# Siya Ram & Anr v. State of U.P. 438 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 3 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-08
- **Case number:** Criminal Appeal No. 635 of 2005
- **Bench:** Devendra Kumar Upadhyaya, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siya-ram-anr-v-state-of-u-p-438-indian-law-reports-allahabad-series-44781
- **Pages:** 40

## Headnote

A. Evidence Law-Indian Evidence Act,1872
- Relationship with deceased is not a
factor that affects credibility of a witness, -
direct evidence of the witnesses - no
material
inconsistency
or
major
contradictions in evidence- incident had
occurred
without
premeditation
-no
common intention of appellants to commit
murder -amongst the injuries sustained by
the deceased only one injury has been
found fatal- the appellants were certainly
having
sufficient
common
intention/knowledge that their act is likely
to result in the death of deceased- not
acted in a cruel or brutal manner and also
have not taken undue advantage of the
situation-
committed
the
offence
punishable under Section 304 part (II) of
the IPC instead of Section 302 - conviction
under Section 302 read with Section 34 of
the IPC is altered from Sections 302/34 to
Section 304 Part II read with Section 34 of
the IPC. (Para 2,19,20,22,23,24,26,29,31,)

Both Appeals partly allowed (E-7)

Chronological list of cases cited:-

## Text

_Characters 0–39,890 of 132,789. This is a partial read: ask again with offset=39890 for what follows._

3 All. Siya Ram & Anr. Vs. State of U.P.
437
extent
that
the
evidence,
if
goes
unrebutted, would lead to conviction."

19. in this case P.W.-2 is the eyewitness
who has seen the occurrence and he has also
stated the same thing in his statement. He has
stated that on the said time, date and place, the
accused persons came in the mid night. He
saw them who were 9 or 10 in numbers
carrying pistol in their hands. He recognized
them in the electric light and they all were the
resident of same village and were very much
acquainted with him. He has further stated
that they all had caught hold of deceased on
his cot and on the exhortation of Smt.
Sanjeeda @ Moti accused Mohsin shot him
on his chest. On hearing noise his brother
Mustafa and his wife Smt. Julekha, a neighbor
Sahid @ Bhuru reached there and they
challenged the accused persons, thereupon,
while stepping done from the staircase, they
all fired on them with intention to cause death.
Thereafter, threatening of dire consequences
they went away from the place. This is the
evidence on record for the purpose of disposal
of application under section 319 Cr.P.C.

20. The learned trial court has
considered the evidence on record and has
found sufficient evidence on record for
establishing involvement of these accused
persons in the commission of the offence. At
the cost of the repetition it must be
remembered that the Investigating Officer
while submitting the charge-sheet when
mentioned section 147 and 148 IPC, the
natural inference is that by concluding
investigation he has found that the offence
was committed by unlawful assembly. The
statement of witnesses certainly goes to show
that these accused persons constituted an
unlawful assembly and at the the time of
incident they were the members of unlawful
assembly. The requirement for the application
of section 319 Cr.P.C. appears to have been
established by statement of two witnesses. All
these accused persons are named accused
persons in the FIR and the FIR has not been
delayed to support the idea that in the written
report the name of so many persons was
deliberately included while lodging the F.I.R.
in a situation, where the crime has been
committed in mid night and that too in the
house of deceased, it appears natural and
more probable that a single accused will not
alone go and commit such crime in other's
house and place unless accompanied by other
accused persons, otherwise, the possibility
may be always there that the single person
may be overpowered by other side. Therefore,
the conclusion reached by the learned trial
court is logical and justified.

21.

In
view
of
the
above
discussions, I find that there is no material
irregularity or illegality in the impugned
order nor there is any jurisdictional error
and therefore, the revision has got no
force and is liable to be dismissed.

22. The revision is dismissed
accordingly.
----------

(2019)11ILR A437

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.11.2019

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 635 of 2005
with
Criminal Appeal No. 644 of 2005

Siya Ram & Anr. ...Appellants
Versus
State of U.P. ...Respondents
438 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri S.H. Ibrahim, Sri Neeraj Sahu, Sri
Sunil Kumar Singh

Counsel for the Respondents:
Additional Govt. Advocate

A. Evidence Law-Indian Evidence Act,1872
- Relationship with deceased is not a
factor that affects credibility of a witness, -
direct evidence of the witnesses - no
material
inconsistency
or
major
contradictions in evidence- incident had
occurred
without
premeditation
-no
common intention of appellants to commit
murder -amongst the injuries sustained by
the deceased only one injury has been
found fatal- the appellants were certainly
having
sufficient
common
intention/knowledge that their act is likely
to result in the death of deceased- not
acted in a cruel or brutal manner and also
have not taken undue advantage of the
situation-
committed
the
offence
punishable under Section 304 part (II) of
the IPC instead of Section 302 - conviction
under Section 302 read with Section 34 of
the IPC is altered from Sections 302/34 to
Section 304 Part II read with Section 34 of
the IPC. (Para 2,19,20,22,23,24,26,29,31,)

Both Appeals partly allowed (E-7)

Chronological list of cases cited:-

1. Mani Vs St. of Ker. & ors. (2019) 2 SCC Crl.

2. Ranbir Vs St. (NCT ) of Delhi. (2019) 2 SCC Crl. 746.

3. Laxmi Chand & anr. Vs St. of U.P. (2019) 1
SCC Crl. 368.

4. Tula Ram Vs St. of M.P. (2018)3 SCC Crl. 358.

5. Ram Pratap & ors Vs. St. of Raj. (2018) 3
SCC Crl. 214.

6. Manoj Kumar Vs St. of H. P. (2018) 3 SCC
Crl. 33.

7. Lavghan Bhai Devji Bhai Vasavas Vs St. of
Guj. (2018) 2 SCC Crl. 461.
8. Atul Thakur Vs St. of H .P. (2018) 1 SCC Crl. 743.

