# Lohar & Ors v. State 880 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 9 ILRA 879
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-25
- **Case number:** Criminal Appeal No. 1267 of 1984
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lohar-ors-v-state-880-indian-law-reports-allahabad-series-54762
- **Pages:** 13

## Headnote

Issue for Consideration
The case involved the conviction of appellants
for offenses for murder and house trespass,
stemming from a property dispute and a
subsequent incident in 1983 where one person
died.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 304/34, 452, 323/34Failure of prosecution to explain accused's
injuries-Medical
evidence
Vs.
Ocular
Testimony-Although
witnesses
alleged
that the accused were armed with bhala
and Farsa but the medical reports showed
none of the injured sustained injuries
corresponding to these sharp weapons,
all injuries were caused by hard and blunt
weapons-Based on Apex Court judgments,
non-explanation of a major injury on the
accused renders the prosecution story
doubtful and the witnesses unreliable,
entitling the accused to the benefit of
doubt-Appeal allowed.
Held
The court found out that the prosecution failed
to explain a material injury sustained by the
accused.
the
court
concluded
that
the
prosecution was not presenting the true facts of
the case and was trying to conceal something,
which made the entire prosecution story
doubtful.(Para 24 to 35) (E-6)

Case law Cited:
Mohar Rai Vs State of Bihar, (1968) 3 SCR
525,State of Gujarat Vs Bai Fatima, (1975) 2
SCC 7, Lakshmi Singh & Ors Vs State of Bihar,
(1976) 4 SCC 394, Nand Lal & Ors Vs State of
Chhattisgarh, (2023) 10 SCC 470, Lakshmi
Singh & Ors Vs State of Bihar,(1976) 4 SCC 394,
State of Rajasthan Vs Madho (1991) Supp (2)
SCC 396,State of M.P. Vs Mishri Lal (2003) 9
SCC 426 & Nagarathinam Vs State (2006) 9 SCC
57-referred to.
List of Acts
Criminal Procedure Code, 1973, Indian Penal
Code,1860.

List of Keywords
non-explanation
of
injuries,
credit-worthy,
ballam, farsa, corresponding injury,gun shot
injury,
sample
of
blood
stains,
crossexamination, independent witness, daughter-inlaw, benefit of doubt.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 1267 of 1984
From the Judgment and Order dated 25.09.2025
of the High Court of Judicature at Allahabad.
Lohar & Ors Vs. State

Appearances for Parties
Counsel for Appellant(s)
Alok Ranjan Mishra, Ashok Kumar Pandey, G.S.
Chaturvedi, Rohit Shukla Viveka Nand Rai
Counsel for Respondent(s)

## Text

_Characters 0–39,858 of 43,558. This is a partial read: ask again with offset=39858 for what follows._

9 All. Lohar & Ors. Vs. State
879
the
proposed
amendment,
the
plaintiff-respondent has tried to change the
cause of action for filing the divorce
petition
by
adding
new
ground
is
concerned, is also misconceived for the
reason that Section 13 of the Hindu
Marriage Act, 1955 provides that a petition
for divorce can be filed by either husband
or wife on the grounds mentioned in the
Section 13 of the Hindu Marriage Act,
1955. There is no prohibition for either of
the party to file a petition on one or more
grounds specified in Section 13 of the
Hindu Marriage Act. Even assuming that
by the proposed amendment, a new ground
is being sought to be added by the plaintiffrespondent in his divorce petition, will not
be an impediment for moving such an
application. Decision of a petition under
Section 13 of the Hindu Marriage Act,
1955 on one ground will not operate as res
judicata for filing divorce petition on other
grounds as specified in Section 13 of the
Hindu Marriage Act, 1955. Once the party
is permitted to file a second petition even
after dismissal of the first petition on a
separate ground, there is no impediment in
taking
that
ground
by
moving
an
application for amendment in the petition.
Such an amendment can be allowed in
order
to
avoid
the
multiplicity
of
proceedings and for the reason that all the
dispute between the parties shall be
considered and decided in one proceeding
instead
of
filing
successive
separate
petitions, in case the ground so exists.

18. Further with the help of learned
counsel for the petitioner as well as counsel
for the respondent, I have perused the
application for divorce filed by the plaintiffrespondent No. 1 from which it is apparently
clear that the petition was filed on two
grounds namely, desertion and cruelty. By
the proposed amendment, which are noted
above, it cannot be said that the plaintiff has
tried to introduce a new ground or cause of
action in his divorce petition rather, the
proposed amendments are elaboration of
facts, which came to the knowledge of the
plaintiff-respondent during pendency of the
divorce petition as the same may amount to
cruelty, if the plaintiff-respondent succeeds in
proving those allegations by leading cogent
evidence.

19. In view of the discussion made
above, I am of the opinion that no illegality
has been committed by the Principal Judge
(Family Court), Hamirpur in allowing the
application filed by the plaintiff-respondent
for amendment in pleadings.

