# Shyamdhar Pandey v. State Of U.P

- **Citation:** (2016) 8 ILRA 579
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-24
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyamdhar-pandey-v-state-of-u-p-44357
- **Pages:** 6

## Text

8 All. Shyamdhar Pandey Vs State Of U.P.
579
(2016) 8 ILRA 579
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Misc. Bail application No.- 24182 Of 2015
&
Criminal Misc. Bail application No.- 6712 Of 2016

Shyamdhar Pandey ...Applicant
Versus
State Of U.P. ...Opposite Party

Counsel for Applicant:
Viveka Nand, RL.K. Shukla, Gopal S. Chaturvedi

Counsel for Opposite Party:
G.AGovt. Advocate, Prem Prakesh, V.P. Gupta

Legislation referred to:-
Indian Penal Code, 1860 - Sections 34, 147, 148, 149, 304, 308, 323, 325, 436, 452, 504, 506
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(2)(5)
 Code of Criminal Procedure, 1973 - Sections 437/439 (Bail)

FACTS :
Both bail applications, arising out of a common transaction and the same case crime, were heard together
and decided by a common order at the joint request of counsel for both sides, as both case files were
available in court on the same date.
The applicants Shyamdhar Pandey and Vikash Kumar Pandey were implicated in Case Crime No. 118 of 2015,
registered at P.S. Handia, District Allahabad, along with 22 other accused persons - a total of 24 - in
connection with an incident involving a clash between two rival groups. The FIR alleged that the accused,
belonging to the upper-caste community, attacked members of the scheduled caste community of the village,
setting huts on fire and causing injuries to 14 alleged victims.
During the incident, one person received a single blow to the head. He did not suffer any fracture or grievous
injury. However, the wound subsequently got infected, leading to development of septicaemia, which
ultimately resulted in his death due to cardiorespiratory arrest, as recorded in the post-mortem report. The
medical examination reports of the 14 alleged injured persons revealed injuries of a uniformly trivial nature -
several victims had no visible external injury at all, while others had only single contusions, abrasions, or
lacerated wounds, none of which was certified as grievous.
The applicants Shyamdhar Pandey and Vikash Kumar Pandey had been in custody since 11 April 2015 and 24
June 2015 respectively. Neither applicant had any previous criminal history. The prosecution alleged use of
lathi, danda, and ganasa, though none of the victims sustained any sharp-edged wound or bone fracture.

Questions Considered
580 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) Whether, in a case of group clash where the death of the deceased was caused not by a grievous injury
but by septicaemia developing from a single simple wound - with no fracture found on any victim - a
criminal intention to cause death or grievous hurt can be attributed to all the accused so as to disentitle them
from bail?
(ii) Whether vicarious liability under Sections 149/34 IPC can be fastened upon all accused in a mass-melee
situation when there is no specific attribution of any weapon or blow to any individual accused and the total
number of injuries inflicted is substantially less than the total number of alleged assailants?
(iii) What considerations govern the exercise of discretion to grant bail where the trial is unlikely to conclude
in the near future and the accused have already undergone substantial pre-trial detention?

Held
(i) Nature of injuries and criminal intention: The medical examination reports of all 14 alleged victims
and the post-mortem report of the deceased collectively demonstrate the trivial nature of the injuries inflicted.
No victim sustained a fracture or grievous injury. The deceased had only a single healed wound on the head
with no corresponding fracture in any underlying skull bone - a simple injury which unfortunately became
infected leading to death by septicaemia and cardiorespiratory arrest. In such circumstances, attribution of an
intention to cause death or serious bodily harm to any of the accused is not supported by the medical
evidence. The absence of repeated blows and the absence of any fracture indicate that the blows, if any,
were not delivered with force or deliberation.

(ii) Vicarious liability in mass-melee cases - specification of role essential: Where blunt weapons
such as lathi or danda have been used so lightly as to produce no fracture or grievous injury on any of the 14
alleged victims, it would be unreasonable to saddle all 24 accused with a common murderous intention or
object. The prosecution evidence was wholly lacking in specification as to which accused wielded which
weapon and which accused struck which victim. The total number of injuries inflicted was significantly less
than the number of alleged assailants - a circumstance indicating that many of the accused did not
participate in the occurrence at all. The mere fact that the incident took the form of a group melee does not,
by itself, suffice to fasten vicarious liability for culpable homicide upon every named accused in the absence of
specific attribution.

(iii) Bail - factors considered: Taking an overall view of the nature of the evidence, the trivial character of
the injuries sustained, the period of pre-trial detention already undergone by the applicants (since April 2015
and June 2015 respectively), the absence of any previous criminal history, the unlikelihood of early conclusion
of trial in view of heavy pendency of cases, and the absence of any convincing material to indicate the
possibility of tampering with the prosecution evidence, the applicants were found entitled to bail.

Result: Both bail applications allowed. Applicants Shyamdhar Pandey and Vikash Kumar Pandey directed to
be released on bail upon executing a personal bond and furnishing two sureties each in the like amount to the
satisfaction of the court concerned, subject to the following conditions: (1) the applicants shall not tamper
with the prosecution evidence in any manner; (2) the applicants shall personally appear on each and every
date fixed in the trial court, unless the court itself grants exemption in the interest of justice. The trial court
shall be at liberty to proceed for cancellation of bail in the event of breach of any condition. The observations
in the order are confined strictly to the disposal of the bail applications and shall not be construed to reflect
upon the ultimate merits of the case.

(Delivered by Hon'ble Karuna Nand Bajpayee, J.)

1. These are two bail applications numbering as Criminal Misc. Bail Application No.
24182 of 2015 and Criminal Misc. Bail Application No. 6712 of 2016 which are connected with
8 All. Shyamdhar Pandey Vs State Of U.P.
581
each other and arise out of common transaction. Counsels for both sides are present, who have
requested the Court to take up both the matters today itself as the files of both the cases have been
sent by the office and are available in the Court. This request was made in the background of the
fact that the Criminal Misc. Bail Application No. 24182 of 2015 was sent to the Court earlier on
20.8.2016 but the matter was posted for some other date after four weeks. Submission of counsels
appearing for both sides is that as both the files are available in the Court and the rival counsels are
also present then there is no point of not hearing the other bail application. In view of common
request made by the counsels for both sides, both these bail applications are being heard together
today and are being decided by common order.

2. By way of these bail applications moved on behalf of applicants Shyamdhar Pandey and
Vikash Kumar Pandey, the release on bail has been sought in connection with Case Crime No.118
of 2015, u/s 147, 148, 149, 323, 325, 504, 506, 436, 304, 452, 308, 34 I.P.C. and Section-3(2)(5) of
SC/ST Act, Police Station-Handia, District-Allahabad.

3. Counter affidavits filed today by learned A.G.A. in both cases are taken on record.

4. Heard Shri Gopal Swroop Chaturvedi, Senior Advocate assisted by Shri L.K. Shukla and
Shri R.S. Shukla, learned counsels for the applicant and Shri Prem Prakash, learned counsel for
opposite party and learned A.G.A. for the State.

5. Submission of counsels for the applicants is that in this matter there has been a
background of an unusual highhandedness and misconduct displayed by some persons belonging to
the scheduled caste community of the village in question. In that connection applications had also
been moved before this incident and as a result of which the administrative authorities had
intervened and the anti-social elements were successfully managed but even thereafter miscreants
of that community kept displaying their misdemeanor and misbehaviour. Counsels have also drawn
the attention of the Court to Annexure No.27 and 28 in order to indicate the legal protest that was
made against the miscreants and the eventual compromise that had taken place in that regard.
Submission is that on the day of incident the situation worsened and there was a mutual clash
between two rival groups. During this clash none of the accused persons displayed or had any
criminal intention to cause anybody's death or to cause any serious injury to anybody of the other
side but unfortunately one person who received a single injury on the head eventually died as a
result of infection which he caught. The other persons said to have incurred injuries also received
only trifling minor injuries. But the other side has tried to exaggerate the nature of offence and has
resorted to a blanket implication of 24 persons in the incident by making omnibus allegations
against all of them. Counsel has taken the Court to the medical examination reports of all the
alleged 14 injured persons the perusal of which is sufficient to demonstrate the trivial nature of the
injuries incurred by all of them. Medical reports show that the alleged victims namely Manju
Nisha, Sukhdei and Beliram did not have any visible injury and only complained of pain; the
alleged victims namely Komal, Sushila, Nandini and Chintamani are said to have incurred just a
single contusion each on their persons; the alleged victims namely Nyasa and Lalchand had
incurred a single lacerated wound each on their persons, the alleged victim namely Pooja had
582 INDIAN LAW REPORTS ALLAHABAD SERIES

received only a single abrasion and the alleged victims Manoj Kumar and Ram Raj had incurred
one lacerated wound and one contusion each on their persons. It was also pointed out that all these
alleged injuries were obviously simple in nature and none of them was found to be grievous.
Attention has been further drawn to the post-mortem report of the deceased which also indicates the
presence of just a single healed wound on the head. Much emphasis has been laid by the counsel on
the fact that during autopsy no grievous injury was found on the body of the deceased and even the
healed wound on the head did not have any corresponding fracture in any of the underlying scull
bones and was in fact an injury of simple nature. Submission is that it was so unfortunate that the
otherwise simple wound appears to have caught some infection and septicaemia developed, as a
result of which the deceased eventually died. It has been emphasized by counsel that the death of
the deceased was reported by the doctor to have been caused as a result of cardiorespiratory arrest
due to septicaemia. Argument is that the medical examinations of the victims and the post-mortem
report of the deceased are sufficient to demonstrate that it is not a case in which either the victim or
the deceased may be said to have been made the target by any of the accused persons with the
intention to cause any serious harm to them. There was hardly any repetition of blows and the
absence of any fracture caused to any of the victims is also a conclusive proof of the fact that
whosoever hit them, hit them lightly and not with force. Further argument is that there is
generalized vague allegation about the accused having been armed with lathi, danda and ganasa,
but this is also so clear from the medical examination reports that neither the deceased nor any of
the alleged victims received any sharp-edged wound. In fact the number of assailants is said to be
24 but total number of injuries incurred by the victims is much less than the number of accused
which sufficiently demonstrates that many of the accused did not participate in the occurrence at
all. The prosecution evidence is woefully lacking with regard to any specification about the
weapons and it is not known at all as to which accused was having which weapon or as to which
accused hit which victim. Even the single blow caused to the deceased which unfortunately caught
the infection and proved fatal cannot be attributed to any particular accused. Submission is that in a
case of this nature where blunt weapons like lathi or danda has been used so lightly that not even a
single fracture or grievous injury has been caused to any of the victims, it will be unjust to attribute
any intention of causing death to any of the accused. Further submission is that it will also be very
unreasonable to saddle all the accused persons with vicarious liability of having shared any
common murderous intention or object. Even the death of the deceased was also an unfortunate
outcome or development which most probably took place because of lack of adequate medical care
or because of medical negligence. It is further submitted that the allegations of setting the huts on
fire is only a malicious attempt on the part of prosecution to exaggerate the offence and deliberately
lend a complexion of caste and communal clash to the incident. Submission is that had there been
any pre-planned deliberate serious intention to cause any serious harm then the nature of injuries
caused to the alleged victims would have been wholly different. Several other submissions in order
to demonstrate the falsity of the allegations made against the applicant have also been placed forth
before the Court. The circumstances which, according to the counsel, led to the false implication of
the accused have also been touched upon at length. It has been assured on behalf of the applicants
that they are ready to cooperate with the process of law and shall faithfully make themselves
available before the court whenever required. It has also been submitted that the applicants
Shyamdhar Pandey and Vikash Kumar Pandey are languishing in jail since 11.4.2015 and
8 All. Shyamdhar Pandey Vs State Of U.P.
583
24.6.2015 respectively and in the wake of heavy pendency of cases in the Court, there is no
likelihood of any early conclusion of trial. It has also been pointed out that the applicants do not
have any previous criminal history.

6. Learned A.G.A. and Shri Prem Prakash, learned counsel for the informant have opposed
the prayer for bail and have tried to submit that the incident was in the nature of a melee and
therefore it was not possible for the prosecution witnesses to specifically know as to which accused
wielded which specific weapon and as the aggression was made by the accused persons together,
therefore, the only logical inference to draw in such circumstances is that all of them had common
intention and object, and therefore all the accused must be held liable vicariously for causing the
death of the deceased. But both the learned A.G.A. and the counsel for the informant have been fair
enough to concede that neither the deceased nor any of the victims incurred any fracture on their
persons and the deceased died as a result of septicaemia that developed because of some infection.

7. After perusing the record in the light of the submissions made at the bar and after taking
an overall view of all the facts and circumstances of this case, the nature of evidence, the period of
detention already undergone, the unlikelihood of early conclusion of trial and also the absence of
any convincing material to indicate the possibility of tampering with the evidence, this Court is of
the view that the applicants may be enlarged on bail.

8. Let the applicants-Shyamdhar Pandey and Vikash Kumar Pandey, involved in Case
Crime No.118 of 2015, u/s 147, 148, 149, 323, 504, 506, 436, 452, 304, 308, 325, 34 I.P.C. and
3(2)(5) of SC/ST Act, P.S.-Handia, District-Allahabad be released on bail on their executing a
personal bond and two sureties each in the like amount to the satisfaction of the court concerned on
the following conditions :-

(1) The applicants shall not make any attempt to tamper with the prosecution
evidence in any manner whatsoever.

(2) The applicants shall personally appear on each and every date in the court and
his personal presence shall not be exempted unless the court itself deems it fit to do so in the
interest of justice.

9. It may be observed that in the event of any breach of the aforesaid conditions, the court
below shall be at liberty to proceed for the cancellation of applicant's bail.

10. It is clarified that the observations, if any, made in this order are strictly confined to the
disposal of the bail application and must not be construed to have any reflection on the ultimate
merits of the case.
-----------
584 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 584
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J.

Income Tax Appeal No.- 657 Of 2007
&
Connected With Other Cases

Commissioner Of Income Tax Ghaziabad & Anr. ...Appellant
Versus
Hapur Pilkhuwa Development Authority Preet Vihar ...Respondent

Counsel for Appellant:
Manish Goyal

Counsel for Respondent:
Ashish Bansal

Legislation referred to : Income Tax Act, 1961 - Ss. 2(15), 2(24), 10(20A), 10(29), 11, 12, 12A, 12AA,
12AA(3), 60-63; Income Tax Rules, 1962 - Rr. 17A, 17A(a); Finance Act, 2002; Finance Act, 2008; U.P.
Urban Planning and Development Act, 1973; Indian Trusts Act, 1882; Societies Registration Act, 1860; U.P.
Krishi Utpadan Mandi Adhiniyam, 1964; CBDT Circular No. 11 of 2008 dated 19.12.2008; CBDT Instruction No.
1024 dated 09.11.1976.

SUBSTANTIAL QUESTION OF LAW :
Whether on the given facts and circumstances of the case, the Income Tax Appellate Tribunal was justified in
law in holding that Hapur Pilkhuwa Development Authority (HPDA), a local authority constituted under the
U.P. Urban Planning and Development Act, 1973, was eligible for grant of registration under Section 12AA of
the Income Tax Act, 1961?

APPEALS - DETAILS :

S.No.
IT
Appeal
No.
Assessment Year
Judgment and Order Dated / ITA No.
1
657/2007
2003-04
15.05.2007 passed in ITA No. 2735/Del/2006
2
717/2007
2003-04
31.01.2007 passed in ITA No. 2903/Del/2006
3
533/2011
2003-04
25.07.2005 passed in ITA No. 690/Luc/2003
4
320/2007
1992-93
10.11.2006 passed in ITA No. 390 (Alld.)/2006
5
96/2009
2004-05,
200530.05.2008 passed in ITA Nos. 4815 & 4816/Del/2007; and