# Mohan & Ors v. State of U.P

- **Citation:** (2022) 9 ILRA 1464
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-03
- **Case number:** Criminal Appeal No. 879 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-ors-v-state-of-u-p-49024
- **Pages:** 7

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34 & 302 -
Appeal - against conviction - complaint - FIR -
offence of murder - informant alleged that when
his brother was sleeping with his son he heard a
noise of firing and when he went to the place,
he saw that one of the accused was shooting at
his brother who was died - evaluation of
evidence - it is an admitted position of fact that
no one had seen the firing - the role assigned to
each accused persons has not been spelled out
in testimony of any of witnesses - no injuries of
lathi rather stick on body of deceased - nobody
has seen the role of Mohan - neither fire arm
was recovered nor Forensic Science Lab report
was produced and nor any injuries were caused
to Child who was sleeping with deceased even
though there were alleged to be 93 pellets are
found as well as no blood stain was found on
the cot where alleged firing was said to have
been taken place - all these proves that there is
political rivalry - Court have no other option but
to upturn the impugned judgment - appeal is
accordingly allowed. (Para 15, 16, 17, 2322,
24)

Appeal allowed. (E-11)

List of Cases cited:

St. of M.P. Vs Gharkole (AIR 2005 SC 44).

## Text

1464 INDIAN LAW REPORTS ALLAHABAD SERIES

5. After passing of the impugned
judgment and order of conviction, the
appellants were granted interim bail by the
learned trial court and at the time of admission
of the present appeal they have been released on
bail vide order dated 06.04.2011 passed by this
Court.

6. With the consent of learned counsel for
the parties, the present criminal appeal is being
decided on the question of sentence only.

7. Learned counsel for the appellants
submits that maximum sentence provided to
each of the appellants is two years rigorous
imprisonment for offence punishable under
Section 325/34 I.P.C. and they have already
undergone a substantial period of incarceration.
The crime was committed in the year, 2000 and
the appellants were convicted by the trial court
in the year 2011, and now they are on bail. A
sufficient time has passed, therefore, their rest
of sentence be converted into fine and the same
shall not be treated as enhancement of sentence.

8. Learned A.G.A. opposed the prayer for
quashing of the impugned judgment and order
passed by the court below and has submitted
that the learned trial court has rightly convicted
and sentenced the appellants by the impugned
judgment and order after considering the
evidence on record before it, hence no
interference is called for by this Court and the
appeal is liable to be dismissed.

9. I have perused the impugned judgment
and order passed by the court below and have
gone through the entire record. In my opinion
the impugned judgment and order does not
suffer from any illegality, perversity or
jurisdictional error which may call for any
interference by this Court, hence the conviction
and sentence of present appellants is hereby
upheld. But taking in account of the fact that
appellants have already undergone sufficient
period in jail as under trial and after conviction
by the trial court, their rest of sentence is
converted into a fine.

10. Accordingly, surviving appellants are
directed to pay and deposit a fine of total Rs.
20,000/- in the court of C.J.M. concerned, out
of which Rs. 15,000/- shall be paid to the
informant and 5,000/- shall go to the State,
which shall be used by the State Government in
some health programme. If appellants deposit
the aforesaid amount of fine, they shall be
released forthwith, if not already released, and
further if not wanted in any other case.

11. In default of the fine as directed
above, the appellants shall serve out the
sentence as awarded by the trial court.

12. In view of the above, the present
criminal appeal is partly allowed.

13. Office is directed to send a certified
copy of this order to C.J.M., concerned for its
compliance.

14. Let the lower court record, if any, be
sent back to the court below forthwith.
----------
(2022) 9 ILRA 1464
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

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

Criminal Appeal No. 879 of 2018

Mohan & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
9 All. Mohan & Ors. Vs. State of U.P.
1465
Sri Akhilesh Kumar Mishra, Ms. Abida Syed
(AC), Sri Kamlesh Kumar Tiwari, Sri
Surendra Kumar Chaubey

