# Jasveer & Ors v. State of U.P

- **Citation:** (2021) 11 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Case number:** Criminal Appeal No. 4138 of 2018
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jasveer-ors-v-state-of-u-p-46701
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code , 1860 -
Section 307- Allegation of use of firearm found
to be false- All injuries simple and not
dangerous to life- From the evidence of PW-1,
PW-2 and also from the perusal of injury
reports, it is crystal clear that no injured
sustained any firearm injury and prosecution
has failed to prove that any firearm was used in
the occurrence. Informant/injured Prakashwati
has
tried
to
make
exaggeration
in
her
statement and use of firearm is brought into
the picture just to exaggerate the case and for
bringing it within the ambit of offence under
Section 307 I.P.C. Dr. Azadveer Singh PW-3 has
also
given
opinion
that
no
injury
was
dangerous to life. Injured Pradeep sustained
12 injuries in all and out of these 12 injuries,
11 injuries were found simple in nature and
only one injury i.e. injury no. 8 was found
grievous in nature due to fracture in forearm of
11 All. Jasveer & Ors. Vs. State of U.P.
79
the injured. Injured Prakashwati sustained five
injuries and all the five injuries were found
simple in nature. Hence with this analysis and
scrutiny of evidence of witnesses on record,
this court is of the considered view that no
offence under Section 307 I.P.C. is made out
against any of the appellants and learned trial
court did not appreciate the evidence in this
regard in right perspective and finding of trial
court for convicting the appellants under
Section 307 I.P.C. is perverse and liable to be
set aside.

Where all injuries are simple and not dangerous to life
and the allegation of the use of firearm is found to be
false, which shows that the intention of the accused
was not to commit murder, then the offence u/s 307
of the IPC is not made out.

Criminal Law - Indian Penal Code, 1860-
Section 34 & 324- Prosecution has proved that
all the appellants entered the house of
informant with common intention to commit
offence. They entered the informant's house
together with ''Balkati' and ''Lathi-danda' in
their hands. So it can be definitely opined that
they were having common intention to commit
the crime. Injured Pradeep sustained three
injuries of incised wound as aforesaid, hence
appellants are held guilty for offence under
Section 324 I.P.C.Conviction and sentence
awarded to appellants under Section 307 r.w.s.
34 I.P.C. is hereby set aside.

As the accused committed the offence with common
intention whereby grievous hurt was caused with the
use of dangerous weapons hence the offence would
come within the purview of Section 324 read with
Section 34 of the IPC.( Para 15, 16, 17, 19)

Criminal Appeal partly allowed. (E-3)

## Text

78 INDIAN LAW REPORTS ALLAHABAD SERIES
recovery of pistol from the present accused.
The site plan also does not inspire confidence
that the accused was present at the spot where
the crime was committed. The decision of the
Allahabad High Court in Awadh Ram Vs.
State of U.P, 2004 (48) ACC 365 will also
come to the aid of the accused which has been
misinterpreted by the learned Judge. Just
because the F.I.R had named the accused it
cannot mean that the site plan depicting the
presence of the accused at a particular place is
proved beyond reasonable doubt. There are
several contradictions and these contradictions
are not minor in nature. We have considered
thread bear the facts. All interested witnesses
have been examined by the prosecution. Not a
single witness who can be said to be an
independent witness has been examined. The
finding of the learned Judge is not accepting
the submission of the accused goes to through
the perversity in the judgement. The F.I.R
never stated that the accused had any
altercation with the deceased girl, it was
juvenile delinquent who had passed remarks.

13. We are convinced that this is a case
where the accused should be granted what is
known as benefit of doubt. One of the reasons
been the manner in which the injuries was
caused was not with the weapon which was
alleged to be carried by the accused, the scribe
also did not prove the time of the incident.
The manner of assault is also not been proved
against the accused.

14. In view of the facts and evidence on
record, we are convinced that the accused has
been wrongly convicted, hence, the judgment
and order impugned is reversed and the
accused is acquitted of charges levelled. The
accused appellant Rinka alias Jitendra in
case crime no. 342 of 2012 , if not wanted in
any other case, be set free forthwith.

