AFR

Reserved

Criminal Appeal No.3889 of 2006

Veer Singh.............................................Appellant

Vs.

State of U.P......................................Opposite party

Connected with

Criminal Appeal No.4371 of 2006

Ram Ratan...............................................Appellant

Vs.

State of U.P......................................Opposite party

Hon'ble Vinod Prasad, J.

Hon'ble Virendra Singh, J.

(Delivered by Hon'ble Vinod Prasad, J.)

The two sibling brother appellants Veer Singh and

Ram Ratan, have been convicted for offences under

Sections 302/34, 302 IPC, respectively, with sentence of

life imprisonment and a fine of Rs.1000/-, with further

direction that in default of payment of fine they shall

undergo six months further imprisonment,by Additional

Sessions Judge, court no.4, Rampur, vide his impugned

judgement and order dated 7.7.2006 passed in Sessions

Trial No.508 of 2005, State Versus Ram Ratan and

another which conviction and sentences have been

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2

challenged in the above two appeals preferred by the

appellants. For the sake of convenience both the appeals

were clubbed together and are being decided by this

common judgement.

In an abridged form, prosecution allegations against

the appellants, as were contained in the written report

Ext. Ka-1,were that Nathia, a resident of Bara Kashipur,

and nanad of Kamla(mausi of informant Shanti and her

sister Kanta), is a common relative of informant and

Dayawati, wife of Ram Ratan appellant. Kanta had visited

house of Nathia in Bara Kashipur, which visit was not

relished by Dayawati, who was making obnoxious

utterances in that respect.

On the date of the incident, 6.7.2005 at 7-7.30

p.m., appellant Ram Ratan, armed with ballam was

passing through the front of the informant's house along

with his brother Veer Singh appellant, when, all of a

sudden,a triadic altercation ensued between appellant

Ram Ratan and father of informant Hemraj

(deceased),which attracted informant's brother Tejveer,

3

Savitri, Kanta, co-villager Ram Autar and many others at

the spot, who all intervened in the verbal onslaught and

tried to pacify ongoing altercation. In the midst of this, all

of a sudden, Ram Ratan pierced his ballam in the chest of

Hemraj, who, after sustaining grievous injury, fell down

and thereafter, both the accused fled away towards the

plateau . Injured father Hemraj was transported to the

police station Patwai at a distance of 2 Kms where a

written report Ext. Ka-8 was lodged by the informant, as

Crime No.320 of 2005, under Section 308 I.P.C., at 8.40

p.m. same day after getting the same scribed by Amar

Singh Sagar.

Constable 604 Mala Ram prepared the Chik FIR Ext.

Ka-8 and the relevant GD entry in Ext. Ka-7.Investigation

of the crime was commenced by S.I. Suraj Bhan, P.W.5,

who first of all copied the Chik FIR and the GD entry and

thereafter recorded 161 Cr.P.C. statement of the

informant. He thereafter sent the injured Hemraj along

with Head Constable Lalman to the district hospital

Rampur for nursing of his injury. Same day Investigating

4

Officer recorded the statements of other witnesses and

made a vain endeavour to apprehend the accused.

Injured Hemraj lost his life on 6.7.2005 at 9.20.p.m. and

therefore I.O.,on 7.7.2005, came to the District Hospital,

Rampur where he copied the memo Ext. Ka-3, sent by

the doctor regarding demise of the deceased. I.O. also

copied other relevant documents and other GD

entries,which he had proved as Ext. ka-5 to Ka-9.

Inquest on the dead body of the deceased was

conducted in the District Hospital and the relevant

documents from Ext. Ka-10 to Ka-16, were prepared by

the Investigating Officer. Three cloths of the deceased

were taken in possession by I.O. as material Ext. 4 to 6

and the cloth in which they were sealed was proved as

material Ext. 7. Investigation Officer had further proved

other GD entries Ext. Ka-17,Ext. Ka-18 regarding

mentioning of receipt of cloths of the deceased from the

hospital and crime conversion GD. Concluding the

investigation he had laid the charge sheet Ext. ka-23, on

30.7.2005, against the accused persons.