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34 & 302 -
Appeal - against conviction - complaint - FIR -
offence of murder - informant alleged that when
his brother was sleeping with his son he heard a
noise of firing and when he went to the place,
he saw that one of the accused was shooting at
his brother who was died - evaluation of
evidence - it is an admitted position of fact that
no one had seen the firing - the role assigned to
each accused persons has not been spelled out
in testimony of any of witnesses - no injuries of
lathi rather stick on body of deceased - nobody
has seen the role of Mohan - neither fire arm
was recovered nor Forensic Science Lab report
was produced and nor any injuries were caused
to Child who was sleeping with deceased even
though there were alleged to be 93 pellets are
found as well as no blood stain was found on
the cot where alleged firing was said to have
been taken place - all these proves that there is
political rivalry - Court have no other option but
to upturn the impugned judgment - appeal is
accordingly allowed. (Para 15, 16, 17, 2322,
24)

Appeal allowed. (E-11)

List of Cases cited:

St. of M.P. Vs Gharkole (AIR 2005 SC 44).

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard Shri Surendra Kumar
Chaubey,
learned
counsel
for
the
appellant-Mohan;
Ms.
Abida
Syed,
learned Amicus Curie for unrepresented
litigants; and Shri N.K. Srivastava,
learned counsel for the respondents.
Perused the record.

2. During trial the main assailant,
accused-Kedar has breathed last and the
other three accused Mohan and two
others faced the trial, all the accused have
been convicted for commission of offence
under Section 302 of Indian Penal Code
and sentenced to life imprisonment. The
accused were punished sentenced to life
imprisonment with the aid of Section 34
of the IPC and fine of Rs.50,000/- each
and default sentence of 6 months if they
did not deposit the amount of fine.

3. The first Information report given
on 13.10.1993 is to this effect that
brother of the informant namely Ram
Sevak son of Rupai was done to death on
12.10.1993 at about 11 p.m by firing. The
brother of the informant was sleeping on
his bed with his son and the informant
was sleeping in his hut and suddenly on
the noise of firing the informant woke up
and went in the direction from where the
noise had come. The informant and others
went in the direction from where the
noise had come and saw that Kedar was
shooting at the brother of the informant
who died and Kedar was shouting that,
Mohan run, Ram Sevak is dead, till then
Jangi son of Sajjan and Hansraj son of
Ram Ratan came there and after hearing
the shouting they had tried to catch the
accused, but all four accused persons
Kedar son of Gauri, Mohan son of Ram
Shree, Budhiram son of Vanshraj and
Daroga son of Ramdhani ran away from
the place of occurrence.

4. According to the informant,
accused Mohan and Kedar were carrying
country-made pistol (Katta) and Budhiram
and Daroga were carrying lathi in their
1466 INDIAN LAW REPORTS ALLAHABAD SERIES
hands. The informant taking some other
people with him and the Chowkidar went to
house of Kedar and Mohan as they believed
that after committing the said act they
might have reached home but they were not
at home, they went again at the place of
occurrence to take the injured to hospital.

5. The informant further informed that
before 20 days there was auction in their
village in which brother of the informant
(namely deceased) and Kedar both had
taken part but as the auction money was
more, Kedar could not deposit the money
or get the bid in his favour because of non
depositing of money which bid was allotted
to the brother of informant (deceased).
From the said day Kedar and Mohan had
grudge against the deceased. It is further
alleged that accused Mohan had by force
encroached on the land known as Kali Mata
Temple and so the village people along
with deceased had objected to this act of
Mohan and, therefore, both the accused
Kedar and Mohan in connivance with the
other two accused had committed the act
causing the death of brother of informant
by firing gunshot from close range.

6. The information culminated into
FIR and investigation was kept in motion.
The
statements
of
witnesses
were
recorded by investigating officer and
after completing the investigation, the
police filed the charge sheet which
culminated into case being committed to
the court of session as it was sessions
triable case.