9. Mahendra Mulji Kerai Patel Vs St. of Guj.
(2008) 14 SCC 690.

10. Darshan Singh Vs St. of Pun. & Ors.,
MANU/SC/0044/2010

11. Babulal Bhagwan Khandare and ors. Vs St.
of Mah. MANU/SC/1026/2004

12. Ananta Deb Singha Mahapatra & ors. Vs
St. of W.B. reported in MANU/SC/2610/2007

13.
Laxman
Singh
Vs
Poonam
Singh
,MANU/SC/0692/2003

14.
Appabhai
&
ors.
Vs
St.
of
Guj.
MANU/SC/0028/1988

15. Sucha Singh & ors. Vs St. of Pun.
MANU/SC/0527/2003

16. Gangabhavani Vs Rayapati Venkat Reddy
& ors. MANU/SC/0897/2013

17. St. of Raj. v. Smt. Kalki & anr.
MANU/SC/0254/1981 : AIR 1981 SC 1390,

18. Sachchey Lal Tiwari Vs St. of U.P.
MANU/SC/0865/2004 : AIR 2004 SC 5039,

19. Bhagaloo Lodh & ors. Vs St. of U.P.
reported in MANU/SC/0700/2011

20. Molu & ors. Vs St. of Har. AIR (1976)
SUPREME COURT 2499

21. Praful Sudhakar Parab Vs St. of Mah. AIR
(2016) SUPREME COURT 3107

22. Bharwada Bhoginbhai Hirjibhai Vs St. of
Guj. as reported
in AIR (1983),
753,
MANU/SC/0090/1983

23. Krishna Mochi & ors. Vs St. of Bihar,
MANU/SC/0327/2002

24. Shajahan & ors. Vs St. of Ker. &
ors.,MANU/SC/1094/2007

25. Behari Prasad & ors. Vs St. of Bihar,
MANU/SC/0752/1996
3 All. Siya Ram & Anr. Vs. State of U.P.
439
26. Bahadur Naik Vs St. of Bihar (11.05.2000 -
SC) : MANU/SC/0405/2000

27. Rakesh Kumar Vs St. (Delhi Admn.),
MANU/SC/1242/ 1994,

28. Ram Gulam Chaudhury & ors. vs. St. of
Bihar, MANU/SC/0582/ 2001

29. St. of Kar. Vs Bhaskar Kushali Kotharkar &
ors., MANU/SC/0702/2004

30. Arjun & ors. Vs St. of Chhattisgarh
,MANU/SC/0153/2017

31.
Arumugam
Vs
St.
Represented
by
Inspector
of
Police,
Tamil
Nadu
MANU/SC/8108/2008 : (2008) 15 SCC 590

32. Surinder Kumar Vs U.T.of Chandigarh
MANU/SC/0589/1989 (1989) 2 SCC 217

33. Ghapoo Yadav & ors. Vs St. of M.P. (2003)
3 SCC 528, MANU/SC/0124/2003,

34. Sukbhir Singh Vs St. of Har. (2002) MANU
/ SC/016/2002 3 SCC 327

35. Alister Anthony Pareira Vs St. of Mah.
(2012) 2 SCC 648, MANU/SC/0015/2012

36. Basdev Vs The St. of PEPSU AIR (1956) SC
488

37. Pulicherla Nagaraju @ Nagaraja Reddy Vs
St.of
A.P.
(2006)
11
SCC
444,
MANU/SC/8419/2006

38. Surain Singh Vs St. of Pun. reported in
MANU/SC/0399/2017 (2017) 5 SCC 796

39. Saravanan & ors. Vs St. of Pondicherry,
MANU/SC/0952/2004

40. Bhaba Nanda Sarma & ors. Vs St. of
Assam ,MANU/SC/0078/1977.

41. Afrahim Sheikh & ors. Vs. St. of W.B. ,
MANU/SC/0055/1964

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard Sri Sunil Kumar Singh
Learned counsel for the appellants,
learned AGA for the State and perused
the record.

2. Aforesaid criminal appeals No.
635 of 2005 and 644 of 2005 have been
filed by the appellants Siya ram, Data
Ram, Ram Ratan and Ram Sewak
respectively, against the judgment and
order
dated
11.4.2005,
passed
by
Additional District and Sessions Judge,
Court No.3, Hardoi, in S.T. No. 288 of
1995, arising out of Crime No. 36 of
1994, relating to Police Station Manjhila,
District Hardoi, whereby the appellants
have been convicted and sentenced, under
Section 302/34 IPC for life imprisonment
and fine of Rs. 10,000/- each, in default
of payment of fine two years R.I., under
Section 325/34 IPC for five years R.I. and
fine of Rs. 5000/- each, in default of
payment of fine for one year R.I. and
under Section 323/34 IPC for six months
R.I.

