# Ram Awadh Pandey & Ors v. State Of U.P

- **Citation:** (2016) 8 ILRA 549
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-26
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-awadh-pandey-ors-v-state-of-u-p-44351
- **Pages:** 21

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8 All. Ram Awadh Pandey & Ors. Vs State Of U.P.
549
(2016) 8 ILRA 549
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 5176 Of 2012

Ram Awadh Pandey & Ors. ...Appellants
Versus
State Of U.P ...Respondent

Counsel for Appellants:
Brijesh Sahai, Amit Kumar Singh, Gaurav Kakkar

Counsel for Respondent:
Govt. Advocate, R.L. Shukla, S.K. Yadav, Sanjay Yadav

Legislation referred to Indian Penal Code, 1860 - Ss. 302, 302/34, 504; Arms Act, 1959 - S. 25(1B)(b);
Code of Criminal Procedure, 1973 - S. 313

FACTS:
On 15.02.2009 at about 12.00 noon, at the Government Slaughter House, Police Station Kotwali Nagar,
District Aligarh, the appellant Raeesh arrived armed with a knife, accompanied by his brother Haji Munna
(appellant) and father Haji Rasheed (co-accused, since deceased). They entered the slaughter house and
demanded delivery of slaughtered goods already purchased by the first informant's side. On being refused,
Haji Rasheed and Haji Munna caught hold of the deceased Irshad (brother of the first informant), and Raeesh
inflicted a knife blow on his chest with intent to kill him. Irshad was taken to Malkhan Singh Government
Hospital, Aligarh, where he was declared dead. Raeesh was apprehended on the spot along with the knife. A
first information report was lodged by the first informant Bahar Ahmad @ Chhotey (P.W. 1) at 1.00 P.M. on
the same day. After investigation, charge-sheets were filed against the appellants.
The Sessions Court, Aligarh, by judgment and order dated 14.12.2010, convicted appellant Raeesh under
Section 302 I.P.C. and Section 25(1B)(b) of the Arms Act and convicted appellant Haji Munna under Section
302/34 I.P.C. and sentenced both to life imprisonment. Both the appellants challenged their conviction before
this Court.

ISSUES:
(i) Whether the prosecution witnesses, being close relatives of the deceased, are to be treated as interested
witnesses and their testimony discarded on that ground alone.
(ii) Whether the first information report was ante-timed.
(iii) Whether non-collection of blood-stained earth from the spot and non-examination of fingerprints on the
recovered knife vitiated the prosecution case.
(iv) Whether the testimony of eye-witnesses P.W. 1 and P.W. 2 was reliable, consistent, and sufficient to
sustain conviction.
(v) Whether common intention under Section 34 I.P.C. was established against appellant Haji Munna.
550 INDIAN LAW REPORTS ALLAHABAD SERIES

HELD:
(i) Testimony of relative/interested witnesses - Mere relationship of witnesses with the deceased is
not by itself a ground to discard their testimony. In many cases, only relatives are available to depose,
particularly having regard to the prevailing trends in our society where persons other than relations are not
ready to depose before the court. Such testimony, however, must be subjected to scrupulous and careful
scrutiny and if, on such scrutiny, it inspires confidence, it cannot be rejected.
 Relied on: Birender Poddar v. State of Bihar, 2011 Cri. L.J. 3120 (S.C.)
(ii) Prompt lodging of the FIR - The place of occurrence was the Government Slaughter House, situated
at a distance of 2 kilometres from the police station. The occurrence took place at about 12.00 noon. The first
information report was lodged at 1.00 P.M. on the same day. This constitutes a prompt report. The timeline
stated in the FIR stands corroborated by: the inquest report commencing at 2.30 P.M. and concluding at 4.30
P.M.; despatch of the dead body for post-mortem after 4.30 P.M.; and its receipt at the mortuary at 5.20 P.M.
The contention that the FIR was ante-timed is, therefore, unsustainable.
(iii) Non-collection of blood from spot - The occurrence took place in a government slaughter house
where blood of slaughtered animals had spread all over the premises. It was, therefore, virtually impossible to
segregate and collect blood attributable exclusively to the deceased. Non-collection of blood-stained earth
under such peculiar facts creates no doubt about the place of occurrence. Footwear left behind at the scene
by reason of the stampede that followed were, in fact, seized under a recovery memo by the Investigating
Officer.
(iv) Reliability of ocular testimony - The two eye-witnesses, P.W. 1 (first informant and brother of
deceased) and P.W. 2 (uncle of deceased), were naturally present at the slaughter house supervising
slaughtering work. Their presence at the spot is wholly consistent with the nature of their work and the time
of day. Their testimonies are consistent inter se and corroborate the contents of the first information report in
all material particulars. The specific description that, after the knife blow, the deceased did not fall
immediately but was caught by the witnesses while in the act of falling, is a detail that only persons actually
present on the spot could furnish. Cross-examination did not elicit any material contradiction. The defence's
own suggestion that the appellant Raeesh was caught by the first informant after a short chase amounts to
an implicit admission of the witnesses' presence at the spot.
 Medical evidence of Dr. S.K. Sharma (P.W. 3) corroborates the mode of assault - a single ante-mortem
stab wound, 4 cm × 2 cm × chest cavity deep, on the front of the chest on the left side - sufficient in the
ordinary course of nature to cause death. The doctor opined that death could have occurred between 12.00
noon and 12.15 P.M., which is consistent with the prosecution case and was not challenged in crossexamination.
(v) Common intention under Section 34 I.P.C. - The conjoint act of Haji Rasheed and appellant Haji
Munna in catching hold of both hands of the deceased Irshad - thereby immobilising him - while the
appellant Raeesh inflicted the knife blow establishes that all the accused persons were acting in furtherance of
a common intention to commit the offence. The manner and participation of the accused persons in the
incident leads to an inescapable inference of shared common intention.

RESULT:
Both the appeals lack merit and are accordingly dismissed. The judgment and order of conviction dated
14.12.2010 passed by the Sessions Judge, Aligarh, in Sessions Trial No. 395 of 2009 (under Sections 302 and
302/34 I.P.C.) and Sessions Trial No. 396 of 2009 (under Section 25(1B)(b) of the Arms Act) is upheld and
confirmed. The bail of appellant Haji Munna stands cancelled and his sureties are discharged. He is directed to
be taken into custody forthwith to serve out the remaining period of the sentence imposed upon him by the
trial court.

Cases Referred:
Birender Poddar v. State of Bihar, 2011 Cri. L.J. 3120 (S.C.)
8 All. Ram Awadh Pandey & Ors. Vs State Of U.P.
551
(Delivered by Hon'ble Bala Kirshna Narayana, J.)

1. Heard Sri Brijesh Sahai, learned counsel for the appellants, Sri Sagir Ahmad, learned A.
G. A. assisted by Mrs. Manju Thakur Brief Hlder appearing for the State of U. P. and Sri Rajiv
Lochan Shukla, learned counsel appearing on behalf of complainant.

2. This criminal appeal has been filed by A1 Ram Awadh Pandey, A2 Ravindra Pandey,
A3 Awadh Narain alias Sawadh Narain Pandey, A4 Ram Darash Pandey and A5 Roshan Pandey
against the judgement and order dated 5.12.2012 passed by the Additional Sessions Judge,
(Temporary Ex-cadre Post) Court No. 2, Azamgarh in Sessions Trial No. 437 of 2009; State Versus
Ram Awadh pandey and others arising out of Case Crime No. 285 of 2009 under Sections-147,
302/148, 323/149, 325/149 I. P. C. and Section-7 of Criminal Law Amendment Act, P. S.-
Jahanaganj, district-Azamgarh convicting the appellants and sentencing them to six months' R. I.
Under Section-147 I. P. C., life imprisonment and fine of Rs. 3000/- each and in default of payment
of fine, one year's additional R. I., under Sections-302/149 I. P. C. one year's R. I., under Sections323/149 I. P. C. one and half years' R. I. and fine of Rs. 1000/- each and in default of payment of
fine six months' additional R. I. under Sections-325/149. The Additional Sessions Judge,
(Temporary Ex-cadre Post) Court No. 2, Azamgarh had directed that all the sentences shall run
concurrently.

3. Briefly stated, the prosecution case is that while Sri Subba Yadav, son of late Mangal
Yadav, Gram Pradhan of Punarji Gram Sabha was supervising the work of digging soil on 5.5.2009
at about 8.00 p. m. on the chak road in the southern corner of the village, A1 Ram Awadh Pandey,
A2 Ravindra Pandey, A3 Awadh Narain aliaas Sawah Narain Pandey, A4 Ram Darash Pandey, A5
Roshan Pandey and one Shiv Poojan Pandey armed with lathis and dandas reached the chak road,
where the work of digging and laying soil was in progress and ordered to stop the work of digging
and laying soil forthwith as the land from which the soil was being dug, was part of their chak, to
which Subba Yadav agreed and said that the work will be resumed only after demarcation is done
on the spot and started walking towards his house. At that point, the aforesaid persons suddenly
surrounded the Pradhan and started beating him and when the complainant Arvind Kumar Singh
and his cousin brother Pradeep Yadav, S/o Ram Nath Yadav tried to intercede, the accused beat
them also inflicting severe injuries on them. As a result of beating given by the appellants to
Pradhan Subba Yadav, he died on the spot. On the complainant's and his brother's making noise
and raising cries for help, large number of villagers gathered at the place of occurrence whereafter
the appellants ran away from the place of incident. On the basis of the written report of the
aforesaid occurrence (Ext. Ka 1) lodged by the complainant Raj Kumar Yadav, P. W. 1, S/o Ram
Janan Yadav on 5.5.2009 at about 9.20 a. M. at P. S.-Jahanaganj, district-Azamgarh, Case Crime
No. 285 of 2009 under Sections- 147. 302 and 323 I. P. C. was registered against all the accused /
appellants and one Shiv Poojan Pandey, who died during investigation. The check F. I. R. and the
G. D. entry, carbon copy whereof has been brought on record as Ext. Ka 7 were prepared by P. W.
9 Constable Arvind Kumar Singh. After registration of Case Crime No. 285 of 2009, under
Sections-147, 302/148, 323/149, 325/149 I. P. C. and Section-7 of Criminal Law Amendment Act
at P. S.-Jahanaganj, district-Azamgarh, the investigation thereof was entrusted to P. W. 10 Sri
552 INDIAN LAW REPORTS ALLAHABAD SERIES

Atma Ram Yadav, the then S. H. O., P. S.-Jahana Ganj, district-Azamgarh, who after copying the
check F. I. R. and the G. D. entry in the Case Diary recorded the statement of P. W. 1 Raj Kumar
Yadav and reached the place of occurrence and after inspecting the same, prepared the site plan
(Ext. Ka 9 and 10) and conducted the inquest of the dead body of the deceased, prepared the
inquest report (Ext. Ka 11) and the other documents and after completing the necessary paper work,
got the dead body of the deceased sealed and dispatched to the District Hospital, Azamgarh for post
mortem. The post mortem of the dead body of the deceased was performed by Dr. A. K. Misra, P.
W. 5 who prepared the post mortem report (Ext. Ka 3). P. W. 10. After completion of investigation
charge-sheet was submitted by the investigating officer against all the accused under Sections-302,
147, 323 and 325 I. P. C. and Section-7 of Criminal Law Amendment Act before the concerned
magistrate.

4. Since the offences enumerated in the charge-sheet were triable by the Court of Sessions,
the magistrate concerned after summoning the accused and complying with the requirement of
Section- 207 Cr. P. C. committed the case for trial of the accused to the Court of Sessions and after
committal of the case to the Court of Sessions, the case was transferred to the Court of Additional
Sessions Judge, Court No. 2, Azamgarh. Charges were framed against all the accused under
Sections-147, 302/149, 323/149 and 325/149 I. P. C. and Section-7 of Criminal Law Amendment
Act. All the accused denied the charges framed against them and claimed trial. It may be noted that
the co-accused Shiv Poojan Yadav had died in the District Jail, Azamgarh during investigation.

5. The prosecution in order to prove its charges against the accused examined P. W. 1,
complainant Raj Kumar Yadav, P. W. 2 Pradeep Yadav, P. W. 3 Smt. Prabhawati, P. W. 4 Dr. K.
N. Pandey, P. W. 5 Dr. A. K. Misra, P. W. 6 Dr. Gayasuddin Khan, P. W. 7 Dr. R. K. Mahato, P.
W. 8 Om Prakash Srivastava, P. W. 9 Arvind Kumar Singh, P. W. 10 S. I. Atma Ram Yadav. The
documentary evidence adduced by the prosecution has been referred to and dealt with by the
learned trial judge in the impugned judgement and order and the same need not be reproduced
again. The accused-appellants in their statements recorded under Section 313 Cr. P. C. disputed the
manner in which the occurrence had been narrated in the F. I. R. and stated that the F. I. R. has
been lodged after due deliberation and consultation containing absolutely false and incorrect facts
and the same was a result of undue pressure. They denied that they were responsible for the
incident and wrong charge-sheet had been submitted due to enmity and pressure. They also stated
that the witnesses had given false evidence against them under the influence of partisan witnesses.

6. The defence examined D. W. 1 Dr. Kumod Kumar Jha and Dr. Anoop Kumar Singh and
also brought on record injury report (Ext. Ka 1) and post mortm report (Ext. Ka 2) of deceased Shiv
Poojan Yadav, injury report of Roshan Kumar Pandey (Ext. Ka 3), injury report of Ram Awadh
Pandey (Ext. Ka 4) and apart from the aforesaid, the defence also filed certified copy of the check
F. I. R. of Case Crime No. 885 of 2010 vide list 106 Kha to 107 kha and order dated 2.7.2010 paper
No. 108 Kha and application dated 28.7.2010 paper no. 110 Kha filed by Ram Awadh Pandey.

7. After considering the submissions made by leaned counsel for the parties before him and
scrutinising the oral as well as documentary evidence on record adduced by both the parties, the
8 All. Ram Awadh Pandey & Ors. Vs State Of U.P.
553
Additional Sessions Judge, (Temporary Ex-cadre Post) Court No. 2, Azamgarh by the impugned
judgement and order convicted the appellants and awarded the aforesaid sentences to them.

8. Sri Brijesh Sahai, learned counsel for the appellants submitted that the prosecution
having suppressed the real genesis of the incident and approached the Court with unclean hands
having totally failed to explain the injuries received by A 1 Ram Awadh Pandey, A 5 Roshan
Pandey and co-accused Shiv Poojan Pandey who on account of the injuries so sustained by him,
had died in jail after about one month of the incident, as is evident from his post mortem report
(Ext. Ka 2), it cannot be said that the appellants were the aggressors and hence their conviction
under the different sections of the Indian Penal Code recorded by the trial judge, cannot be
maintained. He next submitted that even for the sake of arguments, the prosecution case as spelt out
in the F. I. R. and as testified by the prosecution witnesses is taken to be gospel truth, the offence if
any, committed by the appellants, does not travel beyond Section 304 Para II I. P. C. He also
submitted that the post mortem report of the deceased shows six injuries, of which five injuries
have not caused any internal damage to the deceased. The only injury which can be termed as fatal,
is the injury no. 6 and considering the number and nature of the injuries found on the dead body of
the deceased and number of the accused, it cannot be said that the deceased was assaulted by the
assailants with the intent of causing his death and the incident was either pre-planned or premeditated. The same was a result of sudden provocation as both the sides suffered mortalities and
injuries, the appellants cannot be held to be aggressors. He next submitted that from the site plan
and the evidence of the witnesses examined on behalf of the prosecution itself, it is proved beyond
any reasonable doubt that at the behest of the deceased soil was being dug out from the chak of the
appellants without their permission and the work of digging soil and levelling chak road was
admittedly being got done by the deceased Pradhan as a private work and not as the work of Gram
Sabha and at the time of incident, large number of persons including labourers employed by the
deceased for digging the soil were present at the place of incident and when the appellants objected
and exercised their right of private defence in relation to their property, altercations and scuffles
followed between both the parties which ultimately led to the unfortunate incident. He further
submitted that the presence of P. W. 1 and P. W. 2 at the place of incident is highly doubtful and no
reliance can be placed on their evidence and as far as P. W. 3 Smt. Prabhawati is concerned, no
credence can be attached to her evidence, as she has neither been nominated as an eye witness in
the F. I. R. nor in chargesheet. She is also an interested and partisan witness, as she was employed
by the deceased as labourer for the execution of the work of digging soil. He lastly submitted that
the impugned judgement and order cannot be sustained and is liable to be set aside.

9. Sri Rajiv Lochan Shukla, learned counsel for the complainant refuting the submissions
made by Sri Brijesh Sahai submitted that even if it is assumed for the sake of arguments that the
accused had exercised their right of private defence in respect of their property, it is clear from the
facts and circumstances of this case that they had clearly exceeded their right of private defence.
Neither there is any evidence showing that the accused who had allegedly received injuries in the
incident were sent for examination of their injuries by the police nor there is any link evidence
showing that the accused Shiv Poojan Yadav died as a result of the injuries allegedly received by
him in the incident. Moreover, the photostat copies of the injury reports of appellant nos. A1, A5
554 INDIAN LAW REPORTS ALLAHABAD SERIES

and deceased Shiv Poojan Pandey and his post mortem report, apart from being fabricated, are
wholly inadmissible in evidence in view of non-compliance of Section 65 of Indian Evidence Act.
He next submitted that even if it is assumed for the sake of argument, though without admitting that
A 1 and A 5 had actually received any injury in the occurrence, the same according to their injury
reports and the opinion of the doctor who had examined them, were found to be superficial in
nature and the same would not confer any benefit on the accused and the same were rightly
discarded by the trial court. He also submitted that there is absolutely no iota of evidence on record,
even remotely indicating that either soil was being dug out from the chak of the appellants or there
was any provocation from the side of the prosecution or anyone present on the spot from the side of
the prosecution was armed with any deadly weapon and hence the theory that the incident was
neither pre-planned nor pre-meditated but was a result of sudden provocation, has no legs to stand
and submission made by learned counsel for the appellants that the prosecution has suppressed the
genesis of the dispute, is per se baseless and the impugned judgement and order, which are based
upon cogent evidence and supported by relevant considerations, do not warrant any interference by
this Court and this appeal which is devoid of any merit, is liable to be dismissed.

10. Sri Sagir Ahmad, learned A. G. A. assisted by Mrs. Manju Thakur, Brief Holder
appearing for the State of U. P. have adopted the submissions made by Sri Rajiv Lochan Shukla,
learned counsel appearing on behalf of complainant.

11. We have very carefully considered the submissions made by learned counsel for the
appellants and scanned the entire lower court record as well as the law reports cited by learned
counsel for the parties before us in support of their respective submissions.

12. The three questions involved for our considerations in the instant criminal appeal
interalia are

(1) whether the prosecution has been able to prove its case beyond reasonable
doubt;

(2) whether the prosecution has not come with clean hands and has suppressed the
true genesis of the incident; and

(3) Whether if it is held that the prosecution had suppressed the true facts, the
conviction of the appellants under the offences mentioned in the impugned judgement and order
and the sentence awarded to them can be maintained.

13. We now proceed to examine the aforesaid issues in the light of the evidence adduced
by the parties in support of their respective cases.

14. Raj Kumar Yadav who is the grand son of the deceased and the complainant in the
present case was examined as P. W. 1 during trial and he testified that while the work of levelling
the chak road situated in the south of the village was in progress on 5.5.2009 at about 8.00 A. M.
8 All. Ram Awadh Pandey & Ors. Vs State Of U.P.
555
under the supervision of his grand father Subba Yadav, who at the relevant point of time, was the
Pradhan of the village, the appellants Ram Awadh Pandey, Ravindra Pandey, Awadh Narain alias
Sawadh Narain Pandey, Ram Darash Pandey, Roshan Pandey and Shiv Poojan Pandey arrived at
the place of incident armed with lathi and danda and asked his grand father Subba Yadav to stop
the work on the chak road forthwith, to which deceased Subba Yadav immediately agreed and
announced that the work on the chak road would resume only after demarcation is done. P. W. 1
Raj Kumar further testified that he had accompanied his grand father to the place of occurrence and
was present there at the time of the incident. As soon as Subba Yadav after announcing that the
work on chak road would be resumed after demarcation, started going back to his house with P. W.
1, the aforesaid accused surrounded the complainant's grand father and started beating him and
when the P. W. 1 and his cousin brother Padeep Kumar tried to save their grand father, the accused
beat P. W. 1 Raj Kumar Yadav and P. W. 2 Pradeep Kumar inflicted severe injuries on them also.
As a result of the beating given by the accused, his grand father Subba Yadav died and on their
raising hues and cries, Smt. Prabhawati, Harishankar and other villagers also arrived at the place of
incident and saw the accused running away from the crime scene. Leaving the dead body of his
grand father in the custody of the villagers and after getting the written report of the incident
scribed by one Hari Krishan Chaubey, as he himself was seriously injured, he went to the police
station for lodging the written report (Ext. Ka 1) of the incident at P. S.-Jahanaganj.

15. P. W. 1 Raj Kumar Yadav proved the written report (Ext. Ka 1).

16. P. W. 2, Pradeep Kumar Yadav in his evidence recorded during trial stated that the
deceased Subba Yadav was his grand fathers brother and Pradhan of Punarji Gram Sabha. On
5.5.2009 at about 8.00 A. M. the work of digging soil by 30-32 persons on the chak road was going
on under the supervision of the deceased when the accused armed with lathis and dandas reached
the place of incident and ordered to stop the work as the land on which the work was being done,
was part of their chak, to which deceased Subba Yadav agreed and after ordering stoppage of work,
announced that the work would be resumed only after measurements were done on the spot and
turned around to go home. In the meantime the accused surrounded him and assaulted him with
lathis and dandas exhorting to each other not to let him escape alive. On hearing the hue and cries
P. W. 2 and others rushed to the place of incident and tried to intercede but the accused beat him
and his brother Raj Kumar Yadav also with lathis and dandas. P. W. 2 further stated that he had
received injury on his head on account of being struck three or four times on his head by the
accused with their lathis and the accused had also caused injury to P. W. 1 Raj Kumar Yadav. At
the time of the occurrence about 30-32 labourers including Smt. Prabhawati, Ram Briksh Ram,
Lalji Ram, Rampati Ram, Kalloo Yadav, Shobhnath Yadav and others were present at the place of
occurrence. Due to the incident, stampede was caused. His grand father Subba Yadav had died on
the spot. The injuries of P. W. 1 Raj Kumar and P. W. 2 Pradeep Kumar Yadav were examined in
District Hospital, Azamgarh. X-ray of the injuries received by Raj Kumar was conducted by Dr. K.
N. Pandey.

17. P. W. 3 Smt. Prabhawati in her examination-in-chief stated that the incident had taken
place on 5.5.2009 at about 8.00 A. M. The work of digging the soil and levelling the chak road with
556 INDIAN LAW REPORTS ALLAHABAD SERIES

it was in progress for the last 2 or 4 days before the incident under the supervision of Pradhan
Subba Yadav. About 35 labourers were employed for executing the work. While the work of
digging and laying the soil was in progress, accused armed with lathis and dandas reached the place
of incident and asked to stop the work of digging soil from their field although at that time, the soil
was being dug from the field of Tribhuwan. Upon the intervention of the accused, Pradhan Subba
Yadav immediately got the work of digging soil stopped and declared that the remaining work
would be completed after demarcation and thereafter he turned back and started to leave
whereupon the accused surrounded him and assaulted him with lathi and danda. She further stated
that P. W. 1 Raj Kumar Yadav was nearby while P. W. 2 Pradeep Kumar Yadav who had gone to
ease himself near Pokhra, also arrived at the place of incident and both P. W. 1 Raj Kumar Yadav
and P. W. 2 Pradeep Kumar Yadav were also beaten by the accused. Subba Yadav died on the spot
whereafter almost everyone had run away from the place of incident.

18. P. W. 4 Dr. K. N. Pandey who had conducted X-ray of the injuries of P. W. 1 Raj
Kumar Yadav on 7.5.2009 proved the X-ray report (Ext. Ka 2) as well as X-ray plates as material
Ext. Ka 1 to Ext. Ka 4. He testified that small finger of the right hand of P. W. 1 was fractured. P.
W. 5 Dr. A. K. Mishra who conducted the post mortem of the dead body of the deceased Subba
Yadav found the following injuries on his dead body: Post mortem report to be quoted

(I) lacerated wound 2 cm. X 1 cm. muscle deep just above left ear;

(ii) abraded contusion 2 cm. X 6 cm. extending from just above right forehead;

(iii) linear abrasion 10 cm. Above the left nipple;

( iv) contusion 32 cm X 2 cm below the left shoulder joint on the back;

(v) contusion of 22 cm x 2 cm, 4 cm above from right ilius crust on back

(vi) contusion of 10 cm x 2 cm above right side of chest 2 cm above right nipple.

19. He further found that the gall bladder of the deceased was lacerated while left chamber
of his heart was empty and the second chamber contained blood. About two litres of blood was
present in the stomach.

20. He proved the post mortem report of the deceased Subba Yadav as Ext. Ka 6 on
5.5.2009 and further testified that duration of the death was about 1 / 2 a day and the deceased had
died due to excessive bleeding as a result of ante mortem injuries. He further opined that the ante
mortem injuries found on the dead body of the deceased, could have been caused by lathis and
dandas.
8 All. Ram Awadh Pandey & Ors. Vs State Of U.P.
557
21. P. W. 6 Dr. Gayasuddin Khan who had examined injured P. W. Raj Kumar Yadav on
5.5.2009 proved his injury report Ext. Ka 4. The injury report of P. W. 1 Raj Kumar Yadav
indicates following injuries:

1. कुचला हुआ घाव बायें अनातमका के ऊपरी भाग में 2 सी०एम० X 1 सी०एम० जो भारी भोथरा वस्तु द्वारा पहुुँचाया गया था
ताजा घाव था। एक्स-रे बायें हथेली का कराने का सलाह तदया था।।

2 िटा हुआ घाव तसर के ठीक ऊपर 3 सी०एम० X 1 सी०एम० मांस तक महरा भोथरा एवं भारी वस्तु द्वारा पहुुँचाया गया।
ताजा घाव चोट ताजी थी।खोपडी के एक्स-रे की सलाह तदया गया।

3. तछला हुआ घाव दांयी ओर चेहरे की उभार पर 3 सी०एम० लम्बा कडा खुरदुरा वस्तु द्वारा पहुुँचाया हुआ ताजा घाव था।

4. खुला घाव चेहरे के दांयी ओर जबडे के मोड पर 2 सी०एम० X 1 सी०एम० भारी कडे वस्तु द्वारा एक्स-रे चेहरे की सलाह दी
गयी।

5. िूला हुआ घाव जांघ पर दायी ओर 3 X 1 सी०एम० कडा भारी वस्तु द्वारा पहुुँचाया गया प्रतीत होता था। जांघ के एक्स-रे की
सलाह दी गयी।

6. िूला हुआ घाव बाये पैर पर बीच में 3 सी०एम० X 1 सी०एम० कडे भारी वस्तु से उत्पन्न प्रतीत होता था।

चोट नं० 6 साधारण प्रकृतत की है। िेष चोटें चोटों की प्रकृतत की राय एक्स-रे ररपोटष प्राप्त होने के उपरान्त देना सम्भव हैं।
चोटतहल राजकुमार के पहचान तचन्ह और उसके तन०अ० मेरे द्वारा अंतकत और प्रमातणत है। असल इंजरी ररपोटष पत्रावली में संलग्न कागज सं० 6क/2
मेरे समक्ष मेरे लेख व हस्ताक्षर में है तजसकी तस्दीक करता हुँ तजस पर प्रदिष क-4 डाला गया।

उपरोक्त चोटें लाठी डंडे से पहुुँचायी गयी प्रतीत होती है। चोट नं० 1 गम्भीर प्रकृतत की थी जो दातहने अनातमका अंगुली में
अस्थेया के रूप में है।

22. He opined that injury no. 6 was simple in nature and advised X-ray of his other injuries
which was not done.

23. P. W. 7 Dr. R. K. Mahto who had examined the injuries of P. W. 2 Pradeep Kumar
Yadav, proved his injury report Ext. Ka 5. He noted following injuries on the person of Pradeep
Kumar Yadav:

1. lacerated wound of 2 c. m X 0.5 c. m. on the right side of the skull 8.00 c.m.
above the right ear although he had advised X-ray of the aforesaid injury. There is no X-ray report
of the injuries of P. W. 2, Pradeep Kumar Yadav on record.

24. S. I. Om Prakash Srivastava who was posted as S. H. O., P. S.-Jahanaganj on
2/3.6.2009 and to whom investigation of the case was transferred from S. I. Atma Ram, was
examined as P. W. 8. He after completion of the investigation submitted charge-sheet against all
the accused under Sections-302, 323 and 325 I. P. C. and Section-7 of Criminal Law Amendment
Act and proved the same as Ext. Ka 6.

25. P. W. 9 Arvind Kumar Singh proved the check report and the G. D. entry as Ext. Ka 7
and Ext. Ka 8 respectively.
558 INDIAN LAW REPORTS ALLAHABAD SERIES

26. P. W. 10 S. I. Atmaram Yadav who had investigated the case initially testified that he
had performed the inquest of the dead body of the deceased and the inquest report was prepared by
S. I. Uma Shankar Yadav on the spot on his dictation and after completing necessary paper work he
had got the cadaver of the deceased sealed and dispatched for the post mortem. He proved the
inquest report as Ex Ka 9 and the site plan of the place of incident as Ext. Ka 10 which was
prepared by him after inspecting the spot. He in is evidence further gave details of various steps
taken by him during investigation including the arrest of the accused and the recovery of the crime
weapons on the pointing out of the accused. P. W. 10 S. I. Atma Ram Yadav in his cross
examination admitted that he had not recorded the statements of labourers present on the spot and
that soil from an area 2-1/2-3 fit wide was dug out from the accused's chak on which wheat crop
was standing. Thus, the witnesses of facts examined on behalf of the prosecution, proved the
prosecution case as spelt out in the F. I. R., which stands further corroborated from the testimonies
of P. W. 4 Dr. K. N. Pandey, P. W. 6 Dr. Gayasuddin Khan and P. W. 7 Dr. R. K. Mahto who had
conducted X-ray of the injuries of P. W. 1 Raj Kumar Yadav and P. W. 2 Pradeep Kumar Yadav
who had prepared their injury reports and Dr. A. K. Mishra P. W. 5 who had performed the post
mortem of the dead body of the deceased except the evidence of P. W. 9 and P. W. 10 which partly
corroborates the defence version also. The appellants' counsel has failed to convince us that the P.
W. 1 Raj Kumar Yadav and P. W. 2 Pradeep Yadav were not present at the time of incident at the
place of occurrence, as admittedly both of them had received injuries in the incident. The presence
of P. W. 3 at the crime scene at the time of occurrence appears to be doubtful but exclusion of her
evidence from consideration will not affect the present case in any manner.

27. The question which arises for our consideration, is whether the plea of self defence and
the incident being a result of sudden provocation are available to the appellants under the facts and
circumstances of the case and in view of the evidence on record.

28. Before proceeding to examine the aforesaid issues in the light of the evidence on
record, we consider it proper to refer to the provisions of Indian Penal Code which confer right of
private defence to an accused and the law on the issue.

29. For the convenience the relevant provisions of Indian Penal Code which provide right
of private defence to an accused are being reproduced hereinbelow:

 Section 96. Things done in private defence:

 Nothing is an offence which is done in the exercise of the right of private defence.

Section 97. Right of private defence of the body and of property:

Every person has a right, subject to the restrictions contained in Section 99, to
defend -
8 All. Ram Awadh Pandey & Ors. Vs State Of U.P.
559
First. - His own body, and the body of any other person, against any offence
affecting the human body;

Secondly. - The property, whether movable or immovable, of himself or of any
other person, against any act which is an offence falling under the definition of theft, robbery,
mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal
trespass.

Section 98. Right of private defence against the act of a person of unsound
mind, etc:

When an act, which would otherwise be a certain offence, is not that offence, by
reason of the youth, the want of maturity of understanding, the unsoundness of mind or the
intoxication of the person doing that act, or by reason of any misconception on the part of that
person, every person has the same right of private defence against that act which he would have if
the act were that offence.

Section 99. Acts against which there is no right of private defence:

There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant
acting in good faith under colour of his office, though that act may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt,if done, or attempted to be done, by the direction of a
public servant acting in good faith under colour of his office, though that direction may not be
strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse
to the protection of the public authorities.

Extent to which the right may be exercised. - The right of private defence in no
case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1. - A person is not deprived of the right of private defence against an
act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to
believe, that the person doing the act is such public servant.

Explanation 2. - A person is not deprived of the right of private defence against an
act done, or attempted to be done, by the direction of a public servant, unless he knows, or has
reason to believe, that the person doing the act is acting by such direction, or unless such person
states the authority under which he acts, or if he has authority in writing, unless he produces such
authority, if demanded.
560 INDIAN LAW REPORTS ALLAHABAD SERIES

Section 100. When the right of private defence of the body extends to causing
death:

The right of private defence of the body extends, under the restrictions mentioned
in the last preceding section, to the voluntary causing of death or of any other harm to the assailant,
if the offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely :-

First. - Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;

Secondly. - Such an assault as may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such assault;

Thirdly. - An assault with the intention of committing rape;

Fourthly. - An assault with the intention of gratifying unnatural lust;

Fifthly. - An assault with the intention of kidnapping or abducting;

Sixthly. - An assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will be unable to have
recourse to the public authorities for his release.

Section 101. When such right extends to causing any harm other than death:

If the offence be not of any of the descriptions enumerated in the last preceding
section, the right of private defence of the body does not extend to the voluntary causing of death to
the assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary
causing to the assailant of any harm other than death.

Section 102. Commencement and continuance of the right of private defence
of the body:

The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises from an attempt or threat to commit the offence though
the offence may not have been committed; and it continues as long as such apprehension of danger
to the body continues.

Section 103. When the right of private defence of property extends to causing
death:
8 All. Ram Awadh Pandey & Ors. Vs State Of U.P.
561
The right of private defence of property extends, under the restrictions mentioned
in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the
offence, the committing of which, or the attempting to commit which, occasions the exercise of the
right, be an offence of any of the descriptions hereinafter enumerated, namely :-

First. - Robbery;

Secondly. - House-breaking by night;

Thirdly. - Mischief by fire committed on any building, tent or vessel, which
building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

Fourthly. - Theft, mischief or house-trespass, under such circumstances as may
reasonable cause apprehension that death or grievous hurt will be the consequence, if such right of
private defence is not exercised.

Section 104. When such right extends to causing any harm other than
death.__If the offence, the committing of which, or the attempting to commit which, occasions the
exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the
description enumerated in the last preceding section, that right does not extend to the voluntary
causing of death, but does extend, subject to the restrictions mentioned in section 99, to the
voluntary causing to the wrong-doer of any harm other than death.

Section 105. Commencement and continuance of the right of private defence
of property:

The right of private defence of property commences when a reasonable
apprehension of danger to the property commences.

The right of private defence of property against theft continues till the offender has
effected his retreat with the property or either the assistance of the public authorities is obtained, or
the property has been recovered.