# Kehari & Ors. (In Jail) v. State of U.P

- **Citation:** (2022) 8 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-05
- **Case number:** Criminal Appeal No. 1197 of 1984
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kehari-ors-in-jail-v-state-of-u-p-48738
- **Pages:** 6

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section
307/34-Injured
sustained
six
pellet injuries-Injury No. 4 reported by
Doctor to be fatal, as it was on vital part
i.e. abdomen, however he further opined
that there was no internal organ damageTo bring home the charges under section
307 I.P.C., the crime is to be committed
with an intention or knowledge and under
such circumstances that, if a death is
caused, the accused will be guilty of
murder, but in this case, the prosecution
as per it's own admitted case in view of
the statements of P.W.-1 and P.W.-2 could
not prove that accused persons had any
such intent to commit murder of the
injured Ramesh, neither it has been
proved that they had knowledge in the
given circumstances that by such act of
the accused, the death of the injured
would have been caused. However, the
fact that there is eyewitness testimony
regarding the incident, the presence of the
accused is admitted and the injury report
have been proved.

Where the prosecution fails to establish that the
accused had either the intention to commit the
murder of the injured or the knowledge that his
act will cause the death of the injured, then the
accused cannot be convicted under Section 307
of the IPC.

Indian Penal Code, 1860- Sections 307 &
324- Evidence adduced by the prosecution
has not been established beyond doubt,
that
the
offence
committed
by
the
appellants falls under section 307 I.P.C.
rather in my opinion and considering the
nature of the injuries, it amounts to an
offence under section 324 I.P.C. So far as
the injuries are concerned there is nothing
on record to show that these injuries
could be fatal for the injured or the
injuries were caused by these injured
persons with the intention to kill the
injured. The conviction under section 307
read with 34 I.P.C. is unsustainable,
however the appellants in view of the
8 All. Kehari & Ors. Vs. State of U.P.
19
evidence on record are liable to be
convicted for the offence under section
324 I.P.C.

As evidently, the injuries are neither fatal in
nature and nor the accused had any intention to
commit the murder of the injured, hence the
offence will fall under the purview of Section
324 IPC instead of Section 307 IPC.

Probation of Offenders Act, 1958 - Section 4
- Code of Criminal Procedure, 1973- Section
360 - Considering the fact that appellant no.
3 has died and appellant no. 1 is 75 years
old and appellant no. 2 is 80 years old and
the appeal is of the year 1984 and so also
the fact that the appellants are first
offender,
hence,
benefit
of
section
4
Probation of Offender Act can be given to
the appellant Nos. 1 and 2.

Since the appellants have been found to have
committed the offence punishable under Section
324/34 of the IPC, and the same is their first
offence as well as in view of the fact that the
appellants are now advanced in age ,the
appellants deserve the benefit of Section 4 of
the Probation of Offenders Act as well as that of
Section 360 of the Cr.P.C. (Para 16, 17, 20, 21,
24, 26)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

18 INDIAN LAW REPORTS ALLAHABAD SERIES
Order in Appeal.

1. The appeal is accordingly partly
allowed
and
partly
rejected.
The
punishment and sentence awarded by the
Lower Court under Section 363, 366 IPC is
maintained.

2. The conviction under Section 376D
IPC and Section 6 POCSO Act is modified
under Section 376 IPC and Section 4 of the
POCSO Act and is awarded seven years
rigorous imprisonment and fine of Rs.
50,000/-. In case of non-payment of fine
under Section 376 and Section 4 of the
POCSO Act, the accused-appellant shall
undergo one year additional rigorous
imprisonment. The fine imposed as above
shall be given to the victim as amount of
compensation. As the accused-appellant is
already
in
jail
the
period
of
his
incarceration in jail shall be adjusted as per
rules.
All
the
sentences
shall
run
concurrently.

3. The Registry to return the lower
court record along with the copy of this
order.
----------
(2022) 8 ILRA 18
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 1197 of 1984

Kehari & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri K.S. Chauhan, Sri Kunwar Bhadur Dixit,
Sri Anurag Shukla
Counsel for the Respondent:
A.G.A.

