# State of U.P v. Nanda & Ors

- **Citation:** (2024) 5 ILRA 1040
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-24
- **Case number:** Government Appeal No. 1974 of 1983
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-nanda-ors-51937
- **Pages:** 27

## Headnote

Criminal Law-Indian Penal Code-1860Sections 324, 307, 300 & 302- Government
Appeal against the judgment and order whereby
the accused-respondents have been acquitted of
the charges leveled against them- A fight
(Maarpeet) between the members of prosecution
and the defence, in which members of both sides
have caused injuries to each other in their private
defence- That the accused persons exceeded
their right of private defence by causing two
injuries to the deceased Jagarnath by lathi and
knives as well as by causing three injuries to the
other deceased Nand Lal by knives and lathi and
as many as five injuries to the first informant by
lathi and knives as also causing one injury of
spear to P.W.-4- On the other-hand both the
5 All. State of U.P. Vs. Nanda & Ors.
1041
deceased had not exceeded their rights of private
defence in causing injuries to the accused
persons- Incident in question occurred on a spur
of moment and in the heat of passion the same
would be covered under the 4th Exception to
Section 300 I.P.C- Trial court not examined the
evidence led by the prosecution in correct
perspective and the finding returned by it cannot
be
sustained-Acquittal
of
the
accusedrespondents reversed- Convicted for the offence
under Part-1 of Section 304 of I.P.C. and
sentenced to undergo six years rigorous
imprisonment with fine of Rs. 10,000/- each.

Appeal partly allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,859 of 91,153. This is a partial read: ask again with offset=39859 for what follows._

1040 INDIAN LAW REPORTS ALLAHABAD SERIES
within the four corners of the following
principles:-

1. That the judgment of acquittal
suffers from patent perversity;
2. That the same is based on a
misreading/omission to consider material
evidence on record;
3. That no two reasonable views are
possible and only the view consistent with
the guilt of the accused is possible from the
evidence available on record.

32. The appellate Court, in order to
interfere with the judgment of acquittal
would have to record pertinent findings on
the above factors if it is inclined to reverse
the judgment of acquittal rendered by the
trial Court.

33. In view of the above settled
principles of law and after examining the
present case, we find that the first informant
and the accused-respondents were on highly
inimical terms. Even possibility of the
injuries being self inflicted/manipulated or
manufactured by the injured persons cannot
be completely ruled out as rightly held by
the trial court. All the injuries caused to two
injured Veerpal and Ranvir are simple in
nature. Even the injury on his head cannot
be caused in the manner as described by the
injured witness Veerpal by a fire arm hitting
his head only a very little blood coming out
from his wound creates serious dent in the
prosecution story and makes it unreliable.
The possibility of the said injury being
manipulated as opined by the doctor (P.W.-
1) cannot be ruled out.

34. In our opinion, the trial court
has passed well reasoned and detailed order,
which in view of settled principle of law
regarding reversal of acquittal needs no
interference by this Court. The view taken
by the trial court cannot be said to be
perverse, impossible and illegal and, as
such, present Government Appeal filed by
the State has no force and is accordingly
dismissed.

35. Trial court's record be remitted
back forthwith
----------
(2024) 5 ILRA 1040
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 1974 of 1983

State of U.P. ...Appellant
Versus
Nanda & Ors. ...Respondents

Counsel for the Appellant:
A.G.A., Sri B.P. Gupta, Sri Bhagwat Prasad, Sri
Prakhar Srivastava, Sri S.N. Mulla

Counsel for the Respondent:
Sri T. Rathore, Sri Archit Mandhyan, Sri
Markanday Singh, Sri Nikhil Kumar, Sri Pramod
Kumar Vishwakarma, Sri Rishabh Kumar Sri S.S.
Rathore

Criminal Law-Indian Penal Code-1860Sections 324, 307, 300 & 302- Government
Appeal against the judgment and order whereby
the accused-respondents have been acquitted of
the charges leveled against them- A fight
(Maarpeet) between the members of prosecution
and the defence, in which members of both sides
have caused injuries to each other in their private
defence- That the accused persons exceeded
their right of private defence by causing two
injuries to the deceased Jagarnath by lathi and
knives as well as by causing three injuries to the
other deceased Nand Lal by knives and lathi and
as many as five injuries to the first informant by
lathi and knives as also causing one injury of
spear to P.W.-4- On the other-hand both the
5 All. State of U.P. Vs. Nanda & Ors.
1041
deceased had not exceeded their rights of private
defence in causing injuries to the accused
persons- Incident in question occurred on a spur
of moment and in the heat of passion the same
would be covered under the 4th Exception to
Section 300 I.P.C- Trial court not examined the
evidence led by the prosecution in correct
perspective and the finding returned by it cannot
be
sustained-Acquittal
of
the
accusedrespondents reversed- Convicted for the offence
under Part-1 of Section 304 of I.P.C. and
sentenced to undergo six years rigorous
imprisonment with fine of Rs. 10,000/- each.

