# Bhawani Prasad Pandey & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 8 ILRA 771
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-27
- **Case number:** Criminal Appeal No 45 of 1996
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhawani-prasad-pandey-ors-in-jail-v-state-of-u-p-47307
- **Pages:** 6

## Headnote

A. Indian Penal Code (45 of 1860) -
Section 149 - Common object - existence
of
common
object
before
the
commencement
of
the
fight
is
not
necessary - It is enough if the common
object is adopted by all the accused -
Common object could develop co-instanti
and being a question of fact it can also be
inferred and deduced from the facts and
circumstances of a case (Para 8)

Dispute was between complainant- Bhragunath
Pandey and accused persons - accused-persons
armed with lathi-danda and started altercation
with the complainant- Bhragunath Pandey and
his family members - Injured Sri Ram Pandey
intervened in the matter - Sri Ram Pandey took
the side of the complainant - On this, the
accused persons started to assault him with
lathi-danda - Held - accused adopted, common
object and assaulted Sri Ram Pandey with lathidanda in furtherance of the said common object
- Section 149 applicable (Para 8)
772 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Indian Penal Code (45 of 1860) -
Section 308 - Attempt to commit culpable
homicide - Proof - Necessary ingredient -
Intention - intention or knowledge on the
part of the accused to cause culpable
homicide is required to be proved (Para 9)

Ocular version & medical evidence corroborate
that injured Sri Ram Pandey suffered 14 injuries
- nature of the injuries confirms that injuries
caused by blows of lathi- danda - no reason to
disbelieve the oral statements of injured witness
and other eye witnesses - Although 14 injuries
caused, except injury no.3 all injuries simple in
nature - injury no.3 i.e. fracture of ulna bone of
right forearm is on the non-vital part of the
body - no statement in oral testimony of the
doctor that these injuries either individually or
collectively were dangerous to life - Conviction
under Section 308 IPC set aside - accused found
guilty for offence under Sections 147, 323/ 149
and 325/ 149 IPC (Para 10)

Allowed. (E-4)

List of Cases cited :

## Text

8 All. Bhawani Prasad Pandey & Ors. Vs. State of U.P.
771
of discretionary powers vested in it under
the
University
Ordinance.
If
the
considerations which weighed with the
Committee
in
relaxing
the
requisite
qualifications were valid, it would result
injustice to those who have been selected
and thereafter held that it is necessary to
emphasis and bring to the notice of the
University that the illegal practices in the
selection of candidates which have come to
light and which seem to be followed and
ultimately refused to interfere in the
selection made by the selection committee.

The ratio of judgment in the case of
Mrs. Rekha Chaturvedi (supra) is also
fully applicable to the present facts and
circumstances of the case. The petitioner was
selected by the selection committee on the
post of Part-time Teacher and continued to
discharge her duties on the said post and was
paid salary from the State Exchequer. Before
the enforcement of Rules, he acquired
requisite
qualification
and
after
due
consideration of the claim of the petitioner he
was absorbed in service as Lecturer in
Education, therefore after lapse of almost 22
years the appointment on the post of Lecturer
cannot be held to be illegal.

20. Considering in totality of facts
and circumstances of the case as well as the
law laid down by Hon'ble Supreme Court,
the order impugned dated 20.08.2020
passed by respondent no.2 being not
sustainable in law is set aside. The writ
petition succeeds and is hereby allowed.
However, the respondents are directed to
permit the petitioner to discharge her duties
on the post of Lecturer in Education
treating her absorbed Lecturer and to pay
her monthly salary month by month as and
when became due, inasmuch as arrears of
salary with effect from 20.8.2020 till date
within a period of three months from the
date of production of a certified copy of
this order..

21. No order as to costs.
----------
(2021)08ILR A771
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No 45 of 1996

Bhawani Prasad Pandey & Ors.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.K. Chaturvedi, Sri Ram Prakash Rai

Counsel for the Opposite Party:
G.A., Sri Rudra Kant Mishra

A. Indian Penal Code (45 of 1860) -
Section 149 - Common object - existence
of
common
object
before
the
commencement
of
the
fight
is
not
necessary - It is enough if the common
object is adopted by all the accused -
Common object could develop co-instanti
and being a question of fact it can also be
inferred and deduced from the facts and
circumstances of a case (Para 8)

Dispute was between complainant- Bhragunath
Pandey and accused persons - accused-persons
armed with lathi-danda and started altercation
with the complainant- Bhragunath Pandey and
his family members - Injured Sri Ram Pandey
intervened in the matter - Sri Ram Pandey took
the side of the complainant - On this, the
accused persons started to assault him with
lathi-danda - Held - accused adopted, common
object and assaulted Sri Ram Pandey with lathidanda in furtherance of the said common object
- Section 149 applicable (Para 8)
772 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Indian Penal Code (45 of 1860) -
Section 308 - Attempt to commit culpable
homicide - Proof - Necessary ingredient -
Intention - intention or knowledge on the
part of the accused to cause culpable
homicide is required to be proved (Para 9)

Ocular version & medical evidence corroborate
that injured Sri Ram Pandey suffered 14 injuries
- nature of the injuries confirms that injuries
caused by blows of lathi- danda - no reason to
disbelieve the oral statements of injured witness
and other eye witnesses - Although 14 injuries
caused, except injury no.3 all injuries simple in
nature - injury no.3 i.e. fracture of ulna bone of
right forearm is on the non-vital part of the
body - no statement in oral testimony of the
doctor that these injuries either individually or
collectively were dangerous to life - Conviction
under Section 308 IPC set aside - accused found
guilty for offence under Sections 147, 323/ 149
and 325/ 149 IPC (Para 10)

Allowed. (E-4)

List of Cases cited :

1. Shiv Ram Vs State 1998 Cri LJ 76

2. Amzad Ali Vs State (2003) 6 SCC 270

3. Bishan Singh & ors. Vs State AIR 2008 SC
131

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

 1. Heard Sri S.K Chaturvedi, learned
counsel for the appellants and Sri Rudra
Kant Mishra, learned . A.G.A assisted by
Sri S.B. Maurya appearing for State of U.P.

2. This criminal appeal has been filed
against the judgment and order dated
09.01.1996 passed by the Additional
Sessions Judge Gorakhpur in S.T. No. 240
of 1993 (State vs. Bhawani Prasad &
others) Case Crime No.341 of 1992, P.S.
Sahjanwa, District- Gorakhpur, convicting
all the appellants (accused) under Section
147 IPC and sentencing them to undergo
rigorous imprisonment for one years each
and convicting under section 308\149 IPC
and sentencing them to undergo rigorous
imprisonment for three years each. Both the
sentences have to run concurrently.

3. In brief, the facts are that the
complainant Bhragunath Pandey gave an
application dated 03.10.1992 at Police
Station- Sahjanwa, District Gorakhpur
alleging therein that today with his real
brother Pramod Kumar Pandey and mother
Savitri Devi, he went to his field to harvest
his paddy crop. At about 10:00 a.m.
Bhawani Prasad Pandey, Chunni Lal
Yadav, Nand Lal Yadav, Sudarshan Yadav
and Bhimal Yadav armed with lathi-danda
came at the field and started restraining
them from harvesting the crop complainant
party said that they have sown it so they
will harvest it. Meanwhile Sri Ram Pandey,
Jai Prakash Pandey and Subhash Pandey
also came there and said to Bhawani Prasad
Pandey and his companions that why they
are restraining from harvesting the crop,
Bhragunath Pandey has sown it so he will
harvest it. On this, all the above named
persons started to abuse, chased the
complainant and their companions to
assault them. On the exhortation of
Bhawani Prasad Pandey, all accused
persons started to beat Sri Ram Pandey
with lathi-danda due to which he suffered
injuries on his head, legs, back and chest
and he became unconscious. On the noise
and seeing the condition of Sri Ram
Pandey, the accused persons ran away from
the spot. Sri Ram Pandey was taken to the
hospital.

On the aforesaid application, a
case bearing case crime no.327/92 under
Section 147, 148, 323, 504, 308 IPC was
registered at Police Station- Sahjanwa,
8 All. Bhawani Prasad Pandey & Ors. Vs. State of U.P.
773
Gorakhpur. Injured Sri Ram Pandey was
medically
examined
and
put
under
treatment.
The
Investigating
Officer
visited the place of occurrence and
prepared the site plan, recorded the
statements of complainant, injured and
other witnesses and after completion of
investigation submitted the charge-sheet
against accused persons namely Bhawani
Prasad Pandey, Chunni Lal Yadav, Nand
Lal Yadav, Sudarshan Yadav and Bhimal
Yadav.

Learned trial court framed the
charges against the aforesaid accused
persons under Section 147, 308 read with
Sections 149 and 325 read with Sections
149 IPC. Accused persons denied the
charges and claimed for trial. The
prosecution produced seven witnesses.
Statements of the accused persons under
Section 313 Cr.P.C. was recorded in
which they denied the prosecution case
and further stated that they have been
falsely implicated due to enmity. No
evidence in defence produced by them.
The learned trial court, after hearing the
arguments by the impugned judgment,
has
convicted
all
the
accused
(appellants).

4. As per medical report, Ex. Ka.4
injured Sri Ram Pandey was medically
examined on 03.10.1992 at 12:45 p.m. at
District Hospital, Gorakhpur by the
emergency medical officer. The Doctor
has noted following injuries on his body:-

i) lacerated wound 3.5cm X
0.5cm into scalp deep on right side of head,
7cm above right ear, bleeding present

ii) Contusion 8cm X 4cm on outer
part of right forearm just below elbow joint
reddish

iii) Multiple contused swelling in
an area of 23cm X all around on right
forearm, injury kept under observation, XRay advised

iv) Traumatic swelling 6cm X
6cm on right chest around right nipple

v) Contusion 10cm X 2cm on
right upper back, reddish

vi) Contusion 12cm X 2cm on
right upper back, 5cm below injury no.5

vii) Contusion 8cm X 2cm on
lower back, reddish

viii) Contusion 12cm X 7cm on
right buttock, reddish

ix) Multiple contusion in area of
14 cm X 13cm on left buttuck

x) Contusion 13cm X 2cm on
inner and lower 1/3rd of thigh

xi)
Contusion
8cm
X
8cm
multiple, on left leg middle part

xii) Lacerated wound 6cm X 1cm
X bone deep in front of right leg upper part

xiii) Multiple abrasion 9cm X
1cm, front of right leg middle part, 1cm
below injury no.12.

xiv) Lacerated wound 2cm X 1cm,
left leg middle part.

In the opinion of the doctor, all
injuries except injury no.3 were simple in
nature, injury no.3 was kept under
observation. All injuries were caused by
hard and blunt objects and duration fresh. It
is also mentioned in the medico legal report
774 INDIAN LAW REPORTS ALLAHABAD SERIES
that the patient is unable to stand and move.
Admitted, ortho surgeon informed, police
informed.

This medical report has been
proved by Dr. Rama Shanker Misra (P.W.-
6) who has also stated that these injuries
could be caused on 03.10.1992 at 10:00
a.m. by lathi-danda.

Dr. R.A.L. Gupta P.W.3 in his
examination in chief has stated that on
05.10.1992, the X-Ray of injured Sri Ram
Pandey
was
conducted
under
his
supervision. In the X-Ray of left forearm
the fracture of ulna bone was detected. The
witness has proved the X-ray report
Ex.Ka.2 and X-Ray plate material Ex.1.

5. Bhragunath Pandey, P.W.1 is
informant and also eye witness. He has
fully corroborated the allegations made in
the FIR and have stated that at the time of
incident he alongwith his brother Pramod
Kumar Pandey and mother Savitri Devi
have gone to their field to harvest the
paddy crop and the accused persons namely
Bhawani Prasad Pandey, Chunni Lal
Yadav, Nand Lal Yadav, Sudarshan Yadav
and Bhimal Yadav armed with lathi-danda,
came there and started restraining them
from harvesting the crop. Meanwhile Jai
Prakash Pandey, Sri Ram Pandey and
Subhash Pandey also came there and said
to the accused persons that complainant has
sown the crop so they will harvest it, on
this accused persons started abusing them
and chased them to assault and brutally
beaten Sri Ram Pandey with lathi-danda,
resulting thereof he fell and became
unconscious. He suffered the injuries on the
head, back and chest, he was taken to
hospital and was admitted in the hospital
for treatment. Sri Ram Pandey (P.W.-2) is
the injured and most important witness, he
has also corroborated the prosecution case
and stated that the incident is of 03.10.1992
at about 10:00 a.m. he was going to look
his fields of Gram Bithaura then he saw
that near the paddy field of Bhragunath
Pandey, some altercation was going on
with Bhragunath Pandey, his brother
Pramod Pandey and his mother and
Bhawani Prasad, Chunni Lal, Nand Lal,
Sudarshan
and
Bhimal
Yadav
were
restraining
Bhragunath
Pandey
from
harvesting the field. The witness said that
Bhragunath Pandey has sown it so he will
harvest it. On this the accused-persons
started to abuse and chased to beat. On
exhortation of Bhawani Prasad all accused
persons started to assault him with lathidanda. He suffered injuries and became
unconscious
and
when
he
regain
consciousness then he was told that he was
being taken to hospital. Subhash Pandey
and Jai Prakash Pandey also witnessed the
occurrence. He was admitted in the District
hospital,
Gorakhpur
where
he
was
medically examined and X-Ray was also
conducted. P.W.-4 Subhash Pandey is also
an eye witness and this witness has also
fully corroborated the prosecution version
and supported the statement of other
witnesses P.W.-1 Bhragunath Pandey and
P.W.-2 Sri Ram Pandey. All these
witnesses have been cross-examined at
length by the defence but there is no major
contradiction or discrepancy in their oral
testimony. The ocular version also got
support from the medical evidence on
record which corroborate that injured Sri
Ram Pandey has suffered 14 injuries on
various parts of his body including multiple
contusions. These injuries have been
caused on the head, back, hand and chest.
His X-ray report confirms that he has
suffered one fracture of right ulna bone.
The nature of the injuries itself confirms
that these injuries have been caused by
8 All. Bhawani Prasad Pandey & Ors. Vs. State of U.P.
775
blows of lathi- danda, it cannot be self
inflicted or suffered in any other manner.
So there is no reason to disbelieve the oral
statements of injured witness and other eye
witnesses.

6. The remaining witnesses are formal
in nature, P.W.5 Jai Shankar Prasad the
Investigating Officer has proved the steps
taken by him during investigation and the
papers prepared by him including the site
plan and the charge-sheet. P.W.7 Head
Constable Diwakar Mani Tiwari is the
chick and G.D. writer who has proved the
papers as exhibits Ka.5 and Ka.6.

7. The FIR has been promptly lodged
and there is no confusion or discrepancy in
the date, time and place of occurrence.

8. Learned counsel for the appellant
contended that from prosecution case, it is
clear that dispute was between complainant-
Bhragunath Pandey and accused persons, so
there was no reason to assault Sri Ram
Pandey as he was not concerned with the
subject matter and Section 149 IPC is not
attracted. There was no common object to
assault Sri Ram Pandey. I am not agreed with
this contention of learned counsel for the
appellants. As per prosecution version,
accused-persons armed with lathi-danda
came on the spot and started altercation with
the complainant- Bhragunath Pandey and his
family members. Injured Sri Ram Pandey and
two other persons intervened in the matter
and Sri Ram Pandey took the side of the
complainant. On this, the accused persons
started to assault him with lathi-danda.

It has been held in the case of
Shiv Ram vs. State, 1998 Cri LJ 76 (SC)
by the Hon'ble Apex Court that, "the
existence of common object before the
commencement
of
the
fight
is
not
necessary. It is enough if the common
object is adopted by all the accused."

It has been further held in the
case of Amzad Ali vs. State, (2003) 6 SCC
270 that, "it is incorrect to contend that
prior formation of an unlawful assembly
with a common object is a must and should
have been found as a condition precedent
before roping the accused within the fold of
Section 149. Common object could develop
co-instanti and being a question of fact it
can also be inferred and deduced from the
facts and circumstances of a case."

Applying
the
aforesaid
proposition of law on the facts of the
present case, it is clear that accused
adopted, common object and assaulted Sri
Ram
Pandey
with
lathi-danda
in
furtherance of the said common object.
Hence Section 149 is fully applicable.

9.

Learned
counsel
for
the
appellants further contended that all the
injuries except one are simple in nature
and the only grievous injury is on nonvital part of the body, hence no offence
under Section 308 IPC is made out. This
argument of the learned counsel has
substance. Although 14 injuries have
been caused to the injured but all injuries
except injury no.3 are simple in nature
and injury no.3- the fracture of ulna bone
of right forearm is on the non-vital part of
the body. Further there is no statement in
oral testimony of the doctor that these
injuries either individually or collectively
were dangerous to life. Further P.W.-6
Dr. Rama Shanker Misra in his crossexamination has admitted that pulse rate
and blood pressure is recorded in the
injury
report
generally
in
serious
condition and because he was not serious
it was not recorded.
776 INDIAN LAW REPORTS ALLAHABAD SERIES

The Hon'ble Apex Court in the
case of Bishan Singh and Ors vs. State,
AIR 2008 SC 131 has held as under:

"Before an accused can be held
to be guilty under Section 308 IPC, it was
necessary to arrive at a finding that the
ingredients
thereof,
namely,
requisite
intention or knowledge was existing. There
cannot be any doubt whatsoever that such
an intention or knowledge on the part of
the accused to cause culpable homicide is
required to be proved. Six persons
allegedly accosted the injured. They had
previous enmity. Although over-act had
been attributed against each of the accused
who were having lahtis, only seven injuries
had been caused and out of them only one
of them was grievous, being a fracture of
the arm, which was not the vital part of the
body.

The accused, therefore, in our
opinion, could not be said to have
committed any offence under Section 308
IPC. The same would fall under Sections
323 and 325 thereof."

10. In view of the above, considering
the entire material on record in this case, in
the opinion of this Court, no offence under
Section 308 IPC is made out, and the
appellants-accused are liable to be held
guilty for offence under Sections 147, 323/
149 and 325/ 149 IPC and conviction of the
appellants-accused is modified accordingly.

11. Considering the nature of the
offence, the number of injuries and its
nature
and
all
other
attending
circumstances, it will be just and proper to
sentence the accused-appellants to undergo
imprisonment for one year each under
Section 147 IPC, imprisonment of one year
each under Section 323/149 IPC and
imprisonment of one year and fine of Rs.
10,000/- each under Section 325/149 IPC.
In default of payment of fine, each accused
will
serve
three
months
simple
imprisonment. All the sentences shall run
concurrently. If the fine is deposited, the
victim Sri Ram Pandey will get half of it.

12. The appeal stands partly allowed,
accordingly.

13. Lower court record along with
copy of the judgment be transmitted to the
trial court immediately.
----------
(2021)08ILR A776
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.08.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No 113 of 2000

Jameek ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
R.P. Shukla, R.N. Shukla, Rakesh Kumar
Yadav, Vashu Deo Mishra

Counsel for the Opposite Party:
Govt. Advocate

Indian Penal Code (45 of 1860)- Sections
452 & 354 - House trespass and outraging
modesty
of
woman
-
Probation
of
Offenders Act (20 of 1958) , Section 4 -
Section 4 is applicable where a person is
found guilty of committing an offence
which is not punishable with death or
imprisonment for life - Court may release
such an accused on probation of good
conduct on his furnishing a bond - Court in
applying this provisions is required to
consider the circumstances of the case,