In a cross-case, the prosecution's failure to explain the injuries sustained by the accused creates a fatal lacuna in the prosecution's evidence. Such suppression of material facts and the true genesis of the occurrence entitles the accused to the benefit of doubt and acquittal.

JUDGMENT :

SANJIV KUMAR, J.

1. This criminal appeal has been preferred, under Section 374 (2) Cr.P.C., by appellants Shakar, Yusuf, Unus, Irfan and Manjar against the judgment and order dated 09.10.1984 passed by I^st Additional Sessions Judge, Ghaziabad in Session Trial No.143 of 1983, under Sections 147, 148, 302/149 and 307/149 Indian Penal Code (in short ‘I.P.C.’), Police Station Bhojpur, District Ghaziabad.

2. By the impugned judgment and order, the appellants, Shakar, Irfan and Manjar were held guilty and convicted and sentenced to undergo one year’s rigorous imprisonment for offence punishable under Section 147 I.P.C. appellants Unus and Yusuf were sentenced to undergo one year’s rigorous imprisonment for offence punishable under Section 148 I.P.C. all the five appellants were convicted and sentenced to undergo imprisonment for life for offence punishable under Section 302 read with Section 149 I.P.C. and all of them were further convicted and sentenced to undergo three years’ rigorous imprisonment each for the offence punishable under Section 307 read with Section 149 I.P.C. It was further directed that all the sentences shall run concurrently.

3. Feeling aggrieved, the present appeal has been filed by all the five convicts. During the pendency of this criminal appeal, appellant No.1, Shakar and appellant No.4 Irfan have died and the appeal against them stood abated vide order dated 03.08.2018. Therefore, the appeal has been heard in respect of the surviving appellants, Unus, Yusuf and Manjar.

4. Brief facts of the case are that the first informant, Kabir Ahmad submitted a written application (Tehrir) (Ext. Ka-1) at Police Station Bhojpur, District Ghaziabad on 24.04.1982, stating therein that few days ago there erupted a dispute between him and Shakar over raising a wall, due to which, Shakar had developed a grudge against him. On 24.04.1982 at about 7:00 p.m., while the informant Kabir Ahmad, Nasir, Yamin, his nephew, sister-in-law, Smt. Bano and grandson Matloob @ Kallwa were present in his house, Shakar, Yusuf, Unus, Irfan, Fayyaz and Manjar, all natives of his village, reached armed with lathi and farsa. They started hurling abuses and upon objection, assaulted them with lathi and farsa. Upon alarm, Abbas, Taki, Ibrahim, Mohd. Sharif and many persons came and saved them. The condition of injured Nasir and Kallwa was very critical and the informant also sustained fracture on his left wrist.

5. Upon this information, an FIR bearing Case Crime No. 51 of 1982, under Sections 147, 323, 504, 324, 325, and 307 I.P.C., was lodged at Police Station Bhojpur, District Ghaziabad, on 24.04.1982 at 9:15 p.m. The investigation commenced and the Investigating Officer reached the place of occurrence, recorded the statements of the informant and other witnesses, inspected the place of occurrence, and prepared the site plan (Ext. Ka-9). The injured were sent for medical examination. Kallwa, son of Nashir, subsequently died as a result of the injuries sustained by him. His inquest was conducted and the dead body was sent for post-mortem examination. In post-mortem examination, three ante-mortem injuries were found on the body and in the opinion of the doctor, the cause of death was shock and com