# Hirday Ram & Ors. (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 1397
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-01-02
- **Case number:** Criminal Appeal No. 2336 of 1985
- **Bench:** Ramesh Sinha, Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hirday-ram-ors-in-jail-v-state-of-u-p-45203
- **Pages:** 11

## Headnote

A. Code of Criminal Procedure, 1973 -
Section 374(2) & Indian Penal Code,
1860 - Section 302/34 - recovery of
weapon has no significance when eyewitness account is there against the said
accused-one accused held guilty while
rest of the two accused has given benefit
of doubt. (Para 25, 26, 27, 28, 29 & 30)

Criminal Appeal partly allowed. (E-6)

## Text

1398 INDIAN LAW REPORTS ALLAHABAD SERIES
author Glanville Williams in 'Proof of
Guilt' has sapiently observed, goes much
beyond the simple fact that, just one guilty
person has gone unpunished. If unmerited
acquittals become general, they tend to lead
to a cynical disregard of the law, and this in
turn leads to a public demand for harsher
legal
presumptions
against
indicated
'persons' and more severe punishment of
those who are found guilty. Thus too frequent
acquittals of the guilty may lead to a
ferocious penal law, eventually eroding the
judicial protection of the guiltiness....."

".....a miscarriage of justice may
arise from the acquittal of the guilty no less
than from the conviction of the innocent....."

49. In view of the reasons given herein
above, we do not find any force in this appeal
and the same is liable to be dismissed.

50. The appeals filed by the
appellants, namely, Ranjit and Lallu @
Lala Ram are, thus, dismissed and the
judgment and order of the court below
dated 26.5.2007 is affirmed.

51. As per record of this Court and
report of office dated 18.12.2019, the
appellants- Ranjit and Lallu @ Lala Ram
are in jail. They will serve out the sentence
as ordered by the trial court.

Shri Diwakar Singh learned Amicus Curiae
will get Rs. 10,000/- as his fee/ honorarium for
his assistance rendered in this case.

A
copy
of
this
judgment
be
immediately sent to the trial court for
compliance.
----------
(2020)1ILR1397

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.01.2019

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

Criminal Appeal No. 2336 of 1985

Hirday Ram & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ravindra Singh, Sri Satya Prakash, Sri
Akhilesh Singh, Sri Dilip Kumar

Counsel for the Opposite Party:
D.G.A., Sri Arun Kumar

A. Code of Criminal Procedure, 1973 -
Section 374(2) & Indian Penal Code,
1860 - Section 302/34 - recovery of
weapon has no significance when eyewitness account is there against the said
accused-one accused held guilty while
rest of the two accused has given benefit
of doubt. (Para 25, 26, 27, 28, 29 & 30)

Criminal Appeal partly allowed. (E-6)

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

1. Heard Sri Dilip Kumar, learned Sr.
Advocate assisted by Sri Akhilesh Singh,
learned counsel for the appellants, Sri
Arun Kumar, learned counsel for the
complainant and Sri A.R. Chaursaiya,
learned A.G.A. for the State.

2. This criminal. Appeal has been
preferred against the judgment and order
dated 31.8.1985 passed by the Sessions
Judge, Sri Surya Prasad, in S.T. No. 34 of
1985 (State Vs. Hirday Ram and three
others), whereby the accused-appellants
Hirday Ram, Adiram, Rajvir and Udaivir
have been held guilty under Section 302 read
1 All. Hirday Ram & Ors. Vs. State of U.P.
1399
with Section 34 IPC and have been sentenced
to imprisonment for life each.

