# Ram Swaroop & Ors. (In Jail) v. State of U.P

- **Citation:** (2020) 8 ILRA 533
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-09
- **Case number:** Criminal Appeal No. 884 of 1991
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-swaroop-ors-in-jail-v-state-of-u-p-46060
- **Pages:** 9

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 364 304/34, 325/34.- Appeal
against conviction.

Delay in lodging F.I.R.-
Neither fatal nor illegal.

Testimony
of
interested/
relative
witnesses -
The prosecution case cannot be rejected only
on the ground that witnesses are relatives of
deceased but their evidence should be
subjected to a close scrutiny. (Para-30)

Delay in lodging F.I.R.-
Delay is not at all fatal for prosecution case.
(Para- 29)

Minor contradiction -
Can be ignored if does not affect the core of
prosecution version. (Para- 35)

Applicants are very old person and more than
31 years has already elapsed and two named
appellants died during pendency of appeal.
Conviction upheld sentences reduced to the
534 INDIAN LAW REPORTS ALLAHABAD SERIES
period of imprisonment already undergone
against the remaining appellants. (Para-36)

Appeal partly allowed. (E-2)

List of cases cited: -

## Text

8 All. Ram Swaroop & Ors. Vs. State of U.P.
533
several places alongwith the accused
persons, according to her own sweet will.

31. Though the whole prosecution
story is unreliable, belies logic and the
learned trial court misled, itself, in
relying upon the prosecution witnesses
which are contrary to each other which
do not inspire confidence. The complete
testimony of the victim being unworthy
of credence, unreliable and bundle of lies
could not have formed the basis for the
conviction of the appellants, on the basis
of illegal and inadmissible evidences.

32. Therefore in the facts and
circumstances of the case, the conviction of
the accused on the basis of solitary testimony
of the prosecutrix, is not sustainable for the
reasons discussed above. Thus, the finding
recorded by trial court cannot be affirmed.
Thus, this Court is of considered opinion that
there is no scope to sustain the conviction of
the accused appellants for commission of
offence under Section 376 IPC or under
Section 366 IPC and as a result, the accused
appellants are entitled to the benefit of doubt
as the prosecution has not been able to prove
its case, beyond all reasonable doubts.
Resultantly, for the reasons mentioned above,
the appeal stands ''allowed'.

33. The impugned judgement and
order of conviction and sentence passed by
learned trial court is, hereby, quashed and set
aside. The accused appellants is acquitted of
the charges levelled against them.

34. Since, the appellants are on bail,
they need not to surrender.

35. Office is directed to transmit
lower court record to the court below
alongwith a copy of this order.
----------
(2020)08ILR A533
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2020

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 884 of 1991

Ram Swaroop & Ors.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri K.K. Singh, Sri Kaushal Kishore
Mishra, Sri Shyam Sunder Mishra, Sri Brij
Raj Singh.

Counsel for the Opposite Party:
A.G.A.

Criminal Law- Indian Penal Code, 1860-
Section 364 304/34, 325/34.- Appeal
against conviction.

Delay in lodging F.I.R.-
Neither fatal nor illegal.

Testimony
of
interested/
relative
witnesses -
The prosecution case cannot be rejected only
on the ground that witnesses are relatives of
deceased but their evidence should be
subjected to a close scrutiny. (Para-30)

Delay in lodging F.I.R.-
Delay is not at all fatal for prosecution case.
(Para- 29)

Minor contradiction -
Can be ignored if does not affect the core of
prosecution version. (Para- 35)

Applicants are very old person and more than
31 years has already elapsed and two named
appellants died during pendency of appeal.
Conviction upheld sentences reduced to the
534 INDIAN LAW REPORTS ALLAHABAD SERIES
period of imprisonment already undergone
against the remaining appellants. (Para-36)

Appeal partly allowed. (E-2)

List of cases cited: -

1. Rajendrar Harakchand Bhandari & ors. Vs
St. of Maharashtra & anr. (2011) 13 SCC 311.

2. Badal Murmu & ors. Vs St. of W.B. (2014) 3
SCC 366.

3. Pritam Singh Vs St. of Delhi 1995 0
Supreme (Del) 347.

4. Tara Singh & ors. Vs St.of Punj., AIR 1991
SC 63.

5. St.of Punjab Vs Hardam Singh, (2005),
S.C.C. (Cr.) 834.

6. Dalbir Kaur Vs St. of Punjab, AIR 1977 SC 472.

(Delivered by Hon'ble Suresh Kumar Gupta, J.)

1. This criminal appeal has been
preferred by appellants against the
judgment and order dated 27.04.1991,
passed by 4th Additional Sessions Judge,
Fatehpur, in S.T. No. 439 of 1989 (State
Vs. Ram Swaroop and another), in which
the appellant was convicted under
Section 304/34, each of them sentenced
to undergo rigorous imprisonment for
five years, 2 years R.I. under section
325/34 IPC. Both the sentence shall run
concurrently

2. Brief facts of this case are as
follows:-

3. The informant Amar Singh
lodged the NCR in P.S. Lalauli, District
Fatehpur with the allegation that on
14.06.1989 at about 5.30 p.m. Smt.
Sudamiya wife of first informant was
sitting along with deceased Shiv Nandan
at the door of her house. All the 4
appellants/accused having armed with
lathi and danda reached there and due to
some altercation between the appellants
and the deceased, the appellants assaulted
Shiv Nandan with lathi and danda.
Sudamiya tried to save her brother Shiv
Nandan then she was also beaten by the
accused appellants. Due to which Smt.
Sudamiya and Shiv Nandan received
injuries and also stated in NCR that there
is litigation between the appellants and
first informant regarding some land
dispute and due to this reason the
appellants assaulted both Smt. Sudamiya
and Shiv Nandan. The informant lodged
oral report at about 10.30 p.m., it was
recorded as NCR No. 44, under sections
323 IPC, which is proved as Ext. Ka 1.
Sudamiya and Shiv Nandan, who were
medically examined at PHC Bahuwa and
Shiv Nandan succumbed due to his injury
at PHC Bahuwa on 15.06.1989 at
midnight
afterward
the
NCR
was
converted into under section 302 IPC a
cognizable offence by means of GD No.
22 time 14.45 on 15.06.1989 as Ext. Ka-4.

4. Investigation of this case was
entrusted to the Investigating Officer.

5. Before the case was converted
under section 302 IPC, Sub Inspector
M.P. Singh prepared inquest report of the
deceased Shiv Nandan and the dead body
was sent to District Hospital Fatehpur,
for autopsy and the same was done by
Dr. M.N. Raizada.

6.

Sudamiya
was
medically
examined in PHC Bahuwa. Lower part of
the shaft of radius and ulna of injured
Sudamiya was found fractured on X-ray.
Then one more section 325 IPC was
added.
8 All. Ram Swaroop & Ors. Vs. State of U.P.
535

7. Investigation of this case was
handed over to Sri Siraj Ahmad,
Investigating
Officer,
and
during
investigation Siraj Ahmad prepared site
plan on pointing out of the first
informant, which is proved as Ext. Ka-8
and after recording the evidence of
witnesses plain earth and blood stained
earth were recovered, which is Ext. Ka-9.
After
recording
the
statements
of
witnesses and completing formalities of
the investigation, Investigating Officer
has
submitted
charge-sheet
against
appellants under section 302/34 and 325
IPC.

8. All the four accused-appellants
were charged under sections 302/34,
323/34 and 325/34, which was framed on
22.09.1989 and were read over to
accused. They pleaded not guilty and
claimed to be tried.

9. In order to substantiate the
charge levelled against the appellants,
prosecution examined P.W. 1 Amar
Singh, complainant/first informant who
reported himself to be as eyewitness and
proved NCR as Ext. Ka 1. P.W. 2 Ram
Prasad, he himself reported to be as
eyewitness and P.W. 3 Constable Brajlal
Pandey, who proved the GD entry No. 28
10:30 on 14.06.89 regarding lodging of
the NCR as Ext. Ka-3. P.W. 3 has also
proved the GD Rapat No. 10 time 10:30
on 15.06.1989, the memo sent to PHC
Bahuwa regarding death of the deceased
Shiv Nandan and proved this GD as Ext.
Ka 3 and it was also proved the
conversion GD Sl. No. 20 time 14.45
dated 15.06.1989 as Ext. Ka. 5. P.W. 4 is
Sudamia injured eyewitness, P.W. 5 Dr.
M.H. Khan, who prepared the X-ray
report of injured Sudamiya and proved
X-ray report as Ext. Ka 5. P.W. 6 Dr. B.
Kumar Pateria, who examined the
deceased Shiv Nandan in PHC Bahuwa
and proved injury report as Ext. Ka-6 and
P.W. 7 is the investigating officer, who
proved the site plan Ext. Ka 8 and
recovery memo of blood stained and
simple earth Ext. Ka-9 and charge-sheet
Ext.
Ka-10.
Other
papers
of
the
prosecution was admitted by the defence
counsel under Section 294 Cr.P.C.
Panchayatnama as Ext. Ka-11, letter to
CMO Ext. Ka-12, Photo nash Ext. Ka 13,
letter of R.I. Ext. Ka-14, report of P.S.
Lalauli Ext. Ka 15, Specimen seal Ext.
Ka 16, letter of Medical Officer to S.O.
Lalauli regarding information of death of
Shiv Nandan as Ext. Ka-17, letter of
Medical Officer regarding handing over
the dead body Ext. Ka-18, Injury report
of injured Sudamiya Ext. Ka-19 and
supplementary injury report Ext. Ka-20.

10. In this case, the prosecution
relied the evidence of P.W. 1 to P.W. 7
and Ext. Ka-1 to Ext. Ka-10. After
examination of all the witnesses the
accused-appellants were examined under
Section 313 Cr.P.C. and stated that their
false implication due to enmity. They
denied the prosecution evidence.

11. No defence witness has been
examined by the defence.

12. After conclusion of trial,
learned
trial
court
convicted
the
appellants as aforesaid. During trial the
appellant no 1 Ram Swaroop and
appellant no. 4 Chandra Sewak reported
to be no more and the appeal stands
abated against appellant nos. 1 and 4.

13. Heard learned counsel for the
appellants, learned A.G.A and perused
the record.
536 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Learned counsel for the
appellants submitted that time of incident
is 5.30 p.m. but NCR was lodged at
10.30 p.m. on 14.06.1989. There are five
hours delay for lodging the NCR and the
delay has not been explained which
creates doubt in the prosecution story, it
cannot be ruled out that the FIR lodged
against
the
appellants
with
due
deliberation and fabrication.

15. It is also submitted by learned
counsel for the appellants that only the
interested and related witnesses produced
by the prosecution. P.W. 1 is the husband
of injured Sudamiya P.W. 3 and brother
in-law of the deceased Shiv Nandan.
P.W. 2 is the interested witness as the
litigation pending between P.W. 2 and
appellants and no independent witnesses
is produced by the prosecution, so no
reliance can be placed on the evidence of
interested and relative witnesses.

16. Next submission is that place of
occurrence is not intact although blood
stained and plain earth were taken by the
Investigating Officer, but the same was not
sent for Senologist examination, so the
prosecution failed to establish the place of
occurrence. It is also submitted that the
complainant P.W. 1 was examined by the
prosecution as eyewitness. If P.W. 1 had
seen the occurrence and he was present at
the place of occurrence, than naturally he
should also suffered injures, so the
presence of P.W. 1 at the place of
occurrence is highly doubtful. So, no
reliance can be placed on the evidence
adduced by P.W. 1, hence the evidence led
by P.W. 1 is fabricated and manufactured.

17. It is also submitted that injured
witness P.W. 4 Sudamiya in her
statement clearly stated that apart from
convicted accused, two others accused
namely Daya Shankar and Rama Shankar
have also participated in this crime and
beaten the injured, but Daya Shankar and
Rama Shankar were not named in the
FIR, so the whole prosecution story is
doubtful. It is further submitted that
deceased Shiv Nandan, when he reached
to the police station, he was in conscious
position,
but
there
is
no
dying
declaration.

18. Lastly, learned counsel for the
appellants submitted that the date of
incident was 14.06.1989 and more than
31 years have been elapsed and in such a
long time no useful purpose would be
served, if the surviving appellants again
sent to jail to serve out the sentence.
Regarding these, it is requested that
quantum of sentence be reduced as
period
already
undergone,
learned
counsel for the appellants has relied upon
the following judgment:-

1.
Rajendrar
Harakchand
Bhandari and others vs. State of
Maharashtra and another (2011) 13
SCC 311, in which the Hon'ble Apex has
held that;

"....................The
appellants
are agriculturists by occupation and
have no previous criminal background.
There has been reconciliation amongst
parties;
the
relations
between
the
appellants and the victim have become
cordial and prior to the appellants'
surrender, the parties have been living
peacefully in the village. The appellants
have already undergone the sentence of
more than two-and-a-half years. Having
regard to these circumstances, we are
satisfied that ends of justice will be met if
the substantive sentence awarded to the
8 All. Ram Swaroop & Ors. Vs. State of U.P.
537
appellants is reduced to the period
already undergone while maintaining the
amount of fine" .

2. Badal Murmu and others
vs. State of West Bengal (2014) 3 SCC
366, in which Hon'ble Apex Court
converted the case from under Section
302 read with section 149 IPC to Section
304 Part II read with Section 149 IPC
awarded the sentence of 14 years to meet
the ends of justice.

3. Pritam Singh vs. State of
Delhi 1995 0 Supreme (Del) 347 in
Delhi High Court "the conviction of the
appellant converted from Section 307
IPC to Section 326 IPC. Considering the
age of the appellant on the date of
occurrence and looking into circumstance
in which offence committed and the
nature of injury caused to the victim,
Delhi High Court sentenced the appellant
is reduced to the sentence already
undergone.

19. Learned AGA vehemently
opposed and submitted that the witnesses
produced by the prosecution clearly
established
the
case
against
the
appellants. It is also submitted that P.W.
1 was present on the spot, but he could
not save the deceased as well as his wife,
P.W. 4. On this basis that P.W. 1 had not
received injuries it cannot be said that he
was not present on the spot. It is also
submitted that there is no delay in
lodging the NCR, because first of all,
after the incident the injured P.W. 4
Sudamiya and deceased Shiv Nandan
were
brought
to
the
hospital
for
treatment. After admitting the injured and
deceased to the PHC Bahuwa, the
complainant P.W. 1 went to police
station for lodging the report, so in this
case the delay is clearly explained and no
doubt could be raised for delay in
lodging the NCR. It is also submitted that
oral evidence of P.W. 1 complainant,
P.W. 2 Ram Prasad eyewitness and
P.W.4 Sudamiya have clearly established
the prosecution version and oral evidence
of
these
witnesses
have
fully
corroborated by medical evidence and
the prosecution has established the case
beyond shadow of doubt against the
appellants and as such the appeal is liable
to be dismissed.

20. Learned AGA has submitted
that so far as the reduction of sentence is
concerned in this case, P.W. 4 got
grievous injury and the appellants have
common intention allegedly commit the
murder of Shiv Nandan by means of lathi
and danda, so learned trial court already
show the leniency while sentencing the
appellants
for
5
years
rigorous
imprisonment under section 304 part II.

21. In these circumstances, there is
no occasion to reduce the sentence
already undergone by the appellants and
case law cited by the appellants is not
applicable in present case.

