# Ram Asrey & Ors v. State

- **Citation:** (2020) 1 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-03
- **Case number:** Criminal Appeal No. 448 of 1981
- **Bench:** Pankaj Kumar Jaiswal, Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-asrey-ors-v-state-45681
- **Pages:** 9

## Headnote

Criminal Law - Indian Penal Code -
Section 302/24 IPC - Section 323 read
with section 34 - Appeal against conviction.

The presence of mother of deceased at the
crime scene cannot be doubted as she is
injured witness and it was not unnatural for her
to accompany her adult son to fields for easing
himself. (para 20)

It is clear that the accused-appellants assaulted
the deceased by inflicting 'lathi' blows and knife
injury resulting into death of deceased victim.
The medical evidence on record also shows
that the deceased had incurred thirteen injuries
in all. Despite the fact that mother of the
deceased is an interested witness and her
evidence has been carefully examined which
convincingly points towards the guilt of the
accused. Mother of deceased had witnessed
26 INDIAN LAW REPORTS ALLAHABAD SERIES
the entire incident from the start to the end
and has given detailed evidence about the
incident. (para 26)

The testimony of mother of deceased is
corroborated
by
the
testimony
of
PW1
(informant) in all material particulars with
regard to identity of the accused, time of
occurrence, nature of weapons, taking the
deceased from the scene of crime to the Police
Station and lodging of the first information
report. Thus, evidence of mother of deceased
cannot be rejected only on the ground that she
being mother of the deceased is an interested
witness. (para27)

Appeal is rejected. (E-2)

List of cases cited: -

## Text

1 All. Ram Asrey & Ors. Vs. State
25
Indian Evidence Act regarding absence of
consent of the prosecutrix.

62. To prove the charge under
section 366 IPC prosecution has to prove
that prosecutrix was abducted and further
the abduction was for the purposes
mentioned under section 366 IPC. The
testimony of the prosecutrix suffers from
improvement,
improbability
and
not
trustworthy. Prosecutrix was major and
according to statements of P.W.1, P.W.3
and P.W.5 she went away along with
Rs.9000/- cash, golden earrings kamar peti
and other jewellery although her marriage
was fixed shortly, this shows that she
willingly went away. Prosecutrix was seen
by the independent witnesses with the
appellants at Nautaknki (operatic theatre
performance) in the night of 25.02.1994
also shows that the prosecutrix went away
willingly. The fact that these independent
witnesses namely Billeshwar, Shiv Pyare
and Rudra Pal Singh have not been
produced by the prosecution before the
Court has further weakened the case of
prosecution. For these reasons, I am of the
view that the prosecution has also failed to
prove the charge under Section 366 IPC.
Therefore, the finding recorded by the
learned Trial Court in this regard is
erroneous and is hereby reversed.

63. Thus, in view of the aforesaid
discussions, the findings recorded by the
trial court on the basis of testimony of the
prosecutrix cannot be affirmed and the
same is reversed.

64. In view of such evidence led by
prosecution,
the
discussions
made
hereinabove, it will not be proper to
convict the accused appellant hence, the
judgment and order dated 13.02.1997
passed by the trial court is set aside.

65. Accordingly, the appeal is
allowed.

The accused appellant is directed
to be released from jail, if not wanted in
any other case.
----------
(2020)1ILR A25

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.01.2020

BEFORE
THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE ALOK MATHUR, J.

Criminal Appeal No. 448 of 1981

Ram Asrey & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Nagendra Mohan, Chandra Bhushan, J.N.
Singh, K.K. Tewari, Mmmanish Bajpai

Counsel for the Respondent:
G.A., Sharad Dixit

Criminal Law - Indian Penal Code -
Section 302/24 IPC - Section 323 read
with section 34 - Appeal against conviction.

