Chauthi Yadav vs State Of U.P.
2015 Latest Caselaw 2333 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgement Reserved on 25.8.2015
 
Judgement Delivered on 16.9.2015
 

 
1.	Case :- CRIMINAL APPEAL No. - 1527 of 2011 
 

 
Appellant :- Chauthi Yadav 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- R.C. Maurya,A.K. Rai,R.C. Yadav,Ravindra Nath Rai,S.K.Pathak,Sudist 
 
Counsel for Respondent :- Govt. Advocate,B.N. Pandey,D.N. Pandey 
 

 
with 
 

 
2.	Case :- CRIMINAL APPEAL No. - 1528 of 2011 
 

 
Appellant :- Ram Sewak Yadav And Anr. 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- R.C. Maurya,R.C. Yadav,Ravindra Nath Rai,Sudist 
 
Counsel for Respondent :- Govt. Advocate,B.N.Panedy,D.N. Pandey 
 

 
Hon'ble Om Prakash-VII,J.

1. These criminal appeals have been preferred by the accused/ appellants against the judgement and order dated 5.3.2011 passed by the Additional District & Sessions Judge/ Special Judge (Anti-Corruption), Varanasi in Session Trial No. 126 of 2006 (State of U.P. vs. Chauthi Yadav and others) convicting and sentencing the appellants for the offence punishable under Section 323/34 IPC for six months rigorous imprisonment to all the appellants and a fine of Rs. 500/- each, for the offence punishable under Section 304(1)/34 IPC for ten years rigorous imprisonment to all the appellants and a fine of Rs. 5000/- each, for the offence punishable under Section 504 IPC for three months rigorous imprisonment to all the appellants and for the offence punishable under Section 506(2) IPC for six months rigorous imprisonment. All the sentences have been directed to run concurrently.

2. Since these criminal appeals have been filed against the same judgement and order, and have been connected vide order dated 15.3.2011 passed in Criminal Appeal No. 1528 of 2011 and have also been heard together, therefore, the same are being decided by this judgement.

3. The facts of the case, as unfolded by the informant Teju Yadav in the First Information Report (in short 'F.I.R.'), are that on 17.9.2005 at about 6.30 p.m. having dispute with regard to path, nand and khunta, Ram Sewak Yadav, Nand Kishor Yadav sons of Chauthi Yadav and Chauthi Yadav son of Narottam Yadav armed with lathi and hurling abuses gathered at the door of the informant. Chauthi Yadav exhorted to assault on the informant side asking that they(informant side) had stepped into shoes. Ram Sewak and Nand Kishor started beating to his father and due to injuries sustained by him, he fell down on the earth and became unconscious. On making noise by them, Bachcha Lal Yadav son of Vishwanath, Lallu Yadav son of Chaman Yadav and many other people reached there, who witnessed the incident. All the three assailants fled away from the spot extending threat to kill. Father of the informant received serious injuries on head, right ear, nose and waist.

4. On the basis of the said written report (Ext. Ka-1), Chik - First Information Report (in short 'FIR') (Ext. Ka-11) was registered on the same day at 20.05 hours at the concerned Police Station at Crime No. 264 of 2005 under Sections 323/504/506/308 IPC. G.D. Entry (Ext. ka-12) was also made at Rapat No. 45 after registering the Chik.

5. Injured / deceased Laudhar was admitted in S.S.P.G. Hospital, Varanasi and was examined by doctor concerned on 17.9.2005. Injury Report (Ext. ka-3) was prepared. On examination, following injuries were found on his body:

"(1) Lacerated wound 3 cm x 5 cm length and breath bone deep 11 cm above from right must void on scull.

(2) Contusion 4 cm x 3 cm length and breath 8 cm above from right must void.

(3) Bleeding from right ear.

(4) Complain of pain right hip region."

6. On receiving information regarding death of the deceased, concerned Police reached at the mortuary and prepared inquest report alongwith other police papers. Death Certificate issued by the concerned hospital is Ext. ka-4. Information sent to the concerned police station is Ext. ka-5. Dead-body of the deceased was kept in a sealed cloth preparing the sample seal and was sent for post mortem.

7. Post mortem on the dead-body of the deceased was done at B.H.U. Mortuary on 18.9.2005 at 3.30 p.m.. Dead-body was identified by Constables Chandra Pratap Singh and Shailesh Yadav.

8. As per the post mortem report (Ext. ka-6), the deceased was about 60 years old. On external examination, the Doctor found the deceased of average built and the rigor mortis passed all over body. Eyes and mouth were closed.

9. On examination of the dead body of the deceased, following ante-mortem injuries were found:

"Stitched wound 13 cm from right ear and 14 cm from right eye brow on top of head."

10. In the opinion of the doctor, death was caused as a result of head injury.

11. The Investigating Officer proceeded to investigate the case. He copied chick FIR and G.D. in the case diary and also recorded statement of chik writer. On 18.9.2005, he copied the injury report of the deceased in the case diary and also recorded statement under Section 161 Cr.P.C. of the witness Lallu Yadav. He inspected the spot and prepared site plan (Ext. ka-7) showing all the details in it. He also made search of accused persons. Information regarding death was also entered at police station concerned at Rapat No. 46, which was also copied by the Investigating Officer in the case diary. Accused persons were arrested and interrogated. Other witnesses were also interrogated by the Investigating Officer. He also copied the post-mortem report in the case diary and recorded the statement of the inquest witnesses.

12. After completing the investigation, charge-sheet (Ext. ka-10) against all the accused appellants was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by the sessions court, was committed to the Court of sessions.

13. Accused/appellants appeared and charge under Sections 323/34 IPC, 304/34 IPC, 504 and 506(II) IPC was framed in the trial court against them. All the accused have pleaded not guilty and claimed their trial.

14. Trial proceeded and in order to prove its case, the prosecution examined six witnesses, wherein PW-1 Teju Yadav, informant, as eye account witness, PW-2 Bachcha Lal Yadav, as eye account witness, PW-3 Dr. Chandra Kishor Prasad Singh, who medically examined the injured Laudhar, PW-4 Dr. Anoop Kumar, who conducted the post mortem on the body of the deceased Laudhar and prepared autopsy report. PW-5 Sub-Inspector Molai Ram Saroj, the Investigating Officer who has proved the charge-sheet (Ext. ka-10) and PW-6 Sub-Inspector Devtanand Singh, chik writer.

15. After closure of the prosecution evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded

16. Accused persons in their statements under Section 313 Cr.P.C. denied the allegations levelled against them and stated that they are innocent and the whole prosecution story is false.

17. Despite opportunity having been given to the accused persons, no evidence was adduced by them. Only an application had been moved with the prayer for inspection of the spot , which was rejected by the trial court.

18. After hearing the learned counsel for the prosecution and defence, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused/appellants beyond reasonable doubt and the accused / appellants were convicted and sentenced, hence these appeals.

19. I have heard Shri S.B. Singh, learned counsel for the appellants in both the appeals and Shri Zafer Ahmad, learned AGA for the State, and have gone through the entire record.

20. Castigating the impugned judgement and order, learned counsel for the appellants has submitted that the prosecution could not prove its case beyond reasonable doubt. FIR was lodged after consultation. PW-1 and PW-2 are not eye account witnesses and they have been planted as eye witness in the matter after consultation and due to that reason, there is contradiction in their statements on major points i.e. place of occurrence, role of accused and manner of the incident. It was further submitted that PW-2 Bachcha Lal Yadav is an Advocate and he himself has admitted that he resides at Raja Talab, therefore, his presence on the spot at the time of the incident is improbable. Witnesses have made improvement at the stage of evidence. Motive suggested in the FIR was also not proved by the prosecution. Medical evidence does not support the prosecution version. There are contradictions in the statement of doctors about the number of injuries. The Investigating Officer has made perfunctory investigation due to which place of occurrence is not established beyond reasonable doubt from the prosecution evidence. It was further submitted that essential ingredients to constitute the offence under Section 304 Part (I) IPC were also not proved by the prosecution from its evidence. The trial court did not appreciate the prosecution evidence in right perspective and wrongly convicted and sentenced the accused appellants for the offence under Section 304 Part (I) IPC.. The doctor has opined that only one injury was found on the head of the deceased, therefore, on this ground, the presence of the eye account witnesses on the spot becomes doubtful. It was next contended that the accused appellant Chauthi Yadav, who is aged more than 70 years and is on bail, has not caused any injury to the deceased as is evident from the prosecution evidence and other accused appellants have served-out about seven years imprisonment against the maximum sentence of ten years, a lenient view in the matter be taken.

21. On the other hand, Shri Zafar Ahmad, learned AGA appearing for the State has submitted that offence took place at 6.30 p.m. in front of the door of the deceased. Presence of PW-1, who is the son of the deceased on the spot at the time of the incident, cannot be doubted. Similarly, the parental house of PW-2 Bachcha Lal Yadav is also adjacent to the place of occurrence. Though he is a practising lawyer yet his presence on the spot at the time of incident cannot be doubted, as place of occurrence is not far away from the Civil Court, Varanasi. Medical evidence fully supports the prosecution version. Minor contradictions, discrepancy, inconsistency in the statements of witnesses do not affect the veracity of the statements. Deceased died due to head injury as is clear from the statement of the doctor. Motive / intention have been proved by the prosecution. Prosecution witnesses have clearly specified role of the accused appellants. Laches or lapse on the part of the police or investigating agency will not affect the testimony of the ocular witnesses. The trial court has correctly appreciated the prosecution evidence. There is no illegality, infirmity or perversity in the findings recorded by the trial court in the impugned judgment and order. Hence, the appeals be dismissed.

22. I have considered the rival submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence.

23. First and foremost question in the present matter is as to whether the prosecution was able to establish the motive against the accused appellants to commit the present offence.

24. Although I am oblivious of the fact that motive relegates into the back ground in a case of direct ocular testimony and is not of much significance, but where the motive is false and cooked up, then it assumes importance to test the veracity or other wise of the prosecution witnesses.

25. As is evident from the FIR and the statement of PW-1 and PW-2, the present incident took place due to dispute between the parties regarding path, nand, khunta and charhi. The trial court finding on this point is that motive attributed to the accused appellants for commission of the present offence was established by the prosecution beyond reasonable doubt. The deceased and the accused appellant Chauthi Yadav are the real brothers. The other appellants are nephew of the deceased. It is admitted fact between the parties that houses and sahans of both the parties are adjacent to each other. Defence could not rebut the facts stated by the prosecution witnesses. Thus, after close scrutiny of the examination-in-chief and the cross-examination of the PW-1 and PW-2, this Court is of the view that the finding recorded by the trial court on the point of motive is correct. In the present matter, the prosecution case rests on the strength of eye account witnesses on this point. As mentioned above, though motive plays an important role in committing the offence yet where there are eye account evidence, motive loses its significance. It may also be mentioned here that motive is double edged weapon, at one point of time, it may be a reason for committing the offence and at the same time, it may also be a reason for false implication. In the opinion of the court, the finding recorded by the trial court on this point is not illegal, perverse and does not require interference. The submission made by the learned counsel for the appellants in this regard is not acceptable.

26. So far as the submission of the learned counsel for the appellants that FIR was lodged after consultation is concerned, in the present matter, offence is said to have been committed at 6.30 p.m. on 17.9.2005. Place of occurrence is twelve kilometres away from the concerned police station. FIR was lodged at 20.05 hours. Informant is the son of the deceased, who claims himself to be an eye witness of the incident. It is also the case of the informant that he got prepared the written report (Ext. ka-1) at the place of occurrence itself. He alongwith other persons taking the deceased proceeded to lodge the FIR. PW-2 at one point of time stated that initially the injured (deceased) was sent to Raja Talab out-post and where-from he was sent to Rohania police station where the FIR was lodged.

27. On close scrutiny of the entire evidence on the point of lodging of FIR, the Court does not find any substance in the submission made by the learned counsel for the appellants that FIR was lodged after consultation. In the instant matter, FIR was lodged promptly. Time taken in lodging the FIR is probable and natural one. Deceased, after lodging the FIR, was brought by the concerned police to S.S.P.G. Hospital for treatment. Injury report (Ext. ka-3) also indicates that deceased was medically examined on 17.9.2005 at 9.10 p.m.. Thus, the view taken by the trial court on this point is in accordance with the evidence available on record and it cannot be said that the FIR was lodged after consultation and the same is not a suspicious document. FIR can also not be doubted on the ground that PW-2 is an Advocate. The submission made by the learned counsel for the appellants in this regard is not acceptable.

28. Now the Court comes to the submission regarding place of occurrence.

29. The submission of the learned counsel for the appellants is that in the FIR place of occurrence is shown at the door of the house of the deceased. PW-1 in the cross-examination has admitted that the deceased was dragged from his house to the house of the accused appellants. PW-2 has stated that occurrence took place in front of the house of the deceased, as has been shown in the site-plan by letter 'A'. The Investigating Officer has shown the place of occurrence in front of the house of the deceased by letter 'A', which is situated near the path. The Investigating Officer has not shown any boundary wall between the houses of the deceased and the accused appellants. The Investigating Officer has also not supported this fact that deceased was dragged from his house to the house of the accused appellants. It was further submitted that investigation in the matter was not properly done by the Investigating Officer and from the prosecution evidence, place of occurrence is shown at three places.

30. Though, there is contradiction in the statements of the Investigating Officer and the PW-1 and PW-2 on the point of place of occurrence yet on close scrutiny of the entire evidence, it emerges that place of occurrence shown in the site plan (Ext. ka-7) is situated in front of the house of the deceased near the lane. Some contradiction has occurred in the statement of PW-1 and PW-2 on the point of dragging of the deceased by the accused appellants but the statement of eye account witnesses is clear and consistent on this point that incident took place in front of the house of the deceased. As to whether the boundary wall said to be in existence between the houses of the deceased and the accused appellant Chauthi Yadav is shown by the Investigating Officer or not is not material in the matter and on this score if there is any lapse on the part of Investigating Officer, the statement of eye account witnesses regarding place of occurrence cannot be disbelieved. It is well settled proposition of law that any lapse or defect occurred in the investigation or laches on the part of the Investigating Officer does not affect the veracity of the statement of reliable prosecution witnesses until and unless those are of such nature that the entire prosecution story is collapsed. Further in Zindar Ali Sheikh vs. State of West Bengal and another, (2009) 2 SCC (Cri) 737, the Apex Court has held that defence cannot take advantage of bad investigation where there is clinching evidence available to the prosecution. In the present case, laches on the part of the Investigating Officer are not of such nature which may collapse the entire prosecution story. As a general principle, it can be stated that error, illegality or defect in investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused. (vide : Union of India vs. Prakash P. Hinduja, AIR 2003 SC 2612]. Further, if the prosecution case is established by the evidence adduced, any failure or omission on the part of the Investigating Officer cannot render the case of the prosecution doubtful [vide : Amar Singh vs. Balwinder Singh, AIR 2003 SC 1164, Sambu Das vs. State of Assam, AIR 2010 SC 3300]. Hence, the submission made by the learned counsel for the appellants in this regard cannot be accepted and the finding recorded by the trial court on this point is not liable to be interfered with.

31. In the instant case, the deceased is said to have been beaten by the accused appellants Nand Kishor Yadav and Ram Sewak Yadav at the place of incident by the weapon lathi. Medical evidence clearly supports this fact. Head injury, which was the cause of death, could be caused by lathi. Keeping in view the mode & manner of the commission of the offence, the lathi, said to have been used in commission of the present offence, could be assumed as a lethal weapon. Deceased Laudher died in the intervening night of 17/18.9.2005 due to injuries caused by the accused appellants by lathi. Initially in the injury report (Ext. ka-3) four injuries are shown on the body of the deceased. First injury is lacerated wound on scull, second injury 'contusion' is also in the same region, third injury is bleeding from right ear and fourth injury is complain of pain on right hip. Doctor conducting the post mortem has reported only one stitched wound on the head. Since injury nos. 1 and 2 were on the same region, it might be possible that both injuries might have been stitched together. Thus, there is no contradiction in the prosecution evidence on the point of number of injuries. Hence the submission of the learned counsel for the appellants that the medical evidence is in conflict with the oral version is not acceptable.

32. When medical evidence is not in conflict with the oral version, PW-1 and PW-2 both claimed to be eye account witnesses and their statements on the point of manner and time of the incident is fully supported from the medical evidence, therefore, if there is any lapse on the part of the Investigating Officer in conducting investigation, the statement eye account witnesses cannot be discarded.

33. So far as the submission regarding contradictions / discrepancies occurred in the statement of prosecution witnesses on the point of manner of the incident and role of the accused appellants is concerned, in the case of State of U.P. Vs. Krishna Master and others; 2010 Cri. L.J. 3889 (SC) Hon'ble Apex Court held that "prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof." The Hon'ble Apex Court further held that "the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole."

34. In view of above pronouncement of Hon'ble Apex Court, I am of the view that testimonies of eye account witnesses may not be discarded on the ground of minor contradiction or discrepancy. PW-1 and PW-2 have clearly and consistently stated that accused appellants Nand Kishor Yadav and Ram Sewak Yadav have caused lathi blow to the deceased. Medical evidence clearly reveals that injuries found on the body of the deceased could be caused by the lathi. Thus, there is no any infirmity or illegality in the finding of the trial court regarding medical evidence.

35. So far as the participation of the accused appellant Chauthi Yadav in the present matter is concerned, PW-1 and PW-2 have stated before the Court that accused appellant Chauthi Yadav only made exhortation to beat the deceased. When the witnesses reached at the place of occurrence, all the accused appellants fled away from the place of occurrence extending threat to kill. What words were actually uttered or used by each of the accused appellants while extending threat at the time of fleeing-away from the spot has not been clearly stated by the prosecution witnesses. As per prosecution case, accused appellant Chauthi Yadav has not caused injuries to the deceased. Only role of exhortation has been assigned to him. If the statement of PW-1, PW-2 and the PW-5 (I.O.) as a whole is taken into consideration to analyse this fact, it emerges that prosecution could not prove its case beyond reasonable doubt regarding participation of the accused appellant Chauthi Yadav in commission of the present offence. As no injury was caused to the deceased by the accused appellant Chauthi Yadav, there is only role of exhortation, then applying the rule of caution, it would be just and proper to set-aside the conviction and sentence imposed upon him because there is contradiction in the statement of PW-1, PW-2 and PW-5 about the exact role played by this appellant. Taking recourse of the provisions of Section 34 IPC, conviction of the accused appellant Chauthi Yadav would also be not justifiable and sustainable.

36. So far as the role assigned to the accused appellants Nand Kishor Yadav and Ram Sewak Yadav is concerned, they have caused injuries to the deceased. They were armed with lathi. Prosecution evidence is clear and consistent regarding participation of these two appellants in commission of the present offence. Medical evidence fully supports the oral version. Contradictions occurred in oral statement on material points are not fatal to the prosecution case. Thus, this Court is of the view that the trial court has rightly convicted and sentenced the accused appellants Nand Kishor Yadav and Ram Sewak Yadav holding them guilty for causing death of the deceased Laudher under Section 304 Part (I) IPC read with Section 34 IPC.

37. As far as the conviction of the accused appellants Nand Kishor Yadav and Ram Sewak Yadav under Section 323/34 IPC is concerned, injuries were caused only to the deceased Laudher, who died during treatment on the same day due to injuries received by him in the present case. Accused appellants Nand Kishor Yadav and Ram Sewak Yadav have been convicted and sentenced for the offence under Section 304 Part (I) IPC read with Section 34 IPC, therefore, in the opinion of the Court, conviction and sentence holding guilty to the accused appellants Nand Kishor Yadav and Ram Sewak Yadav for the offence under Section 323/34 IPC is not legal one and is liable to be set-aside. Similarly, conviction and sentence holding guilty to the accused appellants Nand Kishor Yadav and Ram Sewak Yadav for the offence under Sections 504 IPC and 506(II) IPC are also not liable to be sustained for the reason that what words were actually uttered or used by these two accused appellants to attract the offences under Sections 504 IPC and 506(II) IPC is not clear from the prosecution evidence. There is joint statement. Thus, in view of the above, it would not be safe to hold guilty to the accused appellants Nand Kishor Yadav and Ram Sewak Yadav for the offence under Sections 504 IPC and 506(II) IPC. Conviction and sentence of these two appellants under Sections 504 IPC and 506(II) IPC is also liable to be set-aside.

38. Submission of the learned counsel for the accused appellants is that accused appellants Nand Kishor Yadav and Ram Sewak Yadav have served-out near about seven years sentence out of the ten years maximum sentence imposed upon them by the trial court, therefore, a lenient view be taken in the matter enlarging them on the basis of the period already undergone.

