# Dharmesh Pasi v. State of U.P

- **Citation:** (2022) 6 ILRA 60
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-17
- **Case number:** Jail Appeal No. 35 of 2019
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmesh-pasi-v-state-of-u-p-48827
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860 - Sections 304 & 506Challenge
to-Conviction-no
previous
enmity-in order to reach fast at the
destination, appellant crossed the green
crop of the deceased and when they were
prevented
they
attacked
upon
the
deceased-Injuries were on vital part-in a
sudden provocation he attacked upon the
deceased and later he died- no intention
to kill the deceased but the act was done
with the knowledge that would likely
cause death-No force was applied against
the accused-No difference or disparity
between the ocular and medical evidenceThe prosecution has been successful in
proving its case beyond reasonable doubt
under Part II of Section 304 IPC.(Para 1
to 22)
The appeal is dismissed. (E-6)

## Text

60 INDIAN LAW REPORTS ALLAHABAD SERIES

37. Thus, if the applicant is aggrieved
by the compensation so awarded by the
State authorities, he may approach the
forum available under the law challenging
the said order, but no contempt proceedings
are maintainable as there is no wilful
disobedience of the order of the writ Court.
Once, the claim has been adjudicated, the
applicant has a remedy of challenging the
same if he is not satisfied by the claim
decided by the State officials.

38. The contempt application is
devoid of merits and is hereby dismissed.

39.

Contempt
notice
stands
discharged.
----------
(2022)06ILR A60
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.06.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Jail Appeal No. 35 of 2019

Dharmesh Pasi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Jail Appeal, Ranjana Srivastava(A.C.), Ranjana
Srivastava, Subhi Guha(Amicus curiae)

Counsel for the Respondents:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860 - Sections 304 & 506Challenge
to-Conviction-no
previous
enmity-in order to reach fast at the
destination, appellant crossed the green
crop of the deceased and when they were
prevented
they
attacked
upon
the
deceased-Injuries were on vital part-in a
sudden provocation he attacked upon the
deceased and later he died- no intention
to kill the deceased but the act was done
with the knowledge that would likely
cause death-No force was applied against
the accused-No difference or disparity
between the ocular and medical evidenceThe prosecution has been successful in
proving its case beyond reasonable doubt
under Part II of Section 304 IPC.(Para 1
to 22)
The appeal is dismissed. (E-6)

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

1. This jail appeal has been preferred
against the order of conviction and
sentence dated 06.10.2018 by the Court of
Additional Sessions Judge, Court No.9,
Hardoi in Sessions Trial No.260 of 2016 in
case crime no.43/2016, under Section ?
304, 506 IPC, Police Station ? Behata
Gokul, District ? Hardoi.

2. In brief, facts of the case are that Lalu
alias
Akhilesh
lodged
an
FIR
on
02.02.2015 that on 01.02.2015 at around
04:00 PM he was sitting in the western side
of the plot of Jagpal Rathore. Suddenly
Dharmesh came with unknown person and
started going from his plot. When his father
opposed, Dharmesh attacked from the
wooden patra an unknown person attacked
with lathi. When his father cried he saw
and ran towards them then they ran away
giving death threats. His father received
injury at his head and stomach. With the
help of villagers he moved him to the
hospital
where
he
died
during
the
treatment. He requested to lodge FIR and
take appropriate action. According to him
Mahipal has also seen the occurrence.

3. The grounds of the appeal are that when
the accused was in jail he forwarded jail
6 All. Dharmesh Pasi Vs. State of U.P.
61
appeal with the allegation that he has been
punished
with
seven
years
rigorous
imprisonment and Rs.10,000/- fine in case
crime no.43/2016 in Sessions Trial Case
No.260/2016, under Section 304 Part ? II
IPC by the Court of ASJ-IX th, Hardoi on
06.10.2018. He belongs to a poor family.
There is no other person to do 'pairavi' on
his behalf, therefore, a jail appeal be
preferred.

4. This application was forwarded by
Jail Superintendent, Lucknow which was
treated as jail appeal.

5. From the perusal of the above jail
appeal it is apparent that no proper grounds
have been taken by the accused-appellant.

