# Daya Ram & Anr v. State of U.P

- **Citation:** (2021) 2 ILRA 444
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-05
- **Case number:** Appeal No.160 of 2006
- **Bench:** Ramesh Sinha, Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-ram-anr-v-state-of-u-p-46823
- **Pages:** 12

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal
Code,1860-Section
302/34application-allowed-appellants
/accused
blow lathis upon the deceased while the
accused were hammering a wooden stake
on the land with an intention to forcibly
take possession of land belonging to the
deceased family-it was a sudden incident
over the trivial matter-no prior mediation
or meeting of mind between the accusedthe fatal lathi blow on head of the
deceased was given by only one appellant,
while other injuries were simple in naturetrial court erred that the accused with
common
intention
assaulted
the
deceased-the lathi blow was not with an
intention to cause death-all the three
accused can not held guilty for same
offence but each one be guilty for injury
individually caused by him as per section
38 of IPC-where several persons are
engaged or concerned in the commission
of a criminal act, they may be guilty of
different offences by means of that actaccused already undergone sentences
more than 14 years-they are directed to
be set-free.(Para 2 to 10)

The appeal is allowed. (E-5)

List of Cases cited:-

## Text

444 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal No. 1839 of 2004 (Veersen Vs.
State of U.P.) decided on 20.9.2017. We
are even fortified in our view by the
decision of the Apex Court in Criminal
Appeal
No.160
of
2006
(G.V.
Siddaramesh Vs. State of Karnataka)
dated 5.2.2010.

30. The accused is in jail since more
than 10 years, we give him fixed term
conviction for 14.6 years under Section 302
of I.P.C. Fine awarded by the Trial Judge is
maintained. Conviction under Section 364
of I.P.C. and 201 of I.P.C. are maintained.

31. In view of the above, this appeal
is partly allowed.
----------
(2021)02ILR A444
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.02.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Appeal No. 2484 of 2007
&
Criminal Appeal No. 2548 of 2007

Daya Ram & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Vishal Chaudhary, Ishan Baghel, M.S. Khan

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal
Code,1860-Section
302/34application-allowed-appellants
/accused
blow lathis upon the deceased while the
accused were hammering a wooden stake
on the land with an intention to forcibly
take possession of land belonging to the
deceased family-it was a sudden incident
over the trivial matter-no prior mediation
or meeting of mind between the accusedthe fatal lathi blow on head of the
deceased was given by only one appellant,
while other injuries were simple in naturetrial court erred that the accused with
common
intention
assaulted
the
deceased-the lathi blow was not with an
intention to cause death-all the three
accused can not held guilty for same
offence but each one be guilty for injury
individually caused by him as per section
38 of IPC-where several persons are
engaged or concerned in the commission
of a criminal act, they may be guilty of
different offences by means of that actaccused already undergone sentences
more than 14 years-they are directed to
be set-free.(Para 2 to 10)

The appeal is allowed. (E-5)

List of Cases cited:-

1. Nathi Lal Vs St. of U.P. (1990) Supp SCC 145

2. St. of M.P. Vs Mishrilal (Dead) & ors. (2003) 9
SCC 426

3. Virsa Singh Vs St. of Punj.(1958) AIR SC 465

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

1. Appeals

1.1 The instant criminal appeals
under Section 374 (2) CrPC have been
preferred by the three accused-appellants,
namely
Daya
Ram,
Jay
Singh
and
Mahendra
alias
Madan
against
the
impugned judgment and order dated
20/21.09.2007 passed by the Additional
Sessions Judge/F.T.C.-VIII, Lucknow in
Sessions Trial No.0193 of 2003, arising out
of Crime No.0149 of 2002 under Sections
307, 302, 504 and 506 IPC lodged at Police
2 All. Daya Ram & Anr Vs. State of U.P.
445
Station
Bakshi-Ka-Talab,
District
Lucknow.

The trial Court did not find
charge under Section 504 and 506 IPC read
with Section 34 IPC proved against all the
appellants beyond reasonable doubt and,
therefore, acquitted them from the charges
under the said sections. However, the
appellants have been convicted under
Section 302 IPC read with Section 34 IPC
and, sentenced for life with fine of
Rs.1,000/- each and, in the event of nonpayment of fine, one month's additional
simple imprisonment.

2. Prosecution Case

2.1 On the basis of written
complaint, Exhibit Ka-1, from Murli
Prasad, complainant, PW-2, FIR, Exhibit
Ka-12, at Case Crime No.0149 of 2002
came to be registered on the same day i.e.
22.07.2002 at 10 a.m. under Sections 307,
504 and 506 IPC at Police Station BakshiKa-Talab, District Lucknow.

