MAHTAB KHANversusSTATE OF U.P.

        HIGH COURT OF JUDICATURE AT ALLAHABAD
                CRIMINAL APPEAL No. - 1868 of 1985

Mahtab Khan
                                                         …..Appellant(s)

                               Versus

State of U.P.
                                                        …..Respondent(s)



Counsel for Appellant(s)         : A B Maurya, Navin Sinha
Counsel for Respondent(s)        : A.G.A.

                                                                  A.F.R.
In chambers

                                                 Reserved on 10.02.2026
                                                 Delivered on 18.03.2026

            HON'BLE SIDDHARTH, J.
            HON'BLE GARIMA PRASHAD, J.

            (Delivered by: Garima Prashad, J.)

1. Heard Sri Ajay Kumar Pandey, learned Amicus Curiae for the
appellant; Smt. Manju Thakur, learned A.G.A. Ist for the State-
respondent and perused the record.

2. This criminal appeal has been preferred against the judgment and
order dated 18.07.1985 passed by the learned Additional Sessions
Judge, Bareilly in Sessions Trial No. 389 of 1982, State versus
Mahtab Khan and others, whereby the accused persons were
convicted under Sections 147/148, 302 read with Section 149, 307
read with Section 149, 324 read with Section 149, 323 read with
Section 149 and 426 read with Section 149 IPC and were sentenced
accordingly.
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3. By the said judgment, all the nine accused namely Mahtab Khan,
Bundan Khan, Darab Khan alias Bhure Khan, Baz Khan, Israil
Khan, Baley Khan, Mangal Khan, Mehrab Khan and Taj Khan were
convicted under Section 302 read with Section 149 IPC and
sentenced to imprisonment for life. They were also convicted under
Section 307 read with Section 149 IPC and sentenced to rigorous
imprisonment for four years, under Section 324 read with Section
149 IPC to rigorous imprisonment for one year, under Section 323
read with Section 149 IPC to rigorous imprisonment for six months,
and under Section 426 read with Section 149 IPC to rigorous
imprisonment for two months. Darab Khan alias Bhure Khan,
Bundan Khan and Mahtab Khan were further convicted under
Section 148 IPC and sentenced to undergo rigorous imprisonment
for one year. Baz Khan, Israil Khan, Mangal Khan, Mehrab Khan,
Taj Khan and Baley Khan were further convicted under Section 147
IPC and sentenced to undergo rigorous imprisonment for one year.
All the sentences were directed to run concurrently.

4. During the pendency of the present appeal, all the appellants
except Israil Khan and Baley Khan have died. Consequently, the
appeal stands abated in respect of Mahtab Khan, Bundan Khan,
Darab Khan alias Bhure Khan, Baz Khan, Mangal Khan, Mehrab
Khan and Taj Khan. The appeal survives only with respect to
appellant no. 5 Israil Khan and appellant no. 9 Baley Khan.

5. The prosecution case, as disclosed in the written report lodged by
Babu Khan at Police Station Nawabganj on 14.06.1981, is that
about five to six months prior to the occurrence he had constructed
a new house in village Panua. The house of accused Baz Khan
adjoined his own. To the south of his house, Babu Khan had
constructed a latrine/toilet, the wall whereof had been raised about
six days before the incident. The immediate source of friction
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between the parties was this newly constructed wall. On 14.06.1981
at about 7:00 p.m., Babu Khan, his brother Sabir Khan and Liyakat
Ali were present near the courtyard wall and were applying clay or
plaster to it. At that time Baz Khan came there and asked them to
demolish the toilet wall. Upon refusal, he went away and returned
shortly thereafter with the remaining accused persons.

6. According to the prosecution, Darab Khan alias Bhure Khan and
Bundan Khan were armed with spears, Mahtab Khan carried a
kanta, Baz Khan had a kasi or spade, and the remaining accused
were armed with lathis. Baz Khan then began demolishing the toilet
wall with the spade. When the complainant side objected, the
accused persons began abusing them and, upon exhortation,
assaulted the prosecution party. In the course of the assault, Sabir
Khan, Kallu Khan, Babu Khan and Liyakat sustained injuries.
When Sabir Khan and Kallu Khan attempted to run, they were
chased up to the chak road and overpowered. Babu Khan and
Liyakat are stated to have snatched lathis from Taj Khan and
Rehmatullah and used them in self-defence. Sabir Khan later
succumbed to his injuries.

