KRISHAN PAL @ LALA AND ANR.versusSTATE OF U.P.

                                                           A.F.R.
                                                          Reserved

       HIGH COURT OF JUDICATURE AT ALLAHABAD
                CRIMINAL APPEAL No. - 1978 of 2011

Krishan Pal @ Lala and Anr.
                                                      …..Appellant(s)

                              Versus

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


Counsel for Appellant(s)        : Ajay Sengar, Amar Nath Singh,
                                  Barun Pratap Singh, Jaiprakash
                                  Narain Raj, Prashant Vyas, Rajiv
                                  Lochan Shukla, S.p. Sharma, Sanjay
                                  Singh, Shagun K. Saran, Surendra
                                  Singh, Tarun Pratap Singh, Vijay
                                  Singh Sengar, Vinod Kumar
Counsel for Respondent(s)       : Amit Misra, Govt. Advocate, Harish
                                  Chandra Mishra, Mahesh Chandra
                                  Chaturvedi (senior Adv.), Suresh C.
                                  Dwivedi, Vikas Tiwari, Vimlendu
                                  Tripathi

                              WITH
                CRIMINAL APPEAL No. - 1821 of 2011

Bahadur
                                                      …..Appellant(s)

                              Versus

State of U.P.
                                                     …..Respondent(s)
                                2

Counsel for Appellant(s)        : Devesh Kumar, Prashant Vyas, Rajiv
                                  Lochan Shukla, Rajrshi Gupta,
                                  Rizwan Ahamad, Vidhu Bhushan
                                  Singh
Counsel for Respondent(s)       : Amit Misra, Govt. Advocate

                              WITH
                CRIMINAL APPEAL No. - 1868 of 2011

Udham Singh Alias Matauli
                                                      …..Appellant(s)

                              Versus

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


Counsel for Appellant(s)        : Prashant Vyas, Rai Sahab Yadav,
                                  Rajiv Lochan Shukla, Rajrshi Gupta,
                                  Rizwan Ahamad, S.m.g. Asghar,
                                  V.m. Zaidi
Counsel for Respondent(s)       : Amit Misra, Govt. Advocate

                              WITH
                CRIMINAL APPEAL No. - 2004 of 2011

Raghunath Alias Batauli
                                                      …..Appellant(s)

                              Versus

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


Counsel for Appellant(s)        : Prashant Vyas, Rai Sahab Yadav,
                                  Rajiv Lochan Shukla, Rajrshi Gupta,
                                  Rizwan Ahamad, S.m.g. Asghar,
                                  V.m. Zaidi
Counsel for Respondent(s)       : Amit Misra, Govt. Advocate

                              WITH
                CRIMINAL APPEAL No. - 2195 of 2011
Ranjeet
                                 3

                                                      …..Appellant(s)

                               Versus

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


Counsel for Appellant(s)         : Prashant Vyas, Rai Sahab Yadav,
                                   Rajiv Lochan Shukla, Rajrshi Gupta,
                                   Rizwan Ahamad, S.m.g. Asghar,
                                   V.m. Zaidi
Counsel for Respondent(s)        : Amit Misra, Govt. Advocate


Court No.43

            HON'BLE SALIL KUMAR RAI, J.
            HON'BLE DR. AJAY KUMAR-II, J.

                (Per : DR. AJAY KUMAR-II, J.)

1.    The validity and sustainability of the judgment and order
dated 11.03.2011 passed by Additional Sessions Judge, Court
No.1, Jhansi in Sessions Trial No.282 of 2008 (State Vs. Rishipal
and others) arising out of Case Crime No.1223 of 2007 under
Sections 147, 148, 149, 302, 323, 307 IPC and Section 7
Criminal Law Amendment Act, Police Station Nawabad, District
Jhansi has been challenged by way of instant five connected
criminal appeals, whereby the appellants Krishna Pal alias Lala,
Rishi Pal, Raghunath, Ranjeet, Bahadur and Udham were
convicted and sentenced to undergo imprisonment for life under
Section 302/149 IPC with a fine of Rs.10,000/- each, in default
thereof, to further undergo one year additional rigorous
imprisonment, to undergo one year rigorous imprisonment under
Section 323/149 IPC, to undergo one year rigorous imprisonment
under Section 148 IPC and to undergo six months rigorous
                                4

imprisonment under Section 7 Criminal Law Amendment Act.
All sentences were directed to run concurrently.

2.   Since these criminal appeals arise out of same case number
and judgment, therefore, all these appeals have been heard
together and are being decided by a common judgment. Criminal
Appeal No.1978 of 2011 is being treated as a leading case.

3.   The prosecution story, in brief, finds place in the F.I.R.,
which was lodged on the basis of the written report Ex.Ka.-1
given by informant Manoj Kumar, wherein it was narrated that on
01.07.2007 at 10:00 P.M., the informant Manoj Kumar son of
Ramashanker, resident of Mustra Village, P.S. Nawabad, District
Jhansi with his brothers Pushparaj alias Pushpendra, Ashok and
informant’s cousin Jagdish, informant’s mother Bitti Bai and wife
of Pushparaj namely, Vimla Devi were watching T.V. in their
room after having dinner and at that moment they heard knocking
at the door of the informant’s house, to which all of them went
towards the door and as soon as the brother of the informant
Pushparaj opened the door, they saw Krishan Pal alias Lala son of
Bhagwandas, Rishi Pal son of Sher Singh of village Mairi and
Raghunath alias Batauli son of Gajraj from the informant’s
village were standing there, armed with Guns and Rifles while
Ranjeet son of Gajraj was armed with an axe, Bahadur son of
Betali was armed with a spear and Udham son of Kamal Singh
was carrying a knife. All of them with a common object came to
the door and threatened Pushparaj to kill him for pursuing the
case filed against them by Rajesh of village Meri. Thereafter, all
the accused started assaulting the brother of the informant with
butts of weapons, axe and spear. When the informant’s side tried
                                  5

to save him, the accused also made assault upon them and pelted
stones also. Hearing the noise, people from the neighbourhood
reached there, on which the accused opened several rounds of fire
to scare them, which resulted into chaos. The people from the
neighbourhood ran away and hid themselves. In this incident, the
informant’s mother Bitti and his sister-in-law / bhabhi Vimla also
sustained injuries. The brother of the informant Pushparaj alias
Pushpendra was brought in a critical condition and was admitted
to the Medical College, Jhansi where he is undergoing treatment.
On the gathering of the villagers and the raising of noise, the
accused persons fled away from the spot, while firing shots. The
incident was witnessed by the villagers and they also identified
the accused persons in the electric light.

4.    After the incident, informant Manoj Kumar brought his
brother Pushpraj to Medical College, Jhansi where Pushpraj was
medico legally examined at 1:15 A.M. on 02.07.2007. Thereafter,
Manoj Kumar moved a written report / tehrir Ex.Ka.-1 in the
Police Station Nawabad, District Jhansi on which first
information report bearing Case Crime No.1223 of 2007 was
registered at 1:35 A.M. on 02.07.2007. Informant / injured Manoj
Kumar was also medico legally examined by Dr. Harish Kumar
at 1:50 A.M. on 02.07.2007 in Medical College, Jhansi. During
the course of treatment, injured Pushpraj alias Pushpendra
succumbed to his injuries at 5:10 A.M. on 02.07.2007. Thereafter,
aforesaid first information report was converted under section
302 IPC. After registration of the case, "chitthi majroobi" (letter
for medical examination of injured) were prepared at the
concerned police station for injured Bitti Bai and Vimla Devi.
                                     6

Smt. Bitti Bai was medico legally examined at 9:40 A.M. on
02.07.2007 and injured Vimala Devi was examined at 10:00 A.M.
on the same day by Dr. Narendra Kumar.
5.    When Pushpraj alias Pushpendra, the brother of the
informant was brought in a critical condition and was admitted to
the Medical College, Jhansi, he was medically examined by Dr.
Harish Kumar on 02.07.2007 at 1:15 A.M., who found following
injuries on his person :
(i) Lacerated wound measuring 5 cm. x 1 cm. bone deep on the left side of
the upper part of forehead. Blood was oozing.
(ii) Multiple contusion over back of left shoulder of size 0.5 cm. x 0.5 cm.
x muscle deep. X-ray was advised. Swelling was present.
(iii) Lacerated wound 0.5 cm. x 0.5 cm. x bone deep on right forearm on
lateral aspect 5 cm. above to elbow joint. Fresh bleeding and swelling was
present. X-ray was advised.
(iv) Traumatic swelling in left forearm just above to elbow joint. X-ray was
advised.
(v) Multiple contusions of size 0.5 cm. x 0.5 cm. on dorsal aspect of left
palm with swelling. Wound was red. X-ray was advised.
(vi) Lacerated wound on the front of right leg 6 cm. x 0.5 cm. x bone deep,
11 cm. below the knee-cap. Fresh bleeding was present. X-ray was advised.
(vii) Lacerated wound 0.5 cm. x 0.5 cm. x bone deep on the inner side of
left ankle. Fresh bleeding and swelling was present. X-ray was advised.

      The doctor opined that all injuries were fresh and caused by
some blunt object. The medical report of injured Pushpraj alias
Pushpendra is Ex.Ka.6.
6.    Within 4 hours of preparation of the aforesaid injury report,
the injured, Pushpraj alias Pushpendra, died on the very same
day, i.e., 02.07.2007 at 5:10 P.M. The autopsy of the deceased
was performed by Dr. Raj Narayan on 02.07.2007 at 3:00 P.M.,
who found following ante mortem injuries on the person of the
deceased Pushpraj alias Pushpendra :
(i) Stitched wound 6 cm. in length horizontally situated present over left
side of forehead 5 cm. from left eyebrow. 6 stitches and clotted blood
present.
                                     7

(ii) Contused swelling 18 x 3 cm. present over right side of middle of chest.
(iii) Lacerated wound 3 cm. x 2 cm. present on outer surface of middle of
right arm. Broken bone was visible and clotted blood was present.
(iv) Stitched wound of 5 cm. of length present on front of right leg at
middle vertically situated 5 stitches present. Clotted blood present.
(v) Contusion present around left leg at middle.
(vi) Stitched wound of 3 cm. present on medial side of left ankle. 3 stitches
present.
(vii) Stitched wound of 4 cm. present on right sole at middle 3 stitches
present.
(viii) Abrasion present on the back on the area of 15 cm. x 10 cm. on left
side of back.
(ix) Abrasion present on the outer surface of upper part of left thigh
measuring 26 cm. x 8 cm.
(x) Contusion around the left elbow.
Clotted blood was present over the injuries.
       On internal examination, the right arm bone, left arm bone
and elbow joint were found to be fractured. Right leg bone was
also found fractured, which were corresponding with the
aforesaid injuries.
       On further internal examination, right side 5 th & 6th ribs of
the deceased were found fractured and the broken ribs were
found inserted in the right lung. Right side of thoracic cavity was
found filled with clotted blood. Trachea was also found filled
with clotted blood. Right lung was found to be torn on anterior
surface and clotted blood was also present there. Pleura was also
found to be torn on right side. As per postmortem report Ex.Ka.-
4, the deceased died at Medical College on 02.07.2007 at 5:10
A.M.
       As per opinion of the Doctor, the cause of death of the
deceased was due to shock and haemorrhage, as a result of
antemortem injuries.
                                       8

7.     In this incident, the informant Manoj Kumar, his sister-in-
law / bhabhi Vimla Devi (wife of the deceased Pushpraj alias
Pushpendra) and his mother Bitti Bai also sustained injuries.

