# Krishna Pal & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 3 ILRA 868
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-04
- **Case number:** Criminal Appeal No. 261 of 2006
- **Bench:** Anjani Kumar Mishra, Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-pal-ors-in-jail-v-state-of-u-p-46977
- **Pages:** 13

## Headnote

A. Criminal matter-Code of Criminal
Procedure,1973-Section
374(2)-
&
Indian Penal Code,1860-Section 147,
323/149, 324/149, 302/149 & Arms
Act,1959-Section
25/27-challenge
toconviction-
accused
had
gone
after
abusing the complainant and again
returned to the site in question with the
preparedness
to
assault
on
the
informant and others in which a young
lad of 16 years has been done to death
and two persons from complainant side
received
injuries
and
their
injuries
cannot be disputed- Even their injuries
are fully corroborated by the medical
evidence.-Thus, on the basis of the
medical and ocular evidence- Both the
witnesses (PW-1 & PW-2) clearly
delineated the genesis and manner of
attacks-the prosecution has been able to
prove its case beyond reasonable doubt-
It is also not a case where injured
witnesses can be said to be planted oneWhere 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 person
of the accused are not explained by the
prosecution cannot, by itself, be a sole
basis to reject the testimony of the
prosecution witnesses.(Para 1 to 53)

B. As per the medical report, the injuries
on the body of two accused persons
were found to be `simple in nature'. On
the other hand, we have a complete
version
of
the
prosecution,
duly
supported by two injured eye witnesses
to
the
occurrence.
The
bone
of
contention between the parties was the
lifting of cow dung forcefully by the
accused
persons
and
the
verbal
altercations that had taken violent turn.
The prosecution story, as has been
disclosed
by
the
eye-witnesses,
is
trustworthy,
reliable
and
entirely
plausible in the facts and circumstances
of the case. The mere fact that there is
no specific explanation on record as to
how
two
accused
persons
suffered
injuries, would not vitiate the trial or the
case of the prosecution in its entirety.
Normal
rule
is
that
whenever
the
accused sustained injury in the same
occurrence in which the complainant
suffered the injury, the prosecution
should explain the injury upon the
accused. But, it is not a rule without
exception that if the prosecution fails to
give explanation, the prosecution case
must fail. There is no dispute on the
occurrence, time and place. Therefore, it
can be said with certainty that the
occurrence took place in the manner as
alleged by the prosecution, which is
supported with the testimony of two
injured witnesses. (Para 41)
3 All. Krishna Pal & Ors.Vs. State of U.P.
869
C.
In
all
criminal
cases,
normal
discrepancies are bound to occur in the
depositions of witnesses due to normal
errors of observation, namely; errors of
memory due to lapse of time or due to
mental disposition such as shock and
horror at the time of occurrence. Where
the omissions amount to a contradiction,
creating
a
serious
doubt
about
the
truthfulness of the witness and other
witnesses
also
make
material
improvement while deposing in the court,
such evidence cannot be safe to rely upon.
However,
minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters which do
not affect the core of the prosecution
case, should not be made a ground on
which the evidence can be rejected in its
entirety. The court has to form its opinion
about the credibility of the witness and
record a finding as to whether his
deposition inspires confidence. (Para 35)

The appeal is dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,913 of 42,676. This is a partial read: ask again with offset=39913 for what follows._

868 INDIAN LAW REPORTS ALLAHABAD SERIES
open for the victim to herself file the appeal
but only as per law.

12. Certified copies of the documents
filed alognwith this appeal be returned to
the appellant as per rules of the Court.
----------
(2021)03ILR A868
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Appeal No. 261 of 2006

Krishna Pal & Ors. ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri K.K. Tripathi, Sri Adarsh Kumar, Sri B.K.
Solanki, Sri Bansh Narain Rai, Sri Hardeo
Singh, Sri K.S. Yadav, Sri Kamleh Kumar
Tripathi, Sri Rajesh Dwivedi, Sri Rajive Ratn
Singh, Sri Amit Saxena, Sri Ajay Kumar
Mishra.

Counsel for the Opposite Party:
A.G.A.

A. Criminal matter-Code of Criminal
Procedure,1973-Section
374(2)-
&
Indian Penal Code,1860-Section 147,
323/149, 324/149, 302/149 & Arms
Act,1959-Section
25/27-challenge
toconviction-
accused
had
gone
after
abusing the complainant and again
returned to the site in question with the
preparedness
to
assault
on
the
informant and others in which a young
lad of 16 years has been done to death
and two persons from complainant side
received
injuries
and
their
injuries
cannot be disputed- Even their injuries
are fully corroborated by the medical
evidence.-Thus, on the basis of the
medical and ocular evidence- Both the
witnesses (PW-1 & PW-2) clearly
delineated the genesis and manner of
attacks-the prosecution has been able to
prove its case beyond reasonable doubt-
It is also not a case where injured
witnesses can be said to be planted oneWhere 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 person
of the accused are not explained by the
prosecution cannot, by itself, be a sole
basis to reject the testimony of the
prosecution witnesses.(Para 1 to 53)