20. Consequently, the writ petition
lacks merit and is dismissed. Since the
Marriage Petition No. 291 of 2020 is
pending, Principal Judge (Family Court)
Hamirpur is directed to consider and decide
the aforesaid proceeding in accordance with
law, expeditiously, after giving opportunity
of hearing to the parties concerned as well as
opportunity to lead evidence in support of
their case and without granting unnecessary
adjournments to either of the parties provided
that there is no other legal impediment,
keeping in view the statutory mandate of
Section 21-B of the Hindu Marriage Act.
----------
(2025) 9 ILRA 879
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.09.2025

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Appeal No. 1267 of 1984

Lohar & Ors. ...Appellants
Versus
State ...Respondents
880 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Alok Ranjan Mishra, Ashok Kumar Pandey,
G.S. Chaturvedi, Rohit Shukla, Vivek Nand
Rai

Counsel for the Respondents:

Issue for Consideration
The case involved the conviction of appellants
for offenses for murder and house trespass,
stemming from a property dispute and a
subsequent incident in 1983 where one person
died.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 304/34, 452, 323/34Failure of prosecution to explain accused's
injuries-Medical
evidence
Vs.
Ocular
Testimony-Although
witnesses
alleged
that the accused were armed with bhala
and Farsa but the medical reports showed
none of the injured sustained injuries
corresponding to these sharp weapons,
all injuries were caused by hard and blunt
weapons-Based on Apex Court judgments,
non-explanation of a major injury on the
accused renders the prosecution story
doubtful and the witnesses unreliable,
entitling the accused to the benefit of
doubt-Appeal allowed.
Held
The court found out that the prosecution failed
to explain a material injury sustained by the
accused.
the
court
concluded
that
the
prosecution was not presenting the true facts of
the case and was trying to conceal something,
which made the entire prosecution story
doubtful.(Para 24 to 35) (E-6)

Case law Cited:
Mohar Rai Vs State of Bihar, (1968) 3 SCR
525,State of Gujarat Vs Bai Fatima, (1975) 2
SCC 7, Lakshmi Singh & Ors Vs State of Bihar,
(1976) 4 SCC 394, Nand Lal & Ors Vs State of
Chhattisgarh, (2023) 10 SCC 470, Lakshmi
Singh & Ors Vs State of Bihar,(1976) 4 SCC 394,
State of Rajasthan Vs Madho (1991) Supp (2)
SCC 396,State of M.P. Vs Mishri Lal (2003) 9
SCC 426 & Nagarathinam Vs State (2006) 9 SCC
57-referred to.
List of Acts
Criminal Procedure Code, 1973, Indian Penal
Code,1860.

List of Keywords
non-explanation
of
injuries,
credit-worthy,
ballam, farsa, corresponding injury,gun shot
injury,
sample
of
blood
stains,
crossexamination, independent witness, daughter-inlaw, benefit of doubt.

Case Arising from
CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 1267 of 1984
From the Judgment and Order dated 25.09.2025
of the High Court of Judicature at Allahabad.
Lohar & Ors Vs. State

Appearances for Parties
Counsel for Appellant(s)
Alok Ranjan Mishra, Ashok Kumar Pandey, G.S.
Chaturvedi, Rohit Shukla Viveka Nand Rai
Counsel for Respondent(s)

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Vivekanand Rai, learned
counsel for the surviving appellant no.3 and
Sri Rajesh Kumar Gupta, learned AGA for
the State.

2. The instant appeal has been filed
by the appellants being aggrieved by
judgment and order dated 04.05.1984
passed by the Ist Additional Sessions
Judge, Mathura in S.T. No. 272 of 1983
whereby
the
appellants
herein
were
convicted for the offence under Section
304/34 IPC and were sentenced to undergo
seven years rigorous imprisonment with
fine of Rs. 1,000/- and in default of
payment, six months further imprisonment.
They were further convicted and sentenced
under Section 452 IPC and were directed to
undergo one year rigorous imprisonment.
They were also convicted and sentenced for
the offence under Section 323/34 lPC and
9 All. Lohar & Ors. Vs. State
881
they were directed to undergo six months
imprisonment with a fine of Rs. 500/- and
in default of payment of fine, they were
further directed to undergo three months
simple imprisonment.

3. During the pendency of the
instant appeal, the appellants no.1 and 2
have died and their appeal was abated on
23.10.2019. The appellant no.4 has also
died and his appeal was also abated vide
order 28.08.2025. Thus the instant appeal is
surviving only on behalf of appellant no.3,
who is represented by Sri Vivekanand Rai,
Advocate .

