# Dharamvir & Anr v. State of U.P. 972 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 3 ILRA 971
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-16
- **Case number:** Criminal Appeal No. 5567 of 2011
- **Bench:** Siddhartha Varma, Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharamvir-anr-v-state-of-u-p-972-indian-law-reports-allahabad-series-49891
- **Pages:** 6

## Headnote

Criminal Law- Indian Penal Code-1860Sections 34 & 302-Deceased was attacked
by a sword by one of the accused resulting
death of the deceased-Conviction U/s 302
r/w section 34 IPC-When there was a
sword being used the injuries could not be
as wide as have been shown in the post
mortem report. The first injury is of 7cm X
3cm which is a very wide injury and which
could be caused only by an object which
was not sharp-Definitely the injury of
12cm X 4cm also could not be caused by a
sword which is a very sharp weapon-
Injuries which are 7cm and 12cm in the
length were there cannot be explained-
St.ment
of
Ramdayal
(prosecution's
eyewitness) who was brother in law of the
deceased
in
his
cross-examination
absolutely
falsifies
the
case
of
the
prosecution and in his cross-examination
he had divulged the truth- No reason to
believe
that
accused
appellants
had
committed
the
crime-Appellants
acquitted.

Appeal allowed. (E-15)

## Text

3 All. Dharamvir & Anr. Vs. State of U.P.
971
be dealt with in light of all these judgments.
Judgments in Pravat Chandra Mohanty
v. State of Odisha, (2021) 3 SCC 529 &
Pardeshiram v. State of M.P., (2021) 3
SCC 238 will also enure for the benefit of
the accused.

20. The judgments cited by the
learned counsel for the appellant and facts
and evidence as sited above, would permit
us to uphold our finding which we
conclusively hold that the offence is not
punishable as per Section 302 of I.P.C. but
is culpable homicide not amounting to
murder, punishable U/s 304 (Part I) of
I.P.C.

21. We now come to the role of the
accused-appellants. All the four accusedappellants were convicted for the offence
punishable under Section 302 read with
Section 149 of IPC.

22. On perusal of the record in the
light of Section 149 of I.P.C., It cannot be
said that there was common intention or
object to do away with the deceased. There
was no premeditation of minds as the F.I.R.
itself states that the deceased had gone to
the residence of the accused to demand his
money and that infuriated the accused and
non lethal weapon was used though a
cartridge and a country made pistol has
been recovered from the accused Anees @
Gama but while going through the record
and while going through the post-mortem
report, while going through the medical
report it is very clear that fire arm is not
used and the deceased did not receive any
fire arm injury nor was a fire arm used,
which shows that there was no intention of
doing away with the deceased and the
object was only to teach a lesson to the
deceased. The deceased did not succumbed
to the injuries on the spot, the informant @
brother of the deceased took him to the
hospital and during treatment, he was
declared dead. Therefore, the offence
cannot be said to be one under which can
be punished with the aid of Section 149
I.P.C.

23. The accused-appellants are
convicted for culpable homicide not
amounting to murder with punishment of
sentence of ten years and fine of Rs.1,000/-
each. If the fine is not paid, default
sentence of three months, which would
start after the tenth year of incarceration.
The ten years of incarceration would be
with remission.

24. The appeal is partly allowed. In
view of the matter, the case would fall
within Section 304-I I.P.C. Fine substituted
to Rs.1,000/- each and if the fine is not
paid, the default sentence would start after
ten years of incarceration with remission. If
the accused has served out their period,
they released.

25. Record and proceedings be sent
back to the Court below forthwith.

26. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2023) 3 ILRA 971
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAJIV JOSHI, J.

Criminal Appeal No. 5567 of 2011

Dharamvir & Anr. ...Appellants
Versus
State of U.P. ...Respondent
972 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Apul Misra, Sri P.N. Misra, Sri Ritesh Singh,
Sri R.P. Misra

Counsel for the Respondent:
G.A.

Criminal Law- Indian Penal Code-1860Sections 34 & 302-Deceased was attacked
by a sword by one of the accused resulting
death of the deceased-Conviction U/s 302
r/w section 34 IPC-When there was a
sword being used the injuries could not be
as wide as have been shown in the post
mortem report. The first injury is of 7cm X
3cm which is a very wide injury and which
could be caused only by an object which
was not sharp-Definitely the injury of
12cm X 4cm also could not be caused by a
sword which is a very sharp weapon-
Injuries which are 7cm and 12cm in the
length were there cannot be explained-
St.ment
of
Ramdayal
(prosecution's
eyewitness) who was brother in law of the
deceased
in
his
cross-examination
absolutely
falsifies
the
case
of
the
prosecution and in his cross-examination
he had divulged the truth- No reason to
believe
that
accused
appellants
had
committed
the
crime-Appellants
acquitted.