B. As per the medical report, the injuries
on the body of two accused persons
were found to be `simple in nature'. On
the other hand, we have a complete
version
of
the
prosecution,
duly
supported by two injured eye witnesses
to
the
occurrence.
The
bone
of
contention between the parties was the
lifting of cow dung forcefully by the
accused
persons
and
the
verbal
altercations that had taken violent turn.
The prosecution story, as has been
disclosed
by
the
eye-witnesses,
is
trustworthy,
reliable
and
entirely
plausible in the facts and circumstances
of the case. The mere fact that there is
no specific explanation on record as to
how
two
accused
persons
suffered
injuries, would not vitiate the trial or the
case of the prosecution in its entirety.
Normal
rule
is
that
whenever
the
accused sustained injury in the same
occurrence in which the complainant
suffered the injury, the prosecution
should explain the injury upon the
accused. But, it is not a rule without
exception that if the prosecution fails to
give explanation, the prosecution case
must fail. There is no dispute on the
occurrence, time and place. Therefore, it
can be said with certainty that the
occurrence took place in the manner as
alleged by the prosecution, which is
supported with the testimony of two
injured witnesses. (Para 41)
3 All. Krishna Pal & Ors.Vs. State of U.P.
869
C.
In
all
criminal
cases,
normal
discrepancies are bound to occur in the
depositions of witnesses due to normal
errors of observation, namely; errors of
memory due to lapse of time or due to
mental disposition such as shock and
horror at the time of occurrence. Where
the omissions amount to a contradiction,
creating
a
serious
doubt
about
the
truthfulness of the witness and other
witnesses
also
make
material
improvement while deposing in the court,
such evidence cannot be safe to rely upon.
However,
minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters which do
not affect the core of the prosecution
case, should not be made a ground on
which the evidence can be rejected in its
entirety. The court has to form its opinion
about the credibility of the witness and
record a finding as to whether his
deposition inspires confidence. (Para 35)

The appeal is dismissed. (E-5)

List of Cases cited:

1. St. of U.P. Vs Naresh JT (2011) 3 SC 508

2. Tehsildar Singh & Anr Vs St. of U.P. (1959)
AIR SC 1012

3. Pudhu Raja & Anr. Vs St. Rep. By Inspr of
Police, (JT 2012) 9 SC 252

4. Lal Bahadur Vs St. (NCT of Delhi) (2013) 4
SCC 557

5. Sardul Singh Vs St of Haryana(2002) 8 SCC
372

6. Rajender Singh & Ors Vs St. of Bih.(2000) 4
SCC 298

7. Abdul Sayeed Vs St. of M.P.(2010) 10 SCC
259

(Delivered by Hon'ble Anjani Kumar
Mishra, J. &
Hon'ble Shekhar Kumar Yadav, J.)

1. Instant appeal arises out of a
judgment of conviction and order of
sentence dated 12.01.2006 passed by
learned Addl. District and Sessions Judge,
Court No. 6, District Kanpur Dehat in
Sessions Trial No. 255 of 2001 (arising out
of Case Crime No. 345 of 2000) (State Vs
Krishna Pal Singh and Others) and
Sessions Trial No. 417 of 2001 (arising out
of Case Crime No. 357 of 200) (State Vs
Amar Singh), whereby the accused Kaptan
Singh, Mohan Trivedi, Vimal Singh and
Anirudh Singh were acquitted of the charge
under
Sections
148,
323/149,
324/149,302/149, 504 IPC. Further, the
appellants Kamal Singh (Appellant No.
2), Amar Singh (Appellant No. 4),
Narendra Singh (Appellant No. 5) and Jai
Karan Singh (Appellant No. 6) were
convicted under Sections 148, 323/149,
324/149, 302/149, 504 IPC and further
appellants Krishna Pal Singh and Nirmal
Singh were convicted under Section 147,
323/149, 324/149, 302/149, 504 IPC.
Further the appellant Amar Singh in
Sessions Trial No. 417 of 2001 was
convicted under Section 25/27 of Arms
Act.

2. By the said judgement the
appellants Kamal Singh (Appellant No.
2), Amar Singh (Appelant No. 4),
Narendra Singh (Appellant No. 5) and
Jai Karan Singh (Appellant No. 6) were
convicted under Section 148 IPC and
sentenced to three years RI and fine of Rs.
1000/- each, under Section 323/149 IPC
and sentenced to one year R.I. and fine of
Rs. 500/- each, under Section 324/149 IPC
and sentenced to under go three years R.I.
and fine of Rs. 1000/- each, under Section
302/149
IPC
and
sentenced
to
life
imprisonment and fine of Rs. 5000/- each,
under Section 504 IPC sentenced to six
870 INDIAN LAW REPORTS ALLAHABAD SERIES
months R.I. and fine of Rs. 500/- each
along with default stipulation.

3. The appellants Krishnapal Singh
(Appellant No. 1) and Nirmal Singh
(Appellant No. 3) were convicted under
Section 147 IPC and sentenced to undergo
two years R.I. and fine of Rs. 500/- each,
under Section 323/149 IPC sentenced to
one year RI and fine of Rs. 500 each, under
Section 324/149 IPC sentenced to three
years R.I. and fine of Rs. 1000/- each and
under Section 302/149 IPC sentenced to
life imprisonment and fine of Rs. 5000/-
each, under Section 504 IPC sentenced to
six months R.I. and fine of Rs. 500/- each
along with default stipulation.