8.     The injuries inflicted on the body of the injured Bitti Bai
were examined by Dr. Narendra Kumar on 02.07.2007 at 9:40
A.M. at Medical College, Jhansi, who noted following injuries on
her person :

(i) Lacerated wound of 1 cm. X 0.5 cm. with blood clot over posterior
aspect of left wrist skin deep with swelling of 4.5 cm. X 4.5 cm. On
posterior aspect of left hand. X-ray was advised.
(ii) Traumatic reddish swelling of 5 cm. around right ankle with tenderness.
X-ray was advised.
       As per doctor’s opinion, both injuries were caused by hard
and blunt object.

9.     Dr. Narendra Kumar also medically examined the injured
Vimla Devi on the same day at 10:00 A.M. and found injuries on
her person as under :

(i) Traumatic reddish swelling of 5 cm. x 3.5 cm. at posterior medial aspect
of right forearm. Tenderness was present. X-ray was advised.
(ii) Traumatic reddish swelling of 4.5 cm. X 4 cm. at posterior aspect of
right hand. Tenderness was present. X-ray was advised.
(iii) Abrasion of 1 cm. x 05. cm. with clotted blood at anterior aspect of left
knee.
       As noted by doctor, injuries no. (i) & (ii) were caused by
hard and blunt object and injury no. (iii) was caused by friction of
hard and rough surface and was simple in nature.

10.    Informant of the case Manoj Kumar was also examined by
Dr. Harish Kumar on 02.07.2007 at 01:50 A.M., who noted
following injury on his person :
                                  9

(i) Traumatic swelling at left arm above the elbow joint. There was no
visible external injury. X-ray was advised.

      The Doctor opined that injury was fresh and caused by
some blunt object. The injury was kept under observation.

11.   Sub-Inspector Salim Ali P.W.9 started the investigation and
he, after recording the statement of informant Manoj Kumar,
visited the spot and on the pointing out of Smt. Bitti Bai,
prepared the site plan Ex.Ka.-9. He also recovered an empty
cartridge of 315 bore from the spot as well as one green-coloured
used lungi and one light yellow-coloured used towel, both having
blood stains and prepared the recovery memo Ex.Ka.10.
Thereafter, he recorded the statements of some other witnesses.
After receiving the information of the death of the injured, case
was converted under section 302 IPC. He also prepared the
inquest report Ex.Ka.-11 of the deceased. The then S.H.O.
Ashwani Kumar Sinha P.W.10 took over the investigation and
recorded the statement of witnesses of inquest and obtained non-
bailable warrants and processes under section 82 Cr.P.C. against
accused Udham Singh and Krishna Pal alias Lala. After the
transfer of Inspector Ashwani Kumar Sinha P.W.10, Inspector
Gaya Prasad Gautam P.W.11 took over the investigation and sent
the recovered items to Forensic Science Laboratory. After
recording the statements of some witnesses, he completed the
investigation against Rishipal, Raghunath alias Batauli, Ranjeet,
Bahadur and Udham Singh and submitted charge-sheet no.327 /
07 Ex.Ka.-18 under Sections 147, 148, 149, 307, 302 IPC and
Section 7 Criminal Law Amendment Act and investigation
against accused Krishna Pal alias Lala was kept pending. After
                                10

his transfer, next S.H.O. Devi Prasad Shukla concluded the
investigation against accused Krishna Pal alias Lala and since
accused Krishna Pal alias Lala was found absconding, charge-
sheet against him was submitted by the police in ‘Mafroori’
(abscondence).

12.   The learned Magistrate took congnizance upon the charge-
sheets and committed the case to Court of Sessions, as prima
facie charge was for the Sessions triable offence.

13.   Accused appeared before the Court of Session and after
hearing both the parties, charges were framed against them under
Sections 148, 323/149, 302/149 IPC and Section 7 Criminal Law
Amendment Act. The accused persons denied the charges
levelled against them, pleaded not guilty and claimed to be tried.

14.   To bring home the charges against the accused, the
prosecution produced in all eleven witnesses in oral evidence.
They are P.W.1 Manoj Kumar (brother of the deceased and the
informant / injured), P.W.2 Vimla Devi (wife of deceased /
injured), P.W.3 Dr. Narendra Kumar (Doctor, who conducted
medico legal examination of Bitti Bai and Vimla Devi and
prepared their injury reports), P.W.4 Dr. Raj Narayan (autopsy
surgeon, who conducted postmortem of the deceased and
prepared the autopsy report), P.W.5 C.C. Sher Singh (who
prepared Chik F.I.R.), P.W.6 Dr. Harish Kumar (Doctor, who
conducted medico legal examination of deceased and informant),
P.W.7 C.C. Ram Magan Singh (who made entry of registration of
F.I.R. in G.D. and thereafter made entry of addition of Section
302 I.P.C. in G.D.), P.W.8 Daftari Bhagwan Das (who brought
                                11

original injury register), P.W.9 S.I. Salim Ali (first Investigating
Officer), P.W.10      S.H.O. Ashwani Kumar Sinha (second
Investigating Officer) and P.W.11 Inspector Gaya Prasad (third
Investigating Officer).

15.   In documentary evidence, written report / Tehrir Ex.Ka.-1,
injury report of injured Bitti Bai Ex.Ka.-2, injury report of
injured Vimla Devi Ex.Ka.-3, Postmortem Report of deceased
Ex.Ka.-4, Chik F.I.R. Ex.Ka.-5, injury report of injured Pushpraj
Ex.Ka.-6, injury report of informant Manoj Kumar Ex.Ka.-17,
copy of the G.D. Entry Ex.Ka-7, G.D. Entry relating to death of
the deceased Pushpraj and addition of Section 302 I.P.C. in crime
Ex.Ka.-8, Site Plan Ex.Ka.-9, Seizure Memo of empty cartridges
/ clothings of deceased Pushpraj Ex.Ka.-10, Inquest Report
Ex.Ka.-11, letter related to postmortem of the deceased of R.I.
Ex.Ka.-12, letter to C.M.O. Ex.Ka.13, Police Papers Ex.Ka.-13,
Ex.Ka.-14, Photo nash Ex.Ka.-15, sample seal Ex.Ka.-16, Report
of Forensic Science Laboratory Ex.Ka.-17, charge-sheet against
accused Rishi Pal, Raghunath, Ranjeet, Bahadur and Udham
Ex.Ka.-18 and charge-sheet against accused Krishan Pal Ex.Ka.-
19 have been filed and proved. One green-coloured used lungi of
deceased, one used light yellow-coloured towel of the deceased
and one empty cartridge of 315 bore recovered from spot have
been produced and proved as Material Objects 2, 3 & 4
respectively.
16.   After conclusion of evidence, statements of accused
persons were recorded under Section 313 Cr.P.C., in which they
pleaded that F.I.R. in this case was lodged belatedly. Motive to
commit the crime has not been proved by the prosecution. They
                                 12

further pleaded that they belong to different villages and their
common object to commit the incident has also not been proved
by prosecution. Earlier, a case was registered against the
informant Manoj Kumar, his real brothers Ashok and Pushpraj
and their father Ramashanker relating to murder of one Ram
Swaroop and accused were witnesses of that case and they also
gave testimony in the said murder case, due to which there was
enmity going on between the parties. Political rivalry and
pending litigations between the parties were also pleaded by the
accused. It was also stated that the deceased of this case Pushpraj
was a man of criminal antecedents and several criminal cases
were registered against him, therefore, some unknown persons
killed him and in order to create pressure upon them in the case
of murder of Ramswaroop, they have been falsely roped in this
case.
17.     Trial Court, having heard learned counsel for parties and
going through entire record, vide impugned judgment and order,
convicted and sentenced the accused-appellants as above. Hence,
feeling aggrieved with said judgment and order, present accused-
appellants have filed these criminal appeals against their
conviction.
18.     Heard Sri G.S. Chaturvedi, learned senior counsel assisted
by Sri Prashant Vyas and Sri J.P.N. Raj, learned counsel for the
appellants and Sri Vimlendu Tripathi, learned counsel for the
complainant / informant and Sri Vikas Goswami, learned AGA-I
for the State in Criminal Appeal No. 1978 of 2011 (Krishna Pal
@ Lala and another vs. State of U.P.). We have also heard Sri
Amit Kumar Pandey holding brief of Sri Rajrshi Gupta, learned
                                 13

counsel for the appellants and Sri Vimlendu Tripathi alongwith
Sri Gaurang Dwivedi holding brief of Sri Suresh Chand Dwivedi,
learned counsel for the complainant / informant and Sri Vikas
Goswami, learned AGA-I for the State in Criminal Appeal Nos.
1821 of 2011, 1868 of 2011, 2004 of 2011 and 2195 of 2011.
19.   Assailing the impugned judgment on various grounds,
learned counsel for the appellants have submitted that as per
prosecution story, all the accused were armed with deadly
weapons in the alleged incident, however, no incised or punctured
wound or gunshot injury is found on the body of the deceased.
Even, no blood has been found on the street, whereas as per
prosecution witnesses, the alleged incident had happened at the
place of alleged occurrence. The prosecution has withheld
material witnesses namely Ashok (real brother of the deceased),
Smt. Bitti Bai (mother of the deceased), Rama Shanker (father of
the deceased), Jagdish (maternal brother of the deceased). Due to
previous enmity, all the accused have been falsely implicated. The
prosecution has failed to prove the place and manner of incident.
There is no injury on the vital part of the body of the deceased or
any other injured and that too of any deadly weapon like rifle or
knife or axe. Lastly, learned counsels for the appellants argued that
act, if any, is covered under section 304 IPC and, therefore, the
conviction and sentence of the accused is liable to be converted
and reduced accordingly.
20.   On the other hand, learned A.G.A. for the State and learned
counsel for the complainant while vehemently opposing the
submissions made by the learned counsel for the appellants, have
contended that the prosecution has successfully proved its case
                                  14

beyond reasonable doubt. The evidence of prosecution witnesses
is trustworthy and reliable and as per the established legal
principles, the conviction can always be successfully recorded on
the basis of the evidence of eyewitnesses. While going through
the evidence on record, it cannot be said that the offence under
Section 302/149 IPC is not made out against the appellants. The
learned trial Court has not committed any error of law or of fact,
in convicting and sentencing the accused-appellants under
Section 302/149 IPC. It is a case of cold-blooded murder of a
young man and all the relevant evidence to record the conviction
of the appellants is available on record. The false implication
theory does not find any basis in the light of the evidence on
record. There is no merit in the appeal and learned A.G.A. as well
as learned counsel for the complainant thus urged for the
dismissal of appeal.
21.     In the light of above arguments, following questions arises
for consideration in present appeal :
(i) Whether prosecution could be said to have proved its case
against the appellants - convicts beyond reasonable doubt ?

