Brijpal Singh @ Babloo Singh And 2 Others vs State Of U.P.

Reserved on 17.08.2026
Delivered on 07.09.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 241 of 2001
Brijpal Singh @ Babloo Singh and 2 others
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Dhirendra Sahai, Arun Sinha,
Bajrang Bahadur Singh, Dinesh
Pratap Singh, Dhirendra Pratap
Singh, Kapil Gupta, Manoj Kumar
Misra, Nagendra Mohan, Piyush
Kumar Singh, Prince Singh, Rajiv
Raman Srivastava, Ram Chandra
Singh, Sudhir Kumar Rai, Surendra
Singh, Surendra Singh
Counsel for Respondent(s) : Govt.advocate, D.p. Singh, Sapana
Verma
Court No. - 11
HON'BLE ABDUL MOIN, J.
HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
(Dictated by Hon’ble Pramod Kumar Srivastava, J.)
1. Heard Sri Surendra Singh and Sri Rajiv Raman Srivastava, learned
counsel appearing on behalf of the appellants and Sri Pawan Kumar
Mishra, learned Additional Government Advocate (A.G.A.) appearing
for the State-respondent.
2. The instant Criminal Appeal under Section 374(2) of the Code of
Criminal Procedure, 1973 (Cr.P.C.) has been instituted assailing the
impugned judgment and order of conviction and sentence dated
27.03.2001 passed by the learned Additional Sessions Judge, Court No.
4, Unnao in Sessions Trial No. 60 of 1996 (State vs. Sabalbir Singh and

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3 Others), arising out of Case Crime No. 347 of 1995, under Sections
302, 323, 504 and 506 of the Indian Penal Code (IPC), Police Station
Achalganj, District Unnao.
3. By means of the impugned judgment and order dated 27.03.2001,
the learned trial court convicted all three surviving appellants, namely
Brijpal Singh @ Babloo Singh, Rajpal Singh @ Raju Singh and
Samarbir Singh @ Malik Singh, under Section 302 read with Section 34
IPC and sentenced them to undergo imprisonment for life. All three
appellants were further convicted under Section 323 read with Section
34 IPC and sentenced to undergo simple imprisonment for a period of
six months. Both sentences were directed to run concurrently. The
learned trial court acquitted all the accused persons of the charges
framed under Sections 504 and 506 IPC. The proceedings against co-
accused Sabalbir Singh stood abated on account of his demise during the
pendency of the trial.
Brief Facts of the Case
4. The prosecution case, in brief, is that on 01.11.1995 at about 4:00
P.M., the informant Phool Singh (P.W. 1) along with his brothers, namely
Shiv Bakhsh Singh (deceased), Babu Singh @ Dharmendra Singh and
Raj Bahadur Singh (P.W. 2), were present at the weekly village market
(bazaar) held at village Korari Khurd, Police Station Achalganj, District
Unnao. The landed property of the said market was co-owned, wherein a
1/4th share originally belonged to one Mehi Singh. After the demise of
Mehi Singh, his two daughters, Smt. Ganga Dei and Smt. Jamuna Dei,
inherited the said share and subsequently sold it to Smt. Vimla Devi,
wife of deceased Shiv Bakhsh Singh. A longstanding dispute existed
between the complainant party and the accused persons regarding the
collection of tahbazari (market stall dues) from the said land.
5. It is alleged that on the date and time of the incident, co-accused
Sabalbir Singh along with his three brothers, namely Samarbir Singh @
Malik Singh, Rajpal Singh @ Raju Singh and Brijpal Singh @ Babloo
Singh, all armed with lathis, came to the market and began forcibly

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collecting tahbazari from the stalls situated on the land belonging to Smt.
Vimla Devi. When deceased Shiv Bakhsh Singh raised an objection and
resisted the illegal extortion of dues, all four accused persons encircled
him and, with an intention to commit murder, began assaulting him
brutally with lathis.
6. Upon hearing the commotion and cries for help, informant Phool
Singh (P.W. 1), Raj Bahadur Singh (P.W. 2) and Babu Singh @
Dharmendra Singh rushed to intervene and rescue their brother Shiv
Bakhsh Singh. Thereupon, the accused persons also launched an assault
on the intervening brothers with lathis, inflicting multiple blunt-force
injuries. Another brother, Shiv Pujan Singh, raised an alarm and shouted
for help, which attracted bystanders and local villagers. When the crowd
challenged the assailants, the accused persons fled towards the western
side of the market while extending threats and hurling abuses.
7. Immediately after the incident, informant Phool Singh scribed the
written report (tahreer, Exhibit Ka-1) at the market and, arranging a local
tempo (UP 35-8298 driven by Ram Kumar), transported the critically
injured Shiv Bakhsh Singh along with the other injured brothers directly
to Police Station Achalganj, District Unnao, situated approximately 3
kilometers away.
8. Upon the presentation of the written tahreer (Exhibit Ka-1) by
informant Phool Singh, the First Information Report was registered as
Case Crime No. 347 of 1995 at Police Station Achalganj on 01.11.1995
at 16:40 hrs against all four accused persons under Sections 307, 323,
504 and 506 IPC via Chik FIR No. 169 of 1995 (Exhibit Ka-12) and
General Diary Entry No. 26 (Exhibit Ka-11).
9. Immediately following registration of the case, police personnel
(Constable CP 39 Pramod Kumar Dubey and Home Guard HG 2321
Bansh Bahadur Singh) were deputed to escort all four injured persons to
the Primary Health Centre (PHC), Achalganj for medical examination
and treatment along with police medical memos (chitthi majrubi,
Exhibits Kha-1 to Kha-4). Upon arrival at PHC Achalganj at about 5:00

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P.M., Dr. S.K. Gupta (P.W. 3) medically examined Shiv Bakhsh Singh
and pronounced him brought dead (Exhibit Ka-2). Thereupon, CP
Pramod Kumar Dubey returned to the police station at 17:55 hrs and
reported the demise of Shiv Bakhsh Singh, pursuant to which General
Diary Entry No. 29 (Exhibit Ka-13) was recorded, altering the offence to
Section 302 IPC.
10. The Investigating Officer, SSI Balram Verma (P.W. 5), took up the
investigation, visited the hospital and the scene of occurrence and
directed S.I. Hukum Singh (P.W. 8) to conduct the inquest. S.I. Hukum
Singh commenced the inquest (panchayatnama, Exhibit Ka-14) on the
dead body of deceased Shiv Bakhsh Singh at PHC Achalganj on
01.11.1995 at 18:15 hrs, concluding it at 19:30 hrs under petromax/gas
lighting in the presence of nominated panchas. Along with the requisite
police papers (Challan Lash Exhibit Ka-15, Photo Lash Exhibit Ka-16,
Specimen Seal and Requisition Letters to R.I. and C.M.O. Exhibits Ka-
17 & Ka-18), the dead body was dispatched in a sealed cover through
Constable CP 451 Indra Kumar Mishra (P.W. 4) and HG Bansh Bahadur
for post-mortem examination.
11. On 02.11.1995 at about 2:30 P.M., Dr. A.K. Gupta (P.W. 6),
Senior Medical Officer, conducted the autopsy on the cadaver of
deceased Shiv Bakhsh Singh and proved the Post-Mortem Examination
Report (Exhibit Ka-9), noting ten ante-mortem injuries, including severe
cranial and facial bone fractures and brain laceration, opining the cause
of death to be shock and haemorrhage resulting from ante-mortem
injuries caused by a blunt weapon such as a lathi.
12. In the course of the investigation, the Investigating Officer
inspected the place of occurrence at the pointing out of the informant,
prepared the Site Plan (naksha nazari, Exhibit Ka-6), collected samples
of plain and bloodstained soil from the spot under recovery memo
(Exhibit Ka-7) and recorded the statements of witnesses under Section
161 Cr.P.C. Co-accused Sabalbir Singh was arrested on 02.11.1995 (GD
Entry Exhibit Kha-5), appellant Rajpal Singh was arrested on 04.11.1995

