# Natthu Singh & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 621
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-08
- **Case number:** Criminal Appeal No. 2327 of 1982
- **Bench:** Anil Kumar Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/natthu-singh-ors-in-jail-v-state-of-u-p-47456
- **Pages:** 10

## Headnote

Law
-
appeal
against
conviction - Indian Penal Code, 1860 - 304
read with Section 34 - The Code of
criminal
procedure,
1973
-
Section
161,313 - law on the point of cross case -
non explanation of injuries by prosecution
will not affect the prosecution case where
injuries sustained by the accused are
minor and superficial in nature.(Para - 25)

(B) Indian Evidence Act, 1872 - nonexamination of eye-witness cannot be
pressed into service like a ritualistic
formula for discarding the prosecution
case with a stroke of pen - Court can
convict an accused on statement of sole
witness even if he is relative of the
deceased
and
non
examination
of
independent witness would not be fatal to
the case of prosecution - evidence of
related
witnesses
is
required
to
be
carefully
scrutinized
and
appreciated
before any conclusion is made to rest
upon it - if the testimony of an eye
witness is otherwise found trustworthy
and
reliable,
the
same
cannot
be
disbelieved merely on certain insignificant
normal or natural contradiction have
appeared in his testimony.(Para -18)

(B) Criminal Law - Indian Penal Code,
1860 - Section 300 (Exception 2) -
culpable homicide is not murder if the
offender, in the exercise in good faith of
the right of private defence of person or
property, exceeds power given to him by
law and causes the death of the person
622 INDIAN LAW REPORTS ALLAHABAD SERIES
against whom he is exercising such right
of private defence without premeditation,
and without any intention of doing more
harm than is necessary for the purpose of
such defence - suffice to say - appellant has
not been convicted and sentenced for the
offence of murder - convicted only under
Section 304 read with Section 34 of I.P.C. - not
entitled to benefit of doubt.(Para - 28)

Deceased uprooted some pea plants - appellant
along with co-accused persons assaulted the
deceased by lathi and farsa - Hearing the cry,
witness reached on the spot - other witnesses
PW-2, PW-3 also reached there and saw the
incident - witness has said that incident took
place at 06:00AM in the morning - at that time
his brother deceased has gone to attend the
nature's call - Case registered by PW-1,
complainant ( brother of deceased) - against the
appellants - appellants convicted - hence
appeal.

HELD:- Prosecution established its case beyond
reasonable doubt against the sole surviving
appellant no. 3 (Jaibir). Appellant has been
convicted under Section 304 read with Section
34 of I.P.C.. Impugned judgment and order
passed by lower court is within four corners of
law. No illegality in the impugned order,
therefore impugned order passed with regard to
conviction and sentence of the appellant under
Section 304 I.P.C., is hereby confirmed. (Para -
30,31,32,33)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

## Text

9 All Nathhu Singh & Ors. Vs. State of U.P.
621
appellant under Section 307 I.P.C. was
converted
into
Section
326
I.P.C.
simplicitor. Incident took place in the year
1987 and appellant was about 25 years old.
Considering the facts and circumstances of
the case, Hon'ble the Apex Court, reduced
the
sentence
to
the
period
already
undergone by him.

46. In the present case, it is
noteworthy that the incident took place in
the year 1980 i.e. 41 years ago and it is said
that now appellant is above 81 years old
person. Record does not show that the
appellant has any criminal antecedent and
learned counsel for appellant has also
submitted the same which could not be
rebutted by learned counsel for the State.

47. Record shows that appellant has
remained in jail from 10.03.1980 to
28.06.1980
and
from
28.04.1983
to
21.03.1984 i.e. more than one year.

48. To sum up, the conviction &
sentence imposed on the appellant under
Section 307 I.P.C. is set aside instead he is
convicted under Section 323 I.P.C. No any
purpose will be served by sending the
appellant (aged about 81 years) in jail after
elapse of 41 years from the incident. The
period of sentence is reduced to the period
already undergone by him.

