# Nanhak & Ors v. State

- **Citation:** (2024) 5 ILRA 1305
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Criminal Appeal No. 467 of 1983
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanhak-ors-v-state-52034
- **Pages:** 18

## Headnote

Criminal Law: Indian Penal Code, 1860 -
Sections 147, 149, 325, 323 & 426 -
Punishment for culpable homicide not
amounting to murder - Section 304 -
appellants who were five in number, had
formed an unlawful assembly and armed
with lathi, had reached the place of
incident - hurling abuses to Ramdev
started plucking mangoes and when he
resisted, on the exhortation of appellant
Hira Lal, all the five persons, assaulted the
victim and further when other witnesses
rushed to rescue him, they were also
assaulted, consequent to which, they
suffered injuries and have been medically
examined - During trial, all the three
injured witnesses and medical report have
completely corroborated the prosecution
story - Evidence of PW-1 Khetal, PW-2
Sukhdev and PW-3 Shiv Kumari, clearly
St.d that appellants were members of an
unlawful assembly and in furtherance of
their common object has committed the
incident (Para - 2, 43, 50)

Held: The cause of death, as noted in the postmortem report, appears to be coma and shock
due to head injury whereas other injuries have
been noted to be simple in nature. The weapon
assigned to the appellants is lathi danda, which,
by no stretch of imagination, can be said to be a
lethal weapon.The court must address itself to
the question of mens rea. If Section 300 (3) is to
be applied, the assailant must intend the
particular injury inflicted on the deceased. This
ingredient could rarely be proved by direct
evidence. Intention to kill is not the only intention
that makes a culpable homicide a murder. Thus,
the appellants had not committed the offence
that fall within the meaning of Section 300 of IPC
which is punishable under Section 302 of IPC.
The offence committed by the appellants would
be under Section 304 of IPC. Their conviction
under Section 325/149 IPC is, therefore, set
aside. CJM is directed to ensure the custody of
the appellants to serve out the remaining
sentences. Accordingly, the criminal appeal, filed
by the appellants, is dismissed (Para - 55, 56, 72,
73, 78, 81, 84)

Appeal is dismissed. (E-13)

List of Cases cited:

## Text

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5 All. Nanhak & Ors. Vs. State
1305
(2024) 5 ILRA 1305
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 467 of 1983
connected with
Government Appeal No. 1361 of 1983

Nanhak & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Palok Basu, Saurabh Basu

Counsel for the Respondent:
A.G.A., S.P. Singh

Criminal Law: Indian Penal Code, 1860 -
Sections 147, 149, 325, 323 & 426 -
Punishment for culpable homicide not
amounting to murder - Section 304 -
appellants who were five in number, had
formed an unlawful assembly and armed
with lathi, had reached the place of
incident - hurling abuses to Ramdev
started plucking mangoes and when he
resisted, on the exhortation of appellant
Hira Lal, all the five persons, assaulted the
victim and further when other witnesses
rushed to rescue him, they were also
assaulted, consequent to which, they
suffered injuries and have been medically
examined - During trial, all the three
injured witnesses and medical report have
completely corroborated the prosecution
story - Evidence of PW-1 Khetal, PW-2
Sukhdev and PW-3 Shiv Kumari, clearly
St.d that appellants were members of an
unlawful assembly and in furtherance of
their common object has committed the
incident (Para - 2, 43, 50)

Held: The cause of death, as noted in the postmortem report, appears to be coma and shock
due to head injury whereas other injuries have
been noted to be simple in nature. The weapon
assigned to the appellants is lathi danda, which,
by no stretch of imagination, can be said to be a
lethal weapon.The court must address itself to
the question of mens rea. If Section 300 (3) is to
be applied, the assailant must intend the
particular injury inflicted on the deceased. This
ingredient could rarely be proved by direct
evidence. Intention to kill is not the only intention
that makes a culpable homicide a murder. Thus,
the appellants had not committed the offence
that fall within the meaning of Section 300 of IPC
which is punishable under Section 302 of IPC.
The offence committed by the appellants would
be under Section 304 of IPC. Their conviction
under Section 325/149 IPC is, therefore, set
aside. CJM is directed to ensure the custody of
the appellants to serve out the remaining
sentences. Accordingly, the criminal appeal, filed
by the appellants, is dismissed (Para - 55, 56, 72,
73, 78, 81, 84)

Appeal is dismissed. (E-13)

List of Cases cited:

1. Masalti Vs St. of U.P. reported in (1964) 8 SCR
133

2. Bholey Vs St. of M.P., (Criminal Appeal No. 890
of 2012)

3. Sandeep Kumar Vs St. of Har., (Criminal Appeal
No. 2195 of 2023)

4. Parshuram Vs St. of U.P , (Criminal Appeal No.
524 of 2021)

5. Anbazhagan Vs The St. Represented by the
Inspector of Police, (Criminal Appeal No. 2043 of
2023)

6. Smt. Mathri Vs St. of Pun., reported in AIR
1964 SC 986

7. Bhagwant Vs Kedari, I.L.R. 25 Bombay 202

8. Basdev Vs St. of Pepsu, AIR 1956 16 SC 488

9. Reg. Vs Monkhouse, (1849) 4 COX CC 55(C)

10. Pulicherla Nagaraju @ Nagaraja Reddy Vs St.
of A.P , 2006 (11) SCC 444
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Rampal Singh Vs St. of U.P, (2012) 8 SCC 289

(Delivered by Hon'ble Rajiv Gupta, J.)

