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

- **Citation:** (2020) 1 ILRA 1352
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-20
- **Case number:** Criminal Appeal No. 67 of 2014
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/niyamullah-ors-in-jail-v-state-of-u-p-45199
- **Pages:** 9

## Headnote

Criminal Law - Indian Penal Code -
Sections 147, 304/149, 504, 506 - Appeal
against conviction.

In present case the injury on the person of
deceased were not on vital part. Rather over
upper and lower limbs with back and trial has
concluded that it was not with intention to
cause death or to cause such bodily injury as is
likely to cause death. Though, those injuries
were grievous, resulting fracture as well as
death of injured on the same day of
occurrence. (para 10)

On the basis of facts and evidence placed on
record, prosecution was successful to prove its
case against appellants. (para 9)

The argument is for quantum of section it was
apparently of ten years rigorous imprisonment
with fine, which seems to be not in proportion
to degree of offence, because each of the
convicts
appellants
are
of
no
criminal
antecedent. They remained in prison since last
more than six years in this case crime number.
On the facts and circumstances and balancing
the societal need of punishment with their
chance of reformation for bringing them in
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
main stream of society, sentence of eight years
rigorous imprisonment with fine, as above,
seems to suffice the cause of justice. (para 10)

The appeal is partly allowed. (E-2)

## Text

1 All. Santosh Kumar Maurya Vs. Sri Alok Kumar
1353
down by the Division Bench of this Court
in UP Nursing Home Association and
others (Supra) is concerned, in that case
this Court has reiterated the views
expressed by it in the case of Dr.
Ravindra Kumar Goel and others vs.
State of U.P. and another decided on
27.4.2004 in Special Appeal No.320 of
2004, there were peculiar facts and
particularly background in which the
directions were issued to secure the ends
of justice while exercising the contempt
jurisdiction. The directions issued were
under
exceptional
circumstance,
otherwise, in para 7 of the judgment in
U.P. Nursing Home Association (Supra),
the Division Bench has reiterated the view
that in contempt jurisdiction, a Judge
cannot exercise a writ jurisdiction and
therefore, prayer of the petitioner for
issuing certain directions is refused. Even
otherwise, under Article 141 of the
Constitution, the law declared by the
Hon'ble Supreme Court being the law of
the land is binding on all Courts and
Tribunals
and
authorities
in
India
including this Court. The Hon'ble Supreme
Court in Narendra Singh vs. State of
Punjab reported in AIR 2014 SC 1839
(Supp.) has again held that the law
declared by the Supreme Court in the form
of judgment became binding precedent
upon the High Courts and subordinate
Courts and has to be followed under
Article 141 of the Constitution of India.
Therefore, in view of the law laid down by
Hon'ble Supreme Court in the case of
Sudhir Vasudeva (Supra) and Ashok
Kumar and others (Supra) as well as
keeping
in
view
the
significant
characteristics of the doctrine of stare
decisis, the contempt petition is dismissed.

11. Consigned to record.
----------
(2020)1ILR 1352

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 67 of 2014

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

Counsel for the Appellants:
Sri Sumit Gupta, Sri Abhishek Srivastava,
Sri Satish Trivedi, Sri Sheshadri Trivedi, Sri
Ajay Kumar Pandey, Sri Syed Wajid Ali

Counsel for the Respondent:
A.G.A., Sri K.K. Rao

Criminal Law - Indian Penal Code -
Sections 147, 304/149, 504, 506 - Appeal
against conviction.