4. The appellant Amar Singh in
Sessions Trial No. 417 of 2001 was
convicted under Section 25/27 Arms Act
and sentenced to three years R.I. and fine
of Rs. 2000/- with default stipulation.

5. All the aforesaid sentences were
directed to run concurrently.

6. The appeal against Krishna Pal
Singh (Appellant No. 1) has already been
dismissed as abated vide order dated
28.09.2018 passed by another Co-ordinate
Bench of this Court.

7. Adumbrated facts, as per the
prosecution version are that the Informant
Vinod Singh (P.W.-1) submitted a written
report (Ex-Ka-1) on 30.11.2000 at P.S.
Shivli, District Kanpur Dehat alleging
therein that he used to tie the cattle in front
of his house. It is alleged that the cow dung
was forcibly taken away by the sons of
accused Krishna Pal Singh. On 30.11.2000
at 6.00 a.m. the informant was standing
outside his door and at that time accused
Kamal Singh and Nirmal Singh both sons
of Krishna Pal Singh (Village Pradhan)
started taking away the cow dung, which
was objected by the informant. At this, both
the
accused
stated
that
since
this
Government Kharanja pertains to society,
they would lift the cow dung forcibly. After
abusing and threatening the informant they
went away. Thereafter, on the same day at
8.00 a.m. when the informant was standing
at his door, accused Krishna Pal Singh
(village Pradhan) and both his sons namely
Kamal Singh and Vimal Singh armed with
Pharsa and Barchhi and accused Anirudh
Singh and his brothers Kaptan Singh and
Amar Singh and accused Narendra Singh
armed with country made pistol, Addhi,
Pharsa,
Barchhi
and Lathi
advanced
towards his door. Accused Kamal Singh
assaulted the informant with Barchhi on his
temple. In order to save his life, he raised
alarm. Thereafter, his family members
namely, Hari Shankar, Anil Singh, Randhir
Singh reached there. On the exhortation of
accused Krishna Pal Singh and Anirudh
Singh, other accused persons started firing
and assaulted with lathi, danda. In the
incident, informant Vinod Singh (P.W.-1),
Hari
Shankar
(P.W.-2)
and
Anil
sustained injuries. At this, deceased
Yogendra Singh arrived on the spot to
rescue them and addressed his maternal
uncle (Mama) Amar Singh why he was
assaulting his uncle? At this accused Amar
Singh retorted derisively that who is his
Mama and fired shot upon Yogendra Singh
with his country made pistol, who died
instantaneously on the spot. The incident
was witnessed by Randhir Singh, Amit son
of the informant and several other villagers
and they identified the assailants. Informant
also stated that there were several other
persons who had come with the assailants.

8. On the basis of said written report,
the
FIR
(Ex-Ka-7)
was
lodged
on
30.11.2000 at 9.30 a.m. same day vide
3 All. Krishna Pal & Ors.Vs. State of U.P.
871
Case Crime No. 345 of 2000, under
Sections 147, 148, 149, 302, 324, 323, 504
IPC. A Check report was carved out.
Relevant entries were made in the General
Diary (Ex-Ka-8) of the police station and
the investigation was entrusted to Sub
Inspector Sri Radhey Shyam Upadhyay
(P.W.-5), who is said to have recorded the
statements of the injured as the S.H.O. P.S.
Shivli Sri Rajul Garg (P.W.-6) was not
available at the Police Station at that time.

9. The injured Vinod Singh (P.W.-1),
Hari Shankar, Anil and one Randheer
Singh were taken to PHC, Shivli, District
Kanpur Dehat, where they were examined
by P.W.-4 Dr A. C. Dixit on 30.11.2000.
The injured Anil received following
injuries on his person:-

(i) Lacerated wound on right side
head, 3 cm X 1 cm, bleeding present.

(ii) Abrasion on left leg in middle
2 cm X 2 cm.

(iii) Abrasion on right side of
forehead 4 cm X 3 cm, 1 cm above right
eyebrow.

Injuries are simple. Injury no. 1 is
caused by hard and blunt object, Injury no.
(ii) & (iii) are caused by friction. Duration
fresh.

10. The injured Vinod Singh, received
the following injuries:-

(i) pointed deep injury on the left
side of face 0.5 cm X 0.5 cm ...............of
left ear. Bleeding present.

Injury kept under observation.
Injury is said to have been caused by
pointed object. Duration is fresh.

11. The injured Hari Shanker received
the following injuries:-

(i) Lacerated wound on back of
the head of 2 cm X 0.5 cm scale deep.
Bleeding present.

(ii) Contusion on left shoulder
4cm X 3 cm,

(iii) Abraded contusion on right
side of back of chest 3 cm X 2 cm .5 cm
below back border of right scapula.

(iv) Contusion right hip joint
front 2 cm X 2 cm red in colour.

All injuries are simple and caused
by hard and blunt object. Duration fresh.

