# Rajjan v. State of U.P

- **Citation:** (2023) 3 ILRA 982
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Case number:** Criminal Appeal No. 6904 of 2011
- **Bench:** Pritinker Diwaker, A.C.J. Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajjan-v-state-of-u-p-49895
- **Pages:** 13

## Headnote

Criminal Law- Indian Penal Code-1860Sections 34, 96-106, 302, 304 (I) -
Evidence Act, 1872-Sections 3 & 134Accused attacked the deceased with sickle
(hasiya) and lathis over dispute regarding
cutting of the clump of bamboo trees
(banskot) in which the deceased received
fatal
injuries
and
resultantly
died-
Conviction U/s 302 r/w Section 34 IPC-
3 All. Rajjan Vs. State of U.P.
983
No reason to refuse to act upon the
testimony of P.W.3 merely because he is
the son of the deceased since the evidence
is reliable- Accused (Rajjan) exceeded his
right of private defence and shall not be
fully exonerated from the offence of
causing the death of the deceased- Attack
without
pre-meditation
in
a
sudden
quarrel- Offence committed will not be
murder,
but
culpable
homicide
not
amounting to murder which is punishable
under Section 304 I.P.C- Presence and
participation of other co-accused in the
crime is not proved. Result-Conviction of
appellants
in
Criminal
Appeal
No.6903/2011 is set aside & Conviction of
appellant
in
Criminal
Appeal
No.6904/2011
is
converted
into
conviction u/s 304 (I) I.P.C. (E-15)

List of Cases cited:

## Text

_Characters 0–39,902 of 43,726. This is a partial read: ask again with offset=39902 for what follows._

982 INDIAN LAW REPORTS ALLAHABAD SERIES
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

25. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

26. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

27. We come to the definite
conclusion that the death was due to
septicemia. The judgments cited by the
learned counsel for the appellant would
permit us to uphold our finding which we
conclusively hold that the offence is not
under Section 302 of I.P.C. but is culpable
homicide
and,
therefore,
we
convict
accused under Section 304(II) IPC and
sentence of the accused appellant is
reduced to the period already undergone till
date.

28. Appeal is partly allowed. Record
and proceedings be sent back to the Court
below forthwith.

29. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2023) 3 ILRA 982
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, A.C.J.
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 6904 of 2011
with
Criminal Appeal No. 6903 of 2011

Rajjan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Apul Misra, Sri P.N. Misra, Sri Vindeshwari
Prasad, Sri Sushil Kumar Dwivedi, Sri Dhirendra
Kumar Srivastava

Counsel for the Respondent:
Sri H.M.B. Sinha, A.G.A.

Criminal Law- Indian Penal Code-1860Sections 34, 96-106, 302, 304 (I) -
Evidence Act, 1872-Sections 3 & 134Accused attacked the deceased with sickle
(hasiya) and lathis over dispute regarding
cutting of the clump of bamboo trees
(banskot) in which the deceased received
fatal
injuries
and
resultantly
died-
Conviction U/s 302 r/w Section 34 IPC-
3 All. Rajjan Vs. State of U.P.
983
No reason to refuse to act upon the
testimony of P.W.3 merely because he is
the son of the deceased since the evidence
is reliable- Accused (Rajjan) exceeded his
right of private defence and shall not be
fully exonerated from the offence of
causing the death of the deceased- Attack
without
pre-meditation
in
a
sudden
quarrel- Offence committed will not be
murder,
but
culpable
homicide
not
amounting to murder which is punishable
under Section 304 I.P.C- Presence and
participation of other co-accused in the
crime is not proved. Result-Conviction of
appellants
in
Criminal
Appeal
No.6903/2011 is set aside & Conviction of
appellant
in
Criminal
Appeal
No.6904/2011
is
converted
into
conviction u/s 304 (I) I.P.C. (E-15)

List of Cases cited:

1. Dhirendra Kumar Vs St. of Uttarakhand, 2015
SCC Online SC 163

2. Suresh & anr. Vs St. of U.P., (2001) 3
Supreme Court Cases 673

3. Gangadhar Chandra Vs St. of W. B., (2022)
120 ACC 267

4. Maqsoodan & Ors. Vs St. of U.P, 1983 SC
1926

5. Laxmibai (Dead) thru LRs Vs Bhagwantbura
(Dead) thru LRs, AIR (2013) SC 1204

6. Brijbasi Lal Vs St. of M.P., 1991 SCC (Crl.)
546

7. Chinniah Servai Vs St. of Madras, AIR 1957
SCC 614

8. Darshan Singh Vs St. of Pun., (2010) 2 SCC
333

(Delivered by Hon'ble Surendra Singh-I, J.)

