# Rudal Singh & Ors v. State

- **Citation:** (2016) 5 ILRA 1540
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-17
- **Bench:** Ramesh Sinha, Vinod Kumar Srivastava-Iii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rudal-singh-ors-v-state-43784
- **Pages:** 11

## Headnote

The present criminal appeal was preferred against the judgment and order dated 22.11.1982 passed by the
IInd Additional Sessions Judge, Gorakhpur in Sessions Trial No. 537 of 1981. By the impugned judgment, the
trial court convicted the appellants under Sections 302 read with 34 IPC and sentenced them to imprisonment
for life, and further convicted them under Section 307 read with 34 IPC awarding seven years' rigorous
imprisonment. During pendency of the appeal, appellant no.1 Rudal Singh died and his appeal stood abated
vide order dated 09.02.2012. The appeal survived in respect of appellants Pirthviraj Singh and Prahlad Singh.
The Division Bench heard learned counsel for the appellants and learned A.G.A. for the State and reappreciated the entire oral and documentary evidence on record to examine the correctness of conviction and
sentence awarded by the trial court.

Procedure:
The case originated from an FIR lodged on 09.06.1980 at Police Station Sahjanwa, District Gorakhpur, initially
registered under Sections 147, 307, 323 and 506 IPC. After the death of injured Sukh Lal, the case was
converted to one under Section 302 IPC. Investigation was conducted by Sub-Inspector Kateshwar Tewari
and later completed by Station Officer Ram Awadh Prasad Chaudhary, who submitted the charge-sheet under
Sections 147, 302/149 and 307/149 IPC. The case was committed to the Court of Sessions where charges
were framed under Sections 147, 302/149 and 307/149 IPC. The prosecution examined ten witnesses and
proved twenty documentary exhibits. The accused denied the prosecution case in their statements under
Section 313 Cr.P.C. and claimed false implication due to enmity. Upon conclusion of trial, three accused were
convicted while five were acquitted. Aggrieved by the conviction, the present appeal was preferred.

Penal Sections Involved:
Section 302 read with Section 34 IPC
Section 307 read with Section 34 IPC
5 All. Rudal Singh & Ors. Vs State

1541
Section 325 read with Section 34 IPC (altered conviction)
Section 308 read with Section 34 IPC (altered conviction)
Section 313 Cr.P.C.

Case Law Referred:
State of U.P. v. Kallu Lal and Others, 1985 LawSuit (All) 475

(Approved by the Hon'ble Supreme Court)

Head Notes:
In a case of group assault with lathis resulting in death, where participation of the accused is proved beyond
reasonable doubt but the prosecution fails to establish the identity of the assailant who caused the fatal
injury, conviction under Section 302 read with Section 34 IPC cannot be sustained. When only one fatal injury
on a vital part is found and its author is not identified, common intention to commit murder cannot be safely
inferred. In such circumstances, conviction is liable to be altered to Section 325 read with Section 34 IPC.
The testimony of an injured witness carries great evidentiary value and ordinarily commands acceptance
unless serious contradictions or infirmities ar

## Text

1540 INDIAN LAW REPORTS ALLAHABAD SERIES
53. Let a copy of this judgment along with the trial court record be sent to the court
concerned for compliance.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VINOD KUMAR SRIVASTAVA-III, J.

Criminal Appeal No.- 2914 Of 1982

Rudal Singh & Ors. Appellants
Versus
State Respondent

Counsel for the Appellants:
T. Rathore, Anil Raghav, Balwant Singh, O.P. Singh, S.P. Singh

Counsel for the Respondent:
 A.G.A.

Proceedings:
The present criminal appeal was preferred against the judgment and order dated 22.11.1982 passed by the
IInd Additional Sessions Judge, Gorakhpur in Sessions Trial No. 537 of 1981. By the impugned judgment, the
trial court convicted the appellants under Sections 302 read with 34 IPC and sentenced them to imprisonment
for life, and further convicted them under Section 307 read with 34 IPC awarding seven years' rigorous
imprisonment. During pendency of the appeal, appellant no.1 Rudal Singh died and his appeal stood abated
vide order dated 09.02.2012. The appeal survived in respect of appellants Pirthviraj Singh and Prahlad Singh.
The Division Bench heard learned counsel for the appellants and learned A.G.A. for the State and reappreciated the entire oral and documentary evidence on record to examine the correctness of conviction and
sentence awarded by the trial court.