49. Accordingly, the appeal is partly
allowed.
----------
(2021)09ILR A621
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2021

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Criminal Appeal No. 2327 of 1982

Natthu Singh & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Pt. Mohan Chandra, Sri Anurag Shukla,
Sri Imranullah, Sri Nazrul Islam Jafri, Sri
A.B.L. Gaur (Senior Adv.)

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

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 - 304
read with Section 34 - The Code of
criminal
procedure,
1973
-
Section
161,313 - law on the point of cross case -
non explanation of injuries by prosecution
will not affect the prosecution case where
injuries sustained by the accused are
minor and superficial in nature.(Para - 25)

(B) Indian Evidence Act, 1872 - nonexamination of eye-witness cannot be
pressed into service like a ritualistic
formula for discarding the prosecution
case with a stroke of pen - Court can
convict an accused on statement of sole
witness even if he is relative of the
deceased
and
non
examination
of
independent witness would not be fatal to
the case of prosecution - evidence of
related
witnesses
is
required
to
be
carefully
scrutinized
and
appreciated
before any conclusion is made to rest
upon it - if the testimony of an eye
witness is otherwise found trustworthy
and
reliable,
the
same
cannot
be
disbelieved merely on certain insignificant
normal or natural contradiction have
appeared in his testimony.(Para -18)

(B) Criminal Law - Indian Penal Code,
1860 - Section 300 (Exception 2) -
culpable homicide is not murder if the
offender, in the exercise in good faith of
the right of private defence of person or
property, exceeds power given to him by
law and causes the death of the person
622 INDIAN LAW REPORTS ALLAHABAD SERIES
against whom he is exercising such right
of private defence without premeditation,
and without any intention of doing more
harm than is necessary for the purpose of
such defence - suffice to say - appellant has
not been convicted and sentenced for the
offence of murder - convicted only under
Section 304 read with Section 34 of I.P.C. - not
entitled to benefit of doubt.(Para - 28)

Deceased uprooted some pea plants - appellant
along with co-accused persons assaulted the
deceased by lathi and farsa - Hearing the cry,
witness reached on the spot - other witnesses
PW-2, PW-3 also reached there and saw the
incident - witness has said that incident took
place at 06:00AM in the morning - at that time
his brother deceased has gone to attend the
nature's call - Case registered by PW-1,
complainant ( brother of deceased) - against the
appellants - appellants convicted - hence
appeal.

HELD:- Prosecution established its case beyond
reasonable doubt against the sole surviving
appellant no. 3 (Jaibir). Appellant has been
convicted under Section 304 read with Section
34 of I.P.C.. Impugned judgment and order
passed by lower court is within four corners of
law. No illegality in the impugned order,
therefore impugned order passed with regard to
conviction and sentence of the appellant under
Section 304 I.P.C., is hereby confirmed. (Para -
30,31,32,33)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. Mukesh & anr. Vs St. of NCT of Delhi & ors.
, AIR 2017 SC 2161

2. Dahari & ors. Vs. St. of U.P., AIR (2012) 10
SCC 256

3. Bhagwan Jagannath Markad Vs. St. of Mah.,
(2016) 10 SCC 537

4. Ashok Kumar Chaudhary Vs St. of Bihar,
2008 (61) ACC 972 (SC)

5. Sucha Singh Vs St. of Punj., 2003 (47) ACC
555
6. Bhola Yadav Vs St. of U.P., 2002 (1) JIC
1010 (Allahabad)

7. Bheru Lal Vs St. of Raj., 2009 (66) ACC 997
(SC)

8. Bhagwan Jagannath Markad Vs St. of Mah.,
(2016) 10 SCC 537

9. Shaikh Majid Vs St. of Mah., 2008 (62) ACC
844 (SC) &

10. Sukumar Roy Vs St. of W.B., AIR 2006 SC
3406

11. Lakshmi Singh Vs St. of Bihar, 1976
LawSuit(SC) 325

12. Thaman Kumar Vs. St. of Union Territory of
Chandigarh, 2003 (3) SCR 1190

(Delivered by Hon'ble Anil Kumar Ojha, J.)

This appeal relates to year 1982 and
the same is nearly 39 years old.

