# Chhotey (In Jail) v. The State of U.P

- **Citation:** (2021) 9 ILRA 611
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-09
- **Case number:** Criminal Appeal No. 1362 of 1983
- **Bench:** Subash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhotey-in-jail-v-the-state-of-u-p-47455
- **Pages:** 11

## Headnote

Law
-
appeal
against
conviction under Section 307 - Indian
Penal Code, 1860 - Section 307 , 323 -
The Code of criminal procedure, 1973 -
Section 313 - motive loses all its
612 INDIAN LAW REPORTS ALLAHABAD SERIES
importance
in
a
case
where
direct
evidence of eye witnesses is available
because even if there is a very strong
motive for the accused person to commit a
particular crime, they cannot be convicted
if the evidence of eye witnesses is not
convincing.(Para - 23)

(B) Criminal Law - Indian Penal Code,
1860 - Section 307 - ingredients - act
attempted should be of such nature that if
not prevented or intercepted it would lead
to the death of victim - intention or mens
rea to kill is needed to be proved clearly
without
doubt
for
this
purpose
the
prosecution
can
make
use
of
the
circumstances like attack by dangerous
weapon on fatal part of body, however,
the intention to kill cannot be gauged
simply by seriousness of the injury caused
- intention and knowledge of the result of
the act being done is the main thing that
is needed to be proved for conviction
under Section 307 I.P.C.- assault on the
head with lathi - always a question of fact
- whether there was intention to cause
death or other injury - circumstances,
manner of assault, nature and number of
injuries will all have to be considered
cumulatively. (Para - 36,41)

On 05.02.1980 at about 8:00 P.M. in the night -
appellant in company of his other friend -
caused simple injuries with lathi to Informant on
his head and arms - while taking heat beside
the fire in the field - where engine was placed -
Finding recorded by the learned trial court to
this extent - holding guilty to appellant -
convicted appellant - hence appeal.

HELD:- Injuries caused by lathi in the opinion
of doctor were simple, therefore, it is apparent
that accused did not want to use lathi with the
intention of causing death of informant. Present
case does not fulfill the ingredients of Section
307 I.P.C. but it comes within the ambit of
Section 323 I.P.C. Hence conviction of the
appellant under Section 307 I.P.C. cannot be
sustained. No any purpose will be served by
sending the appellant (aged about 81 years) in
jail after elapse of 41 years from the incident.
Period of sentence is reduced to the period
already undergone by him. (Para - 43,48)
Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

9 All Chhotey Vs. The State of U.P.
611
dead of night in darkness when all were
asleep. It is a hit and run case and no one
had opportunity to see and identify the
assailant. The statement of defence witness
gets support from the oral statements of
P.W.-3, Bohri and statements of these
witnesses contradict and belie the oral
testimony of P.W.-2, Nathi Lal. There are
major contradictions and discrepancies in
the statement of Nathi Lal. His oral
testimony is not reliable. Learned trial court
has erred in placing reliance on sole
testimony of Nathi Lal (P.W.-2).

15. Learned AGA contended that oral
evidence of Nathi Lal(P.W.-2), complainant
and eye witness is consistent and is also
supported with medical evidence. Bohri
(P.W.-3) has become hostile and has not
supported the prosecution case due to fear so
it will not adversely affect the prosecution
case and reliability of Nathi Lal (P.W.-2).
These arguments are not convincing. As
discussed above, the oral testimony of Nathi
Lal (P.W.-2) is not inspiring and reliable.
Bohri is the wife of Nathi Lal (P.W.-2), who
has lodged the FIR and has named accused
persons and also deposed against them in
Court. Hence, it cannot be considered that
wife of Nathi Lal out of fear has become
hostile and has not supported the prosecution
case. Contrary to it, from material on record,
it appears that her statement is more natural
and probable and it also gets support from
defence witness - Gyan Singh who is named
as eye witness in the FIR.

16. From appreciation of evidence on
record, it appears that incident has occurred
in the night while all were asleep and a single
shot was fired by someone who made good
his escape from the spot before anyone can
notice the incident.

17. From the aforesaid discussion, it is
clear that the sole testimony of Nathi Lal
(P.W.-2) is not reliable and there is no other
witness to corroborate his oral version. The
learned trial court has failed to appreciate the
evidence properly and the finding of
conviction recorded by it is not sustainable.
The appeal is liable to be allowed.

