Allahabad High Court
Rachna vs State Of U.P. And 5 Others on 27 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:119239
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL U/S 372 CR.P.C. No. - 525 of 2023
Rachna
.....Appellant(s)
Versus
State Of U.P. And 5 Others
.....Respondent(s)
Counsel for Appellant(s)
:
Abhishek Mishra
Counsel for Respondent(s)
:
G.A., Pradeep Kumar Keshri
Court No. - 93
HON'BLE MRS. VANI RANJAN AGRAWAL, J.
The instant criminal appeal has been preferred against the judgment and order dated 11.08.2023 passed by the Additional District and Sessions Judge, Court No. 10, Aligarh, whereby opposite party nos. 2 to 6 were acquitted of the offence under Section 308 I.P.C. in Sessions Trial No. 2132 of 2022 (State of U.P. vs. Hotilal and Others), arising out of Case Crime No. 585 of 2021, under Sections 147, 323, 504 and 308 I.P.C., Police Station Khair, District Aligarh.
According to the prosecution, on 26.11.2021 at about 2:00 P.M., the informant was going outside the village to throw cow dung. At that time, Hotilal S/o Nanakchand, Rajkumar S/o Sardar Singh, Dharmendra S/o Nanak, Narendra S/o Mahaveer Singh, Sonu S/o Sardar Singh, along with several other villagers, whom she could identify if produced before her, were standing there. Upon seeing her, they started abusing her in filthy language and, when she objected to such behaviour, they started manhandling and assaulting her. Thereafter, when she returned home and narrated the entire incident, her husband went to the spot to protest and make inquiries. The accused persons also abused him and assaulted him mercilessly, causing serious injuries. Thereafter, he was admitted to the Government Hospital at Khair for treatment.
On the complaint lodged by the informant, the case was registered and investigation commenced for offences under Sections 147, 323 and 504 I.P.C. After investigation, the charge-sheet was initially submitted under Sections 147, 323 and 504 I.P.C. During the course of investigation, the injured was medically examined, wherein grievous injuries were found, and consequently Section 308 I.P.C. was added. Thereafter, the charge-sheet was submitted under Sections 147, 323, 504 and 308 I.P.C.
Charges were framed against the accused persons for offences under Sections 147, 323, 504 and 308 I.P.C., to which they pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined P.W.-1 Smt. Rachna (the complainant), P.W.-2 Ashok Kumar (the injured), P.W.-3 Vikesh Kumar, P.W.-4 Laxmi, P.W.-5 S.I. Amit Kumar, P.W.-6 Dr. Rahul Sharma, P.W.-7 Head Constable Manoj Tiwari and P.W.-8 Dr. Sanjeev Kumar Sharma.
The documentary evidence adduced included the written complaint (Ext. Ka-1), site plan (Ext. Ka-2), charge-sheet (Ext. Ka-3), medical report of Ashok Kumar (Ext. Ka-4), First Information Report (Ext. Ka-5), G.D. entry (Ext. Ka-6) and M.L.C. report (Ext. Ka-7).
In their statements recorded under Section 313 Cr.P.C., the accused persons stated that the incident was false and fabricated and that the injuries sustained by the victim were caused when he accidentally fell from the terrace after consuming liquor. They further stated that the informant had falsely implicated them in the present case.
Opportunity to lead defence evidence was accorded to the accused persons; however, no oral or documentary evidence was adduced by them.
P.W.-1, the informant, supported the prosecution version and stated that after the occurrence, with the assistance of police personnel, she took her husband from the police station to the Primary Health Centre, Khair. Due to his critical condition, he was referred from Khair Hospital to Malkhan Singh Hospital, Aligarh, where he remained under treatment for about one hour. However, since his condition continued to be serious, she shifted him to a private hospital, where he remained under treatment for about twenty days. She further stated that her husband regained consciousness only after fifteen days. The report of the incident was lodged on the following evening with the assistance of an acquaintance. She identified her thumb impression on the written report and proved the same as Ext. Ka-1.
P.W.-2 Ashok Kumar also made a statement to the same effect. He stated that on the date of the incident, the accused persons abused him and his wife in filthy language and also manhandled his wife. When he went to protest and make inquiries, the accused persons assaulted him mercilessly with lathis, sticks and an iron rod, causing serious injuries. He further stated that when his wife, mother Munni Devi, brother Vikesh and sister-in-law Laxmi came to rescue him, they too were assaulted by the accused persons. Due to the assault, he sustained injuries on his head, forehead, elbow and other parts of the body and became unconscious on the spot. Thereafter, his family members took him to the police station, and the police personnel took him to the Community Health Centre. He regained consciousness after fifteen days in the hospital. His treatment was carried out at Neurocare Trauma Centre situated on Ramghat Road, where he remained in the I.C.U. for six days. He further stated that the Investigating Officer recorded his statement in the hospital.
P.W.-3 Vikesh Kumar also corroborated the prosecution case and stated that upon hearing the alarm, he reached the spot and saw the five accused persons assaulting his brother and causing grievous injuries to him. He further stated that his brother remained hospitalised for several days for treatment.
P.W.-4 Laxmi, who is the wife of the elder brother of the injured, also stated that the accused persons assaulted her brother-in-law and caused grievous injuries to him, due to which he became unconscious on the spot. She stated that the accused persons were armed with lathis, sticks and an iron rod and assaulted him brutally. After assaulting him, the accused persons fled from the spot while extending threats to kill him. She further stated that the police personnel themselves took the injured to the hospital for treatment and that he remained under treatment in the hospital for several days and remained in a coma for about seven to eight days.
P.W.-5, the Investigating Officer, Sub-Inspector Amit Kumar, described the proceedings conducted during investigation and proved the charge-sheet (Ext. Ka-3) submitted after completion of investigation. He stated that on the basis of the written complaint submitted by the informant, Case Crime No. 585 of 2021 was registered. During investigation, on the basis of the medical report, the offence under Section 308 I.P.C. was also found proved against the accused persons and the charge-sheet was submitted accordingly.
P.W.-6, Dr. Rahul Sharma, stated that on 26.11.2021 he was posted at the Community Health Centre, Khair, where at about 4:15 P.M., injured Ashok Kumar was brought from Police Station Khair for medical examination. The following injuries were found on the body of the injured:
i. Contusion on the right side of the head, 7 cm above the right ear, measuring 6 x 4 cm.
ii. Contusion on the nose, 2 cm below the bridge of the nose, measuring 6 x 4 cm.
iii. Contusion on the backside of the right elbow, measuring 6 x 4 cm.
iv. Abrasion on the backside of the leg, measuring 2 x 1 cm.
Injury nos. 1 to 3 were kept under observation and X-ray was advised, whereas injury no. 4 was simple in nature. All the injuries were caused by hard and blunt objects.
P.W.-7 Head Constable Manoj Tiwari stated that he had prepared the chik F.I.R. and made the General Diary entry through computer on the basis of the written complaint regarding the incident. He proved the chik F.I.R. as Ext. Ka-5 and the carbon copy of the G.D. entry as Ext. Ka-6 by identifying his handwriting and signatures.
P.W.-8 Dr. Sanjeev Kumar Sharma stated that on 30.11.2021, Ashok Kumar was admitted to the hospital at about 01:40 A.M. in a semi-conscious condition. He proved the medico-legal certificate by identifying his signatures thereon, and the same was exhibited as Ext. Ka-7. He further stated that on 27.11.2021 at about 01:40 P.M., the patient was admitted to the hospital in a semi-conscious condition. Swelling was found on the right temporal bone, abrasion on the left side of the forehead, abrasion on the right elbow, a similar abrasion mark on the left side of the chest, and abrasion on the thumb of the left foot. He stated that the patient was admitted to the Emergency I.C.U. and remained admitted there for about 36 hours. Upon improvement, he was shifted to the General Ward.
P.W.-9 Amit Kumar, the Investigating Officer, stated that he had not personally sent the injured for medical examination. He further stated that he had obtained the medical reports from the Community Health Centre, Khair, as well as from a private hospital situated on Ramghat Road. However, he stated that he did not remember whether the patient had remained admitted in the hospital or not.
The witness further stated that at the time of examination, the C.T. scan of the patient had already been conducted outside the hospital and had been brought by the attendants. Prior to admission to this hospital, the patient had been treated at J.N. Medical College, where the C.T. scan had been performed. The C.T. scan revealed fracture of the right temporal bone and lateral wall of the right orbit.