Procedure:
The case originated from an FIR lodged on 09.06.1980 at Police Station Sahjanwa, District Gorakhpur, initially
registered under Sections 147, 307, 323 and 506 IPC. After the death of injured Sukh Lal, the case was
converted to one under Section 302 IPC. Investigation was conducted by Sub-Inspector Kateshwar Tewari
and later completed by Station Officer Ram Awadh Prasad Chaudhary, who submitted the charge-sheet under
Sections 147, 302/149 and 307/149 IPC. The case was committed to the Court of Sessions where charges
were framed under Sections 147, 302/149 and 307/149 IPC. The prosecution examined ten witnesses and
proved twenty documentary exhibits. The accused denied the prosecution case in their statements under
Section 313 Cr.P.C. and claimed false implication due to enmity. Upon conclusion of trial, three accused were
convicted while five were acquitted. Aggrieved by the conviction, the present appeal was preferred.

Penal Sections Involved:
Section 302 read with Section 34 IPC
Section 307 read with Section 34 IPC
5 All. Rudal Singh & Ors. Vs State

1541
Section 325 read with Section 34 IPC (altered conviction)
Section 308 read with Section 34 IPC (altered conviction)
Section 313 Cr.P.C.

Case Law Referred:
State of U.P. v. Kallu Lal and Others, 1985 LawSuit (All) 475

(Approved by the Hon'ble Supreme Court)

Head Notes:
In a case of group assault with lathis resulting in death, where participation of the accused is proved beyond
reasonable doubt but the prosecution fails to establish the identity of the assailant who caused the fatal
injury, conviction under Section 302 read with Section 34 IPC cannot be sustained. When only one fatal injury
on a vital part is found and its author is not identified, common intention to commit murder cannot be safely
inferred. In such circumstances, conviction is liable to be altered to Section 325 read with Section 34 IPC.
The testimony of an injured witness carries great evidentiary value and ordinarily commands acceptance
unless serious contradictions or infirmities are shown. Minor discrepancies do not corrode credibility when the
testimony is corroborated by medical evidence and other eyewitness accounts. Evidence of related witnesses
cannot be discarded merely on the ground of relationship when it is natural, cogent and trustworthy.
Where injuries caused to the injured witness do not disclose intention or knowledge requisite for an offence
under Section 307 IPC, conviction under that provision is unsustainable and may be altered to Section 308 IPC
depending upon the nature of injuries, weapon used and surrounding circumstances. Prior enmity, though a
double-edged sword, assumes secondary importance where reliable ocular evidence is available.

Facts:
Incident occurred on 09.06.1980 at about 9:00 A.M. at Kiraiya Nala, District Gorakhpur.
Deceased Sukh Lal and injured Babu Lal were fishing when accused demanded fish.
On refusal, accused assaulted them with lathis.
Sukh Lal sustained head injuries and later died.
Babu Lal received multiple injuries but survived.
FIR lodged by Smt. Sunari Devi at 2:00 P.M. the same day.
Medical examination and post-mortem corroborated lathi injuries.
Trial court convicted three accused; five were acquitted.

Contentions:

On behalf of the Appellants:
False implication due to prior enmity.
No motive to commit murder.
Author of fatal injury not established.
At best, offence falls under Section 325/34 IPC.
Injuries on Babu Lal do not attract Section 307 IPC.

On behalf of the State:
Participation and common intention clearly proved.
Ocular evidence corroborated by medical evidence.
Conviction recorded by trial court justified.

Analysis:
Presence of accused at the scene is proved by injured and eyewitness testimony.
1542 INDIAN LAW REPORTS ALLAHABAD SERIES
Evidence of PW-3 (injured witness) inspires confidence and is corroborated.
Medical evidence confirms death due to head injury.
Only one fatal injury was found on the deceased.
Prosecution failed to prove which accused caused the fatal injury.
Common intention to commit murder not conclusively established.
Ratio laid down in State of U.P. v. Kallu Lal squarely applicable.
Injuries on Babu Lal not sufficient to infer intention to commit murder.

Conclusion:
The High Court held that while the participation of the appellants in the assault was proved beyond
reasonable doubt, conviction under Sections 302/34 and 307/34 IPC could not be sustained due to failure of
the prosecution to establish the author of the fatal injury and the requisite intention to commit murder.
Consequently, the conviction was altered to Sections 325/34 IPC and 308/34 IPC respectively. The appeal was
partly allowed, sentences were modified accordingly, and the appellants were directed to surrender to serve
the remaining sentence.

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present criminal appeal has been preferred against the judgment and order dated
22.11.1982 passed by IInd Additional Sessions Judge, Gorakhpur in S.T. No.537 of 1981
convicting the appellants under Sections 302/34 I.P.C. and sentencing them to life imprisonment
and further convicting them under Section 307/34 I.P.C. and sentencing them to 7 years R.I.

2. The facts which emerges out from the present case are that an FIR was lodged by by
Smt. Sunari Devi on 9.6.1980 stating therein that at about 9 A.M. In the morning, she along with
her husband, namely, Babu Lal and Jeth, namely, Sukh Lal was fishing at Kiraiya Nala. Shyam
Deo and Bhajan Lal besides herself were sitting there to look after the collected fish, when the
accused Rudal Singh son of Dashrath Singh, Ranjit Singh son of Rudal Singh, Pirthviraj Singh son
of Rudal Singh, Prahlad Singh son of Rudal Singh, Dhruv Singh son of Rudal Singh, Sri Narain
Singh son of Lallan Singh, Sharwan Singh son of Sri Narain Singh, Narsingh son of Param Singh,
all resident of Village Patka, Police Station-Sahjanwa, District Gorakhpur armed with lathis had
arrived at the place of occurrence and all of them tried to take away all the fishes from her husband
and her Jeth and further stated that if the same was not given to them they should be done to death,
on which all the accused persons forcibly started taking away the fish and on a protest and
resistance being made by her husband and Jeth, all the accused persons started assaulting them with
lathis on which they had fallen down. On account of the fear of the accused persons, Shyam Deo
and Bhajan and she herself could not made any resistance or say anything and the accused after
committing the crime in question had fled away from the place of occurrence. On a alarm being
raised, many persons of the village had arrived there and they took her husband and Jeth in an
injured condition to the District Hospital, Gorakhpur who were also in an unconscious condition.
Thereafter the FIR of the incident was lodged by the PW1- Smt. Sunari Devi , wife of Babu Lal at
the Police Station-Sahjanwa, District Gorakhpur at 2 P.M. which was at a distance of 6 miles from
the place of occurrence on the same day for the offence under Sections 147/307/ 323/506 I.P.C.,
which was marked as Ex. Ka.-7 and the said FIR was also endorsed in the General Diary by the
Head Moharrir, namely, Ram Chandra Pandey of the concerned police station.
5 All. Rudal Singh & Ors. Vs State

1543
3. The injured, namely, Sukh Lal was examined at District Hospital, Gorakhpur by Dr.
S.J.Singh on 9.6.1980 at 12.55 P.M. and his injuries was proved as Ex. Ka.-3.

4. Similarly, the injured, namely, Babu Lal was also examined by the same doctor on the
same day at about 1.15 P.M. on 9.6.1980 and his medical report was proved as Ex. Ka.-4.

5. The injured, namely, Sukh Lal died subsequently on account of the injuries sustained by
him, hence, the case was converted under Section 302 I.P.C. The post mortem of the deceased Sukh
Lal was conducted by Dr. K.K. Mall (PW-2) on 10.6.1980 at 4.30 P.M. and the same was marked
as Ex. Ka.-2

6. The investigation of the case was conducted by PW10, Kateshwar Tewari and the same
was concluded by PW8, Ram Oudh Prasad Chaudhary who was the then S.O. of Police StationSahjanwa, District Gorakhpur who took over the investigation from Kateshwar Tewari, PW10, and
submitted charge sheet against all the accused persons on 14.7.1980 for the offence under Sections
147, 302/149/307/149 I.P.C. which has been proved as Ex. Ka.-10.

