# Phullan & Ors v. State of U.P

- **Citation:** (2023) 11 ILRA 700
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-09
- **Case number:** Criminal Appeal No. 766 of 2000
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phullan-ors-v-state-of-u-p-49393
- **Pages:** 9

## Headnote

Criminal Law-The Indian Penal Code,1860Sections 307 & 34--- Learned trial court found the
case proved on the basis of medical evidence, site
plan and oral evidence of injured. FIR is prompt.
Enmity is admitted. Gunshot injury was found, which
is proved by doctor. Therefore, learned trial court
found the accused-appellants guilty and convicted
them. The conclusion of learned trial court does not
suffer with any infirmity or lacuna. The contradictions
are minor in nature and the prosecution proved the
case beyond reasonable doubt, hence no merit is
found in the appeal and the appeal is liable to be
dismissed--- Trial court has power to find the accused
guilty for lesser offence even if charge is made for
major offence, but when the charge was framed for
lesser offence the court cannot convict the accused
for major offence without alteration of charge. Hence
when the prosecution has proved prosecution version
regarding major offence under section 307 IPC and it
is proved by the evidence that all the appellants acted
with common intention then trial court rightly
convicted appellants under section 307 IPC read with
section 34 IPC. Hence there is no illegality in the
judgment of trial court, if the accused-appellants are
convicted under section 307 read with section 34 IPC.

Appeal dismissed. (E-15)

List of the cases referred-:

## Text

700 INDIAN LAW REPORTS ALLAHABAD SERIES
the opinion of the trial court absence of the
appellant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

24. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the prayer for
bail and must not be construed to have any
reflection on the ultimate merit of the case.

25. The trial court is also directed to
expedite the trial of the aforesaid case,
within a period of one year from today, by
following the provisions of Section 309
Cr.P.C., strictly without granting any
unnecessary adjournments to the parties, in
case there is no other legal impediment.

----------
(2023) 11 ILRA 700
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.11.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 766 of 2000

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

Counsel for the Appellants:
Imtiyaz Murtaza, Sumit Kumar Srivastava

Counsel for the Opposite Party:
G.A.

Criminal Law-The Indian Penal Code,1860Sections 307 & 34--- Learned trial court found the
case proved on the basis of medical evidence, site
plan and oral evidence of injured. FIR is prompt.
Enmity is admitted. Gunshot injury was found, which
is proved by doctor. Therefore, learned trial court
found the accused-appellants guilty and convicted
them. The conclusion of learned trial court does not
suffer with any infirmity or lacuna. The contradictions
are minor in nature and the prosecution proved the
case beyond reasonable doubt, hence no merit is
found in the appeal and the appeal is liable to be
dismissed--- Trial court has power to find the accused
guilty for lesser offence even if charge is made for
major offence, but when the charge was framed for
lesser offence the court cannot convict the accused
for major offence without alteration of charge. Hence
when the prosecution has proved prosecution version
regarding major offence under section 307 IPC and it
is proved by the evidence that all the appellants acted
with common intention then trial court rightly
convicted appellants under section 307 IPC read with
section 34 IPC. Hence there is no illegality in the
judgment of trial court, if the accused-appellants are
convicted under section 307 read with section 34 IPC.

Appeal dismissed. (E-15)

List of the cases referred-:

1. Maqbool Vs St. of A.P., AIR 2011 SC 184

2. U.O.I. Vs Prakash P. Hinduja AIR 2003 SC 2612

3. Amar Singh Vs Balwinder Singh, AIR 2003 SC 1164

4. Sambu Das Vs St. of Assam, AIR 2010 SC 3300

5. Ram Bihari Yadav Vs St. of Bihar", AIR 1998 SC
1850,

6. Paras Yadav Vs St. of Bihar", AIR 1999 SC 644,

7. Dhanraj Singh Vs St. of Punj., AIR 2004 SC
1920,

8. Ram Bali Vs St. of U.P. AIR 2004 SC 2329

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

1 Heard Sri Sumit Kumar Srivastava,
learned counsel for the applicants, Sri Ajay
Kumar Srivastava, learned AGA for the
State and perused the material available on
record.
11 All. Phullan & Ors. Vs. State of U.P.
701

