# Salik Singh & Anr. Revisionists v. State of U.P

- **Citation:** (2023) 7 ILRA 58
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-14
- **Case number:** Criminal Revision No. 435 of 2007
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/salik-singh-anr-revisionists-v-state-of-u-p-50384
- **Pages:** 10

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 34,323, 325 & 504 - The
Code of Criminal Procedure, 1973
-
Section 397/401 - Revision - For roping
the accused for the crime with the help of
Section 34 I.P.C. - prosecution must lead
evidence to prove that there was common
intention of all the accused to commit the
crime. (Para - 31)

(B) Criminal Law - Indian Penal Code,
1860 - Sections 34 - Acts done by several
persons
in
furtherance
of
common
intention - Section 34 I.P.C. requires a
common intention between the accused
and the person sought to be held liable for
an
offense
-
Unless
both
common
intention and participation are present,
Section 34 I.P.C. cannot be applied - Mere
proof that some accused persons were
with the main accused who inflicted fatal
injury on the deceased will not attract the
applicability
of
Section

## Text

58 INDIAN LAW REPORTS ALLAHABAD SERIES
Kushwaha, the Apex Court interpreted the
meaning of expression wife and states that
broad and expansive interpretation should
be give to the term wife which would
include even those cases where a man and
woman are living for long period of time as
husband wife.

11. In the present scenario when the
revisionist was married to one Leelawati
who expired in the year 2009 and opposite
party no.2 who filed an agreement before
the court of law regarding dissolution of
marriage and after filing the contract of
dissolution of marriage in the court of law
she solemnized marriage with the present
revisionist. Now it is the matter of
evidence, whether opposite party no.2 is
entitled for maintenance or not. Therefore,
at the very outset it cannot be said that the
maintenance
application
moved
by
opposite party no.2 should be thrown out
at the very threshold, without going into
merit of the case. Learned trial court
discussed the above mentioned facts in the
impugned order. Hence the order of
Additional Principal Judge, Family Court,
Faizabad, passed on the
application
No.15-B moved by revisionist, suffers
with no illegality, infirmity or irregularity,
hence the revision has no merit and is
liable to be dismissed.

12. Accordingly, the present revision
is dismissed.
----------
(2023) 7 ILRA 58
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Criminal Revision No. 435 of 2007
Salik Singh & Anr. ...Revisionists
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionists:
Sulabh Kr. Srivastava

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 34,323, 325 & 504 - The
Code of Criminal Procedure, 1973
-
Section 397/401 - Revision - For roping
the accused for the crime with the help of
Section 34 I.P.C. - prosecution must lead
evidence to prove that there was common
intention of all the accused to commit the
crime. (Para - 31)

(B) Criminal Law - Indian Penal Code,
1860 - Sections 34 - Acts done by several
persons
in
furtherance
of
common
intention - Section 34 I.P.C. requires a
common intention between the accused
and the person sought to be held liable for
an
offense
-
Unless
both
common
intention and participation are present,
Section 34 I.P.C. cannot be applied - Mere
proof that some accused persons were
with the main accused who inflicted fatal
injury on the deceased will not attract the
applicability
of
Section
34.
(Para
-
23,24,25,27)

Convictions of revisionists - conversion of
convictions into Sections 323/34 and 325/34 -
Prosecution
lacks
evidence
for
common
intention
or
pre-meeting
of
minds
for
committing crime - Appellate Court added
Section 34 I.P.C. in revisionist convictions -
violates
Sections
323
and
325
I.P.C.
-
revisionists not committed any offenses or been
convicted for any offenses since 1992 - crime
occurred in 1992 - more than 30 years elapsed -
both revisionists have died - both over 60 years
old.(Para -2,29,31,37)

HELD:- Revisionists' conviction set-aside. Trial
court's judgment upheld under Sections 323 and
325 I.P.C.. Appellate Court upholds exonerating
revisionists
under
Section
504
I.P.C..
7 All. Salik Singh & Anr. Vs. State of U.P.
59
Revisionists are entitled for benefit of Section 4
of The Probation of Offenders Act, 1958. (Para
-32,33,38)