18. The criminal appeal is allowed. The
conviction of the appellant no. 2, Ramcharan
under Section 302 IPC and consequent
sentence of rigorous imprisonment is set
aside. Appellant no. 2 / accused, Ramcharan
is acquitted from charge under Section 302
IPC. Appellant / accused is in jail. Appellant /
accused be released forthwith if not wanted
any other case.

19. Lower court record along with
copy of the judgment be transmitted to the
learned trial court immediately.
----------
(2021)09ILR A611
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2021

BEFORE

THE HON'BLE SUBASH CHANDRA SHARMA, J.

Criminal Appeal No. 1362 of 1983

Chhotey ...Appellant(In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri N.K. Shukla, Sri Mohammad Waseem,
Sri B.D. Sharma

Counsel for the Opposite Party:
A.G.A.

(A)
Criminal
Law
-
appeal
against
conviction under Section 307 - Indian
Penal Code, 1860 - Section 307 , 323 -
The Code of criminal procedure, 1973 -
Section 313 - motive loses all its
612 INDIAN LAW REPORTS ALLAHABAD SERIES
importance
in
a
case
where
direct
evidence of eye witnesses is available
because even if there is a very strong
motive for the accused person to commit a
particular crime, they cannot be convicted
if the evidence of eye witnesses is not
convincing.(Para - 23)

(B) Criminal Law - Indian Penal Code,
1860 - Section 307 - ingredients - act
attempted should be of such nature that if
not prevented or intercepted it would lead
to the death of victim - intention or mens
rea to kill is needed to be proved clearly
without
doubt
for
this
purpose
the
prosecution
can
make
use
of
the
circumstances like attack by dangerous
weapon on fatal part of body, however,
the intention to kill cannot be gauged
simply by seriousness of the injury caused
- intention and knowledge of the result of
the act being done is the main thing that
is needed to be proved for conviction
under Section 307 I.P.C.- assault on the
head with lathi - always a question of fact
- whether there was intention to cause
death or other injury - circumstances,
manner of assault, nature and number of
injuries will all have to be considered
cumulatively. (Para - 36,41)

On 05.02.1980 at about 8:00 P.M. in the night -
appellant in company of his other friend -
caused simple injuries with lathi to Informant on
his head and arms - while taking heat beside
the fire in the field - where engine was placed -
Finding recorded by the learned trial court to
this extent - holding guilty to appellant -
convicted appellant - hence appeal.

HELD:- Injuries caused by lathi in the opinion
of doctor were simple, therefore, it is apparent
that accused did not want to use lathi with the
intention of causing death of informant. Present
case does not fulfill the ingredients of Section
307 I.P.C. but it comes within the ambit of
Section 323 I.P.C. Hence conviction of the
appellant under Section 307 I.P.C. cannot be
sustained. No any purpose will be served by
sending the appellant (aged about 81 years) in
jail after elapse of 41 years from the incident.
Period of sentence is reduced to the period
already undergone by him. (Para - 43,48)
Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

1. Gopi Ram Vs St. Of U.P. , 2006 (55) ACC 673
SC

2. St. of U.P. Vs Nawab Singh, 2005 SCC
(Criminal) 33

3. ShiVs raj Bapuray JadhaVs Vs St. of
Karnataka, (2003) 6 SCC 392

4. R.R. Reddy Vs St. of AP, AIR 2006 SC 1656

5. Sucha Singh Vs St. of Punj., AIR 2003 SC
1471

6. St. of Rajasthan Vs Arjun Singh, AIR 2011 SC
3380

7. Varun Chaudhry Vs St. of Raj., AIR 2011 SC
72

8. St. of U.P. Vs s. Naresh & ors. , (2011) 4
SCC 324

9. Mamo Dutt Vs s. St. of U.P., (2012) 4 SCC 79

10. Balwan Singh & ors. Vs s. St. Of Haryana,
(2014) 13 SCC 560

11. St. Of Maharashtra Vs s Balram Bama Patil,
AIR 1983 SC 305

12. Jage Ram Vs s. St. of Haryana, (2015) 11
SCC 366

13. St. of M.P. Vs s. Kanha @ Om Prakash, CrlA.
No. 1589 of 2018

14. Neelam Bahal & anr. Vs s. St. of
Uttarakhand, 2010 (2) SCC 229

(Delivered by Hon'ble Subash Chandra
Sharma, J.)

1. This criminal appeal has been
preferred against the judgment and order
dated 28.04.1983 passed by 4th Additional
Sessions Judge, Budaun in Sessions Trial
9 All Chhotey Vs. The State of U.P.
613
No.242 of 1981 arising out of Case Crime
No.45 of 1980, Police Station Dataganj,
District Budaun by which appellant has
been convicted under Section 307 I.P.C.
and
sentenced
to
undergo
rigorous
imprisonment for a term of 3 years.