For the sake of convenience and to
avoid repetition of facts and evidence,
both appeals are being decided together
by common judgment.

3. The prosecution story as emerges
from the record of the subordinate court
is,
that
a
written
application
was
presented on 28.3.1994 at 9.15 A.M. to
S.H.O., Police Station Manjhila, District
Hardoi by Raja Ram s/o Dwarika Prasad,
R/o Lokpur, Majra Kusuma, Police
Station Manjhila, District Hardoi, stating
therein that on 27.3.1994 at about 8.00
P.M., when he was going to extend Holi
greetings, Siya Ram son of Kuber Kachi,
Data Ram, Ram Ratan and Ram Sewak
both sons of Bihari, who are residents of
the same village, for the reason of old
enmity pertaining to the passage of tractor
440 INDIAN LAW REPORTS ALLAHABAD SERIES
trolley of Raja Ram, assaulted him with
sticks. On an alarm raised by him, Ram
Ratan son of Dwarika R/o Lokpur, Police
Station Manjhila, District Hardoi, Dinesh
Kumar son of Raja Ram, Ram Swaroop son
of Bulaki, Hari Shankar and Majnu arrived
at the spot to save him, however, they were
also assaulted by the above accused persons
with lathis (sticks). Hue and cry made by all
of them attracted Babu Ram son of Dwarika,
Ram Lal son of Immer and many other
villagers, who challenged the accused
persons and saved him and others from
accused persons. It is further stated that the
accused persons after extending threats and
hurling abuses to them, fled away from the
scene of occurrence.

4. On the basis of above, written
application a First Information Report
(Ex. Ka-1) was registered at Police
Station Manjhila on 28.3.1994 at 9.15
A.M. against the above accused persons
at Case Crime No. 36 of 1994, under
Sections
323,
504,
506
IPC
and
Investigation of the same was entrusted to
Sub Inspector Shri Krishna Murari
Mishra.

5. The medical examination of the
injuries of the injured persons was done by
P.W.9- Dr. A.K. Jain on 28.3.1994 from
12.30 onwards who reported as under:-

Injured Majanu was examined by Dr.
A.K. Jain on 28.3.1994 at about 12.30
P.M. at P.H.C. Shahabad, who was
identified by Constable 316 Ram Singh of
Police Station Manjhila and following
injuries were found on his person:-

(I)
Injury
No.1-
lacerated
wound 1.5 cm. X 1 cm. X scalp deep on
the (Rt) side of head 4.5 cm. above root
of nose clotts present.

(II) Contusion 4.5 cm. X 2 cm.
To outer aspect and lower part of (Rt)
forearm 1 cm. Above (Rt) wrist joint.

All injuries were found simple
in nature caused by blunt object and
duration was about one day.

On the same day at about 12.40
P.M. injured Nanhi was examined and a
contusion of 5 cm. x 4 cm. on her lower
eyelid red was found and injury was
found simple caused by blunt object.
Duration was about one day.

On the same day at about 12.50
P.M. injured Hari Shankar was examined
and following injuries were found on his
person:-

(1) Lacerated wound 2 cm. X
0.5 cm. X scalp deep (Rt) top of head
11.5 cm. above rear of nose clotts present.

(2) Lacerated wound ''X' Ist leg
3.5 cm. X 0.5 cm. X bone deep IInd leg
3.4 cm. X 0.4 cm. X bone deep on the
(Rt) side of head 15.5. cm. above (Rt) of
ear, clotts present.

(3) Contusion 6 cm. X 2 cm. on
the back and outer aspect of left forearm
9.5 cm. above left elbow joint.

(4) Contusion 4 cm. X 2cm. on
the back of left thumb.

(5) Abraded contusions 3 cm. X
2 cm. on the back of (Rt) forearm 7 cm.
above (Rt) forearm.

All injuries were caused by
blunt object, were simple in nature and
duration was about one day.

On the same day at about 1.00
P.M. injured Vinod Kumar was examined and
following injuries were found on his person:-
3 All. Siya Ram & Anr. Vs. State of U.P.
441

(1) Abraded contusion 4 cm. X
2 cm. on the back of (Rt) middle finger 2
cm. above top of nail.

(2) Contused swelling 6 cm. X 5
cm. on the posterior aspect of (Rt) hand &
back of thigh just above of right thigh.
Kept under observation. Advise X-ray.

(3) Contused swelling 11 cm. X
9 cm. on the back of left hand 3 cm.
below from left wrist joint. Injury kept
under observation. Advise X-ray.

All injuries were caused by
blunt object and were simple in nature,
except injury no. (2) and (3) which are
kept under observation and X-ray was
advised. Duration was found to be of one
day.

On the same day at about 1.10
P.M. injured Ram Swaroop was examined
and following injuries were found on his
person:-

(1) Contusion 5 cm. X 4 cm. On
the left head 5.5. cm. above from upper
border of left ear pinna.

(2) Lacerated wound 1.4 cm. X
0.4 cm. X muscle deep on the left face 1
cm. away from outer angle of left arm.
Clotts present.

(3) Contusions 11 cm. X 3 cm.
on the back of left side of scapular region
upper part red.

(4) Contusion 5 cm. X 2 cm. at
the outer aspect of middle of Rt. Upper
arm. Red.

