# Shyam Bihari & Ors. (On Interim Bail) v. State of U.P

- **Citation:** (2020) 1 ILRA 189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-13
- **Case number:** Criminal Appeal No. 5969 of 2011
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-bihari-ors-on-interim-bail-v-state-of-u-p-45078
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code - Sections
323/34, 504 - Appeal against conviction.

In present case the place, time and date of
occurrence was undisputed. Injured and their
injuries were not disputed. The cause and
motive
of
this
quarrel
was
undisputed.
Construction of chak road on the place of
occurrence. (para8)

The pelting of stones from both sides has been
admitted by this witness, but it has been said
that it was used in right of self defence for
saving themselves. (para 8)

Medical evidence was against oral testimony,
which
was
with
all
inconsistencies
and
contradictions. No specific motive was assigned
for commission of alleged offence. Impugned
judgment
was
based
on
surmises
and
conjectures. (para 2)

Accused persons were not aggressor. Rather,
they were victim of that aggression, wherein
they had exercised their right of self defence by
pelting stones and bricks. Under above facts,
who was aggressor and who suffered that
aggression is to be seen and in present case
aggression was by present complainant side.
Hence, certainly trial court failed to appreciate
facts and evidence placed on record. (para 8)

Appeal is allowed. (E-2)

## Text

1 All. Shyam Bihari & Ors. Vs. State of U.P.
189
(2020)1ILR A189

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 5969 of 2011

Shyam Bihari & Ors.
 ...Appellants(On Interim Bail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri I.B. Yadav

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

Criminal Law - Indian Penal Code - Sections
323/34, 504 - Appeal against conviction.

In present case the place, time and date of
occurrence was undisputed. Injured and their
injuries were not disputed. The cause and
motive
of
this
quarrel
was
undisputed.
Construction of chak road on the place of
occurrence. (para8)

The pelting of stones from both sides has been
admitted by this witness, but it has been said
that it was used in right of self defence for
saving themselves. (para 8)

Medical evidence was against oral testimony,
which
was
with
all
inconsistencies
and
contradictions. No specific motive was assigned
for commission of alleged offence. Impugned
judgment
was
based
on
surmises
and
conjectures. (para 2)

Accused persons were not aggressor. Rather,
they were victim of that aggression, wherein
they had exercised their right of self defence by
pelting stones and bricks. Under above facts,
who was aggressor and who suffered that
aggression is to be seen and in present case
aggression was by present complainant side.
Hence, certainly trial court failed to appreciate
facts and evidence placed on record. (para 8)

Appeal is allowed. (E-2)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This appeal under Section 374(2)
of
Code
of
Criminal
Procedure
(hereinafter referred to as 'Cr.P.C.') has
been filed by Shyam Bihari, Ram
Shiroman, Dharm Nath and Madan against
judgment of conviction and sentence made
therein in Sessions Trial No. 98 of 2005,
State of U.P. Versus Shyam Bihari and
others, arising out of N.C.R. No. 14 of
2004, under Sections 323/34, 504 I.P.C.,
Police Station Durgaganj, District Sant
Ravidas Nagar, Bhadohi, passed by court
of Additional Sessions Judge, Court No. 3,
Bhadohi-Gyanpur,
wherein
convictsappellants have been sentenced with six
months' simple imprisonment and fine of
Rs.500/- and in case of default one
month's additional simple imprisonment
for offense punishable under Section
323/34 I.P.C. and one year simple
imprisonment with fine of Rs.1,000/- each
and in default one month's additional
simple imprisonment under Section 504
I.P.C. with a direction for concurrent
running of sentences.

2. The memo of appeal contends that
trial court failed to appreciate facts and
law placed before it. Prosecution story was
fabricated. According to evidence on
record, no case was made out against
appellants. Even then, they have been
convicted
and
sentenced,
as
above.
Medical
evidence
was
against
oral
testimony,
which
was
with
all
inconsistencies and contradictions. No
specific
motive
was
assigned
for
190 INDIAN LAW REPORTS ALLAHABAD SERIES
commission of alleged offence. Impugned
judgment was based on surmises and
conjectures. Hence, this appeal is with a
prayer
for
setting
aside
impugned
judgment of conviction and sentence dated
17.09.2011 with a further prayer for grant
of acquittal against charges levelled
against appellants.