7. The accused on being summoned
appeared before the learned Sessions
Judge. The learned Judge framed the
charge on 27.2.2000. The accused pleaded
not guilty and wanted to be tried. During
trial Kedar died and trial abated qua him.

8. The prosecution examined 10
witnesses who are as follows:

1

2

3

4

5

6

7

8

9

10
Rama Shanker

Jangi

Dheera

Ram Asrey

Rukmuddin
@
Samsuddin

Tirath Ram

Ramakant

Chandrabhan
Singh

Harihar Prasad

Dr. V.K. Dubey

PW1

PW2

PW3

PW4

PW5

PW6

PW7

PW8

PW9

PW10

9. In support of ocular version
following documents were filed:

1

2
3

4

5

6
7
First Information
Report
Written Report
Recovery Memo
of blood-stained
cloth pellets and
Tickli
Recovery Memo
of blood stained
and plain earth
Postmortem
Report
Panchayatnama
Charge-sheet
Mool
Ex.Ka.2

Ex.Ka.1
Ex.Ka.7

Ex.Ka.8

Ex.Ka.14

Ex.Ka.6
Ex.Ka.5
9 All. Mohan & Ors. Vs. State of U.P.
1467
8

Site Plan with
Index
Ex.Ka.4

10. On the witnesses being examined
and the prosecution having concluded its
evidence, the accused were put to questions
under Section 313 Cr.P.C.

11. It is submitted by the counsel for
appellants that the FIR did not mention that
Mohan was the person who had fired
gunshot. The FIR was proved the evidence
of PW-1 and corroborated by PW-2 that it
was Kedar who had fired gunshot injuries
which caused death of the deceased
instantaneously. On the basis of First
Information Report and deposition of
doctor who performed the post mortem, it
is submitted by learned counsel for
appellants that Mohan accused is entitled to
benefit of doubt.

12. Shri Chaubey, learned counsel for
the accused has vehemently submitted that
it is not the case of prosecution that Mohan
had caused the firearm injuries. According
to counsel for appellants, during the
investigation 93 pellets were found and 5
dead cartridges were recovered. According
to learned counsel for appellant, there is
only one injury despite the fact that two
injuries are mentioned to have been caused,
but the post mortem report shows that there
was one injury which reads as follows:

"(i) A fire arm wound of entrance
measuring 2 cm x 2 cm x chest cavity-deep
on the left side chest upper part just above
Clavicular region, margins of wound
inverted. Blood & scorching round the
wound seen. Wound directed downward."

13. The learned trial Judge has
convicted the accused on the basis of the
evidence which according to the learned
court below pointed out the figures towards
the present accused. PW-3 has not
witnessed the incident. PW-6 and PW-7
have given a different version, then that
which were given in the statement under
Section 161 of Cr.P.C. The witnesses were
put to questions about dacoity in the said
village
which
the
witnesses
have
categorically denied. The witness has
categorically mentioned that Kedar and
Mohan had enmity with the deceased that is
why he was done to death by accused. PW2 has deposed that he came after hearing of
the gun-fire and when he was going
towards the residence of Ram Sevak, he
heard the second fire and he run and went
towards the residence of Ram Sevak, it is
deposed that by PW-2 that the other people
who had seen the accused with Kedar going
away told him about this fact. PW-5 has
corroborated to certain extent that the death
occurred at 11 pm. He was sleeping on roof
top, when came down he saw the deceased
and he breathed last.

14. The prosecution before the trial
judge
had
contended
that
minor
contradictions should not be considered to
grant acquittal. It is submitted that on
minor contradictions, benefit of doubt
cannot be granted to the accused who have
committed the offence.

