# State of U.P v. Bharthu and others

- **Citation:** (2005) 2 ILRA 514
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-27
- **Case number:** Government Appeal No.646 of 1982
- **Bench:** M.C. Jain, M. Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-bharthu-and-others-40482
- **Pages:** 10

## Headnote

Sri P.N. Misra
Sri Apul Misra
Sri Mahendra Pratap

(A)
Indian
Penal
Code-S-149/325
offence-un law full assembly-cause of
death-fatal
blunt
weapon
injuries
inflicted-according
to
eye
witnesses
Lathi blow not repeated-inference drawn
about the common object of unlawful
assembly was not murder but to caused
the gravies injuries.

Held: Para 22

It is to be noted that lathi blow was not
repeated on the head of the deceased,
though simple injuries were caused to
the three injured witnesses who had
come to the rescue of Ram Karan. So,
considering all these facts, it should
justifiably be inferred that common
object of the unlawful assembly was not
murder, but only to cause grievous
injuries (to Ram Karan). However, a
single forceful blow of lathi landed on
the head of Ram Karan and he happened
to die.

(B) U.P. Children Act 1951-S-2 (4), 27- at
the time of occurrence-the age of
accused was below 16 years at the time
of hearing the appeal about 41 years-No
question
of
sending
him
approved
school-despite of the finding of guiltyentitled to the benefit of children Act.

Held: Para 26

In the instant case also, the benefit of
Children Act should be afforded to the
appellant
Chandradhari.
Though
the
accused respondent Chandradhari was
under 16 years of age at the time of
incident, but must be about 41 years of
age presently. Therefore, there can be no
question of sending him to an approved
school now. So, we would convict the
accused respondent Chandradhari under
Sections 147 I.P.C., 325 I.P.C. read with
Section 149 I.P.C. and 323 I.P.C. read
with Section 149 I.P.C. but no sentence
would be passed against him as he is
entitled to the benefit of Children Act.
Case law discussed:
1997 SCC 720

## Text

514 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
contemplate payment of salary to two
persons simultaneously against one post.
The word "Pay" has been defined in the
Uttar
Pradesh
Fundamental
Rules,
contained in Chapter II of Part III of
Financial Handbook Volume 2, Part II to
IV as follows:-

"21. Pay means amount drawn
monthly by a Government servant as -

(i) the pay, other than special pay or
pay granted in view of his personal
qualifications, which has been sanctioned
for a post held by him substantively or in
an officiating capacity, or to which he is
entitled by reason of his position in a
cadre."

14. A perusal of the first sentence
clearly connotes "a" Government Servant
granted pay for "a" post held by him
substantively/officiating or by reason of
his position in a cadre. Thus, the rules
clearly
define
payment
to
"a"
government servant against "a" post
which conversely amounts to prohibiting
payment to two persons against one post.
The stand taken by the respondents of
paying salary to two persons and taking
work only from one is a clear defiance of
logic and rules as well.

Thus, in view of the above, we
dispose of this appeal with the following
directions:-

(1) An officer not below the rank of
Special Secretary of the Department of
Agriculture,
Government
of
Uttar
Pradesh, Lucknow shall hold a fullfledged
enquiry
as
under
what
circumstances, any officer of the State
could pass an order that on one post two
persons shall be posted and paid their
salary and one of them shall not work,
and would take appropriate action against
the said officer who was responsible for
passing such an illegal order.
(2) The reasoning given by the learned
Single Judge is not supported by law.
Therefore, the appeal succeeds to the
extent indicated above. The judgment and
order impugned dated 12.05.2005 is
hereby set aside.
(3) As this seems to be a case where the
parties are fighting for ego satisfaction
and large number of writ petitions as well
as contempt petition have been filed by
the appellant as well as the respondent
no.5, making the Court a battle ground to
achieve their purpose, it is desirable that
both the officers be placed somewhere
else.

(4) We
request
the
so-called
administration to transfer the appellant as
well as the respondent no.5 from district
Etah to different districts forthwith.

