# Suresh v. State of U.P. Opp. Party

- **Citation:** (2022) 10 ILRA 386
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-20
- **Case number:** Crl. Appeal No. 3379 of 2002
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-v-state-of-u-p-opp-party-47731
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section - 313, 374 & 437(a) - Indian
Penal Code, 1860 - Sections 34 & 302: -
Criminal Appeal - Conviction & Sentence - Life
imprisonment - offence of murder - FIR -
allegations that, accused (appellant) threaten to
the informant and thereafter he attacked U.P.on
him armed with a knife along with his two brother
whom were armed with a bottle of acid and with
iron rods, in said attacked wife of informant was
injured in knife & acid attack due to which she died
while in treatment - Evaluation of Evidence - court
finds that, the genesis of crime disclosed by the
prosecution is not entirely reliable - as all the eyewitnesses are close relatives - neither knife nor
bottle of acid or the sole 'two rU.P.ee note' which
was the bone of contention are recovered - no any
mark of acid was found on the ground - trial court
was not entirely convinced with the prosecution
case and granted benefit of doubt to the two coaccused brothers of accused on the basis of same
set of evidences - since all the accused were
charged u/s 34 therefore, their acquittal on the
basis of same set of evidence is also a ground
available for the accused appellant to claim benefit
of doubt - held - prosecution fails in proving the
guilt of accused appellant beyond reasonable
doubt - impugned order of conviction & sentence
is set aside - appellant shall be set at liberty
subject to compliance of section 437-A of Cr.P.C. -
Appeal allowed. (Para - 35, 36, 39, 40, 41)

Appeal Allowed. (E-11)

List of Cases cited:

## Text

386 INDIAN LAW REPORTS ALLAHABAD SERIES
already undergone by him. Judgment and
order of the court below dated 27.04.2006
is accordingly modified. Since the accused
appellant no.1 is on bail, his sureties and
bonds shall stand discharged and he shall
be set at liberty, unless is wanted in any
other case subject to compliance of section
437A Cr.P.C.

So far as the appeal at the instance of
accused appellant nos.2 and 3 is concerned
it succeeds and is allowed. Judgment and
order dated 27.04.2006, to the extent of
appellant nos.2 and 3, is set aside. Since the
accused appellant nos.1 and 2 are on bail,
their sureties and bonds shall stand
discharged and they shall be set at liberty,
unless they are wanted in any other case
subject to compliance of section 437A
Cr.P.C.
----------
(2022) 10 ILRA 386
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Crl. Appeal No. 3379 of 2002

Suresh ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri S.K. Mishra, Sri Mohd. Raghib Ali, Sri Mohd.
Raghib Ali, A.C., Sri Saghir Ahmad, A.C.

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

Criminal Law - Criminal Procedure Code,
1973 - Section - 313, 374 & 437(a) - Indian
Penal Code, 1860 - Sections 34 & 302: -
Criminal Appeal - Conviction & Sentence - Life
imprisonment - offence of murder - FIR -
allegations that, accused (appellant) threaten to
the informant and thereafter he attacked U.P.on
him armed with a knife along with his two brother
whom were armed with a bottle of acid and with
iron rods, in said attacked wife of informant was
injured in knife & acid attack due to which she died
while in treatment - Evaluation of Evidence - court
finds that, the genesis of crime disclosed by the
prosecution is not entirely reliable - as all the eyewitnesses are close relatives - neither knife nor
bottle of acid or the sole 'two rU.P.ee note' which
was the bone of contention are recovered - no any
mark of acid was found on the ground - trial court
was not entirely convinced with the prosecution
case and granted benefit of doubt to the two coaccused brothers of accused on the basis of same
set of evidences - since all the accused were
charged u/s 34 therefore, their acquittal on the
basis of same set of evidence is also a ground
available for the accused appellant to claim benefit
of doubt - held - prosecution fails in proving the
guilt of accused appellant beyond reasonable
doubt - impugned order of conviction & sentence
is set aside - appellant shall be set at liberty
subject to compliance of section 437-A of Cr.P.C. -
Appeal allowed. (Para - 35, 36, 39, 40, 41)

Appeal Allowed. (E-11)

List of Cases cited:

1. Kumar Vs St. Represented by Inspector of Police
(2018 (6) JT 85),

2. Ramanand @ Nandlal Bharti Vs St. of U P
(Criminal Appeal Nos. 64-65 of 2022, decided on
13.10.2022

3. Raghunath Vs St. of Har., (2003) 1 SCC 398,

4. Khema & ors. Vs St. of U.P. & ors., AIR 2022 SC
3765

5. Vadivelu Thevar Vs St. of Madras, 1957 SCR 981

(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Shiv Shanker Prasad, J.)

