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2008 Supreme(All) 2560
[2009(1) ADJ 297 (DB)]
ALLAHABAD HIGH COURT
BEFORE : SHIV SHANKAR AND VIJAY KUMAR VERMA, JJ.
RAM ADHAR ..........Appellant (In Jail)
Versus
STATE OF U.P. ...........Opposite Party
(Criminal Appeal No. 2227 of 1982, decided on 28th November, 2008)
Counsel :
I.K.Chaturvedi, Amicus Curiae for the Appellant; A.K. Shukla, A.G.A. for the Opposite Party.
Headnote:(A) (Indian) Penal Code, 1860—Sections 302/34, 307/34 and 323/34—Criminal Procedure Code, 1973—Section 374(2)—Offences under—Conviction and sentence against appellant by Addl. Sessions Judge—Hence, appeal—Appreciation of evidence of witnesses—If allegations of F.I.R. about giving threatening by accused to deceased, was not believed, even then prosecution case about committing murder of deceased by accused-persons in furtherance of their common intention cannot be brushed aside on that ground—On basis of reliable testimony of P.W. 1 and P.W. 2, it was fully proved that appellant-accused, had fired from gun on complainant and other witnesses who had challenged him—Firing, by gun towards complainant and witnesses were sufficient to constitute offence of attempt to murder, even if no injury was caused to any person—Held, injury caused to deceased by accused-appellant, was sufficient in ordinary course of nature to cause death—Therefore, clause "Thirdly" of Section 300 of I.P.C., attracted in instant case—Hence, their conviction and sentences under Section 302/34 by lower Court, was fully justified. [Paras 27, 33, 47, 48, 49 and 50]
(B) (Indian) Penal Code, 1860—Section 34—Scope and applicablity of—For applying Section 34, overt act on the part of all the accused persons, was not essential—For attracting Section 34, it is not necessary that any overt act must be done by a particular accused—Section 34 would be attracted, if it is established that criminal act has been done by one of accused persons in furtherance of common intention—If this is shown, liability for crime, may be imposed on any one of the person in same manner, as if the act was done by him alone. [Paras 34 and 43]
Hon’ble Vijay Kumar Verma, J.—Challenge in this appeal preferred under Section 374 (2) of the Code of Criminal Procedure (in short ‘the Cr.P.C.), is to the Judgment and order dated 4.9.1982, passed by the 5th Additional Sessions Judge Fatehpur in S.T. No. 213 of 1981 (State v. Mathura and another), whereby the accused-appellant Ram Adhar has been convicted and sentenced to undergo imprisonment for life under Section 382 read with Section 34 of Indian Penal Code (in short `the IPC’), seven years rigorous imprisonment under Section 307, IPC and six months’ rigorous imprisonment under Section 323 read with Section 34, IPC. All the sentences shall run concurrently.
2. By the same judgment, the co-accused Mathura was also convicted and sentenced to undergo imprisonment for life under Section 302, IPC, five years’ rigorous imprisonment under Section 307 read with Section 34, IPC and six months rigorous imprisonment under Section 323 read with Section 34, IPC. He also had challenged his conviction and sentence by preferring criminal appeal No. 2228 of 1982, which was connected with this appeal, but due to his absence, that appeal has been separated.
3. The incident resulting in the death of Ram Kishore @ Andhu s/o Rameshwar occurred in the intervening night of 30/31.12.1980 at about midnight in village Lakhipur, situated within the jurisdiction of Police Station Khaga, District Fatehpur. The first information report was lodged by the complainant Rameshwar s/o Mahipal. The case of the prosecution as appearing from the chik FIR Ext. Ka 17 and statement of the complainant Rameshwar (P.W. 1), in brief, is that about 25 years ago, complainant’s father Sri Mahipal, had given 18 bigha land to his nephew (sister’s son) Ram Nath, who thereafter began to live in village Lakhipur after constructing his house behind the house of Mahipal. After the death of Ram Nath, his son Mathura came into possession over that land, but on the basis of false entry in the revenue papers, Mathura began to claim half share in the entire land of Mahipal. A panchayat was convened to resolve the dispute, but in vain. Thereafter the complainant filed a case in the Court of Tehsildar Khaga for correction of papers. The pairvi of that case was being done by complainant’s son Ram Kishore. 38.12.1980 was fixed in that case. Ram Kishore had gone to attend the case on that day in Tehsil Khaga and when after attending the case he was coming back to his house, Mathura met him in the way near railway line Khaga and threatened him saying that "tumane mukadama dayar karke achha nahin kiya hai. Tumhe dekh Iegen.” It is alleged that in the intervening night of 30/31.12.1980, the complainant Rameshwar, his son Ram Kishore @ Andhu and grandson Viddya Prasad were sleeping on the roof of the house under the chhappar, where a lantern was litting. Other persons of the family were sleeping outside the house. At about midnight when the moon had risen, four persons came on the roof from southern side, due to which the complainant awakened and he saw that Mathura and his son Ram Adhar were armed with guns and their two unknown companions were having lathis in their hands. Mathura and Ram Adhar came near to Ram Kishore and Mathura said that "Ram Kishore Ieta hai. Sare ko mar kar mukadama chalane ka maja dikha do”. After this exhortation, Mathura himself fired from gun on the chest of Ram Kishore, due to which he died instantaneously. When the complainant and his grandson Viddya Prasad raised noise, the neighbours Gajraj, Surajbhan and Ram Niranjan @ Jhadole rushed towards the place of occurrence and when they challenged the assailants, Ram Adhar fired towards the complainant and other persons from his gun, but they escaped. The unknown assailants assaulted Viddya Prasad by means of lathis. When the accused persons were challenged by the village people, they fled away towards southern side.
4. Leaving the dead body of deceased Ram Kishore at the place of occurrence, the complaina