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and appellants Samarbir Singh and Brijpal Singh were arrested on
05.11.1995.
13. Upon completion of the statutory investigation, the Investigating
Officer submitted the Charge-Sheet (Exhibit Ka-8) before the competent
court on 15.11.1995 against all four accused persons under Sections 302,
323, 504 and 506 IPC.
14. The learned Chief Judicial Magistrate, Unnao took cognizance of
the offences and, finding the case triable exclusively by the Court of
Session, committed the proceedings to the Court of Session under
Section 209 Cr.P.C. vide committal order dated 19.01.1996 in Case No.
2745 of 1995. The case was registered as Sessions Trial No. 60 of 1996.
15. On 07.02.1996, the learned IV Additional Sessions Judge, Unnao
framed formal charges against all four accused persons under Sections
302/34, 323/34, 504 and 506 IPC. The charges were read over and
explained to the accused persons in Hindi, who pleaded not guilty and
claimed trial. During the pendency of the trial, accused Sabalbir Singh
passed away and the trial abated qua him.
Evidence on Behalf of the Prosecution
16. To substantiate its case and bring home the guilt of the accused
persons, the prosecution produced and examined as many as eight
witnesses, whose ocular, medical and formal testimonies are summarized
in the table below:
TABLE – A : LIST OF WITNESSES EXAMINED
I. Prosecution Witnesses (P.Ws.)
Witness
No.
Name &
Role / Evidence Type
Particulars
P.W. 1 Phool Singh Informant / Injured Eye-Witness
Raj Bahadur
P.W. 2 Injured Eye-Witness
Singh
P.W. 3 Dr. S.K. Gupta Medical Officer, PHC Achalganj

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Witness
No.
Name &
Role / Evidence Type
Particulars
Constable CP
451 Indra
Kumar Mishra
P.W. 4
Police Carrier Witness
SSI Balram
P.W. 5 Investigating Officer
Verma
P.W. 6 Dr. A.K. Gupta Autopsy Surgeon
Head Moharrir
P.W. 7 Police Witness (H.M.)
Aqil Husain
SI Hukum
P.W. 8 Inquest Officer
Singh
Depositions of Prosecution Witnesses
P.W. 1, Phool Singh (Informant / Brother of Deceased):
17. P.W. 1 deposed in his examination-in-chief that his eldest brother
Balveer Singh was convicted in a 1977 murder case wherein deceased
Shiv Bakhsh Singh had testified against him. He stated that in the Korari
Khurd market, his family had a 1/4th share purchased by Shiv Bakhsh
Singh in the name of his wife Vimla Devi. On 01.11.1995 at about 4:00
P.M., when Shiv Bakhsh Singh objected to the accused persons
collecting tahbazari from their land, all four accused, armed with lathis,
assaulted him. When P.W. 1, Raj Bahadur and Babu Singh intervened,
they were also beaten with lathis. He scribed the tahreer (Exhibit Ka-1)
at the market and took the injured on a tempo to the police station.
In his cross-examination, P.W. 1 admitted that the incident
occurred behind the pucca shops on the land belonging to the accused
party's market share. He admitted that although the hospital fell on the
way to the police station, they bypassed the hospital and proceeded
directly to the police station. He stated that the police arrested Sabalbir
Singh on the night of 01.11.1995 at 7:00–8:00 P.M. from his home and
denied seeing any head injuries or bleeding on Sabalbir Singh.
P.W. 2, Raj Bahadur Singh (Injured Eye-Witness):

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18. P.W. 2 corroborated the prosecution version regarding the market
dispute and the assault with lathis by the four accused persons upon Shiv
Bakhsh Singh, P.W. 1, Babu Singh and himself.
In his cross-examination, P.W. 2 admitted that when the
altercation began, deceased Shiv Bakhsh Singh was standing at a
distance and was not part of the initial fight. He stated that independent
shopkeepers, namely Munni Lal and Brij Mohan Singh, were present
and rebuked the assailants, but admitted that neither was produced as a
witness. He denied knowledge of any injuries sustained by accused
Sabalbir Singh.
P.W. 3, Dr. S.K. Gupta (Medical Officer, PHC Achalganj):
19. P.W. 3 proved that on 01.11.1995 at about 5:00 P.M., Shiv Bakhsh
Singh was brought to the PHC and found dead (Exhibit Ka-2). He
proved the injury reports of Phool Singh (Exhibit Ka-3: 3 scalp
lacerations, 3 contusions), Babu Singh (Exhibit Ka-4: 1 occipital
laceration, 2 contusions) and Raj Bahadur Singh (Exhibit Ka-5: 3 scalp
lacerations, 2 contusions, 2 abrasions). He opined that all injuries were
simple, fresh and caused by hard and blunt objects such as lathis. In
cross-examination, he affirmed that the injuries could have been
sustained at about 4:00 P.M. on 01.11.1995.
P.W. 4, Constable CP 451 Indra Kumar Mishra (Police Carrier
Witness)
20. P.W. 4 deposed that he received the sealed dead body of Shiv
Bakhsh Singh from S.I. Hukum Singh at PHC Achalganj and transported
it in a tonga along with HG Bansh Bahadur to the District Mortuary for
post-mortem examination, verifying his signature on the police papers
(Exhibit Ka-4).
P.W. 5, SSI Balram Verma (Investigating Officer):
21. P.W. 5 deposed regarding the receipt of investigation, recording
statements of the informant and witnesses at the hospital, inspecting the
scene of occurrence, preparing the Site Plan (Exhibit Ka-6), recovering

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plain and bloodstained soil under memo (Exhibit Ka-7), arresting the
accused persons and submitting the Charge-Sheet (Exhibit Ka-8).
In cross-examination, he admitted that the exact time of collecting
bloodstained soil was not recorded in the Case Diary, that the daily
investigation notes lacked closing timestamps and that the Case Diary
entries did not bear individual dated signatures of the Circle Officer.
P.W. 6, Dr. A.K. Gupta (Autopsy Surgeon):
22. P.W. 6 proved the Post-Mortem Report (Exhibit Ka-9) conducted
on 02.11.1995 at 2:30 P.M. He noted ten ante-mortem injuries: three
lacerated wounds on the right eyebrow, nose and upper lip and seven
contusions on the chest, right arm, right elbow and left renal region.
Internal examination revealed frontal and nasal bone fractures, brain
membrane laceration and base of skull fracture. Cause of death was
shock and haemorrhage due to ante-mortem injuries.
In his cross-examination, P.W. 6 made a material admission
that only Injury Nos. 1 and 2 were fatal in nature, whereas the remaining
eight contusions by themselves were non-fatal.
P.W. 7, Head Moharrir Aqil Husain (Police Witness):
23. P.W. 7 deposed regarding the preparation of Chik FIR No.
169/1995 (Exhibit Ka-12), General Diary Entry No. 26 (Exhibit Ka-11)
at 16:40 hrs, Case Alteration GD Entry No. 29 at 17:55 hrs (Exhibit Ka-
13) and dispatch of the Special Report via GD Entry No. 34 at 19:15 hrs
(Exhibit Ka-14).
In cross-examination, he admitted that the four medical
examination requisition memos (chitthi majrubi, Exhibits Kha-1 to Kha-
4) prepared at the police station did not bear the crime number, section
of law, or case title.
P.W. 8, SI Hukum Singh (Inquest Officer):
24. P.W. 8 proved the inquest proceedings (panchayatnama, Exhibit
Ka-14) conducted on 01.11.1995 between 18:15 hrs and 19:30 hrs at

