1 Neutral Citation No. - 2025:AHC-LKO:47520-DB Reserved on 14.07.2025 Delivered on 14.08.2025 Case :- Criminal Appeal No.1922 of 2008 1. Appellant :- Suresh and another Respondent :- State of U.P. Counsel for Appellant :- Nagendra Mohan,Anand Dubey,Atul Kumar Dwivedi,Govind Sharan Soni,Manish Kumar, Shreesh Kumar Mishra Atal,Tanay Hazari Counsel for Respondent :- G.A. connected with 2. Case :- Criminal Appeal No.2108 of 2008 Appellant :- Sita Ram Respondent :- State of U.P. Counsel for Appellant :- Rajiva Dubey Counsel for Respondent :- G.A. 3. Case :- Criminal Appeal No.2215 of 2008 Appellant :- Hukum Chand Respondent :- State of U.P. Counsel for Appellant :- Sarvesh Kumar Verma,Soniya Mishra Counsel for Respondent :- G.A. Hon'ble Mrs. Sangeeta Chandra, J. Hon'ble Brij Raj Singh, J. (Delivered by Brij Raj Singh, J.) 1. The present appeals have been filed against the judgement and order dated 07.08.2008 passed by the learned Additional Sessions Judge, Court No.3, Lakhimpur in Sessions Trial No.534 of 2002, arising out of Case Crime No.279 of 1995, Bandha and others Vs. State of U.P., thereby convicting 1 of 31 2 and sentencing all the appellants under Section 302/149 IPC for life imprisonment with fine of Rs.5,000/- each and in default of payment of fine to further undergo three months additional imprisonment; under Section 323/149 IPC for six months rigorous imprisonment and under Section 324/149 IPC for one year rigorous imprisonment. Appellants Suresh and Naresh also convicted and sentenced under Section 148 IPC for one year rigorous imprisonment. However, all the sentences are run concurrently. 2. The facts give rise to the present appeals are that Devidayal S/o Dori Lal, resident of Village Gulrai, Police Station Pasgawan, District Lakhimpur Kheri lodged an First Information Report on 13.11.1995 at 10.15 A.M. mentioning therein that he had irrigated the crop of Bandha by his pumping set and Rs.1,500/- in lieu thereof was not paid by Bandha. He asked Bandha to pay the said amount, but he did not pay any heed. It is stated that on 09.11.1995, Smt. Thakurawati, bhabhi of the complainant also asked Bandha to pay the said money, but Bandha had beaten her with fists and kicks, for which a report was lodged by his bhabhi. On 13.11.1995 at 6 A.M. when the complainant and his family members were doing their work outside the house, Bandha and Dayal S/o Hulasi Chamar armed with Spear and Kanta, Hukum Chand S/o Bandha Chamar and Sita Ram S/o Dayal armed with Lathi, Naresh and Suresh S/o Kunwar Chamar armed with Spear and Kanta came to his house and made 2 of 31 3 exhortation by saying that everyday the money in lieu of irrigation is being asked and report in this regard has also been lodged, therefore, they would kill them. All the accused assaulted Dori Lal, Lal Bahadur, Jairakhan, father and brothers of the complainant and also the complainant. On hearing noise, Shivraj S/o Nokhey, Rampal S/o Preetam and other villagers and family members of the complainant came to the place of occurrence and the accused ran away from the scene of occurrence. Dori Lal and Lal Bahadur, father and brother of the complainant died on the spot due to the injuries sustained by them. The complainant and his brother, Jairakhan also received injuries. 3. Written Report was lodged by way of FIR as Case Crime No.219 of 1995, under Sections 147, 148, 149, 302, 323, 504 and 506 IPC. After conducting inquest, post-mortem was done and report was prepared accordingly. 4. The case was investigated by the Investigating Officer and after completing the investigation, charge sheet was filed under Sections 148, 302/149, 323/149 and 324/149 IPC against the appellants, Suresh, Naresh and Dayal and under Sections 147, 302/149, 323/149 and 324/149 IPC against the appellant Sitaram and charges were framed in the aforesaid sections. During trial, Hukum Chand was summoned under Section 319 Cr.P.C. on 29.06.2004 and charges were framed against him on 30.07.2005 under Sections 147, 302/149, 323/149 and 324/149 IPC. Thereafter, the case was committed to the court 3 of 31 4 of Sessions vide order dated 21.09.2002. On 06.11.2003, the criminal proceedings were abated against Bandha as he died. The accused pleaded not guilty and requested for trial. 5. The prosecution to prove its case, produced the following six witnesses:- P.W.-1 Devidayal, complainant P.W.-2 Jairakhan P.W.-3 Dr. V.K. Dhadheech P.W.-4 S.H.O. Rampal Singh P.W.-5 Dinesh Kumar P.W.-6 Sub-Inspector Suresh Chand 6. 23 exhibits were also produced by the prosecution side to prove its case. 7. Accused-appellants also produced one witness, Rampal as D.W.-1 in their defence. 8. P.W.