15. Appeal is allowed accordingly.

16. Record be sent to the trial court.

17. We are thankful to learned counsel for
appellant and learned AGA for the State who
has ably assisted the Court.
----------
(2021)12ILR A78
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 4138 of 2018

Jasveer & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Santosh Tripathi, Sri Adesh Kumar, Sri
Mandvi Tripathi, Pradeep Kumar, Sri Ram Suphal
Shukla, Sri Vindeshwari Prasad

Counsel for the Opposite Party:
A.G.A., Sri Narendra Singh Chahar, Sri Ashutosh
Singh

Criminal Law - Indian Penal Code , 1860 -
Section 307- Allegation of use of firearm found
to be false- All injuries simple and not
dangerous to life- From the evidence of PW-1,
PW-2 and also from the perusal of injury
reports, it is crystal clear that no injured
sustained any firearm injury and prosecution
has failed to prove that any firearm was used in
the occurrence. Informant/injured Prakashwati
has
tried
to
make
exaggeration
in
her
statement and use of firearm is brought into
the picture just to exaggerate the case and for
bringing it within the ambit of offence under
Section 307 I.P.C. Dr. Azadveer Singh PW-3 has
also
given
opinion
that
no
injury
was
dangerous to life. Injured Pradeep sustained
12 injuries in all and out of these 12 injuries,
11 injuries were found simple in nature and
only one injury i.e. injury no. 8 was found
grievous in nature due to fracture in forearm of
11 All. Jasveer & Ors. Vs. State of U.P.
79
the injured. Injured Prakashwati sustained five
injuries and all the five injuries were found
simple in nature. Hence with this analysis and
scrutiny of evidence of witnesses on record,
this court is of the considered view that no
offence under Section 307 I.P.C. is made out
against any of the appellants and learned trial
court did not appreciate the evidence in this
regard in right perspective and finding of trial
court for convicting the appellants under
Section 307 I.P.C. is perverse and liable to be
set aside.

Where all injuries are simple and not dangerous to life
and the allegation of the use of firearm is found to be
false, which shows that the intention of the accused
was not to commit murder, then the offence u/s 307
of the IPC is not made out.

Criminal Law - Indian Penal Code, 1860-
Section 34 & 324- Prosecution has proved that
all the appellants entered the house of
informant with common intention to commit
offence. They entered the informant's house
together with ''Balkati' and ''Lathi-danda' in
their hands. So it can be definitely opined that
they were having common intention to commit
the crime. Injured Pradeep sustained three
injuries of incised wound as aforesaid, hence
appellants are held guilty for offence under
Section 324 I.P.C.Conviction and sentence
awarded to appellants under Section 307 r.w.s.
34 I.P.C. is hereby set aside.

As the accused committed the offence with common
intention whereby grievous hurt was caused with the
use of dangerous weapons hence the offence would
come within the purview of Section 324 read with
Section 34 of the IPC.( Para 15, 16, 17, 19)

Criminal Appeal partly allowed. (E-3)

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by
appellants Jasveer, Rajan, Raju and Amit @
Guddu against the judgment and order passed by
Learned Additional Sessions Judge [Fast Track
Court No. 2] Muzaffar Nagar dated 20.07.2018
in Session Trial No. 735 of 2013 (State of U.P.
Vs. Jasveer and others) arising out of Case
Crime No. 240 of 2012, under Sections 452,
307/34, 323/34, 504 and 506 I.P.C., Police
Station- Mansoorpur, District- Muzaffar Nagar
by which learned trial court convicted and
sentenced the appellants for 10 years rigorous
imprisonment under Section 307/34 I.P.C., for
seven years under Section 452 I.P.C., one year
R.I. under Section 323/34 I.P.C., two years R.I.
under Section 504 I.P.C. and seven years R.I.
under Section 506 I.P.C. along with fine and
imprisonment in default of fine. All the
sentences were directed to run concurrently.

2. The brief facts giving rise to this appeal
are that informant of this case Smt. Prakashwati
W/o Late Peetam Singh submitted a written
report Ex. KA-1 in P.S.-Mansoorpur, District-
Muzaffar Nagar on 13.06.2012 with the
averments that on that day she was sitting inside
her house with her son Pradeep and daughter-inlaw Sudha. At about 8:30 in the morning
Jasveer, Amit @ Guddu, Rajan and Raju of her
village entered her house with country made
pistol [''Tamancha'], ''Balkati' [Sharp edged
instrument] and ''Lathi-danda' and started
abusing. When her son Pradeep stopped them
from abusing, all the accused persons/appellants
fired with intention to kill and attacked on
Pradeep with ''Balkati' and ''Lathi-danda' and
beating him badly. When she tried to intervene,
she was also attacked and her daughter-in-law
Sudha was also attacked by appellants. Her son
Pradeep and she herself sustained serious
injuries. On her hue and cry Ashok, Vinod and
other villagers came on the spot who saw the
occurrence and saved them. While going back,
the accused persons threatened them to kill him
in the future.