2. Appeal of appellant no. 1 Nathu
Singh has already been abated vide order
dated 01.08.2016. Office has submitted
report dated 02.08.2021 that appellant no. 2
Kali Charan has passed away therefore,
appeal of appellant no. 2 Kali Charan
stands abated. Now, the case of appellant
no. 3 Jaibir Singh only is to be examined.

3. Heard learned counsel for the
appellant no. 3 Jaibir, learned A.G.A. for
the State and perused the records.

4. Challenge in this criminal appeal is
the judgment and order dated 19.08.1982
passed by Vth Additional Sessions Judge,
Aligarh in S.T. No. 40 of 1980 (State v.
Nathu Singh and others), under Section 304
I.P.C., P.S. Gangiri, District Aligarh
whereby
the
learned
Vth
Additional
Sessions Judge, Aligarh has convicted and
sentenced the appellants under Section 304
9 All Nathhu Singh & Ors. Vs. State of U.P.
623
read with Section 34 of I.P.C. to undergo
seven years of rigorous imprisonment.

5. Shorn of unnecessary details, the
prosecution case is that the complainant
Jauhari lodged an F.I.R. on 25.02.1979 at
17:00 hours in the evening at P.S. Gangiri,
District Aligarh stating therein that on
25.02.1979 at about 06:00 hours in the
morning the deceased Govind went to answer
the nature's call in the field, there, he
extirpated peas from the Nathu's field. Nathu,
his son Kali Charan and Jaibir were guarding
that field. Kali Charan was armed with farsa,
Nathu and Jaibir were armed with lathi. They
caught hold Govind and started assaulting by
lathi and farsa. After hearing scream of
Govind, complainant Jauhari, Kamta Singh,
Khubaram and Sarnam who belong to his
village rushed to the spot, when complainant
and witnesses reached there, Kali Charan
exhorted and said that in case they will come
forward, they will be killed. They left the
injured Govind lying on the field there.
Thereafter, complainant was taking the
injured to hospital in bullock-cart and in the
way to the hospital injured Govind died near
Bilona. The complainant and witnesses have
seen the accused persons assaulting the
deceased by lathi and farsa.

6. On written report submitted by
complainant Jauhari, a case was registered
against the appellants Nathu, Kali Charan and
Jaibir in Case Crime No. 30 of 1979, under
Section 304 I.P.C., P.S. Gangiri, District
Aligarh.

7. The investigation of case was
entrusted to PW4 Banwari Lal Gautam who
recorded statements of witnesses under
Section 161 Cr.P.C., visited the spot and
prepared site plan. After completion of
investigation, investigating officer submitted
charge sheet against the appellants Nathu,
Kali Charan and Jaibir Singh in Case Crime
No. 30 of 1979, under Section 304 I.P.C.,
P.S. Gangiri, District Aligarh.

8. The then Additional Judicial
Magistrate,
Aligarh,
on
22.10.1980
committed the case of appellants to the
Sessions Court for trial. The then Additional
Sessions Judge, Aligarh on 23.04.1981
framed charges against the appellants Nathu,
Kali Charan and Jaibir under Sections 304
read with Section 34 of I.P.C. and in
alternative Section 302 read with Section 34
of I.P.C. Appellants denied the charges and
claimed trial.

9. Prosecution was called upon to
adduce
evidence
to
substantiate
the
prosecution case. Evidence of PW1 Jauhari,
PW2 Sarnam Singh, PW3 Kamta Prasad
were recorded to prove the prosecution case.
All the three witnesses have supported the
prosecution case.

10. PW4 Banwarli Lal Gautam is the
investigating officer of the case and proved
the documents such as panchayatnama Ex. K2, F.I.R. Ex. K-3, Chik Report Ex. K-5, Site
plan Ex. K-7 and charge sheet Ex. K-8.

11. PW5 Dr. K. K. Agarwal conducted
the post mortem examination of the deceased
Govind on 28.02.1979 and found following
ante mortem injuries on his person:

(1) Incised wound 1-1/2" x 1/2" x
muscle deep on the right upper lip.

(2) Incised wound 1"x 1/4"
muscle deep 2" above the left eyebrow on
the left side of forehead.

(3) Lacerated wound 3/4" x 3/10"
x muscle deep on the back of right elbow
joint.
624 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) Lacerated wound 2 1" x 4/10"
x muscle deep on upper part of right
forearm on the back.

(5) Lacerated wound 1/2" x 1/4"
x muscle deep on the back of right elbow
joint.

(6) Contusion on 3" x 2" on the
back of right palm.

(7) Lacerated wound 1/2" x 1/4"
x muscle deep on the front of right leg in it
upper 1/3rd.

(8) Lacerated wound 3" x 1" x
bone deep on the front of right leg below
injury no. 7. Bone fracture & protended out.

(9) Lacerated wound 1-1/4" x
1/2" x muscle deep on the outer side of
right leg on its middle 1/3rd part.

(10) Lacerated wound 3-1/2" x 2"
x bone deep on the front of right leg on its
middle of lower 1/3rd part. Tibia on
preclaimed and protended out.

(11) Lacerated wound 4" x 1" x
bone deep on the shine of left leg 2" below
the knee joint.

(12) Lacerated wound 4" x 1/2" x
bone deep 1" below the injury No. 11.

(13) Abraded contusion 4" x 2"
on the back of left fore arm on the middle
1/3rd.

(14) Contusion 2" x 2" on the
outer side of Rt. Buttock.

(15) Contusion 8" x 3" on the
front of left side of chest 6" below the
coller bone.

12. After completion of evidence,
statement of appellants under Section 313
Cr.P.C. was recorded. Appellant Jaibir
denied the evidence and said that he does
not know how and when the deceased
Govind died. Police has colluded with
complainant Jauhari. He has been falsely
implicated owing to enmity. All the
witnesses are relatives of the deceased
Govind.

13. Defence also produced DW1 S. N.
Sharma as defence witness.

14. After hearing learned counsel for
the prosecution and defence, the then Vth
Additional
Sessions
Judge,
Aligarh
convicted and sentenced the appellant as
above.

15. Aggrieved by the aforesaid order
appellant preferred this appeal before this
Court.

16. Learned counsel for the appellant
no. 3 Jaibir submitted that there is
unexplained delay of eleven hours in
lodging the F.I.R. Witnesses have not seen
the occurrence. All the witnesses are
interested witnesses. There is cross version
of the present case. Prosecution case is
doubtful. Appellant Jaibir is entitled to
benefit of doubt and deserves acquittal.
Appeal should be allowed and appellant
Jaibir should be acquitted.

17. Per contra, learned A.G.A.
opposed the above submissions put forward
by learned counsel for the appellant and
contended that prosecution cannot take the
defence of cross case. The evidence of
witnesses is reliable and trustworthy.
Further submitted that delay in lodging the
F.I.R. is not fatal for the prosecution case
as informant/complainant Jauhari is of the
9 All Nathhu Singh & Ors. Vs. State of U.P.
625
village
background.
Prosecution
has
established its case beyond reasonable
doubt against the appellants including
Jaibir. There is no contradiction between
oral and medical evidence rather medical
evidence corroborates the prosecution case.
Appeal has no legs to stand, hence, it
should be dismissed.

18. Learned counsel for the appellant
Jaibir submitted that PW1 is brother of
deceased Govind. PW2 Sarnam Singh is
also related with the informant and
deceased. PW3 Kamta Prasad is also
related witness, so relying on the testimony
of the related witnesses, it would not be
safe to record conviction against the
appellant. Prosecution has not produced
any independent witness. He further
submitted
that
there
are
material
contradictions in the statement of witnesses
so on account of material contradictions,
the evidence of PW1, PW2 and PW3 is
unworthy of credence.

In Mukesh and another v. State
of NCT of Delhi and others AIR 2017 SC
2161, Hon'ble Apex Court has held that the
if a witness examined in the court is
otherwise found reliable and trustworthy,
the fact sought to be proved by the witness
need not be further proved through other
witnesses though there may be other
witnesses available who could have been
examined but were not examined. Nonexamination of material witnesses is not a
mathematical formula for discarding the
weight of the testimony available on record
however
natural,
trustworthy
and
convincing it may be. It is settled law that
non-examination of eye-witness cannot be
pressed into service like a ritualistic
formula for discarding the prosecution case
with a stroke of pen. Court can convict an
accused on statement of sole witness even
if he is relative of the deceased and non
examination of independent witness would
not be fatal to the case of prosecution.

In Dahari and others Vs. State of
U.P. AIR (2012) 10 SCC 256, the Hon.
Apex Court has held as follows:

"It is settled legal proposition that
the evidence of closely related witnesses is
required to be carefully scrutinised and
appreciated before any conclusion is made
to
rest
upon
it,
regarding
the
convict/accused in a given case. In case the
evidence has a ring of truth to it, is cogent,
credible and trustworthy, it can, and
certainly should, be relied upon."

In Bhagwan Jagannath Markad
Vs. State of Maharashtra, (2016) 10 SCC
537, the Hon. Apex Court has held as
follows:

"We may also refer to the
judgment of this Court in Masalti versus
State of U.P. [26] to the effect that the
evidence of interested partisan witnesses
though required to be carefully weighed,
the
same
could
not
be
discredited
mechanically. When a crowd of unlawful
assembly commits an offence, it is often
not possible to accurately describe the part
played by each of the assailants. Though
the appreciation of evidence in such cases
may be a difficult task, the court has to
perform its duty of sifting the evidence
carefully."

In Ashok Kumar Chaudhary v.
State of Bihar 2008 (61) ACC 972 (SC),
the Hon'ble Apex Court has held that if the
testimony of an eye witness is otherwise
found trustworthy and reliable, the same
cannot be disbelieved and rejected merely
because certain insignificant, normal or
626 INDIAN LAW REPORTS ALLAHABAD SERIES
natural contradictions have appeared into
his
testimony.
If
the
consistencies,
contradictions,
exaggerations,
embellishments and discrepancies in the
testimony are only normal and not material
in nature, then the testimony of an eye
witness has to be accepted and acted upon.
Distinctions between normal discrepancies
and material discrepancies are that while
normal discrepancies do not corrode the
credibility of a party's case, material
discrepancies do so."

Thus, it is settled legal position
that evidence of related witnesses is
required to be carefully scrutinized and
appreciated before any conclusion is made
to rest upon it. It is also settled law that if
the testimony of an eye witness is
otherwise found trustworthy and reliable,
the same cannot be disbelieved merely on
certain insignificant normal or natural
contradiction
have
appeared
in
his
testimony.

In the light of above settled legal
position the evidence of eye witnesses
PW1, PW2 and PW3 is being analyzed and
evaluated. Evidence of PW-1, PW-2 &
PW-3 cannot be discarded merely on the
ground that they are related to each other
and interested witnesses.

19. PW1 Jauhari has deposed in the
court that on the day of alleged incident,
deceased Govind uprooted some pea plants
then appellant Jaibir along with co-accused
persons assaulted the deceased Govind by
lathi and farsa. This witness has further
deposed that the appellant Jairam was
armed with lathi. Hearing the cry, this
witness
reached
on
the
spot,
other
witnesses Sarnam, Kamta Prasad also
reached there and saw the incident. This
witness has said that incident took place at
06:00AM in the morning, at that time his
brother deceased Govind has gone to attend
the nature's call. He also has gone for the
same purpose. Defence extensively crossexamined this witness but no major
contradiction is there in his evidence. This
incident occurred in the year 1979, nearly
42 year ago, court can take judicial notice
of the fact that at that time in the villages
there was scarcity of toilets in U.P. and
going to attend nature's call, in the field at 6
O'clock, in the morning was a natural
phenomena in the villages in 1979.
Evidence of PW1 is natural, probable and
reliable.

20. PW2 Sarnam Singh has supported
the prosecution version. He has stated in
his examination-in-chief that the incident
has taken place at about 05:30 or 06:00AM
and at that time he was at this home. After
hearing the commotion of Govind, Nathu
Singh, Jaibir and Kali Charan, he rushed to
the occurrence place and stopped before
20-25 steps from Nathu's field and saw that
the appellants Nathu, Jaibir and Kali
Charan were assaulting the deceased
Govind. He further deposed that Kali
Charan was having farsa and two other
appellants namely Jaibir and Nathu were
armed with lathies. Govind's brother
Jauhari also reached there. When this
witness asked to the appellants not to do so
then the appellants threatened this witness
to kill. Defence extensively cross-examined
this witness but there is no major
contradiction in the evidence of this
witness. The evidence of PW2 is also
probable and credible.

21. PW3 Kamta Prasad has also
supported the prosecution version. He has
stated in his examination-in-chief that the
incident took place at about 06:00AM and
at that time he was going to attend nature's
9 All Nathhu Singh & Ors. Vs. State of U.P.
627
call. He heard the noise of appellants Nathu
Singh, Jaibir and Kali Charan, who were
assaulting the deceased Govind. He further
deposed that Kali Charan was having farsa
and two other appellants namely Jaibir and
Nathu were armed with lathies. Along with
him Sarnam and Khoob Singh also reached
on the spot. This incident occurred in the
year 1979, nearly 42 year ago, court can
take judicial notice of the fact that at that
time in the villages there was scarcity of
toilets in U.P. and going to attend nature's
call, in the field at 6 O'clock, in the
morning was a natural phenomena in the
villages in 1979. Defence extensively
cross-examined this witness but there is no
major contradiction in the evidence of this
witness. The evidence of PW3 is also
probable, credible and reliable.

22. Learned counsel for the appellant
Jaibir submitted that there is cross version
of the present case. There was injury on the
person of accused Kali Charan, which was
not explained by the prosecution, so
prosecution case is doubtful.

23. In Sucha Singh v. State of
Punjab, 2003 (47) ACC 555 Hon'ble Apex
Court has held that there is no invariable
rule that injuries sustained by the accused
in the same transaction should be explained
by prosecution. When major portion of
evidence deficient but residue sufficient to
prove the guilt of the accused, conviction
can be recorded.

24. In Bhola Yadav v. State of U.P.,
2002 (1) JIC 1010 (Allahabad), it has been
held that in a criminal trial under Section
302/34 I.P.C. non-disclosure of superficial
injuries sustained by the accused would not
be fatal to prosecution, if injuries are self
explained
and
consistent
with
the
prosecution
case
and
circumstances
themselves
explain
such
injuries.
Prosecution case will not be affected
adversely.

25. In Bheru Lal v. State of
Rajasthan, 2009 (66) ACC 997 (SC)
Hon'ble Apex Court has held that non
explanation of injuries by prosecution will
not affect the prosecution case where
injuries sustained by accused are minor and
superficial or where the evidence is so clear
and
cogent,
so
independent
and
disinterested, so probable, consistent and
creditworthy that it outweighs the effect of
the omission on the part of prosecution to
explain the injuries.

Bhagwan Jagannath Markad v.
State of Maharashtra, (2016) 10 SCC 537;
Shaikh Majid v. State of Maharashtra,
2008 (62) ACC 844 (SC) and Sukumar
Roy v. State of W.B., AIR 2006 SC 3406,
may also be cited on the above point.

Thus settled law on the point of
cross case is that non explanation of
injuries by prosecution will not affect the
prosecution case where injuries sustained
by the accused are minor and superficial in
nature.

26. So far as the facts of the present
case are concerned, DW-1 S. L. Sharma,
pharmacist has proved Ex. Kha-2. This
witness has deposed in the court in his
cross-examination at page no. 32 of the
paper book that injured himself came there.
There was no police personnel with him
and there was no police report. If anyone
comes as a private case, then doctor can
examine him after taking fees. Perusal of
the Ex. Kha-2 reveals that Kali Charan s/o
Nathu, R/o Muria Khera Gangiri, Aligarh
was examined on 25.02.1979 at 01:00PM.
Dr. K. S. Yadav found following injuries
628 INDIAN LAW REPORTS ALLAHABAD SERIES
on his person: Scratch abrasion linear 4 cm
x 1/8 cm. on left side of abdomen lower.
Simple by friction with pointed. Duration
recent.

Thus, from the above injury of
appellant Kali Charan, it can be said that
same was simple and superficial in nature
and the appellant cannot get the benefit of
cross version.

27. Learned counsel for the appellant
relied upon the law laid down by the
Hon'ble Apex Court in Lakshmi Singh v.
State of Bihar, 1976 LawSuit(SC) 325 and
submitted that if there is a defence version
which explains the injuries on the person of
accused. It is rendered probable so as to
throw doubt on the prosecution case. The
omission on the part of prosecution to
explain injuries on the person of accused
assumes much greater importance where
the evidence consists of interested or
inimical witnesses or where the defence
gives a version which completes in
probability with that of prosecution one.

The authority relied upon by the
learned counsel for the appellant is not
applicable to the facts of the present case
because the injury sustained by the
appellant Kali Charan is simple and
superficial in nature.

28. Learned counsel for the appellant
submitted
that
there
is
contradiction
between medical and oral evidence. So
appellant is entitled to benefit of doubt. I do
not agree with the above contention of
learned counsel for the appellant.

In Thaman Kumar Vs. State of
Union Territory of Chandigarh 2003 (3)
SCR 1190, the Hon. Apex Court has held
as follows:

"The
conflict
between
oral
testimony and medical evidence can be of
varied dimensions and shapes. There may
be a case where there is total absence of
injuries which are normally caused by a
particular
person.
There
is
another
category where though the injuries found
on the victim are of the type which are
possible by the weapon of assault, but the
size and dimension of the injuries do not
exactly tally with the size and dimension of
the weapon. The third category can be
where the injuries found on the victim are
such which are normally caused by the
weapon of assault but they are not found on
that portion of the body where they are
deposed to have been caused by the eyewitnesses. The same kind of inference
cannot be drawn in the three categories of
apparent conflict in oral and medical
evidence enumerated above. In the first
category it may legitimately be inferred
that the oral evidence regarding assault
having been made from a particular
weapon is not truthful. However, in the
second
and
third
category no
such
inference can straightway be drawn.

The manner and method of
assault, the position of the victim, the
resistance offered by him, the opportunity
available to the witnesses to see the
occurrence like their distance, presence of
light and many other similar factors will
have to be taken into consideration in
judging the reliability of ocular testimony."

So far as facts of the present case
are concerned, there is no contradiction
between oral and medical evidence because
Dr. K. K. Agarwal P.W.-5 who has
conducted the post mortem examination of
the deceased Govind found 15 ante mortem
injuries on the person of the deceased. He
has opined that the injuries on the person of
9 All Nathhu Singh & Ors. Vs. State of U.P.
629
the
deceased
Govind
could
be
of
25.02.1979 at 06:00 hours in the morning.
The lacerated wounds and contusions can
be caused by blunt object like lathi and
incised wound can be caused by sharp
edged weapon like farsa. It is pertinent to
note here that PW1 Jauhari, PW2 Sarnam
Singh and PW3 Kamta Prasad have given
consistent evidence that Kali Charan was
armed with farsa and appellant Jaibir and
Nathu Singh were armed with lathies.
There were injuries of lathi and farsa both
on the person of the deceased Govind.
Thus,
there
is
no
contradiction
or
inconsistency between medical and oral
evidence
rather
medical
evidence
corroborates the oral evidence of PW-1
Jauhari, PW-2 Sarnam Singh and PW-3
Kamta Prasad.

29. Learned counsel for the appellant
next submitted that there is delay of eleven
hours in lodging the F.I.R. and no plausible
reason has been given for the same and on
this basis the prosecution case should be
thrown out. I do not agree with the above
contention of the learned counsel for the
appellant because the complainant belongs
to village background. It is pertinent to note
here that the injured Govind was being
taken to hospital by bullock-cart which can
travel one or two kilometers per hour. It is
also notable that on the way to hospital the
injured Govind succumbed to injuries.
Therefore, it can be held that under the
circumstances of the present case eleven
hours delay in lodging the F.I.R. would not
create doubt in the prosecution case.

30. Learned counsel for the appellant
lastly submitted that in any case, when
deceased Govind uprooted the pea plants, it
is in the right of private defence, appellants
beaten him. It can be a case of only
exceeding the right of private defence.

In Section 300 I.P.C., Exception
2, there is provision that culpable homicide
is not murder if the offender, in the exercise
in good faith of the right of private defence
of person or property, exceeds power given
to him by law and causes the death of the
person against whom he is exercising such
right
of
private
defence
without
premeditation, and without any intention of
doing more harm than is necessary for the
purpose of such defence. On this point it
would be suffice to say that appellant Jaibir
has not been convicted and sentenced for
the offence of murder, he has been
convicted only under Section 304 read with
Section 34 of I.P.C. with seven years of
rigorous imprisonment, so appellant Jaibir
cannot get the benefit on the aforesaid
argument.

31. The upshot of the above
discussion is that the prosecution has
established its case beyond reasonable
doubt against the sole surviving appellant
Jaibir.

32. From the perusal of the impugned
judgment passed by the court below, it is
evident that that appellant has been
convicted under Section 304 read with
Section 34 of I.P.C. to undergo seven years
of rigorous imprisonment.

33. The impugned judgment and order
passed by lower court is within four corners
of law. There is no illegality in the
impugned order, therefore impugned order
dated 19.08.1982 passed by Vth Additional
Sessions Judge, Aligarh with regard to
conviction and sentence of the appellant in
S.T. No. 40 of 1980 (State v. Nathu Singh
and others), under Section 304 I.P.C., P.S.
Gangiri,
District
Aligarh
is
hereby
confirmed. Appeal lacks merit and is liable
to be dismissed.
630 INDIAN LAW REPORTS ALLAHABAD SERIES

34. Accordingly, this appeal is
dismissed.

35. Appellant Jaibir is on bail, he be
taken into custody to serve out the
remaining
sentence.
His
bonds
are
cancelled and sureties are discharged.

36. Copy of this judgment be certified
to the court below for compliance. Lower
court record be transmitted to the District
Court, concerned forthwith.
----------
(2021)09ILR A630
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.09.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Revision No. 540 of 2021

Shivam Pandey @ Shiva & Anr.
 ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Rajiva Dubey

Counsel for the Opposite Parties:
Mr. Alok Tiwari (Addl. Govt. Advocate)

A. Criminal Law - Code of Criminal
Procedure,1973-Section 397/401, 319 -
Indian Penal Code,1860-Section 364, 392,
419, 420-quashing of summoning order
passed u/s 319 Cr.P.C.-statement of PW2
,PW3, PW4 depicts clear motive of the
revisionists-they threatened the abductee
prior to the abduction-abductee had an
illicit relationship with the sister of
revisionist-Three
witnesses
given
last
scene evidence against the revisionists-
strong and cogent evidence available
against the revisionist is more than
enough to summon the accused personsTrial court committed no illegality in
passing the order.(Para 1 to 29)

B. If the evidence tendered in the course of
any enquiry or trial shows that any person
not being the accused has committed any
offence for which he could be tried together
with the accused, he can be summoned to
face trial even though he may not have been
charge-sheeted by the investigating agency
or may have been discharged at an earlier
stage.(Para 17 to 20)

The revision is dismissed. (E-6)

List of Cases cited:

1. Hardeep Singh & ors. Vs St of Punj. & ors.
(2014) AIR SCW 667

2. Brijendra Singh & ors. Vs St. of Raj. (2017)
AIR SC 2839

3. Rajendra Singh Vs St. of U.P. & anr. (2007) 7
SCC 387

4. Gaurav @ Nilwa Vs St. of U.K. & anr. (2020)
112 ACC 186

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1.

Heard
learned
counsel
for
petitioners as well as Shri Alok Tiwari,
learned Additional Government Advocate
for State.

2. The present 482 Cr.P.C. application
has been filed to quash the impugned order
dated 19.8.2021, passed by Addl. Sessions
Judge/FTC (New), Lakhimpur Kheri vide
S.T. No.707 of 2018, Crime No.894 of
2018 under sections 364, 392, 419, 420
I.P.C.,
P.S.
Kotwali
Sadar,
district
Lakhimpur Kheri, whereby the application
moved by the prosecution under Section
319 CrPC has been allowed and the
revisionsits have been summoned to face
trial.