# Ram Briksha Yadav v. State of U.P. Opp. Party

- **Citation:** (2023) 1 ILRA 1027
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-18
- **Case number:** Criminal Appeal No. 4062 of 2008
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-briksha-yadav-v-state-of-u-p-opp-party-49562
- **Pages:** 17

## Headnote

Criminal Law- Indian Penal Code- Sections
302 & 149- It was from the Carbine of
Prem Singh that the gunshot injury was
caused to the deceased by the accused
Ram Briksha Yadav after snatching the
Carbine from his gunner-So far as the
injuries caused to PW-1 Rakesh Kumar
Yadav, Jai Prakash, Janardan Yadav are
concerned the evidence of prosecution is
not specific as to who assaulted them and
what was the weapon of assault used by
the accused. None of the accused have
been assigned any specific weapon of
assault. Existence of nearly 400 persons at
the polling booth is otherwise admitted to
the prosecution. Since no specific weapon
of assault is assigned to any of the
accused (other than Ram Briksha Yadav)
we find it difficult to hold any specific
individual guilty of assaulting Rakesh
Kumar Yadav, Janardan Yadav and Jai
Prakash Yadav. For arriving at such
conclusion we also rely upon the fact that
injuries were caused not only to informant
side but also to the members of accused
party.

Where a very large number of persons were
present at the spot and neither any specific
weapon has been assigned to the accused, nor
any specific role of assault has been attributed
to them and the accused side has also sustained
injuries, then it cannot be said that the accused
formed an unlawful assembly with a common
object.

Indian Penal Code, 1860- Section 300-
Sections 302 & 304 Part I- The incident
occurred during the panchayat poll, at the
spur of moment - A fight had erupted
between supporters of two contestant
leading to assault and it was in this heat
of passion that the accused Ram Briksha
Yadav snatched the Carbine of his gunner
and fired upon the deceased. No evidence
exists on record to show that there was a
common object or intent on part of
accused persons to commit the murder of
the deceased Mahatam Yadav. The action
of
Ram
Briksha
Yadav
in
suddenly
snatching the Carbine and firing at the
deceased appears to be his individual act-
at the spur of moment without any premeditation
in
which
the
deceased
sustained gunshot injury at the hands of
accused Ram Briksha Yadav. The act of
firing with an intent to commit the murder
of
the
deceased
appears
unlikely.
Necessary
ingredients
to
attract
4th
Exception to section 300 IPC are clearly
present in the facts of the present case
inasmuch as death is caused; there
existed no pre-meditation; it was a
sudden fight; the offender has not taken
undue advantage or acted in a cruel or
unusual manner, therefore, the case in
hand clearly falls under fourth exception
to section 300 IPC.

As the accused had acted on the spur of the
moment, without pre-meditation and in sudden
heat of passion resulting in a solitary fire arm
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
injury to the deceased, hence the case would
come within the ambit of culpable homicide not
amounting to murder and will be punishable u/s
304 Part I, IPC. (Para 30, 32, 38, 39, 40, 41,
43, 46)

Criminal Appeal partly allowed. ( E-3)

Case Law/ Judgements relied upon:-

St. of U.K Vs. Sachendra Singh Rawat, (2022) 4
SCC 227

## Text

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1 All. Ram Briksha Yadav Vs. State of U.P.
1027
----------
(2023) 1 ILRA 1027
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 4062 of 2008
connected with
Crl. Appeals No. 3081 of 2008, 3082 of 2008,
3083 of 2008 & 3274 of 2008

Ram Briksha Yadav ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri R.P. Srivastava, Sri Amit Kumar Singh, Sri
Anubhav Trivedi, Sri Dilip Kumar, Sri G.S. Hajela,
Sri H.K. Shukla, Sri Nitin Sharma, Sri R.P. Dubey,
Sri Rajiv Lochan Shukla, Sri Ravindra Sharma,
Sri S.K. Dubey, Sri Satish Trivedi, Sri U.S. Shah,
Sri V.S. Mishra, Sri Vikrant Pandey

Counsel for the Opp. Party:
Govt. Advocate, Sri Jitendra Kumar Yadav, Sri
P.C. Srivastava

Criminal Law- Indian Penal Code- Sections
302 & 149- It was from the Carbine of
Prem Singh that the gunshot injury was
caused to the deceased by the accused
Ram Briksha Yadav after snatching the
Carbine from his gunner-So far as the
injuries caused to PW-1 Rakesh Kumar
Yadav, Jai Prakash, Janardan Yadav are
concerned the evidence of prosecution is
not specific as to who assaulted them and
what was the weapon of assault used by
the accused. None of the accused have
been assigned any specific weapon of
assault. Existence of nearly 400 persons at
the polling booth is otherwise admitted to
the prosecution. Since no specific weapon
of assault is assigned to any of the
accused (other than Ram Briksha Yadav)
we find it difficult to hold any specific
individual guilty of assaulting Rakesh
Kumar Yadav, Janardan Yadav and Jai
Prakash Yadav. For arriving at such
conclusion we also rely upon the fact that
injuries were caused not only to informant
side but also to the members of accused
party.

Where a very large number of persons were
present at the spot and neither any specific
weapon has been assigned to the accused, nor
any specific role of assault has been attributed
to them and the accused side has also sustained
injuries, then it cannot be said that the accused
formed an unlawful assembly with a common
object.

Indian Penal Code, 1860- Section 300-
Sections 302 & 304 Part I- The incident
occurred during the panchayat poll, at the
spur of moment - A fight had erupted
between supporters of two contestant
leading to assault and it was in this heat
of passion that the accused Ram Briksha
Yadav snatched the Carbine of his gunner
and fired upon the deceased. No evidence
exists on record to show that there was a
common object or intent on part of
accused persons to commit the murder of
the deceased Mahatam Yadav. The action
of
Ram
Briksha
Yadav
in
suddenly
snatching the Carbine and firing at the
deceased appears to be his individual act-
at the spur of moment without any premeditation
in
which
the
deceased
sustained gunshot injury at the hands of
accused Ram Briksha Yadav. The act of
firing with an intent to commit the murder
of
the
deceased
appears
unlikely.
Necessary
ingredients
to
attract
4th
Exception to section 300 IPC are clearly
present in the facts of the present case
inasmuch as death is caused; there
existed no pre-meditation; it was a
sudden fight; the offender has not taken
undue advantage or acted in a cruel or
unusual manner, therefore, the case in
hand clearly falls under fourth exception
to section 300 IPC.

As the accused had acted on the spur of the
moment, without pre-meditation and in sudden
heat of passion resulting in a solitary fire arm
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
injury to the deceased, hence the case would
come within the ambit of culpable homicide not
amounting to murder and will be punishable u/s
304 Part I, IPC. (Para 30, 32, 38, 39, 40, 41,
43, 46)

Criminal Appeal partly allowed. ( E-3)

Case Law/ Judgements relied upon:-

St. of U.K Vs. Sachendra Singh Rawat, (2022) 4
SCC 227

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. The above appeals have been
preferred by the accused appellants against
the judgment and order dated dated
30.04.2008/02.05.2008,
passed
by
Additional Sessions Judge/F.T.C., Court
No.3, Basti, in Sessions Trial No.257 of
2006 (State Vs. Subhash Yadav and others)
whereby they have been sentenced to life
imprisonment
alongwith
fine
of
Rs.10,000/- each and in default of payment
of fine to undergo one year additional
imprisonment each under Section 302/149
IPC; three years rigorous imprisonment
alongwith fine of Rs.1,000/- each and in
default of payment of fine to undergo three
months
additional
imprisonment
each
under Section 308/149 IPC; one year
rigorous imprisonment each under Section
147
IPC;
three
months
rigorous
imprisonment each under Section 148 IPC;
six months rigorous imprisonment each
under Section 323/149 IPC. Accused Prem
Singh has been convicted and sentenced to
life
imprisonment
alongwith
fine
of
Rs.10,000/- and in default of payment of
fine to undergo one year additional
imprisonment under Section 302 read with
section 114 IPC. All the appeals have been
heard together and are therefore being
disposed of by this common judgment.
Criminal Appeal No. 4062 of 2008 shall be
treated as the leading case.

2. Panchayat elections were notified
in Uttar Pradesh and 25th August, 2005
was the date fixed for cast of votes at Sant
Kabir Nagar. Jai Narain Inter College,
Maur, Sant Kabir Nagar was one of the
polling centre (hereinafter referred to as
''centre') in the district. An incident
occurred at 2.15 pm at this centre in which
one Mahatam Yadav was shot dead and
several others sustained injuries. Two
distinct versions have surfaced in respect of
the incident. We are concerned in the
present set of appeals with the first version
of the incident based on the report of the
deceased's son namely Rakesh Kumar
Yadav.

3. The written report (Ex.Ka.-1) made
by the informant Rakesh Kumar Yadav
(PW-1) on 25.8.2005 states that informant's
sister-in-law, namely Champa Devi w/o Jai
Prakash Yadav was a candidate for the post
of Pradhan while Hanuman Yadav, was one
of the other candidate who tried to rig the
polls. On being opposed, one Manoj Gupta
started abusing the informant. A squabble
ensued between informant and Manoj
Gupta, who was supporting Hanuman
Yadav. Hanuman Yadav then called Ram
Briksha Yadav from Gaighat Polling Booth
who arrived alongwith his gunner Prem
Singh and other associates and started
assaulting the informant's side by baton and
sticks (lathi danda). Those present there
tried to mediate but Ram Briksha Yadav
and his supporters did not pacify, instead
Ram Briksha Yadav exhorted his associates
to eliminate Mahatam Yadav and his family
and snatched his bodyguard's Carbine and
fired at the deceased. The bullet hit the
deceased on his chest; he fell and died.
Supporters of Ram Briksha Yadav also
1 All. Ram Briksha Yadav Vs. State of U.P.
1029
assaulted informant and his uncle Janardan
Yadav, Jai Prakash Yadav and Onkar Yadav.
On account of the injuries caused the
informant
became
unconscious.
This
incident is alleged to have seen by large
number of persons present at the polling
centre. Enraged by the incident members of
public chased the accused Ram Briksha
Yadav and his associates and that is how
the life of informant and his other family
members could be saved. In this incident
Ram Briksha Yadav, Ram Poojan Yadav,
Subhash Yadav, Hanuman Yadav, Manoj
Gupta, Virendra Yadav and gunner Prem
Singh (appellants herein) are implicated as
accused.

4. Pursuant to the above report a first
Information Report (Ex.Ka-5) has been
lodged at 4.20 pm on 25.8.2005 in respect
of the incident occurred at 2.15 pm on the
same date. Investigating Officer recovered
bloodstained and plain earth vide Ex.Ka-3.
Empty cartridge was recovered vide Ex.Ka4.

5. Inquest was held in respect of the
dead body of Mahatam Yadav on 25.8.2005
at 7.30 pm (Ex.Ka.-2) wherein cause of
death is shown as gunshot injury. The dead
body was sealed and sent for postmortem,
which was conducted on the next day i.e.
on 26.8.2005 at 4.00 pm wherein death was
found to be due to shock and hemorrhage
as a result of following ante-mortem
injuries:-

"(1) wound of entry 1x1 cm, 6 cm
medial to right nipple, 4 cm medial to the
mid sternum cavity deep. Blackening
present around wound under lying the 4th
rib fractured. Margin of wound is inverted.

(2) wound of exit 11⁄2 x 11⁄2 cm cavity
deep, 7cm lateral to the midline of back of
5cm distal to the inferior angle of left
scapula, margin everted, between 4th & 5th
rib, the track extending from wound of
entry to right atrium to right lung to left
lung to wound of exit.

(3) Contusion abraded contusion size
2x1 cm over left forearm 4cm around to
wrist.

(4) contusion over left elbow posterior
aspect size 4x2 cm

(4) contusion 4 x 2 cm over dorsum of
right hand

(5) contusion 5x3 cm over anterior
aspect of arm 8 cm proximal to right elbow

(6) contusion 5x2 cm in right leg 25
cm distal to right knee

(7) contusion 12x3 cm over back of
side of chest extending right inferior angle
of scapula to the middle of the posterior
13x2.5 cm extending inferior angle of left
scapula to the middle line of the back

(9) contusion 4x2 cm on left scapula.

(10) contusion 5x3 post. aspect of left
shoulder"

6. Janardan Yadav, Rakesh Kumar
Yadav and Jai Prakash sustained injuries in
the incident and have been medically
examined.
Their
injury
reports
are
contained in Ex.Ka-7, Ex.Ka-8 and Ex.Ka9, which are extracted hereinafter:-

Injuries of Janardan Yadav

"(1) Contusion 4cm x 3cm x red
colour over left side of head above ear.

(2) Contusion 10cm x 2cm x red
colour over back of left side chest on upper
ear.

(3) Contusion 5cm x 0.5 cm x red
colour over left lateral side of chest below
left axilla.

(4) Contusion 10cm x 4cm x red
colour over outer side of dorsum of right
hand and wrist."

Injuries of Rakesh Kumar Yadav
1030 INDIAN LAW REPORTS ALLAHABAD SERIES

"(1) L.W. 3cm x 0.5cm x bone deep
over left side of head above ear. Fresh
bleeding.

(2) L.W. 4 cm x 0.5 cm x bone deep
over back of head. Fresh bleeding.

(3) L.W. 5cm x 0.5 cm x bone deep x
fresh bleeding over front of head at
midline.

(4) Linear abrasion 5cm long, oozing
fresh blood over left malar area of face.

(5) Abrasion 3cm x 1cm x oozing
fresh blood over right side face near outer
canthus of right eye.

(6) Contusion 7cm x 1cm x red colour
over left side front of lower neck and upper
chest.

(7) Contusion 6 cm x 2cm x red colour
over front of right shoulder.

(8) Contusion 5cm x 3cm x red colour
over front of left arm middle part.

(9) Abraded contusion 6cm x 2cm x
red colour over back of middle of right
arm."

Injuries of Jai Prakash Yadav

"(1) Abrasion 1cm x 0.5 cm x oozing
fresh blood over right side of face near
nose.

(2) Abrasion 1.5cm x 0.5 cm x oozing
fresh blood over left side of face near nose.
(3) C/o pain right side chest and both
thighs."

7. Injuries have also been caused to
accused Ram Briksha Yadav, Subhash
Chandra Yadav, Prem Singh and Manoj
Kumar who were examined by DW-1 (Dr.
Yogendra Pratap Singh) then posted as
Medical Officer at Primary Health Centre,
Haisar Bazar. Injuries to accused Ram
Briksha Yadav included two bone deep
lacerated wound on his head, which was on
his vital part and in the opinion of doctor
his condition was critical. In addition,
abraded contusion/contusion was present
on his hand in addition to contusion on
Subhash Chandra Yadav and abrasion on
Manoj Kumar. Testimony of this witness
clearly shows that members of accused
party were also assaulted in the incident.

8. Investigating Officer recorded
statements of various witnesses under
Section
161
Cr.P.C.
and
ultimately
submitted two chargesheets against the
accused on 24.10.2005 and 25.1.2006. Ram
Poojan Yadav and Virendra Yadav were
shown as accused in the chargesheet
submitted on 25.1.2006, whereas all others
were implicated in the first chargesheet.
Consequently, two separate sessions trial
were registered i.e. Sessions Trial Nos.257
of 2006 and 257-A of 2006. Accused
appellants were charged of offences under
Sections 147, 148, 149, 308, 302, 323, 504,
506
IPC,
Section
7
Criminal
Law
Amendment Act and Section 134-B and
135 of the Representation of the People
Act, Police Station Dhanghata, District
Sant Kabir Nagar. All the accused denied
the charges levelled against them and
demanded trial.

9. The prosecution in order to prove
its case has relied upon the documentary
evidence in the form of written report
Ex.Ka-1; First Information Report as
Ex.Ka-5; recovery memo of bloodstained
and plain earth as Ex.Ka-3; recovery memo
of empty cartridge as Ex.Ka-4; injury
report of Janardan Yadav as Ex.Ka-7;
injury report of Rakesh Yadav as Ex.Ka-8;
injury report of Jai Prakash as Ex.Ka-9;
inquest report as Ex.Ka-2 and postmortem
as Ex.Ka-10.

10. The prosecution in addition to
documentary evidence also produced oral
testimony
of
following
prosecution
witnesses:
1 All. Ram Briksha Yadav Vs. State of U.P.
1031

(i) PW-1 (Rakesh Kumar) is the first
informant. In his examination-in-chief, he
stated that 25th August, 2005 was the
polling day for panchayat elections and his
sister-in-law (Bhabhi) Champa Devi w/o
Jai Prakash was a contestant for the post of
Pradhan. Accused Hanuman Yadav was
also a contestant for the same office. Votes
were being cast at Jai Narain Inter College,
Maur. It is alleged by the witness that
Hanuman Yadav tried to rig the polls by
casting bogus votes, which he opposed.
Manoj Gupta, a supporter of Hanuman
Yadav started abusing the witness. An
altercation started between PW-1 and
Hanuman Yadav. Hanuman Yadav left the
booth and brought with him accused Ram
Briksha Yadav from Gaighat Polling Booth.
His brother Ram Poojan Yadav, nephew
Subhash Yadav, Virendra Yadav, Gunner
Prem Singh were also with Ram Briksha
Yadav. They came to Jai Narain Inter
College. As soon as they arrived they
indulged in violence. Supporters of Ram
Briksha Yadav were carrying batons and
sticks (lathi danda). Those present at the
booth tried to defuse but Ram Briksha
Yadav in an infuriated state exhorted to
finish the family of Mahatam Yadav and
snatched the Carbine of his gunner and
with an intent to kill Mahatam Yadav fired
at him. The bullet hit on his chest.
Mahatam Yadav fell on the spot and died.
The supporters of Ram Briksha Yadav,
namely Ram Poojan, Subhash Yadav,
Virendra Yadav, Hanuman Yadav, Manoj
Gupta assaulted PW-1 and his associates. In
this violence PW-1, his uncle Janardan
Yadav, elder brother Jai Prakash Yadav also
sustained
injuries.
PW-1
also
lost
consciousness
for
few
minutes.
The
members of public present at the booth
acted in retaliation by throwing bricks and
stones as well as chased the accused party
with batons and sticks (lathi, danda) due to
which the informant party could be saved.
PW-1 has moreover stated that there was no
enmity between him and Ram Briksha
Yadav. However, in the previous elections
Ram Briksha Yadav was annoyed with his
father. PW-1 has verified the written report
written in his own handwriting at police
station Dhanghata on the basis of which the
FIR was registered. PW-1 was medically
examined after registration of FIR at
Primary Health Centre. The incident was
allegedly seen by Janardan Yadav, Onkar
Yadav, Jai Prakash Yadav, Lakshman s/o
Jhangur, Chandrajeet Pathak etc.

Statement of PW-1, on the aspect of
casting of bogus votes, is extracted
hereinafter:

"सुरक्षा कग्रमिय ों से मैने इस बात की ग्रशकायत
ग्रक हनुमान फजी व ट् डलवा रहे है नही ग्रकया
क्य ोंग्रक फजी व ट् के समय मैं मौजूद नही था।

मुझे यह बात ग्रक फजी व ट् देने वाले पुरूष
थे ग्रक स्त्री, नही पता। फजी व ट्र ग्रकस गाोंव के
ग्रनवासी/ग्रनवाग्रसनी थे, नही पता। फजी व ट् के बारे
में हनुमान फजी व ट् डलवा रहे थे, यह बात एजेन्
जनादिन यादव ज मेरे िािा भी है, से पता िली।

एजेन् जनादिन यादव ने उक्त बात मुझे गेट्
के बाहर आकर नही बताई, अिर से ही आवाज
दी।

आवाज सुनकर मेरे पररवार के 2-3 ल ग
अिर जाने लगे, पुग्रलस वाले उस समय हमे अिर
नही जाने ग्रदए।

फजी मत देने वाला व ट्र पकडा गया ग्रक
नही, नही जानता।

घट्ना के बाद भी नही पता िला ग्रक फजी
व ट् देने वाला पकडा गया ग्रक नही। मैने पता ही
नही ग्रकया।''

During cross examination PW-1 has
admitted that cross case under sections
147/148, 308 IPC was registered against
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
him after 16 days in which he was in jail
for a week. Onkar Yadav, Jai Prakash
Yadav, Janardan Yadav, Amarjeet Yadav
were also accused in this case. PW-1
claimed to be a constable in Indian Army
and was called guardsman. At the time of
incident he was posted at Baramula in 46
R.R. and was on 14 days casual leave. PW1 has stated that Ram Briksha, Ram Poojan,
Subhash, Virendra were residents of village
Tikara, which was at a distance of 1 km
from village Maur. The accused also had a
house in village Karampur and its polling
booth was at Gaighat. He has feigned
ignorance about his father being accused of
offence under sections 395/397. His father
was also an accused under section 307 IPC
in the case of State vs. Pahalwan Singh and
others. He claims to be the original resident
of village Kanchanpur and has agricultural
field also in village Maur. He has stated
that together with Prem Singh the number
of associates of Ram Briksha Yadav was
between 20-25. PW-1 recognized only 3-4
of them. Name of other persons who
indulged in violence and had assaulted
them were not ascertained. Janardan and
father of PW-1, Mahatam Yadav, were the
polling agents of Champa Devi. As per him
the altercation took place at the poling
booth and not at a distance of 200 mtr. He
has denied having received permission to
enter the polling booth. He has also denied
the knowledge of two life threatening
injuries caused to Ram Briksha Yadav or
that he was admitted in hospital for long.
PW-1 also admitted that no complaint was
made to security personnel about cast of
bogus votes.

Since PW-1 was not present at the
time of cast of such votes he also had no
knowledge whether bogus votes were of
ladies or gents. He claims that information
about cast of bogus votes was received
from agent Janardan Yadav, who was his
uncle. Janardan Yadav had informed him of
this fact from inside the polling booth. He
did not know whether person casting bogus
votes were apprehended or not. He has
denied the suggestion that the allegation of
bogus votes was made so as to give colour
to his complaint. PW-1 has clearly admitted
that polling booth of village Tikara, to
which Ram Briksha Yadav belonged, was
also at Jai Narain Inter College, Maur and
Ram Briksha Yadav and his family
members were to cast their votes at Jai
Narain Inter College, Maur. He has also
seen Ram Briksha Yadav and his family
members earlier in the day at the polling
booth. He claims that they came to cast
vote and left thereafter. He has however
denied the suggestion that Ram Briksha
Yadav had come to the polling booth to cast
his vote at the time of incident. He has also
denied the suggestion that Ram Briksha
Yadav was beaten and that is why he could
not cast vote. PW-1 has also stated that
Ram Briksha Yadav had come to cast vote
at 10.00. The witness, in his cross stated
that at 10.00 only family members of Ram
Briksha Yadav had come. The family
members who came to the polling booth at
10 included wife of Ram Poojan and no
male member from the family of Ram
Briksha Yadav had come to cast vote at 10.
He denied that Ram Briksha Yadav as well
as none of his family members could cast
vote on that day. PW-1 has also denied
having knowledge of the persons who
threw stones and bricks at the accused or
assaulted them with lathi danda as he
himself was injured. He denied that these
persons were criminals, who had been
called by him or that there was a plan not to
allow Ram Briksha Yadav to cast vote. PW1 lastly denied that he had assaulted Ram
Briksha Yadav or his associates.

(ii) PW-2 (Janardan Yadav) has stated
that wife of Hanuman Yadav was a
1 All. Ram Briksha Yadav Vs. State of U.P.
1033
contestant for the post of Pradhan but her
name was not known. He has stated that
their opponents were trying to cast bogus
votes. Seeing it he objected to cast of votes
by relative of Hanuman Yadav, who had
came from Gorakhpur. Accused Manoj
Gupta, who was supporting Hanuman
abused PW-2 and his elder brother
Mahatam. Accused Hanuman claimed that
he was going to Gaighat and would bring
Ram Briksha Yadav with him. On the
calling of Hanuman, Ram Briksha Yadav
allegedly came with his associates. They
came at 2 pm. Accused Ram Briksha Yadav
allegedly exhorted to finish the family
members of Mahatam Yadav. When Ram
Briksha tried to enter from the gate he was
stopped by the constable but Ram Briksha
pushed him with baton and the constable
returned. After opening the gate Ram
Briksha entered and seeing Mahatam he
snatched Carbine of his gunner Prem Singh
and aimed at Mahatam Yadav and shot him
dead. Supporters of Ram Briksha then
assaulted PW-2 and his associates with
lathi danda in which Jai Prakash and
Rakesh sustained injuries. The members of
public retaliated and chased away Ram
Briksha and his associates with lathi danda.

During cross examination PW-2 stated
that apart from the wife of Hanuman there
were 12 other contestants for the post of
Pradhan. Each contestant had three polling
agents. None of the other polling agents
objected to Hanuman because PW-2 and his
associates had already objected to the cast of
bogus votes. Polling agents of other candidates
also protested but their names have not been
disclosed. This witness has not produced any
document to show that he was a polling agent.
After information of incident was received, all
senior officers including S.P., D.M., C.O. came
on the spot and conducted investigation. PW-2
was also medically examined at about 05.00
PM alongwith Rakesh.

Statement of PW-2, on the aspect of
cast of bogus votes is extracted hereinafter:

"ग रिपुर वाला ज व ट्र व ट् देने आया
था, व ग्रजसे मैने पहिाना वह 1 पी.एम. के करीब
घट्ना थी।

इस फजी मतदान की ग्रशकायत मैने
मतदान अग्रिकारी से ग्रलखित नहीों ग्रकया,
मौखिक ग्रशकायत ग्रकया।"

(iii) PW-3 (Jai Prakash) has stated that
his wife Champa was contestant for the
post of Pradhan and wife of Hanuman was
also a contestant for the same post. He has
stated that altercation regarding cast of
bogus votes occurred with Manoj Gupta
who was a supporter of Hanuman Yadav.
He has supported the prosecution case that
Hanuman after such altercation brought
Ram Briksha Yadav and Ram Briksha
Yadav snatched the Carbine of his gunner
and shot dead Mahatam Yadav. He also
claims to have sustained injury which was
examined at about 05.00 PM.

(iv)
PW-4
(Onkar)
stated
that
25.08.2005 was the date for casting of
votes. His elder brother's daughter-in-law
Champa was contestant for the post of
Pradhan and wife of Hanuman was also
contestant. On the polling day bogus votes
were also casted. On account of it there was
altercation between his brothers Mahatam
& Janardan, who were polling agent, and
Manoj Gupta, who was supporter of
Hanuman. Hanuman then brought Ram
Briksha Yadav from Gaighat. Ram Briksh
Yadav came alongwith Ram Poojan Yadav,
Subhash Yadav, Virendra Yadav, Hanuman
and Gunner Prem Singh. Immediately after
they arrived a scuffle began and Ram
Briksha
exhorted
to
kill
family
of
Mahatam. Ram Briksha Yadav snatched the
Carbine of his gunner and fired on the chest
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
of Mahatam, who fell and died. The
accused also beat PW-4, his nephew
Rakesh, Janardan and Jai Prakash.

(v) PW-5 is the Head Moharrir, who
has proved the chik FIR in Case Crime
No.498/05 and G.D. Entry therein.

(vi) PW-6 is Dr. Yogendra Pratap
Singh, posted at C.H.C. Haisar Bazar. He
has verified the injury reports of Janardan
Yadav, Rakesh Kumar Yadav, Jai Prakash,
Ram Briksha Yadav and Subhash Chand.

(vii) PW-7 is Dr. Rakesh Kumar
Verma, who has conducted autopsy of
deceased
Mahatam
and
proved
the
postmortem report.

(viii) PW-8 is Sub Inspector, Vansh
Bahadur Yadav, who was the Investigating
Officer in Case Crime No.498/05. He has
verified the inquest report as also other
police papers. He has arrested Ram Briksha
Yadav, Subhash, Hanuman, Manoj Gupta
and gunner Prem Singh. He has also
recovered the Carbine from gunner Prem
Singh. No recovery memo, however, in
respect of the Carbine was prepared and
only endorsement was made in the case
diary. The Carbine has been produced
during the course of trial wherein 27 live
bullets were found in it. This witness has
denied that the gunner had given any other
written report apart from the one existing
on record. He admitted that similar bullet is
used in .9 mm pistol and Carbine. He has
also admitted that bullet was not sent for
forensic report.

During
cross
examination
PW-8
denied that the statement was given to him
by PW-1 that Prem Singh was not involved
in violence on the relevant date.

(ix) PW-9 (Arun Kumar Singh) is the
S.H.O. who was entrusted investigation of
present case after the proceedings were
transferred from Sant Kabir Nagar to
Gorakhpur. He has specified the dates when
he had recorded the statement of witnesses.

11.

On
the
basis
of
above
incriminating material produced by the
prosecution the statement of accused
appellants were recorded under section 313
Cr.P.C. All the accused have denied the
accusations made against them and have
stated that informant Rakesh Kumar Yadav
was close to Bhal Chandra Yadav, who was
the then Member of Parliament from
Bahujan Samaj Party and, therefore, due to
his interference the accused have been
falsely implicated. It is also alleged that
papers have been prepared under the
influence exercised by the Member of
Parliament. The accused have also stated
that they came to cast vote and as soon as
they reached the polling booth they were
attacked by Mahatam, Onkar, Janardan etc.
in which they sustained injuries and as the
public turned violent the Gunner Prem
Singh fired to save them and the bullet
accidentally hit the deceased.

12. On behalf of defence the accused
have
produced
witnesses,
namely,
Yogendra Pratap Singh (DW-1), Ravindra
Singh (DW-2), Moharrir Ram Ashish
Bhartiya (DW-3), Ashok Kumar Singh
(DW-4), Dharam Deo Singh (DW-5) and
Shriram (DW-7).

13. On the basis of above evidence
led during trial the court below has found
the charges levelled against the accused
appellants to be proved beyond reasonable
doubt and consequently has convicted them
under Section 302 IPC alongwith other
sections and sentenced to life imprisonment
with lesser punishments.

14. Learned counsel for the accused
appellants submitted that the accused
appellants have been falsely implicated in
the matter on account of political enmity. It
is urged that the allegation against them of
1 All. Ram Briksha Yadav Vs. State of U.P.
1035
rigging the polls by cast of bogus votes is
baseless since no complaint was made, in
that
regard,
before
the
polling
officials/security personnel and no details
have otherwise been furnished at the stage
of trial. It is then contended that Ram
Briksha Yadav was a voter at Jai Narain
Inter College, Maur and the entire story of
his having been brought by Hanuman
Yadav
is
nothing
but
figment
of
imagination. It is argued that the informant
and his supporters actually attacked the
accused appellants and the firing by the
gunner was only in self defence, without
any intention or knowledge to kill the
deceased. Further submission is that no
specific role has been assigned to anyone
(except Ram Briksha Yadav) of assaulting
the injured or the deceased. No weapon of
assault is otherwise attributed to the
appellants. It is lastly urged that there was
no pre-meditation and the incident occurred
at the spur of moment.

15. Smt. Archana Singh, A.G.A. for
the State as well as Sri P. C. Srivastava,
learned counsel for the informant states that
the accused appellants have acted with
deliberate intent to assault and kill the
deceased in a broad day light incident.
They submit that accused Hanuman tried to
rig the polls and on being objected to by the
informant brought Ram Briksha Yadav who
snatched the Carbine of his gunner and shot
dead the deceased. The accused were
members of unlawful assembly who acted
with
common
object
in
killing
the
deceased. Argument is that the court below
has rightly appreciated the evidence led by
the prosecution to convict and sentence the
accused which merits no interference.

16. We have heard learned counsel for
the parties and have perused the materials
brought on record, including the original
records of the court below.

17. From the evidence led by the
prosecution and defence this much is clear
that panchayat elections were being held
and 25th August, 2005 was the polling date
at Sant Kabir Nagar. The contestants on the
post of Pradhan included daughter-in-law
of the deceased, namely Champa Devi w/o
Jai Prakash Yadav as well as wife of
Hanuman Yadav. There was no prior
enmity between the family of the deceased
and the main accused Ram Briksha Yadav
which fact is admitted to PW-1 Rakesh
Kumar Yadav. No evidence of prior enmity
is otherwise available on record. Although
it is alleged that in the previous election
differences
had
arisen
between
the
deceased and accused Ram Briksha Yadav,
but such differences are common amongst
candidates
and
their
family
members/supporters at the time of poll,
which cannot be equated with enmity.

18. The genesis of the incident as per
prosecution is an altercation between
Manoj Gupta (supporter of Hanuman
Yadav) and the first informant as it was
perceived that Hanuman Yadav is rigging
the polls by casting bogus votes. This
genesis needs to be scrutinized with
reference to the evidence available on
record.

19. PW-1 has admitted in his
testimony
that
he
had
no
personal
knowledge of cast of bogus votes at the
instance of Hanuman Yadav. The basis of
information about cast of bogus votes is the
information received from polling agent
Janardan Yadav (PW-2). PW-1 claims that
Janardan
Yadav
(PW-2)
gave
this
information from within the polling booth.
1036 INDIAN LAW REPORTS ALLAHABAD SERIES

20. So far as testimony of Janardan
Yadav (PW-2) is concerned he has admitted
that no protest or complaint was made to
any election officer or security personnel
present at the polling booth regarding cast
of bogus votes. He alleges that one relative
of Hanuman Yadav from Gorakhpur was
trying to cast vote. However, neither his
name has been disclosed nor his identity is
established.
No
other
evidence
has
otherwise surfaced on record to form an
opinion that polls were being rigged. There
were twelve other contestants also in the
fray but none has come forward with such
grievance. The evidence with regard to cast
of bogus votes, therefore, does not seem
reliable as material particulars in that
regard are missing. There was no complaint
otherwise made to the authorities. Evidence
at best suggests that there were some
apprehension in the minds of the informant
or PW-2 about cast of bogus votes by the
faction of Hanuman Yadav. However, the
prosecution has failed to bring on record
the evidence that bogus votes were
attempted to be cast in the polls or that
Hanuman Yadav tried to rig the polls.

21. The prosecution then alleges that
upon being objected to by informant and
his family members Hanuman Yadav left
saying that he would bring Ram Briksha
Yadav and that he actually returned to the
polling booth with Ram Briksha Yadav and
his supporters. As against this version of
prosecution the other version is that Ram
Briksha Yadav had come to cast his vote
alongwith his family members.

22. There is also an issue on fact as to
whether polling booth for accused Ram
Briksha Yadav and his family was at Jai
Narain Inter College, Maur or it was at
Gaighat. This may help in understanding
whether Ram Briksha Yadav had arrived
with an intent to cast his vote or with an
intent to take revenge for Hanuman Yadav
from the informant side.

23. The Investigating Officer has not
collected any evidence regarding the centre
where accused Ram Briksha Yadav and his
family members had to cast their vote.

24. The evidence of PW-1 is relevant
in this context. In his cross examination
PW-1 has clearly stated that polling booth
of village Tikara of Ram Briksha Yadav
was at Jai Narain Inter College, Maur. His
version with regard to cast of votes by Ram
Briksha Yadav and his family members is
extracted hereinafter:

" रामवृक्ष यादव क गाोंव ग्रट्घरा का भी
मतदान केन्द्र जयनरायन इोंट्र कालेज मौर में
था।

मैं मतदान केन्द्र पर सुबह से था। रामवृक्ष व
उनके पररवार वाले भी व ट्र है, ग्रजन्हे ग्रट्करा
मतदान केन्द्र पर व ट् देना था।

इस मारपीट् में घट्ना के पूवि रामवृक्ष व
उनके पररवार वाल क मतदान केन्द्र पर देिा
था। वे व ट् डालने आए थे। व ट् डालकर वे िले
गए थे।

यग्रद यह कहा जाय ग्रक मैं झूठ ब ल रहा हाँ
गलत है। यह भी गलत है ग्रक घट्ना के समय
रामवृक्ष अपने पररवार के साथ व ट् डालने आए
थे, गलत है।

यह भी गलत है ग्रक इसी दौरान हमने
रामवृक्ष क मारा। यह भी गलत है ग्रक इसी
कारण रामवृक्ष व उनके पररवार के ल ग व ट्
नही दे सके।

रामवृक्ष व ट् करीब 10 बजे देने आए थे।

ग्रफर कहा ग्रक 10 बजे रामवृक्ष नही बखल्क
उनके पररवार के ल ग व ट् देने आए थे। 10 बजे
रामवृक्ष के पररवार में रामपूजन की औरत थी,
उनके साथ एक लडकी थी, पुरूष ों में रामवृक्ष
1 All. Ram Briksha Yadav Vs. State of U.P.
1037
के घर का क ई व्यखक्त 10 बजे व ट् देने नही
आया।

यह कहना ग्रक रामवृक्ष के घर का क ई
व्यखक्त या औरत उस ग्रदन व ट् नही दे पाया था
गलत है। "

25. Although the prosecution case is
that polling booth for accused Ram Briksha
Yadav was at Gaighat but the above
extracted statement of PW-1 clearly shows
that the polling booth for Ram Briksha
Yadav was at Jai Narain Inter College,
Maur. PW-1 moreover claims to have seen
Ram Briksha Yadav and his family
members coming to the booth earlier in the
day for cast of their votes but they
allegedly returned, thereafter. He then
stated that Ram Briksha Yadav had come to
cast vote at about 10 AM. However, PW-1
later stated that at 10 AM other members of
family of Ram Briksha Yadav had come to
cast vote including wife of Ram Poojan but
no male member of the family of Ram
Briksha Yadav had come to cast vote. The
statement of PW-1, read as a whole, clearly
gives an indication that Ram Briksha Yadav
alongwith family members were to cast
vote at Jai Narain Inter College, Maur. It
has also come in evidence of PW-1 that
ladies of the family of accused Ram
Briksha Yadav had come to cast vote at
about 10 AM in the morning but Ram
Briksha Yadav had not come to Jai Narain
Inter College to cast his vote. Once it is
admitted to PW-1 that Ram Briksha Yadav
had to cast his vote at Jai Narain Inter
College and he had not cast his vote earlier,
his arrival at the polling booth can be for
the purpose of casting his vote. In such a
situation his presence at Jai Narain Inter
College, Maur cannot be frowned upon.

26. The prosecution case that Ram
Briksha Yadav had to cast his vote at
Gaighat has not been proved by adducing
any cogent evidence in that regard. In such
circumstances, the possibility of Ram
Briksha Yadav and his family members
coming to Jai Narain Inter College for
casting their vote cannot be ruled out.

27. We are thus not inclined to accept
the prosecution version that Ram Briksha
Yadav was called at Jai Narain Inter
College, Maur by Hanuman Yadav on
account of his fight with the first informant
due to cast of bogus votes. We have already
observed that the prosecution has failed to
establish that polls were being rigged by
the faction of Hanuman Yadav due to cast
of bogus votes. Once that be so, the very
genesis of incident, as per prosecution, is
not established.

28. It is a matter of common
knowledge that atmosphere in villages
remain usually charged during elections to
the post of Pradhan and differences often
arise due to varying perception about the
manner of polls. The apprehension that the
polls were being rigged could have been
generated by one faction even without there
being
any
actual
basis
for
such
apprehension.
Usual
altercations
or
differences is very common in such
circumstances.

29. The differences in perception
regarding fairness in holding of polls
leading to heated arguments; hurling
abuses; scuffle etc. are not very unusual.
We may also note that about 400 persons
were actually present at the polling booth.
In response to a query, PW-1 in his crossexamination has stated that about 400
persons were present at the polling booth.
He also stated that about 25 persons had
assaulted them alongwith Ram Briksha
Yadav but he recognized only 3-4 of them.
1038 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The evidence on record suggests
that it is in the above charged atmosphere
that a fight erupted, at the spur of moment,
on spot, between the two factions on
account of perceived attempt by the faction
of Hanuman Yadav to rig the polls and its
countering by the side of informant. In this
fight members of both sides have sustained
injuries in addition to Mahatam Yadav
getting killed.

31. Counter versions have surfaced
about which side was the aggressor.
Evidence is not very specific on this aspect
except the manner in which Mahatam
Yadav got killed.

32. It transpires from the evidence
available on record that in the presence of
about 400 persons at the polling booth the
supporters of two contestants to the office
of Pradhan fought with each other resulting
in injuries being caused to both the sides. It
is in this charged atmosphere and at the
spur of moment that the accused Ram
Briksha Yadav apparently snatched the
Carbine of his gunner and fired at the
deceased.

33. The prosecution witnesses of fact,
namely PW-1 to PW-4, have specifically
stated that the deceased was shot at by the
accused Ram Briksha Yadav. The presence
of these witnesses at the spot is not
seriously doubted. The prosecution case is
also supported by the postmortem report in
which a gunshot injury is shown to have
been caused to deceased Mahatam Yadav,
which led to his death. The Carbine
available with gunner Prem Singh has been
produced at the trial wherein 27 live bullets
have been found intact. It has also come in
evidence that 28 live bullets were loaded in
the Carbine. This also supports the
prosecution case that it was from the
Carbine of Prem Singh that the gunshot
injury was caused to the deceased by the
accused Ram Briksha Yadav after snatching
the
Carbine
from
his
gunner.
The
prosecution evidence in that regard is
consistent and we find no reason to
disbelieve the evidence of prosecution
witnesses as also the statement of accused
Prem Singh under section 313 Cr.P.C. that
the fatal gunshot injury was caused to the
deceased by Ram Briksha Yadav.

34. On behalf of accused Prem Singh
his brother Ravindra Singh has entered the
witness box as DW-2 and has stated that
accused Prem Singh was threatened to own
the responsibility of firing at the deceased
or else his dead body would come out of
jail. Complaints in that regard were
allegedly sent to police authorities.

35. We have also considered the
testimony of three other defence witnesses
produced on behalf of accused Ram
Briksha Yadav, namely Ashok Kumar
Singh (DW-4), Home Guard Dharm Dev
Singh (DW-5) and Sri Ram (DW-6) as per
whom the accused was assaulted by the
informant side as soon as he entered the
polling booth to cast his vote and it was his
gunner Prem Singh who fired to save Ram
Briksha Yadav.

36. The defence version about Prem
Singh having fired at the deceased does not
appear trustworthy. DW-4 in his statement
has virtually set out the defence version and
has admitted that he not only knows the
accused
Ram
Briksha
Yadav
since
childhood but he has close relations with
him.