# Sadan Yadav & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 8 ILRA 507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-18
- **Case number:** Criminal Appeal No 2293 of 1983
- **Bench:** Subash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sadan-yadav-anr-in-jail-v-state-of-u-p-47242
- **Pages:** 9

## Headnote

(A) Criminal Law - The Indian Penal Code,
1860 - Section 307 - The Code of criminal
procedure, 1973 - Section 207,313 -
appeal against conviction -Testimony of
sole witness is to be considered with care
and caution - evidence of the injured
witness should be relied upon unless there
are grounds for the rejection of his
evidence
on
the
basis
of
major
contradictions and discrepancies therein -
the evidence of injured witness, being a
stamped witness, is accorded a special
status in law - For the conviction under
this section more importance has been
given to mens rea or intention than the
actus reus or the actual act itself.(Para -
21,22,23,35)

Dispute between appellants and informant -
informant gave some money to appellant - for
liquor and not returning it to him - appellant got
annoyed - appellant assaulted him - hurled
bombs on him - fell near his legs and exploded
causing injuries on his both legs - no repetion -
simple injuries - not dangerous to life - Bomb
not hurled on head or some other vital part of
the body of informant.

HELD:-There was no intention of the accused
appellant to kill the injured . Injured sustained
simple injuries on non-vital part of his body.
Conviction of the appellant under Section 307
IPC cannot be sustained but appellant is liable
to be convicted for the offence under Section
324 IPC. Conviction & sentence imposed on the
appellant under Section 307 IPC is set aside
instead convicted under Section 324 IPC.(Para -
40, 41,43)

Criminal Appeal partly allowed. (E-6)

List of Cases cited:-

## Text

8 All. Sadan Yadav & Anr. Vs. State of U.P.
507
Lucknow is liable to be quashed but earlier
case bearing Case Crime No. 162 of 2017,
under Sections 147, 323 and 504 IPC,
Police Station Mahila Thana, Lucknow
pending before Special C.J.M. (A.P.)
Lucknow shall continue. If any grievance
to the first informant, then she may
approach through Investigating Officer
under Section 173 (8) Cr.P.C.

15. In view of the above discussions,
this appeal is hereby allowed.

16. Learned Special Judge (SC/ST
Act), Lucknow is hereby directed to pass
fresh order in accordance with law.
----------

(2021)08ILR A507
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.08.2021

BEFORE

THE HON'BLE SUBASH CHANDRA SHARMA, J.

Criminal Appeal No 2293 of 1983

Sadan Yadav & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri R.Pande, Sri Anand Prakash Paul, Sri
P.K. Singh, Sri B.B. Paul

Counsel for the Opposite Party:
A.G.A., Sri Jai Bahadur Singh

(A) Criminal Law - The Indian Penal Code,
1860 - Section 307 - The Code of criminal
procedure, 1973 - Section 207,313 -
appeal against conviction -Testimony of
sole witness is to be considered with care
and caution - evidence of the injured
witness should be relied upon unless there
are grounds for the rejection of his
evidence
on
the
basis
of
major
contradictions and discrepancies therein -
the evidence of injured witness, being a
stamped witness, is accorded a special
status in law - For the conviction under
this section more importance has been
given to mens rea or intention than the
actus reus or the actual act itself.(Para -
21,22,23,35)

Dispute between appellants and informant -
informant gave some money to appellant - for
liquor and not returning it to him - appellant got
annoyed - appellant assaulted him - hurled
bombs on him - fell near his legs and exploded
causing injuries on his both legs - no repetion -
simple injuries - not dangerous to life - Bomb
not hurled on head or some other vital part of
the body of informant.

HELD:-There was no intention of the accused
appellant to kill the injured . Injured sustained
simple injuries on non-vital part of his body.
Conviction of the appellant under Section 307
IPC cannot be sustained but appellant is liable
to be convicted for the offence under Section
324 IPC. Conviction & sentence imposed on the
appellant under Section 307 IPC is set aside
instead convicted under Section 324 IPC.(Para -
40, 41,43)

Criminal Appeal partly allowed. (E-6)

List of Cases cited:-

1. St. of U.P. Vs Naresh & ors., (2011) 4 SCC
324

2. Mamo Dutt Vs St. of U.P. , (2012) 4 SCC 79

3. Balwan Singh & ors.Vs St. Of Har. ,(2014) 13
SCC 560

4. St. Of Mah. Vs Balram Bama Patil , AIR 1983
SC 305

5. Jage Ram Vs St. of Har. , (2015) 11 SCC 366

6. St. of M.P.Vs Kanha @ Om Prakash , Crl. A.
No. 1589 of 2018

7. Ramesh Vs St. of U.P. , AIR 1992 S.C. 664
508 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Merambhai Punjabhai Khachar & ors. Vs St.
Of Guj. , 1996 AIR 3236

9. Neelam Bahal & anr. Vs St. of Uttarakhand ,
2010 (2) SCC 229

(Delivered by Hon'ble Subash Chandra
Sharma, J.)

 1. This criminal appeal has been
preferred against the judgment and order
dated 26.09.1983 passed by Xth Additional
Sessions Judge, Allahabad in Session Trial
No. 251 of 1983 (State Vs. Sadan Yadav)
arising out of Crime No. 1093 of 1981,
Police
Station
Colonelganj,
District
Allahabad by which appellants (Sadan
Yadav and Govind Patel) have been
convicted under Section 307 of Indian
Penal Code and sentenced to undergo
rigorous imprisonment for a term of six
years and fine of Rs. 1000/- for each in
default to undergo additional rigorous
imprisonment for six months.

2. During pendency of appeal,
appellant no. 2 Govind Patel has died,
therefore, appeal on his part stood abated.

3. The prosecution case in brief is that
there was dispute between appellants and
informant Ashok Kumar relating to money
taken by the appellant Sadan for liquor and
not returning it to him. On 29.12.1981 at
about 6 p.m. informant Ashok Kumar was
returning his house. In the way he heard
some foot steps behind him. As he turned,
he saw two persons Sadan Yadav and
Govind Patel. They hurled bombs on him,
those fell near his legs and exploded
causing injuries on his both legs. His
pant/trouser also got burnt. On his cry Ram
Dei, Lalla and Pappu came there and
witnessed the incident. Meanwhile, both
the appellants fled away. Informant Ashok
Kumar lodged an F.I.R. on the same day at
the police station about 18.30 hours as
crime no. 1093 of 1981 under Sections
307/427
IPC.
Majroobi
Chitthi
was
prepared by the constable clerk and injured
Ashok Kumar was sent to Tej Bahadur
Sapru, Hospital, Allahabad for medical
examination. Following injuries were found
on his person:-

I. Multiple lacerated wounds of
various sizes in an area of 17 cm x 4 cm in
front of the right leg from right knee joint
to right ankle joint. Fresh bleeding present
from the wounds.

II. Multiple lacerated wounds of
various sizes in an area of 16 cm x 5 cm in
front of the left leg from the lower part of
the left knee joint up to the ankle joint.
Fresh bleeding present from the wounds.
Foreign bodies present in the wounds and
there are redness all round the wounds.

III. Abrasion 1 cm x 1⁄2 cm on the
posterior aspect of the right forearm 2 cm
below the right elbow joint.

The Doctor was of the opinion
that injury no. 1 and 2 were caused by
some blust (Probably the word intended to
be used was blast). Injury no. 3 was caused
by friction. Duration of injuries fresh.

4. The investigation of the case was
handed-over
to
Sub-Inspector
Rama
Shankar Tiwari, who investigated the case,
collected the evidence and submitted
charge sheet under Sections 307/427 IPC
against the appellants.

5. The court concerned, took
cognizance of the offence and after
complying the provisions of Section 207
Cr.P.C, committed the case to the court of
Sessions for trial.
8 All. Sadan Yadav & Anr. Vs. State of U.P.
509

6. The learned trial court framed charge
under Section 307 IPC against the appellants
on the basis of material on record which was
read-over and explained to the appellants.
They did not plead guilty but claimed for
trial.

7. In support of its case prosecution
examined P.W.1 Ashok Kumar who is
informant, P.W.2 Lalla, P.W. 3 Santosh @
Pappu as witness of fact, P.W.4 S.I. Rama
Shankar Tiwari, (Investigating Officer).
P.W.5 Shobh Nath Chaudhary, pharmacist,
P.W.6 constable Kaptan Singh who was
posted with head-muharrir who lodged the
F.I.R. and made entry in G.D.

8. After conclusion of prosecution
evidence statement of appellants under
Section 313 Cr.P.C. was recorded in which
they stated the incident to be false and
witnesses to be inimical. They did not adduce
any evidence in defence.

9. After hearing the arguments for
accused/appellant as well as the State, learned
trial court passed the impugned judgment
dated 26.09.1983 while convicting and
sentencing the appellants as aforesaid.

10. Being aggrieved with the conviction
and sentence this criminal appeal has been
preferred by the appellants but owing to the
death of appellant Govind Patel during
pendency of appeal, his appeal was abated.

11. Heard Shri P. K. Singh, learned
counsel for appellant- Sadan Yadav and Shri
Jai Bahadur Singh, learned counsel for
complainant as well as learned A.G.A. for
State and perused the record.

12. Learned counsel for the appellant
submits that he is innocent and has falsely
been implicated in this case. The conviction
and sentence passed against him is against
weight of evidence on record which is bad
in law. He further submitted that in this
case, incident took place at 6.00 p.m. in the
month of December when it becomes dark,
therefore, no person can be identified.
Doctor who examined the injuries of
informant, has not been examined before
the court by the prosecution but on his
place pharmacist. Likewise, constable clerk
who lodged the F.I.R. and made entry in
the G.D. has also not been examined. There
are material contradictions in the testimony
of witnesses which make their testimony
unreliable. He further submits that the
nature of injuries caused to the person of
informant is not grievous. All of them are
simple in nature and found on legs. Injury
no. 3 is in the nature of abrasion caused by
friction against some hard and blunt object
which cannot be said to be caused with
bomb. In addition to this, the circumstances
of the case does not infer the intention of
appellant to commit murder which is
required for the constitution of offence
under Section 307 IPC. In this way offence
does not fall within the ambit of Section
307 IPC but it may fall within the ambit of
Section 324 IPC as well. Learned trial court
has not considered all these facts while
passing the judgment but convicted and
sentenced the appellant arbitrarily which is
illegal and not based on the evidence on
record, therefore it is liable to be set aside
and appeal be allowed.

13. Learned counsel for complainant
as well as learned A.G.A. vehemently
opposed the contentions made by learned
counsel for the appellant and submitted that
in this case there was enmity between
informant and appellant about money. This
was the motive for appellant to cause hurt
to the informant as a result, he made an
attempt to cause death of informant by
510 INDIAN LAW REPORTS ALLAHABAD SERIES
hurling bomb on him in company of his
friend. Fortunately, injuries were caused on
legs and hands of the informant. At that
time, there was electric light in which he
identified the appellant. Witnesses P.W.2
and P.W.3 also came at the place of
occurrence on the call of informant and saw
the incident. They have stated about the
incident lucidly during their examination
before the court. There are no material
contradictions in their testimony which
could be said to make it unreliable. Doctor
who examined injury on the person of
informant was died that was the reason
pharmacist was examined before the court
who
identified
his
handwriting.
The
prosecution has proved its case beyond
reasonable doubt before the trial court as a
result learned trial court, after considering
the evidence on record convicted and
sentenced the appellant. There is no any
error of fact or law in the impugned
judgment but the appeal lacks merit which
is liable to be dismissed.

14.

Before
dealing
with
the
contentions raised by learned counsel for
the appellant, it will be convenient to take
note of the evidence as adduced by the
prosecution.

15. P.W.1 informant Ashok Kumar is
the injured witness. He has stated that
appellants Sadan and Govind are known to
him, both of them are fast friends. Prior to
one month of the incident Sadan took
money from him for drinking. When he
asked to return, he was ready to quarrel. On
29th of December at about 6 p.m. he was
going to his house from Colonelganj
crossing and when he arrived near the
house of Ram Dei, he heard sound of foot
steps from behind. He turned and saw
appellants Sadan and Govind. Meanwhile,
appellant Sadan hurled a bomb at him and
accused Govind exhorted and also hurled
other bomb at him. First bomb fell at the
distance of one feet from him and thereafter
other bomb fell down. He fell down on the
side of elbow, both bombs blasted and he
got injuries on his both legs. Incident was
seen by Santosh, Lalla and Ram Dei. There
was light of electric bulb which was fixed
on the outer barja of his house. His house is
situated at the distance of 2-3 steps from
the house of Ram Dei. Appellants, after
committing the incident, fled away. He got
Tahreer prepared by Dileep Kumar on the
spot and after hearing the contents, he
signed it which he proved as Ext. Ka-1
before the court. He gave the report in the
police station Colonelganj where F.I.R. was
lodged and he was sent to Beli Hospital for
medical examination. Investigating Officer
took his trouser and shoes in his custody
and then returned it to him.

16. P.W.2 Lalla and P.W.3 Santosh @
Pappu have also been examined, they have
not supported the prosecution version.
P.W.2 Lalla stated that he could not see
assailants but Ashok Kumar was crying
that Sadan and Govind assaulted him. This
witness was declared hostile and crossexamination was done by learned A.D.G.C.
but nothing came in his statement to
support the prosecution story. P.W.3
Santosh @ Pappu has also stated that
incident took place at about 8 p.m. in the
night. He was sipping tea in his drawing
room. He heard sound of bomb blast and
came out. There was too much smoke. He
went to that side after a while police came
there. He saw Ashok injured. This witness
also turned hostile and cross-examination
was done by learned A.D.G.C. but he
expressly stated that he did not see any one
while running because there was too much
smoke. He has also denied the statement
given by him to the Investigating Officer.
8 All. Sadan Yadav & Anr. Vs. State of U.P.
511

17. P.W.4 S.I. Rama Shankar Tiwari
had investigated the case. He had proved
the investigation and papers prepared by
him during investigation.

18. P.W.5 Shobh Nath Chaudhary
(pharmacist) has proved the handwriting of
Dr. B.K. Sen who conducted medical
examination of injured Ashok Kumar and
prepared injury report as Ext. Ka-11 in his
hand-writing and signature. P.W.5 has also
stated that Dr. B.K. Sen has died. He has
proved the injury report by comparing with
Medico Legal Register brought by him.

19. P.W. 6 constable Kaptan Singh
has proved the hand-writing of head
muharrir hasan imam who was posted with
him at police station on 29.12.1981 and
also proved G.D. as Ext. Ka-11 in which
entry of F.I.R. was made.

20. From perusal of statements as
deposed by P.Ws. 2 & 3, it is evident that
both of them had not seen the occurrence.
They came there after incident took place
and appellant fled away. Their testimony is
of no use to the prosecution.

21. P.W.1 Ashok Kumar is informant
as well as injured witness. Testimony of
sole witness is to be considered with care
and caution. Since he is injured witness,
therefore his presence on the spot cannot be
denied. The reliability of injured witness
has been explained by the Hon'ble Apex
Court in the case of State of U.P. Vs.
Naresh and others (2011) 4 SCC 324.
Para no. 23 is quoted as under:

.....................The evidence of an
injured
witness
must
be
given
due
weightage being a stamped witness, thus,
his presence cannot be doubted. His
statement is generally considered to be
very reliable and it is unlikely that he has
spared the actual assailant in order to
falsely
implicate
someone
else.
The
testimony of an injured witness has its own
relevancy and efficacy as he has sustained
injuries at the time and place of occurrence
and this lends support to his testimony that
he was present during the occurrence.
Thus, the testimony of an injured witness is
accorded a special status in law. The
witness would not like or want to let his
actual assailant go unpunished merely to
implicate a third person falsely for the
commission of the offence.

Thus, the evidence of the injured
witness should be relied upon unless there
are grounds for the rejection of his
evidence
on
the
basis
of
major
contradictions and discrepancies therein.
[Vide: Jarnail Singh v. State of Punjab,
(2009) 9 SCC 719; Balraje @ Trimbak v.
State of Maharashtra, (2010) 6 SCC 673;
and Abdul Sayad v. State of Madhya
Pradesh, (2010) 10 SCC 259].

22. In another decision of Mamo Dutt
vs. State of U.P. (2012) 4 SCC 79, Hon'ble
the Apex Court observed about the
evidentiary value required to be attached to
the evidence of an injured witness:

"Normally, an injured witness
would enjoy greater credibility because he
is the sufferer himself and thus, there will
be no occasion for such a person to state
an incorrect version of the occurrence, or
to involve anybody falsely and in the
bargain
protect
the
real
culprit."...................

23. Again in the case of Balwan
Singh & others vs. State Of Haryana
(2014) 13 SCC 560 Hon'ble the Apex Court
observed thus:
512 INDIAN LAW REPORTS ALLAHABAD SERIES

"It is trite law that the evidence of
injured witness, being a stamped witness, is
accorded a special status in law. This is as
a consequence of the fact that injury to the
witness is an inbuilt guarantee of his
presence at the scene of the crime and
because the witness would not want to let
actual assailant go unpunished."

24. P.W.1 injured Ashok Kumar is still
acquainted with the appellants from before
occurrence. He has clearly stated during
cross-examination that Sadan Yadav was his
tenant in his house, so he knew him very well
and other appellant Govind was his fast
friend. Further, he has also stated that at the
time of incident there was electric light from
the bulb which was fixed on the outer barja of
his house. In the electric light, he identified
the appellant when he heard the sound of foot
steps, he turned and saw the appellants then
they hurled bomb at him. In this way, it
cannot be said that informant Ashok Kumar
could not identify the appellant in darkness at
evening in lack of light. The fact of electric
light and bulb has also been verified by
Investigating Officer who had visited the site
on the same day night. In the site plan Ext.
Ka-5 the place of bulb had also been shown
by Investigating Officer which is not to much
distant from the place of occurrence. As a
result there remains no suspicion regarding
identification of appellants by the informant.
Remnants of bombs were collected from the
place of occurrence by Investigating Officer
during investigation, this also supports the
statement of informant relating to the use of
bomb by appellant.

25. Learned counsel for the appellant
has argued that there was enmity relating to
tenancy and non-payment of rent between the
appellant and the informant, that was the
reason he had been falsely implicated in this
case. In this regard, it is worth mention that
P.W.1 Ashok Kumar has stated that though
appellant was tenant in his house and he did
not pay rent for some period but for recovery
of rent, no proceedings were initiated on his
part and no any dispute was there between
them. Further, it has also to note that
appellant was tenant prior to a long period, so
it cannot be said that on account of nonpayment of rent, informant has implicated
falsely.

26. The statement made by informant
also gets support with the injuries caused to
him and with medical report which was
prepared by doctor conducting his medical
examination instantly just after the incident at
about 07.15 p.m. i.e. after one hour and
fifteen minutes from the occurrence. F.I.R.
was also lodged at the police station at 6.30
just after 30 minutes, which is very prompt
and cannot be said to be belated.

27. During medical examination two
injuries were found on his legs, those are
caused by bomb blast. As per the opinion of
the doctor, injury no. 3 caused by friction.
Foreign body were also found in wounds
which shows that injuries found on the legs
of informant Ashok Kumar were caused by
bomb not otherwise.

28. During investigation, remnants of
bombs were also collected by Investigating
Officer and Fard was prepared on the spot
which has been proved as Ext. Ka-4 by
Investigating Officer, it also gives support to
the prosecution version.

29. In this way, the testimony as
deposed by P.W.1 informant Ashok Kumar is
wholly reliable and it gets support with the
medical report.

30. On considering the facts and
evidence on record, it is proved beyond
8 All. Sadan Yadav & Anr. Vs. State of U.P.
513
reasonable doubt that appellant hurled
bomb on 29.12.1981 at 6 p.m. On
informant Ashok Kumar causing simple
injuries on his legs. So finding recorded by
learned trial court to this extent, holding
guilty to appellant is correct and it requires
no interference.

31. So far as, conviction of the appellant
under Section 307 IPC is concerned, it is
expedient to examine the main ingredients of
Section 307 IPC. which are (I) the act
attempted should be of such nature that if not
prevented or intercepted it would lead to the
death of victim, (ii) the intention or mens rea
to kill is needed to be proved clearly without
doubt. For this purpose the prosecution can
make use of the circumstances like attack by
dangerous weapon on vital part of body,
however, the intention to kill cannot be gauged
simply by seriousness of the injury caused,
(iii) the intention and knowledge of the result
of the act being done is the main thing that is
needed to be proved for conviction under
Section 307 I.P.C.

32. In this regard, in the case of State
Of Maharashtra vs Balram Bama Patil
AIR 1983 SC 305, Hon'ble the Apex Court
held in para 9:

"To justify a conviction under
this section it is not essential that bodily
injury capable of causing death should have
been inflicted. Although the nature of
injury actually caused may often give
considerable assistance in coming to a
finding as to the intention of the accused,
such intention may also be deduced from
other circumstances, and may even, in
some cases, be ascertained without any
reference at all to actual wounds. The
section makes a distinction between an act
of the accused and its result, if any. Such an
act may not be attended by any result so far
as the person assaulted is concerned, but
still there may be cases in which the culprit
would be liable under this section. It is not
necessary that the injury actually caused to
the victim of the assault should be
sufficient under ordinary circumstances to
cause the death of the person assaulted.
What the Court has to see is whether the
act, irrespective of its result, was done with
the intention or knowledge and under
circumstances mentioned in this section.
An attempt in order to be criminal need not
be the penultimate act. It is sufficient in
law, if there is present an intent coupled
with some overt act in execution thereof."

33. In the case of Jage Ram Vs. State
of Haryana (2015) 11 SCC 366, Hon'ble
the Apex Court held that:

12. For the purpose of conviction
under Section 307 IPC, prosecution has to
establish (i) the intention to commit murder
and (ii) the act done by the accused. The
burden is on the prosecution that accused
had attempted to commit the murder of the
prosecution witness. Whether the accused
person intended to commit murder of
another person would depend upon the
facts and circumstances of each case. To
justify a conviction under Section 307 IPC,
it is not essential that fatal injury capable of
causing death should have been caused.
Although the nature of injury actually
caused may be of assistance in coming to a
finding as to the intention of the accused,
such intention may also be adduced from
other circumstances. The intention of the
accused is to be gathered from the
circumstances like the nature of the weapon
used, words used by the accused at the time
of the incident, motive of the accused, parts
of the body where the injury was caused
and the nature of injury and severity of the
blows given etc.
514 INDIAN LAW REPORTS ALLAHABAD SERIES

34. Again it was reiterated in the Case
of State of Madhya Pradesh Vs. Kanha
@ Om Prakash, Crl. A. No. 1589 of 2018.

35. For the conviction under this
section more importance has been given to
mens rea or intention than the actus reus or
the actual act itself. The attempt should
arise out of a specific intention or desire to
murder the victim. The nature of weapon
used, the manner in which it is used,
motive for the crime, severity of the blow,
the part of the body where the injuries
inflicted, all are taken into consideration to
determine the intention.

36. In this case, in the F.I.R. it has not
been stated by the informant that appellant
had expressed his intention at any time to
kill him. What he said is that he gave some
money to appellant for drinking which was
not returned to him. On asking for the
money, appellant got annoyed, that was the
reason, appellant assaulted him. Even at the
time of incident, nothing was uttered by the
appellant which could disclose his intention
to kill him. No any such statement has been
made
by
the
informant
during
his
examination before the court. The bomb
which was hurled by the appellant fell on
the ground near the place of informant
which caused injuries of his legs. He did
not repeat it again. All the injuries are
simple in nature. These were not dangerous
to life. Bomb was not hurled on the head or
some other vital part of the body of
informant. This also does not infer the
intention of appellant to kill the informant.
The manner of committing the offence
shows that appellant had intent to cause
voluntarily simple hurt to informant but not
to commit his murder.

37. In the case of Ramesh Vs. State
of U.P. AIR 1992 S.C. 664 where a single
injury was found in the back of the neck of
injured, appellant who was tried alongwith
two others under Section 307/34 IPC and
he was sentenced to undergo rigorous
imprisonment for four years while two
other were acquitted, appeal was partly
allowed by Hon'ble the Apex Court. His
conviction was altered into Section 324
IPC and sentence was reduced to the period
already undergone with fine of Rs. 3000/-
which was to be paid to the complainant as
compensation.

38. In the case of Merambhai
Punjabhai Khachar & Ors vs. State Of
Gujarat, 1996 AIR 3236, there was an
attempt to commit murder with fire arm
and injury was by a pellet that struck the
head, Hon'ble the Apex Court held that
Section 307 IPC cannot be held to have
been satisfied and conviction was altered to
Section 324 IPC.

39. In the case of Neelam Bahal and
another Vs. State of Uttarakhand 2010
(2) SCC 229 where conviction and
sentence of appellant under Section 307
IPC was converted into Section 326 IPC
simplicitor. Incident took place in the year
1987 and appellant was about 25 years old.
Considering the facts and circumstances of
the case, Hon'ble the Apex Court, reduced
the
sentence
to
the
period
already
undergone by him.

40. In the present case, as regards the
injuries, there is no evidence on record to
show that these injuries could be fatal for
life of the injured or that injuries were
caused by the appellant with intention to
kill the injured. Besides, injuries on the
body of injured were not on vital part of the
body i.e. legs. Thus, it clearly shows that
there was no intention of the accused
appellant to kill the injured. The injured
8 All. Yameen Vs. State of U.P.
515
sustained simple injuries on non-vital part
of his body.

41. In these circumstances of the case,
this court is of the view that conviction of
the appellant under Section 307 IPC cannot
be sustained but appellant is liable to be
convicted for the offence under Section 324
IPC.

42. Again it is noteworthy that the
incident took place in the year 1981 i.e. 40
years ago and it is said that now appellant
is above 60 years old person. Record does
not show that the appellant has any
criminal antecedent and learned counsel for
appellant has also submitted the same
which could not be rebutted by learned
counsel for the State.

43. To sum up, the conviction &
sentence imposed on the appellant under
Section 307 IPC is set aside instead he is
convicted under Section 324 IPC and the
period of sentence is reduced to the period
of sentence already undergone by him
besides a fine of Rs. 5000/- in default to
undergo rigorous imprisonment for one
month. The amount so deposited be paid to
the complainant as compensation.

44. Accordingly, the appeal is partly
allowed.
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(2021)08ILR A515
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.03.2021

BEFORE

THE HON'BLE SUBASH CHAND, J.

Criminal Appeal No 3452 of 2019

Yameen ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sunil Kumar

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

(A) Criminal Law -The Indian Penal Code,
1860 - Sections 304B, 316 & 498A - The
Code
of
Criminal
Procedure,
1973-
Sections 161 & 313 - Dowry prohibition
Act,1961 - Section 4 - appeal against
conviction -

Informant moved a written information - on
ground of additional demand of dowry his sister
was bitterly beaten - subjected to physical and
mental cruelty - sister of informant dragged by
accused persons - poured kerosene oil over the
body of his sister set her ablaze - 80% burnt -
record of dying declaration - one before Naib
Tehsildar - another under section 161 Cr.P.C.

(B) Criminal Law - Indian Evidence Act,
1872 - Section 32 - Dying declaration -
where there are more than one statement
in nature of dying declaration, the one
first in point must be preferred - if there
are several dying declaration the dying
declaration which is trustworthy and
reliable has to be accepted - Held - First
dying declaration which was recorded by Naib
Tehsildar on 13.06.2015 on the very next day of
occurrence is found to be more trustworthy and
reliable - corroborated with the second dying
declaration, which is in the form of statement of
injured under Section 161 Cr.P.C ,which
corroborates with the first dying declaration,
same is not contradictory - No discrepancy on
the material point so as to ascertain the role of
committing dowry death by the husband of the
victim.(Para - 29,30)

(C) Criminal Law - Indian Evidence Act,
1872 - Section 113B - Presumption as to
dowry death -presumption under Section
113B of Evidence Act is the presumption
of the law which is mandatory - Once the
ingredients of Section 304B of I.P.C is
made out the accused is deemed to have