15. While considering the factual
scenario, there are certain aspects which
require to be noted, namely, the fire arm
injuries were alleged to be fired by Kedar
and not by Mohan; no firearm was
recovered from Mohan; and there is no
Forensic Science Lab report. The ocular
versions of PW-1 and PW-2 does not see
that it was Mohan who had fired any
gunshot neither the evidence case to show
that it was Kedar who had shot and convey
to Mohan to flee from the seen of offence.
1468 INDIAN LAW REPORTS ALLAHABAD SERIES

16. It is an admitted position of fact
that no one had seen the firing. The role
assigned to Daroga and Buddhiram is not
spelled out in testimony of any of the
witnesses and there are no injuries of lathi
rather the stick on the body of the deceased.

17. While going through the evidence
and the findings of fact, we fail to
understand that there are no reasoning
given by the learned Judge so as to come to
the conclusion that accused were the
perpetrators of the crime, the fact that no
injuries were caused to child who was
sleeping with deceased Ram Sevak though
there were 93 pellets found also does not
find any mention in the judgment. The
evidence of PW-1 and PW-2 also does not
inspire confidence. No blood was found on
the cot where alleged firing was said to
have taken place as is deposed by PW-1.
The evidence also proves that there is
political rivalry.

18. The evidence of witnesses is
reproduced in Hindi in our ready reference
so that this becomes crystal clear for us to
decide whether the accused have been
involved in the commission of offence or
not:-

"गवस्तर पर िोई ि न नहीं गिरा था ।
मै झोपडी िे अंिर नहीं सोया हुआ था । झोपड़ी
िे बाहर िो ििम िी िुरी पैर सोया था । यही
बार् मैंने अपने र्हरीर में भी गलिवाया था ।
और यही बार् मैंने िरोिा जी िो भी बर्ाया था
िी झोपडी िे बाहर िरवाजे पर सोया हुआ था ।
अिर मेरे र्हरीर में यह बाि िी "हम उसी से
चार ििम उत्तर अपनी झोपडी में सोये थे"
गलिा हो र्ो मैं इसिी वजह नहीं बर्ा सिर्ा ।
अिर िरोिा जी ने मेरे बयान में झोपडी से सोने
वाली बार् गलिा हो र्ो मैं उसिी वजह नहीं बर्ा
सिर्ा । िोली िी पहली आवाज सुनिर मैं
चारपाई से उठिर िुमटी िी आड़ में चला
ियागवस्तर पर िोई ि न नहीं गिरा था । मै
झोपडी िे अंिर नहीं सोया हुआ था । झोपड़ी िे
बाहर िो ििम िी िुरी पैर सोया था । यही बार्
मैंने अपने र्हरीर में भी गलिवाया था । और यही
बार् मैंने िरोिा जी िो भी बर्ाया था िी झोपडी
िे बाहर िरवाजे पर सोया हुआ था । अिर मेरे
र्हरीर में यह बाि िी "हम उसी से चार ििम
उत्तर अपनी झोपडी में सोये थे" गलिा हो र्ो मैं
इसिी वजह नहीं बर्ा सिर्ा । अिर िरोिा जी
ने मेरे बयान में झोपडी से सोने वाली बार् गलिा
हो र्ो मैं उसिी वजह नहीं बर्ा सिर्ा । िोली
िी पहली आवाज सुनिर मैं चारपाई से उठिर
िुमटी िी आड़ में चला िया. ि सरा फायर िरने
िे बाि जब जाने लिे र्ब मैंने शोर गिया. उसिे
बाि र्ुरंर् हंसराज व् जंिी आ िए र्ब हम र्ीनो
लोि मुखिमान िा पीछा िरने लिे. उसिे
बाि चिरोड पक्काडिर िे भाि िए. िौड़र्े
समय मुखिमान ने हम लोिो िो जान से मरने
िी धमिी िीया था. िटे िे पीछे मर् पद्दो नहीं
र्ो र्ुमिो भी मर िेंिे. र्ब हम लोि जान िए िी
मोहन िेिार बुगधराम और िरोिा हैं. उसिे बाि
हम लोि थोड़ा पीछे हट िए र्ब मुखिम वह से
भाि िए । ि सरा फायर िरने िे बाि जब जाने
लिे र्ब मैंने शोर गियागवस्तर पर िोई ि न नहीं
गिरा था । मै झोपडी िे अंिर नहीं सोया हुआ था
। झोपड़ी िे बाहर िो ििम िी िुरी पैर सोया
था । यही बार् मैंने अपने र्हरीर में भी गलिवाया
था । और यही बार् मैंने िरोिा जी िो भी बर्ाया
था िी झोपडी िे बाहर िरवाजे पर सोया हुआ
था । अिर मेरे र्हरीर में यह बाि िी "हम उसी
से चार ििम उत्तर अपनी झोपडी में सोये थे"
गलिा हो र्ो मैं इसिी वजह नहीं बर्ा सिर्ा ।
अिर िरोिा जी ने मेरे बयान में झोपडी से सोने
वाली बार् गलिा हो र्ो मैं उसिी वजह नहीं बर्ा
सिर्ा । िोली िी पहली आवाज सुनिर मैं
चारपाई से उठिर िुमटी िी आड़ में चला िया.
ि सरा फायर िरने िे बाि जब जाने लिे र्ब
मैंने शोर गिया. उसिे बाि र्ुरंर् हंसराज व्
9 All. Mohan & Ors. Vs. State of U.P.
1469
जंिी आ िए र्ब हम र्ीनो लोि मुखिमान िा
पीछा
िरने
लिे.
उसिे
बाि
चिरोड
पक्काडिर िे भाि िए. िौड़र्े समय
मुखिमान ने हम लोिो िो जान से मरने िी
धमिी िीया था. िटे िे पीछे मर् पद्दो नहीं र्ो
र्ुमिो भी मर िेंिे. र्ब हम लोि जान िए िी
मोहन िेिार बुगधराम और िरोिा हैं. उसिे बाि
हम लोि थोड़ा पीछे हट िए र्ब मुखिम वह से
भाि िए । उसिे बाि र्ुरंर् हंसराज व जंिी आ
िए र्ब हम र्ीनो लोि मुखिमान िा पीछा
िरने लिे। उसिे बाि चिरोड पिड़िर िे
भाि िए। िौड़र्े समय मुखिमान ने हम लोिो
िो जान से मरने िी धमिी िीया था। िट्टे िे
पीछे मर् पडो नहीं र्ो र्ुमिो भी मर िेंिे। र्ब
हम लोि जान िए िी मोहन िेिार बबुखिराम
और िरोिा हैं। उसिे बाि हम लोि थोड़ा पीछे
हट िए र्ब मुखिम वहां से भाि िये ।

जब मैं रर् में शोर सुनिर राम सेवि
िे घर िया र्ो वहां मोहन नहीं था मेरे सामने
बिमाशो िो िोई िोजने भी नहीं िया था "

19. The provisions of Section 34 of
the IPC are also not made out. Nobody has
seen the role of Mohan. Only Rama
Shanker and Hansraj who had given the
name of Buddhiram and Daroga as held
above, no incriminating instruments were
found from their possession.

20. In our case the judgment of the
Apex Court in State of Madhya Pradesh
v. Gharkole, AIR 2005 SC 44 will not be
applicable to the facts of this case as the
judgment will also not help the prosecution
and the learned trial Judge has brushed
aside the judgment cited by counsel for the
accused. Just because the informant was
sleeping at four steps from the coat of the
deceased, it is very doubtful as to he came
after the second shot was heard by him. It
was Kadar who had fired and nobody had
seen Mohan at the time of the incident.

21. While discussing the parameters
on which the accused can be convicted, the
evidence and the decision of the court
below has to be also evaluated .

22. We now come to the role of each
of the accused-appellants. All the three
accused-appellants were convicted for the
offence punishable under Section 302 read
with Section 34 of IPC. Section 34 of I.P.C.
reads as under :

"34.
Acts
done
by
several
persons
in
furtherance
of
common
intention.--When a criminal act is done by
several persons in furtherance of the
common intention of all, each of such
persons is liable for that act in the same
manner as if it were done by him alone."

