Mahesh And Others vs State Of U.P.
2022 Latest Caselaw 12103 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
          (LUCKNOW)
 
                                                      
 
						A.F.R.	
 
		Reserved on 13.07.2022
 
                 Delivered on 06.09.2022
 
Court No. - 1
 
Case :- CRIMINAL APPEAL No. - 296 of 1990
 
Appellants :- (1) Mahesh, (2) Santosh and (3) Ashok
 
Respondent :- State of U.P.
 
Counsel for Appellants :- Mr. Brij Mohan Sahai
 
Counsel for Respondent :- Mr. Chandra Shekhar Pandey, Additional Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Saroj Yadav,J.

(Per Mrs. Saroj Yadav, J. for the Bench)

1. This criminal appeal has been preferred by the appellants against the judgment and order dated 03.05.1990 passed by Special Judge, Unnao in Sessions Trial No.602 of 1985 (State vs. Mahesh and Others) arising out of Case Crime No.183 of 1985, under Sections 302/34, 307/34 of the Indian Penal Code, (in short I.P.C.), Police Station Fatehpur Chaurasi, District Unnao and Sessions Trial No.67 of 1985 (State vs. Santosh) arising out of Case Crime No.184 of 1985, under Sections 25/27 of Arms Act, Police Station Fatehpur Chaurasi, District Unnao.

2. The appellant No.1 Mahesh died during the pendency of the appeal and his appeal was abated vide order dated 04.04.2022, now this appeal survives only for the appellants Santosh and Ashok.

3. Shorn of unnecessary details, the facts necessary for disposal of this appeal are as under:-

A First Information Report (in short F.I.R.) was registered at Case Crime No.183 of 1985 on 03.11.1985 at 22:30 hours at Police Station Fatehpur Chaurasi, District Unnao on the basis of written report submitted by the complainant Ganga Ram. It was stated in the written report that on 03.11.1985 at about 3 O'Clock during the day, the complainant and his uncle Dayal were standing at front door of their house. His uncle Dayal came back after ploughing his field. Mahesh, Santosh and Ashok came there and said to Dayal that he (Dayal) had ploughed the boundary of their field. On this his uncle Dayal replied that he did not plough over their boundary and if they had any doubt then they can get it measured. Adjoining to the field of the complainant there is a field of Devi Charan and these people (accused persons) were ploughing the field of Devi Charan and they were complaining about the boundary of the same field. Thereafter these persons asked to accompany them to the field. On this the complainant and his uncle Dayal accompanied these persons to the field and all were inspecting the boundary. At the same time, these people started hurling abuses, and the complainant and people of his side also hurled abuses as a retort. Then Mahesh, Ashok and Santosh left the place challenging them (complainant' side) to wait and they (accused) would come back and see them. Saying this they started running towards their village. After sometime, at about 4 O'Clock Mahesh, Ashok and Santosh armed with country made short-guns came there and all the three persons fired upon them (complainant and his uncle). The pellets of those fires hit the complainant and wife of one Bihari who was working in her field nearby. His uncle Dayal lied down in the field and when they raised alarm and the villagers heard the sound of firing, then to save them the mother of the complainant Sukhrani, Bahadur, Jiya Lal, Lallu Mallah, Shyam Lal Gadariya and nephew of the complainant namely Rakesh, aged about 6 years, rushed to the spot. As soon as they all reached near the complainant the accused persons fired upon them also 6-7 times with the intention to kill them. They all suffered pellet-injuries. Many persons came there raising noise on which the accused persons ran away. The condition of the mother of the complainant was serious so he was carrying her and also other injured persons on two bullock-carts for treatment but his mother died on the way. He reached the police station with the dead body and other injured persons for lodging the F.I.R.

4. After investigation, charge sheet was submitted against Mahesh, Santosh and Ashok. The Magistrate concerned took cognizance and committed the case for trial to the Sessions Court. The Sessions Court framed the charges against all the three accused persons under Sections 302/34 and 307/34 of I.P.C. All the accused persons denied the charges and claimed to be tried.

