# Kailash (In Jail) v. The State of U.P

- **Citation:** (2021) 5 ILRA 275
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-21
- **Case number:** Criminal Appeal No. 1989 of 2009
- **Bench:** Ramesh Sinha, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-in-jail-v-the-state-of-u-p-46964
- **Pages:** 15

## Headnote

Indian Penal Code, 1860- Section 34-
Absence of common intention- Appellants
Badey Lal, MunnaLal and Sipahi Lal alias
Nanh could not be said to have any
common intention to commit the murderof
the deceased Khushi Ram along with
appellant Kailash. Appellants Badey Lal,
Munna Lal and Sipahi Lal alias Nanh also
did not assualt the deceased Khushi Ram
276 INDIAN LAW REPORTS ALLAHABAD SERIES
with Lathies and Dandas- At the most,
appellants Badey Lal, Munna Lal and
Sipahi Lal alias Nanh are responsible for
their individual act and not vicariously.
Moreover, the prosecution has also not
brought any evidence on record to show
that appellants Badey Lal, Munna Lal and
Sipahi Lal alias Nanh had any prior
knowledge of the fact that deceased
Khushi Ram would be shot by the
accused-appellant Kailash, who was also
running
away
from
the
place
of
occurrence because of the fact that
accused- appellants had arrived with
Lathis, dandas and countrymade pistol-
The deceased, who was killed by the
accused/appellant
Kailash
with
a
countrymade pistol and the deceased died
on the spot, hence their conviction and
sentence by the trial Court under Section
302/34 I.P.C. is liable to be set-aside.
However, conviction of appellants Badey
Lal, Munna Lal and Sipahi Lal alias Nanh
under Sections 323/34 I.P.C. and their
sentence to undergo six months' R.I.
by the trial Court is liable to be confirmed
as
they
with
a
common
intention
assaulted the three injured persons with
lathies and dandas, who suffered simple
injuries on their persons-The intention to
kill the deceased was apparent from the
conduct of the appellant Kailash, who did
not spare the deceased Khushi Ram was a
disabled person, hence he is individually
responsible for his act of murdering the
deceased.

Where it is apparent from the evidence of the
prosecution that the appellants did not share a
common intention with the other co-accused to
commit the murder and there was absence of
any premeditation, then the said appellants
cannot be held to be vicariously and jointly
responsible for the act of the other co-accused
but would be vicariously responsible , under
section 34 of the IPC, for assaulting the other
injured persons while the other co-accused
would be guilty of the offence u/s 302
simpliciter.

Indian Evidence Act, 1872- The trial Court
found that evidence of recovery of the
countrymade pistol on the pointing out of
the said appellant cannot be reliable as no
independent witnesses have supported
the
recovery
of
countrymade
pistol.
Moreso, no site-plan for recovery of the
said countrymade pistol and catridges has
been made by the Investigating Officer,
but that alone cannot be a ground to
acquit the appellant Kailash from the
charges levelled against him because of
the latches on the part of the investigating
agency as the incident had taken place in
a
broad
day
light
and
the
injured
witnesses supported the prosecution case
against appellant Kailash, which is fully
corroborated by the medical evidence.

Where the offence committed by the accused is
proved from the testimony of the eye witnesses
then the latches and defects of the investigating
agency with regard to the recovery of the fire
arm on pointing out of the accused, would be
irrelevant.

Accordingly, Criminal Appeal No. 1989 of
2009 rejected while Criminal Appeal No.
1982 of 2009 Partly allowed. (E-2)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,593 of 49,300. This is a partial read: ask again with offset=39593 for what follows._

5 All. Kailash Vs. The State of U.P.
275
concurrent findings of guilt recorded by the
two Courts below was set aside."

23. Thus, in view of the forgoing
discussion, we are not able to appreciate
the reason given by the Courts below for
convicting the appellants for the alleged
offences. On the contrary, we are of the
considered view that prosecution has failed
to establish the guilt of the accused beyond
reasonable doubt. The incident does not
appear to have happened in the manner in
which the prosecution wants the Court to
believe it had happened.

24. In view of the discussion made
hereinabove, the appellants become entitle
for the benefit of doubt and appeal deserves
to be allowed and is hereby allowed.

25. The Criminal Appeal No.669 of
2014 and Criminal Appeal No.540 of 2014
on behalf of appellants namely, Amit Singh
and Nitin Singh stand allowed. They are
said to be in jail. They shall be released
forthwith, if not wanted in any other
criminal case.

26. It is further directed that the
appellants namely, Amit Singh and Nitin
Singh shall furnish bail bond with sureties
to the satisfaction of the court concerned in
terms of the provision of Section 437-A
Cr.P.C.

27. Let the lower court record along
with the present order be transmitted to the
trial
court
concerned
for
necessary
information and compliance forthwith.

28. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

29.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)05ILR A275
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.05.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.

Criminal Appeal No. 1989 of 2009

Kailash ...Appellant(In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Nagendra Mohan, Arshad Hafeez Khan,
Bhanu Dutt Dwivedi, Desh Ratan Mishra,
Dinesh Kr. Sharma, Salil Mohan, Shishir
Pradhan, Virendra Kumar Yadav

Counsel for the Opposite Party:
G.A.

