Allahabad High Court
Ram Kishan vs State Of U.P. on 16 July, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 1472 of 1988 Ram Kishan ..Appellant(s) Versus State of U.P. ..Respondent(s) Counsel for Appellant(s) : A.d. Prabhakar, Sanjay Singh Counsel for Respondent(s) : A.G.A., Amar Saran Reserved on: 01.04.2026 Delivered on: 16.07.2026 Uploaded on: 16.07.2026 Court No. - 48 HON'BLE CHANDRA DHARI SINGH, J.
HON’BLE LAKSHMI KANT SHUKLA, J.
(Per: Honble Mr. Justice Lakshmi Kant Shukla)
1. The instant criminal appeal has been preferred by the appellants, Ram Kishan and 2 others, challenging the validity of the impugned judgment and order of conviction dated 15.06.1988 passed by the IInd Additional Sessions Judge, Rampur (hereinafter referred to as the Trial Court) in Sessions Trial No. 196 of 1986, State v. Ram Kishan and others (arising out of Case Crime No. 95 of 1984), under Sections 308, 302 read with Section 34 of the Indian Penal Code, 1860 (for short, I.P.C.), Police Station Kemri, District Rampur. By the said judgment, the Trial Court convicted and sentenced the appellants to undergo two years rigorous imprisonment each under Section 308/34 I.P.C. and life imprisonment under Section 302 I.P.C. read with Section 34 I.P.C.
2. The prosecution case, in brief, is that the informant, Khyali Ram son of Bal Kishan, resident of Baksora, Police Station Kemri, district Rampur gave an oral information at Police Station Kemri, wherein he stated that accused mentioned in column no. 2 (appellants herein and one other), namely, Ramkishan son of Shivlal, Roshan son of Ramkishan, Brijlal son of Shyamlal and Kashiram son of Shyamlal, all residents of village Baksora, Police Station Kemri, District Rampur had enmity with his son. On account of the said enmity, the accused persons, started abusing his son and, on being objected, they assaulted him with sticks and fists. During the course of incident, when Sardar Lajar Singh son of Sardar Laxman Singh of his village, intervened in the matter, he too was assaulted by the accused persons and sustained injuries. The accused persons extended threat to life. The date and time of incident as mentioned in N.C.R. is 27.06.1984 at 09:00 pm.
3. On the basis of the aforesaid oral information, a Non Cognizable Report (for short, N.C.R.) No. 238, under Sections 323, 504 & 506 I.P.C. was registered on 28.06.1984 at 10:10 oclock at Police Station Kemri, District Rampur. Thereafter, the injured persons proceeded for medical examination, where injured Nazar Singh and Khyali Ram were medically examined at the Government Hospital, Kemri, District Rampur. The medical examination of injured Nazar Singh was conducted on 28.06.1984 at 11:40 am, wherein the following injuries were found on his person:
(i) Lacerated wound 3 cm x cm x bone deep on the forehead, 10 cm from root of nose, advised x-ray
(ii) Abrasion 2 cm x 1 cm on the right lower leg middle
As per opinion of the doctor, injury no. (i) was kept under observation while injury no. (ii) was simple in nature. Both the injuries were caused by hard and blunt object and duration was fresh.
4. On the other hand, another injured, Khyali Ram was examined on the same day at 11:20 am, wherein the following injuries were found on his person:
(i) Lacerated wound 3 cm x cm x bone deep on the left side middle of head 9 cm above the left ear
(ii) Lacerated wound 3 cm x 1 cm x bone deep on the back of head
(iii) Swelling 5 cm x 2 cm on the left upper arm outer aspect middle
(iv) Tenderness over the left lower arm outer aspect middle
(v) Abrasion 1 cm x cm on the top of left shoulder joint
(vi) Abrasion 1 cm x cm on the left back chest upper region
(vii) Contusion 7 cm x 2 cm on the left upper chest reddish in color
(viii) Contusion 2 cm x 1 cm on the left chest on the back bone upper region reddish in color
(ix) Contusion 10 cm x cm on the right back of chest lower region
(x) Contusion 10 cm x 1 cm on the left back of chests lower region
(xi) Abrasion 2 cm x 1 cm on the back of right elbow joint.
In the opinion of the doctor, injury no. (i) to (xi) were simple, caused by blunt object and injuries were half day old.
