# Mata Prasad & Ors v. State of U.P

- **Citation:** (2024) 11 ILRA 516
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-07
- **Case number:** Criminal Appeal No. 413 of 2001
- **Bench:** Attau Rahman Masoodi, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mata-prasad-ors-v-state-of-u-p-51090
- **Pages:** 12

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 207 & 313 -
Indian Penal Code, 1860 - Sections 147,
148, 149, 302, 300 & 304 - Appeal - against
conviction & sentence - offence of murder -
FIR - allegation that, accused appellants armed
with Pharsa, ballam, lathi assaulted the fatherin-law of the informant - investigation - trial by
session judge - conviction & sentence -
Evaluation of evidence - court finds that, (i)
there is no contradiction in the testimony of
prosecution witnesses on any point, as such, the
truthfulness of factual matrix cannot be doubt in
the absence of any material evidence to the
contrary - (ii) the ground of enmity, ground of
interested witnesses and ground of delay in
lodging FIR does not stand to appeal which is
proved beyond the reasonable doubt - (iii)
antemortem injuries found on the body of
deceased indicate that they were caused by the
Pharsa, ballam and lathi as such the medical
evidence corroborates with the ocular evidence
- (iv) The surviving appellants were armed with
lathi and they only wants to cause bodily
injuries to the deceased and they were not
having any intention to kill the deceased - held,
on
appreciation
of
peculiar
facts
and
circumstances of the case, instead of conviction
of the surviving appellants under section 302
r/w 149 IPC is concern offence would be
punishable u/section 304 part 1 of the IPC -
Appeal is partly allowed - impugned conviction
and sentence is liable to be altered and modified
- directions issued accordingly. (Para - 32, 35,
39, 45, 48, 49, 50, 51, 53, 54)

Appeal Partly Allowed. (E-11)

## Text

516 INDIAN LAW REPORTS ALLAHABAD SERIES
receipt of a copy of this order. It is clarified
that the parties shall not seek unnecessary
adjournment before the Family Court.

(20) Registry to transmit the trial
Court's record to the Family Court,
Ambedkar Nagar along with a copy of this
order for information and compliance
forthwith.
----------
(2024) 11 ILRA 516
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.11.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 413 of 2001

Mata Prasad & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Arun
Sinha,
Ashish
Raman
Mishra,
Maneesh Kumar Singh, Navita Sharma

Counsel for the Respondent:
Govt. Advocate

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 207 & 313 -
Indian Penal Code, 1860 - Sections 147,
148, 149, 302, 300 & 304 - Appeal - against
conviction & sentence - offence of murder -
FIR - allegation that, accused appellants armed
with Pharsa, ballam, lathi assaulted the fatherin-law of the informant - investigation - trial by
session judge - conviction & sentence -
Evaluation of evidence - court finds that, (i)
there is no contradiction in the testimony of
prosecution witnesses on any point, as such, the
truthfulness of factual matrix cannot be doubt in
the absence of any material evidence to the
contrary - (ii) the ground of enmity, ground of
interested witnesses and ground of delay in
lodging FIR does not stand to appeal which is
proved beyond the reasonable doubt - (iii)
antemortem injuries found on the body of
deceased indicate that they were caused by the
Pharsa, ballam and lathi as such the medical
evidence corroborates with the ocular evidence
- (iv) The surviving appellants were armed with
lathi and they only wants to cause bodily
injuries to the deceased and they were not
having any intention to kill the deceased - held,
on
appreciation
of
peculiar
facts
and
circumstances of the case, instead of conviction
of the surviving appellants under section 302
r/w 149 IPC is concern offence would be
punishable u/section 304 part 1 of the IPC -
Appeal is partly allowed - impugned conviction
and sentence is liable to be altered and modified
- directions issued accordingly. (Para - 32, 35,
39, 45, 48, 49, 50, 51, 53, 54)

Appeal Partly Allowed. (E-11)

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard learned counsel for the
appellants, learned A.G.A. for the State and
perused the material on record.

2. During the course of hearing of this
appeal, the appellant nos. 1 and 2 namely
Mata Prasad and Bhurey @ Dinesh Kumar
have died and the appeal insofar as it
relates to them has been abated vide order
dated
11.7.2023
and
16.8.2023
respectively. Thus, the appeal survives on
behalf of these appellants namely Pappu,
Puttan and Daddan(appellant nos. 3, 4 and
5) only.