3.
The
prosecution's
case
as
mentioned in the F.I.R. is that on 5.7.1984,
first informant Raghuvir Singh (PW-1)
along with his uncle Ram Bharose
(deceased) S/o Genda Lal, his father Lajja
Ram S/o Genda Lal, his cousin brother
Sukhvir Singh S/o Ram Bharose, were
constructing wall of their house towards
South by engaging a mason (mistri)
namely Doji Ram S/o Gopi Jatav, R/o
Village- Oodhan, P.S. Kurra, who was
doing construction work and the material
of work was being supplied by the first
informant and the above mentioned
persons and by this construction a door
was being opened towards pond. Towards
South-West of the said pond was located
the house of Hirday Ram S/o Manjan of
his village and adjoining to his own house
towards South was the field of Hirday
Ram. Seeing the said door being opened
Hirday Ram (accused-appellant no. 1) and
his sons namely Rajvir (accused appellant
no. 3), Udaivir (accused appellant no. 4)
and real brother of Hirday Ram namely
Adiram (accused-appellant no. 2) came
near the said wall and started saying that
they should not try to open the door
towards the pond because that would be
detrimental to them. At this, the first
informant's uncle Ram Bharose told that
pond did not belong to them and they
would certainly open the door in that
direction.
Thereafter,
the
accusedappellants named above became deeply
annoyed and started abusing them and
would say that they would not allow the
door to be opened in that direction.
Thereafter, the first informant's uncle
again stated that they could not stop him
and simultaneously he along with Adiram
directed his sons that they should bring
gun and pistol. In the meantime, when the
dispute was escalating between them,
some villagers namely Ahibaran Singh
(PW-2) S/o Sahookar, Aayaram S/o
Sudhar Singh and Soran Singh Yadav R/o
Dara Mauja Ginauli, P.S. Danahar reached
there and tried to counsel Hirday Ram and
other accused persons but Rajvir armed
with his single barrel gun of 12 bore and
Udaivir armed with country made pistol
reached there and while the construction of
the said wall was going on, both Rajvir
and Udaivir, from the front of their house
from across the pond took aim towards the
first informant and other persons and fired
upon them which resulted in his uncle
Ram Bharose (deceased) receiving fire
arm injury of pallets who became badly
injured because of the pallet injuries and
succumbed to the injuries while accusedappellants Hirday Ram, Adiram, Rajvir
and Udaivir fled towards South from there.
This occurrence happened at about 4:00
pm in the evening.

4. The first informant prepared the
written report (Ext. Ka-1) and on the basis
of said report HC-10 C.P. Surendra Singh
lodged a criminal case against all the
appellants named above under Section 302
IPC on 5.7.1984 at 7:30 p.m. promptly and
prepared the chick F.I.R. (Ext. Ka-2) and
made entry of the said case in G.D. No. 27
dated 5.7.1984 at 7:30 p.m. (Ext. Ka-3).
The investigation of the case was handed
over to S.O. Sukhvir Sharma (PW-4), who
has stated that on 5.7.1984 at 7:30 p.m.,
the first informant Raghuvir Singh had
lodged a report of this case at P.S. Kurra,
District- Mainpuri in his presence and,
thereafter, he immediately started the
investigation of this case. He recorded
statements the same day of constable
Surendra Singh at the P.S. concerned and
also recorded statements of first informant
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
Raghuvir Singh the same day at P.S. and,
thereafter, departed for the place of
occurrence to village Vikauna along with
force and reached at about 9:00 p.m. but
because of lack of light, he could not
prepare panchayatnama. Thereafter, he
made effort to search for the accused
persons who could not be found. In the
said night itself he remained in village
Vikuna itself and on the next day i.e. on
6.8.1984 at about 6:00 a.m. he searched
house of the accused persons but no illegal
weapon
or
licencee
gun
could
be
recovered. He recorded statements of
witness Ahibaran Singh, witness- Asha
Ram Singh at 6:40 a.m. and, thereafter, in
his supervision the panchayatnama of the
deceased Ram Bharose was filled up by
S.I. V.L. Sharma which was written by
him and was also signed by him, the same
also bears signatures of panchas and his
own signature as well, which is Ext. Ka-4.
Thereafter, the dead body was sealed and
the same was dispatched for post-mortem
along with all the relevant papers i.e.
chalan nash, photo nash, chitthi C.M.O,
chitthi R.I. and sample seal which are Ext.
Ka-5
to
Ka-9
respectively
through
constable Hanuman Singh and Homeguard Nempal the same day. He also
collected the blood stained soil as well as
plain soil from the place of occurrence and
sealed them in separate containers and
prepared its memo which is Ext. Ka-10.
Thereafter he made spot inspection at the
instance of first informant Raghuvir Singh
and prepared site plan in his hand writing
which is Ext. Ka-11.

5. Thereafter, he again on the same
day i.e. on 6.7.1984 took search of the
houses of the accused and prepared its
memo in his hand writing which is Ext.
Ka-12.
On
7.7.1984,
he
recorded
statements of other witnesses and also
made search for the accused but they could
not be found. On 9.7.1984, he received a
sealed envelope from the doctor sahab,
who had conducted post-mortem and in
that, were found the pallets which were
taken out of the body of the deceased and
the same were deposited at P.S. vide G.D.
No. 27. Again on 13.7.1984, he made
search for the accused but they could not
be found, although they surrendered before
the court and, thereafter, he took their
statements in jail and after concluding the
investigation on 31.7.1984, he submitted
charge sheet against the accused persons
which is Ext. Ka-13. He had also sent the
material collected during investigation for
chemical examination.

6. On the basis of evidence gathered
by police, charge was framed against the
accused-appellants under Section 302 read
with 34 IPC on 11.2.1985 to which they
pleaded not guilty and claimed to be tried.

7. For proving this case, from the
side
of
prosecution,
first
informant
Raghuvir Singh as PW-1, Ahibaran Singh,
eye-witness of the occurrence as PW-2,
HC-10 C.P. Surendra Singh, who had
prepared the chick F.I.R. and G.D. as PW3 and the Investigating Officer S.O.-
Sukhbir Sharma as PW-4, were examined.
Thereafter the prosecution evidence was
closed and the statements of accused were
recorded under Section 313 Cr.P.C.

8. All the accused-appellants denied
to have committed any offence and have
further
stated
that
they
have
been
implicated falsely in the present case due
to enmity and they have further denied the
truthfulness of the entire evidence which
has been gathered by the Investigating
Officer,
although
no
documentary
evidence or oral evidence has been
1 All. Hirday Ram & Ors. Vs. State of U.P.
1401
adduced from their side in support of their
defense.

9. On the basis of above mentioned
evidence, learned trial court has held the
accused-appellants guilty and has awarded
them aforementioned punishment, hence
the present appeal.

10. Learned counsel for the appellant
has vehemently argued that accused as
well as complainant side are collateral,
meaning thereby they are related to each
other and that there was no motive for the
accused to kill the deceased. Particularly
he emphasized that the evidence reflects
that two main assailants namely Rajvir and
Udaivir are said to have fired from a
distance at about 30-35 yards from across
the pond and drew the attention of the
court towards statement of PW-1 in which
he had stated that Udaivir and Rajvir
armed with gun and country made pistol
had come near the wall. Pointing out
towards the said statement, it was argued
that after having come to the wall which
was being constructed, these two accusedappellants are stated to have fired from 30
to 35 yards distance from across the pond,
which would suggest that had they any
intention to kill the deceased, they would
not have gone back to the distance of 3035 yards and would fire from there when
they had already come near the said wall.
Therefore that would reflect that at the
most they had intention to scare off the
deceased from raising construction of the
said wall and not to kill him. Therefore, it
was argued that the punishment under
Section 302 IPC should be converted
under Section 304 (I) IPC. Further it was
argued that PW-1 has clearly admitted in
cross-examination that he had written in
the report wrong, this fact, that Rajvir by
gun and Udaivir with country made pistol
had aimed towards them with an intention
to kill and had fired which hit his uncle
Ram Bharose because he was in grief.
Further attention was drawn towards the
fact that in examination-in-chief, PW-1
has clearly stated that Rajvir had made fire
from his house across the pond at his uncle
by the gun which hit his uncle Ram
Bharose, who fell down by the side of the
wall after getting injured. Further it is
argued that these statements clearly reflect
that the first informant had deliberately
implicated the whole family of the accused
persons because in fact it was only Rajvir
who had made fire upon his uncle which
hit him and which finally resulted in his
death, while the others namely Hirday
Ram and Adiram have been falsely
implicated. First two having been assigned
the role of exhortation and the third one
i.e. Udaivir having been assigned the role
of using country made pistol in firing upon
not the deceased but the other witnesses
which did not him them. Further it is
argued that no recovery has been made of
any weapon from any of the accusedappellants and, therefore, if at all any
accused could be held guilty that could be
only Rajvir and none else as they have
been falsely implicated and even Rajvir
could at the most have been convicted
under Section 304(I) IPC.