The witness further stated that the injured Ashok Kumar was discharged from the hospital on 02.12.2021 in a stable condition with advice for further treatment and medicines for about seven to eight days. He remained hospitalised up to 02.12.2021.
The learned trial court, after hearing the arguments and considering the oral and documentary evidence on record, convicted the accused persons for offences under Sections 147, 323 and 504 I.P.C.; however, the offence under Section 308 I.P.C. was not found to be duly proved. By the impugned judgment, the trial court extended the benefit of Section 4 of the Probation of Offenders Act, 1958 and released the accused persons on probation for a period of three months.
Aggrieved by the judgment of the trial court, the complainant preferred the present appeal on the grounds that all the witnesses of fact had supported the prosecution case. The injured was treated at J.N. Medical College, where his N.C.C.T. head examination as well as ultrasound examination were conducted. It was further contended that the learned trial court failed to properly apply its judicial mind and discretion while appreciating the evidence on record and wrongly acquitted the accused persons of the offence under Section 308 I.P.C. It was also submitted that the judgment of the trial court is illegal, arbitrary, perverse and against the material evidence available on record.
Learned counsel appearing on behalf of respondent nos. 2 to 6 submitted that the judgment passed by the learned trial court is perfectly legal and justified. It was argued that the prosecution failed to prove the ingredients of the offence under Section 308 I.P.C. beyond reasonable doubt. The medical evidence as well as the statements of the witnesses do not establish any intention or knowledge on the part of the accused persons to commit culpable homicide. It was further submitted that the injuries sustained by the injured were simple in nature except those kept under observation, and no sufficient evidence was produced to show that the injuries were dangerous to life.
It was also contended that the learned trial court, after properly appreciating the oral and documentary evidence available on record, rightly came to the conclusion that the offence under Section 308 I.P.C. was not made out against the accused persons. Accordingly, the accused persons were convicted only under Sections 147, 323 and 504 I.P.C. and were granted the benefit of Section 4 of the Probation of Offenders Act, 1958. Therefore, no interference is called for by this Court in the impugned judgment and order passed by the trial court.
Having heard learned counsel for the applicant/victim, learned A.G.A. for the State, as well as learned counsel for the respondents, and upon careful perusal of the entire record, this Court proceeds to examine whether the findings recorded by the learned trial court require interference either on the question of conviction or on the question of sentence and consequential relief.
The grievance of the victim in the present appeal is that the evidence on record disclosed the commission of an offence punishable under Section 308 I.P.C., and not merely under Sections 147, 323 and 504 I.P.C., and that the benefit of Section 4 of the Probation of Offenders Act, 1958 was not warranted considering the gravity of the offence, resulting in failure of justice.
From the evidence available on record, it emerges that the injured sustained serious bodily injuries and remained admitted in the hospital. The medical evidence indicates that after the incident, the injured remained admitted in the Emergency I.C.U. for about six days and thereafter, upon improvement in condition, was shifted to the General Ward and remained under treatment for approximately seven to eight days before being discharged with advice for follow-up treatment.
It has been argued that although the X-ray report shows a linear undisplaced fracture of the mastoid part of the right temporal bone with haemomastoidum, as well as a linear undisplaced fracture of the lateral wall of the right orbit with pneumorbit, the trial court did not consider the gravity of the injuries and convicted the accused persons only under Section 323 I.P.C. However, a perusal of the evidence available on record reveals that the prosecution failed to formally prove the said fractures in accordance with law.
P.W.-8, Dr. Sanjeev Kumar Sharma, Senior Neurosurgeon, admitted that the X-ray had not been conducted in his hospital and that the patient had arrived with the X-ray already conducted elsewhere.
The prosecution neither examined the radiologist/X-ray technician nor proved the source or authenticity of the X-ray plate and report. There is also no clear evidentiary material conclusively establishing that the X-ray report corresponded to the injured concerned.
In criminal jurisprudence, where enhancement of conviction to a more serious offence is sought, the prosecution evidence must satisfy the standard of proof beyond reasonable doubt. The existence of a fracture cannot be presumed merely because an X-ray report is placed on record unless foundational evidence proving its authorship and connection with the injured is duly established.
In State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254, the Hon'ble Apex Court reiterated that criminal findings must rest upon legally admissible and duly proved evidence, and suspicion, however strong, cannot substitute proof.
Similarly, in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the Hon'ble Apex Court emphasised that a criminal court cannot fill gaps in the prosecution case through conjectures and surmises.
Applying the aforesaid principles, this Court finds no legal infirmity in the conclusion of the learned trial court declining to convict the accused persons for the offence under Section 308 I.P.C. on the basis of an unproved radiological document. The essential ingredients of Section 308 I.P.C., namely intention or knowledge coupled with such overt acts as would make the offenders liable for culpable homicide not amounting to murder if death had ensued, have not been established beyond reasonable doubt. Consequently, the finding of guilt under Sections 147, 323 and 504 I.P.C. recorded by the trial court is affirmed.
However, the matter does not end here. This Court finds substance in the grievance of the victim that the order granting benefit under Section 4 of the Probation of Offenders Act, 1958 has not sufficiently balanced the interest of rehabilitation of the offenders with the rights of the victim. The injured suffered serious injuries requiring prolonged hospitalisation, including I.C.U. treatment and continued medical care. Yet, no compensation has been awarded, and the probation period of only three months appears disproportionately lenient in the facts of the case.
The object of probation is reformative and not merely exculpatory in nature. In Hari Kishan and State of Haryana v. Sukhbir Singh, (1988) 4 SCC 551, the Hon'ble Supreme Court observed that compensation to the victim should receive meaningful consideration while determining sentence.
Likewise, in Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770, it was held that victim compensation is an integral component of criminal justice administration, and courts are required to consider compensation in appropriate cases.
Accordingly, while maintaining the conviction of the accused persons under Sections 147, 323 and 504 I.P.C., and also maintaining the grant of benefit under Section 4 of the Probation of Offenders Act, 1958, this Court is of the considered view that the conditions imposed while extending the benefit of probation do not adequately address the nature of injuries suffered by the victim and the hardship undergone during treatment.
The record reflects that the injured remained admitted in the hospital for a considerable duration, including treatment in the Emergency I.C.U., and underwent prolonged medical care. The victim has not been granted any monetary relief to address the injuries and consequential suffering caused by the incident.
The object of probation is not only to reform the offenders but also to ensure that the victim receives reasonable restorative justice. Therefore, while maintaining the order granting benefit under Section 4 of the Probation of Offenders Act, 1958, modification of the conditions attached thereto is found necessary.
Accordingly, the appeal is partly allowed to the following extent:-
i. The conviction of the accused persons under Sections 147, 323 and 504 I.P.C., as recorded by the learned trial court, is affirmed.
ii. The benefit of Section 4 of the Probation of Offenders Act, 1958 shall continue; however, the probation period of three months awarded by the learned trial court is hereby enhanced to a period of two years.
iii. During the aforesaid period, each accused shall maintain peace and good conduct and shall furnish fresh personal bonds and sureties before the District Probation Officer concerned to the satisfaction of the trial court.
iv. In addition, in exercise of powers relating to victim compensation, and having regard to the injuries caused to the victim and the treatment undergone, each accused, i.e. respondent nos. 2 to 6, is directed to deposit a sum of Rs. 20,000/- as compensation before the trial court within a period of one month from the date of receipt of a certified copy of this order.
v. The total amount of Rs. 1,00,000/- so deposited by the accused persons shall be released in favour of the injured/victim as compensation after due verification. The said amount shall be treated as compensation payable in the nature of victim compensation, taking into consideration the injuries suffered and the loss endured by the victim.
vi. In case any accused fails to deposit the aforesaid amount within the stipulated period or violates any condition of probation, the trial court shall be at liberty to take appropriate action in accordance with law.
The trial court shall ensure compliance with the aforesaid directions and submit a compliance report in accordance with law.
Subject to the aforesaid modifications, the judgment and order passed by the learned trial court are affirmed.
Let a copy of this judgment be transmitted to the learned trial court forthwith for necessary compliance.
(Mrs. Vani Ranjan Agrawal,J.) April 27, 2026 Pravesh Mishra