# Suraj & Ors. (In Jail) v. State of U.P. 782 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 9 ILRA 781
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-10-27
- **Case number:** Criminal Misc. Bail Application No. 01 of 2019
- **Bench:** B.Amit Sthalekar, Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-ors-in-jail-v-state-of-u-p-782-indian-law-reports-allahabad-series-45115
- **Pages:** 5

## Headnote

Criminal Law-Appeal Against Conviction
U/S 147,148,302/149, 307/149 IPC and
25/27 U/S Arms Act

Non-Explanation of Injury by Prosecution
- No explanation given by prosecution -
indicates deliberate suppression of the origin
and genesis of occurrence - however, the
aforesaid principle not applicable in case of
minor/superficial injury-Instant case not of
minor injury.

Applicant is entitled for bail. (E-2)

List of Cases cited :-

## Text

9 All. Suraj & Ors. Vs. State of U.P.
781

30. In the case of S.N. Mukherjee v.
Union of India reported in 1990 (4) SCC
594 while referring to the practice adopted
and insistence placed by the courts in
United States, emphasised the importance
of recording of reasons for decisions by the
administrative authorities and tribunals. It
said "administrative process will best be
vindicated by clarity in its exercise". To
enable the courts to exercise the power of
review
in
consonance
with
settled
principles, the authorities are advised of the
considerations underlining the action under
review.

31. In paragraph 12 of the aforesaid
judgment the scope of judicial review has
been dealt with in great detailed. The
paragraph 12 is quoted hereinbelow :-

"12. In exercise of the power of
judicial review, the concept of reasoned
orders/actions has been enforced equally
by the foreign courts as by the courts in
India. The administrative authority and
tribunals are obliged to give reasons,
absence whereof could render the order
liable to judicial chastisement. Thus, it will
not be far from an absolute principle of law
that the courts should record reasons for
their conclusions to enable the appellate or
higher courts to exercise their jurisdiction
appropriately and in accordance with law.
It is the reasoning alone, that can enable a
higher or an appellate court to appreciate
the controversy in issue in its correct
perspective and to hold whether the
reasoning recorded by the court whose
order is impugned, is sustainable in law
and whether it has adopted the correct
legal approach. To subserve the purpose of
justice delivery system, therefore, it is
essential that the courts should record
reasons for their conclusions, whether
disposing of the case at admission stage or
after regular hearing."

32. Having heard learned counsel for
the parties, we are satisfied that the
impugned order does not record any such
satisfaction and the entitlement of the
petitioner does not appear to have been
considered in the light of the provisions of
Legal Remembrancer's Manual as also the
decisions referred to herein-above.

33. Accordingly, the impugned order
dated 27.10.2017 passed by the respondent
no.1 is set aside and the consequential
communication dated 1.11.2017 is also set
aside. However, this order would not
amount to re-engagement of the petitioner
or his continuance. The matter shall be
decided afresh keeping in view the
observations made hereinabove as well as
the provisions of Legal Remembrancer's
Manual within a period of four months
from the date of production of certified
copy of this order.

34. Accordingly, present writ petition
is allowed.
----------
(2020)09ILR A781
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2019

BEFORE

THE HON'BLE B.AMIT STHALEKAR, J.
THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Bail Application No. 01 of 2019
In
Criminal Appeal No.3319 of 2019

Suraj & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party
782 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Amit Daga, Sri Rajiv Lochan Shukla, Sri
Ajay Kumar Pandey, Sri S,N, Yadav, Sri
Satish Trivedi

Counsel for the Opposite Party:
A.G.A., Sri Kartikeya Bhargava, Sri Ram
Bahadur Kushwaha, Sri Manoj Kumar
Srivastava.

Criminal Law-Appeal Against Conviction
U/S 147,148,302/149, 307/149 IPC and
25/27 U/S Arms Act

Non-Explanation of Injury by Prosecution
- No explanation given by prosecution -
indicates deliberate suppression of the origin
and genesis of occurrence - however, the
aforesaid principle not applicable in case of
minor/superficial injury-Instant case not of
minor injury.

Applicant is entitled for bail. (E-2)

List of Cases cited :-

1. State of Gujarat Vs Bai Fatima, 1975 SCC
(Cri) 384

2. Lakshmi Singh & ors. Vs St. of Bihar, (1976) 4
SCC 394

3. Babu Ram & ors. Vs St. of Punj. 2008 (3) SCC
709

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

1. Heard Sri Rajiv Lochan Shukla,
Advocate, Sri Ajay Kumar Pandey, Sri S.
N. Yadav, Advocate appearing for the
appellants and learned AGA for the State
and Mr Kartikeya Bhargava, learned
counsel for the complainant.

2. The present criminal appeal has
been filed by the appellants Suraj Bhan,
Jomdar, Mahesh, Shishu Pal @ Rishi Pal,
Surendra
and
Satendra
against
the
judgment and order dated 11.4.2019 passed
by the Addl. Sessions Judge, Agra in
Sessions Trial No. 1139 of 2009 (State Vs
Jomdar and others), and Sessions Trial No.
123 of 2010 (State Vs Surendra), under
Sections 147, 148, 302/149, 307/149 IPC,
P.S. Kagarol, District Agra and Sessions
Trial No. 03 of 2010 (State Vs Satendra),
under Section 25/27 Arms Act and Sessions
Trial No. 1140 of 2009 (State Vs Shishu
Pal @ Rishi Pal), under Sections 25/27
Arms Act, whereby the appellants Suraj
Bhan, Jomdar, Mahesh, Shishu Pal @ Rishi
Pal, Surendra and Satendra have been
convicted under Sections 148, 302/149,
307/149 IPC and sentenced to undergo
rigorous imprisonment for two years each
and a fine of Rs. 1,000/- under Section 148
IPC with default stipulation, and they have
been
sentenced
to
undergo
life
imprisonment under Section 302/149 IPC
along with fine of Rs. 30,000/- each with
default stipulation and further all the
appellants have also been sentenced under
Section 307/149 IPC for seven years
rigorous imprisonment along with fine of
Rs.
5000/-
with
default
stipulation.
Appellants Shishupal @ Rishi Pal and
Satendra Singh have been convicted under
Section 25/27 Arms Act and sentenced to
undergo two years rigorous imprisonment
with fine of Rs. 1000/- with default
stipulation.

3. The appellants have prayed for
their release on bail during the pendency of
this criminal appeal before this Court.

4. An abridgment of the facts of the
prosecution case are that on 10.8.2009 at
about 4 p.m., the complainant Ramesh
Singh (P.W.-1), his brother Rajveer and his
father Harcharan Lal (P.W.-2) and one
Rajan Singh were coming to his village
Maselya from Village Baseri Bhar, P.S.
9 All. Suraj & Ors. Vs. State of U.P.
783
Dauki, District Agra City in his Tavera
vehicle and when they reached near their
village, they stopped their vehicle and
seeing the crowd at their field, they went
there and saw that measurement of fields of
Ganpati and Bachchu Koli were going on
and at that time seeing them, appellant
Jomdar son of Hajarilal exhorted others to
kill them because at their instance, the
measurements of their fields got started. At
this, appellants Suraj Bhan, Mahesh, Rishi
Pal, Surendra, Satendra, who were armed
with country made pistols, revolver and fire
arms, with an intention to kill opened fire at
them, as a result of which, brother of
complainant
Rajveer
Singh
died
instantaneously on the spot and the
complainant and his father also sustained
grievous injuries.

5. Learned counsel for the appellants
has argued that the trial Court has not
appreciated the evidence properly with
regard to cross case so as to determine as to
which party was aggressor and has
convicted the appellants without proper
application of mind. He further submitted
that the statements of prosecution witnesses
are not reliable and trustworthy, who were
also an accused in cross case. It is further
submitted that genesis of the incident has
been suppressed by the prosecution and the
members of both the side have received
injuries but the prosecution has failed to
explain the injuries sustained by the
accused appellants.

6. Further submission is that in this
case, there were cross cases and total ten
persons have been convicted on both the
sides. It is further submitted that the
witnesses have not made any attempt to
explain any injuries on the side of accused.
The attention of the court was invited to the
medical evidence to point out that injuries
have been sustained by the members of
both the sides. The attention of the court
was also invited to the findings recorded by
the trial court to submit that the trial court
has failed to establish as to who was the
aggressor.

7. It is further submitted that having
regard to the facts which have come on
record, the accused had every reason to
apprehend that such assault would cause
death or at least grievous hurt to them. It
was
submitted
that
under
the
circumstances, it cannot be said that the
accused had exceeded their right to self
defence. The learned advocate appearing on
behalf
of
the
appellants
vehemently
contends that the members of the victimparty were the aggressors.

8. It is further contended by learned
counsel for the appellants that on the date of
incident, the measurements of field was going
on in presence of police personnel and the
revenue officer and it is the complainants'
side, who came there in a Travera Car and
thereafter the alleged incident took place to
contend that it was the deceased party, who
were the aggressor and they had assaulted the
appellants side and also inflicted injuries on
the appellants side in which four persons
from the side of the appellants had sustained
grievous injuries.

9. Submission of learned counsel for
the appellants is further that the appellants
are innocent. It is stated that the appellant
no. 1 is aged about 82 years, appellant no. 2
Jomdar is aged about 84 years and all the
appellants were on bail during trial and
have not misused the liberty of bail granted
to them. They are in jail since 11.4.2019
and there is a fair chance to succeed in the
appeal and disposal of the appeal will take
time.
784 INDIAN LAW REPORTS ALLAHABAD SERIES

10. On the other hand, leaned AGA as
well as learned counsel for the complainant
invited the attention of the court to the first
information
report
as
well
as
the
testimonies of the witnesses to submit that
the witnesses have consistently deposed
and narrated the incident and hence their
depositions
cannot
be
said
to
be
untrustworthy. It is submitted that from the
evidence on record, it is evident that the
applicants-accused were the aggressors in
the offence and that, this is not a case of a
free fight. It is further submitted that
having
regard
to
the
facts
and
circumstances of the case, no case is made
out for exercise of discretion in favour of
the applicants and the application, being
devoid of any merit, deserves to be
dismissed.

11. The evidence on record prima
facie reveals that apart from deceased, the
accused
side
also
sustained
injuries,
however, it is the case of the applicants that
such injuries are not explained by the
prosecution.

12. It is well settled law that if
accused is proved to have sustained injuries
in course of same incident and there is no
explanation of such injuries by the
prosecution, it is a manifest defect in the
prosecution case and shows that the origin
and genesis of the occurrence had been
deliberately suppressed which leads to the
irresistible conclusion that the prosecution
has not come out with a true version of the
occurrence.

13. In the case of State of Gujarat
VS Bai Fatima, 1975 SCC (Cri) 384, it
has been observed as under:-

"In a situation like this when the
prosecution fails to explain the in juries on
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 prosecution
version of the occurrence doubtful and the
charge against the accused cannot be held
to have been proved beyond reasonable
doubt.

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

14. In the case of Lakshmi Singh
and Others Vs State of Bihar, (1976) 4
SCC 394, the Hon'ble Supreme Court has
observed as under:-

"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."
9 All. Ram Shanker & Ors. Vs. State of U.P.
785

15. Aforesaid settled view of Hon'ble
Supreme Court was further followed in
Para 18 of the case reported in Babu Ram
& others vs. State of Punjab, 2008 (3)
SCC 709, and further in para 22 of another
case reported in (2009) 16 SCC 649
(Amarjit Singh vs. State of Haryana).

16. It is, therefore, incumbent upon the
prosecution to explain the injuries on the person
of the accused as well and prima facie this
lacuna or infirmity appearing in the prosecution
case, entitles the applicants to be enlarged on
bail. However, there may be cases where the
non-explanation of the injuries by the
prosecution may not affect the prosecution case
but that would apply to cases where the injuries
sustained by the accused are minor and
superficial. In the instant case, prima facie what
we find from the record is that four persons
from the accused side namely Shishupal, Suraj
Bhan, Mahesh and Surendra have sustained
grievous injuries of which there is no
explanation forthcoming from the side of the
prosecution.

17. Having scanned through the
evidence on record, considering the facts
and circumstances of the case, and also
rival submissions of the parties, without
commenting anything on the merit of the
case, prima facie we find that a case of bail
is made out.

18. Let the appellants, namely Suraj
Bhan, Jomdar, Mahesh, Shishu Pal @ Rishi
Pal, Surendra and Satendra be released on
bail on each of them executing a personal
bond and furnishing two sureties each in
the like amount to the satisfaction of the
court concerned in Sessions Trial No. 1139
of 2009 (State Vs Jomdar and others), and
Sessions Trial No. 123 of 2010 (State Vs
Surendra), arising out of Case Crime No.
199 of 2009, under Sections 147, 148,
302/149, 307/149 IPC, and Sessions Trial
No. 03 of 2010 (State Vs Satendra), and
Sessions Trial No. 1140 of 2009 (State Vs
Shishu Pal @ Rishi Pal) arising out of Case
Crime Nos. 200 of 2009 & 201 of 2009
respectively, under Sections 25/27 Arms
Act, P.S. Kagarol, District Agra subject to
deposit of whole of the fine amount
imposed on them within a month from the
date of their release.

19. On acceptance of bail bond and
personal bond, the lower court shall transmit
photostat copies thereof to this Court for being
kept on the record of this appeal.

20. It is made clear that any
observations made while deciding this
application
are
merely
prima
facie
observations made for the purpose of grant
of bail and shall have no bearing on the
final outcome of the appeal.

21. The lower court record is
available. Office is directed to prepare the
paper book within two months.

Learned counsel for the parties may
collect the paper book thereafter from the
office.

22. List this appeal for hearing in due
course.
----------
(2020)09ILR A785
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2020

BEFORE

THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No.14 of 1987

Ram Shanker & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party