Indian Penal Code, 1860- Section 34-
Absence of common intention- Appellants
Badey Lal, MunnaLal and Sipahi Lal alias
Nanh could not be said to have any
common intention to commit the murderof
the deceased Khushi Ram along with
appellant Kailash. Appellants Badey Lal,
Munna Lal and Sipahi Lal alias Nanh also
did not assualt the deceased Khushi Ram
276 INDIAN LAW REPORTS ALLAHABAD SERIES
with Lathies and Dandas- At the most,
appellants Badey Lal, Munna Lal and
Sipahi Lal alias Nanh are responsible for
their individual act and not vicariously.
Moreover, the prosecution has also not
brought any evidence on record to show
that appellants Badey Lal, Munna Lal and
Sipahi Lal alias Nanh had any prior
knowledge of the fact that deceased
Khushi Ram would be shot by the
accused-appellant Kailash, who was also
running
away
from
the
place
of
occurrence because of the fact that
accused- appellants had arrived with
Lathis, dandas and countrymade pistol-
The deceased, who was killed by the
accused/appellant
Kailash
with
a
countrymade pistol and the deceased died
on the spot, hence their conviction and
sentence by the trial Court under Section
302/34 I.P.C. is liable to be set-aside.
However, conviction of appellants Badey
Lal, Munna Lal and Sipahi Lal alias Nanh
under Sections 323/34 I.P.C. and their
sentence to undergo six months' R.I.
by the trial Court is liable to be confirmed
as
they
with
a
common
intention
assaulted the three injured persons with
lathies and dandas, who suffered simple
injuries on their persons-The intention to
kill the deceased was apparent from the
conduct of the appellant Kailash, who did
not spare the deceased Khushi Ram was a
disabled person, hence he is individually
responsible for his act of murdering the
deceased.

Where it is apparent from the evidence of the
prosecution that the appellants did not share a
common intention with the other co-accused to
commit the murder and there was absence of
any premeditation, then the said appellants
cannot be held to be vicariously and jointly
responsible for the act of the other co-accused
but would be vicariously responsible , under
section 34 of the IPC, for assaulting the other
injured persons while the other co-accused
would be guilty of the offence u/s 302
simpliciter.

Indian Evidence Act, 1872- The trial Court
found that evidence of recovery of the
countrymade pistol on the pointing out of
the said appellant cannot be reliable as no
independent witnesses have supported
the
recovery
of
countrymade
pistol.
Moreso, no site-plan for recovery of the
said countrymade pistol and catridges has
been made by the Investigating Officer,
but that alone cannot be a ground to
acquit the appellant Kailash from the
charges levelled against him because of
the latches on the part of the investigating
agency as the incident had taken place in
a
broad
day
light
and
the
injured
witnesses supported the prosecution case
against appellant Kailash, which is fully
corroborated by the medical evidence.

Where the offence committed by the accused is
proved from the testimony of the eye witnesses
then the latches and defects of the investigating
agency with regard to the recovery of the fire
arm on pointing out of the accused, would be
irrelevant.

Accordingly, Criminal Appeal No. 1989 of
2009 rejected while Criminal Appeal No.
1982 of 2009 Partly allowed. (E-2)

Judgements/ Case law relied upon:-

1. Vineet Kumar Chauhan Vs St. of U.P. : AIR
2008 S.C. 780

2. Sadhu Singh Harnam Singh Vs The State of
Pepsu : AIR 1954 SC 271

3. Dharam Pal & ors. Vs St. of U.P. : 1997 SCC
(crl.) 1203

4. Pundalik Mahadu Bhane & ors. Vs St. of
Maha. : 1998 SCC (Cri) 202

5. Balvir Singh Vs St. of M.P. : 2019 (199) AIC
242 (S.C.)

6. Virendra Singh Vs St. of M.P : (2010) 8 SCC
407.

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) The four persons, namely,
Kailash, Badey Lal, Munna Lal and
Sipahi alias Nanh were tried by the
5 All. Kailash Vs. The State of U.P.
277
Additional Sessions Judge, Court No. 5,
Barabanki in Sessions Trial No. 256 of
2007 : State Vs. Bade Lal and others for
offences
punishable
under
Sections
302/34, 307/34, 426, 504 and 506 of the
Indian Penal Code. In addition, appellantKailash was also tried in the aforesaid
sessions trial for the offence punishable
under Section 3/25 of the Arms Act by
the Additional Sessions Judge, Court
No.5, Barabanki. Vide judgment and
order dated 30.07.2009, the learned
Sessions
Judge
acquitted
appellants,
Kailash, Badey Lal, Munna Lal and
Sipahi
alias
Nanh,
for
offences
punishable under Sections 307/34, 504,
506 and 426 of the Indian Penal Code but
convicted and sentenced them in the
manner stated hereinafter :--

(i) Under Section 302/34 of the
Indian
Penal
Code
to
undergo
imprisonment for life and to pay a fine of
Rs.2000/- each, in default to undergo
additional
one
year
each
rigrous
imprisonment; and

(ii) Under Section 323 read with
Section 34 of the Indian Penal Code to
undergo six months' R.I.

The trial Court directed the
sentences of appellants on all the counts
to run concurrently.

(2) Aggrieved by his convictions
and sentences, Kailash preferred before
this Court Criminal Appeal No. 1989 of
2009, whereas Badey Lal, Munna Lal and
Sipahi alias Nanh preferred Criminal
Appeal No. 1982 of 2009.