1. Heard Shri Saurabh Basu, learned
counsel for the appellants, Shri Purshottam
Upadhyay, learned AGA for the State and
perused the record.

2. The instant criminal appeal as well
as government appeal has been filed
against the judgment and order dated
18.02.1983 passed by 4th Additional
Sessions Judge, Mirzapur in Sessions Trial
No. 134 of 1981 (State of U.P. Vs. Nanhak
and 4 Others), arising out of Case Crime
No. 109 of 1979, Police Station Kotwali
Dehat, District Mirzapur, by which the
appellants have been convicted for the
offence under Section 147 IPC and
awarded the sentence of one year rigorous
imprisonment, under Section 325/149 IPC
and awarded the sentence of five years
rigorous imprisonment with a fine of
Rs.500/-, under Section 323/149 IPC and
awarded the sentence of six months
imprisonment with a fine of Rs.500/- and
under Section 426/149 IPC and awarded
the
fine
of
Rs.50/-
with
default
stipulations.

3. Apart from the aforesaid criminal
appeal, State of U.P. has also preferred a
government
appeal
against
the
said
judgment and order with the prayer to
reverse the acquittal of the accusedappellants under Section 302/149 IPC and
convict them for the said offence.

4. During the pendency of the
aforesaid
appeals,
accused-appellants
Purshottam and Hira Lal have passed away
and as such, criminal appeal as well as
government appeal, qua the said accused
persons, has been dismissed as abated.

5. Since both the appeals arise from the
same judgment and order, they are being
taken up together and disposed of by a
common judgment.

6. Shorn of unnecessary details, the
prosecution case is unravelled in the written
report lodged by one Ramdev, which was
registered vide Case Crime No. 109 of 1979,
under Sections 147, 149, 307, 325, 426 IPC,
Police Station Kotwali Dehat, District
Mirzapur registered vide G.D. Report No.
21. The written report, on the basis of which,
chik FIR has been registered, has been
marked as Exhibit Ka-1, prepared by PW-10
Juit Ram at the relevant date and time.

7. The allegations made in the FIR are
that first informant Ramdev is a permanent
resident of Village Mahkuchhwa, Police
Station Kotwali Dehat, District Mirzapur. It
is further stated that on 08.05.1979, accused
Nanhak had cut the Bamboo belonging to
Khetal and this fact was disclosed to Khetal
by the first informant Ramdev, consequent
to which, Nanhak got angry with Ramdev
and threatened to teach him a lesson.

8. It is further stated that on 09.05.1979
at about 6:00 PM, when the first informant
Ramdev was guarding his mango crop,
which he had purchased from one Ram
Khelawan,
accused
persons
Nanhak,
Purshottam, Hira Lal, Baul and Bihari,
armed with lathi danda, reached there and
started, felling mangoes and further hurled
abuses to Ramdev. On being resisted not to
abuse and pluck the mangoes, Hira Lal
exhorted the accused persons to assault and
kill the first informant Ramdev. On his
exhortation, all the assailants with a
common object, started assaulting Ramdev
with lathi danda. On alarm being raised,
Khetal, Sukhdev, Shiv Kumari and many
other persons rushed to rescue Ramdev,
5 All. Nanhak & Ors. Vs. State
1307
however, the assailants started assaulting
them also, consequent to which, Khetal,
Sukhdev and Shiv Kumari received injuries.
On alarm being raised, the assailants made
their escape good.

9. On the basis of the said allegations,
the first informant/ injured Ramdev got a
written report scribed by one Lallan (PW-4)
and reached the Police Station and handed
over the said written report to the Head
Moharrir Juit Ram (PW-10), who, on the
basis of the said written report, lodged the
chik FIR, which has been proved and
marked as Exhibit Ka-18. Corresponding
G.D. Report No.21 was also drawn, which
has been proved and marked as Exhibit Ka21. Khetal, Sukhdev and Shiv Kumari, who
also received injuries in the said incident,
had reached the Police Station alongwith
Ramdev, who was also an injured and their
Chitthi Majroobi was prepared, which has
been proved and marked as Exhibit Ka-22
and Exhibit Ka-23. On the basis of Chitthi
Majroobi, the first informant alongwith
three other injured persons were medically
examined on 09.05.1979 by Dr. C.P. Singh
(PW-6) and their injury reports were
prepared, which has been proved and
marked as Exhibit Ka-20, 21, 22, 23.