5. In order to prove its case, the prosecution examined 15 witnesses which are as under:-

(i) P.W.1- Ganga Ram;

(ii) P.W.2- Shyam Lal;

(iii) P.W.3- Jiya Lal;

(iv) P.W.4- Dr. R.K. Sachan;

(v) P.W.5- Head Constable Ram Asre Tiwari;

(vi) P.W.6- Dr. J.D. Jain;

(vii) P.W.7- Kailash;

(viii) P.W.8- SO Mr. Purshottam Narayan Chaturvedi;

(ix) P.W.9- S.I. Ms. Komal Singh;

(x) P.W.10- Dr. (Mr.) S.K. Saxena;

(xi) P.W.11- CP Mr. Tegaram Yadav;

(xii) P.W.12- Omprakash Mani Tripathi;

(xiii) P.W.13- Head Constable Mr. Pratap Narain Singh;

(xiv) P.W.14- CP Mr. Mata Prasad Awasthi and

(xv) P.W.15- CP Mr. Raghunandan Prasad.

6. Apart from above oral evidence relevant documents were also proved as exhibits which are as under:-

(i) Exhibit Ka-1- Written report;

(ii) Exhibit Ka-2- X-ray report of Ganga Ram;

(iii) Exhibit Ka-3- X-ray report of Smt. Sitala;

(iv) Exhibit Ka-4- X-ray report of Shyam Lal;

(v) Exhibit Ka-5- X-ray report of Lallu;

(vi) Exhibit Ka-6- X-ray report of Bahadur;

(vii) Exhibit Ka-7- X-ray report of Jiya Lal;

(viii) Exhibit Ka-8 X-ray report of Rakesh;

(ix) Exhibit Ka-9 Chick F.I.R.;

(x) Exhibit Ka-10- Nakal Rapat G.D. No.42, 22:30 hours dated 03.11.1985;

(xi) Exhibit Ka-11- Nakal Rapat G.D. No.4, 05:00 hours dated 04.11.1985;

(xii) Exhibit Ka-12- Letter for medical examination of injured Lallu;

(xiii) Exhibit Ka-13- Letter for medical examination of injured Ganga Ram;

(xiv) Exhibit Ka-14- Letter for medical examination of injured Bahadur;

(xv) Exhibit Ka-15- Letter for medical examination of Jiya Lal;

(xvi) Exhibit Ka-16- Post mortem examination report of the deceased Sukhrani;

(xvii) Exhibit Ka-17- Inquest of Sukhrani;

(xviii) Exhibit Ka-18- Photo Laash (Police form No.379);

(xix) Exhibit Ka-19- Police form No.13;

(xx) Exhibit Ka-20- Letter to Reserve Inspector for post mortem examination;

(xxi) Exhibit Ka-21- Letter to Chief Medical Officer for conducting the post mortem examination;

(xxii) Exhibit Ka-22- Recovery memo;

(xxiii) Exhibit Ka-23- Site plan of the place of occurrence;

(xxiv) Exhibit Ka-24- Recovery memo of blood soaked in plain soil from the place of occurrence;

(xxv) Exhibit Ka-25- Recovery memo of two empty cartridges;

(xxvi) Exhibit Ka-26- Recovery memo of arrest and recovery of weapon of offence;

(xxvii) Exhibit Ka-27- Carbon copy of G.D. No.35, 20:25 hours dated 04.11.1985;

(xxviii) Exhibit Ka-28- Charge sheet;

(xxix) Exhibit Ka-29- Site plan relating to recovery of weapons;

(xxx) Exhibit Ka-30- Prosecution Sanction;

(xxxi) Exhibit Ka-31- Charge sheet in Crime No.184 of 1985;

(xxxii) Exhibit Ka-32- Injury report of Smt. Sitala;

(xxxiii) Exhibit Ka-33- Injury report of Shyam Lal;

(xxxiv) Exhibit Ka-34- Injury report of Rakesh;