15. A copy of this order be sent by
the Registrar of this Court directly to
Special Secretary of the Department of
Agriculture,
Government
of
Uttar
Pradesh, Lucknow for compliance.
Appeal Disposed of.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2005

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE M. CHAUDHARY, J.

Government Appeal No.646 of 1982

State of U.P.

...Appellant
Versus
Bharthu and six others ...Respondents
2 All] State of U.P. V. Bharthu and others

 515
Counsel for the Appellant:
Sri R.S. Sengar
A.G.A.

Counsel for the Respondents:
Sri P.N. Misra
Sri Apul Misra
Sri Mahendra Pratap

(A)
Indian
Penal
Code-S-149/325
offence-un law full assembly-cause of
death-fatal
blunt
weapon
injuries
inflicted-according
to
eye
witnesses
Lathi blow not repeated-inference drawn
about the common object of unlawful
assembly was not murder but to caused
the gravies injuries.

Held: Para 22

It is to be noted that lathi blow was not
repeated on the head of the deceased,
though simple injuries were caused to
the three injured witnesses who had
come to the rescue of Ram Karan. So,
considering all these facts, it should
justifiably be inferred that common
object of the unlawful assembly was not
murder, but only to cause grievous
injuries (to Ram Karan). However, a
single forceful blow of lathi landed on
the head of Ram Karan and he happened
to die.

(B) U.P. Children Act 1951-S-2 (4), 27- at
the time of occurrence-the age of
accused was below 16 years at the time
of hearing the appeal about 41 years-No
question
of
sending
him
approved
school-despite of the finding of guiltyentitled to the benefit of children Act.

Held: Para 26

In the instant case also, the benefit of
Children Act should be afforded to the
appellant
Chandradhari.
Though
the
accused respondent Chandradhari was
under 16 years of age at the time of
incident, but must be about 41 years of
age presently. Therefore, there can be no
question of sending him to an approved
school now. So, we would convict the
accused respondent Chandradhari under
Sections 147 I.P.C., 325 I.P.C. read with
Section 149 I.P.C. and 323 I.P.C. read
with Section 149 I.P.C. but no sentence
would be passed against him as he is
entitled to the benefit of Children Act.
Case law discussed:
1997 SCC 720

(Delivered by Hon'ble M.C. Jain, J)

1. Seven accused respondents were
tried in Sessions Trial No.354 of 1980
before the VII Additional Sessions Judge,
Azamagarh. They were (1) Bharthu, (2)
Bhuwal, (3) Bechoo, (4) Chandradhari,
(5) Chander, (6) Sheobaran and (7)
Chulli. All of them faced charges under
Sections 302 read with Section 149 I.P.C.
and 323 I.P.C. Three of them, namely,
Bharthu, Bhual and Sheobaran were
charged for the offence of rioting under
Section 148 I.P.C. as they were allegedly
armed with spears and rest under Section
147 I.P.C. being armed with lathis.
Bharthu and Bhuwal are real brothers
being sons of Bhusi and Chandradhari is
the son of Bharthu. All of them were
acquitted whereagainst the State has
preferred this appeal.

