# Shyam Lal & Ors. (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 1435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-13
- **Case number:** Criminal Appeal No. 5738 of 2011
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-lal-ors-in-jail-v-state-of-u-p-45225
- **Pages:** 13

## Headnote

section 149, there need not be a prior
meeting of minds. It is enough that each
has the same object in view. It is the
knowledge which is necessary to attract
the liability. Common object of unlawful
assembly
is
different
from
common
intention as it can develop during course
of incident at the spot.

B. Plea of alibi- when the accused takes
plea that when the occurrence took place,
he was somewhere else. An alibi is not an
exception envisaged in the IPC. It is a
rule of evidence u/s 11 of evidence actfacts inconsistent with the fact in issue
are relevant.

C. Code of Criminal Procedure, 1973 -
Section 374(2), Indian Penal Code, 1860
- Section 147, 304/149, 323/149 -
counterblast- Engagement of accused in
job of raising construction-places were in
close vicinity-their presence on spot at
the time of occurrence cannot be ruled
out-plea of alibi could not be proved to
the
satisfaction
of
the
courtinconsistency
in
the
statement
of
witnesses in their examination in chief in
cross-offence
punishable
u/s
147,
323/149 are proved against the accusedbut offence u/s 304/149 is not proved
beyond reasonable doubt-appeal partly
allowed for offence u/s 304/149. (Para 22
to 31)

Criminal Appeal allowed. (E-6)

List of cases cited: -

## Text

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1436 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 1435

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 5738 of 2011

Shyam Lal & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri D.N. Joshi, Sri Deepak Srivastava

Counsel for the Opposite Party:
A.G.A., Sri Shashi Kant Singh

A. Common object- for applicability of
section 149, there need not be a prior
meeting of minds. It is enough that each
has the same object in view. It is the
knowledge which is necessary to attract
the liability. Common object of unlawful
assembly
is
different
from
common
intention as it can develop during course
of incident at the spot.

B. Plea of alibi- when the accused takes
plea that when the occurrence took place,
he was somewhere else. An alibi is not an
exception envisaged in the IPC. It is a
rule of evidence u/s 11 of evidence actfacts inconsistent with the fact in issue
are relevant.

C. Code of Criminal Procedure, 1973 -
Section 374(2), Indian Penal Code, 1860
- Section 147, 304/149, 323/149 -
counterblast- Engagement of accused in
job of raising construction-places were in
close vicinity-their presence on spot at
the time of occurrence cannot be ruled
out-plea of alibi could not be proved to
the
satisfaction
of
the
courtinconsistency
in
the
statement
of
witnesses in their examination in chief in
cross-offence
punishable
u/s
147,
323/149 are proved against the accusedbut offence u/s 304/149 is not proved
beyond reasonable doubt-appeal partly
allowed for offence u/s 304/149. (Para 22
to 31)

Criminal Appeal allowed. (E-6)

List of cases cited: -

1. Dharam Pal Vs. St. of U.P. AIR 1994 SC 1546

2. Lalji Vs. St. of U.P. AIR 1989 SC 754

3. St. of A. P. Vs. Thakkidiram Reddy & Ors.
AIR 1998 SC 2702

(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 Lal, Bijai alias Ram
Sajivan, Kallu alias Ram Ujagir, Udal alias
Udairaj, Awadhraj, Girdhari and Sudama
Prasad against judgment of conviction and
sentence made therein in Sessions Trial
No. 108 of 2004, State Versus Shyam Lal
and others, arising out of Case Crime No.
162 of 2004, under Sections 147, 304/149,
323/149 I.P.C., Police Station Durgaganj,
District Sant Ravidas Nagar, Bhadohi,
passed by court of Additional Sessions
Judge, Court No. 3, Bhadohi- Gyanpur,
wherein convicts-appellants have been
sentenced
with
one
year's
simple
imprisonment and fine of Rs.1,000/- and in
case of default one month's additional
simple
imprisonment
for
offense
punishable under Section 147 I.P.C., ten
years' rigorous imprisonment with fine of
Rs.5,000/- each and in default three
months' additional simple imprisonment
under Section 304/149 I.P.C., six months
simple imprisonment and fine of Rs.500/-
and in case of default one month's
1 All. Shyam Lal & Ors. Vs. State of U.P.
1437
additional
simple
imprisonment
for
offence punishable under Section 323/149
I.P.C. with a direction for concurrent
running of sentences.

