# Sheo Bux Singh & Ors. (In Jail) v. State of U.P

- **Citation:** (2022) 5 ILRA 581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-05
- **Case number:** Criminal Appeal No.54 of 1984
- **Bench:** Devendra Kumar Upadhyaya, Ajai Kumar Srvastava -I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheo-bux-singh-ors-in-jail-v-state-of-u-p-48560
- **Pages:** 10

## Headnote

A. Criminal Law -Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 148, 436/19,
429/149, 323/149 & 302/149-challenge
to-conviction-deceased
died
in
an
incident of dacoity-appellant no. 2 was
armed
with
country
made
firearm,
however
from
the
perusal
of
the
postmortem report of deceased, no fire
arm injury was reported on the deceased
nor her injured son sustained any fire
arm injury-the Prosecution examined
eleven witnesses-Their testimonies are
consistent with the prosecution story-the
injury reports of the injured as well as
the
deceased
fully
supported
and
corroborated the prosecution case in
respect of manner of commission of
crime-PW-5
who
is
an
independent
witness, stated in his testimony that the
deceased was stabbed by other accused
not by appellant no. 2 and the same was
supported by the testimony of PW-4-PW2 and PW-3 also supported the same
version that appellant no. 2 neither
extended threat to the deceased nor he
extended exhortation to inflict injuries to
PW-4
(deceased
son)-Prosecution
witnesses have stated in their testimony
that in first leg of incident, accused
persons including appellant no. 2 had
opened indiscriminate fire-While, in the
second leg of incident, despite being
armed with fire arm , appellant no. 2 did
not use alleged country made fire arm on
the deceased-appellant no. 2 did not
share
common
object
of
unlawful
assembly to kill the deceased-Thus, Trial
court has committed error in holding the
appellant guilty u/s 302/149 IPC-The
same being illegal and perverse deserves
to be set aside.(Para 1 to 42)

B. A common object may be formed by
express
agreement
after
mutual
consultation, but that is by no means
necessary. it may be formed at any stage
by all or a few members of the assembly
and the other members may just join and
adopt it. Once formed, it need not
continue to be the same. it may be
modified or altered or abandoned at any
stage. The expression " in prosecution of
common object" as appearing in Section
149 has to be strictly construed as
equivalent to " in order to attain the
common object." Each member of what is
likely to be committed in prosecution of
their common object may vary not only
according
to
the
information
at
his
command, but also according to the
extent to which he shares the community
of object, and as a consequence of this the
effect of Section 149 IPC may be different
on
different
members
of
the
same
assembly. (Para 37)
The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

5 All. Sheo Bux Singh & Ors. Vs. State of U.P.
581
circumstances, there shall be no order as to
costs.
----------
(2022)05ILR A581
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.05.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE AJAI KUMAR SRVASTAVA -I, J.

Criminal Appeal No.54 of 1984

Sheo Bux Singh & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Kr. Mridul Rakesh, Sri Anuj Dayal, Kr. Mukul
Rakesh,
Kumwar
Mukul
Rakesh,
Kumwar
Sushant Prakash, Rajiv Raman Srivastava

Counsel for the Respondent:
G.A.

A. Criminal Law -Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 148, 436/19,
429/149, 323/149 & 302/149-challenge
to-conviction-deceased
died
in
an
incident of dacoity-appellant no. 2 was
armed
with
country
made
firearm,
however
from
the
perusal
of
the
postmortem report of deceased, no fire
arm injury was reported on the deceased
nor her injured son sustained any fire
arm injury-the Prosecution examined
eleven witnesses-Their testimonies are
consistent with the prosecution story-the
injury reports of the injured as well as
the
deceased
fully
supported
and
corroborated the prosecution case in
respect of manner of commission of
crime-PW-5
who
is
an
independent
witness, stated in his testimony that the
deceased was stabbed by other accused
not by appellant no. 2 and the same was
supported by the testimony of PW-4-PW2 and PW-3 also supported the same
version that appellant no. 2 neither
extended threat to the deceased nor he
extended exhortation to inflict injuries to
PW-4
(deceased
son)-Prosecution
witnesses have stated in their testimony
that in first leg of incident, accused
persons including appellant no. 2 had
opened indiscriminate fire-While, in the
second leg of incident, despite being
armed with fire arm , appellant no. 2 did
not use alleged country made fire arm on
the deceased-appellant no. 2 did not
share
common
object
of
unlawful
assembly to kill the deceased-Thus, Trial
court has committed error in holding the
appellant guilty u/s 302/149 IPC-The
same being illegal and perverse deserves
to be set aside.(Para 1 to 42)

B. A common object may be formed by
express
agreement
after
mutual
consultation, but that is by no means
necessary. it may be formed at any stage
by all or a few members of the assembly
and the other members may just join and
adopt it. Once formed, it need not
continue to be the same. it may be
modified or altered or abandoned at any
stage. The expression " in prosecution of
common object" as appearing in Section
149 has to be strictly construed as
equivalent to " in order to attain the
common object." Each member of what is
likely to be committed in prosecution of
their common object may vary not only
according
to
the
information
at
his
command, but also according to the
extent to which he shares the community
of object, and as a consequence of this the
effect of Section 149 IPC may be different
on
different
members
of
the
same
assembly. (Para 37)
The appeal is partly allowed. (E-6)

List of Cases cited:

1. Anil Kumar Vs St. of U.P. (2004) 13 SCC 257

2. Chanda Vs St. of U.P. (2004) 5 SCC 141
582 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. We have heard Sri Anuj Dayal,
learned counsel for the appellant and Sri
Anurag
Verma,
learned
Additional
Government Advocate for the Staterespondents.

2. Challenge in this appeal is to the
judgment and order dated 19.01.1984
rendered by Additional Sessions Judge,
Unnao in Sessions Trial No.112/1980
arising out of Crime No.39/1979, under
Sections 148, 302/149, 429, 436, 323
Indian Penal Code (hereinafter referred to
as I.P.C.), Police Station Ajgain, District
Unnao, whereby the appellant No.1, Sheo
Bux Singh has been convicted and
sentenced to undergo one year's rigorous
imprisonment for the offence under Section
147
I.P.C.;
one
year's
rigorous
imprisonment for the offence under Section
323 I.P.C.; life imprisonment for the
offence under Section 302/149 I.P.C.; ten
years' rigorous imprisonment for the
offence under Section 436/149 I.P.C.; five
years' rigorous imprisonment for the
offence
under
Section
429/149.
The
appellant no.2, Raj Bahadur Singh, has
been convicted and sentenced to undergo
two years' rigorous imprisonment for the
offence under Section 148 I.P.C.; life
imprisonment for the offence under Section
302/149
I.P.C.;
ten
years'
rigorous
imprisonment for the offence under Section
436/149
I.P.C.;
five
years'
rigorous
imprisonment for the offence under Section
429/149
I.P.C.;
one
year's
rigorous
imprisonment for the offence under Section
323/149 I.P.C. The appellant No.3, Nanha
Singh has been convicted and sentenced to
undergo two years' rigorous imprisonment
for the offence under Section 148 I.P.C.;
life imprisonment for the offence under
Section 302 I.P.C.; ten years' rigorous
imprisonment for the offence under Section
436/149
I.P.C.;
five
years'
rigorous
imprisonment
for
the
offence
under
Sections 429/149 I.P.C.; one year's rigorous
imprisonment for the offence under Section
323/149 I.P.C. All the sentenc

3. At the outset, it is required to be
noted that the charge-sheets, Ex. Ka-7 and
Ex. Ka-12 were laid before learned trial
Court against six accused persons. The case
against accused, Ram Bux Singh and Dev
Bux Singh stood abated during trial due to
their death. The instant appeal was filed by
three appellants, namely, Sheo Bux Singh,
Raj Bahadur Singh and Nanha Singh. Due
to death of appellant no.1, Sheo Bux Singh
and appellant no.3, Nanha Singh, the
instant appeal has already been abated, vide
order of this Court dated 21.04.2018.
Therefore, the present appeal survives only
in respect of appellant no.2, Raj Bahadur
Singh.

