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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RAMESH SINHA, SAROJ YADAV, JJ.
Raj Kumar - Appellant
Versus
The State - Respondent
Criminal Appeal No. 1003 of 1982
Decided on : 28-03-2022
Indian Penal Code, 1860 - Section 302 read with Section 34 and325 – Appeal against Conviction – Offence od Murder - Alleged that at about 3:00 P.M. uncle of complainant went to his paddy-field and found that cattle of Raj Kumar were grazing and destroying paddy-crop - His uncle after ousting the cattle from the field went to house of Raj Kumar at about 3:30 P.M. to make a complaint about the same, there Raj Kumar and Raj Kishore met and when his uncle complained about cattle, they said that he was accusing them falsely - After that Raj Kumar brought a gun and Raj Kishore a stick (lathi) from their houses - Whether he could go to the extent of causing the death. No doubt in a situation like this it cannot be expected that the accused has to modulate his right of self-defense. But when he went to his house and brought a knife and caused the death it cannot be said that he did not exceed the right of private defence (Para 26).
Finding of the Court: All accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved, this is an aspect which is required to be looked into by the court on the evidence placed before it - It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court - appellants would be liable for their individual act and appellant Raj Kishore cannot be held guilty and convicted under Section 302 of I.P.C. with the help of section 34 of I.P.C. Raj Kishore assaulted Prabhu Dayal with lathi (stick) causing injury which amount to an offence under Section 325 of I.P.C. and he is liable to that extent only.
Result: Appeal allowed.
JUDGMENT :
Saroj Yadav, J.
1. This Criminal Appeal has been filed by the appellants/convicts Raj Kumar and Raj Kishore against the judgment and order dated 18.12.1982 passed by Sri I.N. Thakral VIIth Additional Sessions Judge, Hardoi in Sessions Trial No.144 of 1982 arising out of Crime No.926 of 1981, Police Station Kotwali, District Hardoi, wherein the appellants were held guilty and convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (in short I.P.C.) with imprisonment for life and a fine of Rs.1,000/-(one thousand). The appellants were also convicted under Section 325 read with Section 34 of I.P.C. with imprisonment of two years and a fine of Rs.500/-(five hundred).
2. Heard Sri Jai Pal Singh, learned Amicus Curiae for the appellant no.1-Raj Kumar, Sri Sheikh Wali-Uz Zaman, learned counsel for the appellant no.2-Raj Kishore and Sri Vishwash Shukla, learned A.G.A for the State respondent.
3. The facts necessary for disposal of this appeal as culled out are as under:-
After that Raj Kumar brought a gun and Raj Kishore a stick (lathi) from their houses and said just wait they will tell. Upon it his uncle raised a hue and cry, hearing a noise the complainant, his father Ram Saran and Nigendra Nath, Munshi, Ram Pal and many other people reached there. Thereafter Raj Kishore assaulted his uncle Prabhu Dayal with stick and Raj Kumar fired with gun on his father (the father of the complainant) which hit him and he died on the platform (Chabutara) in front of the house of appellants. Upon challenge made by all present there, both Raj Kumar and Raj Kishore ran away towards south.
ii. After investigation chargesheet was submitted in the Court, the concerned Magistrate after taking cognizance committed the case to the Sessions Court for trial. The trial court framed charges against accused persons on 03.09.1982 under Section 302 read with Section 34 of I.P.C. and Section 323 of I.P.C.. Subsequently the trial court amended the charges framed under Section 323 of I.P.C. and framed charge under Section 325 read with Section 34 of I.P.C. on 06.12.1982. The appellants denied the charges and claimed to be tried.
iii. The prosecution in order to prove its case examined nine witnesses in all. P.W. 1 Dr. S.N. Singh, Medical Officer, District Hospital Hardoi, P.W. 2 Ramesh Chandra, complainant, P.W. 3 Dr. U.D. Kapoor, District Hospital Hardoi, P.W. 4 Yashpal Singh Girewal, Senior Sub Inspector, P.W. 5 Prabhu Dayal uncle of the complainant and injured, P.W. 6 Head Constable Rajendra Kumar, and P.W. 7 Constable Sunil Kumar, P.W. 8 Munshi an independent eye witness and P.W. 9 Sri R.S. Verma, Sub Inspector. Apart from the oral evidence the documents-Exhibit Ka-1 to Exhibit Ka-18 were proved and exhibited. These are:-
Injury report of injured Prabhu Dayal Exhibit Ka-1, written report Exhibit Ka-2, postmortem report of deceased Ram Saran Exhibit Ka-3, charge-sheet Exhibit Ka-4, chick report Exhibit Ka-5, general diary (G.D.) Exhibit Ka-6, inquest report Exhibit Ka-7, Form No.379 Exhibit Ka-8, Police Form No.13 Exhibit Ka-9, report to C.M.O. for conducting postmortem Exhibit Ka-10, specimen of seal Exhibit Ka-11, site plan of spot where incident took place Exhibit Ka-12, site plan of the place where fields were damaged by cattle Exhibit Ka-13, memo o
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