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The autopsy on the dead body of the deceased was

performed by Doctor Mohammad Ashraf Ali, P.W.3 on

7.7.2005 at 12.15 p.m. According to the post-mortem

examination report Ext. Ka-2, deceased was an average

built person. Rigor mortis was present in both the upper

and lower extremities. There was no sign of

decomposition. Eyes were open and mouth was half open.

150 ml. semi digested food matter was present in the

stomach and large intestine contained digested food with

gases and faecal matter. Right lung of the deceased was

perforated and about 2 litres of clotted blood was present

in the right pleural cavity. His Pericardium was perforated

and one litre blood was present in pericardium cavity.

Sternum of the deceased was also perforated. Pleura on

right side chest was cut. Following anti-mortem injury

was detected by the doctor:-

1.A stab wound 1 cm x 0.8 cm x 10.5 cm situated on

front of chest between two nipples 7 cm below root

of neck.

The tract of wound was directed inwards and towards

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right side.

In the estimation of the doctor, cause of deceased

death was haemorrhage and shock due to sustained

ante-mortem injuries.

Chief Judicial Magistrate, Rampur, took cognizance of

the offence on 8.9.2005 and, after summoning accused

persons, committed their case to the court of Sessions

for trial,where it was registered as Sessions Trial No.508

of 2005, State Vs. Ram Ratan and another. Trial Judge

framed the charges against the appellants on 21.7.2006

under Sections 302/34, 504 IPC, which were denied by

them who claimed to be tried.

In order to substantiate the charges and bring home

the guilt of the appellants, prosecution examined in all

five witnesses out of whom Shanti, informant, P.W.1 and

Munshi Lal P.W.2 were the witnesses of fact. Doctor

Mohd. Ashraf Ali P.W.3, D.C. Sharma, S.I., P.S. Patwai,

Rampur P.W.4 and Suraj Bhanu, S.I., P.S. Patwai,

Rampur, P.W.5 were formal witnesses.

In his deposition before the court, informant Shanti

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P.W.1, narrated the prosecution story dictated by him in

his written report, Ext. Ka-1 and had further testified

that, on the date of the incident Dayawati was

vetuparising standing at door of informant's house, on

which firstly Hemraj,(deceased) and then informant, his

mother, sister Kanta, brother Tejveer, Munshi Lal, Ram

Autar and Shyam Singh gathered there. Hemraj forbade

Dayawati from abusing and asked her the cause of such

abuse. Meanwhile, the two appellants also reached there.

Veer Singh appellant cuddled Hemraj and Ram Autar

appellant struck a blow in his chest from his carried

ballam and then both the accused sprinted towards the

plateau and they could not be apprehended inspite of a

apprehending chase. Sustaining injury, Hemraj fell down

on the ground and was transported to the District

Hospital, Patwai, district Rampur in an arranged tractor

but, there, the doctor was absent. There informant got

Ext.Ka-1 scribed from Amar Singh Sagar and lodged it at

the police station covering the distance on the same

tractor. Subsequent thereto, informant carried his father

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to the hospital in the same transport but there he was

