# Ashish Batra v. State of U.P 60 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 4 ILRA 59
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-13
- **Bench:** Ashwani Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-batra-v-state-of-u-p-60-indian-law-reports-allahabad-series-43671
- **Pages:** 9

## Text

4 All. Ashish Batra Vs State Of U.P.
59
such a measure. On the contrary, Parliament in enacting the law has taken a robust view of the
matter by taking notice of the fact that a Member of Parliament must be required to travel together
with her or his spouse. Members of Parliament lead stressful lives. Parliament was entitled in its
legislative judgment to form the view that the effective discharge of duties as a Parliamentarian
would envisage the provision of facilities necessary for the efficient discharge of those duties.
Article 14 does not prohibit such a legislative assessment or the formation of a legislative judgment
of that nature. We may also note that clause (a) of sub-section (2) of Section 6B provides for travel
from the usual place of residence of the Member to Delhi, a journey which Parliament has
realistically assumed, would be required to be undertaken for the effective discharge of duties.

23. The provision for a family pension has been brought in by way of an amendment
introduced by the insertion of Section 8AC. Sub-section (1) of Section 8AC stipulates that on the
death of a member during the term of office, the spouse, if any, of such a member or a dependent
shall be paid, during the remaining period of life and so long as a dependent continues to be a
dependent, one-half of the pension to which a Member of Parliament would have been entitled, had
he retired. Under sub-section (2), family pension is also payable to the spouse or a dependent of a
person who was a member of either House, even prior to the commencement of the Amending Act
of 2006.

24. The introduction of a provision for the grant of a family pension is in the nature of a social
welfare measure intended to provide a sense of security to a spouse or dependent of a member of
Parliament who has died. The expression 'dependent' has been defined by Section 2 (aa). In our
view, the grant of family pension to the spouse or dependent of a former member of Parliament is a
matter of legislative policy. There is no constitutional prohibition on Parliament adopting such a
measure of social security for its former members. The nature and extent of payment are not such
as would implicate the vice of arbitrariness under Article 14.

25. For these reasons, we have come to the conclusion that the petition is lacking in merit. The
petition shall accordingly stand dismissed. However, there shall be no order as to costs.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.04.2016

BEFORE

THE HON'BLE ASHWANI KUMAR SINGH, J.

Criminal Appeal No.- 1934 Of 2003
&
Connected With Other Cases

Ashish Batra ... Appellant
Versus
State of U.P ...Respondent
60 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Smt. Nalini Jain, Arun Sinha, Siddhartha Sinha

Counsel for the Respondent:
Govt. Advocate

HELD:

1. The prosecution case rested mainly on the testimony of injured witness (P.W.2) and P.W.1, supported by
medical evidence.

2. The single firearm injury received by P.W.2 was muscle‐deep, on a non‐vital part of the body, and not
grievous.

3. Medical evidence explicitly stated that the injury was **not sufficient in the ordinary course of nature to
cause death**.

4. Therefore, the essential ingredients of **Section 307 IPC (attempt to murder)**-intention or knowledge
to cause death-were **not proved**.

5. Prosecution's allegation that the shot was fired at the chest was contradicted by medical evidence; the
injury was on the shoulder.

6. Thus, exaggeration by eyewitnesses prevented a safe conviction under Section 307 IPC.

7. The Court held that the appropriate offence proved against accused **Ashish Batra** was **Section 324
IPC (voluntarily causing hurt by dangerous weapon)**.

8. Regarding co‐accused **Vivek Singh Sengar** and **Mohneesh Hasan @ Moon**, no overt act was
attributed to them.

9. Both were unarmed and did not participate in the firing.

10. The allegation of **exhortation** attributed to Mohneesh was vague and uncorroborated.

11. The Supreme Court in *Jainul Haque v. State of Bihar* (1974) 3 SCC 543 held that exhortation is weak
evidence unless clear and specific.

12. The principle was reiterated in *Anand Mohan v. State of Bihar* (2012) 7 SCC 225.

13. Applying these precedents, exhortation evidence in the present case was insufficient to establish common
intention under Section 34 IPC.

14. No role whatsoever was proved against Vivek Singh.

15. The prosecution failed to prove common intention between co‐accused and the shooter.

16. The participation of Mohneesh and Vivek was doubtful; hence they were entitled to benefit of doubt.
4 All. Ashish Batra Vs State Of U.P.
61
17. The FIR version substantially matched medical findings except for the exaggerated claim about intention
to kill.

18. The injured witness's presence at the scene was unquestionable and corroborated.

19. However, exaggeration regarding location of injury and intention affected the legal conclusion.

20. The Court held that conviction of Ashish Batra under Section 307/34 IPC could not be sustained.

21. Conviction was modified to **Section 324 IPC**.

22. Considering the time elapsed and nature of offence, sentence for Ashish Batra was reduced to **period
already undergone**.

23. Following *Hari Krishnan v. Sukhbir Singh* (AIR 1988 SC 2127), a fine of **₹10,000** was imposed as
compensation to injured P.W.2.

24. Appeals of **Vivek Singh Sengar** and **Mohneesh Hasan @ Moon** were allowed; they were
**acquitted** of all charges.

25. Appeal of **Ashish Batra** was partly allowed; conviction altered; sentence modified accordingly.

Case Law Discussed:

1. Jainul Haque v. State of Bihar, (1974) 3 SCC 543.
2. Anand Mohan v. State of Bihar, (2012) 7 SCC 225.
3. Hari Krishnan v. Sukhbir Singh, AIR 1988 SC 2127.

(Delivered by Hon'ble Ashwani Kumar Singh, J.)

1. The above three criminal appeals under Section 374(2) Cr.P.C. have been preferred by
appellants against judgment and order dated 24/25.11.2003 passed by Additional Sessions
Judge/F.T.C.-V, Lucknow in S.T. No.356/01 arising out of case crime no.231/99, P.S.Ghazipur,
District Lucknow, convicting the appellants under Section 307/34 I.P.C. and sentencing them for a
period of seven years' rigorous imprisonment with a fine of Rs.1000/- each and in default of
payment of fine the appellants to undergo further rigorous imprisonment for one month.

2. Since all the above appeals arise from the same judgment and order, they were heard
together and are being decided by this common order.

3. Briefly stated, the prosecution case is that on 22.3.1999, informant Tej Bahadur Rai gave a
written report at Police Station Ghazipur(Ex. 'Ka'-1), wherein it was stated that his son, Akhilesh
Rai, who was studying in Central School, H.A.L., in Class XII, had some 'Maarpeet' with
Mohneesh Hasan @ Moon @ Lav Singh about 2-3 months back, while playing cricket, as such, he
bore enmity. Mohneesh Hasan @ Moon @ Lav Singh had formed a group of boys of his own
Mohalla and Lucknow University and used to threat Akhilesh Rai, with dire consequence, while
going to and coming back from School. Mohneesh Hasan @ Moon @ Lav Singh also got him
62 INDIAN LAW REPORTS ALLAHABAD SERIES
threatened by Rajendra Pratap Singh, who was a criminal, over telephone. It is further stated in the
F.I.R. that informant had engaged private guard for his own safety and for the safety of his family.

4. On 22.3.1999, at 10:00 p.m. in night informant and his son, after having dinner, were
walking in front of their house; from inside the park Mohneesh Hasan @ Moon @ Lav Singh,
Vivek Singh Sengar, Ashish Batra @ Kalee and Rajendra Pratap Singh @ Rajan jumped the railing
of the park; Mohneesh Hasan @ Moon @ Lav Singh exhorted; Vivek and Rajan caught hold of
Akhilesh Rai and Ashish Batra, with intention to kill Akhilesh Rai, fired from pistol, from a close
rage, on the left side of his chest. On alarm being raised by Akhilesh and the complainant,
informant's wife, his daughter and his younger son came out of the house; neighbours were also
attracted. The accused persons left informant's son and ran towards the park. The incident was
witnessed in the night and the assailants were identified.

5. On the basis of written report(Ex.'Ka'-1) first information report(Ex.'Ka'-5) was lodged;
entries(Ex.'Ka'-6) were made in general diary. The investigation was entrusted to S.I. Jairam Singh
which was subsequently handed over to S.I. Indraveer Singh.

6. On 22.3.1999 at 11:15 p.m., the injuries of injured Akhilesh Rai was examined by Dr.Sahab
Lal, Medical Officer, Bhaurao Devras Sanyukt Chikitsalaya, Mahanagar, Lucknow. The following
injury was found on the person of injured:-

Fire arm wound of entry 1 c.m. in diameter X muscle deep over front of lower part of left
shoulder; blackening around the wound present; fresh bleeding present. Injury kept under
observation. Pulse 80 per minute; fully conscious. Above injury is fresh, caused by discharge from
the fire arm. The injury kept under observation; referred to Balrampur Hospital for X-ray of injury -
and further management and opinion.

7. The Radiologist at Balrampur Hospital X-rayed the shoulder of Akhilesh Rai on 23.3.1999.
Ex.'Ka'-8 is its report.

8. The injured was admitted at Emergency Ward, Balrampur Hospital by informant for
treatment on 23.3.1999 at 0:30 hours. The injured was referred to K.G.M.C. vide Ex.'Ka'-2. The
injured was admitted at Gandhi Memorial & Associated Hospitals, Lucknow on 5.4.1999 for the
treatment of the injuries of his left shoulder caused by fire arm. He was discharged on 14.4.1999
vide Ex.'Ka'- 9.

9. The X-ray plate of the injured dated 23.3.1999 is Ex.-1.

10. S.I. Jairam Singh, Investigating Officer prepared site plan Ex.'Ka'- 3 and on 27.3.1999
took blood-stained nylon vest of injured and prepared Ex.'Ka'-4. Further the statements of
complainant and witnesses were recorded under Section 161 Cr.P.C. and after completing the
investigation, charge sheet under Sections 307/504/34 I.P.C. was submitted. Special C.J.M.,
Lucknow vide order dated 2.3.2001 committed the case to the Court of Sessions. Charges were
4 All. Ashish Batra Vs State Of U.P.
63
framed under Section 307 read with Section 34 I.P.C. and Section 504 read with Section 34 I.P.C.
The accused denied the charges and offered to be tried.

11. The prosecution in order to prove the guilt of accused persons examined Tej Bahadur Rai,
P.W. 1; Akhilesh Rai, P.W.2; Dr. Sahab Lal, P.W.3; S.I. Jairam Singh I.O., P.W.4; Constable Ram
Lakhan Vaish, P.W. 5 and S.I. Indraveer Singh, I.O., P.W.6.

12. The statements of accused were recorded under Section 313 Cr.P.C.; they had stated that
due to enmity they are being falsely prosecuted and they have no concern with the incident.
Witnesses are of the family and are deposing because of some misunderstanding; they are innocent.
The appellants did not lead any evidence in their defence.

13. The learned trial court, after considering the evidence, found the appellants guilty of the
offence under Section 307 read with Section 34 I.P.C. and sentenced them as stated above.

14. Heard learned counsel for the appellants appearing in the respective appeals, the learned
State Counsel and perused the record.

15. The appellants have challenged the conviction and sentence mainly on two grounds:-
firstly, that no offence under Section 307 I.P.C. is made out and, at the most, the case would fall in
the ambit of Section 324 I.P.C.; and secondly, that appellants Mohneesh Hasan @ Moon @ Lav
Singh and Vivek Singh Sengar have not participated in the crime and have been falsely implicated.

16. This Court would firstly deal with the evidence on record in the light as to whether a case
under Section 307 I.P.C. is made out or the case would fall in the ambit of Section 324 I.P.C.

17. In the present case, there are only two witnesses - (1) the informant Tej Bahadur Rai,
P.W.1 and the second, injured Akhilesh Rai, P.W.2. Both of them have deposed that on 22.3.1999
at about 10:00 in night, they were walking in front of their house after having dinner; from beside
park, appellant Mohneesh Hasan @ Moon @ Lav Singh, appellant Vivek Singh Sengar, appellant
Ashish Batra and Rajendra Pratap Singh jumped the railing of the park and appeared; Mohneesh
Hasan @ Moon @ Lav Singh instigated while Vivek Singh Sengar and Rajendra Pratap Singh
caught hold of Akhilesh Rai; Ashish Batra fired from a close range with pistol on the left side of
chest.

18. Akhilesh Rai, who is the star witness of the case, has not uttered a single word whether
appellant Ashish Batra fired with intention to kill. In the examination in chief, this witness
Akhilesh Rai(P.W.2) has stated as follows :-

'"..........IS KE BAAD MOHNEESH HASAN NE CHILLA KAR KAHA KI "MAARO
SAALON KO BACHNE NA PAAY". USKE KAHNE PAR VIVEK SENGAR VA RAJENDRA
SINGH NE MUJHE PAKAR LIYA, ASHISH BATRA @ KAALI NE REVOLVER NIKAAL
KAR MERE SEENE MEIN SATAYA AUR FIRE KAR DIYA....."
64 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Oral testimony of both prosecution witnesses P.W.1 Tej Bahadur Rai and P.W. 2 Akhilesh
Rai regarding the seat of injury also gets belied by the medical evidence. P.W. 2 injured Akhilesh
Rai and P.W. 1 Tej Bahadur Rai, father of the injured have categorically stated that fire was made
from very close range and was fired at the chest. The seat of injury according to the injury report
was over the front of lower part of left shoulder 9 c.m. below top of the shoulder. Thus, to state that
the fire was made on the chest is totally false.

20. On evaluating the evidence of the injured P.W. 2 Akhilesh Rai, it could be safely inferred
that appellant Ashish Batra had no intention to cause any such injury which could prove fatal for
life.

21. It is also very essential to throw light on the medical evidence to ascertain whether the
injury caused by appellant Ashish Batra was sufficient, in ordinary course of nature, to cause death.
It is necessary to ascertain the intention of appellant.

22. The evidence of Dr.Sahab Lal, Medical Officer, Bhaurao Devras Sanyukt Chikitsalaya,
Mahanagar, Lucknow would be of importance. He examined injured Akhilesh Rai, P.W.1 on
23.3.1999 at 11:15 p.m. and found following injury on his person:

Fire wound of entry 1 c.m. in diameter X muscle deep present over front of lower part of
left shoulder 9 c.m. below top of left shoulder. Blackening around the wound present, fresh
bleeding present, injury kept under observation, referred to Balrampur Hospital for X-Ray and
further management.

He stated in his cross-examination that - ......CHOTHIL HOSH MEIN THA AUR USKI
GENERAL CONDITION SANTOSH JANAK THEE.... CHOT GANBHIR NAHIN THEE.

CHOT SE BODY KE TISSUE DAMAGE NAHIN HUE THE. YAH CHOT NON-VITAL
PART OF THE BODY PAR THEE. IS SE JEEVAN KO KHATRA NAHIN THA."

23. The evidence of this witness also does not indicate that injured P.W.2 Akhilesh Rai
received any grievous injury. Thus, what has been elicited from the testimony of P.W. 3 Dr. Sahab
Lal is that the injury received by injured Akhilesh Rai P.W. 2 was not sufficient, in ordinary course,
to cause death and it was not on vital part of the body.

24. Learned trial court has not considered whether the offence would fall under Section 307
I.P.C. or would fall in the ambit of Section 324 I.P.C. The scrutiny of evidence and keeping in view
the discussions made above, this Court, safely arrives to the conclusion that conviction under
Section 307 I.P.C. is bad in law. On the facts and circumstance of the case, the offence committed
by appellant Ashish Batra would not travel beyond the purview of Section 324 I.P.C.

25. Now, we deal with the case of co-accused Mohneesh Hasan @ Moon @ Lav Singh and
co-accused Vivek Singh Sengar.
4 All. Ashish Batra Vs State Of U.P.
65

26. It has been vehemently contended that both these appellants were not present at the spot
and they have been implicated on account of their inimical terms with injured Akhilesh Rai, P.W.2,
as it comes out from their depositions that they have been falsely implicated and had no concern
with the incident and the witnesses were deposing because of some misunderstanding.

27. The evidence against appellant Mohneesh Hasan @ Moon @ Lav Singh is that he
instigated and it was he with whom some scuffle had taken place while playing cricket in the park.
It is submitted that the evidence of exhortation is considered to be a weak type of evidence.

28. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in
the case of Jainul Haque v. State of Bihar, reported in (1974) 3 SCC 543, at page 545 and
Hon'ble Apex Court has observed as under:

"The part attributed to the appellant according to the first information report is that he
had exhorted the other accused to assault Leyaquat, while according to the evidence adduced at
the trial the appellant actually joined in the assault on Leyaquat. The High Court did not accept the
prosecution evidence on the point that the appellant had joined in the assault on Leyaquat. All the
same, the High Court convicted the appellant because it was of the view that the appellant had
exhorted the other accused to assault Leyaquat. In the absence of any substantive and cogent
evidence adduced at the trial that the appellant had exhorted the other accused to assault
Leyaquat, the High Court, in our opinion, should not have convicted the appellant for the offence
under Section 323 read with Section 114 of the Indian Penal Code. The High Court has found the
evidence of the eyewitnesses to be unsatisfactory. It has also found that the eyewitness were prone
to exaggerate things and to involve as many accused as possible. In the circumstances it was, in
our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The
evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite
often a tendency to implicate some person, in addition to the actual assailant, by attributing to that
person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be
clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged
to have exhorted the actual assailant."

29. Reference on this point may also be made to the pronouncement of the Apex Court in the
case of Anand Mohan v. State of Bihar, (2012) 7 SCC 225 and Hon'ble Apex Court has observed
in para 69 as under:

"69. This Court has held in Jainul Haque v. State of Bihar (supra) that evidence of
exhortation is in the very nature of things a weak piece of evidence and there is often quite a
tendency to implicate some person in addition to the actual assailant by attributing to that person
an exhortation to the assailant to assault the victim and unless the evidence in this respect is a
clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged
to have exhorted the actual assailant."
66 INDIAN LAW REPORTS ALLAHABAD SERIES

30. Admittedly, appellant Mohneesh Hasan @ Moon @ Lav Singh was unarmed. Apart from
it, if he had managed some other person to serve his purpose of taking revenge, then there was
absolutely no purpose for appellant Mohneesh Hasan @ Moon @ Lav Singh to remain present at
the scene. There is no specific role of assault assigned to appellant Mohneesh Hasan @ Moon @
Lav Singh, he deserves to be granted benefit of doubt.

31. The role assigned to appellant Vivek Singh Sengar is that of catching hold. It is pertinent
to mention here again that co-accused Rajendra Prasad Singh, against whom there is similar
evidence right from the first information report to the evidence of the witnesses adduced in court,
has not been challaned nor has been summoned under Section 319 Cr.P.C. There is no clinching
and cogent evidence against appellant Vivek Singh Sengar.

32. Learned counsel states that he has been falsely implicated. P.W.2 in his cross-examination
has stated - VIVEK SINGH SE DIRECT KOI DUSHMANI NAHIN THEE".

33. One more important aspect of the matter which should be taken into consideration is that
the whole incident took place in a very cool manner. The role assigned to appellant Vivek Singh
Sengar is of catching hold but there is no evidence that the injured tried to free himself or P.W. 1
Tej Bahadur Rai, father of the injured tried to intervene or save injured Akhilesh Rai. It creates
doubt the way the incident took place. The case is of single injury - one would have made fire and
run away from the place of occurrence. The incident is of night and at the place where, usually,
people do not move on the road at that time. The participation of accused Vivek Singh Sengar is
also not proved beyond reasonable doubt. He also deserves to be granted benefit of doubt.

34. It is the duty of the courts to award proper sentence, having regard to the nature of
evidence. As already discussed above and having drawn the conclusion, the case of appellant
Ashish Batra is covered by Section 324 I.P.C.

35. Learned counsel for the appellant humbly prayed that, to meet ends of justice, it would be
safe and proper to award appellant Ashish Batra the sentence already undergone by him. It is
submitted that to send appellant Ashish Batra again to jail, he being a young man aged about 37
years and would be earning livelihood for his family, would ruin his family. Appellant Ashish
Batra, at the initial stage, was arrested on 23.3.1999 and was granted bail on 14.5.1999; he was
again sent to jail on the date of judgment, i.e. 24.11.2003 and was bailed out vide order dated
8.12.2003, i.e. in total, he remained behind bars for two months and five days. Learned counsel
contends that, to meet ends of justice, this Court may award reasonable compensation to injured
Akhilesh Rai.

36. Learned Additional Sessions Judge has omitted to award compensation of any of the
amount, whatsoever. The, learned Additional Sessions Judge has overlooked the law laid down by
Hon'ble the Supreme Court in Hari Krishnan and the State of Haryana v. Sukbir Singh and
others reported in AIR 1988 SC 2127, wherein it has held that power of imposing fine is intended
to do something to reassure the victim that he or she is not forgotten in the criminal justice system.
4 All. Ram Chandra Singh Vs State Bank Of Inida & Ors.
67
It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is to
some extent a constructive approach to crime and a step forward in criminal justice system. It is because of
this, that, it was recommended that all criminal courts should exercise this power liberally so as to meet the
ends of justice, by cautioning that the amount of compensation to be awarded must be reasonable.

37. In view of the facts and circumstances of the case and the law discussed above, I find that the case
against appellant Mohneesh Hasan @ Moon @ Lav Singh and appellant Vivek Singh Sengar is not proved
beyond reasonable doubt. Accordingly, they are given the benefit of doubt and acquitted of their charges.

38. The case against appellant Ashish Batra is proved under Section 324 I.P.C. but in the facts and
circumstance and also in view of the discussions made above, he may be sentenced with the period already
undergone by him in this case and also with fine of Rs.10,000/- with default stipulation of six months'
additional imprisonment.

39. In the result, Criminal appeals numbered 1903 of 2003 and 1884 of 2003 are hereby allowed and
appellants Vivek Singh Sengar and Mohneesh Hasan @ Moon @ Lav Singh are hereby acquitted of the
charges levelled against them. Appellants Vivek Singh Sengar and Mohneesh Hasan @ Moon @ Lav Singh
are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.

40. Criminal Appeal No.1934 of 2003 is hereby partly allowed and conviction and sentence of
appellant Ashish Batra is hereby converted under Section 324 I.P.C. and he is sentenced with the period of
detention already undergone by him in this case and also with fine of Rs.10,000/- with default stipulation of
six months additional imprisonment. Appellant Ashish Batra shall pay the fine within sixty days from the
date of receipt of record by the learned trial court, which shall, in turn pay the amount, so deposited, as
compensation to injured Akhilesh Rai, without delay. If any amount has been deposited earlier as fine before
the learned trial court, the same shall be adjusted by the trial court in the fine imposed by this Court.

41. The office is directed to send the lower court record along with copy of the judgment to the learned
trial court without delay to ensure compliance.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.04.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Writ Petition/Service Single No.- 2200 Of 2003

Ram Chandra Singh ...Petitioner
Versus
State Bank Of India & Ors. ...Opposite Parties