Appeal allowed. (E-15)

(Delivered by Hon'ble Siddhartha Varma,
J. & Hon'ble Rajiv Joshi, J.)

1. A First Information Report was
lodged by one Rampal on 24.05.1995
stating that the accused had gone to the
house of Vidyasagar and had searched for
him and thereafter one of them had hit him
by a sword which had resulted in such an
injury that Vidyasagar could not stand. The
first informant resultantly had gone out to
search for a vehicle to carry Vidyasagar to
get medical aid. In the First Information
Report, it was stated that Rampal along
with Ramdayal had gone to Sherpur where
the
first
informant
and
Ramdayal
(Vidyasagar's brother-in-law (behnoi)) had
met the Gram Pradhan and Ramavtar
Kurmi and they had narrated to them about
the incident.

2. The further case of the First
Informant is that when the first informant
and Ramdayal could not get any vehicle
they went back to the house of Vidyasagar
where it was found that he had died and,
therefore, they approached the Police
Station Katra, Sahjahanpur, to lodge a First
Information Report. A chik FIR was
prepared and handed over to the first
informant. The police visited the spot and
recovered the blood stained earth and plain
earth. The police also recovered the cot on
which Vidyasagar was sitting.

3. The police also prepared a spot
map. Thereafter, a Panchayatnama was
prepared and the body was sent for post
mortem.

4. Upon the First Information Report
being lodged which gave rise to Case
Crime No. 90 of 1995, the police further
investigated and took statements under
Section
161
Cr.P.C.
and,
thereafter,
submitted its charge-sheet on 23.06.1995.
The Magistrate took cognizance of the
matter and placed the case for trial before
the Sessions Judge, who on 31.10.1996
framed
charges
against
Baikunthnath,
Dharamvir, Totaram and Ram Ashrey @
Nanhika. At the trial stage, the prosecution
produced seven prosecution witnesses. The
accused persons gave their statements
under Section 313 Cr.P.C. and thereafter
when the trial concluded and resulted in a
conviction
against
the
alive
accused
persons, namely, Ram Asre @ Nanhika and
Dharamvir, under Section 302 IPC read
with Section 34 IPC, the instant appeal was
filed.
3 All. Dharamvir & Anr. Vs. State of U.P.
973

5. Before the High Court in Appeal,
Shri Apul Mishra, learned counsel for the
appellants has, therefore, argued that;

I. On the date and time when
Vidyasagar was attacked it was 07:30 pm in
the evening of 24.05.1995. Thereafter the
First Information Report was lodged on
11:05 pm by P.W.-1 Rampal and, therefore,
it was a very belated FIR.

II. Learned counsel for the appellants
has further argued that, in fact, Rampal was
an illiterate person and, therefore, he had
tried to get the assistance of Ramdayal and,
therefore, he had waited for Ramdayal to
come to the village of the deceased from
where he was residing and that took some
time.

III. The FIR version given by Rampal
was very different from the version of the
other eye-witnesses namely, PW-2 and PW3 who have actually assigned the role of
assailing by sword to the appellant Ram
Ashrey.

IV. Learned counsel for the appellants
states that when Rampal was accompanied
by Ramdayal to village Sherpur where they
had gone to fetch a vehicle then Ramdayal
must have told that who had hit the
deceased by sword yet he had chosen to
narrate that it was not clear as to who had
hit the deceased by sword while he was
lodging the First Information Report.
Learned counsel for the appellants states
that definitely Ramdayal knew the name of
Ram Ashrey as he has through out
mentioned the name in his statement in the
Court.

V. Learned counsel for the appellants
stated that Ramavtar whom the PW-1 and
PW-3 met for the purposes of getting
vehicle was never produced in the Court as
witnesses.

VI. While in the FIR it was stated that
Urmila the sister of the deceased was
present as an eye witness at the time of the
incident, she was never produced as an eye
witness in the Court.

VII. The sword is a large thing which
could have been recovered from either the
possession of the assailants or it could have
been found lying at the place of incident
but the sword had never been discovered.

VIII.
The
motive
which
the
prosecution has attributed for the killing of
Vidhyasagar that Vidhyasagar, who was a
mason, had refused to work as mason for
Totaram, Baikhund Nath, Ramashrey and
Dharamvir could not be believed.

IX. Learned counsel for the appellants
had argued that even if the case of killing
was proved, it could not be said that it was
a culpable homicide amounting to murder
and, therefore, the accused could not have
been punished for murder.

To support his argument, learned
counsel for the appellants has stated that it
appears that there was a heated altercation
between Baikhund Nath and Vidhyasagar
and, therefore, just to conclude the
argument, the four assailants had gone and
in the heat of the moment the sword was
used.

X. Learned counsel for the appellants
states that injuries on the body of deceased
were not such which could be attributed to
a sword.