The presence of mother of deceased at the
crime scene cannot be doubted as she is
injured witness and it was not unnatural for her
to accompany her adult son to fields for easing
himself. (para 20)

It is clear that the accused-appellants assaulted
the deceased by inflicting 'lathi' blows and knife
injury resulting into death of deceased victim.
The medical evidence on record also shows
that the deceased had incurred thirteen injuries
in all. Despite the fact that mother of the
deceased is an interested witness and her
evidence has been carefully examined which
convincingly points towards the guilt of the
accused. Mother of deceased had witnessed
26 INDIAN LAW REPORTS ALLAHABAD SERIES
the entire incident from the start to the end
and has given detailed evidence about the
incident. (para 26)

The testimony of mother of deceased is
corroborated
by
the
testimony
of
PW1
(informant) in all material particulars with
regard to identity of the accused, time of
occurrence, nature of weapons, taking the
deceased from the scene of crime to the Police
Station and lodging of the first information
report. Thus, evidence of mother of deceased
cannot be rejected only on the ground that she
being mother of the deceased is an interested
witness. (para27)

Appeal is rejected. (E-2)

List of cases cited: -

1. Manjit Singh Vs. St. of Punj., (2019) 8 SCC
529

2. Balraje @ Trimbak Vs. St. of Mah., (2010) 6
SCC 673

3. Abdul Sayeed Vs. St. of M.P., (2010) 10 SCC
259

(Delivered by Hon'ble Alok Mathur, J.)

1. Head Sri Nagendra Mohan,
learned counsel for the appellants as well
as Mrs. Smiti Sahay, learned Government
Advocate for respondent-State.

2. This criminal appeal has been filed
by the convicted appellants under Section
374(2) Cr.P.C. against the judgment and
order dated 20/06/1981 passed by the 1st
Additional Sessions Judge, Kheri in S.T
No. 387 of 1980. The trial court convicted
the appellant's for the offences punishable
under sections 302/24 IPC and also
appellants no.1 & 2 under section 323 read
with section 34 IPC and appellant no.3
under section 323 IPC sentencing them to
2 months rigorous imprisonment and
imprisonment for life.

3. Out of three convicted appellants,
appellant no. 1 -Ram Asrey and appellant
no. 2 - Hardwari Lal have died during
pendency of this appeal, thus this appeal
stands abated in respect to appellant nos. 1
and 2 and the appeal survives only in
respect of appellant no. 3 - Shiv Shanker.

4. The case of the prosecution in
brief
is
that
Krishna
Kant
Shukla
(deceased victim) was a lecturer in
Lucknow University and belong to village
Kalwa Moti PS Maigal Ganj in Kheri
district. There had been a lot of litigation
about landed property between Krishna
Kant Shukla and Ram Asrey, and his sons
(the accused) including proceedings under
section 107/117 CRPC between them.
Krishna Kant resided at Lucknow and
visited his village infrequently mainly on
account of enmity between Krishna Kant
and Ram Asray and his sons. Father of
Krishna Kant, Duryodhan, had died about
one and half years earlier, and his Shraadh
ceremony was to be performed on
18/09/1979. Krishna Kant came to his
village Kalwamoti on 17/09/1979 in the
evening. In the morning of 18/09/1979,
Krishna Kant went out towards the fields
to ease himself in the Khain adjoining the
chak road, to the west of the Har of the
village. The mother of Krishna Kant, Smt
Bitoli Devi PW 4 also accompanied him,
but stopped near the flour Mill, and kept a
vigil in the direction where her son had
gone to ease himself. She saw Ram Asray,
accused armed with Kanta, Hardwari with
Lathi, and Shiv Shanker with knife
moving on the service road towards
Krishna Kant. PW4 on seeing the accused
walking towards his son, raised an alarm
and rushed towards her son. The accused's
started assaulting Krishna Kant, and when
his mother PW4 tried to save him and she
was assaulted by Hardwari with Lathi
1 All. Ram Asrey & Ors. Vs. State
27
from which she received injuries on the
head and she started bleeding and fell
down. The accused fled towards the west
and in the meanwhile Sri Prakash Shukla
PW1 was a cousin of the deceased also
reached the spot and accompanied the
injured Krishna Kant and his mother on a
bullock cart to PS maingalganj but Krishna
Kant succumbed to injuries on the way
near Aurangabad. They then took the dead
body to PS Maingalganj where the FIR
was written at 1 PM on the same day.

5. Sri Mahendra Kumar Shukla, PW9 (Investigating Officer) had held inquest
upon the dead body of Krishna Kant at the
premises of P.S. Maigal Ganj, shortly after
the registration of the case on 18.09.1979
and had prepared Inquest Report, Challan
Lash, Khaka Lash and letter to Chief
Medical Officer, Sitapur for postmortem
examination. The Investigating officer -
PW-9 had taken in custody a Dhoti, a
Banian and a Janeo (all blood stained)
from the dead body and sealed them. He
had also taken off a gold ring, a silver ring,
a plastic ring from the fingers of the dead
body and a 'Tabiz' from the neck of the
dead body and had given these things in
supurdagi of Smt. Bitoli Devi - PW-4. He
sealed the dead body and had sent the
same through Constable Atma Ram - PW2 to the District Hospital, Sitapur for
postmortem examination at 3.00PM on
18.08.1979.

6. The I.O. - PW-9 had taken
statements of Sri Prakash, complainant -
PW-1, Smt. Bitoli - PW-4 and of certain
others, at P.S. Maigal Ganj. He had
deposited the sealed bundle of blood
stained clothes at the Malkhana of P.S. -
Maigal Ganj and had made G.D. entry in
this regard. Thereafter he accompanied
Shri Prakash Shukla, complainant PW-1
and reached the scene of occurrence in
village - Kalwa Moti. He inspected the site
of occurrence which lay in north-west
corner of the field of Pahari Singh, on the
outskirts of the village and prepared Site
Plan. He found blood at the place of
incident and marked the same by letter 'A'
in the spot map. He had also taken samples
of blood stained and simple soil and
placed them in separate containers and
sealed the same. He had also taken
possession of the 'Lota' of the deceased
victim which had been handed over to him
by the complainant - PW-1 and thereafter
gave the same in supurdagi of the
complainant.

7. The I.O. - PW-9 also undertook
search of the house of accused persons to
apprehend them. However, they were not
available.

The Doctor L.B. Shukla, PW-3,
who examined the deceased Krishna Kant
at the relevant time was posed as Medical
Officer, Sadar Hospital, Sitapur, stated in
this testimony that he had conducted
postmortem on 19.09.1979 at 9.30AM, he
submitted the postmortem report and
found thirteen ante mortem injuries on the
deceased. The details of injuries are given
below :

1. Lacerated wound 9cm x
1/2cm x bone deep on the right side head
10cm above right ear.

2. Lacerated wound 5cn x
11/2cm x bone deed on the left side 9cm
above left eye brow.

3. Lacerated wound 31/2cm x
1/2cm x bone deep on left side heard 7cm
above outer corner of left eye brow.

4. Lacerated wound 7cm x 2cm
x bone deep onleft side head, 7cm above
the left eye brow, 1cm lateral to injury no.
3.
28 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Lacerated would 8cm x 2cm x
bone deep on left side head 3cm above ear
and 3 1/3cm behind injury no. 5.

6. Lacerated wound 10cm x 3cm
x bone deep on left side head 3cm above
ear and 3 1/2 cm behind injury no. 5.

7. Lacerated wound 7cm x
1/2cm x bone deep on the back of head in
occipital region 5cm behing left ear, and
2cm below injury no. 6.

8. Lacerated wound 3cm x
11/2cm x bone deep on the left side face,
1/2cm behind lower eye lid. Maxilla bone
on left side fractured.
9. Contusion 10cm x 4cm on the left
shoulder tip and adjacent portion of left
upper arm.

10. Lacerated wound 1cm x 1cm
x bone coming out of the wound on the
back of right forearm, 12cm below elbow.
Both bones fractured underneath the
injury.

11. Lacerated wound 1 cm x
1cm x bone deep on the back of right
forearm, 41/2 cm above wrist.

12. Contusion 5cm x 3cm on the
right forearm on back just adjacent and
below injury no. 10. Ulna bone fractured.

13. Incised wound 10cm x 5cm x
cavity deep on left side abdomen, 10cm
away from umbillicus at 3 O'clock
position. Loops of small and large
intestines coming out of the wound.

8. In the opinion of PW-3, death had
occurred about one day prior to the
postmortem
examination.
He
further
opined that death was caused due to coma
as a result of head injury. In his deposition
PW-3 stated injury no. 13 was sufficient in
ordinary course of nature to cause death
which was caused by knife.

9. PW-6 Dr. Sohan lal Gupta was
examined who deposed that on 18.09.1979
while he was posed in Jangbahadur
Hospital, at about 5.00 examined Smt.
Bitoli - PW-4, who had three injuries on
her body which are described as follows :

(1)
Lacerated
wound
1cmx1cmx1/2cm on this side of forehead
9cm above the left eyebrow blooding
original.

(2)
Lacerated
wounds
1/2cmx1/2cm on he left side of scalp 5cm
above the left ear.

(3)
Contusion
red
colour
2cmx2cm on the middle of scalp.

(4) all the injuries are simple
lacerated by the one (S/C) weapon
duration (sic) 1/2 day.

10. The Trial Court relying on the
account of two eye witnesses namely Shri
Prakash Shukla - PW-1 and mother of the
deceased Bitoli - PW-4, held the accused
to be guilty, as discussed by it in the
impugned judgment and order.

11. The Trial Court after taking into
consideration aforesaid facts, has observed
as under :

"To sum up, it is held that the
prosecution has succeeded in establishing
beyond reasonable and probable doubt,
that the present accused persons, namely
Ram Asrey, Hardwari Lal and Sheo
Shankar Lal had made the fatal assault
upon Krishan Kant (deceased victim) in
the relevant morning (18.9.79) on out
skirts of village Kalwa Moti P.S. Maigal
Ganj in this District. All the present
accused persons are, therefore, found
guilty of the charge u/s 302 IPC read with
section 34 IPC, as brought against them.

Hardwari Lal accused has also
been charge for the offence u/s 307 IPC
for making an attempt upon the life of Smt.
1 All. Ram Asrey & Ors. Vs. State
29
Bitoli PW-4 on the relevant occasion by
giving LATHI blows on her head. Ram
Asrey and Sheo Shankar Lal accused
persons have on this score been charged
u/s 307 IPC read with Section 34 IPC.

No doubt, as has already been
found above, Hardwari Lal accused had
inflicted Lathi blows on the head of Smt.
Bitili PW-4 on the relevant occasion of the
instant occurrence. The medical evidence
on record (vide injury report Ext.Ka12.,
and the testimony of Dr. Sohan lal Gupta
PW6) show that upon her medical
examination only simple injuries had been
found upn the body of S,t. Biroli PW-4 The
prosecution has failed to show that
Hardwari Lal accused has caused injuries
Smt. Bitoli PW 4, which were dangerous to
life. The charge under Section 307 IPC is,
thus, not made out against the accused
persons. In this view of the matters,
Hardwari Lal accused is found to have
committeed offence u/s 323 IPC for
causing simple hurt to Smt. Bitoli PW4 on
the relevant occasion, and the remaining
accused persons namely, Ram Asrey and
Sheo Shankar lal are found guilty of the
offence u/s 323 IPC read with Section 34
IPC, on this score."

12. Sri Nagendra Mohan, learned
counsel for the appellants has straneously
urged that the testimony of PW-4 Smt.
Bitoli, mother of the deceased is not
trustworthy and reliable and her testimony
cannot be made the basis of conviction on
the accused. He has submitted that it was
not probable or natural for a mother to
accompany her son who is aged about 4243 years while going to ease himself in the
fields. He also submitted that it was also
unreasonable for a person to go to the
fields despite of the fact that they had
toilet inside the house. To counter the
prosecution version he states that in fact
the
deceased
was
murdered
around
midnight and the injuries received by PW4 was on account of hitting her head with
the 'cot'.

13. The second submission made by
learned counsel for the appellants was that
PW-1 Sriprakash Shukla PW-1 who is also
the informant was a chance witness and
his presence at the scene of crime is
improbable and his evidence therefore is
not worthy of any credence and therefore,
cannot be made basis of conviction of the
accused.

14. Heard learned counsel for the
parties and perused the record.

15. The issue raised by the counsel
for the appellant - Hardwari Lal which
needs consideration is regarding the
presence of PW-1 and PW-4 at the place
of incident and also with regard to
credibility of their evidence, which have
lead to the conviction of the accused -
appellants.

16. The PW-4 Bitoli, mother of the
deceased in her examination-in-chief has
clearly stated that time of occurrence was
around 7.30am and has stated that the
accused were inimical to the deceased on
the basis of certain property dispute and
most specifically with regard to the
property left by one Raja Ram who is
father of Ram Dulari, first wife of her
husband Duryodhan.

17. PW-4 has narrated the entire
occurrence in detail stating that she has
accompanied the deceased when he had
gone on the date of occurrence for easing
himself to a spot near the flour mill (ata
chakki) of Khema Singh which is about
200 steps from the field of Pahari Singh.
30 INDIAN LAW REPORTS ALLAHABAD SERIES
She stated that 8-10 minutes later deceased
Krishna Kant sat for easing himself in the
north-west corner of the field, then all the
accused started assaulting her son, seeing this
she rushed towards west and headed towards
her son (deceased Krishna Kant) and raised
alarm. Hearing her shouts Upendra Misra, Sri
Prakash Shukla who were passing through the
"chak road" also rushed towards the scene.
The accused persons had surrounded the
deceased and when she rushed to rescue the
deceased, accused Hardwari assaulted her
with 'lathi' due to which she fell down on the
ground and sustained injuries. PW-4 has
further stated that deceased Krishna Kant had
fallen on the ground in injured condition and
the accused kept on assaulting him, accused
Shiv Shankar with knife cut open the
abdomen of the deceased and after that the all
the accused persons rushed away from the
scene.

18. The other ocular witnesses
namely Shri Prakash Shukla, informant
and Manohar Lal - Pw-8 rushed towards
the scene on hearing the alarm raised by
PW-4 Bitoli. PW-4 was injured in the
occurrence on being assaulted with 'lathi'.
PW-4 was medically examined by Dr.
Sohan lal Gupta on 18.09.1979, at about
5.00, while he was posed in Jangbahadur
Hospital. PW-4 was found to have
sustained two lacerated wounds on head
and one contusion, all the injuries
sustained by her have been opined to be
simple in nature and around 1-1/2 day old.

19. Even her cross examination PW4 adhered to the deposition made by her in
examination in chief and no discrepancy
could be elicited so as to doubt her
testimony.

20. From the discussion made above,
the presence of PW-4 Bitoli at the crime
scene cannot be doubted as she is injured
witness and it was not unnatural for her to
accompany her adult son to fields for
easing himself. It has been brought on
record as per testimonies of various
witnesses as well as PW-4 herself that the
accused persons were on inimical terms
with deceased Krishna Kant and the
accused persons on several occasion had
threatened to kill the deceased when ever
they used to pass in front of the house of
PW-4 and in this regard PW-4 has also
lodged a complaint at the concerned Police
Station.

21. Hon'ble Apex Court in Manjit
Singh Vs. State of Punjab, (2019) 8 SCC
529, while discussing the issue of reliability
of testimony of injured witness, has held in
para 13.2 of the Judgment as under :

"13.2. Likewise, the submission
about want of independent witnesses in
support of prosecution case is also
baseless. There is no rule that in every
criminal case, the testimony of an injured
eye witness needs corroboration from the
so-called independent witness(es). When
the statement of injured eyewitness is
found
trustworthy
and
reliable,
the
conviction on that basis could always be
recorded, of course, having regard to all
the facts and surrounding factors. In the
present case, the reliable evidence of the
injured eyewitnesses cannot be discarded
merely for the reason that no independent
witness was examined."

22. The Supreme Court in Balraje @
Trimbak Vs. State of Maharashtra,
(2010) 6 SCC 673, in para 30 of the
judgment has observed as under :

"30. In law, testimony of an
injured witness is given importance. When
1 All. Ram Asrey & Ors. Vs. State
31
the eyewitness are stated to be interested
and inimically disposed towards the
accused, it has to be noted that it would
not be proper to conclude that they would
shield the real culprit and rope inn
innocent persons. The truth or otherwise
of the evidence has to be weighed
pragmatically.
The
court
would
be
required to analyse the evidence of related
witnesses and those witnesses who are
inimically disposed towards the accused.
But if after careful analysis and scrutiny of
their evidence, the version given by the
witnesses appears to be clear, cogent and
credible, there is no reason to discard the
same. Conviction can be made on the basis
of such evidence."

23. Apex Court, in Abdul Sayeed
Vs. State of Madhya Pradesh, (2010) 10
SCC 259, while dealing with the issue of
evidence of injured witness, has held in
paras 28, 29 and 30 as follows :

"28. The question of the weight
to be attached to the evidence of a witness
that was himself injured in the course of
the occurrence has been extensively
discussed by this Court. Where a witness
to the occurrence has himself been injured
in the incident, the testimony of such a
witness is generally considered to be very
reliable, as he is a witness that comes with
a built-in guarantee of his presence at the
scene of the crime and is unlikely to spare
his actual assailant(s) in order to falsely
implicate someone. "Convincing evidence
is required to discredit an injured
witness." [Vide Ramlagan Singh v. State of
Bihar, Malkhan Singh v. State of U.P.,
Machhi
Singh
v.
State
of
Punjab,
Appabhai v. State of Gujarat, Bonkya v.
State of Maharashtra, Bhag Singh, Mohar
v. State of U.P., Dinesh Kumar v. State of
Rajasthan, Vishnu v. State of Rajasthan,
Annareddy Sambasiva Reddy v. State of
A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a
similar view was taken in Jarnail Singh v.
State of Punjab, where this Court
reiterated the special evidentiary status
accorded to the testimony of an injured
accused and relying on its earlier
judgments held as under :

"28. Darshan Singh (PW 4) was
an injured witness. He had been examined
by the doctor. His testimony could not be
brushed aside lightly. He had given full
details of the incident as he was present at
the time when the assailants reached the
tubewell. In Shivalingappa Kallayanappa
v. State of Karnataka this Court has held
that the deposition of the injured witness
should be relied upon unless there are
strong grounds for rejection of his
evidence
on
the
basis
of
major
contradictions and discrepancies, for the
reason that his presence on the scene
stands established in case it was proved
that he suffered the injury during the said
incident.

29. In State of U.P. v. Kishan
Chand a similar view has been reiterated
observing that the testimony of a stamped
witness has its own relevance and efficacy.
The fact that the witness sustained injuries
at the time and place of occurrence. In
case the injured witness is subjected to
lengthy cross-examination and nothing
can be elicited to discard his testimony, it
should be relied upon (vide Krishna v.
State of Haryana). Thus, we are of the
considered opinion that evidence of
Darshan Singh (PW 4) has rightly been
relied upon by the courts below."

30. The law on the point can be
summarised to the effect that the testimony
of the injured witness is accorded a
special status in law. This is as a
consequence of the fact that the injury to
32 INDIAN LAW REPORTS ALLAHABAD SERIES
the witness is an inbuilt guarantee of his
presence at the scene of the crime and because
the witness will not want to let his actual
assailant go unpunished merely to falsely
implicate a third party for the commission of
the offence. Thus, the deposition of the injured
witness should be relied upon unless thee are
strong grounds for rejection of his evidence on
the basis of major contradictions and
discrepancies therein."

24. Looking to the facts and
circumstances of the present case, the act
of PW-4 in accompanying her adult son
while he was going out to ease himself, is
not unnatural and on the contrary has been
sufficiently explained and there is no
reason to doubt her testimony as even in
her cross examination she has consistently
adhered to the version narrated by her all
through out her examination in chief.

25.

According
to
PW-1
on
18.09.1979 i.e. the date of incident, while
he was going to Baba Kishan Das Temple
and on the way he met Manohar Lal and
Upendra Mishra at the intersection, where
he heard screams of the deceased and his
mother Bitoli - PW-4 which were coming
from the west direction. He saw the
accused-appellants assaulting the deceased
(Krishna Kant) and his mother Bitoli was
trying to save him. Hardwari (one of the
accused) struck PW-4 with lathi and as a
result of which she fell down. In the
meanwhile, PW-1 reached near the place
of incident and at that point of time Ram
Asrey - another accused, while showing
his 'kanta' said that if any one came near
them, he would also be killed. After
struggle between the accused-appellants
and the deceased, the accused Shiv
Shankar cut away the stomach of the
deceased and ran away. In the meanwhile,
number of persons gathered on the spot
and the deceased was taken to the hospital
in Aurangabad but about one mile from
the hospital, the deceased passed away.
PW-1 claims himself to the the witness of
the crime in question. It has also come on
record that PW-1 had taken the deceased
to Police Station and shortly after
occurrence
first
information
report
regarding the incident in question was
lodged. All the aforesaid facts lead
credence to the ocular testimony of PW-1.