(3) Since both these appeals arise out
of a common factual matrix and impugned
judgment, we are disposing them of by
a common judgment.

(4) Shortly stated the prosecution case
runs as under :--

The informant Nagesar Lonia
(P.W. 1) is the younger brother of the
deceased
Khushi
Ram,
who
was
handicapped by leg. At the time of the
incident, the informant Nagesar Lonia
(P.W.1), deceased Khushi Ram, Smt.
Ranjeeta Devi (P.W.2), Devi Deen (P.W.3),
Ram Lakhan (P.W.4), and appellants,
Kailash, Badey Lal, Munna Lal and Sipahi
alias Nanh, were living in village Kyontala
Majhari, Police Station Mohammadpur
Khala, District Barabanki.

(5) Prior to the incident, enmity was
subsisting between father of appellants,
namely, Ratan on one hand and father of
the informant, namely, Devi Deen (P.W.3)
on the other with regard to a land.

(6) On 09.12.2006, at about 2.30 p.m.,
on seeing that goats of appellant Bade Lal,
who is the pattidar of the informantNagesar Lonia, were grazing and damaging
the crop of Lentil and Pea sowed in the
field of the informant, then, the wife of the
informant, namely, Ranjeeta Devi (P.W.2),
was trying to oust the goats from the field.
The wife of appellant Kailash, who was
also present there, started altercation and on
listening the hue and cry, the informantNagesar Lonia (P.W.1), father of the
informant (Devi Deen P.W.3), and elder
brother of the informant (Khushi Ram,
deceased) reached on the spot and at the
same time, appellants Badey Lal, Munna
Lal and Sipahi alias Nanh and Kailash
came there with lathi, danda and illegal
firearm and by using abusive language to
278 INDIAN LAW REPORTS ALLAHABAD SERIES
the informant, his father Devi Deen
(P.W.3), wife Ranjeeta Devi (P.W.2) and
his elder brother Khushi Ram (deceased)
on the spot also. On seeing this, informant,
his father Devi Deen (P.W.3), wife
Ranjeeta Devi (P.W.2) and his elder
brother Khushi Ram (deceased) fled due to
fear, upon which, appellants chased them
and with intention to kill elder brother of
the informant, Khusi Ram, who was
handicapped by leg, appellant-Kailash fired
upon him with a countrymade pistol at the
west of the field of the chakroad, to which
elder brother of the informant, Khushi
Ram, died on the spot. Thereafter,
appellants besieged the informant, his wife
Ranjeeta Devi and his father Devi Deen
also near the chak road and, thereafter,
seriously injured them by beating them
from Lathi, danda and butt of the illegal
firearm. This incident was seen by Ramesh
and Shiv Bhagwan, sons of Lal Bahadur
and other persons of the village, who were
present there. Thereafter, appellants fled
away from the spot by threatening the
informant to kill his family members. Due
to non-availability of the conveyance, the
informant left the deadbody of the deceased
under the supervision of other family
members on the spot and carried the injured
persons to the police station.

(7) The informant got the FIR scribed
by Jugal Kishore Dwivedi, resident of
Village & Police Station Mohammadpur
Khala,
district
Barabanki,
who
after
scribing it read it over to him. He thereafter
affixed his thumb impression on it. He then
proceeded to Police Station Mohammadpur
Khala and lodged it.

(8) The evidence of SI Jai Prakash
Mishra (P.W. 6) shows that on 09.12.2006,
he was posted as Head Constable at Police
Station Mohammadpurkhala and on the
said date, at 5:45 p.m., informant-Nagesar
Lonia came and filed his written FIR on the
basis of which he prepared the chik FIR.

(9) A perusal of the chik FIR shows
that the distance between the place of
incident
and
Police
Station
Mohammadpurkhala was 6 kilometers. It is
significant to mention that a perusal of the
chik FIR also shows that on its basis, a case
crime no. 213 of 2006, under Sections
302/34, 307, 323, 504, 506, 427 I.P.C. was
registered
against
appellants,
Kailash,
Badey Lal, Munna Lal and Sipahi alias
Nanh. After lodging of the F.I.R., the
informant, Dev Deen and Rajita Devi, who
sustained injuries, were sent to Primary
Health Centre, Fatehpur, wherein between
8.06 P.M. to 8.30 P.M., the Doctor
examined them.

(10) The evidence of SI Omveer
Singh (P.W. 12) shows that he took
investigation of the case. At the time of
incident, he was posted as Station Officer
at Police Station Mohammadpurkhala.
Immediately after lodging the F.I.R, he
along with Constable Lalji Yadav and S.I.
Sunil Kumar Singh (P.W.8) reached at the
place of incident where deadbody of
Khushi Ram was lying. On his direction,
panchayatnama of the deadbody of Khushi
Ram was conducted by S.I. Sunil Kumar
Singh (P.W.8) on the next date of incident
i.e. on 10.12.2006 as there was no proper
arrangement of light. He sent the deadbody
of deceased Khusi Ram for post-mortem
along with Constable Lalji Yadav and also
recorded the statement of informant,
Nagesar Lonia, and on his pointing out, he
inspected the place of incident and
prepared the site plan. From the place of
incident, he seized plain and blood stained
earth in containers under a recovery memo.
On 14.12.2006, he searched for the accused
5 All. Kailash Vs. The State of U.P.
279
persons and at about 05:30 a.m., he arrested
appellants Munna Lal, Sipahi Lal and
Kailash and on searching at that relevant
time, one illegal 12 bore countrymade
pistol, one live catridge and one empty
catridge
were
recovered
from
the
possession of Kailash, who confessed that
he used the recovered countrymade pistol
for murder of Khushi Ram. Thereafter,
seizures were made under recovery memos.
On 18.12.2006, he recorded the statement
of witness Ramesh, Shiv Bhagwan, injured
Ranjeeta and Devi Deen. On 2.01.2007,
appellant Badey Lal was arrested and his
statement was also recorded. On 4.01.2007,
permission to add offence punishable under
Section 25 of the Arms Act against
appellant
Kailash
was
taken.
On
18.01.2007, he sent the case details to the
Chief
Judicial
Magistrate
for
trial.
Immediately thereafter, he was transferred.