(5) Abraded contusion 7 cm. X
3 cm. on the right elbow. Red.

(6) Abraded contusion 1.5 cm. x
1.5 cm. at the outer aspect of Rt. Knee .
All injuries were simple in nature and
were caused by blunt object. Duration
was found to be of about one day.

On the same day at about 1.20
P.M.
injured
Dinesh
Kumar
was
examined and following injuries were
found on his person:-

(1) Contusion 15.5 cm. X 3 cm.
on the outer aspect & back of (Rt)
forearm, upper part red.

(2) Abraded contusion 3.5 cm.
X 2 cm. on outer aspect of left upper arm,
upper part red.

(3) Contusion 9 cm. X 2 cm. On
back of Right chest. Lower part red.

All injuries were simple in
nature caused by blunt object. Duration
ws found to be of about one day.

On the same day at about 1.30
P.M. injured Ram Ratan was examined
and following injuries were found on his
person:-

(1) Lacerated wound 3 cm. X
0.5 x scalp deep on the (Rt) side top of
head 7.5 cm. mid point (Rt) eye brow.
Clotts present.

(2) Contusion 10 cm. X 3 cm.
on the outer aspect of the back of (Rt)
elbow, 2.5 cm. above (Rt) forearm. Red.

(3) Contused swelling 8 cm. X 8
cm. on the back of left hand kept under
observation advise X-ray. Red.

(4) Abraded Contusion 6 cm. X
3 cm. on the left face just below outer
corner left eyebrow. Red.

(5) Abraded contusion 12cm. X
3 cm. on the back of (Rt) scapular region .

(6) Contusion 12 cm. X 3 cm.
on the back of chest (Rt) chest 18.5. cm.
below from 7th vertebra.

(7) Contusion 6 cm. X 3 cm. on
the outer aspect of left shoulder.

(8) Contusion 8 cm. X 2 cm. on
the front and upper part of left thigh. Red.

All injuries were simple except
injury no. (3) which was kept under
observation X-ray.

All injuries were caused by
blunt object. Duration was found to be of
about one day.

Deceased Raja Ram who at that
point to time was alive, was also
442 INDIAN LAW REPORTS ALLAHABAD SERIES
examined by Dr. A.K. Jain on the same
day at about 1.45 P.M. and following
injuries were found on his person:

1. Lacerated wound 3 cm. X 1
cm. X bone deep left head 11 cm. Left
trager of ear kept under observation Xray, advised.

2. Lacerated wound 1.5 cm. X 1
cm. X 0.5 cm. scalp deep on the left side
of fore head 6 cm. Above root of nose
kept under observation X-ray, advised.

3. Contusion 4 cm. X 2 cm. on
the left upper eye lid.

4. Contusion 11 cm. X 3 cm. on
the back of left forearm 8 cm. above left
wrist joint. Red. Kept under observation
X-ray, advised.

5. Contusion 8 cm. X 3 cm. on
the back of (Rt) forearm 5 cm. Behind
(Rt) oblique forward of (Rt) elbow joint.

All injuries were caused by
blunt object, simple in nature except
injury no. (1), (2) & (4) which were kept
under observation and X-ray was advised.
Duration was found to be of one day.

6. Injured/ informant Raja Ram was
admitted in District Hospital, Hardoi,
however during the course of treatment he
died on 29.3.1994 at at about 12.00 P.M.
Inquest of his dead body was performed
by Sub Inspector Mewa Singh- P.W.6 at
mortuary of District Hospital, Hardoi on
29.3.1994 at about 1.00 P.M. and a report
Ex. Ka-1A was prepared by him. He also
prepared other necessary papers for the
purpose of postmortem i.e. Ex. Ka-2 to
Ka-7 i.e. Challan lash, photo lash, chitthi
R.I.,Chitthi CMO and after sealing, the
dead body was given in the custody of
Constable Sukhlal and Constable Shri
Ram for the purpose of postmortem.

7. On 29.3.1994 at about 5.00P.M.,
Postmortem on the body of the deceased-
Raja Ram was conducted by PW-8 Dr.
C.N. Shukla, the then Senior Eye
Surgeon, District Hospital, Hardoi, who
received the dead body at 4.30 P.M. on
the same day and found that the deceased
was of about 50 years of age and a person
of average built. Eyes and mouth of the
deceased were closed. Rigor mortis was
present on the whole body. Following
injuries were found on the body of the
deceased:

1. Contusion 6 cm. X 2.5 cms.
over posterior lateral aspect of (Rt)
forearm 7 cm. above wrist.

2. Contusion 8 cm. X 5 cm.
over back of (Rt) elbow.

3. Contusion 8 cm. X 6 cm.
over (Rt) shoulder.

4. Contusion with Abrasion
over (left) side head frontal region, just
above forehead.

5. Stitched wound (3 stitches
present) 3 cm. X linear over left side head
frontal region 3 cms. above injury no. (4).

6. Contusion present in an area
of 12 cm. X 8 cm. of head including,
temporal adjoining parietal, and frontal
region left side with ceehy moses in both
lids of left eye parietal and temporal
bones were fractured.

On internal examination the
membranes
and
brain
were
found
lacerated with hematoma, four ounces of
fluid was found in the stomach, while in
the small intestine liquid faecal and gases
and in large intestine faecal matter and
gases were found. Liver was found
weighing about 1000 gm. and gallbladder
was found half full. Urinary bladder was
empty, no abnormal defect was found in
spleen and kidneys.

