# Bare Babu & others v. State of U.P

- **Citation:** (2012) 3 ILRA 1537
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-11-06
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bare-babu-others-v-state-of-u-p-42355
- **Pages:** 9

## Headnote

section 307/149 I.P.C.-injury caused
relating to watering agricultural field-no
cut injury of sharp weapon-fire injury
inspite of licensed gun-no prosecution
case regarding use of Pharsa-no damage
on vital part of body-no element of
previous
enmity-No
allegation
of
repeated blows-in absence of clinching
material with motive to commit or
attempt to commit murder-out of 3 eye
witness two never came forward to
support prosecution story-considering 33
years pending trial and appeal-have
developed
cordial
relations-conviction
upheld
with
modification
of
their
sentences-converted
to
the
period
undergone with fine of Rs. 5000/-on
each-other appellants namely Ramkesh
and Dhirendra-their participation and
presence
being
doubtful-entitled
for
acquittal-appeal partly allowed.

Held: Para-25

They have also been inside gaol for
sometime and have been under the
Democles Sword for about 33 years of
pending trial and appeal. Accordingly the
1538 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
appellants,
other
than
Ramdhani
(deceased), Ramkesh S/o Shiv Dularey
(wrongly described in the memo of
appeal as Rakesh appellant no. 8) and
Dhirendra, are to be dealt with a lenient
view on sentencing even though they
have been found guilty for committing
an offence punishable under Sections
323, 324 readwith Section 149 IPC.
Reference can be had for support from
the decisions in the case of State of U.P.
Vs. Ram Chand reported in 2005 (51)
ACC Pg. 870 and Sukhram Vs. State of
U.P. reported in 2010 (68) ACC Pg. 584.
Their conviction is therefore accordingly
upheld with the modification in their
sentences with stand converted to the
period undergone coupled with a fine of
Rs. 5000/- each on all the convicted
appellants. In the event of failure to
deposit they shall undergo 3 months
rigorous imprisonment in lieu thereof.
Case Law discussed:
2012 (78) ACC 343; 2010 (69) ACC 454
(Supreme Court); 1994 SCC (Criminal) 275;
2009 (17) SCC Pg. 280; 2008 (15) SCC pg.
753; AIR 1965 SC pg. 843; 2012 (3) SCC 221;
2010 (8) SCC 407; 1995 (5) SCC pg.602; 1990
Cr.L.J. pg. 2531 (para 28); 2008 (7) SCC pg.
550; 2005 (51) ACC pg. 870; 2010 (68) ACC
pg. 584

## Text

3 All] Bare Babu & others V. State of U.P.
1537
dispute/claim. Further, the person who is
not diligent in getting the relief for him/her
by acting within time is stopped from
seeking the relief against any person as he
has given up his right in the said dispute.

7. All in all the purpose of the
Limitation Law is that the Court could not
help the person who after knowledge that
he has suffered a legal injury kept sleeping
over his right and never approached the
Court for the redressal of his grievances
within an appropriate period of time.

8. Hon'ble the Apex Court in the case
of Cicily Kallarackal Vs. Vehicle Factory
(2012) 8 Supreme Court Cases, 524 after
placing reliance on its earlier judgment
passed in the case of Anshul Agarwal Vs.
Noida (2011) 14 SCC 578 held that if the
delay is not properly explained while filing
a petition/ matter rather there is inordinate
unexplained delay in filing the same , that
matter should be dismissed on the said
ground and in that case there was delay of
1314 days in filing a petition, against an
order dated 16.9.2008, so Hon'ble the
Supreme Court has dismissed the same on
the ground that no sufficient reason has
been explained in filing the petition at a
belated stage .

9. In view of the said fact as in the
present case, there is no satisfactory
explanation has been given by the
petitioner in filing the present writ petition
at a belated stage , so liable to be dismissed
on the said ground.

10. For the foregoing reasons, the
writ petition is dismissed on the ground of
delay and latches.
---------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.11.2012

BEFORE
THE HON'BLE A.P. SAHI, J.

Criminal Appeal No. 2350 Of 1982

Bare Babu & others

...Appellants
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri W.H. Khan
Sri I.K. Chaturvedi

Counsel for the Respondents:
Sri M.B. Singh
Sri Sageer Ahmad
A.G.A.

Criminal Appeal-against conviction under
section 307/149 I.P.C.-injury caused
relating to watering agricultural field-no
cut injury of sharp weapon-fire injury
inspite of licensed gun-no prosecution
case regarding use of Pharsa-no damage
on vital part of body-no element of
previous
enmity-No
allegation
of
repeated blows-in absence of clinching
material with motive to commit or
attempt to commit murder-out of 3 eye
witness two never came forward to
support prosecution story-considering 33
years pending trial and appeal-have
developed
cordial
relations-conviction
upheld
with
modification
of
their
sentences-converted
to
the
period
undergone with fine of Rs. 5000/-on
each-other appellants namely Ramkesh
and Dhirendra-their participation and
presence
being
doubtful-entitled
for
acquittal-appeal partly allowed.

Held: Para-25

They have also been inside gaol for
sometime and have been under the
Democles Sword for about 33 years of
pending trial and appeal. Accordingly the
1538 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
appellants,
other
than
Ramdhani
(deceased), Ramkesh S/o Shiv Dularey
(wrongly described in the memo of
appeal as Rakesh appellant no. 8) and
Dhirendra, are to be dealt with a lenient
view on sentencing even though they
have been found guilty for committing
an offence punishable under Sections
323, 324 readwith Section 149 IPC.
Reference can be had for support from
the decisions in the case of State of U.P.
Vs. Ram Chand reported in 2005 (51)
ACC Pg. 870 and Sukhram Vs. State of
U.P. reported in 2010 (68) ACC Pg. 584.
Their conviction is therefore accordingly
upheld with the modification in their
sentences with stand converted to the
period undergone coupled with a fine of
Rs. 5000/- each on all the convicted
appellants. In the event of failure to
deposit they shall undergo 3 months
rigorous imprisonment in lieu thereof.
Case Law discussed:
2012 (78) ACC 343; 2010 (69) ACC 454
(Supreme Court); 1994 SCC (Criminal) 275;
2009 (17) SCC Pg. 280; 2008 (15) SCC pg.
753; AIR 1965 SC pg. 843; 2012 (3) SCC 221;
2010 (8) SCC 407; 1995 (5) SCC pg.602; 1990
Cr.L.J. pg. 2531 (para 28); 2008 (7) SCC pg.
550; 2005 (51) ACC pg. 870; 2010 (68) ACC
pg. 584

(Delivered by Hon'ble A.P. Sahi, J.)

1. This appeal on behalf of nine
appellants is against the conviction under
Sections 148, 307/149 of the appellant nos.
1, 3 and 4 coupled with under Section 323
read with 149 IPC. The appellant Nos. 2, 5,
6, 7, 8 and 9 have been convicted under
Sections 147/149/307 and 323/149 IPC
with their respective sentences without any
fine.

2. Sri I.K. Chaturvedi, learned
counsel for the appellants has informed
that this Court has already taken notice of
the death of appellant no. 4 Ramdhani on
the report of the Magistrate concerned and
therefore the appeal against the said
appellant stands abated.

3. He has also filed a supplementary
affidavit bringing on record the status of
the age and health of the other appellants
in order to establish their current status and
also to indicate the period of incarceration
undergone by these appellants, thirty three
years hence, that is at the time of the
institution of this appeal when the
appellants were let off on bail.

4. The incident is of 17th of January,
1979 at about 8.00 am in the morning
when it is alleged in the F.I.R. that
Kamlesh Narain the injured was watering
his agricultural fields from Tubewell No.
36 which is a Government Tubewell. It is
alleged by the first informant who is the
brother of the injured that it was the turn of
the informant to water his fields when at
about 8.00 am the appellants with a
premeditated and preplanned concerted
design came on the spot to divert the flow
of the water towards their own field upon
which the injured Kamlesh Narain urged
that he would be requiring the water only
for a couple of hours whereafter they could
utilize the same. On hearing this the
deceased appellant Ramdhani, who was
armed with a licensed gun called upon the
other assailants and exhorted them to
assault the injured as he is not listening to
him. On this the appellant no. 1 Bare Babu
assaulted the injured with a Spear
(Barchhi). The informant Bishnu Narain
alongwith his father Babu Ram rushed to
the spot and also received Lathi blows
alongwith the injured. On hearing the hue
and cry, the F.I.R. disclosed the arrival of
Kulpat and Satya Narain together with
Roop Narain who witnessed the scene
when the assailants ran away towards the
South of the village. The F.I.R. nominates
3 All] Bare Babu & others V. State of U.P.
1539
Bare Babu - appellant no. 1 to be armed
with a Spear (Barchhi), Shatrughan son of
Baijnath to be armed with a Pharsa, Ram
Dhani armed with a licensed gun and the
other assailant-appellants Onkar, Bhagwan
Din,
Ramkesh,
Krishna
Dutt
and
Dhirendra armed with Lathis who inflicted
the injuries. The F.I.R. was lodged on the
same day at about 10 am and the medical
report was prepared after the examination
of the injured Kamlesh Narain whose
injuries are as follows:-

M.I.

Black mole on right
side of face 2 cm. below the upper lip.

Examination of injuries:

(1) Lacerated would 7 cm. x 1 cm. x
Bone deep on left side of head 9 cm. above
the left ear. Direction oblique, Bleeding
present

(2) Penetrating would of entrance 1.5
cm x 0.5 cm. x 2 cm. on Dorsal side of left
hand 3 cm. above the root of index finger.
Margin clear cut. Direction posterior
anteriorly and slightly upward.

(III) Lacerated wound 1 cm. x 0.5
cm. x 0.8 cm. on Dorsal side of left hand 2
cm. above the root of middle finger.

(IV) Penetrating wound of entrance
0.3 cm. x 0.2 cm. x 0.4 cm. on left side of
abdomen, 6 cm. above and one O'clock
position from the umbilicus.

(V) Red contusion 4 cm. x 1 cm. on
back of left leg 5 cm. below the knee joint.

Opinion: All injuries are simple
except injuries No. (1) to (III) which are
kept under observation Advised X-ray
skull and left hand. Injury No. (I) (III) &
(V) are caused by blunt object. Injury No.
(II) & (IV) are caused by sharp pointed
weapon.

Duration: within 6 hours.

5. Bishnu Narain the informant was
also examined who was shown to have
received one injury of contusion on his left
forearm caused by a blunt object with an
advise of an X-Ray. Babu Ram the father
was also examined with two injuries of
contusion of a similar nature on his left
arm.

6. The appellants were committed to
the sessions court and they were charged
for having committed offences for which
they were tried and have been ultimately
convicted. The prosecution examined the
doctor who prepared the medical report as
P.W.-1., the informant Bishnu Narain as
P.W.-2, the injured Kamlesh as P.W.-3,
Roop Narain as P.W.-4, another doctor
P.C. Chandel as P.W. -5 and the Sub
Inspector of Police Satya Veer Singh as
P.W.-6. The accused got themselves
examined together with a defence witness
Garib Das D.W.-1. The trial court vide
judgment
dated
20.9.1982
upon
an
assessment of the evidence convicted the
appellants. Hence, this appeal.

7. Sri I.K. Chaturvedi has extensively
taken the court through the evidence on
record and he submits that there was no
such common intention or object of a
premeditated design as alleged by the
prosecution and the intention appears to
have accrued on the spur of the moment
relating to a dispute of watering of fields.
The carrying of a gun by Ramdhani was an
embellishment as there was no fire arm
injury. The allegation of the use of a sharp
edged weapon, namely, a Pharsa is
1540 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
uncorroborated by any medical report,
inasmuch as, there is no cut injury of such
a sharp weapon that could be used in its
natural course. He contends that there is no
internal injury on any vital part of the body
so as to construe the commission of an
offence to commit murder. He contends
that the recital in the F.I.R. and its
corroboration by the injured witness about
the intention is clearly at the best to teach a
lesson and not to commit any murder,
inasmuch as, there was neither any
intention nor any knowledge attributable
for the alleged use of the weapons in the
hands of the assailants. He therefore
submits that the number of accused has
been exaggerated and it is evident that
three of the accused Ramdhani, Ramkesh
and Dhirendra have been admitted by the
prosecution witnesses including the injured
witness that they did not assault the
injured.

8. He further contends that the
attempt of the prosecution to establish the
injury from a Pharsa on the basis of the
statement of the doctor is absolutely
misplaced, inasmuch as, injury no. 1 is
clearly caused by a hard and blunt object
and not by a sharp weapon. He submits
that the prosecution never came up with a
case that the Pharsa had been utilized from
its blunt side so as to cause such an injury
and therefore the statement of the doctor
during cross examination is of no avail in
the absence of any such case pleaded by
the prosecution. He further contends that
there is no supplementary medical report
of any grievous injury and in the absence
of any motive or prior dispute the entire
story has been trumpet up so as to
implicate the appellants. This exaggeration
is therefore writ large for which there is no
basis. He further contends that in view of
the facts disclosed in the supplementary
affidavit relating to the age of the
appellants and their status of health as well
as the fact that the appellants have waited
for more than 30 years for the disposal of
their
appeal
the
conviction
of
the
appellants should be set aside and they
deserve to be acquitted.

9. In the alternative he also contends
that in the event this court comes to the
conclusion that some of the appellants
deserve to be convicted then in that view
of the matter, at the most the injuries
should be treated to be minor and
superficial injuries and with no damage to
any vital part they should be treated to be
injuries punishable under section 323 IPC
or at the most 324 IPC. He further submits
that in view of the fact that appellants have
undergone incarceration for the periods as
referred to in the supplementary affidavit,
their sentences should be converted into
fine and the appeal be disposed of
accordingly.

10. In support of his submissions Sri
Chaturvedi has relied on the judgment of a
learned Single Judge of this Court in the
case of Ganesh and another Vs. State of
U.P. reported in 2012 (78) ACC 343 and
the judgment of the apex court in the case
of Neelam Bahal and another Vs. State
of Uttarakhand reported in 2010 (69)
ACC 454 (Supreme Court).

11. In order to understand the impact
of the alleged injury of Pharsa as claimed
by the prosecution, Sri Chaturvedi has
relied on paragraph 8 of the judgment in
the case of CH.Madhusudana Reddy and
others Vs. State of A.P. reported in 1994
SCC (Criminal) 275. He therefore
contends that in view of the aforesaid
background the appeal be allowed and the
conviction be set aside.
3 All] Bare Babu & others V. State of U.P.
1541

12. Learned AGA on behalf of the
State has however urged that the injury that
was aimed at the abdomen was prevented
by resisting the thrust of the Spear
(Barchhi) by the hand of the injured. He
contends that the injury was clearly
attempted to cause something fatal as all
the assailants had come prepared and
armed to assault the injured. They had not
come to simply and forcibly divert the
course of the water channel but they
clearly intended to do something heinous.
The intention has to be therefore gathered
from the manner in which the assailants
arrived with full preparation and the same
should not be underestimated to be an act
of sudden provocation. Reliance is placed
on the decision of State of M.P. Vs.
Kedar Yadav reported in 2009 (17) SCC
Pg. 280. The injury caused on the head
was by a "Pharsa", but by its converse side,
namely the blunt side of it as suggested in
the testimony of the medical examiner.
The minor error of description of a
"Barchhi"
and
"Ballam"
has
been
explained by the injured himself in his
deposition and as such no capital can be
made out of it.

13. The incident being one of broad
day light, there is no mistake of identity
and the defence has not provided any
evidence to the contrary so as to disbelieve
the prosecution version. It is urged that
even if a couple of the accused have not
inflicted any actual injuries or have not
assaulted, still their presence cannot be
doubted and they being accomplices, are
entitled to receive the same penalty as their
companions.

14. Having heard learned counsel for
either side and having perused the records,
the first issue to my mind that deserves
attention is the motive part and the
intention to commit the offence for a
common object and with knowledge. The
principles on this issue that are to be
applied are dealt with in the decision of
Kesar Singh Vs. State of Haryana
reported in 2008 (15) SCC Pg. 753.
Learned AGA is however right in his
submissions that so far as an offence under
Section 307 IPC is concerned the law on
the subject for gathering intention, the seat
and nature of the injury are not the final
components, has been dealt with in the
case of Sarju Prasad Vs. State of Bihar
reported in AIR 1965 SC Pg. 843 as
reiterated and followed in State of M.P.
Vs. Kedar Yadav (supra). What is intention
and how it is to be understood in
distinction
to
knowledge
has
been
explained in Kesar Singh's case (supra).
Reference can be had to the decisions in
the case of Roy Fernandes Vs. State of
Goa reported in 2012 (3) SCC 221 and
Virendra Singh Vs. State of Madhya
Pradesh reported in 2010 (8) SCC 407.

15. In the light of the same, the
incident in the present case has to be
assessed. There is no element of previous
enmity. The only immediate cause is a
dispute over watering of fields. There is no
prior incident either preceding the incident
recently
or
remotely.
There
is
no
explanation by the prosecution as to why
the most lethal weapon, as alleged to be
available on the spot in the hands of
Ramdhani, namely a gun, was not utilised
actually to cause any injury if the intent
was to commit murder. The dimension of
the alleged sharp-pointed weapon is
negligible and no repeated blows are
alleged. The prosecution never came up
with a suggestion to strike a blow on the
head of the injured by the converse side of
"Pharsa". The
appellants
counsel
is
therefore right in placing reliance on the
1542 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
decision of CH. Madhusudana Reddy
(supra). There is no damage to any vital
part nor any internal injury has been
reported. These objective assessments
coupled with a dispute over the change in
course of water channel in the morning,
therefore do not clearly establish a
preconcerted design to commit murder. To
make the offence punishable under Section
307 IPC the prosecution evidence on
record fails to pass the tests as observed in
Kesar Singh's case (supra).

16. The intention therefore was not to
commit a heinous offence like murder, but
there is no doubt that intention to cause
hurt is very much present. The medical
report does not contain any supplementary
material for e.g. an X-ray or ultrasound to
establish the existence of grievous hurt.
The injuries were described as simple
except injury No. 1 and 3 that did not yield
or reveal anything further on being kept
under observation.

17. There is a probability of a sudden
fight but at the same time the assemblage
with weapons is there. The resistance of
the injured to delay the change of course of
the water channel may have given rise to
an exchange of heated dialogues but there
is no evidence of any preceding altercation
between the parties so as to suggest an
existing ongoing perennial dispute. The
dialogue began by the injured suggesting
that the watering can be done by the
accused after a couple of hours. This may
have infuriated the accused who might
have rushed for their weapons to threaten
the injured or even to teach him a lesson.
No other motive was even suggested by
the prosecution for the court to gather a
pre-existing ulterior motive so as to raise a
probability of some preconcerted design.
In the absence of any clinching material,
the motive or intention to commit an
attempt to murder is not established. The
conversion of the intention into an overt
act is to be viewed in the aforesaid
background. From that angle, the court is
unable to find the material available on
record to travel upto the length so as to
describe the offence committed as an
attempt to commit murder.

18. Three witnesses, namely Kulpat,
Satya Narain and Roop Narain were
nominated in the F.I.R. but two of them
Kulpat and Satya Narain never came
forward to support the prosecution story.
Roop Narain stated that he was in his field
when the incident took place. At one place
he states that he witnessed the actual
assault and in the next sentence he states
that he arrived when a hue and cry was
raised. He then admits that the entire story
was narrated to him by injured Kailash.
This inconsistency in his statement was
sought to be improved during crossexamination but ultimately he admitted
that he was involved in several cases in a
contest with the accused. This existence of
litigation therefore clearly reflects on his
being an interested witness who was tried
to embellish the story of the prosecution on
the narration of Kamlesh. His actual
presence at the time of occurrence is
therefore doubtful which makes his ocular
testimony incredible.

19. Then comes the claim of the
appellants based on the testimony of DW-1
Garibdas, the tubewell operator who has
stated that the tubewell was out of order on
the date of incident, and therefore it is
urged by Sri Chaturvedi that the story of
watering of fields is absolutely imaginary.
I am not prepared to accept this testimony
as the relevant document of such faults
being recorded and communicated were
3 All] Bare Babu & others V. State of U.P.
1543
not produced by Garibdas. Apart from this
the site plan prepared by the I.O. does
indicate the watering of fields and the flow
of water-channel. Thus it cannot be said
that the dispute did not arise out of
watering of fields. To the contrary the
existence
of
sudden
provocation
contradicts this probability. Accordingly
no capital can be made out of this by the
defence.

20. Now coming to the statement of
the injured, the same has to be accepted as
in my opinion it is difficult to overcome
their testimony which is corroborated by
medical reports. If any exaggeration does
exist relating to Ramdhani, Ramkesh and
Dhirendra, the same can be discarded, but
their entire testimony cannot be shrugged
off as the incident is of daylight and
appears to have occurred with the active
participation of at least the appellants,
except Ramkesh and Dhirendra whose
presence is doubtful. The law is explained
clearly in the case of Bharwad Jakshibhai
Nagribhai Vs. State of Gujarat reported
in 1995 (5) SCC Pg. 602 which affirms
the principles as laid down by the High
Court in the judgment reported in 1990
Cr.L.J. Pg. 2531 (Para 28).

21. That having been established the
nature of the injuries do definitely conform
to the ingredients of Sections 323 and 324
IPC. They have been proved to have been
inflicted due to the assault as alleged.
Consequently, except the appellant No. 8
Ramkesh S/o Shiv Dularey (wrongly spelt
as Rakesh) and appellant no. 9 Dhirendra,
are held guilty of having caused injury to
the victims and are therefore liable to be
sentenced.

22. Accordingly all the appellants
except
Ramdhani
(since
deceased),
Ramkesh and Dhirendra are found guilty
of having caused hurt to victims as defined
and punishable under Sections 323, 324
IPC read with Section 149 IPC, and not
under Section 307 IPC.

23. The issue of sentencing still
remains to be considered. The principles as
discussed in the judgment of State of
Punjab Vs. Prem Sagar reported in 2008
(7) SCC Pg. 550, if taken notice of, will
make the task easier. Learned counsel for
the appellants has invited the attention of
the Court to the judgment of this Court in
the case of Ganesh (supra) and that of the
Apex Court in the case of Neelam Bahal
(supra). In my opinion the nature of the
allegations
against
Bare
Babu
and
Shatrughan, who are stated to be armed
with sharp edge weapons, be assessed from
that point of view. The dimension of the
injuries said to have been caused by a
"Barchhi" by Bare Babu has been
delineated hereinabove and they resemble
a similarity as in the case of Neelam Bahal
(supra). The injury by an alleged knock by
the reverse side of a "Pharsa" carried by
Shatrughan was not the case pleaded by
the prosecution at all. This doubt therefore
is not removed and the learned counsel has
rightly placed reliance on the case of CH.
Madhusudana Reddy (supra). The injuries
of Lathi are all simple in nature.

24. It is here that the facts brought
forth in the supplementary affidavit
deserve to be noticed. It is stated that
Onkar is not in a sound state of mind. The
others are aged enough and the relevant
paras 4, 5, 6, 7, 8 and 9 are quoted
hereinunder:-

4.That
amongst
the
aforesaid
Appellants,
one
of
the
appellants,
Ramdhani has died during pendency of
1544 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
trial whereas the appellant Onkar is man of
unsound mind who is detained in solitary
room in his house and his behaviour
towards the public spite of the treatment by
the expert doctors, he could not be cured.

5.That the appellant, Krishna Dutt is
presently aged about 67 years whereas
appellant, Bare Babu who is elder brother
of appellant, Krishna Dutt, is presently
aged about 75 years. Appellants, Bhagwan
Din, Shatrughan, Raghubir Prasad and
Onkar are presently aged about 69 years,
64 years, 94 years and 66 years
respectively. The Photocopies of the
Identity
Cards
of
Bhagwan
Din,
Shatrughan, Raghubir Prasad, Krishna
Kumar @ Bare Babu, and Krishna Dutt are
being filed herewith and marked as
Annexure No. SA1 to this Supplementary
Affidavit.

6.That appellant, Bare Babu is elder
about 8 years from his younger brother
Krishna Dutt whose real name is Krishna
Kumar.

7.That appellant, Raghubir Prasad is
father of the appellant, Krishna Dutt and
Bare Babu who is presently aged about 94
years and he is on his death bed who is not
able ever to walk and perform his routine
work.

8.That the appellants and complainant
as well as injured witnesses are relating to
same family and presently after lapse of
considerable time, they have developed
cordial relations and since the date of
incident till yet not other incident took
place between the parties either civil or
criminal in nature and both the families are
residing peacefully having no grievance
against each other.

9.That the Appellants have never
challenged in past who are not previous
convicts and the present case is solitary
criminal case in which they have been
convicted."

25. They have also been inside gaol
for sometime and have been under the
Democles Sword for about 33 years of
pending trial and appeal. Accordingly the
appellants,
other
than
Ramdhani
(deceased), Ramkesh S/o Shiv Dularey
(wrongly described in the memo of appeal
as Rakesh appellant no. 8) and Dhirendra,
are to be dealt with a lenient view on
sentencing even though they have been
found guilty for committing an offence
punishable under Sections 323, 324
readwith Section 149 IPC. Reference can
be had for support from the decisions in
the case of State of U.P. Vs. Ram Chand
reported in 2005 (51) ACC Pg. 870 and
Sukhram Vs. State of U.P. reported in
2010 (68) ACC Pg. 584. Their conviction
is therefore accordingly upheld with the
modification in their sentences with stand
converted to the period undergone coupled
with a fine of Rs. 5000/- each on all the
convicted appellants. In the event of failure
to deposit they shall undergo 3 months
rigorous imprisonment in lieu thereof.

26. So far as Ramkesh and Dhirendra
are concerned their participation and
presence becomes doubtful as the evidence
against them is unconvincing and almost
uncertain. They appear to be victims of
exaggeration and embellishments that
remain uncorroborated. They are therefore
entitled for acquittal. Accordingly, the
appeal is partly allowed. The conviction of
the appellant no. 8 Ramkesh S/o Shiv
Dularey and appeallant no. 9 Dhirendra is
set aside. The sentences of the other
3 All] Jawla Engineering Pvt. Ltd. and others V. M/S Uflex limited
1545
appellants shall stand modified as ordered
hereinabove.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 2746 of 2012
(Matters under Article227)

Jawla Engineering Pvt. Ltd. And Others

 ...Petitioner
Versus
M/S Uflex Limited
 ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar

Counsel for the Respondents:
Sri Samit Gopal
Sri M.K. Gupta

Constitution
of
India,
Article
227readwith Order 43 Rule 1(r)-Appeal
against
order
granting
temporary
Injunction
ex-parte-either
can
be
challenged in appeal on to get ex-parte
Decree
set-a-side-writ
against-not
maintainable-in
view
of
Full
Bench
decision.

Held: Para-6

In view of the law laid down by the Full
Bench this writ petition is not maintain
able and is accordingly dismissed.
Case Law discussed:
AIR 1970 Allahabad 376; 1996 (27) ALR 149

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. This writ petition has been filed
for a direction to reject the plaint of the
original suit no.1529 of 2012 (M/s Uflex
Limited vs. Jawala Engineering Private
Limited and others) and further to set
aside the impugned ex-parte stay order
granted by the Civil Judge (Senior
Division) dated 23.11.2012 in the said
suit.

2. Sri M.K.Gupta and Sri Samit
Gopal have filed their appearance today
on behalf of the respondent and have
raised a preliminary objection that this
writ petition is not maintainable in view
of the provisions of Order 43 Rule 1(r)
C.P.C.

3. Sri Sunil Kumar, learned counsel
for the petitioner has raised a objection
that appeal under Oder 43 Rule 1(r) is not
maintainable.

4. Replying to this objection Sri
M.K.Gupta has placed a reliance on a Full
Bench decision of this Court reported in
AIR 1970 Allahabad 376 Zila Parishad
Budaun and others vs. Brhma Rishi
Sharma. The relevant portion of the Full
Bench is contained in paras 16 and 18 of
the judgement which reads as follows:-

"16. The language and the object of
Rule 1(r) of Order 43 and the scheme of
Rules 1 to 4 of Order 39 show that an
appeal also lies against the ex parte order
of injunction. As soon as an interim
injunction is issued and the party affected
thereby is apprised of it, he has two
remedies: (1) he can either get the ex
parte injunction order discharged or
varied or set aside appeal as provided for
under Order 43, Rule 1( r), or (2)
straightway file an appeal under Order
43, Rule 1 ( r) against the injunction
order passed under Rules 1 and 2 of
Order 39, C.P.C. It is not unusual to
provide for alternative remedies. For
instance, when an ex parte decree is
passed against a person, he has two