6. During the course of trial following
evidence were recorded :- .

ORAL EVIDENCE

PW-1 Lalu alias Akhilesh

PW-2 S.M. Mohd. Ujair

PW-3 Mahipal

PW-4 Dr. Sanjay Kumar Saini

PW-5 I.O. Inspector Brijesh Kumar
Tripathi

PW-6 IO/SO Amar Pal Sharma

Documentary Evidence

Tahrir Exhibit Ka-1

Chic FIR Exhibit ka-2

GD Exhibit Ka-3

Police Proforma No.127 exhibit ka-3

Postmortem report - exhibit Ka-4,

Map exhibit ka-5,

Recovery memo ? Exhibit Ka-6,

Map recovery ? Exhibit ka-7,

Charge sheet - Exhibit ka-8,

Inquest ? Exhibit ka-9,

Police Form 33 ? Exhibit ka-10,

Police Form 379 ? Exhibit ka-11,

letter to RI ? Exhibit ka-12,

Letter to CMO ? Exhibit ka-13 and
specimen seal ? Exhibit ka ? 14

7. After recording of evidence
statement of the accused was recorded
under Section ? 313 CrPC in which he said
that he was falsely implicated on the
pretext
of
village
pradhan
election.
According to him the case was lodged on
account of 'ranjish' and said to produce
evidence in defence but no evidence was
produced by him.

8. PW-1 Lalu alias Akhilesh is the
informant and son of the deceased and also
eyewitness who deposed that on 01.02.2016
at about 04:00 PM he was giving water in his
wheat crop. His father was also there. who
was sitting on the boundary of his nearby
plot. At the same time accused Dharmesh
with wooden patra and other person with lathi
crossed his plot. His father forbade them then
both the accused person started abusing his
father. When his father prevented them then
accused Dharmesh beat him with his wooden
patra and the unknown person also beat him.
When his father cried he saw the
occurrence and ran towards him to save his
life but both the accused persons threatened
him to life. At the same time his relative
Mahipal who was going from Hardoi to
village Jagdishpur saw the occurrence. On
his cry accused ran away after giving
threatening to life. He transported his father
to district hospital Hardoi where during the
treatment his father died. Next day he
lodged the FIR. This witness has proved the
tahrir exhibit ka-1.

9. PW-2 Head Moharrir Mohd. Ujair
is the formal witness who has proved
Kayami GD exhibit ka-3 and chic FIR
Exhibit ka-2 and also photocopy of hand
written G.D. as Exhibit Ka-3 A.
62 INDIAN LAW REPORTS ALLAHABAD SERIES

10. PW-3 Mahipal is an eyewitness
who has supported the prosecution version
and has said that at about 04:00 PM he was
going to his village from the market of
Jagdishpur. When he reached near the plot
of the deceased he saw that accused
Dharmesh was beating the deceased from
wooden patra. He challenged him as to why
he was beating the deceased then accused
Dharmesh ran away from the plot.
According to him at that time Lalu alias
Akhilesh son of deceased Ujja was also
present. According to him the injured was
taken to the District hospital where he died
during the treatment. According to him the
deceased died due to the injury caused by
the accused Dharmesh.

11. PW-4 Dr. Sanjay Kumar Saini is
the witness of postmortem. He has done the
autopsy of the dead body of the deceased.
He found three ante-mortem injuries on the
body of the deceased. These are as under :-

(i) Contusion 3 x 2 cm on the skull.

(ii) Lacerated wound 1.5 cm x 0.5 cm
on the back and outer area of right thumb.

(iii) Contusion 16 x 12 centimeter area
of chest and the abdomen according to him
when he opened his body he found ribs
were broken and liver was torn, lungs and
spleen were pale. The deceased died at
08:35 PM on 01.02.2016 in District
Hospital Hardoi.

12. According to the witness the
deceased
died
due
to
bleeding,
haemorrhage and shock.

13. PW-5 Brijesh Kumar Tripathi was
the Investigating Officer of occurrence who
has done investigation in the case. This
witness has proved map of the spot as
exhibit ka-5. Recovery memo of the
weapon as exhibit ka-6, map of the
recovery memo as exhibit ka-7, charge
sheet as exhibit ka-8 and wooden patra as
material exhibit ? 1.

14. PW-6 was appointed as S.I. on
the day of occurrence. According to him
he received copy of the tahrir and death
memo and on the direction of SHO
reached mortuary where he did inquest of
the exhibit ka-9 of the deceased and
prepared challan in his exhibit ka-10,
photo in his exhibit ka-11, letter to RI
exhibit ka-12 and letter to CMO as exhibit
ka-13. He has also proved the specimen
seal as exhibit ka-14.

