Yogendra Yadav And Others vs State Of U.P.
2019 Latest Caselaw 1237 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 

 
Reserved on: 07.02.2019
 
    Delivered on: 14.03.2019
 

 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 997 of 1985
 
Appellant :- Yogendra Yadav And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.D.Giri,R. A. Ram
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present criminal appeal has been filed by the three appellants namely Yogender Yadav son of Ram Pher @ Chulhai, Virendra Yadav son of Ram Pher @ Chulhai and Ram Pher @ Chulhai son of Kishun Yadav against judgment and order dated 11.04.1985 passed by IV Additional & Sessions Judge, Azamgarh in Sessions Trial No. 440/83 convicting and sentencing appellant no.1 under section 302 IPC for life imprisonment and convicting and sentencing the appellant nos. 2 and 3 under sections 323/34 IPC for one year and fine of Rs. 500/- each and he was released on probation for one year.

2. Appellant no.3 Ram Pher @ Chulhai has died during the pendency of the appeal and his appeal has been ordered to be abated by this Court vide order dated 01.08.2018. Hence, the present appeal survives with respect to appellant nos.1 and 2 only which is heard and decided by this Court on merits.

3. The prosecution case in brief is that Ram Pher @ Chulhai was a collateral of informant Duryodhan and there was a litigation going on between the informant and the accused persons for an agricultural land on account of which the relation between them was not cordial. On 01.08.1983, at about 12 noon, the accused Ram Pher @ Chulhai had brought his buffalo and left her in the agricultural field of the informant for grazing due to which the mango grove of the informant got damaged. Sister in law of the informant namely Smt. Dhanesri Devi driven out the buffalo and complained about the same to accused Ram Pher @ Chulhai who started abusing her. When she objected to the abuses given to her by accused Ram Pher @ Chulhai, he assaulted her with lathi. On the alarm raised by Smt. Dhanesri, the informant along with his nephews Siddhu and Mahender son of Tilak Dhari rushed towards the place of occurrence. On seeing the complainant party coming towards his place, accused Ram Pher @ Chulhai exhorted and uttered for bringing lathi and spear. Accused Ram Pher @ Chulhai was armed with lathi and his two sons were armed with lathi and spear who assaulted the complainant party. The informant and the witnesses tried to save themselves from the assault of lathi and also screamed loudly. On hearing the noise, Gomti son of Baldev Yadav, Jagdev son of Sushihal, Kurmi Chandbali son of Dhamu Kurmi, Harinath son of Pratap Yadav, Ram Samujh son of Chander Yadav and other villagers arrived at the place of occurrence. Accused Yogender assaulted Siddhu (nephew of the informant) in his abdomen by his spear with the intention to kill him. After receiving the injuries, Siddhu fell down. The witnesses tried to reconcile the parties. Smt. Dhanesri and Mahender also sustained injuries of lathi on their person. The nephew of the informant Siddhu who suffered injuries of spear in his abdomen was taken on a cot to the police station but he died on the way. On 01.08.1983, a report was written by Jagan Yadav son of Vasudev and the same was submitted by the informant Duryodhan at police station Raunapar, District Azamgarh for necessary action.

4. On the basis of the written report given by informant Duryodhan at police station Raunapar, a chick FIR was prepared and a case was registered against accused nos. 1, 2 and 3 under sections 302/323 IPC as Case Crime No. 86 of 1983, District Azamgarh. Investigation of the case was taken over by Sub-Inspector G.D. Mishra who visited the place of occurrence and prepared the site plan. He also prepared the inquest report of dead body of the deceased and further prepared other police papers including photo-nash and the dead body of the deceased was sealed and sent for postmortem along with police constables. After completing the investigation, chargesheet was submitted against the accused persons for the aforesaid offences before the competent Court and the case was committed to the Court of Sessions. The trial court framed charges against the accused persons under section 302 IPC read with section 34 IPC and also under section 323 IPC read with section 34 IPC. The accused denied the prosecution case and claimed trial.

5. The prosecution, in support of its case, examined PW1 Mahender, PW2 Chandrabali, PW3 Indradeo Yadav, PW4 Gomti Yadav, PW5 Dr. Prabhakar Shukla, PW6 Surya Deo Rai, PW7 Dr. T.K. Jha and further relied upon 14 documentary evidences to prove the guilt of the accused.