11. On the other hand, learned
counsel for the complainant as well as
learned A.G.A. for the State have
vehemently argued in favour of upholding
judgment of conviction passed by the
learned trial court stating that there is no
infirmity in the conclusion drawn by the
learned trial court on the basis of evidence
on record in holding all the four accused
guilty because they were all involved and
there was clear cut case of exhortation
made on behalf of the Hirday Ram and
1402 INDIAN LAW REPORTS ALLAHABAD SERIES
Adiram, while other two i.e. Rajvir and
Udaivir were assigned the role of making
fire upon the deceased by respective
weapons i.e. S.B.B.L gun and country
made pistol.

12. To appreciate the respective
arguments made on behalf of both the
sides, we have to evaluate the entire
evidence which has come on record.

13. PW-1, informant, has stated on
oath in examination in chief that his
father's name is Lajja Ram, who had two
brothers. His father is Lajja Ram and Ram
Bharose (deceased) was his uncle. Sukhvir
Singh is son of his uncle Ram Bharose.
The accused person in court namely
Hirday Ram and Adiram are real brothers
and accused Udaivir Singh is son of
Hirday Ram and other son of Hirday Ram
is Rajvir, who is accused in this case.
Further he has stated that his house is in
southern direction of the village. The
house of his uncle Ram Bharose and his
own house is one and the same and
towards west of this house there is pond
and towards South of that house is also
pond and towards East of that pond is the
agricultural field of accused persons.
Towards South of the southern pond is
located the house of the accused and
towards East of that house of the accused
is also pond. Further he has stated that
accused Hirday Ram and his uncle Ram
Bharose, both are Sadhu of each other and
the family member of PW-1 and the
accused are collateral. He has given
statement before court on 5.8.1985 that
about 13 months back, he along with his
uncle Ram Bharose were constructing a
wall and his cousin brother Sukhbir Singh
was also getting wall of his house
constructed through Doji Ram, who was
being supplied construction material by
them. His uncle was opening a door towards
pond in the southern wall of his house, seeing
which accused Hirday Ram, Adiram, Rajvir
and Udaivir reached there near the said wall
and restrained his uncle from opening the said
door stating that, that would cause harm to
them. At this, his uncle told that the said pond
did not belong to them and they would not
stop from opening the door in that direction.
Thereafter, the accused who were present in
court started abusing his uncle and when the
accused stated that they would not allow the
door to be opened, accused Hirday Ram and
Adiram exhorted Udaivir and Rajvir to bring
their gun and pistols and after that hearing
abusing and quarrel, Ahibaran Singh, Asha
Ram and various other peoples who were
passing by, through that way, also reached
there. One Soran Singh also came there and
all of them tried to convince all the accused
appellants, in the meantime Udaivir and
Rajvir both armed with gun and pistol
respectively came near wall. At that time his
uncle was picking up the bricks and right then
Rajvir made a fire upon PW-1's uncle from in
front of his house which hit his uncle Ram
Bhrose, who getting injured, fell down on the
other side of the wall. The second fire was
made by Udaivir Singh by country made
pistol upon them (PW-1 and others) which
did not hit them. Thereafter, his uncle was
taken to hospital in a buffalo cart but as soon
as he was placed in cart, he succumbed. This
firing incident took place around 4:00 p.m.
and all the four accused fled towards Southwestern direction in fields. His uncle Ram
Bharose had fell down after getting injured by
fire arm injury, at that place blood had fallen
due to injury. Further, he has stated that he
had written report the same day in his own
hand writing which is Ext. Ka-1.

