State Of U.P. vs Parshuram And Ors.
2023 Latest Caselaw 1545 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- GOVERNMENT APPEAL No. - 1000002 of 2014
 

 
Appellant :- State of U.P.
 
Respondent :- Parshuram And Ors.
 
Counsel for Appellant :- Govt. Advocate,Amit Kumar Srivastava,Manish Bajpai
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

A Preliminary objection has been raised on behalf of the respondents/accused persons that the instant appeal is not maintainable as the trial court in its judgement has not recorded acquittal of the accused persons under Section 302 I.P.C.

Having heard learned counsel for the applicants/respondents as well as learned A.G.A. for the State, it would be evident that by passing impugned judgement and order, the respondents have been convicted for committing offence under Section 304(2) I.P.C. while the charge against them was framed under Section 302 I.P.C. Since the conviction of the respondents under Section 304(2) I.P.C. would amount acquittal so far as Section 302 I.P.C. is concerned the instant appeal appears to be maintainable.

Heard learned A.G.A. for the State as well as Shri Manish Bajpai, learned counsel for the respondents and perused the record.

The instant application under Section 378(3) Cr.P.C. has been moved by the State to grant leave to appeal in order to challenge the judgment and order of the trial court dated 07.10.2013 passed by the Sessions Judge, Court No.2, Ambedkar Nagar in Sessions Trial No.19 of 2008 (State Vs. Parashuram and others), arising out of Case Crime No.124 of 2007, under Sections 302/34, 323/34, 427, 504, 506, 325/34 I.P.C., Police Station Bewana, District Ambedkar Nagar, whereby the respondents namely Parashuram, Vijay Bahadur, Suresh and Rajitram have been acquitted of the charges framed against them.

Learned A.G.A. for the State while drawing attention of this Court towards the injuries sustained by the deceased Shiv Kumar as well as injured Jata Shankar submits that the manner in which the incident had occurred, it may be inferred that common intention of all the accused persons was to cause death of the deceased and therefore, when intention of the accused persons was to cause death of the deceased and it is with this intention the physical assault has been made than in any evidentiary, it would be the case of murder as defined under Section 300 I.P.C. and punishable under Section 302 I.P.C.

Learned counsel for the respondents submits that the application for grant of leave to appeal has been moved without there being any basis and the same be dismissed as such.

Having heard learned counsel for the parties and having perused the record, it is evident that on 26.10.2007 at 07:30am. an F.I.R. was lodged alleging therein that the informant Jata Shankar was making some constructions on his land, which was being opposed by the accused persons and it was agreed that the parties shall go to the local police station, where a decision would be taken and it was at 13:30pm, the informant's side was preparing to go to the local police station, the accused persons carrying lathi-danda started assaulting the deceased Shiv Kumar and on an alarm raised by the informant's side, Vijay Bahadur, Anil Kumar arrived and rescued them on which the accused persons had fled away from the scene intimidating the informant's side. It is also stated that the accused persons have also broken tin shed of the informant's side and by assault given by the accused persons, the informant as well as his father Shiv Kumar had sustained grievous injuries. On the information provided by the informant, F.I.R. of the instant case was lodged under the relevant penal sections and on the same day at 09:20pm. at C.H.C. Akbarpur injured Jata Shankar was medically examined and one lacerated wound, which was bone deep, was found on the base of his nose while complaint of pain was stated by him all over his body and according to the Doctor, injury has been caused by some hard and blunt object and afresh and the injury was kept under observation on the same day, the postmortem of the dead body of the deceased was performed by Dr. Rajendra Prasad Pandey, wherein various injuries of the nature of abrasions, lacerated wounds, incised wounds were found on all over his body.

The investigating officer after conclusion of the instigation submitted charge sheet against all the accused persons under Sections 302/34, 323/34, 427, 504, 506, 325/3 I.P.C. to which all the accused persons denied and claimed trial.

During the course of trial, the prosecution has presented informant/injured Jata Shankar as P.W.-1, Constable Clerk Virnendra Pratap Singh as P.W.-2, S.I. Mukesh Chandra Mishra as P.W.-3, eye witness Vijay Bahadur as P.W.-4, Dr. Rajendra Prasad as P.W.-5, Dr. Jagdish Prasad Mishra as P.W.-6, Investigating Officer R.K. Saxena as P.W.-7, Dr. A.K. Srivastava as P.W.-8 and S.I. Ram Prasad as P.W.-9. Apart from the oral evidence, the prosecution has also relied on the documentary evidence.

After closure of evidence of the prosecution, statement of the accused persons was recorded under Section 313 Cr.P.C., wherein they denied the evidence produced by the prosecution, however, no oral evidence was produced by the accused persons in their defence and certain documents have been filed in their defence.

The trial court after appreciating the evidence available on record came to the conclusion that the prosecution has proved its case beyond doubt to the extent of Section 304(2) I.P.C. and convicted the respondents under Sections 304(2), 323/34, 325/34 I.P.C. and acquitted the accused persons under Sections 504 and 506 I.P.C. Aggrieved by the same, the State has filed the instant application for grant of leave to appeal under Section 378(3) Cr.P.C. along with appeal in order to challenge the impugned judgement and order.

The grievance of the State appears to be that though charge under Section 302 I.P.C. was framed against the respondents, but the trial court convicting them for the offence under Sections 304(2), 323/34, 325/34 I.P.C. and the accused persons have also been acquitted for the offence under Section 504, 506 I.P.C.

Perusal of the record in the background of submission made by learned A.G.A. would reveal that general role of assault with lathi-danda has been assigned to all the accused persons. Injured person/informant Jata Shankar has sustained only one injury while the deceased has sustained 7 injuries in total. However, injury nos.1 and 2, which were on the occipital region and head of the deceased and above right eye appears to be fatal. The evidence would further reveal that the incident had occurred in a spur of moment and it is not a case where the informant's party was attacked by the accused persons by hatching any plan. The trial court after appreciating the evidence available on record was of the view that the weapon, which has been used in order to commit the offence, would suggest that intention of the respondents/accused persons was not to cause death of the deceased. Admittedly it is also the case of the prosecution that the deceased and the injured/informant had been assaulted by accused persons using lathi. Thus having regard to all the facts and circumstances of the case I do not find any illegality so far as the opinion of the trial court is concerned pertaining to the conviction of accused persons under Section 304(2) I.P.C. instead of Section 302 I.P.C. or acquittal of accused persons pertaining to Section 504, 506 I.P.C.

Keeping in view all the evidence and material, which have been placed on record by the prosecution and the injuries sustained by the deceased as well as by the informant and also the manner in which the offence has been committed and the nature of weapon used, I do not find any illegality in the judgement and order of the trial court so far as the conviction of the accused persons under Section 304(2), 323/34, 325/34 I.P.C. is concerned. Thus I do not find any substance in the application moved by the State under Section 378(3) Cr.P.C. for grant of leave to appeal and the same is rejected as such.

Since the application for grant of leave to appeal has been rejected, the appeal does also not survive and the same is also dismissed.

The observations made herein-above are only for the purpose of disposal of the instant application and the same shall not be having any bearing either on the final dispose of appeal, which has been preferred by the respondents against their conviction or in any other proceedings initiated by either party.

Order Date :- 16.1.2023

Anupam S/-