In present case the injury on the person of
deceased were not on vital part. Rather over
upper and lower limbs with back and trial has
concluded that it was not with intention to
cause death or to cause such bodily injury as is
likely to cause death. Though, those injuries
were grievous, resulting fracture as well as
death of injured on the same day of
occurrence. (para 10)

On the basis of facts and evidence placed on
record, prosecution was successful to prove its
case against appellants. (para 9)

The argument is for quantum of section it was
apparently of ten years rigorous imprisonment
with fine, which seems to be not in proportion
to degree of offence, because each of the
convicts
appellants
are
of
no
criminal
antecedent. They remained in prison since last
more than six years in this case crime number.
On the facts and circumstances and balancing
the societal need of punishment with their
chance of reformation for bringing them in
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
main stream of society, sentence of eight years
rigorous imprisonment with fine, as above,
seems to suffice the cause of justice. (para 10)

The appeal is partly allowed. (E-2)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This appeal under Section 374(2) of
Code of Criminal Procedure (hereinafter
referred to as 'Cr.P.C.') has been filed by
Niyamullah, Mahendra, Sahendar, Wakeel,
Naushad, Kalimullah, Anaruddin and Enmul
Huda @ Dugru against judgment of
conviction and sentence made therein in
Sessions Trial No. 163 of 2004 (State Vs.
Niyamullah and others), arising out of Case
Crime No. 151 of 2004, under Sections 147,
304/149, 504, 506 I.P.C., Police Station
Kolhuee,
District
Maharajganj
with
connected Sessions Trial No. 31 of 2005
(State Vs. Anaruddin) and Sessions Trial
No. 92 of 2005 (State Vs. Enmul Huda @
Dugru) by Additional Sessions Judge, Court
No. 1, Maharajganj, whereby each of the
convicts-appellants
were
convicted
for
offences punishable under Section 304 Part-I
read with 149, 147, 504, 506 I.P.C. and they
have been sentenced with ten years rigorous
imprisonment and fine of Rs.10,000/- each
under Section 304 Part-I read with 149
I.P.C., one year rigorous imprisonment
under Section 147 I.P.C., six months
rigorous imprisonment under Section 504
I.P.C. and six months rigorous imprisonment
under Section 506 I.P.C. In case of default in
making fine, each of the convicts-appellants
were
to
undergo
one
year
rigorous
imprisonment. There was direction for
concurrent
running
of
sentences
and
adjournment of previous imprisonment, if
any.

2. Memo of appeal contends that
learned trial court failed to appreciate facts
and law placed on record. The convictsappellants No. 5 and 8 were not named in
first information report, which was lodged
by first informant himself, wherein PW-2
Izhar Ali was shown to be the eyewitness,
accompanying the first informant, but
subsequently, they were added. It itself
shows that both these witnesses of fact
were not with clean hands. Rather, they
have falsely implicated convicts-appellants
due to their personal enmity. PW-3
Nandlal and PW-4 Jumrat Ali were also
not shown to be the eyewitness account in
first information report, but subsequently
introduced as eyewitness account. There
was no intention to cause death of
deceased. Rather, the only said intention
was, though not admitted, for offence
punishable under Section 325 I.P.C.
Hence, the conviction of appellants under
Section
304
Part-I
I.P.C.
was
unsustainable
and
was
against
the
evidence on record. X-ray report of
deceased has not not been proved by the
prosecution or any witness. On the score
of this too, finding was erroneous. A
general allegations against appellants,
except appellant nos. 5 and 8, was levelled
with no disclosure as to who had caused
the stone injury on the lower back of
deceased. It seems that the said injury,
which could be a reason for the death of
deceased, situated on the left lower back,
was due to falling down from a height into
a pit hole, in which he got his limbs and
lower back injured, but subsequently due
to previous enmity, this false implication
occurred. Appellants are in jail since
20.12.2013. The conviction and sentence
of appellants is contrary to law, on the
point of sentencing too. The same is not
proportionate to offence. Rather, it is too
severe. Hence, this appeal is liable to be
allowed. Accordingly, this appeal be
allowed and judgment of conviction and
1 All. Niyamullah & Ors. Vs. State of U.P.
1355
sentence made therein be set aside.
Further, appellants be acquitted from the
charges levelled against them.