1. Accused appellant Suresh has been
convicted under Section 302 IPC and
sentenced to rigorous life imprisonment
10 All. Suresh Vs. State of U.P.
387
alongwith fine of Rs. 1000/- and on failure
to pay the fine to undergo six months
additional imprisonment; while his two
brothers Hansu and Rakesh who were
charged under Section 302/34 IPC have
been acquitted vide a composite judgment
and order of the Additional Sessions Judge
(Fast Track Court No. 4), Firozabad, dated
21.6.2002 and 22.6.2002. Thus aggrieved
the accused appellant Suresh is before this
Court in the present appeal filed under
Section 374 of the Code of Criminal
Procedure. No appeal is preferred by the
State against the acquittal of the two coaccused Hansu and Rakesh, who are the
real brothers of accused appellant Suresh.

2. A written report was given by the
first informant Harish Kumar Fanda (PW1) stating that the accused appellant at
about 10.30 in the morning came to his
shop to purchase Tobacco for Rs. 2.00. The
informant refused to accept the tender as
the Two Rupee Note offered was torn. The
accused
appellant
went
back
after
threatening that he would see the informant
and his family. At about 11.30 accused
appellant armed with a knife, his two
brothers Hansu armed with a bottle of Acid
and Rakesh armed with two iron rods
(saria) rushed towards him. The informant
out of fear closed the door of the shop. The
accused then rushed to enter the adjoining
house of the informant, which was objected
by the wife of informant Karuna Fanda,
when the accused appellant inflicted knife
blow below her chest. Accused Hansu is
stated to have thrown acid bottle towards
Karuna Fanda which ricocheted and the
acid got sprinkled on Hansu and Suresh.
The informant rushed his wife to the
hospital where she died. The incident is
said to have been seen by Ram Lal Fanda
(PW-2),
Sumitra
Devi
(mother
of
informant) and Banwari. Sumitra Devi has
not been adduced in evidence while
Banwari has died. On the basis of such
written report scribed by PW-2 the first
information report in Case Crime No. 509
of 1995, under Section 302 IPC, Police
Station Shikohabad, District - Firozabad,
was registered at 12.45 pm on 7.11.1995 in
respect of the incident occurring at 11.30
am on the same day.

3. The Investigating Officer recovered
two iron rods (saria), edge of one of which
was pointed while the other was flat near
the place of occurrence vide Exhibit Ka-2.
Bloodstained earth from the spot was also
recovered
vide
Exhibit
Ka-3.
Panchayatnama was conducted at the
hospital, where the dead body was kept,
and the cause of homicidal death appeared
to be the wound six fingers below the chest
of the deceased. Panch witnesses were of
the view that the deceased has died on
account of stab wound. The dead body was
accordingly sealed and sent to mortuary
where the postmortem was conducted by
Dr. R.K. Garg (PW-4). In the postmortem,
the cause of death has been determined as
shock and bleeding on account of following
ante-mortem injury:-

"1. Incised wound 4.0 cm x 1.0 cm x
chest cavity deep on (Lt) side front of chest
9.5 cm below and lateral to left nipple at 5
''O' clock position."

4. The investigation proceeded and
ultimately a charge sheet (Ex. Ka. 11) was
submitted by the police against the accused
appellant and his two brothers Rakesh and
Hansu. The Magistrate took cognizance and
committed the case to the court of sessions
where the charges were framed against
them. Vide order dated 23.10.1998, the
accused appellant was charged of offence
under Section 302 IPC, while his two
388 INDIAN LAW REPORTS ALLAHABAD SERIES
brothers namely Hansu and Rakesh were
charged under Section 302/34 IPC by a
separate order. The charges were read out
to the accused who denied them and
demanded trial.