7. On the basis of the written report, the case was registered under
Sections 147, 148, 307, 324 and 323 IPC and, after the death of
Sabir Khan, converted into one under Section 302 IPC. After
investigation, charge-sheet was submitted against ten accused and
the case was committed to the Court of Session. Charges were
framed against the accused accordingly. During the pendency of the
trial, accused Rahmatullah died and proceedings against him stood
abated. Consequently, the trial proceeded against the remaining nine
accused persons.

8. The prosecution, in support of its case, examined seven
witnesses. PW-1 Babu Khan, PW-2 Babbu Khan (also referred to in
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the record as Nabbu Khan) and PW-5 Kallu Khan were examined as
witnesses of fact.

9. PW-1 Babu Khan is the informant as well as an injured witness.
He stated that the dispute arose over the wall of the toilet
constructed by him, that Baz Khan objected to it, went away and
returned with the other accused persons. He described the weapons
carried by the accused and stated that the accused persons, acting
jointly, assaulted the prosecution side. He specifically named all the
accused and gave the genesis and sequence of the occurrence. He
also stated that when the assault intensified, he and Liyakat
snatched lathis from two of the accused and used them in self-
defence. He specifically named accused Israil Khan and accused
Baley Khan as having come armed with lathis along with the other
accused and as having attacked Babu Khan, Sabir, Liyakat and
Kallu.

10. PW-2 Babbu Khan/Nabbu Khan was examined as an
eyewitness. He is stated to be a neighbour of the complainant. He
stated that he saw the accused persons rebuking the complainant
and thereafter assaulting the prosecution party. He supported the
prosecution on the genesis of the occurrence and on the fact that the
accused came armed and attacked the prosecution side. He too
specifically named Israil Khan and Baley Khan and stated that they
were carrying lathis and attacked Babu Khan, Sabir, Liyakat and
Kallu.

11. PW-3 Dr. Yuvraj Garg had medically examined the injured
persons on the prosecution side conducted soon after the occurrence
on 14.06.1981. He has proved the following injuries:

      •     On the person of Kallu Khan, he found a stab wound
      measuring 4 cm x 1 cm, chest deep, on the right side of the
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      chest, just below the clavicle, about 5 cm lateral to the
      suprasternal notch.

      •     On the person of Babu Khan, he found an incised
      wound measuring 4 cm x 0.5 cm x 1 cm over the right side of
      scalp, 13 cm above the right ear; an incised wound measuring
      2 cm x 0.5 cm x 0.3 cm over the left ear, V-shaped; and an
      abraded contusion measuring 4 cm x 2.5 cm over the left
      cheek bone.

      •     On the person of Liyakat, he found a lacerated wound
      measuring 1.5 cm x 0.5 cm x 0.5 cm over the left side of
      scalp, 8 cm above the left ear; a lacerated wound measuring
      0.8 cm x 0.5 cm x 0.5 cm over the right side of forehead, 4 cm
      above the right eyebrow; and a contusion measuring 7 cm x 8
      cm over the dorsum of the left hand.

12. PW-4 Dr. M.C. Sharma had conducted the post-mortem
examination of Sabir Khan and found the following ante-mortem
injuries:

      •     a puncture wound measuring 2.5 cm x 1 cm, chest
      cavity deep, lying horizontally at 12 o’clock position, about 2
      cm above the left nipple, directed towards the right side;

      •     an abrasion measuring 1 cm x 1 cm at the outer angle of
      the left brow;

      •     an old traumatic region/injury on the left elbow. The
      punctured chest wound was the fatal injury.

13. PW-5 Kallu Khan is an injured eyewitness. He stated that on
hearing the noise he reached the spot and was himself assaulted by
the accused persons. He identified all the accused and stated that
accused including Israil Khan and Baley Khan attacked with lathis.
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                                               CRLA No. - 1868 of 1985

He supported the prosecution case that the accused persons were the
aggressors and that the assault was launched by the accused party in
prosecution of their common object.

14. PW-6 Dr. K.S. Tiwari proved the X-ray reports and gave
radiological findings. He found a fracture in the injury of Liyakat.
He also opined that the injury of Kallu Khan was dangerous to life.

15. PW-7 Vidyadhar Pandey, the Investigating Officer, proved the
steps taken during the investigation. He also proved the site-related
circumstances. During spot inspection he found the wall in a broken
or demolished condition and found blood at the place of occurrence,
which supports the prosecution case regarding the site and the
immediate cause of the incident.

16. In support of its case, the defence relied upon injury reports
pertaining to certain accused persons. The material indicates that
Darab Khan sustained four injuries; Israil Khan and Mangal Khan
one injury each; Mehrab Khan two injuries; and Baz Khan one
lacerated and one incised wound. The injuries, as disclosed,
comprise abraded contusions on Israil Khan and Mangal Khan, an
incised wound on Mehrab Khan, and one lacerated along with one
incised wound on Baz Khan. The defence further placed reliance
upon documents of the cross-case, including the chik report.

17. The accused persons, in their statements under Section 313
CrPC, denied the prosecution allegations and pleaded false
implication. Accused Mahtab Khan specifically stated that the
prosecution side had assaulted the accused persons and that the
accused had sustained injuries. Accused Israil Khan specifically
stated that he too had sustained injuries. Accused Baley Khan stated
that his defence was the same as that of Mahtab Khan. A further
plea raised on behalf of the accused was that Bhure Khan and Darab
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Khan were two separate persons and that by treating them as one
person the prosecution had introduced a material inconsistency in
the naming and identification of the accused.

18. The learned trial court, upon consideration of the evidence, held
that the prosecution version stood proved by the prompt FIR, the
testimony of the injured witnesses and the medical evidence. It held
that the dispute regarding the wall of the latrine was the immediate
cause of the incident, that the place of occurrence was near the
complainant’s house, that the defence version of the occurrence
having taken place at the house of the accused was not acceptable,
that the injuries on the accused side were either explained or not
shown to have been sustained in the same occurrence, and that the
accused persons had formed an unlawful assembly and in
prosecution of its common object had caused the death of Sabir
Khan and injuries to the other members of the prosecution side.

19. Challenging the conviction recorded by the trial court, learned
counsel for the surviving appellants Baley Khan and Israil Khan
submitted that the prosecution has suppressed the true genesis of the
occurrence and has not come to the Court with clean hands. It was
submitted that there exists a cross-case arising out of the same
incident and that the prosecution party was in fact the aggressor.
Learned counsel submitted that the prosecution witnesses have
falsely projected the place of occurrence near the house of the
complainant whereas, according to the defence, the incident
actually took place at the house of the accused.

20. Learned counsel further submitted that several accused persons
had sustained injuries in the occurrence. It was submitted that the
injuries on the accused side have been proved through defence
material and that these injuries were specifically referred to by the
accused in their statements recorded under Section 313 CrPC.
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                                                 CRLA No. - 1868 of 1985

Learned counsel submitted that accused Mahtab Khan in his
statement under Section 313 CrPC had stated that the prosecution
side had assaulted the accused persons and that the accused had
sustained injuries. It was also submitted that accused Israil Khan
specifically stated in his statement under Section 313 CrPC that he
himself had sustained injuries. Learned counsel submitted that
accused Baley Khan had stated that his defence was the same as
that taken by Mahtab Khan.

21. Learned counsel submitted that the prosecution has failed to
properly explain the injuries sustained by the accused persons. It
was argued that when injuries on the accused side are proved and
remain unexplained, it creates serious doubt regarding the
prosecution version and indicates that the prosecution has
suppressed the true genesis of the occurrence.

22. Learned counsel for the appellants further submitted that the
prosecution witnesses are interested witnesses and their testimony
ought not to have been accepted without careful scrutiny. It was
submitted that PW-1 Babu Khan is the informant and is an
interested witness. It was further submitted that PW-2 Nabbu Khan
is also a witness from the same locality and cannot be treated as an
independent witness. Learned counsel submitted that PW-5 Kallu
Khan is also from the prosecution side and therefore the prosecution
evidence is essentially partisan in nature.

23. Learned counsel also submitted that there is uncertainty
regarding the identity of one of the accused persons inasmuch as the
prosecution has treated Darab Khan and Bhure Khan as one person
whereas according to the defence they are two separate persons.
Learned counsel submitted that this discrepancy creates doubt
regarding the identity of the accused persons involved in the
occurrence.
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                                                CRLA No. - 1868 of 1985

24. Learned counsel further submitted that no specific fatal blow
has been attributed to the surviving appellants Israil Khan and
Baley Khan. It was argued that in the absence of any specific overt
act attributed to these appellants, their conviction under Sections
302 read with 149 IPC and 307 read with 149 IPC is unsustainable.

25. Learned counsel lastly submitted that even if the presence of the
surviving appellants is assumed, there is no sufficient evidence to
establish that they shared any common object to commit the murder
of Sabir Khan. It was submitted that the ingredients of Section 149
IPC are not satisfied and therefore the surviving appellants cannot
be held liable for the offences committed by other accused persons.

26. Per contra, Learned AGA submitted that the FIR was prompt
and detailed and that the prosecution case was supported by two
injured witnesses, namely PW-1 and PW-5 and an independent
witness PW-2       from the locality and his evidence gave
corroboration. It was submitted that the medical evidence fully
supported the ocular version and that the dispute over the
construction of the toilet wall furnished a clear and immediate
motive. It was further submitted that the prosecution had explained
the injuries on the accused side to the extent they were caused when
lathis were snatched and used in self-defence, whereas the injuries
on the accused side were mostly minor and not shown to have been
sustained in one and the same occurrence, particularly in view of
the discrepancy in the duration of the injuries. It was submitted that
the plea of private defence was not established since no defence
witness entered the witness-box and there was no explanation for
the fatal chest injury of Sabir Khan. It was lastly submitted that
once membership of the unlawful assembly and participation in the
group assault were proved, the absence of a specific fatal blow by
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the surviving appellants did not exonerate them from liability under
Section 149 IPC.

27. Having heard learned counsel and perused the record, this Court
proceeds to examine the issues.

28. It is the principal submission advanced on behalf of the
surviving appellants that the prosecution has suppressed the true
genesis of the occurrence and has not come to the Court with clean
hands, particularly in view of the existence of cross injuries on the
side of the accused and the pendency of a cross-case arising out of
the same incident. It has been contended that the failure of the
prosecution to explain the injuries sustained by the accused persons
is a material circumstance which casts serious doubt upon the
truthfulness of the prosecution version.

29. At the outset, it may be observed that the law is well settled that
where the prosecution fails to explain injuries on the accused,
especially when such injuries are serious and are shown to have
been sustained in the same occurrence, the Court may draw an
adverse inference against the prosecution and may hold that the
prosecution has suppressed the genesis of the occurrence. However,
this principle is not of universal application and cannot be applied
mechanically in every case. The effect of such non-explanation
depends upon the facts and circumstances of each case, the nature
of injuries, the quality of prosecution evidence and whether the
injuries are shown to have been sustained in the same transaction.

30. In the present case, it is not the prosecution case that no injuries
were sustained on the side of the accused. On the contrary, the
prosecution from the very inception has stated that during the
course of the incident Babu Khan and Liyakat had snatched lathis
from Taj Khan and Rehmatullah and had used them in self-defence.
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                                               CRLA No. - 1868 of 1985

This part of the prosecution version itself provides an explanation
for at least some of the injuries sustained by the accused persons,
particularly those which could have been caused by blunt weapons.
Further, the injuries said to have been sustained by the accused
persons, as disclosed from the material on record, appear to be
mostly minor in nature, such as abraded contusions, lacerations and
a few incised wounds.