3. From the very perusal of record of
trial court and impugned judgment, it is
apparent that first information report
(Ext.Ka-3) was got lodged by way of
presenting a written report, signed by
informant Mahboob Alam at Police
Station Kolhuee, District Maharajganj on
25.09.2004
at
21.50
P.M.
against
Anaruddin,
Kalimullah,
Niyamullah,
Wakeel, Mahendra and Sahendar, all R/o
Saakinaan
Kamharia
Bujurg,
Tola
Bargadhia, P.S. Kolhuee, Maharajganj, for
offences punishable under Sections 147,
308, 325 I.P.C. for an occurrence, which
took place at about 4 P.M. on the same day
i.e. 25.09.2004, within the area of village
Kamharia Bujurg, with this contention that
informant Mahboob Ali along with his
cousin Izhar Ali, was on his way to their
home from 'Eksadawa Chauraha' on
25.09.2004 and when about 4 P.M. they
reached near wooden bridge, they found
that
Anaruddin,
S/o
Ali
Hasan,
Kalimullah, S/o Jafar, Niyamullah, S/o
Jafar, Wakeel, S/o Furd, Mahendra and
Sahendar, S/o Chinni Lal, were beating
informant's brother Mashoor Alam, by
lathi, who was lying on ground and
shouting for help. Upon this noise, he and
his cousin along with Yogender, S/o
Sundar rushed on spot. They intended to
save injured, but accused persons, while
seeing those persons, reaching on spot, ran
towards
river.
His
brother
was
unconscious, having fracture over both
upper and lower limbs. This assault was
owing to previous enmity. Injured was
taken to Bankati, Farenda Hospital from
where doctor opined for taking to Sadar
Hospital, Gorakhpur, where he was got
admitted
and
this
information
was
submitted for taking legal recourse.
Injured was medically examined at District
Hospital, Gorakhpur and medico legal
report (Ext.Ka-16) was got prepared by
Dr.
Hiralal
of
District
Hospital,
Gorakhpur. Injured was having following
injuries:-

1. Traumatic swelling 9cm x all
around on upper part of right forearm just
below elbow joint. K.U.O. Advised X-ray
right forearm.

2. Traumatic swelling on upper
part of left forearm 9cm x all around just
below left elbow. K.U.D. Advised X-ray
left forearm.

3. Lacerated wound 1cm x
0.5cm x muscle deep on anterior aspect of
right lower leg just below the right knee
joint.

4. Lacerated wound 3cm x 2cm
x bone deep traumatic swelling all around
the leg, 5cm above the right ankle joint.
K.U.O. Advised X-ray right lower leg.

5. Lacerated wound 1cm x
0.5cm on front of left lower leg, 7cm
below the left knee joint.

6. Lacerated wound 2cm x 1cm
x bone deep in front of left lower leg
traumatic swelling all around leg. K.U.O.
Advised X-ray left lower leg.

7. Abrasion 2cm x 2cm on
lateral aspect of left lower leg. 7cm above
the left ankle joint.

Owing to above injuries, while
being under treatment, injured succumbed
and this information was transmitted at
above police station, whereupon inquest
proceeding
was
got
conduced
by
Investigating Officer at District Hospital,
Gorakhpur on 26.09.2004 at 12.30 P.M.,
wherein witness of inquest opined death
owing to above anti mortem injuries, for
which
he
was
under
treatment.
Accordingly, documents, connected with
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
inquest proceeding i.e. letter to C.M.O.,
letter to Range Inspector, Police Form No.
13, Photo Dead Body, Specimen Seal, by
which this dead body was sealed after
wrapping in a cloth, were got prepared.
This
dead
body
along
with
those
documents were sent for its autopsy
examination, which was got conducted at
mortuary of District Hospital, Gorakhpur
on 26.09.2004 by Dr. R.P. Prasad, wherein
autopsy examination report (Ext. Ka-4)
was got prepared. The anti mortem
injuries, found on the person of deceased,
were as follows:-

1 Contused traumatic swelling
10cm x 5cm deformity on right upper arm
on cutting underlying bone fractured.

2. Contused traumatic swelling
12cm x 6cm deformity on left forearm on
cutting underneath both bone fractured.

3. Lacerated wound 1cm x 1cm
x muscle deep on the back of left upper
arm on lower end.

4. Stitched wound 6cm long
having two stitches on the left lower leg
outer aspect on cutting wound is muscle
deep.

5. Lacerated wound 3cm x 1cm
x muscle deep on outer aspect of left leg.

6. Stitched wound 4 cm long
having 1 stitched on upper part of medial
aspect leg on cutting wound is bone deep
underlying bone fractured.

7. Stitched wound 6cm long
having stitches on the right lower leg,
wound is deep, on cutting underlying bone
fractured.

8. Contusion 15 x 2cm on this
left lower back.

4. Investigating Officer visited spot,
prepared site map, took statements under
Section 161 of Cr.P.C., thereafter, filed
charge
sheet
against
Niyamullah,
Mahendra, Sahendar, Wakeel, Naushad
and Kalimullah, who were apprehended
and Enmul Huda @ Dugru, as absconder,
for offences punishable under Sections
147, 304, 504, 506 I.P.C., whereupon
Magistrate took cognizance. Subsequently,
charge sheet for other absconding accused
persons were filed, over which cognizance
was taken. Firstly, Sessions Trial No. 163
of 2004, was committed to court of
Sessions Judge by Court of C.J.M.,
Maharajganj, for accused Niyamullah,
Mahendra, Sahendar, Wakeel, Kalimullah
and
Naushad.
Subsequently
file
of
Anaruddin was committed and this was
Sessions Trial No. 31 of 2005. Thereafter,
file of Enmul Huda @ Dugru was
committed to court of Sessions, which was
Sessions Trial No. 92 of 2005. As all these
three sessions trial were arising out of one
and common Case Crime No. 151 of 2004
of Police Station Kolhuee for one and
same offences, punishable under Sections
147, 304/149, 504, 506 I.P.C., hence,
Additional Sessions Judge consolidated all
these three sessions trial by making
leading Session Trial No. 163 of 2004
(State Vs. Niyamullah and 5 others),
wherein evidence were recorded. After
hearing learned counsel for both sides,
charges were framed in all those three
sessions
trial
against
those
accused
persons for offences, as above, and it was
read over and explained, whereupon
accused persons pleaded not guilty and
claimed for trial. Prosecution examined
PW-1 Mahboob Alam, PW-2 Izhar Ali,
PW-3 Nandlal, PW-4 Jumrat Ali, PW-5
Constable Ramanand Bharti, PW-6 Dr.
R.P. Prasad, PW-7 S.I. Nirahuram, PW-8
S.I. Dilip Kumar Bind, PW-9 Constable
Ramdas Bharti, PW-10 Arun Kumar
Srivastava, Pharmacist, PW-11 Dr. Harilal.
Thereafter, for having explanation, if any,
of accused over incriminating evidence
1 All. Niyamullah & Ors. Vs. State of U.P.
1357
furnished by prosecution and getting
version of defence, statement under Section 313 of
Cr.P.C., were got recorded, wherein each of the
accused persons said that the entire evidence of
prosecution was false, nobody was eyewitness of
the occurrence, name of Naushad and Enmul Huda
@ Dugru was not there in first information report
and it was subsequently added, prosecution witness
Nos. 3 and 4 were not eyewitness account of
occurrence, rather they were inimical witness,
against whom there had been so many cases, both
in civil and criminal side and it was admitted by
these witnesses in their statements. The injuries
found on the person of deceased were not with
intention to cause death or cause such bodily
injuries, as was likely to cause death. Rather, it was
fracture of both upper and lower limbs by some
other reason by some other person in above time of
occurrence of night, wherein false implication was
made. The factual investigation was also erroneous.
Charge sheet was filed on dishonest investigation. In
defence, documentary evidence for showing
previous litigation in between were filed. After
hearing learned public prosecutor and learned
counsel for defence impugned judgment of
conviction, whereby all eight accused persons were
convicted for offences levelled against them and
after hearing over quantum of sentence, sentence as
above, were imposed by impugned judgment.
Against this judgment, this appeal was filed wherein
Enmul Huda @ Dugru and Naushad were enlarged
on bail under Section 389(1) Cr.P.C. But bail to rest
of convicts-appellants were rejected. Though, they
were on bail during trial and it was never misused
by any of them. They have been taken in custody on
date of judgment dated 19.12.2013 and since then
for these six years they are languishing in jail.