-1, Devidayal, complainant has been examined by the trial court and he has narrated the facts as enumerated in the First Information Report that Rs.1,500/- for irrigating the land of Bandha was to be paid by him, for which he had asked many times to pay the amount, but Bandha did not pay the money. Thereafter, bhabhi of the complainant had also asked Bandha to pay the amount, but she was beaten by Bandha, for which a report was also lodged at the police station. After the said incident, on 13.11.1995 at 6 A.M., Bandha, Suresh and Dayal armed with Kanta, Naresh armed with Bhala and Sitaram and Hukum Chand armed with Lathi 4 of 31 5 came to the place of occurrence and at that time, the complainant and his family members were working outside the house. The accused said that everyday money was being asked by them and the money will be paid today and thereafter they assaulted Jairakhan, Lal Bahadur, Dori Lal and the complainant, as a result which, Dori Lal and Lal Bahadur died on the spot. He further deposed that he and his brother Jairakhan also received injuries. On hearing alarm, the villagers reached to the place of occurrence and the accused ran away from the place of occurrence. Thereafter, he along with his brother, Jairakhan went to the police station and a report written by Bahadur was lodged. He also proved the First Information Report (Ext. Ka-1) lodged by him. 9. In the cross-examination, P.W.1, Devidayal has deposed that no one has assaulted his father with Kanta. He further deposed that Dayal and Suresh caused 4-5 injuries to his father, Dori Lal with Kanta. He also deposed that Bandha and Naresh assaulted his father and brother 6-7 times with Suja, as result of which, his father received 20-25 injuries of Suja and Kanta. His brother, Lal Bahadur was assaulted by all the accused, due to which he received injuries of Kanta. He further deposed that Suresh and Dayal assaulted his brother, Lal Bahadur with Kanta 4-5 times and Naresh and Bandha assaulted his brother with Bhala 2-3 times, as a result of which his brother Lal Bahadur received 10-12 injuries of Kanta and Bhala. 5 of 31 6 10. P.W.-2, Jairakhan, injured witness, was also examined by the trial court and in his examination-in-chief, he has narrated the same facts as stated in the First Information Report. He has reiterated the version of P.W.-1, Devidayal before the trial court and deposed that his brother Devidayal had irrigated the sugarcane crop of Bandha and Rs.1,500/- was to be paid by Bandha. He was reminded several times to pay the amount, but he did not pay any heed. There was altercation between his wife and Bandha on 09.11.1995 as she demanded the amount to be paid by him and a police report was lodged against Bandha. All the accused came to his house on 13.11.1995 at 6 A.M. when he and his family members were doing work outside their house. 11. In the statement recorded under Section 161 Cr.P.C., P.W.-2 Jairakhan stated that Bandha and Dayal S/o Hulasi armed with Spear and Kanta, Hukum Chand S/o Bandha armed with Lathi, Sitaram S/o Dayal armed with Lathi, Suresh and Naresh S/o Kunwar armed with Spear and Kanta came to his house and they shouted aloud that money is being asked everyday, hence, they would be killed on that very day. All the accused assaulted Dori Lal and Lal Bahadur with the weapons as mentioned aforesaid. On alarm raised by them, villagers Shivraj, Rampal and many others came to the place of occurrence and the accused ran away from the place of occurrence. Dori Lal and Lal Bahadur received serious injuries, due to which they succumbed. 6 of 31 7 12. In the examination-in-chief, P.W.-2, Jairakhan has improved the version and stated that on 13.11.1995 at 6 A.M. Bandha armed with Suja, Dayal armed with Kanta, Sitaram armed with Lathi, Hukum Chand armed with Lathi, Naresh armed with Kanta and Suresh armed with Spear came to his house and committed the offence by killing his father, Dori Lal and brother, Lala Bahadur. The version as stated before the trial court, does not match the version of the First Information Report as well as the statement recorded under Section 161 Cr.P.C. It is, thus clear that the improved version is reiteration of the version of P.W.-1 Devidayal before the trial court. In his cross-examination, he deposed that he did not sign on the inquest report and also he did not go along with dead bodies of his father and brother. He further denied any illicit relationship with the wife of Bandha. He deposed that his father and brother were not killed at 2 AM, rather they were killed at 6 A.M. 13. P.W.-3, Dr. V.K. Dhadheech was examined by the trial court and he deposed that he had conducted the post-mortem of the deceased, Dori Lal, S/o Bhikari and the following ante- mortem injuries were found on his body:- “1. Lacerated wound on the top of head 5 cm x 2 cm x bone deep 12 cm. 2. Lacerated wound left side of Chin 2 cm lateral to mid line 5 cm x 1 cm x bone deep. 3. Punctured wound left angle of mandible 2 cm x 1.5 cm with everted margins piece of mandible coming out. 7 of 31 8 4. Lacerated wound 2 cm x 0.5 cm x bone deep left leg, 12 cm below knee.” 14. Cause of death was recorded as Coma due to ante- mortem injuries. Time of death was about 1-1/2 day before as the post-mortem of the deceased was conducted on 14.11.1995 at 4 P.M. Doctor has opined that the deceased died due to the injuries caused by Kanta, Bhala and Lathi. 15. Post-mortem of the deceased-Lal Bahadur, S/o Dori Lal was also conducted by Dr. V.K. Dhadheech and the following ante-mortem injuries were found on his body:- “1. Multi[le lacerated wounds on left side of face, sick nose, eye and face head and face varying in size from 2 cm x 1 cm x muscle deep to 5 cm x 1.5 cm x bone deep in an area of 12 cm x 10 cm. 2. Multiple lacerated wounds in an area of 8 cm x 6 cm in left lower jaw and face varying in size from 1 cm x 1 cm to 3 cm x 1.5 cm x 1.5 cm muscle deep to bone deep. 3. Incised wound 3 cm x 1 cm x bone deep right side of forehead and eye brow. 4. Incised wound 3 cm x 1.5 cm x bone deep Rt. Nallar prominence.” 16. Cause of death was recorded as Coma due to ante- mortem injuries. Time of death was about 1-1/2 day before as the post-mortem of the deceased was conducted on 14.11.1995 at 4.30 P.M. Doctor has opined that the deceased died due to the injuries caused by Kanta, Bhala and Lathi. 17. P.W.-3, Dr. V.K. Dhadheech further deposed that small intestine was empty. Large intestine was full of faecal matter. He also deposed that the deceased might have died on 8 of 31 9 13.11.1995 at about 6 A.M. He also deposed that the deceased might have been assaulted with Lathi, Kanta and Bhala. 18. P.W.-4, Rampal Singh, Station House Officer, District Shahjahanpur has deposed before the court that he arrested the accused Suresh and Naresh on 18.01.1996 and also conducted the investigation and recorded the statements of witnesses Rampal, Shiv Ram. He further deposed that statements of the witnesses Devidayal and Jairakhan were recorded by the previous Investigating Officer. 19. P.W.-5, Dinesh Kumar deposed before the court that recovery of Lathi was made in his presence and the accused admitted before him that the said Lathi was used for assaulting the deceased. He further deposed that he put his signature by a different pen, whereas the memo has been prepared by a different pen. 20. P.W.-6, Sub-Inspector, Suresh Chand was also examined by the trial court and he deposed that on 13.11.1995, he was posted at Police Station Pasgawan, District Lakhimpur Kheri as Station In-charge. He deposed that a case was registered at the police station and the same was entered in G.D.No.16 at 10.15 A.M. He further admitted that inquest was done and thereafter the dead bodies were sent for post-mortem. He deposed that Bandha, Dayal, Sita Ram were arrested by him on 28.11.1995 at Barwar Bus Stand and on the pointing out of Dayal and Bandha, Lathi was recovered. 9 of 31 10 21. The accused-appellants had produced D.W.-1, Rampal S/o Nandlal in their defence and he deposed before the court that he heard an alarming noise at 3-4 AM on the date of incident from the western side of his house near Peepal tree. He woke up and went to the place and saw that Dori Lal was lying in an injured state on the western side of Kharanja towards the house of Netram and dead body of Lal Bahadur was lying on the same kharanja towards the house of Ganga Ram. He further deposed that Ganga Ram and Netram also reached to the place of occurrence at almost the same time. The incident took place in the night towards the western side of the village. He deposed that the distance between the house of Dori Lal and the place of occurrence is one furlong and he had no pumping set. Bahadur is landless, therefore, there was no question of irrigation from the pump set of Devidayal. Bahadur was doing the work of labourer. He further denied the incident of quarrel between bhabhi of the complainant and Bandha. 22. All the accused were confronted under Section 313 Cr.P.C. and they have denied all the charges and deposed before the court that they were falsely implicated in the case due to enmity. 23. The trial court after examining the witnesses and adducing the evidence on record, convicted the appellants as mentioned above. Hence, the present appeals have been filed. 10 of 31 11 24. Sri Shreesh Kumar Mishra Atal, learned Amicus Curiae appearing for the accused has submitted that there are major contradictions in the version of the First Information Report and the statements made by P.W.1 Devidayal and P.W.-2 Jairakhan. In the First Information Report lodged by P.W.-1, Devidayal, he has mentioned that Bandha was armed with Bhala, but during the examination before the trial court, he has mentioned that Bandha was armed with Kanta. However, during the cross-examination, P.W.-1 Devidayal has again given a contradictory statement, which does not match with the version of the First Information Report and has deposed that Bandha was armed with Suja and he assaulted his deceased father, Dori Lal with it. This new version has been introduced by P.W.-1, Devidayal just to match the corresponding ante-mortem injuries of the deceased mentioned in the post-mortem report i.e. punctured and incised wounds. In the cross-examination, P.W.-1, Devidayal further deposed that his deceased father, Dori Lal was not assaulted with Kanta. He stated that Dayal had assaulted both the deceased 4-5 times with Kanta and Bandha assaulted them with Suja 6- 7 times. He also deposed that accused-Naresh had also assaulted the deceased with Suja 6-7 times, whereas Naresh has not been shown to be armed with Suja in the First Information Report. In fact, Naresh is said to be armed with Spear. He further deposed that his deceased father, Dori Lal received 20-25 injuries caused by Suja and Kanta. It has been 11 of 31 12 submitted that P.W.-1 Devidayal has further deposed that deceased, Lal Bahadur was also assaulted with Kanta. He deposed that Naresh and Bandha assaulted the deceased, Lal Bahadur 2-3 times with Spear, whereas he has stated in his examination-in-chief that Naresh was armed with Spear and Bandha was armed with Kanta. Thus, there is contradiction in his statement also. It has also been submitted by the learned Amicus Curiae that testimony of P.W.-1 Devidayal is not trust worthy and it appears that he was not present at the place of occurrence. Version of the First Information Report as well as the version before the trial court clearly indicates that there are many contradictions regarding the weapon of assault and number of injuries sustained by both the deceased. 25. Learned Amicus Curiae appearing for the accused has further submitted that post-mortem report indicates that death of the deceased took place 1 ½ day before the post-mortem and if the timing of the post-mortem is reckoned, then the timing of the death of the deceased would be at around 4 AM, whereas in the First Information Report, the time has been mentioned as 6 AM. He has further submitted that after going through the statement of P.W.-1 Devidayal, the timing of the death of the deceased was at around 4 AM is not matching. He has also submitted that the incident took place at 4 AM, which is supported by the version of P.W.-1 Devidayal, but the First Information Report has been lodged by P.W.-1, Devidayal mentioning the timing of the incident as 6 AM, 12 of 31 13 which casts a doubt regarding the occurrence of incident and it appears that both the witnesses were not present at the place of occurrence. 26. Learned Amicus Curiae appearing for the appellants has also submitted that no independent witness has been examined except the interested witnesses i.e. P.W.-1 Devidayal and P.W.- 2, Jairakhan, who are the immediate family members of the deceased, therefore, their testimony cannot be relied upon and on that basis the appellants cannot be convicted. Moreover, recovery of Suja, Kanta and Spear was not made and the injuries have also not been proved. The injuries cannot be proved unless the weapons of assault are recovered. He has also submitted that after looking into the statements of P.W.-1, Devidayal and P.W.-2 Jairakhan and the statement of D.W.-1, Rampal before the trial court, it is amply clear that presence of the complainant and his brother Jairakhan is doubtful. Both the witnesses have improved the version of the First Information Report in their statements before the trial court just to match the corresponding ante-mortem injuries of the deceased. Apart from it, weapons of assault mentioned before the trial court are not matching with the version of the First Information Report. Version of the First Information Report is prompt and instant and whatever version was stated in the First Information Report, was changed later on before the trial court just to improve the case, so that injuries mentioned in the post-mortem report can be matched with the weapons of 13 of 31 14 assault shown before the trial court. Statements of P.W.-1, Devidayal and P.W.-2, Jairakhan during cross-examination indicate that their presence at the place of occurrence is highly doubtful. 27. It has also been submitted by the learned Amicus Curiae appearing for the appellants that injuries sustained by P.W.-1 Devidayal and P.W.-2, Jairakhan have not been examined by the trial court. They have claimed that they were injured, but their injuries have not been exhibited by way of any medical evidence and the trial did not take place on the issue whether they sustained injuries or not. Thus, the prosecution has failed to establish the fact that P.W.-1 Devidayal and P.W.-2, Jairakhan were injured witnesses. 28. Learned Amicus Curiae appearing for the appellants has also submitted that prosecution has not proved the case beyond reasonable doubt, therefore, the accused cannot be convicted. It has been further submitted that if there is any doubt in the prosecution story and the statements of the witnesses, then the benefit would go to the accused and, therefore, they are liable to be acquitted from the charges. 29. In support of his contention, learned Amicus Curiae appearing for the appellants has lied upon the following judgements:- 1. Raja Khan Vs. State of Chattisgarh, (2025) 3 SCC 314; 2.Ballu @ Balram @ Balmukund and another Vs. The State of Madhya Pradesh, (2024) SCC OnLine SC 481; 14 of 31 15 3. Anand Ram Chandra Chougule Cs. Sitarai Laxman Chougule and others, (2019) 8 SCC 50; 4. Darshan Singh Vs State of Punjab, (2024) 3 SCC 164; 5. Krishne Gowda and others Vs State of Karnataka, (2017) 13 SCC 98; 6. Baso Prasad and others Vs State of Bihar, (2006) 13 SCC 65; 7. Mohar Singh and others Vs State of Punjab, (1981) Suppl. SCC 18; 8. Alauddin and others Vs State of Assam and another, (2024) SCC OnLine SC 760; 9. Balu Sudam Khalde and another Vs State of Maharashtra, (2023) 13 SCC 365; 10. State of A.P. Vs S. Rayappa and others, (2006) 4 SCC 512; 11. Ganapathi and another Vs. State of Tamilnadu, (2018) 5 SCC 549. 12. Jawahar Lal Das Vs. State of Orissa, ACC 1991 (28) SC 267 30. On the other hand, Sri R.S. Dwivedi, learned AGA has submitted that ocular witnesses P.W.-1, Devidayal and P.W.-2, Jairakhan have proved their case beyond reasonable doubt and they have stated before the trial court that all the accused persons armed with Lathi, Kanta, Bhala and Suja and had assaulted the deceased, as a result of which they received serious injuries and died on the spot. He has further submitted that it is a case of double murder. The post-mortem report of the deceased indicates that timing of the death of the deceased is one and a half day before the post-mortem, which is corresponding with the version of the First Information Report. The First Information Report indicates that the incident took place at 6 AM and even if the doctor has opined that the death occurred prior to one and a half day i.e. at around 4 AM., there is no mismatching with the timing of death. The 15 of 31 16 variation can be expected in the opinion of the doctor and exact time cannot be calculated and at-least three hours margin on either side can be inferred. He has also submitted that the motive is assigned, wherein it is mentioned that an amount of Rs.1,500/- in lieu of irrigation of the Bandha’s crop was asked by the complainant, but he did not pay any heed. On 09.11.1995, an altercation took place between the bhabhi of the complainant and Bandha, for which bhabhi of the complainant had lodged the First Information Report. Once the motive is established, there is no reason to disbelieve the prosecution version, that too where double murder has taken place and both the witnesses have given categorical statements before the trial court during examination-in-chief as well as cross-examination mentioning therein that all the accused armed with Lathi, Kanta, Spear and Suja had assaulted the deceased, as a result of which they received serious injuries and died on the spot. He has also submitted that there is no infirmity or illegality in the judgement and order of conviction passed by the trial court, therefore, the appeals are liable to be dismissed. 31. In support of his contention, learned AGA has relied upon the following judgement:- Manjit Singh Vs. State of Punjab, (2019) 8 SCC 529 32. We have heard learned counsel for the parties and perused the record. 16 of 31 17 33. After perusing the record and the statements of P.W.-1 Devidayal and P.W.-2, Jairakhan, it transpires that there are major contradictions in the version of the First Information Report and the statements made by P.W.1 Devidayal and P.W.-2 Jairakhan before the trial court. In the First Information Report, P.W.-1, Devidayal has mentioned that Bandha was armed with Bhala, but during the examination before the trial court, he has mentioned that Bandha was armed with Kanta. However, during the cross-examination, P.W.-1 Devidayal has again given a contradictory statement, which is not matching with the version of the First Information Report and has deposed that Bandha was armed with Suja and he assaulted his deceased father, Dori Lal with it. This new version has been introduced by P.W.-1, Devidayal just to match the corresponding ante-mortem injuries of the deceased mentioned in the post-mortem report i.e. punctured and incised wounds. In the cross-examination, P.W.-1, Devidayal further deposed that his deceased father, Dori Lal was not assaulted with Kanta. He has stated that Dayal had assaulted both the deceased 4-5 times with Kanta and Bandha assaulted with Suja 6-7 times. He also deposed that Naresh had also assaulted the deceased with Suja 6-7 times, whereas Naresh has not been shown to be armed with Suja in the First Information Report. In fact, Naresh is said to be armed with Spear. P.W.-1 Devidayal further deposed that his deceased father, Dori Lal received 20-25 injuries caused by Suja and 17 of 31 18 Kanta. P.W.-1 Devidayal has deposed that his deceased brother, Lal Bahadur was also assaulted with Kanta and Naresh and Bandha assaulted the deceased, Lal Bahadur 2-3 times with Spear, whereas he has stated in his examination-in- chief that Naresh was armed with Spear and Bandha was armed with Kanta. Thus, there is contradiction in his statement also. Looking to the statements made by P.W.-1, Devidayal and P.W.-2, Jairakhan, it appears that they were not present at the place of occurrence and their testimony cannot be said to be trust worthy. Moreover, version of the First Information Report as well as the statements before the trial court clearly indicates that there are many contradictions regarding the weapon of assault and number of injuries sustained by both the deceased. 34. We further find that no independent witness has been examined besides the interested witnesses i.e. P.W.-1 Devidayal and P.W.-2, Jairakhan, who are the immediate family members of the deceased. Looking to the statements of P.W.-1, Devidayal and P.W.-2 Jairakhan and the statement of D.W.-1, Rampal before the trial court, it is amply clear that presence of the complainant and his brother Jairakhan is doubtful. Both the witnesses have improved the version of the First Information Report in their statements before the trial court just to match the corresponding ante-mortem injuries of the deceased. 18 of 31 19 35. Moreover, recovery of Suja, Kanta and Spear was not made and the injuries have also not been proved. Unless and until the weapon of assault is not recovered and examined, the injuries cannot be proved because it is difficult to ascertain that as to by which weapon the injuries were caused. Apart from it, weapon of assault mentioned before the trial court is not matching with the version of the First Information Report. Version of the First Information Report is prompt and instant and whatever version was stated in the First Information Report, was changed later on before the trial court just to improve the case, so that injuries mentioned in the post- mortem report can be matched with the weapons of assault shown before the trial court. 36. The injuries sustained by P.W.-1 Devidayal and P.W.-2, Jairakhan have not been examined by the trial court nor their injuries have been verified by way of any medical evidence and the trial did not take place on the issue whether they sustained injuries or not. Thus, the prosecution has failed to establish the fact that P.W.-1 Devidayal and P.W.-2, Jairakhan were injured witnesses. It is also apparent from the record that prosecution case is not proved beyond reasonable doubt and unless and until the same is proved, the accused cannot be convicted on that basis coupled with other major factors viz. major contradictions in the statements, non-recovery of weapon of assault and non-examination of independent witnesses. 