# Vishunath & Anr v. State of U.P - **Citation:** (2025) 11 ILRA 556 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2025-11-14 - **Case number:** Criminal Appeal No. 1153 of 2001 - **Bench:** Abdul Shahid - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishunath-anr-v-state-of-u-p-52876 - **Pages:** 4 ## Headnote Matter pertains to appreciation of evidence and differentiation of roles of co-accused under S. 307 IPC, where one accused caused firearm injury on a vital part and the other caused danda injury on a non-vital part, and whether identical sentence could be sustained. Headnotes Criminal Appeal - Appreciation of evidence - Distinct role of co-accused - Firearm injury on vital part by one accused and danda injury on non-vital part by another - Effect on conviction and sentence - S. 307 IPC - Attempt to murder - Nature and seat of injury - Use of deadly weapon - Intention inferred from injury on vital part - Evidence - Injured witness - Injured is best witness - Hostile witnesses - Conviction can be based on testimony of injured witness alone - Sentencing - Parity - Modification of sentence - Lesser role and non-vital injury - Reduction of sentence justified. Held: The incident dated 2.9.1998 at 10:00 p.m. is undisputed and the roles of appellant No.1 and appellant No.2 are different - The injured-Kallu (PW-1) specifically deposed that "there was danda in the hand of Vishunath and all the persons started beating to him - Arjun had fired on me", clearly attributing distinct acts to each appellant - The injury caused by appellant No.1 (Vishunath) was "on the hand, which is not the vital part" and caused by danda, "not a deadly weapon - The firearm injury caused by appellant No.2 (Arjun Pasi) was "on the lower abdomen/pelvis, which is vital part" and "may be fatal" though the complainant (PW-2) and eye-witness (PW-3) turned hostile, "the injured is the best-witness in the matter of injury cases", and his testimony inspires confidence - Conviction of both appellants under S. 307 IPC is upheld; however, in view of the lesser role of appellant No.1, sentence requires modification - Conviction and sentence of appellant No.2 (Arjun Pasi) upheld as awarded by the trial court - Conviction of appellant No.1 (Vishunath) upheld but sentence modified to 8 months' rigorous imprisonment, fine remaining unchanged - Appeal partly allowed. (Paras 7,8,9,12,15 -19) (E-7) 11 All. Vishunath & Anr. Vs. State of U.P. 557 Case Law Cited None cited. List of Acts Indian Penal Code, 1860 List of Keywords Firearm injury; Vital part; non-vital part; Danda; Injured witness; Hostile witness; Rigorous imprisonment; Sentence modified. Case Arising From Judgment and order dated 29.11.2001 passed in Session Trial No.197 of 1999 and 476 of 2000 (State vs. Vishunath and another) by Additional Sessions Judge, Court No.5, Unnao. Appearances for Parties Advs. for the Appellant: Dharmendra Singh, Gulam Mustafa Advs. for the Respondents: G.A. ## Text 556 INDIAN LAW REPORTS ALLAHABAD SERIES of his wife Sunita and sentencing him to undergo the minimum sentence of life imprisonment. Accordingly, the appeal deserves to be rejected. 61. The appeal is hereby dismissed. 62. The accused appellant is on bail, who shall surrender before the trial court within a month, to undergo the remaining sentence awarded to him by the trial court, failing which, the trial court is directed to adopt coercive measures for securing his presence, in accordance with law. (By the Court) There is disagreement between us regarding the final order in the appeal and the reasons for the same. In view of the aforesaid, let the records of the case be put up before Hon'ble the Chief Justice for nomination under Section 392 Cr.P.C. ---------- (2025) 11 ILRA 556 APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 14.11.2025 BEFORE THE HON'BLE ABDUL SHAHID, J. Criminal Appeal No. 1153 of 2001 Vishunath & Anr. ...Appellants Versus State of U.P. ...Respondent Counsel for the Appellants: Dharmendra Singh, Gulam Mustafa Counsel for the Respondent: G.A. Issue for Consideration Matter pertains to appreciation of evidence and differentiation of roles of co-accused under S. 307 IPC, where one accused caused firearm injury on a vital part and the other caused danda injury on a non-vital part, and whether identical sentence could be sustained. Headnotes Criminal Appeal - Appreciation of evidence - Distinct role of co-accused - Firearm injury on vital part by one accused and danda injury on non-vital part by another - Effect on conviction and sentence - S. 307 IPC - Attempt to murder - Nature and seat of injury - Use of deadly weapon - Intention inferred from injury on vital part - Evidence - Injured witness - Injured is best witness - Hostile witnesses - Conviction can be based on testimony of injured witness alone - Sentencing - Parity - Modification of sentence - Lesser role and non-vital injury - Reduction of sentence justified. Held: The incident dated 2.9.1998 at 10:00 p.m. is undisputed and the roles of appellant No.1 and appellant No.2 are different - The injured-Kallu (PW-1) specifically deposed that "there was danda in the hand