declared dead. P.W. 1 was subjected to searching cross-

examination wherein he had deposed that he had

proceeded for the hospital 15 minutes after the incident

and had reached Patwai Hospital within half an hour and

there he got the FIR scribed through Amar Singh Sagar as

he himself was illiterate. He had further testified that it

took him 10 to 15 minutes to dictate the FIR. He had

denied the suggestion that FIR was not dictated by him as

he did not know the meanings of some of the words

mentioned in written report. He had further deposed that

his statement under Section 161 Cr.P.C. was recorded 15

or 20 minutes after the registration of the FIR. However

he had admitted that neither in the FIR nor in his 161

Cr.P.C. statement he had stated that appellant Veer Singh

had caught hold of the deceased by circling him from both

of his hands. He had also admitted that he had not

informed anybody regarding catching hold of the

deceased by appellant Veer Singh and that fact was

stated by him for the first time in the court. Informant

9

had further deposed that appellant Veer Singh was empty

handed and only appellant Ram Ratan had carried a

ballam with him and it was he who had escaped with that

weapon from the spot. He had also admitted that he

had informed the I.O. that the incident had occurred

during heated exchange and after giving a single blow

the weapon was pulled back by the accused Ram Ratan,

who had made his escape good towards the plateau. He

had further admitted non mentioning of Dayawati's

presence at the time of the incident and abusing by her in

his FIR and 161 Cr.P.C. Statement. He had also not

disclosed to the I.O. regarding his sister's going to the

house of Nathia because of which Dayawati nurtured a

grudge. Other insignificant contradictions and omissions

had been put to this witness to which he had denied by

offering an explanation that because of his father's

murder he was terrified and not in normal senses . He

had further deposed that he had disclosed the names of

Munshi Lal (P.W.2) and Shyam Singh to the Investigating

Officer and the spot inspection was conducted at his

10

pointing out. He had denied the suggestion that incident

did not occur at the time and place alleged by him nor he

had witnessed it and that he was deposing falsely. He

had also denied the suggestion that his father had

sustained injury in a loot attempt and he had cooked up

a false case against the appellants because of enmity.

P.W.2, Munshi Lal, had supported informant, PW1,

on material aspects of the matter and had further

testified that the incident had occurred in day light and

Investigating Officer had recorded his statement 10 and

15 days after the incident. He had admitted that at the

time of the incident Hemraj and appellant Ram Ratan had

indulged into a triadic bitter altercation and, even

though, collected persons tried to pacify them but they

did not budge and yielded to their advice . This witness

was also subjected to searching cross-examination but

nothing material could be elicited from his testimony,

which could discredit prosecution story in it's broad

aspects and regarding participation of appellant Ram

Ratan. He had further deposed that the cloths of the

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deceased were got pierced because of the sustained blow.

He had denied the suggestions that he was deposing

falsely because of his relationship with the informant and

appellant Ram Ratan had not caused any injury to the

deceased.

Doctor Mohammad Ashraf Ali P.W.3, in his deposition

had narrated the facts recorded above and had testified

that sustained injuries by the deceased was sufficient to

cause his death. He had proved his post-mortem

examination report as Ext. Ka-2. He had also proved the

death memo sent by Doctor R.K. Dhal to the police as

Ext. Ka-3. Question had been asked from this doctor

regarding presence of rigour mortis but from his cross-

examination no damaging material could be brought-

forth against the prosecution.

D.C. Sharma, S.I., P.W.4 had deposed that on

7.7.2005, while he was searching for the accused along

with Constables Kailash Chandra, Narendra Kumar and

Chandra Pal, he got the information that the accused of

the present murder case was standing near the road to

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village Nandana. On the said information he had gone to

that spot and had arrested appellant Ram Ratan at 5.15

p.m. Appellant had made a disclosure statement

regarding the weapon of the crime and at his disclosure

statement, he had recovered that weapon at 7.45 p.m.

from a paddy field near the temple and he had prepared

its recovery memo Ext. Ka-4. He had also proved GD of

that crime, as Ext. Ka-5 and the other relevant GDs

regarding the arrest and dispatch of the accused, as Ext.

Ka-6. He had also proved the recovered weapon as

material Ext.1 and material Ext.2 and the cloths in which

it was sealed as material Ext. 3. In his cross-examination

this witness had deposed that he had searched many

places to apprehend the accused of the murder charge.

This witness was cross-examined regarding his

movements but no material favourable to the defence

could be elicited from his cross- examination. He had

further deposed that the place of arrest was two and half

or three kilometres away from the police station and had

denied the suggestion that he had shown a false arrest.

13

Suraj Bhanu, S.I., P.W.5, had testified that the crime

was registered in his presence at the police station under

Section 308 I.P.C. He had narrated various steps taken by

him during investigation as have been mentioned herein

above. He had further deposed that he had sent the

recovered articles to the Forensic Science Laboratory

whose report Ext. Ka-24, dated 23.11.2005 was received

on 8.12.2005. He had further testified that he had

interrogated the informant half an hour after the

registration of the FIR and he had started conducting the

inquest at 10.00 a.m. and had completed it at 11.30

a.m. He had further deposed that the hospital was 2-2-

1/2 kilometres away from the police lines and the injured

was immediately dispatched for his medical treatment

soon after registration of the FIR. He had denied the

suggestion regarding anti-timing of the FIR and had also

denied that a false case was cooked up. He, however, had

admitted that during investigation, he had come to know

that the blow was given in heat of passion and such a

statement was also given to him by witness Ram Avtar.

14

He had been cross examined at length to surface

omissions in his investigation to show that the incident

did not occur as alleged by the prosecution. This witness

has, however, admitted that Dayawati was not present at

the spot and there was absence of blood as well at the

scene of the incident. He had also admitted that in both

161 Cr.P.C. Statement, informant had not disclosed to

him regarding abuses hurled by Dayawati at the time of

the incident. He had further admitted that since the

occurrence took place all of a sudden in heated moments

, therefore he had found the offence only under section

304 IPC for which offence only he had filed the charge

sheet.

In their statements under Section 313 Cr.P.C. the

accused persons had taken the defence of denial and of

false implication because of election rivalry.

Additional Sessions Judge, Court No.4, Rampur, on

the analysis of evidence led before it came to the

conclusions that the prosecution had established the

charge and therefore, convicted and sentenced the two

15

appellants as is mentioned in the opening part of this

judgement hence, these appeals by the two appellants.

We have heard Dr. Rajesh Kumar Srivastava,

Advocate in support of the appeal preferred by appellant

Ram Ratan and Sri P.C. Srivastava, Advocate in support

of appeal preferred by another accused Veer Singh. We

have also heard Sri A.N. Srivastava on behalf of the

informant and Smt. Raj Laxmi Sinha, learned AGA for the

opposite party State and have gone through the record

of this appeal as well as trial court record.

It was contended by both the counsels for the

appellants that the prosecution has not been able to

substantiate the charge against the appellants, FIR is a

manufactured document and is the outcome of

consultation and deliberations. It is a cooked up version

and in fact informant had never dictated it. They also

contended that the conviction under Section 302 IPC is

bad in law as admittedly the incident had occurred at the

spur of the moment amidst heated arguments and

therefore, in any view, Section 302 I.P.C. is not applicable

16

on the facts of the present case and that is why I.O. had

filed charge sheet only under section 304 I.P.C. They

also submitted that the charge framed against both the

appellants were under 302/34 and 504 I.P.C. only and

since no charge under Section 302 IPC was framed

against appellant Ram Ratan therefore, his conviction

under Section 302 I.P.C. simplicitor is bad in law. Learned

counsels further submitted that acquittal under Section

504 IPC further erodes the credibility of two prosecution

witnesses and makes them unreliable witnesses and

consequently it will be very unsafe to record conviction on

the testimony of such partly unreliable witnesses. It was

further submitted that a single blow intermission heated

exchange of words given by appellant Ram Ratan will only

make him liable for his individual act and since appellant

Veer Singh was unarmed and did not participate in the

verbal war, his conviction with the aid of Section 34 IPC is

bad in law. It was an assault at the spur of the moment ,

without any pre concerted mind and therefore common

intention to commit the crime does not and should not be

17

applied on the facts of the present case. Assault was not

pre-meditated and Veer Singh had no idea at all for such

an impulsive act of Ram Ratan, consequently his

conviction is unsustainable. They further contended that

the investigation of the offence was also not above board

and the Investigating Officer had cooked up a false case.

It was further submitted that the incident did not occur,

as was alleged by the prosecution and the testimonies of

P.W.1 and 2 suffers from intrinsic inherent

improbabilities and unnaturality and cannot be accepted

to established the guilt of the appellants. Concludingly, it

was submitted that both the appeals deserves to be

allowed and both the appellants deserves to be acquitted.

Dr. Rajesh Kumar Srivastava, learned counsel for the

appellant Ram Ratan additionally submitted that, in case

this court comes to the conclusion that appellant Ram

Ratan did participate in the incident then in that event his

crime will fall only under section 304 part II, I.P.C. and

not under 302 I.P.C. and therefore, his conviction under

Section 302 I.P.C. and sentence of life imprisonment be

18

altered to one under Section 304 (part II) I.P.C. with

sentence of 7 years R.I.

Per contra Smt. Raj Laxmi Sinha, learned AGA and

Sri A.N. Srivastava, learned counsel for the informant,

contended that both the appeals are bereft of merits and

deserves to be dismissed. A single blow according to the

doctor's opinion was sufficient to cause death and

therefore, appellant Ram Ratan was rightly convicted

under Section 302 I.P.C. Learned AGA as well as learned

counsel for the informant categorically stated that so far

as Veer Singh is concerned since he had accompanied his

brother, which was most natural, therefore his conviction

with the aid of Section 34 I.P.C. is also well merited and

consequently both the appeals deserves to be dismissed

through a judgement of affirmation of conviction and

sentences.

Analysing and cogitating over rival contentions, we

consider it appropriate to take up the case of appellant

Veer Singh first.

According to the prosecution version, as was

19

narrated in the FIR, both the accused had come to the

scene of the incident and after giving a single blow to

Hemraj, they fled away from the place of the incident.

This case, however , was exchanged during the trial and a

new case, hitherto unknown, was set up by the witnesses

of facts , according to which, Dayawati appeared at the

scene of the incident first and it was she who had started

abusing the family members of the informant's house.

Thereafter the two appellants appeared at the scene and

appellant Veer Singh caught hold of the deceased , where

as appellant Ram Ratan thrusted ballam in his chest. This

was not the case at any earlier occasion, either in the FIR

or in 161 Cr.P.C. Statements. I.O. had also admitted that

Dayawati was not present at the spot. This

embellishment, ostensibly was done to rope in Dayawati

also in the case. PW 1 informant had to admit the fact

that he had deposed regarding presence of Dayawati for

the first time in the court and not prior to it. More over

FIR case was modulated to make it congruent with the

autopsy report of a single injury by testifying that

20

appellant Veer Singh was empty handed and did not carry

any weapon with him and he had only caught hold of the

deceased. He even did not participate in the verbal tirade.

Story of catching hold was disclosed for the first time in

the court by the informant albeit he was interrogated

twice by the I.O. during investigation but in none of the

two statements he had stated that fact . To us, this was

yet another attempt to rope in the male members of

accused side by the two prosecution witnesses.

Depositions of both the witnesses of facts, PW 1 and PW

2, regarding participation of Veer Singh are

conspicuously silent with out assigning any role to him.

Ipse dixit of these two witnesses that Veer Singh

accompanied Ram Ratan at the time of the incident, by

modifying prosecution version,without assigning any

overt act to this appellant, creates suspicion on his

presence and participation in the incident. It is because

of this reason that omission to state the role assigned to

this appellant Veer Singh of catching hold of the deceased

while he was struck a blow on the chest during

21

investigation assumes importance and we consider it an

after thought and an improvement, which can not be

relied upon. Had this fact of catching hold been true , the

informant and his witnesses would not have missed it in

informing the I.O. the said fact during the course of

investigation nor the informant would have missed it

while dictating Ext. Ka 1. Absence of this very important

fact, which could not have missed it's narration, prior to

the deposition in court, makes the said fact suspect and

disproved. We find it absolutely hazardous to cement a

conviction on such evidence even with the aid of section

34 I.P.C.

At this juncture we would also like to consider the

harangued contention that section 34 I.P.C. can not be

pressed into consideration to convict appellant Veer

Singh, as the same does not apply at all. From the

evidence on record , we find the said contention well

merited. Section 34 I.P.C. is a rule of evidence and is not

a substantive penal section. It is in the statute book to

deal with situations of joint liability, where the crime is

22

committed by several accused. If the crime is committed

in furtherance of common intention of all, there is no

distinction between individual act of one accused with the

others. From the statements recorded in the court it is

well perceptible that assault was preceded by a verbal

onslaught between Ram Ratan and Hemraj. Both the

witnesses are clear and cogent in stating the said fact

and PW 2 even went on to depose that collected persons

even tried to pacify them but neither Ram Ratan nor

deceased Hemraj, budged at all and attempt to clam

them down went unheeded. It was further testified that

during that verbal tirade all of a sudden, Ram Ratan

pierced his Ballam in the chest of the deceased. In such a

scenario, when the allegations of catching hold is an

improvement and an embellishment, the act of assault by

Ram Ratan was his individual act without prior concert of

mind and sharing of common intention by appellant Veer

Singh. For the applicability of section 34 I.P.C. Consensus

ad idem (meeting of minds) of the accused is sine -qua-

non. There is a distinction between intention common to

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all and common intention of all. For the applicability of