12. The injured Randheer Singh
received the following injuries on his
person:-

(I) Contusion over head 2 cm X 2
cm

(ii) Contusion over front of chest
right side 4 cm X 3 cm red.

Injuries are simple and caused by
hard and blunt object. Their injury reports
of all the injurds are available on record
and marked as Ex-ka-3 to Ex-ka-6.

13. The subsequent Investigating
Officer P.W.-6 Sri Rajul Garg, took over
the investigation and prepared inquest (ExKa-13), site plan (Ex-ka-23) and obtained
the samples of blood stained earth and
simple earth from the place of incident and
prepared
recovery
memo,
which
is
available on record as Ex-Ka-11. The
recovery memo of four empty cartridges
from the place of incident was also
872 INDIAN LAW REPORTS ALLAHABAD SERIES
prepared, which is available on record as
Ex-Ka-10.

14. The dead body of deceased was
sent for postmortem through constables
Awadhesh Kumar Tiwari and Arvind. The
postmortem was conduced by P.W.-3 Dr
Akhilesh Shukla on 1.12.2000 at 1.00 p.m.
The postmortem report (Ex-ka-2) was
prepared and following anti mortem
injuries were reported on the person of
deceased Yogendra Singh (16 years),
which is reproduced as under:-

(i) Fire arm wound of entry-1 cm
X 1 cm on the left lateral side of abdomen,
14 cm lateral to mid line and 5 cm above
left
abdominal
cavity
deep,
margins
inverted, charring present around the
wound.

(ii) Fire arm wound of exit-2 cm
X 2 cm on the right lateral side of abdomen
11 cm lateral to left line and 8 cm above
the right iliac crust. Margins inverted,
abdominal cavity deep.

15. As per opinion of the Dr Akhilesh
Shukla, (P.W.-3) death was caused by
haemorrhage and shock due to anti-mortem
fire arm injury.

16. The assault weapon Barchhi,
country made pistol and cartridges stated to
have been used in the murder of deceased
was recovered at the instance of appellant
Amar Singh on his arrest on 17.12.2000.
This memo of recovery is available on
record as Ex-Ka-20. Thereafter, an FIR
vide Case Crime No. 357 of 2000, under
Sections 25/27 Arms Act was registered
against the appellant Amar Singh on
17.12.2000, copy of which is available on
record as Ex-Ka-21. The accused Mohan
Trivedi, Kaptan Singh and Shyam Baran
Singh are said to have been arrested on
1.12.2000 and on their arrest, recovery
memo of one S.B.B.L. Gun, Ten live
cartridges recovered from accused Mohan
Trivedi and one country made pistol 12
bore with two cartridges said to have been
recovered from accused Shyam Baran and
a farsa recovered from accused Mohan
Trivedi,
was
prepared.
The
empty
cartridges,
recovered
Gun
and
other
materials e.g., blood soaked soil and the
clothes etc. of the deceased were sent to the
Forensic Science Laboratory, Agra for
chemical analysis.

17.

After
completing
the
investigation, the Investigating Officer
(P.W-6) Sri Rajul Garg filed charge sheet
(Ex Ka-19) against the accused persons
namely Krishna Pal Singh, Kamal Singh,
Vimal Singh, Nirmal Singh, Anirudh
Singh,
Kaptan
Singh,
Amar
Singh,
Narendra Singh, Jai Karan Singh, Mohan
Trivedi and Shyam Baran Singh under
Sections 147, 148, 149, 302, 323, 504, 324
IPC on 19.2.2001 in Case Crime No. 345 of
2000. Another Investigating Officer Sri
Satya Prakash Yadav (P.W.-7) filed charge
sheet against appellant Amar Singh under
Section 25/27 Arms Act (Ex-Ka-25).
Accused Shyam Baran Singh died before
commencement of trial.

18. The Addl. Sessions Judge framed
charges against rest of the appellants,
namely, Krishna Pal Singh, Kamal Singh,
Vimal Singh, Nirmal Singh, Anirudh
Singh,
Kaptan
Singh,
Amar
Singh,
Narendra Singh, Jai Karan Singh, Mohan
Trivedi under Sections 147, 148, 149, 302,
323, 324, 504 IPC on 9.8.2001. Again,
Addl. Sessions Judge, Room No. 1, Kanpur
Dehat framed charge against accused
appellants namely Kamal Singh, Vimal
Singh, Anirudh Singh, Kaptan Singh, Amar
3 All. Krishna Pal & Ors.Vs. State of U.P.
873
Singh, Narendra Singh, Jai Karan Singh,
Mohan Trivedi under Section 148, 323/149,
324/149, 302/149, 504 IPC on 1.2.2003.
The Addl. Sessions Judge, framed charge
against appellant Krishna Pal Singh and
Nirmal Singh under Section 147, 323/149,
324/149, 302/149, 504 IPC on 1.2.2003.

19. The charge against accused Amar
Singh in Sessions Trial No. 417 of 2001,
under Sections 25/27 Arms Act was framed
on 21.09.2001 by Addl. Sessions Judge,
FTC No. 1, Kanpur Dehat. All the
appellants denied the charge and claimed to
be tried.

20. Prosecution has adduced evidence
of informant Vinod Singh (P.W.-1), Hari
Shanker (P.W.-2), Dr Akhilesh Shukla
(P.W.3), Dr. A. C. Dixit (P.W.-4), S.I.
Radhey Shyam Upadhyay (P.W.-5), Sub
Inspector Rajul Garg (P.W.-6), S.I. Satya
Prakash Yadav (P.W.-7) in support of its
case.

21. Statements of the accused were
also recorded under Section 313 of Cr.P.C.
in which they denied the circumstances
appearing against them in the prosecution
case, and pleaded innocence and false
implication
on
account
of
enmity.
However, they have not produced any
evidence in their defence.

22. The trial Court after hearing
counsel for the respective parties and
considering the material available on
record,
by
the
impugned
judgment
convicted
and
sentenced
the
accused/appellants herein as mentioned
above. Hence present Criminal Appeal.

23. We have heard Heard Sri Adarsh
Kumar, learned counsel for appellant no.4,
Sri Hardeo Singh, learned counsel assisted
by Sri Kamlesh Kumar Tripathi, learned
counsel for appellants nos.2, 3, 5 & 6 and
Sri A.N. Mulla, Sri L.D. Rajbhar and Sri
Prem Shankar Mishra, learned A.G.A. for
the State and perused the entire material on
record.

24. Attacking the prosecution case
and the verdict of conviction, it is mainly
contended that by not explaining the
injuries on the person of the accused, the
prosecution
has
suppressed
the
real
occurrence, therefore, the accused would be
entitled to be given the benefit of doubt.
Further the prosecution did not examine the
independent witnesses who were actually
present at the time of occurrence of the
incident, which casts a doubt on the
prosecution
case.
According
to
the
prosecution, PW-1 and PW-2 both injured
eye-witnesses are interested witnesses and,
therefore, their depositions cannot be relied
upon by the Court. It is further submitted
that even if the entire prosecution story is
assumed to be correct, even then it does not
constitute an offence under Section 302
IPC. In the facts and circumstances of the
case, at the worst, the accused could be
held guilty of an offence punishable under
Section 304, Part-I, IPC. It is further
submitted that the deceased had only one
gun shot injury, therefore, the story that
several
accused
armed
with
several
weapons took part in the assault is not
physically possible. Thus, it creates a
specific doubt in the story of the
prosecution.

25. It is further submitted that accused
Kaptan Singh, Mohan Trivedi, Vimal Singh
and Anirudh Singh against whom similar
evidence was tendered have been acquitted.
Therefore, it would not be proper and legal
to convict rest of accused persons on the
same set of evidence. Benefit of doubt
874 INDIAN LAW REPORTS ALLAHABAD SERIES
should be given on account of co-accused's
acquittal. It is further submitted that the
evidence is inadequate to fasten guilt, and,
therefore, prosecution cannot be said to
have established its case beyond all
reasonable doubt.

26. Learned A.G.A. has submitted
that case of prosecution revolves around
the injured witnesses P.W.1 & P.W.-2,
whose testimony stands on a higher
footing. He has submitted that these injured
witnesses had no reason to falsely implicate
the accused persons or to shield the real
culprit. Learned A.G.A. argued that non
explanation
of
injuries
sustained
by
accused person is also not a ground to
outrightly reject the evidence of the
prosecution witnesses.

27. The undisputed facts are that in
the alleged incident a lad of 16 years has
been done to death and two persons from
informants'
side
allegedly
sustained
injuries.

28. The prosecution case primarily
depends upon the testimony of two injured
witnesses namely P.W.-1 & P.W-2. It is not
in dispute that P.W.-1 an P.W.-2 have
sustained injuries in the alleged incident,
which is well corroborated by the medical
evidence on record and the doctor P.W.-6,
who has stated that all injuries sustained by
them are simple and caused by hard and
blunt object could also probabilise the
occurrence of incident as alleged by the
prosecution. Very cogent and convincing
grounds would be required to discard the
testimony of the injured Witnesses.

29. Vinod Singh, who has been
examined in the instant case as P.W.-1 is
the first informant and is one of the injured.
He in his examination in chief has deposed
that incident is of 30.11.2000 at 8.00 a.m. It
is deposed that at about 6.00 a.m., sons of
accused Kishanpal Singh, namely, Kamal
Singh and Vimal Singh were taking away
forcibly the cow dung and at that time
informant was standing outside his door
and when objected, accused started abusing
and went out and again at 8.00 a.m.
accused
Kishanpal,
Kamal,
Vishal,
Aniruddh Singh, Kaptan Singh, Amar
Singh, Narendra Singh and some others
came there and attacked the informant.
Accused
Kamal
Singh
assaulted
the
informant with Barchhi at his left temporal
region and on an alarm being raised by
him, Hari Shanker, Randheer Singh, Anil
Singh reached there and on the exhortation
of accused Kishanpal Singh and Anirudh
Singh, all the accused persons started firing
and abusing them and also made assault
upon Hari Shanker, Randheer Singh and
Anil Singh. In the incident, informant
Vinod Singh (P.W.-1), Hari Shankar (P.W.-
2) and Anil sustained injuries. Accused
Amar Singh shot at deceased with firearm
which hit him in his abdomen as a result of
which
he
fell
down
and
thereafter
succumbed to his injury. Anil was beaten
by accused Kaptan Singh and Vimal.
Harishanker
was
beaten
by
accused
Narendra Singh and Randheer Singh was
beaten by accused Kishanpal Singh.