4. As per the prosecution story, the
brief facts are that the deceased Jeevan was
the son of Hukami. Hukami had four sons
namely,
Nathhi,
Lohare,
Jeevan
and
Kishan. All the four brothers were residing
together in a joint family. Nathhi died
issueless
leaving
behind
his
widow
Jhanjhaniya. Jhanjhaniya has also died
prior to the occurrence of this case. After
the death of Nathhi and Jhanjhaniya, all the
three brothers namely Lohare, Jeevan and
Kishan used to cultivate the land held by
Nathhi and Jhanjhaniya. In the instant case,
Lohare is the main accused and the other
three appellants namely Bhojpal, Bhima
and Ram Hari are the sons of Lohare.
Injured P.W. 1 and Girraj are the sons of
deceased Jeevan.

5. As per the prosecution case, the
accused Bhojpal used to look after the
cultivation and lands of the family.
However, his intentions became bad and he
used the ornaments and money belonging
to the deceased Jeevan and his sons. The
informant
Sonpal
asked
the
accused
Bhojpal to partition the plot of land held by
Jhanjhiniya, then the accused Bhojpal has
disclosed that the said plots were in his
name and refused to partition the said plots.
Thereafter the complainant came to know
that the accused Bhojpal had manipulated
and got his name mutated over the plots
held
by
Jhanjhiniya.
Thereafter,
a
Panchayat was called. As per the the
decision of Panchayat, two bighas of land
belonging to Jhanjhiniya came in the share
of informant Sonpal and one bigha to his
uncle Kishan Singh. The informant Sonpal
started cultivating the land of two bighas
belonging to Jhanjhiniya w.e.f. July, 1981.

6. Kishan The uncle of informant
has also filed a revenue case against
Bhojpal. Deceased Jeevan and his son
Sonpal used to look after the said case
lodged by Kishan. The said case was
pending before the Sub-Divisional Officer,
Chhata. It is the case of the Prosecution that
due to the said case filed by Kishan, there
was enmity between the accused-appellants
herein with the informant and the other
family members. In the aforesaid backdrop,
it is stated that on 16.03.1983 at about 8:00
A.M., the informant P.W.1, Sonpal, his
brother Girraj and his father Jeevan were
present at their house at village-Rehada.
They were making preparation for reaping
the crops. It is the case of the prosecution
that the accused Ballo over heard the talks
of complainant and his father with regard to
the reaping of the crops. Soon thereafter,
the accused Lohare, Bhojpal, Bhima,
Ramhari along with other accused persons
namely Mahendra, Khema, Lal Chand,
Udai Chand Ballo and Moharpal came over
the house of the informant. The accused
Lohare was armed with Bhala (spear),
accused Ballo was armed with a Farsa and
rest of the accused persons were armed
with lathi. Accused Bhojpal assaulted the
deceased Jeevan with lathi. All the other
accused persons were armed with lathi and
caused injuries to Sonpal, Girraj, Smt.
882 INDIAN LAW REPORTS ALLAHABAD SERIES
Kashmiri Devi w/o- Jeevan and Smt. Rama
Devi w/o- Sonpal and due to the injury, the
deceased Jeevan became unconscious.
On hearing of noise of scuffle, the
witnesses Narain, Chhanno and Bhoji
reached on the spot. Thereafter, the
accused persons ran away from the
spot. The accused Lohare fell down on
a log of wood and sustained some
injuries. The report of the aforesaid
incident was lodged by the informant
Sonpal at Police Station-Barsana on
16.03.1983 at 1:30 P.M., on the basis of
which the FIR being Case Crime No.
26-A/83 under Sections 147, 148, 452,
307,
149
IPC
was
registered.
Thereafter, the medical examination of
the injured persons namely, Jeevan,
Kashmiri Devi, Sonpal, Girraj and
Rama
Devi
was
conducted
on
16.03.1983 at around 6:15 P.M. to 7:00
P.M. The following injuries were found
on the injured accused Jeevan:

 "(1) Lacerated Wound 6 Cms. X
1 Cm X bone deep on right side of Head, 9
Cms. above the right ear.

 (2)
Contused
Traumtic
Swelling on whole right hand.

 (3) Abrasion 3 Cms. X 1.5 Cms.
out-side of right cheek.

 General
condition
poor,
unconscious. Injuries No.s 1 and 2 were
kept under observation and were advised
X-ray.

 Injuries were caused by blunt
weapon. Duration half day.

 2- Injuries of Smt. Kashmiri
Devi, w/o- jeevan:

 (1) Contusion 8 Cms. X. 2.5 Cms.
on lateral side right arm, middle.

 (2) Contsion 10 Cms. X 5 Cms.
X 4 Cms. below injury No. 1.

 (3) Traumatic Swelling on whole
of the lower right fore-arm. Advised X-ray.

 Injuries were caused by blunt
weapon. Duration half day.

 3- Injuries of Sonpal P.W.-13-

 (1) Lacerated Wound 6 Cms. X-1
Cms. X bone deep Lt.Side Head. Advised
X-ray.