2.2
As
per
the
FIR,
on
22.07.2020, at 6 a.m., the appellants, Daya
Ram and, his two sons Mahendra alias
Madan and Jay Singh, with an intention to
forcibly take possession of land of Rakesh
Kumar, were hammering a wooden stake
(Khoota) on the land; when Rakesh Kumar
objected then all the three appellants
attacked
Rakesh
Kumar
with
lathis;
appellant Mahendra hit lathi blow on the
head of Rakesh, as a result thereof, he
sustained serious injury and, fell down; he
started vomiting and became unconscious;
on raising alarm by Amar Singh, brother of
Rakesh,
sister
Manorama
and
many
villagers came running to the place of
incident, then the accused-appellants fled
away from the scene of occurrence,
extending threat; the accused blocked the
road and, therefore, the complainant could
reach to the police station with Rakesh
Kumar after he found the path clear;
injured Rakesh Kumar was sent to the
Primary Health Center from-where he was
sent to Balrampur Hospital, Lucknow
where he died on the same day at 3.50
p.m.; after his death, the offence under
section 307 IPC was converted under
Section 302 IPC.

2.3 After inquest proceedings, the
postmortem of the cadaver of the deceased
was conducted on 23.07.2020 at 2 p.m.; as
per the postmortem report, Exhibit Ka-4;
the following ante-mortem injuries were
found on the body of the deceased:-

i. Abraded contusion 3cm x 1cm
on the right side forehead, 2cm above right
eyebrow:

ii. Contusion 12cm x 8cm on the
right side head just above right ear;

iii. Abraded contusion 3cm x 1cm
on the front of right shoulder;

iv. Contusion 7cm x 5cm on the
front of right knee;

v. Abraded contusion 1cm x 1cm
on the back of left elbow;

vi. Abraded contusion 5cm x
2.4cm on the front and mid of left leg;

The cause of death was coma due
to antemortem head injury.

3. Charges

3.1 The trial Court vide order
dated 03.04.2003 framed charges against
all three accused-appellants under Sections
302, 504 and 506 read with Section 34 IPC
which the accused-appellants denied and
claimed trial.

4. Prosecution Evidence

4.1 The prosecution, to prove its
case, examined Amar Singh as PW-1,
Murli Prasad as PW-2, Jaswant Singh as
446 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-3, Ram Shanker as PW-4, Dr. H.N.
Tripathi as PW-5, S.I. Shyam Bhadur Singh
as PW-6, S.I. Suresh Chandra as PW-7,
Jeeut Ram as PW-8, Vijay Narain Pandey
as PW-9, Dr. Jamshed Nazim as PW-10
and Constable Priy Kumar Tripathi as PW11.

4.2
Besides
oral
testimony,
documentary evidence i.e. written report as
Exhibit Ka-1, inquest report as Exhibit Ka2, recovery memo of lathi as Exhibit Ka-3,
postmortem report as Exhibit Ka-4, challan
lash as Exhibit Ka-5, photo lash as Exhibit
Ka-6, sample sealed as Exhibit Ka-7, siteplan as Exhibit Ka-8, recovery memo of
plan and blood stained earth as Exhibit Ka9, charge-sheet as Exhibit Ka-9, forensic
report/injury report as Exhibit Ka-11, F.I.R
as Exhibit Ka-12 and general diary as
Exhibit Ka-13 were submitted.

4.3 PW-1, Amar Singh stated that
he along with his wife and sister,
Manorama were inside the house at the
time of incident; the accused were
hammering the wooden stake on land
belonging to his family to forcibly occupy
it and, when his brother, Rakesh Kumar
objected, all the three accused started
assaulting him by lathis; hearing the
commotion/noise, he with his sister came at
the place of incident and, when the
witnesses and his sister tried to save the
deceased, the accused threatened them also.
In his cross-examination, he said that he
reached at the place of incident after
hearing the noise/commotion; crowd had
already got collected; when he reached at
the place of incident, the deceased told him
about the injuries caused to him but he
could not see any injury from his eyes; he
also said that Jaswant, PW-3, another
brother of the deceased, had reached before
him.

4.4 Thus, PW-1 was not present
at the time when deceased received injuries
allegedly by the accused; he said that he,
deceased Rakesh, Jaswant and sister
Manorama were unarmed and, they did not
assault anyone; he denied the suggestion
that they had assaulted Shanti, Neetu and
Jay Singh by lathi and danda and Murli
was also involved in assault; he said that
Murli Prasad came at the place of incident
at 8.a.m; Rakesh and Jaswant were taken
home; the deceased could not be taken to
any Doctor immediately as the accused had
encircled the house of the deceased; after
the incident, Murli Prasad came on a
motorcycle with Subedar Singh.

4.5 This witness had denied the
suggestion that the deceased wanted to take
possession of the land of Daya Ram and
when Jay Singh, Shanti and Neetu
objected, the deceased, this witness and his
brother,
Jaswant
and
Murli
Prasad
assaulted Shanti, Neetu and Jay Singh; and
deceased Rakesh received injuries in selfdefense. He also denied the suggestion that
any case was registered against him and
other family members.