of Vishunath and all the persons started beating to him - Arjun had fired on me", clearly attributing distinct acts to each appellant - The injury caused by appellant No.1 (Vishunath) was "on the hand, which is not the vital part" and caused by danda, "not a deadly weapon - The firearm injury caused by appellant No.2 (Arjun Pasi) was "on the lower abdomen/pelvis, which is vital part" and "may be fatal" though the complainant (PW-2) and eye-witness (PW-3) turned hostile, "the injured is the best-witness in the matter of injury cases", and his testimony inspires confidence - Conviction of both appellants under S. 307 IPC is upheld; however, in view of the lesser role of appellant No.1, sentence requires modification - Conviction and sentence of appellant No.2 (Arjun Pasi) upheld as awarded by the trial court - Conviction of appellant No.1 (Vishunath) upheld but sentence modified to 8 months' rigorous imprisonment, fine remaining unchanged - Appeal partly allowed. (Paras 7,8,9,12,15 -19) (E-7) 11 All. Vishunath & Anr. Vs. State of U.P. 557 Case Law Cited None cited. List of Acts Indian Penal Code, 1860 List of Keywords Firearm injury; Vital part; non-vital part; Danda; Injured witness; Hostile witness; Rigorous imprisonment; Sentence modified. Case Arising From Judgment and order dated 29.11.2001 passed in Session Trial No.197 of 1999 and 476 of 2000 (State vs. Vishunath and another) by Additional Sessions Judge, Court No.5, Unnao. Appearances for Parties Advs. for the Appellant: Dharmendra Singh, Gulam Mustafa Advs. for the Respondents: G.A. (Delivered by Hon'ble Abdul Shahid, J.) 1. This criminal appeal has been filed by the appellants-Vishunath and Arjun Pasi against the judgment and order dated 29.11.2001 passed in Session Trial No.197 of 1999 and 476 of 2000 (State vs. Vishunath and another) by Additional Sessions Judge, Court No.5, Unnao. 2. Heard Sri Gulam Mustafa, learned counsel for the appellants and Sri Vinay Kumar Shahi, learned AGA for the State 3. Brief facts of the case are that the alleged incident took place on 2.9.1998 around 10:00 in the night when the son of complainant-Kallu, Bachole and Ramraj were catching the fishes outside the village. At that time, Vishunath (appellant No.1),Arjun Pasi (appellant No.2) and one another person came near his son and scolding,Vishunath started beaten with danda. According to complainant, 'my son Kallu make the noise and ran away then he was catched by another person and Arjun had fired with Katta on him?. When complainant and other person tries to catch the accused persons, they ran away. 4. Learned counsel for the appellants has submitted that the injured has suffered only two injuries; (i) Traumatic swelling 10.8 cm x 8.0 cm around under left arm; (ii) Firearm wound of entry in an area of 8.0 cm x 6.0 cm and depth present in the part of lower abdomen around pelvis. As per X-Ray report, fracture of radius multiple red shadow metallic in the part of pelvis. 5. Learned counsel for the appellants has further submitted that the firmarm injury is caused by the appellant No.2-Arjun Pasi whereas the role of appellant No.1-Vishunath is of very lesser nature of beating the injured with Danda. The injury caused by the firmarm is on the abdomen, a vital part. The injury caused by appellant No.1 is on nonvital part, i.e., hand. The injury on the hand is neither serious in nature nor with intention to cause death or sufficient in the ordinary course to cause death. He has submitted that learned trial court had convicted both the appellants for the same period of conviction and sentence; whereas the role of both the appellants are absolutely different. The nature of injuries are also very different. There is no criminal history of both the appellants. They had not committed any offence since 1998, approximately 27 years have passed. Hence, the appeal may kindly be allowed and the impugned judgment and order be set aside. 6. On the other hand, learned AGA for the State has submitted that both the 558 INDIAN LAW REPORTS ALLAHABAD SERIES appellants had committed the said offence with the common intention. The injury on vital-part, the abdomen, is serious in nature and it may cause death. The judgment has no illegality or irregularity. The present criminal appeal is liable to be dismissed. 7. It is undisputed that the alleged incident took place on 2.9.1998 at 10:00 p.m. The role of appellant No.1 and appellant No.2 are different. The nature of injury caused by the appellant No.1 (Vishunath) is on the hand, which is not the vital part whereas the injury caused by appellant No.2 (Arjun Pasi) by way of firearm on the injured Kallu is on the vital part (lower abdomen/pelvis). 