4. The facts as unfolded by the
prosecution, in short conspectus, are that a
written report, Ex. Ka-2 was given at Police
Station Ajgain, District Unnao in the
intervening night of 13.02.1979/14.02.1979
at 00:30 hours by the first informant, Vijay
Bahadur Singh, P.W.-2 stating therein that
on 13.02.1979 at about 9:00 P.M., Ram
Bux Singh, Dev Bux Singh armed with fire
arms, Sheo Bux Singh armed with lathi
along with one of his associate Raj Bahadur
Singh, who was armed with country made
fire arm and Nanha Singh, who was
carrying a knife, came to the house of
younger brother of the first informant and
pressed his door and opened fire at his
door. These accused persons hurled abuses
and were also extending threat to kill. On
hearing commotion, the first informant
came upstairs and raised alarm. The
5 All. Sheo Bux Singh & Ors. Vs. State of U.P.
583
accused persons opened fire at the first
informant who, after taking shelter, started
pelting stones etc. at the accused persons.
Meanwhile, accused, Dev Bux Singh
torched the thatch of Ram Singh and Ram
Prakash and thereafter, torched the houses
of Kallu Singh, Bhagauti Lodh and the
house of the first informant. They also set
the stubble ablaze. They were extending
threat to shoot anyone who comes to
rescue. Due to commotion, Jagan, Chetram,
Purvi, Prabhu, Ram Sevak Yadav and some
other people came to the spot and also
raised alarm. Ram Sevak was hit by Sheo
Bux Singh by Lathi when he was trying to
take his animals away.

4(a) In this incident of torching
thatches etc. two bulls, one buffalo, one
cow and one calf belonging to Kallu Singh
died due to burn injuries, whereas a buffalo
and a goat belonging to Ram Prakash and
two buffalo and a calf belonging to Ram
Singh also died. Various household articles
of Kallu Singh, Ram Prakash and Ram
Singh were burnt in this incident. First
informant's thatch and a window was also
burnt in this incident.

4(b)
Thereafter,
all
accused
persons are said to have gone to the house
of Ram Prashad and have stabbed his wife,
Sarju Devi. The son of Ram Prashad,
Gurudin was present there, who raised
alarm. He was also beaten by Lathi. When
they were challenged by the people, who
had reached on the spot, the accused
persons
retreated
towards
Village
Nanatikur.

4(c) According to prosecution,
one of the relative of first informant,
Narendra was accused in a case pertaining
to murder of Mahendra Singh, which had
occurred about two years ago. Due to
aforesaid reasons, brothers of deceased,
Mahendra Singh, accused, Ram Bux Singh,
Sheo Bux Singh and Dev Bux Singh
nourished grudge against the first informant
and his family members. It is also stated in
the written report Ex. Ka-2 that the accused
persons nourished grudge against Ram
Prakash for the reasons that he stood as a
witness against Ram Bux Singh.

5. The aforesaid written report, Ex.
Ka-2 was scribed by Ram Sevek. On the
basis of said written report, Ex. Ka-2 given
by
PW-2,
Vijay
Bahadur,
a
first
information report bearing Case Crime
No.39/1979, under Sections 147, 148, 149,
307, 436, 452, 324, 429 I.P.C., Ex. Ka-13
came to be lodged at Police Station Ajgain,
District Unnao against Ram Bux Singh @
Munnu Singh, Dev Bux Singh, Sheo Bux
Singh, Raj Bahadur and Nanha Singh.

6. On receiving information of death
of the injured, Sarju Devi, Section 302
I.P.C.
came
to
be
added
during
investigation vide G.D. No.14 dated
18.03.1979, Ex. Ka-15.

7. During investigation, evidence
regarding complicity of one Kaptan Singh
was also collected by the Investigating
Officer, therefore, upon conclusion of
investigation, charge-sheet, Ex. Ka-7 was
submitted against Kaptan Singh and Ex.
Ka-12 was submitted against Ram Bux
Singh @ Munnu Singh, Dev Bux Singh,
Sheo Bux Singh Raj Bahadur, Nanha Singh
and Kaptan Singh.

8. According to injury report, Ex. Ka5, following injuries were reported on the
body of the deceased, Sarju Devi :-

1. Incised wound 2 cm x .25 cm x
skin deep on the mid of forehead. 2.5 cm
584 INDIAN LAW REPORTS ALLAHABAD SERIES
above the junction of eye brow tailing
upwards.

2. Incised wound 1.5 cm x .5 cm
x muscle deep on the middle of Neck 2.5
cm above the supra sternal notch tailing
upwards.

3. Incised wound 1.5 cm x .25 cm
over the left side of cheek in front left
pinna 1.5 cm away x skin deep tailing
anteriorly x 3 cm x 3 cm area surrounding
to injury is contused.