10. The investigation of the said case
was entrusted to S.I. Mohammad Kamil,
who visited the place of incident and
prepared the site plan, which has been
proved and marked as Exhibit Ka-8. The
Investigating Officer also collected the
blood-stained and plain earth from the
place of incident and kept it in a container
and prepared a fard recovery memo, which
has been proved and marked as Exhibit Ka9. The blood-stained clothes of the injured
Ramdev were also taken in possession by
the police, who prepared the fard recovery
memo, which has been proved and marked
as Exhibit Ka-10.

11.

The
Investigating
Officer
thereafter recorded the statement of the
witnesses, however, since the condition of
the victim Ramdev was serious, he was
admitted in District Hospital, Mirzapur.
The Investigating Officer reached the
District Hospital, Mirzapur to record his
statement,
however,
he
was
found
unconscious, thereafter, he could not regain
his consciousness and ultimately, he
succumbed to his injuries on 12.05.1979.
The information about the death of the
victim Ramdev was sent to S.O., Police
Station Kotwali Dehat, District Mirzapur
through ward boy, which was reduced in
writing in the General Diary at 4:00 PM,
which has been proved and marked as
Exhibit Ka-27. On the basis of the said
death memo, the case was converted under
Section 302 IPC. Thereafter, on the basis of
the said death memo, the police of Police
Station Kotwali Dehat reached the District
Hospital, Mirzapur and conducted the
inquest on the person of the deceased and
thereafter,
prepared
the
relevant
documents, namely, photo nash, challan
nash, Chitthi R.I., Chitthi C.M.O., etc. and
thereafter, dead body was sealed and
despatched for post-mortem and an autopsy
was conducted on the person of the
deceased on 12.05.1979 at about 12:30 PM.
In the said post-mortem report, the Doctor
has noted following injuries on the person
of the deceased, which are noted hereinbelow:-

(i) Lacerated wound 3 cm. x 1⁄4 cm. x
scalp deep on middle of left side head 11 cm.
above left ear with contused swelling 16 cm.
x 9 cm. extending to forehead and bridge of
nose.
1308 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Contusion 5 cm. x 2.5 cm. over both
eye lids of Rt. Eye.

(iii) Abrasion 5 cm. x 3 cm. outer,
middle of Rt. Arm.

(iv) Lacerated wound 2 cm. x 1⁄2 cm. x
muscle on front and middle of Rt. leg.

(v) Abrasion 2.5 cm x 1⁄2 cm. over outer
part of Rt. Elbow.

The cause of death has been noted to be
head injury and shock as a result of antimortem injury.

12. The Investigating Officer after
concluding the investigation, submitted the
charge-sheet against the accused persons, on
the basis of which, learned Magistrate had
taken cognizance of the offence and since
the case was exclusively triable by the court
of Sessions, made over the case to the court
of Sessions for trial, where it was registered
as Sessions Trial No. 134 of 1981 (State of
U.P. Vs. Nanhak and Others). The trial court
thereafter framed the charges against the
accused-appellants, which were read out and
explained to them, however, they abjured
the charges, did not plead guilty and claimed
to be tried.

13. During the course of trial, the
prosecution, in order to bring home the guilt
against the accused-appellants, examined
following witnesses. Their testimony, in
brief, is enumerated herein-under :-

14. PW-1 Khetal is an injured witness and
he, in his testimony, has stated that on the
day and time of the incident, the deceased
Ramdev was guarding his mango crop,
when the accused-appellants Nanhak and
Purshottam, Bihari, Hira Lal and Baul
reached there at about 6:00 PM and at the
relevant time, he was standing in the eastern
side, where Sukhdev and Shiv Kumari were
also present. He further stated that at the
relevant time, all the five assailants hurling
abuses to Ramdev started felling/ plucking
his mangoes. On resisting not to abuse and
to pluck the mangoes, Hira Lal exhorted the
assailants to kill him. He alongwith Sukhdev
and Shiv Kumari rushed to rescue him,
however, the said five assailants started
assaulting Ramdev, when they reached
there, he alongwith Sukhdev and Shiv
Kumari were also assaulted. On receiving
injuries, Ramdev fell down and his injuries
were bleeding, when the villagers reached
there, the assailants made their escape good.
The report in respect of the incident was
scribed by one Lallan, which was read out to
him and thereafter, he alongwith Ramdev,
Sukhdev and Shiv Kumari reached the
Police Station and handed over the report,
on the basis of which, the FIR was
registered. The police thereafter had sent
them
to
the
hospital
for
medical
examination, however, since the injuries of
Ramdev were serious, he was admitted in
the District Hospital, Mirzapur, where he
survived for two days and thereafter, he
succumbed to his injuries. He further stated
that one day prior to the said incident,
Nanhak had forcibly cut his Bamboo and
this fact was disclosed to him by Ramdev,
however, Nanhak came to know about the
said incident, as such, he threatened to see
him.

15. During cross-examination, PW-1
has reiterated the same story and further
stated that at the time of incident, Sukhdev
had pelted stones, which hit Purshottam,
however, Sukhdev had not assaulted
Purshottam with the lathi. In the said
incident, Sukhdev and Shiv Kumari also
received injuries. Ramdev suffered five
injuries, which were bleeding. At the time of
incident, Ramdev was not in a serious
condition and was speaking. The FIR was
scribed by Lallan, however, he did not visit
the Police Station. The FIR was registered
5 All. Nanhak & Ors. Vs. State
1309
on the dictation of Ramdev and thereafter,
he was taken to the Police Station on a
Rickshaw. He has denied the fact that
Ramdev was not unconscious and had not
dictated the FIR. He further denied the
suggestion that no attempt was made to
pluck the mangoes, consequent to which, the
quarrel started. He further denied the
suggestion that Sukhdev assaulted Baul by
kicks and fists, consequent to which,
Purshottam assaulted him, then he was
assaulted by Sukhdev and in the said fight,
they received injuries. He has further denied
the suggestion that FIR was lodged on the
next day.

16. PW-2 Sukhdev is another injured
witness and he has stated that on the day of
incident at about 6:00 PM, Ramdev was
guarding his mango crop and on the eastern
side, he was standing alongwith Khetal and
Shiv Kumari, when the assailants Nanhak,
Purshottam, Bihari Lal, Baul and Hira Lal
reached there and hurling abuses to Ramdev,
started plucking the mangoes. On resistance
being raised by Ramdev, Hira Lal exhorted
the accused persons to kill Ramdev,
consequent to which, all the five accused
persons assaulted Ramdev by lathi and when
they reached near Ramdev to to rescue him,
they were also assaulted. On receiving
injuries, Ramdev fell down and blood had
also fallen there. He further stated that on
account of cutting of Bamboo belonging to
Khetal, there was quarrel between Nanhak
and Ramdev, who extended threats to see
him leading to enmity. The information in
respect of the incident was scribed by Lallan
on the dictation of Ramdev and he alongwith
Khetal, Shiv Kumari and Ramdev had
reached the Police Station and lodged the
report. He has further stated that the police
constable has noted their injuries and
thereafter, they were taken for medical
examination, however, since the condition
of Ramdev was serious, he was admitted in
the District Hospital, Mirzapur.

17. During cross-examination, he
stated that at the relevant time of incident,
Lallan was not present there, however, he
reached subsequently. He further denied the
suggestion that mangoes were not plucked
and no quarrel took place. He further stated
that Ramdev suffered four-five injuries and
at the relevant time, Shiv Kumari was
grazing her cattle. He further denied the
suggestion that at the relevant time of
quarrel, five accused persons were not
present.

18. PW-3 Shiv Kumari is another
injured witness and she, in her examinationin-chief, has stated that incident had taken
place at about 6:00 PM in the evening and at
the relevant time, Ramdev was present in the
orchard guarding his mango crop, while she
was present in the sugar-cane field, Khetal
and Sukhdev were also present there. She
further stated that at the relevant time, five
persons Nanhak, Purshottam, Bihari, Baul
and Hira Lal, armed with lathi danda,
reached there and started plucking mangoes
and hurled abuses. On resistance by
Ramdev, Hira Lal exhorted to kill him,
consequent thereto, all the accused persons
started wielding lathi and when, she
alongwith Sukhdev and Khetal rushed to
rescue him, they were also assaulted. When
Sukhdev received injuries, he pelted stones,
which hit Purshottam causing him injury.
The FIR was scribed by Lallan and
thereafter, they reached the Police Station
and lodged the report, from where, they
were taken to the hospital for medical
examination.

19. During cross-examination, she
stated that they had reached the Police
Station on a Rickshaw and the injuries of
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
Ramdev were not simple in nature and at the
relevant time, she was grazing her cattle in
the field of Ram Khelawan, where sugarcane was grown and she received injuries in
the incident and fell down. Her statement
was recorded at about 10:00-12:00 PM. She
denied the suggestion that they received
injuries due to pelting of stones and not on
being assaulted by lathi. She further denied
the suggestion that Lallan was not present
and the FIR was scribed by some other
person.

20. PW-4 Lallan Ram is the scribe of
the FIR, who, in his examination-in-chief,
has stated that Ramdev was assaulted under
the mango tree and after the incident, he had
scribed the FIR on the dictation of Ramdev,
which was read out to him, who had put his
thumb impression. The written report has
been proved by him, which has been marked
as Exhibit Ka-1.

21. During cross-examination, he
denied the suggestion that Ram Lakhan is
his real brother and he is falsely deposing in
the instant case. On hearing alarm, he
himself reached the place of incident and
Ramdev asked him to scribe the report,
which was scribed at the dictation of
Ramdev. He further denied the suggestion
that he was not present at the place of
incident and had not scribed the FIR at the
dictation of Ramdev. He further denied the
suggestion that on the written report, thumb
impression of Ramdev is not marked and
subsequently, manipulated.

22. PW-5 Ram Nath is another witness
of the incident and has stated that incident
had taken place at 6:00 PM, while he was
returning to his home, however, he had not
witnessed the incident of assault as the
assailants had already made their escape
good, when he reached there, however, saw
Khetal, Shiv Kumari, Sukhdev and Ramdev
in an injured condition.

23. During cross-examination, he
stated that when he would proceed towards
his house from the shop, the mango tree
would fall on the way, where the incident
had taken place and he had seen the
assailants running away from the place of
incident and Ramdev had informed him the
name of the assailants. He further denied the
suggestion that he has falsely deposing in
the incident.

24. PW-6 is the Doctor C.P. Singh,
who had examined all the four injured
witnesses and prepared the injury reports,
which has been proved and marked as
Exhibit Ka-2, 3, 4, 5 respectively. All the
injured persons were brought to the hospital
by
Constable
Janardan
Pandey
on
09.05.1979.

25. During cross-examination, he
stated that Ramdev was got admitted in the
hospital and at the time of his admission, he
was conscious and oriented, however, on
12.05.1979 at about 3:00 PM, he died. The
death memo was sent at the Police Station.
He
further
proved
the
post-mortem
examination report of the deceased Ramdev
and has found anti-mortem injuries on the
person of the deceased. He further stated
that on account of assault, frontal bone of the
deceased was fractured in several pieces and
blood had coagulated there. He further
stated that on account of anti-mortem
injuries, he died and proved the post-mortem
examination
report,
which
has
been
exhibited as Exhibit Ka-7. He further stated
that in the ordinary course, his head injury
was sufficient to cause death. He further
stated that injuries of injured persons and the
deceased could have been caused by pelting
of stones.
5 All. Nanhak & Ors. Vs. State
1311

26.

PW-7
Mithoo
Ram
had
accompanied the Investigating Officer
Mohammad Kamil Siddiqui (Now Dead) for
the investigation. He further stated that on
the next day, the Investigating Officer had
recorded the statement of Sukhdev, Khetal
and Shiv Kumari and prepared the site plan,
which has been proved and marked as
Exhibit Ka-8. The factum of recovery of
blood-stained earth and plain earth collected
by the Investigating Officer and kept in a
container, was also proved by him and
marked as Exhibit Ka-9. The blood-stained
cloth, which was brought at the Police
Station by one Murli Prasad, was also taken
in possession and fard recovery memo was
proved and marked as Exhibit Ka-10. After
concluding the investigation, the chargesheet was submitted by the Investigating
Officer, which has been proved by him as
Exhibit Ka-11.

27. During cross-examination, he
stated that blood was found under the mango
tree, however, no Bamboo was found. He
denied the suggestion that he had not
accompanied the Investigating Officer.

28. PW-8 Tribhuwan Yadav is the
Constable, who had taken the dead body of
the deceased for post-mortem examination
and handed over the relevant papers to the
Doctor for conducting the post-mortem,
however, he has not cross-examined.

29. PW-9 Murli Prasad is the witness
of fard recovery memo and has stated that at
the relevant time, from the field of Ram
Khelawan, the Investigating Officer had
collected the blood-stained earth and plain
earth and prepared the recovery memo,
which has been proved and marked as
Exhibit Ka-9. He further stated that bloodstained cloth of the deceased was also given
by him to the Investigating Officer to
prepare its recovery memo and was got
signed by him.

30. PW-10 Juit Ram is the Head
Moharrir, who on the basis of written report
of the deceased Ramdev, had scribed the
chik FIR, which has been proved and
marked as Exhibit Ka-18. On the basis of the
said FIR, corresponding G.D. entry was
made vide G.D. Report No.21, which has
been proved and marked as Exhibit Ka-19.
He further stated that alongwith Ramdev
(Deceased), Khetal, Shiv Kumari and
Sukhdev had also reached the Police Station
and majroobi chitthi was prepared by
Chandra Bhan Yadav, which has been
proved and marked as Exhibit Ka-22 and
Ka-23. He further stated that at the relevant
time, S.I. Mohammad Kamil Siddiqui was
not present at the Police Station, however,
on his return, the investigation was entrusted
to him, who reached the place of incident
and prepared the relevant documents
including the fard recovery memos. On
12.05.1979, information about the death of
Ramdev was transmitted by ward boy,
which was noted in the G.D. and thereafter,
the case was converted from Section 307
IPC to Section 302 IPC. The inquest on the
person of the deceased was done by S.I.
Bharat Ratna and relevant documents were
prepared by him. On 09.05.1979, accused
Purshottam gave a report at the Police
Station on the basis of which, a noncognizable report (NCR) under Section 323
IPC was registered, which has been proved
and marked as Exhibit Ka-31. On the basis
of which, G.D. Report No.23 was prepared
and accused Purshottam was also medically
examined.

31. During cross-examination, he
further denied the suggestion that Ramdev
had not reached the Police Station and his
injuries report was subsequently prepared.
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
He further denied the suggestion that at the
relevant time, the FIR was not registered and
was subsequently registered.

32. PW-11 Dr. O.P. Taneja is the
Assistant Chemical Analyst at Vidhi Vigyan
Prayogshala and has stated that relevant
material relating to Case Crime No. 109 of
1979 was received by him in the lab and on
the basis of which, Guru Sharan Bhatnagar
had prepared the analysis report and he had
seen him preparing the documents in his
hand writing, which has been proved and
marked as Exhibit Ka-13.

33. After concluding the testimony of
the witnesses, statement of accused-persons
under Section 313 CrPC was recorded by
putting all the incriminating circumstances
to the accused-appellants, who denied the
incriminating circumstances and stated that
they have been falsely implicated and in his
defence, produced DW-1 Dr. G.D. Dubey,
who examined accused Purshottam to prove
his injuries, which are as under :-

(1). फटर हुआ घरव 4 से०र्ी० x .5 से०र्ी० र्रांस
तक गहरर सर की िरदहनी तरफ िरदहने तरफ करन से 13 से०र्ी०
ऊपर थर।

(2). नीिगू दनशरन 3 से०र्ी० x 2 से०र्ी० बरएां
शोल्डर के कांिे के सरर्ने िरग पर थर।

(3). खांररश 5 से०र्ी० x 2 से०र्ी० बरएां तरफ पीठ
पर इिीयक िेश्ट से जरर सर ऊपर थर व इनटीयर सुपीररयर इिीयक
स्परइन के 9 से०र्ी० िूरी पर थर।

ये चोटे तरजी थी रगड व कुन्ि आिे से आई थी व
सरिररण थी।

34. Dr. G.D. Dubey has further stated
that all the injuries are simple in nature
caused by blunt object and has proved the
said injuries, which has been marked as
Exhibit Kha-1. He has further stated that
said injuries are caused by lathi at 4:00-5:00
PM in the evening.

35. During cross-examination, he
stated that injury no.3 could be caused by
friction, whereas injury no.2 could be
caused by some blunt object, which may be
a result of pelting stones. He further stated
that injury nos. 2 & 3 are superficial,
however, injury no.1 is not superficial but
such injuries could be fabricated.

36. The trial court, after appreciating
the entire material and evidence available on
record, has held that the prosecution has
successfully established its case beyond all
reasonable doubts against the surviving
accused-appellants Nanhak, Bihari and
Baul, however, not for the offence under
Section 302/149 IPC but under Sections
147, 325/149, 323/149, 426/149 IPC. The
explanation
tendered
by
surviving
appellants has been found to be inadequate
and as such, they are liable for conviction for
the aforesaid offences.

37. Learned counsel for the appellants
has submitted that trial court has not
appreciated the material evidence on record
in right perspective and has illegally
recorded the finding of conviction against
the appellants even under the aforesaid
offences.

38. Learned counsel for the appellants
has next submitted that injuries of the
injured persons, namely, Khetal, Sukhdev
and Shiv Kumari are self inflicted and has
not been caused as alleged in their respective
testimonies.

39. Learned counsel for the appellants
has further submitted that in fact, accusedappellant Baul was being assaulted by Surli,
Murli and Sukhdev by kicks and fists and at
the
relevant
time,
accused-appellant
Purshottam reached there and tried to rescue
Baul, he was also assaulted by Surli, Murli
5 All. Nanhak & Ors. Vs. State
1313
and Sukhdev, on account of which,
Purshottam also received injuries and was
medically examined, which has been proved
by D.W.-1 however, the trial court has
completely overlooked the injuries received
by Purshottam and has illegally recorded the
finding of conviction against the appellants,
though a non-cognizable report has also
been lodged by Purshottam at the relevant
Police Station for assaulting him in the said
incident, as such, the impugned judgment
and order convicting and sentencing the
appellants is bad in law and is liable to be set
aside.

40. Per contra, learned AGA has
submitted that information in respect of the
said incident was lodged by victim Ramdev
himself, who has given a compete version of
the incident, wherein it is stated that
accused-appellants formed an unlawful
assembly and with a common object to kill
him, had assaulted him with lathi danda and
when other witnesses came to rescue him,
they were also assaulted having suffered
injuries on their person, who have testified
before the court and the defence has not
been able to elicit anything to doubt the
credibility of the said witnesses.

41. Learned AGA has next submitted
that looking to the injuries sustained by the
deceased and the injured persons as well as
the impeccable testimonies of the injured
witnesses recorded during the course of
trial before the court below, a clear case
under Section 302/149 IPC is made out
against the appellants. The contrary finding
recorded by the trial court that since only a
single fatal injury has been suffered by the
deceased but the author of the said fatal
injury has not been specified by the
prosecution in its evidence, as such, the
offence would fall under Section 325 read
with Section 149 and not under the changed
section i.e. 302/149 and other allied
offences is patently illegal, erroneous and
liable to be set aside outrightly.

42. Learned AGA has further
submitted that in the instant case, as many
as five persons had formed an unlawful
assembly and with a common object had
assaulted the deceased with an intention to
kill him, therefore, in any case, the offence
would not fall under Section 325/149 IPC
as held by the trial court but under Section
302/149 IPC, the contrary finding given by
the trial court is wholly illegal and is liable
to be set aside.

43. Having considered the rival
submissions made by learned counsel for
the parties and the evidences adduced by
the witnesses during the course of trial, it is
clear that the accused-appellants, who were
five in number, had formed an unlawful
assembly and armed with lathi, had reached
the place of incident and hurling abuses to
Ramdev started plucking mangoes and
when he resisted not to hurl abuses, on the
exhortation of accused-appellant Hira Lal,
all the five persons, armed with lathi danda,
assaulted the victim Ramdev and further
when other witnesses, namely, Khetal,
Sukhdev and Shiv Kumari rushed to rescue
him, they were also assaulted, consequent
to which, they suffered injuries and have
been medically examined. During the
course of trial, all the three injured
witnesses have completely corroborated
the prosecution story in all material
particulars and the defence has not been
able to point out any ambiguity or
embellishment,
exaggeration
or
improvement in their testimony so as to
doubt the credibility of the said witnesses.
Even the medical report of the deceased as
well as that of the injured witnesses
completely corroborates the prosecution
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
story and there is nothing on record to
doubt the credibility of the said witnesses.

44. So far as the submission of learned
counsel for the appellants to the extent that
in the said incident, accused-appellant
Purshottam has also suffered injuries on his
person and was also medically examined
and has also lodged a non-cognizable report
against
the
injured
person
Sukhdev,
however, trial court has not considered the
said evidence and has illegally recorded the
finding of conviction against the appellants
is concerned, it may be pointed out that the
said incident of assault made on Purshottam,
incident is said to have taken place at 4:00
PM in the evening, while the incident in
question is alleged to have occurred at 6:00
PM in the evening and therefore, the
information lodged by Purshottam in
respect of his assault by Sukhdev can not
be said to be the counter version of the
instant case, where victim Ramdev was
done to death and in fact, the incident
reported by Purshottam is completely a
different incident and therefore, on
account
of
receiving
injuries
by
Purshottam, the veracity of the instant case
can not be affected, in any manner, as
pleaded by learned counsel for the
appellants
and
therefore,
the
noncognizable report lodged by Purshottam in
respect of his assault by Sukhdev and two
others, does not affect, in any way, the
credibility of the said incident, in which,
Ramdev was killed and Khetal, Sukhdev
and Shiv Kumari had received injuries.
Thus, we are of the opinion that the said
incident, in which, Purshottam suffered
injuries will not have any hearing upon the
instant case and the prosecution will not
have any burden to explain the injuries
alleged to be received by Purshotttam
probably in some other incident and both
the cases cannot be linked together.

45. Thus, we find that the defence has
not been able to point out any circumstance,
which may doubt the credibility of the
witnesses,
who
by
their
impeccable
testimonies has proved the case against the
appellants beyond all reasonable doubt and
therefore, the finding of conviction recorded
by the trial court against the appellants do
not suffer from any illegality and the same
is just, proper and legal and the conviction
recorded against the appellants is liable to be
affirmed by dismissing the criminal appeal.

46. Now, the main question that arises
for our consideration in the Government
Appeal filed by the State is whether the
judgment and order passed by the trial court
acquitting the accused-appellants under
Section 302/149 IPC and convicting him
only under Section 325/149 IPC and other
allied offences is just, proper and legal or
erroneous, on the basis of evidence adduced
by the witnesses during the course of trial.

47. It is germane to point out here that
while recording the finding of acquittal
against
the
appellants
under
Section
302/149 IPC, the trial court has held that in
the instant case, since the deceased Ramdev
received only a single fatal injury on his
head at the hands of the accused persons,
which was caused by lathi but there is no
cogent evidence on record to prove that the
accused-appellants had common object to
kill Ramdev and the author of said injury has
not been specified, therefore, the offence, in
any case, would not fall under Section
302/149 IPC but under Section 325/149 IPC.

