# Rajesh alias Bachchan Yadav v. State of U.P - **Citation:** (2021) 11 ILRA 809 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-12-14 - **Case number:** Crl. Appl No. 820 of 2007 - **Bench:** Anjani Kumar Mishra, Syed Aftab Husain Rizvi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-alias-bachchan-yadav-v-state-of-u-p-46610 - **Pages:** 20 ## Headnote Criminal Law - Indian Penal Code, 1860 - Sections 147,323, 436 & 506 - Eye witnesses to be not expected to give thread bare description of each and every happening-minor contradiction - natural-testimony of injured witnesses are consistent and corroborated by the medical evidence-pre planned murder with common object proved-charges framed u/s 302 & 307 IPC are without the aid of section 149 IPC-conviction u/s 302 IPC will not sustain-no specific evidence which implicates accused for charges u/s 307 IPC-conviction us 307 IPC will also not sustain-conviction -conviction u/s 147,323, 436 and 506 IPC upheld. Conviction u/s 302 & 307 IPC set aside. (E-9) List of Cases cited: ## Text _Characters 0–39,869 of 73,798. This is a partial read: ask again with offset=39869 for what follows._ 11 All. Rajesh alias Bachchan Yadav Vs. State of U.P. 809 option but to allow the appeal and set aside the conviction and sentence recorded by the court below. The appeal is accordingly allowed. The judgment and order of the trial court (i.e. court below) in both the trials is set aside. The appellant is acquitted of the charges for which he has been tried. He shall be set at liberty forthwith, unless wanted in any other case, subject to compliance of the provisions of Section 437 A Cr.P.C. to the satisfaction of the court below 35. Let a copy of this order along with the lower court record be transmitted to the trial court for compliance. ---------- (2021)12ILR A809 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 14.12.2021 BEFORE THE HON'BLE ANJANI KUMAR MISHRA, J. THE HON'BLE SYED AFTAB HUSAIN RIZVI, J. Crl. Appl No. 820 of 2007 Connected with Crl. Appl. Nos. 831 of 2007, 1355 of 2007, 1356 of 2007 & 188 of 2007 Rajesh alias Bachchan Yadav ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellant: Sri Lav Srivastava, Sri Rajiv Gupta, Sri Ranjay Kumar, Sri Shivam Yadav, Sri V.P. Srivastava, Sri Dilip Kumar Counsel for the Respondents: A.G.A., Sri Subhash Yadav Criminal Law - Indian Penal Code, 1860 - Sections 147,323, 436 & 506 - Eye witnesses to be not expected to give thread bare description of each and every happening-minor contradiction - natural-testimony of injured witnesses are consistent and corroborated by the medical evidence-pre planned murder with common object proved-charges framed u/s 302 & 307 IPC are without the aid of section 149 IPC-conviction u/s 302 IPC will not sustain-no specific evidence which implicates accused for charges u/s 307 IPC-conviction us 307 IPC will also not sustain-conviction -conviction u/s 147,323, 436 and 506 IPC upheld. Conviction u/s 302 & 307 IPC set aside. (E-9) List of Cases cited: 1. Maqsoodan Vs St. of U.P., (1983) 1 SCC 218 2. Bhagwan Jagannath Markad & St. of Har. Vs Krishnan 3. Rudal Singh & ors. Vs State, 2016 (3)ACR 2823 4. St.of U.P. Vs Kallu Lal & ors., 1985 Law Suit (All) 475 5. Sri Kishan & ors. Vs St. of U.P., 1972 (2) SCC 537 6. Ram Krishna AIR 1997 SC 3997 7. Bhogilal Vs St. of U.P., 1984(3)crimes 37 8. Yogendra Nath Jha Vs Polai Lal, AIR 1951 SC 316 (Delivered by Hon'ble Syed Aftab Husain Rizvi, J.) 1. Heard Sri V.P. Srivastava, and Sri Dilip Kumar, learned Senior Counsels assisted by Sri Ranjay Kumar, learned counsel appearing for the appellants and learned A.G.A. for the State respondent in criminal appeals and Sri Kamlesh Kumar Tiwari, learned counsel for the Revisionist and Sri Ranjay Kumar, learned counsel for opposite party and learned AGA for the State-respondent. 2. All the aforesaid criminal appeals and Revision have been filed against the judgment and order dated 22.12.2006 passed by the Additional Sessions Judge, court no.7 Ballia in S.T. No. 167 of 2006 (State vs. Basdeo &others) in case crime no.1 of 2006 under Sections 147, 148, 302, 307, 436, 435, 336, 342, 353, 323, 504, 506, 427 IPC and Section 7 of Criminal Law Amendment Act, P.S. Pakari, District- Ballia. 810 INDIAN LAW REPORTS ALLAHABAD SERIES By the impugned judgment and order dated 22.12.2006, the learned trial court has convicted the accused-appellants namely- Brahmdeo Chauhan, Ravindra Chauhan, Rajesh alias Babban Yadav, Arvind Gaur, Kamla Rajbhar, Guddu Rajbhar, Rambhawan Rajbhar, Gama Rajbhar, Jawahir Chauhan, Harish Chand Rajbhar, Ramashankar Rajbhar, Basudeo Rajbhar under Section 147 IPC and sentenced each of them to undergo one year rigorous imprisonment, under Section 436 IPC to undergo life imprisonment and fine of Rs. 1,000/- each, under Section 323 IPC to undergo six months rigorous imprisonment, under Section 307 IPC to undergo seven years rigorous imprisonment and fine of Rs.2000/- each, under Section 302 IPC to undergo life imprisonment and fine of Rs.5000/- each and under Section 506 IPC to undergo five years rigorous imprisonment. In default of payment of fine, each accused will have to serve eight months imprisonment. All the sentences to run concurrently. All the four criminal appeals have been filed by the accused/ appellants against the aforesaid judgment and order of conviction and sentences. By the impugned judgment and order the learned trial court has also acquitted accused namely Suman Rajbhar, Santosh Yadav, Hansnath Gaur, Ranjit Gaur, Sunil Rajbhar, Devendra Rajbhar, Harendra Rajbhar, Bechu Rajhbhar and Mohan Rajbhar from all the charges. Aggrieved by this complainant Rajnikant Yadav has filed the Criminal Revision against the judgment and order of acquittal. 