In the opinion of the doctor
death of the deceased occurred due to
shock and coma as a result of ante-
3 All. Siya Ram & Anr. Vs. State of U.P.
443
mortem injuries. P.W.9- Dr. C.N. Shukla
has
stated
to
have
prepared
the
postmortem report in his hand writing and
signatures as Ex. Ka-8.

8. Due to the death of injured Raja
Ram on 29.3.1994 at about 12.00 P.M. at
District Hosptial, Hardoi, investigation of
the case was altered under Section 304
IPC
vide
G.D.
entry no.12
dated
31.3.1994.

9. The investigating officer after
completion of the investigation submitted
charge sheet against all appellants under
Sections 304, 323, 325 and 504 IPC.

10. On the case being committed to
the court of sessions the charges under
Sections 302/34, 325/34, 323/34, 506 IPC
were framed against all appellants, who
denied the charges and claimed trial.

11. Prosecution in order to prove its
case relied on following documentary
evidence.:-

(I)
Ex.
Ka-1
(Application/ FIR)

(II)Ex.
Ka-1
A
(Inquest report)

(III)
Ex.
Ka-2
(Form No.13)

(IV)
Ex.
Ka-3
(Photo lash)

(V)
Ex.
Ka-4
(Chitthi R.I.)

(VI)Ex.
Ka-5
(Chitthi CMO)

(VII)Ex.
Ka-6
(Memo of cloth of deceased)

(VIII)Ex.
Ka-7
(Sample of seal)

(IX)Ex.
Ka-8
(Postmortem report of deceased Raja
Ram)

(X)Ex.
Ka-9
(Medical Report of Majanu)

(XI)Ex.
Ka-10
(Medical report of Smt. Nanhi Devi)

(XII)Ex.
Ka-11
(Medical report of Hari Shankar)

(XIII)
Ex.
Ka-12
(Medical report of Vinod Kuamr)

(XIV)
Ex.
Ka-13
(Medical report of Ram Swaroop)

(XV)
Ex.
Ka-14
(Medical report of Dinesh Kumar)

(XVI)
Ex.
Ka-15
(Medical report of Ram Ratan)

(XVII)
Ex.
Ka-16
(Medical report of Raja Ram)

In
addition
to
the
above
documentary evidence, the prosecution
also testified following witnesses in its
favour:-

(I)
P.W.1
-Dinesh
Kumar
(Eye witness/ son of informant-

Raja Ram)

(II)
P.W.2-
Ram
Ratan
(Injured eye witness)

(III)
P.W.3-
Smt.
Nanhi
(Injured eye witness)

(IV) P.W.4- Ram Swaroop
(Injured eye witness)

(V)
P.W.5-
Chhabi
Nath
(Witness Panchayat Nama)

(VI) P.W.6- S.I. Mewa Singh
( Prepared inquest report and
444 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary papers for postmortem)

(VII)
P.W.7-
Tula
Ram
(Scribe of the FIR)

(VIII) P.W.8- Dr. C.N. Shukla
(Conducted the postmortem)

(IX) P.W.9- Dr. A.K. Jain
(Examined injured persons)

12. We have noticed the statement
of prosecution witnesses as under:-

P.W.1- Dinesh Kumar, who is
the son of the deceased Raja Ram, has
stated about the existence of enmity in
between
his
father
and
appellants
pertaining to use of the passage which
falls in front of the houses of appellants
by deceased Raja Ram for his tractortrolley. This witness has further stated
that on the fateful night at about 8.00
P.M. when his father was going to extend
Holi Greetings and reached in front of the
house of Kaptan Singh all appellants
started assaulting him with sticks. He
further stated that on alarm raised by his
father, he along with his uncle Ram
Ratan, aunt Smt. Nanhi Devi, brother
Vinod Kumar, Ram Swaroop, Hari
Shankar and Majanu arrived at the spot
and attempted to save his father, on which
he and other persons of his side were
assaulted by appellants by sticks. On a
noise made by them, Babu Ram, Ram Lal
and other villagers came at the spot and
saved them. Appellants after hurling
abuses and intimidating them fled away
from the scene of occurrence. He further
stated that on the next morning all injured
persons and his father Raja Ram went to
Police Station Manjhila and lodged the
report scribed by Tula Ram. He identified
the signatures of his father on the First
Information
Report
and
also
acknowledged that Tula Ram has only
written what was stated by his father-
Raja Ram. He also stated that due to
deteriorated condition of his father he was
admitted in District Hospital, Hardoi.
However, due to the injures sustained by
him, he died in the hospital during the
course of treatment.

P.W.2- Ram Ratan, who is the
brother of the deceased- Raja Ram has
corroborated the story of prosecution as
stated in the First Information Report and
has stated that on the fateful night when
he and his brother Raja- Ram were going
to extend Holi Greetings all appellants,
who were carrying sticks with them,
assaulted them in front of the house of
Kamta @ Kaptan Singh. According to
him, on an alarm raised by them, Vinod,
Ram Swaroop, Dinesh Kumar, Smt.
Nanhi Devi, Hari shankar and Majanu
came at the spot who were also beaten by
the appellants. Thereafter other villagers
and his brother Babu Ram came and
appellants after abusing and intimidating
them fled away from the scene. He further
stated that appellants were having enmity
with his brother- Raja Ram on the basis of
dispute pertaining to the passage of the
tractor-trolley from the 'Galiyara' situated
in front of the house of Data Ram. He
stated that the injuries of the injured
persons were treated at Government
Hospital, Shahabad from where he and
his brother Raja Ram was referred to
District
Hospital,
Hardoi.
He
acknowledged
that
the
Investigating
Officer recorded his statement.