2. One Ram Karan died in the
incident. He was the nephew of Raja
Ram, informant PW 1, who also happened
to be an injured of the felony. Antu PW 2
and Munesar PW 3 also received injuries
in the incident which occurred on
5.7.1980 at about 11A.M. in village
Chandpur
Khalsa,
P.S.
Nijamabad,
District Azamgarh. The report was lodged
by Raja Ram PW 1 (nephew of the
deceased) the same day at 2.05 P.M. The
distance of the police station from the
place of occurrence was about 5 miles.
516 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
3. The case in its broad essentials, as
revealed from the F.I.R. and the evidence
adduced in the court was thus: On the
fateful day and time, the informant Raja
Ram PW 1 was at his house. His uncle
Ram Karan was taking the bullocks to his
grove for tying them after doing work in
his paddy field. On account of earlier
litigation
and
enmity,
Bharthu
and
Bhuwal accused appeared there armed
with spears and stopped his uncle Ram
Karan from going towards the grove
along with bullocks, saying that it was not
the Rasta from abadi land. There was
heated exchange of words between Ram
Karan on the one hand and Bharthu and
Bhuwal on the other. Raja Ram also
reached on the spot. Meanwhile, the
remaining
accused
respondents
also
reached there out of whom Sheobaran was
armed with spear and rest had lathis. Ram
Karan shouted for help and his uncles
Antu and Munesar rushed up for his help.
The accused persons started launching
assault on Ram Karan with lathis and
spears. When Raja Ram tried to come to
his rescue, he, too, was assaulted by lathis
as also Antu and Munesar. Ram Karan
injured fell down. Baldhari, Sukhai,
Dilram PW 3 etc. reached there and
intervened. The accused persons then
went away. The condition of Ram Karan
was serious. He was removed on a cot,
but succumbed to his injuries on the way
to police station. Therefore, with the dead
body, Raja Ram went to police station and
lodged the F.I.R. On the basis of it check
report was prepared and the case
registered.

4. Dr C.P. Singh PW 6 medically
examined Raja Ram, Munesar and Antu
in the evening of 5.7.1980 from 6.30 P.M.
to 7.10 P.M. The details of their injuries
are given below:
Raja Ram:

1. Contusion measuring 6 cm x 1.5 cm
on the right shoulder 10 cm lateral to
base of the neck with red colour and
local tenderness.
2. Contusion measuring 11 cm x 1.5 cm
on the outer aspect of the right
shoulder joint with red colour and
local tenderness.
3. Contusion measuring 21 cm x 2 cm on
the left side of the back continuing on
the right side also, 5.5 cm parallel to
medial
border
of
the
scapula
extending from left flank obliquely
upwards, medially with red colour
and local tenderness.
4. Contusion measuring 10 cm x 1 cm on
the left shoulder along the upper
border of the left scapula with red
colour and local tenderness.

5. Abrasion 1 cm x 1 cm on the left side
of the chest 2 cm below mid of the left
clavicle bone.
6. Contusion measuring 4 cm x 1 cm on
the dorsum of the left palm bone base
of the ring, middle and index finger
with red colour and local tenderness.

All the injuries were simple in
nature. Injuries no.1, 2, 3, 4 and 6 were
caused by blunt object and injury no.5
was caused by friction. They were fresh.

Munesar:
1. Contusion 6 cm x 1.5 cm on the
outer aspect of right upper arm 12
cm below outer prominence of the
left shoulder joint with red colour
and local tenderness.
2. Contusion measuring 5 cm x 1 cm
on the outer border of the left elbow
joint with red colour and local
tenderness.
2 All] State of U.P. V. Bharthu and others

 517
3. Contusion measuring 7 cm x 1.5 cm
on the front of the right forearm, 11
cm below mid of the right elbow
joint with red colour and local
tenderness.
4. Abrasion on the Ist phalangial joint
of the middle and ring finger with
dried serum on the surface.

All the injuries were simple in
nature. Injuries no.1, 2 and 3 were caused
by blunt object and injury no.4 by
friction. They were fresh.

Antu:
1. Contusion 4.5 cm x 2 cm on the
outer aspect of the mid of the left
upper arm with red colour and
local tenderness.
2. Contusion 3 cm x 1.5 cm on the
dorsum of the base of the left palm
just near the base of the index and
middle finger with red colour and
local tenderness.
3. Contusion measuring 17 cm x 2 cm
on the mid of the back lying
transversely with red colour and
local tenderness.

All the injuries were simple in nature
and caused by blunt object. They were
fresh.

5. The investigation was taken up by
S.I. Narendra Prasad Tripathi PW 7. He
inspected the dead body and prepared the
inquest report including other necessary
papers. After being sealed, the dead body
was sent for post-mortem. The spot was
inspected by him on 6.7.1980. The
investigation was conducted as usual and
there is nothing particular to say about it.