6. PW1 Mahender who is an injured eye witness of the occurrence has deposed before the trial Court that on 01.08.1983 at 12 noon, he was sitting at the door of his house and the cow and buffalo of the accused Ram Pher @ Chulhai started grazing in his agricultural field and damaged the mango plants which were planted there. On which, his mother Smt. Dhanesri went to complain to accused Ram Pher @ Chulhai who got annoyed and started abusing her. Smt. Dhanesri objected to the abuses given to her by accused Ram Pher @ Chulhai saying that his buffalo has caused loss to their field and she was being abused but accused Ram Pher @ Chulhai assaulted her with lathi. Smt. Dhanesri raised alarm and started screaming, hearing which, Mahender along with Siddhu and Duryodhan rushed towards her. On seeing the witnesses rushing towards his place, accused Ram Pher @ Chulhai called his sons to bring spear in order to kill them. On the exhortation of accused Ram Pher @ Chulhai, accused Virender ran towards him with a lathi while accused Ram Pher @ Chulhai was already armed with a lathi. The accused Yogendra had a spear with him who assaulted Siddhu in his abdomen while Ram Pher @ Chulhai also assaulted him and his mother with lathi. So far as the third accused Virender is concerned, he was not seen assaulting anyone. On the alarm raised by the witnesses and his mother, many persons of the village namely Gomti Yadav and Chandrabali reached the place of occurrence along with several other villagers. On receiving the assault of spear, Siddhu fell down and his intestine started coming out which was tied by Chandrabali with a cloth (gamchha). The witnesses along with other persons took Siddhu on a cot to the police station but he died on the way. Jagan Yadav met them there. His uncle Duryodhan got a report written by Jagan and affixed his thumb impression on the same and took the report to police station Raunapar. The injured witness Mahender along with his mother was taken by a constable to Hariya Hospital for their medical examination.

7. In his cross examination, PW1 has stated that on the alarm raised by her mother Smt. Dhanesri, he took a danda and had tried to save her and when the report was written, he was present and in his presence, his uncle Duryodhan had dictated the occurrence to Jagan who after writing the same, handed over the same to his uncle who further put his thumb impression on the same. The report which was dictated by his uncle was written in the same way in which he reiterated the prosecution case and he has proved the said written report as Ex. Ka-1. He further deposed that as there was old enmity with the accused persons, they have intentionally committed the said crime. In his cross examination, this witness further stated that when his mother was being assaulted, then he along with other witnesses rushed towards the place of occurrence and he was having a blunt object. He further stated that it is correct that he along with other witnesses were seen rushing towards Smt. Dhanesri who was being assaulted then accused Ram Pher @ Chulhai asked his two sons to bring lathi and spear. He, in order to save himself used 'fata' (a blunt object) which was in his hand. He had shown his unawareness whether anyone received injuries from his fata when he used the same. He further deposed that accused Ram Pher @ Chulhai assaulted him with lathi and in return, he also assaulted him fata but he is not aware whether accused Ram Pher @ Chulhai received any injury or not. He further stated that accused Yogender had assaulted his brother with spear before this witness was assaulted by lathi and when accused Yogender tried to assault him with spear then he was caught hold by the villagers and accused Yogender was caught hold by Chandrabali. This witness has denied the suggestion that on the date of the incident, he along with Duryodhan and Siddhu had come with lathi and spear towards the neem tree of accused Ram Pher @ Chulhai which was being dug out on which accused Ram Pher @ Chulhai and his sons objected to and accused Yogender and Ram Pher @ Chulhai were assaulted by lathi. He further denied the suggestion that Siddhu has assaulted accused Yogender with spear and he saved himself on account of which the spear hit the ground and accused Ram Pher @ Chulhai had broken the handle of the same by his lathi and Siddhu assaulted using the broken handle of the spear and accused Yogender assaulted Siddhu with the iron portion of the spear and in order to save himself, accused Ram Pher @ Chulhai also assaulted using his lathi. He further denied the suggestion that on account of the assault of the witnesses and other persons, accused Ram Pher @ Chulhai and Yogender have sustained injuries of lathi.

8. PW2 Chandrabali who is also an eye witness of the occurrence was examined by the prosecution before the trial court and he stated that on the day of the incident at 12.00 noon, he was engaged in a work at his doorstep and on hearing the scream, he reached the house of the accused where he saw the accused Ram Pher @ Chulhai armed with lathi, accused Yogender armed with spear and accused Virender with danda and there was a quarrel going on between the wife of Tilakdhari namely Smt. Dhanesri with accused Ram Pher @ Chulhai and he asked them not to fight and abuse each other on which accused Ram Pher @ Chulhai uttered that he would not leave Smt. Dhanesri without beating her. Thereafter, this witness stepped aside as he was empty handed and at that very moment, accused Ram Pher @ Chulhai assaulted Smt. Dhanesri with a single blow of lathi. Thereafter, Mahender and Siddhu rushed to save their mother Smt. Dhanesri on which accused Ram Pher @ Chulhai exhorted his son Yogender to kill them. Thereafter, accused Ram Pher @ Chulhai assaulted Mahender with lathi and when Siddhu @ Budhu tried to save his brother Mahender, accused Yogender assaulted Siddhu with a spear which hit him in his abdomen and his intestine started protruding out which was tied by him with a cloth (gamchha). During the fight, Gomti Yadav, Hari, Jagdev and Ram Samajh and other persons of the village arrived there. The accused after assaulting fled away towards their house and when he reached the place of occurrence, he came to know that cattle of accused Ram Pher @ Chulhai had entered into the grove of Duryodhan and caused damage to the trees planted there on account of which, the aforesaid quarrel took place between the parties. He did not accompany the deceased Siddhu who was taken on a cot to the police station but he died on the way. He, in his cross examination, has stated that his house is situated towards South from the house of accused Ram Pher @ Chulhai which is about 50-60 paces away. He further stated that complainant side was not having any lathi with them and they were empty handed nor they assaulted the accused persons with any weapon nor any accused received any injuries as he has not seen the same. He has denied the suggestion that he has not seen the incident and on account of enmity, he is deposing falsely against the accused.

9. PW3 Indradev Yadav who is a constable deposed that Girish Mishra was posted at the concerned police station as Head Constable who has retired now and after seeing the chick report, he proved the same which was written by the said Head Constable as he was familiar with his handwriting and signature. He has further proved the carbon copy of GD report which was written by Head Constable Girish Mishra, the original of which was also available.

10. PW4 Gomti Yadav who is an eye witness of the occurrence has reiterated the prosecution version as has been stated by PW1 and PW2. He has also stated that he was present at the door of his house when he saw Hari Nath, Ram Samajh running and on inquiry made by him as to what was happening as there were scream and cries, they told him that the alarm was coming from the assailant's side and they went towards it and saw that there was a quarrel going on between accused Ram Pher @ Chulhai and Smt. Dhanesri who was abusing her. He further stated that Chandrabali also arrived there and requested the parties to stop quarreling and abusing each other but accused Ram Pher @ Chulhai was adamant to beat Smt. Dhanesri and when he inquired from them as to why they were quarreling, then Smt. Dhanesri told him that the buffalo of accused Ram Pher @ Chulhai had damaged the plantation of mango trees on account of which there was a quarrel between them. PW4 further denied the suggestion that he did not witness the incident as he was related to the informant, hence, he was deposing falsely against the accused persons.

11. PW5 Dr. Prabhakaran Shukla has deposed before the trial Court that he was posted at the Primary Health Center, Hariya as Medical Officer and he has worked with Dr. D. Lal and is familiar with his writing and signature. He has proved the medical examination report of Mahender, Yogender and Smt. Dhanesri who were examined by Dr. D. Lal as Ex. Ka-4 and Ka-5. The following injuries were found on injured Mahender who was medically examined by Dr. D. Lal on 01.08.1983 at 06.15 p.m.:

"1. Contusion 5cm x 2 cm on the post surface of left forearm colour pink.

2. Abrasion 2 cm x 1.5 cm area. There is no blood clot present on the post lateral surface of right upper arm 5 cm above from right elbow joint.

Remark: All injuries simple. No.1 caused by sharp object. No.2 by friction. Duration: about half day old."

12. Similarly, the injuries sustained by Smt. Dhanesri are as follows:

"1. Contusion 4 cm x 2 cm on the post lateral surface of right thigh colour pink transversely 16 cm above from right knee joint.

2. Complaint of pain left shoulder region. No obvious injury seen.

Remark: Injury simple caused by blunt object.

Duration-about half day old."

