanied him to the police station
concerned after he sustained injuries in the
incident and his brother informed him that
he had submitted a report with regard to the
incident against the accused Kishori, This
information was given to him at the time of
lodging of the FIR. On the basis of
aforesaid evidence and keeping in view the
facts and circumstances of the case I am of
the opinion that it cannot be concluded that
PW-2, the injured witness, deposed against
the accused Kishori only on the direction
given by his brother because PW-2 Ram
Sanehi has corroborated the prosecution
version by his cogent evidence and also the
manner of assault and about the injury
sustained by him, therefore, it cannot be
opined that PW-2 deposed before the court
only on the instigation of the informant
PW-1 Ram Asrey.

40. The learned trial Court while
appreciating the evidence available on
record under the facts and circumstances
of the case has rightly convicted the
appellant under Section 308 IPC. The
learned
trial
Court
after
thoughtful
consideration of each aspect of the case
and keeping in view the evidence
adduced by the prosecution as well as by
the defence has passed the impugned
judgment and order of sentence.
Order

41. The criminal appeal is accordingly
dismissed. The judgment and order dated
07.11.2017 passed by learned trial Court is
hereby affirmed.
2 All. Sanjoo @ Sanjay Vs. State of U.P.
997

42. The appellant was on bail during
Appeal. He be taken into custody and be
sent to jail to serve out the sentence.

43. Let the copy of the judgment be
transmitted to learned trial court to ensure
the compliance.

44. let the lower court record be
transmitted
to
the
court
concerned
forthwith.
----------
(2023) 2 ILRA 997
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.01.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 1982 of 2009

Sanjoo @ Sanjay ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Yogesh Srivastava, Sri Manu Sharma
Amicus

Counsel for the Opposite Party:
Sri J.K. Upadhyay, A.G.A., Sri K.K. Dwivedi,
Sri Mohit Singh, Sri Satish Trivedi, Sri
Shashidhar Pandey

A. Criminal Law - Indian Penal Code,1860
- Section 302 - Murder - Deceased died
after sustaining one gun shot injury on his
temporal region - there was no eye
witnesses
-
main
evidence
were
statements of P.W.3 and P.W.4 who saw
the appellants coming out from the house
of the deceased - Held - Merely on the
basis of that evidence, it was not safe to
conclude that the accused committed the
murder - No evidence as to in what
manner the murder of the deceased was
committed by the accused persons -
Knives were seized from the accused, but
no knife injuries were found on the
deceased's body - Recovery was not
proved by any independent witness - A
country-made pistol was seized from the
accused, but there was no ballistic expert
report connecting the seizure to the
offense - Appellants entitled to the benefit
of the doubt - entire prosecution case
based
on
circumstantial
evidence
-
Prosecution failed to prove the charges
against the appellants beyond reasonable
doubt (Para 19, 25)

Allowed. (E-5)

List of Cases cited:

1. Sattatiya @ Satish Rajanna Kartalla Vs St. of
Mah. (2008) 3 SCC 210

2. Devi Lal Vs St. of Raj. (2019) 19 SCC 447

3. Ramanand @ Nandlal Bharti Vs St. of U.P.
Criminal Appeal Nos. 64-65 of 2022 13.10.2022

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. Heard Shri Yogesh Srivastava for
appellant Nos. 2, 3 & 4, Shri Manu
Sharma, Amicus, for appellant No.1 and
Shri J.K. Upadhyay, learned AGA for the
State.

2. This appeal arises out of the
impugned judgement and order dated
26.03.2009 passed by Special Judge
(D.A.A.), Agra in S.T. No. 85 of 2002
(State Vs. Sanjoo @ Sanjay & others)
arising out of Crime No. 78 of 2002, under
Sections 394, 302, 411, 120-B, I.P.C, and
Sessions Trial No. 97 of 2002, arising out
of Crime Nos. 84 and 85 of 2002 under
Sections 25 and 25/4 Arms Act, Police
Station-New
Agra,
District
Agra,
convicting appellants Sanjay @ Sanjoo,
Praveen Dubey, Banwari and Lala @