3. From the very perusal of record of
trial court and impugned judgment, it is
apparent that a report of non-cognizable
offence bearing No. 14 of 2004, under
Sections 323/34, 504 I.P.C. was got
registered at Police Station Durgaganj,
District Sant Ravidas Nagar, Bhadohi
against Shyam Bihari, Ram Shiroman,
Dharm Nath and Madan, upon report of
informant Ram Sajivan Harijan, S/o
Banshiram Harijan, R/o Gangarampur,
P.S. Durgaganj, District Sant Ravidas
Nagar, Bhadohi on 12.07.2004 at 10.30
A.M. for the occurrence of 9.30 A.M. of
the same day by detailed narration that
chak road was being constructed over spot
for use of complainant and his family
members, but this was being obstructed
and damaged by accused persons. It was
protested. They assaulted informant and
other members of his family by lathidanda, therein Ram Ujagir, Shyamlal,
Hubraji, Udairaj and Pintu were badly
injured. This was Ext.Ka-1. In compliance
of order of Court under Section 155
Cr.P.C.
(Ext.Ka-2),
matter
was
investigated, wherein Site Map (Ext.Ka-3)
was prepared and after recording statement
of witnesses, under Section 161 Cr.P.C.,
Charge
Sheet
(Ext.Ka-4)
was
filed.
Magistrate took cognizance over it and
held that above occurrence was a cross
case version of Case Crime No. 162 of
2004, under Sections 147, 304, 149, 325,
323, 504 I.P.C., Police Station Durgaganj.
Learned Judicial Magistrate-I, BhadohiGyanpur vide order dated 15.07.2005,
committed this file to the court of Sessions
for trial as cross-case of above sessions
trial, from where this file was transferred
to Court of Additional Sessions Judge,
Court No. 3 Bhadohi at Gyanpur. After
hearing learned Public Prosecutor as well
as learned counsel for defence, accused
Shyam Bihari, Ram Shiroman, Dharm
Nath and Madan were charged for
offences
punishable
under
Sections
323/34, 504 I.P.C. It was read over and
explained to accused persons, who pleaded
not guilty and claimed for trial.

4. The prosecution examined PW-1
informant Ram Sajivan, PW-2 injured
witness Shyamlal, PW-3 injured witness
Udairaj Singh, PW-4 injured witness Ram
Ujagir, PW-5 Constable Moharrir 193
Chandrabhan Singh, PW-6 Sub Inspector
S.P. Chandra, Investigating Officer, PW-7
Nagendra
Prasad
Mishra,
Chief
Pharmacist, PW-8 Head Constable Jiyalal,
PW-9 Sub Inspector Radhey Shyam
Pushkar and PW-10 Dr. Shri Prakash
Singh.

5. With a view to have explanation
over incriminating materials, produced by
prosecution, against accused persons and
for getting the version of accused persons
they were examined under Section 313
Cr.P.C., wherein each accused said the
accusation to be false and fabricated and
falsely implicated in counter blast of crosscase, wherein accused side were injured by
the assault made by complainant side and
one Ravindra had died in it. This quarrel
occurred on 12.07.2004 at about 9.30
A.M.
when
chak
road
was
being
constructed, wherein Shyamlal, Kallu @
Ram Ujagir, Udal @ Udairaj, Bachai @
Ram Sajivan, Awadhraj, Sudama Prasad
and Girdhari gave assault by pelting of
1 All. Shyam Bihari & Ors. Vs. State of U.P.
191
stones and bricks coupled with lathi-danda,
wherein Ravindra died out of above injury
and informant, Madanlal, Sursatti Devi,
Sunita Devi, Shrinath, Balraji, Kamla Devi,
Photo Devi and Chhabbi Devi were having
injuries of lathi-danda. Pelting of stones
were made by accused side for getting
themselves saved from assailants and out of
this, they could be saved. This false crosscase has been got registered in it. The papers
of cross case in certified copies were filed in
defence of accused persons. Those were first
information report of Case No. 108 of 2004,
arising out of Case Crime No.162 of 2004;
State Vs. Shyamlal and others, Police
Station Durgaganj, copy of charge sheet of
Case Crime No. 162 of 2004, copy of
autopsy examination report of deceased
Ravindra Kumar, copy of medico legal
injury report of Balraji, wife of Ram
Manorath, copy of injury report of Photo
Devi, copy of Site Map of Case Crime No.
162 of 2004 coupled with copies of injury
reports of Shrinath, Sursatti Devi, Kamla
Devi and Chhabbi Devi. Learned Sessions
Judge after hearing learned counsel for both
sides passed judgment of conviction against
each of accused appellants for offences
punishable under Sections 323/34 and 504
I.P.C. After hearing over quantum of
sentence, each of convicts-appellants Shyam
Bihari, Ram Shiroman, Dharm Nath and
Madan were sentenced with six months
simple imprisonment and fine of Rs.500/- in
default
one
month
additional
simple
imprisonment for offence punishable under
Section 323/34 I.P.C. with further sentence
of one year simple imprisonment and fine of
Rs.1,000/- and in default one month
additional imprisonment under Section 504
I.P.C with a direction for concurrent running
of sentences, against which this appeal.

6. Learned counsel for appellants
argued that it was a cross-case of Case
Crime No. 162 of 2004, of which certified
copy of first information report, charge
sheet,
inquest
proceeding,
autopsy
examination report, injury reports of
accused persons were filed on record in
defence and this was said by accused
persons that on the same date, time and
place quarrel regarding construction of
chak road took place, wherein present
prosecution side gave assault by lathidanda, bricks and stones pelting, wherein
deceased Ravindra had sustained injuries.
Other family members have also sustained
injuries. Investigation resulted submission
of charge sheet and this trial was
conducted with present trial, wherein
accused persons have been convicted for
charges levelled in it including culpable
homicide not amounting to murder. The
accused side, who have been convicted in
above cross-case, were held to be
aggressor, whereas it has been specifically
said by prosecution witnesses in above
trial that in personal defence of person and
property, the pelting of stone was made by
present accused side and in it present
prosecution side were injured. Injuries
were of trifling nature and the conviction
is for offence punishable under Sections
323/34 and 504 I.P.C., which were for
simple hurt. Injuries were brought in
existence in exercise of right of self
defence. Moreso, present accused side
were not aggressor. Rather complainant
side were held aggressor and have been
convicted and sentenced for other offences
including offences of culpable homicide
not amounting to murder for ten years
rigorous imprisonment and fine. Hence,
trial court in utter failure to analyze facts
and evidence placed on record has
convicted and sentenced on the basis of
surmises
and
conjectures,
which
is
apparently against facts on record. Hence,
this appeal with above prayer.
192 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Learned A.G.A. has vehemently
opposed the appeal and argued that it was
a case of free fight, wherein one side
sustained injuries including injury to
Ravindra Nath, resulting his death and
other side sustained injuries, for which this
trial. The trial court has convicted both
sides holding that it was a case of free
fight in which no side took care of law and
order situation. Rather, they became
offensive and gave assault to each other
resulting injuries to both sides. Hence, this
conviction and sentence was based on
evidence placed on record.

8. Admittedly, it was tried as a crosscase with Session Trial No. 108 of 2004,
arising out of Case Crime No. 162 of
2004, under Sections 147, 304/149,
325/149, 323/149 I.P.C., wherein vide
detailed and elaborate judgment passed by
Session Judge as well as present Court in
appeal has held that those convictappellants were aggressor, who committed
above offences under furtherance of
common intention for commission of
assault by lathi-danda, for which offences
punishable under Section 323/149 as well
as 147 I.P.C. i.e. affray has been proved
against all the members of unlawful
assembly and beside being in common
object of that unlawful assembly, three of
them i.e. Kallu, Bachai and Shyamlal did
assault over Ravindra by riding over his
chest and causing injuries, resulting his
death for which, they have been separately
punished for offence punishable under
Section 304 I.P.C. In present case the
place, time and date of occurrence was
undisputed. Injured and their injuries were
not disputed. The cause and motive of this
quarrel was undisputed. Construction of
chak road on the place of occurrence,
resulting this quarrel, was also undisputed
fact. PW-1 Ram Sajivan informant in his
statement has said that on 12.07.2004 at
about 9.30 A.M., this quarrel occurred
towards north of house of Shyam Bihari,
where chak road was being constructed
and the land of Jagannath and Sudama was
taken by Gram Sabha under their consent
for construction of this chak road. One day
before i.e. on 11.07.2004 soil was thrown
for construction of chak road. On the date
of occurrence at about 7 A.M. Shyam
Bihari, Ram Shiroman, Dharm Raj and
Madanlal, armed with lathi-danda and
spade, went there and started cutting that
chak road. This was reported at Police
Station Durgaganj. At about about 9.30
A.M., police of Durgaganj reached on
spot. Awadhraj and Sobhnath were taken
at police station for this quarrel, but after
police left the place, Ram Shiroman,
Shyam Bihari, Madan and Dharm Raj
again reached at above chak road and
started cutting it. This was protested by
informant side and this resulted quarreling,
wherein many persons rushed and this
occurrence took place. The pelting of
stones from both sides has been admitted
by this witness, but it has been said that it
was used in right of self defence for saving
themselves. Both sides sustained injuries.
They were got medically examined. Same
is
the
testimony
of
PW-2
injured
Shyamlal, who too has said that there was
no road for the community of this witness
at their village and for their conveyance
this chak road was proposed to be
constructed under the resolution of Gram
Sabha,
wherein
Sobhnath,
Shrinath,
Shyam Bihari, Jagarnath, Jainath, Sudama
and many other persons were present. The
land of Jagarnath and Sudama was taken
for construction of this chak road and they
were ready for it. Soil was to be thrown
over this chak road, thereafter, it was to be
constructed and one day before, this was
done. On the date of occurrence, on
1 All. Shyam Bihari & Ors. Vs. State of U.P.
193
12.07.2004 this quarrel took place and the
place of occurrence was that chak road.
Prior to it, Shyam Bihari, Ram Shiroman,
Dharm Raj and Madan, armed with lathidanda and spade, had gone at above chak
road and they were damaging the same.
When police was reported and it reached
on spot, Sobhnath and Awadhraj were
taken at police station, but after this both
side entered in this quarrel, wherein they
were injured. The same is the testimony of
PW-3 Udairaj Singh and PW-4 Ram
Ujagir. Other witnesses PW-5 Constable
Moharrir 193 Chandrabhan Singh, PW-6
Sub-Inspector
S.P.
Chandra,
PW-7
Nagendra
Prasad
Mishra,
Chief
Pharmacist, PW-8 Head Constable Jiyalal,
PW-9 Radhey Shyam Pushkar and PW-10
Dr. Prakash Singh are formal witnesses,
who
have
proved
prosecution
case
formally regarding registration of case
crime number, occurrence of above date,
time and place, registration of both cases,
investigation being made, injury suffered
by
both
sides,
their
medico
legal
examination reports on record. Hence,
from the appreciation of those evidence, it
is apparent that this occurrence took place
at about 9.30. A.M. of 12.07.2004 and this
was owing to construction of chak road on
spot. Both sides had rushed at above chak
road, where this quarrel occurred, wherein
both sides were armed with lathi-danda,
which is very usual in village life. The
dispute had arisen because of abuse being
extended from both sides to each other.
Subsequently, brick pelting started, which
resulted injuries to both sides. Thereafter,
overt act by three of prosecution side were
made, which was not the purpose of
common object of that unlawful assembly,
wherein they ride over chest of Ravindra
and caused injury, resulting his death.
Hence, the aggressor were held to be
those, who caused above offence, for
which they have been convicted in cross-case.
In present case, accused persons were not
aggressor. Rather, they were victim of that
aggression, wherein they had exercised their
right of self defence by pelting stones and
bricks, resulting injuries to other side, which
have been proved by PW-10 Dr. Prakash
Singh. Moreso, accused persons from both
sides were present on spot. They were pelting
stones over each other. These injuries occurred
and this was by aggression made by present
complainant side. Under above facts, who was
aggressor and who suffered that aggression is
to be seen and in present case aggression was
by present complainant side. Hence, certainly
trial court failed to appreciate facts and
evidence placed on record.

9. Accordingly, this appeal succeeds and
is allowed. The impugned judgment and order
of conviction dated 17.09.2011, passed by the
Trial Court, is hereby set aside and the
appellants Shyam Bihari, Ram Shiroman,
Dharm Nath and Madan are acquitted of all the
charges. They are on bail. They need not to
surrender. Their sureties are discharged.

10. Keeping in view the provisions
of section 437-A Cr.P.C. appellants are
directed to forthwith furnish a personal
bond and two reliable sureties each in the
like amount to the satisfaction of trial
Court before it, which shall be effective
for a period of six months, along with an
undertaking that in the event of filing of
Special Leave Petition against the instant
judgment or for grant of leave, the
appellant on receipt of notice thereof shall
appear before the Hon'ble Supreme Court.

11. Let a copy of this judgment along
with lower court's record be sent back to
the
court
concerned
for
immediate
compliance.
----------
194 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR A194

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.11.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJEEV MISHRA, J.

Criminal Appeal No. 6270 of 2009

Subodh Awasthy ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Kamal Krishan, Sri Phool Singh Yadav,
Sri R.K. Srivastava

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code - Sections
307 & 302 - Arms Act, 1959- Sections
25/27 Arms Act - Appeal against conviction.

Testimony of a family member cannot be
discarded merely on ground that he is a family
member of deceased. However, in such a
situation testimony of such witness has to be
examined with care and caution. Object of the
Court is to find out that when testimony of
such witness is considered as a whole, it has a
circle of truth or not. (para 80)

The various deficiencies in statement of P.W.-1
and P.W.-2 and on that basis he has tried to
dislodge the two prosecution witnesses of fact.
Whether a witness can be discarded on the
basis of evidence of another witness has
already been considered. (para 81)

The testimony of witnesses of fact must prove
basic prosecution case and little disparity or
contradiction in their testimony are liable to be
discarded as being natural. Therefore, what
has to be assessed in present case is whether
P.W.-1 and P.W.-2 have been consistent in
their testimony and whether their testimony
proves basic prosecution case. (para 83)
The scrutinize the oral testimony of P.W.-1 and
P.W.-2
and
find
that
contradictions,
inconsistencies
and
omissions
in
oral
testimonies of prosecution witnesses of fact as
alleged are present. In view of aforesaid, this
Court has no other option but to discard
prosecution witnesses of fact i.e. P.W.-1 and
P.W.-2 as incredible. Consequently, their
testimonies are not worthy of trust. In view of
above the present criminal appeal is liable to
succeed. (para 93)

Appeal is allowed. (E-2)

List of cases cited: -

1. Saghir and others Vs. St. of U.P., 2018 (4)
ADJ 286 (DB)

(Delivered by Hon'ble Rajeev Mishra, J.)

1. By means of present criminal
appeal, appellant Subodh Awasthy is
challenging
validity
and
legality
of
judgement and order dated 06.10.2009
passed by Additional District and Sessions
Judge (Court no.2), Kanpur Dehat in
Sessions Trial No. 298 of 2008 (State Vs.
Subodh Awasthy) under Section 302 I.P.C.
P.S. Shivli, District-Kanpur Dehat, arising
out of Case Crime No. 331 of 2007, under
Sections 307 and 302 I.P.C., P.S. Shivli,
District, Kanpur Dehat and connected
Sessions Trial No. 299 of 2008 (State Vs.
Subodh Awasthy) under Sections 25/27
Arms Act, arising out of Case Crime No.
02 of 2008, under Sections 25/27 Arms
Act, P.S. Shivli, District, Kanpur Dehat,
whereby
and
where-under
accused
appellant
has
been
convicted
under
Section 302 I.P.C. and consequently,
sentenced to life imprisonment alongwith
fine of Rs. 20,000/-. In default regarding
payment of fine, accused appellant is to
undergo additional imprisonment of one
year. Accused appellant has also been
convicted under Section 27 Arms Act.
Accordingly, he has been sentenced to two