4.6 PW-2,
Murli
Prasad
is
brother-in-law of the deceased. He said that
on the date and time of the incident, he was
present at his shop at Rampur Behda
Crossing and, his wife was at his in-laws'
place; he received information at quarter to
8 that a fight had taken place between Daya
Ram, Amar Singh, Rakesh and Jaswant
and, he was called for. He reached at the
place of incident and, found the condition
of Rakesh deteriorating; Rakesh told him
that he had received serious injuries on his
head and, he was having severe unbearable
pain. He further said that Rakesh told him
that Daya Ram, Jaswant and Mahendra had
assaulted him.

This witness is not an eyewitness,
however, he said that when he took Rakesh
to the police station, Rakesh was in senses.
He proved the complaint and, his signatures
2 All. Daya Ram & Anr Vs. State of U.P.
447
on the inquest. He also said that lathi was
recovered in his presence on pointing out of
accused Mahendra. He said that the
investigating officer prepared recovery
memo, Exhibit Ka-3. He denied the
suggestion that he, Rakesh, Amar Singh,
and Jaswant had assaulted Daya Ram's
wife, Shanti, his daughter Neetu and son
Jay Singh and, after assaulting them, he
came to his village.

4.7
PW-3,
Jaswant,
in
his
statement, stated that he was present at the
time of incident along with his brother
Rakesh
Kumar;
the
accused
were
hammering the wooden stake on land
belonging to them and, when they objected,
the accused assaulted the deceased by lathi;
when he tried to save his brother, he was
also assaulted; when the deceased and he
raised alarm, then his brother Amar Singh,
sister Manorama came running and many
villagers also got collected; the accused
fled away from the scene of occurrence,
extending threat.

This witness accepted that he was
admitted on bail by the Court in the case
registered by Daya Ram etc against them;
he along with his brother Amar Singh and
Murli Prasad were admitted on bail in
N.C.R. No. 099 of 2002. However, he
denied the suggestion that he and others
named in the said case had assaulted Shanti
Devi, Neetu and Jay Singh and, that he did
not receive any injury and, his medical
examination was not conducted.

4.8 PW-5, Ram Shanker, villager
is said to be an independent witness. He
said that he witnessed deceased Rakesh,
Madan and Daya Ram quarrelling and
abusing each other; he said that Rakesh was
hammering wooden stake and for this
reason quarrel was taking place. Daya Ram
was objecting, but Rakesh was not stopping
then Daya Ram, Mahendra and Jay Singh
assaulted Rakesh by lathis. Mahendra gave
lathi blow on the head of Rakesh; Rakesh
fell down, started vomiting and became
unconscious; at that time, many villagers
came; Amar Singh and his sister Manorama
also came; the accused hit Amar Singh and
threatened to hit Manorama as well; when
this witness tried to save Rakesh, he was
also threatened, when Jagdev etc. came
then only all the accused fled away from
the scene of occurrence. This witness,
however, said that when he reached to the
shop of Vinod, he heard noise/commotion;
he purchased ''Bidi' from the shop, but the
noise increased, and many people started
running towards the house of Daya Ram. It
was 6 a.m., he also reached running; all the
family members of Daya Ram were present
so as the family members of deceased
Rakesh; when he reached, both the sides
were spinning lathis and, he could not see
whose lathi hit whom; when he reached, he
could notice that Rakesh had received
injuries; he did not see Shanti, Neetu and
Jay Singh in injured condition; he did not
see Amar, Rakesh, Jaswant and Murli
hitting Jay Singh.

4.9 PW-5, Dr. H.N. Tiwari, who
conducted the postmortem on the cadaver
of the deceased; he proved the postmortem
report and, said that ecchymosis was
present under all the injuries; there was a
linear fracture of right temporal and
occipital
bone
on
right
extradural
hematoma was present underneath fracture
and subdural hematoma was present in all
over mind.

4.10 PW-6, S.I., Shyam Bahard
Singh prepared the inquest report.

4.11 PW-7, Suresh Chandra had
recovered lathi used by Mahendra on his
pointing out.

4.12 PW-8, Jeetut Ram was
investigating officer of the offence initially,
who prepared the site-plan, Exhibit Ka-8
and, prepared the report of taking sample of
448 INDIAN LAW REPORTS ALLAHABAD SERIES
plain and blood-stained earth, Exhibit Ka-9.
He said that on 22.07.2002, an N.C.R.
No.099 of 2002 came to be registered at
police station on the complaint of wife of
Daya
Ram
and,
he
conducted
the
investigation of the said N.C.R. as well.
The charge-sheet in the said offence was
submitted against Amber Lal, Tanna alias
Jaswant and Murli after permission from
the Court. This was a cross case of the case
against accused.