19 of 31 20 37. After going through the record, as well as the arguments advanced by the learned counsel for both the parties, the issue which has emerged for consideration is regarding the presence of P.W.-1 Devidayal and P.W.-2 Jairakhan at the place of occurrence. P.W.-1, Devidayal has improved his version and he has introduced the weapon of assault i.e. Suja in the hands of Bandha and Naresh, whereas Naresh has not been shown to be armed with Suja in the First Information Report and in fact, Naresh has been said to be armed with Spear. The contradiction is major because in the First Information Report, the weapon Suja has not been mentioned at all, but before the trial court P.W.-1, Devidayal has introduced the weapon Suja in the hands of Bandha and Naresh, and deposed before the trial court that Bandha had assaulted his deceased father 6-7 times and again he deposed that Naresh had also assaulted his deceased father with Spear. The same fact has also been narrated by P.W.-2 Jairakhan in his examination-in-chief and he has also stated that accused Bandha was armed with Suja. It appears that weapon Suja has been introduced by both the witnesses before the trial court just to improve their version, which is an after thought because they have seen the injuries of both the deceased and injuries no.3 and 4 of the deceased, Lal Bahadur indicate that the same can be caused by Suja. 38. Hon’ble Supreme Court has settled the law that suspicion, however strong it may be, cannot take the place of truth beyond reasonable doubt. The paramount consideration 20 of 31 21 of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused, who is guilty of an offence. Hon’ble Supreme Court in paragraph 8 of the judgement of Ballu and another (supra), held as under:- “8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.” 39. Hon’ble Supreme Court in the case of Anand Ram Chandra Chougule (supra) has again considered the case, wherein it has pronounced that the burden lies on the prosecution to prove the case beyond reasonable doubt. Paragraphs 10 and 11 of the aforesaid judgement are quoted below:- “10. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt. 10. The fact that a defence may not have been taken by an accused under Section 313 Cr.P.C. again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422, this Court observed: 21 of 31 22 “28…When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.” 40. Hon’ble Supreme Court in the case of Mohar Singh and others (supra) has held that if the statement of the witnesses smacks of concoction or fabrication, this may be a ground for acquittal of the accused. The evidence of the witnesses are to be looked into in its entirety. If there is contradiction in the oral and medical evidence, the accused cannot be punished. Paragraph 5 of the aforesaid judgement is extracted herein below:- “5. We have, however, been taken through Ext. P-19, the statement of the deceased Kartar Singh and we find that he has given a very detailed and graphic narration of the entire history of the case, starting from the motive, the enmity and minutest features of the assault excluding the individual acts committed by the appellants. He has also mentioned that the appellants assaulted him with Kassi. The ocular evidence however is that the deceased was attacked not by Kassi but by spade. In view of the detailed and extremely coherent nature of the dying declaration, we find it impossible to believe that the deceased even if conscious would have made such a detailed statement. We are, therefore, inclined to think that this statement smacks of concoction of fabrication in order to make the present case foolproof. At any rate, we find it wholly unsafe to rely on the dying declaration, particularly, when P.W. 12 did not take the necessary precaution of getting the dying declaration attested by the wife who was stated to be present there or the doctor who was alleged to be present in the hospital. Thus, the dying declaration has to be excluded from consideration. That being the position the only evidence which we are left with consists of the statements of P.Ws. 3 and 4. The evidence of these witnesses also cannot be relied upon. They are in direct conflict with the medical evidence. 22 of 31 23 While both the witnesses categorically state that the appellants assaulted the deceased with spades with which the earth was being dug out either from the sharp or the blunt side, the doctor (P.W. 1) who held the autopsy of the deceased has clearly stated that the injuries could be caused only by a Kassi. No question was put by the prosecution to the doctor whether any or all of the injuries on the deceased could be caused in the manner alleged by the witnesses i.e. by a spade.” 41. Hon’ble Supreme Court in the case of Balu Sudam Khalde and another (supra) has held that the Court has to see 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. Paragraph 25 of the aforesaid judgement is quoted below:- “25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-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 scrutinize 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 23 of 31 24 reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness 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, hyper technical 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 guess work 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 24 of 31 25 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 sub- conscious 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. 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 Gujarat1983 Cri LJ 1096: (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)].” 42. The question of trustworthiness of the witness and contradictory oral statement has been considered by the Hon’ble Supreme Court in the case of Brijpal Singh Vs. State of M.P., (2003) 11 SCC 219. Relevant portion of paragraph 7 of the aforesaid judgement is quoted below:- “7. ……………. Before us, of course, the learned counsel for the State has submitted that if the oral evidence is found acceptable by the court then even if there is some contradiction in the medical or ballistic reports, the acceptable oral evidence should always be preferred. Normally, if the eye-witness's evidence is absolutely acceptable, the argument of the learned counsel for the State could have been accepted but that is not the factual position in this case. The eye-witnesses admittedly are interested witnesses being relatives of the deceased and other persons 25 of 31 26 who witnessed the incident who were independent witnesses have not been examined by the prosecution and there is inter se contradictions in the evidence of PW-1 and PW-10 there is also contradiction as to who fired at PW-1. In these circumstances, we think it is not safe to rely upon the said oral evidence to base a conviction on the appellant. We are in agreement with the High Court in its approach towards the case of the acquitted accused persons, but we find it difficult to accept its reasoning to base a conviction on the appellant. We think in the facts and circumstances of this case the very same reasoning which persuaded the High Court to acquit the other three accused persons should have also persuaded the High Court to acquit the appellant also, when we find no difference in the oral evidence led by the prosecution, be it against the appellant or the other accused persons. Then we notice the prosecution has not bothered to clarify the report of the ballistic expert even though the same was contradictory to the oral evidence which creates a very serious doubt in our mind as to the presence of eye-witnesses at the place of incident. Keeping in mind the partisan nature of eye-witnesses and contradictions in their evidence, we think this appellant is also entitled to benefit of doubt.(emphasis applied)” 43. The aforesaid principle enunciated in the case of Brijpal Singh (supra) has been reiterated in the case of Amzad Ali alias Amzad Khan and others Vs. State of Assam, (2003) 6 SCC 270. Paragraph 7 of the aforesaid judgement is quoted below:- “7. For all the reasons stated above, except extending the benefit of doubt in favour of appellants 3,5,6,9 and 11 in respect of whom the evidence of PWs.2 and 9 is sketchy and does not make out their participation beyond reasonable doubt, we see no reason whatsoever to extend any benefit of doubt in respect of the remaining accused/appellants. Consequently, we order the acquittal of appellants No. 3, 5, 6, 9 and 11 by partly allowing the appeals and confirm the conviction and sentence in respect of appellants No.1, 2, 4, 7, 8, 10 and 12, dismissing the appeals, so far as they are concerned. The appellants acquitted by us shall be released from jail, if not required in any other case. The others whose conviction and sentence has been confirmed by us shall serve the remaining period of the sentence, as ordered by the courts below.” 26 of 31 27 44. Similarly, in the case of Mohd. Muslim Vs. State of Uttar Pradesh, (2023) 7 SCC 350, Hon’ble Supreme Court has also reiterated the aforesaid principle in paragraph 23 of the judgement, which reads as under:- “23. The totality of the facts and circumstances especially the unnatural behaviour and conduct of the son and nephew of the deceased Altaf Hussain, ante-timing of the FIR and that the ‘loi (blanket) and the cycle (Exh. Ka-10 and Exh. Ka-11) alleged to be that of the accused appellants left behind at the site of the incident were not produced before the Court, compels us to doubt the presence of the son and nephew of the deceased Altaf Hussain at the site. (emphasis applied)” 45. In the case of Munna Lal Vs. State of Uttar Pradesh, (2023) 18 SCC 661, Hon’ble supreme Court has held that failure/negligence to seize the weapons of offence, on facts and in the circumstances of the present case, has the effect of denting the prosecution story so much so that the same, together with non-examination of material witnesses constitutes a vital circumstance amongst others for granting the appellants the benefit of doubt. Paragraph 41 of the aforesaid judgement is quoted below:- “41. As far as non-obtaining of ballistic report is concerned, it is no doubt true that its essentiality would depend upon the circumstances of each case. Here, since no weapon of offence was seized, no ballistic report was called for and obtained. Although Mr. Giri contended that Munna Lal had a licensed gun, this Court has not been able to trace any evidence in the records in regard thereto. However, nothing turns on it. The failure/neglect to seize the weapons of offence, on facts and in the circumstances of the present case, has the effect of denting the prosecution story so much so that the same, together with non-examination of material 27 of 31 28 witnesses constitutes a vital circumstance amongst others for granting the appellants the benefit of doubt.” 