(xxxv) Exhibit Ka-35- Injury report of Ganga Ram;

(xxxvi) Exhibit Ka-36- Injury report of Lallu;

(xxxvii) Exhibit Ka-37- Injury report of Bahadur;

(xxxviii) Exhibit Ka-38- Injury report of Jiya Lal;

(xxxix) Exhibit Ka-39- Ballistic expert report;

(xxxx) Exhibit Ka-40- Chick F.I.R. of Case Crime No.184 of 1985, under Sections 25/27 of Arms Act and

(xxxxi) Report of Forensic Science Laboratory, Taj Road, Agra.

7. After completion of the prosecution evidence, the statements of the accused persons were recorded under Section 313 of The Code of Criminal Procedure, 1973 (in short Cr.P.C.) wherein all the three accused persons denied the crime and stated that witnesses have deposed falsely. The police has submitted the charge sheet wrongly. The case was registered due to enmity and also stated that a dacoity took place in the house of Ganga Ram and therein all the injured persons suffered injuries and they (accused persons) have been falsely implicated due to enmity. The accused persons did not produce any witnesses in defence though opportunity was given by the trial court, however, the accused persons filed some documents in their defence. These documents are mainly related to the Court pleadings, judgments, orders etc. and have been filed to show previous enmity between the parties.

8. After hearing arguments of both the sides the learned trial court on the basis of evidence available on record found the witnesses of facts reliable. The weapon of offence was recovered on the pointing out of the accused persons. The empty cartridges recovered from the place of occurrence were found fired from the weapons recovered, in the ballistic test report. The learned trial court came to the conclusion that the accused persons fired upon Sukhrani as a result she died and assaulted other injured persons with the intention to kill them and found them (accused persons) guilty under Sections 302/34 and 307/34 of I.P.C. sentencing them under Section 302/34 I.P.C. with imprisonment for life coupled with a fine of Rs.500/- each and in default of payment of fine additional imprisonment of 3 months each. The learned trial court sentenced the accused persons under Sections 307/34 I.P.C. with rigorous imprisonment of 5 years coupled with a fine of Rs.300 each and in default of payment of fine further imprisonment of 3 months each. Being aggrieved of the above conviction and sentence, this appeal has been preferred.

9. Heard Shri Brij Mohan Sahai, learned counsel for the appellants and Shri Chandra Shekhar Pandey, learned Additional Government Advocate for the State-respondent.

10. Learned counsel for the appellants argued that the appellants have falsely been implicated in the crime due to enmity and they are innocent. There was no motive to commit the crime. The evidence of witnesses of facts is not trustworthy as there are contradictions in their evidence. The injuries suffered by the deceased were not of serious nature nor fatal. According to post mortem examination report the injuries were sustained before 12 hours of post mortem examination. The firearm injury is of pellets. Verbal abuses took place from both the sides and the incident occurred in a heat of passion. Therefore, the offence is attributable only under Section 304 of I.P.C. The learned counsel also argued that all the three accused persons also sustained injuries in the incident but their report was not registered. The learned counsel drew attention of the Court towards the General Diary wherein the entry of there injuries was made. Learned counsel further submitted that the trial court has disbelieved the recovery of weapon of offence and acquitted the accused of the charges under Sections 25/27 of Arms Act but convicted and sentence the appellants under Sections 302/34 and 307/34 of I.P.C. which is erroneous and liable to be set aside.

11. Contrary to it, learned A.G.A. submitted that in the incident, the mother of the complainant died and seven persons were injured. The death of Sukhrani and the injuries suffered by the injured persons have been proved. The complainant also suffered injuries. The injured persons have proved the incident, their presence at the spot cannot be doubted as they are injured witnesses. No major contradiction in the statements of witnesses of facts has been found. The learned trial court has considered and analyzed the evidence of witnesses in a right perspective and punished the accused persons accordingly. The prosecution has proved its case beyond all reasonable doubt. Hence the appeal deserves to be dismissed.

12. Considered the arguments of both the sides and perused the original record of trial court as well as the record of appeal.

13. In the present matter, the complainant Ganga Ram who also brought persons injured in the incident, to lodge the report, has lodged the report wherein he stated that on 03.11.1985 at about 3 O'Clock in the day, the complainant and his uncle Dayal were standing at the front door of their house. His uncle Dayal came back after ploughing his field. Mahesh, Santosh and Ashok came there and said to Dayal that he ploughed the boundary of their field. His uncle Dayal denied any such act and suggested the appellants that if there was any doubt then the field could be measured, then all the three appellants and the complainant and his uncle went to the field to inspect the boundary of the field. On the spot, the appellants started hurling abuses on the complainant's side, as a retort the complainant also hurled abuses. Thereafter, the appellants left the place having told the complainant's side to wait at the spot, they were coming and would teach them a lesson. Thereafter at about 4 O'Clock all the three appellants, armed with country made short-guns, reached there and started firing upon the complainant and his uncle. The pellets of those fires hit the complainant and Sitala, the wife of Bihari. His uncle lied down in the field to save himself. The complainant raised alarm. Hearing the sound of firing, the mother of the complainant, namely Sukhrani, Bahadur, Jiya Lal, Lallu, Shyam Lal Gadariya and the nephew of the complainant, namely Rakesh, aged about 6 years, came there running. When they all reached near the complainant, the appellants fired upon them also, 6-7 times with the intention to kill them. They all suffered injuries. Thereafter, many persons reached at the spot hearing the noise and the accused persons fled away. The mother of the complainant got seriously injured. The complainant arranged two bullock-carts and carried his mother and other injured persons for treatment by the bullock-carts but his mother Sukhrani died while on way to the hospital.

14. In this incident one Sukhrani died, Smt. Sitala, Shyam Lal, Rakesh (nephew of the complainant aged about 6 years), Ganga Ram, Lallu, Shri Bahadur, Jiya Lal, in total 7 persons sustained injuries. This is a day light incident and the injured persons have deposed in the Court to prove the incident. The complainant has been examined as P.W.1, he has narrated the incident step by step before the trial court. A lengthy cross-examination has been made but nothing adverse could be brought by the defence counsel. In his (complainant) examination-in-chief he has proved all the facts written in his First Information Report about the incident. P.W.2- Shyam Lal was also injured in the incident. He reached at the spot after hearing the sound of firing and noises. He has stated in the Court that when he heard the sound of fire and noise then he rushed towards the field of Dayal. Sukhrani, Lallu, Bahadur and Jiya Lal also reached there with him and he saw that Mahesh, Santosh and Ashok, who were present in the court, were standing with short-guns in their hands and Ganga Ram and Sitala were lying on the ground, in pain.

15. In the case in hand, one person died and 7 sustained firearm injuries. The feud ensued on the alleged damage caused to a boundary of field, which was in possession of/ploughed by the miscreants. The incident has very well been proved by the witnesses of facts i.e. P.W.1, P.W.2 and P.W.3 who sustained injuries in the incident, corroborated by the medical evidence. The eye witnesses have sustained firearm injuries in the incident, hence their presence on the spot cannot be doubted. The complainant has been examined as P.W.1, who also sustained injuries in the incident along with the others, has narrated the incident before the trial court step by step i.e. how the feud ensued and culminated into death of Sukhrani (the mother of the complainant) and injuries to 7 others. Lengthy cross-examinations have been made of the witnesses produced to prove the fact but no major contradictions could be brought in their cross-examinations.

16. The learned counsel for the appellants argued that the incident occurred in a heat of passion without any premeditation, due to sudden provocation as the complainant himself has stated in his written report that the complainant's side also hurled abuses on the accused persons. Thus the incident occurred in the spur of moment in a heat of passion, in such situation the offence can travel at the most to the offence punishable under Section 304 I.P.C. and not under Section 302 I.P.C.

This argument of learned counsel for the appellants has been countered by the learned A.G.A. by submitting that the incident did not take place at the spur of moment in a heat of passion. The appellants after exchange of abuses went to there houses and returned at the place of occurrence with the intention to kill them (complainant's side). Dayal lied down in the field in order to save himself but the complainant and one Sitala who was working in her field nearby, sustained injuries. When Sukhrani the mother of the complainant and others rushed at the spot after hearing the sounds of firing, the appellants also fired upon them. One of the fires hit Sukhrani (the deceased) and she died, while other sustained injuries. Hence this offence cannot be constrained to the offence punishable under Section 304 I.P.C. It is a clear case of murder i.e. offence punishable under Section 302 I.P.C. and of offence punishable under Section 307 I.P.C. read with Section 34 of I.P.C.

17. In this regard it will be proper to have a look at Exception 4 to Section 300 of I.P.C. This runs as under:-

"Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault."

The perusal of this exception shows that for getting the benefit of this exception four essentials must be established which are as under:-

(i) A Sudden fight;

(ii) The fight was without premeditation;

(iii) the act was done in a heat of passion and

(iv) the person who committed the act had not taken any undue advantage or acted in a cruel manner.

All the above requisites must co-exist. If these conditions are established then the cause of quarrel is immaterial. It is also not relevant who gave provocation or who started feud or assaulted first. The incident must have occurred in heat of passion and in unpremeditated manner or to say the offender should have acted in a fit of wrath. In a heat of passion a person looses power of thinking reasonably as faculty of reasons is clouded by extreme anger and he or she acts in a manner he/she would not act otherwise. In other words the wrong act is committed during intense emotional stage induced by displeasure or loss of self control as a result of an act not liked by the person.

19. The Hon'ble Apex Court recently in the case State of Uttarakhand vs. Sachendra Singh Rawat (2022) 4 SCC 227 has explained the relevant provision quoting as follows:-

"9. In Dhirajbhai Gorakhbhai Nayak [Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 : 2003 SCC (Cri) 1809] , on applicability of Exception 4 to Section 300 IPC, it was observed and held in para 11 as under : (SCC pp. 327-28)

"11. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused : (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."

10. In Pulicherla Nagaraju [Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] , this Court had an occasion to consider the case of culpable homicide not amounting to murder and the intention to cause death. It was observed and held by this Court that the intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:

(i) nature of the weapon used;

(ii) whether the weapon was carried by the accused or was picked up from the spot;

(iii) whether the blow is aimed at a vital part of the body;

(iv) the amount of force employed in causing injury;

(v) whether the act was in the course of sudden quarrel or sudden fight or free-for-all fight;

(vi) whether the incident occurs by chance or whether there was any premeditation;

(vii) whether there was any prior enmity or whether the deceased was a stranger;

(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;

(ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

(xi) whether the accused dealt a single blow or several blows."

20. In Jangaliya and Others vs. State of U.P. 2022 SCC OnLine All 356, the Hon'ble Allahabad High Court has also observed as under:-

"42. Now, we shall examine the applicability of Exception 4. The ingredients for applicability of Exception 4 are : (i) there must be a sudden fight; (ii) there was no pre-meditation; (iii) the act was committed in heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. If the said ingredients are present, the cause of quarrel would not be material as to who offered the provocation or started the fight. Although the term fight has not been defined in IPC but the consistent view is that it implies mutual assault by use of criminal force and not mere verbal duel. In Bhagwan Munjaji Pawade v. State of Maharashtra, (1978) 3 SCC 330 (Para 6), it was observed that where the accused is armed and the deceased is unarmed, Exception 2 can have no application and Exception 4 to Section 300 would not apply if there is sudden quarrel but no sudden fight between the deceased and the accused. It was held that "Fight' postulates a bilateral transaction in which blows are exchanged."

21. Now we have to examine the present case in this light. In the present case, the feud ensued for the reason of alleged damage to the boundary of the field of the accused. At that time both the parties hurled abuses on each other as is clear from the written report itself. Thereafter, the appellants left the spot and went to their house challenging the complainant and his uncle Dayal to wait at the place and they would come back. After some time i.e. at 4 O'Clock they (accused persons) again reached at the spot armed with deadly weapons and assaulted the complainant's side with firearms. This act of the appellants cannot be termed as the act committed in a heat of passion or fit of anger. These appellants reached the spot armed with deadly weapons together, which means they came with a planning to kill the complainant and his uncle Dayal but the mother of the complainant along with other reached at the spot. The appellants also fired upon her with intention to kill her and she died of that injury and any other person who came ahead got injured. All these facts and circumstances make it crystal clear that the incident was not committed in a sudden fight in a heat of passion and without premeditation. Hence this argument of the learned counsel for the appellants has no force.

22. The post-mortem examination report of the deceased Sukhrani shows that following ante-mortem injuries were found on her person:-

"1. Multiple firearm injuries over the front part of chest, ... left thigh upper 1/3 also on lateral side and front part of Rt thigh ...;

2. Firearm injuries (Two) on medial side of Rt elbow joint;

3. One Firearm injury on Lt side of chest at the ... of 6th intercostal space in mid axillary line;

4. One Firearm injury on lower border of Rt eye socket.

Laceration of intercostal muscle of Rt 3rd, 4th & 6th Lt 3rd, 4th & 8th was found. Lungs (both) were found ruptured and semi clotted blood was present in both chest cavities. The amount was 300 ml. Small intestine loops, liver, spleen were found lacerated and semi clotted blood was present in abdominal cavity. The amount was 400 ml.

The cause of death as noted in the post-mortem examination report is "shock and haemorrhage as a result of ante-mortem injuries.""

The injury-reports of others including a 6 year old child show that they all sustained firearm injuries. The facts and evidences available on record very well establish beyond reasonable doubt that this incident was not committed in a sudden fight, in a heat of passion and without premeditation. The evidence on record establishes that the feud ensued over the alleged damage to the boundary of the field and after exchange of abuses, the appellants went to their house and came back with planning, armed with firearm weapons, and fired upon the persons of complainant's side with the intention to kill them wherein Sukhrani the mother of the complainant died and 7 others persons got injured.

23. The learned counsel for the appellants also argued that the appellants also suffered injuries in the incident and that was noted in the General Diary Entry No.27. Hence it should be considered that they caused the injuries to the other side while defending themselves.

This argument of learned counsel for the appellants is also not sustainable because no such question has been put to any witness nor has been stated in the statement recorded under Section 313 Cr.P.C. In the statement recorded under Section 313 of Cr.P.C. the appellants have taken the defence that some dacoity occurred in the house of Ganga Ram and there the injured persons suffered injuries. Further more they have not put any question to the witnesses examined as to give them the opportunity to explain the injuries on the person of the appellants.

24. Learned counsel for the appellants further argued that the recovery of weapon of offence has been disbelieved by the learned trial court but the conviction has been made for the offence under Sections 302 and 307 I.P.C. read with Section 34 of I.P.C. He further submitted that once the recovery of weapon has been disbelieved then the offence itself cannot be deemed proved.

This argument of the counsel for the appellants is also not acceptable because where there is direct evidence of the offence then recovery of the weapon of offence is not necessary. In the present matter there is direct evidence of the crime, the witnesses have sustained injuries in the incident which is corroborated by the medical evidence. Hence this appeal has no merits and deserves to be dismissed.

25. Accordingly, the present criminal appeal is hereby dismissed. The impugned judgment and order dated 03.05.1990 is confirmed.

26. The appellants are on bail. Their bail bonds are canceled and sureties discharged. They are ordered to surrender before the trial court within two weeks from today to serve out the sentence awarded by the trial court failing which the trial court is directed to get them arrested and sent to jail.

27. Office is directed to send a copy of this order along with lower court record to the trial court concerned for necessary information and compliance forthwith.

(Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.)

Order Date :- 06.09.2022

S. Shivhare