13. PW6 Surya Dev Rai has stated that he was posted as Station Officer on 01.08.1983 at police station Raunapar and the chick report No. 60 of Case Crime No. 86/1983 was prepared by Head Constable Lal Bahadur Yadav in his writing and signature and he was posted along with him. The investigation of the case was conducted by Sub-Inspector G.D. Mishra who prepared the inquest report and conducted the inquest proceedings on the dead body of the deceased and prepared the police papers and he was well aware with the handwriting and signatures of G.D. Mishra. He further submitted that the site plan of the incident was also prepared by Sub-Inspector G.D. Mishra and he proved Ex. Ka-6 to Ka-12 and he took the investigation of the case on 01.08.1983 at 07.35 p.m. He had tried to search for the accused and has recorded the statements of the witnesses under section 161 Cr.P.C. He deposed that Sub-Inspector G.D. Mishra has now retired and he is not aware of his present address. After completing the investigation, Sub-Inspector G.D. Mishra submitted the charge-sheet against the accused persons. PW6 denied the suggestion that the FIR of the present incident was lodged at his instance. The said witness has denied the suggestion that he did not carry out the complete investigation and submitted the charge-sheet.

14. PW7 Dr. T.K. Jha has deposed before the trial Court that he was posted in District Hospital, Azamgarh as Orthopedic Surgeon and he received the dead body of deceased Siddhu on 02.08.1983 at 02.00 p.m. in the afternoon which was brought by two constables Surender Singh and Surender Pratap Singh for its postmortem. He found the following ante-mortem injuries on his person:

"1. Penetrating wound 3 cm x 1 cm to cavity deep on the left side of abdomen just above the iliac crest.

2. Abrasion 1 cm x 3 cm over the left cheek.

3. Abrasion 3 cm x .5 cm over the right shoulder.

4. Abrasion 1 cm x 1 cm over the back of right shoulder."

15. On the internal examination, he found heart left side full right empty weight 200 gms, abdomen membranes and peritoneum lacerated. Cavity containing about 8 ounces of blood. Stomach containing about 4 ounces semi digested food. Small intestine punctured. Gall bladder pale, weight one thousand grams and half full. Spleen N.A.D.

16. In this case, the deceased died on account of shock and hemorrhage as a result of ante-mortem injuries. He proved the postmortem report as Ex. Ka-14. The said witness has further deposed in his cross examination that excessive bleeding would have been caused due to injury no.1 whereas injury nos. 2, 3 and 4 could be caused by friction and also possible if the deceased had fallen.

17. The accused, in their statements under section 313 Cr.P.C have denied the prosecution case and deposed that they have been falsely implicated in the present case on account of enmity.

18. The accused appellant Yogender in his statement under section 313 Cr.P.C. has deposed that there is a land in the East of his house in a lane and on the North side, there are three 'Nad' (in which fodder is given to animals). Siddhu armed with spear, Duryodhan and Mahender armed with lathi had come for grabbing the same and they started digging his 'Nad' which was objected by him on which, they started assaulting him and his father. Siddhu has assaulted him with spear on which his father assaulted him with lathi due to which his spear had broken and in his self defence, he assaulted with the broken piece of spear and on account of fear of complainant party, he got his medical examination done in District Hospital, Gorakhpur and has also given an application to Superintendent of Police and his brother Virender is deaf and dumb. In support of the defence, the accused have examined DW1 Dr. M.P. Singh.

19. DW1 Dr. M.P. Singh has deposed before the trial Court that on 02.08.1983, he was posted at District Hospital, Gorakhpur and on the said date at about 11.30 a.m., he has examined Yogender and found the following injuries:

"1. Abraded swelling 3 cm x 2 cm on the left side upper forehead, 5 cm above the left eyebrow.

2. Swelling 2cm x 1cm on the upper part of thumb of the left hand.

3. Contusion 3cm x 2cm on the left calf muscles.

4. Lacerated wound 1cm x 4cm x 8 cm deep on the right upper region of thigh.

5. Contusion mark of 7 cm x 1-1/2 cm in the middle of right shoulder.

Remarks: All the injury are simple and caused by blunt weapon.

Duration: about one day."

20. In the opinion of the doctor, the injuries were found to be simple in nature and could be caused by hard and blunt objects and the duration of the injuries were one day old and would have been caused on 01.08.1983 at 12 noon. In his cross examination, this witness has deposed that the injury of Yogender can be fabricated.

21. On the same day at 11.40 a.m., he also medically examined Ram Pher @ Chulhai and found the following injuries:

"1.Lacerated wound 1-1/2 cm x 1/2 cm x 8 cm deep on the back and lower part of the forearm.

2. Contusion 7cm x 2cm on right middle back.

3. Abraded contusion 3.1/2cm x 1.1/2 cm on the right lower back.

4. Abraded contusion 3cm x 2 cm on the lower part of middle on back.

5. Abraded contusion 2cm x 1cm on the right upper back.

Remarks: All the injury are simple and caused by blunt weapon.