31. The plea of private defence, though faintly suggested, does not
stand established on the evidence on record. Learned counsel for the
appellants has sought to rely upon the principles laid down in
Darshan Singh v. State of Punjab, (2010) 2 SCC 333 . It is true that
the said judgment reiterates that the right of private defence is a
valuable right and that a person faced with imminent threat is not
expected to weigh in golden scales the exact force necessary for
defence. However, the same judgment equally clarifies that such
right is subject to the limitations contained in Sections 99 and 100
of the Indian Penal Code.

32. Section 99 of the Indian Penal Code expressly provides that the
right of private defence does not extend to the infliction of more
harm than is necessary for the purpose of defence, nor can it be
invoked where there is sufficient time to have recourse to public
authorities. Section 100 of the Indian Penal Code further delineates
the circumstances in which the right of private defence of the body
extends to causing death, namely where there is reasonable
apprehension of death or grievous hurt.

33. In the present case, the evidence clearly establishes that the
accused persons came to the place of occurrence in a body, armed
with deadly weapons, and initiated the assault. The prosecution
version that the complainant side was engaged in work near their
house stands corroborated by the prompt FIR, the testimony of
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                                                 CRLA No. - 1868 of 1985

injured witnesses and the medical evidence. There is no material to
indicate that the accused were acting under any reasonable
apprehension of death or grievous hurt so as to attract Section 100
IPC. On the contrary, the nature of injuries on the prosecution side,
including the fatal chest injury to Sabir Khan, demonstrates that the
force used by the accused was not defensive but clearly aggressive
and disproportionate.

34. Further, the injuries found on the accused side are minor in
nature and do not probabilise a situation where the right of private
defence extending to causing death could be legitimately exercised.
In Bhanwar Singh v. State of M.P., (2008) 16 SCC 657 , the
Supreme Court held that the burden to establish the plea of private
defence lies on the accused and must be supported by material on
record. In the absence of any such evidence, the plea cannot be
accepted. Thus, even applying the principles laid down in Darshan
Singh (supra), this Court finds that the statutory limitations under
Sections 99 and 100 IPC are not satisfied in the present case. The
plea of private defence is therefore untenable and stands rejected.

35. Another important circumstance is the discrepancy regarding the
duration of injuries on the accused side. From the material placed
on record, it appears that the injury of Baz Khan was shown to be
fresh, whereas the injuries of other accused persons were shown to
be about half a day old. If all the injuries were sustained in the same
occurrence, one would expect a reasonable degree of uniformity in
their duration. This inconsistency weakens the defence suggestion
that all the injuries were sustained in one and the same transaction
and thereby reduces the evidentiary value of such injuries in
discrediting the prosecution case.

36. The existence of a cross-case by itself does not necessarily lead
to the conclusion that the prosecution has suppressed the genesis of
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                                               CRLA No. - 1868 of 1985

the occurrence. It is well settled that in cases of group clashes or
village factional disputes, it is not uncommon for both sides to
lodge cases against each other. The Court is required to
independently assess the evidence in each case and determine which
version is more probable and is supported by reliable evidence. It is
true that in Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394, the
Supreme Court held that failure to explain injuries on the accused
may be a relevant factor. However, the same judgment also clarifies
that such non-explanation is not always fatal and must be examined
in light of the entire evidence. In Krishnan v. State of Tamil Nadu,
(2003) 7 SCC 56, it has been held that where the prosecution case is
supported by reliable eyewitnesses and medical evidence, failure to
explain minor injuries on the accused does not affect the core of the
prosecution case.

37. In the present case, the prosecution version is supported by the
prompt first information report, the consistent testimony of two
injured witnesses namely PW-1 and PW-5, and corroboration from
PW-2, who is a witness from the locality. The ocular version is
further supported by the medical evidence, including the post-
mortem report of Sabir Khan which establishes that he died a
homicidal death as a result of a punctured wound on the chest. The
presence of blood at the place of occurrence and the broken wall
found during investigation further lend assurance to the prosecution
case regarding the place and manner of occurrence.