 (2) Contused traumatic swelling
on left side of whole of neck. X-ray
advised.

 (3) Constusion 3 Cms. x 2 Cms.
on back of lower part of left fore-arm.

 Injuries were caused by blunt
weapon. Duration Half-day.

 4- Injuries of Girraj:-

(1) Contusion 4 Cms. x 4 Cms. on
back of left arm.
 (2) Abraded contusion 6 Cms. x
1.5 Cms. back on the upper left fore-arm.

 (3) Abraded contusion 4 Cms. x 1
Cm. left side chest.

 (4) Contusion 3 Cms. x 1.5 Cms.
left scapula. Injuries were caused by blunt
object. Dureation half a day.

 5- Injuries of Smt. Rama Devi
w/o- Sonpal:-
9 All. Lohar & Ors. Vs. State
883
 (1) Contusion 1 Cm. x 1 Cm. on
the back of top of left index finger.
 Caused by blunt object. Duration
half-a-day.

7. The deceased Jeevan was
remained admitted in the District Hospital,
Mathura for about 3-4 days where the
doctors advised him to be taken to Medical
College, Agra. However, the deceased was
taken to a private hospital at Chhata. He
succumbed to his injuries after 5-6 days. It
is claimed by the prosecution that the
deceased died due to the injuries sustained
by
him
in
the
aforesaid
incident.
Subsequent thereto, the offence under
Section 304 IPC was also added. With
regard to the same incident, another FIR
being Case Crime No. 26 of 1983 being
cross case was also lodged on behalf of the
accused persons as the accused Lohare had
also sustained the injuries in the said
incident
and
he
was
examined
on
18.03.1983 by Dr. Shukla. He found one
lacerated wound 1.5 cms. x 0.5 cm. on the
lower lip in front of right lower teeth of
Lohare. The cross case was registered by
the accused Lohare on 16.03.1983 at 12:30
P.M. under Section 307 IPC against the
informant Sonpal, his brother Girraj and
one Happo.

8. The investigation was carried
out and thereupon the charge sheet was
filed against the ten accused persons for the
offence unders147, 323, 452, 304, 149 IPC.
Thereupon the case was committed for trial
and the charges were framed against all the
accused. They denied the charges and
claiemed trial. The prosecution in support
of its case examined P.W.1 Sonpal who is
the informant as well as the eye witness of
the occurrence, P.W.2, Sri Narain and
P.W.4. All are also eye witnesses of the
incident. P.W.3 is the wife of the deceased
Jeevan and also an injured witness. P.W. 5
is Dr. A.K.Gautam, who is the radiologist
of the District Hospital, Mathura and has
conducted the X-ray examination of Smt.
Kashmiri Devi and Sonpal. He also
conducted the postmortem on the dead
body of the deceased on 26.03.1983 and
found a stitched wound measuring 6 c.ms.
x 1.5 c.ms.on the head of the deceased as
also abrasions and contusions. All these
injuries were corresponding to the injuries
found on the persons of the deceased by Dr.
D.R. Sen. On internal examination Dr.
Gautam Found that the parietal and
temporal bone of the left side of the
deceased were fractured. Dr. Gautam
opined that the deceased died due to coma
which is caused by injury no.1. P.W. 6 is
Chaukidar Sri Sabhya who had taken the
dead body for postmortem. P.W.7, Dr. D.R.
Sen stated about the injuries of the
deceased Jeevan, Smt. Kashmiri Devi,
Sonpal, Girraj, Rama Devi. P.W.8 is S.I.
Virendra Kumar Tiwari, the Investigating
Officer, who investigated the case and
submitted charge sheet against the accused
persons.

9. After concluding the same, the
trial court has convicted only the four
appellants herein for the offences under
Sections 323/34, 452 land 304/34 lPC and
sentenced them as stated herein in above
and rest of the accused persons were
acquitted while giving them benefit of
doubt.

10.
Learned
counsel
for
the
appellant
submits
that
since
the
complainant Sonpal had opened fire and
caused
gunshot
injury
to
Bhojpal.
Therefore, the appellant herein acted in self
defence and thereby caused the injuries on
the complaint side and during scuffle other
injured persons also sustained injuries.
884 INDIAN LAW REPORTS ALLAHABAD SERIES
Therefore, since the appellant had acted in
self defence, they are not liable to be
convicted for the offences as alleged
against them. It is further submitted by
leanred counsel for the appellant that since
the prosecution has failed to explain the
injury sustained by the accused persons as
well. Therefore, the prosecution story as
stated is not reliable and the appellant are
liable to be acquitted giving benefit of
doubt. Learned counsel for the appellantBhima has further participated in the
incident as alleged and he has been falsely
implicated due to the animosity between
the parties being the immediate family
members due to property dispute. Learned
counsel for the appellant further submits
that as per the prosecution case, Lohare
was armed with bhala and accused Ballo
was armed with farsa. However, as per the
medical examination report none of the
injured had sustained any injury of bhala or
farsa. Therefore, the entire story of the
prosecution is nothing but a falsity.

