Radhey Shyam Singh And Others vs State Of U.P.
2023 Latest Caselaw 16672 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:118717-DB
 
Court No.48
 

 
Case :- CRIMINAL APPEAL No. - 2983 of 1987
 

 
Appellant :- Radhey Shyam Singh And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.N. Singh,Shiv Nath Singh,Surya Bhan Singh
 
Counsel for Respondent :- A.G.A.,Ajendra Kumar,Kuldeep Singh Chauhan
 

 
Hon'ble Siddhartha Varma, J.

Hon'ble Manish Kumar Nigam, J.

This appeal has been filed against the judgment and order dated 10.12.1987 passed by the IInd Additional Sessions Judge, Etah by which the appellants had been convicted for life under section 302 of Indian Penal Code. There were also convicted under section 323 read with section 34 of Indian Penal Code.

Briefly stated the prosecution story was that on 8.8.1986 at about 12.00 noon, the widowed sister of Badan Singh, the first informant, was grazing her buffaloes on the road. Accidentally one of buffaloes strayed into the fields of Nem Babu and this field was being cultivated by the accused Radhey Shyam and Ghan Shyam on batai. It may be clarified that batai is a system by which the farmers do agriculture on the land of the actual owner and gets some portion of the produce. Radhey Shyam and Ghan Shyam were present on the field and when the buffaloes, which were being grazed by Ram Beti, strayed into their fields, then Radhey Shyam and Ghan Shyam resented the entry of the cattle in their fields. Ram Beti went back to her village and complained to her mother. It may be noted that the complainant Badan Singh and the accused Radhey Shyam, Ghan Shyam and Suresh were all related to each other and stayed in houses opposite to each other. Therefore, when Radhey Shyam and Ghan Shyam returned home, the mother of Ram Beti reprimanded Radhey Shyam and Ghan Shyam. They had returned at around 2.00 PM on the very same date when the incident of the buffaloes straying into the fields had occurred. The mother of Ram Beti asked the two accused Radhey Shyam and Ghan Shyam as to why they had beaten her daughter. In reply, the accused Radhey Shyam and Ghan Shyam abused the mother as well. Badan Singh, the brother of Ram Beti did not like the fact that his mother was being abused and, therefore, he intervened between Radhey Shyam, Ghan Shyam and his mother. Upon his intervention, Radhey Shyam and Ghan Shyam who were brothers and their nephew Suresh, another accused, assaulted Badan Singh, the first informant. In the meantime, Sher Singh came to rescue Badan Singh and while rescuing Badan Singh, he received a fatal lathi blow on his head. A scuffle thereafter followed and upon hearing the shouting of the persons who had got injuries, Roop Singh son of Har Prasad came to the spot. Badan Singh upon seeing that Sher Singh had fallen down upon getting injured, rushed to find out a doctor but his efforts failed and upon his return he found his brother had died. This had resulted in the First Information Report being lodged by Badan Singh. Investigation thereafter followed. The police submitted its charge sheet and the Court thereafter framed charges against the accused persons under sections 323 and 304 read with section 34 of Indian Penal Code. However, the charge was amended and section 304 was subsequently converted into section 302 on 4.8.1987. The trial commenced and when the accused were held guilty of the offences under sections 302/323 read with section 34 of Indian Penal Code on 10.12.1987, the instant Criminal Appeal was filed.

From the side of the prosecution Badan Singh, the first informant, was produced as PW-1 and Roop Singh, the person who had gone on the spot was examined and cross-examined as PW-2. Ram Beti, the widowed sister, whose buffaloes had strayed into the fields of the accused, was produced as PW-3. PW-4 Dr. V.K. Sharma had proven the post mortem report and the ante-mortem injuries; PW-5 Constable Naubat Singh and PW-6 Constable Virendra Singh were all formal witnesses.

PW-1 Badan Singh has supported the case of the prosecution. He has stated that because of the fact that the accused persons had beaten his brother as a result of which he had died. He has also, however, stated that there was no enmity between the accused persons and the person who had died and he himself. He has also stated that on him also there were various injuries.

PW-2 Roop Singh is the witness who has stated that around 2.00 PM on the date when the incident had occurred, he had heard abuses being hurled from both sides and that he himself had seen that Radhey Shyam, Ghan Shyam and Suresh, the accused, had wielded the lathi blows on the deceased and when Badan Singh had gone to save Sher Singh, the lathi of Ghan Shyam had hit Sher Singh on the head which resulted into the death of Sher Singh. He has stated that it was wrong to say that because Ram Beti had thrown bricks from her roof that there were injuries on the side of the accused also.

PW-3 Ram Beti has given her statement in chief and has reiterated the case of the prosecution.

PWs-4, 5 and 6 who were the doctor and police witnesses and they have proven the post-mortem and they have also brought on record the fact that how the accused had killed the deceased Sher Singh.

Similarly, certain statements of the defence i.e. the deposition of Dr. A. K. Gerola and Dr. Radheshyam were recorded. Dr. Gerola had brought the medico legal register to say that there were injuries on the side of the accused as well. DW-2 Radheshyam had appeared and had stated various facts and had tried to show that the accused had not killed Sher Singh.

The accused under section 313 Cr.P.C. denied the fact that they were party to the incident.

Sri S.N. Singh, learned Senior Counsel assisted by Sri Akhilendra Singh, appeared for the appellants. Sri Kuldeep Singh Chauhan, Advocate has appeared for the first informant and has submitted his Written Arguments and Sri J.K. Upadhyay, learned AGA argued for the State.

Sri S.N. Singh, learned Senior Counsel appearing for the appellants has vehemently argued that there was no motive for the appellants to kill the deceased. He has further submitted that everything happened at the spur of the moment. Nobody had planned to attack in a premeditated manner. There was no premeditation and that the incident happened due to the verbal altercation and he, therefore, has submitted that there was absolutely no reason for punishing the accused under section 302 read with section 34 of Indian Penal Code. He has submitted that in fact the charges as were framed by the Trial Court on 19.5.1987 were also to the effect that the case was to be tried under section 304 read with section 34 IPC. Learned counsel for the appellants also relied upon a judgment of the Supreme Court in Surinder Singh @ Chhinda & Anr. vs. State of Punjab reported in (2006) Supp. 5 SCR 671 and a judgment of this Court in Ram Autar & Anr. vs. State of U.P. (Criminal Appeal No.3413 of 1978 decided on 7.2.1990).

Learned AGA, however, has opposed the appeal and has very vehemently argued that a death had occurred and the case had rightly been tried under section 302 read with section 34 IPC and the accused persons were rightly convicted under those sections.

Having heard learned counsel for the parties and after having gone through the written submissions of the learned counsel for the appellants and learned counsel for the first informant, we are of the view that the appeal deserves to be partly allowed. We definitely find that the incident had occurred and it was with the involvement of the appellants. The appellants and the first informant and the deceased definitely had a verbal altercation which had resulted in there being a maarpeet and that resulted in an injury being caused by a blow of the laathi on the head of the deceased Sher Singh to the extent that he died. There was a verbal altercation which had resulted in the maarpeet and there was definitely no motive for the killing.

Under such circumstances, we are of the view that the appellant-Ghan Shyam be held guilty under section 304 Part II and section 323 read with section 34 of Indian Penal Code and the accused Radhey Shyam and Suresh are to be held guilty under section 304 Part II read with section 34 of Indian Penal Code.

It is common knowledge that in villages, people, at least in the year 1986, always went about everywhere with a laathi and, therefore, it cannot be said that when they came with laathis, they specifically come to kill the deceased Sher Singh.

So far as sentence is concerned, we are of the view that the appellants be punished by fine of Rs.50,000/- each. Of the fine amount 50% of the amount shall be paid as compensation to the immediate family member of the deceased Sher Singh. Further, we hold that the appellant-Ghanshyam for being held guilty under section 323 IPC, be further fined with a further amount of Rs.1000/-.

With the above observations, the appeal stands partly allowed. The judgment and order dated 10.12.1987 passed by the IInd Additional Sessions Judge, Etah is, accordingly, modified to the extent indicated above subject to appellants depositing the fine amount.

Order Date :- 25.5.2023

GS

(Siddhartha Varma, J.)

(Manish Kumar Nigam, J.)