26. Taking into consideration all the
facts and circumstances as stated above, it
is clear that the accused-appellants namely
Ram Asrey, Hardwari Lal and Shiv
Shanker Lal assaulted the deceased -
Krishna Kant on 18.09.1979 by inflicting
'lathi' blows and knife injury resulting into
death of Krishna Kant (deceased victim).
The medical evidence on record also
shows that the deceased had incurred
thirteen injuries in all and in the opinion of
PW-3, death took place due to coma as a
result of head injury and also the injury no.
13 was sufficient in ordinary course of
nature to cause death which was caused by
knife. Despite the fact that mother of the
deceased is an interested witness and her
evidence has been carefully examined
which convincingly points towards the
guilt of the accused. PW-4 (mother of the
deceased) had witnesses the entire incident
from the start to the end and has given
detailed evidence about the incident.
During the incident PW-4 was also injured
and her medical report has also been
placed on record which shows that she
sustained three injuries out of which two
were lacerated woulds and one contusion,
which were caused by Hardwari Lal one of
the accused.

27. The testimony of PW-4 is
corroborated by the testimony of PW-1
1 All. Ram Chander & Ors. Vs. State of U.P.
33
(informant) in all material particulars with
regard to identity of the accused, time of
occurrence, nature of weapons, taking the
deceased from the scene of crime to the
Police Station and lodging of the first
information report. Thus, evidence of PW4 Bitoli cannot be rejected only on the
ground that she being mother of the
deceased is an interested witness.

28. No other point was argued by
learned counsel for the appellant.

29. In view of above, we find no
cogent reason to take a view other than the
view taken by the Trial Court, thus, no
interference in the impugned judgment and
order is required, same is hereby affirmed.

30. The appeal is dismissed.

31. Appellant no. 3 - Shiv Shanker is
on bail pursuant to the order of this Court.
His bail bonds are cancelled and surety is
discharged. He is directed to surrender
before the trial Court within month from
the date of this order. The learned trial
Court shall remand him to jail for serving
out the remainder part of the sentences. On
failure of appellant no. 3 - Shiv Shanker to
appear before the trial Court within the
stipulated period, the learned trial Court
shall take appropriate steps against the
appellant no. 3 - Shiv Shanker, in
accordance with law.

32. Office is directed to transmit the
lower Court record to the concerned Court
forthwith.
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(2020)1ILR A33

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2019
BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No. 474 of 2002

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

Counsel for the Appellants:
Sri Apul Mishra, Sri Rahul Saxena, Sri
Raghuvansh Misra, Sri Sushil Kumar
Pandey

Counsel for the Respondent:
A.G.A.

A. Indian Penal Code, 1860 - Section 34 -
object
of
common
intention-joint
liability-As a general principle in a case of
criminal
liability
it
is
the
primary
responsibility of the person who actually
commits the offence and only that person
who has committed the crime can be held
to guilty. By introducing Section 34 in the
penal code the Legislature laid down the
principle of joint liability in doing a
criminal act. The essence of that liability
is to be found in the existence of a
common
intention
connecting
the
accused leading to the doing of a criminal
act in furtherance of such intention. Thus,
if the act is the result of a common
intention then every person who did the
criminal act with that common intention
would be responsible for the offence
committed irrespective of the share
which he had in its perpetration. Section
34 IPC embodies the principles of joint
liability in doing the criminal act based on
a common intention. Common intention
essentially being a state of mind it is very
difficult to procure direct evidence to
prove such intention. Therefore, in most
cases it has to be inferred from the act
like, the conduct of the accused or other
relevant circumstances of the case. The
inference can be gathered by the manner
in which the accused arrived at the scene,
mounted the attack, determination and