39. It is noteworthy that awarding of sentence is always a difficult task which requires balancing of various considerations. In the present matter, maximum sentence imposed upon the accused appellants is of ten years and a fine of Rs. 5,000/- each.

40. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

41. In view of the above propositions of law, the paramount principle that should be the guiding factor is that the punishment should be proportionate to the gravity of the offence.

42. Upon careful analysis and consideration of the settled legal position in the backdrop of the facts and circumstances of the present case, particularly when the deceased died due to injuries sustained by him on his head just after six hours of the incident and the prosecution was able to prove that the injuries found on the body of the deceased were caused by the accused appellants Nand Kishor Yadav and Ram Sewak Yadav, Section 304 Part I IPC is clearly attracted in the present case. As per the provisions of Section 304 Part I IPC, maximum punishment of life imprisonment could be imposed and the accused shall also be liable to pay fine. In the present case, the trial court has imposed ten years rigorous imprisonment and a fine of Rs. 5,000/- to each accused appellants. The trial court has not imposed the extreme sentence / punishment and has taken a lenient view in imposing the sentence upon the accused appellants.

43. Hence, in view of the provisions of Section 304 Part I IPC, the settled legal position and the findings recorded by the trial court on the point of imposing sentence in the present case, I am of the opinion that the sentence / punishment imposed upon the accused appellants Nand Kishor Yadav and Ram Sewak Yadav by the trial court in the impugned judgment and order would meet the ends of justice and the same is not manifestly excessive, disproportionate, inadequate or unreasonable. The submission made by the learned counsel for the appellants in this regard is not acceptable.

44. Thus, I am of the opinion that the conclusion taken by the trial court regarding conviction and sentence of the accused appellants Nand Kishor Yadav and Ram Sewak Yadav for the offence under Section 304 Part I IPC read with Section 34 IPC is in accordance with law and the evidence available on record.

45. In view of the foregoing discussions, I am of the opinion that the criminal appeal no. 1527 of 2011 is liable to be allowed and the conviction and sentence imposed upon the accused appellant Chauthi Yadav vide impugned judgment and order under Sections 323 IPC read with 34 IPC, Section 304 Part I IPC read with Section 34 IPC, Section 504 IPC and under Section 506(2) IPC is liable to be set-aside.

46. Further, connected criminal appeal no.1528 of 2011 having some merits is liable to be partly allowed setting-aside the conviction and sentence of the accused appellants Nand Kishor Yadav and Ram Sewak Yadav under Sections 323 IPC read with Section 34 IPC, Section 504 IPC and Section 506 (II) IPC. The conviction and sentence imposed upon the accused appellants Nand Kishor Yadav and Ram Sewak Yadav by the trial court in the impugned judgment and order dated 5.3.2011 under Sections 304 Part I IPC read with Section 34 IPC is liable to be upheld.

47. Accordingly, criminal appeal no. 1527 of 2011 is allowed and the conviction and sentence imposed upon the accused appellant Chauthi Yadav vide impugned judgment and order dated 5.3.2011 under Sections 323 IPC read with 34 IPC, Section 304 Part I IPC read with Section 34 IPC, Section 504 IPC and Section 506(II) IPC is set-aside as the accused appellant Chauthi Yadav is found not guilty for the offence punishable under Sections 323 IPC read with 34 IPC, Section 304 Part I IPC read with Section 34 IPC, Section 504 IPC and Section 506(2) IPC. He is acquitted of all the charges framed against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.

48. Further, connected criminal appeal no.1528 of 2011 having some merits is partly allowed setting-aside the conviction and sentence of the accused appellants Nand Kishor Yadav and Ram Sewak Yadav under Sections 323 IPC read with Section 34 IPC, Section 504 IPC and Section 506 (II) IPC. The conviction and sentence imposed upon the accused appellants Nand Kishor Yadav and Ram Sewak Yadav by the trial court in the impugned judgment and order dated 5.3.2011 under Sections 304 Part I IPC read with Section 34 IPC is upheld.

49 Copy of this judgement be also kept on the record of Criminal Appeal No.1528 of 2011.

50. Copy of this judgement alongwith lower court record be sent forthwith to the Sessions Judge, Varanasi for compliance. Compliance report be sent to this Court.

Order dated : 16th September, 2015

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