# Satish & Ors v. State of U.P

- **Citation:** Criminal Appeal No. 1826 of 2004
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-31
- **Case number:** Criminal Appeal No. 1826 of 2004
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-ors-v-state-of-u-p-46447
- **Pages:** 11

## Headnote

Criminal law- Indian Penal Code -Sections
147, 504, 506(2), 308/149 - Appeal against
conviction.

Held :- Non consideration of Defence -
Section 313 IPC No internal damage in the
brain of injured was found by the doctor. (Para
27) Conviction stands vitiated. (Para 27)

Appeal allowed. (E-2)

List of Cases Cited:-

## Text

604 INDIAN LAW REPORTS ALLAHABAD SERIES
testimonies find support from the dying
declaration of the deceased. There is no
contradiction,
improvement
or
embellishment in their ocular account on
any material aspect such as time, date,
place and manner of occurrence and the
eye-witnesses
are
trustworthy
and
spontaneous in their narration of the
incident. We find that there is no perversity
or illegality in the impugned judgment and
sentence. The Criminal Appeal is liable to
be dismissed.

77.

The
Criminal
Appeal
is
accordingly dismissed.

78. The accused-appellant Vidya
Sagar Dwivedi is directed to surrender
before the learned trial court forthwith
where from he shall be sent to jail to
undergo the sentence.

79. Office is directed to send a copy
of this order to the court below for
communication and compliance along with
lower court record.
----------
(2020)03-05ILR A604
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2020

BEFORE
THE HON'BLE SIDDHARTH, J.

Criminal Appeal No. 1826 of 2004
Connected with
Criminal Appeal No. 1994 of 2004

Satish & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ranvir Singh, Sri Rajjan Singh Yadav,
Sri Ram Suphal Shukla

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

Criminal law- Indian Penal Code -Sections
147, 504, 506(2), 308/149 - Appeal against
conviction.

Held :- Non consideration of Defence -
Section 313 IPC No internal damage in the
brain of injured was found by the doctor. (Para
27) Conviction stands vitiated. (Para 27)

Appeal allowed. (E-2)

List of Cases Cited:-

1. Vijay Panduram Thakre Vs. St. of Mah.,
(2017) 2 SCC (Crl.) 356

2. Vikram Johar Vs. St. of U.P.& anr., 2019 (14)
SCC 207.

3. Balwantbhai B. Patel Vs. St. of Guj..

4. Jainul Haque Vs. St. of Bihar, 1974 AIR SC 045.

5.
Reena
Hazarika
Vs.
St.
of
Assam
MANU/SC/1249/2018

(Delivered by Hon'ble Siddharth, J.)

1. Heard Sri Rajjan Singh Yadav,
learned counsel for the appellants in
Criminal Appeal No. 1826 of 2004 and Sri
Ram Suphal Shukla, learned counsel for the
appellants in Criminal Appeal No. 1994 of
2004 and Sri S.S. Tripathi, learned
Additional
Government
Advocate
appearing on behalf of State in both the
appeals and perused the lower court record.

2. Criminal Appeal No. 1826 of 2004
has been preferred by Satish Babu, Jagat
Narain, Kunwar Bahadur, Desh Raj, all
sons of Raja Ram and Bharat @ Bhartendra
Babu son of Desh Raj against the judgment
and order dated 11.03.2004 and order dated
3-5 All. Satish & Ors. Vs.State of U.P.
605
23.03.2004 passed by Additional Sessions
Judge/ Fast Track Court, Auraiya in S.T.
No. 212 of 2002.

3. Criminal Appeal No. 1994 of 2004
has been preferred by Krishna Swaroop son
of Raja Ram and Rohit son of Desh Raj,
against the common judgment and order
dated
11.03.2004
and
order
dated
23.03.2004 passed by Additional Sessions
Judge/ Fast Track Court , Auraiya, in S.T.
No. 212 of 2002.

4. The appellants in both the appeals
have been convicted and sentenced under
Section 147 IPC for two years rigorous
imprisonment and a fine of Rs. 10,000/-
each; under Section 504 IPC to two years
rigorous imprisonment each; under Section
506(2) IPC to six months rigorous
imprisonment and fine of Rs. 2,000/- each
and under Section 308/149 IPC to three
years rigorous imprisonment and fine of
Rs. 2,000/- each. All the sentences have
been directed to run concurrently. Both the
appeals arise out of common trial.

