# Lakhan & Ors v. State of U.P

- **Citation:** (2025) 5 ILRA 874
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-02
- **Case number:** Criminal Appeal No. 2781 of 1982
- **Bench:** Vivek Kumar Birla, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhan-ors-v-state-of-u-p-53459
- **Pages:** 14

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 374(2) & 437-A -
Indian Penal Code,1860 - Sections 34,
302, 304, 307, 308 & 323- Criminal Appeal -
filed u/s 374(2) CrPC - conviction and sentence
- conviction u/s 302/34 and 307/34 IPC -
Initially four appellants, later continued against
two appellant due to deaths of two others
convicts - FIR - assault - fatal injuries - death
as a result of injuries - FIR lodged with delay
due to fear - Defence claimed right of private
defence - Injuries on accused medically
confirmed - No cross FIR filed, but medical
reports validated by government doctor - Court
noted prosecution failed to prove genesis of
incident - Only interested witnesses examined -
Injuries on accused unexplained - Longstanding
family feud acknowledged - court emphasized
importance of explaining injuries on accused -
Suppression of origin weakens prosecution case
- court finds that, the trial court failed to
properly scrutinize the prosecution's evidence,
particularly the testimonies of key witnesses,
and overlooked significant gaps such as the
unexplained genesis of the incident and
injuries sustained by the accused - These
omissions cast doubt on the prosecution's
version and supported the defence's claim of
private defence - court held that, the
prosecution's case unreliable and granted the
benefit
of
doubt
to
the
accused
-
consequently, the appeal was allowed, the
conviction and sentence were set aside and
appellants were ordered to be released or
discharged
from
bail,
subject
to
legal
compliance. (Para - 10, 11, 12, 13)

Application Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,771 of 41,871. This is a partial read: ask again with offset=39771 for what follows._

874 INDIAN LAW REPORTS ALLAHABAD SERIES
33. Office is directed to transmit a
copy of this order to the court concerned
for compliance.
----------
(2025) 5 ILRA 874
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 2781 of 1982

Lakhan & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A.L. Agarwal, Sri A.P. Singh, Sri Lalit
Kumar Mishra, Sri Man Mohan Mishra, Sri
R.C. Kandpal

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

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 374(2) & 437-A -
Indian Penal Code,1860 - Sections 34,
302, 304, 307, 308 & 323- Criminal Appeal -
filed u/s 374(2) CrPC - conviction and sentence
- conviction u/s 302/34 and 307/34 IPC -
Initially four appellants, later continued against
two appellant due to deaths of two others
convicts - FIR - assault - fatal injuries - death
as a result of injuries - FIR lodged with delay
due to fear - Defence claimed right of private
defence - Injuries on accused medically
confirmed - No cross FIR filed, but medical
reports validated by government doctor - Court
noted prosecution failed to prove genesis of
incident - Only interested witnesses examined -
Injuries on accused unexplained - Longstanding
family feud acknowledged - court emphasized
importance of explaining injuries on accused -
Suppression of origin weakens prosecution case
- court finds that, the trial court failed to
properly scrutinize the prosecution's evidence,
particularly the testimonies of key witnesses,
and overlooked significant gaps such as the
unexplained genesis of the incident and
injuries sustained by the accused - These
omissions cast doubt on the prosecution's
version and supported the defence's claim of
private defence - court held that, the
prosecution's case unreliable and granted the
benefit
of
doubt
to
the
accused
-
consequently, the appeal was allowed, the
conviction and sentence were set aside and
appellants were ordered to be released or
discharged
from
bail,
subject
to
legal
compliance. (Para - 10, 11, 12, 13)

Application Allowed. (E-11)

List of Cases cited:

1. St. of Rajasthan Vs Madho & ors., AIR 1991
SC 1065,

2. Lakshmi Singh & ors. Vs St. of Bihar, (1976) 4
SCC 349,

3. Nand Lal & ors. Vs St. of Chhatisgarh,
(2023)2 SCR 276,
(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Shri Man Mohan Mishra,
learned Amicus Curiae for the surviving
appellants, Ms. Mayuri Malhotra, learned
State Law Officer for the State-respondents
and perused the records.

2. The present Criminal Appeal
under Section 374(2) of the Criminal
Procedure Code was preferred by four
convicts against the judgment and order of
conviction dated 02.11.1982 passed by
learned Additional Sessions Judge IV,
Allahabad in Sessions Trial No.162 of
1980, whereby all the appellants were
convicted
and
sentenced
to
undergo
imprisonment for life under Section 302/34
IPC and four years rigorous imprisonment
under Section 307/34 IPC. Both the
sentences
shall
run
concurrently.
5 All. Lakhan & Ors. Vs. State of U.P.
875
3. Due to the death of appellant
no.3 Kaleshwar and appellant no.4 Kallu,
their
appeals
have
been
abated
on
17.09.2015 and 06.04.2015 respectively.
The appeal has been finally argued on
behalf of the surviving appellant nos. 1
Lakhan and appellant no. 2 Deshraj.