11. Per contra, learned AGA
submits that it is admitted case of the
parties that there was animosity between
them for property dispute within the family
members, due to which the instant incident
has been caused by the accused persons. It
is further submitted by learned AGA that
the prosecution case is fully supported by
the medical examination report. Thus, the
manner of incident as alleged is fully
corroborated with the medical examination.
Though, as per the prosecution, the
appellant no.1 was attributed bhala and
there is no injury of bhala as such.
However, bhala is such a weapon, which
can be used as lathis by using blunt side of
it. Therefore, prosecution story cannot be
doubted on this ground, which is otherwise
fully
supported
by
the
prosecution
witnessesl.
The
appellant
no.3
was
categorically attributed a lathi and there are
corresponding injuries of lathi on the
injured persons as well as the deceased
person. Thus, the prosecution story qua the
appellant no.3 is fully established and the
appeal is liable to be dismissed. No
interference is called for in the sentence
awarded by the trial court to the appellants
herein.

12.
Having
heard
the
rival
submissions made by learned counsel for
the parties, this Court has carefully gone
through the record of the case.

13. P.W.1 is the complainant
Sonpal. Detailed description has been given
by him with regard to the animosity
between the parties in relation to the land
owned by Jhanjhaniya after her death.
According to this witness, the 10 accused
persons including the appellants came to
the house of the informant. The appellant
Lohare was having bhala, Ballo was having
farsa and other accused persons have lathis
in their hands. The appellant no.3 was
attributed lathi by this witness. First of all
appellant no.2, Bhojpal had assaulted with
lathi on his father. Thereupon all the other
accused persons had assaulted his father,
his brother Girraj, his mother Kashmiri
Devi and his wife. The accused persons had
assaulted his mother and wife also with
lathis. Due to the injuries sustained by his
father, he became unconscious. Hearing of
noise of scuffle, the witnesses Narain
Singh, Chhanno and Bhoji had gathered
and intervened, thereafter the accused
persons ran away from the spot. It is
categorically stated by this witness that to
save themselves they had not assaulted
with the lathis to any of the accused
persons and it has been explained that the
accused Lahare had fell down on the log of
wood lying in their house and due to which
9 All. Lohar & Ors. Vs. State
885
he had sustained injuries and he had seen
that blood was oozing out from the person
of Lohare. After the incident of assault,
they called for a tractor and thereupon they
had carried the injured to the Police Station
Barsana at around 12:00 to 1:00 P.M. After
reaching the police station, they had scribed
the report. He has proved the written report
submitted in the police station. The injured
were sent for treatment to the hospital at
Mathura where their medical examination
as conducted and his father was admitted
for 3-4 days in the hospital. However, his
condition did not improve. Thereafter, the
doctors had suggested to take him to the
hospital at Agra. As they were poor
persons, they did not carry him to Agra for
treatment rather took him to Chhata and got
his treatment by a private doctor. After 5-6
days of carrying his father to Chhata, his
father had died . Thereafter, he had carried
the dead body of his father to the Police
Station Barsana and the dead body was
inspected by the police officials and the
same was sealed and sent to Mathura for
postmortem. He has further stated that with
regard to this incident, the Investigating
Officer has not recorded his statement and
he further stated that before the date of
deposition before the court, he has not
given any statement any where. He has told
his
ignorance
with
regard
to
any
compromise with Bhojpal for agricultural
field of Jhanjhaniya so as Bhojpal would
remain the owner of the said agricultural
field.

14. P.W.1 has further stated in his
cross-examination that the accused persons
had come to the house of this witness and
entered in the house and assaulted them.
The accused had not assaulted near the
temple. The Investigating Officer has tilted
the case against them and that no one came
to interrogate them. He had not shown the
place of incident to the Investigating Offier.
It is further stated by P.W.1 that the
accused persons who were having the
ballam and farsa. This witness has
witnessed the use of ballam and farsa. It is
further stated by this witness that before
lodging report at the police station, the
accused persons lodged report against them
because they took some time to arrange a
tractor and reached the police station along
with the injured persons.