48. In our considered opinion, the said
finding recorded by the trial court does not
appears to be just, proper and legal. From
the entire evidence adduced before the trial
court, it is evident that the accused persons,
who were five in number, had formed an
5 All. Nanhak & Ors. Vs. State
1315
unlawful assembly and with a common
object, had assaulted the deceased and the
injured persons in furtherance of their
common object to kill Ramdev, as such,
present offence would not fall under Section
325/149 as held by the trial court.

49. Moreover, since the appellants
were the part of an unlawful assembly, it
was not necessary for the prosecution to
attribute the specific role to each of them. In
Masalti Vs. State of U.P. reported in (1964)
8 SCR 133, the Constitution Bench of this
Court has observed as under :-

13. The law with regard to
conviction under Section 302 read with
Section 149 of IPC has been succinctly
discussed by a Constitution Bench of this
Court in the locus classicus of Masalti Vs.
State of U.P., wherein this Court observed
thus:

"17. What has to be proved
against a person who is alleged to be a
member of an unlawful assembly is that he
was one of the persons constituting the
assembly and he entertained along with the
other members of the assembly the common
object as defined by Section 141 IPC.
Section 142 provides that whoever, being
aware of facts which render any assembly
an unlawful assembly, intentionally joins
that assembly, or continues in it, is said to
be a member of an unlawful assembly.

In other words, an assembly of five
or
more
persons
actuated
by,
and
entertaining one or more of the common
objects specified by the five clauses of
Section 141, is an unlawful assembly. The
crucial question to determine in such a case
is whether the assembly consisted of five or
more persons and whether the said persons
entertained one or more of the common
objects as specified by Section 141. While
determining this question, it becomes
relevant to consider whether the assembly
consisted of some persons who were merely
passive witnesses and had joined the
assembly as a matter of idle curiosity
without intending to entertain the common
object of the assembly.

It is in that context that the
observations made by this Court in the case
of Baladin [AIR 1956 SC 181] assume
significance; otherwise, in law, it would not
be correct to say that before a person is held
to be a member of an unlawful assembly, it
must be shown that he had committed some
illegal overt act or had been guilty of some
illegal omission in pursuance of the common
object of the assembly.

In fact, Section 149 makes it clear
that if an offence is committed by any
member of an unlawful assembly in
prosecution of the common object of that
assembly, or such as the members of that
assembly knew to be likely to be committed
in prosecution of that object, every person
who, at the time of the committing of that
offence, is a member of the same assembly,
is guilty of that offence; and that
emphatically brings out the principle that
the punishment prescribed by Section 149 is
in a sense vicarious and does not always
proceed on the basis that the offence has
been actually committed by every member of
the unlawful assembly."

14. It could thus clearly be seen
that the Constitution Bench has held that it
is
not
necessary
that
every
person
constituting an unlawful assembly must play
an active role for convicting him with the aid
of Section 149 of IPC. What has to be
established by the prosecution is that a
person has to be a member of an unlawful
assembly, i.e. he has to be one of the persons
constituting the assembly and that he had
entertained the common object along with
the other members of the assembly, as
defined under Section 141 of IPC. As
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
provided under Section 142 of IPC,
whoever, being aware of facts which render
any assembly an unlawful assembly,
intentionally
joins
that
assembly,
or
continues in it, is said to be a member of an
unlawful assembly.

50. Undisputedly, from the evidence of
PW-1 Khetal, PW-2 Sukhdev and PW-3
Shiv Kumari, it is clear that the present
appellants were members of an unlawful
assembly and undoubtedly, in pursuit of
their common object has committed the
incident, as such, in view of law laid down
by this Court in the case of Masalti (Supra),
it is not necessary that each of such person
for being convicted, must have actually
assaulted the deceased.

51. The Hon'ble Apex Court in
Criminal Appeal No. 890 of 2012 (Bholey
Vs. State of M.P.) has clearly held that to
constitute an offence under Section 149 IPC,
one cannot expect a witness to speak with
graphic detail about the specific overt act
that can be attributed to each accused.
Further, the Hon'ble Apex Court in
Criminal Appeal No. 2195 of 2023
(Sandeep Kumar Vs. State of Haryana) has
held that "for offence" under Section 149
IPC, one simply has to be a part of unlawful
assembly. No overt act needs to be assigned
to a member of unlawful assembly.

52. In Criminal Appeal No. 524 of
2021 (Parshuram Vs. State of U.P.), Hon'ble
Apex Court held that individual role/ and or
overt act by individual accused is not
significant, when all accused persons are
charged under Section 149 IPC and were
part of unlawful assembly.

53. As such, in view of the aforesaid
proposition of law laid by Hon'ble Apex
Court, we are of the view that in the facts
and circumstances of the case and the
evidence adduced by the injured eye
witnesses, the act of the accused respondents
would not fall under Section 325 read with
Section 149 IPC as held by the trial court,
which finding in our opinion is bad in law
and liable to be set aside.

54.