5. The prosecution case is that the
informant is resident of Napur and is
employed in Bank of Indore, branch-
Kachnav Kala, District- Bhind. On account
of his prosperity the other villagers harbour
jealously against him. They keep on
plotting against the appellant for beating
him. Marriage of his younger brother was
fixed 07.03.2000 and in the morning
accused, Rohit son of Desh Raj, threatened
his brother, Hari Mohan, of life by pointing
a country made pistol on his chest but
because of the marriage ceremony in the
house they kept quiet. On 09.03.2000 after
seeing off relatives, the members of his
family were sitting in the house at 09:20
p.m for dinner when Rohit son of Desh Raj
along with Jagat Singh, Krishna Swaroop,
Kunwar Bahadur, Satish Babu, Desh Raj,
all sons of Raja Ram and Bharat son of
Desh Raj came to his house. Bharat had
gun in his hand and other persons were
armed with lathi and farsa. Satish Babu
and Jagat Narayan caught hold of his hand
and Bharat son of Desh Raj made blow on
his head by the butt of the gun and all the
accuseds started saying that today they will
kill him. He cried for help and then
Ashwani Kumar son of Ramphal Dohrey
and Hoti Lal resident of Purwa Adot and
many other villagers came and saved him.
The accuseds after beating him and hurling
abuses ran away.

6. Report of this incident was
registered at Police Station on 09.03.2000
as Case Crime No. 100 of 2000, under
Sections- 147, 323, 504, 506 IPC. The
injuries of the informant were examined by
the doctor and he was referred for x-ray of
his head. Fracture was found on the head of
the informant, Narendra Chaudhary. The
Investigating Officer after investigation
submitted charge sheet and charges under
Sections- 147, 323, 325, 504, 506 and 308
IPC were framed by the trial court. The
accuseds denied the charges and sought
trial.

7. P.W-1, Narendra Chaudhary, the
informant of the case, in his examinationin-chief repeated the allegations mentioned
in the FIR. In his cross-examination P.W-1
admitted that he is not aware on which post
accused, Satish, is employed in police
force. Accused, Jai Narain, is employed in
P.A.C. He does knows where accsueds,
Kishan Swaroop, Kunwar Bahadur and
Bharat are employed. He admitted that the
house of the accuseds are after the ten feet
street near his house. He stated that his
family takes water from well and public tap
which is situated on the gate of Jagannath.
606 INDIAN LAW REPORTS ALLAHABAD SERIES
Thereafter he stated that the aforesaid tap is
situated on the gate of the accuseds but his
family never takes water from the same. He
failed to reply from where his family
members take water. He alleged that the
accuseds throw stones in his house and this
is resulted into dispute with his brothers
with accused, Bharat about two years ago
in the month of July, 1998 but not in his
presence. No FIR was lodged regarding the
aforesaid incident and also the incident
dated 07.03.2000. On 07.03.2000 no
altercation took place but accused, Rohit
pointed a pistol on the chest of his brother
and threatened him but not before him. He
came to his house four days prior to the
incident on leave. He came to his house on
03.03.2000 but did not met the accuseds on
04.03.2000,
05.03.2000,
06.03.2000,
07.03.2000 and 08.03.2000. He saw them
at 06:00 p.m on 09.03.2000, i.e., the date of
incident. There was some function in their
house and therefore all of them had
gathered in their house. He admitted that
P.W-2, Ashwani Kumar, is his brother-in-law
and Hoti Lal is his uncle (mama). He stated that
there were two injuries on his body and not one,
as stated in FIR. When he reached the hospital
he realized that he has suffered two injuries.
The blood stains on the earth were present
where he got injured but the Investigating
Officer did not took the same in his possession.
Apart from causing him injuries the accuseds
beated his father, Ram Sewak Chaudhary and
Hari Mohan. But by what weapon they were
beaten he does not knows. They also suffered
injuries. Father suffered injuries on mouth and
the brother was slapped. He admitted that he
did not mentioned these facts in the FIR.