22. In this case, prosecution has
examined 7 witnesses the first of all, I
discussed the statement of Dr. M.H.
Khan, P.W. 5. He has stated in his
statement that on 19.06,1989, he was
posted in the District Hospital Fatehpur.
As per X-ray report of Smt. Sudamiya
shaft of radius and ulna bone of lower
part was fractured and advised X-ray
report, which is proved as Ext. Ka-5. Dr.
M.H. Khan opined that injury was
grievous in nature. This witness has also
proved the autopsy report of the deceased
Shiv Nandan as Ext. Ka-6, by adducing
538 INDIAN LAW REPORTS ALLAHABAD SERIES
secondary evidence which is prepared by
Dr. Raizada, who reported to be no more
at the time of examination of P.W. 5.

23. P.W. 6 Dr. B. Kumar Pateria
has stated that on 14.06.1989 he was
posted as Medical Officer In charge at
PHC Bahuwa, at about 9.00 p.m. he
examined Shiv Nandan and found the
following injury:-

1. Lacerated wound 2cmx 2cm x muscle
deep on the right side of forehead.

2. Lacerated wound 6cm x 1⁄2
cm. X skin deep on the right side of
vertebrae of skull.

3. Lacerated wound 6cm x 1cm
x muscle deep on the occipital region of
skull.

4. Contusion 7cm x 2- 1⁄2 cm.
On the right side of chest 7cm below
right nipple.

5. Contusion 8cm x 3cm on the
lateral side on the middle right forearm.

6. Abrasion 1cm x 1 cm. On
the right elbow joi8nt, backside.

7. Contusion 8cm x 3cm on the
right upper arm on the outer side.

8. Contusion 7cm x 4cm on the
back side of right portion of abdomen.

9. Abrasion 3cm x 2cm on the
back side of the right chest.

10. Contusion 6cm x 3cm on
the outer side of right thigh.

11. Contusion 3cm x 2- 1⁄2 cm.
On right side thigh, 9cm above the right
knee joint on the front side.

12. Abrasion 3m x 2- 1⁄2 cm on
the front of left thigh.

Injury nos. 1, 2 and 3 under
observation and advised X-ray and rest
injury are simple in nature. All the injury
were caused by hard and blunt weapon
like lathi and danda. Injury report Ext.
Ka 9.

24. This witness has further stated
that the deceased died about 12.15
midnight.

25. Injury report of P.W. 4
Sudamiya was admitted by appellant
counsel during trial under section 294
Cr.P.C. as Ext. Ka-19.

26. So far as the first contention of
the appellants is that the occurrence has
taken place on 14.06.1989 at about 5.30
p.m. and NCR was lodged on 14.06.1989
at about 10.30 p.m. in P.S. Lalauli,
District Fatehpur, so the FIR was lodged
against the appellants about 5 hours
delay, which is not at all explained by the
first informant for delay in lodging the
FIR. The delay in lodging the FIR given
rise to the fact that the appellants have
been falsely implicated in this case.

27. Learned AGA has submitted
that the delay in lodging the FIR is
clearly explained by the first informant.
P.W.1 first informant, is villagers and
rustic person and after the incident, first
informant manage the conveyance and
reached to the hospital for medical
treatment to injured Sudamiya and Shiv
Nandan and thereafter, he reached to the
police station Lalauli for lodging the FIR.
There are many factors which have been
taken into consideration while looking
into the factum of delay in lodging the
FIR in police station Lalauli. It is true
that court has duty to take notice of delay
and examined the same in a backdrop of
a factual score whether there is any
expectable explanation offered by the
prosecution
but
when
delay
is
satisfactorily
explained
no
adverse
8 All. Ram Swaroop & Ors. Vs. State of U.P.
539
inference is to be drawn. It is to be seen
whether there has been possibility of
embellishment in the prosecution version
on account of such delay.

28. In this connection it will be
useful to take note of the following
observation made by Apex Court in Tara
Singh & Ors. v. State of Punjab, AIR
1991 SC 63 :

"The delay in giving the FIR
by itself cannot be a ground to doubt the
prosecution case. Knowing the Indian
conditions as they are, one cannot
expect these villagers to rush to the
police station immediately after the
occurrence. Human nature as it is, the
kith and kin who have witnessed the
occurrence cannot be expected to act
mechanically with all the promptitude in
giving the report to the police. At times
being grief-stricken because of the
calamity it may not immediately occur to
them that they should give a report.
After all it is but natural in these
circumstances for them to take some
time to go the police station for giving
the report. Of course, in cases arising
out of acute factions there is a tendency
to implicate persons belonging to the
opposite faction falsely. In order to avert
the danger of convicting such innocent
persons the Courts should be cautious to
scrutinize
the
evidence
of
such
interested witnesses with greater care
and caution and separate grain from the
chaff after subjecting the evidence to a
closer scrutiny and in doing so the
contents of the FIR also will have to be
scrutinised carefully. However, unless
there are indications of fabrication, the
Court cannot reject the prosecution
version as given in the FIR and later
substantiated by the evidence merely on
the ground of delay. These are all
matters for appreciation and much
depends on the facts and circumstances
of each case."

29. Thus delay in lodging F.I.R. has
been very satisfactorily and reasonably
explained which has also been discussed
by trial court and in this case delay is not
at all fatal for prosecution case. It cannot
be said that delay in lodging the FIR
adversely effected the appellants.

30. One of the argument is that only
interested and related witnesses were
examined by the prosecution. It is well
settled that the evidence of interested
witnesses cannot be discarded on the sole
ground of interestedness, but their
evidence should be subjected to a close
scrutiny. Interested witnesses are not
necessarily false witnesses. Evidence of
interested witnesses cannot be equated
with that of a tainted witness. There is no
absolute rule that the evidence of an
interested witness cannot be accepted
without corroboration. There is no
proposition in law that relatives are to be
treated as untruthful witnesses. In view
of the evidence on record, the evidence
of PW 1 can not be disbelieved on
ground that he is brother in law of the
deceased. P.W. 1 is natural witness
whose
presence
on
the
place
of
occurrence
is
fully
established.
Contention of learned counsel for the
appellants is that if, P.W. 1 was present
on the spot, he also received injury. P.W.
2 Ram Prasad and P.W. 4 Sudamiya have
categorically stated in their statements
that P.W. 1 immediately came on the
place of occurrence at the time of
incident. In case, the circumstances
relates that the witness was present and
had witnessed the entire episode and his
540 INDIAN LAW REPORTS ALLAHABAD SERIES
deposition cannot be discarded merely on
the ground of being closely related to the
victim and they shield the actual culprit
and unlikely to falsely implicate the
appellants. Relationship is not sufficient
to discredit a witness unless there is
motive to give false evidence to spear the
real culprit and falsely implicate an
innocent person is alleged and proved.

1. In State of Punjab Vs
Hardam Singh, 2005, S.C.C. (Cr.) 834,
it has been held by the Hon'ble Apex
Court that ordinarily the mere relations of
the deceased would not depose falsely
against innocent persons so as to allow
the real culprit to escape unpunished,
rather the witness would always try to
secure conviction of real culprit.

2. Hon'ble Supreme Court in
Dalbir Kaur v. State of Punjab, AIR
1977 SC 472. The mere fact that the
witnesses were relations or interested
would not by itself be sufficient to
discard their evidence straight way unless
it is proved that their evidence suffers
from serious infirmities which raises
considerable doubt in the mind of the
court.

31. On considering the Apex Court
law it is clear that presence of P.W. 2
Ram Prasad and P.W. 4 Sudamiya,
injured witness, is quite natural and there
is no reason to false implication of the
appellants in this case and their evidence
suffers no infirmity and learned trial
court has appreciated the evidence and
rightly recorded the finding against the
appellants.

32. One of the submission of
learned counsel for the appellants is that
the place of occurrence is not intact,
because the plain earth and blood stained
were recovered which is proved by P.W.
7 Investigating Officer, but the same has
not been sent for chemical examination
by the prosecution.

33. Learned AGA has submitted
that the defence counsel has neither
controverted the execution of Ext Ka 9
by adducing evidence during trial, nor
any suggestion raised on behalf of
defence that the place of occurrence is
not intact and doubtful, witness of fact
P.W 1, P.W. 2 and P.W. 4 have clearly
established the place of occurrence.

34. One of the argument of learned
counsel for the appellants is that no
weapon of offence as lathi and danda has
been recovered. it would be relevant to
mention that recovery of weapon might
have further strengthen the prosecution
case but it is not sine qua non for
sustaining conviction. In fact it was the
duty of the Investigating Officer to
recover the weapons used in the incident.
If there is any laxity on the part of the
investigating officer in this regard, it can
not be ground to doubt the testimony of
PW 1, PW 2 and P.W. 4 which is clear
and cogent. The consistent and reliable
testimony of witnesses can not be
disbelieved merely on the ground that the
recovery of weapons has not been made,
particularly
when
evidence
clearly
suggests that the injuries sustained by the
deceased were caused by the weapons
attributed to the accused persons.

35. On perusal of evidence of the
witnesses of fact it transpires that the oral
evidence is duly corroborated with
medical evidence. There is no major
contradiction in the statements of the
witnesses, prosecution is fully proved his
8 All. Ram Het & Ors. Vs. State of U.P.
541
case beyond shadow of doubt hence the
learned trial court has rightly appreciating
each aspect of the case so finding of
conviction of the appellants under section
304 part II and 325/34 IPC hereby affirmed.

36. Last argument raised by learned
counsel for the appellants is that the incident
in question took place on a sudden fight
without any premeditation and the act of the
appellants
hitting
the
deceased
was
committed in the heat of passion upon a
sudden quarrel without the appellant having
taken undue advantage or acting in a cruel
or unusual manner and the weapon used
was not lethal. It is also not clear that out of
four accused, who were responsible to
commit fatal injury on the deceased and
grievous injury to Sudamiya (P.W.4). Only
general role has been assigned against the
appellants. It is also submitted that more that
31 years has already been elapsed and two
named appellants Ram Swaroop and
Chandra Sevak died during pendency of
appeal.
Presently
only
appellants
Umashankar
and
Kripashankar
are
surviving appellants. It has been claimed
that appellant Umashankar presently around
67 years old and Kripashankar is about 61
years. Presently both the appellants are well
rooted in society, submitted that no useful
purpose would be served if the surviving
appellants again sent into jail to serve out
the remaining part of the sentence.

37. Considering the entire facts and
circumstances of the case, appellants presently
senior citizen and there is no specific proof that
the fatal blow was inflicted by appellants. The
sentence so awarded by the trial court under
section 304 part II appears to be harsh under
these circumstances and the same may be
reduced from 5 years rigorous imprisonment to
3 years rigorous imprisonment as that would
meet the end of justice.

38. Accordingly appeal against both
the appellants on point of conviction is
hereby dismissed but partly allowed. Only
on point of quantum of sentence, sentence
under section 304 part II IPC sentence of 5
years rigorous imprisonment modified to 3
years rigorous imprisonment. Sentence part
under section 325/34 IPC shall remain
unaltered. Both the sentence shall run
concurrently. The period spent by appellants
in jail shall be set off from this sentence.

39. The appellants are on bail. Their
bail bonds stand cancelled. They are directed
to surrender within four weeks to serve out
the remaining period of sentence.

40. Consequently, the instant appeal
is allowed partly on above term.

41.

Let
a
copy
of
this
order/judgment be certified to the court
below for necessary information and
ensuring compliance within 2 months
under intimation to this Court.
----------
(2020)08ILR A541
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 1085 of 2012

Ram Het & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ghanshyam Das, Sri Hemant Kumar, Sri
Jitendra Singh, Sri Satya Prakash Rathor, Seema
Shukla, Sri Vinod Kumar, Sri Kamal Krishna, Sri
Nitin Mukesh, Sri V.M. Zaidi, Sri Lal Chandra
Mishra, Smt. Usha Srivastava, Sri M.J. Akhtar.