5. The prosecution in order to establish the
charges
against
accused
appellants
produced oral testimonies of following
witnesses:-

"1. Harish Kumar Fanda PW-1

2. Ram Lal Fanda PW-2

3. Yogesh Kumar PW-3

4. Dr. R.K. Garg PW-4

5. Shiv Charan Pal PW-5

6. Siyaram Sharma CW-1

7. Dr. Lakhan Singh CW-2"

6. Documentary evidences have also
been adduced by the prosecution consisting
of FIR as Ex.Ka. 12; written report as
Ex.Ka.1; recovery memo of Iron ''Saria' as
Ex.Ka. 2; recovery memo of blood from
stairs as Ex. Ka.3; Postmortem Report as
Ex.Ka. 10; Panchayatnama as Ex. Ka. 4
and Charge Sheet as Ex. Ka. 11.

7. PW-1 is the first informant who has
supported the prosecution case by stating
that the accused appellant Suresh is a
resident of Punjabi Colony Shikohabad
who came to his shop and offered a two
rupee torn note for purchasing Kapoori
Tobacco and as the note was torn, the
informant refused to accept it, on which
Suresh threatened the informant that he
would see him and his family. After about
an hour, on the same day, Suresh armed
with a knife alongwith Hansu and Rakesh
who had acid bottle and iron rods in their
hands rushed towards the shop of the
informant. On seeing this PW-1 put the
shutters down. The accused then rushed
towards the house of the informant hurling
abuses. Informant's wife was standing near
the gate/shutter and she objected to their
entry on which the accused appellant
Suresh stabbed her. Acid bottle was also
allegedly thrown by Hansu but the acid got
sprinkled on Suresh and Hansu. PW-1 has
proved the written report (Ex.Ka-1) and has
also supported the recoveries of plain earth;
bloodstained earth and two iron rods by
signing on the memo of recovery.

8. In the cross-examination PW-1 has
admitted that accused Suresh, Hansu and
Rakesh are the sons of his real uncle, which
indicates that the accused and the informant
are first cousin. He has also admitted that
the lane passing between the house of
accused and his house is rather narrow. At
the time of incident accused appellant
Suresh was not working while Hansu was
working in a hotel running a tandoor. He
has stated that one of the two iron rods
recovered had a sharp edge while the other
was flat and these rods were used for
preparing chapatis in tandoor. He has stated
that these iron rods have not been used for
commissioning of offence and there was no
scuffle of accused with any of the
witnesses. He has shown ignorance about
the arrest of Hansu or his medical
examination. He has also admitted that no
injuries from acid have been caused to first
informant or the deceased or any of the
witnesses. He has further admitted that at
the time of collection of bloodstained earth
no empty bottle of acid was found. PW-1
further stated that acid bottles were taken
by the accused persons and non mentioning
of such facts cannot be explained by him.
He has further admitted that acid stained
earth have not been recovered from the
spot, nor any acid was found and even on
the wall or the channel of his gate no stains
of acid were found. PW-1 has stated that he
saw accused appellant stabbing his wife
10 All. Suresh Vs. State of U.P.
389
while standing at a distance of 4 ft. in the
gallery from the place of occurrence. PW-1
denied the suggestion that there was any
dispute on account of his father having
grabbed the ancestral house of the accused
or that Hansu was attacked with knife by
informant while he was going for work or
that acid was thrown on Hansu by the
deceased and the deceased while turning
after throwing the acid got accidentally
stabbed with the knife in the hands of the
informant. He has further denied the
suggestion that he did not allow the report
of Hansu to be registered when he had gone
to the police station or that Hansu was
falsely implicated.

9. PW-2 is the father of informant
who
has
similarly
supported
the
prosecution case. In the cross-examination
he has stated that he saw the incident from
the road in front of the shop of the
informant. In cross-examination he has also
denied the suggestion that he wanted to
grab the ancestral house of the accused or
that the incident occurred when his son
(PW-1) attempted to stab Hansu and the
deceased threw acid and that she got
accidentally stabbed while turning back.

10. PW-3 Yogesh Kumar was posted
in the concerned Police Station and has
proved the panchayatnama as also site plan.
He has admitted that he was not the
Investigating Officer, but he had made the
recoveries on the asking of the SHO. The
iron rods recovered, however, have not
been produced before the Court.

11. Dr. R.K. Garg is PW-4 who has
conducted the autopsy on the deceased. He
has stated that there was only one injury on
the deceased and her 8th rib was cut. Both
sides of injury were sharp. He has also
stated that it was not necessary that the
weapon of assault in this case be
necessarily sharp for causing the aforesaid
injury.

12.