6. The post-mortem over the dead
body of the deceased was conducted on
6.7.1980
at
3
P.M.
by
Dr
K.C.
Chakrabarti PW 5. The deceased was
aged about 65 years and about one day
had passed since he died. The following
ante-mortem injuries were found:

1. Lacerated wound 2 cm x 1 cm x skull
deep on the front of head, 15 cm
above bridge of nose.
2. Traumatic swelling 38 cm x 30 cm
involving left cheek, left temporal,
whole scalp (head), right temporal,
right side of head and back side.
3. Abrasion 3 cm x 2 cm in front of right
ear
associated
with
traumatic
swelling of right temporal.
4. Abrasion 2 cm x 2 cm on the top of
right shoulder joint.

7. On internal examination, clotted
blood was found in the skull. Frontal,
both temporal and parietal as also
occipital
bones
were
fractured.
Membranes were ruptured and brain
contained clotted blood.

8. The defence was of denial.
Bharthu claimed possession over the
disputed land. The witnesses were said to
belong to one party and on account of
enmity, they had allegedly joined hands
against them (accused).

9. At the trial, the prosecution
examined eight witnesses out of whom
Raja Ram PW 1, Antu PW 2, Dilram PW
3 and Munesar PW 4 were witnesses of
fact. Three of them, namely, Raja Ram
PW 1, Antu PW 2 and Munesar PW 4
were themselves injured. Rest were
Doctors, Investigating Officer etc.

10. The trial judge, in the main, held
that the witnesses, being connected with
each other, were not independent. He
518 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
found them to be untrustworthy and their
testimony
inconsistent
with
medical
evidence.
According
to
him,
the
investigation was also faulty. He held that
the case could not be deemed to be
proved.

11. We have heard Sri R.S. Sengar,
learned A.G.A. from the side of the State
and Sri P.N. Misra, learned Senior
Advocate for the accused respondents.

12. Learned A.G.A. has argued that
the trial judge committed error in
doubting the eyewitness account rendered
by the four eyewitnesses out of whom
three
were
themselves injured. He,
according to him, also wrongly held that
the statements of the eyewitnesses were
not consistent with the medical evidence
and that the investigation of the case was
not fair. It has been urged that the
participation
of
seven
accused
respondents in the commission of this
crime in murdering Ram Karan and
causing injuries to three others, namely,
Raja Ram, Antu and Munesar was proved
to the hilt. The offences, he urged, were
committed in the prosecution of the
common object of an unlawful assembly
having been formed by them. On the other
hand, the learned counsel for the accused
respondents has tried to support the
acquittal. It has been submitted by him
that three accused respondents had
allegedly wielded spears, but no spear
injuries were sustained either by the
deceased or the injured persons. So, the
manner of assault as spoken by the
eyewitness was surrounded in dubious
circumstances. He also urged that the
accused respondent Chandradhari was
less than 16 years of age at the time of the
alleged incident and, in any case, he was
entitled to the benefit of Children Act.
13. The record of the case is before
us and we have carefully examined it to
cross check the findings of the trial judge
and to weigh the worth of the arguments
advanced from the two sides.

14. We find that Raja Ram PW 1,
Antu PW 2, Dilram PW 3 and Munesar
PW 4 rendered eyewitness account of the
incident. Raja Ram PW 1 is the
informant. He and the eyewitnesses Antu
PW 2 and Munesar PW 4 are injured also.
Raja Ram PW 1 is the nephew of the
deceased Ram Karan and Antu PW 2 and
Munesar PW 4 are the real brothers of the
deceased. Dilram PW 3 is an independent
witness resident of the same village
whose name finds place in the F.I.R. too.
Raja Ram PW 1 narrated the prosecution
case as set out earlier that on the fateful
day at about 11 A.M. his uncle Ram
Karan was taking the bullocks to his
grove for tying them. On account of
enmity and the dispute over the land, the
accused respondents Bhartu and Bhuwal
(brothers) appeared armed with spears
and stopped his uncle from going towards
the grove along with bullocks, saying that
it was not Rasta. There was exchange of
hot words between Ram Karan on the one
hand and Bharthu and Bhuwal on the
other. He also reached there. His uncles
Antu and Munesar also reached there.
Meanwhile
Sheobaran,
Bechu,
Chandradhari, Chandar and Chulli also
came there. Out of them, Sheobaran was
armed with spear and rest had lathis. All
of them started attacking his uncle Ram
Karan with their weapons. He tried to
save, but was assaulted by lathis. Ram
Karan was injured and fell down. Antu
and Munesar were also assaulted by the
accused with lathis. Then Baldhari,
Sukhai, Dilram etc. reached there and
intervened. He gave topography too that
2 All] State of U.P. V. Bharthu and others

 519
the grove of his family was in the north
eastern side of the abadi land through
which Ram Karan was taking the bullocks
to the grove. He and his uncle were
residing in the same house separately, the
door of which was in the west. Towards
north was the abadi land. In between,
there were two houses. Through the abadi
land, there was passage and cattle used to
pass
through
it
from
before
the
occurrence. His Madai was in the north
and that of Bharthu accused was towards
west and both of them had possession
over this land from before the occurrence.
There was a civil case also regarding this
land. Bharthu used to ask him to remove
the Madai but he was not inclined to
oblige him and the relations between the
two sides were strained.

15. As we said, Raja Ram PW 1,
Antu PW 2 and Munesar PW 4 are also
injured having been assaulted by the
accused respondents by lathis. We have
set out the details of the injuries in the
earlier part of the judgment. As would
appear, all of them received blunt weapon
injuries which were simple. Dilram PW 3
had his house about 60 paces away in
west southern side of abadi land, having
exit and Sehan in northern side. He
clarified that the disputed land was visible
from his house and the same was in the
use of the villagers in general. He further
stated that Madais of Ram Karan and
Bharthu were there on this land. Hearing
shouts, he had reached the spot and
witnessed the incident. He was seemingly
an independent witness. It could not be
shown by the accused respondents that
either he was thick with the prosecution
side or inimical to them. His presence was
probablised by the fact that his house was
quite nearby. The eyewitnesses Raja Ram
PW 1, Antu PW 2 and Munesar PW 4,
being themselves injured, their presence
at the spot could not be doubted at all. It
is of no consequence that they were
closely related inter se and also qua the
deceased Ram Karan. Rather, their
testimony inspires judicial confidence that
they rushed up to the rescue of Ram
Karan when the exchange of hot words
took place between him on the one hand
and the accused respondents Bharthu and
Bhuwal on the other over issue of taking
of bullocks by Ram Karan deceased
through abadi land.

16. However, it is noted from the
testimony of all the eyewitnesses that the
deceased did not sustain any spear injury.
The deceased Ram Karan as also the three
injured witnesses Raja Ram PW 1, Antu
PW 2 and Munesar PW 4 sustained only
lathi injuries. It would be recalled that as
per the prosecution, Bharthu, Bhuwal and
Sheobaran were armed with spears.

17. So far as Bharthu is concerned,
he was the root cause of the incident. His
presence at the spot as participant of the
incident is beyond question. We note that
he had even lodged an F.I.R. on that very
day against Raja Ram PW 1, Antu PW 2,
Siya Ram and Ram Karan deceased under
Sections 323, 504/506 I.P.C. (Ext. Ka-16)
and it was proved on record by Constable
Rajbali Mishra PW 8. This report was
lodged on 5.7.1980 at 12.15 P.M.
showing the time of incident as about 8
A.M. To come out of the difficult
situation, the defence even denied to have
lodged any such F.I.R. as per the
suggestion made to Rajbali Mishra PW 8.
We have not the slightest doubt that after
committing this crime with others as
claimed by the prosecution, he (Bharthu)
hurriedly lodged the F.I.R. Ext Ka-16
against Antu, Siya Ram, Raja Ram and
520 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Ram Karan showing the incident of 8
A.M. He did so to create false defence.
Later on, however, he retreated on legal
advice. The lodging of this F.I.R. was
disowned. So, to come to the point, the
presence and participation of Bharthu in
this incident is not to be doubted at all.
May be that the spear held by him could
not be used from the right side to strike
Ram Karan or the other three injured of
the felony. But, it is doubtless that he was
one of the members of the unlawful
assembly committing the offences in the
prosecution of common object of such
assembly.
However,
the
other
two
allegedly
spears
wielding
accused
respondents
Bhuwal
and
Sheobaran
deserve to be afforded the benefit of
doubt because of the absence of any spear
injury. It was likely that when five
persons participated in the assault, four
(Bechu,
Chandradhari,
Chandar
and
Chulli) were armed with lathis and one
(Bharthu) was armed with spear (though
no spear injury was sustained by the
deceased or three injured). But it would
be too strange coincidence to believe that
three out of seven assailants wielded
spears but no spear injury was sustained
either by the deceased or by the remaining
three injured persons. It should be
observed at the risk of repetition that the
presence of Bharthu in the incident is
beyond pale of doubt.

18. We do not see that there was any
inconsistency
between
the
ocular
testimony and medical evidence. The
post-mortem report of Ram Karan shows
that he received a forceful lathi blow on
his head. The impact was so tremendous
that underneath frontal, temporal, parietal
and occipital bones were fractured. The
ante-mortem injury no.2 was swelling 38
cm x 30 cm on left cheek and temporal
region which could be owing to the
impact of lathi injury. Injuries no.3 and 4
were abrasions. To be short, the fatal
injury was the single forceful lathi blow
that landed on the head of the deceased.
As pointed out earlier, the remaining three
injured Raja Ram PW 1, Antu PW 2 and
Munesar PW 4 received blunt weapon
injuries capable of being caused by lathis.
So, the question of any inconsistency
between ocular version and medical
evidence does not arise at all. The finding
of the trial judge to the contrary has no
basis.

19. The finding of the trial judge as
to the alleged faulty investigation also did
not produce any adverse effect on the
veracity
of
the
witnesses
and
the
prosecution case. The trial judge has
recorded in his judgement that the
Investigating Officer did not take in
possession the blood stained clothes of the
injured; on check report there was no
signature and date of the C.O.; the letter
for medical examination showed that the
crime number was mentioned in different
ink
and
there
appeared
to
be
interpolations, he did not take search of
the houses of the accused persons; the
case diary did not show as to where he
halted in the night of 5/6.7.1980. We are
sure that these and other like insignificant
aspects did not make a dent in the
prosecution case justifying the throwing
away the testimony of the eyewitnesses
overboard and to discard the prosecution
case in toto. The Supreme Court has
repeatedly
emphasized
that
faulty
investigation should not be a ground of
acquittal. In the case at hand, the lapses in
investigation recorded by the trial judge
do not even go to the root of the matter.
There were three eyewitnesses themselves
injured of the felony and the fourth one
2 All] State of U.P. V. Bharthu and others

 521
was an independent witness residing
nearby the place of incident whose name
found place in the F.I.R. also.

20. It is the duty of the court to
separate the grain from the chaff of
exaggerations by carefully scrutinizing
the evidence brought on record. Letting
the guilty escape is not doing justice
according to law. Justice cannot be
rendered sterile by exaggerated devotion
to the concept of benefit of doubt. By
process of intelligent reasoning, the court
is required to act upon acceptable part of
the evidence and to impart justice
accordingly.

21. On careful and cautious scrutiny
of the evidence on record, the conclusion
is inescapable that the five accused
respondents
Bharthu,
Bechu,
Chandradhari, Chandar and Chulli formed
an unlawful assembly in the prosecution
of common object of which complained
offences were committed by them. It
follows from the above discussion that the
participation
of
the
two
accused
respondents Bhuwal and Sheobaran being
doubtful, they are entitled to be given the
benefit of doubt. Out of the remaining
five named above (Bharthu, Bhechu,
Chandradhari,
Chandar
and
Chulli),
Bharthu was armed with spear and thus
committed the offence of rioting under
Section 148 I.P.C. It matters not that no
injury of spear was inflicted either on the
deceased or three injured. Nonetheless, he
was one of the members of an unlawful
assembly in prosecution of the common
object of which the offences in question
were committed. The remaining four,
namely, Bechu, Chandradhari, Chandar
and Chulli committed the offence of
rioting punishable under Section 147
I.P.C. as they were armed with lathis, the
injuries of which were inflicted on the
deceased and three injured.

22. We now intend to consider as to
what offences, other than of rioting, have
been
committed
by
the
accused
respondents
Bharthu,
Bechu,
Chandradhari, Chandar and Chulli. It is
obvious that the deceased Ram Karan
received a fatal blunt weapon injury on
his head which resulted in his death. It is
not known as to who amongst the accused
was the author of that injury. But Section
149 I.P.C. relates to vicarious liability. To
say in other words, all the members of the
unlawful
assembly
are
liable
to
punishment for any or every offence
committed by any or more members of
that unlawful assembly. The requirement
is that the commission of the offence must
have been in contemplation of the
unlawful assembly either directly or
impliedly. In the present case, excluding
'two accused Bhuwal and Sheobaran
whose participation in the incident is
found to be doubtful, five accused formed
an unlawful assembly and participated in
this incident. Bharthu had a spear and
remaining
four,
namely,
Bechu,
Chandradhari, Chandar and Chulli were
armed with lathis. Blunt weapon injuries
were inflicted on the deceased and three
injured witnesses. It is to be noted that
lathi blow was not repeated on the head of
the deceased, though simple injuries were
caused to the three injured witnesses who
had come to the rescue of Ram Karan. So,
considering all these facts, it should
justifiably be inferred that common object
of the unlawful assembly was not murder,
but only to cause grievous injuries (to
Ram Karan). However, a single forceful
blow of lathi landed on the head of Ram
Karan and he happened to die.
522 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
23. Now, we wish to deal with the
case of the accused Chandradhari. The
learned counsel has argued that he was a
child as per U.P. Children Act, being
under age of 16 years at the time of
incident and as such he cannot be sent to
jail even on conviction. We find sufficient
force in this argument. It would be noted
that the incident took place on 5.7.1980.
The statement of the accused respondent
Chandradhari was recorded in the trial
court on 26.6.1981 in which he gave his
age as 16 years. In point of fact, the
specific question no.1 was also put to him
under Section 313 Cr.P.C. as to what was
his age i.e., 'Aap Ki Umra Kya Hai?' His
reply was to this effect: 'Lagbhag 16
Varsh
Hai.'
There
is
no
observation/remark of the trial judge with
regard to his age.

24. U.P. Children Act, 1951 would
be applicable for an incident taking place
in 1980. Section 2(4) of the Uttar Pradesh
Children Act, 1951 (U.P. Act 1 of 1952)
defines a child to mean a person under the
age of 16 years. Section 27 of the
aforesaid Act says that notwithstanding
anything to the contrary in any law, no
court
shall
sentence
a
child
to
imprisonment for life or to any term of
imprisonment.
Section
29
provides,
insofar as it is material, that if a child is
found to have committed an offence
punishable with imprisonment, the court
may order him to be sent to an approved
school for such period of stay as will not
exceed the attainment by the child of the
age of 18 years. The Apex court has held
in the case of Bhola Bhagat Vs. State of
Bihar (1997) SCC page 720 that the
benefit of Children Act should not be
refused on technical grounds. In the
instant case also, the benefit of Children
Act should be afforded to the appellant
Chandradhari.
Though
the
accused
respondent Chandradhari was under 16
years of age at the time of incident, but
must be about 41 years of age presently.
Therefore, there can be no question of
sending him to an approved school now.
So, we would convict the accused
respondent Chandradhari under Sections
147 I.P.C., 325 I.P.C. read with Section
149 I.P.C. and 323 I.P.C. read with
Section 149 I.P.C. but no sentence would
be passed against him as he is entitled to
the benefit of Children Act.

25. In the above circumspectus, we
are in judgment that apart from that of
rioting as held a little above, the other
accused Bharthu, Bechu, Chandar and
Chulli also committed the offence under
Section 325 I.P.C. read with Section 149
I.P.C. so far as the deceased Ram Karan
was concerned and offence under Section
323 I.P.C. read with Section 149 I.P.C.
for the injuries caused to Raja Ram, Antu
and Munesar.

In view of the foregoing discussion,
we partly allow this Government Appeal
with the following order of conviction and
sentences, quashing the acquittal recorded
by the trial judge:

(1) The
acquittal
of
the
accused
respondents Bhuwal and Sheobaran is
affirmed.

(2) The accused respondent Bharthu is
convicted for the offence of rioting
under Section 148 I.P.C.

(3) The accused respondents Bechu,
Chandradhari, Chandar and Chulli are
convicted for the offence of rioting
under Section 147 I.P.C.
2 All] State of U.P. V. Bharthu and others

 523
(4) All these five accused respondents are
convicted under Sections 325 I.P.C.
read with Section 149 I.P.C. and 323
I.P.C. read with Section 149 I.P.C.

(5) As accused respondent Chandradhari
was a child as per U.P. Children Act,
1951 at the time of incident, no
sentence is passed against him and he
is afforded the benefit of Children Act
which was then in force.

(6) The accused respondent Bharthu is
sentenced
to
undergo
rigorous
imprisonment for one year under
Section
148
I.P.C.
Accused
respondents Bechu, Chandar and
Chulli are sentenced to undergo six
months' rigorous imprisonment under
Section 147 I.P.C. Each of these four
accused respondents are sentenced to
undergo
three
years'
rigorous
imprisonment under Section 325
I.P.C. read with Section 149 I.P.C.
and to pay a fine of Rs.10,000/- each.
In default of payment of fine, each of
them shall undergo further rigorous
imprisonment for one year. All these
four are also sentenced to undergo six
months' rigorous imprisonment under
Section 323 I.P.C. read over Section
149 I.P.C.

If the fine is realized, half of it i.e.
Rs.20,000/- shall be paid as compensation
to the wife of the deceased Ram Karan. In
case she is not alive, such compensation
shall be paid to the other nearest relative
of Ram Karan deceased as per Hindu
Succession Act, 1956. The remaining
amount of fine of Rs.20,000/- shall go to
the State exchequer.

(7) Substantive
sentences
of
imprisonment shall run concurrently,
but that imposed in default of
payment of fine has to be undergone
separately.

(8) The accused respondents, namely,
Bharthu, Bechu, Chandar and Chulli
are on bail. The Chief Judicial
Magistrate, Azamgarh shall cause
them to be arrested and lodged in jail
to serve out the sentences passed
against
them.
He
shall
report
compliance within two months from
the date of receipt of this order.

Judgment be certified to the lower court
immediately.
Appeal Partly Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2005

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No.975 of 2004

Kumar Stone Works & others ...Petitioners
Versus
State of U.P. and others ...Respondents

Alongwith
Civil Misc. Writ Petition Nos.26734, 29568 and
35857 of 2002, and 947, 976, 985, 993, 995,
998, 1003, 1010, 1016, 1021, 1022, 1027,
1030, 1036, 1040, 1041, 1049, 1051, 1055,
1056, 1057, 1060, 1063, 1068, 1079, 1080,
1082, 1083, 1084, 1102, 1109, 1126, 1128,
1140, 1151, 1153, 1163, 1207, 1232, 1234,
1253, 1265, 1278, 1284, 1285, 1288, 1290,
1363, 1364, 1373, 1381, 1390, 1392, 1405,
1412, 1413, 1457, 1460, 1466, 1494, 1495,
1514, 1515, 1524, 1541, 1542, 1547, 1558,
1559, 1598, 1607, 1629, 1661, 1682, 1683,
1700, 1707, 1726, 1784, 1807, 1816, 1817,
1818, 1821, 1838, 1843, and 1850 of 2004