This witness said that he prepared
the site-plan on pointing out of the witness,
but he did not mention the name of the
witness. In his report, he also said that he
did not find any wooden stake fixed on the
earth at the place of incident. He only
prepared one Parcha of the case diary. He
said
that
the
accused
Madan
alias
Mahendra was employed as home-guard.
Shanti, wife of Daya Ram, his daughter
Neetu, son Jay Singh had received injuries
in the incident.

4.13 PW-9, Vijay Narain Pandey
said that initially the investigation of the
offence registered at Case Crime No.0149
of 2020 was given to S.I., Jeeut Ram,
however, after death of Rakesh, he took
over the investigation and submitted the
charge-sheet.

After looking at Paper No.7/2 in
Sessions Trial No.635 of 2004, this witness
said that this report was registered on
22.07.2002 at 8.10 a.m. at the police station
and, the referral letter for examining the
injured in the case was prepared at the
police station, which was filed in Sessions
Trial No.635 of 2004.

4.14 PW-10, Dr. Jamshed Nazim
examined Jaswant Singh. He said that the
injured was brought to him by home-guard,
Hanuman Prasad on 24.07.2002 at Community
Health Center, Bakshi-Ka-Talab and following
injuries were found on his body:-

i. 1.5cm x 0.5cm abrasion on
forehead 3.0cm above left eyebrow clot
present;

ii. Abrasion 2.5cm x 1.0 cm in
size on left side of face, 4.0cm from ingress
of left ear clot present;

iii. Abraded contusion 9cm x 4cm
on right side of back, 3.0cm medial to left
shoulder joint clot present;

Injury nos. 1, 2 and 3 could have
been caused by blunt and hard object. No
x-ray of Jaswant was received and,
therefore, supplementary report was not
prepared by him.

4.15
PW-11,
Constable
Priy
Kumar Tripathi said that on 22.07.2020 he
was posted as Constable (Mohrir) and, he
made the entry of the report given by
complainant, Murli.

5. Defense Case

5.1 The appellants, in their
statements recorded under Section 313
CrPC, denied the incident. Appellant,
Mahendra said that he did not hit Rakesh
Kumar and, a false case was registered
against him and other accused; he also
denied the recovery of lathi on his pointing
out and, said that he was on home-guard
duty in Traffic Police Line, Sadar,
Lucknow on 22.07.2002; he said that he
was on duty since 4.30 a.m; when he was
coming back after performing his duty, the
police of Bakshi-Ka-Talab arrested him.

5.2 Appellant, Daya Ram, in his
statement under Section 313 CrPC, said
that he was not present at the place of
incident, he had been falsely implicated; on
21.07.2020, he went to Manshapurwa,
District Barabanki as his grand-son was ill
and,
after
receiving
the
information
regarding the incident, he came back on the
next day i.e. 22.07.2002.
2 All. Daya Ram & Anr Vs. State of U.P.
449

5.3 Appellant, Jay Singh had
denied the incident and, said that on their
land, Murli, Amber, Jaswant and Rakesh
were collecting earth; when he objected,
these persons attacked him; he squabbled
with Rakesh; Murli hit a lathi blow,
aiming at him, but he could get aside and,
this lathi hit Rakesh; thereafter, he went
to police station to lodge an FIR; he also
said that his mother and sister had also
received injuries.

6. Evidence of the Defense

6.1 The appellants, in their
defense examined Ram Naresh as DW-1.
He said that on the date of incident, he
witnessed that Jay Singh, his sister and
mother had received injures; hearing
noise/commotion, he reached at the place
of incident; Daya Ram's wife told him that
Daya Ram had gone to Manshapurwa and,
requested him to inform about the incident.
He said that Manshapurwa is 30-32
kilometers where Daya Ram's daughter was
married and, he went on a motorcycle to
give information to him; he reached
Manshapurwa at 9 p.m; when he reached at
the place of incident, he saw Jay Singh, his
sister and mother in injured condition, but
he did not take them to the hospital; he
denied the suggestion that he was not
present at the time and place of the
incident.

6.2. DW-2, Gulab Singh deposed
that on 22.07.2020, he was posted as
general diary writer in Traffic Police Line,
Sadar, Cantt., Lucknow; he filled the homeguard duty register and home-guard,
Mahendra Pal was also sent for duty for
traffic management by the said G.D; he
verified his handwriting and signature on
the G.D. He said that Mr. Ramdhiraj Singh,
Platoon
Commander
had
taken
the
attendance; Mahendra, home-guard was not
physically present before him to mark his
presence.

6.3 DW-3, Ram Dhari Singh,
Company
Commander
stated
that
Mahendra Pal was working as home-guard
and, on 22.07.2002, he noted his presence
at Report No. 14 at 7.10 a.m. in his
handwriting and signature. The relevant
page was submitted, which was marked as
Exhibit Kha-2. He said that Mahendra Pal
was present on duty. He also said that he
recognized every home-guard under him,
but after allotting duty, he would not go for
checking.