(ii) Whether non-examination of other witnesses present on spot
namely, injured Bitti Bai, deceased’s father Ramashanker and
deceased’s brothers Ashok and Jagdish is fatal to prosecution and
an adverse inference is to be drawn against the prosecution or
not ?
(iii) Whether the present case is a case of culpable homicide not
amounting to murder and, therefore, conviction / sentence of the
appellants – convicts is liable to be converted / reduced under
Section 304 IPC ?
                                15

                           ANALYSIS
Oral Evidence on Record
22.   The prosecution has examined informant – injured Manoj
Kumar as P.W.1 and injured Vimla Devi as P.W.2. Both of these
witnesses are injured witnesses and on the strength of their
depositions, the learned trial Court has decided the case against
appellants. Therefore, evaluation of deposition of these two
witnesses will be dealt with later on in this judgment.
23.   Dr. Narendra Kumar P.W.3 medico legally examined
injured Bitti Bai and Vimla on 02.07.2007 at 9:45 A.M. and 10:00
A.M. respectively in Medical College, Jhansi and prepared their
injury reports, which have been proved by this witness as Ex.Ka.-
2 and Ex.Ka.-3. The injuries noted by this doctor on the body of
Bitti Bai and Vimla have already been mentioned in paragraph 8
and 9 of this judgment. In the opinion of this doctor, all the
injuries sustained by injured Bitti Bai might have been caused by
some hard and blunt object and injuries no.1 and 2 sustained by
injured Vimla might have been caused by some hard and blunt
object, however, injury no.3 might have been caused by friction
from some hard and blunt surface. This doctor opined that
duration of injuries of both the injured was 6 to 24 hours. Both
the injured have been medico legally examined in the morning of
02.07.2007, therefore, as per deposition of this witness, the
injured could have sustained those injuries on 01.07.2007 at
10:00 A.M.
24.   Dr. Raj Narayan P.W.4 is an autopsy surgeon, who has
conducted the postmortem examination of the deceased
Pushparaj alias Pushpendra on 02.07.2007 at 3:00 P.M. The
                                16

antemortem injuries noted by this doctor in his postmortem report
have already been mentioned in paragraph 6 of this judgment.
The injury no.1 noted by this doctor to be a stitched wound of 6
cm. in length, situated over left side of forehead, 5 cm. from left
eyebrow, having six stitches, with clotted blood present. Likewise
injuries no.4, 6 and 7 noted by this doctor to be of stitched
wounds having stitches on it, reveals that the deceased Pushparaj
was provided some medical treatment promptly. A total of ten
antemortem injuries were noted by this autopsy surgeon and on
internal examination, this autopsy surgeon found that 5 th and 6th
rib of the deceased were broken and were found piercing the right
lung. Blood was found to be deposited in chest cavity as well as
in trachea. Both right and left humerus bones, left elbow joint and
right tibia were also found to be fractured corresponding to
antemortem injuries found on the body of the deceased. Right
lung anterior surface was found to be torn with clotted blood
present therein. From the body of the deceased, one grey-
coloured underwear was recovered. This witness has proved the
postmortem report of the deceased as Ex.Ka.-4. He has
specifically stated that the deceased had died at 5:10 A.M. on
02.07.2007 in Maharani Laxmi Bai Medical College Hospital,
Jhansi. On his cross-examination, this witness stated that no bone
was found broken below injury no.1 and injuries no.3, 4, 5, 6, 7,
8, 9 & 10 were found on non-vital parts of the body of the
deceased and injury no.2 could also have been caused if deceased
falls on some hard object. However, from his deposition and from
perusal of the postmortem report Ex.Ka.-4, it is clear that the
deceased was mercilessly beaten resulting into fractures of his
                                  17

right and left humerus bones, left elbow joint, right tibia, 5 th and
6th ribs. He was so mercilessly beaten that his 5 th and 6th ribs after
being broken, entered into the right lung, thereby causing blood
to be stored in the right side of the thoracic cavity. Even
deceased’s right pleura was found torn and trachea was also
found filled with clotted blood. Anterior surface of the deceased’s
right lung was also found torn and clotted blood was also found
inside the same. Therefore, the death of the deceased is a
homicidal death.
25.   Constable 1078 Sher Singh P.W.5, was the scribe of first
information report, who is a formal witness and has proved the
first information report as Ex.Ka.-5.
26.   Dr. Harish Kumar P.W.6 medico legally examined Pushpraj
alias Pushpendra at 1:15 A.M. on 02.07.2007 and prepared his
injury report, which has been proved by this witness as Ex.Ka.-6.
This witness found a total of seven injuries on the body of the
deceased which have already been mentioned in paragraph 5 of
this judgment. He found a total of five lacerated wounds and in
his opinion, the injuries found on the body of Pushpraj have been
caused at 10:00 P.M. on 01.07.2007. This witness has specifically
stated that all injuries noted by him could have been caused by
some blunt object like the handle of the axe, stick, butt of gun
and blunt side of axe. This witness has also stated that injuries
no.1 and 2 found on the body of the deceased were on his vital
part. It is important to observe here that this doctor found
multiple contusions over his left side back, on which swelling
was also present. This witness was cross-examined and in his
cross-examination he stated that injury no.1 was simple in nature,
                                18

however, injury no.2 was kept under observation. He further
stated that there was no incised wound on the body of the injured,
therefore, no injury from sharp edged portion of axe or spear or
knife could have been caused. He further denied the suggestion
of defence that no injury could have been caused from Gun.
27.   This witness was again recalled on the request of
prosecution and has deposed that in the injury report of injured /
informant Manoj Kumar, which is Ex.Ka.-17, he found only one
injury as a traumatic swelling on left arm above the elbow joint.
He advised X-ray of the aforesaid injury. However, no
supplementary report of this injury has been proved by the
prosecution. In the opinion of the doctor, this injury has been
caused at 10:00 P.M. on 01.07.2007. Injured Manoj Kumar was
medico legally examined at 1:50 A.M. on 02.07.2007 in Medical
College, Jhansi and this witness found the aforesaid injury as a
fresh injury which could have been caused during six hours.
Therefore, informant Manoj Kumar could have been injured on
01.07.2007 at 10:00 P.M.
28.   Constable Clerk Ram Magan Singh P.W.7 is a formal
witness, who has made an entry in G.D. No.2 at 1:35 A.M.,
regarding registration of first information report and the aforesaid
G.D. has been proved by this witness as Ex.Ka.-7. This witness
has also proved G.D. No.8 time 5:45 A.M. dated 02.07.2007
whereby Section 302 IPC was added in the aforesaid crime
number. The aforesaid tarmeeme G.D. has been proved by this
witness as Ex.Ka.-8.
29.   Daftari Bhagwan Das Sharma P.W.8 is a formal witness,
who brought original injury register regarding injured Manoj and
                               19

has certified that photocopy available on record is correct as per
the original brought by him. The original injury report of injured
Manoj was available in said injury register at page 89 on OPD
No.921.
30.   Sub-Inspector Salim Ali P.W.9 was the first Investigating
Officer, who started the investigation and reached Medical
College, Jhansi where he found that Pushpraj was being treated
by doctors and he was not in a position to speak. He recorded the
statement of informant Manoj Kumar who was present in the
Emergency Ward. Thereafter, he prepared the site plan on the
pointing out of injured Bitti Bai. Site plan has been proved by
this witness as Ex.Ka.-9. He also recovered an empty cartridge of
315 bore from the spot, as well as one green-coloured used lungi
and one light yellow-coloured used towel, both were having
blood stains and accordingly prepared recovery memo, which has
been proved by this witness as Ex.Ka.10. When he returned to
police post, he recorded the entry of G.D. No.8 time 5:45 A.M.
dated 02.07.2007 in C.D., whereupon the case was converted
from section 307 IPC to section 302 IPC and, therefore, he
requested S.H.O. for further investigation by either S.H.O. or
someone else under his direction. He also prepared the inquest
report of the deceased Pushpraj, which has been proved by this
witness as Ex.Ka.-11. Other papers related to inquest report have
been proved by this witness as Ex.Ka.-12 to Ex.Ka.-16. He also
proved one green-coloured used lungi, one light yellow-coloured
used towel and an empty cartridge as Material Exbs.2, 3 & 4.
31.   The then Incharge Inspector / S.H.O. Ashwani Kumar
Sinha has been examined as P.W.10, who took over the
                                 20

investigation from first Investigating Officer Salim Ali, and
recorded the statement of witnesses of inquest and also recorded
statements of accused Raghunath Singh, Ranjeet Singh, Bahadur
and Rishipal Yadav and obtained non-bailable warrants and
processes under section 82 Cr.P.C. against accused Udham Singh
and Krishna Pal alias Lala. He recorded the statement of Udham
Singh and was searching accused Krishna Pal alias Lala.
Thereafter he was transferred to district Jalaun.
32.   Inspector Gaya Prasad Gautam P.W.11 was the last
Investigating Officer, who took over the investigation after
P.W.10, and sent the recovered items to Forensic Science
Laboratory for examination and F.S.L. Report has been proved by
this witness as Ex.Ka.-17. This witness also recorded the
statement of Dr. Raj Narayan and after completing the
investigation he filed charge-sheet no.327/07 against Rishipal,
Raghunath alias Batauli, Ranjeet, Bahadur and Udham Singh and
has proved the same as Ex.Ka.-18. However, the arrest of accused
Krishna Pal alias Lala was still remaining. After his transfer, next
S.H.O. Devi Prasad Shukla concluded the investigation against
accused Krishna Pal alias Lala and since accused Krishna Pal
alias Lala was found absconding, charge-sheet against him was
submitted by this witness in 'Mafroori ' (abscondence), which has
been proved by this witness (P.W.11) in secondary evidence as
Ex.Ka.-19.
33.   A perusal of Forensic Science Laboratory Report Ex.Ka.-17
reveals that lungi and towel of deceased Pushpraj, which were
recovered from murder spot and underwear recovered from the
body of the deceased, along with one empty cartridge recovered
                                    21

from the spot, all were sent to Forensic Science Laboratory for
examination. As per aforesaid Forensic Science Laboratory
Report, human blood was found on the aforesaid lungi, towel and
underwear of the deceased.

(i) Whether prosecution could be said to have proved it’s case
against the appellants - convicts beyond reasonable doubt ?
34.   In the present case, prosecution has examined injured –
informant Manoj Kumar as P.W.1 and injured Vimla Devi as
P.W.2 and on the strength of depositions of these two witnesses,
the trial Court has convicted all the appellants. Therefore, in these
criminal appeals against conviction we need to appreciate the oral
evidence of these two witnesses.
35.    On the point of appreciation of oral evidence of a witness
the Apex Court in Balu Sudam Khalde v. State of Maharashtra,
(2023) 13 SCC 365 held the law in the following words :
      “Appreciation of oral evidence
    25. The appreciation of ocular evidence is a hard task. There is no
fixed or strait jacket formula for appreciation of the ocular evidence. The
judicially evolved principles for appreciation of ocular evidence in a
criminal case can be enumerated as under:
      “I. While appreciating the evidence of a witness, the approach must
   be whether the evidence of the witness read as a whole appears to
   have a ring of truth. Once that impression is formed, it is undoubtedly
   necessary for the Court to scrutinise the evidence more particularly
   keeping in view the deficiencies, drawbacks and infirmities pointed out
   in the evidence as a whole and evaluate them to find out whether it is
   against the general tenor of the evidence given by the witness and
   whether the earlier evaluation of the evidence is shaken as to render it
   unworthy of belief.
       II. If the court before whom the witness gives evidence had the
   opportunity to form the opinion about the general tenor of evidence
   given by the witness, the appellate court which had not this benefit will
   have to attach due weight to the appreciation of evidence by the trial
   court and unless there are reasons weighty and formidable it would not
   be proper to reject the evidence on the ground of minor variations or
   infirmities in the matter of trivial details.
                                  22
    III. When eyewitness is examined at length it is quite possible for
him to make some discrepancies. But courts should bear in mind that it
is only when discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that the court is justified
in jettisoning his evidence.
    IV. Minor discrepancies on trivial matters not touching the core of
the case, hypertechnical approach by taking sentences torn out of
context here or there from the evidence, attaching importance to some
technical error committed by the investigating officer not going to the
root of the matter would not ordinarily permit rejection of the evidence
as a whole.
    V. Too serious a view to be adopted on mere variations falling in the
narration of an incident (either as between the evidence of two
witnesses or as between two statements of the same witness) is an
unrealistic approach for judicial scrutiny.
    VI. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is not
as if a video tape is replayed on the mental screen.
    VII. Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so often
has an element of surprise. The mental faculties therefore cannot be
expected to be attuned to absorb the details.
    VIII. The powers of observation differ from person to person. What
one may notice, another may not. An object or movement might
emboss its image on one person's mind whereas it might go unnoticed
on the part of another.
    IX. By and large people cannot accurately recall a conversation and
reproduce the very words used by them or heard by them. They can
only recall the main purport of the conversation. It is unrealistic to
expect a witness to be a human tape recorder.
    X. In regard to exact time of an incident, or the time duration of an
occurrence, usually, people make their estimates by guesswork on the
spur of the moment at the time of interrogation. And one cannot
expect people to make very precise or reliable estimates in such
matters. Again, it depends on the time-sense of individuals which
varies from person to person.
    XI. Ordinarily a witness cannot be expected to recall accurately the
sequence of events which take place in rapid succession or in a short
time span. A witness is liable to get confused, or mixed up when
interrogated later on.
    XII. A witness, though wholly truthful, is liable to be overawed by
the court atmosphere and the piercing cross-examination by counsel
and out of nervousness mix up facts, get confused regarding sequence
of events, or fill up details from imagination on the spur of the
moment. The subconscious mind of the witness sometimes so operates
on account of the fear of looking foolish or being disbelieved though
the witness is giving a truthful and honest account of the occurrence
witnessed by him.
    XIII. A former statement though seemingly inconsistent with the
evidence need not necessarily be sufficient to amount to contradiction.
                                 23
Unless the former statement has the potency to discredit the later
statement, even if the later statement is at variance with the former to
some extent it would not be helpful to contradict that witness.”
    [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 : 1983 SCC
(Cri) 728 : AIR 1983 SC 753] , Leela Ram v. State of Haryana [Leela
Ram v. State of Haryana, (1999) 9 SCC 525 : 2000 SCC (Cri) 222 : AIR
1999 SC 3717] and Tahsildar Singh v. State of U.P. [Tahsildar Singh v.
State of U.P., 1959 SCC OnLine SC 17 : AIR 1959 SC 1012]

