# Kaptan & Ors. Revisionists v. State of U.P

- **Citation:** (2023) 10 ILRA 994
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-26
- **Case number:** J. Criminal Revision No. 1240 of 1989
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaptan-ors-revisionists-v-state-of-u-p-49401
- **Pages:** 11

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 324, 326 & 34 - Criminal
Procedure Code, 1973 - Section 313 -
Probation of Offenders Act, 1958 - Section
4 - Grievous Hurt - Conviction Modification
- Probation Criminal Revision No. 1240 of 1989
challenging the judgment dated 25.07.1989 by
IV-Additional Sessions Judge, Pilibhit, partly
affirming the conviction and sentencing dated
04.02.1988 by Chief Judicial Magistrate, Pilibhit,
in Criminal Case No. 2408 of 1984 under
Sections 323, 324, 326, and 34 IPC. The case
arose from an incident on 27.08.1984 where
revisionists, objecting to a window infringing
their privacy, assaulted Lala Ram and his family,
causing injuries, including an incised wound to
Lala Ram's face. The trial court convicted all
accused under Sections 323, 324, 326, and 34
IPC; the appellate court acquitted them of
Section 324 and 324/34 but upheld convictions
under Sections 323, 323/34, 326, and 326/34
IPC, modifying sentences. The High Court found
injury no. 3 to Lala Ram (incised wound, 14cm x
1cm) not grievous under Section 320 IPC, as no
permanent disfiguration was proven, converting
the conviction from Section 326/34 to Section
324/34 IPC. Considering the 39-year lapse, the
senior citizen status of surviving revisionists
(Ram Din, Ram Ratan, Ram Bir), and no
prior/post-criminal
antecedents,
the
court
released them on two-year probation under
Section 4 of the Probation of Offenders Act,
requiring personal bonds and sureties of Rs.
50,000 each. Conviction under Section 323/34
IPC was affirmed.

Revision partly allowed.

Case Law Cited:

## Text

994 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons under Sections 302, 148,
149 and 201 I.P.C. cannot be sustained and
is, therefore, set aside. All the accusedappellants are held not guilty of the charges
levelled against them. The surviving
accused-appellants i.e., accused-appellant
nos.3, 5, 6, 8, 9 and 10 need not to
surrender. Their bail bonds are discharged.
The present criminal appeal is allowed in
respect of accused-appellant nos.3, 5, 6, 8,
9 and 10.

32. Let a copy of this judgement be
send to the learned Trial Court.

33. Trial Court record be also
returned forthwith.

----------
(2023) 10 ILRA 994
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Revision No. 1240 of 1989

Kaptan & Ors. ...Revisionists
Versus
State of U.P. ...Respondent

Counsel for the Revisionists:
Sri Tej Pal, Sri Amrendu Pal, Sri Rahul
Saxena, Sri S.P. Singh, Sri V.K. Rastogi

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 324, 326 & 34 - Criminal
Procedure Code, 1973 - Section 313 -
Probation of Offenders Act, 1958 - Section
4 - Grievous Hurt - Conviction Modification
- Probation Criminal Revision No. 1240 of 1989
challenging the judgment dated 25.07.1989 by
IV-Additional Sessions Judge, Pilibhit, partly
affirming the conviction and sentencing dated
04.02.1988 by Chief Judicial Magistrate, Pilibhit,
in Criminal Case No. 2408 of 1984 under
Sections 323, 324, 326, and 34 IPC. The case
arose from an incident on 27.08.1984 where
revisionists, objecting to a window infringing
their privacy, assaulted Lala Ram and his family,
causing injuries, including an incised wound to
Lala Ram's face. The trial court convicted all
accused under Sections 323, 324, 326, and 34
IPC; the appellate court acquitted them of
Section 324 and 324/34 but upheld convictions
under Sections 323, 323/34, 326, and 326/34
IPC, modifying sentences. The High Court found
injury no. 3 to Lala Ram (incised wound, 14cm x
1cm) not grievous under Section 320 IPC, as no
permanent disfiguration was proven, converting
the conviction from Section 326/34 to Section
324/34 IPC. Considering the 39-year lapse, the
senior citizen status of surviving revisionists
(Ram Din, Ram Ratan, Ram Bir), and no
prior/post-criminal
antecedents,
the
court
released them on two-year probation under
Section 4 of the Probation of Offenders Act,
requiring personal bonds and sureties of Rs.
50,000 each. Conviction under Section 323/34
IPC was affirmed.

Revision partly allowed.

Case Law Cited:

1. Laxmi Singh Vs St. of Bihar, 1976 CrLJ SC
1736 (Para 3)

2. Awadhesh Vs St. of MP, 1988 CrLJ 1158 (SC)
(Para 5)

3. Hari Kishan Vs Sukhbir Singh, 1989 CrLJ 116
(SC) (Para 5)

4. Dharnidhar Vs St. of UP, (2010) 7 SCC 759
(Para 32)

5. Dalvir Kaur Vs St. of Pun., (1976) 4 SCC 158
(Para 32)

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)
10 All. Kaptan & Ors. Vs. State of U.P.
995

1. The present criminal revision has
been preferred by the revisionists against
the judgment and order dated 25.07.1989
passed by IV-Additional Sessions Judge,
Pilibhit in Criminal Appeal No.6 of 1988
(Kaptan and others Vs. State) and also
against
the
judgment
and
order
of
conviction
and
sentencing
dated
04.02.1988 passed by Chief Judicial
Magistrate, Pilibhit in Criminal Case
No.2408 of 1984 (State Vs. Kaptan and
others), Police Station Bisalpur, District
Pilibhit.

2. At this stage, it is mentioned that
revisionist no.1, Kaptan has died and this
criminal revision survives only in respect
of revisionist nos.2, 3 and 4 namely Ram
Din, Ram Ratan and Ram Bir.

3. The revisionists have taken ground
that the convict Kaptan had also received
injuries and the same are not explained
either in FIR or in the statement under
Section 161 CrPC. The origin of fight is not
clear. Thus, the defence version is to be
accepted in view of the judgment in Laxmi
Singh Vs. State of Bihar, 1976 CrLJ SC
1736.

4. The prosecution has examined PW1, Lala Ram; PW-2, Ram Sahay and PW-3,
Ram Kumar, the independent witnesses
have been withheld by the prosecution.
Hence, the adverse inference should be
drawn against the prosecution.

5. PW-3, Ram Kumar has stated that
the revisionist no.1, Kaptan was armed
with lathi and there is conflict between the
medical and the oral evidence. Hence,
accused are liable to be acquitted in view of
the judgment of Awadhesh and another
Vs. State of MP, 1988 CrLJ 1158 (SC).
The material evidence has not been put to
the accused which has resulted into
miscarriage of justice. The revisionists are
entitled for probation in view of the
judgment passed in Hari Kishan and
another Vs. Sukhbir Singh and others,
1989 CrLJ 116 (SC), since no offence is
made out against the revisionists, hence,
the revision be allowed and the order of
conviction be set aside.

6. In brief, facts of the case are that on
27.08.1984 at about 07:00 a.m. when Lala
Ram resident of Village Daulatpur Khera,
Police Station Bisalpur, District Pilibhit
was going from his house for school,
accused Kaptan with kanta, Ram Din, Ram
Bir and Ram Ratan with sticks met to him
and asked the informant that he would not
shut the window and started beating him.
Hearing the commotion, when his wife
Ramwati, daughter Jamyant Kumari and
his brother Ram Sahay came to rescue him,
they were also beaten by the accused
persons. After hearing the hue and cry, two
villagers namely, Ram Kumar and Jhankar
Singh also reached there and accused
persons ran away from there. According to
the informant, he had opened a window
about which accused persons had objection
that by this window privacy of their house
is infringed, he was asked to shut the
window, but the informant had refused to
do the same, therefore, accused persons had
enmity with him.

7. On the basis of above written
complaint (Ex.Ka-1), Chik FIR (Ex.Ka-10)
was registered and entered in General
Diary
(Ex.Ka-11).
The
injured
were
medically examined by Dr. S.S Sharma.

8. The medical examination of
Jamyant Kumari is Ex.Ka-2, according to
which, she had received injuries on her
person which are; (i) contusion of 15cm x
2.5cm on pesterolatral aspect of left hand
996 INDIAN LAW REPORTS ALLAHABAD SERIES
starting 5cm below elbow and running
vertically; (ii) penetrating incised wound of
0.5cm x 0.5cm x fascia deep on posterior
aspect of left forearm 1.5cm superior to
wrist joint, all the injuries were fresh and
simple, injury no.(i) was caused by blunt
object and injury no.2 by (broken glass
bangle) sharp edged penetrating object.

9. Smt. Ramwati had received
contusion injury 7cm x 2cm on the right
scapular.

10. Injured Lala Ram had also
received five injuries which are;

(i) Lacerated wound of 3cm x
0.5cm x scalp deep in centre of head 9.5cm
superior to bridge of nose. Margins of
the wound are lacerated and contused,
clotted blood present, which when
removed fresh bleeding seen.

(ii) Lacerated wound of 3cm
x 0.5cm fascia deep on left side of
face 2cm in front of ear. Margins are
lacerated and contused, clotted blood
present, on cleaning fresh bleeding
seen.

(iii) Incised would of 14cm x
1cm x bone deep on left side of face.
Wound 2cm superior to middle and
4.5cm lateral to angle of mouth and
runs in arch shape and ends above
upper lip 1cm below to right nostril of
nose as shown in diagram. Flap of
(lower flap) is of 7cm width, margins
of the wounds are incised and clean
cut, 1st molar tooth is absent and
tooth bed is lacerated. Clotted blood
present, on cleaning fresh bleeding seen,
traumatic swelling is present on upper lip
and left side of face with tenderness.

(iv) Contusion of 17cm x 2cm is
present on right scapular area of back ring
vertically.

(v) Abraded contusion of 2cm x
1cm on superior part of left shoulder.

11. According to the doctor, all the
injuries are fresh, injury no.3 is caused by
sharp edged weapon and was grievous, all
other injuries are caused by blunt object
and were simple in nature.

12. PW-2, Ram Sahay had received
one injury of contusion 10cm x 2cm on
lateral aspect of right arm 4cm superior to
elbow joint. Traumatic swelling with
tenderness is present in area of 12cm x
5cm. The patient also complained pain in
right scapular area. According to the
doctor, all the injuries were simple and
were caused by blunt object.

13. The injury reports of Smt.
Jamyant Kumari, Smt. Ramwati, Lala Ram
and Ram Sahay were proved by the
concerned witnesses as Ex.Ka-2 to Ex.Ka-5
respectively.

14. Investigating Officer (IO) visited
the spot and prepared the spot map (Ex.Ka12) and after completion of charge-sheet,
all the accused persons were charged under
Sections 323, 324, 326 IPC, accused
persons denied the charge.

15. During the course of trial,
witnesses PW-1, Lala Ram; PW-2, Ram
Sahay; PW-3, Ram Kumar; PW-4, Dharam
Bir Saxena and PW-5, Jawala Prasad
Sharma were examined.

16.

After
conclusion
of
the
prosecution evidences, the statement of the
accused persons were recorded under
10 All. Kaptan & Ors. Vs. State of U.P.
997
Section 313 CrPC in which it is stated that
witnesses have given false evidence against
them. The witnesses were examined from
the side of defence namely DW-1, Dr. J.K.
Sharma; DW-2, M.P. Saxena and DW-3,
Dhoom Bahadur.

17. In brief, evidence of the witnesses
are reproduced herein below:

(i) PW-1, Lala Ram deposed that
he had opened window in the south side of
his house. Accused Kaptan had a complaint
that by this window privacy of his house is
being infringed, therefore, he wanted to get
it closed. He asked to call four persons and
if they decide to shut the window, he will
shut it. On 27.08.1984 at about 07:00 am,
when he reached on the well, accused
Kaptan with kanta and rest of the accused
with sticks surrounded him and started
beating. After hearing his commotion, his
elder brother Ram Sahay, wife Ramwati
and his daughter Jamyant Kumari reached
to save him, but they were also beaten by
the accused persons. The complaint Ex.Ka1 was written by Jograj, on his direction on
which he recognized his signature and
proved it.

(ii) PW-2, Ram Sahaya has
given similar statement as given by PW-1,
Lala Ram.

(iii) PW-3, Ram Kumar has
deposed that after hearing the hue and cry,
he had reached on the place of occurrence,
Jhankar Singh had also reached there,
accused Kaptan had taken lathi in which he
cannot say that something was fixed, rest
accused persons had sticks. All the accused
persons were beating the injured persons.

18. These injury reports have been
proved by PW-4, Dharam Bir Saxena,
pharmacist to Dr. S.S Sharma as he had
committed suicide.

19. PW-5, Jawala Prasad Sharma,
IO of this case has deposed that on the date
of occurrence, he was posted as SI at Police
Station Daulatpur, Constable Gagan Saran
has also been posted with him. This witness
has proved chik FIR and carbon copy GD
to be in the handwriting and signature of
Constable Ganga Saran and that he had also
recorded the statements of the injured
persons, prepared the map and after
concluding
the
investigation
he
had
submitted the charge sheet-also.

20. DW-1, Dr. J.K. Sharma has
deposed that as per medical register when
accused Kaptan was admitted in jail, no
injury was found on his person.

21. DW-2, M.P. Saxena, Deputy
Jailer, District Jail, Pilibhit has deposed
that as per gate book, there was an open
injury on the neck of Kaptan and an
invisible injury was also claimed by him on
his left hip. In the cross-examination, this
witness has deposed that he had not seen
these injuries and he cannot say as to when
such injuries had occurred to the accused
on the way or any other place. These
injuries were seen by the warder.

22. DW-3, Dhoom Bahadur resident
of the same village has deposed that on the
day of occurrence at about 06:30 a.m. when
he was going to flourmil, he saw that Lala
Ram, Ram Sahay and Jograj were beating
accused Kaptan near his house. Jograj had
lathi, Lala Ram had kanta from which they
were beating him, he had intervened.
Makhan had also kanta, in this fight Kaptan
and his wife had received injuries. Kaptan's
wife had shown two broken teeths to the IO
and blood stained clothes as well. They had
998 INDIAN LAW REPORTS ALLAHABAD SERIES
not treated themselves by the doctor. Lala
Ram, Ram Bir and Ram Din were not
there.

23. In cross-examination, this witness
deposed that he had narrated the story to
the IO. He could not remember the month
or date of the incident. This witness has
admitted that he was asked by the accused
Kaptan for deposition in court. The wife of
Kaptan and other women of his family had
also reached on the spot. The wife of
Kaptan had also received injuries which
were shown by her to the IO. Accused
Kaptan and his wife had not medically
treated themselves. He had not seen the
wife of Kaptan. There was propaganda in
the village that she had died due to the
above injuries. This witness denied that
since in the land dispute accused Kaptan
had testified himself in his favour,
therefore, he has testified himself in this
case from his side, this witness admitted
that in a land dispute once he was sent to
Jail and was released on bail next day.

24 . After hearing the argument,
learned Chief Judicial Magistrate convicted
and sentenced the accused persons under
Sections 323, 324, 326 IPC.

25. Being aggrieved, Criminal Appeal
No.6 of 1988 was preferred which was
partly allowed and the accused persons
were acquitted from the charge under
Sections 324 and 324 read with Section 34
IPC but the conviction under Sections 323,
323 read with Section 34, 326 and 326 read
with Section 34 IPC were affirmed. The
sentences awarded under Sections 326 read
with Section 34 and 326 read with Section
34 IPC were modified and accused Kaptan
was sentenced for two years rigorous
imprisonment and Rs.1,000/- fine under
Section 326 IPC with default stipulation of
six
months
additional
rigorous
imprisonment. Rest accused persons were
awarded one year rigorous imprisonment
and Rs.500/- fine to each with default
stipulation of three months additional
rigorous imprisonment under Sections 326
read with Section 34 IPC.

26. On 25.07.1989, the accused
persons were sent to jail, it was directed
that all the sentences shall run concurrently.
When this criminal revision was filed, the
convict revisionists were enlarged on bail
on 11.08.1989.

27. Heard Sri Rahul Saxena, learned
counsel for the revisionists, learned AGA
for the State and perused the record.

28. This revision is being decided as
under:

(i) So far as the lodging of FIR is
concerned, occurrence had taken place at
about 07:00 a.m. on 27.08.1984 and the
complaint (Ex.Ka-1) was produced same
day in the concerned police station, on
which basis FIR had been lodged same day
at about 10:00 a.m. The place of occurrence
is 11k.m. away from the police station,
therefore it is concluded that there was no
delay in lodging the FIR. It is also
noteworthy that accused persons were first
taken to the police station where injury
letter was prepared, on which basis injured
were examined by Dr. S.S. Sharma and
injury reports were prepared.

(ii) It is a case of direct evidences
where motive has no role, but in this case,
all the witnesses of fact have also proved
motive that since Lala Ram was not ready
to close the southern window of his house,
therefore he was beaten by the accused
persons.
10 All. Kaptan & Ors. Vs. State of U.P.
999

29. A ground has been taken by the
appellants that the convict Kaptan had also
received injuries, he was beaten by Lala
Ram, Ram Sahai and Jagroop. In this
connection the statement of DW-2 is
material. DW-2, MP Saxena the then
Deputy Jailer, District Jail Pilibhit has
deposed that as per gate book there was
injury on the neck of Kaptan and an
invisible injury was also claimed by him on
his left side of hip. If there are such injuries
or after observation if any injury is found to
the prisoner, it is recorded by the concerned
jail employee. In this case no application
was moved by the deceased convict Kaptan
through Jailer or Jail Superintendent that he
had received injuries in the course of fight
by the informant side. This injury was not
shown to the jail doctor. Though in the
statement under Section 313 CrPC this
witness has stated that he was beaten by the
informant and his colleagues but in this
regard no medical evidence could be
produced and thus it cannot be ascertained
that these injuries had occurred on the date
and time of the alleged occurrence. It also
could not be established that the alleged
injuries to Kaptan were simple or grievous
in nature but from the above, it has been
proved that certainly a scuffle had taken
place between both the parties but it cannot
be concluded that the informant side was
the aggressor. In case of fight certainly in
an attempt by the loser party to save
themselves some injury may also occur to
the attacking party.

30. Thus, from the above, it cannot be
concluded that the informant and his family
members were the aggressor when from the
evidence adduced by the prosecution, the
origin and genesis of the occurrence is very
much clear and proved. Thus, the alleged
injury present on the person of the deceased
convict Kaptan does not help the defence in
any way.

31. It has been argued that the
prosecution has withheld Ram Kumar and
Jhankar Singh and they were not examined
who are said to have reached on the spot at
the time of the alleged occurrence.

32. It is true that both the aforesaid
independent witnesses have not been
examined but now-a-days witnesses do not
come forward for deposition in favour of
the prosecution due to fear of prospective
enmity on account of their deposition with
the accused side. Now-a-days even in civil
cases people do not come to depose the
truth in favour of the either side.
Sometimes public witnesses are won over
or terrorised by the accused, in such a case,
non-examination of independent witness is
inconsequential as held in Dharnidhar Vs.
State of UP, (2010) 7 SCC 759; Dalvir
Kaur Vs. State of Punjab, (1976) 4 SCC
158.

33. In Mukesh Vs. State for NCT of
Delhi and others, AIR 2017 SC 2161
(three-Judges
Bench);
Bhagwan
Jagannath
Markad
Vs.
State
of
Maharashtra, (2016) 10 SCC 537; Sadu
Saran Singh Vs. State of UP, (2016) 4
SCC 357 and in some other cases also it
has been held that if independent witnesses
are not examined, it would not discard the
weight of the testimony available on
record. It is settled law that nonexamination of independent eye-witness
cannot be pressed into service like a
ritualistic formula for discarding the
prosecution case with a stroke of pen. The
court can convict an accused on statement
of sole witness even if he is relative of the
deceased
and
non-examination
of
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
independent witness would not be fatal to
the case of the prosecution.

34. In Dilawar Singh Vs. State of
Haryana, (2015) 1 SCC 737; Dhari Vs.
State of UP, AIR 2013 SC 308; Anil Rai
Vs. State of Bihar, (2001) 7 SCC 318 it
has been held that enmity of the witnesses
with the accused is not a ground to reject
their testimony and if on proper scrutiny,
the testimony of such witnesses is found
reliable, the accused can be convicted.

35. In this case two injured witnesses
have been examined, therefore, nonexamination of the alleged independent eye
witnesses, Ram Kumar and Jhankar Singh
is not fatal for the prosecution when the
medical and oral evidence produced by the
prosecution are in support of each other and
the case is proved beyond reasonable doubt
against the accused persons.

36. It has also been argued that it is
not a case under Section 326 read with
Section 34 IPC and Section 323 read
with Section 34 IPC.

37. In this case there were four
accused
persons.
According
to
prosecution, accused revisionist nos.2,
3 and 4 were armed with lathi whereas
the accused Kaptan (deceased) was
armed with kanta. In this case injury
no.3 to Lala Ram has been described as
grievous in nature by Dr. S.S Sharma
who could not be examined as he had
committed suicide before his deposition
and his medical report has been proved
by
PW-4,
Dharmvir
Saxena,
Pharmacist. Whether injury no.3 of
injured Lala Ram is grievous or simple
in nature may be decided in the light of
Section 320 IPC which reads as under:-

"320.
Grievous
hurt.-The
following
kinds
of
hurt
only
are
designated as "grievous":-

(First) - Emasculation.

(Secondly)
-Permanent
privation of the sight of either eye.

(Thirdly) - Permanent privation
of the hearing of either ear,

(Fourthly) -Privation of any
member or joint.

(Fifthly)
-
Destruction
or
permanent impairing of the powers of any
member or joint.

(Sixthly)
-
Permanent
disfiguration of the head or face.

(Seventhly)
-Fracture
or
dislocation of a bone or tooth.

(Eighthly) -Any hurt which
endangers life or which causes the sufferer
to be during the space of twenty days in
severe bodily pain, or unable to follow his
ordinary pursuits."

38. As per report of Dr. S.S. Sharma,
injury no.3 was grievous in nature which
was caused by sharp edged weapon and rest
of the injuries were caused by blunt object
and were simple in nature. None of the
other injured has received any grievous
injury except simple injuries. Though a
penetrating incised wound in an area of
0.5cm x 0.5cm had occurred in the left
forearm of Jamyant Kumari but it was
caused by broken glass bangles and it has
not been opined by the concerned doctor
that it was grievous in nature.
10 All. Kaptan & Ors. Vs. State of U.P.
1001

39. As per Dr. S.S Sharma the molar
tooth was absent and tooth bed was
lacerated but it is not opined that it had
rooted out in the alleged occurrence, nor it
was produced before him by the victim.
PW-1, Lala Ram has also not deposed that
he had lost his molar tooth in the alleged
incident.

40. As has already been stated that
injury no.3, an incised wound had occurred
to the injured Lala Ram which was caused
by sharp edged weapon like kanta which
was in the hand of the accused Kaptan.
With the help of Section 34 IPC, rest of the
accused persons were also convicted under
Section 326 read with Section 34 IPC.

41. According to this Court, injury
no.3 of the injured Lala Ram is not
grievous in nature. As per serial no.6 of
Section 320 IPC if the hurt (injury) has
permanently disfigured the head or face
only then it would be a grievous hurt. In
this case no supplementary medical report
had been prepared at the time of medical
examination or later on that injury no.3 to
the injured Lala Ram had permanently
disfigured his face as it was on the left side
of his face. Therefore, this Court is of the
view that in absence of permanent
disfiguration of the face of the injured Lala
Ram, the injury no.3 cannot be said to be
grievous in nature. Now it would be
expedient to discuss Section 326 IPC which
reads as under:-

"326.
Voluntarily
causing
grievous hurt by dangerous weapons or
means-Whoever, except in the case
provided for by section 335, voluntarily
causes grievous hurt by means of any
instrument for shooting, stabbing or
cutting, or any instrument which, used as a
weapon of offence, is likely to cause death,
or by means of fire or any heated
substance, or by means of any poison or
any corrosive substance, or by means of
any explosive substance, or by means of
any substance which it is deleterious to the
human body to inhale, to swallow, or to
receive into the blood, or by means of any
animal,
shall
be
punished
with
1[imprisonment
for
life],
or
with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine."

42. From the above, it is very much
clear that if any grievous hurt is caused
voluntarily by dangerous weapon or means
as described under Section 326 IPC only
then an accused would be liable to be
convicted and sentenced under Section 326
IPC. According to this Court, since injury
no.3 of Lala Ram has not been proved to be
grievous hurt, therefore, the revisionist
could not be convicted and sentenced under
Section 326 IPC or under Section 326 read
with Section 34 IPC and in absence of that
this case would fall under the provisions of
Section 324 IPC and Section 324 read with
Section 34 IPC. Section 324 IPC is almost
transformation of Section 325 IPC except
the fact that under Section 325 IPC, in
place of Section 334, Section 335 IPC has
been described as exception. Section 324
IPC reads as under:-

"324. Voluntarily causing hurt
by dangerous weapons or means.-
Whoever, except in the case provided for by
section 334, voluntarily causes hurt by
means of any instrument for shooting,
stabbing or cutting, or any instrument
which, used as weapon of offence, is likely
to cause death, or by means of fire or any
heated substance, or by means of any
poison or any corrosive substance, or by
means of any explosive substance or by
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
means of any substance which it is
deleterious to the human body to inhale, to
swallow, or to receive into the blood, or by
means of any animal, shall be punished
with imprisonment of either description for
a term which may extend to three years, or
with fine, or with both."

43. From the above discussion, this
Court comes to the conclusion that it is not
a case under Section 326 IPC or Section
326 read with Section 34 IPC but this case
falls under Section 324 IPC in respect of
the deceased convict revisionist Kaptan and
under Section 324 read with Section 34 IPC
in respect of rest of the convicted accused
revisionist nos.2, 3 and 4. So far as the
conviction under Section 323 IPC and
Section 323 read with Section 34 IPC is
concerned this Court is in concurrence with
the finding recorded by the trial Magistrate
and the appellate court as well. Thus, this
revision is liable to be allowed so far as the
conviction and sentencing under Section
326 IPC and Section 326 read with Section
34 IPC is concerned.

44. It has also been argued by learned
counsel for the revisionists that since the
time of the alleged occurrence 39 years
have been elapsed, the surviving convicted
revisionist nos.2, 3 and 4 have also become
senior citizens. No previous or post
criminal antecedents of these three convicts
have been produced by the prosecution.
Therefore, this Court is of the view that no
useful
purpose
would
be
served
if
revisionist nos.2, 3 and 4 are sent to jail to
serve rest of the sentence. According to this
Court, in the changed circumstances and in
case of non-applicability of Section 326
and Section 326 read with Section 34 IPC
and considering the long pendency of this
case it would be proper to release the
revisionist nos.2, 3 and 4 on probation to
maintain good behaviour for two years
from the date of execution of their personal
bonds, sureties and undertaking.

45. In this regard learned counsel for
the accused-revisionists has placed reliance
on the following judicial precedents:

(a) State of Karnataka Vs.
Muddappa, (1999) 5 SCC 732. In this
case, the offence under Section 302 IPC
was converted into Section 304 Part II IPC.
Relevant portion of which is being
reproduced herein below:

"2. The learned Counsel for the
appellant is not in a position to assail the
acquittal of the accused under Section 302
I.P.C., but he vehemently contends that the
Court did not bear in mind germane
considerations for releasing the accused on
probation after convicting him under
Section 304 Part II I.P.C. Whether the
benefit of the Probation of Offenders Act
could be extended in any particular case
depends upon the circumstances of that
case. Admittedly, there is no statutory bar
for application of the Act to an offence
under Section 304 Part II where the
maximum punishment is neither death nor
imprisonment for life. In that view of the
matter and on examining the impugned
judgment of the High Court, we find that
the Court did consider the relevant material
and then came to the conclusion that the
accused should be released on probation
by applying the provisions of Section 4
of the Probation of Offenders Act. We
see no infirmity with that order to be
interfered with by this Court after this
length of time, more so when nothing
has been pointed out as to whether the
accused has, in any way, violated the
terms and conditions of allowing him
on probation."
10 All. Kaptan & Ors. Vs. State of U.P.
1003

(b) Mohd. Monir Alam Vs.
State of Bihar, (2010) 12 SCC 26. In this
case the offence under Section 302 IPC was
converted into Section 304 part II and the
Apex Court found it fit to enlarge the
appellant on probation instead of sending
him to jail for serving the sentence.
Relevant
part
of
this
judgment
is
reproduced herein below:

"8. We have considered Mr.
Suri's submissions very carefully. We see
from the documents that the appellant has
secured a Doctorate and is presently
employed as a Senior Assistant Professor
in the Department of Strategic and
Regional Studies, University of Jammu and
that he had secured this appointment in the
year 1997. His profession qualifications
have also been provided to us which show
his expertise in his speciality and also
portray his association with prestigious
organisations worldwide in the field of
strategic studies. We are, therefore, of the
opinion that his conduct that his conduct
and attainments after his involvement in
this matter justify his release on probation.
We, accordingly, dismiss the appeal but
direct that he shall be released on
probation under Section 4 of the Probation
of Offenders Act, 1958 on terms to be
settled by the trial court."

(c) Krishna Deo and Others Vs.
State of UP, Criminal Appeal No.735 of
1982 decided on 11.08.2017. Relevant
portion of this judgment is reproduced as
follows:

"23. We are also not interfering
with the conviction of appellants- Smt.
Jaikali and Smt. Bhagwandei under Section
147 & 323/149 of the IPC. As discussed
above,
considering
the
facts
and
circumstances of the case, instead of
sentencing the appellant no. 1 for the
offence under Section 304 Part-II r/w
Section 34, 147, 323/149 of the IPC., we
think it proper in the interest of justice to
release the appellant- Krishnadeo, after
giving him the benefit of Section 4 of the
Probation of Offenders Act. We are not
inclined to interfere with the sentence
passed against the appellant- Smt. Jaikali,
Smt. Bhagwandei, who were only directed
to pay fine. Appellant-Krishna Deo is
directed to surrender in the court below.
The learned court below is directed to
release him as per the provisions of Section
4 of the Probation of Offenders Act. The
learned court below shall take all coercive
steps for realizing the fine from appellantsJaikali and Bhagwandei, if the same has
not been deposited by them."

46. On the basis of above discussion,
it is concluded that the accused persons had
committed the offence under Section 323
IPC and also an offence under Section 324
read with Section 34 IPC for which they
are liable to be released on probation in
place of sentencing.

47. Accordingly, this revision is
partly allowed so far as the conviction and
sentencing under Section 326 read with
Section 34 IPC is concerned and the
revisionists nos.2, 3 and 4 are convicted
under Section 324 read with Section 34 IPC
and are acquitted under the charge of
Section 326 read with Section 34 IPC. The
conviction and sentencing under Section
323 read with Section 34 IPC is affirmed.

48. The revisionist nos.2, 3 and 4 are
released on probation to maintain good
conduct and behaviour for two years. They
are directed to execute a personal bond,
undertaking and two sureties of Rs.50,000/-
before the District Probation Officer,
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
Pilibhit. The period of probation would
start from the date when they execute the
aforesaid bonds and undertaking. In case
they do not comply with the order of this
Court regarding probation, they shall serve
the sentence awarded under Section 323
read with Section 34 IPC as directed by the
trial court and shall also undergo for two
years simple imprisonment and Rs.1,000/-
fine with default stipulation of six months
additional
imprisonment
for
the
commission of offence under Section 324
read with Section 34 IPC.

49. A copy of this order alongwith the
lower court record be sent to the CJM,
Pilibhit and a copy of this order be also
provided to the District Probation Officer,
Pilibhit,
for
necessary
compliance
and
consignment of original records.

----------
(2023) 10 ILRA 1004
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 2431 of 1999

Yashpal Singh ...Revisionist
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionist:
Sri Shamsher Singh

Counsel for the Respondents:
G.A., Sri Jagdev Singh

Criminal Law: Indian Penal Code, 1860 -
Sections 307, 504 & 506 - Against order of
acquittal - Code of Criminal Procedure, 1973 -
Section 313 - At time of incident, political
rivalry existed between parties - Case against
revisionist is weaker, as compared to opposite
parties 2 to 5, where two individuals sustained
firearm injuries and charge sheet filed against
revisionist
&
ors.
after
investigation
-
Judgment of acquittal was passed while crosscase still pending - Had both cases been
decided together, opposite party nos. 2 to 5
could have relied on acquittal in their defense
- Though neither Cr.P.C. nor Indian Evidence
Act contains specific provisions for joint trial of
cross-cases, judicial precedents from Apex
Court and High Courts have guided trial courts
to try such cases together to avoid procedural
inconvenience - All criminal courts in Uttar
Pradesh directed to decide cross-cases jointly
after recording evidence - Prosecution failed
to establish charges against opposite party
beyond reasonable doubt - Acquittal order
proper, warrants no interference in revisional
jurisdiction. (Para 18, 20 to 23)

Revision dismissed. (E-13)

List of Cases cited:

1. Nathilal & ors. Vs St. of U.P., 1990 Supp SCC 145
(Para 2)

2. St. of M.P. Vs Mishri Lal, (2003) 9 SCC 426

3. Pradeep Kumar Dubey Vs St. of U.P. & anr.,
Application U/S 482 Cr.P.C. No. 20241 of 2021

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

1. None responded for the revisionist
even on the revised call and also none appeared
on behalf of opposite party nos. 2 to 5. Since a
criminal revision has to be decided on merit,
therefore, heard Sri Mithilesh Kumar
learned A.G.A. for the State, perused the
record and thereafter revision is decided on
merit.

2. This revision has been preferred
against the judgment and order of acquittal
dated
7.10.1999
passed
by
learned
Additional Sessions Judge, IIIrd, Bijnor, in
S.T. No. 122 of 1999 arising out of Case