38. On the other hand, the defence has not led any evidence to
substantiate its version. No defence witness has entered the witness-
box to explain how the accused came to sustain the injuries or to
establish that the occurrence took place at a place different from
that alleged by the prosecution. The defence has also failed to offer
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                                                 CRLA No. - 1868 of 1985

any plausible explanation for the fatal injury sustained by Sabir
Khan.

39. In these circumstances, the mere fact that some injuries were
found on the accused persons or that a cross-case exists is not
sufficient to discard the otherwise reliable prosecution evidence.
The non-explanation of minor or doubtful injuries on the accused
side cannot be treated as fatal to the prosecution case when the
evidence of the injured eyewitnesses is clear, cogent and
trustworthy. The testimony of injured witnesses stands on a higher
footing because their presence at the scene is established by their
injuries and they are ordinarily not expected to spare the actual
assailants and falsely substitute others. This principle has been
reiterated by the Supreme Court in Jarnail Singh v. State of Punjab ,
(2009) 9 SCC 719.

40. Therefore, upon a careful consideration of the entire material on
record, this Court is of the opinion that the prosecution cannot be
said to have suppressed the genesis of the occurrence. The existence
of cross injuries and cross-case does not create any reasonable
doubt so as to discredit the prosecution version. The submission
advanced on behalf of the appellants in this regard is accordingly
rejected.

41. In so far as the role attributed to the surviving appellants Israil
Khan and Baley Khan is concerned, their names had been disclosed
in the first information report as well as the ocular testimony of the
witnesses. It has been proved that the accused persons had
assembled at the place of occurrence after the dispute arose
regarding the wall of the latrine constructed by Babu Khan. Baz
Khan, after objecting to the construction of the wall, went away
from the spot and returned shortly thereafter accompanied by
several accused persons including the present surviving appellants.
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                                               CRLA No. - 1868 of 1985

42. The prosecution case is that the accused persons arrived at the
place of occurrence armed with various weapons. While some of
the accused persons such as Darab Khan alias Bhure Khan and
Bundan Khan were armed with spears and Mahtab Khan carried a
kanta and Baz Khan had a kasi or spade, the remaining accused
including Israil Khan and Baley Khan were armed with lathis. It is
alleged that when the complainant side objected to the demolition
of the wall of the latrine by Baz Khan, the accused persons began
abusing them and thereafter launched an assault upon the
complainant party.

43. The testimony of PW-1 Babu Khan, who is both the informant
and an injured witness, clearly states that the accused persons
jointly attacked the complainant party and that Israil Khan and
Baley Khan were among those who participated in the assault with
lathis. PW-1 further stated that in the course of the incident he and
Liyakat managed to snatch lathis from Taj Khan and Rehmatullah
and used the same in self-defence. The presence of PW-1 at the spot
cannot be doubted inasmuch as he himself sustained injuries during
the occurrence.

44. The prosecution version in this regard also receives support
from the testimony of PW-2 Babbu Khan / Nabbu Khan, who is a
resident of the same locality and who stated that he saw the accused
persons assaulting the complainant party. According to him, the
surviving appellants were among the accused persons who had
come armed with lathis and who participated in the beating of the
complainant side.

45. Further corroboration is provided by the testimony of PW-5
Kallu Khan, who is another injured eyewitness. He stated that on
hearing the commotion he reached the spot and that the accused
persons assaulted the complainant party. He also sustained injuries
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                                                  CRLA No. - 1868 of 1985

in the course of the assault. His evidence establishes that the
accused persons including the surviving appellants were present at
the place of occurrence and participated in the assault.

46. It is true that the fatal injury which resulted in the death of Sabir
Khan appears to have been caused by a sharp-pointed weapon
wielded by another accused person. However, the role attributed to
Israil Khan and Baley Khan is that of members of the unlawful
assembly who actively participated in the assault with lathis. Their
presence at the spot and participation in the occurrence stand
proved by the consistent testimony of the eyewitnesses.

47. In such circumstances, even if no specific fatal injury has been
attributed to the surviving appellants, their liability does not stand
excluded. Once it is established that they were members of the
unlawful assembly and that the offence was committed in
prosecution of the common object of that assembly, the principle of
vicarious liability embodied in Section 149 IPC becomes
applicable.