As these appeals arise out of judgment
and order of conviction and sentence dated
19.11.2011 passed by the Additional
Sessions Judge (Ex Cadre), Court No. 23,
Allahabad in Sessions Trial No. 18 of 2001
(State Vs. Kallu and others) arising out of
Crime No. 88 of 1999 Police Station-
Lalapur, District- Allahabad, convicting
accused-appellants Kallu, Sushil and Rajjan
and sentencing each of them under Section
302 read with Section 34 of IPC to undergo
imprisonment for life and a fine of Rs.
10,000/- with default stipulation, they are
being disposed of by this common order.

2. According to prosecution case,
informant, Nankau, son of Chhedi Lal
Mishra, resident of Othagitarhaar, Police
Station-
Lalapur,
District-
Allahabad,
submitted written report (Ext.Ka.1) on
07.11.1999 in Police Station- Lalapur,
stating that on 07.11.1999 at 11.00 a.m.,
accused-appellants
Kallu,
Sushil
and
Rajjan, sons of Sangam Lal came to
forcibly cut clump of bamboo trees
(banskot) of the informant situated at
village- Ashwanipur Mazra Goisara of the
informant. When they were forbidden by
Chhedi Lal from cutting the clump of
bamboo trees (banskot), they started
beating his father by sickle (hasiya) and
lathis. On hue and cry being raised, the
brothers of informant, Shivakant and
Dayakant, came to save him, then accused
also assaulted them by lathi causing severe
injury to them. Accused, Rajjan, with the
intention of causing death, assaulted his
father on his head and back of body
causing grievous injury to him. On the
basis of the written report of the informant,
FIR (Ext.Ka.6) was lodged in P.S.- Lalapur
as Crime No. 88 of 1998 under Section 307
of IPC against accused-appellants Kallu,
Sushil and Rajjan on 07.11.1999 at 11.30
o'clock.
While
undergoing
medical
treatment, injured Chhedi Lal Mishra died
on 07.11.1999 at 13.00 o'clock and the case
was converted to one under Section 302 of
984 INDIAN LAW REPORTS ALLAHABAD SERIES
IPC. The investigation of the case was done
by P.W.4 S.I. Prem Kumar Yadav. He
visited the place of occurrence and on the
pointing out of informant, prepared site
plan thereof (Ext.Ka.2). He collected
blood-stained and plain earth from the
place of occurrence and kept in container
and sealed the collection. The recovery
memo regarding collection of plain and
blood-stained earth was prepared which is
(Ext.Ka.3).
Accused-appellants
Kallu,
Sushil and Rajjan were arrested and on
their pointing out, the weapons of offence,
2 lathis and 1 sickle (hasiya) were
recovered from the courtyard of the house
of the accused-appellants. These recovered
articles were wrapped in cloth and sealed.
The recovery memo thereof (Ext.Ka.4) was
prepared.

3. The inquest proceedings of the
dead body of Chhedi Lal Mishra was
conducted on 07.11.1999 at 15.00 o'clock
in the supervision of HCP Ramhit Verma.
The inquest report is (Ext.Ka.11).

4. The postmortem of the dead body of
deceased Chhedi Lal Mishra was done by
P.W.6 Dr. Mohd. Farukh, who was posted as
Medical Officer in Moti Lal Nehru District
Hospital, on 08.11.1999 at 2.00 p.m..
According
to
the
postmortem
report
(Ext.Ka.10), following antemortem injuries
were found on the body of the deceased :-

(i) one triangular incised wound of
size 15 cm x 6 cm cavity deep on the back
side of head which was situated 14 cm
away from the right ear.

(ii) An incised wound of size 6 cm x
1/2 cm muscle deep situated on the right
temporal region of the head.

(iii) An incised wound of size 3 cm x 1
cm muscle deep situated on right buttock.

(iv) An incised wound of size 2 cm x 1
cm muscle deep situated at lower right side
of the back.

(v) An incised wound of size 5 cm x 1
1/2 cm muscle deep situated on the lower
side of the back.

(vi) An incised wound of size 2 cm x 1
cm muscle deep situated on behind the back
between both scapula.

5. External examination :- There were
fractures in the back side and right side of
the skull of the head. The membrane of
brain was congested. The brain cavity was
found cut. There was no blood in the heart
or the lungs.

6. In the opinion of the Medical
Officer, death was caused due to trauma
and haemorrhage by antemortem injuries.

7. The Investigating Officer, (P.W.4)
S.I. Prem Kumar Yadav recorded the
statement of witnesses of fact and formal
witnesses under Section 161 CrPC in the
case
diary
and
after
investigation,
submitted charge-sheet under Section 302
IPC
against
accused-appellants
Kallu,
Sushil and Rajjan.

8. On 22.02.2001, learned trial Judge
framed charge under Section 307/34 and
302/34 IPC against the accused-appellants.
The accused denied the charge and claimed
trial.

9. The prosecution examined (P.W.1)
Shivakant, (P.W.2) Dayakant and (P.W.3)
Nankau
as
witnesses
of
fact.
The
prosecution also examined Investigating
Officer, S.I. Prem Kumar Yadav (P.W.4),
Constable Bade Lal at P.S. Lalapur (P.W.5),
Dr.
Mohd.
Farrukh,
who
conducted
postmortem of deceased Chhedi Lal Mishra
3 All. Rajjan Vs. State of U.P.
985
(P.W.6) and Constable Abhinav Tiwari
(P.W.7).

10. (P.W.1) Shivakant and (P.W.2)
Dayakant turned hostile and did not support
the prosecution case. The eyewitness
(P.W.3) Nankau proved written report
(Ext.Ka.1). He deposed in support of the
charge
framed
against
the
accusedappellants.

11. The Investigating Officer (P.W.4)
S.I. Prem Kumar Yadav by his evidence
proved, site plan of the place of occurrence
(Ext.Ka.2), recovery memo regarding plain
and blood-stained mud collected from the
place of occurrence (Ext.Ka.3), memo
relating to recovery of weapon of offence,
two lathis and sickle (hasiya) on the
pointing out of accused Kallu, Sushil and
Rajjan respectively (Ext.Ka.4). He also
proved, by his evidence, blood-stained
mud, (material Ext.1), plain mud (material
Ext.2), weapon of offence Hasiya (material
Ext.3) and charge-sheet sent against
accused
Kallu,
Sushil
and
Rajjan
(Ext.Ka 5). (P.W.5) Constable Clerk
Bade Lal proved chik FIR of Crime No.
88/1999
under
Section
307
IPC
(Ext.Ka.6), the copy of G.D. Report No.
9, dated 07.11.1999, at 11.30 o'clock
regarding institution of aforesaid case
crime number (Ext.Ka.7), the report sent
from the office of HCP Allahabad
regarding the destruction of original
G.D. (Ext.Ka. 8), carbon copy of G.D.
Report No. 11, dated 07.11.1999, at
13.00 o'clock regarding conversion of
Crime No. 88 of 1999 into Section 302
IPC (Ext.Ka.8) after the death of
deceased Chhedi Lal Mishra. Dr. Mohd.
Farrukh (P.W.6), the Medical Officer,
conducting postmortem of deceased
Chhedi
Lal
Mishra,
proved
his
postmortem report as (Ext.Ka.10).

12. Since HCP Ramhit Verma, who
had conduced inquest proceedings of
Chhedi Lal Mishra had died, P.W.7
Constable Abhinav Tiwari who had worked
with the aforesaid HCP and was familiar
with his handwriting and signature, proved
the inquest report as (Ext.Ka.11) and other
police papers relating to postmortem of
deceased
Chhedi
Lal
Mishra
i.e.
(Ext.Ka.12) to (Ext.Ka.16), which were
prepared by late HCP Ramhit Verma.

13. On 14.08.2007, the trial Judge
recorded statement under Section 313
Cr.P.C. of accused-appellants Kallu, Sushil
and Rajjan. They stated that false case was
registered and the witnesses gave false
evidence. Accused-appellant, Sushil Kumar
stated in his statement under Section 313
Cr.P.C. that on 07.11.1999 at 11.00 o'clock,
he and his two brothers, namely, Kallu and
Rajjan were cutting the clump of bamboo
trees (banskot) in their Field No. 573/574
situated at village- Ashwanipur Mazra
Goisara.
Chhedi
Lal
and
his
sons
Shivakant, Babu Yadav and Lallan arrived
there and started abusing them. They
caused fatal injuries by assaulting with lathi
and danda. In the exercise of right of
private defence, the accused-appellants also
assaulted them with lathi, danda in which,
Chhedi Lal sustained injury. The informant
and his party members fired on the
accused-appellants by a country-made
pistol (katta). Their medical examination
was done by the Medical Officer through
the police.

14. By the impugned judgment and
order dated 18.11.2011, the trial Judge
acquitted the accused-appellants under
Section 307 read with Section 34 IPC and
convicted them under Section 302 read
with Section 34 IPC and sentenced them, as
aforesaid.
986 INDIAN LAW REPORTS ALLAHABAD SERIES

15. It has been argued on behalf of the
accused-appellants that two witnesses of
fact (P.W.1) and (P.W.2) turned hostile and
did not support the prosecution case. The
statement of evidence of (P.W.3) Nankau
has several contradictions and is not
reliable. Thus, the conviction cannot be
based on the single testimony of (P.W.3)
Nankau. It has also been argued on behalf
of the accused-appellants that they were
cutting clump of bamboo trees (banskot) of
their ownership. Deceased Chhedi Lal
Mishra and his sons Shivakant, Dayakant
and Nankau tried to prevent them from
cutting the clump of bamboo trees
(banskot) and attacked them in the course
of which injuries were caused to the
accused-appellants. In exercise of their
legitimate right of private defence, the
accused-appellants
attacked
deceased
Chhedi Lal Mishra and his sons to repel
them during which some injuries have been
caused to Chhedi Lal Mishra resulting his
death for which the accused-appellants
could not be made liable.

16. It has been argued on behalf of
the State that there is cogent, reliable and
convincing evidence of (P.W.3) Nankau,
which
has
not
shaken
during
the
prolonged and detailed cross-examination
done on behalf of the accused-appellants.
The
evidence
of
P.W.1
has
been
corroborated
by
the
confessional
statement
of
accused-appellants
and
recovery of weapon of offence on the
pointing out of the aforesaid accusedappellants.

17. We have heard learned counsel for
the parties and perused the entire lower
court record.

18. The definition of the offence
punishable under Section 302 of IPC is
given in Section 300 IPC which is as
follows:-

300. Murder.--Except in the cases
hereinafter excepted, culpable homicide is
murder, if the act by which the death is
caused is done with the intention of causing
death, or--

2ndly.--If it is done with the intention
of causing such bodily injury as the
offender knows to be likely to cause the
death of the person to whom the harm is
caused, or-- .

3rdly.--If it is done with the intention
of causing bodily injury to any person and
the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature
to cause death, or--

4thly.--If the person committing the
act knows that it is so imminently
dangerous that it must, in all probability,
cause death, or such bodily injury as is
likely to cause death, and commits such act
without any excuse for incurring the risk of
causing death or such injury as aforesaid.

19. In Section 300 IPC, above four
exceptions are given. If the act committed,
comes under the gamut of any of these
exceptions, accused shall not be punished
for murder under Section 302 I.P.C., but for
having committed culpable homicide not
amounting to murder punishable under
Section 304 I.P.C. The accused-appellants
have claimed that they inflicted injury on
Nankau and his companions in exercise of
their right of private defence. The provision
relating to right of private defence of
person or property with reference to
committing the murder of the attacker is
given in Exception 2 of Section 300 IPC
which is as follows:-

Exception 2.--Culpable homicide is
not murder if the offender in the exercise in
3 All. Rajjan Vs. State of U.P.
987
good faith of the right of private defence of
person or property, exceeds the power
given to him by law and causes the death of
the person against whom he is exercising
such
right
of
defence
without
premeditation, and without any intention of
doing more harm than is necessary for the
purpose of such defence.

20. In the case of "Dhirendra
Kumar Vs. State of Uttarakhand, 2015
SCC Online SC 163," the Supreme Court
has laid down the parameters, which are
to be taken into consideration, while
deciding the question as to whether the
case falls under Section 302 I.P.C. or
Section 304 I.P.C. which are as follows
:-

(a) the circumstances under which
the incident took place;

(b) nature of weapons used;

(c) whether the weapon was carried
or was taken from the spot;

(d) whether the assault was made on
vital parts of the body;

(e) the amount of force used;

(f)
whether
the
deceased
participated in the sudden fight;

(g) whether there was any previous
enmity;

(h) whether there was any sudden
provocation;

(i) whether the attack was in the
heat of passion; and

(j) whether the person inflicted
injury or took undue advantage or acted
in cruel or unconscious manner.

21. From the analysis of the oral as
well as documentary evidence produced
by the prosecution, it has to be seen
whether charge under Section 302 read
with Section 34 I.P.C. is proved against
the appellants.

22. (P.W.1) Shivakant, who is son of
deceased Chhedi Lal, has fully denied that
in pursuance of common intention of all,
accused-appellants Kallu, Sushil and Rajjan
inflicted fatal injury on deceased Chhedi
Lal by assaulting him with lathis and sickle
(hasiya) causing his death. He has stated
that he was not present at the place of
occurrence and that he does not know who
caused injury to Chhedi Lal due to which
he died. He further stated in his evidence
that on 07.11.1999 at 5.00 a.m. in the
morning, when there was slight darkness,
his father who was expert in the use of lathi
had gone to the orchard for exercise as well
as for training others.

23. (P.W.1) Shivakant stated that
Nankau and Dayakant are his real brothers.
They did not receive any injury in the
incident. (P.W.1) Shivakant stated that
accused-appellants are sons of his father's
sister (bua). He had no enmity with the
accused-appellants. There was no dispute
regarding the clump of bamboo trees
(banskot) with them. (P.W.1) Shivakant has
denied that since the accused-appellants are
sons of his father's sister (bua), they have
compromised the matter and out of their
fear, he is giving false evidence to protect
them from punishment.

24. (P.W.2) Dayakant has given
identical evidence as that of (P.W.1)
Shivakant in his deposition.