(A) Prelude

3. By means of this criminal appeal,
the appellants, out of whom, only appellant
nos. 3, 4 and 5(hereinafter referred to as
appellants) survive have challenged the
judgment and order dated 26.5.2001 by
which learned Sessions Judge, Bahraich in
sessions trial no. 25 of 1999 arising out of
11 All. Mata Prasad & Ors. Vs. State of U.P.
517
case crime no. 318 of 1998, under Sections
147, 148, 149 and 302 I.P.C., police station
Ikauna, district Shrawasti has convicted
them under Sections 302/149 I.P.C, and
sentenced to undergo imprisonment for life
with a stipulation of fine of Rs.5000/- each
and
further
to
undergo
rigorous
imprisonment for a period of two years in
default of payment of fine. In addition,
appellants namely Pappu, Puttan and
Daddan were also convicted under Section
147 I.P.C. and sentenced to undergo one
year's R.I. with stipulation of fine of Rs.
500/- each. In default of payment of fine a
further R.I. of three months. All the
sentences are directed to run concurrently.

4. The prosecution case, in nutshell, is
that the complainant namely Smt. Meera
Devi submitted a tahrir(exhibit ka-1) on
23.9.1998 at 10.00 p.m. in the police
station alleging therein that on 23.9.1998 at
5.30 p.m. the accused appellants namely
Mata Prasad armed with pharsa, Bhoorey
alias Dinesh Kumar armed with ballam and
rest of the accused namely Pappu, Puttan
and Dadan armed with lathis were sitting
near the 'Dhabli' of one Nankoo Tiwari and
while her father-in-law was going to his
agricultural field from his house they all
started assaulting him and dragged him to
the door of Chhotkau Kurmi where they
again assaulted him with lathi, ballam and
pharsa. The complainant on hearing the
scream reached at the place of occurrence.
The other persons namely Nand Kumar,
Mahipal and several villagers also reached
there. On being reprimanded by theses
persons, the accused appellants ran away
from the spot. The complainant with the
help of villagers brought the deceased at
the door of Kailash Nath Pradhan where he
succumbed to the injuries. The report of the
incident was registered as case crime no.
318 of 1998, under Sections 147, 148, 149
and 302 I.P.C. at police station Ikauna,
district Shrawasti and was entered in the
G.D. No. 32(Exhibit ka-3).

5. Inquest report of the dead body was
prepared by the Investigating Officer(P.W.
4) and the postmortem was conducted by
P.W.
6
who
noted
the
following
antemortem injuries on the body of the
deceased :-

(i) Larger abraded contusion on
right outer front of abdomen and adjacent
part of back size 26 cm x 12.5 c.m.

On opening abdominal cavity
about 2 litres of blood found. Liver
raptured

(ii) 3 cm X 1.5 cm abraded
contusion left side forehead just about left
eyebrow.

(iii) 1.5 cm incised wound midpart of back of left forearm.

(iv) 8.0 c.m. x 6.0 cm contusion
dorsum of right hand, on deeper dissection,
outer three metacorpals found fractured.

(v) 7.00 cm x 5.5 cm contusion
dorsum of left hand

(vi) Larger abraided contusion
over back and sides of lower half of right
upper arm and uper half of right forearm.
Size 28.0 cm X 8.0 cm on deeper dissection
right humerous fractured near lower end.

(vii) Incised wound size 1.5 cm X
0.5 cm outer side right arm lower part 7 cm
above the elbow joint.

(viii) 7.5 Incised would front of
left leg 12.0 c. above the ankle joint

(ix) 4.0 cm. incised wound front
of right leg 13 cm above the ankle joint.

(x) 3.5 cm long incised wound
inner side right foot 7 cm in front of medial
malleolus.

In the opinion of the doctor
deceased
died
due
to
shock
and
518 INDIAN LAW REPORTS ALLAHABAD SERIES
hemorrhage as a result of antemortem
injuries.

6. After lodging the F.I.R., the police
started investigation in the the matter and
submitted charge-sheet against all the
accused persons under Sections 147, 148,
149 and 302 I.P.C. After taking cognizance
on
the
charge-sheet,
the
case
was
committed to the court of sessions where
the statements of the appellants were
recorded under Section 313 Cr.P.C. The
accused appellants pleaded that they are
innocent and have been implicated on
account of previous enmity. They claimed
trial.

7.
In
the
trial
the
prosecution
examined the following witnesses which
are as under :-

P.W.
1
Mahipal,
P.W.
2
complainant Meera Devi, P.W. 3 Sri Nand
Kumar, P.W. 4 the Investigating Officer
Yogendra Nath Tripathi, P.W. 5 Constable
C.P. 58 Subhash Chandra Yadav and P.W.
6 Dr. Vijay Gorla.

8. The witness Abdul Sattar, Advocate
has been examined as D.W.-1 from the side
of defence.

9. We have heard learned counsel for
the appellant and learned A.G.A. for the
State and carefully gone through the
material available on record.

Submissions on behalf of the appellants

10. Learned counsel for the appellants
has submitted that the incident is stated to
have occurred on 23.9.1998 at 5.30 p.m.
whereas the F.I.R. was registered after 4.30
hours of the incident i.e. at 10.00 p.m. for
which the explanation offered by the
prosecution is not convincing. Learned
counsel states that there is long standing
enmity between the parties due to which
they have been falsely implicated in this
case. The injuries found on the body of the
deceased do not support the prosecution
case.

Submissions on behalf of the State.

11. Per contra, learned Additional
Government Advocate contended that all
the prosecution witnesses have supported
the prosecution case. There is no material
contradictions between the contents of the
F.I.R. and the statements of the prosecution
witnesses. The injuries found on the dead
body of the deceased corroborate with the
weapons which are stated to be caused by
the accused appellants. He has also
submitted that there is no conflict between
the medical evidence and ocular evidence.
Thus, the conviction of the appellants does
not suffer from any infirmity and the appeal
is liable to be dismissed.

12. Having considered the rival
contentions
and
having
perused
the
evidence on record, it is necessary to
briefly discuss the prosecution evidence
adduced during trial.

Gist of Prosecution Witnesses

13.
P.W.
1
Mahipal
in
his
examination-in-chief has stated that on
23.9.1998 at 5.30 p.m. while he was
returning from the flour mill he heard the
noise of the daughter-in-law(P.W. 2) of the
deceased and therefore he ran towards her.
P.W. 3 Nand Kumar also came there. He
saw that all the five accused were
assaulting the deceased Baijnath in the
galiyara existing in between the house of
Koiley Pasi and Chhotkau Kurmi. Accused
11 All. Mata Prasad & Ors. Vs. State of U.P.
519
appellant Mata Prasad was assaulting the
deceased with pharsa, Bhoorey @ Dinesh
Kumar was assaulting with ballam and
other three accused were assaulting with
lathi. On alarm being raised by the said
witnesses, the accused ran away to the east
towards their house. They lifted the
deceased and brought him near the pakaria
tree and got him laid down. This pakaria
tree exists in front of the houses of Mohan
and Pradhan. The deceased died after some
time. The complainant Meera Devi i.e.
P.W. 2 got a tahrir scribed through one
Indrajit and went to police station alongwith Hansram, brother of Chaukidar. The
police came at night and recorded their
statements and in the next morning, the
police inspected the spot and prepared the
site-plan. Blood had fallen at the place
where the deceased was assaulted.

14. In his cross examination, P.W. 1
has stated that on the date of incident while
he was returning from the flour mill of
Bhabhuti Lal, on the way, he having heard
the noise of the appellant rushed to the spot
where he saw that the the complainant
Meera Devi, P.W. 2 was standing in the
galiyara existing in between the house of
Koiley Pasi and Chhotkau Kurmi and she
was crying and when she ran towards the
galiyara, he also rushed towards the house
of Chhotkau Kurmi where he saw that the
accused appellant Bhurey @ Dinesh Kumar
armed with ballam and accused Mata
Prasad armed with Pharsa were assaulting
the deceased. P.W.1 with the help of P.W.
3 and the other villagers brought the
deceased below the Pakariya tree. On being
asked by the P.W. 2, the deceased was
brought at the door of Kailash for the
treatment as there was no member in the
house of the deceased. He also stated that
when he lifted the body of the deceased
blood was oozing from the body and near
the Pakaria tree where the deceased had
been laid down some blood had also fallen.

15. P.W. 2 in his examination-in-chief
has stated that on 28.10.1999 at 5.30 pm.
her father-in-law was going from his house
to see the paddy crop. Having heard the
scream of the deceased near the Dhabli of
Nankoo crying, she rushed towards the spot
and saw that all the five accused appellants
were assaulting the deceased and catching
hold of his hand were dragging him
towards east. The accused appellants
assaulting
and
dragging brought her
deceased father-in-law in the galiyara
existing between the house of Chhotkau
Kurmi and Koiley Pasi. Accused Matha
Prasad armed with pharsa, Bhurey @
Dinesh Kumar armed with ballam and rest
of the three persons were assaulting the
deceased. She has stated that the P.W. 1
and P.W. 3 also reached at the place of
occurrence. On being admonished by these
witnesses, the accused ran away towards
east. The deceased was standing while he
was being assaulted and later on he fell
down and the accused appellants again
assaulted the deceased. Accused Bhurey @
Dinesh Kumar was the son of accused
Matha Prasad and rest of the accused are
sons of Bhurey @ Dinesh Kumar. The
deceased was alive for some time. The
accused appellants brought the deceased in
the galiyara existing between Chhotkau
Kurmi and Koiley Pasi. She got the tahrir
of the occurrence scribed by Indrajit and
went to the police along-with Hansram
brother of Chaukidar and submitted the
tahrir. The Investigating Officer recorded
the statement of the witnesses in the night
and on the next date he inspected the spot
and collected blood stained soil also. P.W.
2 has stated that for the last about 15 years,
civil litigation was going on between the
deceased and the accused.
520 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In his cross examination, P.W. 2
has also stated that some others persons had
also gathered at the time of assault alongwith the P.W. 1 and P.W. 3 and saw the
occurrence. The accused appellant Bhurey
@ Dinesh Kumar from one hand was
dragging the deceased and from the other
hand he was assaulting him and rest of the
accused appellants were also assaulting the
deceased. The accused Bhrey @ Dinesh
Kumar
armed
with
ballam,
accused
appelalnt Mata Prasad armed with Pharsa.
P.W. 2 has not specified the weapon ballam
but has stated that size of iron part in
ballam was about one hand. Accused
Bhurey @ Dinesh Kumar dragging him
brought in the galiyara existing between the
house of Koiley Pasi and Chhotkau Kurmi.
All accused were assaulting the deceased.