Criminal Law- Indian Penal Code, 1860-
Section
307/34-Injured
sustained
six
pellet injuries-Injury No. 4 reported by
Doctor to be fatal, as it was on vital part
i.e. abdomen, however he further opined
that there was no internal organ damageTo bring home the charges under section
307 I.P.C., the crime is to be committed
with an intention or knowledge and under
such circumstances that, if a death is
caused, the accused will be guilty of
murder, but in this case, the prosecution
as per it's own admitted case in view of
the statements of P.W.-1 and P.W.-2 could
not prove that accused persons had any
such intent to commit murder of the
injured Ramesh, neither it has been
proved that they had knowledge in the
given circumstances that by such act of
the accused, the death of the injured
would have been caused. However, the
fact that there is eyewitness testimony
regarding the incident, the presence of the
accused is admitted and the injury report
have been proved.

Where the prosecution fails to establish that the
accused had either the intention to commit the
murder of the injured or the knowledge that his
act will cause the death of the injured, then the
accused cannot be convicted under Section 307
of the IPC.

Indian Penal Code, 1860- Sections 307 &
324- Evidence adduced by the prosecution
has not been established beyond doubt,
that
the
offence
committed
by
the
appellants falls under section 307 I.P.C.
rather in my opinion and considering the
nature of the injuries, it amounts to an
offence under section 324 I.P.C. So far as
the injuries are concerned there is nothing
on record to show that these injuries
could be fatal for the injured or the
injuries were caused by these injured
persons with the intention to kill the
injured. The conviction under section 307
read with 34 I.P.C. is unsustainable,
however the appellants in view of the
8 All. Kehari & Ors. Vs. State of U.P.
19
evidence on record are liable to be
convicted for the offence under section
324 I.P.C.

As evidently, the injuries are neither fatal in
nature and nor the accused had any intention to
commit the murder of the injured, hence the
offence will fall under the purview of Section
324 IPC instead of Section 307 IPC.

Probation of Offenders Act, 1958 - Section 4
- Code of Criminal Procedure, 1973- Section
360 - Considering the fact that appellant no.
3 has died and appellant no. 1 is 75 years
old and appellant no. 2 is 80 years old and
the appeal is of the year 1984 and so also
the fact that the appellants are first
offender,
hence,
benefit
of
section
4
Probation of Offender Act can be given to
the appellant Nos. 1 and 2.

Since the appellants have been found to have
committed the offence punishable under Section
324/34 of the IPC, and the same is their first
offence as well as in view of the fact that the
appellants are now advanced in age ,the
appellants deserve the benefit of Section 4 of
the Probation of Offenders Act as well as that of
Section 360 of the Cr.P.C. (Para 16, 17, 20, 21,
24, 26)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

1. Sarju Prasad Vs St. of Bih, AIR 1965 SC 843

2. Ramesh Vs St. of U. P.,AIR 1992 SC 664

3. Merambhai Punjabhai Khachar & ors Vs St. of
Guj.,AIR 1996 SC 3236

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Shri Anurag Shukla,
Advocate holding brief of Shri Kunwar
Bhadur Dixit, learned counsel for the
appellant, Shri V.K. Singh Parmar, learned
AGA for the State and perused the record.

2. Appeal with respect to appellant no.
3 has already been dismissed as abated vide
order dated 13.11.2018.

3. This appeal has been field by the
appellants Kehari and Hori Lal against the
judgement and order dated 29.03.1984
passed by VI Additional Sessions Judge,
Mainpuri, whereby the appellants have
been convicted under section 307 read with
34 I.P.C. and have been sentenced to
undergo 3 years rigorous imprisonment.