section 34 I.P.C. not the first but the second – common

intention of all must be present. This legal aspect is born

out from the words of section 34 I.P.C. itself which

provides that if an offence is committed by several

persons “in furtherance of common intention of all” each

of such person shall be liable for the act in the same

manner as if it were done by him alone. In the present

appeals,there is no evidence that appellant Veer Singh

shared such consensus. He was empty handed. Absence

of role of catching hold in the FIR and during

interrogation by the I.O. makes participation of

appellant Veer Singh in the incident doubtful. There is no

other evidence to establish his sharing of common

intention with that of appellant Ram Ratan. Here we

would like to refer some of the decisions of the apex

court. In the case of Shashi Mohan versus State of

M.P.: AIR 2008 SC 2961 , apex court has held as under

:-

“6. In support of the appeal, learned counsel for the

24

appellant submitted that the High Court has categorically

noted that none of the eye witnesses stated that A2, the

present appellant has pre-mediated with A1 and A3

before the offence was committed. The witnesses

admitted that the appellant was not armed with weapon

and no overt act was attributed to him. Further, he was

coming from a different direction and, therefore, the

question of his sharing the common intention was not

there.

7. Learned counsel for the respondent, on the other

hand, submitted that though A2 was not armed with and

was coming from a different direction, his presence has

been established. He being the son of A1 and the brother

of A3, the main assailant the ingredients of Section 34

have been clearly established.

8. Under the provisions of Section 34 IPC the essence of

the liability is to be found in the existence of a common

intention animating the accused leading to the doing of a

criminal act in furtherance of such intention. As a result

of the application of principles enunciated in Section 34,

25

when an accused is convicted under Section 302 read

with Section 34, in law it means that the accused is liable

for the act which caused death of the deceased in the

same manner as if it was done by him alone. The

provision is intended to meet a case in which it may be

difficult to distinguish between acts of individual members

of a party who act in furtherance of the common intention

of all or to prove exactly what part was taken by each of

them. As was observed in Ch. Pulla Reddy and Ors. v.

State of Andhra Pradesh (AIR 1993 SC 1899), Section 34

is applicable even if no injury has been caused by the

particular accused himself. For applying Section 34 it is

not necessary to show some overt act on the part of the

accused.1993 AIR SCW 1843

9. When the background facts are considered in the light

of legal principles set out above, the position is clear that

the accusations were not established so far as the

present appellant is concerned. No evidence was led to

show sharing of common intention. The appeal deserves

to be allowed which we direct. He be set at liberty

26

forthwith unless required to be in custody in connection

with any other case.”

In another decision Baso Prasad and others versus

State of Bihar :AIR 2007 SC 1019, the apex court has

held as under :-

“41. We, however, are not oblivious of one patent

fact. In the First Information Report, the first informant,

attributed the act of firing to Brijandan Prasad and

Sahdeo. PW-4, however, in his deposition before the

Court attributed the act of firing only to Brijnandan

Prasad. According to him, other persons were only

wielding rifles. Shivanandan Prasad fell down after

receiving the gunshot and died. He in his cross-

examination also attributed the act of firing only to

Brijnandan Prasad. PW-5 although stated that all the

accused had started firing but even according to her

Brijnandan Prasad fired shot which had hit the deceased

on his chest. Evidence of PW-6 is also to the same effect

that the shot which had hit his father on the chest was

fired by Brijnandan Prasad. PW-7 and PW-8 also named

27

Brijnandan Prasad.

42. The prosecution case is that the dispute started on

lighting of fire on a heap of straw. The accused allegedly

hurled brick bats, which compelled the deceased to come

to the roof to forbid them from doing so. Whereas

Brijnandan Prasad alone fired a shot which had hit the

deceased, there is no evidence brought on record to show

that any other accused did so. No gun shot injury was

suffered by any person. The deceased has also suffered

only one gun shot injury. No sign of firing was found on

the walls or any other part of the building. No cartridge

was recovered.

43. Even no other person had suffered any injury by

reason of hurling of brick bats. Having regard to the

materials brought on records, we are of the opinion that

in this case although the prosecution has proved the

charge of committing the murder of the deceased, it has

failed to establish that the accused had any common

intention in relation thereto. Brijnandan Prasad alone

was, thus, responsible therefore. Had the other accused

28

shared common intention with Brijnandan Prasad, they

would have also fired. No such evidence having been

brought on record, benefit of doubt must be extended to

the other accused persons.”

Yet in another decision Anil versus State of

Haryana AIR 2007 Supreme Court(Suppl) 761

supreme court has upheld the acquittal of other accused

than the main accused as they did not share the common

intention and did not participate in the incident.

In the present case trial court went wrong in

convicting appellant Veer Singh on such embellished,

improved, un-established evidence, which was stated in

the court for the first time, without being mentioned at

any earlier stage. In our view , trial court committed

grave error in accepting new case stated before it for the

first time. There was no evidence that prior to the

incident there was any common intention shared by both

the appellants. The said intention did not develop at the

time of the incident as well and therefore we are of the

view that section 34 I.P.C. can not be resorted, to hold

29

appellant veer Singh guilty of any crime. His presence at

the spot and participation in the crime is doubtful and

therefore he is entitle to the benefit of doubt.

Turning towards the appeal of appellant Ram Ratan,

we find his participation in the incident established

beyond a shadow of reasonable doubt. His wife Dayawati,

was related with Nathia. According to the prosecution

case Dayawati had been making bitter utterances

because of visit of Kanta to Nathia, which she did not

relished. Even though we ignored the modulated version

of vetuparisation by Dayawati preceding the assault, as

the said fact does not find mention either in the FIR or in

statements of the informant given to the I.O. and also

because of acquittal of appellants under section 506

I.P.C., and go only by the FIR version, even then the

participation of Ram Ratan appellant is writ large on the

evidence on record. Going by narrations in the FIR some

altercation ensued between Ram Ratan accused and

deceased while the former was passing through from the

front of the house of the informant. Whether deceased

30

generated the heated exchange or Ram Ratan generated

it is not clear,as, even deceased also had good reasons

to start the altercation because of utterances made by

Dayawati against Kanta,who was his daughter, but the

proved fact is that both appellant Ram Ratan and

deceased engaged themselves in a verbal dual in the

course of which a single blow was pierced by the

appellant in the chest of the deceased. In this respect we

don't find prosecution case to be shaky or dented. Both

the witnesses of facts are clear and unambiguous on the

said issue. Inspite of tiring and lengthy cross

examination, defence has not been able to shake their

testimony in this respect. Their evidence is in consonance

with medical evidence and the role of this accused

appellant Ram Ratan is well deposed, which finds

corroboration from attending circumstances as well. This

version of assault by Ram Ratan appellant could not be

dislodged by the defence, even on the suggestion that the

deceased sustained injury in an incident of attempt to loot

him. Record of the appeal sans material for such an

31

empty suggestion. Thus, unhesitatingly, we are of the

opinion that incident did occur between Ram Ratan and

deceased Hemraj at the time and date of the incident at a

place suggested by the prosecution and in this respect

prosecution has been able to establish it's allegations.

Now we take up the concluding submission that the

guilt of appellant Ram Ratan can not be culpable homicide

amounting to murder punishable under section 302

I.P.C., but will fall short of it of culpable homicide not

amounting to murder punishable under section 304 part

II, I.P.C. This raised argument depended upon the

factual matrix of the evidence led during the trial and we

find much substance in it. According to the FIR

allegations, while appellant Ram Ratan was passing

through the front of the house of the informant an

altercation ensued between him and Hemraj deceased.

Who generated it is shrouded in mystery, but, from the

facts we can safely conclude that it was the deceased

who started it. Kanta against whom utterances were

made by the wife of appellant Ram Ratan is the daughter

32

of the deceased and therefore deceased must have taken

those bitter words as temerity or faux pas. There was

every reason for him to accost Ram Ratan for the conduct

of his wife. This seems to be more probable genesis of

the incident and it transpires that because of this reason

that FIR does not mention abuses by Dayawati prior to

assault and catching hold of the deceased by appellant

Veer Singh. What is most significant is that Dayawati was

not prosecuted at all for any offence what so ever nor the

prosecution endeavoured for her prosecution. I.O. also

did not find her presence at the spot and therefore

presence of Dayawati at the spot is not a established

fact. Accosting by Hemraj regarding the conduct of his

wife must have been taken to be an ignominy by

appellant accused Ram Ratan. Evidence of the two fact

witnesses further reveal that inspite of attempts by

collected people to pacify both of them, neither the

deceased nor the appellant heeded to the said requests.

In such a fact situation, if a single blow was given by the

appellant to the deceased, it is very difficult to conclude

33

that appellant acted with the requisite intention to commit

murder within the parameters of section 300 I.P.C. It is

not known , whether appellant intended to inflict such an

injury as was sustained by the deceased or it was just an

impulsive act during heated exchange of words which

resulted in causing injury to the deceased. Assault by

making a single blow further strengthen the view that the

appellant did not intended to cause death of the deceased

and it was an act of moment in heat of passion. Thus

there was absence of intention on the part of the

appellant to cause death of the deceased or to cause him

such bodily injury as was likely to cause his death in all

probability. Further, death of the deceased was not

instantaneous. Non availability of the doctor at the

hospital, not carrying the deceased to another hospital

but instead, dictating the FIR and going to the police

station first and there getting the FIR registered before

carrying the injured to the hospital and the woeful loss

of time in getting medical help to the injured, all these

factors must have also contributed in loss of deceased

34

life, for which the act of appellant Ram Ratan can not be

held to be responsible. Further un-established fact of

introduction of wife of appellant Ram Ratan at the scene

and not proven fact of her hurbingering the incident by

hurling abuses dents the credibility of prosecution

witnesses making them only partly reliable. As stated

above narration of the incident in Ext. Ka 1 indicates

occurring of the incident at the spur of the moment

without any preceding abusive altercation or in a pre

concerted manner. I.O. had also charge sheeted the

appellants only under sections 304 I.P.C. And therefore

we find that the conviction of appellant Ram Ratan under

section 302 I.P.C. is indefensible and can not be

sustained. He can be held to be guitly only under section

304 Part I, I.P.C. as knowledge of death being the out

come can not be denied.

In view of our above findings, we consider it wholly

un-necessary to deal with another point that charge

under section 302 I.P.C. simplicitor was not framed

against appellant Ram Ratan and therefore, he could not

35

have been convicted under that offence as that will be

only an academic discussion.

Summing up, Criminal appeal No. 3889 of 2006, Veer

Singh versus State of U.P is allowed. Appellant Veer Singh

is acquitted of the charge under section 302 /34 I.P.C

and his sentence of life imprisonment with fine of

Rs.1000/- recorded by Additional Sessions Judge, court

no.4, Rampur, vide his impugned judgement and order

dated 7.7.2006 passed in Sessions Trial No.508 of 2005,

State Versus Ram Ratan and another are hereby set

aside. He is on bail. He need not surrender. His personal

and surety bonds are discharged.

Criminal Appeal No. 4371 of 2006, Ram Ratan

Versus State of U.P. is party allowed. Conviction of

appellant Ram Ratan under section 302 IPC and his

sentence of life imprisonment with fine of Rs. 1000/=

recorded by Additional Sessions Judge, court no.4,

Rampur, vide his impugned judgement and order dated

7.7.2006 passed in Sessions Trial No.508 of 2005, State

Versus Ram Ratan and another are hereby set aside and

36

instead he is convicted under section 304 I, I.P.C. in the

said Session's trial and is sentenced to 7 years RI,

which on the facts of the case shall meet the ends of

justice. Appellant is in jail. He shall serve out his

sentence.

Let a copy of this judgement be certified to the trial

court for intimation and necessary action.

Dt/25.8.2009

RK/