4. Incised wound 2 cm x .25 cm x
muscle deep. Just close to lower border of
left pinna which is also separated, partly
attached only on the back side tailing
upwards.

5. Incised wound 3 cm x .25 cm x
muscle deep on the left temporal area
tailing anterior.

6. Incised wound 3 cm x .25 cm x
muscle deep over the occipital area left side
4 cm away and posteriorly to injury no.5.

7. Incised wound 4 cm x .25 cm x
muscle deep on the top of the head and 3
cm anterior to injury no.6 tailing posterior.

8. Incised wound 2 cm x .25 cm x
muscle deep just lateral aspect of left elbow
joint tailing anteriorly upwards.

9. Incised wound 2 cm x .25 cm x
muscle deep on the lateral aspect of chest
12 cm above the illiac crest left side tailing
downwards.

10. Incised wound 2 cm x .25
cm x muscle deep on the occipital area 3
cm
below
the
injury
no.6
tailing
upwards.

9. According to postmortem report of
the deceased, Sarju Devi, Ex. Ka-8 the
cause of death is stated to be shock and
heamorrhage due to antemortem injuries.

10. According to injury report, Ex.
Ka-6 following injuries were reported on
the person of Gurudin, PW-4, who is son of
the deceased Sarju Devi :-

1. Contusion on the left hand over
the area of 4 cm x 3 cm area.

2. Incised wound 6.5 cm x .25 cm
x muscle deep (just tailing the skull bone)
on the top of the head slightly towards the
left side and 7 cm above the left eye brow
tailing is towards anterior aspect.

11. It is revealed from the perusal of
the injury report, Ex. Ka-1 that following
injuries were reported on the person of
Ram Sevak:-

1. Lacerated wound of 6 cm x 1/2
cm x bone deep over left side of scalp
about 10 cms. away from left ear blood
clotted over margins.

2. Abrated contusion of 5 cm x 4
cm red color over outer aspect of right hand
and area of swelling of 8 cm x 6 cm around
it.

12. Dr. R.K. Maheshwari, PW-6 has
proved postmortem report of animals as Ex.
Ka.3, who are reported to have died due to
burn injuries. It is stated in the said
postmortem report that the cause of death
of animals was shock as a result of burn
injuries.

13. The matter was investigated by
Sub Inspector, Sripal Tripathi, PW-10, who
visited the place of occurrence and
5 All. Sheo Bux Singh & Ors. Vs. State of U.P.
585
prepared site plan, Ex. Ka-9. He recorded
statements of witnesses, under Section 161
Cr.P.C. and collected bloodstainted and
plain soil from the spot and prepared
memo, Ex. Ka-10 in respect thereof. He has
also collected ashes from the spot and
prepared
memo,
Ex.
Ka-11.
After
conclusion of the investigation, chargesheet was submitted against Ram Bux
Singh, Deo Bux Singh, Sheo Bux Singh,
Nanha Singh and Raj Bahadur Singh as Ex.
Ka-12 by Sub Inspector Sripal Tripathi.
Thereafter, he was transferred to other
district on 28.04.1979, therefore, the
investigation
was
entrusted
to
Sub
Inspector, Vijay Pal Singh, PW-8 who also
submitted charge-sheet Ex. Ka-7 against
accused, Kaptan Singh.

14. The accused, Sheo Bux Singh was
charged for the offence under Sections
302/149, 429, 436, 147 & 323 I.P.C.
Kaptan Singh was charged for the offence
under Sections 302/149, 429, 436 & 147
I.P.C. Ram Bux Singh was charged for the
offence under Sections 302/149, 429, 436
& 148. Raj Bahadur Singh was charged for
the offence under Sections 302/149, 429,
436 & 148 I.P.C. Nanha Singh was charged
for the offence under Sections 302/149,
429, 436 & 148 I.P.C. The accused persons
denied the charges and stated that they have
been falsely implicated. They claimed trial.

15. To bring home the guilt of the
appellant to the hilt, the prosecution has
examined as many as eleven witnesses. PW1, Dr. R.K. Khattar, PW-2, Vijay Bahadur,
who is the first informant, PW-3, Ram
Prakash Singh, PW-4, Gurudeen, who is son
of the deceased, PW-5, Sri Jaggan, PW-6, Dr.
R.K. Maheshwari, PW-7, Dr. Rama Shankar
Shukla, PW-8, Sri Vijay Pal Singh, PW-9,
Dr. V.C. Rastogi, PW-10, S.I. Sripal Tripathi,
Investigating Officer, PW-11, Sri Shubham
karan Singh.

16. The statement of the appellant no.2,
Raj Bahadur Singh was recorded under
Section 313 Cr.P.C. He denied the charges
and stated that he has been falsely implicated
due to enmity. He has also stated that the
statements of prosecution witnesses were
false.

17. After appreciating the prosecution
evidence, the learned trial Court vide
impugned
judgment
and
order
dated
19.01.1984 has convicted the accused, Sheo
Bux Singh, Raj Bahadur Singh, Nanha Singh
as aforesaid and has also recorded the finding
of acquittal of co-accused, Kaptan Singh.

18. It is submitted by learned counsel
for the appellant that the first information
report is antetimed keeping in view the fact
that the distance of Police Station Ajgain,
from the place of occurrence is about nine
miles. The incident is said to have occurred at
about 9:00 P.M. in the night of 13.02.1979,
which spanned over two hours. Thereafter,
the first informant proceeded to get the first
information report lodged, which ultimately
came to be lodged at 00:30 hours at Police
Station Ajgain.

19. His further submission is that
from the perusal of Ex. Ka-22, G.D. No.11
dated 15.02.1979, entered at Police Station
Kotwali, Kanpur. It transpires that the
deceased, Sarju Devi died in an incident of
dacoity. Her husband was also a witness of
Panchayatnama, Ex. Ka-18, wherein too, it
is mentioned that the deceased, Sarju Devi
died in an incident of dacoity. Therefore, he
submits that the entire prosecution story
implicating the present appellant is false
and concocted.
586 INDIAN LAW REPORTS ALLAHABAD SERIES

20. He has also submitted that the
appellant no.2, Raj Bahadur Singh has been
falsely implicated in this case due to his
acquaintance with other co-accused, Ram
Bux Singh. No specific role in commission
of crime has been assigned to him. There is
nothing on record to show that he, in any
manner, acted in furtherance of common
object of unlawful assembly. It is also
submitted by learned counsel for the
appellant that the appellant no.2, Raj
Bahadur Singh has been shown to be armed
with country made fire arm, however, it
would
appear
from
the
perusal
of
postmortem report of deceased, Ex. Ka-8
that no fire arm injury was reported on the
person of the deceased. Even her son,
injured Gurudeen, PW-4 has not sustained
any fire arm injury. Therefore, he submits
that the appellant no.2, Raj Bahadur Singh
never shared common object of alleged
unlawful assembly. The finding of learned
trial Court convicting the appellant no.2,
Raj Bahadur with the aid of Section 149
I.P.C. for offence of murder of deceased,
Sarju Devi is based on surmises and
conjunctures only which are palpably
illegal and deserve to be set aside.

21. Learned Additional Government
Advocate appearing on behalf of the State,
on the other hand, has submitted that the
first information report in this case is
prompt. In order to prove its case beyond
doubt the prosecution has examined as
many as eleven prosecution witnesses.
Their testimonies are consistent with the
prosecution story as contained in written
report, Ex. Ka-2. He has also submitted that
the injury reports of the injured as well as
deceased, Sarju Devi fully support and
corroborate the prosecution case in respect
of manner of commission of crime. There
is nothing on record to show that the
appellant no.2, Raj Bahadur Singh was
falsely implicated in this case. The finding
of conviction of appellant is based on
proper
appreciation
and
analysis
of
prosecution evidence and as a result
thereof, the appellant no.2, Raj Bahadur
Singh has rightly been convicted under
Sections 148, 436/149, 429/149, 323/149
and 302/149 I.P.C. He has, thus, submitted
that the instant appeal being devoid of
merit deserves to be dismissed.

22. Having heard learned counsel for
appellant, learned A.G.A. for the State and
upon perusal of the record, we find that
according
to
first
informant,
Vijay
Bahadur, PW-2 the incident started about
9:00 P.M. on 13.02.1979, when accused
persons arrived at the house of his younger
brother, Ram Singh. The entire incident
spanned over two hours. After the incident
was over, the first informant got the first
information report scribed by Ram Sevak,
after half an hour of retreat of accused
person from the spot. Police Station Ajgain
is situate at a distance of nine miles from
the place of occurrence. Therefore, taking
into account all the aforesaid facts and
circumstances, we do not find the first
information report to be antetimed.