48. Coming to the reliability of the eyewitnesses, PW-1 Babu Khan
is an injured witness and the informant. His presence is beyond
doubt. His testimony is consistent on the origin of the dispute, the
arrival of the accused as a group, the weapons carried and the
assault that followed. He specifically named Israil Khan and Baley
Khan as coming armed with lathis and participating in the assault.
His evidence stands materially supported by the medical report of
his own injuries and by the post-mortem of Sabir Khan. The
testimony of an injured witness stands on a higher pedestal and
ordinarily carries greater evidentiary value because such a witness
is unlikely to spare the actual assailant and falsely implicate
another. That principle has been reiterated by the Supreme Court in
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                                                    CRLA No. - 1868 of 1985

Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 and Abdul
Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259.

49. PW-5 Kallu Khan is also an injured witness. He suffered a stab
injury on the chest, dangerous to life. He too identified Israil Khan
and Baley Khan and stated that they attacked with lathis. There is
no reason why an injured witness would spare the actual assailants
and falsely implicate others, particularly in a case arising out of a
specific and immediate village dispute. His evidence gives strong
corroboration to PW-1. The law regarding the special status of an
injured witness equally supports reliance on PW-5.

50. PW-2 Nabbu Khan, though not injured, is a local witness whose
presence is not unnatural. He specifically named Israil Khan and
Baley Khan and stated that they attacked Babu Khan, Sabir, Liaqat
and Kallu with lathis. Merely because he is from the same locality
does not make him a planted witness. No substantial contradiction
has been pointed out which would justify discarding his testimony.
In State of U.P. v. Krishna Master , (2010) 12 SCC 324, it was held
that testimony cannot be discarded merely because the witness is
related or known, if it is otherwise trustworthy.

51. All the three eyewitnesses have remained consistent in their
narration of the material events. Minor variations do not detract
from otherwise reliable evidence. In State of U.P. v. M.K. Anthony,
(1985) 1 SCC 505, the Supreme Court explained that normal
discrepancies and trivial variations not going to the root of the case
should not lead to rejection of otherwise trustworthy testimony.

52. The medical evidence fully corroborates the ocular version. The
injuries on Babu Khan, Kallu Khan and Liyakat, as also the fatal
punctured chest wound of Sabir Khan, fit the prosecution account
that the accused party, armed with sharp and blunt weapons,
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                                                 CRLA No. - 1868 of 1985

attacked the prosecution side. The injury to Kallu Khan being
dangerous to life and the fracture in the injury of Liyakat materially
reinforce the prosecution version. The consistency between ocular
and medical evidence lends assurance to the prosecution case, in
line with the principle noted in Solanki Chimanbhai Ukabhai v.
State of Gujarat, (1983) 2 SCC 174.

53. The evidence also clearly establishes common object. The
accused arrived together, they were armed, the dispute was
common, exhortation was made, several members of the
prosecution side were assaulted, one person was killed, others were
grievously and dangerously injured, and the assault was not the
isolated act of a single person in a sudden individual quarrel. These
circumstances are sufficient to establish the existence of an
unlawful assembly and a common object to use force and violence
against the prosecution side. Once such common object is proved,
every member of the unlawful assembly becomes vicariously liable
for the offences committed in prosecution of that common object or
for offences which the members knew to be likely to be committed.
It is not necessary that every member must himself inflict a fatal
blow. In Masalti v. State of U.P., AIR 1965 SC 202, it was held that
in dealing with an unlawful assembly, proof of a specific overt act
by every individual member is not indispensable if membership and
common object are proved. This principle has been consistently
reaffirmed in later decisions, including Daya Kishan v. State of
Haryana, (2010) 5 SCC 81 and Ramesh v. State of Haryana, (2017)
1 SCC 529, wherein it has been held that once participation in the
assembly with the requisite common object is proved, individual
attribution of injury is not a sine qua non for conviction.

54. The controversy whether Darab Khan and Bhure Khan were one
person or two does not materially affect the present surviving
                                  19
                                                 CRLA No. - 1868 of 1985

appellants. Even assuming some confusion in relation to that
accused, the identity and participation of Israil Khan and Baley
Khan have been consistently asserted in the FIR and in the
eyewitness accounts. The prosecution case against the surviving
appellants does not rest upon resolving that controversy.

55. Upon an independent and detailed evaluation of the evidence on
record, this Court finds that the prosecution has proved the place,
genesis and manner of occurrence; that the testimony of PW-1, PW-
2 and PW-5 is reliable and materially corroborated by medical
evidence; that Sabir Khan died a homicidal death as a result of the
chest puncture wound sustained in the occurrence; that the injuries
on the accused side do not demolish the prosecution case and do not
probabilise the plea of private defence; that the accused persons had
formed an unlawful assembly and the offences were committed in
prosecution of its common object; and that the participation of the
surviving appellants Israil Khan and Baley Khan as members of that
unlawful assembly stands proved beyond reasonable doubt.

56. It had also been urged that the surviving appellants have
remained on bail for a prolonged period of time, and that the appeal
itself has remained pending for several decades. While this Court
cannot be unmindful of the long lapse of time, it is equally well
settled that mere delay in disposal of a criminal appeal, by itself,
cannot be a ground to set aside a conviction which is otherwise
found to be well-founded. In State of Punjab v. Bawa Singh, (2015)
3 SCC 441, the Supreme Court has categorically held that lapse of
time or long pendency of appeal does not dilute the gravity of the
offence nor does it furnish a valid ground for acquittal. Similarly, in
Amit v. State of Uttar Pradesh, (2012) 4 SCC 107, it has been
observed that sympathy or misplaced leniency has no role to play
where the conviction is otherwise sustainable in law.
                                  20
                                                 CRLA No. - 1868 of 1985

57. In the present case, the offence involves a fatal assault resulting
in the death of Sabir Khan, and the participation of the surviving
appellants as members of the unlawful assembly stands proved
beyond reasonable doubt. The delay in disposal of the appeal,
howsoever long, cannot enure to the benefit of the appellants so as
to defeat the ends of justice. The legal position being clear, no
indulgence or leniency can be extended on this ground alone.

58. For all the aforesaid reasons, this Court finds no illegality,
infirmity or perversity in the judgment of conviction recorded by
the learned trial Judge, so far as the surviving appellants are
concerned. The conviction of appellant no.5 Israil Khan and
appellant no.9 Baley Khan under Sections 147, 302 read with
Section 149, 307 read with Section 149, 324 read with Section 149,
323 read with Section 149 and 426 read with Section 149 IPC is
fully justified. The sentences awarded also call for no interference.

59. Accordingly, the appeal stands abated in respect of Mahtab
Khan, Bundan Khan, Darab Khan alias Bhure Khan, Baz Khan,
Mangal Khan, Mehrab Khan and Taj Khan, who have died during
the pendency of the appeal. The appeal, so far as it relates to
appellant no. 5 Israil Khan and appellant no. 9 Baley Khan, is
dismissed. The judgment and order dated 18.07.1985 passed by the
learned Additional Sessions Judge, Bareilly in Sessions Trial No.
389 of 1982 convicting and sentencing Israil Khan and Baley Khan
are hereby affirmed.

60. The appellant no. 5 and appellant no.9 are stated to be on bail.
Their bail bonds are cancelled and securities are discharged. They
shall be taken into custody forthwith to serve out the sentence
awarded to them.
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                                                                              CRLA No. - 1868 of 1985

                            61. Let the trial court record be remitted forthwith along with a
                            certified copy of this judgment for compliance.

                            62. Sri Ajay Kumar Pandey, Advocate is entitled to his professional
                            fee of Rs. 15,000/- for appearing as Amicus Curiae to argue this
                            appeal.




                                                             (Garima Prashad,J.) (Siddharth,J.)

                            March 18, 2026
                            Sachin Mishra




Digitally signed by :-
SACHIN MISHRA
High Court of Judicature at Allahabad