P.W.3- Smt. Nanhi Devi, who
is the wife of P.W.2- Ram Ratan has
stated about the enmity of the appellants
with the brother of her husband Ram
Ratan (Raja Ram)for the reason that the
tractor trolley owned by Raja Ram from
used the passage situated in front of the
houses of the appellants. She further
stated that on the fateful day and time
3 All. Siya Ram & Anr. Vs. State of U.P.
445
when her 'Jeth' (Raja Ram) arrived in
front of the house of Kamta Nai,
appellants started beating him with lathis
and on an alarm made by Raja Ram, she
and other family members of her house
rushed to the scene of occurrence and
they
were
also
assaulted
by
the
appellants. She claimed that on alarm
being raised by them, her Jeth- Babu Ram
and many other villagers came at the
scene. She along with other injured
persons went to Police Station Manjhila
and got their injuries examined at
Government Hospital, Shahabad. Her
husband and Jeth Raja- Ram were
referred to District Hospital, Hardoi,
where
Raja
Ram
died.
She
also
acknowledged that her statement was
recorded by the Investigating Officer.

P.W.4- Ram Swaroop has been
declared hostile, who in his statement has
stated that on the fateful night at about
8.00 P.M. when he was in his house, he
heard an alarm being raised by Raja Ram
and Ram Ratan and when he arrived at
the scene of the occurrence, near the
house of Kaptan Singh, he was also
assaulted by some one by striking a blow
of lathi on his head, whereby he became
unconscious and could not see appellants
assaulting Ram Ratan and Ram Sewak.
On being cross examined by the public
prosecutor he admitted that he went to the
Police Station Majhila and Government
Hospital Shahabad on the next day, where
his injuries were treated and Ram Ratan,
Raja Ram and Vinod Kumar who were
severely injured, were referred to District
Hospital, Hardoi.

P.W.5- Chhabi Nath is a
witness of Inquest (Panchayat Nama) who
acknowledged his signatures on the
inquest report.

P.W.6- S.I. Mewa Singh has
stated that he performed the inquest of the
body of deceased Raja Ram and also
prepared necessary papers for the purpose
of postmortem and has proved those
papers as Ex. Ka-1 to Ex. Ka-7.

P.W.7- Tula Ram is the scribe
of FIR, who stated that he wrote the FIR
Ex. Ka-1, which and the report was
signed by Raja Ram and thereafter it was
given to the clerk of the Police Station.

P.W.8- Dr.C.N. Shukla has
stated that he performed postmortem on
the body of deceased Raja Ram. He stated
to have prepared the postmortem report in
his signatures and hand writing and also
stated about the injuries and other
examination made by him which has been
elaborately discussed in paragraph 7 of
this judgment.

P.W.9- Dr. A.K. Jain has also
stated to have examined the injuries of
injured persons from the informant side.
He has proved the injury reports of the
injured persons Smt. Nanhi Devi, Majanu,
Hari
Shankar,
Vinod
Kumar,
Ram
Swaroop, Dinesh Kumar, Ram Ratan and
Raja Ram under his signatures and hand
writing as Ex. Ka-9 to Ka-16. Detailed
description of the injuries found by him
on the body of injured persons has been
elaborately stated in paragraph 5 of this
judgment.

13. After closure of evidence of
prosecution statement of all appellants
were recorded under Section 313 of the
Cr.P.C., wherein they have denied to have
caused injuries to the informant or other
injured persons and claimed that in fact
appellants- Ram Sewak and Data Ram
were assaulted by Ram Ratan and others
and a cross FIR pertaining to that incident
was lodged by appellant Data Ram and he
was also medically examined. However,
appellants choose not to adduce any
witness in their favour.
446 INDIAN LAW REPORTS ALLAHABAD SERIES

14. The appellants after recording
their statements under Section 313
Cr.P.C. have filed four documents in their
defence
by
list
61B,
along
with
application 60 B, which were taken on
record vide order of trial Court dated
24.2.2005. The detail of these documents
is as under ;

The first document 61B/2, filed
by appellants in their defence is a
certified copy of the FIR, Chick no. 44/94
lodged by appellant- Data Ram on
28.3.1994 at 10.45 A.M. against Raja
Ram, Ram Ratan, Hari Shankar and Shiv
Raj under Sections 323, 504 IPC which
was registered as NCR and was modified
as Case Crime No. 78/95 on 17.6.1995
under Sections 325, 323, 504 IPC on the
basis of X-ray report, with the allegations
that on 27.3.1994 at 8.00 P.M. when Data
Ram was extending greetings of Holi, in
front of his house the above accused
persons assaulted him, his brother- Ram
Sewak and son of Data Ram. It is further
alleged that witnesses named therein and
other villagers saved them.

Next document 61B/4, is a
certified copy of the Final Report
(Closure
Report)
submitted
by
the
Investigation Officer, pertaining to the
above case stating that the investigation
of the case is closed as the allegations of
the FIR were found false.

Third document 61B/6 is a
certified copy of Site Plan of the alleged
occurrence of the above mentioned case
lodged by appellant Data Ram.

Fourth document i.e. 61B/8, is a
certified copy of the complaint of
complaint case no. 2971 of 2003 filed by
appellant Data Ram on 18.9.2003 against
Ram Ratan and Hari Shankar under
Sections 323, 325, 504 and 506 iPC.

Apart from above documents
one report dated 18.4.1994 submitted by
Medical Officer, District Jail Hardoi to
J.M. Hardoi, is also on record which
stated that under orders of the Court dated
12.4.1994, Xray of Data Ram and Ram
Sewak
was
performed,
in
District
Hospital Hardoi, wherein a finger of Ram
Sewak was found fractured. However, no
fracture has been found on the person of
Data Ram.

15. Learned trial Court after
appreciating the evidence available on
record came to the conclusion that the
prosecution has been able to prove its
case
beyond
reasonable
doubt
and
therefore convicted all the appellants for
committing the offences under Sections
302/34, 325/34 and 323/34 IPC and
sentenced all the appellants in the manner
stated herein before, in paragraph two of
this judgment.

16. Aggrieved by the judgment and
order of the trial court the appellants have
challenged the same by filing instant
appeals.

17. Learned counsel for the
appellants,
while
referring
to
the
judgment of the trial court submits that
the trial court in order to convict the
appellants has relied on inadmissible
evidence, completely ignoring the fact
that it is a case where the appellants had
claimed
that
it
was
actually
the
informant's side who had assaulted the
appellants and by such assault appellants
sustained injuries on their persons, which
were not explained by the prosecution.
Therefore, he submits that the trial court
has committed an illegality by not
appreciating the evidence available on
3 All. Siya Ram & Anr. Vs. State of U.P.
447
record in the light of the cross case and
cross version of the incident.

He further submits that the
prosecution has not explained the injuries
sustained by the appellant- Data Ram and
others while it was the incumbent duty of
the prosecution to explain as to how the
injuries have been sustained by the
appellants.

It is further submitted that
independent witnesses have not been
produced by the prosecution and the
witnesses of the fact who have been
produced by the prosecution i.e. P.W.1-
Dinesh, P.W.2- Ram Ratan and PW-.3-
Smt. Nanhi, are all blood relatives,
therefore he submits that the prosecution
purposely
withheld
the
independent
witnesses and have produced only those
witnesses, who are relatives of the
deceased.

He further submits that the
evidence of the prosecution witnesses is
not reliable and they are not truthful,
therefore, the trial court has erred in
convicting the appellants.

He further submits that even if
the story of the prosecution is taken on its
face value the alleged act of appellants
could not travel beyond 325 IPC, as there
was no intention of the appellants to
cause death of deceased- Raja Ram and
this fact has been completely ignored by
the trial court.

Learned
counsel
for
the
appellants relied on following case laws:-

(1) Mani Vs. State of Kerala
and others (2019) 2 SCC Crl. Page 1.

(2) Ranbir Vs. State (NCT ) of
Delhi (2019) 2 SCC Crl. 746.

(3) Laxmi Chand and another
Vs. State of U.P. (2019) 1 SCC Crl. 368.

(4) Tula Ram Vs. State of
Madhya Pradesh (2018)3 SCC Crl. 358.

(5) Ram Pratap and others Vs.
State of Rajashthan (2018) 3 SCC Crl.
214.

(6) Manoj Kumar Vs. State of
Himachal Pradesh (2018) 3 SCC Crl. 33.

(7) Lavghan Bhai Devji Bhai
Vasavas Vs. State of Gujrat (2018) 2
SCC Crl. 461.

(8) Atul Thakur Vs. State of
Himachal Pradesh (2018) 1 SCC Crl.
743.

(9) Mahendra Mulji Kerai
Patel Vs. State of Gujrat (2008) 14 SCC
690.

18. Learned AGA while supporting
the judgment of the trial court submits
that requisite standard of proof beyond
reasonable doubts has been achieved by
the prosecution before the trial court and
all prosecution eye witnesses who were
produced before the court below are
injured witnesses and therefore their
testimony could not be easily brushed
aside, therefore no error has been
committed by the trial court in accepting
the reliable testimony of injured eye
witnesses.

He further submits that the
appellants have not specifically taken the
plea of self defence and they have never
said that they in exercise of any right of
private
defence
had
assaulted
the
deceased and other injured persons,
therefore the trial Court was not obliged
to consider their reluctant plea of private
defence, however the trial Court has
elaborately considered this issue and
recorded a finding that no right of private
defence was available to the appellants
and therefore there appears no illegality
or error in the judgment of the trial court.

He
further
submits
that
prosecution is not obliged to explain the
448 INDIAN LAW REPORTS ALLAHABAD SERIES
superficial injuries found on the person of
appellant, unless it is proved that the
injuries were sustained in the same
incident.

He
further
submits
that
testimony of all eye witnesses is reliable
and truthful and the medical evidence also
corroborates the same. The enmity in
between the parties is an admitted fact, as
they were having 'ranjish' with regard the
passage of tractor-trolley of Raja Ram
through ''Galiyara' situated in front of
house of appellant- Data Ram and it has
also come in the evidence that two days
prior to the incident a wall of the house of
Data Ram was demolished by the trolley
of deceased- Raja Ram. Otherwise also in
a case based on direct evidence, the
motive looses its significance.

He further submits that the court
below has not committed any illegality or
irregularity either in appreciation of
evidence or application of law and
therefore, no interference in the judgment
of the trial court is warranted as from the
conduct of the appellants it was apparent
that they were having a common intention
to cause death of deceased- Raja Ram and
to inflict injuries to the injured persons.
Therefore the trial Court has committed
no error in convicting the appellants.

19. Having heard the submissions of
Ld. Counsel for the parties we deal with
the first argument of Learned counsel for
the appellants that the informant's side
actually assaulted the appellants whereby
the appellants- Data Ram and others
sustained injuries and a cross report
pertaining to this incident was lodged by
appellant- Data Ram but the court below
has ignored this material fact.

The law relating to the right of
private defence of person and property is
found under Section 96 to 106 of the
Indian
penal
code.
The
provisions
contained in these sections give authority
to a man to use necessary force against an
assailant or wrong-doer for the purpose of
protecting ones body and property when
immediate aid from the state machinery is
not readily available and in doing so he is
not answerable in law for his deeds.

Honble Supreme Court in a
landmark decision Darshan Singh Vs.
State of Punjab and Ors. reported in
MANU/SC/0044/2010 after analyzing
many judgments of the Hon'ble Supreme
Court as well as of High Courts
formulated following principles :-

"58. .........

(i) Self-preservation is the basic
human instinct and is duly recognized by
the criminal jurisprudence of all civilized
countries. All free, democratic and
civilized countries recognize the right of
private defence within certain reasonable
limits.

(ii) The right of private defence
is available only to one who is suddenly
confronted with the necessity of averting
an impending danger and not of selfcreation.

(iii)
A
mere
reasonable
apprehension is enough to put the right of
self defence into operation. In other
words, it is not necessary that there
should be an actual commission of the
offence in order to give rise to the right of
private defence. It is enough if the
accused apprehended that such an
offence is contemplated and it is likely to
be committed if the right of private
defence is not exercised.

(iv) The right of private defence
commences as soon as a reasonable
apprehension arises and it is co- terminus
with the duration of such apprehension.
3 All. Siya Ram & Anr. Vs. State of U.P.
449

(v) It is unrealistic to expect a
person under assault to modulate his
defence step by step with any arithmetical
exactitude.

(vi) In private defence the force
used by the accused ought not to be
wholly disproportionate or much greater
than necessary for protection of the
person or property.

(vii) It is well settled that even if
the accused does not plead self-defence, it
is open to consider such a plea if the
same arises from the material on record.

(viii) The accused need not
prove the existence of the right of private
defence beyond reasonable doubt.

(ix) The Indian Penal Code
confers the right of private defence only
when that unlawful or wrongful act is an
offence.

(x) A person who is in imminent
and reasonable danger of losing his life
or limb may in exercise of self defence
inflict any harm even extending to death
on his assailant either when the assault is
attempted or directly threatened."

Honble
Supreme
Court
in
Babulal Bhagwan Khandare and Ors.
Vs. State of Maharashtra reported in
MANU/SC/1026/2004 , opined as under
:-

"26....................Only
other
question which needs to be considered, is
the alleged exercise of right of private
defence. Section 96, IPC provides that
nothing is an offence which is done in the
exercise of the right of private defence.
The
Section
does
not
define
the
expression 'right of private defence'. It
merely indicates that nothing is an
offence which is done in the exercise of
such right. Whether in a particular set of
circumstances, a person legitimately
acted in the exercise of the right of
private defence is a question of fact to be
determined
on
the
facts
and
circumstances of each case. No test in the
abstract for determining such a question
can be laid down. In determining this
question of fact, the Court must consider
all the surrounding circumstances. It is
not necessary for the accused to plead in
so many words that he acted in selfdefence. If the circumstances show that
the
right
of
private
defence
was
legitimately exercised, it is open to the
Court to consider such a plea. In a given
case the Court can consider it even if the
accused has not taken it, if the same is
available to be considered from the
material on record. Under Section 105 of
the Indian Evidence Act, 1872 (in short
'the Evidence Act'), the burden of proof is
on the accused, who sets up the plea of
self-defence, and, in the absence of proof,
it is not possible for the Court to presume
the truth of the plea of self-defence. The
Court shall presume the absence of such
circumstances. It is for the accused to
place necessary material on record either
by himself adducing positive evidence or
by eliciting necessary facts from the
witnesses examined for the prosecution.
An accused taking the plea of the right of
private
defence
is
not
necessarily
required to call evidence; he can
establish his plea by reference to
circumstances
transpiring
from
the
prosecution evidence itself. The question
in such a case would be a question of
assessing
the
true
effect
of
the
prosecution evidence, and not a question
of the accused discharging any burden.
Where the right of private defence is
pleaded,
the
defence
must
be
a
reasonable
and
probable
version
satisfying the Court that the harm caused
by the accused was necessary for either
warding off the attack or for forestalling
the further reasonable apprehension from
450 INDIAN LAW REPORTS ALLAHABAD SERIES
the side of the accused.