2. The prosecution story in brief is
that two months prior to the present
incident appellant and Rajbhar abongwith
his other companions committed dacoity in
the house of Shyam Pal (brother of
informant). They were identified and
named in the F.I.R. Atiraj brother of
informant was witness in that case. That
was the reason appellant was annoyed with
him. On 05.02.1980 at about 8:00 P.M. in
the night when informant with Shivlal was
sitting at the tube well in his field, appellant
alongwith some unknown person equipped
with lathi came there and asked about
Atiraj. At this informant-Jhandu Singh told
him that Atiraj was at his home. Meanwhile
Chhotey started assaulting informant with
lathi and caused injuries. The appellant was
identified in the light of torch and other
unknown person could not be identified.
An F.I.R. was lodged at Police Station
Dataganj on 06.02.1980 at about 9:15 A.M.
Jhandu Singh was sent to PHC Dataganj for
medical examination from where he was
referred to District Hospital, Budaun where
he was examined on 06.02.1980 at about
12:30 P.M.

3. Injuries found on the person of
Jhandu Singh are as here under :-

(I) Lacerated wound 3cm x 1cm
bone deep on left side of the forehead.

(II) Incised wound 4cm x 1.5cm
bone deep on right frontal region of head.

(III) Lacerated wound 1cm x
0.5cm, 10 cm above left ear on temporal
region.

(IV) Lacerated wound 2cm x
0.5cm scalp deep, 1cm behind injury no.3.

(V) Lacerated wound 3cm x
0.5cm scalp deep on left occipital region of
head.

(VI) Lacerated wound 4cm x 1cm
scalp deep, 9cm behind injury no.5.

(VII) Lacerated wound 4.5cm x
0.5cm scalp deep on right parietal region,
11cm above right ear.

(VIII) Lacerated wound 1cm x
0.5cm muscle deep outer side of left eye.

(IX) Contusion 10cm x 5cm on
left side face with swelling. Advised X-ray.

(X) Abraded contusion 16cm x
10cm lower part of left fore-arm and hand.
Advised X-ray.

(XI) Lacerated wound 10cm x 0.5
cm below nose at top.

(XII) Contusion 4cm x 2cm top of
left shoulder.

Duration about half day (12
hours). All except no.2 by blunt object, no.2
by sharp edged cutting object. All simple
except no.1 & 2 Advised x-ray skull.

4. Investigation of the case was handed
over to S.I. Babu Ram who after completing
investigation submitted charge-sheet against
Chotey under Section 307 I.P.C.
614 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The court concerned took cognizance
and afforded essential prosecution papers to
the appellant and committed the case to the
court of Session for trial.

6. The trial court framed charge under
Section 307 I.P.C. against the appellant
which was read over and explained to him.
He did not plead guilty but denied the charge
and claimed for trial.

7. Prosecution examined PW-1 Dr. S.C.
Naugriya, PW-2 H.C. Ramveer Singh, PW-3
Jhandu Singh, PW-4 Shivlal and PW-5 Babu
Ram the Investigating Officer.

8. After prosecution evidence statement
of appellant under Section 313 Cr.P.C. was
recorded in which he stated the prosecution
story to be false. He had also stated that the
statements made by the witnesses were false.
He had been implicated in the case owing to
an enmity about a field. He further stated that
in wrestling he defeated Atiraj, so for
damaging his good health he had been
implicated falsely.

9. Opportunity for defence evidence
was given to appellant but no evidence was
adduced on his part.

10. After hearing the arguments for
accused/appellant as well as the State, learned
trial court passed the impugned judgment
dated 28.04.1983 while convicting and
sentencing the appellant as aforesaid.

11. Being aggrieved with this judgment
and order this appeal has been preferred.

12. Heard Mr. Mohammad Waseem,
learned counsel for the appellant and Sri
Arun Kumar Singh, learned A.G.A. for the
State and perused the record.

13. Learned counsel for the appellant
argued that in this case the identity of
appellant is not certain because the
occurrence took place in the night. There
was no source of light. Lathi has been said
to be used in causing injuries to informant
Jhandu Singh but one incised wound was
found on his person which is not probable
with lathi. No blood stains were found on
the place of occurrence. Atiraj brother of
Jhandu Singh was defeated by appellant on
account of that enmity he has falsely been
implicated in this case. Now the appellant
is near about 81 years old and he has been
in jail for a period of more than one year.
He further argued that the nature of injuries
found on the person of informant have been
said to be caused with lathi which is hard
and blunt object. All injuries are simple in
nature. Anyhow injuries were not fatal to
the life of the injured. The nature of injuries
brings the case within the purview of
Section 323 I.P.C. in place of Section 307
I.P.C.
Learned
trial
court
has
not
considered all these facts while passing the
judgment but convicted and sentenced the
appellant arbitrarily which is illegal and not
based on the evidence on record, therefore,
it is liable to be set aside and appeal be
allowed.

14. Learned A.G.A. opposed the
contentions raised by learned counsel for
the appellant and argued that Jhandu Singh
was injured in this case who supported the
prosecution version. Shivlal and Rajpal
were
eye-witnesses
who
have
also
supported the prosecution version. Medical
report also corroborates the prosecution
case. There was source of torch light which
was taken there by Rajpal, as a result there
was no suspicion in identifying the
appellant by the informant. Blood stained
soil was taken from the place of occurrence
by Investigating Officer. There is no
9 All Chhotey Vs. The State of U.P.
615
ground to reverse the findings recorded by
the learned trial court and the impugned
judgment
and
order
convicting
and
sentencing the appellant is sound and based
on legal principles. The appeal is devoid of
merit and is liable to be dismissed.

15. Before proceeding to deal with the
contentions raised by learned counsel for
the appellant, it will be convenient to take
note of the evidence as adduced by the
prosecution.

16. PW-3 Jhandu Singh is informant
who had stated that it was at about 8 P.M.
he was at the well where engine was placed
and Shivlal was also with him at that time
and they were taking heat with fire.
Meanwhile appellant Chotey and one other
person came there and Chotey asked about
Atiraj. Jhandu Singh replied that Atiraj was
at home then Chotey uttered "isi ko le lo"
and started beating him with intention to
kill. He identified them in the light of torch
but he did not know the name of other
person. On making hue and cry Rajpal also
came there with a torch. He sustained
injuries on his head and arms. Accused
persons went away in the direction of North
West after causing injuries. Prior to the said
incident
appellant
Chotey
committed
dacoity at the house of Shyamlal who is his
nephew. In that case his brother Atiraj
Singh is witness and as a result the
companion of appellant Chhotey was
imprisoned. Case against the appellant was
still pending. After the accused persons
went away his brother Atiraj Singh also
came there at about 9-10 P.M. They arrived
at home in the morning and went to police
station with his brother. He got tehrir
written by Rajpal in the village and affixed
his thumb impression. On the basis of
which case was registered at the police
station. He proved tehrir as Exibit Ka-4.

17. PW-4 Shivlal deposed that it
was time about 8 P.M. engine was placed
at Sarman Singh's tube well, it belonged
to Jhandu Singh who was present there.
Both of them were taking heat with fire.
Shivlal was one fourth partner in the land
of Jhandu Singh. Appellant Chhotey and
one other person came there, both of
them were equipped with lathi and
Chhotey asked about Atiraj. Jhandu
Singh lighted his torch and told him that
Atiraj Singh was at his home. Chhotey
uttered "isi ko dekhenge" and both of
them started beating Jhandu Singh. He
began to cry after going on some distance
and Jhandu Singh also made hue and cry.
Rajpal also came there and made noise
then other people from the village also
came there. Atiraj Singh also came there
but both of the accused persons fled
away.

18. PW-1 is Dr. S.C. Naugriya who
examined
injured
Jhandu
Singh
and
prepared injury report dated 06.02.1980 at
about 12:30 P.M. He proved the injury
report
as
prepared
by
him
in
his
handwriting and signature as Exibit Ka-1.
Giving detail of injuries, he opined that
except injury no.2 all injuries were possible
with some blunt object like lathi and all the
injuries were about half day old. Injury
no.2 was possible with some incised
weapon. All injuries except injury nos.1, 2,
9 & 10 were simple. Injury nos.1, 2, 9 & 10
kept under observation and advised for xray. All injuries were possible to be caused
on 05.02.1980 at about 8-9:00 P.M.

19. PW-2 Head Constable Ramveer
Singh has stated that he prepared F.I.R. in
his hand writing which he proved as Exibit
Ka-2 and also stated that he entered the
contents of F.I.R. into G.D at report no.14
which he proved as Exibit Ka-3.
616 INDIAN LAW REPORTS ALLAHABAD SERIES

20. PW-5 S.I. Babu Ram was the
Investigating Officer of this case and he
proved the investigation and the site plan as
Exibit Ka-5, fard of taking torch into his
possession as Exibit Ka- 6 to 8. He also
collected blood stained soil and plain soil
from the place of occurrence and prepared
fard as Exibit Ka-10. Thereafter, he
concluded the investigation and submitted
charge-sheet as Exibit Ka-10.

21. Occurrence took place on
05.02.1980 at about 8:00 P.M. and F.I.R.
was lodged at the police station on
06.02.1980 at 9:15 P.M. There is delay in
lodging the F.I.R. but informant lived in a
village which was five miles away from the
police station, therefore, it could not be
possible to go to the police station in the
night for lodging F.I.R. In the morning he
reached at police station and lodged F.I.R.
without making any delay. In this way, the
delay in lodging the F.I.R. cannot be said to
be material in the circumstances of the
present case.

22. So far as motive is concerned,
there is no need to prove motive in cases of
direct evidence.

23. It is settled law that the motive
loses all its importance in a case where
direct evidence of eye witnesses is
available because even if there is a very
strong motive for the accused person to
commit a particular crime, they cannot be
convicted if the evidence of eye witnesses
is not convincing.

24. We find that the Supreme Court
has clearly opined in various decisions,
such as Gopi Ram v St. Of UP, 2006 (55)
ACC 673 SC, State of UP v Nawab Singh;
2005 SCC (Criminal) 33, Shivraj Bapuray
Jadhav v State of Karnataka; (2003) 6 SCC
392, R.R. Reddy v State of AP, AIR 2006
SC 1656, Sucha Singh v State of Punjab;
AIR 2003 SC 1471, State of Rajasthan v
Arjun Singh AIR 2011 SC 3380, Varun
Chaudhry v State of Rajasthan AIR 2011
SC 72 that the prosecution case could not
be denied on the ground of alleged absence
or insufficiency of motive. Motive is
insignificant in cases of direct evidence of
eyewitnesses. Failure to prove motive or
absence of evidence on the point of motive
would not be fatal to the prosecution case
when the other reliable, truthful and
acceptable evidence is available on record
sufficient to establish the guilt of accused
persons.

25. PW-3 Jhandu Singh is informant
and injured witness. PW-4 Shivlal was
present on the spot at the time of
occurrence and was taking heat with the
fire in company of informant Jhandu Singh.

26. PW-3 Jhandu Singh is injured
witness. His presence on the spot cannot be
denied. The reliability of injured witness
has well been explained by the Hon'ble
Apex Court in the case of State of U.P. vs.
Naresh & others (2011) 4 SCC 324 from
which a relevant para is reproduced
hereinunder for ready reference :-

".....................The evidence of an
injured
witness
must
be
given
due
weightage being a stamped witness, thus,
his presence cannot be doubted. His
statement is generally considered to be
very reliable and it is unlikely that he has
spared the actual assailant in order to
falsely
implicate
someone
else.
The
testimony of an injured witness has its own
relevancy and efficacy as he has sustained
injuries at the time and place of occurrence
and this lends support to his testimony that
he was present during the occurrence.
9 All Chhotey Vs. The State of U.P.
617
Thus, the testimony of an injured witness is
accorded a special status in law. The
witness would not like or want to let his
actual assailant go unpunished merely to
implicate a third person falsely for the
commission of the offence.

Thus, the evidence of the injured
witness should be relied upon unless there
are grounds for the rejection of his
evidence
on
the
basis
of
major
contradictions and discrepancies therein.
[Vide: Jarnail Singh v. State of Punjab,
(2009) 9 SCC 719; Balraje @ Trimbak v.
State of Maharashtra, (2010) 6 SCC 673;
and Abdul Sayad v. State of Madhya
Pradesh, (2010) 10 SCC 259]. "

27. In another decision in the case of
Mamo Dutt vs. State of U.P. (2012) 4 SCC
79, Hon'ble the Apex Court again reiterated
the evidentiary value required to be
attached to the evidence of an injured
witness by observing thus:-

"Normally, an injured witness
would enjoy greater credibility because he
is the sufferer himself and thus, there will
be no occasion for such a person to state
an incorrect version of the occurrence, or
to involve anybody falsely and in the
bargain
protect
the
real
culprit."...................

28. Again in the case of Balwan
Singh & others vs. State Of Haryana
(2014) 13 SCC 560 Hon'ble the Apex Court
observed thus:

"It is trite law that the evidence of
injured witness, being a stamped witness, is
accorded a special status in law. This is as
a consequence of the fact that injury to the
witness is an inbuilt guarantee of his
presence at the scene of the crime and
because the witness would not want to let
actual assailant go unpunished."

29. PW-3 Jhandu Singh got injuries
on his person in the incident. He was
examined by Dr. S.C. Naugriya on
06.02.1980 at about 12:30 P.M. and
injuries on his person were recorded by the
doctor. Those injuries have been said to be
caused on 05.02.1980 at about 8-9:00 P.M.
in the night as stated by the doctor. Jhandu
Singh has also stated about the incident to
have taken place at about 8'o clock in the
night. He also stated that injuries were
caused on his head and arms. This gets
support with the medical report Exibit Ka-1
and also with the statement given by PW-1
Dr. S.C. Naugriya.

30. PW-3 Jhandu Singh has told in his
statement
that
accused/appellant
was
having lathi and caused injuries with it on
his head and arms. PW-1 Dr. S.C. Naugriya
has also mentioned in Exibit Ka-1 that
except injury no.2 all injuries were possible
to be caused with blunt object like lathi and
injury no.2 was likely to be caused with
some sharp object. He has further explained
that injury no.2 could be caused with lathi
having some sharp edged blade. In this
way, it stands proved that injuries to PW-3
Jhandu Singh were caused with lathi at
about 8:00 P.M. in the night of 05.02.1980.

31. Incident took place in the field
where engine was placed on the well,
which has clearly been stated by Jhandu
Singh PW-3 and Shivlal PW-4. PW-5 S.I.
Babu Ram had also explained in his
statement about the place of occurrence
which also gets support from site plan
Exibit Ka-5. During cross-examination also
informant Jhandu Singh had explained the
place of occurrence to be on the well in the
field where engine was placed and he had
618 INDIAN LAW REPORTS ALLAHABAD SERIES
also explained the directions and about the
fields situated around the site. Blood
stained and plain soil was also taken from
the place of occurrence by Investigating
Officer during inspection of spot and fard
was prepared which he proved as Exibit
Ka-9. All these support the statement of
informant Jhandu Singh about the place of
occurrence being in the field at well where
engine was placed.

32. So far as the fact of enmity
between
the
informant
and
accused/appellant is concerned, appellant
has stated in his statement recorded under
Section 313 Cr.P.C. that he was a wrestler
and defeated Atiraj Singh brother of the
informant in wrestling that was the reason
he was implicated falsely and also on
account of enmity related to field. In this
regard
nothing
has
been
stated
by
informant Jhandu Singh during his crossexamination and no any other evidence has
been brought on record by the appellant.
On the other hand, it has been stated by the
informant that appellant committed dacoity
in the house of his nephew Shyam Pal in
which his brother Atiraj Singh was witness.
Co-accused was convicted and case was
pending against him on account of which
appellant was annoyed with Atiraj brother
of informant. Further it has also been
explained by the informant during crossexamination that there was no any field of
appellant situated in the area. No other
proof has been given by appellant which
could show that his field was also situated
near the field of informant and that caused
enmity between them. So the argument
relating to the fact of enmity due to
wrestling and land dispute is not tenable.

33. It has further been submitted that
in this case occurrence took place in the
night at about 8:00 P.M. there was no
source of light, so appellant could not have
been identified by the informant but only
on account of enmity he named him falsely.
PW-3 Jhandu Singh had clearly stated
during his examination-in-chief that he
identified appellant in the light of torch.
During cross-examination also he has
reiterated the fact of torch. PW-4 Shivlal
had also stated that he identified the
appellant in the light of torch. This also
gets supports with the statement of PW-6
S.I. Baburam who took the torch in his
possession and prepared fard Exibit Ka-6 &
7. Argument in this regard has no force.

34. From testimony of injured
informant PW-3 Jhandu Singh and eyewitness PW-4 Shivlal, it is proved beyond
reasonable doubt that on 05.02.1980 at
about 8:00 P.M. in the night appellant
Chhotey in company of his other friend
caused simple injuries with lathi to Jhandu
Singh on his head and arms while taking
heat beside the fire in the field where
engine was placed. Finding recorded by the
learned trial court to this extent, holding
guilty to appellant, is correct and it requires
no interference.

35. Now the argument by learned
counsel for the appellant is that the offence
does not come within the ambit of Section
307 I.P.C. because there was no intention
to cause death of informant but it squarely
falls within the purview of Section 323
I.P.C.

36. So far as, conviction of the
appellant under Section 307 I.P.C. is
concerned, it is expedient to examine the
main ingredients of Section 307 I.P.C.
which are (I) the act attempted should be of
such nature that if not prevented or
intercepted it would lead to the death of
victim, (ii) the intention or mens rea to kill
9 All Chhotey Vs. The State of U.P.
619
is needed to be proved clearly without
doubt for this purpose the prosecution can
make use of the circumstances like attack
by dangerous weapon on fatal part of body,
however, the intention to kill cannot be
gauged simply by seriousness of the injury
caused, (iii) the intention and knowledge of
the result of the act being done is the main
thing that is needed to be proved for
conviction under Section 307 I.P.C.

37. In this regard, in the case of State
Of Maharashtra vs Balram Bama Patil
AIR 1983 SC 305, Hon'ble the Apex Court
held in para 9:

"To justify a conviction under this
section it is not essential that bodily injury
capable of causing death should have been
inflicted. Although the nature of injury
actually caused may often give considerable
assistance in coming to a finding as to the
intention of the accused, such intention may
also be deduced from other circumstances,
and may even, in some cases, be ascertained
without any reference at all to actual wounds.
The section makes a distinction between an
act of the accused and its result, if any. Such
an act may not be attended by any result so
far as the person assaulted is concerned, but
still there may be cases in which the culprit
would be liable under this section. It is not
necessary that the injury actually caused to
the victim of the assault should be sufficient
under ordinary circumstances to cause the
death of the person assaulted. What the Court
has to see is whether the act, irrespective of
its result, was done with the intention or
knowledge
and
under
circumstances
mentioned in this section. An attempt in order
to be criminal need not be the penultimate
act. It is sufficient in law, if there is present
an intent coupled with some overt act in
execution thereof."

38. Hon'ble the Apex Court has held
in the case of Jage Ram vs. State of
Haryana (2015) 11 SCC 366 that :-

"12.
For
the
purpose
of
conviction
under
Section
307
IPC,
prosecution has to establish (i) the
intention to commit murder and (ii) the act
done by the accused. The burden is on the
prosecution that accused had attempted to
commit the murder of the prosecution
witness. Whether the accused person
intended to commit murder of another
person would depend upon the facts and
circumstances of each case. To justify a
conviction under Section 307 IPC, it is not
essential that fatal injury capable of
causing death should have been caused.
Although the nature of injury actually
caused may be of assistance in coming to a
finding as to the intention of the accused,
such intention may also be adduced from
other circumstances. The intention of the
accused is to be gathered from the
circumstances like the nature of the
weapon used, words used by the accused at
the time of the incident, motive of the
accused, parts of the body where the injury
was caused and the nature of injury and
severity of the blows given etc."

39. Again it was reiterated in the Case
of State of Madhya Pradesh Vs. Kanha @
Om Prakash, CrlA. No. 1589 of 2018.

40. For the conviction under this
section more importance is to be given to
mens rea or intention than the actus reus or
the actual acts itself. The attempt should
arise out of a specific intention or desire to
murder the victim. The nature of weapon
used, the manner in which it is used,
motive for the crime, severity of the blow,
the part of the body where the injuries
620 INDIAN LAW REPORTS ALLAHABAD SERIES
inflicted is all taken into consideration to
determine the intention.

41. In a case of an assault on the head
with lathi, it is always a question of fact
whether there was intention to cause death
or other injury. The circumstances, manner
of assault, nature and number of injuries
will all have to be considered cumulatively.

42. In the F.I.R., it has been
mentioned that appellant asked informant
about his brother Atiraj Singh and when he
told that Atiraj Singh was at home,
appellant alongwith his friend assaulted
with lathi with the intention of causing
death but it has not been mentioned
anywhere that appellant was uttering such
words while causing injuries on his person.
Even during his examination before the
court he has not stated that appellant was
uttering
such
words
expressing
his
intention to kill him. PW-4 Shivlal has also
not stated any word in this regard that
appellant was uttering words expressing his
intention to kill Jhandu Singh. It reveals
that appellant might be furious on Atiraj
because he was witness in the case of
dacoity which was committed at the house
of Shyampal nephew of informant but not
against the informant Jhandu Singh. When
Jhandu Singh told him that Atiraj Singh
was at home appellant assaulted him with
lathi while saying "isi ko le lo". This
expression does not at all infer the intention
of appellant to kill Jhandu Singh. No any
other enmity with the appellant has been
disclosed in the testimony of informant
during examination before the Court,
therefore, it cannot be concluded that there
was any intention or motive in the mind of
appellant to kill Jhandu Singh. The nature
of injuries caused to Jhandu Singh also
shows that all injuries are simple though
some of them are on the head and others
are on his arms but no any injury is of such
nature as can be said to be grievous. In the
opinion of the doctor PW-1 all injuries are
simple and caused with lathi. He has
nowhere stated that the injuries are fatal to
the life of injured Jhandu Singh. Though
lathi can be used to cause grievous injuries
but it depends on force used. The nature of
injuries shows that no much force was used
while making assault with lathi otherwise it
might have caused grievous injuries on the
head and on the other parts of the body. In
this way, it transpires from material on
record that appellant had no intention to
cause death of informant Jhandu Singh but
he only intended to cause voluntarily
simple hurt to him which cannot come
within the purview of offence as defined
under Section 307 I.P.C. and the manner
committing the offence itself brings the
case within the limits of Section 323 I.P.C.

43. Moreover, in the present case
injuries were caused by lathi. The injuries
in the opinion of doctor were simple,
therefore, it is apparent that accused did not
want to use lathi with the intention of
causing death of informant. From this
aspect also the present case does not fulfill
the ingredients of Section 307 I.P.C. but it
comes within the ambit of Section 323
I.P.C. Hence conviction of the appellant
under Section 307 I.P.C. cannot be
sustained.

44. In these circumstances of the case,
this court is of the view that conviction of
the appellant under Section 307 IPC cannot
be sustained but appellant is liable to be
convicted for the offence under Section 323
I.P.C.

45. In the case of Neelam Bahal and
another vs. State of Uttarakhand 2010 (2)
SCC 229 where conviction and sentence of
9 All Nathhu Singh & Ors. Vs. State of U.P.
621
appellant under Section 307 I.P.C. was
converted
into
Section
326
I.P.C.
simplicitor. Incident took place in the year
1987 and appellant was about 25 years old.
Considering the facts and circumstances of
the case, Hon'ble the Apex Court, reduced
the
sentence
to
the
period
already
undergone by him.

46. In the present case, it is
noteworthy that the incident took place in
the year 1980 i.e. 41 years ago and it is said
that now appellant is above 81 years old
person. Record does not show that the
appellant has any criminal antecedent and
learned counsel for appellant has also
submitted the same which could not be
rebutted by learned counsel for the State.

47. Record shows that appellant has
remained in jail from 10.03.1980 to
28.06.1980
and
from
28.04.1983
to
21.03.1984 i.e. more than one year.

48. To sum up, the conviction &
sentence imposed on the appellant under
Section 307 I.P.C. is set aside instead he is
convicted under Section 323 I.P.C. No any
purpose will be served by sending the
appellant (aged about 81 years) in jail after
elapse of 41 years from the incident. The
period of sentence is reduced to the period
already undergone by him.

49. Accordingly, the appeal is partly
allowed.
----------
(2021)09ILR A621
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2021

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Criminal Appeal No. 2327 of 1982

Natthu Singh & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Pt. Mohan Chandra, Sri Anurag Shukla,
Sri Imranullah, Sri Nazrul Islam Jafri, Sri
A.B.L. Gaur (Senior Adv.)

Counsel for the Opposite Party:
A.G.A.

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 - 304
read with Section 34 - The Code of
criminal
procedure,
1973
-
Section
161,313 - law on the point of cross case -
non explanation of injuries by prosecution
will not affect the prosecution case where
injuries sustained by the accused are
minor and superficial in nature.(Para - 25)

(B) Indian Evidence Act, 1872 - nonexamination of eye-witness cannot be
pressed into service like a ritualistic
formula for discarding the prosecution
case with a stroke of pen - Court can
convict an accused on statement of sole
witness even if he is relative of the
deceased
and
non
examination
of
independent witness would not be fatal to
the case of prosecution - evidence of
related
witnesses
is
required
to
be
carefully
scrutinized
and
appreciated
before any conclusion is made to rest
upon it - if the testimony of an eye
witness is otherwise found trustworthy
and
reliable,
the
same
cannot
be
disbelieved merely on certain insignificant
normal or natural contradiction have
appeared in his testimony.(Para -18)

(B) Criminal Law - Indian Penal Code,
1860 - Section 300 (Exception 2) -
culpable homicide is not murder if the
offender, in the exercise in good faith of
the right of private defence of person or
property, exceeds power given to him by
law and causes the death of the person