Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 291

IN THE HIGH COURT OF ALLAHABAD
RAMESH SINHA, RAJEEV SINGH, JJ.
Kailash S/o Ratan – Appellant
Versus
The State Of U.P. – Respondent
Criminal Appeal No.1982, 1989 of 2009
Decided on : 21-05-2021

Advocates:
Advocate Appeared:
Nagendra Mohan, Arshad Hafeez Khan, Bhanu Dutt Dwivedi, Desh Ratan Mishra, Dinesh Kr. Sharma, Salil Mohan, Shishir Pradhan, Virendra Kumar Yadav

Point of Law: Conviction modified - Offence of Murder - Injured witnesses P.W.1, P.W.2 and P.W.3 had received injuries of blunt object, which were caused by accused-appellants with Lathis and Dandas but injuries were found to be simple in nature

Headnote:
Indian Penal Code, 1860 - Sections 302/34, 307/34, 426, 504 and 506 - Arms Act - Section 3/25 - Gunshot - Criminal Conspiracy - Assault with lathis - Goats of appellant Bade Lal, who is pattidar of informant- were grazing and damaging the crop of Lentil and Pea sowed in field of informant, then wife of informant (P.W.2), was trying to oust goats from field - Wife of appellant, who was also present there, started altercation and on listening hue and cry, informant (P.W.1), father of informant (P.W.3), and elder brother of the informant (deceased) reached on spot and at the same time, appellants came there with lathi, danda and illegal firearm and by using abusive language to informant, his father (P.W.3), wife (P.W.2) and his elder brother (deceased) on the spot also. On seeing this, informant, his father (P.W.3), wife (P.W.2) and elder brother (deceased) fled due to fear, upon which, appellants chased them and with intention to kill elder brother of informant who was handicapped by leg, appellant fired upon him with a country made pistol at west of field of chakroad, to which elder brother of informant died on the spot.
Finding of the court: Trial Court is not sustainable as it is contrary to evidence on record, as it is not borne out from evidence on record that said three appellants had any common intention to kill deceased, who was killed by accused/appellant with a country made pistol and deceased died the spot, hence their conviction and sentence by trial Court under Section 302/34 I.P.C. is liable to be set-aside - It is apparent that he received one single injury on his person, which was a fire shot and same has been attributed to accused- appellant. Other three accused-appellants had assaulted the injured with Lathis and Dandas. Deceased did not receive any injury of blunt object except fire arm injury. - Conviction and sentence of appellant by trial Court for offence punishable under Section 302/34 I.P.C. is hereby set-aside. Hence, they are acquitted for the charges under Section 302/34 I.P.C. However, their conviction and sentence under Section 323/34 I.P.C. by the trial Court is hereby confirmed.
Result: Appeal partly allowed

JUDGMENT :

Ramesh Sinha, J.

(1) The four persons, namely, Kailash, Badey Lal, Munna Lal and Sipahi alias Nanh were tried by the Additional Sessions Judge, Court No. 5, Barabanki in Sessions Trial No. 256 of 2007 : State Vs. Bade Lal and others for offences punishable under Sections 302/34, 307/34, 426, 504 and 506 of the Indian Penal Code. In addition, appellant-Kailash was also tried in the aforesaid sessions trial for the offence punishable under Section 3/25 of the Arms Act by the Additional Sessions Judge, Court No.5, Barabanki. Vide judgment and order dated 30.07.2009, the learned Sessions Judge acquitted appellants, Kailash, Badey Lal, Munna Lal and Sipahi alias Nanh, for offences punishable under Sections 307/34, 504, 506 and 426 of the Indian Penal Code but convicted and sentenced them in the manner stated hereinafter :--

(i) Under Section 302/34 of the Indian Penal Code to undergo imprisonment for life and to pay a fine of Rs.2000/-each, in default to undergo additional one year each rigrous imprisonment; and

(ii) Under Section 323 read with Section 34 of the Indian Penal Code to undergo six months' R.I.

The trial Court directed the sentences of appellants on all the counts to run concurrently.

(2) Aggrieved by his convictions and sentences, Kailash preferred before this Court Criminal Appeal No. 1989 of 2009, whereas Badey Lal, Munna Lal and Sipahi alias Nanh preferred Criminal Appeal No. 1982 of 2009.

(3) Since both these appeals arise out of a common factual matrix and impugned judgment, we are disposing them of by a common judgment.

(4) Shortly stated the prosecution case runs as under :-The informant Nagesar Lonia (P.W. 1) is the younger brother of the deceased Khushi Ram, who was handicapped by leg. At the time of the incident, the informant Nagesar Lonia (P.W.1), deceased Khushi Ram, Smt. Ranjeeta Devi (P.W.2), Devi Deen (P.W.3), Ram Lakhan (P.W.4), and appellants, Kailash, Badey Lal, Munna Lal and Sipahi alias Nanh, were living in village Kyontala Majhari, Police Station Mohammadpur Khala, District Barabanki.

(5) Prior to the incident, enmity was subsisting between father of appellants, namely, Ratan on one hand and father of the informant, namely, Devi Deen (P.W.3) on the other with regard to a land.

(6) On 09.12.2006, at about 2.30 p.m., on seeing that goats of appellant Bade Lal, who is the pattidar of the informant-Nagesar Lonia, were grazing and damaging the crop of Lentil and Pea sowed in the field of the informant, then, the wife of the informant, namely, Ranjeeta Devi (P.W.2), was trying to oust the goats from the field. The wife of appellant Kailash, who was also present there, started altercation and on listening the hue and cry, the informant-Nagesar Lonia (P.W.1), father of the informant (Devi Deen P.W.3), and elder brother of the informant (Khushi Ram, deceased) reached on the spot and at the same time, appellants Badey Lal, Munna Lal and Sipahi alias Nanh and Kailash came there with lathi, danda and illegal firearm and by using abusive language to the informant, his father Devi Deen (P.W.3), wife Ranjeeta Devi (P.W.2) and his elder brother Khushi Ram (deceased) on the spot also. On seeing this, informant, his father Devi Deen (P.W.3), wife Ranjeeta Devi (P.W.2) and his elder brother Khushi Ram (deceased) fled due to fear, upon which, appellants chased them and with intention to kill elder brother of the informant, Khusi Ram, who was handicapped by leg, appellant-Kailash fired upon him with a countrymade pistol at the west of the field of the chakroad, to which elder brother of the informant, Khushi Ram, died on the spot. Thereafter, appellants besieged the informant, his wife Ranjeeta Devi and his father Devi Deen also near the chak road and, thereafter, seriously injured them by beating them from Lathi, danda and butt of the illegal firearm. This incident was seen by Ramesh and Shiv Bhagwan, sons of Lal Bahadur and other persons of the village, who were present there. Thereafter, appellants fled away fro