4. The prosecution story in brief is
that on 05th December, 1980 at around 3
p.m., informant and his real brother
Ramesh alongwith Mohan Lal resident of
village Baroli, Kanuji Singh resident of
Hamlet Baley Khet and Layik Singh of the
village went towards the field at Nagla
Swamy for cutting the mustard crop. A
litigation between Mohan Lal and accused
persons Badan and Hori Lal was pending
with regard to the mustard field. On the
field, accused Hori Lal, Kehari and Tulsi
Ram were present, who were armed with
the illegal weapon, they exhorted Mohan
Lal, who was with the informant and said
that ''today the case will be decided and
your gang will be finished'. Accused Hori
Lal, Kehari and Tulsi Ram who were armed
with the country made pistol and pauniya
(another form of country made pistol), with
the
intent
to
commit murder
made
indiscriminate firing, which resulted fire
arm injury to brother Ramesh on his
abdomen and left arm, who felt on the spot
and somehow the informant and Mohan Lal
were saved by the pellets. On hue and cry
Ram Singh resident of Nagla Swami, Uma
Shanker resident of Rustam Pur etc. came
running with exhortation to the accused, on
this, the accused persons ran away from the
place of occurrence. Due to the serious
condition of the brother Ramesh, he was
20 INDIAN LAW REPORTS ALLAHABAD SERIES
got admitted in the District Hospital
Mainpuri.

5. A written report regarding the
incident was given by the informant which
is Ext.-Ka-1. Consequently, a chik F.I.R. in
Case Crime No. 252 of 1980, under section
307 I.P.C. was registered. The chik F.I.R. is
Ext. Ka-5. The injury report of the injured
Ramesh is Ext.-Ka-6. The Investigating
Officer after conducting the investigation
and taking statement, submitted chargesheet, which is Ext.-Ka-4. After committal
charges were framed by the learned
Sessions Judge vide order dated 21.08.1982
and the accused persons were charged
under section 307 read with 34 I.P.C.

6. To bring home the charges the
prosecution has examined P.W.-1 Suresh
Chandra, brother of the injured, P.W.-2
Mohan Lal, eyewitness, P.W.-3 S.I. Sri
Ameer Ulla, Investigating Officer and
P.W.-4 Dr. S.C. Dubey, Medical Officer
who examined the injuries of the injured.

7. Learned counsel for the appellants
submits that cross case were lodged by both
the sides. Appellants side have also been
injured. The prosecution has not been able
to prove it's case beyond reasonable doubt,
in as much as the accused with intent to
commit murder had fired on the injured. He
further submits that injured has not been
examined by the prosecution.

8. Per-contra, learned AGA has
opposed and he has submitted that the
presence of the accused is admitted in view
of
the
cross
version of
the F.I.R.
Prosecution has successfully examined the
eyewitnesses P.W.-1 and P.W.-2 to show the
complicity of the accused persons. As per
the opinion of Dr. S.C. Dubey, the injury
no. 4 was fatal which came to the accused.

9. Learned counsel for the appellants
has further submitted that appeal is of the
year 1984 and appellant no. 3 has already
died, appellant no. 1 Hori Lal is 75 years
old and appellant no. 2 Kehari is 80 years
old, they do not have any criminal
antecedents. Learned counsel for the
appellants fairly submits that if the
statement of the P.W.-1 and P.W.-2 who are
only eyewitness of the prosecution, are
considered, both eye witnesses have clearly
stated that while they arrived at the field of
Ram Sanehi, the accused persons armed
with country made pistols fired at Mohan
Lal P.W.-2, however, the shot came on the
Ramesh the injured. The statement of P.W.-
1 and P.W.-2 demolishes the prosecution
case.

10. So far as section 307 I.P.C. is
concerned, as per the admitted case of the
prosecution in view of the statement given
by P.W.-1 and P.W.-2 there was no intention
to commit murder of the injured Ramesh,
who has not been examined. The shot was
fired rather on P.W.-2 and not on the
injured and he accidentally got injured as
he was infront of P.W.-2.

11. Perusal of the statement of P.W.-1
Suresh Chandra shows that he and injured
Ramesh going to their field alongwith them
Mohan Lal P.W.-2 was also there and as
soon they reached to the field of
Ramsanehi, then accused Hori Lal, Tulsi
and Kehari came, who were armed with
country made pistol and they shot on
Mohan Lal, however the shot came to
Ramesh and he received pellet injuries in
his abdomen, leg and hand. General role of
assault by fire arm has been attributed by
P.W.-1 to all of the accused persons .

12. P.W.-2 Mohan Lal, though has
made out statement in as much as he
8 All. Kehari & Ors. Vs. State of U.P.
21
assigned specific weapon to each of the
accused persons. He assigned Pauniya to
Hori Lal and Tulsi Ram and Tamancha to
Kehari. However, he also made the same
statement which has been made by P.W.-1
to the extent that accused persons fired on
P.W.-2 Mohan Lal with intent to kill him,
however the pellet did not came to P.W.-2
rather Ramesh was shot.

13. P.W.-4 Dr. S.C. Dubey had examined
the injured, who sustained 6 injuries and out of
6 injuries, injury nos. 1 and 6 were pellet
injuries. He opined that injuries would have
came from the fire arm. He further opined that
abrasion could have come from the pellets. He
opined that injury no. 4 was fatal, as it was on
vital part i.e. abdomen, however he further
opined that there was no internal organ
damage.

14. P.W.-3 the Investigating Officer was
also examined before the trial court who had
taken the blood stained cloths of the injured
and prepared the recovery memo. He also
proved the Ext.- Ka-5 chik F.I.R. He has
prepared the site plan.

15. In view of the statements of P.W.-1
and P.W.-2, it is clear that the intention to
commit murder was of P.W.-2 and not to the
injured Ramesh. The testimony of P.W. 1 and
P.W.-2 further shows that there was no motive
for the accused who have committed this
crime. The presence of the accused is admitted
at the place of occurrence. In view of the cross
F.I.R. lodged by one Badan Singh father of the
accused which is exhibited as Ext. Kha-5.

16. To bring home the charges under
section 307 I.P.C., the crime is to be
committed with an intention or knowledge
and under such circumstances that, if a
death is caused, the accused will be guilty
of murder, but in this case, the prosecution
as per it's own admitted case in view of the
statements of P.W.-1 and P.W.-2 could not
prove that accused persons had any such
intent to commit murder of the injured
Ramesh, neither it has been proved that
they
had
knowledge
in
the
given
circumstances that by such act of the
accused, the death of the injured would
have been caused. However, the fact that
there is eyewitness testimony regarding the
incident, the presence of the accused is
admitted and the injury report have been
proved.

17. I am of the view that evidence
adduced by the prosecution has not been
established beyond doubt, that the offence
committed by the appellants falls under
section 307 I.P.C. rather in my opinion and
considering the nature of the injuries, it
amounts to an offence under section 324
I.P.C. as the Supreme Court in the case of
Sarju Prasad Vs. State of Bihar : AIR
1965 SC 843 has held as under:-

"In this state of the evidence we
must hold that the prosecution has not
established that the offence committed by
the appellant falls squarely under Section
307, I. P. C. In our opinion, it amounts only
to an offence under Section 324, I. P. C".

18. In the case of Ramesh Vs. State
of U. P. : AIR 1992 SC Page 664, where a
single injury was found on the back of the
injured, the appeal of accused-appellants
who was tried along with two others was
convicted u/s 307/34 IPC and sentenced to
undergo rigorous imprisonment for four
years, while the two others were acquitted,
was partly allowed by the Apex Court. His
conviction was altered into section 324 IPC
and the sentence was reduced to the period
already undergone with fine of Rs. 3000/-,
which was to be paid to the complainant as
compensation.
22 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In the case of Merambhai
Punjabhai Khachar and others Vs. State
of Gujarat : AIR 1996 SC Page 3236,
there was an attempt to commit murder by
fire arm and a pellet hit the victim,
however, the Apex Court held that Section
307 IPC cannot be held to have

20. So far as the injuries are concerned
there is nothing on record to show that these
injuries could be fatal for the injured or the
injuries were caused by these injured persons
with the intention to kill the injured. The
conviction under section 307 read with 34
I.P.C.
is
unsustainable,
however
the
appellants in view of the evidence on record
are liable to be convicted for the offence
under section 324 I.P.C.

21. Considering the fact that appellant
no. 3 has died and appellant no. 1 is 75
years old and appellant no. 2 is 80 years old
and the appeal is of the year 1984 and so
also the fact that the appellants are first
offender, hence, benefit of section 4
Probation of Offender Act can be given to
the appellant Nos. 1 and 2.

22. Learned AGA, on the other hand,
does not dispute the fact that the appellant
nos. 1 & 2 are the first offender but he
vehemently submitted that if the benefit of
Section 4 of the Probation of Offenders Act
be given to the appellant nos.1 & 2, some
restrictions may be provided so that
appellant nos. 1 & 2 may not repeat such a
crime in future.

23. As to whether the appellants are
entitled to get the benefit of Section 4 of
the Probation of Offenders Act or not, I
deem it appropriate to reproduce Section 4
of the Probation of Offenders Act, which
reads as under:-

"4. Power of court to release
certain offenders on probation of good
conduct.-(1) When any person is found
guilty of having committed an offence not
punishable with death or imprisonment for
life and the court by which the person is
found guilty is of opinion that, having
regard to the circumstances of the case
including the nature of the offence and the
character of the offender, it is expedient to
release him on probation of good conduct,
then, notwithstanding anything contained
in any other law for the time being in force,
the court may, instead of sentencing him at
once to any punishment direct that he be
released on his entering into a bond, with
or without sureties, to appear and receive
sentence when called upon during such
period, not exceeding three years, as the
court may direct, and in the meantime to
keep the peace and be of good behaviour:

Provided that the court shall not
direct such release of an offender unless it
is satisfied that the offender or his surety, if
any, has a fixed place of abode or regular
occupation in the place over which the
court exercises jurisdiction or in which the
offender is likely to live during the period
for which he enters into the bond.

(2)Before
making
any
order
under sub-section (1), the court shall take
into consideration the report, if any, of the
probation officer concerned in relation to
the case.

(3) When an order under subsection (1) is made, the court may, if it is of
opinion that in the interests of the offender
and of the public it is expedient so to do, in
addition pass a supervision order directing
that the offender shall remain under the
supervision of a probation officer named in
the order during such period, not being less
than one year, as may be specified therein,
and may in such supervision order, impose
8 All. Vinod Vs. State of U.P.
23
such conditions as it deems necessary for
the due supervision of the offender.

(4)
The
court
making
a
supervision order under sub-section (3)
shall require the offender, before he is
released, to enter into a bond, with or
without sureties, to observe the conditions
specified in such order and such additional
conditions with respect to residence,
abstention from intoxicants or any other
matter as the court may, having regard to
the particular circumstances, consider fit to
impose for preventing a repetition of the
same offence or a commission of other
offences by the offender.

(5)
The
court
making
a
supervision order under sub-section (3)
shall explain to the offender the terms and
conditions of the order and shall forthwith
furnish one copy of the supervision order to
each of the offenders, the sureties, if any,
and the probation officer concerned.

24. It is relevant to mention here that
Section 360 Cr.P.C. also confers the powers
on the Court to release the accused on
probation for good conduct or after
admonition.

25. For the reasons aforesaid, the
appeal filed by the appellant no.1. Kehari
and appellant no. 2. Hori Lal is partly
allowed.

26. The conviction of appellant no. 1,
namely, Kehari and appellant no. 2 Hori
Lal under Section 307 read with Section 34
IPC and sentence awarded to them is set
aside. However, both the appellants are
found guilty for the offence punishable
under Section 324 read with Section 34 IPC
and are convicted thereunder. They shall
get benefit of Section 4 of Probation of
Offenders Act. They shall file two bonds to
the tune of Rs.20,000/- each coupled with
personal bonds to the effect that they shall
not commit any offence and shall be of
good behaviour and shall maintain peace
during the period of one year. If they are in
breach of any of the conditions, they shall
subject himself to undergo one year
rigorous
imprisonment.
The
bonds
aforesaid
shall
be
filed
by
the
accused/appellant nos.1 and 2 within two
months from the date of judgement. The
time for submitting the bail bonds shall not
be extended on any ground whatsoever.

27. Let a copy of this judgment along
with original lower Court record be sent to
the
Court
concerned
for
compliance
forthwith.
----------
(2022) 8 ILRA 23
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2022

BEFORE

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

Criminal Appeal No. 4904 of 2014

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

Counsel for the Appellant:
Sri Chandrabhan Kushwaha, Sri Mahendra
Pal Singh Gaur, Pradeep Kumar, Ms. Gunjan
Sharma

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Penal Code, 1860-
Sections 304B & 498-A- Dowry Prohibition
Act,1961
-
Section
4-
Conviction-
Sentence of Life Imprisonment- Appeal
pressed only on the Quantum of Sentence-