(11) The evidence of P.W.10-S.I.
Yashwant Singh (Investigating Officer)
shows that after transfer of Omveer Singh
(P.W.12), the investigation was entrusted to
him on 05.02.2007. After satisfying with
the incriminating evidence collected during
the course of investigation by his erstwhile
Investigating Officer, he submitted chargesheet against the appellants, Badey Lal,
Munna Lal, Kailash and Sipahi Lal alias
Nanh.

(12) The post-mortem on the dead
body of Khusi Ram was conducted on
10.12.2006, at 3.00 p.m., by Dr. Vidya
Bhushan Pathak (P.W. 5), who found on
his
person
ante-mortem
injuries,
enumerated hereinafter :--

"Fire arm wound of entry present
on left side of neck just supraclavicular
region size 7.0 x 3.0 c.m. Margins abraded
inverted. Depth 4.5 c.m. oblique going
upto vertebral body C 5, 6.

On Opening & exploration :-
Underlying major vessels of neck torn, all
underlying muscles & tissue in line of
injury damaged reaching up to the 5th &
6th cervical vertebra which is fractured.
Pelural of unclear left side torn. Twelve
metallic pellets recovered from unclear
vertebra vessels & bone & tissue. About 1.0
litre fluid clotted blood recovered from left
plural cavity. Left lung collapsed."

The cause of death spelt out in
the autopsy reports of the deceased person
was shock and haemorrhage as a result of
ante-mortem fire arm injury, which he had
suffered.

(13) It is significant to mention that
in his deposition in the trial Court, Dr.
Vidya Bhushan Pathak (P.W. 5) has
reiterated the said cause of death and also
stated therein that the ante-mortem
injuries suffered by the deceased person
could be attributable to a fire arms like
katta (countrymade pistol).

(14) The injuries of informantNagesar Lonia (P.W.1), Smt. Ranjeeta Devi
(P.W.2) and Devi Deen (P.W.3) were
conducted b y Dr.Abhay Goel (P.W.7) at
Community Health Centre, Fatehpur on
09.12.2006 at 8.06 p.m. After examination,
the following injuries were found by Dr.
Abhay Goel (P.W.7) on the injured
Nagesar Lonia (P.W.1), Ranjeeta Devi
(P.W.2) and Devi Deen (P.W.3) :-

"Injured Nagesar Lonia

"(i) Contusion 3 cm x 2 cm over
right side skull 5 cm above right ear;
280 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Contusion 7 cm x 3 cm over
right shoulder joint.

(iii) Contusion 6 cm x 12 cm over
ant. Aspect of right leg 11 cm below right
knee joint.

(iv) Complain of pain over right
thigh.

O/E
No
visible
injury
or
tenderness present."

Injured Ranjeeta Devi

"(i) Lacerated wound 5 cm x 0.5
cm muscle deep over right side skull 9 cm
above right ear.

(ii) Contusion 7 cm x 3 cm over
right scapular region. cm below right
scapulla"

Injured Devi Deen

"(i) Lacerated wound 4 cm x 0.5
cm muscle deep on middle of skull 13 cm
above right ear.

(ii) Contusion 7 cm x 4.0 cm over
right shoulder joint.

(iii) Contusion 6 cm x 3.0 cm
over left shoulder joint.

(iv) Lacerated wound 1.5 cm x
0.5 cm muscle deep on dorsum of index
finger.

(v) Complaint of pain on left hip
joint. O/E No ext. inj. seen."

(15) As per the opinion of Dr. Abhay
Goel (P.W.7), the aforesaid injuries were
caused by trauma from hard blunt object.
All the injuries were fresh & simple in
nature. In his deposition, Dr. Abhay Goel
(P.W.7) has stated that the said injured
were brought by Constable Gaya Prasad
Yadav. He stated that the aforesaid injuries
may be caused by Lathi, danda and butt of
the katta.

(16) The case was committed to the
Court of Session by the Chief Judicial
Magistrate on 28.05.2007 and the trial
Court framed charge against appellants
under Sections 302/34, 307/34, 426, 504,
506 I.P.C. They pleaded not guilty to the
charges and claimed to be tried. Their
defence was of denial.

(17) During trial, in all, the
prosecution examined 12 witnesses. Two of
them, namely, the informant Nagesar Lonia
(P.W. 1) and Dev Deen (P.W.3) were
examined as eye-witnesses and other
witnesses were the formal witnesses and
their evidence have been discussed above.

