# Pankaj Jaiswal v. Narendra Kumar Singh & Ors

- **Citation:** (2020) 11 ILRA 242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-19
- **Bench:** Mrs. Sunita Agarwal, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-jaiswal-v-narendra-kumar-singh-ors-45389
- **Pages:** 12

## Headnote

A. Criminal Law - Indian Penal Code -
Sections 307, 308 - Attempt to murder/
culpable homicide - Bodily injury - Mere
bodily cannot be made the solitary basis
for
conviction
of
the
accused
for
commission of crime u/ss 307, 308 IPC -
statutory
ingredient
-
'Intention'
or
'Knowledge' - one should have mens-rea
intending to commit murder or should
possess knowledge that overt act, in all
probability, would cause death of the
victim (Para 32)

B. Criminal Law - Criminal Procedure
Code, 1973 - Sections 221, 222, 464 -
Conviction for lesser offence - without
framing charge - no absolute bar or
impediment, in punishing a person for an
offence less grave than the offences for
which the accused was charged - an
accused can be convicted for an offence
with which he may not have been
specifically charged - an omission in
framing
of charge
is,
by
itself
not
sufficient for upsetting the conviction -
interference only if it is shown that
11 All. Pankaj Jaiswal Vs. Narendra Kumar Singh & Ors.
243
omission in the framing of charge caused
prejudice to the accused & failure of
justice (Para 38, 39)

Trial court framed charges u/ss 307, 308/34,
326/34, 504, 506 I.P.C. but convicted for lesser
offences u/s 323/34, 325/34 - Allegation that
offender intentionally shot fire with kata upon
informant and attempted to murder him as such
accused ought to have been convicted for the
graver offence u/ss 307, 308, 326 IPC- Held -
Except the statement of P.W. 1 (informant) no
one corroborated his version with respect to use
of country made pistol - used cartridge not
found on the spot - no recovery of alleged
'katta' & empty cartridge - Injuries not capable
of causing death of the victim - no dangerous
weapons or means used in the crime for
voluntarily causing grievous hurt - graver
offences not proved beyond reasonable doubt
(Para 33, 34)

Appeal Dismissed (E- 5)

List of Cases cited:-

## Text

_Characters 0–39,422 of 40,476. This is a partial read: ask again with offset=39422 for what follows._

242 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be the views of a reasonable person
on the material on record."

46. After analyzing the facts and
circumstances of the case and perusal of the
record, we are of the considered view that Court
below has rightly acquitted opposite party nos.2
and 3 for the commission of alleged crime
under Section 307 IPC. If the evidence of
prosecution is read and considered in totality of
surrounding circumstances along with other
evidences available on the record, in which the
crime is alleged to have been commissioned, it
cannot be said that accused persons had
attempted to commit homicidal death of
informant/appellant and his wife. Neither
depositions of prosecution witnesses inspire
confidence of the Court, nor it disclose the true
genesis of the crime under Section 307 IPC.
Prosecution has failed to prove its accusation
beyond all reasonable doubts. In such a
situation of fact, accused persons i.e. respondent
nos.2 and 3 are entitled to get benefit of doubt
and their innocence could easily be inferred.
There is no substantial and compelling reasons
to reverse the order of acquittal passed by the
trial
court.
Learned
counsel
for
the
informant/appellant has failed to point out any
illegality or perversity in the impugned
judgment and order, which is under challenge
in this appeal. Thus, we find no ground to
interfere in the findings of fact recorded by
Court below which has decided the matter in
favour of respondents-accused persons.

47. In the result, this appeal is dismissed
at the stage of admission itself. Consequently,
the impugned judgment and order dated
25.09.2018 passed in Sessions Trial No.306 of
2012, is hereby affirmed and maintained.

48. Let a copy of this judgment along
with lower Court's record be transmitted to the
concerned Court below forthwith.
----------
(2020)11ILR A242
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Misc. Application U/S 372 Cr.PC (Leave
to Appeal) No. 65 of 2016

Pankaj Jaiswal ...Applicant
Versus
Narendra Kumar Singh & Ors.
 ...Opposite Parties

Counsel for the Applicant:
Sri Rajendra Kumar Rathore, Sri Vivek
Jaiswal, Sri Kumdax Kumar Dwivedi

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Indian Penal Code -
Sections 307, 308 - Attempt to murder/
culpable homicide - Bodily injury - Mere
bodily cannot be made the solitary basis
for
conviction
of
the
accused
for
commission of crime u/ss 307, 308 IPC -
statutory
ingredient
-
'Intention'
or
'Knowledge' - one should have mens-rea
intending to commit murder or should
possess knowledge that overt act, in all
probability, would cause death of the
victim (Para 32)

B. Criminal Law - Criminal Procedure
Code, 1973 - Sections 221, 222, 464 -
Conviction for lesser offence - without
framing charge - no absolute bar or
impediment, in punishing a person for an
offence less grave than the offences for
which the accused was charged - an
accused can be convicted for an offence
with which he may not have been
specifically charged - an omission in
framing
of charge
is,
by
itself
not
sufficient for upsetting the conviction -
interference only if it is shown that
11 All. Pankaj Jaiswal Vs. Narendra Kumar Singh & Ors.
243
omission in the framing of charge caused
prejudice to the accused & failure of
justice (Para 38, 39)