5. The convict-appellant Mahendra
died during appeal. Hence his appeal stood
abated. Now, the appeal of seven convictsappellants is pending.

6. Learned counsel for convictsappellants argued that none of the injuries,
found over the person of deceased, were
on vital part. Rather, they all were on
upper and lower limbs as well as back and
they all were caused by lathi that is not a
dangerous weapon. The assault of stone
was said by PW-1. No injury over
abdomen caused by stone was held by
Medical
Officer
in
its
medical
examination.
PW-10
Arun
Kumar
Srivastava is pharmacist, who in his
statement has proved Ext. Ka-15 regarding
injuries sustained by Mahboob Alam and
entry of same in EOPD register (from
19.09.2004 to 09.10.2004) on 25.09.2004
at serial no. 32/11682, wherein he was
entered to be attended by Medical Officer
at 7.30 PM and this information of his
death was entered to be transmitted at 8.15
PM of the date. This entry of register has
bee proved as Ext. Ka-15 and statement of
PW-11 Dr. Harilal is of this fact that all
injuries i.e. seven in number, found by
him, were by hard blunt object and were
simple in nature, other than six injuries no.
1 to 4 and 6, for which X-ray was advised
and matter was referred for Ortho
specialist. Medico legal report (Ext.Ka-16)
was got prepared by this witness under his
handwriting and signature and all these
injuries were not on vital party of
deceased. Hence, there was no intention to
cause death or bodily injury likely to cause
death or with knowledge that by such
injury death is likely to occur. Rather
injuries were of lathi-danda. They were
seven in medico legal report and eight in
autopsy examination report. All were over
upper and lower limbs, resulting fracture
of them and no injury was over the head,
brain, chest and ribs. Hence, this was in
maximum a case punishable under Section
325 I.P.C. or under Section 304 Part-II
I.P.C. The witness of fact PW-1 Mahboob
Alam and PW-2 Izhar Ali were with
material contradiction regarding place of
1358 INDIAN LAW REPORTS ALLAHABAD SERIES
occurrence, sequence of occurrence and
mode of occurrence. Initially, report was
got lodged against six persons, but during
recording of statements, it was added that
two
accused
persons
were
making
exhortation for assaulting for fracture of
upper and lower limbs of deceased and
rest were assaulting, whereas no such
contention was there in first information
report. PW-3 Nandlal and PW-4 Jumrat
Ali were highly inimical and interested
witnesses. There were vast contradiction in
their testimony with regard to testimony of
PW-1 Mahboob Alam and PW-2 Izhar Ali.
Hence, for Naushad and Enmul Huda @
Dugru, no case was made out. Vicarious
liability under Section 149 I.P.C may also
be not fastened against them because the
only testimony is that they were given
exhortation, but no such recital was there
in F.I.R.. Rather, this was embellishment
and exaggeration. For other appellants,
maximum accusation said to be proved by
prosecution was for offences punishable
under Section 304 Part II I.P.C. But trial
court has convicted for offence punishable
under Section 304 Part-I I.P.C. wherein
maximum sentence of ten years with fine
of Rs.10,000/- had been awarded to each
of them. Whereas they are languishing in
jail since last six years, after the date of
judgment, and were also in jail before their
bail. Hence, this was sufficient and cogent
sentence. Hence, they be maximum
sentenced with above period undergone
and those two convicts-appellants, for
whom
there
is
embellishment
and
exaggeration, be acquitted of the charges.