15. This case is based on direct
evidence. There are two eyewitnesses PW-1
informant Lalu alias Akhilesh son of the
deceased and PW-3 Mahipal independent
eyewitness. Both the witnesses of fact have
deposed against the accused and have
deposed that wheat crop was standing in
the plot. He was giving water. His father
was also present there and when accused
and the unknown person started crossing
the wheat field and when his father
prevented them then they attacked upon
him and caused fatal injuries due to which
he later on died. Similar statement has been
given by PW-3 Mahipal. Thus, from the
evidence of both the witnesses of fact it is
clearly established that the accused and the
unknown person caused fatal injuries to the
deceased due to which he succumbed.

16. It has already been said that no
evidence in defence has been produced by
the appellant. So far as the alleged enmity
is concerned, no oral or documentary
evidence has been produced by the
accused, therefore, it is established that
there was no occasion of false implication
of the accused in the present case by the
informant.
6 All. Dharmesh Pasi Vs. State of U.P.
63

17. From the perusal of the evidence
it is established that this occurrence
actually took place when accused and his
unknown companion started crossing the
wheat crop field and they were prevented
by the deceased to save the damage of
property.

18. In the lower court learned counsel
for the applicant had questioned that since
the informant PW-1 does not know the
number of the plot in suit, therefore, the
case is doubtful. The lower court has not
accepted that such ignorence is fatal for the
prosecution. The witness has said that the
area of the plot is 5 bigha and 70-80 feet in
length and width. From the map and
evidence of I.O. it is established that the
place of occurrence is not changed. Only
not knowing the Khasra number of the plot
is not material and on this basis the
informant PW-1 cannot be said to be a false
witness. It is also not established that the
crops were so long that it was impossible to
recognize the accused. Similarly, PW-3
Mahipal has also no enmity with the
accused. He is also eyewitness who
intervened in the occurrence and when he
challenged the accused, he ran away from
the wheat field. He recognizes the accused
from his childhood. In this regard he said
that he knows him because his 'mausi' lives
in his village. It has come in the evidence
of PW-1 that the wheat crop was up to the
height of waist so it was quite probable to
see and recognize the accused. It is also
discussed by the lower court that informant
PW-1 could not chase the accused persons
but firstly he attended his father. Till then
the accused persons had run away. Such
conduct is quite natural and from such
conduct of informant it cannot be inferred
that he is telling a lie. In similar situation
different persons act differently. A person
can face and chase the accused persons,
another person can run away from the spot,
another person can attend the injured, so it
depends upon the mental condition of the
person concerned. The lower court has also
discussed that informant PW-1 has not
correctly counted the number of attacks by
each accused separately. There is no law
that it is mandatory for the witness to give
description of exact numbers of attack by
all accused persons. PW-1 has said that
accused persons beaten his father three-
four times by lathi attack and three- four
times from wooden patra. So inability in
giving the correct description is not the
requirement of law. PW-3 only recognizes
the present accused-appellant. He could not
see another person. The lower court has not
found this witness a chance witness. Lower
court has relied on the citation Kallu vs.
State of Haryana [AIR (2012) Supreme
Court 3212] in which Punjab and Haryana
High Court has held that there is no rule of
law that the evidence of chance witness
cannot be relied on though his evidence
should be minutely observed. This Court
also finds the evidence of PW-3 credible in
absence of any motive and enmity with the
accused.

19. From the evidence it is established
that informant PW-1 carried his father with
the help of Malkhan (Driver of hospital),
Dinesh Pal and Ram Singh in the jeep of
Malkhan. He reached hospital at about
07:00 PM and PW-3 has not accompanied
the informant - deceased and above
mentioned persons. Only on this acount it
cannot be said that PW-3 has not seen the
occurrence. It is not necessary that every
eyewitness shall also accompany the
injured to the hospital. Lower court has
also discussed this fact that sister of the
informant Lalu has been married in the
family of PW-3 Mahipal but this alone is
not sufficient to conclude that PW-3 is a
64 INDIAN LAW REPORTS ALLAHABAD SERIES
false and planted witness. Since the place
of occurrence is situated on the way of
Bazar to his village, therefore, he cannot be
said to be a chance and planted witness.
Even under Section 134 of the Evidence
Act single testimony is sufficient to prove
the guilt. Certainly PW-1 was present at the
spot at the time of occurrence and he has
given
evidence
in
support
of
the
prosecution, therefore, it cannot be said that
only to strengthen the prosecution story
PW-3 has been mentioned as eyewitness.
Learned lower court has relied on the
citation Bhagwan Jagannath Markand vs.
State of Maharashtra [(2016) 10 SCC 537]
in which Hon'ble Supreme Court has held
that testimony of a witness cannot be
refused only on the ground that he is
relative of the deceased but it has been
directed that his evidence should be seen
with care and caution and if the same
inspires confidence then the accused can be
convicted.