   26. When the evidence of an injured eyewitness is to be
appreciated, the undernoted legal principles enunciated by the
courts are required to be kept in mind:

   26.1. The presence of an injured eyewitness at the time and
place of the occurrence cannot be doubted unless there are
material contradictions in his deposition.

   26.2. Unless, it is otherwise established by the evidence, it
must be believed that an injured witness would not allow the
real culprits to escape and falsely implicate the accused.

   26.3. The evidence of injured witness has greater
evidentiary value and unless compelling reasons exist, their
statements are not to be discarded lightly.

   26.4. The evidence of injured witness cannot be doubted on
account of some embellishment in natural conduct or minor
contradictions.

   26.5. If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness, then
such contradiction, exaggeration or embellishment should be
discarded from the evidence of injured, but not the whole
evidence.

    26.6. The broad substratum of the prosecution version must be
taken into consideration and discrepancies which normally creep due
to loss of memory with passage of time should be discarded.

     27. In assessing the value of the evidence of the eyewitnesses, two
principal considerations are whether, in the circumstances of the case,
it is possible to believe their presence at the scene of occurrence or in
such situations as would make it possible for them to witness the facts
deposed to by them and secondly, whether there is anything
inherently improbable or unreliable in their evidence. In respect of both
these considerations, circumstances either elicited from those
witnesses themselves or established by other evidence tending to
improbabilise their presence or to discredit the veracity of their
                                    24
   statements, will have a bearing upon the value which a court would
   attach to their evidence. Although in cases where the plea of the
   accused is a mere denial, the evidence of the prosecution witnesses
   has to be examined on its own merits, where the accused raise a
   definite plea or put forward a positive case which is inconsistent with
   that of the prosecution, the nature of such plea or case and the
   probabilities in respect of it will also have to be taken into account
   while assessing the value of the prosecution evidence.”


36.    The Hon’ble Supreme Court in the case of Bhagwan
Jagannath Markad v. State of Maharashtra, (2016) 10 SCC 537
explained that :
      “ 19. While appreciating the evidence of a witness, the court has to
      assess whether read as a whole, it is truthful. In doing so, the court
      has to keep in mind the deficiencies, drawbacks and infirmities to
      find out whether such discrepancies shake the truthfulness. Some
      discrepancies not touching the core of the case are not enough to
      reject the evidence as a whole. No true witness can escape from
      giving some discrepant details. Only when discrepancies are so
      incompatible as to affect the credibility of the version of a witness,
      the court may reject the evidence. Section 155 of the Evidence Act
      enables the doubt to impeach the credibility of the witness by proof
      of former inconsistent statement. Section 145 of the Evidence Act
      lays down the procedure for contradicting a witness by drawing his
      attention to the part of the previous statement which is to be used
      for contradiction. The former statement should have the effect of
      discrediting the present statement but merely because the latter
      statement is at variance to the former to some extent, it is not
      enough to be treated as a contradiction. It is not every discrepancy
      which affects the creditworthiness and the trustworthiness of a
      witness. There may at times be exaggeration or embellishment not
      affecting the credibility. The court has to sift the chaff from the
      grain and find out the truth. A statement may be partly rejected or
      partly accepted [Leela Ram v. State of Haryana, (1999) 9 SCC 525,
      pp. 532-35, paras 9-13 : 2000 SCC (Cri) 222] . Want of independent
      witnesses or unusual behaviour of witnesses of a crime is not
      enough to reject evidence. A witness being a close relative is not
      enough to reject his testimony if it is otherwise credible. A relation
      may not conceal the actual culprit. The evidence may be closely
      scrutinised to assess whether an innocent person is falsely
      implicated. Mechanical rejection of evidence even of a “partisan” or
      “interested” witness may lead to failure of justice. It is well known
      that principle “falsus in uno, falsus in omnibus ” has no general
      acceptability [Gangadhar Behera v. State of Orissa, (2002) 8 SCC
      381, pp. 392-93, para 15 : 2003 SCC (Cri) 32] . On the same
      evidence, some accused persons may be acquitted while others
      may be convicted, depending upon the nature of the offence. The
      court can differentiate the accused who is acquitted from those who
                                    25
      are convicted. A witness may be untruthful in some aspects but the
      other part of the evidence may be worthy of acceptance.
      Discrepancies may arise due to error of observations, loss of
      memory due to lapse of time, mental disposition such as shock at
      the time of occurrence and as such the normal discrepancy does
      not affect the credibility of a witness.
      20. Exaggerated to the rule of benefit of doubt can result in
      miscarriage of justice. Letting the guilty escape is not doing justice.
      A Judge presides over the trial not only to ensure that no innocent
      is punished but also to see that guilty does not escape. [Gangadhar
      Behera case, (2002) 8 SCC 381, p. 394, para 17]
      31.As already observed, the discrepancies of trivial nature could
      not be the basis of rejecting the evidence of injured eyewitnesses
      nor non-examination of some of the witnesses be a ground to reject
      the prosecution case when injured eyewitnesses were examined.
      32.We may also refer to the judgment of this Court in Masalti v.
      State of U.P. [Masalti v. State of U.P., AIR 1965 SC 202 : (1965) 1 Cri
      LJ 226 : (1964) 8 SCR 133] to the effect that the evidence of
      interested partisan witnesses though required to be carefully
      weighed, the same could not be discredited mechanically. When a
      crowd of unlawful assembly commits an offence, it is often not
      possible to accurately describe the part played by each of the
      assailants. Though the appreciation of evidence in such cases may
      be a difficult task, the court has to perform its duty of sifting the
      evidence carefully.

37.   The Hon’ble Apex Court in State of M.P. v. Balveer Singh,
(2025) 8 SCC 545 has held that when eyewitness are examined at
length, it is quite possible for them to make some discrepancies.
But courts should bear in mind that it is only when discrepancies
in the evidence of a witness are so incompatible with the
credibility of his version that the court is justified in jettisoning
his evidence.The role of courts in such circumstances assumes
greater importance and it is expected of the courts to deal with
cases like one in hand, in a more realistic manner and not allow
the criminals to go scot-free on account of procedural
technicalities, perfunctory investigation or insignificant lacunas
in the evidence as otherwise serious crimes would go unpunished.
                                26

38.   In the light of above well settled legal position regarding
appreciation of oral evidence, we shall now be evaluating the
depositions of injured - informant Manoj Kumar P.W.1 and
injured Vimla Devi P.W.2. Manoj Kujmar P.W.1 has stated in his
examination-in-chief that on 01.07.2007 at 10:00 P.M., his
brother Pushpraj alias Pushpendra, he himself, his brothers Ashok
and Jagdish, his mother Bitti Bai and Pushpraj’s wife were all
watching television inside the room after having taken their
dinner. At that time, on hearing the sound of knocking at the door
of their house, everyone went towards the door. His brother
Pushpraj opened the door and as soon as he opened it, Krishan
Pal alias Lala, Rishi Pal and Raghunath alias Batauli carrying
rifles in their hands, Ranjeet carrying an axe in his hand, Bahadur
having a spear in his hand, Udham Singh having a knife in his
hand, all of them simultaneously threatened his brother that why
he is doing pairvee / pursuing the case against them filed on
behalf of one Rajesh of village Mairi and threatened him to kill.
Thereafter, they all collectively assaulted him with an intention to
kill. When informant and his family members tried to rescue
Pusphraj, then they all were also beaten by the accused. They all
were attacked with the butt of rifle, axe, spear etc. On hearing
their screams, people from the surrounding area arrived on the
spot, whereupon accused fired several rounds of fire causing a
stampede on the spot. In the incident, informant himself, his
mother Bitti Bai and bhabhi Vimla Devi sustained injuries. His
brother Pushpraj sustained serious injuries and was brought to
Medical College in a critical condition, where he was under
treatment. The accused have been identified in the electric light.
                                 27

This witness proved the written report / tehrir as Ex.Ka.-1, which
is stated to be in his handwriting bearing his signature.
39.   Examination-in-chief of P.W.1 was recorded on 23.03.2009
and only after a very brief cross-examination, an adjournment
application was moved by the defence on which the case was
adjourned. Thereafter, on 04.06.2009, 16.06.2009, 07.07.2009
and 23.07.2009, his detailed cross-examination was conducted. It
is thus clear that cross-examination of this witness could be
completed only after four months of recording of his
examination-in-chief and that too on four different dates.
Therefore, in this background, some contradictions are bound to
occur in the statement of this witness.
40.   P.W.1 is an injured witness and from the deposition of Dr.
Harish Kumar P.W.6 and injury report of this witness Ex.Ka.-17,
he has suffered injuries in the incident. In State of Haryana Vs.
Krishan, A.I.R. 2017 Supreme Court 3125, it was held that
deposition of an injured witness should be relied upon unless
there are strong grounds for rejection of his evidence on the basis
of major contradictions and discrepancies. The same view was
reiterated in Laxman Singh Vs. State of Bihar, (2021) 9 SCC 191
by holding that deposition of 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.
Evidence of injured witness is entitled to a great weight and very
cogent and convincing grounds are required to discard his
evidence. Therefore, evidence of P.W.1 is certainly entitled to a
great weight.
                                28

41.   In the instant case, in his cross-examination, this witness
(P.W.1) has stated that his brother - deceased Pushpraj was a
practising advocate in District Court and has also fairly conceded
regarding criminal cases pending against him and the deceased.
42.   Learned counsel for the appellants drew the attention of this
Court towards paragraphs no.52 and 53 of the cross-examination
of this witness conducted on 16.06.2009 in support of appellants’
argument that inspite of use of sharp cut weapons, there was no
incised or sharp cut injury on the body of deceased. It is the
specific case of the appellants that inspite of appellants being
armed with deadly weapons, no ante-mortem injury on the body
of the deceased and any injury on the body of either of the three
injured was found to have been caused by these deadly weapons
and therefore, it was vehemently argued that the prosecution
story on this account is suspicious in itself. In the backdrop of
this specific argument, informant/injured Manoj Kumar PW-1 has
specifically stated that deceased as well as injured were attacked
by butts of rifles, axe, spear etc. P.W.1 in these paragraphs has
stated that Ranjit was beating his brother Pushpraj after throwing
him to the ground. He cannot tell how many times Ranjit
assaulted Pushpraj with axe. Udham Singh was assaulting
Pushpraj with knife. He stated that assault with axe and knife
lasted for about 2, 3 minutes. During these 2, 3 minutes, he
(informant) and his brother came there to save the deceased and
when he tried to save the deceased, he was hit by the butt of rifle,
thereafter he did not try to save the deceased because he was also
threatened to kill. He could not see who had hit him from his
back. This witness in paragraph no.52 of his cross-examination
                                  29

has specifically stated that whenever Pushpraj was being
assaulted, he would turn to save himself. Thus, it is clear that
whenever Pushpraj was assaulted with axe or knife, in this
duration of 2 - 3 minutes, he turned and saved himself from the
sharp edges of these weapons. P.W.1 in his examination-in-chief,
has specifically stated that they (including deceased) were
assaulted with the butt of rifles, axe and spear. It is thus clear that
deceased Pushpraj and other injured were assaulted with blunt
side of sharp edged weapons and that is why there is no sharp cut
or incised or punctured wound either on the body of the deceased
or any of the injured. Therefore, we are of the opinion that the
arguments of learned counsel for the appellants that no injury
from any of the deadly weapons was found on the body of the
deceased makes prosecution’s case suspicious, is completely
devoid of merit and from above analysis, we are of the opinion
that aforesaid argument is not helpful to the appellants.
43.   In paragraph no.69 of his cross-examination, P.W.1 has
affirmed the prosecution version. He stated that as soon as his
brother (Pushpraj) opened the main door on hearing the sound of
knocking, he (deceased) was dragged to the street and accused
started making assault upon him. Informant himself, his mother,
his brother Ashok and Jagdish came to the street to save him but
they all were also beaten. Ashok and Jagdish did not sustain
injuries. They were threatened by the accused. In paragraph 95 of
his cross-examination done on 23.07.2009, this witness stated
that the main door of his house is situated in southern direction
where there is an iron gate. When some one enters through the
said iron gate and after entering into the courtyard from eastern
                                  30

side, there is a room whose gate is in western side. In the
northern side from the courtyard, there are several rooms and
stairs. In paragraph no.96 of his cross-examination, he stated that
at the time of incident deceased Pushpraj alongwith his family
was residing in the room, situated in eastern side. This part of his
deposition fully corroborates the site plan Ex.Ka.-9. In paragraph
no.98 of his cross-examination, this witness further affirmed the
prosecution version that informant, his brother Ashok, Jagdish,
his mother Bitti Bai and his sister-in-law / bhabhi Vimla Devi
came on door alongwith Pushpraj. This witness has also stated
that accused opened fire, just to create terror / panic.
44.   P.W.1 has been cross-examined extensively. However, his
deposition as far as date, time, place and manner of incident is
concerned, remained consistent throughout.
45.   Smt. Vimla Devi, who is the wife of deceased Pushpraj, has
been examined as P.W.2 and this witness is also the injured
witness of the incident. P.W.2 Smt. Vimla Devi in her deposition
has stated that on 01.07.2007 at 10:00 P.M., her family members
including her husband Pushpraj, her husband's brothers Ashok,
Manoj and Jagdish, her mother-in-law Bitti Bai and father-in-law
Ramashanker were watching T.V. Suddenly, they heard knocking
sound from the iron gate and upon hearing the same they all went
towards the gate. Her husband Pushpraj opened the door, Krishan
Pal alias Lal was an absconder at that time, Rishi Pal and
Raghunath alias Batauli, who all were armed with rifles and guns,
Ranjeet, who was carrying an axe, Bahadur, who was having a
spear and Udham Singh, who was carrying a knife, they all came
together and caught hold of her husband and warned that he (her
                                31

husband) is doing pairvee from the side of Rajesh against them
and therefore, they will kill him. Thereafter they all started
assaulting her husband with butt / blunt side of spear, axe, knife
and rifles / guns in front of their door. They all (family members
of deceased) tried very hard to save Pushpraj and she (P.W.2)
even clung / embraced her husband but the accused pushed her
away. She sustained injuries. They raised alarm on which people
of the vicinity came on the spot and accused in order to create
terror among them, fired from their guns which caused chaos in
their village. She, her brother-in-law Manoj and mother-in-law
Bitti Bai sustained injuries in the incident. Her husband also
sustained multiple injuries. At the time of incident, there was
electric light over there. Her husband was brought to the Medical
College by their family members and he died during the course of
his treatment. All the accused are present in Court.
46.   Examination-in-chief of P.W.2 was recorded on 09.10.2009
and her cross-examination was deferred, thereafter she was cross-
examined     on   23.10.2009,     09.03.2010,    20.03.2010   and
02.04.2010. It is thus apparently clear that this injured witness
was cross-examined on four different dates at length and her
deposition could be completed in about eight months. Therefore,
some contradictions are bound to occur in her deposition.
47.   P.W.2 in her cross-examination has stated that she is not
aware about directions. However, she stated that adjacent to her
house, house of village watchman Sitaram is situated and
adjacent to Sitaram’s house, the house of his son and thereafter
house of Hukum Singh Yadav are situated. She also stated that in
front of their main door, there is another house of village
                                 32

watchman Sitaram. This part of her deposition fully corroborate
the site plan Ex.Ka.-9. She further deposed that on the date of
incident, her husband Pushpraj was taken to hospital in their
tractor-trolley. Their tractor was parked inside their courtyard and
after the incident, main iron gate was opened and her husband
was taken to the hospital in tractor-trolley. She further stated that
all those houses which are situated in front of their house were
having electric bulb outside their houses. She further deposed that
when her husband was thrown on the ground and was assaulted,
the said assault continued for about 2 - 3 minutes. She cannot tell
that during assault made upon her husband whether knife, spear,
lathi, stick, axe struck her husband. Accused although fired
during the incident, but they did not fire on her husband or on this
witness or any other family members. Jagdish did not sustain
injuries in the incident. However, she tried to save her husband
but she was threatened. This witness also has been cross-
examined extensively. However, her deposition as far as date,
place and manner of incident is concerned, remained consistent
throughout except some minor contradictions. Moreover, P.W.2 in
her examination-in-chief has clearly stated that her husband
(deceased Pushpraj) was assaulted with blunt side / butt of rifles /
guns, spear, axe and knife. Therefore, no sharp cut or incised or
punctured wound were found on the body of the deceased, which
strengthens our conclusion that deceased and other injured were
assaulted with blunt sides of spear, axe and knife and butt of
rifles / guns, which fact does not make the prosecution case
suspicious.

No unnecessary delay in registration of F.I.R.
                                 33

48.   In the present case, the alleged incident is reported to be of
10:00 P.M. on 01.07.2007 and the first information report of the
same has been registered in Police Station Nawabad, District
Jhansi at 1:35 A.M. on 02.07.2007. Therefore, the first
information report has been registered within 3 hours 35 minutes
of the occurrence of the incident in the police station, which is
situated at a distance of about 6 kilometer from the place of
incident. In the incident, a total of four persons from the side of
informant got injured and one injured even succumbed to injuries
within 4 hours of the preparation of his injury report. It is clearly
mentioned in the first information report that the informant
brought his brother injured Pushpraj to Medical College, Jhansi
from the spot, where the aforesaid injured was admitted and his
treatment started, thereafter the informant approached the
concerned police station for registration of the first information
report. Therefore, in this background, the first information report
seems to be registered promptly without any unnecessary delay.

Motive

49.   It is the case of prosecution that deceased Pushpraj was
doing Pairavi in a case lodged by one Rajesh of village Mairi
against accused Krishna Pal. It is also admitted position that both
Pushpraj and appellant Krishna Pal were having their respective
criminal history. As per written report / Tehrir (Ext. Ka-1),
aforesaid Pairavi by Pushparaj annoyed the appellant Krishna Pal
and was the motive behind this murder. PW-1 and PW-2 both in
their respective depositions have clearly stated that all accused
arrived at the spot and knocked at their main gate (iron gate),
which was closed and when the main gate was opened by
                                 34

deceased Pushpraj, all of accused were found standing outside
their main gate armed with deadly weapons and threatened
Pushparaj for doing Pairavi and started assaulting him. PW-1 in
his cross examination has stated that his brother deceased
Pushpraj was doing practice as an advocate in court since last 10-
11 years. PW-1 has also admitted pendency of various criminal
cases against him and his brother Pushpraj. PW-1, however, in his
cross examination has stated that he, his father, brother Pushpraj
and Ashok were accused in the murder of their fellow villager
Ram Swaroop Kushwaha in which they all were acquitted. In the
aforesaid murder case, accused Raghunath @ Batole was eye
witness, who had deposed against them in FTC Court. After their
acquittal in the aforesaid case, another false FIR of robbery was
lodged against him, but finding it false, a final report was filed in
the aforesaid case. Appellant Bahadur was Tehrir writer of the
aforesaid murder case. PW-1 denied all suggestions of the
defense that accused appellants were falsely implicated because
of aforesaid murder case. PW-1 in para-62 of his cross
examination has stated that Ashok, Devendra, Bablu of village
Mairi alongwith one Kushwaha boy of village Kotha Bhaper
were murdered four months prior to murder of his brother
Pushpraj. The appellant Krishna Pal was the accused in the
aforesaid four murders of village Mairi. Few of accused of
aforesaid murder case of village Mairi were absconding at the
time of murder of his brother. In para-92 of his cross
examination, PW-1 has denied to have any enmity of his brother
Pushpraj with accused Krishna Pal and Rishipal.
                               35

50.   PW-2 in her cross examination has stated that the appellant
Krishna Pal was an accused in the four murders of village Mairi
and was absconding. The aforesaid murders were committed 4-5
months before the murder of her husband. She in her cross
examination has supported her deposition given in examination in
chief that the deceased was threatened for doing Pairavi of
aforesaid murders on behalf of one Rajesh. It is thus clear that
there was a murder incident in village Mairi in which four
persons were murdered and the appellant Krishna Pal was an
accused in the same, who was absconding at the time of present
incident.
51.   It has come in the deposition of both PW-1 and PW-2 that
Pushpraj was doing Pairavi in the aforesaid four murders on
behalf of one Rajesh of village Mairi, which annoyed the
appellant Krishna Pal and therefore, it became the motive for him
to murder deceased Pushpraj. Both deceased Pushpraj and
appellant were having criminal history and in this background
Krishna Pal alongwith his companion accused wanted to give a
message to the villagers that if anyone ever dared to do any
Pairavi against Krishna Pal or his associates, will be dealt with
similar fate. It has also come on record that a case of murder of
one Ram Swroop Kushwaha was registered against informant -
injured Manoj, his brothers deceased Pushpraj and Ashok, and his
father. The appellant Bahadur was the scribe of written report /
Tehrir in the aforesaid case and Raghunath @ Batole was eye
witness, however, it has also come on record that the informant -
injured Manoj PW-1, deceased, their father and brother all were
acquitted in the aforesaid case. The aforesaid acquittal also had
                                36

given motive to appellant Raghunath @ Batole and Bahadur to
take revenge. However, just 4-5 months of the present incident,
the appellant Krishna Pal became an accused as well as
absconder in the four murders of village Mairi and deceased was
doing Pairavi in the aforesaid case, therefore, the appellant
Krishna Pal alongwith his other companion had the motive to
commit murder of Pushparaj. Therefore, we are of the opinion
that the prosecution has been able to prove aforesaid motive
behind the present murder.
52.   The informant-injured Manoj Kumar PW-1 and Smt. Vimla
Devi, the wife of the deceased PW-2 in their respective
depositions have consistently stated that on 01.07.2007 at 10:00
pm, the appellants-accused persons knocked the main iron gate.
At that time, PW-1 and PW-2, deceased Pushpraj and their other
family members Ashok and Manoj (maternal brothers of the
deceased), Bitti Bai (mother of the deceased) and Ramashankar
(father of the deceased) were watching T.V. On hearing the
knocking sound, Pushpraj and others went towards main iron gate
and Pushpraj opened the door. Outside their main gate, Krishna
Pal @ Lala, Rishi Pal and Raghunath were carrying rifles in their
hands, Ranjeet was carrying an axe in his hand, Bahadur was
carrying a spear in his hand and Uddham Singh was carrying a
knife in his hand. All of these accused simultaneously, threatened
Pushpraj for doing pairvi from the side of Rajesh against them
and by dragging Pushpraj collectively made an assault on him.