2. Memo of appeal is with this
ground that trial court failed to appreciate
facts and evidence placed on record. First
information report, lodged by complainant,
was based on wrong facts. PW-1 Jitendra
Kumar was not present on spot at the time
of alleged occurrence, because he was
neither injured nor his presence is beyond
doubt. There was no public witness of
alleged
occurrence.
Statement
of
prosecution
witnesses
were
full
of
contradictions. Medical evidence was not
in support of prosecution case. 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 trial court
record, it is apparent that Jitendra Kumar,
S/o
Ram
Shiromani,
R/o
Village
Gangarampur, P.S. Durgaganj, District
Sant Ravidas Nagar, filed a written report
(Ext.Ka-1) at Police Station Durgaganj on
12.07.2004 with this contention that on
above date at about 9.30 A.M., there
occurred quarrel in between Shyamlal,
Kallu @ Ram Ujagir, Udal @ Udairaj,
Bachai @ Ram Sajivan, Awadhraj, all sons
of Bansi and Sudama Prasad and Girdhari,
S/o
Ramnath
and
informant's
side
regarding construction of chak road from
the land of informant. Those named
accused persons, being armed with lathidanda, did assault by lathi-danda and brick
pelting, resulting injuries to ladies of
informant's house as well as Madan Lal,
Dharamraj, Shyam Bihari, Sri Nath and
Ravindra Kumar. They were taken to
Government Hospital, Gyanpur, from
where they were taken to Kabir Chaura
Hospital, Varanasi. Informant's aunt Photo
Devi was also accompanying them, who
came back and apprised that others were
under treatment, whereas Ravindra Kumar
died,
while
reaching
Kabir
Chaura
Hospital. This occurrence was witnessed
by many persons, hence request for taking
legal recourse was made. On the basis of
this written report (Ext.Ka-1), Chik F.I.R.
(Ext.Ka-19) was got registered at 00.10
P.M. on 13.07.2004 as Case Crime No.
162 of 2004, under Sections 147, 149, 336,
323,
304
I.P.C.,
at
Police
Station
Durgaganj. This registration of case crime
number was entered in General Diary
Entry at Report No. 20 of the day. The
matter was investigated, wherein Spot
Map (Ext.Ka-4) was got prepared, brick
parts, lying thereat, on the place of
occurrence, was taken in custody by way
of preparing recovery memo (Ext.Ka-2),
injured Smt. Kamla Devi, Smt. Shivrati
Devi, Sumitra Devi, Shrinath and Chhabbi
Devi were got medically examined at
Primary Health Centre, Suriyawan and
their Medico Legal Reports are Ext.Ka-11,
Ext.Ka-6, Ext.Ka-8, Ext.Ka-9, Ext.Ka-12.
Medico Legal Report of Photo Devi is
Ext.Ka-10, of Balraji Devi is Ext.Ka-7 and
of Madan Lal is Ext.Ka-5. Deceased
Ravindra Kumar died and his inquest
proceeding was got conducted, wherein
Inquest Report (Ext.Ka-13), Letter R.I.
(Ext.Ka-14), Letter C.M.O. (Ext.Ka-15),
Photo Dead Body (Ext.Ka-16), Police
Form-13 (Ext.Ka-17) was got prepared.
Thereafter, dead body along with those
documents was sent for its autopsy
examination under sealed intact position. It
was
got
examined
under
autopsy
examination
and
report
of
autopsy
examination (Ext.Ka-3) was on record.
Statement of witnesses were recorded
1438 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 161 Cr.P.C., whereupon
Charge
Sheet
(Ext.Ka-18),
under
handwriting and signature of Investigating
Officer, for offences punishable under
Sections 147, 323/149, 325/149, 304/149
I.P.C.,
was
got
filed,
whereupon
Magistrate took cognizance.

4. As offence, punishable under
Section 304 I.P.C., was exclusively triable
by court of Sessions, hence learned Chief
Judicial
Magistrate,
Bhadohi-Gyanpur,
vide order dated 25.10.2004, committed
this file to Court of Sessions Judge,
Bhadohi at Gyanpur, where it was
registered as Sessions Trial No. 108 of
2004. After receipt of this file in the court
of Sessions Judge, Bhadohi at Gyanpur,
after framing of charges, this case was
made over to the court of Additional
Sessions Judge, Court No.3, Bhadohi at
Gyanpur for its trial. In the court of
Sessions
Judge,
Bhadohi,
Public
Prosecutor / learned D.G.C. (Criminal),
opened its case and after hearing learned
counsel for accused charges against
Shyamlal, Bachai alias Ram Sajivan, Kallu
alias Ram Ram Ujagir, Udal alias Udairaj,
Awadhraj, Girdhari and Sudama Prasad
were framed on 08.12.2004 by the then
Sessions Judge, Bhadohi at Gyanpur.
Charges levelled against those accused
persons in vernacular language is being
translated in English by Court itself and is
being reproduced as below:-

1. On 12.07.2004 at 9.30 A.M. in
Village Gangarampur, within area of
Police Station Durgaganj, District Sant
Ravidas
Nagar,
Bhadohi,
you
with
intention to kill Ravindra Kumar, made an
unlawful assembly and thereby you
committed
offence
punishable
under
Section 147 I.P.C. within cognizance of
this Court.

2. On above date, time and
place, you in furtherance of common
intention, assaulted Ravindra Kumar by
lathi-danda and brick-stone pelting, which
was a culpable homicide not amounting to
murder, punishable under Section 304/149
I.P.C. within cognizance of this Court.

3. On above date, time and
place, you in furtherance of common
intention, you did grievous hurt by giving
assault by lathi-danda and brick pelting to
Smt. Balraji, thereby committed offence
under Section 325/149 I.P.C. within
cognizance of this Court.

4. You on above date, time and
place by lathi-danda and pelting brick and
stone did voluntarily assault and hurt over
Madan Lal, Smt. Shivpatti, Smt. Baliraji,
Smt. Sunita Devi, Shrinath, Smt. Photo,
Smt. Kamla Devi and Smt. Chhabbi Devi,
thereby committed offence under Section
323/149 I.P.C. within cognizance of this
Court.

5. The charges were read over to
accused persons, who pleaded not guilty
and
claimed
for
trial.
Prosecution
examined PW-1 Jitendra Kumar, PW-2
Smt. Sumitra Devi, PW-3 Madan Lal, PW4 Dr. A.K. Singh, PW-5 Shyam Lal, PW-6
Nagendra Prasad Mishra Pharmacist, PW7 Islamul Haq Khan, PW-8 S.I. Radhey
Shyam Pushkar, PW-9 C.P. 156 Shankar.

6. With a view to have explanation of
accused
persons
over
incriminating
materials furnished by prosecution and the
version of defence, accused persons were
examined under Section 313 Cr.P.C.,
wherein
each
of
accused
answered
accusation and testimony of PW-1 Jitendra
Kumar, PW-2 Smt. Sumitra Devi, PW-3
Madan Lal, PW-4 Dr. A.K. Singh, PW-5
Shyam Lal, PW-6 Nagendra Prasad Mishra
Pharmacist, PW-7 Islamul Haq Khan, PW-
1 All. Shyam Lal & Ors. Vs. State of U.P.
1439
8 S.I. Radhey Shyam Pushkar, PW-9 C.P.
156 Shankar to be false, fictitious and
fabricated,
given
under
animosity.
Evidence in defence was said to be given.
Shyam Lal narrated in reply to question
no. 13 "मुझे वादी पक्ष के लोगो ने मारा
था इसका मुक़दमा मेरे भाई राम सजीवन
ने बकया है िॉस केस से बचने के बलए
झूठा मुक़दमा बकया गया" (Prosecution
side had assaulted us, for which case was
got lodged by my brother Ram Sajivan and
with a view to save themselves from
criminal liability, this false accusation was
got lodged) [English translation by Court
itself]. The same is reply of almost each of
accused persons except assertions given by
Ram Sajivan that on 12.07.2004 at about
9.30
A.M.
chak
road
was
being
constructed for use by accused persons
from the field of accused Sudama under
his consent, which was damaged by
Shyam Bihari, Ram Shiromani, Dharamraj
and Madan. This was protested. Shyam
Bihari, Dharamraj, Ram Shiromani and
Madan
give
assault
by
lathi-danda,
wherein Shyam Lal, Udairaj, Ram Ujagir,
Balraji and Pintu were badly injured, for
which case was got registered by this
accused at Police Station Durgaganj and
with a view to save themselves from
criminal liability, this false case has been
got lodged as counter blast of same.
Convict-appellant Ram Ujagir has also
said like so. The same is the version of
convict-appellant
Udairaj.
Convictappellant Awadhraj has pleaded his alibi
that he was taken by police of Durgaganj
at 8.00 A.M. on 12.07.2004 and he was
restrained and confined under Section 51
read with 107/116 Cr.P.C. but falsely
implicated in this occurrences. Convictappellant Sudama Prasad, too, had taken
plea of alibi that he was not present on
spot on above date, time and place. Rather,
he was busy in making construction of
house of Pratap Dhobi, since 8 A.M. to 5
P.M., on the above date of occurrence.
Girdhari also took plea of alibi that he was
at Village Dhanaura regarding construction
of house as labourer.

7. In defence, Jadawati Devi as DW1 has said that Sudama was raising
construction of her house on 12.07.2004
since 7 A.M. and was present thereat. DW2 Mohd. Jumrati as DW-2, for proving
presence of Girdhari Lal at his house for
raising construction has been examined.
Learned trial Court made trial of Sessions
Trial No. 108 of 2004 along with its cross
case Sessions Trial No. 98 of 2005; State
of U.P. Vs. Shyam Bihari & others, arising
out of N.C.R. No. 14 of 2004, under
Sections 323/34, 504 I.P.C and passed
impugned judgment of conviction in
Sessions Trial No. 108 of 2004, wherein
Shyam Lal, Bijai alias Ram Sajivan, Kallu
alias Ram Ujagir, Udal alias Udairaj,
Awadhraj, Girdhari and Sudama Prasad
were held guilty for offence of rioting
punishable under Section 147 I.P.C.,
culpable homicide not amounting to
murder punishable under Section 304/149
I.P.C., voluntarily causing simple hurt,
punishable under Section 323/149 I.P.C.
They were acquitted for charges levelled
for causing grievous hurt punishable under
Section 325/149 I.P.C. After hearing over
quantum of sentence, impugned judgment
sentencing the convicts-appellants, as
above, was passed, for which this appeal.

8. No appeal by State regarding
acquittal under Section 325/149 I.P.C. is
there.

9. In Sessions Trial No. 98 of 2005,
which was a cross case version, judgment
of conviction and sentence made therein
1440 INDIAN LAW REPORTS ALLAHABAD SERIES
for offence punishable under Sections
323/34, 504 I.P.C. was passed against
Shyam Bihari, Ram Shiroman, Dharm
Nath and Madan and after hearing over
quantum of sentence, they have been
sentenced
with
six
months
simple
imprisonment and fine of Rs.500/- and in
default one month additional simple
imprisonment under Section 323/34 I.P.C
with further imprisonment of one year
simple imprisonment and fine of Rs.1000/-
and in default one month additional simple
imprisonment under Section 504 I.P.C.
with a direction for concurrent running of
sentences. The judgment of conviction and
sentence made therein has been challenged
by convicts-appellants Shyam Bihari, Ram
Shiroman, Dharm Nath and Madan in
Criminal Appeal No. 5969 of 2011, Shyam
Bihari Vs. State of U.P., arising out of
N.C.R. No. 14 of 2004, Police Station
Durgaganj, District Sant Ravidas Nagar,
Bhadohi. Above appeal has been heard and
is being decided by separate judgment in
it, together with this appeal.

10. Learned counsel for appellants
argued that trial court failed to appreciate
facts and law placed on record. Appellants
were not aggressor. There was no unlawful
assembly to commit murder or culpable
homicide nor any such injury caused by
lathi-danda was found over persons of
deceased Ravindra in its inquest or
autopsy
examination
report,
because
injuries found in external examination
were abrasions. It was said by PW-2 wife
of deceased that three persons, namely,
Kallu, Bachai and Shyam Lal did assault
over Ravindra, they ride over his chest and
exerted pressure over his neck, resulting
injuries, which caused his death owing to
Asphyxia and internal injury to trachea
and laceration of lungs. It was not the
object of unlawful assembly because all
those appellants were said to have rushed
on spot, where chak road was being
constructed, and it was being damaged,
resulting
a
quarrel,
wherein
this
occurrence took place, but trial court failed
to appreciate it and sentenced each of
appellants
for
offence
of
culpable
homicide punishable under Section 304
I.P.C. which was not under common object
of unlawful assembly. Hence, this appeal
with above prayer.

11. Learned A.G.A. has vehemently
opposed the aforesaid argument with this
contention that trial court has rightly
convicted and sentenced the appellants on
the basis of statements recorded before it,
wherein each of convicts-appellants, under
joint mens rea, in furtherance of their
common object of unlawful assembly did
assault over Ravindra and other injured
witnesses, wherein Ravindra succumbed to
above injury and it was culpable homicide
not amounting to murder, punishable
under Section 304 read with 149 I.P.C., for
which
there
was
no
illegality
or
irregularity. Other sentences were also in
accordance with facts and law placed on
record. This appeal is devoid of merit.
Hence, the same is to be dismissed.

12. Section 149 I.P.C. provides that 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 i.e. there must be an unlawful
assembly, commission of an offence by
any member of an unlawful assembly,
such offence must have been committed in
prosecution of the common object of the
1 All. Shyam Lal & Ors. Vs. State of U.P.
1441
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
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
common object of the unlawful assembly.
Use cannot be made of Section 149 for the
purpose of establishing the guilt of the
accused constructively except in cases
falling under the Penal Code. For
applicability of Section 149 there need not
be a prior meeting of minds. It is enough
that each has the same object in view. The
elements
of
Section
149
are:
(i)
Commission of an offence by any member
of an unlawful assembly; (ii) Commission
of the offence in prosecution of the
common object of the unlawful assembly;
and (iii) the offence must be such as the
members of the unlawful assembly knew
to be likely to be committed in prosecution
of the common object. As has been
propounded by Apex Court in Dharam
Pal v. State of U.P.; AIR 1994 Supreme
Court 1546, that where ingredients of
Section 149 are not present, it is difficult
to hold the accused liable with the aid of
Section 149. Sections 149 and 34 relate to
vicarious
or
collective
liability
and
surfacially involve some amount of
resemblance and overlapping. Section 34
is restricted to common intention and does
not embrace any knowledge. Under
Section 149 it is the knowledge which is
necessary to attract the culpability. It has
been held by Supreme Court that common
object of unlawful assembly is different
from common intention as it can develop
during course of incident at the spot
coinstante. The meaning of prosecution of
common object is attainment of common
object and 'object' means purpose or
design and in order to make it common it
must be shared by all and no proof of overt
act is necessary. Section 149, I.P.C. makes
every member of an unlawful assembly, at
the time of committing of the offence,
guilty of that offence. The section creates a
constructive or vicarious liability of the
members of the unlawful assembly for the
unlawful acts, committed pursuant to the
common object, by any other member of
that assembly. However, the vicarious
liability of the members of the unlawful
assembly extends only to the acts done in
pursuance of the common object of the
unlawful assembly, or to such offences as
the members of the unlawful assembly
knew to be likely to be committed in
prosecution of that object. Once the case
of a person falls within the ingredients of
the section, the fact that he did nothing
with his own hands, would be immaterial.
He cannot put forward the defence that he
did not with his own hands, commit the
offence committed in prosecution of the
common object of the unlawful assembly
or such as the members of the assembly
knew to be likely to be committed in
prosecution of that object. The basis of the
constructive guilt under Section 149 is
mere
membership
of
the
unlawful
assembly with the requisite common
object or knowledge. Thus, once the Court
holds that certain accused persons formed
an unlawful assembly and an offence is
committed by any member of that
assembly in prosecution of the common
object of that assembly, or such as the
members of the assembly knew to be
likely to be committed in prosecution of
that object, every person who at the time
of committing of that offence was a
member of the same assembly is to be held
1442 INDIAN LAW REPORTS ALLAHABAD SERIES
guilty of that offence. After such a finding
it would not be open to the Court to see as
to who actually did the offensive act or
require the prosecution to prove which of
the members did which of the offensive
acts. The prosecution would have no
obligation to prove it. In other words it is
not open to the Court to acquit members of
the unlawful assembly for lack of
corroboration as to their participation, as
was propounded in Lalji v. State of U.P.;
AIR 1989 SC 754. "In prosecution of the
common object" this phrase means that the
offence
committed
was
immediately
connected with the common object of the
unlawful assembly, of which the accused
were members. The act must be one which
must have been done with a view to
accomplish the common object attributed
to the members of the unlawful assembly.
Expression in prosecution of common
object in Section 149 is to be strictly
construed as equivalent to in order to
attain common object. Hence, existence of
common object and offence committed in
pursuance of common object is to be
established by prosecution. Doing some
overt act is not necessary to bring home
charge under Section 149. Common object
of the unlawful assembly can be gathered
from the nature of the assembly, arms used
by them and the behaviour of the assembly
at or before scene of occurrence. It is an
inference to be deduced from the facts and
circumstances of each case. To ascertain
whether a particular person shared the
common object of the unlawful assembly
it is not essential to prove that he
committed some illegal over act or had
been guilty of some illegal omission in
pursuance of the common object. Once it
is demonstrated from all the facts and
circumstances of a given case that he
shared the common object of the unlawful
assembly in furtherance of which some
offence was committed or he knew it was
likely to be committed by any other
person, he would be guilty of that offence.
Undoubtedly, commission of an overt act
by such a person would be one of the tests
to prove that he shared the common object,
but is not the sole test, as has been
propounded in State of Andhra Pradesh
v. Thakkidiram Reddy and others; AIR
1998 Supreme Court 2702

13. In present case, admittedly,
quarrel occurred in between both sides at a
place
where
chak
road
was
being
constructed. Accused Shyam Lal, Bijai @
Ram Sajivan, Kallu @ Ram Ujagir, Udal
@ Udairaj, Awadhraj, Sudama Prasad and
Girdhari were said to be present on above
spot and they were armed with lathidanda. They assaulted injured Ravindra, as
a result of which he died. The common
object of giving assault to any of the
injured was not said by PW-1 Jitendra
Kumar in Ext.Ka-1. Rather at about 9.30
AM on 12.07.2004, there occurred quarrel
at the place of construction of chak road,
wherein assault by lathi-danda and pelting
of brick and stone was said, resulting
injuries to injured persons. This has been
specifically said in cross-examination of
this witness that both sides had entered
into
some
written
compromise
on
16.06.2004 regarding construction of this
disputed chak road. It was under mediation
by the then Village Pradhan and other
members of village assembly and on
11.07.2004
chak
road
was
being
constructed as per above compromise.
Land of Jagannath and Sudama was
adjacent to above chak road. A dilapidated
house of this witness PW-1 and of accused
was under sharing because both sides were
residing in this house at any time. This
chak road was for beneficial enjoyment of
complainant / informant PW-1 Jitendra
1 All. Shyam Lal & Ors. Vs. State of U.P.
1443
Kumar, Sudama and accused persons. Soil
was led over this chak road. A suggestive
question has been put to this witness that
on that date at about 7 A.M. Shyam Bihari,
Ram Shiromani, Dharamraj and Madan
damaged above chak road by spade, which
was protested by Ram Sajivan. Matter
reached up to police station. S.O.,
Durgaganj rushed on spot and both
Shobhnath and Awadhraj were taken at
Police Station, Durgaganj at about 8 A.M.
Thereafter, this occurrence took place at
about 9.30 A.M. The injuries of accused
side was not explained by this witness
though question in cross-examination were
put. A question regarding cross case was
also put, but this witness could not explain
about it. Meaning thereby, this PW-1 has
said that he was not aware about injury to
other side or any cross case to present
case, being tried together, but it has
specifically been said by this witness at
page no. 8 of statement that accused
persons were assembling for entering in
quarrel. They were Awadhraj, Udairaj,
Shyamlal,
Kallu,
Bachai,
Girdhari,
Sudama,
Madanlal,
Shrinath,
Shyam
Bihari and ladies i.e. both sides were
present and there occurred some abuse i.e.
affray was caused. Some persons other
then those rushed on road and pelting of
stones started. It ran for five minutes.
Complainant side were also present thereat
and due to pelting of stones, injury was
caused to Madan Lal, Sursatti Devi,
Dharamraj, Photo Devi, Shrinath, Hirawati
Devi, Latera Devi and Kamla Devi.
Sobhnath was not injured in it. Shrinath
was injured at his leg. Madan Lal was
injured over his head i.e. injury to either
side was admitted by this witness and this
unlawful assembly was with object of
quarreling over chak road. It was not with
any object of giving assault or causing
culpable
homicide
nor
there
was
knowledge of this fact of culpable
homicide of deceased Ravindra, for which
PW-2, wife of deceased, has categorically
said that it was Kallu, Bachai and Shyam
Lal, who caused those injuries, resulting
his death.

14. PW-1 informant Jitendra Kumar
in his examination-in-chief has said on
oath that on 12.07.2004 at about 9.30
A.M., there occurred a quarrel regarding
construction of chak road, wherein Kallu
Ram, Shyam Lal, Udairaj, Bachai Ram,
Ram Sajivan, Awadhraj, Sudama Prasad
and Girdhari Lal, armed with lathi-danda,
brick and stone, did assault, resulting
injuries to Madan Lal, Dhramraj, Shyam
Bihari, Shrinath and Ravindra Nath.
Ladies of informant's house Photo Devi,
Sursatti Devi, Chhabbi Devi, Kamla Devi,
Latera Devi and Durga Devi, were also
beaten by lathi-danda and brick pelting by
those accused persons. This occurrence
resulted death of Ravindra Nath, S/o
Shobh Nath, while he reached at Kabir
Chaura Hospital, Varanasi and this was
owing to assault made by accused persons.
This occurrence was reported by written
F.I.R. under handwriting and signature of
this witness, which is Ext.Ka-1 on record
and brick-stone were taken in possession
by I.O. under witness-ship of this witness
by way of preparation of recovery memo,
having his signature over it and the same
recovery memo is on record. It was
prepared by Investigating Officer in his
presence, which is Ext.Ka-2 on record. In
cross-examination
this
witness
has
categorically said that he was not present
at Kabir Chaura Hospital, when Ravindra
died. That is why he is not aware about the
time of death of Ravindra. But it was of
about 11.30 A.M. As this witness was not
present at Kabir Chaura Hospital, hence
his
testimony
is
on
the
basis
of
1444 INDIAN LAW REPORTS ALLAHABAD SERIES
information given by Photo Devi, but this
witness has categorically said that Photo
Devi, Sursatti Devi, Madan Lal, Dharm
Raj, Shyam Bihari, Shrinath, Durga Devi
and Kamla Devi were at Kabir Chaura
Hospital. Inquest of dead body was got
conducted and it was examined under
autopsy examination. Cross case version
has been said by learned counsel for
defence and same was being tried together
with present Sessions trial. Hence, this
occurrence at above time, date and place,
wherein persons were injured and under
this injury Ravindra died was undisputed
fact.
This
occurrence,
owing
to
construction of chak road, was also
undisputed. Inquest report Ext.Ka-13 has
been proved by PW-7 Islamul Haq Khan,
the then Station Officer of Police Station,
Suriyawan,
who
has
said
in
his
examination-in-chief that while being
posted as Sub-Inspector of Police Station
Suriyawan on 13.07.2004, Case Crime No.
162 of 2004, under Sections 147, 149, 336,
323,
304
I.P.C.
of
Police
Station
Durgaganj was investigated for filling
inquest
proceeding,
wherein
inquest
proceeding of deceased Ravindra Kumar,
S/o Sobhnath, R/o Gangarampur, P.S.
Durgaganj
was
got
performed
and
deceased was having injuries written in it.
This inquest report was Ext.Ka-13 and for
getting autopsy examination conducted,
requisite documents Letter R.I. (Ext.Ka14), Letter C.M.O. (Ext.Ka-15), Photo
Dead Body (Ext.Ka-16), Police Form-13
(Ext.Ka-17) were got prepared under
handwriting and signature of this witness
and the same are on record. This dead
body under intact sealed position along
with those documents were sent for
autopsy examination. Regarding it, there is
no material contradictions, exaggeration or
embellishment in examination in cross.
Although,
this
has
further
been
corroborated by testimony of Dr. A.K.
Singh PW-4 that while being posted as
Medical Officer Maharana Balwant Singh
Hospital, on 13.07.2004 he was deputed
on postmortem examination duty, where
dead body of Ravindra Kumar, under wrap
of cloth, fully intact, sealed along with
specimen seal, was brought and after
comparing seal it was got identified by
Constable Balendra Yadav and Chhotey
Lal of Police Station Durgaganj. Autopsy
examination of dead body was got
conducted. The deceased Ravindra was of
average body built, of 30 years age, having
rigor mortise present over limbs, eyes
were closed, frost and mucus with blood
was oozing from nostrils and he was
having following injuries:-

1. Bloody frost oozing from
nostrils and mouth opening.

2.
Multiple
abrasions
5cmx1.5cm over left side of neck towards
lower side just at right clavicle bone.

3. Abrasion 2cmx1cm right side
of neck towards lower side chest above
right clavicle.

4. Abrasion 1cmx1cm over left
mastoid region.

5. Abrasion 1cmx1cm on right
upper limb towards outer aspect.

6. Abrasion 1cmx1cm right side
over back, 5cm below right scapula.

Under
internal
examination,
brain and its membrane was congested.
Left lung and its membrane was congested
and lacerated. Trachea was lacerated and
there was blood in the upper muscles of
neck. Left lung was congested and
lacerated. Blood was present in the cavity.
Right chamber of heart was with blood.
Left was empty. Teeth were 16/16.
Stomach was empty. Digestive material
with gases were in small intestine. Faecal
matter with gases was in the large
1 All. Shyam Lal & Ors. Vs. State of U.P.
1445
intestine. Urinary bladder was empty.
Death was one day old and due to
Asphyxia and shock, owing to throttling.
Autopsy examination report (Ext.Ka-3)
was prepared under handwriting and
signature of this witness. Regarding, this
autopsy examination, internal and external
situation of deceased body and cause of
death, as above, there is no contradiction,
exaggeration or embellishment.

15. PW-6 Nagendra Prasad Mishra,
Chief
Pharmacist,
is
the
secondary
evidence, examined for proving medico
legal report of injured Madan Lal, Shivrati,
Smt. Balraji, Smt. Sumitra Devi, Shrinath,
Smt. Photo Devi, Kamla Devi and Smt.
Chhabbi Devi, who were examined at
Government Hospital. These medico legal
examination reports were entered in
Medico Legal Register from page no. 8 to
15, wherein original medico legal reports
are there and those, filed on record, were
copy of same medico legal reports, which
were compared and proved to be copy of
same. This was exhibited as Ext.Ka-5 to
Ext.Ka-12.

16. PW-9 Constable Shankar is the
secondary
evidence
for
proving
registration of this Case Crime No. 162 of
2004 under handwriting and signature of
Constable Ram Gopal with whom this
witness was posted at Police Station
Gyanpur. Chik FIR and G.D. Entry of
same is under handwriting and signature of
Constable Ram Gopal, for which as
secondary evidence, proved the same, on
the basis of which Ext.Ka-19 and Ext.Ka20 has been exhibited. Hence, this
registration of case crime number has been
formally proved by PW-1 Jitendra Kumar,
which is reiterated and corroborated by
testimony of this prosecution witness no. 9
Shankar,
for
which
there
is
no
contradiction,
exaggeration
or
embellishment.

17. The statements of accused
recorded under Section 313 of Cr.P.C. and
stand of defence during trial was that on
12.07.2004 at 9.30 A.M. there occurred a
quarrel in between both sides, wherein
cross cases were got registered and there
was use of lathi-danda with pelting of
brick-stone, resulting injury to both sides.
Sessions Trial No. 98 of 2005; State vs.
Shyam Bihari & Ors. is also under trial
before this Court with this sessions trial.
Informant Ram Sajivan has lodged case
for this occurrence against Shyam Bihari,
Ram Shiroman, Dharm Nath and Madan at
Police Station Durgaganj, District Sant
Ravidas Nagar, Bhadohi. Meaning thereby,
this occurrence was not a disputed one and
injury on both sides were undisputed. The
medico legal reports of injured, who have
been examined in this trial is on record.

18. PW-2 Sumitra Devi has said that
occurrence took place on 12.07.2004 at
about 9.30 A.M. when Bachai, Shyam Lal,
Awadhraj, Udal, Kallu, Girdhari and
Sudama, armed with lathi-danda, came at
the door of this witness. This quarrel was
regarding chak road. This was protested by
Shrinath and he was beaten by them. This
witness along with her husband Ravindra
Kumar
(deceased),
her
father-in-law
Shobhnath tried to intervene and save
Shrinath. Then, Kallu, Bachai, Shyam Lal
with others did assault over these three
wherein Ravindra was badly beaten by
Kallu, Bachai and Shyam Lal. Upon
exhortation made by Shyam Lal, Kallu,
Bachai and Shyamlal gave lathi blow to
Ravindra Nath and thereupon they pressed
his chest and neck. Thereafter, this
witness, her father-in-law Shobhnath and
her sister-in-law tried to save Ravindra,
1446 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein Bachai assaulted this witness and
Udal, Girdhari and Sudama assaulted her
sister-in-law. Ravindra Nath, Shobhnath,
this witness, her sister-in-law, Latera Devi,
Chhabbi Devi, Photo Devi and Ram
Shiromani were also injured. Madan Lal
and Dharm Raj too were injured. All
injured were examined at Government
Hospital, Suriyawan. Her husband was
taken at Gyanpur, from where he was
referred to Government Hospital, Kabir
Chaura, Varanasi, but he died just after
reaching at above Hospital and this death
was owing to above injuries. Meaning
thereby, injuries to accused persons Madan
Lal and Dharm Raj too are undisputed fact
and this injury was not free fight assault.
Rather a quarrel occurred when abuse was
made. This was protested by Shrinath. He
was assaulted, wherein interception was
made by Ravindra, his wife Sumitra Devi
and his father Shobhnath. Then they were
assaulted. Specific role of giving assault
over Ravindra was assigned against Kallu,
Bachai and Shyamlal, who gave assault
over Ravindra upon exhortation of Shyam
Lal by riding over his chest and pressing
his neck. Thereafter, Shobhnath and this
witness tried to save Ravindra. Then they
were assaulted. Hence, this culpable
homicide was not under furtherance of
common object of unlawful assembly, but
this was subsequent development in which
upon exhortation made by Shyam Lal,
Kallu, Bachai and Shyam Lal did above
assault over chest and neck of Ravindra,
resulting injuries, which resulted his death.
Deceased Ravindra was given assault by
lathi-danda, but no fracture of any bone
was there. Rather laceration of lung
resulting presence of blood in cavity and
fracture of trachea resulting blood in
respiratory tract was there. It was owing to
pressing over chest by riding over it. The
accused persons were armed with lathidanda stone and brick, but they had not
given any bony fracture injury over
deceased Ravindra, rather above injury,
which resulted his death, was owing to
laceration of lungs etc. for which specific
allegation of this eyewitness is against
Kallu, Bachai and Shyam Lal, who were
members of unlawful assembly. But, the
object of committing death or causing
multiple abrasions on Ravindra could not
be gathered from above sequence of
occurrence, rather it was informed as overt
act of above Kallu, Bachai and Shyam Lal,
resulting death of deceased Ravindra.
Hence, trial court failed to appreciate these
facts and evidence placed on record and
convicted each of convict-appellant for
offence punishable under Sections 304/149
I.P.C. Rather, it was a proved case for
offence punishable under Section 304
I.P.C. against Kallu, Bachai and Shyam
Lal only. For rest, this finding is not
proved against beyond doubt.

19. This witness has said that
accused persons did pelting of brick and
stones. Ladies of family of accused also
did stone pelting. Prior to this quarrel, this
stoning was made. It was 2-4 pelting and it
was at the house of this witness, but who
did this pelting could not be said by this
witness nor she could recognize those
ladies, who did this pelting. Meaning
thereby, both sides did quarrel. Pelting of
stones was made, which resulted injury to
complainant
side,
hence
offence
punishable under Section 323/149 and 147
I.P.C. was proved, but it was not the
common object of unlawful assembly that
culpable homicide of Ravindra was to be
committed nor unlawful assembly did this
offence in pursuance of that common
object nor they were aware of this fact.
Neither it was intended nor any fracture by
lathi-danda was caused nor death was
1 All. Shyam Lal & Ors. Vs. State of U.P.
1447
owing to above injury made by lathidanda, rather it was injury caused by
sequence written, as above. Hence, this
offence punishable under Section 304/149
I.P.C. was not object of above unlawful
assembly and accused other then Kallu,
Bachai and Shyam Lal may not be held
constructively liable for those offence.
Rather, it was an act of Kallu Bachai and
Shyam Lal only.

20. PW-5 Shyam Lal, who is formal
witness,
was
erstwhile
Investigating
Officer of Case Crime No. 162 of 2004,
under Sections 147, 149, 336, 323, 304
I.P.C. and he visited spot and prepared spot
map upon pointing of informant Jitendra
Kumar, which is in handwriting and
signature of this witness, proved and
exhibited as Ext.Ka-4 on record. He took
brick and stones in his possession by way
of preparation of recovery memo Ext.Ka-2
under his handwriting and signature. In
cross-examination, this witness has said
that till his visit on spot he was not aware
about cross case version nor about injuries
sustained by accused side and in the
course of investigation he could not be
aware as to whether dilapidated house
shown in the site map was of accused side
or of complainant side or of both. He has
formally proved investigation made by
him, for which there is no material
contradiction.

21. PW-9 is Sub Inspector Radhey
Shyam Pushkar, Investigating Officer, who
has said that in his investigation of Case
Crime No. 162 of 2004, under Sections
147, 149, 336, 323, 304 I.P.C., P.S.
Durgaganj, he got the statement of injured
witnesses recorded under Section 161
Cr.P.C. Their medico legal report entered
in case diary. The inquest proceeding were
copied in case diary. Medical Officer
statement was recorded in case diary.
Remand for accused persons were taken.
Then,
witnesses
were
examined.
Thereafter,
charge
sheet
under
his
handwriting and signature Ext.Ka-18 was
submitted before Court, which is on
record.