30. In his deposition, he has
specifically
mentioned
that
accused
Kishanpal was wielding Lathi, accused
Kamal was wielding Barchhi, Vimal,
Aniruddh, Kaptan Singh were having Farsa
and accused Amar Singh and Narendra
Singh were having country made pistols.

31. In the same way, P. W. 2 Hari
Shanker, the second injured witness also
supported the prosecution case. Both the
witnesses have clearly delineated the
3 All. Krishna Pal & Ors.Vs. State of U.P.
875
genesis and manner of attacks. In our
considered opinion, the evidence of P.Ws.
1 and 2, is credible and there is no major
deviation or discrepancy.

32. A detailed and searching crossexamination has been conducted with both
P.W.- 1 and P.W.- 2 yet nothing material
could be extracted from them. We believe
that testimony of both these witnesses is
natural, consistent with normal human
conduct and trustworthy.

33. Trial court has also noted that the
testimony of injured witnesses is reliable
and worthy of credence. It is pertinent to
point out that P.W.-1 & P.W-2 both
sustained injuries in the incident, therefore,
their
testimony
cannot
be
rejected
outrightly, especially in the light of facts
that
they
have
narrated
the
entire
prosecution version in a trustworthy
manner. If the evidence of a witness is
trustworthy,
reliable
and
worthy
of
credence then the court can act upon such
evidence.

34. Moreover, further perusal of the
evidence
of
these
two
prosecution
witnesses indicates that in their testimony
they have completely denied to have seen
the accused having received the injuries
during the course of occurrence, which as
per defence are material discrepancy and
renders their version doubtful. We are
afraid
that
such
discrepancies
by
themselves do not necessarily create doubt
about
the
prosecution
story
in
all
eventualities.
It
is
the
nature
and
circumstances of the discrepancies which
has to be taken into account. If there are
minor discrepancies in the depositions of
the witnesses, they have to be ignored for
the simple reason that all witnesses cannot
be expected to give depositions without
minor and normal discrepancies. If the
discrepancies are minor and do not affect
the core of prosecution story adversely than
they have to be ignored. In the case in hand
where the assailants are in large numbers
and the fight took place like a melee attack,
then in such eventualities it could not
possible for any member of either side to
see as to how many persons received what
nature of injuries.

35. Hon'ble the Apex Court in the
case of State of U.P. Vs. Naresh reported
in JT 2011 (3) SC 508 has held as under:-

"In all criminal cases, normal
discrepancies are bound to occur in the
depositions of witnesses due to normal
errors of observation, namely; errors of
memory due to lapse of time or due to
mental disposition such as shock and horror
at the time of occurrence. Where the
omissions amount to a contradiction,
creating
a
serious
doubt
about
the
truthfulness of the witness and other
witnesses also make material improvement
while deposing in the court, such evidence
cannot be safe to rely upon. However,
minor
contradictions,
inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a
ground on which the evidence can be
rejected in its entirety. The court has to
form its opinion about the credibility of the
witness and record a finding as to whether
his
deposition
inspires
confidence.
Exaggerations per se do not render the
evidence brittle. But it can be one of the
factors to test credibility of the prosecution
version, when the entire evidence is put in a
crucible for being tested on the touchstone
of credibility. Therefore, mere marginal
variations in the statements of a witness
cannot be dubbed as improvements as the
876 INDIAN LAW REPORTS ALLAHABAD SERIES
same may be elaborations of the statement
made by the witness earlier. The omissions
which amount to contradictions in material
particulars i.e. go to the root of the
case/materially affect the trial or core of the
prosecution's case, render the testimony of
the witness liable to be discredited."

36. A similar view has been reiterated
by this Court in Tehsildar Singh & Anr V.
State of U.P., [AIR 1959 SC 1012];
Pudhu Raja & Anr. V. State, Rep. By
Inspector of Police, [JT 2012 (9) SC 252];
and Lal Bahadur v. State (NCT of
Delhi), [(2013) 4 SCC 557)]. Thus, it is
evident that in case there are minor
contradictions in the depositions of the
witnesses the same are bound to be ignored
as the same cannot be dubbed as
improvements and it is likely to be so as the
statement in the court is recorded after an
inordinate delay. In case the contradictions
are so material that the same go to the root
of the case, materially affect the trial or
core of the prosecution case, the court has
to form its opinion about the credibility of
the witnesses and find out as to whether
their depositions inspire confidence.