8. P.W-2, Ashwani Kumar, stated in his
examination-in-chief that accuseds, Satish Babu
and Jagat Ram, caught the hand of P.W-1,
Narendra Chaudhary and abused him and
accused, Bharat, caused blow on his head by
the butt of the gun. In his cross-examination he
admitted that P.W-1, Narendra Chaudhary, is his
brother-in-law (behnoi). He was present at the
time of incident in the house when the incident
dated 07.03.2000 took place at 10 - 10:30 am.
He recognizes the accuseds. The accuseds had
come from south direction. At the time of
incident, Hoti Lal, Mama of P.W-1, was sitting
along with him. He accompanied P.W-1, to the
police station on motorcycle. He was driving
and P.W-1 was sitting on the motorcycle. Hoti
Lal was also sitting and holding him from
behind. They went to police station and after
giving application at the police station went to
the hospital. Hoti Lal was medically examined.
On 14.03.2000 accused, Rohit Desh Raj,
Bharat, Satish, Jagat Narain, Kishan Swaroop
and Kunwar Bahadur, came to his house in
village Tulsipur and threatened him that in case
he gives statement in favour of P.W-1 they will
kill him. He testified that Bharat had gun in his
hand he cannot say which accused had lathi and
which had farsa in his hand. There was only
injury on the head of the P.W-1 and no other
injury on his body.

9. P.W-3, Hoti Lal, mama of P.W-1,
stated that on 07.03.2000 accused, Rohit,
pointed a country made pistol on the chest
of Hari Mohan and threatened him of life.
On the date of incident 09.03.2004 the
accuseds came to the house of the P.W-1.
Accused, Bharat, had gun in his hand and
other accuseds had lathi-danda, farsa etc.,
in their hands. Accuseds, Jagat and Satish,
caught hold of hand of P.W-1. Accused,
Bharat, caused injury on the head of the
injured by the butt of his gun. There was
only one injury on the head of P.W-1.
Application was given by P.W-1 at the
police station and FIR was lodged.

10. P.W-4, Head Constable, Anokhe
Lal, proved the chik FIR. He further stated
that he saw the injury on the head of the
3-5 All. Satish & Ors. Vs.State of U.P.
607
injured and got his signatures on the chik
report.

11. P.W-5, Dr. V.V. Prakash, Senior
Radiologist, stated that the injured came
alone and was not accompanied by any
policemen. His right parietal bone was
found fractured and he gave his report
accordingly.

12. P.W-6, Dr. R.B. Arya, found one
lacerated wound 8.5 cm x 1 cm x bone
deep 10 cm above right ear on scalp with
fresh bleeding present on the body of the
injured. Second injury was found to be pain
in the back but no injury was found.

13. P.W-7, Sub-Inspector, Harendra
Singh Yadav, proved the investigation of
the case conducted by him.

14. P.W-8, Constable, Babu Lal
Yadav, proved the signature of SubInspector, Devendra Dixit on the charge
sheet submitted before the court. He proved
that Devendra Dixit had died and therefore
he is proving his signature on the charge
sheet

15. The statement of the accuseds
were recorded under Section 313 CrP.C and
all of them have stated that P.W-2, Ashwani
Kumar and P.W-3, Hoti Lal are sala and
mama of P.W-1 respectively and they have
given false evidence before the court. They
further stated that the family of P.W-1 is
envious of prosperity of their family
members and therefore they have been
falsely
implicated
in
this
case
on
09.03.2000. The bis the utensils of the
cooks, used in marriage of the brother of
P.W-1, were kept on the public tap and
P.W-1 stumbled on the utensils in the night
and fell on them which is resulted in head
injury by falling over the utensils. On
account of envy he has falsely implicated
the accuseds in this case. They denied
going to his house and causing injury. The
investigation by Investigating Officer was
stated to be illegal.

16. The trial court found that offences
under Sections 323 and 325 IPC are not
made out against the accuseds and as such
acquitted them of the charges under the
aforesaid sections. However they have been
punished for committing offences under
Sections 147, 504, 506 (2), 308/149 IPC.

17. Counsel for the appellant has
submitted that the implication of all the
appellants for offences under Section 308
IPC read with Section 149 IPC is not
justified. His submission is that general and
sweeping allegations have been levelled
against all the accuseds when the role of
causing blow on the head of P.W-1 has
been assigned only to Bharat. Satish and
Jagat Narain, have been assigned the role
of catching the hand of the injured. The
incident is of night and no source of light
has been mentioned nor found during
investigation by Investigating Officer and
how the assailants were recognized in the
night has not been explained. The common
object of all the accuseds has not been
established. Mere presence of accuseds,
except Bharat, does not proves the
allegation of unlawful assembly and the
implication of the appellants for offence
under Section 147 IPC is not justified.
There is no motive of the crime except
jealousy of the accuseds with the injured.
On
07.03.2000
only
accused,
Rohit
threatened the brother of P.W-1 and there
also no other motive was assigned for the
act of the co-accused, Rohit. Motive still
has its corroborative value even when
direct testimony is available. When the
accused, Bharat, caused the injury to P.W-1
on his head by butt of the gun, he raised
608 INDIAN LAW REPORTS ALLAHABAD SERIES
alarm and then P.W-2 and P.W-3 reached
the scene of incident but they did not saw
anyone on the scene of incident. The
testimony
of
P.W-1
has
not
been
corroborated any witness of fact. The
implication of the appellants under Section
504 and 506 IPC is not justified since only
on account of mere allegation that accuseds
abused the complainant the ingredients of
Section 504 and 506 are not satisfied. The
insult must be of such degree that it should
provoke a person to break public place or
commit
any
other
offence.
The
Investigating Officer has not recovered any
blood stained clothes or blood stains on
earth from the place of incident when P.W1 has admitted that blood has fallen on the
earth. The prosecution case does not stands
proved but the accuseds have been illegally
convicted and sentenced.

18. Learned A.G.A on the other hand has
submitted that the offence alleged against the
appellants stand fully proved. Witness of fact
have proved that all the accuseds came with
weapons. Bharat was having gun and others
were armed with lathi and farsa. Two of them,
namely, Jagat Narain and Satish Babu, caught
hold of the hands of the informant and Bharat
gave a blow from the butt of the gun on his
head. On the scream of the injured P.W-2,
Ashwani Kumar and P.W-3, Hoti Lal, came on
the spot. The medical examination of the
injured was conducted on the same day on
11:25 p.m and the doctor found the injury fresh.
Fracture on parietal bone of the injured was
found. The injury was found to be grievous by
the doctor, P.W-6. The offence under Sections
147, 149, 308, 504 and 506(2) IPC are fully
made out against the appellants.

19. After hearing the rival contentions the
first argument of the counsel for the appellants
that for implication under Sections 147 and 149
IPC mere presence of all the accuseds, except
accused, Bharat, did not make them member of
an unlawful assembly unless the participate in
the act of rioting or do some overt act with
necessary criminal intention or share common
object
of
unlawful
assembly
needs
consideration. The Apex Court in the case of
Vijay Panduram Thakre vs. State of
Maharashtra, (2017) 2 SCC (Crl.) 356 has
held as follows:-

Section 149 IPC reads as under:

"149. Every member of unlawful
assembly guilty of offence committed in
prosecution of common object.--If an offence is
committed by any member of an unlawful
assembly in prosecution of the common object
of that assembly, or such as the members of that
assembly knew to be likely to be committed in
prosecution of that object, every person who, at
the time of the committing of that offence, is a
member of the same assembly, is guilty of that
offence." As is clear from the plain language, in
order to attract the provision of the Section,
following ingredients are to be essentially
established.

(i) There must be an unlawful
assembly.

(ii) Commission of an offence by
any member of an unlawful assembly.

(iii) Such offence must have been
committed in prosecution of the common
object of the assembly; or must be such as
the members of the assembly knew to be
likely to be committed.

If
these
three
elements
are
satisfied, then only a conviction under
Section 149, I.P.C., may be substantiated,
and not otherwise. None of the Sections
147, 148 and 149 applies to a person who
3-5 All. Satish & Ors. Vs.State of U.P.
609
is merely present in any unlawful assembly,
unless he actively participates in the rioting
or does some overt act with the necessary
criminal intention or shares the common
object of the unlawful assembly.

In the facts of the present case,
we find that common object of the
assembly, even if it is presumed that there
was an unlawful assembly, has not been
proved. The expression 'in prosecution of
the common object' occurring in this
Section postulates that the act must be one
which have been done with a view to
accomplish the common object attributed to
the members of the unlawful assembly. This
expression is to be strictly construed as
equivalent to in order to attain common
object. It must be immediately connected
with common object by virtue of nature of
object. In the instant case, even the
evidence is not laid on this aspect. As
pointed out above, the courts below were
influenced by the fact that one of the
injuries on the person of Ashok was on his
head which became the cause of death and
from this, common object is inferred.

In Mukteshwar Rai v. State of
Bihar, the accused persons were alleged to
have
formed
an
unlawful
assembly,
gathered in a village and set some houses
on fire and ransacked. Two persons died as
they got burnt and two could not be traced.
This Court agreed with the finding of the
High Court as to formation of the unlawful
assembly. But as to the finding that the
common object of the unlawful assembly
was to commit murder took somewhat a
different view and observed:

"The specific overt acts attributed
to A-1 and five others who are said to have
actively participated in setting the fire and
thrown some of the victims into the fire
stand disbelieved. It may also be noted that
none of the P.Ws. Is injured and we find
from the judgment of the High Court that
none of the witnesses say that any one of
these appellants were armed. The learned
Judge has extracted the incriminating part
in each of the witnesses against these
appellants. It stated that these accused
were
identified
by
those
respective
witnesses mentioned therein in discussing
the case against each of th accused. There
is nowhere any mention that any one of
these appellants were armed. In such a
situation the question is whether these
appellants also had a common object of
committing the murder. We have given
earnest consideration to this aspect. Taking
a general picture of the case and after a
close scrutiny of the evidence we find that
two persons were charred to death. This
must have been the result of setting fire to
those houses. With regards the other two
missing persons it cannot be concluded that
they were murdered in the absence of any
iota
of
evidence.
Under
these
circumstances we find it extremely difficult
to hold that a common object of the
unlawful assembly was to commit murder."
We would also like to quote the following
passage from Thakore Dolji Vanvirji &
Ors. v. State of Gujarat.

20. In the present case it is to be
decided whether all the accuseds would be
constructively liable. So far as accused,
Bharat, is concerned he has been assigned
the role of causing blow on the head of the
injured by butt of a gun. Satish Babu and
Jagat Narain, have been assigned the role
of catching hold of the injured, P.W-1, but
there is no evidence against the remaining
accuseds about any overt act on their part
which
may
constitute
offence
under
Sections 149 and 147 IPC. All the eyewitnesses have made general allegations
610 INDIAN LAW REPORTS ALLAHABAD SERIES
against the other accuseds of accompanying
the accused, named above, with lathi-
danda and farsa. No doubt Section 149
IPC is vide in its sweep but in fixing the
membership of the accuseds in unlawful
assembly and in finding the common
object, mere presence in any unlawful
assembly does not make them participants
in rioting by sharing common object and
having
necessary
criminal
intention.
Therefore the conviction of all the
appellants for offences under Sections 149
and 147 IPC does not appears to be
justified. The prosecution has not been able
to sustain the charge of rioting. Prosecution
has to establish that there was unlawful
assembly as defined in Section 141 IPC,
that the accuseds were members of that
assembly as defined in Section 142 IPC,
that force of violence was caused by such
assembly or by any member thereof and
that it was used in prosecution of the
common object of the assembly. The
burden of proving the charge lies on the
prosecution. Notwithfstanding the large
number of persons accused for rioting and
consequent difficulty of prosecution to
name the specific act of particular accused,
the court must see that all the ingredients
required for unlawful assembly and rioting
are strictly proved by the prosecution
before convicting the accuseds.

21. Regarding the conviction of the
accuseds for offence under Sections 504
and 506 IPC, the Apex Court in the case of
Vikram Johar vs. State of Uttar Pradesh
and Another, 2019 (14) SCC 207 has held
that follows:-

21. We need to notice Sections
503, 504 and 506 for appreciating the
issues,
which
has
come
up
for
consideration, which are to the following
effect:-

"503. Criminal
intimidation.--
Whoever threatens another with any injury
to his person, reputation or property, or to
the person or reputation of any one in
whom that person is interested, with intent
to cause alarm to that person, or to cause
that person to do any act which he is not
legally bound to do, or to omit to do any
act which that person is legally entitled to
do, as the means of avoiding the execution
of
such
threat,
commits
criminal
intimidation.

Explanation.-- A threat to injure
the reputation of any deceased person in
whom the person threatened is interested, is
within this section.

504. Intentional insult with intent
to provoke breach of the peace.--Whoever
intentionally insults, and thereby gives
provocation to any person, intending or
knowing
it
to
be
likely
that
such
provocation will cause him to break the
public peace, or to commit any other
offence,
shall
be
punished
with
imprisonment of either description for a
term which may extend to two years, or
with fine, or with both.

506. Punishment for criminal
intimidation.--
Whoever
commits,
the
offence of criminal intimidation shall be
punished with imprisonment of either
description for a term which may extend to
two years, or with fine, or with both;

If threat be to cause death or grievous
hurt, etc.--And if the threat be to cause
death or grievous hurt, or to cause the
destruction of any property by fire, or to
cause an offence punishable with death or
imprisonment for life, or with imprisonment
for a term which may extend to seven years,
or to impute, unchastity to a woman, shall
3-5 All. Satish & Ors. Vs.State of U.P.
611
be punished with imprisonment of either
description for a term which may extend to
seven years, or with fine, or with both."

22. ................................

23. In paragraph No.13 of the
judgment, this Court has noticed the
ingredients of Section 504, which are to the
following effect:-

"13. Section 504 IPC comprises of
the following ingredients viz. (a) intentional
insult, (b) the insult must be such as to give
provocation to the person insulted, and (c) the
accused must intend or know that such
provocation would cause another to break the
public peace or to commit any other offence.
The intentional insult must be of such a degree
that should provoke a person to break the
public peace or to commit any other offence.
The person who intentionally insults intending
or knowing it to be likely that it will give
provocation to any other person and such
provocation will cause to break the public
peace or to commit any other offence, in such a
situation, the ingredients of Section 504 are
satisfied. One of the essential elements
constituting the offence is that there should have
been an act or conduct amounting to intentional
insult and the mere fact that the accused abused
the complainant, as such, is not sufficient by
itself to warrant a conviction under Section
504 IPC."

24. In another judgment, i.e., Manik
Taneja and Another Vs. State of Karnataka and
Another, (2015) 7 SCC 423, this Court has
again occasion to examine the ingredients
of Sections 503 and 506. In the above case also,
case
was
registered
for
the
offence
under Sections
353 and 506 I.P.C.
After
noticing Section 503, which defines criminal
intimidation, this Court laid down following in
paragraph Nos. 11 and 12:-

"11. Xxxxxxxxxxxxx A reading of the
definition of "criminal intimidation" would
indicate that there must be an act of threatening
to another person, of causing an injury to the
person, reputation, or property of the person
threatened, or to the person in whom the
threatened person is interested and the threat
must be with the intent to cause alarm to the
person threatened or it must be to do any act
which he is not legally bound to do or omit to
do an act which he is legally entitled to do.

12. In the instant case, the
allegation is that the appellants have
abused the complainant and obstructed the
second respondent from discharging his
public duties and spoiled the integrity of
the second respondent. It is the intention of
the accused that has to be considered in
deciding as to whether what he has stated
comes within the meaning of "criminal
intimidation". The threat must be with
intention to cause alarm to the complainant
to cause that person to do or omit to do any
work. Mere expression of any words
without any intention to cause alarm would
not be sufficient to bring in the application
of this section. But material has to be
placed on record to show that the intention
is to cause alarm to the complainant. From
the facts and circumstances of the case, it
appears that there was no intention on the
part of the appellants to cause alarm in the
mind of the second respondent causing
obstruction in discharge of his duty. As far
as the comments posted on Facebook are
concerned, it appears that it is a public
forum meant for helping the public and the
act of the appellants posting a comment on
Facebook may not attract ingredients of
criminal intimidation in Section 503 IPC."

22. Now reverting back to the case in
hand we find that there is general allegation
against the accuseds that after the co-
612 INDIAN LAW REPORTS ALLAHABAD SERIES
accused, Bharat, injured P.W-1 and he
screamed all the accuseds abused and
threatened him of life and went away.
There is no allegation that such threat
consisted of some injury to his person,
reputation of property, or they did so with
intent to cause alarm to P.W-1 or to cause
him to do any act which he was not legally
bound to do or omit to do any act which he
was legally entitled to do as a means of
avoiding the execution of such threat.
Therefore the allegation under Sections 504
and 506 IPC were also not made out
against all the appellants.

23. The offence under Section 308
IPC has also been found proved by the trial
court against the appellants. There are
ocular testimonies of three witnesses of fact
in this regard. In law a person commits an
offence under Section 308 IPC if he does
not act with such intention or knowledge
and under such circumstances that, if he
thereby caused death he would be guilty of
culpable homicide not amounting to
murder. In the present case if considered
this offence with the motive of only
jealousy the offence under Section 308 IPC
against accused, Bharat stands proved and
not against the other accuseds. The injury
of fracture on the left parietal bone of the
injured has been found and it is sufficient to
bring the case of appellant, Bharat, under
Section 308 IPC, because had the injured
died, he could have been convicted under
Section 304 IPC.

24. Now regarding the offence of
catching hold this court finds that such
allegations are often made in cases to
falsely implicate number of accuseds where
the number of injuries on the injured party
do not corelate with the number of
accuseds. In the present case only one
injury on the head of the appellant was
found but there were 7 persons implicated
by the prosecution. Two of them namely,
Satish Babu and Jagat Narain, have been
assigned the role of catching hold of
injured, P.W-1. The Apex Court in the case
of Balwantbhai B. Patel vs. State of
Gujarat has held accordingly and set aside
the judgment of conviction recorded by the
High Court.

25. Regarding the role of exhortation
assigned to the accuseds it has been found
that it is a week type of evidence as held by
the Apex Court in the case Jainul Haque
vs. State of Bihar, 1974 AIR SC 0-45. The
Apex Court has held in the above noted
case that eye-witnesses are prone to
exaggerate thing and to involve as many
accuseds
as
possible.
The
evidence
exhortation is, in very nature of things, a
week piece of evidence. There is quite
often tendency to implicate some persons,
in addition to the actual assailants by
attributing to that person role of exhortation
to the assailants to assault the victim.
Unless the evidence in this respect is clear,
cogent and reliable no conviction for
abetment can be recorded against the
person assigned the role of exhortation. In
the
present
case
no
clear
evidence
regarding the manner and actual words of
exhortation was proved by the prosecution.
Hence the role of exhortation assigned to
the co-accuseds cannot be accepted. In the
present case there is another important
aspect of the case. All the accuseds in their
statements under Section 313 Cr.P.C have
stated that there was jealousy on the part of
injured which has resulted into their false
implication. Similar allegation has been
leveled by the injured against the accuseds
stating that since he was employed in the
bank and his family was prosperous
therefore the accuseds were jealous and
they caused the alleged offence against
3-5 All. Satish & Ors. Vs.State of U.P.
613
him. Both the sides have set up this motive
of offence as jealousy only and nothing
more. Although there is ocular testimony of
three witnesses proving the fact of the
accused, Bharat, causing head injury by the
butt of gun to the injured P.W-1, but the
defense of the accuseds that the injured
himself suffered injury by falling on the
utensils kept on the public tap in the night
and on account of falling over the heavy
utensils brought by halwai in marriages he
suffered a solitary injury on his temporal
bone. This injury was utilized by the
injured to false implicate the appellants in
this
case
since
there
was
already
relationship of jealousy between the two
parties and the injured got and occasion to
falsely implicate seven persons in this case.
The defense of the accuseds under Section
313 Cr.P.C has not been examined at all by
the trial court before convicting and
sentencing the appellant. Nothing has been
recorded by the trial court whether the
defense set up by the accuseds inspires
confidence or not. Its probability or
improbability has also not been considered
by the trial court. It has only recorded the
finding
that
no
effective
oral
or
documentary evidence have been produced
by the accuseds to prove that the injured
suffered injuries after falling on the utensils
kept on the public tap.

26. The Apex Court in the case of
Reena Hazarika vs. State of Assam
MANU/SC/1249/2018 has held regarding
the requirement of Section 313 Cr.P.C

"16.
Section
313,
Code
of
Criminal Procedure cannot be seen simply
as a part of audi alteram partem. It confers
a valuable right upon an Accused to
establish his innocence and can well be
considered beyond a statutory right as a
constitutional right to a fair trial Under
Article 21 of the Constitution, even if it is
not to be considered as a piece of
substantive evidence, not being on oath
Under Section 313(2), Code of Criminal
Procedure The importance of this right has
been considered time and again by this
Court, but it yet remains to be applied in
practice as we shall see presently in the
discussion to follow. If the Accused takes a
defence after the prosecution evidence is
closed, Under Section 313(1)(b) Code of
Criminal
Procedure
the
Court
is
duty bound Under Section 313(4) Code of
Criminal Procedure to consider the same.
The mere use of the word 'may' cannot be
held to confer a discretionary power on the
court to consider or not to consider such
defence, since it constitutes a valuable right
of an Accused for access to justice, and the
likelihood of the prejudice that may be
caused thereby. Whether the defence is
acceptable or not and whether it is
compatible or incompatible with the
evidence available is an entirely different
matter. If there has been no consideration
at all of the defence taken Under
Section 313 Code of Criminal Procedure,
in the given facts of a case, the conviction
may well stand vitiated. To our mind, a
solemn
duty
is
cast
on
the
court
in dispensation of justice to adequately
consider the defence of the Accused taken
Under
Section 313 Code
of
Criminal
Procedure and to either accept or reject the
same for reasons specified in writing."

27. Although the trial court has
refused to consider the defence of the
accuseds under Section 313 Cr.P.C on the
ground that there is no oral or documentary
evidence in support of the same but this
court in exercise of apellate jurisdiction can
consider the same. The finding of the court
below that there is defence without
supporting evidence hence defense of the
614 INDIAN LAW REPORTS ALLAHABAD SERIES
accuseds set up under section 313 Cr.P.C
cannot be considered, is not in accordance
with requirement of law. The Apex Court in
the case of Reena Hazarika (Supra) has
clearly held that the statement of the
accuseds under Section 313 Cr.P.C is not a
substantive evidence but whether the
defence setup therein is acceptable or not
has to be considered. Whether the defense
is acceptable or not or whether it is
compatible or incompatible with the
evidence available is an entirely different
matter. If there is no consideration at all of
the defense taking under Section 313
Cr.P.C., in the given facts of the case, the
conviction stands vitiated.

28. In the present case the defence set
up was that the injured fell on utensils of
halwai in the night and suffered one injury
of fracture on his left temporal bone
therefrom. No internal damage in the brain
of the injured was found by the doctor. It
was a simple fracture on parietal bone. The
utensils utilized by halwai while preparing
food for large number of persons are
mostly of heavy metals and have different
type of edges and by abruptly falling on
such utensils injury on head can occur. It is
not absolutely impossible. Due to sudden
fall the injury suffered by P.W-1 on head
can be suffered by such fall on heavy
utensils of halwai. From the statements of
P.W-1 it is clear that he has avoided
replying to the question from where his
family brings the water. The public tap has
been admitted to be situated on the gate of
the house of the accuseds. It is not
improbable that on the public tap infront of
the house of the accuseds the utensils were
being washed or kept for being washed and
the injured stumbled against them and fell
on them resulting in injury over his head.
He has admitted that the accuseds were
jealous of his family and accuseds have
said that injureds was jealous of them and
therefore there is possibility of false
implication of appellants in this case by
P.W-1. The trial court has not considered
this aspect of defense.

29. After considering the totality of
fact and circumstances on record this court
find that at the most offence under Section
308 IPC was made out against the accused,
Bharat,
but
on
account
of
nonconsideration of the defense of the accused
under Section 313 Cr.P.C., the same can
also not been sustained.

30. The judgment and order of this
trial court is set aside. The office is directed
to send back record of the court below
along with copy of this judgment and order
within three weeks.

31. The criminal appeal is allowed.
----------

(2020)03-05ILR A614
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 1852 of 1991

Mohd. Ishaq & Ors. ...Appellants (In Jail)
Versus
The State of U.P. ...Respondent

Counsel for the Appellants:
Sri Satish Trivedi, Sri Ajay Kumar Pandey

Counsel for the Respondent:
A.G.A.

Criminal law- Indian Penal Code -Sections
304B, 201, 498A - Dowry Prohibition