14.
In
cross-examination,
this
witness has stated that at the time of
occurrence the said pond was full of water
1 All. Hirday Ram & Ors. Vs. State of U.P.
1403
and the wall, which was being constructed,
was at a distance about 30 to 35 yards
away from the house of the accused and
from the said distance only, both the fires
were made. If one would travel by the side
of the pond, the distance of the said house
from the house of the accused would be
around 40 to 50 yards. To the north of his
house, is the house of Gayadeen and
Ranjeet and adjoining to the house of PW1 is house of Kuchu Lal. Further he has
stated that towards South of his wall is a
passage and towards South of his wall
there are few bricks and subsequently
denied also that there were any bricks.
Towards north of the said wall of his
house, there were few bricks. At the time
when fire was made, some bricks were
lying towards southern side of the said
wall and the field towards southern side of
the said wall belonged to the Hirday Ram,
accused which must be around to 2 - 3
bighas. Prior to the construction of the said
wall, there used to live cattle in Gher.
After raising the wall they were trying to
convert Gher into residential portion. He
further stated that earlier there existed a
wall but subsequently stated that earlier
there was only a foundation and not the
wall, rather on the said foundation the wall
was being constructed. Further it is stated
that there was open area in Gher towards
the pond. The said wall, which was being
constructed, was about 30 to 35 hands
long. The construction of the said wall was
started on the date of incident itself in the
morning. Doji is a mason while work of
providing material to the mason was being
done by them only. By the time incident
took place 3-4 'radda' had been laid and
the mason was sitting towards West of the
said wall while Ram Bharose was towards
South of the said wall. There must have
been distance of 2 to 3 steps between
mason and Ram Bharose (deceased) while
at distance of about one to two steps
towards North from the said mason, must
have been the place where PW-1 and
others were standing. At the time when
fire was made Ram Bharose was bent and
was picking the bricks having his face
towards north. The Ram Bharose received
one fire. He had written wrong in the
report that Rajvir by gun and Udaivir by
country made pistol, had aimed towards
them, with an intention to kill, in which his
uncle got injuries, because he was in grief.
The report was began to be written about
one or half hour after the incident of fire
which was being written inside the Gher
by him. They were standing close to the
deceased for about half an hour and,
thereafter, he started writing report.
During this period of half an hour a lot of
people had collected there. Approximately
10 to 20 persons had gathered there but he
had written report sitting separate and at
the time when he was writing the same
there was no body. At the time when he
was writing report in Gher, witness Soran
Singh, Ahibaran Singh and Asha Ram
were not a Gher. When the abusing was
going on between two sides, right then
these witnesses had come and this abusing
had continued for five to ten minutes.
Further it is stated that Lajja Ram and
Sukhbir were near the dead body while he
was writing report, although further he
stated that prior to writing report by him,
all the three witnesses have left the place.
He had not talked to Ahibaran Singh and
Asha Ram at the said place. When the
abusing took place between the two sides,
at that time the ladies of the house had also
come on the spot. Further he has stated
that after having written report, he had
immediately left for the police station
which was located about 6 to 7 miles from
the place of incident and after lodging of
the report at police station, police also
1404 INDIAN LAW REPORTS ALLAHABAD SERIES
started for the place of occurrence
immediately and he reached the place of
occurrence only after police had reached
there. He had spent about two hours at
police station and the police personnel had
come to the spot on bicycles. The son of
Ram Bharose had not accompanied him to
police station rather when he returned
from police station, his son was standing
by the side of the deceased. Lajja Ram was
also present, although Ahibaran Singh,
Asha Ram and Soran Singh were not
present and then he had reached near the
dead body, the S.O. was sitting on the cot
near the dead body. Only little writing
work could be completed in respect to the
dead body because it had become dark and
S.O. could complete writing work next day
in the morning. Further it is stated that he
knows wife of Mehtab Singh namely
Katori, regarding snatching the jewellery
of Katori, a case was filed against father of
PW-1 Lajja Ram and Ram Bharose. But
accused Hirday Ram was not a witness in
that case against his father. He denied the
suggestion
that
Ram
Bharose
was
murdered in some other circumstances at
some other place and that the report was
lodged after consultation at the police
station concerned due to enmity.

15. The other eye-witness Ahibaran
Singh (PW-2) has stated in examinationin-chief that he knows the accused who
were present in court who belong to his
village. In his statement recorded on
6.8.1985, he has stated that about 13
months ago Ram Bharose was murdered at
about 4:30 pm, at that time he was near his
field of corn which was about 50 steps
away from the place of incident. At that
time accused and Ram Bharose and others
were involved in an altercation, when he
reached there. Besides him, Asha Ram had
also arrived there who was ploughing the
field and after some time Soran Singh also
reached there and till then altercation was
going on. The accused were saying that the
door should not be opened towards pond
while Ram Bharose was saying that he
would open the door in that direction and
on this, abusing took place between two
sides. Hirday Ram told his son Rajvir and
Udaivir to bring their pistol and gun for
firing upon them and this was also stated
by Adiram to them. Thereafter, the
accused Rajvir and Udaivir went towards
their house and came out with gun in the
hand of Rajvir and country made pistol in
the hand of Udaivir. Rajvir made a fire
across the pond from the western side
from a distance about 30 to 35 yards,
which hit Ram Bharose, who fell down
after getting hit and Udaivir also made fire
upon Raghuvir and others but the same did
not hit them and, thereafter, accused fled
towards southern side. Further he has
stated that they all reached near Ram
Bharose and lifted him to be placed in a
buffalo cart to be taken to a hospital but as
soon as he was kept in the said cart, he
died and therefore his dead body was kept
in Baithak. Further he has stated that Doji
Ram, mason, would not give statement
because he is a weak person and because
of being threatened by the mohamdans, he
has colluded with the accused sides.