7. Impugned Judgment

7.1 The trial Court held that the
Sessions Trial No.635 of 2004 'State Vs.
Amber Lal and others, under Sections 323
and 504 IPC lodged at Police Station
Bakshi-Ka-Talab, Lucknow, which is a
cross-case, had not been treated to be a
cross-case by the prosecution. As the
certified copies of the documents of the
said case were not been filed in the present
case, evidence of the Sessions Trial No.635
of 2004 would not be read in this case
under the Evidence Act and, both the cases
would be decided independently.

7.2 The trial Court has not
believed the defense case that when the
deceased, Rakesh, Murli, Jaswant and
Amber Lal were hitting Neetu, Shanti and
Jay Singh and, Murli tried to hit Jay Singh
by Lathi, but Jay Singh could ducked and
the lathi blow hit Rakesh on the ground
that five other injuries on the body of the
deceased would prove that more than one
person had assaulted the deceased, Rakesh.
The trial Court has believed the presence of
witness, Jaswant on the ground that the
defense case was that Murli, Amber,
Jaswant and Rakesh had assaulted Shanti,
Neetu, Jay Singh by lathi and, therefore, it
450 INDIAN LAW REPORTS ALLAHABAD SERIES
could not be said that he was not present at
the place of incident. The trial Court,
however, has not believed the injuries on
this witness as first he went Indaura
Hospital on the date of incident, but he got
himself examined at the Community Health
Center, Bakshi-Ka-Talab on 24.07.2020
and, it appears that the Doctor at Indaura
Hospital was not ready to prepare a false
medical
report
and,
therefore,
on
24.07.2002,
he
was
examined
at
Community Health Center, Bakshi-KaTalab and, the injury report was prepared.
The trial Court has also concluded that to
give credence to the incident, a false
medical report of witness, Jaswant got
prepared, but in fact, he did not receive any
injury. The trial Court in the impugned
judgment has held that since the Sessions
Trial No.635 of 2004 is not a cross-case, it
is not to be decided that who was the
aggressor. Believing in the testimony of the
independent witness, Ram Shanker, who
said that Rakesh was hammering a wooden
stake, trial Court has held that Rakesh had
tried to hammer the wooden stake, but the
accused had assaulted him by lathi as a
result thereof he had died. The trial Court
has not believed the defense case and, has
held that DW-1, Ram Naresh and DW-2
and DW-3 had given false evidence to save
their colleagues.

8. Submissions

8.1 Heard Mr. I.B. Singh, learned
Senior Advocate assisted by Mr. Sujeet
Kumar Singh, appearing for the appellants,
and Mr. S.P. Singh, learned Additional
Government Advocate, appearing for the
respondent-State.

8.2 Mr. I. B. Singh learned Senior
Advocate has argued that the trial Court
had committed a gross error of law and fact
in not treating the Sessions Trial No.635 of
2004 as a cross-case. He submits that from
the statement of the investigating officer,
Jeeut Ram, it is clear that the Sessions Trial
No.635 of 2004 was a cross-case and for
that reason the trial of both the cases were
conducted by the same Court and, if it was
not a cross-case then the Sessions Court
could not have conducted the trial as the
offence is triable by Magistrate. He has
submitted that if the trial of both the cases
were conducted together, there was no
requirement of filing certified copies of
evidence of one case in another case
inasmuch as the whole evidence would be
available before the Court. He has further
submitted that when the independent
prosecution witness, PW-4 in his statement
had said that it was Rakesh, deceased, who
was hammering wooden stake then the trial
Court was required to determine that which
party was aggressor, particularly, when
both the parties had assaulted each other,
and injuries were on both sides. He has
further submitted that this has led to a
miscarriage of justice, which has resulted
into wrong conviction and sentence of the
appellants for offence under Section 302
IPC

8.3 On behalf of the appellants,
the second limb of argument of the learned
Senior Advocate is that there was only one
lathi blow on the head of the deceased,
which proved fatal. The role of hitting the
lathi blow on the head of the deceased had
been assigned only to appellant, Mahendra
alias Madan. The deceased was conscious
throughout. As per the prosecution case, he
was taken home from the place of incident
and brought to the police station from
where he was referred for medical
examination and, thereafter referred to the
Balrampur Hospital where he died in the
evening. He has further submitted that there
was no intention for causing death of
deceased, Rakesh, even if the prosecution
2 All. Daya Ram & Anr Vs. State of U.P.
451
case is believed. The other injuries are on
non-vital parts which are allegedly caused
by two other appellants, namely, Daya Ram
and Jay Singh. It was possible that if the
deceased was given timely treatment, he
could have been saved, but delay in taking
him to the hospital, not providing medical
treatment in time had resulted the death of
the deceased. He has further submitted that
both the sides had assaulted each other. The
trial Court itself has not believed the
injuries allegedly suffered by witness
Jaswant, whereas on the accused side three
persons had received injuries.

8.4 The learned Senior Advocate
has further submitted that considering the
aforesaid facts and the evidence, the trial
Court ought not have convicted all the three
appellants under Section 302 IPC inasmuch
as per prosecution case, only appellant
Mahendra had given a lathi blow on the
head of the deceased. Even against
appellant Mahendra the offence under
Section 302 IPC is not made out and, at the
maximum, it would be an offence under
Section 304 Part-II IPC and against two
other appellants only the offence under
Section
323
IPC
is
proved
if
the
prosecution case is totally believed. The
trial Court has committed a gross error in
convicting all the three appellants and
sentencing them for life for offence under
Section 302 IPC. The learned counsel has
further
submitted
that
the
appellant
Mahendra has already undergone more than
14 years of imprisonment as he was denied
bail by this Court and he has remained in
jail throughout. Considering injury and
evidence,
conviction
of
appellant
Mahendera is required to be altered under
Section 304 Part-II IPC.

8.5 On the other hand, Mr. S.P.
Singh, learned Additional Government
Advocate, has supported the impugned
judgment of the trial Court and, submitted
that the accused had knowledge that the
injuries caused by them would result in
death of the deceased as the injuries caused
to the victim were sufficient in the ordinary
course to cause death. The injury on the
head of the deceased was fatal one and, was
inflicted with an intention and knowledge
to cause death of the deceased. The
deceased had died on the same day within a
few hours and, therefore, it cannot be said
that the accused did not know that the
injuries caused by them would result death
of the deceased. He has further submitted
that this was not an accidental injury and,
lathi blow, on head, was intentionally given
by the accused. He has further submitted
that the trial Court has rightly convicted
and sentenced all the three accused for
offence under Section 302 IPC inasmuch as
with common intention all the three
accused had assaulted the victim and
injuries caused by them had resulted in
death of the deceased.

9. Analysis

9.1 We have considered the
evidence on record which has been
extracted herein above and arguments
advanced on behalf of the appellants as
well as the State.

9.2 The first issue in the present
appeal is whether Sessions Trial No. 635 of
2004 was a cross-case of the present case.
The Supreme Court in the case of Nathi
Lal Versus State of U.P., 1990 Supp SCC
145 had laid down the guidelines for trying
two cases regarding the same incident as
cross-cases. In the present case, the trial
Court had assumed the jurisdiction in the
case of Sessions Trial No.635 of 2004 only
on the ground that it was a cross-case of the
present case. Otherwise, offence under
Sections 323 and 504 IPC is triable by
Magistrate. The charge-sheet was filed in
452 INDIAN LAW REPORTS ALLAHABAD SERIES
the said case after taking permission under
Section 155(2) CrPC and, the prosecution
treated it to be a cross-case, but the trial
Court unfortunately has held that the
prosecution did not consider the Sessions
Trial No.635 of 2004 as a cross-case.

9.3 The Supreme Court in the case
of State of State of M.P. Versus Mishrilal
(Dead) and others (2003) 9 SCC 426 has
held that the cross-cases should be tried
together by the same Court irrespective of
nature
of
offence
involved
to
avoid
conflicting judgments over the same incident.
Paragraph-8 of the aforesaid judgment is
extracted herein-blow:-

8. In the instant case, it is
undisputed, that the investigating officer
submitted the challan on the basis of the
complaint lodged by the accused Mishrilal in
respect of the same incident. It would have
been just, fair and proper to decide both the
cases together by the same court in view of
the guidelines devised by this Court in
Nathilal's case. The cross- cases should be
tried together by the same court irrespective
of the nature of the offence involved. The
rational behind this is to avoid the conflicting
judgments over the same incident because if
cross cases are allowed to be tried by two
courts separately there is likelihood of
conflicting judgments. In the instant case, the
investigating officer submitted the challan
against both the parties. Both the complaints
cannot be said to be right. Either one of them
must be false. In such a situation, legal
obligation is cast upon the investigating
officer to make an endeavor to find out the
truth and to cull out the truth from the
falsehood. Unfortunately, the investigating
officer has failed to discharge the obligation,
resulting in grave miscarriage of justice.

9.4 It would have been an
appropriate course to remand the matter
back to the trial Court on this short issue,
but considering the long time period and,
the fact that the appellant Mahendra alias
Madan has already undergone more than 14
years sentence, we are not sending the case
back to the trial Court.