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PHC Achalganj under petromax lighting, Challan Lash (Exhibit Ka-15),
Photo Lash (Exhibit Ka-16) and the requisition letters (Exhibits Ka-17 &
Ka-18).
25. The prosecution further proved and exhibited contemporaneous
documentary materials, details whereof are tabulated hereunder:
Table – B : LIST OF PROSECUTION EXHIBITS
Exhibit No. Description of Document
Ex. Ka-1 Written Complaint (Tahreer)
Ex. Ka-2 Police Medical Memo / Death Report
Ex. Ka-3 Injury Report (MLC) of Phool Singh
Ex. Ka-4 Injury Report (MLC) of Babu Singh
Ex. Ka-5 Injury Report (MLC) of Raj Bahadur Singh
Ex. Ka-6 Site Plan (Naksha Nazari) of Scene
Ex. Ka-7 Recovery Memo of Plain & Bloodstained Soil
Ex. Ka-8 Charge-Sheet No. 165/1995
Ex. Ka-9 Post-Mortem Examination Report
Ex. Ka-10 Carbon Copy of FIR produced at Autopsy
Ex. Ka-11 General Diary Entry No. 26 (Kayami)
Ex. Ka-12 Chik FIR No. 169 of 1995
Ex. Ka-13 General Diary Entry No. 29 (Conversion)
Ex. Ka-14 Inquest Report (Panchayatnama) & GD 34
Ex. Ka-15 Challan Lash
Ex. Ka-16 Photo Lash
Ex. Ka-17 Requisition Letter to Reserve Inspector
Ex. Ka-18 Requisition Letter to Chief Medical Officer

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Statement of Accused under Section 313 Cr.P.C. & Defence Plea
26. After the closure of prosecution evidence, the incriminating
circumstances appearing against the accused persons were put to them
under Section 313 Cr.P.C. All three appellants denied the prosecution
allegations in toto, pleaded innocence and asserted that they were falsely
implicated due to village factionalism and market rivalry. The appellants
submitted a joint written statement under Section 313(5) Cr.P.C. (Paper-
Book Pages 54–55) setting up a specific defence that deceased Shiv
Bakhsh Singh, Phool Singh, Raj Bahadur Singh and Babu Singh came
armed with lathis to extort illegal market rent and assaulted co-accused
Sabalbir Singh; that Sabalbir Singh and local shopkeepers wielded lathis
in self-defence, causing injuries to the complainant party; and that the
present appellants were not present on the spot.
II. Defence Witnesses (D.Ws.)
Witness
No.
Name &
Role / Evidence Type
Particulars
Mithilesh
D.W. 1 Pharmacist, District Jail Hospital, Unnao
Kumar Mishra
D.W. 2 Munawwar Defence Eye-Witness
27. The defence proved and placed on record documentary exhibits
and certified judicial records, details whereof are tabulated hereunder:
TABLE – C : LIST OF DEFENCE EXHIBITS
Exhibit No. Description of Document
Ex. Kha-1 Police Examination Memo (Chitthi Majrubi)
Ex. Kha-2 Police Examination Memo (Chitthi Majrubi)
Ex. Kha-3 Police Examination Memo (Chitthi Majrubi)
Ex. Kha-4 Police Examination Memo (Chitthi Majrubi)

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Exhibit No. Description of Document
Ex. Kha-5 General Diary Entry (Arrival of Arrested Accused)
Ex. Kha-5A District Jail Hospital Injury Report of Sabalbir Singh
Ex. Kha-6 Letter/Report of Dr. N.L. Mahajan (Jail Hospital)
Ex. Kha-7 Certified Copy of Conviction Order of Babu Singh
Ex. Kha-8 Certified Copy of Charge-Sheet in Case No. 5492/1993
Ex. Kha-9 Certified Copy of Chik FIR No. 72/1991
Ex. Kha-10 Certified Copy of Judgment in Cr. Case No. 680/1995
Certified Copy of Written Report / FIR in Cr. No.
Ex. Kha-11
87/1994
Findings of the Trial Court
28. After having heard learned counsel for both the parties and
perusing the record, learned Trial Court found that prosecution has
established the charge levelled against accused persons beyond
reasonable doubt and consequently, accused-appellants were held guilty
for the offence.
29. Being aggrieved and dissatisfied from the impugned judgment and
order, they have preferred this instant criminal appeal.
[SUBMISSIONS ON BEHALF OF THE APPELLANTS]
30. Learned counsel appearing for the appellants submits that the
learned trial court, without analyzing the facts, evidence and
circumstances in their totality, has passed the impugned judgment and
order in a cursory and mechanical manner, which is not in consonance
with law.
31. He next submits that the ocular testimonies of the prosecution
witnesses are not supported by the medical evidence on record.

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CRLA No. - 241 of 2001
32. He further submits that the learned trial court failed to properly
consider and determine as to who was the aggressor in the incident.
During the alleged occurrence, all three appellants were not present on
the spot. As per the defence version, another co-accused, Sabalbir Singh
alias Sabal Singh (who died during the trial proceedings and against
whom the case stood abated), was assaulted by the deceased, Shiv
Bakhsh Singh and his two brothers, PW-1 Phool Singh and PW-2 Raj
Bahadur Singh. However, the learned trial court failed to appreciate the
defence evidence and the genesis of the incident in its correct
perspective.
33. He further submits that, in fact, the deceased along with his
brothers (PW-1 and PW-2) was forcibly collecting tahbazari (market
dues) and when co-accused Sabalbir Singh objected to such collection,
the deceased along with PW-1 and PW-2 assaulted Sabalbir Singh, who
sustained injuries on his person.
34. He further contends that in exercise of the right of private defence,
co-accused Sabalbir Singh wielded a lathi to defend himself and in his
support and to rescue him, certain local shopkeepers also inflicted blows
upon the deceased and his brothers. However, the prosecution has
miserably failed to explain the injuries sustained by accused Sabalbir
Singh.
35. Learned counsel for the appellants also emphasized that
immediately after the alleged incident, the complainant party did not
take the deceased to the hospital for medical treatment, although the
hospital fell on the way; rather, they first went to the police station and
thereafter proceeded to the hospital. This unnatural conduct on the part
of the complainant indicates that the First Information Report was
lodged as an afterthought after due deliberation and consultation and the
appellants have been falsely implicated even though they were not
present at the spot at the time of the alleged occurrence.
36. On the aforesaid grounds, learned counsel for the appellants
contends that the findings and observations recorded by the learned trial

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CRLA No. - 241 of 2001
court are perverse, based on surmises and conjectures and cannot be
sustained in the eyes of law. Therefore, the impugned judgment and
order of conviction passed by the trial court is liable to be set aside, the
appeal deserves to be allowed and the appellants are entitled to be
acquitted of all charges.
[SUBMISSIONS ON BEHALF OF THE STATE]
37. Per contra, learned A.G.A. appearing on behalf of the State-
respondent submits that the occurrence took place in broad daylight at
about 4:00 P.M. in the village market. The accused persons were forcibly
collecting tahbazari from the land belonging to the wife of deceased Shiv
Bakhsh Singh and when the deceased and his brothers raised an
objection and resisted the illegal collection, all the accused persons,
armed with lathis, assaulted the deceased as well as PW-1, PW-2 and
Babu Singh.
38. He further submits that the accused persons inflicted brutal lathi
blows upon the deceased as well as the injured persons with the intention
to cause death. Resultantly, the deceased sustained as many as ten ante-
mortem injuries on vital parts of his body, resulting in fatal cranial and
facial fractures and the other injured persons also sustained multiple
injuries.
39. He further contends that the prosecution has adduced cogent,
reliable and consistent ocular evidence through injured eyewitnesses,
whose presence on the spot is unquestionable and whose testimonies
stand fully corroborated by the medical evidence.
40. He next submits that all the accused persons were well known to
the deceased and the injured witnesses from before, being residents of
the same village and there was no doubt whatsoever regarding their
identity. Consequently, all the accused persons were promptly named in
the First Information Report.
41. He further submits that the appellants were not merely present on
the spot, but they actively participated in the commission of the murder

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CRLA No. - 241 of 2001
of the deceased and voluntarily caused hurt to the injured witnesses. The
injuries found on the person of co-accused Sabalbir Singh were simple
and superficial in nature, which did not require any elaborate explanation
by the prosecution.
42. He next submits that the defence version setup by the appellants is
completely false, fabricated and an afterthought and there was no dispute
between the deceased and any independent shopkeepers. The appellants
along with co-accused Sabalbir Singh were the aggressors who came
armed with lathis and brutally assaulted the deceased and the injured.
43. He submits that the learned trial court has meticulously scrutinized
the entire facts, evidence and circumstances on record and has rightly
held the appellants guilty of the offences charged. There is no illegality,
infirmity, or perversity in the impugned judgment warranting
interference by this Court. The appeal is devoid of merit and is liable to
be dismissed.
[POINTS FOR DETERMINATION]
44. Upon hearing learned counsel for the parties and perusing the
record, the following points arise for determination in this appeal:
1. Whether the prosecution has succeeded in proving its case beyond
reasonable doubt against the appellants for the charges framed
under Sections 302/34 and 323/34 of the Indian Penal Code?
2. Whether the findings of conviction and the sentence recorded by
the learned trial court suffer from any perversity or illegality so as
to warrant interference by this Court?
45. Since both the aforesaid points for determination are interlinked,
they are being considered and dealt with together but before scrutinizing
the testimony of injured witness, we are proceeding to discuss the
medical evidence.