XI. Learned counsel for the appellants
states that Ram Dayal had stated in his
examination-in-chief that Ram Ashrey had
inserted the sword in the body of Vidhya
Sagar and this version, he says, did not
match with the injury report.

XII.
Learned
counsel
for
the
appellants
states
that
if
the
crossexamination of P.W. -3, namely, Ram
Dayal, who was the brother-in-law of the
deceased, is seen then it could easily be
said that the story which was told by the
974 INDIAN LAW REPORTS ALLAHABAD SERIES
first informant at the time of lodging of the
first information report was absolutely a
fallacious one as the P.W.-3 had stated that
he had come to his in-laws place in the
afternoon where he had met Vidhyasagar.
Vidhyasagar had entertained the P.W.-3
and, throughout, Vidhyasagar was present
with
him.
He
further
states
that
Vidhyasagar never went out of the house.
He further states that Vidhyasagar had, till
the evening when he died, remained at
home. He does not corroborate the story
that Vidhyasagar had gone and had verbal
altercation with Baikuntnath. He also does
not support the story that he was the one
who had brought Vidhyasagar back from
the place of verbal altercation and,
therefore, learned counsel for the appellants
states the whole story that Ram Dayal had
brought Vidhyasagar from the location
where the verbal altercation had taken
place with Baikuntnath and Vidhyasagar is
falsified.

6. Learned counsel for the appellants,
therefore, states that this statement of
Ramdayal absolutely falsifies the case of
the prosecution. He states that there was no
verbal altercation and Vidyasagar was not
brought by Ramdayal and also there was no
premeditation
with
regard
to
the
commission of crime between the four
accused.

7. At the time of the trial seven
prosecution witnesses were examined. PW1 was the first informant. He had narrated
the story that Baikunthnath and Vidyasagar
had verbal altercation, thereafter, Ramdayal
the brother-in-law (Behnoi) of Vidyasagar
had brought Vidyasagar back to his house.
Subsequently, at 07:30 pm Baikunthnath
and Totaram came in from the southern
side of the house where Vidyasagar was
residing and Dharamvir and Ram Ashrey
came to the house from the eastern side of
the house of Vidyasagar where Vidyasagar
was sitting in the cot. He states that four of
them had surrounded Vidyasagar and
Vidyasagar
tried
to
stand
up
but
Baikunthnath, Totaram and Dharamvir held
Vidyasagar from the back and thereafter he
nowhere says that he had not seen as to
who had actually assailed Vidyasagar with
sword and, thereafter, he states that the four
of them had run away from the eastern side.

8. PW-1 further states that he had
gone to arrange for the vehicle for taking
Vidyasagar for medical treatment but could
not get any vehicle and, therefore, he come
back to the village where he found that
Vidyasagar had died. He, therefore, had
proved the FIR.

9. The prosecution witness no. 2 Smt.
Kalavati was the mother of the deceased.
She had tried to give a motive for the
murder and she had said that Vidyasagar
was a mason. He had, before he died,
worked as a mason in the house of the
accused persons. The accused persons were
not giving wages to the deceased and,
therefore, Vidyasagar had refused to work
and when he refused to work at the house
of the accused, the accused had killed
Vidyasagar. She also tells the same story as
was told by PW-1 with regard to the fact as
to how the assailants entered in the house
and had killed Vidyasagar with a sword.

q10. PW-3 Ramdayal who is the brotherin-law (behnoi) of Vidyasagar in his crossexamination in chief stated that at around
07:00 pm, he had gone to the crossing
where Vidyasagar and Baikunthnath were
having
altercation
and
had
brought
Vidyasagar back to his home and at around
07:30 pm accused persons had come and
had killed Vidyasagar. However, as has
3 All. Dharamvir & Anr. Vs. State of U.P.
975
been pointed out by the counsel for the
appellants that in the cross-examination,
the PW-3 had given an absolutely different
statement which is being reproduced here
as under:

"शजस समय लाि सील की गई तो उस समय राशि थी।
घर्ना वाले शिन मै िोपहर को अपनी ससुराल में आ गया था।
शवद्यासागर शमले थे। शखलाया शपलाया, बातचीत की। शवद्यासागर
ने मेरे साथ खाना नहीं खाया। रोर्ी खाई थी। मैंने जब खाना
खाया तो शवद्यासागर मौजूि था। मुझे नहीं ध्यान की शवद्याराम
मेरे पास शकतनी िेर रहा। घर से कही नहीं गया। िाम को
उसकी मृत्यु हो गई। मैंने िस शमनर् खाना खाया। शवद्यासागर घर
में रहा। िाम तक घर पर रहा। िाम को घर्ना हो गई।

11. PW-4 was the doctor who had
conducted the post mortem. PW-5 was the
Sub-Inspector, Jagbeer Singh Tomar who
had done the initial investigation. PW-6
was the Sub-Inspector who had further
conducted the investigation and the PW-7
was also an Investigating Officer.

12. The doctor, PW-4 had given a medical
report which was proved by him and the report
was never challenged by any of the prosecution in
which he had given the following injuries:

i. At the left shoulder on the back side there
were injuries by a sharp weapon within an area
15cm X 12cm. He had stated that on the back of
the left shoulder there were three injuries:

1. 3cm X 7cm.

2. Small injury 1.5cm X 1cm deep.

3. 12cm X 4cm deep till the bone.

13. Further it was found that at the time of
post mortem, the bone had fractured and the ribs
were also fractured.

14. Under Section 313 Cr.P.C. the
defence had denied having committed the
crime.

15. Learned A.G.A. opposed the
appeal and stated that when there were eye
witnesses, there was no reason to come to
any other conclusion which had been
arrived by the trial Court.

16. Having heard learned counsel for
the appellants, Shri Apul Mishra and one
learned A.G.A., Shri S.N. Mishra, we are of
the view that the appeal deserves to be
allowed.

17. We have closely scrutinised the
evidence on record and the statements
made by the witnesses. The sword was
never discovered; a very important witness
i.e. the sister of the deceased Smt. Urmila
who was also the wife of Ramdayal never
came to the witness box; there was
definitely a great delay in the FIR. All these
were such arguments from the side of the
appellants which could be said that they
could be interpreted both in favour of the
accused and also against them. However,
the arguments which would be analysed
henceforth would make any person of
prudence come to the only conclusion that
the appellants were innocent. Firstly, when
there was a sword being used the injuries
could not be as wide as have been shown in
the post mortem report. The first injury is
of 7cm X 3cm. It is a very wide injury
which could be caused only by an object
which was not sharp. Definitely the injury
of 12cm X 4cm also could not be caused by
a sword which is a very sharp weapon.

18. Still further if the statement of
Ramdayal is perused, we find that he states
that assailants including Ram Ashrey had
inserted the sword. He uses the word ''ghop'
which means stabbing. That would mean
that the sword is directly inserted in the
body from the sharp end of the sword. How
then the injuries which are 7cm and 12cm
976 INDIAN LAW REPORTS ALLAHABAD SERIES
in the length were there cannot be
explained.

19. Further the statement of Ramdayal
in his cross-examination absolutely falsifies
the case of the prosecution. Throughout the
prosecution he has said that Ramdayal is
the person who had gone to fetch
Vidyasagar, the deceased, from the place
where he had entered into a verbal
altercation with Baikunthnath but in his
cross-examination Ramdayal had given out
a different picture and which was that when
Ramdayal had come to his in-laws house in
the afternoon and from that time and till the
time vidyasagar was killed, Vidhyasagar
never moved out of the house. Ram Dayal
is the prosecution's eyewitness. Also this
witness cannot be disbelieved as he is not
related by blood and therefore while he was
giving
this
statement
in
his
crossexamination he had divulged the truth.

20. Under such circumstances, we
have no reason to believe that Dharamvir
and Ram Ashrey had committed the crime
and, therefore, we are of the view that the
Appeal deserves to be allowed and Ram
Ashrey and Dharamvir deserve to be
acquitted.

21. Since Totaram and Baikunthnath
had died during the Trial and the Trial had
abated
vis-a-vis
them,
there
is
no
requirement to give any verdict with regard
to their roles.

22. The Appeal is allowed. The
appellants are acquitted.

23. The appellants if are not wanted in
any other case may be released.
----------
(2023) 3 ILRA 976
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 5955 of 2018

Smt. Rajendri Devi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajiv Lochan Shukla, Sri Ashfaq Ahmed
Ansari, Sri Neeraj Kumar Sharma, Sri Shanda
Prasad Mishra

Counsel for the Respondent:
G.A.

Criminal Law- Indian Penal Code, 1860
- Accused was convicted under Section
498A, 304B, 302/34 of I.P.C. & Section
4 of D.P. Act - deceased was being
harassed for dowry - incident occurred
on 29.04.2017, she was set ablaze by
pouring kerosene on her in which, she
suffered grievous injuries - she died on
06.05.2017 - accused is in jail since
15.07.2017 - the question which falls
for consideration is whether conviction
of the accused under Section 302 of
I.P.C.
should
be
upheld
or
the
conviction
to
be
converted
under
Section 304 Part-I or Part-II of the
I.P.C (Para 3, 4, 9, 16)

Held - Death was due to septicemia -
Offence is not under Section 302, I.P.C. but
is culpable homicide and therefore, accused
convicted under Section 304 (II) I.P.C.
(Para 24, 27)

The appeal is partly allowed. (E-13)

List of Cases cited:

1. Sohan Lal alias Sohan Singh & ors. Vs St. of
Punj., AIR 2003 SC 4466