2. Present appeal has been preferred
by the appellants against the judgment and
order dated 01.08.2000, passed by Vth
Additional Sessions Judge, Pratapgarh, in
Session Trial No.57 of 1997, whereby the
appellants have been convicted under
section 307 IPC read with section 34 IPC
and all the appellants except appellant
Mausim Ali, have been sentenced to under
go rigorous imprisonment of 7 years and
payment of the fine of Rs.2,000/- each and
further to under go imprisonment of 3 years
in default of payment of fine and the
appellant Mausim Ali is convicted under
section 307 IPC read with section 37 IPC
and sentenced to pay the fine of Rs.2,000/-
and in default of payment of fine to
undergo further imprisonment for a period
of 3 months. During the pendency of
appeal the appellants Hashim Ali son of
Mausim Ali and Maushim Ali(appellant
nos.2 and 4) have died and appeal was
abated on their behalf vide order dated
26.08.2022. Appellants Mohd. Idris and
Phullan son of Mausim Ali were released
on bail.

3. Wrapping the facts in brief, on
16.07.1996 at about 9.00 A.M., when
the
informant(Abdul
Hamid)
was
planting the paddy in his fields the
accused-appellants Mausim Ali and
Hashim Ali, Phullan and Mohd. Idris
sons of Maushim Ali, assaulted him
with lathi-danda and fire arm due to old
animosity. He tried to escape towards
his house, but Hashim, Phullan and
Mohd. Idrish started firing and his
brother Abdul Wahid(P.W.-1) stuck in
the fields, filled with water. The fire,
shot his bother, when he raised noise
the witnesses Bachai, Hatim Ali, Sabit
Ali, Iddu @ Neta, reached there and
challenged the accused, then all of them
went to their house.

4. On the basis of a written report FIR
was registered in Police Station Kotwali,
Pratapgarh, as Case Crime No.569 of 1996,
under section 307 IPC. Chik report was
prepared at the same time and entered into
G.D. The investigation was conducted by
S.I. Rajesh Kumar Singh(P.W.-5), got the
injured medically examined in the hospital,
inspected the spot and prepared site plan on
the pointing out of informant Abdul Hamid.
He recorded the statement of informant
Abdul Hamid and witnesses. The statement
of injured Abdul Wahid could not be
recorded on that date, due to his injuries.
He recorded the statement of injured on
18.07.1996 when he became normal to give
his statement. After collecting sufficient
evidence against the accused-appellants,
investigating officer submitted charge sheet
in the court.

5. The Magistrate took the cognisance
of the case and after compliance of
provisions section 207 Cr.P.C., committed
the case to the court of session for trial. The
charges were framed against the accusedappellants under section 307 IPC. and read
over & explained to the accused persons,
who abjured from the charges and claimed
to be tried.

6. Prosecution adduced 5 witnesses to
prove the case against the accusedappellants, which are as follows:-

(I)
P.W.-1,
Abdul
Wahid
(Injured)

(ii) P.W.-2, Sabit Ali (Witness)

(iii) P.W.-3, Dr. P.K. Agarwal
(Witness)

(iv) P.W.-4, Dr. V.K. Verma
(Radiologist)
702 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) P.W.-5, Investigating officer

7. Besides oral evidence, few
documentary evidences were also produced
by the prosecution, which are as follows:-

(I) FIR (Ex.Ka-1)

(ii) Medical examination report
(Ex.Ka-2)

(iii) Radiological report (Ex.Ka3)

(iii) Site plan (Ex.Ka-4)

(iv) Charge sheet (Ex.Ka-5)

(v) Chik report (Ex.Ka-6)

(vi) G.D. (Ex.Ka-7)

8. After the conclusion of evidences,
the statement of appellants were recorded
under section 313 Cr.P.C. All the accused
deposed in their statements recorded under
section 313 Cr.P.C. that they are innocent
and they have been falsely implicated in the
present case by the informant, as his father
was in police department. All the accused
denied the incident and stated that the case
was registered on the basis of forged
written report and witnesses deposed due to
animosity and witness Iddu Neta has
expired. All the appellants have stated that
Mausim Ali was acquitted of the incident
of Kaddipur assault. Accused confessed
that Idris, Phullan and Mussim Ali were
charged and tried in abduction case.
Accused have states that Phullan and Idris
were tried under section 307 IPC and also
for firing in Ramleela ground, but they
have been acquitted of the offence under
section 307 IPC and section 25 Arms Act.

9. After hearing the public prosecutor
and the counsel for the accused-appellants,
learned
trial
court
relied
upon
the
prosecution version and held that the FIR is
prompt, accused and informant are resident
of the same village, therefore, they are well
acquainted with everyone. Medical report
corroborates
the
prosecution
version,
therefore, prosecution case is proved
beyond reasonable doubt. It is also held by
the trial court that if the injured witness
appeared in the dock and proved the case as
a ocular witness then the motive of assault
becomes negligible and irrelevant. Abdul
Hamid who was informant of the case
expired during the trial, therefore, he could
not be produced as prosecution witness,
however the injured Wahid proved the
prosecution version. On the basis of the
evidence on record, learned trial court
convicted all the four accused under section
307 read with section 34 IPC and punished
them
with
the
aforesaid
conviction.
Aggrieved with the aforesaid judgment the
present appeal is filed by the appellants.

10. I have heard the counsel for the
appellants, learned AGA for the State and
perused the record.

11. It is submitted on behalf of the
appellants that impugned judgment and
order dated 01.08.2000 is illegal, unjust and
improper.
Medical
evidence
has
not
supported the prosecution version. There
are
major
inconsistencies
and
contradictions in the statements of the
witnesses. Investigation of the case is
tainted and prosecution has failed to prove
their case beyond reasonable doubt. Trial
court did not consider their defence while
passing the impugned judgment, hence the
impugned judgment is liable to be setaside.
11 All. Phullan & Ors. Vs. State of U.P.
703

12. Per contra, learned AGA for the
State submitted that the injured witness
Abdul Wahid is produced as P.W.-1 and he
proved the prosecution version and his
injuries very well supported by medical
evidence which is proved by Dr. P.K.
Agarwal(P.W.-3). FIR is prompt and there
is no possibility of addition or concoction
or distortion, in the contents of FIR. Hence
the impugned judgment is based on reliable
evidence of facts hence appeal is liable to
be rejected.

13. Before analysis of the evidence it
is desirable to recapitulate the evidence on
record. P.W.-1 Injured, Abdul Wahid stated
on oath that on the date of incident at about
9.00 A.M. he alongwith his brother Abdul
Hamid were planting the paddy and the
fields were filled with water. They were on
the western boundary of their fields. The
accused-appellants Mausim Ali, Hashim
Ali, Phullan and Idris started assaulting
them with lathi-danda and fire arms due to
old animosity. He alongwith his brother
tried to escape towards his house, but he
could not escape. Accused surrounded
them from three sides and opened fire. He
sustained injuries in the left side of
shoulder blade, neck upper arm and chest.
Hearing the noise of firing his brother came
back and raised alarm, then witnesses
Bachai, Hatim Ali, Sabit Ali, Iddu Nata,
arrived there and accused took to their
heels. His brother Abdul Hamid scribed
FIR near the Kotwali Sadar and FIR was
registered on his application. He was
medically examined by the doctor and his
statement was recorded by the investigating
officer on the third day of the incident.
Informant Abdul Hamid died during course
of trial, therefore, he could not appear to
deposed in court and FIR was proved by
the injured as secondary evidence.

14 P.W.-2, Sabit Ali, who is maternal
uncle of the injured, deposed that he
proceeded to Hakim Ke Purwa by Jeep
from his house, as his house is 12 miles
away from the place of occurrence. He left
his Jeep near toll and thereafter he
proceeded on foot to Kadipur via chowk
and jail road. Thereafter, he went to the
house of Bachai and alongwith Bachai
went towards Hakim Ke Purwa for the
purchase of buffalo. When they reached
near tube-well they saw that the accusedappellants Mausim Ali, Hashim Ali,
Phullan and Mohd. Idrish, having illegal
weapons in their hands, opened fire on the
injured Abdul Wahid, who fell down in the
field. When they scolded the accusedappellants, they took to their heels towards
their house. He accompanied injured Abdul
Wahid and informant Abdul Hamid to their
house and thereafter went away to purchase
Buffalo.

15. P.W.-3 P.K. Agarwal, medical
officer appeared in the court and stated that
he examined injured Abdul Wahid aged
about 32 years, was brought by home guard
Prathvipal No.2048, Police Station Kotwali
Nagar. The following injuries were found
on his body:-

(i) Multiple pellet injuries on left
side neck and left side face the area of 12
c.m. X 12 c.m. present and swelling of 0.5
c.m. X 0.5 c.m. circular with piercing
lacerated wound at centre .03 c.m. X .03
c.m. circular with fresh oozing and many
such injuries hard object (pellets) palpable
from above. Total numbers approximately
15 on neck and 15 on face.

(ii) Similar pellet injuries on front
of chest and left side on area of 12 c.m. X
12 c.m. upper and left part of the chest
704 INDIAN LAW REPORTS ALLAHABAD SERIES
alongwith axilla. Total number of injuries
about 50, all bleeding

(iii) 7-8 pellets injuries on back of
left upper arms.

It is opined by the doctor that all
the injuries are caused by fire arm.
Duration fresh. Kept under observation.
Admitted to district hospital PBH. Referred
to surgeon for surgery and radiologist for
X-ray of head, neck and chest.

Doctor prepared the injury report
and in his statement doctor deposed that
general
condition
of
patient
was
satisfactory, however, air pressure was
slightly less in left lungs.

16. P.W.-4 Dr. V.K. Verma deposed
that he conducted X-ray of injured Abdul
Wahid Contofanic Angle of left lungs was
clear. Bones of head and neck were normal.
P.W.-4 proved X-ray report and X-ray
plate.

17. P.W.-5, investigating officer
deposed that after getting investigation of
the case he copied FIR and injury report in
the case diary and G.D. He recorded the
statement
of
informant
Hamid
and
inspected the site plan on his pointing out.
He could not record the statement of
injured Abdul Wahid on that day because
he was not fit for recording of his
statement. Therefore, he recorded the
statement of injured in the third day of the
incident. He recorded the statement of
witnesses Sabit Ali, Iddu Nata and Bachai.
He proved site plan, charge sheet, G.D. and
other police papers.

18. F.I.R. reveals that the incident
occurred on 16.07.1996 at about 9 A.M.
and FIR was lodged at about 9.30 A.M.
Therefore, there is no delay in lodging of
the FIR and there is no possibility of
distortion or concoction in the contents of
FIR.

19. It is submitted on behalf of
learned counsel for the appellant that
medical evidence has not supported the
prosecution case. I perused the medical
report in the light of other material on
record. According to the FIR accusedappellants surrounded Abdul Wahid as he
was struck in water filled in the fields and
opened fire upon him, which hit in his left
shoulder blade, neck upper arms and chest.
The contents of FIR are proved by injured
witness P.W.-1 and P.W.-2, witness Sabit
Ali. No contradiction is found in the
statement of injured regarding the injuries.
Injuries are corroborated by doctor P.W.-3.
There is no contradiction in the statements
of witnesses and the statement of doctor
regarding the injuries of P.W.-1. P.W.-4
doctor V.K. Verma substantiated the injury
report and proved the injuries of P.W.-1.
However, he deposed that lungs and bones
were not damaged as per X-ray report but
he deposed that metallic shadow were
found in X-ray on face, neck and chest.
P.W.-3 submitted that both the injuries may
be caused by one and the same shot of fire.
The fire was not opened from the closed
range, however, he could not reveal the
range of fire. Palpable head pellet injuries
were found on the face, neck and chest.
Therefore, there is no contradictions in the
statement of doctor, P.W.-3, Radiologist,
P.W.-4 and injured P.W.-2.

20. It is submitted that weapon was
not recovered from the possession of
accused. From the perusal of record it is
evident that investigating officer did not
recovered the weapon used in the incident.
Appellants are not being tried under Arms
11 All. Phullan & Ors. Vs. State of U.P.
705
Act, but no explanation is sought by
learned counsel for the appellants during
the course of crosses examination of P.W.-
5. Recovery of weapon is within the
jurisdiction of investigating officer and if
investigating officer commits any fault
during investigation, it does not extend any
benefit to accused, as informant has no
control over investigation. Hence if the
case is otherwise proved by prosecution,
then mere fault at the instance of
investigating officer, do not render the
prosecution version unreliable.

21. P.W.-5, investigating officer,
admitted in his cross-examination that he
did not seized blood stain cloths of injured
nor he prepared recovery memo thereof. He
did inquire about the blood stain cloths
from head constable or doctor. This is
minor laps on behalf of investigating
officer and any laps or latches on behalf of
investigating officer in a case of killing by
shooting, where the I.O. failed to collect
bloodstained soil and empty shells from the
scene, do not demolished the complete
prosecution
version.
Since
the
eyewitnesses deposed to the firing of shots
resulting in death, which was corroborated
by medical evidence, the loopholes in the
investigation do not cause prejudice to the
accused. It is held by Apex Court in its
Judgment passed in Maqbool vs. State of
A.P., AIR 2011 SC 184 that "There is no
rigid rules to appreciation the evidence.
Effect of shortcomings on the part of I.O. is
part of task of judge in appreciation of
Evidence
to
assess
the
effect
of
shortcomings of I.O. Doctor had proved the
injuries of injured, therefore, if the blood
stain clothes of the injured are not
recovered by the investigating officer, it
does not mean that no injury was sustained
by injured."

22. As the general principle, it can be
stated that error, illegality or defect in
investigation cannot have any impact
unless miscarriage of justice is brought
about or serious prejudice is caused to the
accused. It is held by Apex Court in its
Judgment passed in "Union of India vs.
Prakash P. Hinduja AIR 2003 SC 2612"
that "If the prosecution case is established
by the evidence adduced, any failure or
omission on the part of the I.O cannot
render the case of the prosecution
doubtful". It is also held by Apex Court in
its Judgment passed in "Amar Singh vs.
Balwinder Singh, AIR 2003 SC 1164"
and "Sambu Das vs. State of Assam, AIR
2010 SC 3300" that "If the direct evidence
is credible, failure, defect or negligence in
investigation cannot adversely affect the
prosecution case, though the court should
be circumspect in evaluating the evidence".
It is also held by Apex Court in its
Judgment passed in "Ram Bihari Yadav
vs. State of Bihar", AIR 1998 SC 1850,
"Paras Yadav vs. State of Bihar", AIR
1999 SC 644, "Dhanraj Singh vs. State of
Punjab", AIR 2004 SC 1920, "Ram Bali
vs. State of U.P. AIR 2004 SC 2329" that
"If investigation is faulty, illegal or
suspicious, the rest of the evidence should
be scrutinized independent of the impact of
the faulty investigation; otherwise criminal
trial will descend to the I.O ruling the
roost. Yet if the court is convinced that the
evidence of eyewitnesses is true, it is free to
act upon such evidence though the role of
the I.O in the case is suspicious. An
accused cannot be acquitted on the sole
ground of defective investigation; to do so
would be playing into the hands of the I.O.
The absence of independent witness of
recovery under Section 27, Evidence Act is
not sufficient to create doubt regarding
truth of the prosecution version."
706 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Learned counsel for the appellants
argued that investigating officer did not
collected blood contaminated water or
blood stain earth which goes to show that
no such incident happen. This arguments of
learned counsel for the appellants finds no
favour, as investigating officer himself
clear at page-7 of examination that the field
were filled with water and paddy was being
planted, therefore, it was not possible to
collect blood stain water or earth.

24. It is also argued by learned
counsel
appellants
that
there
is
contradiction on the points that whether the
place of occurrence was muddy or dry.
Learned counsel for the appellants has
placed reliance on the page-11 of the
statement of P.W.-2, who stated on oath
that "injured did not fall on the field, there
was no water or mud and the place of
occurrence was dry". The contents of
learned counsel for the appellants do not
find any favour to this contention also, as in
the very next line P.W.-2 stated that injured
fell down at the very place where the fire
hit him. In the site plan, the field is found
filled with water. The statement of injured
was recorded on 11.11.1999 about three
years after the incident. Documentary
evidence proved that the fields were under
water, as the paddy was being planted at
that
time.
Therefore,
this
minor
contradictions
do
not
destroy
the
prosecution version.

25. Learned counsel for the applicants
argued that P.W.-2 Sabit Ali is the
interested witnesses, as he is maternal uncle
of injured Abdul Wahid. Sabit Ali, P.W.-2
replied in page-7 of his statement that he is
not the real maternal uncle of injured and
he is maternal uncle of injured due to
village relationship with the injured. Sabit
Ali is the eye witness and he deposed that
he was going to purchase buffalo alongwith
one Bachai of the village. Injured was
surrounded by all the accused having
weapons in their hands and fired at Abdul
Wahid. He was present near the house of
Bachai which is at the distance of one
farlong. Mohd. Idrish shot fire from the
distance of 6-7 steps. Accused flad towards
north of the place of occurrence. The
presence of this witness is not doubtful,
therefore, his evidence cannot be thrown
out, merely on the ground that he is the
maternal uncle of the injured, due to village
relationship.
He
accompanied
injured
Abdul Wahid and informant Abdul Hamid
to their house and thereafter went away to
purchase Buffalo.

26. Learned counsel for the appellant
submitted that P.W.-2 is 85 years old and
he admitted that his vision has diminished
since the age of 75 years. During the
statement this witness could not identify
the fingers shown to him, but his statement
was recorded about four years after the
incident. For the shake of argument, if I
disbelieve the evidence of P.W.-2, even
then the injured, P.W.-1 himself proved the
incident beyond reasonable doubt, which is
corroborated by the evidence of P.W.-3,
Dr. P.K. Agarwal and P.W.-4, Dr. V.K.
Verma, Radiologist.

27. It is further argued on behalf of
the accused-appellants that injured was
history-sheeter and he must be shot fire by
some one else due to rivalry. P.W.-1
injured admitted in his statement that he
himself and his brothers Abdul Hamid and
Abdul Rashid, were the accused in the case
of section 308 IPC, which was filed by the
appellant Maushim Ali. Prior to this
incident accused-appellants Maushim Ali,
Mohd. Idrish and Hashim, assaulted the
father of injured Abdul Sakoor and the case
is pending in the court of concerned Chief
11 All. Phullan & Ors. Vs. State of U.P.
707
Judicial Magistrate. The accused-appellants
were pressurising the informant and injured
to withdraw the case which was pending
against the accused-appellants and when
they refused to do so the present incident
had occurred, therefore, there is no
possibility to implicated them falsely
without any reason. The enmity is double
edged
weapon,
hence
the
incident
happened due to this enmity. Therefore, the
contention of learned counsel for the
appellants finds no favour that accusedappellants are falsely implicated in the
present case and the incident occurred
somewhere else by some other persons.

28. Accused-appellants produced
D.W.-1, Head Constable No.38, Om
Prakash Shukla, who narrated criminal
history of Washir son of Amin, but Washir
is neither informant nor witness or injured
in this case, therefore, this defence witness
is of no use for defence except disclosing
criminal antecedents of Washir.

29. Learned trial court found the case
proved on the basis of medical evidence,
site plan and oral evidence of injured. FIR
is prompt. Enmity is admitted. Gunshot
injury was found in the body of injured and
informant, which is proved by doctor.
Therefore, learned trial court found the
accused-appellants guilty and convicted
them in this case. The conclusion of
learned trial court do not suffer with any
infirmity or lacuna. The contradictions are
minor in nature and the prosecution proved
the case beyond reasonable doubt, hence no
merit is found in the appeal and the appeal
is liable to be dismissed.

30. Lastly, learned counsel for the
accused-appellants submitted that all the
appellants were charged with section 307
IPC, however, they were convicted under
section 307 read with section 34 IPC
without amending any charge, therefore,
the judgment is liable to be set-aside on this
sole ground.

31. So far as section 34 IPC is
concerned, it is not substantive offence,
which is quoted herein below:-

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

32. Trial court has power to find the
accused guilty for lesser offence even if
charge is made for major offence, but when
the charge was framed for lesser offence
the court cannot convict the accused for
major offence without alteration of charge.
Hence when the prosecution has proved
prosecution
version
regarding
major
offence under section 307 IPC and it is
proved by the evidence that all the
appellants acted with common intention
then trial court rightly convicted appellants
under section 307 IPC read with section 34
IPC. Hence there is no illegality in the
judgment of trial court, if the accusedappellants are convicted under section 307
read with section 34 IPC. Therefore, the
appeal is liable to be dismissed on this
ground also.

33. In view of the aforesaid, the
appeal is dismissed.

34. Appellant nos.2 and 4 namely
Hashim and Maushim Ali are died. The
appellant nos.1 and 3 namely Phullan and
Mohd. Idris are still alive and are on bail.
They are directed to surrender before the
708 INDIAN LAW REPORTS ALLAHABAD SERIES
court concerned for serving out the
remaining sentence, awarded to them by
the trial court. The sureties are discharged.

35. Let copy of this judgment
alongwith the lower court record, if any, be
sent to the trial court concerned for further
necessary action and compliance.

----------
(2023) 11 ILRA 708
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2023

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 994 of 2023

Anil Pandey. ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Amit Kumar Pandey, Sri Sunil Kumar
Singh

Counsel for the Opposite Party:
G.A., Sri Dharmendra Kumar Chaubey, Sri
Pravin Kumar Tiwari

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 389(1) ---Court is
duty-bound to objectively assess the matter and
record the reasons for its conclusion for
deciding the application under Section 389(1)
Cr.P.C .--- On perusal of the testimony of PW-1
and PW-2, prima-facie, it transpires that the
testimony are trustworthy and reliable as both
are victims of sexual offence and advances by
same man. And no explanation has been put
forth for the false implication of the accusedappellant except that the complainant and
victim was in relationship, even if it is
presumed, at this stage, the victim was in a
relationship with the accused, it does not give a
licence to the accused to exploit the women for
all time to come and also to have evil eyes on
her young daughter---The complainant had to
withdraw the complaint dated 02.11.2024
lodged at PS Civil Lines, Ballia, under pressure
from the accused and his family members which
shows that the accused wields substantial and
compelling influence in the administration, and
may cause harm to the complainant and her
daughter's safety and security if released on bail
at this stage.

Application for suspension of sentence is
dismissed at this stage.(E-15)

List of the cases referred-:

1. Chaman Lal Vs St. of U.P. & anr.2004(7) SCC
525

2. Om Prakash Sahni Vs Jai Shankar Chaudhary
& anr. 2023 SCC OnLine SC 551

3. Rajesh Ranjan Yadav alias Pappu Yadav Vs
CBI (2007) 1 SCC 70

4. Ash Mohammad Vs Shiv Raj Singh alias Lalla
Babu (2012) 9 SCC 446

5. Bhagwan Rama Shinde Gosai Vs St. of
Gujarat (1999) 4 SCC 421

6. St. of Har. Vs Hasmat (2004) 6 SCC 175

(Delivered by Hon'ble Vinod Diwakar, J.)

Crl. Misc. Suspension of Sentence
Application No.1 of 2023

1. I have heard learned counsel for the
appellant,
learned
counsel
for
the
complainant, and learned A.G.A. for the
State on suspension of sentence.

2. The accused-appellant Anil Pandey
has been convicted in Sessions Trial No.13
of 2018 (State vs. Anil Pandey), arising out
of Case Crime No. 88 of 2017, under
Sections 376, 394, 323 and 506 I.P.C.,
Police Station Kotwali, District Ballia, and
has been sentenced to suffer R.I. for ten