16. In cross-examination, he has
stated
that
the
abusing
continued
approximately for half an hour and during
this period, 4 to 6 persons had come there
which were namely Mulayam Singh, Asha
Ram, Soran Singh, Ahibaran Singh, some
other ladies and children. At the time when
Ram Bharose received fire arm injury, he
had bent to lift the brick with his face
towards the ground about 2 to 3 steps
away from Ram Bharose. Towards West,
there was mason and towards East of him,
1 All. Hirday Ram & Ors. Vs. State of U.P.
1405
was Ahibaran Singh, Asha Ram was about
7 steps away. When the fire arm hit the
deceased, then in the West was standing
mason and towards East was standing the
PW-2 and others. The mason was sitting
on the wall. Ram Bharose was being
abused. During this period of abusing,
sometimes work of construction used to
stopped and sometimes it used to be
continued. About one and 1⁄2 steps away
from the wall of Ram Bharose, the bricks
were being lifted by Ram Bharose which
were being given to mason. Further it is
stated that all the four including PW-2 and
3 were standing about three steps away
from the said wall towards South and all of
them were standing at a distance from
each other at about one and one half steps.
Rajvir was towards South when he made
fire which hit Ram Bharose in the left side
in his body in scapular region.

17.
In
cross-examination,
this
witness has further stated that the son of
Ram Bharose namely, Sukhbir must be
around 24-25 years of age who was
present at the place where wall was being
constructed. At the time when the fire hit
the deceased, Sukhbir had gone to take
Gara. Lajja Ram and Raghuvir were
standing at a distance of five to six steps
towards North from mason Doji Ram,
while Sukhbir had gone for bringing
'Gara' from near the well which must have
been around 25 steps away from there. The
deceased Ram Bharose fell down after
getting hit although he kept standing for
about two to four minutes after getting hit
but as soon was he was about to be kept in
buffalo cart, he died. The buffalo cart was
parked in the Gher at a distance of about
six steps. He does not recollect whether
any blood had fallen, while Ram Bharose
was placed in the said cart. From the place
where Ram Bharose had fallen after
getting hit at a distance, about two steps,
there was baithak in which his dead body
was kept. Further he has stated that a false
case was initiated against him regarding
having fired upon Ranjeet in which
Adiram had given a false evidence in
which he had been acquitted. He had
denied the suggestion that he was not
present on the spot at the time of incident.

18. Apart from above two eyewitnesses'
statement,
it
would
be
appropriate to refer to the injuries received
by the deceased. It is evident from the
judgment of the trial court that as many as
seven injuries were found to have been
sustained by the Ram Bharose (deceased)
on his person by Dr. M.C. Gulecha, who
conducted the post-mortem, which are as
follows:-

(1) Fire arm wound of entrance
0.2 cm x 0.2 cm x bone deep of left side
back on middle of scapula. Scapula
fractured. One metallic pallet recovered
from bone.

(2) Two fire arm wounds of
entrance on left side back 6 cms below lower
and of scapula, 3 cms away from each other.
Size 0.2 cm x 0.2 cm x cavity deep.

(3) Fire arm wound of entrance 0.2
cm x 0.2 cm, muscle deep on left gluteal
region 14 cms below upper border of hip bone.

(4) Fire arm wound of entrance
of 0.2 cm x 0.2 cm x muscle deep on
middle of back of left thigh.

(5) Fire arm wound of entrance
0.2 cm x 0.2 cm x muscle deep on middle
of back of left knee joint.

(6) Fire arm wound of entrance
0.2 cm x 0.2 cm x muscle deep on calf
muscle, 12 cms below knee.

(7) Fire arm wound of entrance
0.2 cm x 0.2 cm x muscle deep on back of
left upper arm 6 cms above elbow joint.
1406 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The said injury memo has been
marked as Ext. Ka-15 because learned
counsel for the accused had admitted its
genuineness. In the said post-mortem
report, it has been opined by the doctor
that deceased died as a result of abovementioned ante-mortem injuries.

20. We would like to also take into
consideration the site plan and evaluate as
to whether in the light of statements given
by PW-1 and PW-2, the site plan appears
to be correctly prepared.

21. In the site plan Ext. Ka-11, by
"A" is shown the place where the deceased
was picking up the bricks and by "B" is
shown the place which is 35 yards away
across the river, towards South from
where, fire was made upon the deceased
Ram Bharose, who fell down at place "C"
after getting injured. The distance between
place "A" and "C" is shown to be three
steps only. Beside the wall, there blood
was also found spilt. From the place
shown by "B", the other accused Udaivir is
stated to have made fire upon witnesses by
country made pistol. From "D" is shown
the place where witnesses were standing
which was at a distance of seven to eight
steps from the place shown by "A" and by
"E" is shown the place which is five steps
away from the place where accused Hirday
Ram and Adiram were standing at the time
when fire was made by accused. By "F" is
shown the place where dead body was
found for preparation of panchayatnama.
From the place of incident, the field of
Ahibaran Singh is shown at a distance of
50 steps away and the field of Asha Ram
is shown at a distance of 55 steps away.
From "G" is shown the place from where
Soran
Singh
and
others
heard
the
quarrel/abusing and from there they
reached the place of occurrence and by
"double arrow" is shown the place from
where accused had fled in the south after
giving effect to the occurrence.

22. If we read the statement of PW-1
and PW-2 in the light of above site plan,
no infirmity is found as regards the
occurrence having taken place at the place
shown by "A" which is towards southern
side of the house of the informant where
wall is shown being constructed and from
"B" which is 30-35 yards away from "A"
towards south of the place where incident
occurred and from this place shown by
"D" main accused-Rajvir is stated by PW1 to have fired by his gun which hit the
deceased.

23.

Learned
counsel
for
the
appellants has tried to convince the court
though unsuccessfully that PW-1 has
stated that Rajvir and Udaivir, both
initially came with their respective arms
near the wall where the deceased got hit
and subsequently they returned to a place
near their house shown by "B" which is at
a distance about 30-35 yards away across
the pond from where Rajvir fired upon the
deceased, therefore, Rajvir could not be
attributed the intention to kill the deceased
as if he had the said intention he would not
have returned to place "D" and would have
made fire from close range at place shown
by "A" itself.

24. We are not convinced with the
said argument because it appears that
learned counsel for the appellants is trying
to draw wrong conclusion by the statement
of PW-1 that the accused Rajvir had,
initially after being armed with the said
weapon came near the wall where new
wall was being raised, in fact the said wall,
from where he is said to have fired, was
being referred the wall of his own house
1 All. Hirday Ram & Ors. Vs. State of U.P.
1407
and from there he is said to have fired
upon the deceased from a distance of
about 30 to 35 yards away and the same is
also
corroborated
by
the
medical
examination report because no tattooing or
blackening has been found in the injuries
caused to the deceased. All the said
injuries which are mentioned above are
pallet injuries which were possible to be
caused by single arm as these were pallet
injuries in dispersed area. As regards other
accused Udaiveer, it has come in evidence
of PW-1 and PW-2 that the fire made by
the country made pistol by him did not hit
anyone, therefore, we are of the opinion
that it is only Rajvir, who ought to have
been held guilty by the learned trial court
instead of Udaivir and other two accused
Hirday Ram and Adiram, who were
attributed the role of exhortation.

25. There appears to be element of
truth in the argument of learned counsel for
the appellants that since all the accused
belong to one family, the entire family has
been sought to be implicated by attributing
role to two out of them of exhortation and to
the remaining two of making fire upon the
deceased and others but the said version
does not appear to be true. It is the duty of
the court to sift grain from the chaff and we
find that the statement of PW-1 and PW-2,
who are said to be present on the place of
incident when this occurrence happened,
proved that it was only Rajvir whose shot
actually caused serious injuries to the
deceased which resulted in his death,
therefore, he ought to have been held guilty
of charge under Section 302 simplicitor.

26. We are also not inclined to agree
with the view of the learned counsel for
the appellants that the said act of the
accused Rajvir would fall under Section
304(I) IPC as no intention could be imputed
to him to cause death of the deceased, who
belonged to the same family and was a
collateral because if someone is aiming upon
somebody with a fire arm and actually
opening fire, it cannot be said that he would
not have an intention to kill a person upon
whom he fired after taking aim, because
intention will definitely be attributed of
killing in this case.

27. We are although of the opinion
that other three accused out of whom one
Hirday Ram is reported to have died in the
year 1999 and his appeal has been abated
on 17.7.2018, do not appear to have any
role to play in giving effect to the present
occurrence because informant himself has
admitted that he had lodged some part in
the complaint wrongly because of being
under grief, hence it could not be ruled out
that their implication may have been made
because of enmity with a view to
implicating the whole family.

28. Further argument of learned
counsel for the appellants that no recovery
of any weapon of assault was made from
the accused-Rajvir does not appeal to
reason because when eye-witness account
is there against the said accused who had
made fire upon the deceased, recovery of
weapon has no significance.

29. The statement of PW-3 and PW4 being formal witnesses is not being
analyzed in detail. In our opinion, by the
analysis which we have made above, we
are of the confirmed opinion that accused-
Rajvir only deserves to be held guilty
under Section 302 IPC simplicitor and rest
of the two accused namely Adiram and
Udaivir need to be given benefit of doubt.

30. Accordingly, we allow the appeal
of Adiram and Udaivir, they are not held
1408 INDIAN LAW REPORTS ALLAHABAD SERIES
guilty under Section 302 read with Section
34 IPC and deserve to be acquitted, while
accused Rajvir deserves to be held guilty
under Section 302 IPC simplicitor and also
hold that no prejudice would be caused by
holding him guilty under Section 302 IPC
simplicitor, though no charge under Section
302 IPC simplicitor has been framed against
him by the trial court because he has been
given full opportunity to defend himself. The
appeal of the accused- Rajvir is dismissed,
he shall be taken into custody, his bail bonds
shall stand discharged.

31. Accordingly, the present appeal
is partly allowed.

32. The accused-appellants Adiram
and Udaivir are already on bail, hence
they need not be taken into custody. The
trial court shall obtain bail bonds from
them under Section 437 (1) Cr.P.C.

33. Let a copy of this judgment be
transmitted to the trial court forthwith for
necessary information and compliance.
----------
(2020)1ILR 1407

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE
THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 3079 of 1985

Bijendra Singh & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri R. S. Yadav, Sri Ajay Kumar Srivastava,
Sri Jitendra Pal Singh Chauhan
Counsel for the Opposite Party:
A.G.A.

A. Code of Criminal Procedure, 1973 -
Section 374(2) & Indian Penal Code,
1860 - Sections 302/34 - contradiction in
oral and medical evidence as no injury
was found on the naval region of the
deceased -It appears to be improbable
that a person may inflict gandasa blows
on head and face while the head is held
by another person- Therefore, this part of
the
prosecution
story
is
highly
improbable and doubtful- the conviction
of the appellants cannot be sustained.
(Para 17)

B. Motive -The motive for committing the
crime is assigned to the appellant. appellant's
father had transferred his 11-12 bighas of land
to the deceased. The deceased was trying to
get her name mutated on the said land, which
was objected by the appellant. from the
evidence on record that the deceased Ram
Devi was issue-less, therefore, after her death
appellant Bijendra alone would inherit entire
properties of his father, and that being so,
there was no reason for the appellant Bijendra
to have committed murder of his step mother.
(Para 18)

Criminal Appeal allowed. (E-6)

List of cases cited: -

1. Akhtar Vs St. of Uttaranchal (2009) 13 SCC
722

2. Sadique and ors.Vs St. of UP, reported in
1981 Cr.L.J. 379,

(Delivered by Hon'ble Vivek Varma, J.)

1. By the impugned judgment dated
08.11.1985,
the
learned
2nd
Addl.
Sessions Judge, Aligarh convicted accused
appellants Bijendra and Smt Khazani for
the offence punishable under section
302/34 Indian Penal Code and sentenced
them to under go life imprisonment.