15. P.W.2 is Narain Singh son of
Johari, who is an independent witness. He
states that on the date of incident in the
morning at around 8:00 A.M., he was going
towards his field. When he passed through
the house of the deceased, he heard the
noise, thereupon he went there in the house
of Jeevan where he saw that all the ten
accused persons were present there. Lohare
was armed with ballam, Lohare was with
farsa and other accused persons were
armed with lathis. The accused Bhojpal had
assaulted Jeevan on the head by lathi and
all the accused persons have assaulted
Jeevan and other injured persons. Due to
the injury sustained by Jeeven, he became
unconscious. He had intervened and
thereupon the accused persons had left the
place of incident. He admits that there was
a dispute with regard to the agricultural
land of Jhanjhaniya between the parties. He
further states that with regard to this
incident, the Investigating Officer had not
recorded his statement while his house was
about 300 steps away from the place of
incident. The incident had taken place in
the courtyard of the house of Sonpal. Near
the house of Sonpal, there is a temple.
However, he had not seen any incident near
the temple. The P.W.2 has not given any
statement to the Investigating Officer that
the accused were assaulting near temple.
He is not aware who sustained the injuries
886 INDIAN LAW REPORTS ALLAHABAD SERIES
with farsa and bhala. After the incident, he
had not seen the Investigating Officer in his
village. According to him no injury was
sustained by Lohare and Bhojpal. No gun
shot was fired at the place of incident. After
two and half hours of the incident, he had
also gone to the police station along with
the injured persons. In the courtyard of
Sonpal, the bood had oozed out and he had
seen the blood stains in the courtyard.

16. P.W.3 is the injured Kashmiri,
wife of deceased Jeevan. According to this
witness, on the date of incident at around
8:00 A.M., she was cooking food in her
house and her... husband and son were
present in the house. Her husband was
sitting in the kitchen and she was serving
food to him. The accused Bhojpal came to
her house. Along with the other accused
persons including the appellants herein also
came there. They were armed with ballam,
farsa and lathis. Bhojpal while entering in
the house had assaulted on the head of her
husband. Thereupon the other accused
persons had also assaulted her husband
with lathis. The accused persons thereafter
had also assaulted her son Sonpal, Girraj
and also herself along with her daughter-inlaw. Having heard the noise, the witnesses
Narain, Singh, Chhanno and Bhoji also
gathered there and thereafter the accused
persons ran away from the spot. Thereafter
she along with her both sons and daugherin-law went to Barsana Police Station.
They were referred to Mathura where their
medical examination was conducted and
due to such injuries, her husband died after
ten days. It is further stated in the crossexamination that no witness was examined
by the Investigating Officer nor he visited
the village nor they were interrogated. The
assault had taken place inside their house
and no incident took place near the temple.
She has denied any statement having been
given to the Investigating Officer. It is
further stated by this witness that after
sustaining the injuries with lathis, she
became unconscious and she did not know
who assaulted her son with ballam. She is
not aware that any other FIR was lodged
with regard to the said incident. She had
denied the suggestions that the assault took
place near the temple. She came in between
and sustained injury.

17. P.W. 4, Chhanno is also an
independent witness. He has also supported
the prosecution case as stated in the FIR
and supported by the other witnesses. In the
cross-examination, this witness states that
he did not belong to the family of the
informant or the accused persons. Though,
they are different parties in the village but he
did not belong to any party. His house is
about 200 steps away from the place of
incident. When he heard the noise, at that
time he was coming from the house of Mewa
and was going towards his house. On the date
of incident itself the Investigating Officer has
questioned him and had visited the village.
He had recorded the statement as well as
various other persons of the village.
Therefore, he had gone to the house of
Sonpal and had also inspected the spot where
the incident had taken place. The place of
incident was shown by the informant and his
brother. However, he was not aware whether
he had gone towards the temple. He further
stated that he was not aware that the accused
persons were armed with ballam, farsa and
lathis. Some of the persons were assaulted
with lathis and no injury was sustained by
Lohare and Bhojpal with gun shot or lathi.
The blood stains were in the house of Sonpal,
which were sealed by the Sub-Inspector and
the memo of recovery was prepared.

18. P.W.5, Dr. A.K. Gautam is the
radiologist at the District Hospital, Mathura
9 All. Lohar & Ors. Vs. State
887
and according to him, no abnormality was
seen injury sustained by Kashmiri and
Bhojpal as per the X ray report. He had
conducted the postmortem of the deceased
Jeevan on 26.03.1983. This witness has
also proved the injuries sustained by the
deceased as well as the other injured
persons. In the cross-examination, he has
also explained the injuries, X ray and
postmortem reports of Bhojpal and Lahore
and in the radio opaque he has found
around 70 round and heavy metal on the
lower part of the chest of Bhojpal which
appeared like pellets. The fractures on the
body of the deceased, which were found by
him. The fracture on the head can be
caused due to hit with the hard objects.

19. P.W.6, Samya chawkidar is a
the formal witness of the sealing of the
dead body of the deceased Jeevan after the
inquest was conducted. Thereafter the dead
body was taken to the hospital for
postmortem and then it was handed over to
the family members.