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[MEDICAL EVIDENCE ON RECORD]
46. Dr. S.K. Gupta (PW-3), Medical Officer, Primary Health Centre,
Achalganj, District Unnao, medically examined the injured persons on
01.11.1995. PW-3 examined Shiv Bakhsh Singh at about 5:00 P.M. on
01.11.1995 (brought by Constable CP 39 Pramod Kumar Dubey and
Home Guard HG 2321 Bansh Bahadur Singh) and found him dead upon
arrival, in respect of which he prepared the medical memo (Ex. Ka-2).
On the same day at about 5:10 P.M., PW-3 medically examined injured
Phool Singh (PW-1) and found the following injuries on his person (Ex.
Ka-3):
1. Lacerated wound 3.5 cm x 1/4 cm on the posterior aspect of the
left parietal region of the scalp, 10 cm away from the left ear;
muscle-deep with fresh bleeding.
2. Lacerated wound 6 cm x 1 cm on the right parietal region of the
scalp, 10 cm away from the right ear; muscle-deep with fresh
clotted blood.
3. Lacerated wound 6 cm x 1/4 cm on the right parietal region of the
scalp, 1/2 cm medial to injury no. (2); muscle-deep with fresh
clotted blood.
4. Contusion4.5 cm x 1.5 cm on the lateral 1/3rd of the right clavicle,
reddish in colour.
5. Contusion3.5 cm x 1 cm on the superior aspect of the left scapula,
reddish in colour.
6. Contusion10 cm x 2 cm on the anterior aspect of the left thigh, 12
cm superior to the superior border of the patella, reddish in colour.
47. PW-3 opined that all the aforesaid injuries were simple in nature,
caused by the impact of a hard and blunt object and their duration was
fresh.
48. On the same day at about 5:20 P.M., PW-3 examined injured Babu
Singh and found the following injuries on his person (Ex. Ka-4):

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CRLA No. - 241 of 2001
1. Lacerated wound 1.5 cm x 1/4 cm on the left side of the occipital
region of the scalp, 10 cm superior to the tip of the mastoid
process; muscle-deep with fresh clotted blood.
2. Contusion4.5 cm x 1 cm on the superior aspect of the left
shoulder, reddish in colour.
3. Contusion7 cm x 2 cm on the superior end of the posterior aspect
of the right forearm, reddish in colour.
PW-3 opined that all the injuries were simple in nature, caused by
a hard and blunt object and fresh in duration.
49. On the same day at about 5:45 P.M., PW-3 examined injured Raj
Bahadur Singh (PW-2) and found the following injuries on his person
(Ex. Ka-5):
1. Lacerated wound 3.5 cm x 1/4 cm on the right parietal aspect of
the scalp, 7 cm away from the right eyebrow; muscle-deep with
fresh clot.
2. Lacerated wound 3 cm x 1/4 cm on the left parietal region of the
scalp, 15 cm away from the left ear tragus; muscle-deep with fresh
clot.
3. Lacerated wound 1.5 cm x 1/4 cm on the left parietal region of the
scalp, 2 cm anterior to injury no. (2); muscle-deep with fresh clot.
4. Contusion8 cm x 2.5 cm on the left scapular region, reddish in
colour.
5. Contusion5 cm x 2 cm on the lateral aspect of the left arm, 12 cm
superior to the lateral condyle of the humerus, reddish in colour.
6. Abrasion1 cm x 1 cm on the dorsal aspect of the middle
metatarso-phalangeal joint, reddish in colour.
7. Abrasion3 cm x 1/2 cm on the dorsal aspect of the right hand, 3
cm superior to the base of the ring finger, reddish in colour.

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CRLA No. - 241 of 2001
50. PW-3 opined that all the injuries were simple in nature, caused by
a hard and blunt object and fresh in duration.
51. In his cross-examination, PW-3 categorically stated that the
injuries sustained by all the three injured persons could have occurred on
01.11.1995 at about 4:00 P.M. by hard and blunt objects such as lathis.
[POST-MORTEM EXAMINATION]
52. The body of deceased Shiv Bakhsh Singh was sent for autopsy.
Dr. A.K. Gupta (PW-6), Senior Medical Officer, conducted the post-
mortem examination on the body of the deceased on 02.11.1995 at about
2:30 P.M. (Ex. Ka-9).
On external examination
53. On external examination, PW-6 observed that the deceased was of
average build; rigor mortis was present in both the upper and lower
extremities; eyes and mouth were closed; blood was oozing from both
nostrils; and post-mortem staining was present on the back, buttocks and
thighs. PW-6 found the following ante-mortem injuries on the body of
the deceased:
1. Lacerated wound 4 cm x 1.5 cm, bone-deep, on the right eyebrow,
placed horizontally; underlying bone fractured.
2. Lacerated wound 6 cm x 2.5 cm, bone-deep, vertically placed on
the nose, extending from the bridge of the nose to the lower 2/3rd
of the nose; underlying bone fractured.
3. Lacerated wound 2.5 cm x 1 cm on the central part of the upper
lip; through and through. The right incisor tooth was separated and
embedded in the wound .
4. Contusion7 cm x 2 cm, placed horizontally on the right side of the
chest, 2 cm above the right nipple.
5. Contusion8 cm x 2.5 cm, vertically placed, 2 cm below injury no.
(4).

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CRLA No. - 241 of 2001
6. Contusion2.5 cm x 1 cm on the central part of the front of the
chest.
7. Contusion1 cm x 0.5 cm on the front of the chest, 1.5 cm below
injury no. (6).
8. Contusion6 cm x 2.5 cm on the right upper arm, 3 cm below the
right shoulder.
9. Contusion3 cm x 2 cm on the right elbow.
10.Contusion4 cm x 2 cm on the left renal region.
Internal Examination:
54. On internal examination of the head and neck, a fracture of the
frontal bone was found on the right side under injury no. (1); nasal bone
was fractured under injury no. (2); brain membranes were lacerated;
clotted blood was present in the cranial cavity; and the base of the skull
was fractured under injury no. (2).
55. PW-6 opined that the death of the deceased was caused due to
shock and haemorrhage as a result of the ante-mortem injuries. He
further opined that the injuries found on the dead body were sufficient in
the ordinary course of nature to cause death; death was likely to have
occurred on 01.11.1995 at about 5:00 P.M.; and all injuries were inflicted
by a hard and blunt object, which could be a lathi.
56. In his cross-examination, PW-6 stated that injury nos. (1) and (2)
were fatal in nature, whereas the other injuries by themselves were not
fatal to life.
[EVALUATION OF NATURE OF DEATH & COMMON
DEFENCE PLEA]
57. From the aforesaid medical evidence, it is established beyond
doubt that the deceased as well as the injured witnesses sustained several
injuries on various parts of their bodies and the deceased, Shiv Bakhsh
Singh, succumbed to the fatal ante-mortem head injuries.

19
CRLA No. - 241 of 2001
58. It is not the case of either of the parties that the death of the
deceased was not homicidal. In fact, the specific defence set up by the
appellants in their joint written statement filed under Section 313(5)
Cr.P.C. is that co-accused Sabalbir Singh defended himself by wielding a
lathi and in his support and defence, local shopkeepers also used lathis
and inflicted blows upon the deceased and the injured persons, resulting
in injuries to Phool Singh, Raj Bahadur Singh, Shiv Bakhsh Singh and
Babu Singh. Thus, the fact that the death of the deceased was homicidal
in nature stands established beyond cavil.
59. Now, the question that falls for consideration is whether the
present appellants participated in the incident and are responsible for
causing the injuries to the deceased and the injured persons, or whether
only co-accused Sabalbir Singh (who died during the trial) was involved
in the occurrence?
[NON-EXAMINATION OF INJURED WITNESS BABU SINGH]
60. Looking into the ocular testimony on record, it is to be noted that
apart from the deceased, three other persons (namely PW-1 Phool Singh,
PW-2 Raj Bahadur Singh and Babu Singh), who are all brothers of the
deceased, sustained injuries in the incident. Out of the three injured
witnesses, only two injured eyewitnesses, namely PW-1 Phool Singh and
PW-2 Raj Bahadur Singh, were examined by the prosecution, while the
third injured person, Babu Singh, was not produced in the witness box,
although his injury report (Ex. Ka-4) is on record.
61. Now the question arises that as to what is the effect of the non-
examination of one of the injured witnesses, namely Babu Singh?
62. In this regard, it is expedient to observe that in a sessions trial, the
Public Prosecutor is not bound to examine each and every witness
mentioned in the First Information Report or the charge sheet. The
prosecution is at liberty to choose only some of the several witnesses on
the same point. Where there are multiple eyewitnesses or injured
witnesses, the Public Prosecutor may examine only two or some of them
and is not obliged to examine all the injured witnesses.

20
CRLA No. - 241 of 2001
63. This legal position has been reiterated by the Hon'ble Supreme
Court in Hukum Singh vs. State of Rajasthan , (2000) 7 SCC 490 :
2000 (41) ACC 662 (SC) and Kripal Singh vs. State of Haryana , AIR
2013 SC 3726 : (2013) 3 SCC 651 .
64. Dealing with the issue of non-examination of a witness, the
Hon'ble Apex Court in the case of Rajesh Yadav and another vs. State
of Uttar Pradesh , (2022) 12 SCC 200 , has held that a mere non-
examination of a witness per se will not vitiate the case of the
prosecution. It depends upon the quality and not the quantity of the
witnesses and their material importance. If the Court is satisfied with the
explanation given by the prosecution, along with the adequacy of the
materials sufficient enough to proceed with the trial and convict the
accused, no prejudice can be said to have been caused. Similarly, if the
Court is of the view that the evidence has not been improperly screened
and the witness could well have been produced by the defence in support
of its case, no adverse inference can be drawn. The onus lies upon the
party who alleges that a witness has been deliberately withheld.
65. Keeping in view the settled principles of law laid down by the
Hon'ble Apex Court in the aforesaid decisions, a perusal of the record
reveals that all three injured persons, namely Phool Singh, Raj Bahadur
Singh and Babu Singh, were medically examined on the date of the
incident and were found to have sustained injuries. However, one of the
injured, Babu Singh, was not examined by the prosecution.
66. The appellants/convicts have themselves admitted in their joint
written statement submitted under Section 313 Cr.P.C. that along with
Phool Singh, Raj Bahadur Singh and deceased Shiv Bakhsh Singh, Babu
Singh had also sustained injuries when co-accused Sabalbir Singh in
exercise of his right of private defence and shopkeepers in his support
wielded lathis, the presence of and the injuries sustained by Babu Singh
are not disputed by the appellants. Therefore, it cannot be said by any
stretch of imagination that any prejudice has been caused to the

21
CRLA No. - 241 of 2001
appellants on account of the non-examination of Babu Singh, nor does
such non-examination adversely affect the prosecution case.
EFFECT OF NON-EXPLANATION OF INJURIES ON THE
PERSON OF THE ACCUSED
67. Now, we proceed to analyze the statements of the accused
recorded under Section 313 Cr.P.C., the plea of right of private defence
set up by them regarding injuries sustained on the person of co-accused
Sabalbir Singh and the cross-examination of the prosecution witnesses in
this regard.
68. Before considering the above, it would be apposite to refer to the
settled legal position governing the evaluation of non-explanation of
injuries sustained on the person of the accused.
69. The Division Bench of this Court in the case of Gyan Prakash vs.
State of U.P. and Others, 2022 SCC OnLine All 1153, after
considering a catena of decisions of the Hon’ble Supreme Court
including Laxmi Singh vs. State of Bihar, (1976) 4 SCC 394, Bhaba
Nanda Sarma vs. State of Assam, (1977) 4 SCC 396, Vijayee Singh
vs. State of U.P., (1990) 3 SCC 190 and Takhaji Hiraji vs. Thakore
Kubersing Chamansing, (2001) 6 SCC 145 , observed as under:
“30. The Hon'ble Apex Court in the case of Sucha Singh v.
State of Punjab, (2003) 7 SCC 643 in paragraphs 24, 25 and
26 has observed as under:
“24. One of the pleas is that the prosecution has not explained
the injuries on the accused. Issue is if there is no such
explanation what would be its effect? We are not prepared to
agree with the learned counsel for the defence that in each and
every case where prosecution fails to explain the injuries found
on some of the accused, the prosecution case should
automatically be rejected, without any further probe. In Mohar
Rai and Bharath Rai v. The State of Bihar ((1968) 3 SCR
525) , it was observed:
“…In our judgment, the failure of the prosecution to offer any
explanation in that regard shows that evidence of the
prosecution witnesses relating to the incident is not true or at
any rate not wholly true. Further those injuries probabilise the
plea taken by the appellants.”

22
CRLA No. - 241 of 2001
In another important case Lakshmi Singh v. State of Bihar
((1976) 4 SCC 394), after referring to the ratio laid down in
Mohar Rai's case (supra), this Court observed:
“Where the prosecution fails to explain the injuries on the
accused, two results follow:
(1) that the evidence of the prosecution witnesses is untrue;
and (2) that the injuries probabilise the plea taken by the
appellants.”
It was further observed that:
“In a murder case, the non-explanation of the injuries
sustained by the accused at about the time of the occurrence or
in the course of altercation is a very important circumstance
from which the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the
origin of the occurrence and has thus not presented the true
version;
(2) that the witnesses who have denied the presence of the
injuries on the person of the accused are lying on a most
material point and, therefore, their evidence is unreliable;
(3) that in case there is a defence version which explains the
injuries on the person of the accused assumes much greater
importance where the evidence consists of interested or
inimical witnesses or where the defence gives a version which
competes in probability with that of the prosecution one.”
25. In Mohar Rai's case (supra) it is made clear that failure of
the prosecution to offer any explanation regarding the injuries
found on the accused may show that the evidence related to the
incident is not true or at any rate not wholly true. Likewise in
Lakshmi Singh's case (supra) it is observed that any non-
explanation of the injuries on the accused by the prosecution
may affect the prosecution case. But such a non-explanation
may assume greater importance where the defence gives a
version which competes in probability with that of the
prosecution. But where the evidence is clear, cogent and
creditworthy and where the Court can distinguish the truth
from falsehood the mere fact that the injuries are not explained
by the prosecution cannot by itself be a sole basis to reject
such evidence and consequently the whole case. Much depends
on the facts and circumstances of each case. These aspects
were highlighted by this Court in Vijayee Singh v. State of
U.P. ((1990) 3 SCC 190 : AIR 1990 SC 1459).
26. Non-explanation of injuries by the prosecution will not
affect prosecution case where injuries sustained by the accused
are minor and superficial or where the evidence is so clear and
cogent, so independent and disinterested, so probable,

23
CRLA No. - 241 of 2001
consistent and creditworthy, that it outweighs the effect of the
omission on the part of prosecution to explain the injuries. As
observed by this Court in Ramlagan Singh v. State of Bihar
((1973) 3 SCC 881 : AIR 1972 SC 2593) prosecution is not
called upon in all cases to explain the injuries received by the
accused persons. It is for the defence to put questions to the
prosecution witnesses regarding the injuries of the accused
persons. When that is not done, there is no occasion for the
prosecution witnesses to explain any injury on the person of an
accused. In Hare Krishna Singh v. State of Bihar ((1988) 2
SCC 95 : AIR 1988 SC 863), it was observed that the
obligation of the prosecution to explain the injuries sustained
by the accused in the same occurrence may not arise in each
and every case. In other words, it is not an invariable rule that
the prosecution has to explain the injuries sustained by the
accused in the same occurrence. If the witnesses examined on
behalf of the prosecution are believed by the Court in proof of
guilt of the accused beyond reasonable doubt, question of
obligation of prosecution to explain injuries sustained by the
accused will not arise. When the prosecution comes with a
definite case that the offence has been committed by the
accused and proves its case beyond any reasonable doubt, it
becomes hardly necessary for the prosecution to again explain
how and under what circumstances injuries have been inflicted
on the person of the accused. It is more so when the injuries
are simple or superficial in nature. In the case at hand, trifle
and superficial injuries on accused are of little assistance to
them to throw doubt on veracity of prosecution case.
32. The Hon'ble Apex Court in the case of Bishna Alias
Bhiswadeb Mahato, (2005) 12 SCC 657 in paragraph 50 has
observed as under:
“50.The fact as regard failure to explain injuries on accused
vary from case to case. Whereas non-explanation of injuries
suffered by the accused probabilises the defence version that
the prosecution side attacked first, in a given situation it may
also be possible to hold that the explanation given by the
accused about his injury is not satisfactory and the statements
of the prosecution witnesses fully explain the same and, thus, it
is possible to hold that the accused had committed a crime for
which he was charged. Where injuries were sustained by both
sides and when both the parties suppressed the genesis in the
incident, or where coming out with the partial truth, the
prosecution may fail. But, no law in general terms can be laid
down to the effect that each and every case where prosecution
fails to explain injuries on the person of the accused, the same
should be rejected without any further probe.”

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CRLA No. - 241 of 2001
33. The Hon'ble Apex Court in the case of Ram Pyare Mishra
v. Prem Shanker, (2008) 14 SCC 614 in paragraph 18 has
observed as under:
“18. So far as non-explanation of superficial injuries on the
accused persons is concerned, in Anil Kumar v. State of U.P.
((2004) 13 SCC 257), it was held as follows:
“11.Non-explanation of injuries by the prosecution will not
affect prosecution case where injuries sustained by the accused
are minor and superficial or where the evidence is so clear and
cogent, so independent and disinterested, so probable,
consistent and creditworthy, that it outweighs the effect of the
omission on the part of prosecution to explain the injuries. As
observed by this Court in Ramlagan Singh v. State of Bihar
((1973) 3 SCC 881 : AIR 1972 SC 2593) prosecution is not
called upon in all cases to explain the injuries received by the
accused persons. It is for the defence to put questions to the
prosecution witnesses regarding the injuries of the accused
persons. When that is not done, there is no occasion for the
prosecution witnesses to explain any injury on the person of an
accused. In Hare Krishna Singh v. State of Bihar ((1988) 2
SCC 95 : AIR 1988 SC 863), it was observed that the
obligation of the prosecution to explain the injuries sustained
by the accused in the same occurrence may not arise in each
and every case. In other words, it is not an invariable rule that
the prosecution has to explain the injuries sustained by the
accused in the same occurrence. If the witnesses examined on
behalf of the prosecution are believed by the Court in proof of
guilt of the accused beyond reasonable doubt, question of
obligation of prosecution to explain injuries sustained by the
accused will not arise. When the prosecution comes with a
definite case that the offence has been committed by the
accused and proves its case beyond any reasonable doubt, it
becomes hardly necessary for the prosecution to again explain
how and under what circumstances injuries have been inflicted
on the person of the accused. It is more so when the injuries
are simple or superficial in nature. In the case at hand, trifle
and superficial injuries on accused are of little assistance to
them to throw doubt on veracity of prosecution case. (See
Surendra Paswan v. State of Jharkhand, (2003) 12 SCC 360).”
34. The Hon'ble Apex Court in the case of Ram Pat v. State of
Haryana, (2009) 7 SCC 614 in paragraphs 38 to 40 has
observed as under:
“38. On the date of occurrence, PW 8 started cultivating. It
has been amply proved that the scuffle lasted for only two
minutes to two and half minutes. PW8 - Rajbir was not armed
with any weapon, so was not Harda Ram (the deceased). It

25
CRLA No. - 241 of 2001
was Lal Singh alone who had in his hand a small twig
(Kamari). According to him, the same is used to drive camels.
Kamari was said to be used by Lal Singh in his sole defence as
a result whereof Sheo Ram and Raja Ram were injured. We
have noticed hereinbefore that the injuries on the person of the
said two accused were simple in nature.”
70. It is not in dispute that the factum of any injury sustained by the
accused party was not disclosed in the First Information Report. In view
of the proposition of law settled above, on a perusal of the record, it is
evident that in the individual statements recorded under Section 313
Cr.P.C., not a single word was uttered by any of the appellants with
regard to sustaining of injuries on their person or on the person of co-
accused Sabalbir Singh. However, in the joint written statement filed on
behalf of the appellants under Section 313(5) Cr.P.C., it has been stated
that deceased Shiv Bakhsh Singh along with his brothers Phool Singh
(P.W. 1), Raj Bahadur Singh (P.W. 2) and Babu Singh came on the spot
armed with lathis and launched an assault on co-accused Sabalbir Singh
(since deceased) and caused injuries on his head. It was further pleaded
that in exercise of his right of private defence, co-accused Sabalbir Singh
and in his support and rescue, certain local shopkeepers used lathis,
resultantly causing injuries to Phool Singh, Raj Bahadur Singh, Shiv
Bakhsh Singh and Babu Singh.
71. In the cross-examination of Phool Singh (P.W. 1) and Raj Bahadur
Singh (P.W. 2), suggestions were put by the defence that the deceased
along with his three brothers started assaulting Sabalbir Singh, who
suffered injuries on his head and thereupon, in his private defence and in
his support, shopkeepers inflicted blows upon the deceased and the other
injured persons.
72. Now, we have to examine the nature and extent of the injuries
allegedly sustained by co-accused Sabalbir Singh in the incident.
73. To substantiate the plea of injuries sustained by co-accused
Sabalbir Singh, the defence examined Mithilesh Kumar Mishra (D.W.
1), Pharmacist/Compounder, District Jail Hospital, Unnao. D.W. 1
deposed that he was posted as a Pharmacist at the District Jail Hospital

26
CRLA No. - 241 of 2001
since 05.08.1995 and proved the entries from the Jail Medical Register
(Ex. Kha-5 / Kha-5A) and the report of Dr. N.L. Mahajan (Ex. Kha-6),
who examined undertrial prisoner Sabalbir Singh on 03.11.1995 at 8:00
A.M. upon his admission to the jail and found the following injuries on
his person:
1. Lacerated wound: 1.5 cm × 0.5 cm, skin-deep, on
the left side of the head, 6 cm above the left ear.
2. Contused swelling: 4 cm × 3.5 cm on the dorsum
of the right hand.
74. The doctor opined that all the above injuries were simple in
nature, caused by the blow of a hard and blunt object and their duration
was about two days old.
75. Thus, the oral evidence of D.W. 1 and the documentary record
(Ex. Kha-5A) establish that at the time of his admission into the jail, the
injuries found on the person of accused Sabalbir Singh were purely
simple and superficial. Injury No. 1, though a lacerated wound, was
merely skin-deep. By no stretch of imagination can it be categorized as a
serious or grievous injury.
76. Under Section 105 of the Indian Evidence Act, 1872, the burden
of proving the existence of circumstances bringing the case within the
exception of the right of private defence lies heavily upon the accused. It
is true that the prosecution has not explained the two simple injuries
sustained by co-accused Sabalbir Singh (since deceased). However, the
injuries found on his person were superficial, whereas the prosecution
party suffered as many as 26 injuries in total and deceased Shiv Bakhsh
Singh succumbed to multiple fatal cranial fractures and brain laceration.
77. Applying the law laid down by the Hon’ble Apex Court in the
cases cited above, where the injuries sustained by the accused are minor
and superficial and the ocular evidence of the prosecution witnesses is
cogent, credible and consistent, the prosecution case cannot be thrown
out merely on the ground of non-explanation of such minor injuries.
Therefore, the plea of right of private defence set up by the defence has
no legal foundation.

27
CRLA No. - 241 of 2001
OCULAR EVIDENCE OF INJURED WITNESSES
78. On a perusal of the record, it is found that to substantiate its case,
the prosecution has adduced the ocular testimony of two injured
eyewitnesses, namely Phool Singh (P.W. 1) and Raj Bahadur Singh (P.W.
2).
79. Before analyzing their testimony, it would be apposite to refer to
the settled legal principles governing the evaluation of the testimony of
injured witnesses.
80. In Maqsoodan vs. State of U.P., (1983) 1 SCC 218 (Three-
Judge Bench), the Hon’ble Supreme Court held that the presence of
injured witnesses at the time and place of occurrence cannot be doubted
as they have received injuries during the course of the incident and they
should normally not be disbelieved.
81. In Veer Singh vs. State of U.P., (2014) 2 SCC 455 , the Apex
Court held that the 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, for the reason that his
presence on the scene stands established and it is proved that he suffered
injuries during the said incident.
82. Recently, the Hon'ble Supreme Court in Zainul vs. State of Bihar,
2025 SCC OnLine SC 2152 (relying upon Balu Sudam Khalde vs.
State of Maharashtra, (2023) 13 SCC 365), reiterated the principles of
law relating to the appreciation of evidence of injured witnesses as
under:
“62. This Court in State of Madhya Pradesh v. Balveer Singh,
2025 SCC OnLine SC 390 , wherein one of us, J.B. Pardiwala,
J., was a part of the Bench, had underscored two principal
considerations for assessing the value of the evidence of
eyewitnesses. It read thus:—
“57. To put it simply, 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

28
CRLA No. - 241 of 2001
by them and secondly, whether there is anything inherently
improbable or unreliable in their evidence. In respect of both
these considerations, the circumstances either elicited from
those witnesses themselves or established by other evidence
tending to improbabilise their presence or to discredit the
veracity of their 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 bald assertion of
tutoring, yet the evidence of the prosecution witnesses has to
be examined on its own merits, where the accused raises a
definite plea or puts 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.”
(Emphasis supplied)
63. At this stage, we would also like to discuss the established
principles of law on the evaluation of the testimony of injured
eyewitnesses. The testimony of an injured eyewitness is
accorded a special status in law because the injuries on the
person lends credence to the fact that the witness was present
at the scene of the occurrence. The courts lend credence to the
testimony of an injured eyewitness, assuming that the witness
would not want to let his actual assailant go unpunished. Thus,
unless there are cogent grounds for disbelieving the evidence
of an eyewitness due to major contradictions and
discrepancies, ordinarily, such evidence should be relied upon.
64. In Balu Sudam Khalde v. State of Maharashtra, (2023) 13
SCC 365, one of us, J.B. Pardiwala, J., had the benefit of
expounding the law on this subject as follows:—
“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.

29
CRLA No. - 241 of 2001
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.”
83. Keeping in view the above principles of law and the rule of
caution, we shall now look into and discuss the evidence on record.
84. As per the prosecution case, on 01.11.1995 at about 4:00 P.M.,
deceased Shiv Bakhsh Singh objected to all four accused persons
collecting tahbazari from the land purchased by his wife Vimla Devi
from Ganga Dei and Jamuna Dei. Phool Singh (P.W. 1) stated that upon
Shiv Bakhsh Singh raising an objection, all the accused persons, armed
with lathis, launched a brutal assault upon him. When P.W. 1 and his
brothers rushed to rescue the deceased, the accused persons assaulted all
of them with lathis. In his cross-examination, P.W. 1 stated that on
20.11.1992 also, the accused persons had assaulted deceased Shiv
Bakhsh Singh, in respect of which a criminal case is pending in court.
He stated that the accused persons used to forcibly collect tahbazari. He
denied the defence suggestion that the complainant party attempted to
extort tahbazari from shopkeepers. He affirmed that neither he nor his
brothers were carrying any lathi-danda. He categorically denied the
suggestion that co-accused Sabalbir Singh sustained bleeding head
injuries during the occurrence.
85. The other eyewitness of fact, Raj Bahadur Singh (P.W. 2), deposed
that on 01.11.1995 at about 4:00 P.M., he was present at the market
along with his brothers Phool Singh, Babu Singh @ Dharmendra Singh
and Shiv Bakhsh Singh. Shiv Bakhsh Singh objected to Sabalbir Singh,
Samarbir Singh, Rajpal Singh and Brijpal Singh collecting tahbazari.
The accused persons, armed with lathis, surrounded Shiv Bakhsh Singh
and assaulted him. When the brothers rushed to rescue him, the accused
continued assaulting the deceased as well as the intervening brothers

30
CRLA No. - 241 of 2001
with lathis. Upon alarms being raised, villagers arrived and on being
challenged, the accused fled away. The injured were carried on a tempo
to the police station and thereafter to the hospital, where Shiv Bakhsh
Singh was pronounced dead. In his cross-examination, P.W. 2 stated that
he had no knowledge as to whether Sabalbir Singh sustained any injury.
He denied the defence suggestion that they had attacked Sabalbir Singh
first or that shopkeepers assaulted the complainant party.
86. From the testimony of both injured witnesses (P.W. 1 and P.W. 2),
their presence on the spot is unquestionable. Their statements regarding
the date, time, place and manner of the assault are fully consistent,
uniform and natural. Both witnesses have categorically testified that all
the accused persons, armed with lathis, jointly assaulted the deceased
and the injured witnesses. Their ocular account stands fully corroborated
by the medical evidence of Dr. S.K. Gupta (P.W. 3) and Autopsy Surgeon
Dr. A.K. Gupta (P.W. 6).
87. The defence suggestion that only Sabalbir Singh was present and
retaliated in self-defence and that shopkeepers assaulted the complainant
party, is wholly unconvincing. If four persons armed with lathis had
attacked a single individual (Sabalbir Singh), he would have sustained
multiple serious injuries, whereas Sabalbir Singh had only two minor,
superficial injuries. Conversely, the complainant party sustained 26
injuries and Shiv Bakhsh Singh suffered fatal skull fractures.
Furthermore, no shopkeeper sustained injuries.
88. The defence examined Munawwar (D.W. 2), a bangle seller, who
claimed that the complainant party came armed with lathis to collect rent
and attacked Sabalbir Singh, whereupon shopkeepers intervened and that
the present appellants were not present. In his cross-examination, D.W. 2
admitted that he never disclosed this version to anyone, nor did he ever
inform the Investigating Officer or any authority prior to entering the
witness box.
89. At this juncture, the deposition of SSI Balram Verma (P.W. 5), the
Investigating Officer, is pertinent. P.W. 5 deposed that he took up the

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investigation, inspected the scene of occurrence, collected bloodstained
and plain soil and arrested the accused persons. In his cross-examination,
not a single question or suggestion was put to the Investigating Officer
by the defence to the effect that the present appellants were not present
on the spot or that D.W. 2 was present at the time of the incident and
witnessed the same. Nor was it suggested to the I.O. that the complainant
party was the aggressor. Thus, the defence theory of right of private
defence and the testimony of D.W. 2 are clear afterthoughts.
90. The learned trial court elaborately discussed the testimony of the
prosecution witnesses and rightly observed that the injuries on co-
accused Sabalbir Singh were simple and superficial, whereas the
appellants actively participated in the commission of the assault with
lathis. The ocular evidence of P.W. 1 and P.W. 2 is cogent, convincing
and clinching and inspires full confidence.
PRE-EXISTING ENMITY AND MOTIVE
91. Phool Singh (P.W. 1) testified that Lallan Singh had five sons,
namely Balveer Singh, Sabalbir Singh, Samarbir Singh, Rajpal Singh
and Brijpal Singh @ Babloo Singh. Balveer Singh was convicted in a
1977 murder case where two persons were killed; he was awarded the
death sentence by the Sessions Court, Unnao, which was later commuted
to life imprisonment by the High Court. In that case, deceased Shiv
Bakhsh Singh had testified as a prosecution witness against Balveer
Singh and consistently opposed his release on parole/bail. P.W. 1 also
testified that on 20.11.1992, the accused persons had assaulted Shiv
Bakhsh Singh, leading to a criminal case at P.S. Achalganj. Furthermore,
the 1/4th share in the Korari Khurd market purchased by Smt. Vimla
Devi (wife of deceased Shiv Bakhsh Singh) from Ganga Dei and Jamuna
Dei was a constant bone of contention, as the accused persons forcibly
collected tahbazari from that land. Raj Bahadur Singh (P.W. 2) fully
corroborated the existence of this longstanding dispute and enmity.
92. It is a well-settled principle of criminal jurisprudence that enmity
is a double-edged weapon. While on the one hand it provides a motive

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for the commission of the crime, on the other hand, it also raises the
possibility of false accusation. Therefore, it requires the court to
scrutinize the evidence with greater care and circumspection. The
existence of previous enmity and the dispute over tahbazari collection
provided a strong and immediate motive for the accused persons to
commit the offence.
93. So far as the plea of the appellants that they were not present on
the spot, is concerned, the burden of proving the plea of alibi lay
squarely upon the accused under Section 103 of the Indian Evidence Act.
The appellants were well known to the deceased and the injured
eyewitnesses prior to the incident, who categorically deposed to their
active participation in the assault. The appellants failed to lead any
credible evidence to discharge the burden of alibi. The defence of private
defence is also devoid of substance.
FIRST INFORMATION REPORT AND INQUEST REPORT
94. Learned counsel for the appellants vehemently contended that the
First Information Report was ante-timed and inquest report of deceased
Shiv Bux did not contain the crime number and the relevant sections of
law.
95. This contention is not tenable. The incident occurred on
01.11.1995 at about 4:00 P.M. and the FIR was promptly registered at
16:40 hrs at Police Station Achalganj, situated 3 kilometers away. The
Special Report was also dispatched on the very same day at 19:15 hrs via
General Diary Entry No. 34.
96. Regarding the alleged discrepancies in the inquest report, it would
be apposite to refer to the law laid down by the Hon'ble Apex Court in
the case of Brahma Swaroop vs. State of U.P., AIR 2011 SC 280 ,
wherein it has been observed that inquest report is not substantive
evidence. But it may be utilized for contradicting witnesses of inquest.
Any omission to mention crime number, names of accused penal
provisions under which offences have been committed are not fatal to
prosecution case. Such omissions do not lead to inference that FIR is

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ante-timed and evidence of eyewitnesses cannot be discarded if their
names do not figure in inquest report. The whole purpose of preparing an
inquest report u/s 174 CrPC is to investigate into and draw up a report of
the apparent cause of death, describing such wounds as may be found on
the body of the deceased and stating as in what manner or by what
weapon or instrument such wounds appear to have been inflicted. For
the purpose of holding the inquest it is neither necessary nor obligatory
on the part of the IO to investigate into or ascertain who were the
persons responsible for the death. The object of the proceedings u/s 174
CrPC is merely to ascertain whether a person died under suspicious
circumstances or met with an unnatural death and if so what its apparent
cause was. The question regarding the details of how the deceased was
assaulted or who assaulted him or under what circumstances he was
assaulted is foreign to the ambit and scope of such proceedings i.e. the
inquest report is not the statement of any person wherein all the names of
the persons accused must be mentioned. Omissions in the inquest report
are not sufficient to put the prosecution out of court. The basic purpose
of holding inquest is to report regarding the apparent cause of death
namely whether it is suicidal, homicidal, accidental or by some
machinery etc. It is therefore not necessary to enter all the details of the
overt acts in the inquest report. Evidence of eyewitnesses cannot be
discarded if their names do not figure in the inquest report prepared at
the earliest point of time.
97. Therefore, merely on the basis of omission of crime number in the
inquest report or medical memos and the contention raised by the
learned counsel for the appellants that the FIR is ante-timed is devoid of
merit and stands rejected.
EFFECT OF NON-EXAMINATION OF INDEPENDENT
WITNESSES
98. Learned counsel for the appellants vehemently contended that
only partisan and interested witnesses have been examined. It was urged

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that since no independent witness was adduced by the prosecution, the
prosecution story cannot be treated as reliable and is highly doubtful.
99. We have considered this contention. It is made clear that as per
Section 134 of the Indian Evidence Act, 1872, no particular number of
witnesses is prescribed. The law of evidence does not insist upon the
quantity of witnesses, but focuses solely on the quality of the witnesses.
100. In the cases of Kripal Singh vs. State of Haryana, AIR 2013 SC
286 and Sandeep vs. State of U.P., (2012) 6 SCC 107, the law
regarding independent witnesses and the effect of their non-examination
has been elucidated. On the basis of the verdicts given in those cases, it
may be safely concluded that if a witness examined in the court is
otherwise found reliable and trustworthy, the fact sought to be proved by
that witness need not be further proved through other witnesses though
there may be other witnesses available who could have been examined
but were not examined. Non-examination of material witness is not a
mathematical formula for discarding the weight of the testimony
available on record however natural, trustworthy and convincing it may
be. It is settled law that non-examination of eye-witness cannot be
pressed into service like a ritualistic formula for discarding the
prosecution case with a stroke of pen. Court can convict an accused on
statement of a sole witness even if he is relative of the deceased and non
examination of independent witness would not be fatal to the case of
prosecution.
101. Applying the aforesaid principles to the case at hand, it is to be
made clear that four persons were injured in the incident and one of their
brother died after sustaining fatal injuries. Thus, the presence of the
injured persons at the time of the incident cannot be ruled out. Therefore,
their evidence cannot be discarded merely on the ground that they are
inter-related to each other or that their testimony is partisan, rather, the
testimony of an injured witness stands on a higher pedestal than any
other witness.

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102. The testimony of the injured witnesses has been discussed earlier
at length and no adverse facts have emerged during the course of their
cross-examination. There is complete uniformity in their evidence with
regard to the identification of the accused, the manner of assault and the
weapons used, which is fully supported by the post-mortem report and
injury reports. Therefore, we are not inclined to accept the contention
that the prosecution story can be doubted due to the non-examination of
independent witnesses.
CONCLUSION
103. On the basis of the above grounds, the learned trial court, in its
detailed judgment, elaborately discussed each and every contention
raised before it with regard to the FIR, inquest report, post-mortem
report, injury reports, as well as the testimony of the injured witnesses
and their veracity. After considering the same in its entirety, the learned
trial court rightly found that in furtherance of their common intention,
the appellants/convicts committed the act of causing hurt to the injured
persons and caused the death of the deceased by brutally inflicting
grievous injuries.
104. The accused persons brutally made the assault and the right of
private defence was not found available to them, as they were the
aggressors. The injury sustained by one of the co-accused, Sabalbir
Singh, was so superficial that it cannot be taken as a weakness in the
prosecution case or used to doubt the testimony of the prosecution
witnesses.
105. Thus, we find that there is no perversity or illegality in the
impugned judgment and order passed by the learned trial court. The
appeal lacks merit and is liable to be dismissed.
OPERATIVE ORDER
106. The Criminal Appeal is, accordingly, dismissed .
107. The conviction and sentence of the appellants, namely Brijpal
Singh @ Babloo Singh, Rajpal Singh @ Raju Singh, and Samarbir Singh

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@ Malik Singh, under Section 302 read with Section 34 IPC (Life
Imprisonment) and Section 323 read with Section 34 IPC (6 Months
Simple Imprisonment) awarded by the learned trial court vide judgment
and order dated 27.03.2001, are hereby upheld and affirmed.
108. The appellants are on bail. Their bail bonds are cancelled, and
their sureties are discharged.
109. The appellants shall surrender forthwith before the learned trial
court, Unnao so that they may be sent to jail to serve out the remaining
part of their sentence.
110. In case the appellants do not surrender immediately before the trial
court concerned, the court concerned shall take all necessary coercive
steps to apprehend the appellants and commit them to prison in
accordance with law.
111. Let a copy of this judgment along with the lower court record be
transmitted to the learned trial court concerned forthwith for immediate
compliance.
(Pramod Kumar Srivastava,J.) (Abdul Moin,J.)
August 07, 2026
Haseenuddin
Digitally signed by :-
HASEENUDDIN
High Court of Judicature at Allahabad,
Lucknow Bench