Revision partly allowed. (E-7)

List of Cases cited:

1. Sheodan & ors. Vs The St. of Raj. , 1974 CRI.
L. J. 234 (V 80 C 91

2. Parichhat & ors. Vs The St. of M.P., AIR 1972
SC 535

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard Mr. Sulabh Kr. Srivastava,
learned counsel for the revisionists and Ms.
Mamta
Pandey,
learned
Additional
Government Advocate for the State.

2. Revisionists have filed the present
revision challenging therein the judgement
and order dated 9.03.2007 passed by First
Additional
Civil
Judge,
Junior
Division/Judicial Magistrate, Gonda in
Case No. 622/06/94 [State Vs. Atma Singh
(deceased)
and
Others]
whereby
revisionists
have
been
convicted
for
offences punishable under Sections 323,
325 and 504 I.P.C. Revisionists have also
challenged the judgement and order dated
19.07.2007 passed by Additional Sessions
Judge/Fast Track Court No.-4, Gonda in
Criminal Appeal No. 14 of 2007 whereby
the aforementioned conviction of the
revisionists under Sections 323, 325 and
504 I.P.C. has been converted into
conviction under Sections 323/34 and
325/34 I.P.C.

3. Brief facts of the case are that a
criminal case was registered as N.C.R. No.
147 of 1992 under Sections 323 and 504
I.P.C. in Police Station Tarabganj, District
Gonda. Later on Section 325 I.P.C. was
added and after investigation, police
submitted charge-sheet against the accused
before the competent court.

4. Charges were framed against
accused i.e. Atma, Saliq, Amar Bahadur
and Raj Bahadur under Sections 323/34,
325/34 and 504 I.P.C. All the accused
stated before Court that they are not guilty
of the charges levelled against them and
demanded for trial.

5. During trial, testimony of P.W.-1,
Smt. Pushpa, P.W.-2, Heera Devi, P.W.-3,
Dr. S.C. Vishwas, P.W.-4, Dr. G.N. Prasad
and P.W.-5, Ram Lakhan Tiwari (police
personnel) was recorded. Statements of
accused were recorded under Section 313
Cr.P.C. and accused also produced D.W.-1,
Braj Bahadur Singh and his testimony was
also recorded.

6. P.W.-1, Smt. Pushpa deposed that
on 3.7.1992 at about 5:00 p.m., she was
inside her house in village, Brahdsthan
Bouriha, Police Station Tarabganj, District
Gonda. She heard a noise of her mother
and, thereafter she reached on the spot
outside her house and found that all the
accused were beating her mother and when
she tried to save her, all the accused started
beating P.W.-1. P.W.-1 also deposed that
'sahan' of her house is on eastern side and
house of the accused is on northern side of
her house. Accused had put 'jhakhra' on
the 'sahan' land and when her mother went
to remove the said 'jhakhra', all the
accused beaten her which resulted in
injuries to her mother and when she tried to
save her mother, they also beaten her and
she also suffered injuries.

7. P.W.-2, Heera Devi deposed that
about three and half years ago, accused put
'jhakhra' on the abadi land in front of her
house with an intention to grab the said
60 INDIAN LAW REPORTS ALLAHABAD SERIES
land and when she went to remove that
'jhakhra', accused started beating her with
'lathi-danda' and when her daughter,
Pushpa came to save her then accused also
beaten her and used abusive language.
P.W.-2,
Heera
Devi
in
her
crossexamination admitted that there was a land
dispute between the accused and husband
of the petitioner. P.W.-2 Heera Devi in her
cross-examination also stated that she
received six blows of lathi, fists and kicks.
She further stated that her hand got
fractured due to blow of lathi given by
accused, Raj Bahadur.

8. Besides the testimony of P.W.-1
and
P.W.-2,
testimonies
of
other
proseuction witnesses were also recorded.
Accused in their defense produced D.W.-1,
Braj Bahadur Singh and his testimony was
also recorded.

9. Learned First Additional Civil
Judge
(Junior
Division)/Judicial
Magistrate, Gonda considered the evidence
recorded during trial and ultimately found
that accused are guilty of offences
punishable under Sections 323, 325, 504
I.P.C. and thereby vide judgement and
order dated 9.03.2007 convicted them
under Sections 323, 325, 504 I.P.C.

10. During the trial, since accused
Atma Singh and Raj Bahadur died,
therefore, trial stood abated in respect of
the said two accused.

11. Trial court sentenced Saliq Ram
Singh and Amar Bahadur Singh with three
years' rigorous imprisonment and fine of
Rs. 1,000/- each under Section 325 I.P.C.,
one year rigorous imprisonment and fine of
Rs. 1,000/- each under Section 323 I.P.C.
and rigorous imprisonment of two years
and fine of Rs. 1,000/- each under Section
504 I.P.C. Learned trial court further
provided that in case of default in deposit
of fine, accused will have to undergo six
months' imprisonment each and all the
sentences will run simultaneously.

12. Learned trial court refused to give
benefit of Section 4 of The Probation of
Offenders Act, 1958 to both the accused on
the ground that they have beaten Smt.
Heera Devi and her daughter, Pushpa and
have also fractured the bone of Smt. Heera
Devi.

13. From perusal of the testimony of
P.W.-1 and P.W.-2 and the judgement and
order dated 9.03.2007, it appears that
neither the prosecution led any evidence in
respect of common intention of the accused
regarding criminal act nor the trial court
could
draw
inference
from
the
circumstances
of
the
case
regarding
common intention of all the accused for
committing the crime in question, as such,
trial court instead of convicting accused
under Sections 323/34, 325/34 and 504
I.P.C., convicted the accused for offences
punishable under Sections 323, 325 and
504 I.P.C.

14. The aforesaid judgement and
order dated 9.03.2007 passed by First
Additional Civil Judge (Junior Division)/
Judicial Magistrate, Gonda in Case No.
622/06/94 was challenged by Saliq Singh
and Amar Bahadur Singh by filing an
Appeal in the Court of Additional Sessions
Judge/ Fast Track Court No. 4, Gonda and
the said appeal was registered as Criminal
Appeal No. 14 of 2007.

15.

Learned
Appellate
Court
considered that the trial court framed
charges
against
the
appellants
under
Section 323/34, 325/34 and 504 I.P.C. and
7 All. Salik Singh & Anr. Vs. State of U.P.
61
further considered the testimony of P.W.-1
and P.W.-2 recorded during the trial.
Learned appellate court passed final order
in aforementioned Criminal Appeal No. 14
of 2007 on 19.07.2007.

16. Learned Appellate Court after
considering the testimony of P.W.-1 and
P.W.-2 recorded during trial, came to
conclusion that since all the accused have
beaten Smt. Heera Devi and her daughter,
Pushpa, therefore, there was common
intention of all the accused to commit the
crime in question, as such, appellants are
liable
to
be
convicted
for offences
punishable under Sections 323/34 and
325/34 I.P.C. Learned appellate court in its
judgement and order dated 19.07.2007 has
further recorded a finding that there was a
clerical error in judgement and order dated
9.03.2007 passed by the trial court for the
reason that the trial court framed charges
under Section 323/34 and 325/34 and 504
I.P.C.
and
keeping
in
view
the
circumstances of the case, conviction could
not have been done under Sections 323/34,
325/34 and 504 I.P.C. and, therefore,
learned Appellate Court vide judgement
and order dated 19.07.2007 rectified the
said clerical error and convicted the
appellants under Sections 323/34 and
325/34 I.P.C. and also maintained the
sentence given by the trial court under the
aforesaid sections.

17. So far as conviction under Section
504
I.P.C.
was
concerned,
learned
Appellate Court on appraisal of the
evidence found that the offence punishable
under Section 504 I.P.C. is not made out
against the appellants, as such, conviction
under the said section by the trial court has
been set-aside.

18. In the aforesaid circumstances,
revisionists have filed the present revision.

19.

Learned
counsel
for
the
revisionists has submitted that the learned
Appellate Court without there being any
material on record, could not have recorded
a finding that non mentioning of Section 34
I.P.C. along with Sections 323 and 325
I.P.C. in the conviction order dated
09.03.2007 passed by learned trial court, is
a clerical error. Learned counsel appearing
for the revisionists has vehemently argued
that though charges were framed against
the accused under Sections 323/34, 325/34
and 504 I.P.C. but since prosecution did not
lead evidence to prove common intention
of all the accused for commission of crime
in question, as such, learned trial court has
convicted the accused only under Sections
323, 325 and 504 I.P.C.

20. Learned counsel appearing for the
revisionists has vehemently argued that
neither P.W.-1 nor P.W.-2 in their testimony
have said that there was any common
intention of all the accused to commit the
crime in question and further no evidence
has been led by the prosecution that there
was any kind of pre-meeting of minds of all
the accused for commission of the crime,
therefore, in absence of any evidence led
by the prosecution, there was no occasion
for the trial court to convict the accused
under Sections 323/34 and 325/34 I.P.C., as
such, Appellate Court, on presumption that
since all the four accused beaten Heera
Devi and her daughter, Pushpa, therefore,
necessarily there was common intention of
all the accused to commit the crime in
question, could not have convicted the
revisionists under Sections 323/34 and
325/34 I.P.C.
62 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Learned counsel appearing for the
revisionists has also vehemently argued
that
P.W.-2
in
her
testimony
has
categorically stated that her hand was
fractured due to lathi blow given by
accused, Raj Bahadur and, therefore, unless
there was any evidence led by the
prosecution in respect of the common
intention and pre-meeting of minds of all
accused for committing the crime in
question, there could not have been any
occasion for the Appellate Court to convict
the revisionists under Sections 323/34 and
325/34 I.P.C.

22. I have considered submissions
advanced by learned counsel for the
revisionists, learned A.G.A. for the State
and have also perused the record of the
Trial Court as well as record of the
Appellate Court.

23. For arriving at a conclusion, it is
necessary for this Court to have a look over
Section 34 I.P.C. which is extracted as
under:

"34.
Acts
done
by
several
persons
in
furtherance
of
common
intention.-When a criminal act is done by
several persons in furtherance of the
common intention of all, each of such
persons is liable for that act in the same
manner as if it were done by him alone."

24. A bare perusal of the aforesaid
Section 34 I.P.C., it is patently menifest that
the said section will come into play only
when there existed common intention of all
the accused for a criminal act.

25. Before a person can be held liable
for
offence
done by
another
under
provisions of Section 34 I.P.C., it must be
established
that
there
was
common
intention in the sense of a pre-arranged plan
between accused and the person sought to
be held liable had participated in some
manner in the act constituting the offence.
Unless
both
common
intention
and
participation are present, Section 34 I.P.C.
cannot be applied.

26. The Hon'ble Supreme Court in its
judgement and order rendered in the case of
Sheodan and others Vs. The State of
Rajasthan reported in 1974 CRI. L. J. 234
(V 80 C 91) has held that inference of
common intention should never be reached
unless it is necessary inference deducible
from the circumstances of the case. The
presence of accused at the scene of the
offence and their running away after
occurrence without further materials or
without direct evidence of prior concert
cannot be said to be incompatible with
innocence of accused. Relevant portion of
the aforesaid judgement is extracted as
under:-

5. Then remains the case of the
remaining
two
accused
Amilal
and
Kishanlal. In the first information report it
was only stated that these per- sons had
challenged Roopram while he was on
camel's back. In the course of trial the
prosecution has improved its case by
introducing a material fact that they
exhorted Sheodan to fire at Roopram. This
was never the allegation in the first
information report. Moreover as to the
exhortation the evidence of the eyewitnesses is not uniform. Roopram injured
has of course deposed to the exhortation by
the witnesses to Sheodan to fire at him but
Kaniram P.W. 2 and Chuniram P.W. 3 had
only stated that only Kishanlal exhorted
Sheodan to fire at Roopram and Amilal was
only stand- ing having a lathi in his hand.
All the witnesses have said that the accused
7 All. Salik Singh & Anr. Vs. State of U.P.
63
were standing in the lane. They have not
deposed as to whether they had come
together and at what time they had come in
the lane. The learned Addl. Sessions Judge
had rightly discarded the version of
exhortation prior to the firing by these two
accused persons. He, however, has held
them guilty on the basis of circumstances
which were relevant in his opinion to make
out a case under Section 34, I.P.C. against
these
accused
persons.
The
first
circumstance pointed by the learned Addl.
Sessions Judge is that Kishanlal and Amilal
were with accused Sheodan at the time of
the occurrence in the lane and that their
presence was not usual and in his opinion
they were awaiting Roopram so that he
could be availed of. It may be true that all
the accused persons were in the lane at the
time of the occurrence. But it cannot be
said that their presence was unusual. They
were the residents of the same village
which was a small village and it cannot be
said to be unusual to be present in a village
lane which was meant for the use of the
villagers. The learned Addl. Sessions Judge
has entered into the realm of conjecture
when he has observed that they were
awaiting Roopram so that he could be
availed of. This is merely a guess based on
no material on the record. The presence of
these persons in the lane cannot be said to
be incompatible with their innocence. The
second circumstance pointed out by the
learned Addl. Sessions Judge is that both
these accused went away from the scene of
occurrence with accused Sheodan. It is not
in the evidence that they had come together
or in a body. It is true that the witnesses
have deposed that when some neighbours
had arrived at the spot all the three ran
away towards the south. The learned
counsel for the State emphasized on this
circumstance and stated that it was a
relevant and sufficient circumstance to
show that they had a preconcert and shared
the common intention to cause injury to
Roopram. In that connection, the learned
counsel for the State relied on Mamand v.
Emperor. AIR 1946 PC 45=(47 Cri LJ 344)
and State v. Iftikharkhan, AIR 1973 SC 863
= (1973 Cri LJ 636). On the other hand,
Mr. Kashinath Joshi has sought to
distinguish these two cases relied on in
Pandurang v. State of Hyderabad, AIR
1955 SC 216=(1955 Cri LJ 572) and
Banwari v. State of U. P.. AIR 1962 SC
1198 = (1962 (2) Cri LJ 278). In AIR 1946
PC 45=(47 Cri LJ 344) their Lordships of
the Privy Council took the fact of running
away together as one of the considerations
to establish a common intention. But that
was not the sole circumstance but there was
much more than that. In that case there was
evidence that all the three accused came
together. There was also evidence that they
all ran away together in a body. In AIR
1973 SC 863=(1973 Cri LJ 636) also there
was evidence that the accused had come
together at the time of occurrence and they
were close associates and they had run
away together in a body after the shooting
was over. The facts of the particular case
cannot be applied indiscriminately to hold
the persons guilty. The case must rest on its
facts and the mere similarity of facts in one
case cannot be used to determine a
conclusion of fact in another. In the present
case ex- cepting that the accused were
present in the lane at the time of the
occurrence and that they had ran away
after the shooting there is no conclusive
circumstance to establish that the accused
had a prior concert and shared the common
intention to cause the injury to Roopram. It
has not been proved that the accused were
close associates of Sheodan nor it has been
proved that they had come together. It is of
course true that they had after the shooting
run away towards the south but it is not the
64 INDIAN LAW REPORTS ALLAHABAD SERIES
suggestion of the prosecution that they had
run in a body i.e. together. Their running
away after the shooting cannot be a
conclusive circumstance incapable of being
explained on other hypothesis. The running
away simultaneously after the shooting
could have been motivated by the instinct of
saving themselves from the villagers who
could have thought that these two accused
persons were also party to the incident. It
will
be
profitable
to
extract
the
observations made in Pandurang's case
AIR 1955 SC 216= (1955 Cri LJ 572)
which throw considerable light on the
controversy before me-

"In the present case there is no
evidence of any prior meeting we know
nothing of what they said or did before the
attack-not even immediately before...... But
to quote the Privy Council again. The
inference of common intention should never
be reached unless it is necessary inference
deducible from the circumstances of the
case'. But to say this is no more than to
reproduce
the
ordinary
rule
about
circumstantial evidence, for there is no
special rule of evidence for this class of
cases. At bottom, it is a question of fact in
every case and, however similar the
circumstances, facts in one case cannot be
used as a precedent to determine the
conclusion on the facts in another. All that
is necessary is either to have direct proof of
prior concert, or proof of circumstances
which necessarily lead to that inference, or,
as we prefer to put it in the time-honoured
way, the incriminating facts must be
incompatible with the innocence of the
accused and incapable of explanation on
any other reasonable hypothesis."

Bearing the principle laid down
by their Lordships of the Privy Council and
as approved by the Supreme Court, in
mind, there is no room for doubt to say that
there is no direct evidence of prior concert
and the circumstantial evidence is not such
which necessarily establish the conclusion
of the guilt of these two accused persons.
The presence of these persons on the spot
and their running away after the shooting
without further materials cannot be said to
be incompatible with the innocence of these
accused persons as already stated above.
The learned Additional Sessions Judge was
also not right when he used the omission of
these accused to intervene as a relevant
circumstance against them. There was one
fire
by
Sheodan
and
question
of
intervention could not have arisen. On the
other hand their omission to commit
violence or show of criminal force is a
circumstance in the facts of this case in
their favour. Consequently, it cannot be
said that the case against these two
accused is proved beyond any manner of
doubt."

27. Hon'ble Supreme Court in its
judgement
rendered
in
the
case
of
Parichhat and Others v. The State of M.P.,
AIR 1972 Supreme Court 535 has held that
in absence of any evidence of prior meeting
of minds and any pre-arranged plan or of
participation of accused persons in the fight
in question they cannot be convicted with
the aid of Section 34. The prosecution must
prove that the criminal act has been done in
concert pursuant to the pre-arranged plan.
Mere proof that some accused persons were
with the main accused who inflicted fatal
injury on the deceased will not attract the
applicability of Section 34.

28. Relevant portion of the aforesaid
judgement passed by the Hon'ble Supreme
Court is reproduced as under:-

"20.
The
Sessions
Court
disbelieved that the appellants Sunnu and
Sitaram had instigated the appellant Gangu
7 All. Salik Singh & Anr. Vs. State of U.P.
65
to give a ballam blow to Kashiram. The
appellants Parichhat, Sunnu and Sitaram
did not beat or strike anyone. Common
intention within the meaning of Section 34
of the Indian Penal Code implies pre
arranged plan. There being no evidence of
a prior meeting of minds and any
prearranged plan or of participation of
Sunnu and Sitaram in the fight they could
not be convicted with the aid of Section 34
of the Indian Penal Code. Parichhat could
not be said to have common intention with
Gangu to cause the death of Kashiram and
Parichhat could not be convicted with the
aid of Section 34 of the Indian Penal Code.
If they wanted to dispossess Damru and if
they went there to dispossess Damru and if
Gangu killed Kashiram and appellants
Parichhat, Sunnu and Sitaram could not be
brought within the common intention of
killing Kashiram. No such pre-arranged
plan has been proved. It has also not been
proved that any criminal act has been done
in concert pursuant to the pre-arranged
plan. Several persons can simultaneously
attack a man and each can have the same
intention, namely, the intention to kill and
each can individually inflict a separate
fatal blow and yet none would have the
common intention required by Section 34 of
the Indian Penal Code because there was
no prior meeting of minds to form a prearranged plan. In a case like that, each
would be individually liable for whatever
injury he caused but none could be
vicariously convicted for the act of any of
the others; and if the prosecution cannot
prove that his separate blow was a fatal
one he cannot be convicted of murder.

22. Section 34 of the Indian Penal
Code will not be attracted unless first it is
established that a criminal act was done by
several persons, second, that there was a
common intention and a pre-arranged plan
to commit an offence and third that there
was participation in the commission of the
offence in furtherance of that common
intention. The High Court was wrong in
convicting the appellants Parichhat, Sunnu
and Sitaram under Section 326 read with
Section 34 of the Indian Penal Code. Their
convictions are set aside. The High Court
in setting aside the acquittal of Parichhat,
Sunnu and Sitaram should have considered
the enmity between Dharam Ballabh and
Parichhat, the case instituted by Durji
against Dharam Ballabh, the allegations
made
by Parichhat against
Dharam
Ballabh, the hostile and unsympathetic
attitude of Ram Lakhan Sharma in
investigating the complaint of Durji against
Dharam Ballabh. If the appellants could
not be convicted under Sections 147, 447
and 302 read with Section 149 of the Indian
Penal Code and they were acquitted the
acquittal could not be set aside by the High
Court unless the Sessions Court in
acquitting the accused was palpably wrong
or took an erroneous view or committed
grave injustice. The setting aside of the
acquittal by the High Court was itself
erroneous and wrong. The High Court was
also wrong in convicting the appellants
under Section 326 read with Section 34 of
the Indian Penal Code. Merely remaining
with Gangu at the time of cutting the crop
will not justify any application of Section
34 of the Indian Penal Code with regard to
the murder of Kashiram."

29. Neither Smt. Heera Devi (P.W.-2)
nor her daughter, Pushpa (P.W.-1) in her
testimonies have deposed that there was
any pre-arranged plan of accused regarding
commission of crime in question nor there
was any common intention of all the
accused to commit the crime. I find that
prosecution even did not lead any evidence
to prove that there was common intention
of all the accused or there was pre-meeting
66 INDIAN LAW REPORTS ALLAHABAD SERIES
of minds of all the accused for committing
the crime in question.

30. In absence of any evidence led by
the prosecution or even any attempt by the
prosecution to prove that there was
common intention of all the accused or premeeting of minds for committing the crime
in question, the Appellate Court on its own
could not have drawn the inference that
there was common intention of all the
accused for committing the crime in
question.

31. In the aforesaid judgements
rendered by the Hon'ble Supreme Court, it
has been categorically held that for roping
the accused for the crime with the help of
Section 34 I.P.C., prosecution must lead
evidence to prove that there was common
intention of all the accused to commit the
crime
whereas
in
the
present
case
prosecution did not lead any evidence and
there is nothing in the testimony of P.W.-1
and P.W.-2 regarding common intention of
all the accused and pre-meeting of minds or
any pre-arranged plan in respect of
commission of crime, as such, Appellate
Court while adding Section 34 I.P.C. in
conviction of revisionists under Sections
323 and 325 I.P.C. has committed an
illegality.

32. In view of the aforesaid
discussion and reasoning, conviction of the
revisionists under Section 323 I.P.C. read
with Section 34 I.P.C. and Section 325
I.P.C. read with Section 34 I.P.C. is setaside and conviction of the revisionists
done by the trial court vide judgement and
order dated 9.03.2007 under Sections 323
and 325 I.P.C. is upheld.

33. So far as the order of the
Appellate
Court
exonerating
revisionists/appellants under Section 504
I.P.C. is concerned, the same is hereby
upheld.

34. Learned counsel appearing for the
revisionists has also argued that if the
conviction of revisionists under Sections
323 and 325 I.P.C. is upheld then they are
entitled for protection of Section 4 of The
Probation of Offenders Act, 1958 as prior
to said conviction, they have not been
convicted for any offence by any competent
court of law.
35. Learned counsel appearing for the
revisionists has also submitted that the
learned Appellate Court has refused to
grant benefit of Section 4 of The Probation
of Offenders Act, 1958 without considering
all the facts and circumstances and only for
the reason that Smt. Heera Devi and her
daughter, Pushpa have suffered injuries, the
benefit of Section 4 of The Probation of
Offenders Act, 1958 has been denied.

36. Learned counsel appearing for the
revisionists has also submitted that the
crime in question took place on 3.07.1992
and two accused including Raj Bahadur by
whose lathi blow, hand of Smt. Heera Devi
was fractured, have already died and since
then about more than 30 years have elapsed
and there is no offence committed by the
revisionists, therefore, in the facts and
circumstances of the case, at this stage,
revisionists are entitled for benefit of
Section 4 of The Probation of Offenders
Act, 1958.

37. I have considered submissions
advanced by learned counsel for the
revisionists in respect of the protection
under Section 4 of the Probation of
Offenders Act, 1958 and from the facts and
circumstances of the case, I find that the
crime in question took place in the year
7 All. Amar Bahadur Singh Vs. State of U.P. & Anr.
67
1992 and since then, 30 years have elapsed
and neither there is any offence committed
by the revisionists nor they have been
convicted for any offence. Even prior to the
crime in question, revisionists have not
been convicted for any offence. I also find
that Raj Bahadur, by whose lathi-blow,
hand of Smt. Heera Devi was fractured, has
already died and another convict, Atma
Singh has also died. Both the revisionists,
as on date, are of age more than 60 years.

38.

In
the
entire
facts
and
circumstances, I am of the view that
revisionists are entitled for benefit of
Section 4 of The Probation of Offenders
Act, 1958 and, therefore, instead of
sentencing the revisionists under Section
325 I.P.C. with rigorous imprisonment of
three years and fine of Rs. 1,000/- each and
under
Section
323
with
rigorous
imprisonment of one year and fine of Rs.
1,000/- each, they shall file two bonds to
the tune of Rs. 20,000/- coupled with
personal bonds to the effect that they shall
not commit any offence and shall be of
good behaviour and shall maintain peace
during the period of one year. If there is
breach of any of the aforesaid conditions,
revisionists will subject themselves to
undergo sentence before the Magistrate as
per Rules. The aforesaid bonds shall be
filed by the convicts within two months
from the date of this judgement.

39. Revision is partly allowed
regarding sentence of the revisionist.

40. Let record of trial court &
appellate court along with certified copy of
this order be sent to the court concerned for
necessary information and compliance.
----------
(2023) 7 ILRA 67
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Criminal Revision No. 484 of 2007

Amar Bahadur Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sushil Kumar Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Section 244 - Evidence for
prosecution - The Prevention of Food
Adulteration Act, 1954 - Section 7/16 -
Prohibitions of manufacture, sale, etc., of
certain articles of food/ Penalties , Section
2 (ia) (m) , 16 (1) (a) (i) - for punishing
an accused for an offence under Section
16(1)(a)(i) - prosecution has to lead
evidence and to prove that the quality or
purity of the article being primary food
has fallen below the prescribed standards
or its constituents are not present in
quantities within the prescribed limits of
variability,
in
either
case
due
to
adulteration made by the accused and
such fall in quality or purity is not due to
natural causes. (Para - 15)

(B) The Prevention of Food Adulteration
Act, 1954 - Proviso to Section 2(ia)(m) -
For milk to be declared adulterated -
prosecution
must
prove
that
the
percentage
of
fat
falling
below
the
prescribed standards was not within the
prescribed limits of variability and not due
to natural or human agency. (Para - 16)

Complaint against revisionist - cognizance over
complaint - Food Inspector got herself examined
under Section 244 Cr.P.C. and cross-examined -