23. Hon'ble Supreme Court in the
case of Anil Kumar v. State of U.P.,
(2004) 13 SCC 257 has held that minor
variance in the statement of maker of first
information report should not lead to
conclude that first information report is
antetimed.

24.

Adverting
to
the
second
contention of learned counsel for the
appellant, we notice that the deceased,
Sarju Devi died on 15.02.1979 at Kanpur in
Ursala Hospital during her treatment. An
information was given by Emergency
Medical Officer to the Police Station
5 All. Sheo Bux Singh & Ors. Vs. State of U.P.
587
Kotwali, Kanpur that Sarju Devi had died
in an incident of dacoity. A general diary
entery no.11 dated 15.02.1979, Ex. Ka-22
was entered at Police Station Kotwali, on
the basis of aforesaid information given by
Emergency Medical Officer. The same
information finds mention in Ex. Ka-18,
Panchayatnama, of which, husband of the
deceased is also a Panch. However, there is
nothing on record to show as to what was
the basis of such information. There is
nothing on record to suggest that such
information was given by either first
informant or any family members of the
deceased. Therefore, such entry made in
general diary at Police Station Kotwali,
Kanpur made at the behest of Emergency
Medical Officer does not, in any manner,
affect the veracity and credibility of
prosecution case.

25. From the perusal of the written
report Ex. Ka-2, it is apparent that the
alleged incident is said to have taken place
in two distinct legs.

26. Regarding the first leg of incident,
PW-2, first informant, Vijay Bahadur has
stated on oath that on the date of incident
accused persons, who were armed with fire
arms, came to the house of his younger
brother Ram Singh. Accused, Ram Bux
Singh and Dev Bux Singh opened fire from
their guns. Accused, Dev Bux Singh
torched the thatches of Ram Sevak, Ram
Prakash, Kallu Singh and Bhagauti Lodh.
Accused, Dev Bux Singh also torched the
thatch of first informant. During this
process, accused persons were also making
regular fires from their fire arms.

27. This leg of incident has also been
witnessed by PW-3, Ram Prakash Singh,
who has stated that on 13.02.1979 at 9:00
P.M. in the night, the accused person came
to his uncle's house. Accused, Ram Bux
Singh and Dev Bux Singh were carrying
guns. Kaptan Singh and Raj Bahadur Singh
were carrying country made fire arms, Sheo
Bux Singh was armed with lathi whereas
Nanha Singh was carrying a knife. He has
stated to have seen accused persons while
they were making indiscriminate firing and
accused Dev Bux Singh torched the
thatches of Ram Sevak, Ram Prakash,
Kallu Singh and Bhagauti Lodh.

28. The investigating officer had
collected ashases from the spot during
investigation and had prepared memo in
respect thereof as Ex. Ka-11. It also
appears to us that though, PW-3, Ram
Prakash Singh and PW-5 Sri Jaggan have
not witnessed this incident since its
inception, however, they have categorically
stated to have seen the accused persons on
the spot while the thatches etc. were
burning. In this leg of incident many
animals had died due to burn injuries. This
fact stood proved by the testimony of PW6,
Dr.
R.K.
Maheshwari
who
had
conducted postmortem of animals and
prepared postmortem report, Ex. Ka-3,
according to which, the animals are
reported to have died due to burn injuries.

29. The prosecution evidence adduced
to prove the first leg of incident appears to
us to be consistent. It is based on cogent
evidence. No material contradiction could
be pointed out to us which may lead to any
otherwise inference.

30. Therefore, in view of aforesaid
discussion, we converge to the irresistible
conclusion that the conviction of appellant
no.2, Raj Bahadur Singh, under Sections
148, 436/149, 429/149, 323/149 I.P.C. is
based on cogent and reliable evidence
available on record.
588 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In the second leg of incident, the
accused persons are stated to have gone to
the house of Ram Sevek, where accused,
Nanha Singh is stated to have stabbed the
deceased, Sarju Devi mercilessly causing
her death. The appellant no.2, Raj Bahadur
Singh is also stated to be present on the
spot while deceased, Sarju Devi was
stabbed by accused, Nanha Singh. The
incident of stabbing of deceased, Sarju
Devi has occurred at her house where her
son Gurudin, PW-4, who is also an injured,
was present. His presence on the spot
appears to us to be natural being son of the
deceased.

32. The PW-4, Gurudin has clearly
stated in his testimony that except accused,
Sheo Bux Singh no other accused assaulted
him. This witness has sustained injuries on
his person which has been reported to be a
contusion and an incised wound which,
according to his injury report, Ex. Ka-6,
might have been caused by blunt object and
sharp instrument respectively. He has
stated to have been given blow from lathi
by accused, Sheo Bux Singh.

33. The PW-5, Sri Jaggan, who is an
independent witness, has stated in his
testimony that the deceased, Sarju Devi
was stabbed by accused, Nanha Singh. In
his cross examination he has admitted the
fact that in his statement recorded under
Section 161 Cr.P.C. he had not stated that
all the accused persons while chasing the
deceased had entered into the house of the
deceased, Sarju Devi. Thus, his such
statement during trial appears to be an
improvement in order to rope in the
appellant no.2, Raj Bahadur Singh.

34. On a close scrutiny of the
testimony of prosecution witnesses of fact,
PW-2, Vijay Bahadur, who is the first
informant, PW-3, Ram Prakash Singh, PW4, Gurudeen, who is son of the deceased
and also an injured and PW-5, Sri Jaggan,
who is an independent witness, we find that
no prosecution witness has stated in his
testimony that the appellant no.2, Raj
Bahadur Singh either extended threat to the
deceased, Sarju Devi or his son, Gurudin,
PW-4.
He
has
also
not
extended
exhortation to inflict injuries to Gurudin,
PW-4 or the deceased, Sarju Devi.

35. We have been able to notice that
the prosecution witnesses have stated in
their testimony that in first leg of incident,
accused persons including the appellant
no.2, Raj Bahadur Singh, who were armed
with fire arm, had opened indiscriminate
fire. However, significantly, despite being
armed with a fire arm in the second leg of
incident in which an old hapless lady was
done to death by the accused, Nanha Singh
by stabbing her mercilessly, no use of
alleged country made fire arm being held
by present appellant no.2, Raj Bahadur
Singh was alleged by the prosecution.

36. Therefore, it appears to us that
appellant no.2, Raj Bahadur Singh was not
sharing the common object of unlawful
assembly insofar as it relates to killing of
deceased, Sarju Devi is concerned. There is
nothing on record to suggest that he had
knowledge that the deceased, Sarju Devi
would be killed by the co-accused, Nanha
Singh in second leg of incident. The fact
that the deceased, Sarju Devi was stabbed
by accused, Nanha Singh and injured,
Gurudin, PW-4 was inflicted injuries by
accused, Sheo Bux Singh stands proved in
the light of consistent testimony of
prosecution witnesses. However, we find
that the conviction of appellant no.2, Raj
Bahadur Singh, under Section 302 I.P.C.
read with Section 149 I.P.C., in absence of
5 All. Sheo Bux Singh & Ors. Vs. State of U.P.
589
any cogent evidence to the effect that either
he was sharing common object of unlawful
assembly to kill the deceased, Sarju Devi or
atleast he knew that the co-accused persons
are likely to kill the deceased, Sarju Devi,
is not sustainable.

37. The Hon'ble Supreme Court in
Chanda v. State of U.P., (2004) 5 SCC
141, in paragraph no.8 has held as under:-

8.
The
pivotal
question
is
applicability of Section 149 IPC. The said
provision
has
its
foundation
on
constructive liability which is the sine qua
non for its operation. The emphasis is on
the common object and not on common
intention. Mere presence in an unlawful
assembly cannot render a person liable
unless there was a common object and he
was actuated by that common object and
that object is one of those set out in
Section 141. Where common object of an
unlawful assembly is not proved, the
accused persons cannot be convicted with
the help of Section 149. The crucial
question to determine is whether the
assembly consisted of five or more persons
and whether the said persons entertained
one or more of the common objects, as
specified in Section 141. It cannot be laid
down as a general proposition of law that
unless an overt act is proved against a
person, who is alleged to be a member of
an unlawful assembly, it cannot be said
that he is a member of an assembly. The
only thing required is that he should have
understood
that
the
assembly
was
unlawful and was likely to commit any of
the acts which fall within the purview of
Section 141. The word "object" means the
purpose or design and, in order to make it
"common", it must be shared by all. In
other words, the object should be common
to the persons, who compose the assembly,
that is to say, they should all be aware of it
and concur in it. A common object may be
formed by express agreement after mutual
consultation, but that is by no means
necessary. It may be formed at any stage
by all or a few members of the assembly
and the other members may just join and
adopt it. Once formed, it need not
continue to be the same. It may be
modified or altered or abandoned at any
stage. The expression "in prosecution of
common object" as appearing in Section
149 has to be strictly construed as
equivalent to "in order to attain the
common object". It must be immediately
connected with the common object by
virtue of the nature of the object. There
must be community of object and the
object may exist only up to a particular
stage, and not thereafter. Members of an
unlawful assembly may have community
of object up to a certain point beyond
which they may differ in their objects and
the knowledge possessed by each member
of what is likely to be committed in
prosecution of their common object may
vary not only according to the information
at his command, but also according to the
extent to which he shares the community
of object, and as a consequence of this the
effect of Section 149 IPC may be different
on different members of the same
assembly.

(Emphasis supplied by us)

38. On the appreciation of evidence
on record, we are of the considered view
that the appellant no.2, Raj Bahadur Singh
did not share common object of unlawful
assembly to kill the deceased, Sarju Devi in
the second leg of incident. Therefore, on a
careful scrutiny of the material on record,
we have no hesitation to record that in the
facts of the case, the learned trial Court has
590 INDIAN LAW REPORTS ALLAHABAD SERIES
committed an error in holding that the
appellant no.2, Raj Bahadur Singh was
guilty of the offence under Section 302
I.P.C. read with Section 149 I.P.C.

39. The upshot of the aforesaid
discussion is that the conviction of appellant
no.2, Raj Bahadur Singh under Sections 148,
436/149, 429/149, 323/149 I.P.C. is based on
cogent and reliable evidence wherein no
interference by this Court is warranted.
Whereas, his conviction under Section 302
I.P.C. read with Section 149 I.P.C. has not
been established beyond a reasonable doubt.
Therefore, the same being illegal and
perverse deserves to be set aside.

40. The instant appeal is thus, partly
allowed. The conviction of appellant no.2,
Raj Bahadur Singh under Sections 148,
436/149, 429/149, 323/149 I.P.C. and
sentences awarded therefor are affirmed.
Whereas his conviction and sentence under
Section 302 I.P.C. read with Section 149
I.P.C. are hereby set aside. He is acquitted of
the charges under Section 302 I.P.C. read
with Section 149 I.P.C.

41. In case, the appellant no.2, Raj
Bahadur Singh has already undergone
sentences awarded to him for the offences
under Sections 148, 436/149, 429/149,
323/149 I.P.C., he shall be released forthwith,
unless required in any other case.

42. The appellant no.2, Raj Bahadur
Singh, after his release, shall file a personal
bond of Rs.50,000/- and two sureties in the
like amount to the satisfaction of the learned
trial Court in compliance of Section 437A
Cr.P.C within a period of one month from
today.

43. Let the lower court record along
with a copy of this judgment be transmitted
forthwith to the learned trial Court for
information and necessary compliance.
----------
(2022)05ILR A590
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No.1166 of 2006

Phool Chand Yadav ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Manu Sharma (A.C.), Sri Ram Pravesh
Yadav, Sri R.S. Chauhan

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 302-challenge
to-conviction-modification-broad daylight
murder-appellant gave one or two lathi
blow to the deceased's head -Though it
was on vital part but it was without
intention to kill-ocular evidence also
shown that the blow of lathi was on headocular evidence cannot be discarded on
any discrepancy of the medical evidenceappellant knowingly made a single blow
that it was likely to cause death it would
be a culpable homicide not amounting to
murder which fall u/s 304 Part II IPC
because the intention to cause death
could not be proved.(Para 1 to 29)

B. In the instant case, though any enmity
between the deceased and the appellant
could not be proved but it is a case of an
incident occurred in broad day light in
which the deceased had suffered serious
injury on account of which he succumbed
to death. if the motive and intention to kill
is not proved then it is required to be