Reserved On:-08.09.2025 Delivered On:-14.10.2025 HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 3213 of 2013 In Chamber HON'BLE SIDDHARTH, J. HON'BLE AVNISH SAXENA, J. 1. Heard Sri V.P. Srivastava, learned Senior counsel assisted by Sri J.P. Singh, learned counsel for appellants; Sri Mahipal Singh and Prashant Kumar Singh, learned counsel for informant; Sri Gyan Narayan Kanaujiya, learned AGA-1 for State-respondents and perused the trial court record. 2. The instant Criminal Appeal has been preferred against the Judgment and order dated 4.7.2013 passed by Additional Sessions Judge, Court No.1, Budaun in Sessions Trial No. 596 of 2012, by means of which the appellants have been convicted Under Section 147 I.P.C. for 1 year rigorous imprisonment, u/s. 302 r/w 149 I.P.C. for life imprisonment along with fine of Rs.20,000/-, u/s. 323 r/w section 149 I.P.C. for 1 year R.I. and in case of non payment of fine, each of the appellants would have to undergo 1 year's further imprisonment and all the sentences would run concurrently. 3. The prosecution case is that the informant, Kunwar Pal, is the son of the deceased, Tikam Ram. Accused, Hari Ram, is the elder uncle (tau) of informant and accused, Than Singh Yadav, Munendra Pal and Dev Pal are sons of Hari Ram and his cousins. On the date of incident dated 12.03.2012 at about 10:00 p.m., father of informant, Tikam Singh, had gone to irrigate his mentha crops. It was moonlit night. Informant, Kunwal Pal, and second son of the deceased, namely, Jagat Pal, were also in the same field when the accused, Hari Ram, alongwith his four sons named above came armed with lathis and started putting the pipes in the private water drain (nali) of informant. The father of the informant, Tikam Singh, said that his three agricultural fields are yet to be irrigated and after they get irrigated, they should put their pipe in the drain, but the accused persons did not relent and put their pipe in the drain. All the five accused thereafter threw Tikam Singh on the ground and after pressing him down started beating him with legs and fists and by lathis in their hands. When the informant and Versus Counsel for Appellant(s) : Apul Misra, Jai Prakash Singh, R.P.S. Chauhan Counsel for Respondent(s) : Bharat Singh, Chandra Bhan Kushwaha, Mahipal Singh, Prashant Kumar Singh Hari Ram And 4 Others .....Appellant(s) State of U.P. .....Respondent(s) his brother, Jagat Pal, tried to save their father, Tikam Singh, the accused persons beated the informant by lathis. They caused the murder of Tikam Singh by merciless beating and, thereafter, ran away with their pipes. While leaving the place of incident, they threatened the informant and his brother of life, in case they gave information anywhere. The informant and his brother could not go to police station because of fear in the night. On the next day (i.e., 13.03.2012), the informant got the written report prepared from Dinesh Babu of village, Tikri, P.S- Wajirganj, District- Badaun, and went to Police Station- Wajirganj, alongwith his brother, Jagat Pal and others to get the F.I.R. of the incident lodged in the morning. 4. On the basis of above application F.I.R. was lodged on 13.03.2012 at 06:30 a.m., against the all the accused and Case Crime No. 98/2012, under sections 147, 149, 302, 323, 506 of IPC was registered at the police station- Wajirganj. 5. After investigation, the investigating officer of the case filed charge-sheet against the accused and charges were framed by the trial court under sections, 147, 302 IPC read with section 149 and section 323/149 IPC. The accused persons denied the charges and sought trial. 6. To prove the prosecution case, the prosecution produced P.W.-1, Kunwar Pal (informant and injured); P.W.-2, Jagat Pal; P.W.-3, Dr. Vinesh Kumar; P.W.-4, Constable Jagmohan; P.W.-5, Dr. R.S. Yadav(Senior Surgeon) District Hospital, Badaun; P.W.-6, Sub-inspector, Kamlesh Singh, (Investigating Officer); P.W.-7, Sub- inspector, Devi Dayal; P.W.-8, Sub-inspector, Nityanand Singh and P.W.-9, Constable, Mukesh Kumar. 7. P.W.-1 and P.W.-2 proved the prosecution case as per the F.I.R. version and stated that all the accused beated their father by legs, fists and lathis Tikam Singh, till he died. 8. P.W.-3, Dr. Vinesh Kumar, found the following injuries on the body of the injured, P.W.-1:- "(i) Abrasions 8 c.m. x 3 c.m. right forearm 7 c.m. below right elbow joint (ii) Contused swelling 7 c.m. x 7 c.m. on the right hand backside, 30 c.m. below from right wrist joint. (iii) Reddish contusion 10 c.m. x 3 c.m. on the back right side, 18 c.m. below from acromial process right side should joint. (iv) Reddish contusion 9 c.m. x 2 c.m. on the back right side 8 c.m. below injury no.(iii). (v) Abrasions 4 c.m. x 2 c.m. on the back right side, 14 c.m. below from injury no. (iv). CRLA No. 3213 of 2013 2 (vi) Abrasions 13 c.m. x 13 c.m. on the right leg, 5 c.m. below from right knee joint." 9. P.W.-3, further stated that all the injuries suffered by P.W.-1 were simple in nature. He stated that injury nos. (i) to (vi) could have been caused by hard and blunt object like lathi-danda and could have been caused at 10:00 p.m., in the night of 12.03.2012. 10. P.W.-4, is a formal witness and he proved that he made entry of the report in the general diary. 11. P.W.-5, Dr. S.R. Yadav, the Autopsy Doctor, found six injuries on the body of the deceased. However, he stated that on internal examination of the dead body of the deceased, his skull and frontal bone were found to be broken; membranes of the brain were torn; clotted blood was found in the tissues of the brain; eleventh and twelfth ribs on the left side chest were broken; 300 ml of blood was found in pluera; left lung was ruptured; both the chambers of heart were empty; paritoneum was ruptured and two liters of liquid were found; liver was ruptured and its weight was 1200 gram; spleen was ruptured; kidney of right side was ruptured; 16/13 teeths were present in the mouth; 300 gram of semi digested food was in the stomach; enzymes and gases were present in small intestine; in the large intestine fickle matter and gases were present; gall bladder was half filled and urinary blood was empty. P.W.-5 found following ante mortem injuries on the dead body of the deceased:- "(i) Contusion 5 cm x 3.0 cm on left arm elbow joint on deep dissection. There is fracture left humorous bone. (ii) L.W= 2x 1.0 c.m. on back of left arm 2.0 c.m above from left elbow joint x bone deep. (iii) Abraded contusion= 3 c.m. x 1.0 cm on back of left shoulder joint. (iv) Contusion swelling= 12 cm x 12.0 c.m on left lateral side of chest, 8.0 c.m. below from scapula lower end. (v) Contusion = 10 c.m. x 3.0 c.m. on left iliac chest. (vi) Contusion= 36 c.m. x 10.0 c.m. on lateral side of left buttock and left lateral side of thigh, 15.0 c.m. above from left knee joint." 12. P.W.-5 further opined that the cause of death of the deceased was ante mortem injuries, shock and hemorrhage. 13. During cross-examination, he stated that no wet or dry mud or remains of plants were found on the clothes of the deceased. He did not found any sign of plant chlorophyll on the clothes of the deceased because of suffering any dragging. In his further cross-examination, P.W.-5, stated that the injury number no. (vi) was on the left buttock and left thigh on the lateral side of deceased. Haemotoma 15 c.m. above CRLA No. 3213 of 2013 3 left ankle was present size 36 c.m. x 10 c.m., and this injury could not have been caused by beating by lathis. It could have been caused because of falling on hard surface or collusion with such surface. He further stated that injury no.4 on the lateral side of the left side of the chest was of size 12 c.m. x 12 c.m. which could have also been caused by falling on such surface or collusion with hard surface. It could not have been caused by assault from lathi-danda. He further stated that even after repeated assault by lathi-danda, the injury no.4 and 6 were not possible. Injury no.3 is abraded contusion which could have been caused after suffering rubbing from hard and uneven surface. The doctor further proved that fracture of frontal bone of the deceased was caused by making assault by hard and blunt object, but he did not found any external sign of attack on the head of the deceased. The frontal bone fracture was not depressed fracture. 14. In further cross-examination, P.W.-5, stated that in sealed bundle of clothes of deceased; one pant; one torn shirt; one torn blue color vest; torn and tattered underwear and one torn jersey was found. In all these clothes mud was present on the clothes belonging to deceased, Tikam Singh, which he had got sealed after the post mortem of the dead body of the deceased. 15. P.W.-6, stated that he was officer in-charge of P.S.- Wajirganj on 22.03.2012, but investigation of this case was done by earlier in-charge of the P.S.- Nityanand Singh. He took the investigation from him and recorded the statements of the constables who took the dead body of the deceased and the statements of the inquest witnesses and submitted charge-sheet after concluding investigation. 16. P.W.-7, stated that after getting information of the incident, he went to the place of incident, got the inquest proceedings started and took the dead body from the field of Suraj Pal. After appointing the inquest witnesses got the dead body sealed and sent it for post mortem. 17. P.W.-8, stated that he got the investigation from Sub-inspector, Nityanand Singh, and got the site plan prepared, got accused persons arrested and tried to make recovery of the logs (danda), but it could not be recovered. 18. P.W.-9, stated that he took the dead body of the deceased to the post mortem house and after the post mortem, brought it back to the police station. 19. The accused persons in their statements recorded under section 313 Cr.P.C., denied the prosecution case and stated that F.I.R. has been lodged on the basis of false allegations and after getting fake medical report prepared. 20. The trial court found that the prosecution has proved its case beyond reasonable doubt against the accused and hence convicted and sentenced all the accused by its judgment and order dated 04.07.2013. Hence this appeal. CRLA No. 3213 of 2013 4 21. Learned Senior counsel for the appellant has submitted that the incident, as alleged by the prosecution, was not proved beyond reasonable doubt. He has submitted that the doctor has clearly stated that injury no.4 and 6 could not have been caused by even repeated blows of lathis. There was no external head injury found, but the doctor found frontal bone of the deceased fractured and left lung and spleen were torn. The defence case is that the deceased accidentally fell down inside the well wherein tube well was installed alongwith a pump. There were also iron stairs and nails of irons present in the well wall. The clothes of the deceased were found to be torn and only mud was found. No sign of any chlorophyll of plant, which could have proved that the incident was caused in agricultural field, was found in the clothes of the deceased. There was mud only, which was present in well. 22. P.W.-4 admitted that information was gave to his mama, Amar Singh and Naresh, of village, Bhagwantpur. He also informed his father-in-law, Rajpal, on mobile phone about the incident and, thereafter, the F.I.R. was lodged in the early morning after due planning and confabulations. 23. P.W.-2, admitted in his cross-examination that the tube well has been installed in the well at height of about 8 feet from the base of the well, which is 22 feet below from the mouth of the well with the help of girder fixed in the well. The motor has been installed thereon alongwith water lifting pump on the girder. The distance of the pump from the mouth of the well is 22 feet. There is a electric bulb outside the well. P.W.-2 further admitted that there is stair made inside the well for going inside the well. 24. It has further been submitted that by learned Senior counsel for the appellant that initially the number of persons who were sought to be implicated was not clear and in the original G.D., section 149 IPC was not mentioned, but it was later incorporated by different pen. This fact has been admitted by P.W.-4. P.W.-8 , did not found any bulb near the tube well of the deceased. He has further submitted that after the deceased died accidentally, for the whole night planning was done and F.I.R. was lodged in the morning at 06:30 a.m. P.W.-1 and P.W.-2 have stated in their statements before the court that P.W.-1 remained with dead body of his father alone in the field and sent his brother P.W.-2 to inform the family members, when in the F.I.R., it is stated that because of fear from the threatening given by the accused, he went alongwith his brother to his house in the night leaving dead body of his father in the field which is not natural conduct of P.W.-1. In case, he was afraid of the accused persons, whey he remained alone with the dead body of his father in the open field throughout the night, was not explained. He has further submitted that no one will leave dead body of his father lying in open field and not inform the police immediately when the police station was situated only 3 kilometer away. In site plan, the place of dead body of the deceased is mentioned as "Gate Shivala", but his dead body was found towards west drain in the field of Suraj Pal. He has submitted that it is a case of false implication CRLA No. 3213 of 2013 5 because of the family of the deceased, Tikam Singh and Hari Ram, being closely related and descending from a common ancestor, Gendan Lal. 25. Learned counsel for informant has vehemently opposed the submissions made by learned Senior Counsel for appellants and has submitted that both the P.W.-6 and P.W.-8 have supported the prosecution version. The first I.O./P.W.-8 admitted in his cross examination that there was water in the shivala field of deceased and the water was running in government drain as he found in his inspection. It shows that the tube well of the deceased was running in position and the deceased was irrigating his agricultural field on the alleged date and time of the occurrence. In view of above discussion the defence version is absolutely false and against the evidence on record. Trial court rightly discarded the defence version of the accused-appellants. P.W.- 2 has also stated in his statement that the accused persons had also beaten earlier his grandmother, his mother and mother of Kunwar Pal. The P.W.-2, Jagat Pal, is the step brother of informant, Kunwar Pal, born from earlier wife of deceased, who had died earlier. There was a motive of accused persons to commit murder of the deceased, as the accused persons had enmity with the deceased due to partition of property. The accused-appellants also admitted in their statements u/s 313 Cr.P.C. regarding the dispute of property between them. P.W.-1 and P.W.-2 are eye witnesses of the incident. The testimony of the witnesses is inconsistent. It is a settle legal proposition that the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. If the oral evidence is inconsistent, the medical evidence and oral evidence have any contradiction then the oral evidence shall be preferred to the medical evidence. The informant relies on the judgment of the Hon'ble Apex Court in the case of Rakesh and another versus State of M.P. AIR 2011 SC 558. 26. After hearing the rival submissions, this Court finds that the burden of proving the incident and the manner of its commission was on the prosecution. The prosecution case suffered from the following lacunas:- (i) The delay in F.I.R; as per P.W.-1 the incident took place on 12.03.2012 at 10:30 p.m., in the field of the deceased where he had gone to irrigate his mentha crops. The F.I.R. was lodged at 06:30 a.m., on the next day. The explanation for delay was that after causing fatal injuries to the deceased, father of P.W.-1 and P.W.-2, Tikam Singh, accused threatened them of life in case they inform anyone about the incident, and therefore, as per F.I.R., P.W.-1 and P.W.-2 left the dead body of their father in the field and went to their home. Later, P.W.-1 stated in his statement before court that he remained with the dead body of his father throughout night and sent his brother, P.W.- 2, to inform his family members about the incident. Therefore, the version in the F.I.R., and the statement of P.W.-1 are contradictory and the cause of delay in lodging of F.I.R. was not explained by P.W.-1. (ii) Non-explanation of the injury nos. 4 to 6, suffered by the deceased; P.W.-5, Dr. CRLA No. 3213 of 2013 6 R.S. Yadav, who conducted the post mortem of the dead body of the deceased deposed before the Court that the aforesaid injuries were of the dimension 36 cm x 10 cm on lateral side of left buttock and left thigh while injury no. 4 was on the lateral side of left chest of dimension 12 cm x 12 cm of the deceased and both the injuries cannot be caused by beating from lathi-danda or even after repeated blows from lathi- danda. He has further submitted that the injury nos. 2 and 3 could have been caused by friction from stone or iron rod. The deceased suffered all the injuries on only left side of his body which lends credence to the arguments made on behalf of the appellant that he fell in the well wherein motor and pump were installed on a girder below 22 feet from the mouth of the well and because of sudden fall from the height of 22 feet over the pump and the motor he suffered injuries on his head, chest, buttock and legs on the left side. If a person is beaten by five persons from all the sides, it is improbable that all the injuries shall be caused only on one side of the body and two of them viz., injury nos. (iv) to (vi) of big dimension may be caused from the blow of lathis-dandas only. (iii) The absence of any mark of rubbing over agricultural plant, grass, etc., on the clothes; In cross-examination, P.W.-5, the Autopsy Doctor, has admitted that there was only mud found on the clothes of the deceased and no sign of chlorophyll, etc., was found. The prosecution case was that the deceased was waylaid in agricultural field and beated by legs, fists and lathis-dandas. If the deceased was beaten in an agricultural field and dragged, there were bound to have been signs of rubbing on his clothes on the agricultural surface with presence of chlorophyll. The recovery of mud from his clothes proved that he fell down in the well accidentally and after he was taken out from the well his dead body was kept in the field. The signs of mud were there found on his clothes. In case he was dragged on the muddy surface having green plants or grass, the presence of color of green grass would have been found. (iv)The earlier internecine enmity; The parties were closely related and, therefore, there may have been element of dispute and jealousy involved in their relationship and this might have been caused false implication of the entire family of the accused in this case. (v) Ocular evidence will prevail over medical evidence;The argument of learned counsel for informant that where there is ocular evidence in the form of testimony of the witnesses, the medical evidence being inconsistent will not prevail. We find that in the judgment of Rakesh and another (Supra) relied upon the counsel for informant, the Apex Court has held in paragraph 9 that ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with medical evidence. It is only when medical evidence makes the ocular testimony improbable completely the ocular evidence may be disbelieved. In the present case the ocular evidence is completely belied by the medical evidence on record, and therefore, it is no believable and conviction of the accused on its basis cannot be sustained. The CRLA No. 3213 of 2013 7 injury report of P.W.-1, shows that all the injuries suffered by P.W.-1 on the right side of his body. All the injuries were of simple in nature, but how they were caused only on the right side of his body when there were 5 assailants, who are alleged to have caused merciless beating of P.W.-1 and his deceased father, Tilak Ram, has not been explained. 27. This Court finds that the injuries suffered by P.W.-1 were simple in nature while the injuries suffered by the deceased, Tilak Ram, were of fatal in nature. The enormous internal damage caused to the body of Tilak Ram, compared with simple injuries suffered by P.W.-1 creates doubt regarding the prosecution case. It was for the prosecution to explain the difference in the injuries of P.W.-1 and the deceased and also correct mode and manner of the incident which the prosecution failed to prove. 28. We are of the firm view that the prosecution has failed to prove its case beyond reasonable doubt. Hence, the judgment of the trial court is set aside. 29. The appellants are on bail. Their bail bonds and sureties are discharged. They need not to surrender in this case. 30. The criminal appeal is allowed. 31. Let the trial court record be returned to the trial court and this judgment be also notified to the trial court within 10 days. October 14, 2025 Abhishek CRLA No. 3213 of 2013 8 (Avnish Saxena,J.) (Siddharth,J.) Digitally signed by :- ABHISHEK YADAV High Court of Judicature at Allahabad Digitally signed by :- ABHISHEK YADAV High Court of Judicature at Allahabad