Trial court framed charges u/ss 307, 308/34,
326/34, 504, 506 I.P.C. but convicted for lesser
offences u/s 323/34, 325/34 - Allegation that
offender intentionally shot fire with kata upon
informant and attempted to murder him as such
accused ought to have been convicted for the
graver offence u/ss 307, 308, 326 IPC- Held -
Except the statement of P.W. 1 (informant) no
one corroborated his version with respect to use
of country made pistol - used cartridge not
found on the spot - no recovery of alleged
'katta' & empty cartridge - Injuries not capable
of causing death of the victim - no dangerous
weapons or means used in the crime for
voluntarily causing grievous hurt - graver
offences not proved beyond reasonable doubt
(Para 33, 34)

Appeal Dismissed (E- 5)

List of Cases cited:-

1. Dinesh Seth Vs St. of N.C.T. of Delhi (2008)
14 SCC 94

2. Rafiq Ahmed @ Rafi Vs St. of U.P. AIR 2011
SC 3114

(Delivered by Hon'ble Dinesh Pathak, J.)

Ref:
Delay
Condonation
Application No. 387488 of 2016

On the application under Section 5
of the Limitation Act in moving the
application seeking leave to appeal, time
was granted to file counter affidavit vide
order dated 17.12.2016.

No counter affidavit has been filed,
till date.

The
explanation
given
by
the
applicant
for
the
delay
is
found
satisfactory.

The application under Section 5 of
the Limitation Act is hereby allowed.
Delay condoned.

The application is treated to have
been filed within time prescribed for the
purpose.

Order on Appeal

1. Heard Sri Vivek Jaiswal, learned
counsel for the appellant at admission
stage.

2. Instant criminal appeal u/s 372
Cr.P.C. has been preferred by the appellant,
who is son of informant, Ramesh Chandra
Jaiswal (since deceased), challenging the
impugned
judgement
dated
15.3.2016
passed by the Additional District &
Sessions Judge, Court, Varanasi in S.T. No.
529 of 1999 (State of U.P. vs. Narendra
Kumar Singh & others), convicting the
accused
Narendra
Kumar
Singh
(respondent no. 1), Ajay Kumar Singh
(respondent no. 2) and Shiv Shankar Singh
(respondent no. 3) for the commission of
lesser offences under Sections 323/34,
325/34, 506 I.P.C., than the commission of
graver offences for which they had been
charged under Sections 307, 308, 326 &
504 I.P.C. Each of them (accused) has been
sentenced to undergo imprisonment for six
months under Section 323/34 and three
years imprisonment under Section 325/34
I.P.C. along with fine to the tune of
Rs.2000/-. In case of default, they shall
further undergo three months additional
imprisonment. That apart, they have also
been sentenced to undergo imprisonment
for one year under Section 506 I.P.C. along
with fine of Rs.500/-. In case of default,
they shall further undergo one month
additional imprisonment. All sentences will
go simultaneously.
244 INDIAN LAW REPORTS ALLAHABAD SERIES

3. It is pertinent to mention here that
Jata Shankar Singh, one of the accused and
informant
Ramesh
Chandra
Jaiswal
(P.W.1) had died during the pendency of
the trial.

4. As per the FIR version, informant
Ramesh Chandra Jaiswal was owner and in
possession
of
House
No.
B-28/7-A,
Ghasiyaritola,
P.S.
Bhelupur,
District
Varanasi. On the date of the incident i.e.
16.11.1994 at 9.00 p.m. Jata Shankar Singh
s/o Chatradhari Singh, Narendra Singh s/o
Jata Shankar Singh, Ajay Kumar Singh,
son of Ravi Shankar Singh, all residents of
B-28/7-A, Ghasiyaritola, P.S. Bhelupur
along with their relative Shiv Shankar
Singh s/o Gauri Shankar Singh, resident of
village Bhikaripur, P.O. & P.S. Kachwa,
District Mirzapur, who were tenants of
southern portion of the house, armed with
'katta' (country made pistol), iron rod and
hockey stick barged into the house of
informant Ramesh Chandra Jaiswal and
asked him to vacate the house. While the
informant resisted, one of the accused
namely, Narendra Singh shot at him by
'katta' intending to kill him. Still, he
escaped by breath's distance and tried to
run away, the remaining accused chased
after him and thrashed him by iron road
and hockey stick. While the informant
screamed, his servant Bajrangi Lal (P.W. 2)
son of Chhedi Lal, resident of D-41/3, P.S.
Dashaswamedh, Districk Varanasi, who
worked at his cement shop situate outside
of his house, rushed to the informant but
the accused had beaten him up as well by
iron rod and hockey stick. Due to fracas,
bypassers and bystanders gathered at the
seen, consequently, anyhow lives of the
informant and his servant could be saved.
Thereafter, the accused threatened them to
take their lives and fled away.