INTRODUCTORY FACTS

4. The prosecution story in brief, is
that:

On 06.08.1977 at 6:00 pm, the first
informant, Rajaram lodged an FIR as Case
Crime No. 134 of 1977 under Section
323/308 IPC, P.S. Sarai Aqil, District
Allahabad against four appellants stating
that on 05.08.1977 at around 4:00 pm, his
cousin brother, Pran, was on his way to
Vikrama Talab to wash his body. The
villagers Lakhan, Deshraj, Kaleshwar and
Kallu, armed with 'lathies', assaulted Pran.
Pran raised an alarm. Consequently, the
first informant and his real brothers, Prabhu
and Chandan rushed for his rescue. When
they intervened, Kallu exhorted to assault
them and accordingly the co-accused
assaulted the first informant and his
brothers. When they raised an alarm and
cried, the witnesses Shukru, Gurudeen,
Bhaiyalal also reached to the spot for their
rescue. His brother, Prabhu had received
lathi blows on his neck, who fell
unconscious. The first informant and his
brothers had also received lathi blows on
their head, hands and back. As the first
informant was extremely sacred, he did not
go to the Police Station to lodge the first
information report on the same date.

Rajaram the first informant, was
the resident of Village Gourey, P.S.
Sarai, Aqil, District Allahabad and
accused Lakhan, Deshraj, Kallu and
Kaleshwar were also the resident of the
same village. Accused Deshraj and
Kaleshwar were real brothers and Lakhan
belonged to their family. Kallu was the
brother-in-law of accused Deshraj. The
deceased Prabhu and the injured Chandan
were the real brothers of Rajaram. Pran
was their cousin brother. An old enmity
existed between first informant Rajaram
and accused Deshraj.

After an FIR was lodged, all the
injured were referred to the District
Hospital
Beli,
Allahabad
and
were
medically examined on 06.8.1977 by the
Medical Officer on Emergency Duty at
Tej Bahadur Sapru Hospital, Allahabad.

The injured Prabhu was examined
by Dr. B.B. Singh on 06.08.1977 at 11:55
pm. The injuries found on the person of
Prabhu, are as follows:

" 1. Lacerated wound 1" x 1/4" x
skin deep on the left side, forehead.

2. Abraded contusion 11⁄2" x 3/4"
on the right side of face.

3. Contusion 2" x 1/2" on the
right side of chest front middle.

4. Abrasion 3/4" x /4" on the
right side chest front.

5. Contusion 4" x 1" on the face
and upper part of the left thigh."

The
injured
Pran
was
also
examined by Dr. B.B. Singh, at almost
the same time. The following injuries
were found on the person of Pran:

" 1. Abraded contusion 2" x 1/2"
on the right side chest-front.
876 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Abrasion 1/4" x 1/4" on the
bridge of nose.

3. Abraded contusion 1" x 1/2" on
the left side forehead.

4. Contusion 31⁄2" x 11⁄2" on the left
side shoulder back.

5. Abraded contusion 4" x 1" on
the back of left fore-arm, upper portion.

6. Lacerated wound 1/2" x 1/4" x
muscle deep on tip of left finger."

The injured Rajaram was also
examined almost at the same time, by Dr. B.B.
Singh. Following injuries were found on the
person of Rajaram:

"1. Lacerated wound 1 3⁄4" x 1/2" x
bone deep on the right side of the forehead.

2. Lacerated wound 11⁄2" x 1/2" x
scalp deep on the right side head, 4" above
right ear.

3. Abraded contusion 1" x 1/2" on the
right side thigh upper and outer portion."

Though according to the prosecution,
Chandan had sustained injuries but no injury
report was placed on record.

The injured Prabhu (real brother of
the first informant) died in the Hospital on
07.08.1977 at 10:05 pm. His Post Mortem was
conducted by Dr.V.B. Sahai on 09.08.1977 at
2:00 pm. Following ante-mortem injuries were
found on the dead body of Prabhu:

"1. Lacerated wound 1" long
placed transversely on the lateral angle of
left eye- brow 1/4" x bone deep.

2. Abrasion 11⁄2" x 3/4" on the ride
side of face.

3. Contusion 2" x 1/2" on the right
side of chest in the mid-clavicular line at
the level of 5th rib.

4. Abraded contusion on the
Posteo-lateral side of left neck.

5. Contusion obliquely downwards
and medially 4" long 1" wide, on left thigh
in the middle."

On internal examination, there was
haemorrhage under the skull more on left
temporal region. Fracture of skull, left
parietal and temporal had irregular fracture
lines, massive extra-dural haemorrhage and
a big clot present on the left temporal
region. Brain liquefied. In the chest, there
was no fracture of ribs but there was some
haemorrhage in the underline tissue on the
site of external injury of chest. In Doctors'
opinion, the cause of death was as a result
of injury of head and brain.

After the receipt of the post
mortem
report,
the
accused
were
prosecuted under section 304 IPC read with
section 323 IPC.

During
the
course
of
the
investigation, statement of the witnesses
were recorded, site plan was prepared and
incriminating material was collected and
charge sheet was submitted on 12.09.1977.
The case was committed to the Court of
Sessions on 17.08.1980 and charges were
framed against all the four accused persons
on 18.11.1980 under section 302 read with
34 IPC for the murder of Prabhu and
charge under Section 307 read with 34 IPC
for the injures caused to Pran and Rajaram.
5 All. Lakhan & Ors. Vs. State of U.P.
877
PROSECUTION EVIDENCE

5. The accused persons pleaded not
guilty to the charges and the trial
proceeded. The prosecution in order to
prove its case, had examined seven
witnesses
and
produced
relevant
Exhibits/Documentary Evidence.

1. P.W.-
1Rajaram

First Informant/Injured
Witness-Proved
FIR
(Exhibit Ka-1)
2. P.W.-2Pran

Brother of the first
informant/Injured
Witness

3. P.W.-3
Dr.V.B.
Sahai

Conducted
the
post
mortem-proved
the
same (Exhibit Ka-2)

4. P.W.-4 R.P.
Mishra

Investigating Officerproved the site plan
(Exhibit
Ka-3)
and
Charge Sheet (Exhibit
Ka-4)

5. P.W.-5
Ram
Krishna
Dubey
Constable
MoharirScribe
of
the
FIR
(Exhibit
Ka-1)
and
proved
G.D.
EntryReport No.24 at hours
on 06.08.1977 (Exhibit
Ka-5). He had also
converted
the
case
under section 308 IPC
to section 304 IPC on
10.08.1977, i.e. G.D. at
Report No. 28 Time
20:35 hours (Exhibit
Ka-6).

6. P.W.-6 Dr.
B.B. Singh

Proved
the
injury
report
of
Prabhu
(deceased), Pran and
Rajaram, i.e. (Exhibits
Ka-7, Ka-8 and Ka-9).

7. P.W.-7
Dr.R.R.
Verma
Proved
the
Panchayatnama
(Exhibit
Ka-10),
Challan Nash (Exhibit
Ka-11), Photo Nash
(Exhibit
Ka-12),
Report to the Chief
Medical Officer for the
post mortem (Exhibit
Ka-13).

In
support
of
their
version,
following documents were relied by the
prosecution and its contents were proved,
viz

Exh.No.

Details
Proved By

Ka-1
F.I.R.
P.W.1 and
P.W.5
Ka-2
Post
Mortem
Report
P.W.3
Ka-3
Site Plan
P.W.4
Ka-4
Charge Sheet
P.W.4
Ka-5
G.D. Report No.
24 Time 16 hours
on 06.08.1977
P.W.5
Ka-6
G.D. Report No.
28 Time 20-34
hours 10.08.1977
P.W.5
Ka-7
Injury Report of
Injured Prabhu
P.W.6
Ka-8
Injury Report of
Injured Pran
P.W.6
Ka-9
Injury Report of
Injured Rajaram
P.W.7
Ka-10
Inquest Report
P.W.7
Ka-11
Challan Nash
P.W.7
Ka-12
Photo Nash
P.W.7
Ka-13
Report
to
the
Chief
Medical
Office for the Post
P.W.7
878 INDIAN LAW REPORTS ALLAHABAD SERIES
Mortem

P.W.1
Rajaram,
was
the
first
informant and an injured eye-witness. He
deposed in his examination-in-chief that he
knew all the four appellants Lakhan,
Deshraj, Kallu and Kaleshwar, Deshraj and
Kaleshwar were real brothers and Lakhan
was the cousin brother of Deshraj. Kallu
was the brother-in-law of Deshraj. The first
informant were four brothers, himself,
Chandan, Prabhu and Nukhai. Pran was his
cousin brother. His real brother Prabhu was
killed on the fateful day. There was family
feud for food and drink. He had family
enmity with the accused persons. On the
date of incident at around 4:00 pm, his
cousin brother Pran was on his way to the
Vikrama Talab to wash his body. In the
meantime, all the four accused who stood
near their door ways, armed with lathies
assaulted Pran when he reached at their
door steps. Pran raised an alarm, then the first
informant Prabhu and Chandan reached the
spot. Kallu exhorted that they should also be
assaulted. All the accused assaulted the first
informant and his brothers with their lathies.
The villagers Sukuru, Gurdeen and Bhaiyalal
also reached the spot and witnessed the
incident. The first informant Prabhu, Pran
and Chandan, all four had received injuries.
Prabhu had received serious injuries on his
neck and was unable to speak. The said
witness further deposed that he lodged the
FIR on the next date of the incident and
proved the contents of the FIR as Exhibit Ka1. He could not lodge the FIR in time as he
was too scared with the accused persons.
After lodging the FIR, they went to Beli
Hospital for the medical examination. Due to
the injuries caused, Prabhu died on the third
day at the Beli Hospital.

In his cross-examination, the first
informant deposed that though they had
cordial family relations with the appellants
but subsequently, their relations soured.
Apart from the family tussle, there was no
other enmity. Kallu stayed away from his
village but on the date of the incident, he
was present in his village as the sister of
Kallu was married to Deshraj. Before the
incident, no other incident of mar-peet took
place between the parties. Even this
incident took place suddenly. On the date
of incident, he, Chandan and Prabhu had
gone for their job and returned back to their
homes at around 4:00 pm. In his crossexamination, this witness clarifies that at
the time of the incident, Pran was returning
from the Vikrama Talab after washing his
body. He categorically denied that at the
time of the incident, Pran was on his way to
Vikrama Talab to wash his body. It was
wrongly mentioned in the FIR. The
incident took place in front of the door
steps of the accused persons under the
Kaitha tree. When the incident took place
he was busy having food in his house. Even
Chandan was at his home. He had returned
home about 15 minutes back. When he
heard the noise, he came out and saw that
the accused were assaulting Pran with their
lathies. He, Chandan, Pran and Prabhu all
were unarmed.

Pran was given 4 to 6 lathi blows.
After Pran, the accused assaulted Prabhu
for more than 25 times. Chandan was also
given about 25 blows but he had received
only two lathi blows of Kallu and Deshraj,
due to which he fell down. Kaleshwar and
Lakhan did not assault him. Further the
said witness deposed that he did not see
any injuries on the body of the appellants.
If they had received any injuries, he was
not aware as to how they were caused. He
further clarified that neither he nor his
brothers carried any weapon nor assaulted
the appellants. Due to the fear from the
5 All. Lakhan & Ors. Vs. State of U.P.
879
accused, he went to the Police Station on
the next day at around 2:00 pm which is at
the distance of about 6 miles from his
village. Chandan had received injuries and
was medically examined. He denied having
assaulted accused and in order to save
themselves, they had lodged a false FIR.

P.W.2- Pran, is also an injured
eye-witness and the cousin brother of the
first informant. In his examination-in-chief,
he deposed that on the date of incident at
around 4:00 pm, he was returning back
from the Vikrama Talab, after washing his
body. When he reached near the Kaitha
tree, at the door steps of Deshraj, he met
Deshraj, Kallu, Kaleshwar and Lakhan,
armed with lathies. When he reached near
the Kaitha tree, all the accused started
assaulting him. Then he raised an alarm.
Hearing the noise, Prabhu, Chandan and
Rajaram reached the spot. The accused
assaulted Prabhu, who fell down and
received severe injuries on his neck. Raja
Ram and Chandan were also assaulted. Due
to the injuries, he became unconscious and
was medically examined at Beli Hospital.

During
cross-examination,
he
deposed that on the date of incident, at
around 4:00 pm, he was returning back
after working in his fields. He went straight
to Vikrama Talab washed his body and was
returning back when the incident took
place. When he was at the distance of about
10-15 pace, he saw the accused armed with
lathies. He could not make out as to why
the accused were standing. The first lathi
blow was given on his back, due to which
he fell down and remained unconscious.
While he was lying down, he was given
several lathi blows, he shouted and raised
an alarm. In his cross-examination further
deposed that after returning from his fields,
he was unarmed and was not even carrying
the Khurpi. Prabhu first reached to rescue
him, thereafter Chandan. The accused
assaulted Prabhu and whosoever came was
assaulted. Chandan, Prabhu and Rajaram
were unarmed. He was not aware as to any
injuries were caused to the appellants or as
to how it was caused. It was incorrect to
say that he and his brothers came at the
door steps of Deshraj and assaulted them.
Chandan had also received injuries and was
medically examined at the Hospital. He
denied causing injuries to the accused and
in order to save themselves, they had
lodged a false FIR.

P.W.-3 Dr. V.B. Sahai, had
conducted the post mortem of the deceased
Prabhu who was brought by Constable C.P.
1046 Altaf Hussain. The deceased was
aged about 35 years and died on
08.08.1977 at around 10:05 pm in the
Hospital. Following injuries were found on
the dead body of Prabhu:

"1. Lacerated wound 1" long
placed transversely on the lateral angle of
left eye brow 1/4" x bone-deep.

2. Abrasion 11⁄2" x 3/4" on right
side of hip.

3. Contusion 3" x 1/2" on right side
of chest in mid-clavicular line at the level
of 5th Rib.

4. Abraded contusion on the post
lateral side of left neck.

5. Contusion obliquely downwards
and medially 4" long, 1" wide on left thigh
in the middle."

The said witness had proved the
post mortem report as Exhibit Ka-2 which
was in his own handwriting. He deposed
880 INDIAN LAW REPORTS ALLAHABAD SERIES
that the injuries could have been caused
with lathi and was sufficient in ordinary
course of nature to cause death. In his
cross-examination, he deposed that it is
difficult to say that in case, blood would
have been arranged, then the patient could
have survived.

P.W.-4
R.P.
Mishra,
the
Investigating Officer deposed that in his
presence the FIR was registered and
investigation was entrusted to him. He
recorded the statement of the witnesses
and made a spot inspection and site plan,
which he proved as Exhibit Ka-3. On
10.08.1977, he converted the case from
308/323 IPC to section 304/23 IPC. On
25.08.1977, he recorded the statement of
the accused and submitted the charge
sheet on 12.09.1977 which he proved it
as Exhibit Ka-4.

In
his
cross-examination,
he
deposed that site plan was prepared at the
pointing of the witnesses and Rajaram
was also present. Injured was sent for
Medico
Legal
Examination
on
06.08.1977. In the site plan, he had not
shown the distance between the house of
Prabhu and Deshraj. While recording the
statement of the accused at the Police
Station, he did not see any injuries on the
body of the accused.

P.W.-5 Ram Krishna Dubey,
Constable Moharir deposed that the Chik
Report was his Tehrir and signed by him
which was dictated by first informant
Raja Ram and was read out to him and
had proved it as Exhibit Ka-1. He also
proved the G.D. Entry as G.D. Rapat No.
24 at 16 hours dated 06.08.1977 and
proved it as Exhibit Ka-5. He also
deposed that after the receipt of the post
mortem report of the deceased Prabhu,
the case was converted by him into
section 304 IPC and proved it as G.D.
Entry No.24 at 20-35 hours dated
10.08.1977.

In
his
cross-examination,
he
deposed that he had sent Rajaram and
other injured to the Hospital for their
medical examination with their Majrubi
Chitthi. From the Sarai Aqil Hospital, the
injured was referred the District Hospital
Beli.
Chandan
did
not
accompany
Rajaram to the Hospital.

The said witness was re-examined and
deposed that on 06.08.1977, Chandan came and
Majrubi Chitthi was given to him but was not
aware that any Medico Legal Report of
Chandan was given at the Police Station or not.

P.W.-6 Dr. B.B. Singh, had medically
examined the first informant and all the injured.
He deposed that on 06.08.1977 he was posted
as Medical Officer, T.B. Sapru Hospital and
examined the injuries of Prabhu at 11:55 pm
and found following injuries on his body:

" 1. Lacerated wound 1" x 1/4" x
skin deep on the left side, forehead.

2. Abraded contusion 11⁄2" x 3/4"
on the right side of face.

3. Contusion 2" x 1/2" on the right
side of chest front middle.

4. Abrasion 3/4" x /4" on the right
side chest front.

5. Contusion 4" x 1" on the face
and upper part of the left thigh."

The condition of the patient was
bad and was unconscious and was admitted
in the Hospital. His injuries were not kept
5 All. Lakhan & Ors. Vs. State of U.P.
881
under observation and X-ray was advised.
Injuries nos.2 to 5 were simple and had
been caused by some blunt object. Duration
was about 11⁄2 day and proved it as Exhibit
Ka-7.

On the same date, he examined the
injury of Pran at 11:50 pm and following
injuries were found on his body:

"1. Abraded contusion 2" x 1/2" on
the right side chest-front,

2. Abrasion 1/4" x 1/4" on the
bridge of nose.

3. Abraded contusion 1" x 1/2" on
the left side forehead.

4. Contusion 3" x 11⁄2", on the left
side shoulder back.

5. Abraded contusion 4" x 1", on
the back of left fore-arm, upper portion.

6. Lacerated wound 1/2" x 1/4"
muscle deep on tip of left finger."

All the injuries were simple,
caused by blunt weapon, except injury no.
2, which had been caused by friction by
some hard object. Duration was 11⁄2 day and
proved it as Exhibit Ka-8.

On the same day, he examined the
first informant Rajaram at 11:55 pm and
found following injuries on his body:

" 1. Lacerated wound 1" x 1/2"
bone deep on the right side of the
forehead.

2. Lacerated wound 1 1⁄2" x1/2" x
scalp deep on the right side head, 4" above
right ear.
3. Abraded contusion 1" x 1/2" on
the right side thigh upper and out portion."

All the injuries were simple caused
by blunt weapon such as lathi. Duration
was 11⁄2 day and proved it as Exhibit Ka-9.
He further deposed that all the three injured
had received injuries on 05.08.1977 at
around 4:00 pm. In his cross-examination,
he deposed that 11⁄2 day means 36 hours.
Duration may differ 4-6 hours on either
side.

P.W.-7 R.R. Verma, deposed that
he was posted as Second Officer at P.S.
Cantt and after the receipt of information
regarding the death of Prabhu from T.B.
Sapru Hospital, he reached the Hospital and
prepared the Inquest Report which was in
his handwriting and signature and proved it
as Exhibit Ka-10. He even proved Challan
Nash Exhibit Ka-11, Photo Nash Exhibit
Ka-12, Report CMO vide Post Mortem,
Exhibit -13 which he sealed and forwarded
to Constable 1046 Altaf Ali and 538 Om
Prakash.

EXAMINATION OF ACCUSED
UNDER SECTION 313 CR.P.C.

6. The accused appellants in their
statement recorded under Section 313
Cr.P.C. had admitted that they assaulted the
deceased in exercise of their right of private
defence. They stated that they were sitting
in front of their house, enjoying Hukka,
then Pran and his brothers came at their
door steps armed with lathies and assaulted
Deshraj. In order to save Deshraj, other
accused/appellants intervened and assaulted
the first informant and his brothers in
exercise of their right of private defence
wherein Pran and Prabhu had received
injuries. They also got their injuries
examined.
882 INDIAN LAW REPORTS ALLAHABAD SERIES
DEFENCE WITNESSES

7. In support of their defence, the
accused appellants produced and examined
Dr. S.P. Sharma, Surgeon, Moti Lal Nehra,
Hospital Allahabad as D.W.1, who deposed
that on 10.08.1977, he was posted at Moti
Lal Nehru Hospital, Allahabad as Doctor
on Emergency Duty. On the said date, at
around 7:15 pm, he examined the injuries
of Deshraj, Kallu, Lakhan, Kaleshwar.
Following injuries were found on the body
of Deshraj:

"1. Lacerated wound 3" x 1/4"
scalp deep on the frontal bone 31⁄2" above
the root of nose. Pus was found in the
wound.

2. Lacerated wound 11⁄2" x 1/4" x
scalp deep on the right parietal bone 3"
above the right ear. Pus was present.

3. Lacerated wound 21⁄2" x 1/4" x
scalp deep on the left parietal bone 4"
above the left year. Pus was present.

4. Lacerated wound 1/2" x 1/4" x
muscle deep on the right lower leg medial
aspect 21⁄2" above the medial maleolus.

5. Traumatic swelling was also
present around the ankle. Pus was present.

6. Contusion 3" x 1" black in
colour with traumatic swelling on the right
lower fore-arm.

7. Abraded contusion 1/2" x 1/8"
on the right shoulder at its top. Scab had
been formed.

8. Lacerated wound 1/2" x 1/4" on
the left little finger with traumatic swelling,
around the wound."
He further stated that traumatic
swelling was also present around the ankle.
Pus was present. Injuries were five days
old. Injury nos. 4, 5 and 7 were kept under
observation subject to X-ray. Rest were
simple injuries and have been caused by
blunt weapon.

On the same day, he examined
Kallu at around 7:30 pm and found
following injuries on his body:

" 1. Lacerated wound 11⁄2" x 1/4" x
scalp deep on the front of head 4" above
the root of nose in the mid-line. Pus was
present.

2. Abrasion 1/2" x 1/4" scab had
been formed, 12" below and lateral to the
left elbow- joint."

He proved the injuries as Exhibit
Kha-2, which was in his own handwriting
and signature.

On the same day, he examined the
injuries of Lakhan at 7:45 pm, he examined
Lakhan and found following injuries on his
body:

"1. Scabbed abrasion 2" x 1/8" on
the right middle fore-arm in its lateral
aspect 4" below the elbow-join.

2. Scabbed abrasion 1" x 1/2" on
the lateral aspect of left thigh, 4" below the
anterior superior iliac spine."

The said injuries were proved as
Exhibit Kha-3, which was prepared in his
own handwriting and signature.

At around 7:50 pm, he examined
the injuries of Kaleshwar and found
following injuries on his body:
5 All. Lakhan & Ors. Vs. State of U.P.
883
"1. Lacerated wound 11⁄2" x 1/8" x
scalp deep on the top of head, 5" above the
left ear. Pus was present with scabs on both
ends of the wound.

2. Scabbed abrasion 2" x 1/2" just
below the membrium sterim in the front of
chest."

The injuries were five days old,
simple in nature and caused by blunt
weapon which was proved as Exhibit Kha4 and was prepared in his own handwriting
and signature.

All the injuries were caused on
05.08.1977 at around 5-6:00 pm. In his
cross-examination, he deposed that the
injured did not bring any Majrubi Chitthi
nor had any report. He could not remember
whether after Medico Legal Examination,
he had intimated the Police Station. Though
X-ray was advised to Deshraj but is
unaware whether X-ray was done or not.
There is least chance of sustaining injury
nos.1, 2 and 3 to Deshraj after falling
down. He mentioned the duration of five
days after looking to the condition of the
injuries and not on the statement of injured.
There was no swelling on injury nos. 1, 2
and 3 of Deshraj but no swelling in injury
no. 4. It is incorrect to say that the injured
did not receive any injury and were
fabricated.

SUBMISSION ON BEHALF OF
THE PROSECUTION

8. Learned Additional Government
Advocate appearing on behalf of the State
submitted that the prosecution has proved
its case beyond reasonable doubt. The date,
time, place and manner of incident has
been proved by the prosecution witnesses.
P.W.-1 Rajaram and P.W.-2 Pran who are
the injured eye-witnesses of the occurrence,
who in their testimonies, have deposed that
the deceased Prabhu was severely assaulted
by the appellants with lathies blows, who
subsequently, died on 09.08.1977. There
are
injures
eye-witnesses
who
have
supported the prosecution case and the
incident is also corroborated with the
Medico Legal Reports. The prosecution has
also explained the delay in lodging of the
FIR. P.W.-3 Dr. V.B. Sahai had proved the
post mortem report of the deceased Prabhu
(Exhibit
Ka-2)
which
was
in
his
handwriting
and
deposed
in
his
examination-in-chief that the ante mortem
injuries could have been caused by lathi,
which was sufficient in the ordinary course
of nature to cause death. P.W.-4 Sri R.P.
Mishra, who was the Investigating Officer,
had proved the site plan (Exhibit Ka-3) and
the charge sheet (Exhibit Ka-4). P.W.-5
Ram Kishan Dubey, Constable Moharrir
was the Scribe of the first information
report and proved its G.D. Entry dated
06.08.1977
and
10.08.1977
regarding
conversion of the case from section 308
IPC to section 304 IPC. P.W.-6 Dr. B.B.
Singh had proved the injury report of
Prabhu, Pran and Rajaram as Exhibits Ka7, Ka-8 and Ka-9 respectively. P.W.-7 R.R.
Verma had proved the Panchayatnama
(Exhibit Ka-10), Challan Nash (Exhibit Ka11), Photo Nash (Exhibit Ka-12) and
Report of the C.M.O. (Exhibit Ka-13).

SUBMISSION ON BEHALF OF
THE DEFENCE

9. In their defence, learned counsel
for the surviving appellants submitted that
the prosecution has failed to establish the
genesis of the occurrence, therefore, the
appellants are entitled to benefit of doubt
and should be acquitted. The trial Court has
grossly erred in convicting the appellants. It
884 INDIAN LAW REPORTS ALLAHABAD SERIES
was further submitted that though the
accused had caused injuries but it was
caused in exercise of their right of private
defence. No specific role was attributed to
the appellants. All the accused appellants
had also received injures in the same
incident, which were not at all explained by
the prosecution.

Firstly, it has been asserted that the
genesis of the incident has not been proved.
Secondly, it has been submitted that as the
incident took place in front of the house of
the accused persons, therefore, it not only
supports the stand of the accused regarding
the exercise of right of private defence but
also creates a doubt in the prosecution case
because P.W.1 in his testimony had deposed
that the house of the accused was on the way
while his cousin brother Pran was returning
from the Vikrama Talab. Thirdly, the severe
injuries caused to the accused has not been
explained by the prosecution. This cast doubt
in prosecution case especially when there are
only two witnesses of fact who are also
interested witnesses. Fourthly, there are no
independent witnesses to corroborate the
incident. Fifthly, the statement of the
Investigating
Officer
corroborates
the
aggression by the informant party. PW-1
claims that Chandan was injured and was
taken to hospital, however the scribe has
contradicted his claim. This highlights the
exaggerated version of the first informant.
There is a delay of about 24 hours in lodging
of the FIR. Lastly, the injuries of the accused
persons cannot be ignored as the same are
severe injuries and all the accused were
examined by the Government Doctor D.W.1,
who was on Emergency Duty in a
Government Hospital, Moti Lal Nehru
Hospital, Allahabad who opined that all the
injuries caused were five days old, simple in
nature and caused by blunt object.

ANALYSIS AND FINDINGS

10. Upon hearing learned counsel
for the parties and the submissions raised, it
transpires that family feud existed between
the parties. Though, several persons were
injured and Prabhu was done to death but
as the prosecution had not proved the
genesis of the occurrence, which makes the
prosecution case doubtful.

P.W.-1
and
P.W.-2
in
their
testimony deposed that an old family feud
of food and drink existed and there was no
other dispute between the parties. When
P.W.-2,
cousin
brother
of
the
first
informant Pran was returning from the
Vikrama Talab after washing his body and
reached in front of the house of Deshraj,
near Kaitha tree, he met all the four
accused, armed with lathies, who started
assaulting him. The said witness could not
disclose any reason behind the alleged
incident and what was the actual motive
behind it. The prosecution witnesses in
their cross examination had deposed that
they did not see any injuries on the body of
accused Deshraj, Kallu, Lakhan and
Kaleshwar
and
did
not
give
any
explanation as to how the accused had
sustained injuries.

As far as exercise of right of
private defence is concerned, it is the
admitted case of the prosecution that when
Pran, the cousin brother of the first
informant, was returning from the Vikrama
Talab and reached in front of the house of
Deshraj, then the incident took place. The
appellants accused were sitting in front of
their house and were enjoying Hukka. The
place of incident was in front of the house
of the accused. They got apprehensive and
in order to save themselves, they attacked
5 All. Lakhan & Ors. Vs. State of U.P.
885
Pran with their lathies in exercise of their
right of private defence.

From the perusal of record, it also
transpires that the FIR was lodged after a
delay of one day, which the prosecution
had explained in their FIR that as they were
too scared from the accused, therefore, they
did not go to the Police Station to lodge the
FIR on the same date.

It has also been noticed that though
the accused had received injuries on their
body but no cross FIR was lodged by them.
They got themselves medically examined
after five days of the incident. It also
transpires
that
all
the
injured
were
medically
examined
by
Government
Doctor, Dr. S.P. Sharma, who was
produced as D.W.-1 and proved the injury
reports of Deshraj, Kallu, Lakhan and
Kaleshwar. Thus, the said injuries reports
were neither fabricated nor a forged one.
The Doctor in his examination-in-chief
deposed that the injured did not bring any
Majrubi Chitthi nor any written report. He
could not recollect whether after examining
the injured, he had informed the Police
Station or not. Though X-ray was advised
to Deshraj but was unaware whether X-ray
was done or not. The injury nos.1, 2 and 3
of Deshraj cannot be sustained by falling
down. He had mentioned the duration of
the injuries of five days after looking to the
condition of the injuries. He categorically
denied that the injuries were fabricated or a
forged one.

The prosecution has not produced
any independent witness and examined
only two witnesses of fact, Rajaram P.W.-1
and Pran P.W.-2, who were close relatives
and were interested witnesses, which also
doubts the prosecution story. Though
according to the prosecution version,
Chandan had also received injuries and was
taken to the Hospital but no injury report
was produced to corroborate the same. The
injures caused to the accused persons
cannot be ignored as the same were serious
injuries and even were testified by the
Government Doctor, D.W.-1, who was an
Emergency
Duty
on
a
Government
Hospital, namely, Moti Lal Nehru Hospital,
Allahabad.

After considering the material
placed on record and the submissions
advanced, it gives an impression that, even
if, the allegations against the appellants are
accepted as true, they are yet entitled for
acquittal, on a plea of right of private
defence. It is the admitted case of the
prosecution that Pran was returning from
Vikrama Talab after washing his body and
when he reached in front of the house of
the appellants, the incident took place.
Therefore, it was the prosecution who was
aggressor. As the appellants saw Deshraj
being assaulted, they in exercise of their
right of private defence assaulted Pran and
all others who intervened. Though, Trial
Court had noticed the defence but failed to
discuss the same. Neither the defence
witnesses nor the defence Exhibits and the
injuries sustained have been commented by
the Trial Court. The prosecution witnesses,
in their testimony, have not revealed
anything about the injuries sustained by the
defence nor have disclosed the genesis of
the occurrence. Though they had deposed
about the incident but remained silent
throughout on these aspects. The defence
has proved its injuries which were caused
in the same incident. Thus, the prosecution
has suppressed the genesis and origin of the
occurrence and failed to explain the injuries
on the person of the accused, therefore, an
adverse inference can be drawn against the
prosecution
for
not
offering
any
886 INDIAN LAW REPORTS ALLAHABAD SERIES
explanation much less a plausible one. The
prosecution has not brought on record the
true version of the incident, therefore, it is
to be itself squarely, blamed for the failure
of the case.

The Hon'ble Supreme Court in
State of Rajasthan vs. Madho and
others, AIR 1991 SC 1065, had observed
that:

 "If the prosecution witnesses
shy away from the reality and do not
explain the injuries caused to the
respondents herein, it casts a doubt on
the genesis of the prosecution case since
the evidence shows that these injuries
were sustained in the course of the same
incident. It gives the impression that the
witnesses are suppressing some part of
the incident."

Referring to the observations of the
Hon'ble Apex Court in Lakshmi Singh
and others vs. State of Bihar, (1976) 4
SCC 349, wherein it has been held that:

 "12. ...... 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."

Recently, the Honb'le Supreme
Court by reiterating the observations as
referred above in Nand Lal and others vs.
State of Chhatisgarh, (2023)2 SCR 276,
had held as under:

 " 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 improbability with that of the
prosecution more particularly when some
of the witnesses have lied by stating that
they did not see any injuries on the person
of the accused "

It has been further held that in case
of proven previous enmity, a possibility of
false implication cannot be ruled out. It has
been asserted that as far as delay in
registration of the FIR is concerned, the
immediate lodging of the FIR removes
suspicion with regard to over implication of
number of persons, particularly, when the
case involved a fight between two groups.
When the parties are at loggerheads, the
immediate lodging of the FIR, provides
credence to the prosecution case.

Thus non-explanation of injuries,
on the persons of the accused, creates a
doubt, as to whether, the prosecution has
brought on record, the real genesis of the
incident. 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 has to scrutinize
5 All. Meenu Rajvanshi Vs. Brijesh
887
the evidence with care. Each case
presents its own features. In some case, the
failure of the prosecution to account for the
injuries 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
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 to the prosecution to
prove that those injuries were caused to the
accused in self defence by the complainant
party.

CONCLUSION

11.