37. Hon'ble the Apex Court in the
case of Sardul Singh v. State of Haryana
reported in (2002) 8 SCC 372 has
observed as under:

"There cannot be a prosecution
case with a cast iron perfection in all
respects and it is obligatory for the courts
to analyse, sift and assess the evidence on
record, with particular reference to its
trustworthiness and truthfulness, by a
process of dispassionate judicial scrutiny
adopting an objective and reasonable
appreciation of the same, without being
obsessed by an air of total suspicion of the
case of the prosecution. What is to be
insisted upon is not implicit proof. It has
often been said that evidence of interested
witnesses should be scrutinized more
carefully to find out whether it has a ring of
truth and if found acceptable and seem to
inspire confidence, too, in the mind of the
court, the same cannot be discarded totally
merely on account of certain variations or
infirmities pointed or even additions and
embellishments noticed, unless they are of
such nature as to undermine the substratum
of the evidence and found to be tainted to
the core. Courts have a duty to undertake a
complete and comprehensive appreciation
of all vital features of the case and the
entire evidence with reference to the broad
and reasonable probabilities of the case
also in their attempt to find out proof
beyond reasonable doubt."

38. It is, therefore, clear that the
argument of the learned counsel for the
appellants that the discrepancies in the
depositions
of
witnesses
indicate
improvements and, therefore, testimonies
of these witnesses should be discarded,
cannot be accepted. In any case, no
material discrepancies or contradictions
have been shown by the learned counsel for
the appellants.

39. So for as the another argument
that the prosecution has also not explained
the injuries caused to the two accused
persons to say that the attack was in
exercise of self-defence and the failure of
the prosecution to explain injuries on the
person of two accused persons is a
circumstance which creates a serious doubt
in the story of the prosecution.

40. It is not a case where the
circumstances, even remotely, can be
construed to have satisfied the ingredients
of self-defence. From the record, it
3 All. Krishna Pal & Ors.Vs. State of U.P.
877
appears that the alleged incident took
place in the early morning, when the
informant was standing outside his door
and at that time accused Kamal Singh and
Nirmal Singh both sons of Krishna Pal
Singh (village Pradhan) started taking
away the cow dung forcibly, which he
had forbade. There was verbal altercation
between the parties, and as a result some
assault took place between the parties in
which a person from informant side
sustained fire arm injury and died
instantaneously,
and
some
received
injuries and in the said scuffle two
persons from the accused side also
received
injuries.
But
the
persons
received injuries from defence side did
not examine a single witness in their
defence to prove that they were attacked
by the informant side and no doubt, two
accused
persons
were
subjected
to
medical examination by the Medical
Officer vide paper application 88 Kha-1
& 2, which has not been exhibited. This
would show that two accused persons
namely Kamal singh and Vimal Singh
had suffered some injuries but where and
how these injuries were suffered, was for
them to establish, particularly when they
had taken a specific stand that the
complainants' side were at fault and were
aggressors in their defence statement and
have admitted the occurrence. It is a
settled canon of evidence jurisprudence
that one who alleges a fact must prove the
same. It is also their case that the
prosecution has not explained the injuries
on their person or the same being not
exhibited at the most can be said to be
lapses on the part of the prosecution, and,
therefore, the argument impressed upon
the Court is that the failure of the
prosecution to explain injuries on the
person of accused is a circumstance
which creates a serious doubt in the story
of the prosecution. We are not impressed
with this contention primarily for the
reasons that when a person claims
exercise of private self-defence, the onus
lies on him to show that there were
circumstances
and
occasions
for
exercising such a right. In other words,
these basic facts must be established by
the
accused.
Just
because
one
circumstance exists amongst the various
factors, which appears to favour the
person claiming right of self-defence,
does not mean that he gets the right to
cause the death of a person. Even the
right of self-defence has to be exercised
directly in proportion to the extent of
aggression.

41 . As per the medical report, which
is available as paper application 88 Kha-1
& Kha-2, the injuries on the body of two
accused persons were found to be `simple
in nature'. On the other hand, we have a
complete version of the prosecution, duly
supported by two injured eye witnesses to
the occurrence. The bone of contention
between the parties was the lifting of cow
dung forcefully by the accused persons and
the verbal altercations that had taken
violent turn. The prosecution story, as has
been disclosed by the eye-witnesses, is
trustworthy, reliable and entirely plausible
in the facts and circumstances of the case.
The mere fact that there is no specific
explanation on record as to how two
accused persons suffered injuries, would
not vitiate the trial or the case of the
prosecution in its entirety. Normal rule is
that whenever the accused sustained injury
in the same occurrence in which the
complainant
suffered
the
injury,
the
prosecution should explain the injury upon
the accused. But, it is not a rule without
exception that if the prosecution fails to
give explanation, the prosecution case must
878 INDIAN LAW REPORTS ALLAHABAD SERIES
fail. There is no dispute on the occurrence,
time and place. Therefore, it can be said
with certainty that the occurrence took
place in the manner as alleged by the
prosecution, which is supported with the
testimony of two injured witnesses.

42. 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 person of the accused are not explained
by the prosecution cannot, by itself, be a
sole basis to reject the testimony of the
prosecution witnesses and consequently,
the
whole
case
of
the
prosecution.
Reference in this regard may be had to
Rajender Singh & Ors. v. State of Bihar,
[(2000) 4 SCC 298].

43. The other argument raised on behalf
of the appellants is that P.W.-1 & P.W.-2 are
the interested witnesses, and, their testimony
cannot be relied upon in absence of
corroboration of their version with any
independent witnesses, and, therefore, the
prosecution has failed to establish its case
beyond reasonable doubt. This argument is
again without any substance.

44. Normally, an injured witness enjoys
greater credibility because he is the sufferer
himself and thus, there will be no occasion
for such a person to state an incorrect version
of the occurrence, or to involve anybody
falsely and in the bargain, protect the real
culprit.

45. We need not discuss more
elaborately the weightage that should be
attached by the Court to the testimony of an
injured witness. In fact, this aspect of
criminal jurisprudence is no longer resintegra, as has been consistently stated by
Apex Court in its various pronouncements.

46. In the case of Abdul Sayeed Vs
State of Madhya Pradesh [(2010) 10 SCC
259], wherein it has been held by Hon'ble
Supreme Court as under:

"28. The question of the weight to
be attached to the evidence of a witness
that was himself injured in the course of the
occurrence has been extensively discussed
by this Court.

Where
a
witness
to
the
occurrence has himself been injured in the
incident, the testimony of such a witness is
generally considered to be very reliable, as
he is a witness that comes with a built-in
guarantee of his presence at the scene of
the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate
someone. "Convincing evidence is required
to discredit an injured witness."

29. While deciding this issue, a
similar view was taken in Jarnail Singh Vs
State of Punjab, where this Court
reiterated the special evidentiary status
accorded to the testimony of an injured
accused
and
relying
on
its
earlier
judgments held as under: (SCC pp. 726-27,
paras 28-29)

"28. Darshan Singh (PW 4) was
an injured witness. He had been examined
by the doctor. His testimony could not be
brushed aside lightly. He had given full
details of the incident as he was present at
the time when the assailants reached the
tube-well.
In
Shivalingappa
Kallayanappa Vs State of Karnataka this
Court has held that the deposition of the
injured witness should be relied upon
unless there are strong grounds for
rejection of his evidence on the basis of
major contradictions and discrepancies, for
the reason that his presence on the scene
3 All. Krishna Pal & Ors.Vs. State of U.P.
879
stands established in case it is proved that
he suffered the injury during the said
incident.

29. In State of UP Vs Kishan
Chand, a similar view has been reiterated
observing that the testimony of a stamped
witness has its own relevance and efficacy.
The fact that the witness sustained injuries
at the time and place of occurrence, lends
support to his testimony that he was present
during the occurrence. In case the injured
witness is subjected to lengthy crossexamination and nothing can be elicited to
discard his testimony, it should be relied
upon (vide Krishan v. State of Haryana).
Thus, we are of the considered opinion that
evidence of Darshan Singh (PW 4) has
rightly been relied upon by the courts
below."

30. The law on the point can be
summarised
to
the
effect
that
the
testimony of the injured witness is
accorded a special status in law. This is as
a consequence of the fact that the injury to
the witness is an inbuilt guarantee of his
presence at the scene of the crime and
because the witness will not want to let his
actual assailant go unpunished merely to
falsely implicate a third party for the
commission of the offence. Thus, the
deposition of the injured witness should be
relied upon unless there are strong
grounds for rejection of his evidence on
the basis of major contradictions and
discrepancies therein."

47. So far as the argument that no
independent witnesses were examined
despite their presence on the spot and the
entire prosecution story being based upon
the statements of PW1 and PW2, who are
the interested witnesses, makes the entire
prosecution story doubtful.

48. Again, we are not impressed by
this contention, primarily for the reason
that non-examination of any independent
witness is not fatal to the case of the
prosecution because in this case there are
two injured witnesses, whose testimony is
trustworthy and cogent, therefore, there is
no need of examination of any independent
witnesses.

49. During the course of argument,
the learned counsel for the appellants also
tried to take advantage of the fact that the
deceased ought to have suffered a number
of injuries, if seven accused along with
others all armed with different weapons
participated in the incident but the deceased
had actually received only one fire arm
injury. Thus, the story of the prosecution is
highly improbabilise.

50. We have no hesitation in rejecting
this argument, primarily for the reason that
because besides the deceased, injured
witnesses also received injuries, which are
said to have been authored by the accused
side.

51. At last, learned counsel for the
appellants has contended that this was a
fight at the spur of the moment and the
conviction of the appellants could be
converted into that under Section 304-I of
the IPC. This argument of the appellants
also cannot be accepted to the facts of the
present case. In the present case, dispute
did not arise at the spur of the moment as
the evidence clearly shows that the accused
had gone after abusing the complainant and
again returned to the site in question with
the
preparedness
to
assault
on
the
informant and others in which a young lad
of 16 years has been done to death and two
persons from complainant side received
injuries and their injuries cannot be
880 INDIAN LAW REPORTS ALLAHABAD SERIES
disputed. Even their injuries are fully
corroborated by the medical evidence.
Thus, on the basis of the medical and
ocular evidence, we are fully satisfied that
the prosecution has been able to prove its
case beyond reasonable doubt. It is also not
a case where injured witnesses can be said
to be planted one.

52. We have carefully perused all the
evidence on record. We are convinced that
prosecution evidence is trustworthy and
prosecution has brought home the guilt of all
the appellants by cogent, credible and
trustworthy evidence.

53.