Duration: about one day."

22. In his cross examination, he deposed that the injury of Ram Pher cannot be fabricated.

23. In defence, the accused have filed medical reports of accused Yogender and Ram Pher @ Chulhai and a copy of the order of the Court of Tehsildar, Rasgarhi in Case No. 116 of 1981 'Jagdev vs. Smt. Sahabdin' dated 09.12.1981.

24. The trial Court after considering the evidence of prosecution and the defence evidence, held the accused/appellants guilty for the offence in question. Hence, the instant appeal by the accused/appellants before this Court.

25. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Ram Adhar Ram, learned counsel for the appellants and Sri Jai Narain, learned A.G.A. for the State.

26. Learned counsel for the appellants has argued that a sudden fight took place between the parties on account of a buffalo of accused Ram Pher @ Chulhai who went inside the grove of the deceased and the informant and the mother of the deceased Smt. Dhanesri had driven out the same and complained of it to accused Ram Pher @ Chulhai as it damaged the plantation of mango trees and a quarrel took place between them on account of which, accused-appellant Yogender caused a single blow injury by a spear on the abdomen of the deceased Siddhu who died on account of the said injury. He further urged that even if the prosecution case is taken at its face value, the case would not travel beyond section 304 part II IPC and conviction of the accused-appellant Yogender Yadav under section 302 IPC read with section 34 IPC by the trial court is against the evidence on record and the same is liable to be quashed by this Court.

27. He next submitted that as sudden fight took place between the parties and accused-appellant Yogender Yadav and his father accused Ram Pher @ Chulhai also received injuries on their person and they were also medically examined by the doctor DW1 who had proved their injuries. Hence, the prosecution has failed to give an explanation about the injuries sustained by the accused-appellants. Hence, the prosecution has concealed the origin of the case and the conviction of the accused-appellants under section 302 IPC is also liable to be set aside by this Court. In support of his contention, learned counsel for the appellants also relied on two judgments of Apex Court in 'Shiva Karam Payaswasmi Tewari vs. State of Maharashtra' (2009) 11 SCC 262 and 'Manphool Singh and others vs. State of Haryana' 2019 (106) ACC 284. The said two cases cited and relied upon by learned counsel for the appellants cannot be made applicable to the present case as the same are distinguished from the facts and circumstances of the present cast.

28. So far as accused-appellant no.3 Virender Yadav is concerned, he stated that as the said appellant is only convicted under section 323/34 IPC by the trial Court along with accused Ram Pher @ Chulhai for a period of one year rigorous imprisonment with a fine of Rs. 500/-, they were released for one year on probation by executing a bond out of which accused Ram Pher @ Chulhai has died during the pendency of the appeal and his appeal has already been abated by this Court. So far as appellant no.2 Virender is concerned, he has already executed the bonds, hence, he has not pressed his appeal on merits.

29. Learned AGA on the other hand has vehemently opposed the argument of learned counsel for the appellants and stated that as per the prosecution evidence, it is absolutely clear from the evidence PW1 Mahender who is an injured eye witness of the occurrence and brother of the deceased shows that it was accused-appellant Yogender Yadav who has assaulted the deceased with spear in his abdomen and because of the said assault, his intestines started coming out which was tied by PW2 Chandrabali with a cloth (gamchha) who was also present at the place of occurrence and has witnessed the incident goes to show that it was the appellant Yogender whose injury has proved to be fatal and resulted in the death of the deceased. Hence, he has been rightly convicted by the trial Court.

30. We have considered the submissions advanced by learned counsel for the parties and perused the record.

31. From the prosecution case, as has been set out in the FIR which was lodged by one Duryodhan that the buffalo of accused Ram Pher @ Chulhai had destroyed the plantation of the grove of the informant for which the mother of the deceased Smt. Dhanesri Devi made a complaint to accused Ram Pher @ Chulhai who became annoyed and started abusing her and when PW1 Mahender who is the son of Smt. Dhanesri Devi heard the quarrel and the alarm raised by his mother, rushed to save her along with his brother Siddhu and other persons of the village and seen that accused Ram Pher @ Chulhai exhorted his two sons to bring lathi and spear. Accused Ram Pher @ Chulhai assaulted Smt. Dhanesri Devi with lathi and his son accused-appellant Yogender assaulted the deceased Siddhu with a spear in his abdomen causing injuries to him on account of which his intestines started coming out which was immediately tied up by a cloth by PW2 Chandrabali who is also an eye witness. On the alarm raised by the complainant party and PW1, other villagers also arrived at the place of occurrence on which the accused fled away. The deceased was immediately taken on a cot to the hospital by the informant as well as PW1 and other witnesses but he died on the way and thereafter, the uncle of PW1 namely Duryodhan got a report written by one Jagan who was also present there and submitted the same in police station Raunapar where the FIR was lodged on the same day at 14.00 hours. It is true that the informant and Smt. Dhanesri Devi who were injured with whom the initial quarrel took place was not produced by the prosecution before the trial court but there appears to be an injured witness PW1 who is the brother of deceased and son of Smt. Dhanesri Devi and nephew of the informant Duryodhan who has proved the written report which was submitted by his uncle Duryodhan at police station Raunapar in pursuance of which, FIR was lodged against the accused persons. Hence, simply because of the fact that Smt. Dhanesri Devi was not produced or examined by the prosecution would not prove fatal to the prosecution case as has been argued by learned counsel counsel for the accused-appellants who has tried to assail the judgment of the trial court on this ground also but it has no substance in view of the evidence of PW1 Mahender, the injured witness.

32. So far as explanation of the injuries sustained by accused Yogender and accused Ram Pher @ Chulhai is concerned, the finding recorded by the trial court regarding the same appears to be correct as the said injuries were examined at District Hospital, Gorakhpur on the second day of the incident as it appears from the evidence of DW1. Moreover, the register which was produced by DW1 wherein a reference has been made by him regarding the injuries of the two accused goes to show that the said document produced by DW1 was not a reliable piece of evidence as has been found by the trial court. The plea of the defence that it was the complainant and the deceased who have assaulted them with lathi and danda and in their self defence, the accused Yogender had assaulted the deceased with a broken spear does not inspire confidence as it has not been proved by any cogent evidence that it was the complainant party who was the aggressor.

33. Moreover, from the evidence of PW4 Gomti Yadav who has categorically stated that that the complainant party was empty handed and they did not cause any injury to the accused side by any weapon, the statement made by learned counsel for the appellants that even if the prosecution case is taken at its face value, it is a case of sudden fight between the parties without pre-meditation to cause injury in the abdomen of the deceased Siddhu with a spear who sustained one single injury on his person, the case would not travel beyond section 304 part II IPC and the conviction of the appellant Yogender Yadav under section 302 IPC by the trial court appears to be against the evidence on record as from the prosecution evidence, it is apparent that a sudden fight took place between the parties on account of the fact that buffalo of accused Ram Pher @ Chulhai had destroyed the plantation of grove of the informant and the deceased which was complained by the mother of the deceased to accused Ram Pher @ Chulhai who felt insulted and exhorted his two sons to assault Smt. Dhanesri Devi and Mahender and when deceased Siddhu tried to save his brother Mahender from the assault of lathi by accused Ram Pher @ Chulhai, then accused Yogender pierced spear in the abdomen of deceased Siddhu who sustained one single injury on his person which proved fatal for him and there were no repeated blows made by the accused Yogender which shows that he did not had any intention to kill the deceased and the other injuries which were sustained by the deceased were on account of friction caused due to falling on the ground as has been stated by PW7. Thus, conviction and sentence of the appellant Yogender under section 302 IPC by the trial Court is not sustainable in the eyes of law and the same is hereby set aside. But the simple injury which has been caused to the deceased by accused Yogender Yadav definitely falls within the ambit of the offence under section 304 part II IPC, hence, he is convicted under section 304 part II IPC and sentenced to ten years of rigorous imprisonment and a fine of Rs.500/- is imposed on him. In default of payment of fine, he shall further undergo 15 days rigorous imprisonment.

34. The appeal on behalf of accused Yogender is partly allowed. Presently, accused Yogender is on bail. His bail bonds and surety bonds stand cancelled and the sureties stand discharges. He shall be taken into custody forthwith to serve out the sentence as has been ordered by this Court.

35. So far as appellant no.3 Virender Yadav is concerned, as his appeal has not been pressed on merits by the counsel for the appellants and he has already been released on probation for a period of one year on 11.04.1985, hence, his conviction under sections 323/34 IPC by the trial Court is hereby upheld and his appeal is hereby dismissed accordingly.

36. Let a copy of this order along with the lower court record be transmitted to the trial Court concerned for necessary information and compliance forthwith.

(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)

Order Date :- 14.03.2019

Madhurima