5. On 05.07.1984 at 6 pm, injured Nazar Singh succumbed to his injuries during treatment at the All India Institute of Medical Sciences, New Delhi. Information of his death was conveyed to Police Station Vinay Nagar, New Delhi. On receipt of the said information, Sub Inspector Bhibhi Singh reached the hospital, inspected the dead body of Nazar Singh and prepared the inquest report (Exhibit Ka-12). Thereafter, the dead body was sent for postmortem. Postmortem of dead body was conducted and postmortem report (Exhibit Ka-9) was prepared. Postmortem report of deceased Nazar Singh consists following ingredients:
The deceased was 30 years old, height 157 cm. His eyes were closed. Rigor mortis was present on all over the body. Postmortem staining was present on the back of trunk. Eyes closed, cornea hazy, pupils dilated, mouth closed, no sign of putrefaction.
Ante-mortem Injuries:
(1) Contused lacerated wound on scalp obliquely placed of 4.5 cm X 1 cm X Scalp deep on left parietal region and is 10 cm from left eyebrow.
(2) Contused abrasion sacrum of 4 cm X 4 cm.
According to opinion of the doctor, the cause of death was coma as a result of head injury which is ante-mortem in nature and likely to be caused by blunt force. Injuries are sufficient to cause death in ordinary course of nature.
6. During the course of investigation, the Investigating Officer recorded the statements of witnesses, collected relevant documentary as well as material evidence including a copy of the N.C.R., recovery of three torches and one lantern and prepared the recovery memo. The Investigating Officer also obtained the inquest report, medical examination report and postmortem report and prepared the site plan (Exhibit Ka-4).
7. Upon completion of the investigation and finding a prima facie case against the accused persons, the Investigation Officer submitted charge-sheet under Section 304 I.P.C. against 4 accused persons, including the present appellants. Upon submission of the charge-sheet, cognizance was taken by the jurisdictional magistrate.
8. During the inquiry accused Brijlal died and his case was abated.
9. After compliance of Section 207 Cr.P.C., and finding the case to be triable by the Court of Session, the case was committed to the Court of Session vide order dated 25.07.1986 where the case was registered as Session Trial No. 196 of 1986.
10. The case was transferred to the IInd Additional Sessions Judge, Rampur, where charges under Section 308 read with Section 34 I.P.C. and Section 302 read with Section 34 I.P.C. were framed against all the accused persons, which were explained and read over to them. The accused persons denied all the charges and claimed to be tried.
11. Trial commenced. The prosecution examined P.W.-1, Informant and injured Khyali Ram, P.W.-2 Bhoopal as eyewitness, P.W.-3, Parmeshwari as eyewitness, P.W.- 4 Sajjan Singh as eyewitness, P.W.-5 Jasmer Singh as eyewitness, P.W.6 Bal Kishan Tyagi, Investigating Officer, P.W.-7 Dr. N.K. Tandon who conducted the medical examination of injured Khyali Ram and Nazar Singh, P.W.-8 Dr. Dharamveer Singh who conducted the postmortem of deceased Nazar Singh in oral evidence and got proved Exhibit Ka-1, recovery memo of Torches and Lantern, entry in GD (Exhibit Ka-2), conversion of N.C.R. into FIR and its G.D. entry as Exhibit Ka-3, Site Plan (Exhibit Ka-4), copy of C.D. Parcha 5 (Exhibit Ka-5), Charge-sheet (Exhibit Ka-6), Medical report of Khyali Singh (Exhibit Ka-7), Injury report of Nazar Singh (Exhibit Ka-8), Postmortem report (Exhibit Ka-9) as documentary evidence.
12. On the basis of above-mentioned evidences and rival submissions, the Trial Court held the accused persons, i.e. the appellants, guilty of offence punishable under Sections 308, 302 I.P.C. read with Section 34 I.P.C. and passed the impugned conviction order and sentence.
13. Feeling aggrieved, the present criminal appeal has been preferred by the appellants, on the following grounds:
(i) that the impugned judgment and order of conviction and sentence is illegal, erroneous and against the evidence available on record. The first information report is alleged to have been lodged with an inordinate and unexplained delay of 13 hours, which renders the prosecution case doubtful and suggests false implication of the appellants due to prior enmity;
(ii) that the prosecution has examined only interested witnesses, whose testimonies are not reliable and P.W.-2, who could have supported the case, was declared hostile, thereby further weakening the prosecution version;
(iii) that the nature of injuries allegedly sustained by the deceased does not make out an offence even under Section 304 I.P.C. and the Trial Court has erred in law in recording the conviction under the said provision;
(iv) that the impugned judgment suffers from mis-appreciation of evidence and non consideration of material contradictions in the evidence.