5. In this backdrop, the informant
filed the written report dated 16.11.1994
(Ext. Ka-1) at 10.00 p.m. and on the basis
thereof, first information report (Ext. Ka-6)
was lodged at the P.S. Bhelupur, District
Varanasi. Head Clerk, Sri Ram Suchit
Yadav (P.W. 6) of P.S. Bhelupur, District
Varanasi had endorsed the contents of the
written report in chik no. 300, registered as
case crime no. 402/1994 against four
accused namely, Jata Shankar Singh (since
deceased), Narendra Singh (respondent no.
1), Ajay Kumar Singh (respondent no. 2)
and Shiv Shankar Singh (respondent no. 3)
under Section 307, 308, 326, 504, 506
I.P.C. at P.S. Bhelupur, District Varanasi.
The aforesaid version was also endorsed in
G.D. at Rapat no. 44.

6. Injuries inflicted to informant,
Ramesh Chandra Jaiswal, P.W. 1 had been
medically examined by Dr. Narendra
Pratap Singh (P.W.4) on 17.11.1994 at
Swami
Vivekananda
ChiKitsalaya,
Bhelupur, District Varanasi. He had opined
the age of the informant to be 44 years and
had prepared/signed the injury report (Ext.
Ka-2) of Ramesh Chandra Jaiswal showing
the following injuries :

1& QVk gqvk ?kko vk/kk lseh- xq.ks
vk/kk lseh- Åijh vksB ds ckbZ rjQ e/; js[kk ls
,d lseh- dh nwjh ij] jDrlzko gks jgk FkkA

2& QVk gqvk ?kko 1 lseh- xq.ks 1-4
lseh Åijh vksB ds vUn:uh fgLls e/;js[kk ls
lVk gqvkA

3& m[kM+k gqvk ck;k lsUVahy bulhtj
nkWr] jDrlzko gks jgk Fkk o nkWr fudy
x;k
FkkA

4& ck;k ySVjy bulhtj nkWr VwVk
gqvk] ftldk VqdM+k fudy x;k FkkA

5& m[kM+k gqvk nkfguk bulsUVay nkWr
vkSj nk;k lsUVay bulhtj nkWr xk;c Fkk vkSj
jDrlzko gks jgk FkkA
11 All. Pankaj Jaiswal Vs. Narendra Kumar Singh & Ors.
245

6& ck;k lsUVay bulhtj nkWr vkSj
ck;k ySVjy bulhtj nkWr o ck;k dsukbu nkWr
vkSj igyk izheSjy m[kMs+ gq, Fks] jDrlzko gks jgk
Fkk vkSj nkWr xk;c FkkA

7& QVk gqvk ?kko 1 lseh- xq.ks 1@2
lseh- ck, vksB ds vUn:uh fgLls esa e/; js[kk ls
lVk gqvkA

8& uhyxw 4 lseh- xq.ks 2 lseh- nkfgus
iSj ij ,M+h ls lVk gqvkA

9& nnZ dh f'kdk;r Nkrh ij lkeus
dh vksj nkfgus vxzckgw rFkk Åijh fgLls esaA

7. With respect to the aforesaid
injuries, Dr. Narendra Pratap Singh has
opined that injury nos. 1, 2, 7 & 8 were
simple in nature, caused by 'Kundala'
(Blunt object) whereas injury nos. 3, 4, 5 &
6 were severe in nature which were also
caused by 'Kundala'(Blunt object).

8. On the same day i.e. 17.11.1994 at
about 12.10 a.m. Bajrangi Lal, P.W. 2 was
also medically examined by Dr. Narendra
Pratap Singh, who had prepared and signed
the medical report (Ext. K-3) showing three
injuries which are given below :

1& QVk gqvk ?kko vk/kk 3-5 lseh xq.ks
-5 lseh ck, dku ds fiUuk ij] ck, dku ds ihNs
jDRkLkzko gks jgk FkkA fiUuk dk fdukjk Qvk gqvk
FkkA

2& [kjklnkj uhyxw 2 lseh- xq.ks 1-5
lseh- ekFks ij ck, rjQ ckbZ HkkS ls 1-5 lseh-
Åij vkSj e/; js[kk ls 2 lseh- nwjh ij]

3& nnZ dh f'kdk;r ck, gkFk ijA

9. On FIR being lodged, the case was
entrusted to Sri Suresh Yadav, SubInspector
for
investigation
who
has
recorded the statement of P.W. 1 on the
same day, inspected the place of occurrence
and prepared the site plan (Ext. K-4). On
17.4.1994 he arrested Narendra Kumar
Singh, Ajay Kumar Singh and Shiv
Shankar Singh and recorded their statement
in the case diary. Fourth accused Jata
Shankar Singh had surrendered in the court
on 8.12.1994. His statement was recorded
in the case diary on the same day.

10. After thorough investigation, the
investigating officer had submitted chargesheet (Ext. ka-5) under Section 307, 308,
326, 504, 506 I.P.C., P.S. Bhelupur,
District
Varanasi.
Vide
order
dated
31.3.1995, the trial court had taken
cognizance of the offence and given copy
of evidence to the accused under Section
207 Cr.P.C. Thereafter, the trial court vide
order dated 17.7.1999 committed the case
to the Court of Sessions for trial. The trial
court vide order dated 1.11.2010 framed
charges against the accused namely,
Narendra Kumar Singh, Ajay Kumar Singh
and Shiv Shankar Singh under Section 307,
308/34, 326/34, 504 and 506 I.P.C. Apart
from that, Narendra Kumar Singh had been
separately charged for the offence under
Section 307 I.P.C.

11. To prove the guilt of the accused,
the prosecution has examined as many as
six witnesses. Out of them, three are the
witnesses of fact whereas the remaining
three are formal witnesses.

12. P.W. 1 Ramesh Chandra Jaiswal
was the first informant of the occurrence
and had proved his written report as Ext. K1. He had deposed that he was the sole
owner of the house in question i.e. B28/7A, Ghasiyaritola, District Varanasi and
resided there. Jata Shankar Singh was the
tenant of the ground floor towards the
southern portion of the house. According to
his version, on 16.11.1994 at 9 p.m.,
accused Narendra Kumar Singh armed with
country made pistol, Ajay Kumar Singh
armed with hockey stick, Shiv Shankar
Singh armed with iron rod and Jata Shankar
246 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh barged into the flat of the informant
and threatened him to vacate the same. In
the meantime, Narendra Kumar Singh had
shot fire at him but he escaped by breath's
distance. He further stated that, while he
tried to run away, accused persons had
caught and thrashed him by hockey stick
and iron rod due to which he sustained
grievous injuries. On his screaming, P.W. 2
Bajrangi Lal, servant of the informant who
worked at his cement shop, reached there
but he had also been thrashed by iron rod
and hockey stick, consequently, he fainted
on the floor. In the meantime, several
people gathered there and intervened in the
matter. P.W. 1 further stated that the
aforesaid incident was witnessed by PW-3,
Ashok Kumar and one Rajesh. Thereafter,
he went to the police station to lodge
written complaint. The informant also
stated that after FIR being lodged, he had
been taken by the investigating officer at
the place of occurrence and had been sent
for medical examination accompanied by a
constable.

13. P.W. 2 Bajrangi Lal who is
injured witness has corroborated the
statement of P.W. 1 with respect to the
occurrence in his deposition. P.W. 3 Ashok
Kumar who has been produced as a witness
of the incident, has also corroborated the
occurrence. P.W. 4 Dr. Narendra Prapat
Singh has proved the medical report/inury
report (Ext. K-2) of Sri Ramesh Chandra
Jaiswal and medical report/injury report
(Ext. K-3) of Bagrangi Lal. P.W. 5 Sri
Suresh Chandra Yadav, the investigating
officer has deposed the sequence of
investigation as mentioned in the case
diary. He has proved the site map (Ext. K4) and charge-sheet (Ext. K-5) filed against
the accused. P.W.6, Head Clerk, Sri Ram
Suchit Yadav has proved the Chik report
No. 300 (Ext. K-6) which has been written
by him on the basis of written report filed
by the informant on 16.11.1994 at about 22
p.m. He has also proved the carbon copy of
G.D. Entry (Ext. K-7).

14. The prosecution has submitted
several documentary evidence to prove the
ownership and possession of the informant
over the property in dispute, like as copy of
plaint of O.S. No. 162/1994 (Ramesh
Chandra vs. Phulvasa Devi & others) (Ext.
Ka- 8), Death certificate of Vishwanath
Pandey (Ext. Ka-10), Death certificate of
Smt. Chabiraji Devi (Ext. Ka-11), Copy of
the registered sale deed dated 9.12.1993
(Ext. Ka-12) executed in favour of the
informant Ramesh Chandra Jaiswal, Copy
of the order dated 25.2.1994 passed in O.S.
No. 162 of 1994 (Ramesh Chandra vs.
Phulvasa Devi & others) (Ext. Ka-13),
Copy of Misc. case no. 259/1989 (Jata
Shankar vs. Shiv Nath Pandey) (Ext. Ka -
14), Copy of the order dated 1.8.1992
passed in Misc. case no. 259/89 (Ramesh
Chandra vs. Phulvasa Devi & others) (Ext.
Ka-15), Copy of the Commissioner's report
filed in O.S. no. 760/1994 (Ramesh
Chandra vs. Phulvasa Devi & others) (Ext.
Ka-16), Copy of the affidavit filed by
Ramesh Chandra Jaiswal in O.S. No.
760/1994 (Ramesh Chandra vs. Phulvasa
Devi & others) (Ext. Ka - 17)

15. Accused namely, Jata Shankar
Singh (since deceased), Narendra Singh,
Ajay Kumar Singh and Shiv Shankar Singh
had made their statement under Section 313
Cr.P.C. They had denied the alleged
incident and pleaded their innocence. They
stated
that
they
had
been
falsely
incriminated in the alleged offence and
claimed for trial.

16. In addition to the answer of the
questions put to the accused under Section
11 All. Pankaj Jaiswal Vs. Narendra Kumar Singh & Ors.
247
313 Cr.P.C., Jata Shankar Singh has stated
that on the date of occurrence, he was not
present in the house. After returning home,
he came to know that Ramesh Chandra
Jaiswal, with whom he is prosecuting,
came along with police personnel of P.S.
Bhelupur, District Varanasi, had ransacked
and plundered his house. They had flailed
Narendra Kumar Singh and others, who
were present in the house and illegally
roped in them in a false criminal case. With
respect to the same incident, Narendra
Kumar Singh had also initiated separate
criminal proceedings.

17. Accused Narendra Singh has
deposed that true owner of the house in
dispute was Smt. Phulvasa Devi and in
respect of house in question Ramesh
Chandra
Jaiswal
was
pursuing
civil
litigation. On the date of occurrence at
about 10 a.m. Ramesh Chandra Jaiswal
alongwith
police
personnel
of
P.S.
Bhelupur barged into his house and
plundered it. On resistance, they flailed him
and illegally incriminated all of them in
false case.

18. Accused Ajay Kumar Singh stated
that on the date of occurrence, he was
present at the house of his relative Jata
Shankar Singh and in the night the police
came and plundered the house. On
resistance being made, they had falsely
incriminated Narendra Singh and Shiv
Shankar Singh in false case. Accused Shiv
Shankar Singh had also made statement in
the same way corroborating the statements
of other three accused.

19. Accused had not examined any
other independent witness in their defence,
rather filed several documents to prove
their ownership over the property in
dispute. To prove their victimization, they
filed cross-case with respect to the same
incident registered as case crime no.
125/1996. In the aforesaid case, final report
dated 3.12.1997 had been submitted by the
investigating officer. Feeling aggrieved, the
accused preferred protest petition registered
as
Misc.
case
no.
504/2000.
After
considering the statement under Section
200 Cr.P.C. made by Jata Shankar Singh
and statement of witnesses namely, Santosh
Kumar, Narendra Kumar Singh and Ajay
Kumar Singh under Section 202 Cr.P.C.,
the trial court passed an order dated
9.6.2000 summoning Ramesh Chandra
Jaiswal under Section 447, 379 I.P.C.

20. After considering the facts and
circumstances
of
the
case
and
the
documentary evidence available on record,
the trial court found that no offence under
Section 307, 308 & 326 I.P.C. was made
out, rather convicted the accused for the
commission of lesser offence under Section
323/34,
325/34
and
506
I.P.C.,
as
mentioned in the preceding paragraphs.

21. Feeling aggrieved against the
conviction of accused for the lesser
offence, present appeal has been preferred
by the appellant who is the son of the
informant late Ramesh Chandra Jaiswal
seeking conviction of the accused, for the
incident in question, in accordance with
law.

22. Learned counsel for the appellant
submitted that the punishment awarded by
the trial court under Section 323/34,
325/34,
506
I.P.C.
to
the
accused/respondents is disproportionate to
the injuries sustained by the informant,
Ramesh Chandra Jaiswal, whereas serious
injuries were inflicted which could cause
homicidal
death
of
the
informant.
Therefore, accused should also be punished
248 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 307, 308, 326 and 504 I.P.C.
He further submitted that conviction for
lesser offence without framing any charges
in that respect, had illegally been awarded,
on the basis of surmises and conjectures,
which is unjustified. Sri Ramesh Chandra
Jaiswal, the father of the appellant had
received fatal injuries, which were nine in
number but his medical report and the
surrounding circumstances had not been
properly appreciated by the trial court
whereas the statement of Ramesh Chandra
Jaiswal was fully corroborated by other
relevant evidence available on record. It is
further submitted that cross-FIR filed by
the accused clearly proved their presence
on the spot, who had beaten up Ramesh
Chandra Jaiswal with an intention to cause
his death.

23. We have carefully considered the
submissions advanced by learned counsel
for the appellant and perused the impugned
judgment passed by court below and the
papers filed by the appellant.

24. Occurrence of crime was the
result of property dispute. Both the parties
were claiming their
right, title and
possession over the house in dispute i.e.
house
No.B-28/7-A,
Ghasiyaritola,
P.S.Bhelupur, Varanasi. The informant
Ramesh Chandra Jaiswal was claiming his
right and title over the property in dispute
on the basis of the registered sale deed
dated 9.12.1993 (Ext. K-12) which had
been executed by the heirs and legal
representatives of Shiv Nath Sharma
through the power of attorney holder.
According to the prosecution case, the
house in dispute orginally belonged to one
Vishwanath
Pandey
who
died
on
25.5.1988. His death certificate had been
filed as Ext. K-10. He was succeeded by
his son Shiv Nath Sharma who also died on
13.1.1991, his death certificate had been
filed as Ext. K-11. After death of Shiv Nath
Sharma, his heirs had executed registered
sale deed in favour of the informant. At the
time of the sale deed, when the informant
got the possession of the property in
dispute, Jata Shankar was residing in a flat
situate towards southern portion of the
house. Ramesh Chandra Jaiswal (P.W.1)
had filed a suit registered as O.S. no.
162/1994 (Ramesh Chandra Jaiswal vs.
Smt. Phulvasa Devi w/o Jata Shankar) for
permanent injunction and cancellation of
the alleged Will deed. On the other hand,
accused were claiming their right and title
on the basis of an unregistered Will Deed
dated 21.5.1988, from which Smt. Phulvasa
Devi wife of Jata Shankar had derived her
right and title over the property in dispute.
Smt. Phulvasa Devi had also filed a suit
being O.S. No. 760 of 1994 for a direction
to the Senior Superintendent of Police to
restrain the Ramesh Chandra Jaiswal from
interfering in her peaceful possession over
the property in question. At a later stage,
after the date of occurrence, she amended
the plaint seeking dispossession of Ramesh
Chandra Jaiswal from the house in
question.

25. The trial court entered into the
civil dispute between the parties and
recorded a finding with respect to the title
and possession of the parties over the
property in dispute. At this juncture, we
may note that we are not supposed to go
into the merits of the title and possession of
the parties over the property in dispute
because of the nature of proceedings before
us.

26. As per the prosecution case, late
Ramesh Chandra Jaiswal was the owner of
the house in question and was residing in
it's northern portion whereas accused Jata
11 All. Pankaj Jaiswal Vs. Narendra Kumar Singh & Ors.
249
Shankar and others were residing, as a
tenant, towards the southern portion of the
house in dispute. On the date of incident
i.e. 16.11.1994 at about 9.00 p.m. accused
barged into the flat of the informant and
asked him to vacate the premises in
question. While the informant had resisted
their conduct, one of the accused namely,
Narendra Kumar Singh had shot fire at him
who escaped by breath's distance and tried
to run away from the seen but the accused
thrashed him by iron rod and hockey stick
inflicting several injuries. While he raised
alarm, Bajrangi Lal, who is his servant and
worked at his cement shop, reached there to
save him but he had also been beaten up by
the accused inflicting injuries. By-passers
and by-standards who had heard fracas,
gathered on the spot and due to their
intervention, the informant and his servant
could save their lives.

27. After perusing the documentary
evidence available on record, the trial court
came to the conclusion that mutation case
decided in favour of the informant Ramesh
Chandra Jaiswal on the basis of the
registered sale deed dated 9.12.1993 and
appeal filed by Smt. Phulvasa Devi wife of
Jata Shankar against the mutation order
was pending and the informant Ramesh
Chandra Jaiswal was in possession over the
property except southern portion of the
house, which was in the tenancy of Jata
Shankar since the time of the original
landlord. In this back ground, trial court
came to the conclusion that accused barged
into the house of Ramesh Chandra Jaiswal
in furtherance of the common intention to
cause him harm which resulted into
occurrence in question.

28. With respect to the same
occurrence, accused had also lodged an FIR
registered as case crime no. 125/1996 at a
belated stage. After due investigation, the
investigating officer submitted final report,
against
which
present
accused
had
preferred protest petition which was
converted into the complaint registered as
complaint case no. 504/2000 under Section
447
and
379
I.P.C.
The
impugned
judgement reveals that both the parties
were prosecuting two civil litigations and
four criminal cases, details of which are
mentioned as below :

1) O.S. No. 162/1994 (Ramesh
Chandra vs. Phulvasa Devi & others) which
was filed by the informant (Ramesh
Chandra Jaiswal) against Smt. Phuvasa
Devi wife of Jata Shankar (accused) for
permanent injunction with respect to the
house in question except the possession of
the flat which is in the possession of Jata
Shankar.
Subsequently,
by
way
of
amendment, new relief had been sought for
cancellation of will deed dated 21.5.1988
which was allegedly executed by the
original owner in favour of Smt. Phulvasa
Devi.

2) O.S. no. 760/1994 was filed by
Smt. Phulvasa Devi for injunction and at
subsequent stage she added a relief for
possession by way of amendment after the
incident-in-question had occurred.

3) FIR registered as case crime
no.
125/1996
(now
converted
into
complaint case no. 504/2000 under Section
447 and 379 I.P.).

4) Case crime no. 23 of 2008 with
respect to the incident dated 29.12.2007
under Section 452, 323, 504, 506, 308
I.P.C. filed by Smt. Gauri Yadav wife of
Bajrangi Lal against Jata Shankar and
others. Aforesaid FIR was registered as
S.T. no. 414/2009.

5) FIR registered as case crime
no. 540/2008 (State vs. Jata Shankar) under
Section 147, 452, 323, 504 & 506 I.P.C.
250 INDIAN LAW REPORTS ALLAHABAD SERIES

6) Case crime no. 375/2008 under
Section 147, 452, 324, 323, 504 & 506
I.P.C.

29. Series of litigations on the civil
and criminal side evince the indulgence of
the parties for the title and possession over
the house in question, due to which they
bore enmity against each other.

30. In the instant matter, we are
confining ourselves to the incident which
took place on 16.11.1994 at 9 p.m., in
which P.W. 1 and P.W. 2 had sustained
injuries. P.W. 1 clearly deposed that
accused respondents in furtherance of the
common intention barged into his house
and dragged him from his flat to the lawns
within the precincts of the house. He
further deposed that his servant Bajrangi
Lal had also sustained injuries, who came
to his rescue. P.W. 2 had corroborated the
statement of P.W. 1 that while he went on
the spot after hearing the sound of gunfire
and fracas, he saw the accused beating
Ramesh Chandra Jaiswal and, while he
tried to interpose himself in the scuffle, he
had also sustained injuries. P.W. 3 Ashok
Kumar had also corroborated the statement
of P.W. 1., stating that after hearing the
fracas, he went on the spot and saw that
accused persons were beating up Ramesh
Chandra Jaiswal and Bajrangi Lal.

31. Learned counsel for the appellant
has emphasized the use of katta, by which
informant was shot, in the crime scene and
submitted that accused persons should have
been convicted for the graver offence. He
has tried to portray the role of charged
person as an offender who had intentionally
shot fire and attempted to murder and, or,
attempted to commit culpable homicide of
an informant. Close scrutiny of impugned
judgment evince the coherent and justifying
approach
of
the
trial
court,
after
considering the circumstances and evidence
available on the record, in negating the
commission of crime u/s 307, 308 and 326
IPC.

32. "Intention" or "knowledge" are
two alternative statutory elements to hold
any person guilty for the commission of
offence u/s 307 and 308 IPC. Therefore,
one should have mens-rea intending to
commit
murder
or
should
possess
knowledge that overt act, in all probability,
would cause death of the victim. Term
"attempt" as embodied in the aforesaid
sections could stem from the specific
intention to commit murder and such
blameworthy condition of mind could be
gathered from the direct or circumstantial
evidence, including the conduct of accused.
Mere bodily injury capable of causing
death or not, are not sufficient to hold any
person guilty for committing crime under
aforesaid sections.

33. The allegations of the prosecution
with regard to use of country made pistol
during scuffle between the parties, while
the accused barged into the house of the
informant, is not supported by any
evidence. Except the statement of P.W. 1,
no one had corroborated his version with
respect to use of firearm. P.W. 2 and P.W.
3, both had stated that they rushed towards
the place of occurrence after hearing the
sounds of gunshot and fracas, meaning
thereby both the witnesses were not present
at the relevant time when Narendra Kumar
Singh had allegedly shot fire at informant
(P.W.1) Ramesh Chandra Jaiswal. Even
otherwise, used cartridge was not found on
the spot. The investigating Officer had not
shown any recovery of alleged 'katta' and
empty cartridge used in the crime. By any
stretch of the imagination, it cannot be said
11 All. Pankaj Jaiswal Vs. Narendra Kumar Singh & Ors.
251
that at the time of the incident 'katta' was
used with intention to kill the informant
who allegedly escaped by breath's distance
which could, otherwise, have caused his
death, in case, he came in its the range. The
medical reports of P.W. 1 & P.W. 2 dated
17.11.1994 (Ext. K - 2 & 3 respectively)
clearly revealed that blunt object had been
used by the accused while they had
allegedly attacked on P.W. 1 and beaten up
P.W. 2. The injury report of P.W. 1 shows
nine injuries, most of them, according to
the Doctor, could be caused by a blunt
object. There was a cut and abrasion on his
lips and jaw. A contusion has been shown
at his ankle of right leg. As per the medical
report of P.W. 1, Dr. Narendra Pratap
Singh opined that injury nos. 1, 2, 7 & 8 are
simple in nature which could be caused by
blunt object and injury nos. 3, 4, 5 & 6 are
severe in nature which could be caused by
blunt object as well and all the injuries
were fresh and blood was oozing from the
wound. In medical report it is show that
three tooth of the informant were broken
and not present in mouth and one was
ruptured. The probability of infliction of
such injuries is quite possible when two
parties were engaged in fierce face-off. In
the medical report, there is no sign of injury
on the other part of the body of the
informant except, injury no. 8 which has
been shown as contusion on the ankle of
the right leg. Injuries shown in the medical
report are not capable of causing death of
the victim.

34.

The
allegation
made
by
prosecution with respect to the shot fired
from katta (country made pistol), thus, is
not corroborated by any evidence, as
discussed by the trial court. Even, counsel
for
the
appellant
has
shown
his
helplessness to show any credible evidence
in this regard. Mere injury caused to P.W.1
and P.W.2 cannot be made the solitary
basis for conviction of the accused for
commission of crime under Sections 307
and 308 IPC. Non recovery of alleged
'katta' and empty cartridge, use of which
have been heavily relied upon by the
prosecution in making out the genesis of
crime, totally wiped out the accusation of
the prosecution for commission of offence
under the aforesaid sections. As such, the
graver offences are not proved beyond
reasonable doubt.

35. After considering the medical
report and circumstances in totality, it
cannot be said that the accused have made
attempt to murder or attempted to commit
culpable homicide as defined under Section
307 and 308 I.P.C. There are no such
circumstances to suggest the intention of
the
accused
persons
for
committing
homicidal death of the informant.

36. Learned trial court has also
examined the facts and circumstances of
the prosecution case in light of the
ingredients for commission of offence,
under Section 326 IPC and negate the
charge,
inasmuch
as,
no
dangerous
weapons or means had been found to be
used by accused in the crime scene for
voluntarily causing grievous hurt to the
prosecution.

37. Charge under section 504 IPC was
also framed vide order dated 01.11.2010,
against accused/respondent but same has
not been dealt with by the trial court. We
have appreciated the circumstance of the
occurrence as discussed in the impugned
order. There is no intentional insult
committed by the accused to provoke the
prosecution, intending or knowing that
such provocation would cause another to
break the public peace or to commit any
252 INDIAN LAW REPORTS ALLAHABAD SERIES
other offence. Instant matter at hand is a
result of property dispute between the
parties and, as per prosecution case, the
aggression was on the part of accused,
though accused have filed cross case with
respect to same incident showing the
aggression
on
the
part
of
instant
prosecution
in
ensuing
the
crime.
Therefore, statutory elements as embodied
u/s 504 IPC are not satisfied and no
commission of offence is made out therein.

38. After the appreciation of evidence
and considering the circumstances, learned
court below has convicted the accused for
lesser offence u/s 323/34 and 325/34 IPC.
Learned counsel for the appellant has
submitted that the trial court has illegally
passed the conviction order for the lesser
offence without framing any charge against
the accused under the aforesaid sections.
We do not agree with the submission made
by learned counsel for the appellant.
Considering the provisions as embodied u/s
221, 222 and 464 Cr.P.C., Hon'ble Apex
Court has expounded in the case of Dinesh
Seth vs. State of N.C.T. of Delhi, (2008)
14 SCC 94 that non framing of charges or
some defect in drafting of the charges
would not vitiate the trial. Para '21' of the
said judgment quoted below :

"21. The ratio of the abovenoted
judgments is that in certain situations an
accused can be convicted for an offence with
which he may not have been specifically
charged and that an error, omission or
irregularity in the framing of charge is, by
itself
not
sufficient
for
upsetting
the
conviction. The appellate, confirming or
revisional court can interfere in such matters
only if it is shown that error, omission or
irregularity in the framing of charge has
caused prejudice to the accused and failure
of justice has been occasioned."

39. The concept of punishing the
accused for a lesser offence than the one for
which he was charged has been discussed in
detail by the Apex Court in the matter of
Rafiq Ahmed @ Rafi vs. State of U.P., AIR
2011 SC 3114, while considering the two
Full Bench decisions of Apex Court and two
decisions of Constitutional Bench, and
expounded in para '31' :

"31. As is evident from the above
stated
principles
of
law
in
various
judgments, there is no absolute bar or
impediment, in law, in punishing a person
for an offence less grave than the offences
for which the accused was charged during
the course of the trial provided the
essential ingredients for adopting such a
course are satisfied."

40. Reverting to the facts and
circumstances of the case at hand, we find
that with respect to the incident in question
both sides had lodged FIR showing injuries
caused by other side. Matter at hand relates
to the FIR lodged by Ramesh Chandra
Jaiswal (since deceased) who and his
servant Bajrangi Lal, had sustained injuries
mainly on the face as evident from their
medical reports (Ext Ka '2' and Ext Ka '3'),
respectively. After framing charges, full
and fair opportunity of hearing had been
afforded to the parties. Thus, precisely it
was well within the knowledge of the
parties as to what were the accusation made
by the prosecution and accordingly, other
side had taken his defence. Learned trial
court has negated the charges u/s 307, 308,
326 IPC, inasmuch as, ingredients of
commission of offence under aforesaid
sections are not satisfied. The court below
has punished the accused for a less grave
offence of cognate nature, i.e. u/s 323 and
325 IPC, whose essentials are satisfied with
the evidence on record. Voluntarily causing
11 All. Ramji Sharan Sharma Vs. State of U.P. & Ors.
253
hurt/voluntarily causing grievous hurt as
embodied u/s 323 and 325 of IPC are alike
the main ingredient of Section 326 IPC i.e
voluntarily causing grievous hurt, which
was one of the offence under trial, and after
careful
consideration
of
fact
and
circumstances of the case trial court had
rightly convicted the accused for an offence
of lesser gravity, which has been proved by
the prosecution beyond reasonable doubt.
No prejudice can be said to have been
caused to either side owing to non framing
of charges under the sections under which
punishment for the offence of lesser gravity
has been awarded.

41. We are of the considered view,
after perusing the impugned order and
analyzing the circumstances of the case,
that the trial court has rightly convicted the
accused for commission of the offences u/s
323/34, 325/34 and 506 I.P.C. on account
of the injuries sustained by the informant
(P.W.1) and his servant Bajrangi Lal
(P.W.2). Other offences of graver nature,
qua the charges framed, are not proved
beyond reasonable doubt satisfying their
statutory elements. There is no illegality or
infirmity in the impugned judgment passed
by court below warranting interference of
this court in an appeal filed on behalf of the
informant. We find no good ground to alter
or modify the impugned judgment for
conviction of the accused for the offences
of higher gravity.

42. Resultantly, the instant appeal is
dismissed being devoid of merits. Impugned
judgment and order dated 15.03.2016 passed
by the Additional District & Sessions Judge,
Court, Varanasi in S.T. No. 529 of 1999
(State of U.P. vs. Narendra Kumar Singh &
others) convicting the accused under Sections
323/34, 325/34, 506 I.P.C. is hereby
affirmed.
----------
(2020)11ILR A253
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Misc. Application U/S 372 Cr.PC (Leave
to Appeal) No. 318 of 2019

Ramji Sharan Sharma ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Nipun Singh, Sri Vivek Chaubey

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