20. In this case the occurrence took
place at about 04:00 PM of 01.02.2016 and
the report was lodged at 11:20 AM of
02.02.2016. The distance between the place
of occurrence and police station is about 8
Kms. Firstly injured was taken to the
district hospital Hardoi where he died at
about 07:10 PM. The information was sent
to the police station Kotwali Shahar from
the hospital same day. The distance from
the Sadar hospital to Behta Gokul police
station is about 16 Kms. Inquest was
conducted
at
about
07:40
PM
of
02.02.2016 at District Hospital. Death
memo was issued on 08:35 pm of
01.02.2016. It appears that informant PW-1
is the sole son of the deceased.

21. In these circumstances, it was not
possible for the informant to leave the dead
body and go to police station to lodge the
FIR just after the incident or just after the
death of his father. There is some cutting
over the inquest. The lower court has relied
on the ruling Brahma Swaroop vs. State of
U.P. AIR 2011 Supreme Court page 280 in
which it is held that the purpose of inquest
is to know as to how the injuries were
caused and what is the apparent cause of
death. It is held in several cases that inquest
is not substantive piece of evidence. This
Court is of the opinion that only delay of
some hours in lodging of FIR and some
cutting over the inquest is not fatal for the
prosecution and in this context the lower
court has correctly analyzed the case.

22. There is no difference or disparity
between the ocular and medical evidence.
According to prosecution case the deceased
was beaten by lathi and wooden patra and
the injuries are contusion and lacerated
wound which can be caused by wooden
patra and lathi. Thus, the ocular and
medical evidence are in support of each
other and wooden patra has also been
recovered from the pointing of the accused.
The lower court has convicted and
sentenced the accused under Part - II of
Section 304 IPC. According to Section 304
IPC whoever commits culpable homicide
not amounting to murder shall be punished
with imprisonment for life or imprisonment
of either description for a term which may
extend to 10 years and shall also be liable
to fine if the act by which the death is
caused is done with the intention of causing
death or of causing such bodily injury as is
likely to cause death or with imprisonment
of either description for a term which may
extend to 10 years or with fine or with
both. If the act is done with the knowledge
that it is likely to cause death but without
any intention to cause death or to cause
such bodily injuries as is likely to cause
death. In the first Part of Section 304 IPC
6 All. Dharmesh Pasi Vs. State of U.P.
65
an accused can be punished up to the
imprisonment for life or imprisonment of
either description for a term which may
extend to 10 years and shall also be liable
to fine whereas as per Second Part the
maximum sentence is 10 years or with fine
or with both if the act is done with the
knowledge. First part of Section 304 IPC is
based on the intention of the accused
whereas Second Part is based on the
knowledge. Lower Court concluded that
there was no intention of the accused to kill
the deceased. The occurrence occurred
suddenly without any prior meeting of
mind. Accused with another unknown coaccused were going to their destination and
it appeared that to reach fast at the
destination they crossed the green wheat
crop and to avoid damage when they were
prevented by the deceased they attacked
upon him from the weapon which they
were having in their hands which became
fatal for the deceased and during the course
of treatment he died.

23. Considering these facts of the
offence the lower court has convicted and
sentenced the accused under Part-II of
Section 304 IPC. This Court is also of the
opinion that there was no previous enmity
between the accused and the deceased or
the informant. In order to reach suddenly at
the destination appellant-accused crossed
the green crop of the deceased and when he
was prevented then in sudden provocation
he attacked upon the deceased and later on
deceased succumbed.

24. From the above discussion it is
established that the deceased died due to
injuries caused by the accused and his
unknown companion who could not be
recognized and who could not be tried. It is
also obvious that there was no intention of
the accused to kill the deceased. It was an
incident of sudden provocation but injuries
numbers 1 and 3 are on the vital part and
one should have knowledge that if he
causes such injuries to any person such
person may die.

25. Thus, it is established that accused
has caused the offence under Section - 304
Part-II IPC and it would also be presumed
that act was done with the knowledge that
would likely cause death or shall cause
such bodily injury which would likely
cause death.