17. P.W. 3 in his examination-in- chief
has stated that on the date of incident i.e.
23.9.1998 at about 5.30 p.m. having heard
the noise of the deceased Baijnath and his
daughter-in law he rushed to the spot. The
complainant P.W. 2 was present on the
spot. He reached behind her and P.W. 1
also reached there. He saw that the accused
namely Mata Prasad armed with pharsa,
accused Bhurey @ Dinesh Kumar armed
with ballam and rest of the accused armed
with lathi were assaulting the deceased. On
being confronted by the witnesses, the
accused ran away. The deceased had
sustained several injuries. The deceased
was standing but accused hushed him down
the ground and kept on assaulting. They
were assaulting in the midst of the galiyara
existing in between the houses of Chhotkau
Kurmi and Koiley Pasi. The deceased was
lifted from there and brought in front of the
house of the Mohan Thekedar and Kailash
Pradhan under the Pakaria tree and he was
got laid down there. The deceased was
alive for 5-10 minutes and thereafter he
died. The P.W. 2 got the tahrir written
through Indrajeet and went to the police
station with Hansram brother of Chaukidar.

18. In his cross-examination, the P.W.
3 has stated his house is situated 15 paces
away from the house of the deceased. P.W.
1 and 3 were present there and other
villagers arrived after the incident. The
appellant Bhurey @ Dinesh Kumar was
assaulting the deceased with the ballam
from the wooden side and he was not
piercing. The appellant Mata Prasad was
assaulting with pharsa from the side of
edges. There was civil litigation between
father of this witness and other villagers.
He expressed his unawareness as to
whether the appellant Mata Prasad was a
witness in the criminal case initiated
against his father or not.

19. P.W. 4 in his examination-in-chief
has stated that on 23.9.1998 he was posted
as S.O. Ikauna. One Onkar Nath Pathak
was Head moharrir posted there. The F.I.R.
was written by him and the case was
entered in the G.D. at report no. 32 at 10.00
p.m. in the night. He proved the chik report
and tahrir as Ext. ka-1 and Ext ka-2. He
assumed the investigation of this case. On
23.9.1998, he entered the copy of chik and
G.D. in his case diary and recorded the
statement of the head moharrir Onkar Nath
Pathak. Thereafter, he reached the village
of the deceased with his subordinates
namely Constable Dinesh Tiwari and
Subhash Chandra Yadav(P.W. 5) who were
on patrol duty and were summoned. The
dead body of the deceased was lying in
front of the house of Mohan Verma. He
recorded the statement of the complainant
and other witnesses in the night. In the
morning on the pointing out of the
complainant P.W. 4 inspected the spot and
prepared the site plan. He proved the site
11 All. Mata Prasad & Ors. Vs. State of U.P.
521
plan as exhibit Ka -4. He took the blood
stained soil and simple soil from the place
where the deceased had been assaulted and
sustained injuries. He prepared the memo
of blood stained and simple soil. He proved
the paper as exhibit Ka-5 and Ka-6.
Thereafter, he prepared the inquest report
on the deceased body of the deceased and
proved it as exhibit Ka-7. He prepared the
photo lash, challan-lash and letter for
postmortem and proved these papers as
Exhibits ka-8, ka-9 and ka-10. He prepared
the sample seal and proved it as Exhibit
Ka-11. He proved the letter to R.I. as
Exhibit ka-12. He entered the inquest report
and statement of witnesses in the case
diary. On 26.9. 1998, postmortem report
was received. He entered it in the case
diary. On 9.10.1998, he recorded the
statement of the accused and submitted the
charge-sheet. He proved the charge-sheet
as Exhibit ka-13.

20. In cross examination, the P.W. 4
has stated that the blood had fallen there
but he did not take blood in his possession.

21. P.W. 5 in his examination-in-chief
has deposed that on 24.9.1998 he was posted
as Constable in police station Ikauna. In the
intervening night of 23/24.9.1998. He alongwith the constable Dinesh Tiwari who was on
patrol duty was summoned by the P.W. 4.
and they had gone to village of the deceased
with the P.W. 4. On 24.9.1998, after
preparation of inquest report the dead body in
a sealed cover was handed over to this
witness and other constables and they took
the dead body to mortuary. The doctor got the
identification of the dead body from this
witness and Dinesh Tiwari- other Constable
at the time of post mortem examination.