23. In that view of the matter, we
have no other option but to upturn the
judgment of the learned Judge below and
appeal is allowed accordingly.

24. The accused if not wanted in any
other offence, we set free giving benefit of
doubt to the accused.

25. This court is thankful to counsels
for the parties for getting matter disposed
of .

26. Rs.12,500/- as honorarium be paid
to Ms. Abida Syed, who is appointed as
Amicus Curie by the High Court Legal
Services Committee.

27. Record and proceedings be sent
back to the Court below forthwith, if any
----------
1470 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 9 ILRA 1470
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL , J.
THE HON'BLE SUBHASH CHANDRA SHARMA, J.

Criminal Appeal No. 1102 of 1987

Siri Harijan & Anr. ...Appellants
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri S.N. Srivastava, Sri Anirudh Pratap
Singh Rathor, Ms. Jigyasa Singh, Ms.
Rajeshwari Singh

Counsel for the Opposite Party:
A.G.A.

(A) Criminal Law - Criminal Procedure Code,
1973 - Sections 161 - Indian Penal
Code,1860 - Sections 34, 299, 300, 302,
304(1), 304(2), 323 & 504: - Appeal - against
conviction and Sentence - FIR was lodged on the
St.ment of deceased - offence of murder - it is
alleged that incident has occurred in a fit of anger
and two sons had assault their father in
desperation to get their shares in the landed
property which was denied to them by their father
- Appreciation of evidence - from the injury report
as well as from the testimony of eye-witness, it is
evident that both the appellants had not
aimed/intent to cause their father's death -
deceased was conscious and speaking till he had
succumbed, he died due to he could not get
proper treatment - four elements of section 300 of
IPC was not proved - thus, offence would fall
under section 304 of IPC - held, surviving
appellants is not guilty of 'murder' (u/s 302 of IPC)
but his is guilty of 'culpable homicide not
amounting to murder' punishable in the first part
of section 304 of IPC - thus, appeal is allowed in
part - judgment under appeal is modified
accordingly. (Para 35, 36, 38, 40, 41, 42)

Appeal dismissed. (E-11)
List of Cases cited:

1. Virsa Singh Vs St. of Punj., AIR 1958 SC 465,

2. Rampal Singh Vs St. of U.P., (2012) 8 SCC
289,

3. Vineet Kumar Chauhan Vs St. of U.P., (2007)
14 SCC 660,

4. St. of Andhra Pradesh Vs Rayavarapu
Punnayya& anr., (1976) 4 SCC 382,

5. Rajwant Singh Vs St. of Kerala, AIR 1966 SC
1874,

6. St. of U.P. Vs Indrajeet, (2000) 7 SCC 249,

7. Satish Narayan Sawant Vs St. of Goa, (2009)
17 SCC 724,

8. Arun Raj Vs U.O.I., (2010) 6 SCC 457,

9. Phulia Tudu Vs St. of Bihar, (2007) 14 SCC
588,

10. Mohinder Pal Jolly Vs St. of Punj., (1979) 3
SCC 30 : 1979 AIR SC 577,

11. Aradadi Ramudu @ Aggiramudu Vs St.
through Inspector of Police, Yanam, (2012) 5
SCC 134.

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Ms. Jigyasa Singh and Ms.
Rajeshwari Singh learned Advocates for the
appellants and Sri Rupak Chaubey learned
AGA for the State-respondents.

2. This appeal is directed against the
judgment and order dated 16.12.1986
passed by the 2nd Additional Sessions
Judge, Ghazipur in Sessions Trial No. 68 of
1986 (State vs. Siri Harijan and Sripat
Harijan) whereby appellants Siri Harijan
and Sripat Harijan have been held to be
guilty for the offence punishable under