3. During the pendency of the criminal appeal, appellant-accused Kamla Rajbhar has died, consequently, appeal stands abated for him. 4. In brief the prosecution case is that complainant- Rajnikant Yadav gave an application dated 01.01.2006 written by Uma Shankar Yadav at P.S. Pakari District Ballia. In the application, it was alleged that "Applicant- Rajnikant Yadav is original resident of Hathauj, P.S. Khejuri, District Ballia. At present his father after constructing a house in village Ussa P.S.- Pakari, District- Ballia is living there with his family since last 30 years. One Brahm Dev Chauhan resident of Ussa tries to take illegal possession of the house property alleging it the land of Gram-Sabha. Because of this enmity, previously he has made several attempts to dispossess the complainant by inciting the villagers. Due to this reason today on 01.01.2006 at about 6:30 pm, Basudeo Rajbhar, Kamla Rajbhar, Guddu Rajbhar, Panch Ratan Rajbhar, Raj Kapoor Gond, Ram Bhawan Rajbhar, Harish Chand Rajbhar, Gama Rajbhar, Kavindra Nath, Ravindra Nath, Shravan Kumar, Ajay Chauhan, Rajesh alias Babban, Santosh, Arbind Gaur, Raju, Rajesh, Jawahir Chauhan, Brahmdev Chauhan and Ramashankar Rajbhar and others of the same village, and several other persons holding lathidanda, Ballam and bricks/ stones in their hands with common object suddenly came at my house abusing and threatening with death. Seeing them I and my uncle Rajesh Yadav ran to save our lives, then they chased and assaulted us. My father Chandra Dev Yadav and younger brothers ran inside the house, then accused- persons shut the door from outside and put straw (puwal) etc. at the door and set it on fire and sat outside holding lathi-danda and spear in their hands. But anyhow my father came outside the room, then the accused-persons chased him and assaulted him severely. He fell down and became unconscious. On our cries and seeing the flames of fire, Hansnath Yadav, Adalat Yadav, Lalbachan Yadav and other villagers/ neighbourers and passers by came there and exhorted the accused-persons then they came on the road abusing and threatening with death. With the help of those persons we pulled out both from flames and saved their lives. The condition of my father, uncle and two brothers 11 All. Rajesh alias Bachchan Yadav Vs. State of U.P. 811 are serious and they have been taken to the Sadar Hospital to save their lives. The accusedpersons also set on fire my kutcha house situated at some distance. Meanwhile a police vehicle came there then accused pelted bricks/ stones on police vehicle." On the aforesaid written application, case crime no.1 of 2006 under Sections 147, 148, 149, 307, 308, 336, 342, 353, 436, 324, 323, 504 & 506 IPC and Section 7 of Criminal Law Amendment Act was registered on 01.01.2006 at 20:30 p.m. at P.S. Pakari. The investigation was taken over by S.O. Pakari, C.P. Yadav. The Investigating Officer recorded the statements of some witnesses and also arrested some of the accused and, thereafter, visited the place of occurrence and prepared the site plan. He also collected ashes from the two burnt houses, one pucca house and one kutcha house and pieces of bricks sealed it and prepared a memo. Injured-Chandra Dev Yadav was admitted in the hospital for treatment. He died on 08.01.2006 at 5:35 am, in S.S.L Hospital, B.H.U, Varanasi. On his death Section 302 IPC was added. On 11.01.2006, Investigating Officer took into possession the blood stained clothes of injured/ deceased Chandra Dev Yadav, sealed it and prepared a memo. He recorded the statements of other witnesses. On 20.01.2006, during police custody remand of accused Brahm Dev Chauhan at his instance recovered a blood stained lathi and a plastic container of kerosene oil from the thatched room (Madai) in front of the house of the accused, and prepared its memo. The lathi was sent for forensic examination. During investigation, on the basis of evidence the role of Jainendra Rajbhar, Hansanth Gaur, Ranjit Gaur, Sunil Rajbhar, Devendra Rajbhar, Harendra Rajbhar, Bechu Rajbhar, Mohan Rajbhar and Suman Rajbhar also came in the light and they were also roped as accused. After completion of the investigation, charge-sheet was submitted. 5. The trial court framed charges against 23 accused namely-Basdev Rajbar, Kamla Rajbhar, Guddu Rajbhar, Ram Bhawan Rajbhar, Harish Chand Rajbhar, Gama Rajbhar, Suman Rajbhar, Santosh Yadav, Jawhir Chauhan, Ramashankar Rajbhar, Ravinder Chauhan, Shrawan Kumar Chauhan, Jainendra Rajbhar, Brhamdev Chauhan, Arvind Gond, Rajesh@ Babban Yadav, Hans Nath Gond, Ranjeet Gond, Sunil Gond, Devendra Rajbhar, Harendra Rajbhar, Bechu Rajbhar and Mohan Rajbhar under Sections 147, 436, 504, 323, 342, 307, 302, 336, 506, 435 and 308 IPC. The prosecution produced 14 witnesses who have proved 30 prosecution papers marked as Ex.Ka-1 to Ex.Ka-30. The statements of accused were recorded under Section 313 Cr.P.C. in which they have denied the prosecution case and stated that they are innocent and have been falsely implicated. No evidence in defence was produced. The learned trial court by the impugned judgment/ order has convicted the accusedappellants as described above while acquitted them from charges under Section 504, 342, 336, 435, 308 IPC and acquitted accused Suman Rajbhar, Hansnath Gaur, Ranjit Gaur, Mohan Rajbhar, Devendra Rajbhar, Sunil, Harendra Rajbhar, Santosh Yadav and Bechu Rajbhar from all the charges. Accused- Panchratan Rajbhar, Kavindra Rajbhar, Ajay Chauhan, Rajesh Yadav, Shrawan, Raj Kapoor Gond and Jainendra Rajbhar were declared juvenile. 6(i) Injured-Chandra Dev Yadav was medically examined on 01.01.2006 at District Hospital Ballia by Dr. H.P. Rai, Senior Surgeon at 8:20 p.m., following injuries were found on his body at the time of examination:- 812 INDIAN LAW REPORTS ALLAHABAD SERIES 1. Lacerated wound 6.5cm x 1cm x bone deep at right forehead, 2.5 cm above the right orbit, full of soft clots, bleeding on touch. 2. Superficial burn in the whole of right palm, epidermis was peeled off at places. 3. Superficial burn on left palm, epidermis was peeled off at places, red in colour. 4. Lacerated wound 3cm x 1cm x bone deep at the right skull, 8 cm above the injury no.1. Soft clots, bleeding on touch. 5. Lacerated wound 3.5cm x 0.5cm x bone deep at the right skull 3cm above the right pinna, full of soft clot, bleeding on touch. 6. Contused swelling 17cm x 9.5cm at left scapular region, red in colour. 7. Contusion 10cm x 2.5cm on right scapular region. The doctor has opined that injury nos.1, 4 and 5 were kept under observation and advised X-Ray, rest of the injuries were simple. All injuries caused by hard and blunt object, injury no.3 and 4 caused by heat. All injuries are fresh. (ii) Injured-Rajesh was medically examined on the same day at 8:40 pm and the following injuries were found on his body:- 1. Lacerated wound 7cmx 1cm x bone deep at right skull, 7 cm above right pinna full of soft clot. Bleeding on touch. 2. Lacerated wound 6.5cm x 1cm x bone deep at the left skull, 6cm above the left pinna full of soft clot, bleeding on touch. 3. Lacerated wound 4cm x 1cm x bone deep at the left forehead, 4.5cm above left pinna, full of soft clots. 4. Lacerated wound 3 cm x 0.25 cm x scalp deep at the upper part of the head bleeding on touch. 5. Lacerated wound 2.5cm x 3/10 cm x scalp deep just right to injury no.4. 6. Lacerated wound 1.5cm x 3/10 x muscle deep at the right first toe. 7. Contusion 6cm x 2cm on the right lower back, red in colour. Injury no.1 to 5 were kept under observation and advised X-Ray. Rest of the injuries were simple, all the injuries caused by hard and blunt object and fresh. (iii) Injured-Ghanshyam was also medically examined on the same day at 9:00 pm and according to injury report, following injuries were present on his body:- 1. Superficial burn and redness at the nostrils and nasal Mucosa. 2. The whole oral mucosa was congested and swollen and saliva discharge from the mouth. The child was taking laboured breathing. In the opinion of the doctor, the patient seems to have fume poisoning, restless and kept under observation. The nasal burn was due to heated fumes. (iv) On the same day at 9:20 p.m. the injured- Ashutosh was medically examined and following injury was found on his body: 1. Breathing of the injured was abnormal, saliva was discharging from the mouth, and oral mucosa was congested and swollen, patient was admitted and kept under observation. In the opinion of the doctor, cause was fume poisoning. Dr. H.P. Rai has been examined as P.W.-9 and he has proved all the aforesaid four medical examination reports as Ex.Ka-16 to Ex.Ka-19. The doctor has further stated that injures of all the injured persons may be caused on 01.01.2006 at 6:00 pm, the injuries no.1, 4, 5 and 7 of Chandra Dev Yadav may come from 11 All. Rajesh alias Bachchan Yadav Vs. State of U.P. 813 lathi-danda while injury no.6 may come by pressing with wooden plank, injuries no.2 and 3 may come from fire burn. All the injuries of Rajesh may come from lathi-danda while injuries of Ghanshyam and Ashutosh may come from fire and its fume. (v) Injured Km. Nisha was medically examined on 04.01.2006 at 2:50 p.m. by Dr. Ashwani Kumar Singh at PHC- Sukhpura, District-Ballia, following injuries were found on her body. 1. Contused abrasion 5cm x 1.5cm on anterior part of right elbow joint, bluish in colour. 2. Contusion 8 cm x 2cm on anterior part of right thigh 8cm above left knee joint, bluish in colour. Complaint of pain on skull, no visible injury. Complaint of pain at back side, no visible injury. In the opinion of doctor all injuries were caused by hard and blunt object and were simple in nature, duration about three days. (vi) Injured Rajvanshi Devi was medically examined on the same day at 3:00 pm and following injuries were found on her body. 1. Contusion 8cm x 3cm on lateral side of right elbow joint, bluish in colour. 2. Contusion 10cm x 3.5cm on an anterior part of left thigh, 7cm above left knee joint, bluish in colour. 3. Contusion 7cm x 3cm on anterior aspect of left leg, 8cm below left knee joint, bluish in colour. 4. Contusion 10 cm x 3cm on posterior aspect of left knee joint, bluish in colour. 5. Contusion 5cm x 3.5cm on anterior aspect of right knee joint, bluish in colour. 6. Contusion 8cm x 3.5cm on posterior aspect of right thigh, 8cm above right knee joint, bluish in colour, 7. Contusion 5cm x 3cm on left hip, bluish in colour. complaint of pain on right leg. No visible injuiry. In the opinion of doctor, all injuries were caused by hard and blunt object, simple in nature, duration about 3 days. (vii) Injured- Geeta Devi was also medically examined on the same day at 3:30 pm and following injuries were found on her body. 1. Contused abrasion 5cm x 2cm on posterior aspect of left arm, 7cm above left elbow joint, bluish in colour. In the opinion of the doctor, injury was cause by hard, blunt and rough object and was simple in nature, duration was about three days. Dr. Ashwani Kumar Singh has appeared as P.W.-7 and had proved all above three injuries reports as Ex.Ka-13 to Ex.Ka-15. (viii) The medical examination of three injured persons have been conducted by Mr. R.P. Gupta on 01.01.2006 in District Hospital, Ballia. Dr. R.P. Gupta (P.W.-12) in his statement has said that on 01.01.2006 at 9.30 pm, as Emergency Medical Officer, he has conducted the medical examination of Hansnath Yadav and following injuries was found on his body: 1. Lacerated wound 1cm x 0.5 cm x scalp deep over anterior head 10cm above bridge of nose, X-Ray of Skull, Bleeding present. 2. Complaint of pain on right shoulder. Doctor has opined that injury was caused by some hard and blunt object and duration was fresh. 814 INDIAN LAW REPORTS ALLAHABAD SERIES (ix) The witnesses has further stated that on the same day at 9:35 pm, he conducted medical examination of Chandrakala Devi and found following injuries on her body: 1. Abrasion 1cm x 0.5cm on lateral aspect of left knee joint, oozing present. 2. Abrasion 0.5cm x 0.4cm on right medial malleolus. 3. Complaint of pain right thigh. 4. Complaint of pain right arm. 5. Complaint of pain over skull. Doctor has opined that injury no.1 & 2 was simple and caused by friction, duration was fresh. (x) The witness has further stated that on the same day on 9:55 pm, he examined Adalat and found following injuries on his person: 1. Abrasion 1cm x 0.5cm over right medial knee joint, oozing present 2. Abrasion 1cm x 0.5cm on right leg, 12cm below right knee, medially. 3. Lacerated wound 1cm x 0.5cm over right leg medially aspect 6cm above medial malleolus, bleeding present. 4. Complaint of pain right forearm 5. Complaint of pain right hand. In the opinion of the doctor injury no.1 and 2 are simple and was caused by friction while injury no.3 was simple and caused by some hard and blunt object, duration was fresh. (xi) Doctor has further stated that on 02.01.2006 at 12:25 am, he medically examined Rajni Kant Yadav and found following injuries on his person: 1. Lacerated wound 2.5cm x 0.5cm on right side face, 1.5cm below right eye. 2. Abrasion 1cm x 0.5cm right side of forehead, 4cm above right mid eyebrow. 3. Abrasion 1cm x 0.5cm on right shoulder anteriorly. In the opinion of the doctor injury no.1 was caused by some hard and blunt object and XRay advised, injury no.2 and 3 was simple and caused by friction, duration was fresh. (7) The postmortem of the deceased Chandra Dev Yadav was conducted on 08.01.2006 at 4:30 pm by Dr. Puneet Kumar Singh who has appeared as P.W.-13 and has proved the postmortem report as Ex.Ka-29. According to the postmortem report, the age of the deceased was about 45 years, average built body, rigor mortis present all over the body, eyes closed, mouth partially open. Following ante-mortem injuries were found: 1. Stitch wound 4cm on right side of forehead above 3cm on mid-line & 2cm below right eyebrow on opening scalp, full thickening contusion found in scalp 6cm x 3 cm. 2. Stitch wound 3cm above mid-line of forehead on opening scalp found contused in 3cm x 8cm Andro- posterior in full thickness. 3. Contusion 12cm x 10 cm right on upper arm, 11cm from right front arm, 11cm below tip of shoulder. 4. Abraded contusion 13cm x 9cm right tip of shoulder. 5. Contused swelling 21cm x 20cm on front of both chest. 6. Multiple abraded contusion 6cm x 3cm on left ear. 7. Abraded contusion 1cm x 0.5cm on front of left and right side of thigh above 13cm knee joint scorb on cut contusion found in fat and muscles 8cm x 3cm. 8. Dormet epidermal burn all over both hands, wrist & adjacent forearm. In the internal examination, membranes were congested, extradural, subdural & subarchmid Haemorrhage. Brain was congested, 11 All. Rajesh alias Bachchan Yadav Vs. State of U.P. 815 odematous due to effect of injury no.1 & 2. Pleura, both lungs, Pericardium were congested, chambers of the heart were half-full, clotted blood was present. 100 ml watery fluid was in stomach. In small intestine- mucus and gases and in large intestine faecal matter and gases were present. Gall bladder was full, liver, pancreas, spleen and kidneys were congested. Urinary bladder was empty. In the opinion of the doctor, cause of death was coma, as a result of head injury and intracranial haemorrhage due to blunt trauma effect. Evidence of blunt trauma over various parts of body, also burn effect over both hands. The deceased has died in SSL, Hospital BHU, Varanasi on 08.01.2006 at 5:35 am. 8 (a) In all 14 witnesses have been examined by the prosecution out of which 3 witnesses are public witnesses of facts. Rajnikant Yadav (P.W.-1) is the complainant and also an eye witness. In his examination in chief, the witness has narrated the allegations made in the written information and has proved it as Ex.Ka-1. The witness has further said that he was sent with constable Arjun Singh to the District Hospital, Ballia where he was medically examined and admitted in the hospital. He remained in the hospital for three days. After discharge from the hospital he went to BHU where his father Chandra Dev Yadav was admitted and under treatment. His father died on 08.01.2007 at BHU Hospital. (b) Rajesh Kumar Yadav (P.W.-2 ) is also an eye witness. In his examination in chief, he has said that the village- Hathauj is his ancestral village. Chandra Dev Yadav was his brother. His brother Chandra Dev Yadav lived in villageUssa, after purchasing land and constructing a house. Brahmdev Chauhan of Mohalla-Theka, village-Ussa claims the land on which the house of his brother was constructed to be Gram-Samaj Land and wanted to grab it. He had also made an attempt to dispossess Chandra Dev Yadav with the aid of other villagers. Due to aforesaid enmity on 01.01.2006 at 6-6:30 pm when he, his nephew- Rajnikant, his brother Chandra Dev Yadav (deceased) and other nephew Ashutosh and Ghyanshyam were sitting in front of Pakka house on chairs accused persons (all named) holding lathi-danda, spear, puwal, bricks, container of kerosene oil and match stick with common object came in front of his house and started to abuse, and threatened with death. Seeing them, we tried to flee then Ajay, Ravindra, Sravan, Brahmdev and Arvind beat him with lathi-danda. Ravindra and Shrawan inflicted lathi blows on the legs of his brother Chandra Dev Yadav. His brother Chandra Dev Yadav with nephew Ashutosh and Ghanshyam ran inside the room. Hansnath and Brahmdev shut the door of the room from outside and Basdeo, Kamla, Guddu and Panchratan put the straw (puwal) in front of the room and Hansnath & Brahmdev poured kerosene oil on it and lit the fire with match stick. The remaining accused set on fire three thatched roof room (madhai) with puwal. His brother Chandra Dev Yadav pushing the door, came outside the room then Ajay Chauhan, Arvind Gaur, Brahmdev Chauhan, Hansnath Gaur and Rajesh Yadav alias Babban Yadav started to beat him with lathi. His brother fell down. Hansnath Gaur pressed his chest by a wooden plank. On the noise and the sound of firing, Hansnath Yadav and Adalat Yadav holding torch and Lal Chand, Satyadev, Geeta Devi, Nisha Devi, Ram Banshi Devi, Babban Chaudhary, Chandrama Yadav, Hridaya Narayan Yadav, Veer Bahadur Yadav and Ram Asray Yadav begged for mercy but the accused severely beaten Hansnath Yadav, Adalat Yadav, Rajvanshi Devi, Chandrakala Devi and Geeta Devi with lathi. The incident was seen in the light of torch, flames of fire and the headlights of the vehicles passing through the road. Meanwhile, vehicle of police station- Khejuri reached there. Then accused started to throw bricks on it. Then extra police force reached 816 INDIAN LAW REPORTS ALLAHABAD SERIES there. Before arrival of the extra police force, accused Mohan, Suman, Harendra, Santosh and others set on fire his old house with Khaprail roof pouring kerosene oil and with puwal. The household articles, straw, cot, beddings etc. burnt in the fire. This house was used to tether cattle. The accused persons ran away when extra force was called. Ashutosh and Ghyanshyam were taken out from the burning room with the help of witnesses. They were also beaten with lathi-danda and they also received burn injuries. Their face and hands were burnt. Thereafter he his brother Chandradev, Ashutosh, Ghanshyam, Adalat, Hansnath and Chandrakala came to district hospital Ballia where their medical examination was conducted and were admitted for treatment. He was hospitalized in District Hospital, Ballia for five to six days. Chandra Dev Yadav was referred to BHU, Hospital, Varanasi where he died during treatment due to injuries suffered. (C) Hansnath Yadav (P.W.-4) has also given the eye witness account and has said in his examination in chief that the incident is of 01.01.2006. He and his uncle Adalat Yadav, after getting the torch repaired came to the room of Chandra Dev Yadav at 06:20 p.m. Chandra Dev Yadav, Ramesh Yadav, Rajnikant, Ashutosh, Ghanshyam and Chandrakali were talking there, sitting on the chairs. At 06:30 pm, accused persons (all named) forming an unlawful assembly and holding lathi, puwal, bricks, spear, kerosene oil, and match sticks came there and started to abuse Chandra Dev Yadav, Rajni Kant and their family members. Ravindra Chauhan, Shrawan Chauhan, Ajay Chauhan, Arvind Gaur and Brahmdev Chauhan assaulted Rajnikant and Rajesh Yadav with lathi. Chandra Dev Yadav was assaulted in legs with lathi by Ravindra Nath and Shrawan Chauhan. Chandradeo Yadav with Ashutosh and Ghanshyam entered into the pucca house and shut the door from inside. Accused asked them to open the door, otherwise they will burn the house and kill all of them. Then Brahmdev and Hansnath Gaur taking puwal set on fire the madai. They also set on fire the two other thatched rooms by pouring kerosene on it. This incident was seen by Rajwanshi Devi, Nisha Devi, Geeta Devi, Ram Dev Yadav, Lal Bachan Yadav, Chandrama Yadav, Hridaynarayan, Veer Bahadur and Ram Asray. We were begging for our lives then the accused assaulted us with lathi-danda causing injuries to Adalat Yadav, Rajvanshi Devi, Geeta Devi, Nisha and the witness himself. When door was partly burnt, Chandra Dev Yadav pushing the door came outside. Then Ajay Chauhan, Rajesh alias Babban Yadav, Arvind Gaur, Brahmdev Chauhan and Hansnath Gaur assaulted him with lathi. Chandra Dev Yadav fell down then Hansnath Gaur pressed his chest by putting a wooden plank. Meanwhile, police force of thana- Khejuri came there. Accused persons threw stones on it and also set on fire the old house of Chandradev with kerosene oil. We took out, Ashustosh and Ghanshyam in unconscious condition. Thereafter we took the injured persons to the hospital on a vehicle where their medical examinations were conducted and they were admitted in the hospital for treatment. Chandra Dev Yadav was referred to Varanasi- Hospital where he died on 08.01.2006. We saw the incident in the light of torch, flames of fire and head lights of the vehicles passing through. The straw, cot, beddings, motorcycle, engine and other household articles were burnt in the fire. The witness has further said that he has shown his torch to the Investigating Officer in presence of Susheel Yadav and Sadanand. The witness has produced the torch before the court. The witness has further said that in all there are 29 accused. He forget the name of accused- Raju. (d) S.I. Chedi Prasad Yadav (P.W.-6) the then S.O. of P.S.- Pakari is the Investigating Officer. The witness has said that the aforesaid case crime no.01 of 2006 was registered in his 11 All. Rajesh alias Bachchan Yadav Vs. State of U.P. 817 absence on 01.01.2006. Constable Vinay Prakash, Constable Arjun Singh, Constable Braghu Nath and Constable Indra Dev Singh reached the place of occurrence with the relevant papers and handed over to him at the house of the complainant. He started the investigation and recorded the statements of witness- Babban Chaudhary and Tarkeshwar Tiwari. On 02.01.2006 arrested accused namely Basdev Rajbhar, Kamala Rajbhar, Guddu Rajbhar, Panchratan Rajbhar, Rajkapoor Gaur, Ram Bhawan, Harish Chand Rajbhar, Gama Rajbhar, Kavindra Rajbhar, Ravindra Nath Chauhan and Shrawan Chauhan and recorded their statements. He also recorded the statement of Satya Dev Yadav and visited the place of occurrence and prepared the site plan at his instance. He also collected the burnt ashes from both the houses kuttcha and pucca and pieces of bricks in front of pucca house, sealed it and prepared its memo. The witness has proved, site plan as Ex.Ka-5 and memo as Ex.Ka-6. The witness has further said that he recorded the statements of other witnesses and then reached the district hospital Ballia collected the injury reports. On subsequent dates, he arrested the other accused persons and recorded the statements of remaining injured and also took in possession the blood stained cloths of Chandra Dev Yadav (deceased) and torch and prepared its memo. The witness has proved it as Ex.Ka-7. On receiving the postmortem report and panchayatnama of the deceased, Section 302 was added. On 20.01.2006 at 20:10 O'clock during the police custody remand of accused- Brahmdev Chauhan at his instance, recovered blood stained lathi/ bamboo, one plastic container of the kerosene oil used in the incident, from his thatched room, sealed it and prepared its memo. The witness has proved the recovery memo Ex.Ka-8. Witness has further said that he also prepared the site plan of place of recovery as Ex.Ka-9. He also collected other relevant papers like X-Ray report, X-Ray plate, medical reports and recorded the statements of other witnesses and sent the materials for forensic examination and after completing the investigation, submitted the charge-sheet Ex.Ka10. The witness has also proved the GD No.2 of 02.01.2006 at 2:30 am regarding the entry of arrested accused at Police Station and also GD No.7 on 03.01.2006 at 6:30 am regarding the entry of three accused persons and two containers of burnt ashes as Ex.Ka-11 & Ex.Ka12. (e) The constable Gopal Rai (P.W.