# Ram Sajeevan Yadav & Anr v. State of U.P

- **Citation:** (2022) 8 ILRA 640
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-05
- **Case number:** Criminal Appeal No. 967 of 2008
- **Bench:** Ramesh Sinha, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sajeevan-yadav-anr-v-state-of-u-p-48929
- **Pages:** 19

## Headnote

Criminal Law- Indian Penal Code, 1860-
Sections 34, 302 & 304 - Part II- The
appellant, Kicchi @ Ram Surat, who was
8 All. Ram Sajeevan Yadav & Anr. Vs. State of U.P.
641
armed with a ballam, inflicted only one
blow on the chest of the deceased,
Auhardeen from ballam which, according
to postmortem report, Ex. Ka-9 ultimately
proved to be cause of his death. The other
co-accused, namely, Kundan Badhai along
with Gaya Chamar and Ram Sajeevan
Yadav have inflicted injuries to the injured
persons, namely, Adalatdeen and Ramu by
lathi only-This fact stands corroborated by
the postmortem report of the deceased,
Ex. Ka-9 wherein only one punctured
wound has been reported on the body of
the deceased-There is nothing on record
to show and establish that the appellants,
namely,
Ram
Sajeevan
Yadav,
Gaya
Chamar and Kundan Badhai had any prior
meeting of mind with the appellant, Kicchi
@ Ram Surat who had given fatal blow on
the chest of the deceased, Auhardeen to
kill the deceased. There is nothing on
record to suggest that common intention
amongst appellants developed on the
place of occurrence-The incident of killing
of Auhardeen appears to have occurred in
a spur of moment wherein only one blow
from ballam was given by the appellant,
Kicchi @ Ram Surat to the deceased. The
fact that he had knowledge that such blow
from a sharp edged weapon could cause
death of the deceased, cannot be ruled out
in the facts of this case. Thus, in our
considered view, the appellant, Kicchi @
Ram Surat is liable to be convicted under
Section 304 Part-II I.P.C.

Where only a single blow has been inflicted by
one accused, on the spur of the moment, to the
deceased resulting in the fatal injury then it
cannot
be
said
that
the
offence
was
premeditated and with common intention, but
as the accused had knowledge that the act
could result in the death of the deceased hence
the offence would be of culpable homicide not
amounting to murder punishable under Section
304 Part II of the IPC instead of Section 302
IPC.

Indian Penal Code, 1860- Sections 34 &
302- So far as the case of the appellants,
Gaya Chamar, Ram Sajeevan Yadav and
Kundan
Badhai
are
concerned
their
conviction under Section 302 I.P.C. with
the aid of Section 34 in want of any
evidence of sharing common intention
with the appellant, Kichhi to kill the
deceased, Auhardeen can also not be
upheld. Resultantly, the conviction and
sentence awarded to the appellants,
namely,
Ram
Sajeevan
Yadav,
Gaya
Chamar and Kundan Badhai under Section
302 read with Section 34 I.P.C. deserves
to be set aside. Their case, at most, falls
under Sections 323/34 I.P.C. for which
they
deserve
to
be
convicted
and
sentenced.

As the other co-accused who were wielding
lathis did not assault the deceased, but only
caused simple injuries to other injured, hence in
absence of any evidence of common intention
with the other accused to commit murder, the
case of the co-accused would fall within the
parameters
of
offences
punishable
under
Section 323/34 of the IPC.

Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities)Act, 1995-
Sections 3(i)(x) and 3(2)(v)-No caste
based insult and intimidation by the
appellants given with intent to humiliate
the first informant, PW-1, Mansharam,
deceased-Auhardeen and injured persons,
in any place within public view. Therefore,
mere fact that the first informant, PW-1Mansharam, deceased-Auhardeen and the
injured
persons,
belonged
to
the
scheduled caste community, per se, does
not constitute offence under Sections
3(i)(x) and 3(2)(v) S.C./S.T. Act.

As there is no evidence to show that any caste
based insult and intimidation was given by the
accused to the deceased and injured persons in
public view hence no offence under Section
3(i)(x) and 3(2)(v) of the S.C./S.T Act is made
out against the accused.

Scheduled
Tribes
(Prevention
of
Atrocities) Rules, 1995 - Rule 7- In terms
of Rule 7 of the Scheduled Castes and the
Scheduled
Tribes
(Prevention
of
Atr

## Text

_Characters 0–39,987 of 62,798. This is a partial read: ask again with offset=39987 for what follows._

640 INDIAN LAW REPORTS ALLAHABAD SERIES

36. The Supreme Court in Major
Singh & Anr. vs. State of Punjab : AIR
2015 SC 2081 held that in order to attract
conviction under Section 304-B of IPC the
prosecution should adduce evidence to
show that "soon before her death" the
deceased was subjected to cruelty or
harassment.
There
must
always
be
proximity and nexus between the effects of
cruelty based on dowry demand and the
resultant death.

37. In this case, the prosecution has
not also been able to prove the case beyond
reasonable doubt and to discharge its initial
burden. Therefore, a presumption under
section 113-B of the Indian Evidence Act
does not arise.

38. In Baijnath & Ors. vs. State of
Madhya Pradesh : (2017) 1 SCC 734, the
Supreme Court reiterated that mere factum
of unnatural death in matrimonial home
within seven years of marriage is not
sufficient to convict the accused under
Sections 304B/498A. It is only when
prosecution proves beyond doubt that the
deceased (wife of the accused) was
subjected
to
cruelty/harassment
in
connection with dowry demand soon before
her death, the presumption under Section
113-B of the Evidence Act, 1872 can be
invoked.

39. The Supreme Court in Arvind
Singh vs. State of Bihar : AIR 2001 SC
2124 observed that bride-burning and
dowry deaths are no doubt a menace to
society and need to be sternly dealt with
but at the same time it does not mean that
while dealing with such cases the Courts
should ignore the fundamental principles of
fair trial and hold the accused guilty on
mere probability or possibility of their
involvement in the offence.

40. Under such circumstances, the
judgment and order dated 25.1.2014 so far
as it convicts the appellant-Ajeet Kumar in
Criminal Appeal No.608 of 2014 cannot be
sustained in law and, therefore, is quashed
and set-aside. Also, we find that there is no
ground for reversing the judgment dated
25.1.2014 insofar as it had acquitted Yad
Pal and Veda Devi.

41. Criminal Appeal No.608 of 2014,
accordingly, stands allowed and Criminal
Appeal No.34 of 2019 stands dismissed.
The appellant of Criminal Appeal No.608
of 2014, who is in jail, may be released
forthwith, if he is not required in any other
criminal case.
----------
(2022) 8 ILRA 640
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.08.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 967 of 2008
with
Criminal Appeal No. 1078 of 2008
with
Criminal Appeal No. 1202 of 2008

Ram Sajeevan Yadav & Anr. ....Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
S.B. Singh, Sri Mohd. Mustafa Khan, Sri
Prabhakar Singh, Sri Shiv Shankar Singh

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Penal Code, 1860-
Sections 34, 302 & 304 - Part II- The
appellant, Kicchi @ Ram Surat, who was
8 All. Ram Sajeevan Yadav & Anr. Vs. State of U.P.
641
armed with a ballam, inflicted only one
blow on the chest of the deceased,
Auhardeen from ballam which, according
to postmortem report, Ex. Ka-9 ultimately
proved to be cause of his death. The other
co-accused, namely, Kundan Badhai along
with Gaya Chamar and Ram Sajeevan
Yadav have inflicted injuries to the injured
persons, namely, Adalatdeen and Ramu by
lathi only-This fact stands corroborated by
the postmortem report of the deceased,
Ex. Ka-9 wherein only one punctured
wound has been reported on the body of
the deceased-There is nothing on record
to show and establish that the appellants,
namely,
Ram
Sajeevan
Yadav,
Gaya
Chamar and Kundan Badhai had any prior
meeting of mind with the appellant, Kicchi
@ Ram Surat who had given fatal blow on
the chest of the deceased, Auhardeen to
kill the deceased. There is nothing on
record to suggest that common intention
amongst appellants developed on the
place of occurrence-The incident of killing
of Auhardeen appears to have occurred in
a spur of moment wherein only one blow
from ballam was given by the appellant,
Kicchi @ Ram Surat to the deceased. The
fact that he had knowledge that such blow
from a sharp edged weapon could cause
death of the deceased, cannot be ruled out
in the facts of this case. Thus, in our
considered view, the appellant, Kicchi @
Ram Surat is liable to be convicted under
Section 304 Part-II I.P.C.

Where only a single blow has been inflicted by
one accused, on the spur of the moment, to the
deceased resulting in the fatal injury then it
cannot
be
said
that
the
offence
was
premeditated and with common intention, but
as the accused had knowledge that the act
could result in the death of the deceased hence
the offence would be of culpable homicide not
amounting to murder punishable under Section
304 Part II of the IPC instead of Section 302
IPC.

Indian Penal Code, 1860- Sections 34 &
302- So far as the case of the appellants,
Gaya Chamar, Ram Sajeevan Yadav and
Kundan
Badhai
are
concerned
their
conviction under Section 302 I.P.C. with
the aid of Section 34 in want of any
evidence of sharing common intention
with the appellant, Kichhi to kill the
deceased, Auhardeen can also not be
upheld. Resultantly, the conviction and
sentence awarded to the appellants,
namely,
Ram
Sajeevan
Yadav,
Gaya
Chamar and Kundan Badhai under Section
302 read with Section 34 I.P.C. deserves
to be set aside. Their case, at most, falls
under Sections 323/34 I.P.C. for which
they
deserve
to
be
convicted
and
sentenced.

As the other co-accused who were wielding
lathis did not assault the deceased, but only
caused simple injuries to other injured, hence in
absence of any evidence of common intention
with the other accused to commit murder, the
case of the co-accused would fall within the
parameters
of
offences
punishable
under
Section 323/34 of the IPC.

Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities)Act, 1995-
Sections 3(i)(x) and 3(2)(v)-No caste
based insult and intimidation by the
appellants given with intent to humiliate
the first informant, PW-1, Mansharam,
deceased-Auhardeen and injured persons,
in any place within public view. Therefore,
mere fact that the first informant, PW-1Mansharam, deceased-Auhardeen and the
injured
persons,
belonged
to
the
scheduled caste community, per se, does
not constitute offence under Sections
3(i)(x) and 3(2)(v) S.C./S.T. Act.

As there is no evidence to show that any caste
based insult and intimidation was given by the
accused to the deceased and injured persons in
public view hence no offence under Section
3(i)(x) and 3(2)(v) of the S.C./S.T Act is made
out against the accused.

Scheduled
Tribes
(Prevention
of
Atrocities) Rules, 1995 - Rule 7- In terms
of Rule 7 of the Scheduled Castes and the
Scheduled
Tribes
(Prevention
of
Atrocities)
Rules,
1995
(hereinafter
referred to as "S.C./S.T. Rules), the
offence committed under the S.C./S.T. Act
shall be investigated by a police officer
642 INDIAN LAW REPORTS ALLAHABAD SERIES
not
below
the
rank
of
a
Deputy
Superintendent of Police. The instant case
has
been
investigated
by
S.I.
Sher
Bahadur Singh who is not an officer of the
rank of Deputy Superintendent of Police
as required by Rule 7 of S.C./S.T. Rules.
Due to this reason also, the investigation
of this case, insofar as, the same relates to
offences
under
Sections
3(i)(x)
and
3(2)(v) S.C./S.T. Act is vitiated.

Where the offence allegedly committed under
the S.C/S.T Act has not been investigated by a
police officer not below the rank of a Deputy
Superintendent of Police, but by a subordinate
Sub-Inspector of Police, then the investigation
will stand vitiated. (Para 35, 39, 41, 46, 47, 49,
50)

Criminal Appeals partly allowed. (E-3)

Case Law/ Judgements relied upon:-

1. MANU/SC/033/2019 Kishan Singh Vs St. of
U.K & ors.

2.
The
St.
of
M.P.
Vs
Mohar
Singh
MANU/SC/1065/2019

3. Mehraj Singh ( L/ Nk.) Vs St. of U.P (1994) 5
SCC 188

4. S. Sudershan Reddy & ors. Vs St. of A.P
(2006) 10 SCC 163

5. Upendra Pradhan Vs St. of Orissa, 2015) 11
SCC 124

6. Ajmal Vs The St. of Ker. 2022 SCC OnLine SC
842

7. Mavila Thamban Nambiar Vs St. of Ker. (
2009) 17 SCC 441

8.
Takhaji
Hiraji
Vs
Thakore
Kubersing
Chamansing & ors.( 2001) 6 SCC 145

9. Ramkishan & ors. Vs St. of Raj. ( 1997) 7 SCC
518

10. Hitesh Verma Vs St. of U.K & anr. ( 2020) 10
SCC 710
(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J. )

1. Under challenge in these appeals is
the judgment and order dated 29.03.2008
passed by the learned Additional Sessions
Judge, Fast Track Court No.29, Barabanki
in Sessions Trial No.340 of 1993 arising
out of Case Crime No.08 of 1993, under
Sections 302/34 of Indian Penal Code
(hereinafter referred to as "I.P.C.") and
Sections 3(i)(x) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act (hereinafter referred to as "S.C./S.T.
Act"), Police Station Tikait Nagar, District
Barabanki
whereby
the
appellants,
namely, Ram Sajeevan Yadav and Gaya
Chamar (in Criminal Appeal No.967 of
2008) have been convicted and sentenced
to undergo life imprisonment with a fine of
Rs.5,000/- each for the offence under
Section 302/34 I.P.C. and in default of
payment of fine, the appellants have further
been directed to undergo three months'
additional rigorous imprisonment. The
appellant No.1, Ram Sajeevan Yadav has
also been convicted and sentenced to
undergo three months' imprisonment for the
offence under Section 323/34 I.P.C. The
appellant No.1, Ram Sajeevan Yadav has
also been convicted and sentenced to
undergo life imprisonment with a fine of
Rs.2,000/- for the offence under Sections
3(2)(v) S.C./S.T. Act and in default of
payment of fine, the appellant No.1, Ram
Sajeevan Yadav has further been directed to
undergo one month's additional rigorous
imprisonment. The appellant No.1, Ram
Sajeevan Yadav has also been convicted
and sentenced to undergo six months'
imprisonment with a fine of Rs.1,000/- for
the offence under Sections 3(i)(x) S.C./S.T.
Act and in default of payment of fine, the
appellant No.1, Ram Sajeevan Yadav has
further been directed to undergo fifteen
8 All. Ram Sajeevan Yadav & Anr. Vs. State of U.P.
643
days' additional rigorous imprisonment.
The appellant No.2, Gaya Chamar has
also been convicted and sentenced to
undergo three months' imprisonment for the
offence under Section 323 I.P.C. All the
sentences are directed to run concurrently.

The appellant, Kundan Badhai (in
Criminal Appeal No.1078 of 2008) has
been convicted and sentenced to undergo
life imprisonment with a fine of Rs.5,000/-
for the offence under Sections 302/34 I.P.C.
and in default of payment of fine, he has
further been directed to undergo three
months' additional rigorous imprisonment.
He has also been convicted and sentenced
to undergo three months' imprisonment for
the offence under Sections 323/34 I.P.C. He
has also been convicted and sentenced to
undergo life imprisonment with a fine of
Rs.2,000/- for the offence under Sections
3(2)(v) S.C./S.T. Act and in default of
payment of fine, he has further been
directed to undergo one month's additional
rigorous imprisonment. He has also been
convicted and sentenced to undergo six
months' imprisonment with a fine of
Rs.1000/- for the offence under Sections
3(i)(x) S.C./S.T. Act and in default of
payment of fine he has further been
directed to undergo fifteen days' additional
rigorous imprisonment. All the sentences
are directed to run concurrently.

The appellant, Kicchi @ Ram Surat
(in Criminal Appeal No.1202 of 2008) has
been convicted and sentenced to undergo
life
imprisonment
with
a
fine
of
Rs.10,000/- for the offence under Section
302 I.P.C. and in default of payment of
fine, he has further been directed to
undergo six months' additional rigorous
imprisonment. He has also been convicted
and sentenced to undergo three months'
imprisonment for the offence under Section
323/34 I.P.C. He has also been convicted
and sentenced to undergo life imprisonment
with a fine of Rs.2,000/- for the offence
under Sections 3(2)(v) S.C./S.T. Act and in
default of payment of fine, he has further
been directed to undergo one month's
additional rigorous imprisonment. He has
also been convicted and sentenced to
undergo six months' imprisonment with a
fine of Rs.1,000/- for the offence under
Sections 3(i)(x) S.C./S.T. Act and in default
of payment of fine, he has further been
directed to undergo fifteen days' additional
rigorous imprisonment. All the sentences
are directed to run concurrently.

2. Since the aforesaid criminal
appeals have been preferred against the
judgment and order dated 29.03.2008
passed by the learned Additional Sessions
Judge, Fast Track Court No.29, Barabanki
in Sessions Trial No.340 of 1993 arising
out of Case Crime No.08 of 1993, under
Sections 302/34 of Indian Penal Code and
Sections 3(i)(x) S.C./S.T. Act, Police
Station Tikait Nagar, District Barabanki,
therefore, they have been heard together
and are being decided by a common
judgment.

3. The prosecution story as culled out
from the first information report, Ex. Ka-3
is that the first informant, Mansharam
submitted a written report, Ex. Ka-1 to
Police
Station
Tikaitnagar,
District
Barabanki stating therein that road levelling
work was being done in his village. This
work was being got done by the Gram
Pradhan. The accused/appellants, namely,
Kicchi @ Ram Surat (in Criminal Appeal
No.1202 of 2008) and Gaya Chamar (in
Criminal Appeal No.967 of 2008) wanted
that the excavation of earth for levelling of
road should be done from the east side of
existing road. The son of the first
644 INDIAN LAW REPORTS ALLAHABAD SERIES
informant, namely, Auhardeen insisted that
he would do the excavation work on the
west side of the road and he would also not
allow excavation of east side of the road.
Being annoyed, the accused/appellant,
Kicchi @ Ram Surat had a scuffle with first
informant's son, Auhardeen. Some villagers
intervened and got the matter subsided.

4. On 27.01.1993 at about 03:30 PM, all
of a sudden, the accused/appellant, Kicchi @
Ram Surat armed with ballam, Kundan Badhai
armed with lathi along with Gaya Chamar and
Ram Sajeevan Yadav came to the house of the
first
informant,
Manshraram.
The
accused/appellant, Kicchi @ Ram Surat gave a
blow from ballam on the chest of Auhardeen,
son of the first informant who fell on the
ground. The other co-accused, namely, Gaya
Chamar, Ram Sajeevan Yadav and Kundan
Badhai exhorted to kill Auhardeen. When the
first informant, Mansharam and his other sons,
namely, Adalatdeen and Ramu tried to save
their injured brother, Auhardeen, the coaccused, Gaya Chamar, Ram Sajeevan Yadav
and Kundan Badhai assaulted Ramu and
Adalatdeen. The villagers, namely, Rajendra
Prasad, Alkoo, Buddhai etc. reached on the
spot
who
snatched
ballam
from
the
accused/appellant, Kicchi @ Ram Surat. All
the accused thereafter fled toward their houses.
The injured, Auhardeen was being taken to
police station who breathed last near
Tikaitnagar police station.

5. On the basis of aforesaid written
report, Ex. Ka-1, the first information
report, Ex. Ka-3 came to be lodged at
Police
Station
Tikaitnagar,
District
Barabanki against the accused/appellants as
Case Crime No.08 of 1993, under Section
302 I.P.C.

6. The Investigating Officer, S.I Sher
Bahadur Singh,
PW-11
recorded
the
statements of witnesses under Section 161
Cr.P.C. He visited the place of occurrence
and prepared a site plan, Ex. Ka-17. He has
also collected bloodstained earth from the
place of occurrence and prepared a
recovery
memo,
Ex.
Ka-18.
Upon
conclusion
of
investigation,
he
has
submitted a charge sheet, Ex. Ka-19 against
the appellants. He has also submitted a
supplementary charge sheet, Ex. Ka-20
against some of the appellants.

7. The appellants, Ram Sajeevan
Yadav, Gaya Chamar, Kundan Badhai and
Kicchi @ Ram Surat were charged for the
offences under Sections 302 read with
Section 34 I.P.C. and Section 323 read with
Section 34 I.P.C. Except the appellant,
Gaya
Chamar,
the
appellants,
Ram
Sajeevan Yadav, Kundai Badhai and Kicchi
@ Ram Surat were also charged for the
offences under Sections 3(2)(v) and 3(i)(x)
S.C./S.T. Act. The appellants denied the
charges and claimed to be tried.

8. In order to prove its case, the
prosecution
has
examined
the
first
informant, Mansharam as PW-1, injured,
Adalatdeen as PW-2, S.I. Ramdev Dwivedi
as PW-3 who has prepared recovery memo,
Ex. Ka-2 in respect of weapon of assault,
ballam. Dr. G.P. Shukla has been examined
as PW-4 who examined injured persons,
Ramu and Adalatdeen and proved their
injury reports as Ex. Ka-7 and Ex. Ka-8
respectively. Dr. Devendra Kumar Singh
has been examined as PW-5 who conducted
postmortem on the cadaver of the deceased,
Auhardeen and prepared and proved the
postmortem report as Ex. Ka-9. Retired
C.P. Ravindra Nath Tripathi has been
examined as PW-6. Constable No.1704
Sripal Verma has been examined as PW-7.
S.I. Amar Singh has been examined as PW8. Injured, Ramu has been examined as
8 All. Ram Sajeevan Yadav & Anr. Vs. State of U.P.
645
PW-9. Ambar Prasad has been examined as
PW-10 who was an independent witness of
incident. The Investigating Officer, S.I.
Sher Bahadur Singh has been examined as
PW-11.

9. After the conclusion of prosecution
evidence, statements of appellants under
Section 313 Cr.P.C. were recorded. The
appellants have stated that they have been
falsely implicated in this case. According to
them, The prosecution witnesses have
deposed against them due to enmity. They
have also stated that in fact the deceased,
Auhardeen
was
having
criminal
antecedents who wanted to illegally grab
the land belonging to Gaon Sabha. The
deceased, Auhardeen was killed in a
dispute with labourers during road levelling
work.

10. DW-1, Mata Prasad has been
examined by the appellants in their
defence.

11. PW-4, Dr. G.P. Shukla has
examined the injured, Ramu, who prepared
an injury report of the injured, Ramu, and
has proved the same as Ex. Ka-7.
According to which, following injuries
were reported on the person of the injured,
Ramu:-

"1. Abrasion 0.5 cm x 0.5 cm,
skin deep on the left lower arm 04 cm
above the left wrist joint.

2. Contusion 3.00 cm x 2.00 cm
on the right upper arm ten (10) cm below
the right shoulder joint. Colour reddish."

12. PW-4, Dr. G.P. Shukla has also
examined the injured, Adalatdeen who
prepared an injury report of the injured,
Adalatdeen and has proved the same as Ex.
Ka-8. According to which, following
injuries were reported on the person of the
injured:-

"1. Abrasion 3.00 cm x 0.5 cm,
skin deep on the root of the left thumb five
(05) cm away from the left wrist joint."

13. PW-5, Dr. Devendra Kumar Singh
has conducted the postmortem on the
cadaver of the deceased on 28.01.1993 and
has proved the same as Ex. Ka-9.
According to postmortem report, Ex. Ka-9
following ante mortem injuries and cause
of death of the deceased were reported as
under:-

Oval Shaped punctured wound
measuring size 2 cm x 1 cm cavity deep on
the chest 15 sternal region, lower part 8 cm
medial to the Rt. nipple at 2'0 clock
position. Sternum ruptured and the cause of
death was reported to be shock and
haemorrhage as a result of ante-mortem
injury.

14. The learned trial court vide
impugned judgment and order dated
29.03.2008 convicted the appellants and
sentenced them as aforesaid. Hence this
appeal.

15. We have heard Shri Shiv Shankar
Singh, learned counsel for the appellants (in
Criminal Appeal No.967 of 2008), Shri Jaleel
Ahmad, learned counsel for the appellant (in
Criminal Appeal No.1078 of 2008), Shri
Anurag Shukla, learned amicus curiae for the
appellant (in Criminal Appeal No.1202 of
2008), Sri Chandra Shekhar Pandey, learned
Additional Government Advocate appearing
for the State-respondent and have perused the
entire record available before us.
646 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Learned counsel for all the
appellants
have
submitted
that
the
appellants are innocent who have been
falsely implicated in this case due to prior
enmity
with
the
first
informant,
Mansharam.

17. Their further submission is that a
scuffle took place during levelling of the
road with the labourers who are resident of
different places. The deceased, Auhardeen
and other injured persons, Ramu and
Adalatdeen
received
injuries
in
the
aforesaid scuffle. The appellants were not
involved in the incident.

18. Learned counsel for all the
appellants have also submitted that the
learned trial court has recorded the finding
of guilt of the appellants against the weight
of evidence which is not sustainable.

19. Shri Anurag Shukla, learned
amicus curiae for the appellant, Kicchi @
Ram Surat (in Criminal Appeal No.1202 of
2008) has submitted that admittedly, only
one blow is said to have been given by the
accused/appellant, Kicchi @ Ram Surat to
the deceased. This fact stands corroborated
by the postmortem report, Ex. Ka-9 of the
deceased, Auhardeen. There is nothing on
record to show that the incident was
premeditated either. Therefore, at most, the
appellant, Kicchi @ Ram Surat could be
convicted for the offence under Section 304
part-II I.P.C. No case under Section 302
I.P.C. is made out against the appellant,
Kicchi @ Ram Surat. To substantiate his
arguments, learned amicus curiae for the
appellant, Kicchi @ Ram Surat has placed
reliance upon the judgments rendered by
the Hon'ble Supreme Court in Kishan
Singh vs. State of Uttaranchal and
others1 and The State of Madhya
Pradesh vs. Mohar Singh2 wherein the
Hon'ble Apex Court has modified the
conviction of the accused from Section 302
I.P.C. to Section 304 Part-II I.P.C. and has
sentenced accordingly.