53. P.W.1 and P.W. 2 have not specifically stated that any blow
was inflicted directly with sharp edged side of either spear, axe or
knife. Both of these witnesses have specifically stated that firing
                                37

was resorted to terrorize the family members of the deceased as
well as people who have gathered from the surrounding area,
because of which, there was stampede on the spot. From the very
beginning, it is not the case of the prosecution that the deceased
or any of the injured has sustained any sharp cut injury. Oral or
documentary evidence available on record proves that PW.-1 and
PW-2 both have sustained injuries during the incident, which in
the opinion of doctors have been found to be sustained from
some hard and blunt object. Therefore, PW-1 and PW-2 are the
injured witnesses, who have deposed consistently regarding the
presence of the appellants on spot and they all were armed with
deadly weapons. Date, time, place and manner of incident has
been proved by these witnesses. There is no inconsistency or
contradictions in their depositions as far as presence of the
appellants and their active participation in the crime and the date,
time or place of incident is concerned. It is also important to
observe here that the prosecution has been able to prove motive
behind the crime. In Rajesh’s case, the appellant Krishna Pal was
being prosecuted and Pushpraj was doing pairvi in this case and
this was the motive for Krishna Pal to kill Pushpraj. P.W.1 in his
cross- examination has clearly stated that deceased was wearing a
lungi over his underwear and was also carrying a towel. His
(deceased’s) lungi and towel fell on the spot during the assault,
which were recovered from the spot by first Investigating Officer
and were sent to Forensic Science Laboratory for examination
along with underwear found on the body of the deceased during
postmortem. The FSL Report Ex.Ka.-17 corroborates this part of
deposition of P.W.1 because in FSL Examination, lungi, towel
                                38

and underwear all were found having human blood. As far as
argument of learned counsels for appellants that no blood was
found on spot is concerned, this is a lapse on the part of
Investigating Officer, indicative of defective investigation. Law is
well settled that no benefit can be given to accused if prosecution
has proved its case from trustworthy depositions of eyewitnesses.
From the incident as narrated by PW-1 and PW-2, it is crystal
clear that there was no intention to kill any other member of
Pushpraj’s family. The informant Manoj Kumar, deceased’s
widow Vimla Devi, deceased’s mother Bitti Bai tried to save
Pushpraj, but they were also injured with blunt side of weapons,
meaning thereby that the appellants have no intention to kill any
other family members of the deceased Pushpraj. It has also come
on record that Pushpraj was mercilessly beaten and there was no
resistance from the side of Pushpraj. Therefore, the appellant did
not feel any need to either shoot him or to cause injury from
sharp side of sharp cut weapon. The appellants have mercilessly
beaten the deceased Pushpraj in front of their main gate and were
giving a message that if any one is going to do any pairvi against
them, such person will also be taught a similar lesson.
54.   Therefore, we are of the opinion that the prosecution has
been able to prove it’s case against the appellants-convicts
beyond reasonable doubt and question no.1 is answered in
affirmative.

(ii) Whether non-examination of other witnesses present on spot
namely, injured Bitti Bai and deceased’s brothers Ashok and
Jagdish, is fatal to prosecution and an adverse inference is to be
drawn against the prosecution or not ?
                                 39

55.   In the present case, informant Manoj Kumar, his mother
Smt. Bitti Bai and his bhabhi Vimla Devi (wife of deceased) also
sustained injuries. However, Smt. Bitti Bai has not been
examined as prosecution witness and as per first information
report, informant’s brothers Ashok and Jagdish were also present
on spot, however, these two alleged eyewitnesses have also not
been examined. In this backdrop, learned counsel for the
appellants have vehemently argued that material witnesses have
been intentionally withheld by the prosecution and, therefore, an
adverse inference has to be drawn against the prosecution. Law
on this point is well settled that it is not the number of witnesses,
which is important and material for prosecution to prove it’s case,
rather it is the quality of the deposition of the witnesses, which is
important and material for the prosecution to prove it’s case.

56.   In Bhimappa Chandappa v. State of Karnataka (2006) 11
SCC 323, the Hon'ble Supreme Court held that testimony of a
solitary witness can be made the basis of conviction. The
credibility of the witness requires to be tested with reference to
the quality of his evidence which must be free from blemish or
suspicion and must impress the Court as natural, wholly truthful
and so convincing that the Court has no hesitation in recording a
conviction solely on his uncorroborated testimony.
57.   The Hon’ble Apex Court in Joy Devaraj v. State of Kerala,
(2024) 8 SCC 102 has held that even otherwise, Section 134 of
the Evidence Act, 1872 ordains that no particular number of
witnesses is required, in any case, to prove a fact. Therefore, it is
not the law that a conviction cannot be recorded unless there is
oral testimony of at least two witnesses matching with each other.
                                 40

It is the quality of evidence and not the quantity that matters. If
the evidence of a solitary witness appeals to the Court to be
wholly reliable, the same can form the foundation for recording a
conviction.
58.   The Apex Court in the case of Rohtash Kumar v. State of
Haryana, (2013) 14 SCC 434 has held that the prosecution is not
bound to examine all the cited witnesses, and it can drop
witnesses to avoid multiplicity or plurality of witnesses. The
accused can also examine the cited, but not examined witnesses,
if he so desires, in his defence. It is the discretion of the
prosecutor to tender the witnesses to prove the case of the
prosecution and “the Court will not interfere with the exercise of
that discretion unless, perhaps, it can be shown that the
prosecution has been influenced by some oblique motive”. In an
extraordinary situation, if the Court comes to the conclusion that
a material witness has been withheld, it can draw an adverse
inference against the prosecution, as has been provided under
Section 114 of the Evidence Act. Undoubtedly, the public
prosecutor must not take the liberty to “pick and choose” his
witnesses, as he must be fair to the Court, and therefore, to the
truth. In a given case, the Court can always examine a witness as
a Court witness, if it is so warranted in the interests of justice. In
fact, the evidence of the witnesses must be tested on the
touchstone of reliability, credibility and trustworthiness. If the
Court finds the same to be untruthful, there is no legal bar for it
to discard the same.
59.   The Hon’ble Supreme Court while summarising the law in
the case of Ravasaheb v. State of Karnataka, (2023) 5 SCC 391
                                     41

has observed that when a case involves a large number of
offenders, prudently, it is necessary, but not always, for the court
to seek corroboration from at least two more witnesses as a
measure of caution. Be that as it may, the principle is quality over
quantity of witnesses.
60.    The Apex Court in the case of Avtar Singh v. State of
Haryana, (2012) 9 SCC 432 has interpreted the law as :
      “18.The learned counsel further submitted that though the
      prosecution would claim injuries on several persons of the
      complainant party, the other persons who were stated to have been
      injured or were present at the place of occurrence were not
      examined. In this context, it will be relevant to refer to the decision
      of this Court reported in Tej Parkash v. State of Haryana [(1996) 7
      SCC 322 : 1996 SCC (Cri) 412] wherein this Court held that all the
      witnesses of the prosecution may not be called and it is sufficient if
      witnesses who were essential to the unfolding of the narrative on
      which the prosecution is based must be called by the prosecution.
      The legal position has been stated in para 18 as under : (SCC p. 330)
                 “18. In support of his contention that serious prejudice
             was caused to the appellant by non-examination of Phool
             Singh who had been cited by the prosecution as one of the
             witness, Mr Ganesh relied upon Stephen Seneviratne v. R.
             [(1936) 44 LW 661 : AIR 1936 PC 289] , Habeeb Mohammad
             v. State of Hyderabad [(1953) 2 SCC 231 : AIR 1954 SC 51 :
             1954 Cri LJ 338 : 1954 SCR 475] and State of U.P. v. Jaggo
             [(1971) 2 SCC 42 : 1971 SCC (Cri) 401] . The aforesaid
             decisions can be of little assistance to the appellant in the
             present case. What was held by the Privy Council and this
             Court was that witnesses who were essential to the unfolding
             of the narrative on which the prosecution is based must be
             called by the prosecution whether the effect of their testimony
             is for or against the case for the prosecution and that failure to
             examine such a witness might affect a fair trial. It was also
             observed that all the witnesses of the prosecution need not be
             called. In the present case, the witnesses who were essential
             to the unfolding of the narrative had been examined.”
      19. The law on this aspect can be succinctly stated to the effect that
      in order to prove the guilt of the accused, the prosecution should
                                    42

      make earnest effort to place the material evidence both oral and
      documentary which satisfactorily and truthfully demonstrate and
      fully support the case of the prosecution. Where there were several
      persons stated to have witnessed the incident and the prosecution
      examined those witnesses who were able to depose the nature of
      offence committed more accurately leaving no room for doubt about
      the involvement of the accused in the occurrence and the extent of
      their involvement with specific overt act and also were able to
      withstand the cross-examination by maintaining the sequence and
      the part played as originally stated, it will be wholly irrelevant and
      unnecessary to multiply the number of witnesses to repeat the same
      version.”

61.   The Apex Court in State of M.P. Vs. Balveer Singh, (2025)
8 SCC 545 has held that there is another danger in insisting on
plurality of witnesses. Irrespective of the quality of the oral
evidence of a single witness, if courts were to insist on plurality
of witnesses in proof of any fact, they will be indirectly
encouraging subordination of witnesses.
62.   In the case of Jodhan v. State of M.P., (2015) 11 SCC 52,
the Hon’ble Supreme Court has held that the testimony of the
injured witness has its own significance and it has to be placed
reliance upon unless there are strong grounds for rejection of his
evidence on the basis of major contradictions and inconsistencies.
As has been stated, the injured witness has been conferred special
status in law and the injury sustained by him is an inbuilt
guarantee of his presence at the place of occurrence.
63.   Thus law on this issue is well settled that no particular
number of witnesses is required in any case to prove a particular
fact. It is the quality of the evidence and not the quantity, which
matters, if the evidence of a solitary witness appeals to the Court
to be wholly reliable, the same can form the foundation in
recording a conviction. The prosecution is not bound to examine
                                 43

all the cited witnesses, and it can drop witnesses to avoid
multiplicity or plurality of witnesses. If number of persons are
injured in an incident, then it is not essential for the prosecution
to examine all such witnesses and the prosecution may choose to
examine such number of witnesses, who in it’s opinion are
essential to prove the prosecution story. In a given case, not only
the accused but Court can always examine a witness as a Court
witness, if it is so warranted in the interest of justice. The defence
can examine any cited witness, who has been dropped by the
prosecution, if it so desires. Therefore, the prosecution can prove
its story not only with the help of a reliable solitary witness, but
can also call some other witnesses, not necessarily all the
eyewitnesses or all the injured witnesses, which it finds essential
for proving it’s case. There might be a number of reasons for the
prosecution for not examining all the cited witnesses in a case, if
quality of the oral evidence of a single witness or any number of
witnesses adduced by it, are sufficient to prove it’s case.
64.   In the present case, informant Manoj Kumar and deceased’s
wife Vimla Devi have been examined as prosecution witnesses
and both of these witnesses are injured witnesses. Examination-
in-chief of injured Manoj Kumar P.W.1 was of about 3 pages,
whereas his cross-examination was of more than 39 pages,
running into 160 paras. On 04.06.2009, 16.06.2009, 07.07.2009
and 23.07.2009, his (P.W.1’s) detailed cross-examination was
conducted. It is thus clear that cross-examination of this witness
could be completed only after four months of recording of his
examination-in-chief and that too on four different dates.
Examination-in-chief of P.W.1 was recorded on 23.03.2009 and
                                44