22. P.W. 6 in his examination-in-chief
has stated that on 24.9.1998 he was posted on
the post of Surgeon. He conducted the
postmortem on the dead body of the deceased
at 4.45 p.m. in the evening who was brought
by Constable CP 58 Subhash Chandra Yadav
and CP 116 Dinesh Tiwari in sealed
condition with all the papers and identified
the dead body of the deceased. He proved the
antemortem
injuries
of
the
deceased
described in the post-mortem report. He
opined that the cause of death was shock and
hemorrhage as a result of antemortem injuries
which were sufficient to cause death.
Deceased had died a day before. He proved
the postmortem report as Exhibit Ka-14. He
noted the following observations :-

Injury No. 3 and 7 were possible
from the edges side of ballam.

Injuries No. 8, 9 and 10 were
possible from the edges side of Pharsa.

Injuries no. 1, 2, 4 5, and 6 were
possible by blunt weapon for example lathi.
Injury no. 1 and 6 were possible by several
blows.

23. In cross examination, P.W. 6 has
deposed that there may be variation of 4-6
hours in the time of death. Injury no. 3, 7, 8
, 9 and 10 are on non-vital parts. Injury nos.
1 and 6 were possible by a blunt weapon
for example some heavy stone or heavy
iron. Injury no. 1 and 6 are single injury in
itself. Injury nos. 3, 7, 8, 9 and 10 are
simple in nature. Ballam is a pointed
weapon. Except the fracture of bone on
upper arm and metacorpal in injury no. 4
and 6, there was no other bone fracture.
Liver had raptured due to injury no. 1 and
except this injury fracture of bone was
found in injury nos. 4 and 6. For causing
death,
injury
no.
1
was
primarily
responsible. Pharsa is a heavy weapon and
it is wrong to say that injury nos. 8, 9 and
10 were not possible through heavy
weapon like pharsa.
522 INDIAN LAW REPORTS ALLAHABAD SERIES
Analysis

24. Upon hearing the arguments
advanced by the learned counsel for the
appellants and learned A.G.A. at length, we
find that following points are involved for
consideration in this appeal against the
impugned
judgment
and
order
of
conviction and sentence of the appellants.

Point No. I

(I) Whether all the prosecution
witnesses
have
supported
the
prosecution case.

25. P.W. 2 who is daughter-in-law of
the deceased has supported the prosecution
case by stating that P.W. 1 and P.W. 3 who
are independent witnesses in this case also
reached at the place of occurrence. The
statement of the P.W. 2 that the accused
appellant Mata Prasad armed with ballam,
appellant Bhurey @ Dinesh Kumar armed
with pharsa and the appellants namely
Pappu, Puttan and Daddan armed with lathi
is corroborated with the statements of the
P.W. 1 and P.W. 3.

26. P.W. 2 i.e. daughter-in-law of the
deceased has stated that the deceased was
assaulted by the accused appellants in the
galiyara existing in between the house of
Koiley Pasi and Chhotkau Kurma and the
deceased was alive for some time after being
assaulted by the accused appellants. This
fact has also been reiterated by the P.W. 1
and P.W. 3 in the cross-examination. P.W. 2
has stated that the dead body of the deceased
was brought by the P.W. 1 and 3 under the
pakaria tree and was laid down and this
pakaria tree exists in front of the houses of
Mohan and Pradhan which is supported by
the P.W. 1 and 3 in the statements. The fact
that the P.W. 1 got a tahrir scribed through
one Indrajit and went police station alongwith Hansram brother of Chaukidar is also
supported by the P.W. 1 and 3 in their
statements.

27. P.W. 4 who is Investigating Officer
in this case, in his examination-in-chief, has
also supported the prosecution case by
proving the chik report and tahrir as Ext. ka1 and Ext ka-2 which were entered in his
case diary. P.W. 4 has stated that on the date
of incident he went to the village of the
deceased with his subordinates namely
Constable Dinesh Tiwari and Subhash
Chandra Yadav(P.W. 5) who were on patrol
duty and were summoned. P.W. 5 namely
Subhash Chandra Yadav has also supported
the version of P.W. 4 by stating that the on
the date of incident he and the Constable
Dinesh Tiwari were summoned to go to the
village of the deceased Babhaniwan with the
Investigating Officer i.e. P.W. 4. The
statement of the P.W. 4 that the dead body
of the deceased was lying in front of the
house of Mohan Verma and that the
statements of the complainant and other
witnesses were recorded in the night and in
the next morning on the pointing out of the
complainant he inspected the spot and
prepared the site plan was well supported by
the P.W. 5.

28. P.W. 6 who conducted postmortem
on the dead body of the deceased has stated
that the dead body of the deceased was
brought by the P.W. 5 i.e. Constable CP 58
Subhash Chandra Yadav and CP 116
Dinesh Tiwari in a sealed condition with all
the papers and they had identified the dead
body of the deceased. This statement also
goes in line with the statement of the P.W.
5.

29. The presence of P.W. 2 along-with
P.W. 1 and 2 at the spot at the time of
11 All. Mata Prasad & Ors. Vs. State of U.P.
523
occurrence is proved beyond reasonable
doubt from their statements recorded
during examination-in-chief and cross
examination as the statements of the said
witnesses are well corroborated and there is
no contradiction on any single point. As
such, on the basis of factual aspect, it is
proved that the P.W. 2 along-with P.W. 1
and P.W. 3 was present at the spot and they
had seen the accused appellants assaulting
the deceased. The statements of P.W. 4, 5
and 6 are also corroborated and they
support the prosecution case. Statements of
all the prosecution witness supports each
other and there is no contradiction on any
point, as such, the truthfulness of factual
matrix cannot be doubted in the absence of
any material evidence to the contrary.

30. Point No. I is decided accordingly.

Point No. II

(II) Whether the previous enmity is
strong motive to falsely implicate the
appellants.

31. The ground of previous enmity
between the family of the accused and the
deceased is also vehemently raised by
learned counsel for the appellants.

32. P.W. 2 in the F.I.R. has alleged
that prior to this incident a clash had taken
place in which family members of the
appellant were detained in jail and in
vengeance thereof they assaulted the
deceased on 23.9.1998 at about 5.30 p.m.
The enmity between the appellants and
family members of the deceased could not
be refuted particularly in presence of two
independent witnesses i.e. P.W. 1 and P.W.
3 who have supported the prosecution case
and reiterated the same version as was
stated by the P.W. 1.

33. As such, the ground of enmity
which is proved beyond reasonable doubt,
is a strong motive for the appellants to
commit the offence.

34.
Point
No.
II
is
decided
accordingly.

Point No. III

(III) Whether the P.W. 1 and P.W. 3
are
interested
witnesses
and
their
testimonies are reliable and trustworthy.

35. P.W. 2 is daughter-in-law of the
deceased. P.W. 1 and P.W. 3 are stated to
be present at the place of occurrence while
the deceased was being assaulted by the
accused appellants. The presence of the
P.W. 1 and 2 at the spot at the time of
occurrence is proved beyond reasonable
doubt. The ground taken by the appellants
is that the P.W. 1 and P.W. 3 are the
interested witnesses of the incident. P.W. 1
in his cross-examination has stated that
there is land dispute between the father of
the P.W. 3 namely Nand Kumar and other
villagers. In one criminal case instituted by
a villager against the father of the P.W. 3,
the accused Mata Prasad was the witness or
not is not known to the P.W. 1. P.W. 3 has
reiterated the same version in his statement.
P.W. 1 has also admitted that there is
previous enmity with the deceased and the
appellants due to which the said incident
occurred. There is no evidence on record
on the basis of which it can be said that the
P.W. 1 and P.W. 3 have previous enmity
with the accused appellants. Thus, the
ground of the P.W. 1 and P.W. 3 being
interested witnesses does not stand to
appeal.

36.
Point
No.
III
is
decided
accordingly.
524 INDIAN LAW REPORTS ALLAHABAD SERIES
Point No. IV

(IV) Whether the F.I.R. was lodged
with delay.

37. Learned counsel for the appellants
has further argued that the distance from
the place of incident to the police station is
only 12 k.m. but the F.I.R. was lodged after
the delay of 4.30 hours.

38. P.W. 2 in his examination-in-chief
has attempted to justify the delay by stating
that the male members were detained in jail
and there was no male member in his
family due to which the delay in lodging
the F.I.R. occurred. The P.W. 2 in her
examination-in-chief has also stated that
she got a tahrir scribed through one Indrajit
and took it to police station with Hansram
brother of Chaukidar. P.W. 1 and 3 have
also stated that after getting the tahrir
scribed through Indrajit and the P.W. 2 he
had gone police station with Hansram
brother of Chaukidar.

39. Keeping the aforesaid statement in
view, the ground of delay in lodging the
F.I.R. looses its strength and turned down.

40.
Point
No.
IV
is
decided
accordingly.

Point No. V

(V) Whether the medical evidence
corroborated with the ocular evidence.

41. Now, analyzing the medical
evidence, we find that the P.W. 6
conducted postmortem on the body of the
deceased and opined that the cause of
death was shock and hemorrhage as a
result of antemortem injuries which were
sufficient to cause death. He proved the
postmortem report as Exhibit ka-14.

42. P.W. 6 has opined that injury No.
3 and 7 were possible from the edges side
of ballam. Injuries No. 8, 9 and 10 were
possible from the edges side of Pharsa.
Injuries no. 1, 2, 4 5, and 6 were possible
by blunt weapon for example lathi. Injury
no. 1 and 6 were possible by several
assault.

43. In cross examination, P.W. 6 has
deposed that the injury no. 3, 7, 8 , 9 and
10 are on hand and leg which are nonvital parts. Injury nos. 1 and 6 were
possible by a blunt weapon like some
heavy stone or heavy iron. Injury no. 1
and 6 are single injury in itself. Injury
nos. 3, 7, 8, 9 and 10 are simple in nature.
Ballam is a pointed weapon. Except the
fracture of bone on upper arm and
metacorpal in injury no. 4 and 6, there
was no other bone fracture. Liver had
raptured due to injury no. 1 and except
this injury fracture of bone was found in
injury nos. 4 and 6. For causing death,
injury no. 1 was primarily responsible.
Pharsa is a heavy weapon and it is wrong
to say that injury nos. 8, 9 and 10 were
not possible through heavy weapon like
pharsa.

44. P.W. 1, 2 and 3 have stated that the
accused appellant Bhurey @ Dinesh Kumar
was armed with ballam and P.W. 3 in his
cross examination has stated that appellant
Bhurey @ Dinesh Kumar was assaulting
the deceased with ballam. P.W. 1, 2 and 3
all have stated the accused appellant Mata
Prasad to be armed with pharsa. P.W. 1, 2
and 3 all have stated the accused appellants
namely Pappu, Puttan and Daddan to be
armed with lathi.
11 All. Mata Prasad & Ors. Vs. State of U.P.
525

45. Antemortem injuries found on the
dead body of the deceased indicate that
they were caused by the pharsa, ballam and
lathi. As such, the medical evidence
corroborates with the ocular evidence.

46. Point No V is decided accordingly.

Point No. VI

(VI) Whether the death of the
deceased
is
culpable
homicide
not
amounting
to
murder
in
view
of
provisions of exceptions if any to Section
300 I.P.C. and is punishable under
Section 304 read-with Section 149 I.P.C.

47. The deceased sustained total ten
injuries as per the postmortem report. In the
medical opinion of the doctor who
conducted the postmortem stated that the
cause of death of the deceased was
antemortem injuries caused by due to shock
and hemorrhage.

48. P.W. 6 in examination-in-chief has
stated that the injury no. 1 is the main cause
of death. The injury no. 1 has been caused
with blunt object like lathi by severe
assault. P.W. 6 in his cross examination has
stated that the injury no. 1 has been caused
with heavy stone or heavy iron rod and the
said injury is single in itself. It is not clear
from the statement of the P.W. 6 that
whether the injury no. 1 is itself a single
injury or was caused by several blows. The
appellants Mata Prasad and Bhurey @
Dinesh Kumar who were armed with pharsa
and ballam have died during pendency of this
appeal. The remaining appellants were
assigned the role of lathi. It is to be noted that
the weapons used by the present appellants in
committing the crime were not deadly
weapons. It will also be necessary to take into
consideration the background in which the
offence took place. There was an old enmity
between the deceased and the appellants. If
there was any mens rea of killing the
deceased the accused appellants Mata Prasad
and Bhurey @ Dinesh Kumar were armed
with pharsa and ballam and they may cause
death of the deceased by piercing the said
arms in the body of the deceased. The P.W. 3
in his cross-examination has stated that the
appellant Bhurey @ Dinesh Kumar was
assaulting the deceased with the wooden side
of ballam. The surviving appellants were
armed with lathi and the intention of the
appellants was not to cause death of the
deceased. The deceased died due to shock
and hemorrhage and injuries on liver which
must be caused by pharsa or ballam. The
present appellants were having lathi as a
weapon. Accused Mata Prasad and Bhurey
@ Dinesh Kumar were having such deadly
weapons which shows their intention to kill
the deceased and not the present appellants.
The presents appellants only wanted to cause
bodily injuries to the deceased and they were
not having any intention to kill the deceased.
The injury no. 1 was main responsible to
cause death of the deceased and the said
injury was sustained on the abdominal part of
the deceased and this injury may only be
caused by a single assault. Injury nos. 3, 7, 8,
9 and 10 are also stated to be caused on nonvital parts. The said injuries also indicate that
the appellants caused injuries to the deceased
without intention to kill him. Moreover, the
accused appellants belong to same family and
accused Mata Prasad and his son Bhurey @
Dinesh Kumar who were armed with pharsa
and ballam have died during pendecy of the
appeal and the appeal in respect of them has
abated and now the appeal survives on behalf
of the appellants who are stated to be armed
with lathi.

49. Considering the evidence of the
witnesses and also considering the medical
526 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence including postmortem report,
there is no doubt left in our mind about the
guilt of the appellants. However, the
question which falls for our consideration
is whether, on appreciation of the peculiar
facts and circumstances of the case, the
conviction of the appellant deserves to be
converted under Section 304 Part I or part
II of the I.P.C.

50. The academic distinction between
'murder'
and
culpable
homicide
not
amounting to murder has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the term used by the legislature in these
Sections, allow themselves to be drawn into
minute abstractions.

51. On overall scrutiny of the facts and
circumstances of the present case coupled
with the opinion of the Medical Officer and
the principle laid down by the Apex Court
in the catena of judgments, we are of the
considered opinion that offence would be
punishable under Section 304 Part I of the
I.P.C.

52.
Point
No.
VI
is
decided
accordingly.

53. In view of the discussions made
above, we are of the considered view that
the impugned judgment and order is liable
to be confirmed insofar as conviction and
sentence under Section 147 I.P.C. is
concerned.
However,
insofar
as
the
conviction and sentence under Section 302
read-with Section 149 I.P.C. is concerned
instead of holding accused appellants guilty
of offence punishable under Section 302
read-with Section 149 I.P.C., they are held
guilty of offence under Section 304 Part I
read with Section 149 I.P.C. The conviction
is liable to be altered and modified and the
appeal is liable to be allowed partly.

54. Accordingly, the appeal filed by
the appellants is partly allowed. The
conviction and sentence of appellants under
Section
147
is
affirmed
and
their
conviction under Section 302 read-with
Section 149 I.P.C. is modified as above and
the accused appellants are convicted for
offence punishable under Section 304 part I
I.P.C.
read-with
Section
149
I.P.C.
Therefore while modifying the sentence of
life imprisonment under Section 302/149
I.P.C., both the appellants are sentenced to
10 years rigorous imprisonment and Rs.
5000/- fine and in case of default of
payment of fine within two months to
undergo simple imprisonment for an
additional period of two months. All the
sentences shall run concurrently. The
period of sentence already undergone by
them shall be adjusted in the sentence
awarded by this Court.

55. During the course of trial, the
appellants are on bail. Their personal bonds
and surety bonds are cancelled and sureties
discharged. The accused appellants namely
Pappu, Puttan and Daddan are directed to
surrender before the trial court forthwith to
serve out the remaining term of sentence
and deposit the fine imposed. If they fail to
surrender as directed, the trial court shall
take necessary action against the appellants
for ascertaining compliance of the order of
conviction and sentence.

56. Let the trial court record be
transmitted to the trial court forthwith
along-with a copy of judgment, with a
direction that it shall take immediate steps
for arrest of appellants for serving the
remaining term of sentence.
----------
11 All. Prateek Agarwal Vs. State of U.P. & Anr.
527
(2024) 11 ILRA 527
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.11.2024

BEFORE

THE HON'BLE RAJEEV SINGH, J.

Application U/S 482 No. 10390 of 2024

Prateek Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ayush Singh, Rudra Pratap Singh, Sushil
Kumar Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 209-A & 482 -
The Indian Penal Code, 1860 - Sections
302 & 328 - Bharatiya Nagarik Suraksha
Sanhita, 2023 - Sections 210 & 223(1) -
Application u/s 482 - for quashing entire
criminal proceedings - FIR - offence of murder -
police filed final report - complainant filed
protest petition - which was treated as
complaint case - issue notices - examination of
complainant - court finds that, trial court issue
notices without recording the St.ment of
complainant as well as witnesses - held, in light
of judgment and order passed in case of Sri
Basangouda R. Patil Vs Sri Shivananda S. Patil -
impugned order is in violation of the provision of
Section 223 of BNSS - hence, application is
allowed - matter is remitted back to the learned
Magistrate to pass fresh order after recording
the St.ment of the complainant as well as
witnesses. (Para - 6, 9, 10, 11)

Application Allowed. (E-11)

List of Cases cited:

Shri Basanagouda R. Patil Vs Shri Shivananda S.
Patil - Criminal Petition No. 7526/2024 Dated
27.09.2024 passed by Hon'ble High Court of
Karnataka.

(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard Sri Sushil Kumar Singh,
learned counsel for the applicant and Sri
Alok Kumar Tiwari, learned A.G.A. for the
State.

2. The present application under
Section 482 Cr.P.C. is filed with the prayer
to quash the impugned order dated
8.11.2024 passed by the Sessions Judge,
Sitapur, in Criminal Revision No.Nil/2024
(C.I.S.S.
No.187/2024,
Case
Crime
No.460/2023, under Sections 302, 328
I.P.C., Police Station Kotwali, District
Sitapur) as well as the order dated
15.10.2024, passed by the Chief Judicial
Magistrate, Sitapur.

3. With the consent of learned A.G.A.,
present application under Section 482
Cr.P.C. is being decided finally.

4. Learned counsel for the applicant
submits that the applicant was falsely
implicated in the present case, as no
evidence
was
found
after
detail
investigation final report was submitted by
the Investigating Officer. He further
submits that protest petition was filed by
the complainant of the present case, which
was treated as a complaint case by the
learned trial court on 15.10.2024 under
Section 210 of B.N.S.S., 2023 and notice
was issued to the accused person/applicant
under the provisions of proviso (1) of
Section 223 of B.N.S.S.

Learned counsel for the applicant
submits that prior to the issuance of notice
to the accused/applicant, it was obligatory
on the part of the learned court below to