PW-5
Shivcharan
Pal,
Investigating Officer, has proved the
chargesheet and has stated that PW-3
Yogesh Kumar was orally directed to
undertake investigation and that there was
no order by him in writing to conduct
investigation by him. He has also stated
that plain earth was not taken from the
place of occurrence and the place from
where the bloodstained earth has been
taken has also not been specified in the site
plan. This witness has clearly stated that
neither any acid has been found on the spot,
nor the place where bottle of acid fell has
been specified. It has also not been
specified as to what happened to the acid
bottle.

13. Siyaram Sharma, Pharmacist,
R.N.M. Hospital, Shikohabad has appeared
as CW-1 and has produced the records in
respect of the injury caused to Hansu S/o
Deshraj. The original register has also been
produced by him. Dr. Lakhan Singh has
also been adduced as CW-2 who had
examined Hansu at 5.15 pm on 7.11.95 and
following injuries have been found on him
by the concerned doctor:-

^^pksV ua0 1 & tyus dh pksV 1⁄4fu'kku1⁄2 iwjs psgjs
ds vk/ks fgLls es] xnZu Nkrh isV nksuks gkFkksa ds vxys
fgLlks esa nksuks tkWa?kks ds vxys fgLls esa ;s pksV
lqijfQf'k;y FkhA yxHkx 45% 'kjhj ds fgLls ij Fkh
yky jax dh FkhA Qqksys ugha FksA^^

It was, however, opined by the doctor
that these injuries were superficial and
could be caused by chemical burn. He has
also certified that injuries were fresh and
could come from acid. The doctor has
further stated that Hansu was kept under
390 INDIAN LAW REPORTS ALLAHABAD SERIES
observation and although he described the
injury as superficial but it could prove fatal
since burn percentage was more than 20%
and he was referred to the district hospital.
The doctor was not informed of any further
development in the matter.

14. Trial Court found the testimony of
PW-1 and PW-2 to be truthful and reliable
and on its basis came to the conclusion that
deceased has been stabbed by the accused
appellants and consequently convicted the
accused appellant for offence under Section
302 IPC. So far as injuries on Hansu is
concerned the court below has not given
much importance to it as the injuries were
allegedly superficial and thus ignored. A
finding has been returned that accused
persons were present on the spot. The court
below however found that prosecution has
not been able to prove the guilt of Hansu
and Rakesh beyond reasonable doubt and
they were acquitted by giving them benefit
of doubt.

15. Sri Saghir Ahmad, learned Senior
Counsel assisted by Sri Raghib Ali, has
appeared as Amicus Curiae for the
appellant, and submits that the prosecution
has not established the genesis of crime in
the manner disclosed by it on the strength
of prosecution evidence. He further submits
that the cause of death and the manner of
death have not been proved. He also argues
that injuries of Hansu have not been
explained and as the witnesses are
interested witnesses their testimony is not
reliable and trustworthy and consequently
the accused appellant is entitled to benefit
of doubt. He further submits that the
acquittal of Hansu and Rakesh by the trial
court despite offences alleged under section
34 IPC, on the basis of same set of
evidence, is also a ground to extend same
benefit to the accused appellant. Contention
is that PW-1 and PW-2 since are not
reliable
witnesses
and
are
otherwise
interested persons and the injuries on
Hansu have not been explained and the
weapon of assault i.e. the knife has not
been recovered, as such, the conviction of
accused appellant is bad in law.

16. Learned AGA, on the other hand
states that the ocular evidence matches the
postmortem report and since PW-1 and
PW-2 have specifically seen the incident, in
which solitary stab wound was caused by
the accused appellant, as such, the
conviction recorded by the court below is
valid.

17. Having heard the respective
counsels, we have examined the original
records of the case in order to determine
whether the prosecution has succeeded in
establishing the guilt of accused appellant,
beyond reasonable doubt?

18. The first information report in the
present case has been lodged on the basis
of written report wherein the genesis of
crime is alleged to be a dispute regarding
non acceptance of tender of Rs. 2.00 on the
ground that the note was torned. This,
according to the prosecution, is the cause of
provocation and also the motive on account
of which the accused appellant came armed
with a knife alongwith his two brothers and
attacked the informant with knife, acid and
iron rods.

19. The genesis of crime is thus
required to be examined in the facts of the
present case before adverting to the
credibility and reliability of the two eyewitnesses, whose testimony forms the basis
of conviction of accused appellant. The FIR
version as also the statement in chief of
PW-1 suggests that accused is a stranger
10 All. Suresh Vs. State of U.P.
391
and on flimsy premise has stabbed the
deceased.
This
apparent
impression,
however, is not supported by the evidence
on record.

20. Firstly, the dispute regarding non
acceptance of two rupee note does not, on
its own, constitutes sufficient provocation
for the assault on the informant and
deceased.
Moreover,
in
the
crossexamination of PW-1 it is clearly admitted
that the three accused are the uncle's son of
informant and, therefore, informant is the
first cousin of the three accused. PW-1
moreover has admitted in his crossexamination that the mother of accused has
been subsequently murdered wherein the
informant is the prime accused.

21. Although there is no defence
evidence substantiating any alternative
genesis of crime or motive for occurrence
of incident or false implication but a
suggestion has been given to PW-1 that his
father wanted to grab the ancestral house,
in which the accused also had a share,
which suggestion is nevertheless denied. It
is also to be noticed that according to the
site plan the accused and informant live in
close vicinity and their houses are just
across a narrow lane. The close relationship
between the parties as also the admission of
PW-1 that he is accused of murdering the
mother of accused appellant clearly goes to
show that relationship between them was
not cordial.

22. In the facts of the case there are
only two eye-witnesses who are interested
witnesses being the husband and father-inlaw of deceased. Law is settled that
testimony of interested witnesses can
always be looked into but only after
subjecting it to cautious and careful
scrutiny.

23. As we have already seen from the
evidence brought on record that the genesis
of crime disclosed by the prosecution is not
entirely reliable and eye-witnesses are close
relatives of the deceased the facts asserted
by the prosecution will have to be minutely
scrutinized.

24. The prosecution witnesses have
stated that the accused appellant alongwith
his two brothers rushed towards the
informant's shop on account of the motive
disclosed i.e. non acceptance of two rupee
note. Accused appellant is alleged to have
carried a knife which admittedly is neither
recovered nor produced before the court.
The two rupee torn note, which was the
bone of contention as per prosecution and
provided the genesis has also not been
recovered or produced in evidence. So far
as
Hansu
possessing
acid
bottle
is
concerned neither any acid has been found
on the ground at the place of crime nor any
acid marks were noticed on the nearby
walls/shutter. These are circumstances
which adds to the cloud on the prosecution
case. The further fact that the informant or
the deceased did not sustain any chemical
burn injuries despite the prosecution case
that acid was thrown on them by Hansu
also puts a question on the prosecution
case.

25. PW-1 has disclosed that Hansu
threw acid bottle and the acid fell on
Suresh and Hansu. No burn injuries from
acid attack is found on Suresh. Such
injuries are found only on Hansu. The
statement of PW-1 that acid fell on Suresh
is thus found incorrect.

26. It is difficult to believe that acid
thrown on deceased/informant from close
distance would not cause any injuries upon
them nor any signs of acid would be
392 INDIAN LAW REPORTS ALLAHABAD SERIES
available on the nearby walls/shutter/floor.
No acid bottle has been recovered either.

27. Although there is no defence
witness on this aspect, yet, it may be worth
noticing that the accused Hansu in his
statement under section 313 Cr.P.C. has
denied that he was carrying acid. Moreover,
he has stated that he was going to hotel for
work when the deceased threw acid on him
and the deceased was hit by knife of
informant by which the informant intended
to assault him. The reply of Hansu to
question
no.13
is
relevant
and
is
reproduced hereinafter:-

^^eS gksVy ij dke djus tk jgk FkkA d:.kk
Q.Mk us esjs ij rstkc Mkyk FkkA gjh'k pkdw esjs ekj
jgk Fkk tks d:.kk Q.Mk ds yxkA esjk HkkbZ jkds'k
fjiksVZ djus eq>s fjiksVZ djus Fkkus ys x;k iqfyl us
eq>s tyh gqbZ voLFkk esa ogha cSBk fy;k rFkk fjiksVZ
izkIr dj esjs HkkbZ dks ns nh rFkk eq>s esfMdy djkus
ds uke ij ogha cSBk fy;kA^^

28. Accused appellant has also stated
under section 313 Cr.P.C. that deceased was
hit by the knife of informant and that the
deceased threw acid on Hansu.

29. Dr. Lakhan Singh has appeared as
court witness and proved that burn injuries
were caused to Hansu on his half face,
neck, chest, both hands and thighs which
was on 45% of his body. He has opined that
such burn injuries could be caused by acid
attack. He has further stated that though he
recorded the injuries to be superficial but as
the burn was above 20% and could be fatal
as such the patient was kept under
observation and was referred to S.N.M.
Hospital, Firozabad.