26. The lower court has acquitted the
accused under Section 506 IPC. There is no
evidence that accused threatened to dire
consequences
or
life
threat
to
the
informant. So far as the injured deceased is
concerned he has died. No cross appeal has
been preferred by the State, therefore, this
Court is also of the opinion that charge
under Section 506 IPC is not proved.

27. The accused has been convicted
under Part-II of Section 304 IPC as has
been sentenced for seven years rigorous
imprisonment and Rs.10,000/- fine and in
case of default for non-payment three
months additional rigorous imprisonment
has been awarded. Out of Rs.10,000/- fine
Rs.5,000/- amount of fine has been given to
the informant. The appellant has not
engaged any private counsel and an amicus
curiae has been appointed to defend his
case who argued the case before this Court.
It is not known to this Court as to whether
the accused appellant has any family
burden or not ? He was not expected to
cross the green wheat crop. Certainly, if
any person crosses the green wheat crop,
his foot shall damage the crop. There was
alternative route for the accused to go
through the boundaries of the plot but he
selected to cross the green wheat crop and
66 INDIAN LAW REPORTS ALLAHABAD SERIES
upon preventing by the deceased, in a fit of
anger
he
along
with
his
unknown
companion hit the deceased who later on
died. This Court is of the opinion that seven
years'
rigorous
imprisonment
and
Rs.10,000/- fine is not much more in the
attending circumstances. No force was
applied against the accused. Informant and
deceased were working on the plot in
rightful manner and there was no occasion
to do the alleged act by the accused which
resulted in the death of the deceased. This
Court is of the view that the whole aspect
of the case has been fully proved by the
oral and documentary evidence. The
prosecution has been successful in proving
the case beyond reasonable doubt under
Part-II of Section 304 IPC, therefore, the
appeal fails and is liable to be dismissed.
Accordingly, the appeal is dismissed. The
order of conviction and sentence dated
06.10.2018 passed by the lower court is
affirmed. A copy of this judgment be sent
to the concerned court and concerned Jail
Superintendent for compliance.
----------
(2022)06ILR A66
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2022

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

First Appl. From Order No. 2351 of 2017

Raja Beti & Ors. ...Appellants
Versus
Ashok Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri Shrinath Dwivedi, Sri Amit Kumar Sinha,
Sri Ashok Kumar Singh, Deepali Srivastava
Sinha

Counsel for the Respondents:
Sri N.K. Srivastava
A. Civil Law - Motor Vehicles Act,1988 -
Sections 166, & 168 - Motor Accident
claim - deceased was working as Lekhpal
at the time of accident - Claims Tribunal
awarded only Rs. 65,000/- towards non
pecuniary
damages
&
nothing
was
awarded towards pecuniary loss on the
ground that after the death of deceased,
the widow was getting family pension as
well as employment under the Dying in
Harness Rules and receiving Rs. 7,500/-
per month as such there was no financial
loss to the family of the deceased Claims
Tribunal - Held - law has been settled by
the Hon'ble Apex Court in the case of
Vimal Kanwar that the amount received by
the widow towards family pension and the
salary
received
on
compassionate
appointment under the Dying in Harness
Rules cannot be deducted from the
compensation for which claimants are
entitled under the Motor Vehicles Act
(Para 10)

B. Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 168 - Motor Accident claim -
Determination of compensation - deceased,
aged about 42 years, was working as
Lekhpal at the time of accident, there was
five dependents on the income of the
deceased - Calculation - Monthly Income Rs.
7000 - Annual Income : 7000 x 12 = Rs.
84,000 - 30% future prospectus for the age
group of 40 to 50 years - Future prospects
(30%) = Rs. 25,200 - Total annual income
84000 + 25200 = Rs. 109200 - deduction
should be 1/4th where the number of
dependents are 4 to 6 - Deduction towards
personal expenses (1/4th) 109200 - 27300
= Rs. 81900 - multiplier of 14 for the age
group of 41 to 45 years - Multiplier
applicable (14) : Rs. 81900 x 14= Rs.
11,46,600 - Non-pecuniary damages : Rs.
70,000 - Total : 1146600 + 70,000 = Rs.
1216600 - claimants are also entitled for
interest at the rate of 7% on the enhanced
amount from the date of filing claim petition
(Para 12, 13)

Allowed . (E-5)

List of Cases cited :