8. The statement of injured-Kallu has been recorded as PW-1, who has specifically deposed that there was danda in the hand of Vishunath and all the persons started beating to him. ?Arjun had fired on me?. 9. The injured has already verified this fact and he is the best-witness. The injured has specified the role of appellant No.1 is only of beating with danda; whereas the appellant No.2 had fired on him. It is specifically clear that no firearm injury was caused to the injured-Kallu by appellant No.1. The injury alleged to be caused by appellant No.1 is on non-vital part, i.e., hand and that too by danda only, which is not a deadly weapon. The firmarm injury caused by appellant No.2 is on the lower abdomen/pelvis, which is vital part. 10. Swami Dayal (PW-2), is the father of the injured-Kallu as well as complainant of the present case. In his examination-inchief, he had specifically deposed that Vishunath (appellant No.1) had not beaten my son Kallu by danda on the date of incident in front of me. Arjun had not fired on my son Kallu. He specifically deposed that the said incident did not occur before myself. The complainant-father of the injured did not support the prosecution story and become hostile. 11. The eye-witness of the said incident Bachole deposed himself as PW-3. He did not support the prosecution story and deposed that Arjun and Vishunath are brothers. I had not seen whether Vishunath had beaten Kallu by danda and Arjun caused injury by firing. The eye-witness Bachole (PW-3) had also become hostile and did not support the prosecution story. 12. These three witnesses of the fact produced by the prosecution; whereas the complainant/father of the injured-Kallu did not support the prosecution story. The eyewitness Bachole (PW-3) did not support the prosecution story. 13. Dr.Rajeev Khare (PW-4), who medically examined the injured-Kallu, verified the injury caused to the injured and there are only two aforesaid injuries; (i) at the hand and (ii) by way of firearm 8.0 cm x 6.0 cm in the lower abdomen/pelvis. 14. Head Constable Om Praksh Singh deposed as PW-5 and verified the first information report and G.D., Ram Raj (PW-6) did not support the prosecution story and specifically deposed that no incident of such type was occurred before me. Sudama (PW-7) had not supported the prosecution story. Sub Inspector Arjun Prasad Tiwari (PW-8), the Investigating Officer and Dr.Satya Prakash (PW-9) are the formal witnesses. 15. On the perusal of all the evidences, the role of appellant No.1 (Vishunath) is 11 All. Raju Batham Vs. State of U.P. 559 causing injury by way of danda on the nonvital part; wheras the firearm injury caused by appellant No.2 (Arjun Pasi) on the vital part, i.e., lower abdomen/pelvis region is distinguished. The other fact witnesses did not support the prosecution story. The injured has supported the prosecution story and specified the role of each appellants in the said incident. The injured is the bestwitness in the matter of injury cases. 16. The learned trial court, after perusing and appreciating all the evidences, had passed the impugned judgment. The learned trial court has specifically held that the injured had suffered firearm injury in his lower abdomen by way of firearm. The trial court had convicted and sentenced both the accused-appellants, under Section 307 IPC for three years rigorous imprisonment each and a fine of Rs.2,000/- each and in default of the payment of the fine, further simple imprisonment of three months each is awarded. 17. The role of appellant No.1 (Vishunath) and appellant No.2 (Arjun Pasi) is different. The act of appellant No.1 is simply causing the injury by way of danda. The injury was also on the non-vital part, i.e., hand of the injured-Kallu. It is proved and verified by the statement of Kallu (injured) himself; whereas the injured had specifically mentioned that appellant No.2 (Arjun Pasi) has used a firearm and causing firearm injury, which was on the lower abdomen/pelvis region. The injury caused by appellant No.2 may be fatal, being on the vital part, whereas the injury caused by appellant No.1 is on the non-vital part; and also not caused by any deadly weapon; it is simply caused by danda. 18. In view of the aforesaid facts, reasons and appreciation of injury and evidences mentioned herein above, the conviction and sentence of appellant No.2 (Arjun Pasi) is upheld and the conviction of appellant No.1 (Vishunath) is also upheld,but the period of sentence has been modified for 8 months? rigorous imprisonment and fine of Rs.2,000/- would remain the same; and in default of the payment of fine, one months simple imprisonment. 19. With these observation, the present criminal appeal is partly allowed. 20. The learned trial court shall comply the same. The original record and the copy of the judgment shall be sent to the learned trial court for compliance. ---------- (2025) 11 ILRA 559 APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 24.11.2025 BEFORE THE HON'BLE RAJNISH KUMAR, J. THE HON'BLE RAJEEV SINGH, J. Criminal Appeal No. 1434 of 2016 Raju Batham ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellants: Anurag Singh Chauhan, Shameem Jahan Counsel for the Respondent: G.A. Issue for Consideration Matter pertains to whether, in a case of hostile eye-witnesses, the conviction of the appellant under S. 302 I.P.C. could be sustained solely on circumstantial evidence, including recovery under S. 27 and the burden under S. 106 of the Indian Evidence Act, 1872, when the death occurred inside the house and the accused failed to explain the cause of death.