The court upheld the conviction for instigation and aiding in an assault, affirming the principles of common intention and joint liability under the IPC.

JUDGMENT :

Rajnish Kumar,J.

1. Heard, Ms. Megha Sachan, Advocate holding brief of Shri Adil Aziz Khan, learned counsel for the appellant and Shri Badrul Hasan, learned Additional Government Advocate (here-in-after referred as AGA).

2. This Criminal Appeal under Section 374 (2) of Code of Criminal Procedure Code (here-in-after referred as CrPC) has been filed for setting aside the conviction and sentence awarded by the court of III^rd Additional Sessions Judge, Pratapgarh by means of the judgment and order dated 28.10.1996 passed in Session Trial No. 44 of 1991; State of Uttar Pradesh versus Sarvesh Kumar Dubey and another, under Section 307 /34, 504 and 109 of Indian Penal Code (here-in-after referred as I.P.C.), Police Station Lalganj, District Pratapgarh, by means of which the appellant no. 1-Sarvesh Kumar Dubey has been convicted under Section 324 read with Sections 34 and 109 I.P.C. and the appellant no.2-Rajiv Kumar Mishra has been convicted under Section 324 I.P.C. and they have been sentenced with a punishment of 2 and 1/2 years rigorous imprisonment and Rs. 500 fine and in default of payment of fine, to undergo one month rigorous imprisonment.

3. The appellant no. 2-Rajiv Kumar Mishra died during pendency of the appeal, therefore, the appeal in reference to him had abated by means of the order dated 14.03.2013. Now this appeal survives only by the appellant no. 1-Sarvesh Kumar Dubey.

4. Learned counsel for the appellant submits that the appellant has wrongly and illegally been convicted in the case. As per prosecution itself, the role of the appellant was of instigation only and he has stated in his statement under Section 313 Cr.P.C. that he has been implicated on account of political rivalry, but without considering it, he has been convicted under Section 324 I.P.C. Thus, the impugned judgment and order passed by the learned trial court is not sustainable and liable to be set aside.

5. Per Contra, learned AGA submits that the impugned judgment and order has rightly been passed in accordance with law for the reason that the role of the appellant is not only of instigation but he also caught hold of the victim and raised alarm and asked the other accused to fire and kill him, therefore, he has rightly been convicted under Section 324 I.P.C. read with Sections 34 and 109 I.P.C. Thus, the appeal has been filed on misconceived and baseless grounds, which is liable to be dismissed.

6. I have considered the submissions of learned counsel for the parties and perused the records.

7. As per prosecution story, Pradeep Kumar Tiwari son of Radhey Shyam Tiwari, resident of Hadirahi Police Station Lalganj, District Pratapgarh submitted a handwritten application dated 16.12.1988 to the Kotwal Sahib of Kotwali Lalganj, District Pratapgarh stating therein that Sarvesh Kumar Dubey son of Ram Manohar Dubey, resident of Kothar Mangole had demanded Rs. 100 from him 10 days ago and when he did not pay the amount to him, he was displeased with him and said if you will not pay, it will cost you dear. On the said date at 5 P.M., he was going to Sagra Bazar from his house, when Sarvesh Kumar Dubey and Rajiv Kumar Mishra, resident of Paharpur (Dakinahan Ka Purwa), Police Station Sangipur, District Pratapgarh met him and Sarvesh Kumar Dubey due to aforesaid displeasure and enmity abused him and asked co-accused Rajiv Kumar Mishra to fire and to kill him. He raised alarm. On raising alarm, Rameshwar Prasad Tiwari son of Vishwa Nath Tiwari, Harish Chandra Tiwari son of Munnu Tiwari and others reached there and chased Rajiv and Sarvesh but both of t