20. Shri Shiv Shankar Singh, learned
counsel for the appellants (in Criminal
Appeal No.967 of 2008), Shri Jaleel
Ahmad, learned counsel for the appellant
(in Criminal Appeal No.1078 of 2008) have
submitted
that
the
appellants,
Ram
Sajeevan Yadav, Gaya Chamar and Kundan
Badhai have been convicted with the aid of
Section 34 I.P.C. There is nothing on record
to show that these appellants were sharing
common intention with the appellant,
Kicchi @ Ram Surat to kill the deceased.
Therefore, their conviction under Section
302 read with Section 34 I.P.C. is not
sustainable. Learned counsel for these
appellants contend that the appeal deserves
to be allowed by setting aside the impugned
judgment and order dated 29.03.2008
insofar as it relates to conviction of the
appellants under section 302 read with
Section 34 I.P.C.

21.

Learned
counsel
for
the
appellants, namely, Ram Sajeevan Yadav,
Kundan Badhai and Ram Surat @ Kicchi
have also submitted that there is nothing in
the testimonies of prosecution witnesses to
show that alleged offence under Sections
3(i)(x) and 3(2)(v) S.C./S.T. Act was
committed by these appellants only because
the deceased, Auhardeen and injured
persons, Ramu and Adalatdeen belonged to
scheduled caste community. The alleged
offence was not committed in public view
also. Therefore, their conviction and
sentences under Sections 3(2)(v) and
3(i)(x) S.C./S.T. Act are not sustainable.

22. Learned counsel for the appellants
have also vehemently argued that in order
8 All. Ram Sajeevan Yadav & Anr. Vs. State of U.P.
647
to prove its case against the appellants, the
prosecution has examined Mansharam as
PW-1 who is the father of the deceased,
Auhardeen and injured persons, namely,
Adalatdeen and Ramu have been examined
as PW-2 and PW-9 respectively. Thus, only
three witnesses of fact have been examined
by the prosecution. PW-10, Ambar Prasad
is a neighbour of the first informant,
Mansharam, therefore, he was also an
interested witness. Therefore, the three
prosecution witnesses being related to the
deceased and one being interested witness
are not reliable. The learned trial court
erred in placing reliance upon testimonies
of such related/ interested witnesses.

23. Per contra, learned A.G.A. has
refuted the submissions made by learned
counsel
for
the
appellants
and
has
submitted that the appellants are named in
the first information report, Ex. Ka-3. They
have been assigned specific role in the first
information report. The first information
report, Ex. Ka-3 is prompt. There is nothing
on record to show that the first information
report, Ex. Ka-3 or written report, Ex. Ka-1
came to be lodged after consultation with
someone else in order to falsely rope in the
appellants. The prompt lodging of first
information report itself rules out any
possibility of false implication of the
appellants. Therefore, they have rightly
been convicted by means of impugned
judgment and order dated 29.03.2008.

24. His further submission is that the
appellant, Kicchi @ Ram Surat was armed
with a deadly weapon, ballam and the other
co-convicts were accompanying him. The
appellant, Kicchi @ Ram Surat has given a
blow from the ballam on the chest of the
deceased, Auhardeen. The offence was
committed near the house of the first
informant,
Mansharam
where
the
appellants had gone to commit this offence.
Therefore, their conviction and sentences
therefor are just and proper.

25.

Learned A.G.A.
has
also
submitted that the impugned judgment and
order dated 29.03.2008 is based on proper
analysis and appreciation of prosecution
evidence. It is a reasoned and well
discussed
judgment
wherein
no
interference in exercise of power under
Section 386 Cr.P.C. by this Court is
warranted.

26. Having heard the learned counsel
for the parties and upon survey of
prosecution evidence, we are able to notice
that the alleged incident occurred on
27.01.1993 at about 03:30 PM. A written
report, Ex. Ka-1 in respect of this
occurrence was submitted to the Police
Station Tikaitnagar, District Barabanki and
a first information report, Ex. Ka-3 came to
be lodged on 27.01.1993 i.e., on the day of
the incident itself, at Police Station
Tikaitnagar, District Barabanki within a
period of approximately two hours. The
first information report, Ex. Ka-3 is, thus,
found to be prompt.

27. The Hon'ble Supreme Court in
Meharaj Singh (L/Nk.) vs. State of U.P.3
in para-12 has held as under:-

"12. FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the trial.
The object of insisting upon prompt lodging
of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, the weapons, if any,
used, as also the names of the eyewitnesses,
if any. Delay in lodging the FIR often
648 INDIAN LAW REPORTS ALLAHABAD SERIES
results in embellishment, which is a
creature of an afterthought. On account of
delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also
creeps in of the introduction of a coloured
version or exaggerated story. With a view
to determine whether the FIR was lodged at
the time it is alleged to have been recorded,
the courts generally look for certain
external checks. One of the checks is the
receipt of the copy of the FIR, called a
special report in a murder case, by the
local Magistrate. If this report is received
by the Magistrate late it can give rise to an
inference that the FIR was not lodged at the
time it is alleged to have been recorded,
unless, of course the prosecution can offer
a satisfactory explanation for the delay in
despatching or receipt of the copy of the
FIR by the local Magistrate. Prosecution
has led no evidence at all in this behalf.
The
second
external
check
equally
important is the sending of the copy of the
FIR along with the dead body and its
reference in the inquest report. Even though
the inquest report, prepared under Section
174 CrPC, is aimed at serving a statutory
function,
to
lend
credence
to
the
prosecution case, the details of the FIR and
the gist of statements recorded during
inquest proceedings get reflected in the
report. The absence of those details is
indicative of the fact that the prosecution
story was still in an embryo state and had
not been given any shape and that the FIR
came to be recorded later on after due
deliberations and consultations and was
then ante-timed to give it the colour of a
promptly lodged FIR. In our opinion, on
account of the infirmities as noticed above,
the FIR has lost its value and authenticity
and it appears to us that the same has been
ante-timed and had not been recorded till
the inquest proceedings were over at the
spot by PW 8."

28. We are also able to notice that the
first informant, Mansharam who has been
examined as PW-1 has stated in his
testimony that road levelling work was
being done in his village. This work was
being got done by the Gram Pradhan. The
accused/appellants, namely, Kicchi @ Ram
Surat and Gaya Chamar wanted that the
excavation of earth for levelling of road
should be done from the east side of
existing road. The son of the first
informant, namely, Auhardeen said that he
would do the excavation work on the west
side of the road and he would also not
allow excavation of east side of the road.
Annoyed by this, the accused/ appellant,
Kicchi @ Ram Surat had a scuffle with first
informant's son, Auhardeen. Some villagers
intervened and got the matter subsided.
PW-2, Adalatdeen is not only an eye
witness, he is an injured witness also who
has also supported the prosecution case in
its entirety. His injury report, Ex. Ka-8
which has been proved by PW-4, Dr. G.P.
Shukla reveals that there was one injury on
his person which was an abrasion. The
duration of injury was reported to be fresh
which
corresponds
to
the
time
of
occurrence i.e. on 27.01.1993 at about
03:30 P.M. PW-9, Ramu is another injured
witness in this incident who, in his
testimony,
has
also
supported
the
prosecution case.

29. PW-10, Ambar Prasad is an
independent witness of the incident who, in
his testimony, has stated that on the date of
incident, he was present on the spot and
had seen the accused/appellant, Kicchi @
Ram Surat giving a blow on the chest of the
deceased, Auhardeen from ballam. He,
being, a neighbour of the first informant,
Mansharam, his presence on the spot on the
date of incident appears to be natural. The
other prosecution witnesses, namely, PW-3,
8 All. Ram Sajeevan Yadav & Anr. Vs. State of U.P.
649
S.I. Ramdev Dwivedi, PW-7, Constable
No.1704 Sripal Verma, PW-8, S.I. Amar
Singh and PW-11, S.I. Sher Bahadur Singh
have proved various other prosecution
papers.

30. From a perusal of record, we find
that no such contradiction or anything
adverse could be elicited in their detailed
cross-examination of prosecution witnesses
which, in any manner, adversely affects the
case of prosecution. PW-1, Mansharam
being father of the deceased, PW-2,
Adalatdeen
and
PW-9,
Ramu
being
brothers of the deceased and PW-10,
Ambar Prasad being neighbour of the
deceased, their presence on the spot
appears to us to be natural whose
testimonies too are consistent, cogent and
believable.

31. The Hon'ble Supreme Court in S.
Sudershan Reddy and others vs. State of
A.P.4 in paras-12 to 14. has held as under:-

"12. We shall first deal with the
contention regarding interestedness of the
witnesses for furthering the prosecution
version. Relationship is not a factor to
affect the credibility of a witness. It is more
often than not that a relation would not
conceal the actual culprit and make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
court has to adopt a careful approach and
analyse evidence to find out whether it is
cogent and credible.

13. In Dalip Singh v. State of
Punjab [1954 SCR 145 : AIR 1953 SC 364
: 1953 Cri LJ 1465] it has been laid down
as under : (SCR p. 152)

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely. Ordinarily, a close relative would
be the last to screen the real culprit and
falsely implicate an innocent person. It is
true, when feelings run high and there is
personal cause for enmity, that there is a
tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid
for such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth. However,
we are not attempting any sweeping
generalisation. Each case must be judged
on its own facts. Our observations are only
made to combat what is so often put
forward in cases before us as a general rule
of prudence. There is no such general rule.
Each case must be limited to and be
governed by its own facts."

14. The above decision has since
been followed in Guli Chand v. State of
Rajasthan [(1974) 3 SCC 698 : 1974 SCC
(Cri) 222] in which Vadivelu Thevar v.
State of Madras [1957 SCR 981 : AIR 1957
SC 614 : 1957 Cri LJ 1000] was also relied
upon."

32. We, therefore, do not find
substance
in
submissions
of
learned
counsel for the appellants that the learned
trial court has erred in placing reliance on
testimonies of PW-1, Mansharam and PW2, Adalatdeen, PW-9, Ramu and PW-10,
Ambar Prasad while holding the appellants
guilty.

33. The postmortem on the cadaver of
deceased, Auhardeen was conducted by
PW-5, Dr. Devendra Kumar Singh who has
proved his postmortem report as Ex. Ka-9
650 INDIAN LAW REPORTS ALLAHABAD SERIES
which
reveals
following
ante-mortem
injuries on the body of the deceased:-

"Oval Shaped punctured wound
measuring size 2 cm x 1 cm cavity deep on
the chest 15 sternal region, lower part 8
cm medial to the Rt. nipple at 2'0 clock
position. Sternum ruptured"

34. The cause of death according to
postmortem report, Ex. Ka-9 is stated to be
shock and haemorrhage due to aforesaid
ante-mortem injury.

35. Thus, having regard to the
aforesaid
consistent
and
reliable
testimonies of PW-1, Mansharam, PW-2,
Adalatdeen, PW-9, Ramu and PW-10,
Ambar Prasad, we find that on the date of
incident, the appellant, Kicchi @ Ram
Surat, who was armed with a ballam,
inflicted only one blow on the chest of the
deceased, Auhardeen from ballam which,
according to postmortem report, Ex. Ka-9
ultimately proved to be cause of his death.
The other co-accused, namely, Kundan
Badhai along with Gaya Chamar and Ram
Sajeevan Yadav have inflicted injuries to
the injured persons, namely, Adalatdeen
and Ramu by lathi only.

36. The injury report of Adalatdeen
has been proved by PW-4, Dr. G.P. Shukla
as Ex. Ka-8 which reveals that there was
one injury on his person which was an
abrasion on the date of occurrence whereas
the injury report of injured, Ramu was
prepared and proved by Dr. G.P. Shukla as
Ex. Ka-7. According to injury report of
injured, Ramu, he had also sustained an
abrasion and a contusion on his person.

37. Thus, surveyed together, from the
consistent and cogent testimonies of the
first informant, PW-1, Mansharam and two
injured, namely, PW-2, Adalatdeen and
PW-9, Ramu and independent witness, PW10, Ambar Prasad, in our considered view,
the prosecution has been successful in
proving the fact that on 27.01.1993, the
accused/appellants came on the spot. The
appellant, Kichchi gave a blow from ballam
in the chest of the deceased, Auhardeen
which according to postmortem report, Ex.
Ka-9 caused death of the deceased,
Auhardeen.
The
other
co-appellants,
namely, Kundan Badhai armed with lathi
along with Gaya Chamar and Ram
Sajeevan Yadav also came to the house of
the first informant, Mansharam and they
also inflicted injuries to the injured,
namely, Adalatdeen and Ramu who were
present on the spot.

38. Now, we propose to delve upon
the issues as to whether conviction of
appellant, Kicchi @ Ram Surat under
Section 302 I.P.C. and conviction and
sentences awarded to the other appellants,
namely,
Ram
Sajeevan Yadav,
Gaya
Chamar, Kundan Badhai under Section 302
read with Section 34 I.P.C. and conviction
and sentences awarded to the appellants,
Ram Sajeevan Yadav, Kundan Badhai,
Kicchi @ Ram Surat under Sections 3(i)(x)
and 3(2)(v) S.C./S.T. Act were proper in the
facts of the case at hand.

39. We find from the record that the
deceased, Auhardeen was hit on his chest
by the appellant, Kicchi @ Ram Surat only
once. This is the case of prosecution also.
This fact stands corroborated by the
postmortem report of the deceased, Ex. Ka9 wherein only one punctured wound has
been reported on the body of the deceased.
We also find that there is nothing on record
to show and establish that the appellants,
namely,
Ram
Sajeevan Yadav,
Gaya
Chamar and Kundan Badhai had any prior
8 All. Ram Sajeevan Yadav & Anr. Vs. State of U.P.
651
meeting of mind with the appellant, Kicchi
@ Ram Surat who had given fatal blow on
the chest of the deceased, Auhardeen to kill
the deceased. There is nothing on record to
suggest that common intention amongst
appellants developed on the place of
occurrence.

40. It is trite law that suspicion,
howsoever grave, cannot take place of legal
proof as held by the Hon'ble Supreme
Court in Upendra Pradhan vs. State of
Orissa5 in para-14 has held as under:-

"14. Taking the first question for
consideration, we are of the view that in
case there are two views which can be
culled out from the perusal of evidence and
application of law, the view which favours
the accused should be taken. It has been
recognised as a human right by this Court.
In Narendra Singh v. State of M.P., [(2004)
10 SCC 699 : 2004 SCC (Cri) 1893], this
Court has recognised presumption of
innocence as a human right and has gone
on to say that: (SCC pp. 708 & 709, paras
30-31 & 33)

"30. It is now well settled that
benefit of doubt belonged to the accused.
It is further trite that suspicion, however
grave may be, cannot take place of a
proof. It is equally well settled that there is
a long distance between ''may be' and
''must be'.

xxxx xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx xxxx"

 (emphasized supplied by us)

41. Thus, in want of any evidence,
whatsoever, to the effect that the appellants,
namely,
Ram
Sajeevan Yadav,
Gaya
Chamar
and
Kundan
Badhai
shared
common intention to kill the deceased,
Auhardeen with the appellant, Kicchi @
Ram Surat, it cannot be presumed that the
appellants, namely, Ram Sajeevan Yadav,
Gaya Chamar and Kundan Badhai were
sharing common intention with the other
appellant, Kicchi @ Ram Surat to kill the
deceased, Auhardeen.

42. It is also pertinent to refer to
paras-22, 24 and 30 of a judgment rendered
by the Hon'ble Supreme Court in Ajmal vs.
The State of Kerala6, which are as under:-

"22.
Having
considered
the
submissions and having perused the
material on record, we do not find any
infirmity in the prosecution establishing the
incident as set up in the First Information
Report. For the said conclusion, we have
taken note of the following:

(i) First Information Report was
promptly lodged.

(ii) The prosecution story as set
up in the FIR appears to be probable.

(iii) The medical evidence fully
corroborates the prosecution story.

(iv) PW-1, PW-2 and PW-4, the
three eye-witnesses have fully supported the
prosecution story and have narrated the
same incident as it occurred.

(v)
Formal
witnesses
have
discharged their burden by proving the
police papers and other documentary
652 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence
placed
on
record
by
the
prosecution.

(vi)
The
material
objects
recovered have also been duly proved.

(vii) According to the medical
evidence, the material objects alleged to
have been used in the commission of crime
could have been actually used in causing
the injuries.

24.