46. In the present case, the prosecution has not proved the weapons of assault i.e. Suja, Kanta and Spear, therefore, in absence of proving of the weapons of assault, the prosecution story becomes highly doubtful. 47. Learned AGA by relying upon the judgement rendered in the case of Manjit Singh (supra) has submitted that when the statement of the injured witnesses is found trustworthy and reliable, the conviction on that basis can always be recorded by looking into all the relevant facts. Paragraph 13.2 of the aforesaid judgement reads as under:- “13.2. Likewise, the submission about want of independent witnesses in support of prosecution case is also baseless. There is no rule that in every criminal case, the testimony of an injured eye-witness needs corroboration from the so-called independent witness(es). When the statement of injured eye-witness is found trustworthy and reliable, the conviction on that basis could always be recorded, of course, having regard to all the facts and surrounding factors. In the present case, the reliable evidence of the injured eye- witnesses cannot be discarded merely for the reason that no independent witness was examined.” 48. The aforesaid case law is not applicable to the present facts of the case as in the present case, there are major contradictions in the version of the First Information Report and the statements made by P.W.-1, Devidayal and P.W.-2, Jairakhan before the trial court with regard to time of the incident, weapons of assault, which throws ample doubt on their testimony. If the testimony of the eye-witnesses, who are the interested witnesses, is contradictory and not trustworthy 28 of 31 29 and in absence of examination of any independent witness with regard to the material facts, i.e. time of incident, weapon of assault and the injuries sustained by the deceased as well as the injured, the conviction of the accused on the basis of surmises and conjectures, cannot be sustained. It is also relevant to mention here that recovery of Suja, Kanta and Spear is not made though it is a case of the prosecution that the injuries have been caused by Kanta, Spear and Suja and in absence of exhibit to prove the weapon of assault, the prosecution case falls to the ground. 49. Considering the over all facts and circumstances of the case and the evidence on record as discussed above, we are of the considered opinion that prosecution has not been able to prove the case beyond reasonable doubt. More over, P.W.-1, Devidayal and P.W.-2, Jairakhan are the interested witnesses as they are immediate family of the complainant, therefore, their testimony as discussed about in detail is not reliable and on that basis, the appellants cannot be convicted. If there is any doubt in the prosecution story and in the statements of the ocular witnesses, then certainly the benefit would go to the accused. The trial court has also failed to appreciate the evidence on record in a correct perspective so as to convict the appellants, therefore, the judgement and order of conviction passed by the trial court is liable to be set aside by giving of benefit of doubt to the appellants. 29 of 31 30 50. We take note of the fact that appellant-Naresh S/o Kunwar Chamar has been granted remission by the State Government in pursuance of the Government Order No.362/2025/306/22-2- 2024-17(650)/2023 dated 11.04.2025 and has been released from jail on 16.04.2025, whereas appellant-Suresh S/o Kuwar Chamar has been granted remission by the State Government in pursuance of the Government Order No.759/2025/308/22-2- 2024-17(912)/ 2023 dated 08.07.2025 and has been released from jail on 09.07.2025. 51. We also take note of the fact that appellant Sitaram had already undergone 16 years, 11 months and 16 days actual custody including custody during trial and 22 years, 9 months and 30 days of total sentence including remission, whereas appellant Hukum Chand had already undergone 16 years, 11 months and 16 days actual custody including custody during trial and 22 years, 2 months and 18 days of total sentence including remission. 52. Accordingly, all the three appeals are allowed and the judgement and order dated 07.08.2008 passed by the learned Additional Sessions Judge, Court No.3, Lakhimpur in Sessions Trial No.534 of 2002, arising out of Case Crime No.279 of 1995, Bandha and others Vs. State of U.P., is hereby set aside so far appellants are concerned. 53. Appellants Sitaram and Hukum Chand are in jail. They shall be released forthwith unless wanted in any other case, 30 of 31 31 subject to the condition that they shall furnish a personal bond and two sureties each to the satisfaction of the court concerned in compliance with the provisions of Section 437A of the Code of Criminal Procedure. 54. Let lower court record be sent back forthwith along with a copy of this judgement and order for compliance. 55. The State Legal Services Authority is directed to pay Rs.20,000/- (Rupees Twenty Thousand) to Sri Shreesh Kumar Mishra Atal, learned Amicus Curiae as honorarium for his assistance in disposal of these appeals. Senior Registrar of this Court shall ensure compliance of this order. . (Brij Raj Singh, J.) (Sangeeta Chandra, J.) Order Date :- 14th August, 2025 Rao/- 31 of 31 Digitally signed by :- CHEBROLU SRINIVASA RAO High Court of Judicature at Allahabad, Lucknow Bench