Appeal partly allowed. (E-15)

List of Cases cited:

1. Jai Deo Vs St. of Pun. 1963 Cr.L.J. 493

2. Darshan Singh Vs St. of Pun. & anr.r (2010) 2
SCC 333

3. Genda Singh & ors.Vs St. of U. P. (2008) 11
SCC 791

(Delivered by Hon'ble Shiv Shanker Prasad, J.)

1. Heard Mr. J.P. Tripathi, learned
A.G.A. for the State and Mr. Nikhil Kumar,
learned counsel for surviving accusedrespondents as well as perused the record.

2. The instant Government Appeal is
directed against the judgment and order dated
16th May, 1983 passed in Sessions Trial No.
138 of 1981 (State Vs. Nanda & 3 Others)
arising out of Case Crime No. 106/81 of 1981
(71 of 1981), under Sections 324, 307 and 302
of I.P.C., Police Station-Machhali Shahr,
District-Jaunpur, whereby the accused Nanda,
Ram Siromani, Ram Janak, Ram Lagan have
been acquitted of the charges levelled against
them as the prosecution has failed to prove its
case against the accused beyond reasonable
doubt.

3. During the pendency of the
instant Government Appeal, one of the
accused-respondent, namely, Nanda has
already expired and the instant Government
Appeal qua accused-respondent Nanda has
been abated by this Court vide order dated
6th October, 2021.

4. The prosecution case as borne out
from the records of the present government
appeal is that on a written report given by
the informant/P.W.-1 Ram Murat (Ram
Murti Patel) dated 8th July, 1981 (Exhibitka/1), first information report (ExhibitKa/7) came to be registered on 8th July,
1981 at 1650 hrs. (04:50 p.m.) at Police
Station-Machhali Shahr, District-Jaunpur
against the accused Nanda, Ram Siromani,
Ram Janak, Ram Lagan under Sections 324,
307 and 302 of I.P.C. In the written report, it
has been alleged by the informant/P.W.-1
that he was a resident of Viillage-
Madhupur, Police Station- Badshahpur,
Ditrict-Jaunpur. He lived with his family at
Nandlal house, who was his maternal
grandfather situated in Village Bhatadih,
Police Station-Machhili Shahr, DistrictJaunpur. The house of his cousin maternal
uncle, namely, Jagannath was adjacent to his
house. The sump (Nabdan) of his house was
on the east side of the house. The sump
(Nabdan) used to flow in front of the house
of accused Nanda and then turn towards
north going towards the fields. On 8th July,
1981, at around 01:00 p.m., when the
accused Nanda along with his sons, namely,
Ram Janak, Ram Shiromani and Ram Lagan
was blocking the drain (Nali) of their sump,
Jagannath forbade them, on which the
accused ran towards him to beat him then
Jagarnath raised an alarm, on which the
informant/P.W.-1, his father-in-law Nanda
Lal, his mother Smt. Piyari, mother of
Jagarnath, namely, Smt. Angani rushed to
rescue him. In the meanwhile, the accused
Ram Janak, Ram Shiromani and Ram
Lagan,
who
had
pushed
maternal
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
grandfather of the informant, namely, Nand
Lal on the ground, also started assaulting
him. The accused Ram Lagan with a stick,
whereas the accused Ram Shiromani and
Ram Janak assaulted the maternal grandfather of the informant with knives. The
accused Nanda assaulted his mother with
Lathi due to which she sustained injury on
her back. The accused Ram Janak assaulted
the mother of Jagarnath with knife due to
which she sustained injuries on her hand. On
hearing the alarm of informant's side, Ram
Bahore and Babu Lal @ Kabu arrived and
saw the occurrence and they scolded the
accused. Due to the injuries caused by the
accused, his maternal grand-father Nand Lal
and his maternal uncle Jagarnath died on the
spot. Their dead bodies were taken to the
Police Station with the help of villagers
through Eekka.

5. After lodging of the first
information report, P.W.-9 Rajendra Singh
Chauhan, who was the then Station House
Officer of Police Station-Machhalishahr,
prepared the inquest report of the dead
bodies of the deceased Nand Lal and
Jagarnath and other papers required for postmortem. After keeping the dead bodies of
both the deceased in sealed covers, the same
was sent to the Mortuary for post-mortem
through Constable Jata Shanker Mishra
(P.W.-8) and Ram Shanker Singh. P.W.-9 the
Investigating Officer, namely, Rajendra
Singh Chauhan recorded the statement of
informant/P.W.-1 at the Police Station.
Thereafter P.W.9 reached the place of
occurrence at 09:00 p.m. in the night for
searching the accused. On the next day i.e.
9th July, 1981 in morning, P.W.-9 recorded
the statement of Smt. Angana, Piyari, Ram
Bahor and Babu Lal. He prepared the site
plan. He also collected the blood stained
earth and plain earth from the place of
occurrence and prepared its recovery memo
(Exhbit-ka/22) Blood was also found at the
sitting place/room (Baithaka) of house of
accused Nanda, which was collected by
P.W.-9 and a recovery memo was prepared
which was marked as Exhibit-ka/23. The
accused Nanda was arrested on 9th July,
1981 whereas the other accused surrendered
before the court concerned and they were
sent to jail.