9.5 The second issue, which
arises for our consideration, is whether the
conviction of all the three appellants under
Section 302 IPC read with Section 34 IPC
would
be
justified
on
the
facts,
circumstances and evidence on record. It
was a sudden incident, which took place
over a trivial matter. There was no prior
mediation or meeting of mind between the
accused. As per the prosecution case, the
fatal lathi blow on head of the deceased
was given by appellant, Mahendra. Other
injuries found on the body of the deceased
were simple in nature. Therefore, the trial
Court has erred to conclude that the
accused with a common intention of
committing murder had assaulted the
deceased. There is nothing on record from
which it can be pointed that the accusedappellants had arrived at the place of
incident with common intention to kill the
deceased and, therefore, the conclusion of
the trial Court is wholly incorrect and
unjustified. The Supreme Court in the case
of Virsa Singh Versus State of Punjab,
AIR 1958 SC 465 has held that for
conviction under Section 302 IPC the
injury must have been caused with an
intention to cause death and it should be
proved that the injury found is sufficient to
cause death in ordinary course of nature,
but in this connection, it should also be
shown that such a injury was intended to be
inflicted. For convicting an accused under
Section 302 IPC, there should be fatal
injury and intention to inflict a particular
body injury. Paragraphs 12, 13, 14, 15, 16,
17, 18 and 19 of the said judgment are
extracted herein below:-
2 All. Daya Ram & Anr Vs. State of U.P.
453

12. Once that is found, the
enquiry shifts to the next clause- "and the
bodily injury intended to be inflicted is
sufficient in the ordinary course of nature
to cause death." The first part of this is
descriptive of the earlier part of the
section, namely, the infliction of bodily
injury with the intention to inflict it, that is
to say, if the circumstances justify an
inference that a man's intention was only to
inflict a blow on the lower part of the leg,
or some lesser blow, and it can be shown
that the blow landed in the region of the
heart by accident, then, though an injury to
the heart is shown to be present, the
intention to inflict an injury in that region,
or of that nature, is not proved. In that
case, the first part of the clause does not
come into play. But once it is proved that
there was an intention to inflict the injury
that is found to be present, then the earlier
part of the clause we are now examining-"
and the bodily injury intended to be
inflicted" is merely descriptive. All it means
is that it is not enough to prove that the
injury found to be present is sufficient to
cause death in the ordinary course of
nature; it must in addition be shown that
the injury is of the kind that falls within the
earlier clause, namely, that the injury
found to be present was the injury that was
intended to be inflicted. Whether it was
sufficient to cause death in the ordinary
course of nature is a matter of inference or
deduction from the proved facts about the
nature of the injury and has nothing to do
with the question of intention.

13. In considering whether the
intention was to inflict the injury found to
have been inflicted, the enquiry necessarily
proceeds on broad lines as, for example,
whether there was an intention to strike at
a vital or a dangerous spot, and whether
with sufficient force to cause the kind of
injury found to have been inflicted. It is, of
course, not necessary to enquire into every
last detail as, for instance, whether the
prisoner intended to have the bowels fall
out, or whether he intended to penetrate the
liver or the kidneys or the heart. Otherwise,
a man who has no knowledge of anatomy
could never be convicted, for, if he does not
know that there is a heart or a kidney or
bowels, he cannot be said to have intended
to injure them. Of course, that is not the
kind of enquiry. It is broad-based and
simple and based on commonsense: the
kind of enquiry that "twelve good men and
true"
could
readily
appreciate
and
understand.

14.
To
put
it
shortly,
the
prosecution must prove the following facts
before it can bring a case under Section 200
"thirdly".

15. First, it must establish, quite
objectively, that a bodily injury is present.

16. Secondly, the nature of the
injury must be proved; These are purely
objective investigations.

17. Thirdly, it must be proved that
there was an intention to inflict that
particular bodily injury, that is to say, that it
was not accidental or unintentional, or that
some other kind of injury was intended.

18. Once these three elements are
proved to be present, the enquiry proceeds
further and.

19. Fourthly, it must be proved that
the injury of the type just described made up
of the three elements set out above is
sufficient to cause death in the ordinary
course of nature. This part of the enquiry is
purely objective and inferential and has
nothing to do with the intention of the
offender.

10. Conclusion

10.1 Considering the aforesaid
aspects,
evidence
on
record
and
454 INDIAN LAW REPORTS ALLAHABAD SERIES
submissions advanced on behalf of the
accused-appellants and by the learned
Additional Government Advocate, we are
of the view that it cannot be concluded that
all the three appellants had common
criminal intention to cause death of the
deceased. The lathi blow on head was
allegedly given by appellant, Mahendra,
but it was not with an intention to cause
death of the deceased. When there was no
common intention amongst the accused for
causing injuries sustained by the deceased,
all the three accused cannot be held guilty
for same offence but each one be guilty for
injury individually caused by him. Section
38 of the IPC reads as under:-

38.
Persons
concerned
in
criminal act may be guilty of different
offences.--Where several persons are
engaged or concerned in the commission
of a criminal act, they may be guilty of
different offences by means of that act.
Illustration
A attacks Z under such circumstances of
grave provocation that his killing of Z
would be only culpable homicide not
amounting to murder. B, having ill-will
towards Z and intending to kill him, and
not
having
been
subject
to
the
provocation, assists A in killing Z. Here,
though A and B are both engaged in
causing Z's death, B is guilty of murder,
and A is guilty only of culpable homicide.

