# Kailashi & Anr. (In Jail) v. The State of U.P

- **Citation:** (2021) 9 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-03
- **Case number:** Criminal Appeal No. 183 of 1986
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailashi-anr-in-jail-v-the-state-of-u-p-47380
- **Pages:** 6

## Headnote

A. Criminal Law - Indian Penal Code, 1860
- Sections 304(2) & 34 - Culpable
Homicide - Prompt FIR - Presence of eyewitnesses was found natural - Evidence of
witnesses of fact was fully corroborated
by medical evidence - As per prosecution
evidence, appellants gave blow to the
deceased in his chest, stomach and pelvis
(pedu) and if injuries are inflicted to any
person at chest, stomach and pelvis, it is
very much possible that liver and spleen
will sustain injuries - Sentence of three
years rigorous imprisonment ordered -
Validity challenged - Held, the injuries
sustained by deceased were sufficient to
cause his death - Learned trial court
appreciated the evidence on record in
right perspective and rightly convicted the
appellants. (Para 12, 13, 14 and 16)
B. Criminal Law - Offence under Sections
304 (2) & 34 - Partisan witness -
Reliability - Admittedly witnesses are
niece, wife and son of deceased - Held,
128 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of partisan witnesses cannot be
discarded on this count alone - There is no
hard and fast rule that the evidence of a
partisan witness cannot be acted upon
without corroboration, if his presence at
the scene of the occurrence cannot be
doubted and his evidence is consistent
with the surrounding circumstances and
the probability of the case striking the
court as true, it can be good foundation
for conviction. (Para 11)
C. Criminal Law - Indian Penal Code,1860
- Section 34 - Common intention - Scope
- It is not necessary that common
intention should always be premeditated.
It can take place on the spot also. (Para
14)
Appeal dismissed. (E-1)
Cases relied on :-

## Text

9 All. Kailashi & Anr. Vs. The State of U.P.
127
Rs.5,000/- and also fired a shot in the air,
he further threatened the complainant to
pay Rs.5,000/- by the next day otherwise he
will be shot or any member of his family
will be killed. So, it cannot be said that
there was no overact during the act of
extortion.

8. The defence taken by the accused
in his statement under Section 313 Cr.P.C.
that he has been falsely implicated at the
instance of hotel owners Iddu and Kailash
who are inimical to the accused does not
get any support from material on record.
The charge under Section 387 I.P.C. stand
proved against the accused.

9. The learned trial Court has fully
discussed
and
appreciated
the
entire
evidence. The findings recorded by the
learned trial Court is well reasoned. There
is no infirmity or perversity in the findings
recorded by the learned trial Court in
holding the accused guilty under Section
387 I.P.C. and there is no reason to
disagree with the aforesaid findings. So, the
judgment and order of conviction is just
and proper.

10. The learned trial Court has
sentenced the accused for 03 years rigorous
imprisonment
only
while
punishment
prescribed for offence under Section 387
I.P.C.
is
imprisonment
and
fine.
Considering the nature of the offence and
attending
facts
and
circumstances,
imposition
of
02
years
rigorous
imprisonment and fine of Rs.10,000/- will
be just. In default of payment of fine
accused will serve six month simple
imprisonment.
Sentence
is
modified
accordingly.

11. The appeal is partly allowed in
the aforesaid terms.

12. Lower court record along with
copy of the judgment be transmitted
immediately to the trial Court.
----------
(2021)09ILR A127
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 183 of 1986

Kailashi & Anr. ...Appellants (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Pt. Mohan Chand, Sri Satya Prakash
Tiwari