6. The injured Ram Murat had been
sent to the Primary Health Centre,
Machhalishahr for medical examination by
P.W.-9, where he was medically examined
by Dr. B.K. Singh (P.W.-6) on 8th July, 1981
at 05:00 p.m. who found following injuries
on his person:

"1. Lacerated wound 4 cm x 1.2 cm
x scalp deep, middle of head. Margin torn,
jagged, irregular, swollen and bleeding
present.
2- Lacerated wound 2.4 cm. x 04 cm
x scalp deep, left side head 11 cm above the
left ear. Margin torn jagged irregular and
bleeding present.
3- Lacerated wound 1.5 cm x 0.4 cm
x bone deep right side chin margin torn
jagged irregular swollen and bleeding
present.
4- Punctured wound rounded
diameter 0.2 cm depth 2.4 cm right side
back 2 cm below lower end of scalp 1.4
cm. deep upward and forward margin
lacerated. Slit like opening bleeding
present.

5- Abrasion 6 cm. x 1.5 cm back of
left forearm. Lower part. Bleeding present."

7. P.W.-6 has opined that the first
three injuries were caused by blunt object
like lathi. Injury no.4 was caused by pointed
weapon. The last injury was opined to have
been caused by friction.
5 All. State of U.P. Vs. Nanda & Ors.
1043
8. Other injured, namely, Smt.
Piyari and Smt. Angana have also been
examined by the same doctor i.e. Dr. B.K.
Singh (P.W.-6) on the next day of incident
i.e. 9th July, 1981 at 11:30 a.m. and 12:00
noon respectively. P.W.-6 Dr. B.K. Singh
found only one swelling 2 cm x 0.4 cm right
side buttock region upper part on the person
of Smt. Piyari and he has opined that the
same has been caused by blunt object, which
is simple in nature. On the person of Smt.
Angana, P.W.-6 has found a punctured
wound 0.3 cm x 0.1 cm right palm back
lateral surface. He also found no bleeding
and margin of wound was joint with lymph
of blood and margin was clean cut. He
opined that the said injuries are simple in
nature and has been caused by some pointed
weapon.

9. An autopsy of the deceased
Jagarnath has been conducted by Dr. A.K.
Sarin (P.W.-7) on 9th July, 1981 at 11:30 p.m.
and in the autopsy report (Exhibit-ka/2), the
cause of death of the deceased Jagarnath has
been reported to be shock and haemorrhage as
a result of following ante-mortem injuries:

"1- Lacerated wound 2.5 cm x 0.5 cm
х scalp deep on top of head. 13 cm. on above
the root of nose.
2- Penetrating wound with sharp
margins 2.5 cm x 1 cm x cavity deep on the left
back of chest just medial to medial border of
scapula 17 cm. below the left shoulder joint."
On internal examination of body of
the deceased Jagarnath, P.W. 7 found six
ounce of blood in the left side of chest. The left
pleura and lung was lacerated. He also found
that there was a punctured wound 1.5 cm. x 1
cm in the heart.

10. Dr. A.K. Sarin (P.W.-7) has also
conducted the autopsy of the deceased Nand
Lal on 9th July, 1981 at 12:30 p.m. and in
the autopsy report (Exhibit-ka/3), the cause
of death of the deceased Nand Lal has been
reported to be shock and haemorrhage as a
result of following ante-mortem injuries:

"1-Lacerated wound 1 cm x 0.3 cm
x bone deep on right side of scalp 4.5 cm
above the right ear.
2- Abrasion 1 cm x 0.4 cm over the
left side neck 1.5 cm behind the left ear.
3- Penetrating wound 3 cm x 0.5 cm
x cavity deep on left side chest 1 cm left mid
line. 18 cm above the posterioriliac crest."
On internal examination of the body
of deceased Nand Lal, P.W.-7 found 1 litre of
blood in the left side of chest. He also found
that the left pleura and lung was lacerated.

11. After conclusions of the
statutory investigation under Chapter XII
Cr.P.C. Rajendra Singh Chauhan (P.W.-9)
has submitted the charge-sheet (ExhibitKa/24) against all the accused persons,
namely, Nanda, Ram Janak, Ram Lagan and
Ram Siromani.

12. On submission of charge-sheet,
the concerned Magistrate took cognizance in
the matter and committed the case to the
Court of Sessions by whom the case was to
be tried. On 7th November, 1981, the
concerned Court framed charges against the
accused-persons
under
Sections
323,
324/34, 323/34, 302/34.