14. During pendency of the appeal, appellant no. 1, Ram Kishan and appellant no. 3, Kashi Ram died and since no one appeared on their behalf to purse the appeal, the appeal insofar as it relates to them, has been abated. Thus, the present appeal is pending only on behalf of sole surviving appellant no. 2, Roshan and therefore, it is being determined only on behalf of appellant no.2, Roshan.
15. Heard Mr. Vikrant Gupta, learned counsel appearing on behalf of appellant no. 2, Roshan and Mr. R.K. Gupta, learned A.G.A. appearing on behalf of the State and perused the material available on record.
16. Learned counsel for the appellant submitted that the N.C.R. in the present case was lodged with unexplained delay. The incident is alleged to have taken place at about 9:00 p.m on 27.06.1984, whereas the N.C.R was registered at 10:10 a.m on 28.06.1984.
17. Learned counsel for the appellant has placed reliance upon the judgement of the Supreme Court in P. Rajgopal and others v. The State of Tamil Nadu, (2019) 5 SCC 403, wherein, in paragraph 12, the Honble Supreme Court has observed as under:
12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of possibilities of concoction of evidence by the prosecution. However, If the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely.
18. Learned counsel has further referred to the judgment of the Supreme Court in Bijoy Singh v. State of Bihar, (2002) 9 SCC 147, wherein it has been observed that inordinate delay, if not reasonably explained, can be fatal to the case of the prosecution.
19. It is further submitted that in the instant matter a recovery memo relating to torches, which were allegedly used for identifying the accused persons, was prepared. The said torches are stated to have been recovered from the witnesses Khyali Ram, Sajjan singh and Jasmer Singh, respectively, and the recovery memo, Exhibit Ka-1, was proved by Jasmer Singh, P.W.-5. However, the said torches were not produced before the Court. Thus, according to the learned counsel, only the preparation of recovery memo could be proved, but the actual recovery of the said torches could not be proved. In such circumstances, the prosecution case regarding availability of sufficient source of light for identification of the accused persons becomes doubtful. Therefore, in absence of proof of source of light, it cannot safely be held that the witnesses had properly identified the accused persons. Learned counsel further submitted that the medical reports of the deceased as well as of the informant were prepared on 28.06.1984 at 11:40 and 11:20 am. As per the injury report of deceased Nazar Singh, only two injuries were found on his person and the duration of the injuries was mentioned as fresh. On the other hand, as per the medical report of injured Khayali Ram, the duration of his injuries was shown as half day.
20. It is trite law that the duration of a fresh injury ordinarily ranges from 0 to 6 hours because fluctuation of six hours in medical opinion regarding the duration of injury is possible. However, according to the learned counsel, as the injury reports of the injured informant as well as the deceased were prepared after 14 hours from the alleged incident, the injuries of the informant may, at best, be connected with the alleged occurrence, but the injuries sustained by the deceased cannot be believed to be safely held to have been caused at the time of incident. The injuries sustained by the deceased were not caused before 05:40 am on 28.06.1984. It is further submitted that from the injury report of the deceased, it appears that the injuries could have been sustained in some other incident or accident also but getting the benefit of that, due to enmity the prosecution got convicted the appellant for the murder of the deceased which is not sustainable in the law.
21. It is next submitted that P.W.-1 Khyali Ram, who is the injured as well as the informant of the case, has made contradictory statements regarding the alleged recovery. As per the statement of P.W.-1, witnesses Bhopal, Parmeshwari and Jasmer Singh reached the place of occurrence, whereas Bhoopal was examined as P.W.-2 and did not support the prosecution version. Parmeshwari and Jasmer Singh are also stated to have made contradictory statements. Therefore, according to learned counsel for appellant, the testimony of the prosecution witnesses is doubtful and cannot be safely relied upon.
22. It is also submitted that P.W. 3, Parmeshwari, who is stepfather of the informant, stated that the accused persons jointly beaten the deceased 8 – 10 times, whereas, as per the medical report, the deceased suffered only two injuries, out of which one was simple in nature. In his cross examination, P.W.4, Sajjan Singh stated that he had gone to the city on foot, which was about five miles away from the place of incident, and that at about 07:00 pm, while returning on foot, he witnessed the occurrence. Learned counsel submitted that such conduct is improbable. It is further submitted that as per the N.C.R. report, one person was shown as eyewitness and four persons are alleged to have caused injuries, but there is no clear evidence as to who caused the injuries and the medical report also does not support the prosecution version. There is vast contradiction in the statements of the prosecution witnesses. It is thus contended by the learned counsel for the appellant that in view of above, the present appeal is liable to be allowed.
23. Learned counsel for the appellant further submitted that, firstly, it is doubtful whether the injuries sustained by the deceased were caused on the alleged date and time of occurrence. Elaborating his submissions, he argued that, according to the injury report prepared at 11:40 a.m., the injuries of the deceased were described as fresh, whereas the alleged occurrence had taken place about 14 hours prior to the preparation of the injury report. Therefore, it is clear that the deceased did not sustain the injuries at 9:00 p.m. on 27.06.1984, rather, such injuries must have been sustained on or after 5:40 a.m. on 28.06.1984.
24. It is evident from the aforesaid evidence that the deceased had not sustained the injuries at 9:00 p.m. on 27.06.1984, the alleged date and time of the incident, but had sustained the injuries on or after 05:40 a.m. on 28.06.1984. However, there is no evidence of any such occurrence having taken place on or after that time. It is, therefore, contended that the appellant cannot be held guilty of causing the injuries to the deceased. Accordingly, he is entitled to be acquitted of the charge under Section 302 of the IPC.
25. Per contra, the learned A.G.A. appearing on behalf of the State has vehemently opposed the appeal. He submitted that although the incident is stated to have occurred at about 9:00 p.m. on 27.06.1984 and the FIR was lodged at 10:10 a.m. on 28.06.1984 which clearly demonstrate that the FIR was lodged promptly without any delay.
26. It is further submitted by the learned A.G.A. that the incident occurred on 27.06.1984 at about 9:00 p.m. In those days, transportation and public facilities were extremely poor, making movement during the night difficult, if not impossible. Since the incident took place at night, the informant reasonably apprehended a further attack by the assailants if he tried to get out of his house for lodging the FIR. Therefore, he did not choose to go to the police station during the night and instead waited until daylight to lodge the report. Therefore, the Non-Cognizable Report (NCR) in the present case cannot be said to have been lodged with inordinate or unexplained delay.
27. Learned A.G.A. further contended that on the very date of the present N.C.R., i.e., on 28.06.1984, at about 3:45 p.m., another N.C.R. was lodged by accused-appellant No. 1, Ram Kishan, against the deceased and the first informant of the present case. In the said N.C.R., the time of occurrence was mentioned as 19:20 hours, which was approximately one hour and forty minutes prior to the time of occurrence alleged in the present case. As such, the incident is admitted to both the parties. Learned A.G.A. submitted that the aforesaid N.C.R. clearly demonstrates that the informant, the injured witness and the deceased of the present case had abused and assaulted accused-appellant No. 1, Ram Kishan. According to him, the said N.C.R. establishes prior hostility between the parties
28. In the present case, injured Nazar Singh succumbed to the injuries sustained by him during the course of treatment. Prior to his treatment, he was medically examined and an injury report was also prepared, which clearly depicts that the injuries sustained by him were caused by a Lathi. It is submitted that the first informant, Khyali Ram, had also sustained as many as 11 injuries on his person, which corroborates the prosecution version. The injured, Nazar Singh was initially kept under observation and was thereafter referred to a higher medical center. He was admitted at the All India Institute of Medical Sciences, New Delhi, where he succumbed to his injuries on 06.07.1984 at 6:00 pm.
29. It is further contended by the learned A.G.A. that a perusal of the postmortem examination reveals fracture of the left parietal bone, which clearly establishes the severity of the injuries sustained by the deceased. It is thus contended that the existence of enmity, motive and intention on the part of the accused stands established from the evidence on record.
30. It is also submitted by the learned A.G.A. that the statements of prosecution witnesses, recorded under Section 161 Cr.P.C. as well as their depositions before the Court, have remained consistent on material particulars and have not been effectively disputed by the appellants in their statements recorded under Section 313 Cr.P.C. The medical evidence on record fully corroborates the ocular testimony.
31. It is next argued that the present case is based on direct evidence and, in view of Section 60 of the Indian Evidence Act, the prosecution case stands duly proved by reliable oral evidence. As per settled law, the testimony of an injured witness carries great evidentiary value and cannot be discarded lightly. He has placed reliance upon the judgment of Supreme Court in Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 where in paragraphs 28, 29 and 30 it has been held:
28.The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. [VideRamlagan Singhv.State of Bihar[(1973) 3 SCC 881 : 1973 SCC (Cri) 563 : AIR 1972 SC 2593] ,Malkhan Singhv.State of U.P.[(1975) 3 SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12] ,Machhi Singhv.State of Punjab[(1983) 3 SCC 470 : 1983 SCC (Cri) 681] ,Appabhaiv.State of Gujarat[1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696] ,Bonkyav.State of Maharashtra[(1995) 6 SCC 447 : 1995 SCC (Cri) 1113] ,Bhag Singh[(1997) 7 SCC 712 : 1997 SCC (Cri) 1163] ,Moharv.State of U.P.[(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c),Dinesh Kumarv.State of Rajasthan[(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472] ,Vishnuv.State of Rajasthan[(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] ,Annareddy Sambasiva Reddyv.State of A.P.[(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] andBalrajev.State of Maharashtra[(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] .]
29.While deciding this issue, a similar view was taken inJarnail Singhv.State of Punjab[(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] , where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under : (SCC pp. 726-27, paras 28-29)
28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. InShivalingappa Kallayanappav.State of Karnataka[1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. InState of U.P.v.Kishan Chand[(2004) 7 SCC 629 : 2004 SCC (Cri) 2013] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (videKrishanv.State of Haryana[(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.
30.The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
32. Further, learned A.G.A. has placed reliance upon another judgment of Supreme Court in State of Uttar Pradesh v. Naresh and others, (2011) 4 SCC 324. In paragraph 27 of the Naresh (supra) it has been held as follows:
27.The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (VideJarnail Singhv.State of Punjab[(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] ,Balrajev.State of Maharashtra[(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] andAbdul Sayeedv.State of M.P.[(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] )
33. It is submitted by the learned A.G.A. that in the present case there are five prosecution witnesses, including P.W.-1, who is an injured witness. All the witnesses are eye-witnesses of the occurrence. As per their statements recorded under Section 161 Cr.P.C. and their depositions before the Trial Court, the motive for the incident has been clearly explained, particularly by P.W.-3 in his testimony, as reflected at page 22 of the paper book.
34. It is further submitted that the contradictions pointed out by the defence are minor in nature and do not go to the root of the matter. Therefore, such contradictions do not affect the merit of the prosecution case. It is well settled that minor contradictions are bound to occur in the testimony of truthful witnesses and the same cannot be made a ground to discard otherwise reliable evidence.
35. It is also submitted that the appellants themselves have admitted the existence of enmity in their statements recorded under Section 313 Cr.P.C. Even P.W.-2, though declared hostile, has supported the prosecution case to the extent that his testimony corroborates the occurrence.
36. It is next contended by the learned A.G.A. that the testimony of the eyewitnesses, particularly that of the injured witness, is wholly reliable and finds due corroboration from the medical evidence on record. The prosecution case is further supported by the injury reports of the injured witnesses, the postmortem report of the deceased and the evidence regarding availability of a lantern and torches at the place of occurrence, which enabled the witnesses to identify the assailants. It has, therefore, been urged that the findings recorded by the Trial Court are based upon cogent and reliable evidence and do not warrant any interference by this Court in exercise of its appellate jurisdiction. In view of above, it is thus contended by the learned A.G.A. that the present criminal appeal lacks merit and is liable to be dismissed.
37. P.W.-1 Khyali Ram is the injured witness in the case. According to his examination-in-chief, at about 9:00 p.m. on the date of the incident, he was sitting beneath a Paakar (white fig) tree. His stepfather, Parmeshwari and Nazar Singh were also sitting there on a cot. A lantern was burning at the spot. At that time, Ram Kishan, Roshan, Brij Lal and Kashi Ram, armed with Lathi and Danda arrived and without saying anything started assaulting them. They assaulted Nazar Singh too. When the witnesses questioned the assailants about the reason for assaulting Nazar Singh, accused beat the witness too. Thereafter, Bhoopal, Parmeshwari and Jasmer reached the spot carrying torches.
38. Similarly, according to the examination-in-chief of P.W.-2 Bhoopal, who is an eyewitness, upon hearing cries at about 9:00 p.m. on the night of the incident, he came out of his residence and reached beneath the Paakar (white fig) tree, where he witnessed Brijlal and Mohanlal assaulting Nazar Singh with Lathi and Danda. A lantern was burning at the place of occurrence. Witnesses Parmeshwari, Jasmer, Saddan also reached there. The witness stated that he himself was not carrying any source of light. He witnesses the incident in the light of lantern. According to him, Khayali Ram and Nazar Singh sustained injuries in the incident and Nazar Singh later on succumbed to his injuries in the hospital.
39. P.W.-3, Parmeshwari is the stepfather of the informant. In his evidence before the Court he deposed that he had married the informants mother after the death of the informants father. He further stated that an election for the post of Pradhan had taken place prior to the incident, in which he, Lala Ram, Bhola Nath, Bhoopal and Swaroop Singh were contestants. The main contest was between him and Swaroop Singh. Swaroop Singh won the election. In that election, Ram Kishan, Roshan and Kashi were supporting Swaroop Singh and on account of this, they would harbour enmity with him.
40. According to P.W.-3, about two years prior to his deposition, at about 9:00 p.m., Khayali Ram and Nazar Singh were sitting on a cot beneath the Paakar tree. The witness was proceeding towards them. A lantern was burning and illuminating the area. Jasmer, Sajjan and Bhoopal also reached there. Thereafter, Ram Kishan, Roshan, Brij Lal and Kashi armed with Lathi and Danda arrived there. They abused Khyali Ram and upon his objection started assaulting him with Lathi. Nazar too was assaulted with Lathi. Jasmer and Sajjan were carrying torches. After the assault, the accused persons fled from the spot. The assailants were identified in the light of the lantern and torches. Khyali Ram and Nazar Singh sustained injuries in the incident. Nazar Singh later on died as a result of those injuries.
41. P.W.-4 Sajjan Singh and PW-5 Jasmer Singh have also supported the prosecution case and their testimonies substantially corroborate the statements of the aforesaid witnesses.
42. The injury reports of injured Khyali Ram and Nazar Singh were duly proved by P.W.-7, Dr. N.K. Tandon and were exhibited as Exhibits Ka-7 and Ka-8, respectively. The injuries recorded therein have already been noted in paragraphs 3 & 4 of this judgment.
43. PW-8, Dr. Dharam Veer Singh, conducted the postmortem examination of the dead body of deceased Nazar Singh. The witness duly proved the postmortem report as Exhibit Ka-9, which contains the injuries already referred to in paragraph 5 of this judgment.
44. Having considered the rival submissions of the learned counsel for parties and upon perusal of the material available on record, we find that the existence of enmity between the parties is admitted. The admitted enmity between the parties is a double-edged weapon which may operate either in favour of the prosecution or in favour of the defence. While such enmity may furnish a motive for the commission of the offence, it may equally provide a basis for false implication of the accused. According to P.W.-1 the injured informant, the assailants were inimical towards his son. However, he has not disclosed the nature or genesis of such enmity. The details of the enmity have been furnished for the first time by P.W.-3, who stated that he had contested the election of Gram Pradhan against Swaroop Singh and had suffered defeat. Ordinarily, the defeated candidate may be presumed to harbor greater resentment against the successful candidate. Nevertheless, such a presumption cannot be treated as an inflexible rule, as circumstances may also exist where the victorious candidate may also harbor ill will against his political rival. In the facts of the present case, therefore, the element of enmity appears to be evenly balanced and cannot, by itself, be regarded as a circumstance decisively supporting either side.
45. So far as the question of identification of the assailants is concerned, P.W.-1, P.W.-2, P.W.-3, P.W.-4 and P.W.-5 have consistently stated that the accused persons were identified in the light of torches and a lantern. Although the recovery memo and Supurdaginama relating to the said articles were prepared and proved during trial, the torches and lantern were not produced before the Court. Therefore, the existence and availability of such source of light at the place of occurrence cannot be accepted in toto. However, there is another aspect of the matter which cannot be overlooked. The evidence on record clearly establishes that the injured witnesses, the deceased and the accused persons were well acquainted with one another from before the incident. In such circumstances, the necessity of an independent source of light for identification loses much of its significance as a person well known to the witnesses can be identified even in conditions of limited visibility.
46. It is true that PW-1, in his examination-in-chief, stated that the assailants did not utter anything before starting the assault whereas P.W.-3 deposed that the accused first abused the victims and upon objection being raised, started assaulting them. In the opinion of the Court, this discrepancy is of a minor nature and does not affect the core of the prosecution case, particularly, with regard to the identity of the assailants, who were admittedly known to the witnesses prior to the occurrence.
47. As regards the injuries sustained by P.W.-1, there is no reason to doubt the credibility of the ocular testimony. The version of the eyewitnesses in that regard stands duly corroborated by the medical evidence. However, it cannot be said to be duly corroborated or proved with respect to the injuries allegedly sustained by the deceased, Nazar Singh. The testimony of the prosecution witnesses regarding the assault upon the deceased does not find support from the medical evidence on record. The doctor, who medically examined the deceased, opined that the injuries found on his person were fresh at the time of examination. This circumstance indicates that the injuries had not been sustained at the time of the occurrence alleged by the prosecution.
48. So far as the cross N.C.R. is concerned, the same records an incident alleged to have taken place approximately one hour and forty minutes prior to the occurrence in question. According to the version contained in the cross N.C.R., the informant and the deceased of the present case had assaulted the informant of the cross N.C.R. The said report further indicates that no person from the side of the informant of the cross N.C.R. was present at the spot apart from himself. Therefore, the contents of the cross N.C.R. do not lend any material support to the prosecution case.
49. It is also noteworthy that the informant of the cross N.C.R. was neither examined during trial nor made available for cross-examination. In such a situation, the Court is left with only two alternatives; either to accept the cross N.C.R. as it stands or to discard it altogether. In either eventuality, the contents thereof do not advance the prosecution case in any meaningful manner.
50. In view of the aforementioned discussion, the prosecution has failed to establish beyond reasonable doubt that the injuries found on the person of the deceased, Nazar Singh were sustained during the incident in question. Once the factum of such injuries having been caused in the alleged incident becomes doubtful, no accused can be held guilty for causing the death of the deceased on the basis of such injuries. Therefore, the conviction of the appellants under Section 302 IPC or, in the alternative, under Section 304 IPC cannot be sustained.
51. So far as the conviction of the sole surviving appellant Roshan under Section 308 I.P.C. is concerned, it is evident from the medical evidence that P.W.-1, the injured informant, had sustained as many as eleven injuries. The doctor has categorically opined that all the injuries were simple in nature. None of the injuries was kept under observation nor was any X-ray examination advised. Thus, no grievous injury was found on the person of P.W.-1. However, the absence of grievous injury is not by itself decisive of the applicability of Section 308 IPC. It is noteworthy that PW-1 sustained two lacerated wounds on his head in addition to nine contusions, swellings and abrasions on different parts of his body. The nature and number of these injuries, particularly, the injuries caused on the head, are relevant for determining the intention and knowledge of the assailants. According to the consistent testimony of the eyewitnesses, the injuries were inflicted jointly by four assailants, including the present appellant. The ocular testimony regarding the assault on P.W.-1 stands duly corroborated by the medical evidence.
52. In view of above, we find no reason to disbelieve the prosecution case insofar as the injuries sustained by P.W.-1 (informant) are concerned.
53. Considering the manner of assault, the number of assailants involved and the injuries caused on the vital part of the body, i.e., the head, we are of the considered opinion that the act of the accused falls within the ambit of Section 308 IPC. Accordingly, no good ground is made out for interference with the finding of conviction and sentence recorded by the Trial Court under Section 308 IPC.
54. In view of the discussion made hereinabove, the conviction and sentence of the sole surviving appellant Roshan under Section 302 IPC cannot be sustained and the same is liable to be set aside. However, the conviction and sentence recorded against the appellant under Section 308 I.P.C. is affirmed.
55. Accordingly, the appeal is partly allowed. The conviction and sentence of the appellant under Section 302 I.P.C. are hereby set aside, while the conviction and sentence under Section 308 IPC are maintained. The appellant is presently on bail. His bail bonds are cancelled and sureties are discharged.
56. The Trial Court shall take necessary steps forthwith to secure the custody of the appellant for serving out the remaining sentence, if any. A fresh conviction warrant be issued, accordingly.
57. Let the Trial Court record be transmitted back forthwith along with a copy of this judgment for compliance.
(Lakshmi Kant Shukla,J.) (Chandra Dhari Singh,J.)
July 16, 2026
Brijesh Maurya
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