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

A. Criminal Law - Indian Penal Code, 1860
- Sections 304(2) & 34 - Culpable
Homicide - Prompt FIR - Presence of eyewitnesses was found natural - Evidence of
witnesses of fact was fully corroborated
by medical evidence - As per prosecution
evidence, appellants gave blow to the
deceased in his chest, stomach and pelvis
(pedu) and if injuries are inflicted to any
person at chest, stomach and pelvis, it is
very much possible that liver and spleen
will sustain injuries - Sentence of three
years rigorous imprisonment ordered -
Validity challenged - Held, the injuries
sustained by deceased were sufficient to
cause his death - Learned trial court
appreciated the evidence on record in
right perspective and rightly convicted the
appellants. (Para 12, 13, 14 and 16)
B. Criminal Law - Offence under Sections
304 (2) & 34 - Partisan witness -
Reliability - Admittedly witnesses are
niece, wife and son of deceased - Held,
128 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of partisan witnesses cannot be
discarded on this count alone - There is no
hard and fast rule that the evidence of a
partisan witness cannot be acted upon
without corroboration, if his presence at
the scene of the occurrence cannot be
doubted and his evidence is consistent
with the surrounding circumstances and
the probability of the case striking the
court as true, it can be good foundation
for conviction. (Para 11)
C. Criminal Law - Indian Penal Code,1860
- Section 34 - Common intention - Scope
- It is not necessary that common
intention should always be premeditated.
It can take place on the spot also. (Para
14)
Appeal dismissed. (E-1)
Cases relied on :-
1. Prithi Vs St. of Har., 1994 Supp. (1) SCC 498
2. Dayaneshwar Dagdoba Hivrekar Vs St. of
Mah.; 1982 (0) CrLJ 1870
3. Tameshwar Sahi & ors. Vs St. of UP; 1976
ACC 36 SC,
(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred
against the judgment and order dated
6.1.1986, passed by 3rd Additional Sessions
Judge, Agra, in Sessions Trial No.53 of 1985
arising out of Case Crime No.66 of 1984
under Section 304 IPC, Police Station Etmadud-daula,
District-Agra,
whereby
the
appellants, namely, Kailashi and Ramesh
were convicted and sentenced under Section
304 (2) IPC read with Section 34 IPC for
three years rigorous imprisonment.

2. The brief facts for disposal of this
appeal are that informant-Radhey Shyam
lodged a report at Police Station Etmad-uldaula, Agra on 22.2.1984 stating that at about
4:00 p.m., he was going from his house to his
field at Ram Nagar, when he was passing
through the street near his house, one
Kailashi and Ramesh R/o Ram Nagar were
coming from the side of their shop. When
they reached near the informant, Kailashi
struck his shoulder to him. At this, the
informant said that they should walk
carefully and Kailashi and Ramesh started
abusing and beating the informant. On
hearing the noise and shouting of the
informant, his father Ram Dayal reached the
spot and tried to intervene. At this, Kailashi
and Ramesh left the informant and dashed
Ram Dayal-father of informant to the ground
and started beating him with fists, kicks and
bricks. Kailashi told Ramesh that today they
will settle the score with him. Informant's
mother-Smt.Premwati,
grand
motherSmt.Govindi, sisters-Usha and Mithalesh and
the neighbours-Soonsa Ram and Rajendra
arrived at the place of occurrence. They saw
the occurrence and saved Ram Dayal from
Kailashi and Ramesh. When they were going
to the doctor, Radhey Shyam succumbed to
the injuries, which he had sustained in his
abdomen and chest. While keeping the deadbody at house, the informant reached the
police station and lodged the report. On the
basis of written-report, Case Crime No.66 of
1984 under Section 304 IPC was registered.
After investigation, Investigating Officer
submitted charge-sheet against the appellants
under Section 304 IPC. Learned trial court
framed charge against both the appellants
under Section 304 IPC read with Section 34
IPC and after trial, convicted and sentenced
both the appellants for the charges levelled
against them for three years rigorous
imprisonment. Aggrieved with the judgment
and order, this appeal has been preferred by
the appellants.

3. Heard Shri Satya Prakash Tiwari,
learned counsel for the appellants, Shri S.S.
Sachan, learned AGA appearing on behalf
of State and perused the record.
9 All. Kailashi & Anr. Vs. The State of U.P.
129

4. Learned counsel for the appellants
has submitted that prosecution case is that
on the day of occurrence, appellants started
beating informant-Radhey Shyam on very
little cause, i.e., striking the shoulder with
the informant. When informant's father
Ram Dayal came to his rescue, appellants
started beating Ram Dayal with fists, kicks
and bricks. Ram Dayal sustained injuries in
his abdomen and chest due to which he
died.

5. Shri Tiwari, learned counsel for the
appellants argued that postmortem report of
deceased-Ram Dayal shows that there was
no external injuries on the body of Ram
Dayal. In postmortem report, there was no
ante-mortem external injury. If, there was
use of bricks, external injury was must.
There was no external injury on the body of
Ram Dayal, hence prosecution story
falsifies the incident that brick was used in
beating Ram Dayal. It creates heavy doubt
on the prosecution story.

6. Learned counsel for the appellants
argued that three so called eye-witness
were
produced
to
prove
this
case.
Mithalesh (PW3) is the niece of deceased,
Premwati (PW4) is wife of the deceased
and Radhey Shyam-informant (PW5) is the
son of the deceased. Hence, all the three
witnesses are related to the deceased and
they are partisan witnesses. Learned
counsel submitted that as per prosecution
story, Soonsa Ram and Rajendra, who were
neighbor, also came at the place of
occurrence, but they were not produced by
prosecution
in
evidence,
who
were
independent witnesses. Hence, no reliance
could be placed on the testimony of related
and interested witnesses. Moreover, there
was no injury, even a scratch, to the
informant-Radhey Shyam and to any other
family member of the deceased, who
gathered at the place of occurrence. It also
shows that witnesses and other family
members of the deceased were not present
on the spot. They are eye-witnesses and
reached the spot afterwards. It is stated by
all prosecution witnesses that appellants
started beating Radhey Shyam first and
when
deceased
came
to
intervene,
appellants started beating his father. If it
was so, there should have been some
injuries to informant Radhey Shyam also,
but there is no medical evidence on record
to show that Radhey Shyam sustained any
injury. Hence, nobody saw the occurrence
and appellants were falsely implicated in
the present case.

7. Learned counsel for the appellants
also argued that appellants had no motive
to beat either Radhey Shyam or his father;
there was no previous enmity between the
parties. He submits that learned trial court
has believed that appellants gave beating to
Ram Dayal in such a manner that he died
by sustaining fatal injuries, but from entire
prosecution case, it is well established that
appellant had no intention and they had no
knowledge that deceased could die. Even,
appellants were not having any sort of
weapon with them nor any weapon was
used by them. Manner of assault also does
not indicate that they had any intention to
kill the deceased-Ram Dayal.

8. Submission of counsel for the
appellants is that if Court reaches on
conclusion that appellants are guilty then
their offence reaches maximum to Section
323 IPC. In support of this argument, he
has placed reliance on the judgment in the
case of Prithi vs. State of Haryana [1994
Supp. (1) SCC 498] and Dayaneshwar
Dagdoba
Hivrekar
vs.
State
of
Maharashtra [1982 (0) CrLJ 1870] and
argued that charge under Section 304 (2)
130 INDIAN LAW REPORTS ALLAHABAD SERIES
could not be framed along with Section 34
IPC as there was no common intention of
appellants to commit the alleged offence.
As per prosecution story, they were coming
from their shop and there was scuffle
between them and informant on striking the
shoulder of each other. So, there was no
prior meeting of minds of appellants,
therefore, common intention could not be
gathered. Learned trial court adopted
wrong approach for taking the recourse of
Section 34 IPC by convicting the appellants
otherwise there was no such evidence on
record as to who caused fatal injury to the
deceased.

9. Lastly, it was submitted by counsel
for the appellants that it is a case of 1984,
when appellants were at the age of about
23-25 years and now they are about 60-65
years old. If Court reaches the conclusion
of their guilt, their sentence may be
modified as undergone.

10. Learned AGA appearing on behalf
of State opposed the arguments advanced
by counsel for the appellants and submitted
that there are three eye-witnesses in this
case, who saw the occurrence. He argued
that although PWs.3, 4 & 5 are related to
the deceased, but their presence at the place
of occurrence was very much natural
because the occurrence took place very
near to the informant's house. Hence,
family members immediately reached the
spot after hearing hue and cry of informant
and his father. He next argued that
evidence
of
eye-witnesses
is
fully
corroborated by medical evidence also.
Dr.U.C.Vaishya (PW1), who conducted
postmortem on the body of deceased-Ram
Dayal, he has stated in his evidence that
lever and spleen of the deceased were
found ruptured and deceased died due to
the injuries sustained by him, which were
sufficient to cause death. Lastly, it is
argued that both the appellants attacked at
the time of occurrence to settle the score
with the deceased, therefore, they had
common intention to beat the deceased and
due to which, the deceased sustained fatal
injuries. Hence, prosecution case is fully
proved and learned trial court rightly
convicted the appellants.

11. Learned counsel for the appellants
firstly assailed the conviction of appellants
on the basis of eye-witnesses (PW3, PW4
and PW5) being related to the deceased,
therefore, they are partisan witnesses. It is
admitted fact that Mithalesh (PW3) is the
niece of the deceased and Premwati (PW4)
is the wife of the deceased and PW5 is the
son of the deceased, but the settled law is
that testimony of partisan witnesses cannot
be discarded on this count alone. In
Tameshwar Sahi and others vs. State of
UP [1976 ACC 36 (SC)], it is held by
Hon'ble Apex Court that there is no hard
and fast rule that the evidence of a partisan
witness cannot be acted upon without
corroboration, if his presence at the scene
of the occurrence cannot be doubted and
his
evidence
is
consistent
with
the
surrounding
circumstances
and
the
probability of the case striking the court as
true, it can be good foundation for
conviction. More so, if some assurance is
available from the medical evidence.

12. If the evidence of PWs.3, 4 & 5 is
examined in the light of above observations
of Hon'ble Apex Court, it can be
undoubtedly believed that the presence of
above eye-witnesses is natural at the place
of occurrence as Mithalesh (PW3) was the
child of just 11 years old at the time of
deposing before the learned trial court. She
has categorically stated in her statement
that at the time of occurrence, she was
9 All. Kailashi & Anr. Vs. The State of U.P.
131
playing near the place of occurrence.
Radhey Shyam (PW5) is the son of the
deceased. It is the prosecution version that
appellants started quarreling and beating
Radhey Shyam first and they started
beating deceased-Ram Dayal when he
came to the spot to intervene and save his
son Radhey Shyam. So the presence of
Radhey Shyam at the place of occurrence
cannot be doubted. Premwati (PW4) wife
of the deceased could also be present on the
spot because occurrence was in the street
near the house of the deceased. So the
presence of PWs.3, 4 & 5 was natural on
the spot and it cannot be doubted. Hence,
their evidence cannot be discarded on this
count alone that they are partisan witnesses
rather it is important for the Court to
scrutinize their evidence very carefully.
Perusal of the impugned judgment shows
that the learned trial court has very
carefully and meticulously scrutinized the
testimony of PWs.3, 4 and 5 on every
count. There was no material contradiction
in their statements. Trial court appreciated
their evidence in right perspective.

13. It is very important to note that in
this case, first information report was very
prompt. Occurrence took place at 4:00 p.m.
on 22.2.1984 and on the same day, FIR was
lodged at 5:30 p.m., i.e., just after one and
half hour of the occurrence. So, in such a
short time, there was no occasion for any
false implication of the appellants. It is also
not the case that appellants and deceased
were having previous enmity.

14. The evidence of witnesses of fact
was
fully
corroborated
by
medical
evidence. Dr.U.C.Vaishya (PW1), who
conducted the postmortem, has deposed
that lever and spleen of the deceased were
ruptured and it is said by him that the
internal injuries sustained by deceased
could be the result of beating as stated by
prosecution and it was not necessary that
external injuries should have been there.
The doctor has given opinion that injuries
sustained by the deceased were sufficient to
cause his death. He has specifically denied
the suggestions put before him by the
defence that above injuries could be result
of falling of the deceased or striking with
any object. It is also stated by the doctor in
his statement that spleen cannot be ruptured
due to disease and if spleen is enlarged, it
can rupture by inflicting simple injury.
Hence, as per medical evidence, the
injuries
sustained
by
deceased
were
sufficient to cause his death. It is also
important to note that as per prosecution
evidence, appellants gave blow to the
deceased in his chest, stomach and pelvis
(pedu) and if injuries are inflicted to any
person at chest, stomach and pelvis, it is
very much possible that lever and spleen
will sustain injuries. So, the manner of
assault by the appellants matches with the
injuries sustained by the deceased. Since
the testimony of PWs.3, 4 & 5 is
corroborated
by
medical
evidence,
therefore, their testimonies carried more
weight and learned trial court has rightly
believed their testimonies. It is submitted
by counsel for the appellants that the
offence of appellants does not travel
beyond the offence under Section 323 IPC
for which he has placed reliance on Pirthi
(supra)
and
Dayaneshwar
Dagdoba
Hiverkar (supra). In the case of Pirthi
(supra), the deceased died after two days of
incident and cause of death was Toxaemia
due to Gangrene, which developed because
of lack of immediate medical help, but this
was not the case here. In this case,
deceased Ram Dayal succumbed to the
injuries while taking to the hospital. The
facts of Dayaneshwar Dagdoba Hiverkar
(supra) were also differ from this case
132 INDIAN LAW REPORTS ALLAHABAD SERIES
because in that case deceased was beaten
by using the stick. It was held that stick
could not be held the weapon from which
knowledge can be attributed that the blow
by such stick could cause death. In this
case, there were repeated blows by the
appellants on chest, stomach and pedu of
the deceased for which deceased had
knowledge that such type of blows could
cause fatal injury in the internal organs of
the deceased. Therefore, both the above
cases did not apply in this case due to
different set of facts. As far as common
intention is concerned, it is not necessary
that it should always be premeditated. It
can take place on the spot also. It is very
much on record that when the quarrel
started by striking the shoulders of
appellants and informant-Radhey Shyam
and on protest by informant, appellants
started slapping him and after that when
deceased reached the spot, appellants left
informant and started beating deceasedRam Dayal. Hence, it cannot be believed
that quarrel took place all of sudden.
Appellants intentionally started beating the
deceased, therefore, it is very much clear
that they were having common intention to
beat the deceased and they repeatedly gave
blows to him. Hence, learned trial court has
rightly convicted the appellants with the aid
of Section 34 IPC.

15. Learned counsel for the appellants
has also submitted that in case Court comes
to the conclusion that appellants are guilty
then keeping in view their age to be nearly
60-62 years, their sentence can be modified
as undergone. But, in my opinion, this case
is not a case where appellants can be set
free as undergone. Learned trial court has
sentenced the appellants only for three
years under Section 304(2) read with
Section 34 IPC. The sentence awarded by
the learned trial court, in my considered
opinion, is not very harsh keeping in view
the offence of the appellants.

16. In view of the discussion as
above, this Court is of definite view that
learned trial court appreciated the evidence
on record in right perspective and rightly
convicted the appellants under Section 304
(2) read with Section 34 IPC. The appeal
has no force and is liable to be dismissed.

17. The appeal is, accordingly,
dismissed. Appellants are reported to be on
bail, their bail bonds stand cancelled and
sureties are discharged. Appellants are
directed to surrender before the courtbelow forthwith to serve the remaining
sentence.

18. Let a copy of this judgment be
sent to concerned court for ensuring
compliance.
----------
(2021)09ILR A132
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.09.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 254 of 1999

Subrati ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
V.N.
Shukla,
Abhishek
Misra,
Shishir
Pradhan

Counsel for the Respondent:
-----

A. Criminal law - Indian Penal Code,1860
- Section 364 - Kidnapping in order to