13. The charges were read out and
explained in Hindi to the accused, who
pleaded not guilty and claimed to be tried.

14. The trial started and the
prosecution has examined as many as 14
witnesses, who are as follows:-

1
Ram Murat (complainant)
(cousin nephew and grandP.W.-
1
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
son of the deceased
Jagarnath and Nand Lal
respectively)/eye witness
as per the prosecution

2
Ram Bahor (resident of
village
of
both
the
deceased)/another
independent eye witness as
per the prosecution
P.W.-
2
3
Piyari Devi, daughter and
cousin sister of both the
deceased Nand Lal and
Jagarnath
respectively,
injured eye-witness of the
incident
as
per
the
prosecution
P.W.-
3
4
Smt. Angana, mother of the
deceased Jagarnath/another
injured eye-witness of the
incident
as
per
the
prosecution
P.W.-
4
5
Babu
Lal,
resident
of
village
of
both
the
deceased/independent eyewitness of the incident, as
per the prosecution
P.W.-
5
6
Dr. B.K. Singh, Medical
Officer,
P.H.C.,
Macchalishahr,
Jaunpur,
who medically examined
the injured Smt. Ram
Piyari, Angana Devi and
Raj
Murat/Ram
Murat,
Smt. Indrani Devi
P.W.-
6
7
Dr.
A.K.
Sarin,
Orthopaedic
Surgeon,
District Hospital, Jaunpur,
who conducted the postmortem of the bodies of
both the deceased Jagar
Nath and Nand Lal
P.W.-
7
8
Constable Jata Shanker
Mishra, who took the dead
bodies of both the deceased
P.W.-
8
to the Mortuary along with
Constable Ram Shanker
Singh
9
Sub-Inspector
Rajendra
Singh
Chauhan,
who
investigated the case
P.W.-
9
10
Devi Prasad, Clerk in the
office of Chief Medical
Officer, Jaunpur
P.W.-
10
11
Constable Jagarnath Tiwari P.W.-
11
12
Moti Ram, who was one of
the witness of recovery
memos prepared by the
Investigating Officer
P.W.-
12
13
Constable
Udhaybhan
Pandey, the then incharge
of
Maalkhana
Moharir,
Sadar Jaunpur
P.W.-
13
14
Sub-Inspector
Amarjeet
Singh Chauhan
P.W.-
14

15. The defence has also adduced
two witnesses in support of their case:

 1
Dr. R.P. singh, Medical
Officer, District-Jail, who
medically examined the
accused
Nanda,
Ram
Shiromani, Ram Lagan
P.W.-
14
2
Jokhai Singh, the then
Village Pradhan, Village
Bhattadeeh, Police StationMachhalisharh,
DistrictJaunpur
D.W.-
2

16. The prosecution in order to
establish the charges levelled against the
accused-appellant has relied upon following
documentary evidence, which were duly
proved
and
consequently
marked
as
Exhibits:

1
Written report dated 8th
July, 1981
Ex.Ka./1
5 All. State of U.P. Vs. Nanda & Ors.
1045
2
First
Information
Report dated 8th July,
1981
Ex.Ka./7
3
Recovery
memo
of
"Gamchha"
Ex.
Ka./31
4
Recovery
memo
of
"Gamchha"
Ex. Ka/32
5
Recovery
memo
of
blood stained earth and
plain earth dated 9th
July, 1981
Ex.Ka./22
6
Recovery
memo
of
blood stained earth and
plain earth dated 9th
July, 1981
Ex.Ka./23
7
Post-mortem report of
deceased
Jagarnath
dated 9th July, 1981
Ex.Ka./2
8
Post-mortem report of
deceased
Nand
Lal
dated 9th July, 1981
Ex.Ka./3
9
Site Plan with index
dated 8th July, 1981
Ex.Ka./21
10 Report
of
chemical
examiner dated 26th
October, 1981
Ex.Ka./33

17. The defence in order to discard the
prosecution case and also to establish to be
a cross case has produce following
documentary evidence, which have been
marked as exhibits:

1
Medical
examination
report
of
accused
Nanda dated 11th July,
1981
Ex.Kha./2
2
Medical
examination
report of accused Ram
Siromani dated 14th
July, 1981
Ex.Kha./3
3
Medical
examination
report of accused Ram
Ex.
Kha./4

Lagan dated 14th July,
1981

18. After completion of the
prosecution evidence, statements of the
accused-respondents Nanda, Ram Janak,
Ram Lagan and Ram Siromani were
recorded under Section 313 Cr.P.C. The
accused-respondent Nanda, while giving
their statements in the Court, denied the
prosecution evidence. In counter, it has been
stated by the accused that sitting place
(Baithaka) of his house is situated towards
north east of the house of deceased Nand Lal
and Jagarnath. There was a charani (manger)
(fodder eating pot) towards south west.
When the deceased Jagarnath tried to
demolish the said charani (manger), wife of
accused Nanda, namely, Smt. Indrani
objected on which the deceased Jagarnath
started abusing her. Wife of accused Nanda,
namely,
Indrani
also
abused
him.
Consequently, the deceased Nand Lal,
Jagarnath
and
the
informant/PW..-1
Ram/Raj Murat came to the house of
accused Nanda with lathi. They assaulted
Indrani with lathi on her head. When the
accused Nanda tried to rescue his wife, they
assaulted him. When the accused Ram
Lagan and Ram Siromani started rescuing
the accused Nanda and his wife Indrani, the
deceased Nand Lal, Jagarnath and Ram/Raj
Murat (first informant) also assaulted them
by lathi then the accused Ram Lagan and
Ram Siromani wielded lathi and ballam in
defence, on account of which the deceased
Nand Lal, Jagarnath and Ram/Raj Murat
(first informant) sustained injuries. During
the above scuffle (marpeet), the injured
Agana and Smt. Ram Piyari also came
nearby and sustained injuries. When the
accused Nanda was going to the police
station with a written report to lodge the first
information report, the Investigating Officer
apprehended him on the way and his report
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
was snatched and thrown by him on the way.
His report was not written by the Police. He
also sustained injuries in the alleged scuffle
(marpeet). His medical examination was
conducted in the jail. His wife Indrani has
been paralysed. The accused Ram Lagan
and Ram Siromani reiterated the same
version as stated by the accused Nanda.
Fourth accused Ram Janak denied his
involvement in the alleged crime by stating
that at the time of occurrence, he was not
present.

19. The medical examination of
wife of the accused Nanda, namely, Indrani
was conducted by same doctor, who has
medically examined the injured Ram/Raj
Murat (first informant), injured Smt.
Angana and Smt. Ram Piyari i.e. Dr. B.K.
Singh (P.W.-6) on 10th July, 1981 at 03:00
p.m. He found following injuries on the
person of Indrani:

"1. Lacerated wound 1.3 cm x 0.3
cm x scalp deep on right side of head 10 cm.
above right ear. Margin torn jagged
irregular, swollen pus was present with
swelling 3.8 cm x 2.4 cm. around the injury.
P.W.-6 advised X-ray. According to him, the
injury found on the person of Indrani was
about 48 hours old and caused by blunt
object."

20. The accused Nanda was
medically examined in jail by D.W.-1 Dr.
R.P. Singh, Medical Officer District Jail,
Jaunpur on 11th July, 1981 at 11:00 a.m.,
who found following injuries on his
person:

"1- Abraded contusion obliquely on
the right side of back extending downwards
medially by from the inferior angle of
scapular towards back bone.
2- Lacerated wound dressing done
on the back of left forearm 3 1⁄2 " x 1/4" x
muscle deep one inch above wrist joint.
3- Traumatic swelling 2" x 1/2" on
the back of left thumb."

D.W.-1 opined that all injuries are
simple in nature and the same have been
caused by blunt object.

21.

D.W.-1
also
medically
examined the accused Ram Siromani in jail
on 14th July, 1981 at 10:30 a.m. and he
found following injuries on his person:

"1. Contusion 5" x 1/2" obliquely on
the left side of back over scapular region.
2. Contusion 2"x1/2" transversely
on the left side of back 2" below inferior
angle of scapula.
3. Contusion of black colour 3" x 1"
transversely on the right side of back 7"
below inferior angle of right scapula.
4- Contusion 2" x 1" on the right
side of back transversely 1/2" above injury
no.3.
5- Abrasion 2" x 1/2" scabbed
obliquely on the outer part of left arm 6"
below shoulder joint."

Qua injuries found on the body of
accused Ram Siromani, D.W.-1 opined that
all injuries simple, which have been caused
by blunt object about 5-6 days back.

22. The accused Ram Lagan has
also been examined by D.W.-1 on 14th July,
1981 at 10:45 a.m. in District Jail Janpur and
following injuries were found on his person:

"1- Multiple scabbed abrasion in
the area of 3" x 1" on the right shoulder.
2- Multiple scabbed abrasion ( in
some scabbing shred off) in the area of 3" x
5 All. State of U.P. Vs. Nanda & Ors.
1047
2" on the right side of back 2" below nape of
neck.
3- Scabbed abrasion in the area of
1" x 1" on the left side of back 1" below nape
of neck 1/2" lateral to vertebral column.
4- Scabbed abrasion in the area of
3" x 2" on the left arm on inner aspect 3"
below axilla with scabbing shredding off.
5- Abrasion scabbed 1/2" x1/4" on
the inner part of right leg just above medial
malleolus."

Doctor i.e. D.W.-1 found that
injuries on the body of accused Ram Lagan
were simple and caused by friction against
hard substance and blunt weapon and the
same has been caused about 5 to 6 days
back.

23. On the basis of above evidence
oral as well as documentary adduced during
the course of trial, while accepting the
argument of the learned counsel for the
accused that the murder of both the deceased
has been committed in private defence, the
trial court has recorded its finding that all the
eye witnesses stated that Maarpeet (quarrel)
took place for more than two minutes. They
also stated that several blows were given to
the person of the deceased Jagarnath and
Nand Lal and because of that both the
deceased would have received aforesaid
meager
number
of
injuries.
The
circumstance of the case read with the
injuries on the bodies of both the deceased
Nand Lal and Jagarnath will go to show that
there could not be any intention of the
accused to commit murder of both the
deceased. On the basis of such finding, the
trial court while accepting the plea of the
learned counsel for the accused that the
murder of both the deceased has been
committed in private defence by the
accused, has opined that during the
maarpeet, the wife of the accused Nanda,
namely, Indrani had sustained injuries on the
top of her head. Therefore, seeing the
injuries on her/his vital part of the body on
any person, the relatives of such person like
husband, brother son and sister etc. could
have an apprehension in their mind that in
case they did not exercise their right of
private defence, a grievous injury or death
would be the ultimate result. In such
circumstances, any person exercising the
right of private defence of body has got a
right to voluntary cause death.

24. The trial court has further
recorded that the nature of injuries on the
person of both the deceased Jagarnath and
Nand Lal indicated that the accused had not
exceeded his right more than what was
actually required. Throughout it was not the
case of the prosecution during the course of
trial that the medical examination report qua
the injury on the person of Smt. Indrani,
which has been prepared by the same doctor
i.e. P.W.-6 Dr. B.K. Singh, who also
medically
examined
the
prosecution
witnesses
i.e.
first
informant/P.W.-1
Ram/Raj Murat, Smt. Piyari and Smt.
Angana, was fabricated. As such, the injury
report of Smt. Indrani cannot be doubted. In
view of those circumstances, the trial court
has expressed its opinion that the accused
had every right to exercise their right of
private defence of body and they had not
exceeded it. The injuries inflicted by the
accused were sufficient and not in excess of
the right of defence.

25. Then, the trial court has
recorded that the defence has satisfactorily
explained qua the injuries found on the
person of Smt. Piryari and Smt. Agana. Both
of them had one injury each. The trial court
considering the statements of the accused
Nanda, Ram Siromani and Ram Lagan given
under Section 313 Cr.P.C. and relying upon
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
their injuries found on their bodies by D.W.-
1 in Jail, has opined that the possibility as
stated by the accused that the injuries
sustained by both the deceased during the
course of Maarpeet resulting in their death,
have been caused accidentally and not
intentionally in private defence, cannot be
ruled out.

26. So far as the injuries sustained
by the first informant/P.W.-1 Ram/Raj
Murat is concerned, the trial court has
recorded that it was stated that he was the
aggressor, hence he could have suffered
injuries found on his person during the
Maarpeet. Such circumstance also support
the defence theory of private defence. The
trial court has disbelieved testimony of first
informant/P.W.-1 Raj/Ram Murat while
observing that he has made improvement in
the prosecution story. The first information
report was not lodged by him as the same
appears to have been dictated by the
Investigating Officer. Even though P.W.-1
tried to support the prosecution story but he
has not explained the injuries on the person
of the accused and their family member,
namely, Smt. Indrani. Similarly, the trial
court has also discarded the testimonies of
other prosecution witnesses i.e. P.W.-2,
P.W.-3, P.W.-4, P.W.-5, who are alleged to be
eye-witnesses of the incident.

27. Relying upon the judgment in
the case of State of U.P. VS. Ghanshyam, the
trial court has opined that it is clear that the
accused did not inflict more injury than what
was necessary. Babu Lal (P.W.-5) is simply
exaggerating his version are trying to give a
colour of atrocity to the accused.

28. On the basis of such finding and
observation, the trial court has come to the
conclusion that the prosecution version was
not at all reliable. The accused had exercised
the right of private defence of their bodies
and their family member. They were within
their rights. They had not exceeded.
Therefore, the trial court had found that
prosecution has failed to prove its case. The
accused
therefore,
deserve
acquittal.
Consequently, the trial court has acquitted
the accused Nanda, Ram Siromani, Ram
Lagan and Ram Janak of the charges
levelled against them.

29. Being aggrieved with the
impugned judgment and order of conviction
passed by the trial court, the State has
preferred the present Government Appeal
against the impugned judgment of acquittal
of accused-respondents, namely, Nanda,
Ram Siromani, Ram Lagan and Ram Janak
by the trial court.

30. Assailing
the
impugned
judgment and order of acquittal, , the learned
A.G.A. for the State in the present
government appeal, has advanced following
submissions:

(i). The first information report
(Exhibit-ka/7) lodged on 8th July, 1981 at
04:50 p.m. on the basis of written report
given by the first informant/P.W.-1 Ram/Raj
Murat on 8th July, 1981 is prompt first
information report.
(ii) There is clinching and direct
evidence against the accused by way of
testimonies of ocular-cum-injured witnesses
i.e. P.W.-1 Raj/Ram Murat, P.W.-3 Smt.
Piyari Devi and P.W.-4 Smt. Angana Devi,
independent eye witnesses i.e. P.W.2 Ram
Bahor and P.W.-5 Babu Lal and the same has
also been supported by the medical and
other material evidence as available on trial
court record.
(iii) Since the incident took in broad
day light i.e. at 01:00 p.m., all the
prosecution witnesses have fully identified
5 All. State of U.P. Vs. Nanda & Ors.
1049
the accused persons while commissioning of
the alleged offence and also assigned their
role in such offence successfully.
(iv) There is strong motive for the
accused-respondents to commit the alleged
offence including the heinous murder of
both the deceased Nand Lal and Jagarnath,
as the accused annoyed with the sump
(Nabdan) of the deceased Nand Lal, which
used to flow in front of the house of accused
Nanda and then turning north heading
towards the fields and also there were
village parti bandi between both the
families.
(iv)
Except
the
minor
inconsistencies/contradictions,
the
testimonies of all the prosecution witnesses
i.e. P.W.-1 to P.W.-5 are throughout
consistent either in their-examination-inchief and also in their cross-examinations,
which have also been supported by the other
prosecution witnesses like Investigating
Officer, who conducted the investigation of
the case and the Doctor who conducted the
post-mortem examinations of the bodies of
both the deceased and the Doctor who
conducted the medical examinations of the
three injured prosecution witnesses.
(v) The site plan and the recovery
memos of blood stained earth and plain earth
and Gamchha have also supported the
prosecution case.
(vi) The defence has failed to
establish its theory of private defence. It is not
a cross case in which it is alleged by the
defence that they have committed the offence
in private defence. It has not been established
by the accused-respondent that the injuries on
the person of the accused and Smt. Indrani
have been inflicted by the members of
prosecution side in the same incident as
alleged by prosecution. It is also pertinent to
mention here that with regard to the incident
in which such injuries have been sustained by
accused, no complaint or first information
report was lodged by the accused at the police
station concerned.
vii. The medical examinations of
accused have not been been conducted
through Majroobi Chiththi of police station
concerned. Even otherwise, the medical
examination reports of accused have been
prepared in private capacity after two days of
the actual incident.

31. On the basis of the aforesaid
submissions, learned A.G.A. submits that as
this is a case of direct and clinching evidence,
the testimonies of eye witnesses, namely,
P.W.-1 to P.W.-5 who are consistent
throughout in their examination-in-chief and
the cross-examinations inspire confidence in
the facts and circumstances of the case and
they have disclosed about the commissioning
of the offence of murder of the deceased
Jagarnath and Nand Lal and the same has also
been supported by the medical evidence in all
material particulars, therefore, trial court has
committed gross error in acquitting the
accused-respondents. Despite the defence
having been failed to establish its case of selfdefence and the trial court has recorded its
finding that the accused have rightly exercise
their right of private defence, the trial court
while ignoring the entire evidence produced
by the prosecution, has passed the impugned
judgment, which suffers from illegality and
perversity. As such the same is liable to be set
aside and the accused-respondents are liable to
be convicted for the offence punishable under
Section 302 I.P.C. Hence, the instant
Government Appeal filed by the State is liable
to be allowed.

32. On the other-hand, learned
counsel for the accused-respondents have
advanced following counter submissions:

(i). The first information report
lodged on 8th July, 1981 at 04:50 p.m. on the
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of written report of the first
informant/P.W.-1 dated 8th July, 1981 is
ante time.
(ii)
Since
the
Investigating
Officer/P.W.-9 has not indicated the sump
(Naabdan) of the deceased Nand Lal in the
site plan (exhibit-ka/21), which was being
demolished
by
the
accused
persons
including accused Nanda due to which the
alleged incident took place, the genesis of
the crime is doubtful.
(iii) Non recovery of crime weapon
i.e. knife/lathi/ballam or any other weapon
makes the prosecution case doubtful.
(iv). The manner in which the
injuries of the accused Nanda, Ram
Siromani and Ram Lagan as also the injury
of wife of accused Nanda, namely, Indrani
have been caused, has not been explained by
the prosecution.
(iv). As per the statement of P.W.-6
Dr. B.K. Singh, who medically examined
the first informant/P.W.-1 Raj/Ram Murat,
P.W.-3 Smt. Ram Piyari and P.W.-4 Smt.
Agana as also the wife of accused Nanda,
Smt. Indrani, in his cross-examination has
stated that the first informant/P.W.-1 has
sustained four injuries,whereas P.W.-3 Ram
Piyari and P.W.-4 Smt. Angana have
sustained one injury each. Such injuries on
the person of P.W.-1, P.W.-3 and P.W.-4 have
been caused at about 11:00 a.m. on 8th July,
1981. On the other-hand as per the
prosecution case, the incident occurred on
8th Juy, 1981 at about 1:00 p.m. On the basis
of aforesaid testimony of P.W.-6, it is urged
that the time of incident has been changed
by the prosecution and has reported that the
incident occurred at 01:00 p.m.
(v). The sitting place (Baithaka) of
the house of accused Nanda is situated
towards north east of the house of deceased
Nand Lal and Jagarnath. There was a charani
(manger) (fodder eating pot) towards south
west. When the deceased Jagarnath tried to
demolish the said charani (manger), wife of
accused Nanda, namely, Smt. Indrani
objected on which the deceased Jagarnath
started abusing her. Wife of accused Nanda,
namely, Indrani also abused him, as a result
whereof the deceased Nand Lal, Jagarnath
and the informant/PW..-1 Ram/Raj Murat
came with lathi and assaulted Indrani with
lathi on her head. When the accused Nanda
tried to rescue his wife, they assaulted him
also. Similarly, when the accused Ram
Lagan and Ram Siromani started rescuing
the accused Nanda and his wife Indrani, the
deceased Nand Lal, Jagarnath and Ram/Raj
Murat (first informant) also assaulted them
by lathi. Then the accused Ram Lagan and
Ram Siromani wielded lathi and ballam
(bhala) in defence, on account of which the
deceased Nand Lal, Jagarnath and Ram/Raj
Murat (first informant) sustained injuries.
During the aforesaid Maarpeet, P.W.-3 Ram
Pryari and P.W.-4 Smt. Angana also arrived
and sustained injuries. The above maarpeet
took place suddenly without any intention to
commit any crime in which members of both
sides sustained injuries. The injuries on the
persons of both the deceased and three
injured of prosecution side have been caused
by the accused in their private defence
without any motive and intention to commit
the same. The death of the deceased
occurred incidentally in the aforesaid
Maarpeet. The accused have not exceeded
their right of private defence. It is, therefore,
clear that accused had inflicted the injuries
on the person of the members of the
prosecution side in exercise of the right of
self-defence.
On the cumulative strength of the
aforesaid submissions, learned counsel for
the accused-respondents submits that as this
is a case of weak evidence, the impugned
judgment and order of acquittal does not
suffer from any illegality and infirmity so as
to warrant any interference by this Court. As
5 All. State of U.P. Vs. Nanda & Ors.
1051
such the present Government Appeal filed
by the State is liable to be dismissed.

33. We have examined the
respective contentions urged by the learned
counsel for the parties and have perused the
records of the present appeal including the
trial court records.

34. It is in the context of above
submissions and materials placed on record
before the Court that this Court is required
to consider as to whether the prosecution has
established the guilt of accused-appellants
on the basis of evidence on record beyond
reasonable doubt?

35. Before entering into the merits
of the case set up by the learned counsel for
the accused-appellant in criminal appeal,
learned counsel for the accused-respondent
in government appeal and the learned
A.G.A. as also the learned counsel for the
first informant in both the appeals qua
impugned judgment and order of conviction
passed by the trial court, it is desirable for us
to briefly refer to the statements of the
prosecution witnesses as well as the defence
witnesses.

36. First Informant/P.W.-1 Raj/Ram
Murat stated in his examination-in-chief that
his father worked in a coal mine in West
Bengal for 18 to 19 years. His mother name
was Smt. Piyari (P.W.-3) and the deceased
Nand Lal was his maternal father-in-law,
who had four daughters including P.W.-3,
Piyari, Chamelia, Bela and Harsu. On the
asking of the deceased Nand Lal, P.W.-1 and
his mother P.W.-3 stayed at the place of the
deceased Nand Lal for taking care of him
and also his fields for the last 17-18 years.
The deceased Nand Lal executed a will deed
of three bighas' land in his favour and his
younger brother Rajnath. The deceased
Jagarnath seemed to be the nephew of the
deceased Nand Lal and lived with him.

37. This witness further stated that
name of father of accused Nanda was Shiv
Nath and other accused, namely, Ram Janak,
Ram Shiroman and Ram Lagan were his
sons. The house of accused Nanda was 7-8
steps east of his house. Nanda's sitting
place(Baithaka) was three to four steps north
of his house. The sump of house of the
deceased Nand Lal was on the east side. The
water from his house turned east leaving two
hands west of Nanda's sitting place
(Baithaka) and fell into Jagarnath's field
through a drain. The said sump had been
there ever since house of the deceased Nand
Lal was built.

38. This witness further stated that
it was after 1 o'clock in the day and he was
in his house. Hearing the alarm of the
deceased Jagarnath and his maternal fatherin-law Nand Lal, he, his mother Piyari and
his maternal mother-in-law Angani/Angana,
who was mother of the deceased Jagarnath
also came out from their house. They saw
that the accused Nanda, Ram Siromani, Ram
Janak and Ram Lagan were blocking his
drain and the deceased Jagarnath were
objecting on which the accused pounced to
beat him. The accused Ram Janak and Ram
Shiromani were having knives in their
hands, whereas the accused Nanda and Ram
Lagan were armed with lathi. The deceased
Jagarnath had been assaulted by accused
Ram Janak with knife and Ram Lagan with
lathi. The deceased Jagarnath ran away after
suffering injuries and fell in the courtyard of
his house and died there. Thereafter the
accused Nanda, Ram Shiromani, Ramjanak
and Ramlagan picked up his maternal
grandfather Nand Lal and threw him down.
The accused Ram Shiromani attacked him
with a knife and Ram Lagan and Nanda
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
attacked him with sticks. Ram Janak later
attacked him with a knife due to which the
deceased Nandlal sustained injuries and fell
near a Neem tree and died there.

39. This witness again stated that
his mother Piyari and Angani ran to rescue
the deceased Nandlal, then all the accused
started beating them too. The accused Ram
Shiromani hit P.W. 1 with a knife and
accused Ram Lagan and Nanda hit him with
sticks. The accused Nanda hit his mother on
the back with a stick and Angani was hit by
the accused Ram Janak with a knife. After
the incident, P.W.-2 Rambahor and P.W.-5
Babu Lal reached there and saw the entire
incident. Blood was spilled on the places
where Jagannath and Nandlal fell. After the
incident the accused ran towards their house.
P.W.-1 was feeling slightly in a fainting
state, therefore, it was not possible for him
to write a report in that regard in his
handwriting. Due to this, a report was
written by Swaminath on his dictation.