30. It is not clear whether Hansu was
actually referred to S.N.M. Hospital,
Firozabad. No complaint/report at the
instance of Hansu is otherwise on record.
The only explanation furnished under
section 313 Cr.P.C. is that Hansu went to
police station for lodging the report but he
was detained and the report was received
by the police.

31. The trial court has ignored the
injuries caused to Hansu only on the
ground that such injuries were superficial.
The statement of Dr. Lakhan Singh that
burn was above 20% and could be fatal or
that Hansu was referred to the district
hospital has been completely overlooked.

32. On the basis of evidence led by
the prosecution on the aspect relating to
alleged throwing of acid by Hansu, and his
sustaining burn injuries as acid also
fell/sprinkled on him, we are not impressed
by the reasoning assigned by the trial judge
for ignoring the injuries caused to Hansu.
We are not inclined to accept that burn
injuries would be sustained on 45% of the
body only because some acid fell/got
sprinkled on Hansu while throwing the acid
bottle upon the informant or the deceased,
particularly when no burn injuries are
found on the deceased or the informant,
although acid was allegedly thrown on
them.

33. Learned Senior Counsel for the
appellant submits that where the genesis of
crime is suppressed and the injuries on
accused are not explained the evidence of
prosecution witnesses relating to the
incident cannot be treated as true or at any
rate not wholly true and cannot be relied
upon to convict an accused. Reliance is
placed upon a judgment of Supreme Court
in Kumar Vs. State Represented by
Inspector of Police, 2018 (6) JT 85,
wherein the Court observed as under in
para 27 to 29 of the report, which is
reproduced hereinafter:-
10 All. Suresh Vs. State of U.P.
393

"27. Another point put forth by the
learned counsel on behalf of the accused--
appellant is that the prosecution has not
explained the injuries suffered by the
accused and hence prosecution case should
not be believed. At the outset, it would be
relevant to note the settled principles of law
on this aspect. Generally 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 [See : Mohar Rai and Bharath Rai v.
The State of Bihar, 1968 CriLJ 1479].

28. In Lakshmi Singh and Ors. v. State
of Bihar, 1976 CriLJ 1736 this Court
observed:

"Where
the
prosecution
fails
to
explain the injuries on the accused, two
results follow :

(1)
that
the
evidence
of
the
prosecution witnesses is untrue; and

(2) that the injuries probabilise the
plea taken by the appellants.

It was further observed that:

In a murder case, the non-explanation
of the injuries sustained by the accused at
about the time of the occurrence or in the
course of altercation is a very important
circumstance from which the Court can
draw the following inferences :

(1) that the prosecution has suppressed
the genesis and the origin of the occurrence
and has thus not presented the true version;

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

(3) that in case there is a defence
version which explains the injuries on the
person of the accused 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
prosecution one."

29. In the case on hand, admittedly,
the accused--appellant was also injured in
the same occurrence and he too was
admitted in the hospital. But, prosecution
did not produce his medical record, nor the
Doctor was examined on the nature of
injuries sustained by the accused. The trial
Court,
instead
of
seeking
proper
explanation from the prosecution for the
injuries sustained by the accused, appears
to have simply believed what prosecution
witnesses deposed in one sentence that the
accused had sustained simple injuries
only."

34. Recently, a three judge bench of
the Supreme Court in Ramanand @
Nandlal Bharti vs. State of Uttar Pradesh,
Criminal Appeal Nos. 64-65 of 2022,
decided on 13.10.2022, has again examined
the issue and reiterated the law on the
subject in paras 111 to 115, which are
reproduced hereinafter:-

"111. In Dhananjay Shanker Shetty v.
State of Maharashtra, (2002) 6 SCC 596, in
paragraph
10
in
reference
to
the
circumstantial evidence, in the case of
murder, the nonexplanation of injuries on
accused by prosecution was held to be
significant when there are circumstances
which makes prosecution case doubtful.
For the relevant purpose, the relevant
extract of paragraph 10 is extracted as
below:

"10. ....But nonexplanation of injuries
assumes significance when there are
material circumstances which make the
prosecution case doubtful. Reference in this
connection may be made to recent
decisions of this Court in the cases of
Takhaji Hiraji v. Thakore Kubersing
Chamansing [(2001) 6 SCC 145 : 2001
394 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC (Cri) 1070] and Kashiram v. State of
M.P. [(2002) 1 SCC 71 : 2002 SCC (Cri)
68]. In the present case, nonexplanation of
injuries on the appellant by the prosecution
assumes
significance
as
there
are
circumstances which make the prosecution
case, showing the complicity of the
appellant with the crime, highly doubtful."