10.2 In view of the aforesaid
discussions, we set-aside the conviction of
the accused-appellants, Daya Ram and Jay
Singh, under Sections 302 IPC read with
Section 34 IPC and, convict each of them
under
Section
323
IPC.
They
are
sentenced
to
the
sentence
already
undergone by them. We also set-aside the
conviction
of
the
accused-appellant,
Mahendra alias Madan under Section 302
IPC read with Section 34 IPC and, convict
him under Section 304 Part-II IPC.
Accused-appellant, Mahendra alias Madan
is sentenced to the sentence already
undergone by him, which is more than 14
years, as he was denied bail by this Court
vide order dated 9th April, 2008 after his
conviction by the trial Court.

10.3. Thus, both the appeals are
allowed partly.

10.4 Appellants Daya Ram and
Jay Singh are on bail. They need not to
surrender. Their bail bonds are cancelled
and sureties are discharged.

10.5 Appellant Mahendra alias
Madan, who is in jail, is directed to be setfree forthwith unless otherwise wanted in
any other case.

10.6
Keeping
in
view
the
provisions
of
Section
437-A
CrPC,
accused-appellants, Daya Ram and Jay
Singh are directed to furnish fresh
personal bonds before the trial Court in
terms of Form-45 prescribed in CrPC of a
sum of Rs.25,000/- each and, two reliable
sureties,
each
in
the
like
amount.
Likewise, accused-appellant, Mahendra
alias Madan shall furnish a personal bond
of Rs.25,000/- and two reliable sureties,
each in the like amount within ten days
from his release.

10.7. The personal bonds and
sureties bonds filed by the accusedappellants shall be effective for a period of
six months along with an undertaking that
in the event of filing of special leave
petition(s) against the instant judgment
and/or for grant of leave, the aforesaid
accused-appellant(s),
on
receiving
notice(s) thereof, shall appear before the
Supreme Court.

10.8 Let a copy of this judgment,
along with the trial Court record, be sent
to the trial Court forthwith for compliance.
----------
2 All. Bhujveer & Anr. Vs. The State of U.P.
455
(2021)02ILR A455
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 3310 of 2012
&
Criminal Appeal Defective No. 8 of 2013

Bhujveer & Anr. ...Appellants (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Yogesh Kumar Srivastava, Sri Noor
Mohammad, Sri Satish Dwivedi, Sri Mohit
Gautam, Sri Rajesh Kumar Dubey, Sri K.S.
Tiwari, Sri Vikram Singh

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

A.
Criminal
Law
-Code
of
Criminal
Procedure,1973-Section 374(2) - Indian
Penal
Code,1860-Sections
Section
302/34-challenge
to-
convictionmodification of sentence-deceased was
beaten and set ablazed- role of the
appeallants are clear from the dying
declaration and other records-However,
deceased had survived for around 6 days
ultimately died of septicimia- appellants
held guilty u/s 304 Part-I IPC not u/s
302/34 IPC as the case attracted the
exception 1 of Section 300 IPC-(Para 1 to
27)

B. In the instant case, it appears that the
death caused by the accused was not
premeditated, accused had no intention to
cause death of deceased, the injuries were
though sufficient in the ordinary course of
nature to have caused death, accused had
no intention to do away with deceased,
hence, the instant case falls under the
exception 1 to Section 300 IPC.(Para 22)

The appeal is partly allowed. ( E-5)

List of Cases cited:-

1. R.Rachaiah Vs Home Secretary ,(2016)
Supreme (SC) 383

2. Maniben Vs St. of Guj., (2009) LawSuit (SC)
1380

3. Bengai Mandal@ Begai Mandal Vs St. of Bih.,
(2010) 1 Supreme 49

4. Chirra Shivraj Vs St. of A. P., (2010) 1
LawSuit (SC) 843

5. Smt. Rama Devi @ Ramakanti Vs St. of U.P.
Crl. Appl. No. 1438 of 2010

6. Banwari & anr. Vs St. of U.P. Crl. Appl. No. 26
of 2007

7. Pramod Kumar Vs St. of U.P. Crl. Appl. No.
318 of 2015

8. Tukaram & ors. Vs St. of Mah.,(2011) 4 SCC
250

9. B.N. Kavatakar & anr. Vs St. of Kar. (1994)
SUPP (1) SCC 304,

10. Veeran & ors. Vs St. of M.P. (2011) 5 SCR
300

11. Gautam Manubhai Makwana Vs St. of Guj.,
Crl. Appl. No. 83 f 2008

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1.

Heard
Sri
Yogesh
Kumar
Srivastava,
assisted
by
Sri
Noor
Mohammad, learned Advocates for the
appellants and learned A.G.A. for the State.

2. Both these appeals challenge the
judgment and order dated 26/27.7.2012