-8) in his examination in chief has said that on 01.01.2006 he was posted as constable at P.S. Khejuri. S.O. Rajnikant Verma received the information from control room to reach village-Ussa to maintain peace. He with S.O. and constable Akhilesh and constable driver Ataul Haque by Govt. Jeep No.UP60/ 9140 were going to village Ussa and reached in front of Katra Veer Bahadur Singh (small market) then 29 to 30 persons holding lathi-danda, bricks/ stones, threw it on their vehicle damaging its head lights, indicator and wire of wireless. Brahmdev Chauhan exhorted the others to attack the police personnels. We moved back the jeep. When more police force came there we reached the place of occurrence. It was 07:00 pm. Witness has identified accusedBrahmdev Chauhan in the court room. (f) S.I.- Rajesh Kumar Verma (P.W.-14) in his statement has said that on 01.01.2006 he was posted as S.O., P.S. Khejuri and on that day at about 6:30 p.m. he received information from the control room through R.T. Set that some incident is happening in village Ussa. On the aforesaid information he with constable Gopal Rai, constable Akhilesh Kumar and Constable driver- Ataul Haque by Govt. Jeep No.UP60/ 9140 reached village Ussa. When his jeep reached near the Katra Veer Bahadur Singh then 29 to 30 persons including Brahmdev Chauhan holding bricks/ stones and lathi-danda in their hands came in front of his jeep and stopped it. Brahmdev Chauhan exhorted them to beat the 818 INDIAN LAW REPORTS ALLAHABAD SERIES policemen and they damaged the jeep with bricks/ stones and danda. The head lights, indicator and the wire of wireless of the vehicle got damaged. This incident happened at 19:20 pm. He identified the accused in the light of jeep and torch. (g) Remaining witnesses are formal in nature. Constable Mahaveer (P.W.-3) is the chik writer who has said that on 01.01.2006 on the written information of complainant Rajnikant, he registered the case crime no.01/2006 and has proved chik FIR as Ex.Ka-2. Constable Amar Nath Tiwari (P.W.-5) is the GD writer and has proved G.D entry of FIR dated 01.01.2006 as Ex.Ka-3. The witness has also proved the entry of GD no.22 at 15.25 pm of 11.01.2006 by which Section 302 IPC was added as Ex.Ka-4. (h) Arun Prakash Chaubey (P.W.-10) has said that on 12.01.2006 he was posted as Traffic Inspector, ARTO, Ballia and on request of Traffic Inspector, Police Line inspected the vehicle Jeep No.UP 60/9140 of Police StationKhejuri and submitted a report dated 13.01.2006. The left head light, left indicator and the antenna of wireless machine of the jeep was damaged. The witness has proved the inspection report as Ex.Ka-20. (i) S.I. Buddhi Ram Sharma has conducted the inquest proceedings of deceased Chandra Dev Yadav and has proved the inquest report and related papers as Ex.Ka21 to Ex.Ka-24. 9. All the three eye witnesses produced by the prosecution namely Rajnikant Yadav (P.W.- 1), Rajesh (P.W.-2) and P.W.-4 Hansnath Yadav have corroborated the prosecution case that Chandra Dev Yadav (deceased) original resident of village Hathauj was living in village Ussa where accused Brahmdeo Chauhan wanted to grab his land alleging it as the land of Gram Sabha. On 01.01.2006 at 6:00 pm all accused persons holding with lathi-danda, bricks/ stones, spears and kerosene container and straw in their hands with common object came at the house of Chandra Dev Yadav and started to abuse Chandradeo Yadav and his family members. They also threatened them with death. Accused Ravindra, Shrawan, Ajay, Brahmdev started to beat Rajnikant, Rajesh and Chandradeo Yadav. Chandradeo Yadav with Ashutosh and Ghanshyam ran inside the room then Brahmdeo Chauhan and Hansnath Gaur shut the door from outside and putting straw, pouring kerosene, lit the match-stick and set it on fire. When Chandradeo Yadav came outside then Ravindra, Shrawan, Ajay, Brahmdeo beat him with lathi. Hansnath pressed his chest by a wooden plank. Rajesh alias Babban Yadav beat Chandradev with lathi. Ashutosh and Ghanshyam received burn injuries. They also set on fire the other kutchha house. The police force of police station- Khejuri came there then accused pelted stones/ bricks on their vehicle and damaged it. The aforesaid eye witneseses are also the injured. They have received injuries in the incident. Rajesh Yadav (P.W.-2) and Hansnath Yadav (P.W.-4) both have been medically examined just after the incident on 01.01.2006 at 8:40 pm and 9:30 pm respectively. According to medical evidence seven visible injuries including six lacerated wounds and one contusion were found on the body of injured- Rajesh. Five of them were on the head, one on the right thumb and one on the back. Hansnath Yadav P.W.-4 has received one injury- lacerated wound on the head. Rajnikant Yadav (P.W.-1) was medically examined in the night on 01.01.2006 at 12:25 O'Clock at the District Hospital Ballia. According to medical evidence, three visible injuries were found on his body, one lacerated wound at the face, two abrasions, one at face and other on the right shoulder. Dr. H.P. Rai and Dr. R.P. Gupta have also corroborated the prosecution case that the injuries of the injured, eye witnesses may come at the time of occurrence with lathi-danda. 11 All. Rajesh alias Bachchan Yadav Vs. State of U.P. 819 Chandra Dev Yadav has also received seven visible injuries, three lacerated wound on head/ skull, two contusions on scapular region and two burn injuries on both palms/ hands. The doctor has corroborated the prosecution case that these injuries may come at the time of occurrence by hard and blunt object and fumes of fire. Chandra Dev Yadav was admitted in the district hospital from where he was referred to BHU. He was admitted there for treatment but could not survive and succumbed to his injuries during treatment on 08.01.2006 at 5:35 am. His postmortem report (Ex.ka-29) further proves that injured has died due to ante-mortem injuries. Kumari Nisha, Smt. Rajwanshi Devi, Geeta Devi, Ghanshyam, Ashutosh, Chandra Kala Devi and Adalat have also received visible injuries in this incident, their injury reports have also been duly proved by the concerned doctors who have also corroborated the prosecution case and have opined that these injuries may come at the time of occurrence with lathi-danda. Doctor has also opined that injuries of Ghanshyam and Ashutosh may come from smokes/ fumes of fire. So Ocular testimony of the witnesses stands fully corroborated with medical evidence on record. 10. During site inspection, Investigating Officer has collected burnt ashes and pieces of bricks. The witness Chedi Prasad Yadav (P.W.- 6) has proved the memo and the material exhibits. This evidence also corroborates the ocular testimony. Motive of the incident as alleged in the FIR also got corroboration from the oral statement of the witnesses. 11. Rajesh Kumar Verma P.W.-14 then SO Khejuri and constable Gopal Rai have said that on 1-01-2006 they were posted at PS Khejuri. On receiving information from control room that some incident is happening in village Ussa they proceeded for village Ussa. When their jeep reached near the market of Veer Bhadur Singh 2930 persons came in front of the jeep and stopped it. They were holding bricks/stones and danda. They attacked the vehicle and damaged its headlight; indicator and wire of wireless. SI Rajesh Kumar Verma has also named Brhamdev Chauhan, Rajesh Yadav alias Babban and Manoj Gond in his statement and has also said that he received the information at 6:30 p.m. and the incident with him has occurred at 7:20 p.m. Constable Gopal Rai PW8 has named only Brhamdev Chauhan and has also identified him in the court. Arun Prakash Chaubey assistant regional transport inspector has said that on 13-01-06 he make inspection of jeep no. UP60/9140. Its left headlight, left indicator and antennae of wireless were damaged. The witness has proved the technical examination report ext.ka 20. From statement of SI Chedi Prasad Yadav it is established that when he reached village Ussa the police force of PS Khejuri was there. So the above prosecution evidence further corroborates the allegations of the F.I.R. and oral testimony of the eye witnesses. 12. The prosecution has also produced the evidence of recovery of lathi and kerosene container used in the alleged incident at the instance of accused Brahmdev Chauhan. S.I.- Chedi Prasad Yadav (P.W.-6), the Investigating Officer has proved the recovery memo and material exhibits connected with. 13. Learned counsel for the appellants contended that the witnesses have said that Chandra Dev Yadav was beaten on legs by lathidanda but no injury was found on his legs so oral testimony is not corroborated with medical evidence. Learned AGA contended that the oral evidence fully corroborates the medical evidence, there is no major discrepancy or contradiction. Some minor contradiction are natural. Considering the nature of the occurrence, it is not expected that the eye witnesses should 820 INDIAN LAW REPORTS ALLAHABAD SERIES give thread bare description of each and every happening, some minor contradiction are natural. The testimony of injured witnesses are consistent and it stands corroborated by the medical evidence. The contradiction or discrepancy pointed out by the learned counsel for the appellants is not of such a nature which affects the reliability of the witnesses. Their presence on the spot is duly proved as they themselves had received injuries in the incident. The Hon'ble Supreme Court in the case of Maqsoodan vs.