3. Case Crime No. 240/2012 under Section
452, 307, 504, 506 I.P.C. was registered against
all the appellants. After investigation, charge
sheet against all the appellants was submitted by
Investigating Officer. Learned trial court framed
charges against all the appellants under Section
80 INDIAN LAW REPORTS ALLAHABAD SERIES
452, 307/34, 323/34, 504 and 506 I.P.C. After
trial learned court convicted and sentenced all
the appellants as aforesaid. Hence this appeal.

4. Heard Shri Vindeshwari Prasad, learned
counsel for appellants, Shri Ashutosh Singh,
learned counsel for the opposite party and Shri
B.A. Khan, learned A.G.A. for State.

5.

Learned
counsel
for
appellants
submitted that there are two injured in this case,
one is informant Prakashwati and other her son
Pradeep. All injuries of Pradeep are simple in
nature except injury no. 8 which is fracture in
his right arm. It is further submitted that there is
no injury of fire arm and no fire arm was even
used in entire incident as per prosecution
witnesses themselves. Hence no case under
Section 307 I.P.C. is made out and learned trial
court wrongly convicted the appellants under
this section. It is argued that the case maximum
goes to the extent of offence under Section 325
I.P.C. although it is not clear from the
prosecution evidence as to who had caused the
injury no. 8, i.e. fracture to the injured Pradeep.

6. Learned counsel for appellant further
argued that learned trial court wrongly framed
the charge against the appellants under Section
307 I.P.C. because no intention to kill is
emerged from entire prosecution story and
injuries nor there was any firing by any
appellants. Injured witnesses themselves and
Investigating officer have said that no firearm
was used and injury reports also suggest it. In
this way there is no evidence for the offence
under Section 307 I.P.C. In her statement
informant/injured PW-1 Prakashwati has made
so many improvements. She has stated in her
statement that no fire was made by Jasveer
although she has stated that Jasveer tried to
make fire but it was missed but no such
averment is made in first information report,
hence her testimony should not be believed.
Hence appeal be allowed.

7. Learned counsel for respondent and
learned A.G.A. made rival submissions and
argued that there are 12 injuries to Pradeep and
four injuries to Prakashwati and maximum
injuries of Pradeep have been inflicted on vital
parts of the body. Pradeep has fracture in his
right forearm also. No injury is superficial and
injury report as well as supplementary medical
report say that injuries were inflicted to the
injured persons by hard and blunt object and by
sharp edged weapon. As per prosecution version
and evidence of injured witnesses, appellants
were having ''Balkati' and ''Lathi-danda' in their
hands, so in this way the evidence of injured
witnesses is corroborated by medical evidence
also.

8. It is next submitted by respondents that
appellants entered the house of informant with
intention to kill as is evident from injuries
inflicted to Pradeep and informant also. Hence
offence under Section 307 I.P.C. is made out. It
is day light incident and F.I.R. was lodged
promptly. It is also submitted that every
appellant had active participation in crime.
Hence learned trial court has rightly convicted
and sentenced to the appellants. Appeal be
dismissed.

9. Prosecution has brought the case that on
13.06.2012 at about 8:30 in the morning all the
appellants entered the house of informant and
had beaten the informant, her son and her
daughter-in-law with ''Balkati' and ''Lathidanda' and also made fire. In this occurrence
informant Prakashwati and her son sustained
injuries.

10. Prosecution has produced both injured
persons as PW-1 Prakashwati and PW-2
Pradeep, no other witness of fact is produced.
Injured witnesses are best witness to depose
before the court. As per prosecution case, at the
time of occurrence appellant Jasveer was having
country made pistol [''Tamancha'] in his hand,
11 All. Jasveer & Ors. Vs. State of U.P.
81
Rajan and Raju were having ''Balkati' and Amit
@ Guddu was having ''Lathi' but evidence of
PW-1 and PW-2 shows that no firearm was used
in the incident. In this regard PW-1 Prakashwati
has stated in her statement that all the accused
persons entered her house and made fire. Further
it is said by her that fire was missed. This
witness has admitted in her statement that it was
correctly mentioned in F.I.R. by her that accused
persons opened fire with intention to kill and
also admitted that she did not mention in F.I.R.
that Jasveer fired from ''Tamancha' and it was
missed. This statement of missing the fire was
not given by the witness to Investigating Officer.
Later on before trial court PW-1 distracted from
her statement that Jasveer fired and it was
missed rather she has specifically stated in cross
examination that no fire was made by Jasveer in
entire occurrence and it is also correct to say that
no accused person made any fire. PW-2 Pradeep,
another injured witness has stated in his
examination-in-chief that Jasveer fired from
''Tamancha' but bullet was not discharged. Both
the witnesses PW-1 and PW-2 have accepted in
their statements that Jasveer did not try to make
second fire. Hence the evidence of PW-1 and
PW-2 is not at all reliable on the point of making
fire by any of the appellants. This fact is
corroborated by injury reports also. Medical
examination of both the injured persons were
conducted by Dr. Azadveer Singh who produced
by prosecution as PW-3. He has proved the
injury report of injured Pradeep as Ex. KA-2. In
Ex. KA-2 following injuries are shown to be
sustained by inured Pradeep:-

(i) Incised would size 5cm x 0.5 cm x
Bone Deep, right side forehead, 4cm above right
eyebrow.

(ii) Incised would 2cm x 0.5 cm x
Scalp Deep right side forehead, 3 cm. above left
eyebrow.

(iii) I.W. size 2cm x 0.5 cm x Muscle
Deep outer end of right eyebrow.

(iv) L.W. size 3cm x 0.5 cm into Scalp
Deep, left side of head, 13 cm. above left ear.

(v)L.W. sized 4.5cm x 0.5 cm x Bone
Deep, right side of head, 4 cm. Away from
injury no. 4.

(vi) L.W. size 2.5 cm x 0.5 cm x Bone
Deep, right side of head, 8 cm. above right ear.

(vii) L.W. size 3.5 cm x 0.5 cm into
Bone Deep, right side head, 6 cm. above right
ear.

(viii) L.W. size 2cm x 0.5 cm x Bone
Deep, T.S. 15 cm x 8 cm of right elbow forearm.

(ix) Multiple contusion in front part of
chest and abdomen, bigger is 22cm x 2cm. and
smaller is 3cm x 1cm.

(x) Contusion size 24cm x 2cm left
side back and abdomen.

(xi) Multiple contusion in front of
right side in an area 24cm x 15cm, larger is
12cm x 5cm and smaller is 5cm. x 4cm.

(xii) Contusion 5cm. X 4cm. middle
part of left thigh.

11. Injuries no. 1, 2 and 8 were kept under
observation and X-ray was advised.

12. After X-ray, supplementary report of
medico legal examination of injured Pradeep
was submitted which is also by the doctor PW-3
as Ex. KA-4. According to this report no bony
injury was seen in injure no. 1 and fracture of
ulna bone was found in X-ray. All the injuries of
Pradeep were found simple except injury no. 8
which was found grievous in nature.

13. Medical examination of injuries
sustained by informant Prakashwati was also
conducted by Dr. Azadveer Singh. He has
proved this report as Ex. KA-3 according to
which following injuries were sustained by
injured Prakashwati :-

(i) Abraded contusion size 3cm. x
2cm. Dorsiflexion of left hand.
82 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii)
Contusion
2.5cm.
x
2cm.
Dorsiflexion of right hand.

(iii) Abraded contusion 7cm. x 4cm.
Back of left arm 5cm. above left elbow.

(iv) Contusion size 4cm. x 2cm. back
of left forearm 9cm. above wrist joint.

(v) C/O pain in chest.

14. All the above injuries of injured
Prakashwati were simple in nature.

15. Hence as per injury reports of both the
injured persons, there was no injury of firearm.
Hence from the evidence of PW-1, PW-2 and
also from the perusal of injury reports, it is
crystal clear that no injured sustained any
firearm injury and prosecution has failed to
prove that any firearm was used in the
occurrence. Informant/injured Prakashwati has
tried to make exaggeration in her statement and
use of firearm is brought into the picture just to
exaggerate the case and for bringing it within the
ambit of offence under Section 307 I.P.C. Dr.
Azadveer Singh PW-3 has also given opinion
that no injury was dangerous to life. Injured
Pradeep sustained 12 injuries in all and out of
these 12 injuries, 11 injuries were found simple
in nature and only one injury i.e. injury no. 8
was found grievous in nature due to fracture in
forearm of the injured. Injured Prakashwati
sustained five injuries and all the five injuries
were found simple in nature. Hence with this
analysis and scrutiny of evidence of witnesses
on record, this court is of the considered view
that no offence under Section 307 I.P.C. is made
out against any of the appellants and learned
trial court did not appreciate the evidence in this
regard in right perspective and finding of trial
court for convicting the appellants under Section
307 I.P.C. is perverse and liable to be set aside.

16. Injured Pradeep sustained three injuries
of incised wound which are injury no. 1, 2 and 3,
all these injuries were simple in nature but it is
clear that these injuries were inflicted with sharp
edged weapon and prosecution has proved that
''Balkati' was used in occurrence which is a
sharp edged instrument and injury no. 1, 2, and 3
could be inflicted to him by ''Balkati.'
Prosecution has proved that all the appellants
entered the house of informant with common
intention to commit offence. They entered the
informant's house together with ''Balkati' and
''Lathi-danda' in their hands. So it can be
definitely opined that they were having common
intention to commit the crime.

17. Injured Pradeep sustained three injuries
of incised wound as aforesaid, hence appellants
are held guilty for offence under Section 324
I.P.C.

18. Injury no. 8 sustained by injured
Pradeep, which is fracture in ulna bone, was
grievous injury. It can be safely held that this
injury was caused by appellant Amit @ Guddu
because as per statement of injured PW-2
Pradeep Kumar in examination-in-chief Amit @
Guddu was having ''Lathi' in his hand. Further
he has stated that Amit @ Guddu assaulted on
his head by ''Lathi' 4 to 5 times but he was
saving himself by his hands. So it is proved that
the injury no. 8 was inflicted to Pradeep by the
appellant Amit @ Guddu. Hence appellant Amit
@ Guddu is held guilty under Section 325 I.P.C.
also.

19. With the discussion as above I am of
the considered opinion that no case under
Section 307 I.P.C. is made out against any of the
appellants. Hence conviction and sentence
awarded to appellants under Section 307 r.w.s.
34 I.P.C. is hereby set aside.

20. Sentence under Sections 452 and 504
I.P.C. is very harsh keeping in view of the fact
that no offence under Section 307 I.P.C. is made
out. Hence sentence under Section 452 I.P.C. is
reduced for two years from seven years.
Sentence under Section 506 I.P.C. is reduced to
11 All. Gaurav Kumar Srivastava Vs. State of U.P.
83
two years from seven years. Imposition of fine
and imprisonment in default of fine shall remain
intact for the offences under Sections 452 and
506 I.P.C. Sentence under Section 323 r.w.s. 34
I.P.C. and under Section 504 I.P.C. shall remain
intact.

21. Appellants Jasveer, Raju, Amit @
Guddu and Rajan are sentenced for three years
rigorous imprisonment under Section 324 I.P.C.

22. Appellant Amit @ Guddu is sentenced
for three years rigorous imprisonment and
Rs.5,000/- fine. He shall undergo simple
imprisonment for three months in case of default
of fine.

23.

All
the
sentences
shall
run
concurrently.

24. In the result, appeal is partly allowed
as modified aforesaid. Copy of this judgment
and record be transmitted to concerned court
below for ensuring compliance.
----------
(2021)12ILR A83
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Jail Appeal No. 4556 of 2014

Gaurav Kumar Srivastava ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Amit Tripathi, Sri Santosh Kumar
Yadav, Sri Mukesh Kumar

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

A. Criminal Law-Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Section
302-challenge
to-convictionprosecution has not disclosed any motive-PW-2
inimical witness, also stated that he never saw
any altercation between son and motherDanda was recovered on the pointing out the
appellant from inside the Chappar of his house
and blood was found on it-PW-1 and PW-2 are
not eye-witnesses as they were not present on
the spot-However, injuries were sufficient in
the ordinary course of nature to cause death,
therefore, the appellant held guilty under
Section 304 (Part-I) instead of under section
302 IPC.(Para 1 to 24)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Tuka Ram & ors.. Vs St. of Mah. (2011) 4 SCC 250

2. BN Kavadakar & anr. Vs St. of Kar. (1994) Supp (1)
304

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by the
appellant- Gaurav Kumar Srivastava against the
judgment and order dated 28.08.2014, passed by
Additional Sessions Judge, Farrukhabad, in
Session Trial No.117 of 2012 (State vs. Gaurav
Kumar Srivastava) arising out of Case Crime
No.137 of 2012 under Section 302 IPC, Police
Station-Kamlaganj,
District-
Farrukhabad,
whereby the appellant-accused was convicted
and sentenced for life imprisonment and fine of
Rs.5,000/- under Section 302 IPC. He was
further directed to undergo six months of simple
imprisonment, in case of default of fine.

2. The brief facts of this case are that on
31.03.2012, a written report was submitted by
complainant
Sitaram
at
Police
Station-
Kamalganj, District- Farrukhabad stating that
besides his house in village Sindhirampur, there
is house of his elder sister Smt. Phoolan Devi,