[Emphasis supplied]

112. In Mohar Rai and Bharath Rai v.
State of Bihar, AIR 1968 SC 1281, it was
observed:

"6. .....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."

[Emphasis supplied]

113.
In
another
important
case
Lakshmi Singh and Others v. State of
Bihar, (1976) 4 SCC 394, after referring to
the ratio laid down in Mohar Rai (supra),
this Court observed:

"12. .....where the prosecution fails to
explain the injuries on the accused, two
results follow: (1) that the evidence of the
prosecution witnesses is untrue; and (2)
that the injuries probabilise the plea taken
by the appellants....."

114. It was further observed that:

"12.
.....in
a
murder
case,
the
nonexplanation of the injuries sustained by
the accused at about the time of the
occurrence or in the course of altercation is a
very important circumstance from which the
court can draw the following inferences:

(1) that the prosecution has suppressed
the genesis and the origin of the occurrence
and has thus not presented the true version;

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

(3) that in case there is a defence version
which explains the injuries on the person of
the accused it is rendered probable so as to
throw doubt on the prosecution case....."

115. In Mohar Rai (supra) it is made
clear that failure of the prosecution to offer
any explanation regarding the injuries found
on the accused may show that the evidence
related to the incident is not true, or at any
rate, not wholly true. Likewise in Lakshmi
Singh (supra) it is observed that any
nonexplanation of the injuries on the accused
by the prosecution may affect the prosecution
case. But such a nonexplanation may assume
greater importance where the defence gives a
version which competes in probability with
that of the prosecution. But where the
evidence is clear, cogent and creditworthy
and where the court can distinguish the truth
from falsehood, the mere fact that the injuries
are not explained by the prosecution cannot
itself be a sole basis to reject such evidence,
and consequently the whole case. Much
depends on the facts and circumstances of
each case. These aspects were highlighted by
this Court in Vijay Singh and Ors. v. State of
U.P., (1990) CriLJ 1510."

35. It appears that the trial court itself
was not entirely convinced with the
prosecution case and that is why it granted
benefit of doubt to the co-accused Hansu
and Rakesh on the basis of same set of
evidence. Since the two co-accused were
also charged under section 34 IPC,
therefore, their acquittal on the basis of
same set of evidence is also a ground
available for the accused appellant to claim
benefit of doubt.

36. Upon overall evaluation of the
evidence led in the matter we are not
convinced of the genesis of crime as
disclosed by the prosecution nor are we
satisfied with the explanation offered by the
10 All. Suresh Vs. State of U.P.
395
prosecution regarding injuries sustained by
the accused Hansu in the matter. The
testimony of the two eye witnesses PW-1
and PW-2, in our considered view, cannot
be entirely relied upon to convict the
accused appellant when on the same set of
evidence two other accused have been
acquitted by granting them benefit of
doubt.

37. In Raghunath vs. State of Haryana,
(2003) 1 SCC 398 the Supreme Court in
similar circumstances observed as under in
paragraph 22 to 24 and 33, which are
reproduced hereinafter:-

"22. As already pointed out, accused
Ram Kishan sustained as many as six injuries
on his body, Injuries 3 and 4 stated to be
grievous in nature. Both the trial court and the
High Court accepted the version of PW 2 that
the injuries were caused in self-defence. We
have already disbelieved the version of PW 2.
No explanation whatsoever has been afforded
by the prosecution with regard to the injuries
on the person of the accused Ram Kishan.

23.
The
question
whether
the
prosecution is obliged to explain the injuries
sustained by the accused in the same
occurrence and failure to explain injuries on
the accused would construe that the
prosecution has suppressed the truth and also
the origin and genesis of the occurrence, has
been in controversy before this Court in a
catena of decisions. A three-Judge Bench of
this Court in Ram Sunder Yadav v. State of
Bihar [(1998) 7 SCC 365 : 1998 SCC (Cri)
1630] (at SCC p. 366, para 3) referred to
another three-Judge Bench decision of this
Court in Vijayee Singh v. State of U.P.
[(1990) 3 SCC 190 : 1990 SCC (Cri) 378] ,
SCC at p. 202, para 10, which held as under:

"In Mohar Rai case [Mohar Rai v.
State of Bihar, AIR 1968 SC 1281 : 1968
Cri LJ 1479] it is made clear that failure of
the prosecution to offer any explanation
regarding the injuries found on the accused
may show that the evidence related to the
incident is not true or at any rate not wholly
true. Likewise in Lakshmi Singh case
[Lakshmi Singh v. State of Bihar, (1976) 4
SCC 394 : 1976 SCC (Cri) 671] also it is
observed that any non-explanation of the
injuries on the accused by the prosecution
may affect the prosecution case. But such a
non-explanation
may
assume
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 prosecution.
But where the evidence is clear, cogent and
creditworthy and where the court can
distinguish the truth from falsehood the
mere fact that the injuries are not explained
by the prosecution cannot by itself be a sole
basis
to
reject
such
evidence,
and
consequently the whole case."

24. In the present case, as noticed
earlier, the prosecution evidence consists of
interested or inimical witnesses. Therefore,
non-explanation of the injuries sustained by
Ram
Kishan
may
assume
greater
importance. There is also the defence
version which competes in probability with
that of the prosecution. In our view,
therefore, non-explanation of the injuries
sustained by the accused Ram Kishan,
which are grievous in nature, renders the
prosecution story not wholly true.

33. In the facts and circumstances
recited above, we are clearly of the view,
that the prosecution has not come up with
the true story. It has suppressed the facts. If
that be the case, the whole prosecution
story would stand on quicksand. The
prosecution has failed to establish its case
beyond reasonable doubts. It is now a wellsettled principle of law that if two views
are possible, the one in favour of the
accused and the other adversely against it,
396 INDIAN LAW REPORTS ALLAHABAD SERIES
the view favouring the accused must be
accepted."

38. In Khema and others vs. State of
U.P. and others, AIR 2022 SC 3765, the
Supreme Court has reiterated the previous
judgment of the Court in Vadivelu Thevar
vs. State of Madras, 1957 SCR 981,
wherein the Court emphasized that well
established rule of law is that the Court is
concerned with quality and not the quantity
of evidence necessary for proving or
disproving a fact. Generally speaking, oral
testimony may be classified into three
categories, namely: (1) wholly reliable, (2)
wholly unreliable and (3) neither wholly
reliable nor wholly unreliable. In the first
category the court may acquit or convict on
the testimony of a single witness, if it found
to be above reproach or suspicion of
interestedness,
incompetence
or
subornation. In the second category the
court has equally no difficulty in coming to
its conclusion. It is in the third category of
cases that the court has to be circumspect
and has to look for corroboration in
material particulars by reliable testimony,
direct or circumstantial.............

39. On the conspectus of above
consideration, we are of the opinion that
prosecution has not succeeded in proving
the guilt of accused appellant beyond
reasonable doubt on the basis of evidence
led by it.

40. For the reasons recorded above,
this appeal succeeds and is allowed. The
accused appellant is held entitled to the
benefit of doubt and consequently, the
judgment and order dated 21/22.6.2002,
passed by the Additional Sessions Judge
(FTC-4), Firozabad in Sessions Trial No.
157 of 1997, State Vs. Rakesh and others;
whereby the appellant Suresh has been
convicted under section 302 IPC in Case
Crime
No.509/1995,
Police
Station
Shikohabad,
District
Firozabad
and
sentenced to rigorous life imprisonment
alongwith fine of Rs. 1000/- and on failure
to pay the fine to undergo six months
additional imprisonment, is set aside.

41. The accused appellant Suresh
since is already on bail, his bail bond and
sureties shall stand discharged and he shall
be set at liberty, unless he is wanted in any
other case subject to compliance of Section
437A Cr.P.C.

42. We also record our appreciation
for the pro bono services rendered by Sri
Saghir Ahmad, learned Senior Counsel,
who has appeared as Amicus Curiae for the
appellant. Sri Raghib Ali, Advocate, who
has assisted the senior counsel shall
however be entitled to his fee from the
High Court Legal Service Authority.
----------
(2022) 10 ILRA 396
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.09.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Crl. Misc. Bail Application No. 2 of 2019
in Re:
Crl Appeal No. 6632 of 2019
alongwith connected cases

Hakim ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sri Sanjay Kumar Dwivedi, Sri Pankaj Kumar
Shukla

Counsel for the Respondent: