# Krishna Kumar & Ors v. State of U.P

- **Citation:** (2023) 6 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-25
- **Case number:** Criminal Appeal No. 8093 of 2008
- **Bench:** Siddhartha Varma, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-ors-v-state-of-u-p-50453
- **Pages:** 8

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 302, 323 & 149 -
Punishment for murder - Code of Criminal
Procedure, 1973 - Section 313 - Appeal
against conviction - Life imprisonment -
As per FIR accused was taunting the sister
of first informant - Informant and his
brother (deceased) enquired this from
accused and his mother - At the same
time, male family members of accused
came there with lathis in their hands - The
mother of accused also hit them by
804 INDIAN LAW REPORTS ALLAHABAD SERIES
opposite
side
of
sickle
-
After
investigation,
charges
framed
-
Two
accused were declared juvenile and JJB
had acquitted them - Plea of sudden
provocation - Held, the St.ment of PW-1
clearly indicate that other co-accused
were not at spot and they had rushed
because of shouting, as a result of
questioning by first informant - If there
was any premeditated crime then sickle
could have been used from sharper side -
It was because of one of blows by
accused, deceased had fallen down, he hit
himself with some hard object, caused
injuries, ultimately led to his death -
Incident was not pre-planned, happened
all of a sudden and no common intention
to kill deceased - Conviction set aside,
directions accordingly. (Para 3, 4, 5, 13,
14)

Criminal Appeal partly allowed. (E-13)

List of Cases cited:

Surain Singh Vs St. of Pun. reported in (2017) 5
SCC 796

## Text

6 All. Krishna Kumar & Ors. Vs. State of U.P.
803
appellant (Dileep) and the Trial Court
committed an error in holding accusedappellant guilty under Section 302 IPC
ignoring the missing links / chain of
circumstantial evidence.

44. In view of aforesaid discussion
and legal propositions as well as main coaccused (Mukesh @ Murari) has already
been acquitted by a co-ordinate Bench of
this Court, on the similar evidence, present
jail appeal is hereby allowed. Impugned
judgment and order dated 30.11.2016
passed by learned Additional District and
Sessions Judge, Court No.2, Kannauj in
Session Trial No.363 of 2010, (State v.
Dileep and others), arising out of Case
Crime No. 1020 of 2008, Police Station
Kannauj, District Kannauj, under Sections
302 IPC is set aside.

45. Accused-appellant is acquitted of
charged levelled against him. He shall be
released forthwith, if not wanted in any
other crime.

46. Keeping in view provisions of
Section 437-A Cr.P.C., appellant is
directed to furnish a personal bond and
two sureties before Trial Court to its
satisfaction, which shall be effective for a
period of six months, along with an
undertaking that in event of filing of
Special Leave Petition against instant
judgment or for grant of leave, appellant
on receipt of notice thereof shall appear
before Hon'ble Supreme Court.

47. Lower Court record along-with a
copy of this judgment be sent back
immediately to District Court concerned
and also copy of this judgment be sent to
Superintendent Jail concerned through
District Judge concerned for immediate
compliance and further necessary action.

48. Before parting, we provide that
Ms. Shweta Singh Rana, Advocate, who
has appeared as Amicus Curiae for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 10,000/-. State
Government is directed to ensure payment
of aforesaid fee through Additional Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without
any delay and, in any case, within one
month from the date of receipt of copy of
this judgment.
----------
(2023) 6 ILRA 803
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 8093 of 2008

Krishna Kumar & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri I.K. Chaturvedi (Sr. Adv.), Sri Saurabh
Chaturvedi

Counsel for the Opposite Party:
G.A., Sri Hari Bans Singh, Sri Dharm Jeet
Singh

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 302, 323 & 149 -
Punishment for murder - Code of Criminal
Procedure, 1973 - Section 313 - Appeal
against conviction - Life imprisonment -
As per FIR accused was taunting the sister
of first informant - Informant and his
brother (deceased) enquired this from
accused and his mother - At the same
time, male family members of accused
came there with lathis in their hands - The
mother of accused also hit them by
804 INDIAN LAW REPORTS ALLAHABAD SERIES
opposite
side
of
sickle
-
After
investigation,
charges
framed
-
Two
accused were declared juvenile and JJB
had acquitted them - Plea of sudden
provocation - Held, the St.ment of PW-1
clearly indicate that other co-accused
were not at spot and they had rushed
because of shouting, as a result of
questioning by first informant - If there
was any premeditated crime then sickle
could have been used from sharper side -
It was because of one of blows by
accused, deceased had fallen down, he hit
himself with some hard object, caused
injuries, ultimately led to his death -
Incident was not pre-planned, happened
all of a sudden and no common intention
to kill deceased - Conviction set aside,
directions accordingly. (Para 3, 4, 5, 13,
14)

Criminal Appeal partly allowed. (E-13)

List of Cases cited:

Surain Singh Vs St. of Pun. reported in (2017) 5
SCC 796

(Delivered by Hon'ble Hon'ble Manish
Kumar Nigam, J.)

1. This appeal has been filed
challenging the judgment and order dated
22.11.2008
passed
by
the
learned
Additional Sessions Judge, Varanasi by
which the appellants Krishna Kumar,
Hirawati and Lalman had been awarded life
imprisonment in Sessions Trial No.291 of
2022 arising out of Case Crime No.167 of
2000 under sections 147, 148, 302, 323 and
149 of Indian Penal Code and the
appellant-Ram Achal had been awarded life
imprisonment in Sessions Trial No.291-A
of 2002 arising out of Case Crime No.167
of 2000 under sections 147, 148, 149, 302
and 323 of Indian Penal Code.

2. Upon an incident having taken
place on 15.9.2000 at around 4.00 PM, the
first informant namely Dinesh Kumar
Yadav lodged a First Information Report
on the very same day at around 23.05 PM.

3. As per the prosecution case, which
can be gleaned out from the First
Information Report, the first informant,
aggrieved by the death of his brother
Ramesh, had lodged the First Information
Report. The First Information Report had
stated that Shiv Kumar Yadav son of
Lalman Yadav was taunting his sister
Saroja and upon hearing the taunt, Dinesh
Kumar-the first informant and Ramesh-the
deceased, ran up to Shiv Kumar Yadav
where his mother Smt. Hirawati was also
there and they asked Shiv Kumar Yadav
and Hirawati (the mother) as to why they
were taunting. It is the further case of first
informant that as a result of their
questioning as to why the taunting was
being made, the male members of the
family of Shiv Kumar namely Lalman
Yadav, Kamlesh Yadav, Krishna Imar
Yadav and Ram Achal Yadav came there
with lathis in their hands. Hirawati the
mother of the accused who herself was
made an accused in the FIR, was having a
Hasiya in her hands. It has further been
stated in the FIR that the deceased Ramesh
and the first informant Dinesh Kumar were
beaten with lathis and Hasiya and because
of the beating, Ramesh fell on the ground
and became unconscious. It has also been
stated that even Dinesh Kumar (the first
informant) was given a beating. Thereafter
Dinesh along with his mother and father
took Ramesh in an auto-rickshaw to the
Government Hospital where the doctors at
Government Hospital referred Ramesh to
Kabir Chaura Hospital and since Kabir
Chaura Hospital was also unable to treat
Ramesh, it referred Ramesh to BHU for
further treatment where at 8.40 PM, it has
been alleged, Ramesh died and, therefore,
6 All. Krishna Kumar & Ors. Vs. State of U.P.
805
the First Information Report was lodged.
The lodging of the FIR resulted in Case
Crime No.167 of 2000 and thereafter
investigation had followed.

4. Upon the investigation having been
done, charges were framed and were
submitted to the Sessions Court which after
framing charges tried the accused Krishna
Kumar, Hirawati and Lalman in Sessions
Trial No.291 of 2002 and Ram Achal in
Sessions Trial No.291-A of 2002. Both the
Sessions Trials were tried together and
when by the judgment and order dated
21.11.2008 the accused were found guilty
under sections 147 and 302 read with
section 149 IPC and section 323 read with
section 149 IPC, the instant appeal has
been filed by the accused Krishna Kumar,
Smt. Hirawati, Lalman and Ram Achal.

5. Two accused namely Shiv Kumar
and Kamlesh Kumar were declared juvenile
and it has been stated by learned counsel
for the appellants that Juvenile Justice
Board,
Varanasi
on
25.11.2021
had
acquitted them.

6. At the trial stage, the first
informant Dinesh Kumar Yadav gave his
statement in chief and was also crossexamined as PW-1. Smt. Phoolpatti, the
mother of the deceased and the first
informant had come into the witness box as
PW-2. Dr. B.K. Dubey who had examined
the injuries on the body of Dinesh Kumar
Yadav, was examined as PW-3. Dr. D.K.
Singh,
the
incharge
doctor
of
the
Government Hospital, Phoolpur, Varanasi,
who had examined the injuries of Ramesh
(deceased) at the Government Hospital and
had also examined the injuries on the body
of Smt. Geeta, was examined as PW-4. Dr.
R.A. Singh, Surgeon, District Hospital
Jaunpur was examined as PW-5 and he has
proven the post-mortem of the deceased
Ramesh. PW-6 Constable Ram Awadh
Yadav; PW-7 Ram Kumar Chaudhary and
PW-8 Sub-Inspector Bharat Dayal Singh
were examined as formal witnesses who
had done the investigation. Lalman who
was an accused was brought in as a Court
Witness. After the prosecution witnesses
were examined, the accused gave their
statements under section 313 Cr.P.C. and
claimed innocence.

7. The PW-1 Dinesh Kumar Yadav
has stated that because of the taunt which
was there viz.-a-viz. his sister Saroja from
Shiv Kumar and because of the verbal
altercation he i.e. Dinesh Kumar Yadav had
reached the spot where his sister Saroja was
grazing the cattle. When he reached there,
Hirawati with her Hasiya (sickle) in her
hand also reached the spot. Similarly, while
verbal
altercation
continued
between
Dinesh Kumar Yadav (first informant) and
Shiv Kumar, the other accused namely
Krishna Kumar, Lalman, Ram Achal and
Kamlesh with lathis and dandas reached the
spot and started hitting Dinesh and
Ramesh. It has been stated in his
examination
in
chief,
that
Hirawati,
however, hit them by the opposite side of
the sickle i.e. by the side which was not
sharp. When Dinesh and Ramesh shouted,
their mother Phoopatti Devi (PW-2) and
their bhabhi Geeta Devi came on the spot
to save them. They were also hit by the
accused persons and they all had sustained
injuries. He has further stated that because
of the marpeet, his brother Ramesh had
received grievous injuries and he also had
received injuries over his hands and waist.
He has further stated that Ramesh after
being hit escaped from the spot and saved
himself by hiding himself in the Dhan
crops. He has further stated that after going
about 15-20 steps Ramesh had fainted and
806 INDIAN LAW REPORTS ALLAHABAD SERIES
had also fallen down. It has been stated that
the other villagers also reached the spot.
PW-1 has stated that he had taken his
brother to the Primary Health Centre,
Basani where investigation was done by the
doctors and primary medication was also
given. Since the condition of Ramesh was
not good, the doctors had referred him to
the Kabir Chaura Hospital and at the Kabir
Chaura Hospital, the case was referred to
Banaras Hindu University where at 8.40
PM his brother Ramesh had died. He also
proved his written information which he
had given to the police. Further in his
cross-examination, the PW-1 had stated
that initially Hirawati was not there at the
spot and upon the shouting of his brother
because of the hitting by Shiv Kumar, the
other persons had come. However, this
very prosecution witness namely Dinesh
Kumar Yadav had stated that there was
absolutely no pre-existing enmity between
the families and the incident had taken
place only due to certain verbal altercation
of obscene words spoken by Shiv Kumar.
He has, however, throughout stated that
maarpeet had taken place suddenly on a
provocation.

8. PW-2 Phoolpatti has also stated
that the altercation had taken place because
of the fact that the co-accused Shiv Kumar
had taunted her daughter Saroja. PW-2 has
virtually repeated what the PW-1 had
stated. She has, however, stated that the
aggressors were the accused persons and
not her sons.

9. The doctors PW-3, PW-4 and PW5 have proved the injury reports and the
post-mortem reports.

10. Learned counsel for the appellants
Sri
I.K.
Chaturvedi,
learned
Senior
Advocate
assisted
by
Sri
Saurabh
Chaturvedi has submitted that if all the
evidence is read in their totality, it becomes
clear that none of the accused persons were
present at the place of incident and that
they have all been falsely implicated. In
the alternative he has also submitted that
definitely there was no premeditation of
the accused persons to commit the crime
of murder. He submits that if all the
evidence, as a whole, is read together,
then it would become clear that if at all
the incident had occurred, it was a case of
sudden fight and it was not a planned
murder. Learned counsel for the appellant
has, relying on certain statements of the
prosecution, argued :-

(i) The FIR and the statements of
PW-1 and PW-2 itself, if they are read,
learned counsel for the appellants states
that everything had happened on the spur of
the moment without any pre-meeting of
mind and without any plan of committing
the crime of murder. In fact, he submits
that such was the suddenness of the whole
incident that even in the FIR the words
which might have been spoken by the
accused Shiv Kumar and were not liked
by Saroja were not reproduced. He
submits that in fact no other person, as
has been alleged to be there at the spot
and whose names are found in the FIR
have come in the witness box. Even
Geeta Devi, the Bhabhi had not come in
the witness box. In effect, learned
counsel for the appellants intends to
argue that no-one was at the spot and
only when they heard of some altercation,
they rushed to the spot.

(ii) The incident had happened
in
the
broad
daylight
and
no
independent witness other than the
mother of the deceased had come in the
witness box.
6 All. Krishna Kumar & Ors. Vs. State of U.P.
807

(iii) The injuries on all the others,
other than the deceased were simple in
nature.

(iv) To show that the incident had
occurred at the spur of the moment and on
account
of
the
grave
and
sudden
provocation,
learned
counsel
for
the
appellants specifically stressed upon a
certain paragraph of the cross-examination.
Since learned counsel for the appellants
had read out paragraph 3 at page 30 of the
paper book, the same is being reproduced
here as under :-

"bl ?kVuk ds igys Hkwr izsr dks ysdj
fookn py jgk FkkA dksbZ ekjihV ugha gqbZ FkhA
bl ?kVuk ds igys esjh cgu ds lkFk eqfYteku
us dHkh NsM+[kkuh ugha fd;k FkkA ?kVuk okys fnu
Hkh gekjh chp dksbZ okn fookn ugha gqvk FkkA
f'kodqekj ljkst ds izfr cksyh cksyus ls vpkud
;g ekjihV gks x;hA vU; eqfYteku ,d lkFk
vk;s Fks dze'k% ughaA f'ko dqekj o mudh eka ds
fpYykus ij vU; eqfYteku vk;sA rc rd ge
yksxksa us 'kksj ugha fd;k FkkA tc vU; eqfYteku
vkSj ekjihV o lkFk esa rc geus 'kksj fd;kA
mlds igys 'kksj ugha fd;k FkkA vU; eqfYteku
ds vkus ds ckn 2&3 feuV ekjihV gqbZA"

(v)
Learned
counsel
for
the
appellant while relying on the deposition of
PW-5 Dr. R.A. Singh states that the injuries
sustained on the head of the deceased had
caused the death. He submits that it is not
certain whether the cause of the injury was
the blow of lathi or because the deceased had
fallen down and he received certain injuries
by falling over the bricks lying there. Learned
counsel, therefore, stated that it cannot be
said with all certainty that the blows of the
lathis by the accused persons alone were
responsible for the death of the deceased.

(vi) Learned counsel for the
appellant relying upon the deposition of
PW-7 Ram Kumar Chaudhary submits that
the spot where the incident had occurred
was not even but had certain protrusions of
jutting wood etc. which could have been
the reason for the injuries on the head of
the deceased who had fallen down because
of the fact that he had fainted.

(vii) Learned counsel for the
appellant further stated that there was no
blood found on the spot.

(viii) Learned counsel for the
appellant, therefore, submitted that there
was no premeditation or pre-plan on the
part of the appellants. He submitted that
due to the sudden provocation between the
family of the deceased and the family of
the accused persons at the spur of the
moment the incident had occurred and,
therefore, the accused could not be held to
be guilty of the crime of murder. He
submits that as has been held in Surain
Singh vs. State of Punjab reported in
(2017) 5 SCC 796 when there is no
premeditation Exception 4 of Section 300
applies. Since learned counsel specifically
relied upon paragraph 7 of the judgment,
the same is being reproduced here as under
:-

"7. Exception 4 to Section 300 of
the Indian Penal Code applies in the
absence of any premeditation. This is very
clear from the wordings of the Exception
itself. The exception contemplates that the
sudden fight shall start upon the heat of
passion on a sudden quarrel. The fourth
exception to Section 300 Indian Penal Code
covers acts done in a sudden fight. The said
Exception deals with a case of provocation
not covered by the first exception, after
which its place would have been more
appropriate. The Exception is founded
upon the same principle, for in both there is
808 INDIAN LAW REPORTS ALLAHABAD SERIES
absence of premeditation. But, while in the
case of Exception 1 there is total
deprivation of self-control, in case of
Exception 4, there is only that heat of
passion which clouds men's sober reason
and urges them to deeds which they would
not otherwise do. There is provocation in
Exception 4 as in Exception 1, but the
injury done is not the direct consequence of
that provocation. In fact, Exception 4 deals
with cases in which notwithstanding that a
blow may have been struck, or some
provocation given in the origin of the
dispute or in whatever way the quarrel may
have
originated,
yet
the
subsequent
conduct of both parties puts them in
respect of guilt upon an equal footing. A
"sudden fight" implies mutual provocation
and blows on each side. The homicide
committed is then clearly not traceable to
unilateral provocation, nor could in such
cases the whole blame be placed on one
side. For if it were so, the Exception more
appropriately
applicable
would
be
Exception
1.
There
is
no
previous
deliberation or determination to fight. A
fight suddenly takes place, for which both
parties are more or less to be blamed. It
may be that one of them starts it, but if the
other had not aggravated it by his own
conduct it would not have taken the
serious turn it did. There is then mutual
provocation and aggravation, and it is
difficult to apportion the share of blame
which attaches to each fighter.

The help of Exception 4 can be
invoked if death is caused (a) without
premeditation, (b) in a sudden fight, (c)
without the offenders having taken undue
advantage or acted in a cruel or unusual
manner, and (d) the fight must have been
with the person killed. To bring a case
within Exception 4 all the ingredients
mentioned in it must be found. It is to be
noted
that
the
"fight"
occurring
in
Exception 4 to Section 300 Indian Penal
Code is not defined in Indian Penal Code. It
takes two to make a fight. Heat of passion
requires that there must be no time for the
passions to cool down and in this case, the
parties had worked themselves into a fury
on account of the verbal altercation in the
beginning. A fight is a combat between two
and more persons whether with or without
weapons. It is not possible to enunciate any
general Rule as to what shall be deemed to
be a sudden quarrel. It is a question of fact
and whether a quarrel is sudden or not must
necessarily depend upon the proved facts
of each case. For the application of
Exception 4, it is not sufficient to show that
there was a sudden quarrel and there was
no premeditation. It must further be shown
that the offender has not taken undue
advantage or acted in a cruel or unusual
manner. The expression "undue advantage"
as used in the provision means "unfair
advantage".

"

(emphasis supplied)

11. Sri S.N. Mishra, learned AGA in
opposition, however, has submitted that the
blows given by the accused persons were
brutal in nature, so much so that they
caused the death of the deceased Ramesh
and had also caused injuries to the persons
present at the spot. He, therefore, submits
that the the appeal be dismissed and the
order of conviction be not interfered with.

12. Having heard Sri I.K. Chaturvedi,
learned Senior Counsel assisted by Sri
Saurabh Chauturvedi, learned counsel for
the appellant; Sri S.N. Mishra, learned
AGA and Sri Harivansh Singh, learned
counsel appearing for the informant, we are
6 All. Krishna Kumar & Ors. Vs. State of U.P.
809
of the view that the appeal deserves to be
allowed.

13. A perusal of the statements of the
prosecution witnesses and also all the other
record inevitably leads us to conclude that
there was some taunting being done by
Shiv Kumar with regard to the sister of the
first informant and also the deceased
namely Saroja and angered by this taunting,
they had approached Shiv Kumar and had
questioned him as to why he was taunting
her. This had probably resulted in a sudden
fight. In villages, mostly people keep lathis
with them. Upon hearing the shouting etc.,
the male family members of the accused
side rushed to help. It appears that because
of the shouting, the mother, father and
other brothers who had been made accused
in the case had rushed to the spot. They
were not present earlier at the spot. The
statement of PW-1 clearly goes to indicate
that the other co-accused were not there at
the spot and they had rushed because of the
shouting etc. which had occurred as a result
of the questioning by Dinesh Kumar.
Further we see that even Hirawati, who is
the mother of Shiv Kumar and was also an
accused in the case, had, as per the
prosecution witness Dinesh, tried to hit
them by the blunt side of the sickle. If there
was any premeditated crime then the sickle
could have been used from the sharper side.
The motive to kill the deceased was
definitely not there.

14. Under such circumstances, we are
left with no other conclusion but to hold, on
the basis of the evidence which was there
on the record, that the appellants-accused
had assaulted the deceased Ramesh with
lathi and danda in which it was just
possible that the danda hit the head of the
deceased in such a manner which caused
the death. Also it was possible that because
of one of the blows, the deceased had fallen
down in such a manner that he hit himself
with some hard object which caused
injuries which ultimately led to his death.
Definitely the incident was not preplanned. It happened all of a sudden and
there was no common intention to kill the
deceased Ramesh. If at all the blows etc.
were made, they were made with only an
intention to teach Ramesh a lesson.

15. Since there was no intention to
kill, we definitely rule out that the accused
are guilty of murder i.e. an offence under
section
302
of
Indian
Penal
Code.
However, this much is certain that when
the deceased was being hit by lathis and
dandas, the appellants had used excessive
force. However, since there was no premediation with regard to the killing of the
deceased and since everything happened at
the spur of the moment, we are of the view
that there was no intention to cause death
or such common intention which would
cause death.

16. Under such circumstances, we
hold that the accused-appellants are at the
most guilty of an offence under Part-II of
section 304 of Indian Penal Code.

17. So far as the question of sentence
is concerned, it was argued by learned
counsel
for
the
appellants
that
the
appellants are not criminals and putting
them in jail would convert them into
criminals. He, therefore, prayed that the
minimum possible sentence be awarded to
them.

18. Having heard learned Senior
Counsel for the appellants and the learned
AGA on the question of sentence, we are
definitely of the view that all the appellants
are innocent persons who never had any
810 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal record. They are also on bail by
this Court. Under such circumstances, we
hold that the appellants be fined with a fine
of Rs.20,000/- each. This fine may be
treated as compensation money for the
parents of the deceased Ramesh. After the
amount is deposited by the appellants in the
State Treasury within a period of three
months from today, the entire amount be
passed on to the parents of the deceased as
compensation.

19. Thus for what has been stated
above, we partly allow the appeal. The
conviction under sections 148, 302 and 323
of Indian Penal Code be now treated to be a
conviction under section 304 (II) IPC.
Further since there was no common
intention, the conviction under sections 147
and 149 IPC is set-aside. So far as the
punishment is concerned, we have already
stated that the appellants be now fined with
Rs.20,000/- each and this fine be paid as
compensation to the parents of the
deceased.
----------
(2023) 6 ILRA 810
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SIDDHARTH , J.

Criminal Appeal No. 9226 of 2022

Raghvendra ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Brij Raj, Sri Abhishek Srivastava, Sri
Krishna Kumar, Sri Kuldeep Singh Yadav,
Sri Satendra Singh, Sr. Advocate

Counsel for the Opposite Parties:
G.A., Sri Hare Krishna Mishra, Sri Jitendra
Kumar, Sri Purushottam Dixit, Sri Saima
Saher

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 323, 504, 506, 307
&302 - Punishment for murder - SC/ST Act,
1989 - Section 3(2) (V) - Constitution of
India, 1950 - Article 21 - Against second bail
rejection
-
Maintainability
-
Appellant
submitted that in first criminal appeal of
appellant, rejection order was different and
present appeal has been filed against
different bail rejection order which has been
passed after rejection of first criminal appeal
by another coordinate Bench - Further
submitted that appeal requires to be heard
by this Court which was currently having
jurisdiction - St. opposed the prayer - Held, in
appeal the court was required to consider
whether
Special
Court
has
erred
in
granting/denying relief to appellant on the
basis of order under challenge - Also required
to see whether order of court below can be
sustained and its findings are in accordance
with legal and factual issues - Object and
subject of application u/s 438/439 Cr.P.C., is
different from object and subject of appeal
u/s 14-A (2) of SC/ST, Act - Therefore,
contention of appellant was accepted -
Impugned order set aside. (Para 6, 15, 17)

Criminal Appeal allowed. (E-13)

List of Cases cited:

Shakar Kerba Jadhav & ors. Vs St. of Mah. 1969
(2) SCC 793

(Delivered by Hon'ble Hon'ble Siddharth, J.)

1. Heard learned counsel for the
appellant; learned AGA for opposite party
no.1; Ms. Saima Saher, learned counsel for
informant and perused the material placed
on record.

2. The present criminal appeal under
Section 14-A(2) Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities)