# Kare Deen & Ors v. State of U.P

- **Citation:** (2022) 9 ILRA 1406
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-26
- **Case number:** Criminal Appeal No. 28 of 1994
- **Bench:** Manoj Misra, Syed Afatb Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kare-deen-ors-v-state-of-u-p-49011
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code 1860 -
Sections 302, 325 & 34 - Murder - Benefit
of doubt - Held - Trial court failed to
consider that the incident was not pre-
9 All. Kare Deen & Ors. Vs. State of U.P.
1407
planned, but occurred all of sudden in the
heat of moment - No deadly weapon was
used - There was no common intention to
commit the murder of Ram Raj(the
deceased) but intended only to cause
injuries - Neither in the FIR nor in the
statements of witnesses any specific role
has been assigned to any of the accused
causing head injury to the Ram Raj (the
deceased) -It is uncertain which of the
accused caused the fatal head injury
which resulted in his death - appellants
cannot be convicted under Section 302/34
IPC. Instead, the accused-appellants are
guilty of the offense under Section 325/34
IPC (Para 24, 25)

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,999 of 40,144. This is a partial read: ask again with offset=39999 for what follows._

1406 INDIAN LAW REPORTS ALLAHABAD SERIES
of 1999 in the prescribed manner, vitiates
the order dated 22.07.2019 and all the
subsequent proceedings. Prejudice has also
been caused to the delinquent employee,
the disciplinary authority could have
accepted the enquiry report exonerating
him, and he could have proceeded under
rule 9(3) of the Rules of 1999 and dropped
the proceedings in his favour.

41. Considering the above, this Court
is of the considered view that the order
dated 22.07.2019 it is clearly arbitrary and
illegal and such an order could not have
been passed in exercise of jurisdiction
under rule 9(1) of the rules of 1999 and
consequently the order dated 22.07.2019 is
hereby quashed, and consequently the
subsequent enquiry proceedings resulting
in enquiry report dated 16.07.2020 as well
as punishment order dated 16.05.2021 are
quashed. The matter is remitted to the
disciplinary authority to proceed with the
enquiry from the stage of submission of
enquiry report dated 31.12.2018 and pass
appropriate
orders
and
proceed
in
accordance with law.

42. The counsel for the petitioner has
also raised other grounds for challenging
the impugned order of punishment dated
16.05.2021, where the petitioner was not
giving proper opportunity of hearing and
no date, time and place was fixed, nor his
reply considered by the inquiry officer,
rendering the entire enquiry arbitrary and
illegal, and also that the U.P Public Service
Commission had not given reasons for
enhancing the punishment. Considering
that this Court has already set aside the
order dated 22.07.2019 ordering re-inquiry,
it would be futile at this stage to consider
the said ground raised by the petitioner, as
in any case the enquiry would be proceeded
with from the stage of submission of the
second enquiry report dated 31.12.2018 to
the disciplinary authority, and the petitioner
would have adequate opportunity as
provided in the Rules.

43. Considering that the enquiry
proceedings are pending since last 10 years,
it is provided that the enquiry proceedings
be concluded within a maximum period of
two months from the date a certified copy
of this order is produced before the
Disciplinary authority, subject to cooperation by the petitioner.

44. In light of the above, the writ
petition is allowed. Consequences to
follow.
----------
(2022) 9 ILRA 1406
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2022

BEFORE

THE HON'BLE MANOJ MISRA , J.
THE HON'BLE SYED AFATB HUSAIN RIZVI, J.

Criminal Appeal No. 28 of 1994

Kare Deen & Ors. ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri H.N. Shukla, Sri Ashish Kumar Shukla,
Sri Saurabh Chaturvedi, Sri I.K. Chaturvedi
(Senior Counsel)

Counsel for the Opposite Party:
A.G.A., Sri Ajai Kumar, Sri Raj Kumar
Yadav, Sri Rishikesh Kumar Maurya, Sri Ajai
Kumar

Criminal Law - Indian Penal Code 1860 -
Sections 302, 325 & 34 - Murder - Benefit
of doubt - Held - Trial court failed to
consider that the incident was not pre-
9 All. Kare Deen & Ors. Vs. State of U.P.
1407
planned, but occurred all of sudden in the
heat of moment - No deadly weapon was
used - There was no common intention to
commit the murder of Ram Raj(the
deceased) but intended only to cause
injuries - Neither in the FIR nor in the
statements of witnesses any specific role
has been assigned to any of the accused
causing head injury to the Ram Raj (the
deceased) -It is uncertain which of the
accused caused the fatal head injury
which resulted in his death - appellants
cannot be convicted under Section 302/34
IPC. Instead, the accused-appellants are
guilty of the offense under Section 325/34
IPC (Para 24, 25)

Allowed. (E-5)

List of Cases cited:

1. Richhpal Singh Meena Vs Ghasi @ Ghisa &
ors., (2014) 8 SCC 918

2.Dhanraj Singh Vs St. of Jharkhand, 2019 0
Supreme (Jhk)714

3.Gajanand & ors. Vs St. of U.P., AIR 1954 SC
695

4. Bhagwan Jagannath Markad Vs St. of Mah.
(2016) 10 SCC 537

5. Ram Lal Vs Delhi Administration, 1972 SC
2462

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. We have heard Sri I.K. Chaturvedi
learned Senior Counsel assisted by Sri
Saurabh Chaturvedi for the appellant, Sri
Ajay Kumar, Sri Rishikesh Kumar Maurya
and Sri Raj Kumar Yadav learned counsels
appearing for the informant and Ms.
Kumari Meena, learned AGA for the State.

2. This Criminal Appeal is filed
against the judgment and order dated
03.01.1994 passed by second Additional
District and Sessions Judge, Jaunpur in S.T.
No.37 of 1987 (State vs. Kare Deen and
ors) arising out of crime no.106/1986, P.S.
Barsathi,
District
Jaunpur.
By
the
impugned judgment and order, the learned
Sessions
Judge
has
held
appellants-
accused Kare Deen, Ram Bhola, Devi
Prasad and Ambika Prasad guilty for
offence punishable under sections 302 read
with section 34 and 323 read with section
34 IPC and sentenced each of them to
imprisonment for life for offence under
Section 302 read with section 34 IPC and
six months rigorous imprisonment for
offence under Section 323 read with
section 34 IPC.

3. In brief the facts are as follows:

On
oral
information
of
complainant, Shesh Mani (P.W.-1), an
NCR No.106 of 1986, under sections 323,
504 and 506 IPC, was registered at P.S.
Barasathi, District Jaunpur on 30.06.1986
at 19:45 hrs against four accused, namely,
Kare Deen, Ram Bhola, Devi Prasad and
Ambika Prasad. It was alleged that on
30.06.1986 while the complainant was
returning with his bulls after ploughing his
field, the bulls went near the door of the
accused with whom complainant has old
enmity; the complainant went to herd away
the bulls; the accused started hurling abuses
and launched an assault on him with fists
and danda. His father Ram Raj came to
rescue him. The accused assaulted him as
well, with lathi. On the noise, the witnesses
Ram Dular and Daya Shankar and other covillagers intervened. The accused went
away hurling abuses and extending life
threats. After registration of the NCR, the
injured Shesh Mani (the complainant) and
Ram Raj were sent to the hospital. On
01.07.1986, injured Ram Raj succumbed to
his injuries in the district hospital, Jaunpur.
1408 INDIAN LAW REPORTS ALLAHABAD SERIES
On receipt of the information of death, the
case was amended and section 304 IPC was
added. The inquest proceeding of the dead
body was conducted by S.I. Shamsher
Bahadur Singh. He also prepared the
related papers and sent the body for
postmortem examination. The investigation
was entrusted to S.I. Sankata Prasad Singh.
He came to the place of occurrence,
recorded the statements of witnesses and
prepared the site plan. He also seized the
blood stained lungi of the deceased and
prepared
its
memo.
Thereafter,
on
subsequent
dates,
he
recorded
the
statements of other witnesses and after
completion of the investigation, submitted
charge sheet on 11.07.1986 under sections
304, 323, 504 and 506 IPC against all the
four accused.

4. After committal proceeding, the
sessions court framed charges against all
the accused under Section 302 read with
section 34 IPC and 323 read with section
34 IPC. The accused pleaded not guilty and
claimed for trial. The prosecution examined
eight witnesses and produced 16 documents
Ex. Ka.1 to Ex.Ka-16 and three material
exhibits 1 to 3. The statements of accused
were recorded under sections 313 Cr.P.C.
and incriminating circumstances were put
to them. They denied the prosecution case.
They have also stated that they have been
implicated due to enmity. Complainant-
Shesh Mani is the nephew of Ram Dular
and Raj Nath is also of the same party and
a professional witness. Accused have also
stated that the deceased was laying roof
upon his kutcha house. He fell down on a
log due to which he suffered head injury
and died. No evidence in defence was
produced. The trial court after hearing the
arguments, by the impugned judgment and
order, held the accused-appellants guilty
for the offence under section 302 read with
section 34 and 323 read with section 34
IPC and sentenced them as above.

5. The medico-legal examination of
Ram Raj (deceased) was conducted on
30.06.1986 at 10:30 pm by Dr. R.N.
Srivastava. Following injuries were noted
on his body:

1. Lacerated wound 5 cm X 1 cm
X bone deep, present over the right side
head above the right ear, bleeding fresh.
Injury kept under observation and advised
X-Ray
Skull.
Injury
surrounded
by
traumatic swelling 5 cm X 4 cm.