only after a very brief cross-examination, an adjournment
application was moved by the defence on which the case was
adjourned. Examination-in-chief of injured Vimla Devi P.W.2
was concluded in 3 pages, however, her cross-examination was
concluded in 28 pages. Examination-in-chief         of P.W.2 was
recorded on 09.10.2009 and her cross-examination was deferred,
thereafter she was cross-examined on 23.10.2009, 09.03.2010,
20.03.2010 and 02.04.2010. It is thus apparently clear that this
injured witness was also cross-examined on four different dates at
length and her deposition could be completed in about eight
months.
65.   It is thus, apparently clear that both these injured witnesses
i.e. P.W.1 and P.W.2, were extensively cross-examined that too
on several dates and their depositions could be concluded in
several months. In this background, their depositions were bound
to have minor contradictions. PW-1 and PW-2 have deposed
consistently regarding the presence of the appellants on spot
armed with deadly weapons. Date, time, place and manner of
incident has been proved by these witnesses. There is no
inconsistency or contradictions in their depositions as far as
presence of the appellants and their active participation in the
crime and the date, time or place of incident is concerned.
Probably, when these witnesses have been extensively cross-
examined, the prosecution has decided not to examine any other
eyewitness or injured of the incident. Therefore, non-examination
of other witnesses present on the spot, who are family members
of the deceased as well as of these witnesses, is not fatal at all
and no adverse inference can be drawn against the prosecution
                                       45

    for non-examination of those other witnesses present on the spot.
    Therefore, we do not find any force in the arguments of learned
    counsel for the appellants as far as withholding of material
    witnesses by the prosecution is concerned. Informant Manoj
    Kumar is the younger brother of the deceased Pushpraj, who has
    been examined as P.W.1, who is also an injured witness. Question
    No.2 is answered accordingly.


    (iii) Whether the present case is a case of culpable homicide not
    amounting to murder and, therefore, conviction / sentence of the
    appellants – convicts is liable to be converted / reduced under
    Section 304 IPC ?

    66.   The Supreme Court while analyzing difference between
    culpable homicide amounting to murder and culpable homicide
    not amounting to murder in Anbazhagan V. State Represented by
    the Inspector of Police (2024) 20 SCC 500 in paras 39-44 has
    held that-
          “39” This Court in Phulia Tudu (2007) 14 SCC 588 has observed
          that the academic distinction between ‘murder’ and ‘culpable
          homicide not amounting to murder’ has always vexed the courts. The
          confusion is caused if courts losing sight of the true scope and
          meaning of the terms used by the legislature in these sections, allow
          themselves to be drawn into minute abstractions. The safest way of
          approach to the interpretation and application of these provisions
          seems to be to keep in focus the keywords used in the various clauses
          of Sections 299 and 300 of the IPC. The following comparative table
          will be helpful in appreciating the points of distinction between the
          two offences:-

      Section 299                             Section 300
A person commits culpable homicide if Subject to certain exceptions culpable
the act by which the death is caused is homicide is murder if the act by which death
done-                                   is caused is done-
                                        Intention
                                         46

                                         (1)with the intention of causing death; or
(a)with the intention of causing death;
or                                      (2)with the intention of causing such bodily
(b)with the intention of causing injury injury as the of endor knows to be likely to
as is likely to cause death; or         cause the death of the person to whom the
                                        harm is caused; or

                                         (3)with the intention of causing bodily injury
                                         to any person and the bodily injury intended
                                         to be inflicted is sufficient in the ordinary
                                         course of nature to cause death; or
                                         Knowledge

(c) with the knowledge that the act is (4) with the knowledge that the act is so
likely to cause death                  imminently dangerous that it must in all
                                       probability cause death or such bodily injury
                                       as is likely to cause death, and commits such
                                       act without any excuse for incurring the risk
                                       of causing death or such injury as is
                                       mentioned above

          “40”Clause (b) of Section 299 of the IPC corresponds with clauses
          (2) and (3) of Section 300 of the IPC. The distinguishing feature of
          the mens rea requisite under clause (2) is the knowledge possessed
          by the of ender regarding the particular victim being in such a
          peculiar condition or state of health that the internal harm caused to
          him is likely to be fatal, notwithstanding the fact that such harm
          would not in the ordinary way of nature be sufficient to cause death
          of a person in normal health or condition. It is noteworthy that the
          ‘intention to cause death’ is not an essential requirement of clause
          (2). Only the intention of causing the bodily injury coupled with the
          of ender's knowledge of the likelihood of such injury causing the
          death of the particular victim, is sufficient to bring the killing within
          the ambit of this clause. This clause (2) is borne out by illustration
          (b) appended to Section 300 of the IPC.

          “41” Clause (b) of Section 299 of the IPC does not postulate any
          such knowledge on the part of the offender. Instances of cases falling
          under clause (2) of Section 300 of the IPC can be where the
          assailant causes death by a fist blow intentionally given knowing
          that the victim is suffering from an enlarged liver, or enlarged spleen
          or diseased heart and such blow is likely to cause death of that
          particular person as a result; of the rupture of the liver, or spleen or
          the failure of the heart, as the case may be. If the assailant had no
          such knowledge about the disease or special frailty of the victim, nor
          an intention to cause death or bodily injury sufficient in the ordinary
          course of nature to cause death, the offence will not be murder, even
          if the injury which caused the death, was intentionally given. In
                              47

clause (3) of Section 300 of the IPC, instead of the words “likely to
cause death” occurring in the corresponding clause (b) of Section
299 of the IPC, the words “sufficient in the ordinary course of
nature” have been used. Obviously, the distinction lies between a
bodily injury likely to cause death and a bodily injury sufficient in
the ordinary course of nature to cause death. The distinction is fine
but real and if overlooked, may result in miscarriage of justice. The
difference between clause (b) of Section 299 of the IPC and clause
(3) of Section 300 of the IPC is one of the degree of probability of
death resulting from the intended bodily injury. To put it more
broadly, it is the degree of probability of death which determines
whether a culpable homicide is of the gravest, medium or the lowest
degree. The word ‘likely’ in clause (b) of Section 299 of the IPC
conveys the sense of probable as distinguished from a mere
possibility. The words “bodily injury…..sufficient in the ordinary
course of nature to cause death” mean that death will be the “most
probable” result of the injury, having regard to the ordinary course
of nature.

“42” For cases to fall within clause (3), it is not necessary that the
offender intended to cause death, so long as the death ensues from
the intentional bodily injury or injuries suf icient to cause death in
the ordinary course of nature. The decision in the case of Rajwant
Singh v. State of Kerala, AIR 1966 SC 1874, is an apt illustration of
this point.

“43” The scope of clause thirdly of Section 300 of the IPC has been
the subject matter of various decisions of this Court. The decision in
Virsa Singh (supra) has throughout been followed in a number of
cases by this Court. In all these cases the approach has been to find
out whether the ingredient namely the intention to cause the
particular injury was present or not? If such an intention to cause
that particular injury is made out and if the injury is found to be
sufficient in the ordinary course of nature to cause death, then
clause thirdly of Section 300 of the IPC is attracted.

“44”Analysing clause thirdly and as to what the prosecution must
prove, it was held in Virsa Singh (supra) as under:-

      “15. First, it must establish, quite objectively, that a bodily
      injury is present;

      16. Secondly, the nature of the injury must be proved; These
      are purely objective investigations.

      17. Thirdly, it must be proved that there was an intention to
      inflict that particular bodily injury, that is to say, that it was
      not accidental or unintentional, or that some other kind of
      injury was intended…
                                     48


             18. Once these three elements are proved to be present, the
             enquiry proceeds further and,

             19. Fourthly, it must be proved that the injury of the type just
             described made up of the three elements set out above is
             suficient to cause death in the ordinary course of nature. This
             part of the enquiry is purely objective and inferential and has
             nothing to do with the intention of the of ender.”

      It was further observed as under:-
             “20. … If they inflict injuries of that kind, they must face the
             consequences; and they can only escape if it can be shown, or
             reasonably deduced that the injury was accidental or
             otherwise unintentional.” (Emphasis supplied)

The Apex court also observed in para 66 that

      “66”Few important principles of law discernible from the aforesaid
      discussion may be summed up thus:-

      “66.1”When the court is confronted with the question, what offence
      the accused could be said to have committed, the true test is to find
      out the intention or knowledge of the accused in doing the act. If the
      intention or knowledge was such as is described in Clauses (1) to (4)
      of Section 300 of the IPC, the act will be murder even though only a
      single injury was caused. To illustrate : 'A' is bound hand and foot
      'B' comes and placing his revolver against the head of 'A', shoots 'A'
      in his head killing him instantaneously. Here, there will be no
      difficulty in holding that the intention of 'B' in shooting 'A' was to
      kill him, though only single injury was caused. The case would,
      therefore, be of murder falling within Clause (1) of Section 300 of
      the IPC. Taking another instance, 'B' sneaks into the bed room of his
      enemy 'A' while the latter is asleep on his bed. Taking aim at the left
      chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and
      runs away. 'A' dies shortly thereafter. The injury to 'A' was found to
      be sufficient in ordinary course of nature to cause death. There may
      be no difficulty in holding that 'B' intentionally inflicted the
      particular injury found to be caused and that the said injury was
      objectively sufficient in the ordinary course of nature to cause death.
      This would bring the act of 'B' within Clause (3) of Section 300 of
      the IPC and render him guilty of the offence of murder although only
      single injury was caused.

      “66.2” Even when the intention or knowledge of the accused may
      fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the
      accused which would otherwise be murder, will be taken out of the
      purview of murder, if the accused's case attracts any one of the five
                               49

exceptions enumerated in that section. In the event of the case
falling within any of those exceptions, the offence would be culpable
homicide not amounting to murder, falling within Part 1 of Section
304 of the IPC, if the case of the accused is such as to fall within
Clauses (1) to (3) of Section 300 of the IPC. It would be offence
under Part II of Section 304 if the case is such as to fall within
Clause (4) of Section 300 of the IPC. Again, the intention or
knowledge of the accused may be such that only 2nd or 3rd part of
Section 299 of the IPC, may be attracted but not any of the clauses
of Section 300 of the IPC. In that situation also, the offence would be
culpable homicide not amounting to murder under Section 304 of the
IPC. It would be an offence under Part I of that section, if the case
fall within 2nd part of Section 299, while it would be an offence
under Part II of Section 304 if the case fall within 3rd part of Section
299 of the IPC.

“66.3” To put it in other words, if the act of an accused person falls
within the first two clauses of cases of culpable homicide as
described in Section 299 of the IPC it is punishable under the first
part of Section 304. If, however, it falls within the third clause, it is
punishable under the second part of Section 304. In effect, therefore,
the first part of this section would apply when there is ‘guilty
intention,’ whereas the second part would apply when there is no
such intention, but there is ‘guilty knowledge’.

“66.4”Even if single injury is inflicted, if that particular injury was
intended, and objectively that injury was sufficient in the ordinary
course of nature to cause death, the requirements of Clause 3rdly to
Section 300 of the IPC, are fulfilled and the offence would be
murder.

“66.5” Section 304 of the IPC will apply to the following classes of
cases:
       (i) when the case falls under one or the other of the clauses of
       Section 300, but it is covered by one of the exceptions to that
       Section,

       (ii) when the injury caused is not of the higher degree of
       likelihood which is covered by the expression 'sufficient in the
       ordinary course of nature to cause death' but is of a lower
       degree of likelihood which is generally spoken of as an injury
       'likely to cause death' and the case does not fall under Clause
       (2) of Section 300 of the IPC,

       (iii) when the act is done with the knowledge that death is
       likely to ensue but without intention to cause death or an
       injury likely to cause death.
                               50

“66.6” To put it more succinctly, the difference between the two
parts of Section 304 of the IPC is that under the first part, the crime
of murder is first established and the accused is then given the
benefit of one of the exceptions to Section 300 of the IPC, while
under the second part, the crime of murder is never established at
all. Therefore, for the purpose of holding an accused guilty of the
offence punishable under the second part of Section 304 of the IPC,
the accused need not bring his case within one of the exceptions to
Section 300 of the IPC.

“66.7” The word 'likely' means probably and it is distinguished from
more 'possibly'. When chances of happening are even or greater
than its not happening, we may say that the thing will 'probably
happen'. In reaching the conclusion, the court has to place itself in
the situation of the accused and then judge whether the accused had
the knowledge that by the act he was likely to cause death.

“66.8” The distinction between culpable homicide (Section 299 of
the IPC) and murder (Section 300 of the IPC) has always to be
carefully borne in mind while dealing with a charge under Section
302 of the IPC. Under the category of unlawful homicides, both, the
cases of culpable homicide amounting to murder and those not
amounting to murder would fall. Culpable homicide is not murder
when the case is brought within the five exceptions to Section 300 of
the IPC. But, even though none of the said five exceptions are
pleaded or prima facie established on the evidence on record, the
prosecution must still be required under the law to bring the case
under any of the four clauses of Section 300 of the IPC to sustain the
charge of murder. If the prosecution fails to discharge this onus in
establishing any one of the four clauses of Section 300 of the IPC,
namely, 1stly to 4thly, the charge of murder would not be made out
and the case may be one of culpable homicide not amounting to
murder as described under Section 299 of the IPC

“66.9” The court must address itself to the question of mens rea. If
Clause thirdly of Section 300 is to be applied, the assailant must
intend the particular injury inflicted on the deceased. This ingredient
could rarely be proved by direct evidence. Inevitably, it is a matter of
inference to be drawn from the proved circumstances of the case.
The court must necessarily have regard to the nature of the weapon
used, part of the body injured, extent of the injury, degree of force
used in causing the injury, the manner of attack, the circumstances
preceding and attendant on the attack.

“66.10” Intention to kill is not the only intention that makes a
culpable homicide a murder. The intention to cause injury or injuries
sufficient in the ordinary cause of nature to cause death also makes
a culpable homicide a murder if death has actually been caused and
                                     51

      intention to cause such injury or injuries is to be inferred from the
      act or acts resulting in the injury or injuries.

      “66.11” When single injury inflicted by the accused results in the
      death of the victim, no inference, as a general principle, can be
      drawn that the accused did not have the intention to cause the death
      or that particular injury which resulted in the death of the victim.
      Whether an accused had the required guilty intention or not, is a
      question of fact which has to be determined on the facts of each
      case.

      “66.12” Where the prosecution proves that the accused had the
      intention to cause death of any person or to cause bodily injury to
      him and the intended injury is sufficient in the ordinary course of
      nature to cause death, then, even if he inflicts a single injury which
      results in the death of the victim, the of ence squarely falls under
      Clause thirdly of Section 300 of the IPC unless one of the exceptions
      applies.

      “66.13” In determining the question, whether an accused had guilty
      intention or guilty knowledge in a case where only a single injury is
      inflicted by him and that injury is sufficient in the ordinary course of
      nature to cause death, the fact that the act is done without
      premeditation in a sudden fight or quarrel, or that the circumstances
      justify that the injury was accidental or unintentional, or that he
      only intended a simple injury, would lead to the inference of guilty
      knowledge, and the offence would be one under Section 304 Part II
      of the IPC.

67.   In the light of above well settled position of law regarding
murder and / or culpable homicide not amounting to murder, we
are again evaluating the oral as well as documentary evidence
available on record to arrive on a just conclusion. The accused
persons arrived at the spot armed with deadly weapons, in a
premeditated manner, to murder Pushpraj and to give villagers a
clear message. The prosecution has successfully proved the
motive behind the murder of the deceased. It is a case in which
all the accused have participated with a premeditated plan as well
as in furtherance of their common object of murdering the
deceased. In this background, injuries sustained by the deceased
                                 52

are carefully evaluated, which is clear from perusal of the
postmortem report Ex.Ka.-4, that the deceased was mercilessly
beaten resulting into fractures of his right and left humerus bones,
left elbow joint, right tibia, 5th and 6th ribs. He was so mercilessly
beaten that his 5th and 6th rib after being broken entered into right
lung thereby causing blood being stored in right side thoracic
cavity. Even deceased’s right pleura was found teared and trachea
was also found filled with clotted blood. Anterior surface of the
deceased’s right lung was also found teared and clotted blood was
also found inside the same. The deceased was mercilessly beaten
on 01.07.2007 at 10:00 P.M. and, therefore, was rushed for
treatment to the Medical College, Jhansi, where he arrived at 1:50
A.M. on 02.07.2007. The deceased succumbed to injuries within
four hours of preparation of his injury report and had actually
died within seven hours of sustaining injuries. In his postmortem,
the autopsy surgeon found four stitched wounds, having total
seventeen stitches. In the lacerated wound found present on outer
surface of middle of right arm, his (deceased) broken bone was
clearly visible. The nature of injuries found in the postmortem
report of the deceased clearly reveals the amount of force
employed by the members of unlawful assembly in causing ante-
mortem injuries to the deceased. The nature of injuries so caused
by the appellants on the person of the deceased, as found and
noted in his autopsy report, clearly reveals that those injuries
were sufficient to cause death in natural course.

68.   Hon’ble Supreme Court in Pulicherla Nagaraju Vs. State of
A.P., 2007 (1) SCC (Cri) 500, has observed that there may be
cases of murder, where the accused attempts to avoid the penalty
                               53

for murder by attempting to put forth a case that there was no
intention to cause death. It is for the Courts to ensure that the
cases of murder punishable under Section 302 I.P.C., are not
converted into the offence punishable under Section 304 Part I /
II. This observation of the Hon’ble Supreme Court again found
approval in State of Uttarakhand Vs. Sachendra Singh Rawat,
(2022) 4 Supreme Court Cases 227.

69.   All the appellants came together and after committing
murder of Pushpraj ran together by resorting to fire for
threatening the family members of Pushpraj and their neighbours,
which is clearly indicative of premeditated plan. The manner in
which, Pushpraj was brutally attacked, mercilessly beaten and
grievously injured, shows not only their intention but their
knowledge also. The accused could have very easily murdered
the deceased either by single gunshot or by a single blow of sharp
cut deadly weapon being carried by them, but instead they chose
to murder by mercilessly assaulting the deceased from blunt side
of their weapons, in presence of his family members, to give a
stern message to everyone in village not to interfere in their
matters and not to do any type of pairvi against them, else be
ready to face the same consequence. All the accused in
furtherance of their common object came on spot armed with
deadly weapons and mercilessly thrashed the deceased, when the
family members tried to save the deceased from their clutches,
they were also beaten, resulting into injuries to P.W.1, P.W.2 and
mother of the deceased namely Bitti Bai. The accused arrived in a
premeditated design and they committed offence in such a
manner to spread a wave of terror in the village and society. The
                                  54

manner in which the accused arrived on spot with deadly
weapons and thereafter assaulted the deceased and type of
injuries inflicted by them from the blunt side of the deadly
weapons clearly indicates their intention to cause the murder of
the deceased. In the mercilessly thrashing, the deceased’s both
hand, one leg and two ribs were fractured, which is clearly
indicative of the extent of force used by the accused persons in
the incident. All the accused persons arrived on the spot with
deadly weapons and, therefore, it can be easily presumed that
they all have the knowledge that murder is likely to be
committed. Therefore, all the accused in a preplanned manner
arrived at the spot with deadly weapons and formed an unlawful
assembly and had thus assaulted the deceased. Every member of
the unlawful assembly has actually participated in commission of
the offence. Therefore, being members of unlawful assembly in
prosecution of their common object, they all are liable for the
offence of murder of the deceased. It is not a case of sudden
quarrel or sudden fight or a case of free-for-all fight. It is also not
a case where the incident had occurred by chance. It is neither a
case of grave and sudden provocation or a case in the heat of
passion. It is also not a case where only a single blow has been
inflicted.

70.   Therefore, any reasonable person with any stretch of
imagination can come to a conclusion that injuries so mercilessly
caused on the various parts of the body of the deceased would
cause death were sufficient in the ordinary course of nature to
cause death. The blunt side of deadly weapons were intentionally
used to cause such injuries and, therefore, the case of appellants -
                                 55

convicts squarely falls within clause thirdly of Section 300 I.P.C.
It is not a case which is covered under anyone of five exceptions
of Section 300. Therefore, the appellants - convicts have been
rightly convicted in the commission of murder of the deceased
Pushpraj. It is not a case of culpable homicide not amounting to
murder and, therefore, conviction / sentence of the appellants -
convicts is not liable to be converted / reduced under Section 304
I.P.C. Question No.3 is accordingly answered in the negative.

71.   In the light of foregoing discussions and considering the
entire aspects of the matter and looking to the circumstances,
under which the present offence has been committed, we are of
the view that the impugned judgment and order passed by the
trial Court is well thought and well discussed and the trial Court
has rightly held that the prosecution has succeeded to prove the
guilt of the accused appellants beyond reasonable doubt. The
conviction in the case in hand is a right ending and sentence as
imposed is proper. As such, the impugned judgement and order
passed by the trial Court is liable to be upheld and the Appeals
having no force are liable to be dismissed. Question No.3 is,
therefore, answered in the negative.
72.   No good ground to interfere in the well reasoned judgment
of the trial court is made out. Thus there is no merit in the present
criminal appeals. Consequently, the judgment and sentence dated
11.03.2011 passed by Additional Sessions Judge, Court No.1,
Jhansi is hereby ‘Affirmed’.
73.   The appellant Krishan Pal alias Lala is in jail. He shall
serve out remaining part of sentence imposed upon him by the
trial Court.
                                                                         56

                                        74.   The appellants Rishi Pal, Raghunath alias Batauli, Ranjeet,
                                        Bahadur and Udham Singh alias Matauli are on bail. Their
                                        personal and surety bonds are cancelled and they are directed to
                                        surrender before the Court concerned forthwith, who shall take
                                        them into custody and send them in jail for serving out the
                                        remaining sentence imposed upon them by the trial Court. In case
                                        they fail to surrender, as directed above, the Court concerned is
                                        directed to take coercive action against them in this regard.
                                        75.   Let a copy of the judgment be provided immediately to the
                                        appellant Krishan Pal alias Lala through Superintendent Jail, free
                                        of cost.
                                        76.   The record of the ‘Trial Court’ be sent back immediately
                                        with a copy of this judgment for necessary information and
                                        compliance.
                                        77.   The Appeals fail and are hereby Dismissed.

                                        78.   Pending applications including bail applications, if any,
                                        stand disposed of accordingly.

                                        May 6, 2026.
                                        ss
                                                               (Dr. Ajay Kumar-II,J.) (Salil Kumar Rai,J.)




Digitally signed by :-
SANDEEP SHARMA
High Court of Judicature at Allahabad