25. The son of the deceased (P.W.3)
Nankau has stated in his evidence that the
occurrence took place on 07.11.1999. He
was present at the place of occurrence.
Accused-appellants, Kallu, Sushil and
Rajjan were cutting his clump of bamboo
trees (banskot). His father, Chhedi Lal
forbid them from cutting it. Then, accusedappellants started beating his father by
988 INDIAN LAW REPORTS ALLAHABAD SERIES
lathi, danda and sickle (hasiya). On hue and
cry being raised by his father, he and his
brothers, Shivakant and Dayakant went to
save his father from being assaulted by
accused-appellants. He and his brothers,
Shivakant and Dayakant were also beaten
by lathi and danda by the accusedappellants. He further deposed that his
father received injury on back of his head.
Accused-appellant,
Rajjan,
with
an
intention of causing death, has assaulted his
father
by
sickle
(hasiya)
and other
appellants assaulted him with lathi. After
the incident, he lodged FIR in the
concerned police station by submitting
written report (Ext.Ka.1).

(P.W.3) Nankau has stated in his crossexamination that the clump of bamboo
trees (banskot) is situated about one
kilometre away from his house. The
marpeet took place about fifty steps away
in the west direction from the clump of
bamboo trees (banskot). He admitted that
during the course of marpeet, he has
witnessed injury in the body of accusedappellant, Sushil from which blood was
oozing and there was no injury on the body
of other two accused. He stated that, at the
time of occurrence, he was present in his
adjoining agricultural land. The marpeet
lasted for 10 minutes. After the incident, he
wrote a written report. He went to the
concerned police station. He proves the
written report (Ext.Ka.1).

In his cross-examination, he deposed
that the clump of bamboo trees (banskot) is
of his ownership and that of his family. He
denied that the clump of bamboo trees
(banskot) is situated in the agricultural land
of
the
accused-appellants.
He
has
emphatically
denied
that
accusedappellants, Kallu, Sushil and Rajjan were
cutting their own clump of bamboo trees
(banskot). He also denied that when
accused-appellant did not stop cutting the
clump of bamboo trees (banskot) then his
father Chhedi Lal and brothers, Shivakant
and Dayakant, had beaten the accusedappellants with lathi and danda. He also
denied that his father Chhedi Lal had fired
with firearms. P.W.3 has expressed his
ignorance that the number of the plot on
which the quarrel took place is 573/574. He
has also expressed his ignorance that he
does not know whether the clump of
bamboo trees (banskot) is situated in Plot
No. 573/574. He denied that he was not
present at the time of occurrence. He has
also denied that when Chhedi Lal and his
brothers, Shivakant and Dayakant were
beating
the
accused-appellants,
they
assaulted in their right of private defence in
the course of which his father Chhedi Lal
received injuries. (P.W.3) Nankau has
deposed in his evidence that when his
father prevented the accused from cutting
his clump of bamboo trees (banskot), then
accused-appellants, Rajjan armed with
sickle (hasiya), Sushil and Kallu, armed
with lathi and danda respectively assaulted
his father and caused fatal injuries to him.
He has also deposed that when P.W.3
Nankau and his brothers, (P.W.1) Shivakant
and (P.W.2) Dayakant, reached there,
accused-appellants,
Kallu
and
Sushil
assaulted them with lathi, danda causing
injuries to them. According to postmortem
report (Ext.Ka.10) of deceased Chhedi Lal,
incised wounds are found on temporal
region of head, back of head, right buttock,
lower side of back and behind the back
between both scapula. Incised wounds can
only be caused by attack with sickle
(hasiya), and it cannot be caused by lathi,
danda. Although (P.W.3) Nankau has
deposed that accused, Sushil and Kallu,
assaulted Shivakant and Dayakant with
lathi, danda causing them injuries, but
3 All. Rajjan Vs. State of U.P.
989
Shivakant and Dayakant have stated that
they were not assaulted by the accused in
the alleged occurrence. They have also
stated that they did not receive any injury
caused by the accused-appellants in the
incident. There is no visible injury caused
by lathi and danda on the person of
deceased Chhedi Lal or P.W.1 Shivakant
and P.W.2 Dayakant.

26. The law relating to vicarious
liability u/s 34 I.P.C. has been settled by the
Apex Court. The Supreme Court in Suresh
and Another Vs. State of U.P., (2001) 3
Supreme Court Cases 673, has held as
under :

"The special feature of Section 34 is
only that such participation by several
persons should be "in furtherance of the
common intention of all". Hence, under
Section 34 one criminal act, composed of
more than one act, can be committed by
more than one persons and if such
commission is in furtherance of the
common intention of all of them, each
would be liable for the criminal act so
committed. Section 34 is intended to meet a
situation wherein all the co-accused have
also done something to constitute the
commission of a criminal act. Thus to
attract Section 34 I.P.C. two postulates are
indispensable : (1) the criminal act
(consisting of a series of acts) should have
been done, not by one person, but more
than one person. (2) Doing of every such
individual act cumulatively resulting in the
commission of criminal offence should
have been in furtherance of the common
intention of all such persons. Looking at
the first postulate pointed out above, the
accused who is to be fastened with liability
on the strength of Section 34 I.P.C. should
have done some act which has a nexus with
the offence. Such an act need not be very
substantial, it is enough that the act is only
for guarding the scene for facilitating the
crime. The act need not necessarily be
overt, even if it is only a covert act it is
enough, provided such a covert act is
proved to have been done by the coaccused in furtherance of the common
intention. Even an illegal omission to do a
certain act in a certain situation can amount
to an act. But an act, whether overt or
covert, is indispensable to be done by a coaccused to be fastened with the liability
under the section and if no such act is done
by a person, even if he has common
intention
with
the
others
for
the
accomplishment of the crime, Section 34
I.P.C. cannot be invoked for convicting that
person. In other words, the accused who
only keeps the common intention in his
mind, but does not do any act at the scene,
cannot be convicted with the aid of Section
34 I.P.C. There may be other provisions in
the I.P.C. like Section 120-B or Section 109
which could then be invoked to catch such
non-participating
accused.
Thus,
participation in the crime in furtherance of
the common intention is a sine qua non for
Section 34 I.P.C. Exhortation to other
accused, even guarding the scene etc.
would amount to participation. Of course,
when the allegation against an accused is
that he participated in the crime by oral
exhortation or by guarding the scene the
court has to evaluate the evidence very
carefully for deciding whether that persons
had really done any such act."

The Apex
Court
in
Gangadhar
Chandra Vs. State of West Bengal, (2022)
120 ACC 267 held :

"common intention contemplated by
Section 34 I.P.C. presupposes prior concert.
It requires meeting of minds. It requires a
pre-arranged plan before a man can be
990 INDIAN LAW REPORTS ALLAHABAD SERIES
vicariously convicted for the criminal act of
another, the criminal act must have been
done in furtherance of common intention of
all the accused. In a given case, the plan
can be formed suddenly."

27. Therefore, appellants, Kallu and
Sushil can be held vicariously liable for the
murder of Chhedi Lal only if it is proved
that they assaulted Chhedi Lal with lathi
and danda and Rajjan attacked Chhedi Lal
with sickle in pursuance of the common
intention of himself as well as other
accused persons. Thus, the prosecution has
to prove that appellants, Kallu and Sushil
shared a common intention of causing
murder in pursuance of which appellant,
Rajjan caused fatal injury by sickle on the
head and other parts of the person of
Chhedi Lal, resulting in his death.

28. (P.W.3) Nankau, son of deceased
Chhedi Lal, has deposed in his evidence
that on 07.11.1999 at about 11 a.m.,
accused-appellants
Rajjan,
Kallu
and
Sushil, were cutting clump of bamboo trees
(banskot) situated in his land and when his
father Chhedi Lal forbid the appellants
from cutting the clump of bamboo trees
(banskot),
accused-appellant,
Rajjan
assaulted his father with sickle (hasiya) and
appellants, Kallu and Sushil assaulted
(P.W.3) Nankau and his brothers, Shivakant
and Dayakant with lathi and danda causing
fatal injuries to his father, Chhedi Lal due
to which he died later on. He has admitted
that in the fighting and altercation, accused
Sushil also received injury and blood was
oozing from his body. P.W.3 has deposed
that at the time of occurrence, he was
present in his nearby agricultural land.

29. (P.W.3) Nankau has been crossexamined in detail by the defence but
nothing emerges which may shake or
demolish his deposition regarding assault
by Rajjan with sickle on Chhedi causing his
death. Thus, the evidence of P.W.3 appears
to be cogent, truthful and reliable. P.W.3
has mentioned that due to assault of the
appellants, his father, Chhedi Lal received
injury on the head and his back. P.W.1 and
P.W.2 have not supported the evidence of
(P.W.3) Nankau regarding the assault by
Sushil and Kallu by lathi and danda to them
or their father, Chhedi Lal. The evidence of
P.W.1 and P.W.2 is supported by the
postmortem report of Chhedi Lal where
only incised injuries caused by sickle is
mentioned and no injury caused by lathi
and
danda
is
mentioned.
Hence,
participation of accused, Kallu and Sushil
in the murder of Chhedi Lal is not proved.
The oral evidence of (P.W.3) Nankau
regarding
the
date,
time,
place
of
occurrence and manner of assault by
appellant, Rajjan, by sickle and injury
received by Chhedi Lal due to which he
died later and lodging of first information
report are corroborated by the documentary
evidence, written report (Ext.Ka.1), chik
F.I.R. (Ext.Ka.6), recovery memo of
weapons (sickle and lathi) used in the
offence (Ext.Ka.4) blood-stained and plain
earth
(Ext.Ka.3),
the
inquest
report
(Ext.Ka.11), postmortem report of deceased
(Ext.Ka.10) and charge-sheet (Ext.Ka.5).

30. It has been argued by the learned
counsel for the appellants that only one
prosecution witness (P.W.3) Nankau, who
is the son of deceased Chhedi Lal, has
supported the prosecution case. The other
two witnesses, (P.W.1) Shivakant and
(P.W.2) Dayakant have not supported the
prosecution case. They have also denied
that these two prosecution witnesses have
not received any injury in the incident. He
has also argued that the appellants cannot
be convicted on the basis of the testimony
3 All. Rajjan Vs. State of U.P.
991
of single witness who is relative/son of the
deceased Chhedi Lal. The provisions
relating to number of witnesses required for
proving a fact is given under Section 134 of
Indian Evidence Act which is as follows :

134. Number of witnesses :- No
particular number of witnesses shall in any
case be required for the proof of any fact.

31. It has been held by the Apex
Court in Maqsoodan & Ors. Vs. State of
U.P, 1983 SC 1926 that neither the number
of witnesses nor the quantity of evidence is
material, it is the quality that matters. There
is general public reluctance in appearing as
witnesses, hence there should be no
insistence that there should be more
witnesses than one.

32. The Apex Court in Laxmibai
(Dead) through LRs Vs. Bhagwantbura
(Dead) through LRs, AIR (2013) SC 1204
has held that it is time-honoured principle
that evidence must be weighed and not
counted. It is whether the evidence as ring
of truth, is cogent, credible and trustworthy
or otherwise. The legal system has laid
emphasis on value provided by each
witness, rather than the multiplicity or
plurality of witnesses. It is quality and not
quantity, which determines the adequacy of
evidence as has been provided by Section
134 of the Evidence Act.

33. In Brijbasi Lal Vs. State of M.P.,
1991 SCC (Crl.) 546, the Apex Court
convicted the accused on the sole testimony
of P.W.1 who was son of deceased
Vishwanath after finding that his evidence
was wholly acceptable. The Apex Court in
Chinniah Servai Vs. State of Madras, AIR
1957 SCC 614 laid down that "plurality of
witnesses is not necessary to prove a
criminal charge and that the conviction can
be based even on the sole testimony of a
witness provided the testimony of that
witness is wholly acceptable.

34. Applying the above test, we, at the
same time, bearing in mind the relationship
of P.W.3 with the deceased, examined the
evidence carefully and are satisfied that the
evidence of P.W.3 is reliable and free from
any infirmity. Therefore, we have no reason
to refuse to act upon the testimony of P.W.3
merely on the ground that he is the son of
the deceased since the evidence of P.W.3 is
otherwise reliable and acceptable. We have
no hesitation in agreeing with the finding of
the trial court.

35. In view of the law laid down by
the Apex Court regarding the testimony of
single testimony of related witness, the
arguments advanced on behalf of the
defence counsel are not acceptable.

36. (P.W.3) Nankau has admitted in
his cross-examination that during the
occurrence, he had seen blood on the
person of appellant, Sushil. The appellants
during their trial, in cross-examination of
P.W.3 Nankau as well as in their statement
recorded under Section 313 Cr.P.C., had put
forward the plea of right of private defence.
Appellant Sushil has stated in his statement
under Section 313 Cr.P.C. that their clump
of bamboo trees were situated in plot nos.
573/574,
village-
Ashwanipur
Mazra
Goisara. On 07.11.2019 at 11 o'clock. He
and his two other brothers were cutting
their clump of bamboo trees. Chhedi,
Shivakant, Babu Yadav andLallan abused
them and caused fatal injury to them by
assaulting them with lathi and danda. In
their defence, they also used lathi and
danda. They received injury in the incident
and were got medically examined through
policemen in the Government hospital.
992 INDIAN LAW REPORTS ALLAHABAD SERIES

37. The Investigating Officer (P.W.4)
Prem Kumar Yadav has accepted in his
cross-examination that on the date of
incident, he had also got all the three
appellants medically examined by sending
police
constable
to
the
government
hospital. He has stated that he had not seen
the documents relating to the field in which
clump of bamboos trees were growing. In
the file of trial court, the appellants have as
per list 92Kha/1 filed documents no.
92Kha/2 is khasra of the year 1413 year
fasli relating to plot no. 574 area 0.888
hectare, which is in the name of Sangam
Lal, father of appellant. In this Khasra, it is
mentioned that apart from imli and amla
trees, clump of bamboo trees are situated.
The appellants have also filed khatauni of
aforesaid plot 92Kha/3 relating to the year
1410 to 1415 fasli in respect of plot no. 574
area 0.888 hectare of village- Ashwanipur
Mazra Goisara, the aforesaid plot is in the
name of Sangam Lal, son of Ram Prakash.
The appellants have also filed in the trial
court document no. 92Kha/4 Ch format 26
relating to which village- Ashwanipur
Mazra Goisara. In this document, it is
mentioned that appellant's father, Sangam
Lal, son of Ram Prakash, obtained the
ownership of plot no. 524/3 in which clump
of bamboo trees is situated by paying Rs.
240/- as compensation for it. Vide aforesaid
list number 92Kha/1, the appellants had
filed document nos. 92Kha/5 to 92Kha/7.
The F.I.R. of cross-case relating to the
incident which was registered as Crime No.
88A/1999 under Section 147, 148, 307,
323, 504 I.P.C. against Chhedi Lal Mishra,
son
of Ram
Pratap,
Shivakant
and
Dayakant, son of Chhedi Lal Mishra and
two
other
persons.
Thus,
accusedappellants have lodged cross-case relating
to the incident against deceased Chhedi and
his two sons, Shivakant and Dayankant and
two other persons.

38. The accused-appellants had also
filed document nos. 92Kha/9, injury report
of accused Rajjan, 92Kha/10 injury report
of Sushil Kumar and 92Kha/11 injury
report of Kallu, who have received 5, 5 and
6 injuries respectively. On the behalf of
informant, per list 95Kha, documents
95Kha/1 and 95Kha/2 were filed which are
khasra khatauni of plot nos. 655 area 0.514
hectare situated in village- Ashwanipur
Mazra Goisara in which clump of bamboo
is situated, which is in the name of
informant's mother, Rajkali and his five
brothers. Thus, it appears that the disputed
clump of bamboo trees were claimed by
both the appellants and the informant, as
being situated in the agricultural field of
their ownership. During the cutting of the
clump of bamboo trees by the appellants,
altercation and fight took place in which
Chhedi Lal received fatal injuries and he
died later on. Appellants, Rajjan, Kallu and
Sushil also received injuries. Cross-case
was registered by both the parties. The
informant and his sons were acquitted in
criminal
case
and
appellants
were
convicted in the related cross-case by the
impugned order passed by the trial court.

39. From the above discussion, the
right of private defence of appellant, Rajjan
is established that they have caused injury
while they were obstructed in cutting the
clump of bamboo trees which was
allegedly situated in the land of their
ownership.
They
were
attacked
by
informant, his father and brothers in which,
they received injuries. They were medically
examined and they also lodged the F.I.R.
against the informant and persons on his
side. The law relating to right of private
defence of persons and property has been
given in Sections 96 to 106 of the Indian
Penal Code. The Apex Court in the case of
"Darshan Singh Vs. State of Punjab,
3 All. Rajjan Vs. State of U.P.
993
(2010) 2 SCC 333 has given the summary
of principles regarding the right of private
defence which is as follows :-

(i) Self-preservation is the basic
human instinct and is duly recognized by
the criminal jurisprudence of all civilized
countries. All free, democratic and civilized
countries recognize the right of private
defence within certain reasonable limits.

(ii) The right of private defence is
available only to one who is suddently
confronted with the necessity of averting an
impending danger and not of self-creation.

(iii) A mere reasonable apprehension is
enough to put the right of self-defence into
operation. In other words, it is not necessary
that there should be an actual commission of
the offence in order to give rise to the right of
private defence. It is enough if the accused
apprehended that such an offence is
contemplated and it is likely to be committed
if the right of private defence is not exercised.

(iv) The right of private defence
commences as soon as a reasonable
apprehension arises and it is co-terminus with
the duration of such apprehension.

(v) It is unrealistic to expect a person
under assault to modulate his defence step by
step with any arithmetical exactitude.

(vi) In private defence the force used by
the accused ought not to be wholly
disproportionate or much greater than
necessary for protection of the person or
property.

(vii) It is well settled that even if the
accused does not plead self-defence, it is
open to consider such a plea if the same
arises from the material on record.

(viii) The accused need not prove the
existence of the right of private defence
beyond reasonable doubt.

(ix) The IPC, 1860 confers the right of
private defence only when that unlawful or
wrongful act is an offence.

(x) A person who is in imminent and
reasonable danger of losing his life or limb
may in exercise of self-defence inflict any
harm even extending to death on his
assailant either when the assault is
attempted or directly threatened.

40. (P.W.3) Nankau has admitted in
his evidence that the incident of marpeet
took place about 50 fts away from the field
where clump of bamboo trees were situated
and were cut by the appellants. The
statement of P.W.3 is also corroborated by
the site plan (Ext.Ka.2) which was prepared
by the Investigating Officer on the pointing
out of informant.

41. From the aforesaid appreciation of
evidence, it is proved that appellant, Rajjan
caused injury to Chhedi Lal (deceased) by
attacking with sickle (hasiya), a person who
was unarmed and an old man, and
exceeded his right of private defence.
Therefore, he shall not be fully exonerated
from the offence of causing the death of
Chhedi Lal since he has proved that he
caused the injury to Chhedi Lal, resulting
in his death in the exercise of his right of
private defence. The offence committed by
him will not be murder, but culpable
homicide not amounting to murder which is
punishable under Section 304 I.P.C.

42.