7. Learned A.G.A. as well as learned
counsel for informant Sri K.K. Rao has
vehemently opposed the contention of
learned counsel for appellants that this
poor victim in young age was badly beaten
by convicts-appellants, resulting eight
injuries of such dimension causing fracture
over both upper and lower limbs and
owing to it, he succumbed during
treatment on that very day. Hence, it was a
brutal homicide requiring no leniency.
Learned Sessions Judge had appreciated
facts and law placed on record and had
passed impugned judgment of conviction
and thereafter, impugned sentencing was
made commensurate to nature and degree
of
offence.
Hence,
this
appeal
be
dismissed.

8. Chik F.I.R. (Ext.Ka-3) was got
registered upon the written report (Ext.Ka1),
having
signature
of
informant
Mahboob Alam, wherein accusation of
assault was assigned against Anaruddin,
Kalimullah,
Niyamullah,
Wakeel,
Mahendra and Sahendar and it was said to
be witnessed by Yogender and informant
Mahboob Alam i.e. no recital of any
exhortation made by Naushad or Enmul
Huda @ Dugru was there. This report was
got lodged after injured was admitted at
District
Hospital,
Gorakhpur.
This
condition was settled that it was not
registered under anxiety or any hurry or by
other person other than informant, who
had rushed on spot instantly and who is
real brother of deceased. While being
examined as PW-1 in examination-inchief, the same contention has been made
by this witness Mahboob Alam "जब
कठवा के पुल के आगे पूरब पहुोंचे तो
देखे की मेरे ही गाोंव के अन्नारुद्दीन
कलीमुल्लाह व बनयामुल्ला व महेंद्र सहेंद्र
वकील मार रहे थे I मेरे भाई मशहूर
आलम को लाठी डोंडा से मार रहे थे I
मेरे भाई बगर गए थे बेहोश हो गए थे
बचल्ला भी रहे थेI" Subsequently, in other
lines, this has been said that Enmul Huda
and Naushad were making exhortation for
1 All. Niyamullah & Ors. Vs. State of U.P.
1359
fracture of both upper and lower limbs of
his brother, which were made by accused
persons and they all ran towards field. But
this story of giving exhortation was not
said in first information report, which was
got registered by this PW-1. When asked
as to why this was not written in first
information report, in cross-examination,
this witness has said "जब मैंने मजरूब
अपने भाई को देखा उस समय वह
बोलने के हालत में थे बचल्ला रहे थे बक
मेरी उनसे बात हुई थी वह कहे बक
अमुक-अमुक आदमी हमको मार कर
भाग गए है I मैंने उनके कहने पर उन
आदबमयोों को दौडाने का कोई प्रयास
नहीों बकया मेरे बाद वहा पर पहुोंचने वाले
योगेंद्र नन्दलाल व मेरे चाचा का लडका
बसूलल्लाह थेI". Meaning thereby, this
witness could gather information from his
injured brother, who was under conscious
at that time and subsequently he became
unconscious and died during treatment. He
could
not
disclose
or
converse
subsequently, but he told who had beaten
him, but the names of those two exhorters
were not there. The cross-examination at
page 11 reveals that when this informant
rushed on spot, he found that his brother
was lying at the northern side of road
having injuries i.e. beginning of the
quarrel or assault was not witnessed by
any of the witnesses of fact. Rather after
hearing rescue call, they all rushed there
and found above occurrence, wherein
names of Naushad and Enmul Huda were
not said either to I.O. under Section 161
Cr.P.C. or in first information report and it
was subsequently developed. PW-2 Izhar
Ali is the next alleged eyewitness account,
who was accompanying informant and
was son of deceased. He too has narrated
in examination-in-chief that while he
heard hue and cry, he along with his uncle
rushed on spot and found that two persons
were making exhortation. They were
Enmul Huda @ Dugru and Naushad. They
were saying for fracture of upper and
lower limbs of his father and this was
witnessed
by
this
witness
whereas
Anaruddin,
Niyamullah,
Kalimullah,
Wakeel, Mahendra and Sahendar were
giving assault by lathi-danda over his
father, who had fallen thereat. Meaning
thereby no assault was being made by
Enmul Huda @ Dugru and Naushad, but
name of those two were not in first
information report or in the statement
given under Section 161 Cr.P.C. In further
development, in cross-examination, this
witness has said that when his father
gained sense he narrated "मेरे बपता को
होश हुआ तो बताये बक हमें अनरुद्दीन
बनयामुल्ला
कलीमुल्लाह
सहेंद्र
महेंद्र
वकील यह लोग मार रहे थे तुम लोग अब
तक कहा थे दो आदमी ललकार रहे थे
bukeqygqnk उर्ष डुगरु और नौशाद यह भी
बपता जी ने बताया थे बपताजी ने यह भी
बताया बक Fkkus पर जाकर उपरोक्त नाम
बताकर रपट दजष कर दोI" Meaning
thereby, this witness was not eyewitness
account of alleged assault. Rather, he
gained information from his father, who
directed for getting case lodged at police
station. Even then, names of these Enmul
Huda @ Dugru and Naushad were not
written in Ext.Ka-1 or said in statement
recorded under Section 161 Cr.P.C.
Though, this witness has categorically said
"जब मैं घटना okys जगह पर पोंहुचा उस
समय मेरे बपता बेहोश थे वहा कुछ लोग
इकठ्ठा हो गए थे" Meaning thereby, while
this witness reached on spot injured was
unconscious and few others were gathered
on spot, then this story that informant
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
along with his nephew rushed on spot and
found such occurrence goes away. This
witness has further said "जब तक हम
लोग घटना वाली जगह पर अपने बपता
के साथ रहे तब तक मेरे बपता बोलने के
हालत में नहीों थे एकसडवा से पहले बोले
थे और उन्होोंने मुम्मिमान का नाम हमसे
बताया थाI उस समय मेरे चाचा मेरे साथ
नहीों थे I मुम्मिमान बक नाम के बारे में
मेरे बपता केवल हमें बता बदए थे और
कहा था बक Fkkus जाकर इन मुम्मिमान का
नाम दजष करना बकसी हालत में न
छोडना I" Meaning thereby, even after
direction by injured to his son, who was all
alone at that time, and direction to
informant by his son, names of these
accused were not entered in Ext.Ka-1.
According to this version, this PW-2 was
not present on spot at the time of
occurrence. Rather, he could know about
occurrence
and
names
of
assailants
through his father. PW-3 Nandlal and PW4 Jumrat Ali, admittedly are the witnesses
against whom there had been criminal and
civil litigation from accused appellants
side and even their father and other family
members were with conviction in those
litigation. Hence, they are proved to be
inimical witness and for appreciation of
their testimony a great caution and
precaution is to be taken. PW-3 has
categorically said in examination-in-chief
that when he saw and found that those
named persons assaulting injured by lathidanda, Naushad and Enmul Huda were
making exhortation for breaking the upper
and lower limbs of deceased. But, this was
not mentioned in first information report
(Ext.Ka-1). Rather, it was subsequently
developed. The same is the situation with
PW-4 that when he reached on spot there
were 15-20 person on spot i.e. he too was
not the first hand perceiver of the facts.
The testimony of these two witnesses
regarding their presence on spot is
inconsistent with statement of PW-1 and
PW-2. Hence, certainly accusation against
Enmul Huda @ Dugru and Naushad
becomes doubtful. They were not named
in the first information report nor instantly
said by injured nor were given in
statement, but in subsequent development
their names were added, but they were not
making any assault. Rather, they were said
to
giving
exhortation.
Hence,
their
conviction was with failure of appreciation
of facts and law on record. They deserve
to be given benefit of doubt and their
conviction
seems
to
be
set
aside.
Accordingly, their appeal merits to be
allowed.

9. Regarding, Mahendra appeal has
been abated, but regarding Niyamullah,
Sahendar,
Wakeel,
Kalimullah
and
Anaruddin, the argument is for quantum of
sentence, whereas on the basis of facts and
evidence placed on record, prosecution
was successful to prove its case against
them. Their names was there in the
instantly reported F.I.R. It has been proved
by witnesses PW-1 and PW-2 coupled
with formal witnesses with no evidence in
defence.

10. Regarding quantum of sentence
Section
304
Part-I
provides
for
imprisonment for life, or imprisonment for
ten yeas and fine and Section 304 Part-II
provides for imprisonment for ten years, or
fine or both. Section 304 i.e. punishment
for culpable homicide not amounting to
murder provides that whoever commits
culpable homicide not amounting to
murder
shall
be
punished
with
imprisonment for life, or imprisonment of
either description for a term which may
1 All. Niyamullah & Ors. Vs. State of U.P.
1361
extend to ten years, and shall also be liable
to fine, if the act by which the death is
caused is done with the intention of
causing death, or of causing such bodily
injury as is likely to cause death. In
present case the injury on the person of
deceased were not on vital part. Rather
over upper and lower limbs with back and
trial has concluded that it was not with
intention to cause death or to cause such
bodily injury as is likely to cause death.
Though, those injuries were grievous,
resulting fracture as well as death of
injured on the same day of occurrence.
Hence, conviction under Section 304 Part1 was justified, but regarding sentence it
was apparently of ten years rigorous
imprisonment with fine, which seems to be
not in proportion to degree of offence,
because each of the convicts-appellants are
of no criminal antecedent. They remained
in prison since last more than six years in
this case crime number. On the facts and
circumstances and balancing the societal
need of punishment with their chance of
reformation for bringing them in main
stream of society, sentence of eight years
rigorous imprisonment with fine, as above,
seems to suffice the cause of justice.

11.

Accordingly,
this
appeal
succeeds and is allowed for convictsappellants Naushad and Enmul Huda @
Dugru. The impugned judgment and order
of conviction dated 20.12.2013, passed by
the Trial Court, is hereby set aside and the
appellants Naushad and Enmul Huda @
Dugru are acquitted of all the charges.
They are on bail. They need not to
surrender. Their sureties are discharged.

12. Keeping in view the provisions
of section 437-A Cr.P.C. appellants
Naushad and Enmul Huda @ Dugru are
directed to forthwith furnish a personal
bond and two reliable sureties each in the
like amount to the satisfaction of trial
Court before it, which shall be effective
for a period of six months, along with an
undertaking that in the event of filing of
Special Leave Petition against the instant
judgment or for grant of leave, the
appellant on receipt of notice thereof shall
appear before the Hon'ble Supreme Court.

13. The conviction of convictsappellants Niyamullah, Sahendar, Wakeel,
Kalimullah and Anaruddin are confirmed.
Their appeal is being partly allowed on the
point of quantum and their imprisonment
of ten years and fine under Section 304
Part-I/149 I.P.C. is being substituted by
eight years rigorous imprisonment with
fine of Rs.10,000/-. For rest of sentences,
they shall remain, as such, and intact.

14. Let a copy of this judgment along
with lower court's record be sent back to the
court concerned for immediate change of
warrant of sentence, as above, and follow up.
----------
(2020)1ILR 1360

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.01.2020

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 126 of 2018

Vishwas Pandey ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Vaibhav Kalia, A.P. Mishra, Amol Kumar,
Bal Keshwar Srivastava, Laltaprasad Misra,
Vaibhav
Kalia