2. Lacerated wound 4 cm X 1 cm
X bone deep present over middle of the
head, 17 cm above the bridge of nose.
Injury surrounded by traumatic swelling 7
cm X 4 cm, injury kept under observation,
advised X-Ray of Skull, bleeding fresh.

3. Lacerated wound 2 cm X 0.5
cm, cartilage deep, on inner aspect of right
ear, bleeding fresh.

4. Contusion 17 cm X 4 cm, on
left side back of chest including abdomen,
starting from middle of the body of left
scapula, Red in colour.

5. Contusion 12 cm X 2 cm, on
back of upper part of left side of scapula,
Red in colour.

6. Traumatic swelling 6 cm X 4
cm, on upper part of left shoulder.

Doctor has given the opinion that
all injuries are simple in nature, except
injury no.1 & 2, which are kept under
observations and X-Ray of Skull advised.
Injuries have been caused by blunt object
and duration is fresh.
9 All. Kare Deen & Ors. Vs. State of U.P.
1409

6. On the same day at 11:15 pm the
medico legal examination of Shesh Mani was
also conducted by Dr. R.N. Srivastava and
following injuries were found:

1. Abraded traumatic swelling 5 cm
X 3 cm, on back of left elbow, Red in colour.

2. Traumatic swelling 4 cm X 3 cm
on dorsal aspect of middle of right foot.

3. Traumatic swelling 5 cm X 4 cm
on dorsal aspect of middle of left foot.

Doctor has given the opinion that all
injuries are simple in nature, caused by blunt
object and duration is fresh.

Both the injury reports have been
proved by Dr. R.N. Srivastava (P.W.-5) as
Ex.Ka-9 & Ka-10.

Dr. R.N. Srivastava (P.W.-5) has
also accepted the suggestion of prosecution
that these injuries may be caused by lathidanda, fists and kicks, on 30.06.1986 at 4:00
pm.

7. The postmortem of deceased Ram Raj
was conducted on 02.07.1986 at 2:00 pm by
Dr. P.N. Shukla.

AUTOPSY REPORT

External Examination:

Stout body of average built, rigor
mortis present all over the body, following
ante mortem injuries were found:

(i) Stitched wound 3 cm long on the
head, 8 cm above right pinna to left ear.

(ii) Stitched wound 4 cm long on
head mid line 5 cm above the injury no.1.

Internal Examination:

Blood clot was present in the
right side of the skull and contusion in
temporal lobe of right side of brain. Right
contused extra dural clot was found in the
right side in cerebra, clots were found in
both sides. Blood clot was found at the base
of skull. 200 gm clotted blood was found in
the abdominal cavity. Right chamber of the
heart was full while left chamber was half
full. In stomach, 200 ml. digested food was
found. Small intestine contains digested
food. In large intestine, faecal matter was
present.

In the opinion of the doctor, the
cause of death was due to ante-mortem
head injury. The deceased died at the
district hospital on 01.07.1986 at 10:15 am.

Dr. P.N. Shukla (P.W.-6) has
proved the postmortem report as Ex.Ka-8.
The witness has further stated that the
deceased had also suffered internal injuries
and that the anter mortem injuries were
sufficient in the ordinary course of nature
to cause death.

Other Prosecution Evidence:

8. Shesh Mani (P.W.-1) is the
complainant as well as the injured. The
witness in his examination-in-chief has
stated that the accused are real brothers and
they live jointly. The witness has also
narrated the topography of the place of the
incident. The witness has further stated that
the accused constructed a dalan (verandah)
in the land of the complainant, north of the
verandah of the complainant. He tried to
restrain them from constructing the dalan
(verandah) but the accused did not pay any
heed. This was the reason for enmity. At
that time, maar-peet took place and a
1410 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint case was instituted. In respect of
the incident in question, the witness stated
that the incident is of two and a half years
ago. It was 4:30 pm. He was returning after
ploughing his field and was passing
through the chak road. When he reached
near the door of accused's dalan then his
both bulls flared up. To catch the bulls, he
came at the door of the accused, then all the
accused Kare Deen, Ram Bhola, Devi
Prasad and Ambika Prasad started to abuse
and assault him. He raised an alarm, then
his father Ram Raj came to rescue him. The
witnesses Daya Shankar, Ram Dulare, Raj
Nath and Prabhawati (his mother) and his
sister-in-law (bhabhi) also came there. The
accused assaulted his father with lathi, who
fell down. Then accused hurling abuses
escaped from there. His father became
unconscious. He brought him on a cot to
Nigoh. From there, he came to the police
station and lodged the oral report. He and
his father were sent to the hospital by the
police where their medical examination
was conducted. On the next day, his father
died in the district hospital due to the
injuries suffered by him.

9. Raj Nath (P.W.-2) is the eye
witness. In his examination-in-chief, the
witness
has
stated
that
he
knows
complainant Shesh Mani and accused Kare
Deen, Ram Bhola, Devi Prasad and
Ambika Prasad who are co-villagers. Ram
Raj was the father of Shesh Mani. Two and
a half years ago Ram Raj was murdered. It
was 4:00 pm. Shesh Mani was driving his
bulls. When he reached in front of the door
of the accused, the bulls flared up and came
at the door of the accused who said that this
is not a public way why you are driving
your bulls from here. On this Shesh Mani
said that this is the public way. On this,
accused hurling abuses assaulted Shesh
Mani. He made a noise, on which his father
Ram Raj came there to rescue him. Then
accused assaulted Ram Raj with lathi. Ram
Raj became unconscious and fell down.
The witness Ram Dular, Daya Shankar,
father and uncle and wife of Ram Raj also
reached there and witnessed the incident.
Ram Raj was taken to the police station by
the complainant from where he was sent to
Jaunpur hospital where he died.

10. Ram Dular (P.W.-3) is also an
eye witness. In his examination-in-chief,
the witness has stated that accused Kare
Deen, Ram Raj, Devi Prasad and Ambika
Prasad are residents of his village. They
also know Shesh Mani- the complainant.
His father was murdered two and a half
years ago. Shesh Mani was driving his
bulls on the pathway when he reached in
front of the house of the accused, the bulls
flared up. Shesh Mani went to herd them
away, then accused started to abuse him
and said that it is not a public way, why
you are driving your bulls here. The
complainant said that this is a public way
and there is no other way. On this, accused
started to assault Shesh Mani who raised an
alarm. On his alarm Ram Raj came there.
Then accused assaulted Ram Raj with lathi.
Ram Raj became unconscious and fell
down. The incident was witnessed by Ram
Dular, Raj Nath and others. Shesh Mani
took his father to police station. Thereafter,
his father was admitted in the District
hospital where he died.

11. Constable Shamsher Bahadur
Singh (P.W.-7 ) is a formal witness who
has brought the dead body to police lines
after inquest proceeding for postmortem
examination. The witness has stated that on
01.07.1986 after inquest proceeding of the
dead body of Ram Raj, it was handed over
to him and constable Musafir Singh for
postmortem examination. On 02.07.1986
9 All. Kare Deen & Ors. Vs. State of U.P.
1411
he handed over the dead body to the
Doctor.

12. S.I. Samar Bahadur Singh
(P.W.-8)
has
conducted
the
inquest
proceeding. The witness has stated that on
01.07.1986
he
conducted
inquest
proceeding at District hospital, Jaunpur. He
also prepared the other necessary papers
and sealed the dead body, thereafter handed
it over to the constable Sanjay Singh and
Shamsher
Singh
for
postmortem
examination. The witness has proved the
inquest report Ex.Ka16 and other related
papers Ex.Ka-9 to Ka-15.

13. S.I. Sankata Prasad Singh
(P.W.-4) is the Investigating Officer. The
witness has stated that on 30.06.1986 the
case was registered as NCR under sections
323, 504 & 506 IPC. The witness has
proved by secondary evidence, the NCR
and GD entry Ex.Ka.-1 and Ex.Ka-2. He
has further stated that on 01.07.1986
injured Ram Raj died at district hospital,
Jaunpur.
On
receiving
the
aforesaid
information, the case was amended and
registered as crime no.102/06 under section
304 IPC. The witness has also proved by
secondary evidence, the GD of amendment
Ex.Ka.-3. The witness has further stated
that the investigation of this case was
entrusted to him on 08.07.1986. He came to
the village and recorded the statements of
witnesses
and
on
indication
of
the
complainant and witnesses, inspected the
place of occurrence and prepared the site
plan (Ex.Ka-4). On 09.07.1986 he recorded
the statement of complainant Shesh Mani,
seized the blood stained tahmad of the
deceased and prepared its memo Ex.Ka.5,
recorded the statements of accused Ram
Bhola, Devi Prasad and Ambika Prasad in
the lockup. On 10.07.1986, he recorded the
statements of constable Ram Murti and
Kashi Yadav and accused Kare Deen. On
11.07.1986, he submitted the charge-sheet
against all accused under Section 304, 323,
504 & 506 IPC.

Submissions
on
behalf
of
applicants.

14. Learned counsel for the appellants
contended that the appellants-accused are
innocent and they have been falsely
implicated
due
to
old
enmity.
The
prosecution witnesses have admitted the
fact of old enmity in their statements. It is
further contended that Raj Nath (P.W.-2) is
not named as a witness in the FIR. He has
been introduced later on. Ram Dular (P.W.-
3) is close relative of the complainant and
the deceased. He has stated in his crossexamination that he is cousin of Ram Raj-
the deceased. So Shesh Mani (P.W.-1) and
Ram Dular (P.W.-3) are related and
interested witnesses. There are material
contradictions and discrepancies in the oral
statements of the witnesses. The witnesses
have improved their statements while
deposing in the court and there are material
omissions in their statements recorded by
the Investigating Officer under Section 161
Cr.P.C. Ram Dular (P.W.-3) has stated that
at the time of incident he was laying roof of
his house and saw the incident from there.
This statement is quite contradictory to the
statement given to the Investigating Officer
under Section 161 Cr.P.C., in which, it is
recorded that at the time of incident he was
working in his field. When confronted by
the defence on this point, the witness has
disowned the statement given to the
Investigating Officer under section 161
Cr.P.C. that at the time of incident he was
working in his field. He has further stated
that he has told the Investigating Officer
that he was laying roof from where he ran
towards the place of occurrence. The
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
witness has further stated that he did not
come to the place of occurrence but seen
the entire incident from the place where he
was laying the roof of his house. This
witness has also stated that at the time of
incident, it was drizzling. No other witness
has supported this statement. It is further
contended that in the first information
report, it is alleged that accused assaulted
him with fists, kicks and danda while in his
cross-examination, the witness has stated
that he was assaulted with lathi. The eye
witnesses in their statement have stated that
Ram Raj was taken on a cot while the
Investigating Officer, Sankata Prasad Singh
(P.W.-6) has stated that witnesses told him
that Ram Raj was brought in a taxi from the
place of occurrence. Shesh Mani (P.W.-1)
has also stated that a handkerchief was tied
on the head of Ram Raj which was stained
with blood. But this handkerchief has not
been seized by the Investigating Officer
during the course of investigation. The
investigating officer has also not collected
the blood stained earth from the place of
occurrence while Shesh Mani (P.W.-1) has
stated that Ram Raj was bleeding and the
blood fell down on the ground. It is further
contended that all the injuries of Shesh
Mani
complainant
are
simple
and
superficial. The injuries of Ram Raj
(deceased) are also simple in nature. There
is no grievous injuries on his body. The
accused in their statements under Section
313 Cr.P.C. have stated that Ram Raj- the
deceased was laying chappar and he fell
down on a log and suffered injuries. Dr.
R.N. Srivastava (P.W.-5) has accepted that
if the injured fell down from roof on a
brick, then injury no.1 may be caused.
Injury no.2 is also possible by falling and
injury no. 4, 5 & 6 are possible by friction
and are simple in nature. So the defence
version that the deceased has suffered
injuries by a fall from roof cannot be ruled
out and is possible. Due to old enmity, a
story has been cooked up and accused have
been falsely implicated. Learned counsel
lastly contended that from the allegations
of the first information report and the
statement of witnesses it appears that the
incident has occurred in the heat of
moment. It was not pre-planned, so Section
34 IPC will not apply. The accused persons
are four in number and it is not specific
from the statements of witnesses that which
of the accused caused injury on head to
Ram Raj (deceased). Hence accused could
not be convicted for the offence punishable
under section 302 IPC with the aid of
Section 34 IPC. On this point, the learned
counsel placed reliance on the case law of
Richhpal Singh Meena vs. Ghasi alias
Ghisa and ors, (2014) 8 SCC 918; and
Dhanraj Singh vs. State of Jharkhand,
2019 0 Supreme (Jhk)714 and Gajanand
and ors vs. State of Uttar Pradesh, AIR
1954 SC 695.

The submissions on behalf of
respondents :

15. Learned AGA and learned counsel
for the complainant submitted that three
eye witnesses produced by the prosecution
are natural witnesses. They are residents of
the vicinity. They have fully corroborated
the prosecution case. There are no material
contradiction or discrepancies in their
statements.
The
contradiction
and
discrepancies as pointed out by the learned
counsel for the appellants are minor and
natural. Shesh Mani (P.W.-1) has also
received injuries in the incident. So his
presence on the spot is fully established.
The oral evidence is further corroborated
with medical evidence. The allegations of
the FIR that accused assaulted Shesh Mani
and Raja Ram (the deceased) with lathidanda and fists & kicks, stand corroborated
9 All. Kare Deen & Ors. Vs. State of U.P.
1413
with medical evidence. Time of the
incident also stand proved from the oral as
well as medical evidence. Place of
occurrence is also established and there is
no doubt in it. The incident has occurred on
30.06.1986. The report was registered as
NCR. After the death of Raja Ram, the case
was converted into a cognizable case and
Section 304 was added and thereafter
investigation commenced. So when the
Investigating Officer arrived at the place of
occurrence, due to lapse of time, the blood
stains could not be found at the place of
occurrence. It is further contended that the
witnesses have fully corroborated the fact
that there was previous enmity between the
parties. On this count, on a trivial issue, the
accused-appellants
with
a
common
intention assaulted Shesh Mani and when
his father- Ram Raj came to his rescue,
they also assaulted him with lathi, causing
him serious head injuries which became
fatal. It is further contended that for
application of Section 34 IPC pre-concert
of mind before the incident is not
necessary. It may develop at the place of
occurrence itself. So section 34 IPC will
apply. The
appellant-accused
with
a
common intention have caused head injury
to the Ram Raj (deceased) which resulted
in his death on the next day during the
course of treatment. So it is a clear case of
murder. The learned trial court has rightly
appreciated the entire facts and evidence,
the finding of the learned trial court that
appellant accused are guilty for offence
under section 302 IPC is just and proper.
There is no illegality or perversity in the
finding recorded by the learned trial court.

Analysis

16. The prosecution case is based on
direct
evidence
and
prosecution
has
produced three eye witnesses, Shesh Mani
(P.W.-1) Raj Nath (P.W.-2) and Ram Dular
(P.W.-3). From the site plan Ex.Ka-4 and
from the statements of witnesses, it is fully
established that the house of complainant
and the accused are in the neighbourhood
and there is chak road in the north of the
dalan (verandah) and chappar of the
accused. The prosecution case is that at the
time of incident complainant- Shesh Mani
was returning with bulls from his field.
When he arrived in front of the house of the
accused his bulls flared up and came near
the door of the house of the accused. On
this some altercation took place between
Shesh Mani and the accused. The accused
hurling abuses, started to assault Shesh
Mani. On his alram, his father Ram Raj
came to rescue him. Then he was also
assaulted by the accused. Shesh Mani
(P.W.-1) has fully supported the aforesaid
prosecution case. He has received injuries
in
the
incident.
His
medico
legal
examination has been conducted on the
same day at 11:15 pm at district hospital,
Jaunpur by Dr. R.N. Srivastava (P.W.-5).
Three injuries have been found on his
body, the first one is abraded traumatic
swelling on the left elbow while second and
third injuries are traumatic swelling on
right leg and left leg. The duration of the
injuries was fresh. Doctor has given
opinion that these injuries may have been
caused by lathi, danda, fists and kicks. The
doctor has also accepted the prosecution
suggestion that these injuries may come on
30.06.1986 at 4:00 pm. This witness being
injured, his presence on the spot cannot be
doubted. Hon'ble Apex Court in Abdul
Sayeed vs. Stte of Madhya Pradesh, (2010)
10 SCC 259, emphasizing the evidentiary
value of an injured witness held:

"Where witness to occurrence
was himself injured in the incident,
testimony of such witness is generally
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
considered to be reliable as he is a witness
who comes with an inbuilt guarantee of his
presence at the scene of the crime and
unlikely to spare his actual assailant in
order to false implication to someone"

In State of Haryana vs. Krishnan,
AIR 2017 SC 3125, it has been laid down
that the testimony of an injured witness
should be relied upon unless there are
strong grounds for rejection of his evidence
on the basis of major contradictions and
discrepancies. The reason for attaching
such reliability for evidence of an injured
witness is that his presence on the scene
stands established and it is proved that in
the said incident he got injured.

17. Raj Nath (P.W.-2) and Ram
Dular
(P.W.-3)
have
also
fully
corroborated the prosecution case and the
statement of Shesh Mani (P.W.-1)- the
injured witness. All the above three
witnesses have been put to lengthy crossexamination by the defence but except
some
minor
contradictions
and
discrepancies the oral testimony of these
witnesses is intact. There is no major
contradiction or discrepancy which makes
their statements unreliable.

18. The oral statements of the
aforesaid witnesses also stand corroborated
from the medical evidence. According to
prosecution,
accused
assaulted
the
complainant- Shesh Mani and his father
Ram Raj with lathi-danda, fists & kicks.
The injury reports of Ram Raj and Shesh
Mani Ex.Ka-8 and Ex.Ka-7, corroborates
the prosecution version in this respect. All
the injuries found on the body of both the
injured are lacerated wounds, traumatic
swelling and abrasions. These injuries are
possible only with hard and blunt object
like lathi-danda, fists & kicks and friction.
The medico legal examination has been
conducted on the same day at 10:30 pm and
11:15 pm respectively. So the medical
examination has been conducted after 6-7
hrs of the incident and the doctor has noted
the
injuries
as
fresh.
This
further
corroborates the time of the incident. The
Investigating Officer has indicated the
place of occurrence with letter-A in the site
plan Ex.Ka-4. The place of occurrence is in
front of the chappar of the accused and on
the chak road. All the three eye witnesses
have supported the prosecution case that
the incident has occurred in front of the
door of the house of accused. So there is no
doubt about the place of occurrence also.
Merely because the name of Raj Nath
(P.W.-2) is not mentioned in the first
information report as an eye witness and
that Ram Dular (P.W.-3) is the cousin of
the deceased, their testimony cannot be
discarded. It is established from the oral
statement that these witnesses resides in the
vicinity, so their presence on the spot is
natural. It is settled principle of law that the
testimony of the witness cannot be
discarded
merely
because
he
is
an
interested or inimical. If the oral testimony
of the witness inspires confidence and is
otherwise trustworthy, his oral statement
can be relied.

19. In Bhagwan Jagannath Markad
vs State of Maharashtra (2016) 10 SCC
537, it has been held that:

"Generally,
contradictions,
inconsistencies,
exaggerations
and
embellishments are seen in the oral
testimony of witness. If there are no
material contradictions in the testimony of
a
witness,
his
evidence
cannot
be
disbelieved merely on the basis of some
normal, natural or minor contradictions,
inconsistencies,
exaggerations
or
9 All. Kare Deen & Ors. Vs. State of U.P.
1415
embellishments etc. Minor contradictions
in the testimony of prosecution witnesses
are bound to be there and in fact they go to
support the trustfulness of the witness."

20. The motive of the incident stands
proved, the accused have also admitted the
fact of old enmity between the parties. In
this case, there is no circumstance which
establishes that the accused have been
falsely implicated due to old enmity. The
defence case that the deceased fell down
while laying roof and suffered injuries is
highly improbable and unacceptable. The
medical evidence fully establishes that the
injuries suffered by Ram Raj- the deceased
cannot be an outcome of fall from the roof.
These injuries can only be caused by
assault with lathi- danda, fists & kicks. Dr.
R.N. Srivastava (P.W.-5) in his crossexamination has only stated that injury no.1
& 2 may come from fall. From the medico
legal report, it is established that apart from
injury nos.1 & 2 Ram Raj has suffered four
other injuries on different parts of his body.
The defence has not put any suggestion that
all the injuries of Ram Raj may come by a
fall from the roof. There is no explanation
from the defence of the injuries sustained
by Shesh Mani (the complainant). As two
persons suffered injuries in the incident, the
defence
version
that
Ram Raj
(the
deceased) has suffered injuries by falling
from the roof fails and cannot be accepted.
So from the analysis of the evidence on
record, it is clear that the prosecution
evidence is cogent and reliable. From the
prosecution evidence, it is fully established
that accused appellants have assaulted the
complainant- Shesh Mani and when his
father Ram Raj- the deceased came to
rescue him, they also assaulted him with
lathi-danda, fists & kicks. Both Shesh Mani
and Ram Raj suffered injuries in the
incident, Ram Raj became unconscious, he
was taken to the hospital and during the
course of treatment, he died in the hospital
due to injuries suffered by him.

21. In this case, charge-sheet was
submitted under section 304, 323, 504 and
506 IPC. Learned trial court has framed
charges under section 302 read with section
34 IPC and Section 323 read with section
34 IPC. Learned trial court has held the
appellants-accused guilty for the charges
framed by it. Now the question is what
offence has been committed and as to what
charges are proved against the accused
persons.

22. From the facts of the present case,
it is clear that the incident has occurred all
of a sudden in the heat of the moment. The
incident was not pre-planned, no deadly
weapon has been used. So there was no
common intention to commit murder of
Ram Raj. The common intention was only
to cause injjury. Neither in the FIR nor in
the statements of witnesses any specific
role has been assigned to any of the
accused causing head injury to the Ram Raj
(the deceased). So it is uncertain that which
of the accused caused head injury to the
Ram Raj (the deceased) which resulted in
his death. The Apex Court in the paragraph
nos.23 & 24 of the case of Richhpal Singh
Meena vs. Ghasi alias Ghisa and ors,
(supra) has referred the case of Ninaji
Raoji Boudha vs. State of Maharashtra
(1976) 2 SCC 117 which is quoted below:

"23. In Ninaji Raoji Boudha vs.
State of Maharashtra two persons (Ninaji
and Raoji) were convicted by the Trial
Court for an offence punishable under
Sections 325 and 147 of the IPC and
sentenced to five years imprisonment. This
was despite the fact that the injuries caused
by them on Bhonaji had resulted in his
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
death. In an appeal filed by the State, the
High Court convicted them for offences
punishable under Section 302/34 of the IPC
for causing the death of Bhonaji.

24. Ninaji and Raoji appealed to
this Court and it was held that they had given
several blows to Bhonaji and one of them
was "a forceful blow on the head which
caused a depressed fracture and fissures all
over" resulting in his death. This Court noted
that from the evidence on record: (a) it could
not be established who had given that
forceful blow; (b) the evidence established
that Ninaji and Raoji did not have a common
intention of causing the death of Bhonaji but
there was a common intention of causing him
grievous injury. Consequently, due to the
lack of any conclusive or specific (1976) 2
SCC 117 evidence of who was responsible
for the homicide and the absence of a
common intention, Ninaji and Raoji were
acquitted of the offence of murder but were
convicted of an offence punishable under
Section 302/34 of the IPC and sentenced to
five years imprisonment. It appears to us that
the principle applied by this Court, though
not so stated, is to be found in Section 72 of
the IPC which reads as follows:

"72. Punishment of person guilty
of one of several offences, the judgment
stating that it is doubtful of which.--In all
cases in which judgment is given that a
person is guilty of one of several offences
specified in the judgment, but that it is
doubtful of which of these offences he is
guilty, the offender shall be punished for
the
offence
for
which
the
lowest
punishment is provided if the same
punishment is not provided for all." "

23. The Apex Court has also referred
the
case
of
Ram
Lal
vs.
Delhi
Administration, 1972 SC 2462 in para
no.25 & 26, which is quoted below:

"25. Similarly, the principle laid
down in Section 72 of the IPC appears to
have been invoked in Ram Lal vs. Delhi
Administration in which four persons
(including Ram Lal) were accused of
having murdered Har Lal. The Trial Court
acquitted one of them but convicted the
others, including Ram Lal for an offence
punishable under Section302/34 of the IPC.
In appeal, the High Court upheld the
conviction of Ram Lal for an offence
punishable under Section 302 of the IPC,
while the other two were convicted under
Section 325/34 of the IPC.

26. In appeal before this Court,
the question was whether Ram Lal could
have been convicted for an offence
punishable under Section 302 o f the IPC.
It was held (by a three-Judge Bench) that
the High Court had erroneously concluded
that the deceased received only one injury
on the head. In fact, he had suffered two
injuries on the head. Additionally, it was
found that the High Court also held that
Ram Lal had given only one blow with a
stick to Har Lal on the head. On these
facts, it could not be said with any degree
of certainty whether the blow delivered by
Ram Lal proved fatal or the blow given by
him did not prove fatal. In the absence of
any clear identification of the blow given
by Ram Lal, he was entitled to a benefit of
doubt.
However,
since
the
common
intention of the three assailants was to
cause a grievous injury to Har Lal,
therefore Ram Lal was liable for conviction
under Section 325/34 of the IPC apparently
applying the principle laid down in Section
72 of the IPC. Accordingly, he was
sentenced to five years imprisonment. "
9 All. Hanna & Ors. Vs. State of U.P.
1417

24. From the evidence on record, it is
established that the appellants-accused
assaulted Shesh Mani and Ram Raj with
lathi-danda, fists & kicks. Two blows on
the head caused internal head injury and
clotting of blood which proved fatal. From
the evidence on record, it is not established
which accused caused the head injury. The
evidence establishes that the incident was
not pre-planned, it occurred all of a sudden
and there was no common intention to
cause death of Ram Raj. There was a
common intention of causing him injuries
and the nature of injuries suffered by Ram
Raj the deceased is covered by Section 320
(8) of IPC. So applying the principles of
law laid down by the Apex Court in the
case of Ninaji Raoji Boudha vs. State of
Maharashtra (Supra) and Ram Lal vs. Delhi
Administration (Supra), the appellants
accused cannot be convicted for the offence
under Section 302/34 IPC. They can be
convicted only for the offence under
section 325/34 IPC and Section 323/34
IPC.

Conclusion

25. From the above discussion, it is
clear that the learned trial court has
overlooked the facts and evidence that the
incident was not a pre-planned one. There
was no common intention to commit the
murder of Ram Raj. The incident occurred
suddenly
and
the
accused-appellants
assaulted Shesh Mani and Ram Raj only
with intention of causing injuries to them.
It is also not established from the evidence
that which of the accused has caused head
injury to Ram Raj which proved fatal. So
the appellants accused could not have been
convicted for offence under section 302/34
IPC. The finding of trial court in this
respect is erroneous. The trial court has
committed error in convicting the accused
for the offence under section 302/34 IPC
and sentencing them to imprisonment for
life. This part of the finding of trial court is
liable to be modified with the finding that
accused-appellants are guilty for the
offence under section 325/34 IPC.

They are liable to be sentenced
with imprisonment of 5 years and fine of
Rs.25,000/- each for the offence under
section 325/34 IPC. In default of payment
of fine, each of the appellants-accused will
have to serve simple imprisonment of six
months. Half of the amount of fine if
deposited shall be paid to the complainant-
Shesh Mani.

26. The appeal is partly allowed to the
above extent. The accused-appellants are
on bail. Their bail bonds and sureties bonds
are canceled and sureties are discharged,
they shall surrender before the court below
within two weeks failing which the court
concerned will take necessary action for
ensuring the compliance.

27. The lower court record along with
copy of the judgment shall be transmitted
immediately to the court below.
----------
(2022) 9 ILRA 1417
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2022

BEFORE

THE HON'BLE MANOJ MISRA , J.
THE HON'BLE SYED AFATB HUSAIN RIZVI, J.

Criminal Appeal No. 57 of 2008