20. P.W.7 is Dr. D.R. Sen, who
was posted as Emergency Medical Officer
at the District Hospital, Mathura on
16.03.1983 when Jeevan, Kashmiri Devi,
Sonpal and Girraj and Rama Devi were
brought to the police station and he had
examined the injuries sustained by them.
He had proved the injuries sustained by the
aforesaid
persons.
According
to
this
witness the injuries no.1 and 2 on the dead
body of the Jeevan were kept under
observation, injury no.3 was simple in
nature and injury no.4 was caused by hard
and blunt weapon. The injured Kashmiri
Devi had also sustained three injuries, the
two injuries were simple in nature and
injury no.3 was kept under observation.
The injured Sonpal had sustained three
injuries. The X ray was advised with regard
to injury no. 1 and 2. There was a
complaint of pain on the back of the chest,
however there was no visible injury. The
injured Girraj sustained four injuries. Rama
Devi sustained two injuries. As per the
opinion of this doctor all the injuries were
possible caused by the lathi on 16.03.1983
at about 8:00 A.M. He has proved the
aforesaid injury report. He has also
admitted in the cross-examination that the
said injuries were possibly caused due to
fall. He further states that on 16.03.1983 at
around 3:00 P.M., he had also examined
the accused Bhojpal and three injuries were
found on his body. Injury no.3 was a fire
arm injury and injury no.1 and 2 were the
injuries with lathi. The said injury report
was also proved by the witness.

21. P.W.8 is the Investigating
Officer of the instant case who stated that
on 16.03.1983 at around 1:30 P.M. the
informant Sonpal came to the police station
and lodged the report, which was recorded
by the Head Moharrir Shiv Karan Singh
and relevant entries were made in the
general Diary. After making investigation
in the matter he recorded the statements of
Sonpal. He went for the spot inspection in
the village and in the village he has
recorded the statements of Chhano and
Bhoji and also inspected the house of the
accused persons. However, from none of
the accused person, any incriminating
material was recovered. He had taken the
sample of the blood stained and plain soil
from near the temple. Memo of the same
was prepared and spot memo was also
prepared. The houses of the accused
persons were also inspected, inquest report
was prepared and the documents were
received after postmortem. Thereafter, the
charge sheet was submitted on 30.04.1983
against the accused persons. The sample of
blood stained soil and plain soil was not
888 INDIAN LAW REPORTS ALLAHABAD SERIES
sent by him for chemical examination. He
came to know regarding the property
dispute between the parties and during the
investigation, he came to know that the
mother of the accused Bhojpal and
Jhanjhaniya
were
the
real
sisters.
According to the witnesses, the incident
started at the house of Jeevan and had
continued up to the temple. The present
case and the case and the case crime no.26
were related to the same incident. In case
crime no. 26, the informant Lohare told that
the incident had taken place near the temple
and during the investigation, he came to
know that Bhojpal, who is an accused in
the said incident had sustained gun shot
injury. He has not taken the sample of
blood stains and plan soil from the house of
Jeevan and he has denied the suggestion
that on the indication of Bhojpal, he had
collected the blood stained and plain soil
from near the temple.

22. D.W.1 is Dr. Rama Shankar
Shukla, who was posted as Mdedical
Officer at Primary Health Centre, Barsana.
He had conducted the medical examination
of Lohare at 9:00 A.M. in the morning. He
has submitted the medical report in the
Court and opined that the injuries were
caused due to assault by lathi. These
injuries could have been caused on
16.03.1983 at around 8:00 A.M. The injury
no.1 was inside the mouth and there was no
injury outside. Those injuries could not be
of five days old. With regard to the same
injury, he opined in the Court that these
injuries
were
five
days
old
and
subsequently studying the books, he came
to the conclusion that these injuries were of
3-5 days old, and could be caused due to
fall and the injury sustained on the tooth.

23. D.W.2 is the Head Constable
Shivdas who was posted at P.S. Barsana. He
stated that on 16.03.1983, he was posted as
Head Moharrir at the police station and at
around 12:30 P.M., a report was lodged by
Lohare on the basis of which an FIR was
registered and entries were made in the
General Diary.

24. From the aforesaid evidence as
available on record, so far as the injuries
sustained by the accused Lohare is concerned,
it is categorically admitted by D.W.1 himself
that the said injury was 3-5 days old prior to
the date of incident. Therefore, the injuries
sustained by Lohare has no connection with
the incident. From the depositions of witnesses
P.W.1, P.W. 2, P.W.3 and P.W.4, out of which
two are the independent witnesses, the incident
had taken place inside the house of the
informant and where the accused persons
allegedly armed with ballam, farsa and lathis
had assaulted the deceased and other injured.
There is no corresponding injury, which can
be attributed to ballam and farsa. However, all
the injured persons had sustained injuries with
hard and blunt weapon. There is a possibility
that ballam and farsa would have been used
from the other side i.e. the hard and blunt side
and indisputably all the injuries were sustained
by the injured persons with hard and blunt
weapon and the appellant no.3 had been
categorically attributed with lathi in the instant
case. Though he has tried to dispute is
presence on the spot and has claimed false
implication.

25. However, all the prosecution
witnesses in categorical terms had attributed
the presence of the appellant no.3 on the spot
armed with lathi. There is an explanation
given by the prosecution that while running
back, he fell down on the log of wood and
sustained injuries.

26. There is an explanation given
by the prosecution that while running back,
9 All. Lohar & Ors. Vs. State
889
accused Lohare fell down on the log of
wood and sustained injuries. Howevere, a
per medical opinion, the injuries sustained
by Lohare were 3-5 days old, those were
not caused in the incident. However, there
is no iota of explanation on behalf of
prosecution for the injuries sustained by
one of the accused persons namely, Bhojpal
who had also sustained not by the lathis but
by a gun shot injury. The prosecution is
totally silent with regard to the injury
sustained by the accused Bhojpal and the
injury sustained by Bhojpal is fully proved
by P.W.5 himself who was produced on
behalf of the prosecution according to
which the firearm injury was sustained by
the accused Bhojpal on the left side of
lower chest and the pellets were also found
on the body of Bhojpal in the X ray report.
P.W. 5 had conducted the X ray of Bhojpal
on 17.03.1983 i.e. one day after the the
incident. However, there was no material
available to suggest how and in which
manner, Bhojpal had sustained the injury.

27. In his statement under Section
313 Cr.P.C. it was explained by the
accused Bhojpal that on the date of
incident,
he
was
coming
from
the
agricultural field, then he saw that near the
temple Girraj and Jeevan were assaulting
his father near temple. Sonpal and one
other person were also present there and
Sonpal was assaulting him with a gun and
therefore, to save him Ballo and Mahendra
had assaulted with lathi and therefore, his
father lodged a report and medical
examination was also conducted.

28. It is also an admitted fact in the
instant case that the appellant no.1 had also
lodged an FIR against the informant and
other persons prior to the instant FIR lodged
by the informant. With regard to this injury
sustained Bhojpal, there was no explanation
given by the prosecution and the defence has
categorically proved the fact that the accused
Bhojpal has sustained the injury in the
incident. Thus it was the duty of the
prosecution to explain the injury sustained by
the accused Bhojpal with regard to which, the
prosecution is totally silent, meaning thereby
that the prosecution is not coming with true
facts of the case and trying to conceal
something. Therefore, the entire story on
behalf of the prosecution becomes doubtful.

29. In Mohar Rai vs. State of
Bihar, (1968) 3 SCR 525, the Apex Court
has observed as follows:

 "The trial court as well as the High
Court wholly ignored the significance of the
injuries found on the appellants. Mohar Rai
had sustained as many as 13 injuries and
Bharath Rai 14. We get it from the evidence
of P.W. 15 that he noticed injuries on the
person of Mohar Rai when he was produced
before him immediately after the occurrence.
Therefore the version of the appellants that
they sustained injuries at the time of the
occurrence is highly probabilised. Under
these circumstances the prosecution had a
duty to explain those injuries.

 ...... In our judgment the failure of
the prosecution to offer any explanation in
that regard shows that evidence of the
prosecution witnesses relating to the
incident is not true or at any rate not
wholly
true.
Further
those
injuries
probabilise
the
plea
taken
by
the
appellants."

30. In State of Gujarat vs. Bai
Fatima, (1975) 2 SCC 7, the Apex Court
has observed as under:

 "In a situation like this when the
prosecution fails to explain the injuries on
890 INDIAN LAW REPORTS ALLAHABAD SERIES
the person of an accused depending on the
facts of each case, any of the three results
may follow:

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

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

 (3)
It
dos
not
affect
the
prosecution case at all.

 The facts of the present case
clearly fall within the four corners of
either of the first two principles laid
down by this judgment. In the instant
case, either the accused were fully
justified in causing the death of the
deceased and were protected by the right
of private defence or that if the
prosecution does not explain the injuries
on the person of the deceased the entire
prosecution case is doubtful and the
genesis of the occurrence is shrouded in
deep mystery, which is sufficient to
demolish the entire prosecution case."

 31. In Lakshmi Singh and
others vs. State of Bihar, (1976) 4 SCC
394, the following observations have been
made by the Apex Court :

 " 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 sup-
pressed the genesis and the origin of the
occurrence and has thus not presented the
true version:

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

 (3) that in case there is a defence
version which explains the injuries on the
person of the accused it is rendered
probable so as to throw doubt on the
prosecution case.
 The omission on the part of the
prosecution to explain the injuries on the
person of the accused assumes much
greater importance where the evidence
consists of interested or inimical witnesses
or where the defence gives a version which
competes in probability with that of the
prosedition one. In the instant case, when it
is held, as it must be, that the appellant
Dasrath Singh received serious injuries
which have not been explained by the
prosecution, then it will be difficult for the
Court to rely on the evidence of PWs.