(18) We would first like to deal with
the evidence of Nagesar Lonia (P.W. 1).
Since in paragraph 4, 5, 6 and 7, we have
set out the prosecution story primarily on
the basis of the recitals contained in his
examination-in-chief, for the sake of
brevity, the same is not reiterated. P.W.1
Nagesar Lonia deposed that his land/farm
is near the north of his village, in which
lentils and peas were sown. Prior to 7 1⁄2
months, at about 2.30 p.m., the goats of his
patidar Bade Lal were grazing and
damaging the crop of lentils and peas sown
in his aforesaid farm. The wife of accused
Kailash was herding the goats in his farm.
When his wife Ranjeeta Devi, who went to
look after the farm saw it, she forbade the
wife of Kailash to do so and began ousting
the goats. On this, a verbal altercation took
place between his wife Ranjeeta Devi and
5 All. Kailash Vs. The State of U.P.
281
wife of Kailash. On hearing the hue and
cry, he along with his father Devi Deen and
his elder brother Khushiram reached the
spot and began ousting the goats from the
farm. Meanwhile, accused Bade Lal,
Munna Lal, Sipahi Lal alias Nanhu
carrying lathi-danda in their hands and
accused Kailash carrying countrymade
pistol, reached his farm hurling abuses.
Thereafter, he, his father and his elder
brother got scared looking these four
persons and backed off. By the time,
accused Kailash opened fire with the
countrymade pistol held in his hand which
hit his elder brother Khushi Ram, disabled
with leg, who was just reaching the
chakroad to the west of the farm. Having
received the fireshot, he died on the spot
itself. Bade Lal, Munna Lal and Sipahi Lal
carrying lathis in their hands encircled and
inflicted injuries to him, his wife Ranjeeta
Devi and his father Devi Deen with
intention to kill. On their clamour, his
brother Naresh also known as Ramesh,
Shiv Bhagwan and even other villagers
arrived. When these persons forbade, all
the aforesaid accused persons went away
giving threats to kill us. Leaving the corpse
of his brother Khushiram on the spot under
the guard of villagers and family members,
he, his wife and his father came to the
police station through a hired jeep brought
by his uncle. He got scribed the written
report through Jugul Kishore Dwivedi in a
hut shop outside the police station.
Thereafter, he had scribed and read out the
same whatever had been narrated by him.
Then he marked his thumb impression on it
and along with the injured persons, took the
written report to the police station, handed
over it to the Head Constable and got the
case registered. The Head Constable saw
their injuries and sent them on the same
day with a constable to District Hospital
Fatehpur for treatment where their
medical examination had been conducted.
They returned home after their medical
examination had been conducted.

(19) P.W.1-Nagesar Lonia further in
his deposition has also stated that the police
officials had arrived at the spot in the night
of incident. As there was no arrangement of
light, they stayed there only. On the next
day, in the morning, the Inspector took his
statement at the place of occurrence,
conducted inspection of the place of
occurrence, prepared the Inquest Report in
respect of the corpse of Khushiram,
prepared other documents, sealed the
corpse and handed over the same to the
available constable for postmortem. The
Inquest Report has been read out and he put
thumb impression on that.

(20) P.W.2-Smt. Ranjeeta Devi has
supported the statement of P.W.1 Nagesar
Lonia and has stated that prior to 9 months
9-10 days, at about 2:30 p.m., in the
afternoon, wives of Badey Lal and Kailash
were grazing their goats of her field,
wherein Lentil and Pea were sowed. At that
time, she was washing utensils at the door
of her house. On seeing the goats grazing
her crops, she gone there and began ousting
the goats. On this, wives of Kailash and
Badey Lal, abused her. On hearing the hue
and cry, her husband (Nagesar Lonia), her
father-in-law (Devi Deen) and her elder
brother-in-law (Khushi Ram), who was
handicapped by leg, came to her in the field
and at the same time, all four accused
persons among whom Kailash carried adhi
(countrymade pistol) and other accused
persons Bade Lal, Munna Lal, Sipahi Lal
alias Nanhu carried lathi reached there
hurling abuses. The accused persons, with
intention to kill them, approached them.
282 INDIAN LAW REPORTS ALLAHABAD SERIES
Due to fear, they went back in the western
ridge of the field and when they reached at
the chak road, Kailash armed with adhi
(countrymade pistol) fired, which hit her
brother-in-law
Khushi
Ram
and
consequently died on spot. The other
accused persons assaulted her, her husband
(informant) and her father-in-law (P.W.3Devi Deen), for which injuries have been
sustained by them. On our clamour, her
brother-in-law Nagesar, Shiv Bhagwan and
other villagers arrived, thereupon all the
accused persons fled away. After the
incident, she, her husband (informant) and
her father-in-law went to police station and
her husband (informant) had lodged the
report.
Thereafter,
their
medical
examination was got conducted at the
Government
hospitals
by
the
police
officials.

(21) P.W.3-Devi Deen, who is father
of the informant P.W.1-Nagesar Lonia, in
his examination-in-chief, has deposed that
the incident was about 4 months ago at 22:30 P.M. At that time, wife of his son
Nagesar, namely, Ranjeeta Devi (P.W.2)
was washing utensils, whereas he, his son
Nagesar (P.W.1) and elder son Khushi Ram
(deceased) sat at the door. At the place of
farm land, wives of accused Badey Lal and
Kailash were grazing the goats and when
his daughter-in-law Ranjeeta gone to drive
the goats and told her that they grazed the
corps for which loss of paddy occurred, the
wives of accused Badey Lal and Kailash
abused her daughter-in-law. On hearing the
hue and cry, he, Nagesar and Khushi Ram
reached near Ranjeeta and at the same time,
accused persons Badey Lal, Munna Lal,
Sipahi Lal alias Nanh and Kailash came
there. All the accused persons are real
brothers. Kailash was armed with adha
(countrymade pistol), wheras Munna Lal,
Sipahi and Badey Lal was armed with lathi
danda. When the accused persons came,
they shouted "maro salo ko" (to kill them
bastard), then, they moved backward and
when Khusi Ram was at the boundary of
the field co-joint to chak road, Kailash fired
upon Khushi Ram by adha (countrymade
pistol). Thereafter, he, his son Nagesar and
his daughter-in-law went backward to the
chak road, where Badey Lal, Munna Lal
and Sipahi armed with lathi danda
assaulted him, his son Nagesar Lonia and
his daughter-in-law Ranjeeta, whereby they
sustained injuries. On account of fire,
Khushi Ram died on the spot. On hearing
hue and cry, his son Ramesh and Shiv
Bhagwan reached at the spot and they also
seen the incident. Thereafter, he, his son
Nagesar and his daughter-in-law Ranjeeta
went to police station on the guard of other
persons. His son Nagesar Lonia had lodged
the report at the police station, from where
they had been sent to hospital for medical
examination by the police.

(22) The evidence of P.W.4 Ram
Lakhan shows that the inspector and police
came at 9:00 a.m. on next date of the
incident and the deadbody of the deceased
Khushi Ram was lying in the field of Devi
Deen situate at the west side of land,
wherein large number of people was there.
The Inspector prepared inquest report and
panchayatnama and after scribing it to him,
he put thumb impresssion on it. Thereafter,
deadbody of Khushi Ram was sent to postmortam. The Inspector had also collected
blood staind earth from the place of
occurrence and kept in a container.

(23) The learned trial Judge believed
the evidence of Nagesar Lonia (P.W.1),
Smt. Ranjeeta Devi (P.W.2) and Devi Deen
(P.W. 3) and found the appellants guilty for
the offences punishable under Sections
302/34, 323/34 I.P.C. and, accordingly,
5 All. Kailash Vs. The State of U.P.
283
convicted and sentenced the appellants in
the manner stated in paragraph 1. He,
however, acquitted the appellants for the
offences punishable under Sections 307/34,
504, 506 and 426 I.P.C. Appellant-Kailash
was
also
acquitted
for
the
offence
punishable under Section 25 read with
Section 3 of the Arms Act.

(24) It is pertinent to mention that the
State of U.P. has not impugned acquittal of
the appellants under Sections 307/34, 504,
506 and 426 I.P.C. and appellant-Kailash
under Section 25 (3) of the Arms Act by
preferring an appeal under Section 378 (1)
of the Code of Criminal Procedure.

(25) As mentioned earlier, aggrieved
by their convictions and sentences Kailash
preferred Criminal Appeal No. 1989 of
2009 before this court and Badey Lal,
Munna Lal and Sipahi alias Nanh also
preferred another appeal i.e. Cri. Appeal
No. 1982 of 2009 and since these appeals
arise out of a common factual matrix and
impugned judgment, we are disposing them
of by common judgment.

(26) Heard Sri Shishir Pradhan,
learned counsel for the appellant of
Criminal Appeal No. 1989 of 2009 and Sri
Desh Ratan Mishra, learned Counsel for the
appellants of Criminal Appeal No. 1982 of
2009 and Ms. Nand Prabha Shukla, learned
AGA for the State.

(27) Sri Shishir Pradhan, learned
Counsel for the appellant of Criminal
Appeal No. 1989 of 2009 has submitted
that appellant-Kailash is in jail since
14.12.2006 i.e. since 14 years and three
months. He submits that it is a case of
sudden and grave provocation. The incident
is the result of the sudden quarrel between
the wife of the informant and the wife
of appellant-Badey Lal on account of
grazing of crop by the goats. According to
the prosecution case, on hearing the
altercation, all the accused who are real
brothers from one side and the informant,
his brother and father on the other side,
came on the spot and altercation ensued
between them. The intention of the
appellant-Kailash was to create pressure
upon opposite side. It has been argued that
P.W.1, informant, had stated that he never
ran away when he saw appellant-Kailash
armed with Katta (countrymade pistol).
This shows that the appellant-Kailash had
no intention to kill but when appellantKailash was returning from place of
occurrence, then, he open single fire in a
heat of passion. Therefore, it is a case
under Section 304 Part-II I.P.C. and not
under Section 302 I.P.C.

(28) Elaborating his submission, Mr.
Pradhan has submitted that in the F.I.R.,
appellant-Kailash has a role of single fire
by Katta. As per post-mortem report, there
is single fire arm injury to the deceased.
This shows that there is no repetition of fire
by Katta (countrymade pistol), hence the
case would not travel beyond offence under
Section 304 Part-II I.P.C. It has been
further argued that appellant-Kailash was
acquitted under Section 3/25 of the Arms
Act by the trial Court as there was no
independent witness to prove the recovery
of countrymade pistol and the cartridges
from him.

(29) Mr. Pradhan has relied upon the
case of Vineet Kumar Chauhan Vs. State
of U.P. : AIR 2008 S.C. 780 and Sadhu
Singh Harnam Singh Vs. The State of
Pepsu : AIR 1954 SC 271 has submitted
that in a single fire case, conviction under
284 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 302 I.P.C. is converted into under
Section 304 Part-II I.P.C. and the sentence
be reduced to already undergone as the
appellant has already served more than 14
years, which would meet the ends of
justice.

(30) Shri Desh Ratan Mishra, learned
Counsel for the appellants of Criminal
Appeal No. 1982 of 2009 has contended
that the present incident arose at the spur of
moment as the goats were grazing in the
field claim by both the parties and the
ladies of both the side entered into quarrel
resulting the altercation of the accused
persons and informant party. Appellants are
said to have assaulted injured persons only
with Lathi and Danda as a result of which
they have received simple injuries. It has
been argued that the deceased Khushi Ram
has received only one injury in the nature
of fire arm wound, which resulted in his
death
and
about
whom
coaccused/appellant Kailsh was assigned the
role of firing of single shot at the deceased.
There is no allegation that Badey Lal,
Munna Lal and Sipahi alias Nanh has
exhorted to Kailash to fire at the deceased.
He submits that on account of altercation
between the parties, co-accused Kailash has
fired firstly at the deceased and the
appellants, Badey Lal, Munna Lal and
Sipahi alias Nanh, who were armed with
Lathi and Danda, have assulted the injured
persons, who have received simple injury
and they did not have any common
intention to murder the deceased, who was
shot dead by co-accused Kailash, hence
their conviction under Section 302/34
I.P.C. by the trial Court is against the
evidence on record and be set-aside.

(31) To strengthen his submission, Sri
Mishra learned counsel for the appellants
has relied upon the judgment of the Apex
Court in the case of Dharam Pal and
others Vs. State of U.P. : 1997 SCC (crl.)
1203 and Pundalik Mahadu Bhane and
others Vs. State of Maharashtra : 1998
SCC (Cri) 202, respectively.

(32) Per contra, learned AGA, while
supporting the impugned jumdgment, has
vehmently argued that the trial Court, after
relying upon version of the eye-witnesses,
namely, P.W.1 Nagesar Lonia, Ranjeeta
Devi (P.W.2) and Devi Deen (P.W.3), has
rightly held guilty to the appellants for the
offences punishable under Sections 302/34
and 323/34 I.P.C. It has been argued that
under the penal code, a person is
responsible for his own act. A person can
also be vicariously responsible for the acts
of others if he had a common intention to
commit the acts or if the offence is
committed by any member of the unlawful
assembly in prosecution of the common
object of that assembly, then also he can be
vicarioulsy responsible. The doctor, who
opined that injuries sustained by the
injured, may be caused by a blunt object,
like lathi, danda and butt of the katta. As
per the prosecution case, the appellants,
with
common
intention,
chased
the
informant, his wife, his elder brother
(deceased) and his father and after that
appellant-Kailash
fired
a
shot
with
countrymade
pistol
and
thereafter,
appellants injured the informant, his wife
and his father by lathi, danda and butt of
the countrymade pistol. Therefore, the trial
Court has rightly punished the appellants
under Section 302/34 and 323/34 of the
Indian Penal Code. There is no illegality or
infirmity in the impugned order.

(33) To stregthen her submission,
learned AGA has placed reliance upon
Balvir Singh Vs State of M.P. : 2019
(199) AIC 242 (S.C.), Virendra Singh Vs.
5 All. Kailash Vs. The State of U.P.
285
State of Madhya Pradesh : (2010) 8 SCC
407.

(34) We have examined the rival
contentions advanced by the learned
Counsel for the parties along with the
impugned judgment and order passed by
the trial Court and also perused the lower
Court record.

(35) It transpires from the prosecution
case that against four accused persons,
namely, Badey Lal, Munna Lal, Sipahi
alias Nanh, Kailash, a First Information
Report was lodged by P.W.1-Nagesar
Lonia for murder of his brother Khushi
Ram (deceased) and injuries sustained by
him (P.W.1-Nagesar Lonia), his wife Smt.
Ranjeeta Devi (P.W.2) and his father Devi
Deen (P.W.3) by the aforesaid accused
persons.

(36) It is the specific case of the
prosecution that deceased Khushi Ram was
done
to
death
by
accused-appellant
Kailash, who fired upon him with a
countrymade pistol, which he carried at the
time of incident. The injured witnesses,
namely,
P.W.1-Nagesar
Lonia,
Smt.
Ranjeeta Devi (P.W.2) and Devi Deen
(P.W.3) have categorically deposed that
accused-appeallants, namely, Badey Lal,
Munna Lal and Sipahi alias Nanh had
assaulted by lathis and injured them.

(37) From perusal of the post-mortem
of deceased Khushi Ram, it is apparent that
he received one single injury on his person,
which was a fire shot and the same has
been attributed to the accused-appellant
Kailash. The other three accused-appellants
Badey Lal, Munna Lal and Sipahi alias
Nanh had assaulted the injured with Lathis
and Dandas. The deceased Khushi Ram did
not receive any injury of blunt object
except fire arm injury. The injured
witnesses P.W.1-Nagesar Lonia, P.W.2Smt. Ranjeeta Devi and P.W.3-Devi Deen
had received injuries of blunt object, which
were caused by accused-appellants Badey
Lal, Munna Lal and Sipahi alias Nanh with
Lathis and Dandas but the injuries were
found to be simple in nature.

(38) Sri Desh Ratan Mishra, learned
Counsel for the appellants has contended
that conviction of appellants Badey Lal,
Munna Lal and Sipahi alias Nanh under
Section 302/34 I.P.C. for committing
murder of deceased Khushi Ram and
sentenced them for life by the trial Court
for the said offence is contrary to the
evidence on record.

(39) On examining the aforesaid
argument of Mr. Mishra, learned Counsel
for the appellants, it is apparent that though
the incident had taken place for grazing by
goats of accused-appellant Badey Lal in the
field of the informant Nagesar Lonia,
which was objected by the wife of the
informant, namely, Smt. Ranjeeta Devi
(P.W.2),
who,
on
seeing
the
goats
distructing her crops, went to oust the goats
from her field, on which wife of the
appellant Badey Lal started altercation. On
hearing the hue and cry, injured P.W.1Nagesar Lonia and P.W.3-Devi Deen and
deceased Khushi Ram reached there and at
the same time, accused-appellant Kailash
armed
with
countrymade
pistol
and
accused-appellants Badey Lal, Munna Lal
and Sipahi alias Nanh armed with lathies
and dandas arrived at the place of
occurrence.
On
seeing
the
accused
appellants,
informant
P.W.1-Nagesar
Lonia, his wife P.W.2 Smt. Ranjeeta Devi,
his father P.W.3 Devi Deen and his brother
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Khushi Ram (deceased), who was a
handicap by one leg, got scared and had
moved backward and when Khushi Ram
was at the boundary of the field co-joint to
chak road, the accused-appellant Kailash,
who was carrying countrymade pistol, fired
shot to brother of informant, Khushi Ram,
as a consequence thereof, the brother of
informant Khushi Ram sustained fire arm
injury, due to which he died on spot. This
shows that appellants Badey Lal, Munna
Lal and Sipahi Lal alias Nanh could not be
said to have any common intention to
commit the murder of the deceased Khushi
Ram
along
with
appellant
Kailash.
Appellants Badey Lal, Munna Lal and
Sipahi Lal alias Nanh also did not assualt
the deceased Khushi Ram with Lathies and
Dandas. Therefore, the conviction of
appellants Badey Lal, Munna Lal and
Sipahi Lal alias Nanh under Section 302/34
I.P.C. and sentenced them for life by the
trial Court cannot be sustained in the eyes
of law as at the most, appellants Badey Lal,
Munna Lal and Sipahi Lal alias Nanh are
responsible for their individual act and not
vicariously. Moreover, the prosecution has
also not brought any evidence on record to
show that appellants Badey Lal, Munna Lal
and Sipahi Lal alias Nanh had any prior
knowledge of the fact that deceased Khushi
Ram would be shot by the accusedappellant Kailash, who was also running
away from the place of occurrence because
of the fact that accused-appellants had
arrived
with
Lathis,
dandas
and
countrymade pistol.

(40) In the aforesaid backgrounds, Sri
Mishra learned Counsel for the appellants
had placed reliance upon the judgment of
the Apex Court in Dharam Pal and others
Vs. State of U.P. (supra) and argued that
the offence, if any, for which the appellants
could be convicted and setenced, is under
Section 323/34 I.P.C. as appellants Badey
Lal, Munna Lal and Sipahi alias Nanh have
only inflicted lathi and danda blows upon
the three injured persons, who sustained
simple injuries on their person and no
internal damage was caused to them, as at
the most, they may be said to have common
intention to cause simple hurt to the three
injured persons but certainly not any
common intention to kill the deceased, who
was shot dead by the accused/appellant
Kailash and the deceased died on the spot.
He has contended that in the case of
Dharam Pal and others Vs. State of U.P.
(supra), the Apex Court in a similar
situation had set-aside the conviction of the
accused under Section 302/34 I.P.C. and
convicted the one of the accused under
Section 325 I.P.C., who had caused lathi
injuries to one of the prosecution witnesses.

(41) The other case, which has been
relied by the learned Counsel for the
appellants of Criminal Appeal No. 1982 of
2009, is the judgment of the Apex Court
rendered in the case of Pundalik Mahadu
Bhane
and
others
Vs.
State
of
Maharashtra (Supra) and in support of his
contention, he has pointed out that the
Apex Court had observed that in case of
sudden and free fight between two groups,
each of the persons involved therein would
be liable for his individual act and not
vicariously. In the said case, the accused
assaulted the deceased with sticks resulting
in grivous injuries on his person, the Apex
Court has observed that the accused are
liable to be convicted under Section 325
I.P.C. and not under Section 302/34 I.P.C.

(42) Taking into consideration the law
laid down by the Apex Court, as has been
referred to above and examining the
evidence of P.W.1-Nagesar Lonia, P.W.2
Smt. Ranjeeta Devi and P.W.3-Devi Deen,
5 All. Kailash Vs. The State of U.P.
287
we are of the considered view that
conviction of the appellants Badey Lal,
Munna Lal and Sipahi Lal alias Nanh under
Sections 302/34 I.P.C.