7. The case was committed to the Court of Sessions, on which charges were framed against
all the accused persons by the trial Court on 19.3.1982 for the offence under Sections 147/302 read
Section 149 I.P.C. and 307 read with Section 149 I.P.C., who denied the prosecution case and
claimed trial.

8. The accused in their statements under Section 313 Cr.P.C. denied the prosecution case
and stated that they have been falsely implicated in the present case due to enmity. As regards the
eye witnesses, they are said to be of one family. The accused did not adduce any oral evidence in
defence.

9. The prosecution in support of its case has examined 10 witnesses and 20 documents for
proving its case which are on record.

10. PW1-Smt. Sunari Devi, wife of Babu Lal, has reiterated the prosecution case as has
been stated by her in the FIR . As per her evidence before the trial Court, she deposed that at about
9 am. in the morning her husband-Babu Lal and her husband's elder brother Sukh Lal (Jeth) were
fishing in Kiraiya Nala. Shyam Deo and Bhajan besides herself were sitting there to look after the
collected fish when the accused Rudal Singh son of Dashrath Singh, Ranjit Singh son of Rudal
Singh, Prithviraj Singh son of Rudal Singh, Prahlad Singh son of Rudal Singh, Dhruv Singh son of
Rudal Singh, Sri Narain Singh son of Lallan Singh, Sharwan Singh son of Sri Narain Singh,
Narsingh son of Param Singh, all resident of Village Patka, Police Station-Sahjanwa, District
Gorakhpur armed with lathis came on the spot who were armed with lathis and they stated that they
should take away all the fishes and in case any obstruction is done they would kill them. Thereafter,
all the accused persons tried to take away the fish from her husband and her Jeth who refused to
fulfill the illegal demand made by the accused persons. Soon thereafter, all the accused persons
started belaboring her husband and her Jeth. On raising hue and cry, many people of the village
1544 INDIAN LAW REPORTS ALLAHABAD SERIES
arrived on the spot. Shayam Deo, Bhajan and the complainant could not offer any resistance. When
several persons of the village arrived there, she could bring her husband and her husband's elder
brother (Jeth) in a precarious condition to District Hospital, Gorakhpur. She further told that the
injured persons were still unconscious and made a report to the concerned police station for taking
necessary action.

11. PW3-Babu Lal who is also an injured witness and brother of deceased Sukh Lal has
deposed before the trial Court that on the day of occurrence, two years ago, he and his brother Sukh
Lal were fishing in Kiraiya Nala. Shyam Deo and Ram Bhajan, besides his wife Smt. Sunari Devi
were present. He further stated that Ram Bhajan and Shyam Deo are the sons of Khoob Lal. Sukh
Lal (the deceased ), Babu Lal (PW3) and Khoob Lal are the real brothers being the sons of Shitalu
(PW6). He has further deposed that they were fishing on the northern bank of Nala while Komal,
Lakhan and Lakhraj were fishing on the southern bank of Nala. The accused arrived on the scene of
occurrence traversing culvert on the Nala. They demanded a share of fishes from the deceased
brother, namely, Sukh Lal, who refused to fulfill their demand. Thereupon, on the exhortation of
Rudal Singh who told Pirthviraj and Prahlad Singh to assault him, on which the said Pirthviraj and
Prahlad Singh had given lathi blows to Sukh Lal who received head injury and fell on the ground.
He tried to save his brother and also received lathis injury and fell on the ground and became
unconscious. He during the course of evidence has admitted that there was an old enmity between
the parties.

12. PW4-Ram Lakhan is also an eye witness. He claims to have been fishing at the time
and date of occurrence on the southern bank of Kiraiya Nala, but Babu Lal and Sukh Lal were
fishing on the northern bank of the Nala. He has supported the evidence of PW1 and PW3 about the
manner of assault and further stated that the two brothers had become unconscious. He further in
his cross-examination has stated that he has not appeared as a witness in any case earlier and he
further showed the place of occurrence to the Investigating Officer where Sukh Lal and Babu Lal
had fallen.

13. PW6-Shitalu is the father of the deceased Sukh Lal and injured Babu Lal. He has
deposed on the point of motive and has tried to prove existence of old enmity. He stated that 10-12
years ago, he had taken a contract for fishing on the boundary of Saidabad. Rudal Singh and others
had looted his fishes for which he lodged a report. He further deposed that Rudal Singh is the same
person who is an accused in this case. He further submitted that prosecution was launched in which
a compromise was made and the accused were acquitted. This witness has further deposed about
the occurrence which took place on 25.2.1980, i.e., about 4 months earlier to the occurrence in
which Pirthviraj and Sundar had let loose their cattle in his field and he had objected to the illegal
grazing, whereupon he and his daughter-in-law were assaulted and for which he lodged a report
marked as Ex. Ka.-5. He further deposed that no heed was paid to his grievance and so he moved
an application to the District Magistrate and Superintendent of Police, Gorakhpur. A copy of the
said application is marked as Ex. Ka.-6.
5 All. Rudal Singh & Ors. Vs State

1545
14. PW5- Dr. S.J. Singh is the formal witness who was posted as Medical Officer, District
Hospital Gorakhpur on 9.6.1980. He has deposed that at 12.55 P.M. he examined the injuries of
Sukh Lal and prepared injury report, marked as Ex. Ka.-3. The general condition of the injured
Sukh Lal was poor and patient was also unconscious. The doctor found the following injuries on
the person of Sukh Lal :-

1. Lacerated wound Â1⁄2 cm x Â1⁄4 cm x depth margin probed on the left side head 9
cm. above the left eyebrow. Bleeding with a traumatic swelling 12 cm. X 10 cm. around the above
injury. Injury kept under observation. Advised X-ray of the skull.

2. Traumatic swelling 14 cm. X 8 cm. on the right side head including temporal
region just above the right ear. Injury kept under observation. Advised X-ray of the skull.

3. Contusion 9 cm. X 2 cm. on the back of right shoulder.

4. Contusion 3 cm. X 2 cm. on the right side back including buttock oblique.

5. Multiple contusion in an area of 15 cm. X 11 cm. on the right buttock. Red.

6. All injuries on the back could not be recorded due to serious condition of the
patient.

15. About injuries nos.1 and 2, he advised taking X-ray photographs while injuries nos. 3,
4 & 5 were simple. All the injuries could be cause by lathis. Patient was in gasping stage.

16. PW5- Dr. S.J. Singh has further deposed that on the day at 1.15 P.M., he examined
injuries of PW3-Babu Lal and prepared injury report marked as Ex. Ka.-4. He deposed that the
general condition of the patient was low and he found the following injuries on the person of
injured Babu Lal:-

1. Lacerated wound 4 cm. x Â1⁄2 cm. x scalp deep on left side head. 4 cm. above the
left eye brow. Bleeding.

2. Lacerated wound 6- Â1⁄2 cm. x 1/2 cm. x scalp deep on right side head, 7 cm.
above the right eye brow. Bleeding.

3. Lacerated wound 8 cm. x 1 cm. x scalp deep on the right side head 6 cm. above
the right ear. Bleeding.

4. Contusion 8 cm. x 2 cm. on the back and middle part of the right forearm. Red.

5. Contusion 7 cm. x 2 cm. on the outer and middle of right upper arm. Red.
1546 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Multiple contusion in an area of 9 cm. x 7 cm. on the back of right shoulder joint.

7. Contusion 4 cm. x 2 cm. on the outer and middle of left upper arm. Red.

17. Dr. Singh has further deposed that all the injuries were fresh in duration and could be
caused by lathis. He has deposed that since there was bleeding from some of the injuries, the same
could be recently caused. He in his further cross-examination denied that he has deposed about
recent injuries to help the prosecution.

18. PW2-Dr. K.K. Mall, who was posed in District Hospital,Gorakhpur conducted the post
mortem of the deceased Sukh Lal on 10.6.1980 at 4.30 P.M. and proved the same as Ex. Ka-2 and
found the following injuries:

1. Contusion in an area of 6" x 2" on the left side of head, 4" above the left eyebrow.

2. Multiple contusion in an area of 6" x 3" on the right hand side of scapular region.

3. Multiple contusion in an area of 9" x 3" on the right hand side of buttock.

19. On internal examination, the doctor found frontal bone fractured on both sides. Parietal
bone was broken in many parts. There was half digested food in the stomach. Injury no.1 in the
opinion of the doctor was sufficient to cause death. The doctor has further opined that death
occurred due to ante mortem head injury. In his cross-examination he has deposed that the
deceased could have become unconscious 18 hours before death. In his further cross-examination
he has affirmed that the process of digestion could have continued even then the deceased had
entered in coma stage.

20. PW7- Madan Kumar was a police constable and was posed at the concerned police
station and he is scribe of formal report marked as Ex. Ka.-7 and deposed about the registration of
the case in the General Diary.

21. PW9-Nanhu Ram, who was posted as Sub Inspector at the police station Kotwali at the
relevant point of time. He submitted that memo about the death of the deceased was received at the
police station Kotwali and it was endorsed in his name on 10.6.1980 ad which was marked as Ex.
Ka.-11. This witness went to mortuary and prepared inquest report marked as Ex. Ka.-12. The
witness further prepared diagram and challan of the dead body marked as Ex. Ka.-13 and Ka.-14.
He also deposed and proved letter addressed to the doctor for holding post mortem examination,
which is marked as Ex. Ka.-15.

22. PW10-Kateshwar Tewari is the Investigating Officer of the case. He stated that he was
posted as Sub Inspector at police station Sahjanwa in June, 1980. He further deposed that the
original report along with medical report etc. were received at police station Sahjanwa on 9.6.1980
through Constable Kashi Nath and an entry in respect of this was made in the General Diary. On
5 All. Rudal Singh & Ors. Vs State

1547
the basis of the General Diary, the case was registered by Constable Virendra Singh. A carbon copy
of the General Diary is marked as Ex. Ka.-16. He further deposed that the investigation was
entrusted to him and he started investigation on 10.6.1980. He prepared the site plan Ex. Ka.-17
and collected blood stained and ordinary earth in police custody and proved the Ex. Ka.-18. He
tried to arrest the accused but could not arrest them. Ram Prit of the village gave him a Gamchha of
the deceased which was marked as Ex. Ka.-19. When he learnt about the death of injured Sukh Lal,
thereafter he converted the case under Section 302 I.P.C. He recorded the statements of witnesses
and further took a report Ex.Ka.-5 in respect of the earlier litigation. On 12.6.1980, he received post
mortem report. He recorded statements of Smt. Sunari and injured Babu Lal under Section 161
Cr.P.C. at District Hospital, District Gorakhpur. He stated that investigation was later on taken
from him by S.O. Ram Awadh Chaudhary under the orders of Circle Officer. The trial Court found
that there was some short-comings in the investigation done by him, hence, it was transferred to
S.O., namely, Ram Awadh Prasad Chaudhary under the orders of Circle Officer.

23. PW8-Ram Awadh Prasad Chaudhary who took over the investigation from PW10Kateshwar Tewari on 14.6.1980 submitted charge sheet against the accused persons which is
marked as Ex. Ka.-10.

24. The appeal of appellant no.1, namely, Rudal Singh has been abated by this Court vide
order dated 9.2.2012.

25. Heard Sri Om Prakash Singh, learned counsel for the appellants, Sri Nitin Srivastava,
learned AGA for the State and perused the record.

26. It has been argued by learned counsel for the appellants that out of eight accused
persons, five accused persons, namely, Ranjit Singh, Dhruva Singh, Sri Narain Singh, Sharwan
Singh and Narsingh have been acquitted by the trial Court and three accused persons, namely,
Rudal Singh (deceased), Pirthviraj Singh and Prahlad Singh have been convicted by the trial Court
for the offence in question by the impugned judgment and order.

27. It has been contended by learned counsel for the appellants that the appellants had no
motive to commit the crime in question but the trial Court rejected the said contention of the
accused on the ground that as per the evidence of PW6-Shitalu who is father of the deceased, there
was some bad blood between the parties on account of the fishery right.

28. It was further argued that as per the prosecution evidence, accused demanded fishes
from the deceased Sukh Lal which was refused by him appears to be false one as at the stage of
investigation the witnesses have stated that they had no fishes at that time and they would give
them later. The trial Court from the evidence on record found that the deceased had bluntly refused
to give fishes. Though there appears to be some difference in which manner refusal was made by
the deceased is immaterial. It was of the view that sometimes a polite refusal can be as offensive as
a blunt one, particularly when there is enmity in existence. It thus, follows that the deceased refused
to handover fishes collected by him. An attempt has been made to show on behalf of the accused
1548 INDIAN LAW REPORTS ALLAHABAD SERIES
that right of fishing in Aami Nadi is given by contract and so the deceased and Babulal could not
have been fishing at the time of the occurrence. The mere fact that contract for fishing is given does
not mean that no poaching is done. The trial Court had made a local inspection on the request of
learned counsel for the accused and it found that 4-5 persons fishing in Aami Nadi under the bridge
with fishing rods. The trial Court was of the view that even if it was assumed that the deceased and
Babu Lal were collecting fishes with their net in violation of the contract, the act of the accused
could not be justified if they actually made demand for fishes collected by the deceased and Babu
Lal and in ultimate assault, if the same was made. Thus, the trial Court had come to the finding that
even if the deceased and his brother were not having even contract for fishing in Aami Nadi or
Kiraiya Nala, which is not a great significance and act of the accused by launching assault was not
justified.

29. It was next argued by learned counsel for the appellants that the presence of PW1-Smt.
Sunari and PW4- Ram Lakhan at the place of occurrence appears to be doubtful as if they were
present then no effort was made to save the injured and the deceased from the hands of the accused
persons. Moreover, PW1 did not receive any injuries at the hands of the accused while her husband
and Jeth were assaulted by the accused persons who received injuries and her Jeth died later on.

30. The said contention of the learned counsel for the appellants also does not find favour
by the trial as it after analyzing the evidence of PW1-Smt. Sunari Devi found corroboration with
the evidence of PW3 who is her husband and injured and received injuries in the incident. So far as
PW4 is concerned, the trial Court was of the opinion that he was an independent witness of the
occurrence and there was no occasion for him to falsely deposed against the accused.

31. Learned counsel for the appellants tried to assail the evidence of injured Babu Lal
(PW3) by showing some discrepancy and contradictions in his statement before the trial Court from
the statement of alleged eye witness PW1 and PW4, but he could not point out any infirmity in the
evidence of PW3 which may discard the testimony of PW3 Babu Lal who received injuries on his
person which shows his presence at the place occurrence.

32. Lastly, learned counsel for the appellant has submitted that as the two appellants,
namely, Pirthviraj Singh and Prahlad Singh have been convicted and sentenced by the trial Court
for the offence under Section 302 read Section 34 I.P.C. for life imprisonment appears to be against
the evidence on record. He argued that if the evidence of the injured witness as well as of the eye
witnesses coupled with the post mortem report of the deceased are taken into account, the deceased
died on account of head injury on his person, i.e., injury no. 1 which is on the head and other
injuries, i.e., injury nos. 2 and 3 are on non-vital part of the body and no.1 is proved to be fatal, the
author of the said injury is not known and at the most the case would not travel beyond Section 325
read with Section 34 I.P.C., hence, convictioin of the appellant under Section 302 read with Section
34 I.P.C. be set aside.

33. So far as the injuries sustained by the injured, namely, Babu Lal is concerned, it was
submitted that the case would not travel beyond Section 324/34 I.P.C.
5 All. Rudal Singh & Ors. Vs State

1549
34. In support of his contention, learned counsel for the appellants has placed reliance upon
a judgment of this Court in the case of State of U.P. Vs. Kallu Lal and Others, reported in 1985
Law Suit (All) 475, which was also upheld by the Apex Court in which on the similar facts and
circumstances of the case, accused were convicted for offence under Section 325/149 I.P.C. for 7
years R.I. hence, the conviction and sentence of the appellants passed in the aforesaid case under
Section 302/34 I.P.C. for life imprisonment be set aside.

35. Learned AGA on the other hand has vehemently refuted the arguments of learned
counsel for the appellants and has submitted that the finding recorded by the trial Court regarding
conviction of the appellants appears to be correct, but so far as the last contention of the learned
counsel for the appellants is concerned, after taking into account the injuries sustained by the
deceased and the injured, he could not dispute the proposition of law as has been held by this Court
in the case of State of U.P. Vs. Kallu Lal and Others (supra).

36. After having considered the rival contention of the learned counsel for the parties and
scanning the evidence on record, the participation of the appellants in the incident cannot be ruled
out particularly, the evidence of the injured Babu Lal (PW3) and coupled with the evidence of
PW1-Smt. Sunari Devi and PW-4-Ram Lakhan, which is corroborated by the medical evidence of
the injured and deceased, the finding of conviction recorded by the trial Court against the appellant
appears to be justified and correct and requires no interference by this Court.

37. But so far the conviction and sentence of the appellants under Section 302/34 for life
imprisonment and 307/34 I.P.C. for seven years R.I. is concerned, it appears to be against the
evidence on record as the deceased received one fatal injury on his head, i.e., injury no.1 and cause
of death as per the post mortem report is head injury, but the author of the said injury is not known.
Hence, the contention raised by the learned counsel for the appellants regarding conviction and
sentence of the appellants under Section 302/34 I.P.C. appears to have substance, particularly, in
view of the case law relied upon by the learned counsel for the appellants in the case of State of
U.P. Vs. Kallu Lal and Others (supra). Therefore, conviction and sentence of the appellants
under Section 302/34 I.P.C. for life imprisonment is hereby set aside and the appellants are
convicted for the offence under Section 325 read with Section 34 I.P.C. for seven years rigorous
imprisonment.

38. Similarly, so far as the conviction and sentence of the appellants under Section 307/34
I.P.C. for seven year rigorous imprisonment for assaulting injured Babu Lal (PW3) is concerned,
considering the injuries of the injured it also appears to be against the evidence on record and the
same is also hereby set aside and the appellants are hereby convicted and sentenced under Section
308 I.P.C. read with Section 34 I.P.C. for three years rigorous imprisonment.

39. The appellants, namely, Pirthviraj Singh and Prahlad Singh are on bail. Their bail
bonds are cancelled and sureties are discharged. The appellants shall surrender within six weeks
from today, failing within they shall be taken into custody forthwith to serve out the sentence as
awarded by the trial Court.
1550 INDIAN LAW REPORTS ALLAHABAD SERIES
40. With the foregoing discussions, the present appeal stands partly allowed.

41. Let a copy of this order be sent to the Session Judge, Gorakhpur for necessary
information and its compliance.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2016

BEFORE

THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 3034 Of 1982
&
Criminal Appeal No.- 3138 Of 1982

Akhilesh Kumar & Anr. ...Appellants
Versus
State ...Respondent

Counsel for Appellants:
P.N.Misra, Anil Kumar Pathak, Vishwa Ratna Dwivedi

Counsel for Respondent:
D.G.A.

Head Notes:
Indian Penal Code, 1860-Sections 302, 394 read with Section 397, 411-Murder and robbery-Conviction
based on circumstantial evidence-Recovery of alleged stolen jewellery-Absence of proof of loot-Recovery
from accused-Validity-No site plan of arrest or recovery-Recovery witnesses found to be police stock
witnesses-Contradictions regarding custody of keys and sealed box-Identification of jewellery-List without
description or identifying marks-Ownership not proved-House locked by police-Missing link regarding keyLast seen theory-Unreliable testimony-Witness silence at inquest stage-Motive-Weak and tainted
evidence-Abscondence-Not conclusive-Chain of circumstances incomplete-Benefit of doubt-Suspicion
however strong cannot take place of proof-Conviction set aside-Appeal allowed-Acquittal.

Facts:
The appellants were convicted by the Sessions Court vide judgment dated 22.11.1981 in Sessions Trial
No. 217/M of 1981, arising out of Case Crime No. 12 of 1979, Police Station Nazirabad, District Kanpur.

Appellant Akhilesh Kumar was convicted under Sections 302 IPC (life imprisonment), 394/397 IPC (10
years R.I.), and 411 IPC (no sentence).

Co-accused Sarla Devi and Maheshi died during pendency of appeal; their appeals abated.

Prosecution case was based entirely on circumstantial evidence, primarily: