Dayanand Yadav And 4 Others vs State Of U.P.
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Allahabad High Court

Dayanand Yadav And 4 Others vs State Of U.P. on 29 August, 2025

Author: Rajiv Gupta

Bench: Rajiv Gupta

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 

 

 

 
AFR
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
CRIMINAL APPEAL No.- 4922 of 2018
 

 
Dayanand Yadav and 4 Others
 

 
Appellants
 

 

 

 

 
Versus
 

 

 

 

 
State of U.P.
 

 
Respondent
 

 

 
Counsel for Appellants 
 
:
 
Janardan,Pulak Ganguly,Ravikant Tiwari, Sharad Kumar
 
Counsel for Respondent
 
:
 
G.A.,Rajeev Kumar Singh
 

 

 
Connected With
 

 
CRIMINAL APPEAL U/S 372 CR.P.C. No. - 680 of 2022
 

 
Smt. Krishna Devi
 

 
Appellant
 

 

 

 

 
Versus
 

 

 

 

 
State Of U.P. And 5 Ors.
 

 
Respondents
 

 

 
Counsel for Appellant
 
:
 
Rajeev Kumar Singh
 
Counsel for Respondents
 
:
 
G.A.,Janardan,Ravikant Tiwari, Sharad Kumar
 

 

 
Court No. - 46
 

 
Hon'ble Rajiv Gupta,J.
 

Hon'ble Harvir Singh,J.

(Delivered by Honble Harvir Singh,J.)

1. Both criminal appeals arises out the same impugned judgment and order, as such, they are being heard together and decided by a common judgment and order dated 18.08.2018 passed by learned Additional Session Judge, IV/Special Judge, E.C. Act, Deoria in Sessions Trial No. 286 of 2014 (State Vs. Dayanand and Others), arising out of Case Crime No. 1154 of 2014, under Sections 147, 148, 323/149, 342, 304/149, 504, 506 of IPC, Police Station Rudrapur, District Deoria, whereby the appellant No. 2 to 6 have been convicted and sentenced to one year rigorous imprisonment and fine of Rs. 2,000/- each and in default of payment of fine each accused to go under two months additional simple imprisonment for offence under section 147 I.PC., one year rigorous imprisonment and fine of Rs. 1,000/- each and in default of payment of fine each accused to go under one month additional simple imprisonment, for offence under section 323/149, IPC, one year rigorous imprisonment and fine of Rs. 1,000/- each and in default of payment of fine each accused to go under one month additional simple imprisonment, for offence under section 342 IPC, 7 years rigorous imprisonment and fine of Rs. 5,000/- each and in default of payment of fine each accsued persons to go under three months additional simple imprisonment, for offence under section 304(ii)/149 IPC and the accused No. 2 to 6 have been acquitted for offence under Sections 148, 504, 506 IPC and 7 Crl. Law Amendment Act. All the sentences shall run concurrently.

2. Heard Sri Sharad Kumar, learned counsel for the surviving accused-appellants, Sri Jitendra Kumar Jaiswal, learned AGA for the State and Sri Rajeev Kumar Singh, learned counsel for the first informant and perused the record.

3. The prosecution story in brief is that, on 11.07.2014 at about 1:00 P.M., the complainants husband late Ram Ratan was coming to his village from Rudrapur market alongwith complainant and her daughter Smt. Suman Devi on his motorcycle and when they reached near the house of Miya, prior to Jogiya Mod, then the accused persons namely, Dayaram, Vivekanand, Chandrashekhar, Sharnanand, Prayag and some other persons had badly beaten the complainants husband, as a result of which the complainants husband has received grievous injuries and immediately he was medically examined in the hospital, situated at Rudrapur, thereafter District Hospital, Deoria and then B.R.D. Medical College Gorakhpur, ultimately he died in the B.R.D. Medical College, Gorakhpur during his treatment.

4. With regard to the above noted incident, the complainant lodged an F.I.R. on 12.07.2014 at about 15:30 hours in Police Station Rudrapur against the accused-appellants No. 2 to 6, which was registered as Case Crime No. 1554 of 2014 under Sections 147, 148, 323, 342, 504, 506, 304 IPC and 7 Criminal Amendment Act.

5. The investigation of the case was entrusted to S.I. Virendra Singh Yadav, the Investigating Officer, who after completion of investigation submitted charge-sheet against the accused-appellants, on which the learned Magistrate has taken cognizance and committed the case to the court of Sessions, the learned Session Judge framed the charge against the accused-appellants, under Sections 147, 148, 323/149, 342, 304/149, 504, 506 I.P.C. and Section 7 Criminal Law Amendment Act by order dated 8.6.2015. The accused persons denied the charges and claimed to be tried.

6. On the basis of the aforesaid Written Complaint Ex. Ka-2, Chik No. Ex. Ka-3, Injury report Ex. Ka-4, Postmortem Report Ex. Ka-5, Panchayatnama Ex. Ka-6, Report regarding death of deceased to SHO Police Station Gularia Ex. Ka-7, Nakal G.D. Ex. Ka-8, Police Report-13 Ex. Ka-9, Police Form-33 Ex. Ka-10, Photo Nash Ex. Ka-11, Report to C.M.O. Ex. Ka-12, Site Plan Ex. Ka-13 and Charge-sheet Ex. Ka-14 were prepared and the dead body was sent for postmortem to B.R.D. Medical College, Gorakhpur. The postmortem of the dead body of the deceased was conducted by the Medical Officer. After recording the statement of the complainant, the Investigating Officer on her pointing out inspected the place of occurrence and prepared the site plan. After examining the postmortem report and the panchayatnama, Investigating Officer has arrested the accused Prayag Yadav, Chandrashekhar, Dayanand Yadav and Vivekanand Yadav and recorded their statements.

7. After conclusion of prosecution evidence, the statements of the accused were recorded under Section 313 Cr.P.C. The accused in their statements u/s. 313 Cr.P.C. have stated that the prosecution story is false and have expressed ignorance regarding the prosecution documents and have stated, that a false charge-sheet has been filed against them. They further stated that they are absolutely innocent and have been falsely implicated in the present case. In support of their defence the appellants have led the evidence of DW-1 Ramesh Paswan, DW-2 Rajaram Yadav and DW-3 Ramashray who reiterated the defence version.

8. In order to prove its case, the prosecution has examined Smt. Krishna Devi as PW-1, Smt. Suman Yadav as PW-2, Head Constable Ramashish as PW-3, Dr. J.P. Singh as PW-4, Dr. Mahesh Kumar as PW-5 and S.I./Investigating Officer Virendra Singh Yadav as PW-6.

9. Smt. Krishna Devi PW-1/Complainant, wife of late Ram Ratan in her statement has deposed that on 11.07.2014, she along with her daughter Suman and her husband Ram Ratan Yadav were returning home from Rudrapur market on a motorcycle. Her husband was driving the motorcycle, which was registered in his name. At about 1:00 o'clock in the noon, when they reached near the two-room house, which is called 'Waye Miyan Ki Madai', then Dayanand, Vivekanand sons of Prayag, Chandrashekhar son of Ram Shabd, Sarananand son of Ram Shabad, Prayag son of Bhagwan, and some other people were present there. As soon the motorcycle reached near the Madai, all the aforementioned accused surrounded us armed with lathi-danda and dragged her husband off the motorcycle and started assaulting him with lathi-danda. The other people present there caught hold the complainant and her daughter. The aforsaid accused kept beating her husband with lathi-danda and when he fell on the ground, Chandrashekhar thrust a piece of wood into her husband's stomach and continue hitting him, as a result of which complainants husband sustained injuries from lathi-danda on his head, stomach, back, thighs, and hand, resulting in a broken hand and a broken leg bone that was hanging.

10. The complainants husband was speaking faintly in his injured state. The accused, hurling abuses, fled away saying that they would also kill the complainant. Immediately after the incident, the complainant took her husband to Rudrapur Government Hospital on tempo, where the doctor after giving first aid referred the injured to Deoria. Thereafter, the injured was rushed to the Deoria Hospital from Rudrapur hospital on another vehicle. In Deoria, the injured was provided medical treatment, administered drips, and after removing his clothes, examined the injuries. Then the injured was referred to Gorakhpur Medical College by the doctors. Thereafter the injured was taken to the Gorakhpur Medical College, where he succumbed to death. Thereafter the dead body of deceased was sent for postmortem examination. The report of the incident was reported to the police by the son of the aunt of the complainant, namely Vijay Pratap on 12.07.2014. The complaint was written on the dictation of the complainant, then he described the same, thereafter the complainant put her signature on the same. The witness identified the written report she wrote, which is document number 5 A/1 in the file, and stated that it is the same report she gave at the police station. The witness identified her signature on the report, which was marked as Exhibit Ka-1.

11. Prior to the post-mortem examination, the inquest of the dead body of the deceased was conducted in the Medical College. After the post-mortem, the dead body of the deceased was buried in the village.

12. The complainant was questioned immediately after filing the report by the Investigating Officer. The Investigating Officer took the complainant to the spot and inspected the scene. The Investigating Officer also came to complainants village and recorded the statements of the witnesses.

13. The PW-1 in her cross-examination has deposed that the statement, which was given by her in the Court, the same was dictated in the F.I.R. The accused were sitting in Waye Miyan's room and came out from there. After assaulting her husband, when the accused were leaving, they used abusive language and threatened to kill. She further deposed that she did not mention in the FIR about the accused hitting on the head, back, thighs, and arms, she described it in court today. No one, except complainants husband had any abrasion. The accused pushed them, and they also punched the complainant and her daughter. However she did mention about the accused punching her and her daughter in the FIR, nor did she told the Investigating Officer in her statement, nor did she mention it in her main examination. All three of us were sitting on the same motorcycle. She cannot state the distance of the scene from her home. Dayanand hit the complainants husband on the head. Neither she did mention this in her FIR, nor she told the Investigating Officer in her statement. There are no houses next to Miyan ki Madai. Besides the accused, there were seven other people with them. All those people did not hit; only five people hit her husband. She never showed the Investigating Officer the motorcycle, on which her husband was carrying us. She don't know about Section 161. She did not mention about the accused hitting on the head in the FIR. She saw her husband's injuries and saw him being beaten; She did not tell the Investigating Officer. The skin on her husband's back was peeled off in several places. She saw the peeled skin, when the doctor in Deoria had taken off his kurta (shirt) and examined him. The skin was peeled in three places. The accused first knocked her husband off the motorcycle and then started hitting him. Vivekanand had a stick in his hand. Chandrashekhar had a lathi (bamboo stick) in his hand. Sarnanand had a stick in his hand. Prayag had a lathi in his hand. Vivekanand first hit her husband on the head with a stick, then he hit him on the neck. She couldn't count how many times he did hit him. She can't even guess how many times he did hit him. In the FIR, she didn't get it written, which accused had which weapon in their hand. She don't remember, if in her main questioning it was not written, which accused had which weapon in their hand or not. The adjournment application on behalf of the accused is accepted, the cross-examination is adjourned for the next date.

14. The PW-1 in her cross-examination has further deposed that she was present when the inquest and the postmortem of her husband was conducted, thereafter leaving the dead body of her husband, she came to police station and lodged the report. She have got it written correctly in her FIR that "She then brought him to the Medical College Gorakhpur." He died during treatment in a short while. If it is said that her husband's treatment lasted for a while, this is wrong. She is a Hindu, as per custom among us dead bodies are cremated, not buried. Vivekananda and Dayananda beat her husband and broke his leg. She could not see, whose beating broke her husband's hand. She does not remember, which hand of her husband was broken. Chandrashekhar and Sarvananda did beat her husband on the back. She got Sarvananda's name written as Sharananand alias Sarvananda in her complaint. Then she stated that she got Sharananand written. She could not see how many sticks were used on her husband's leg. Her husband was hit with a stick many times on his stomach. Her fields and the accused's fields are adjacent to each other. She further deposed that, there was a dispute between her husband and the accused over a Sheesham tree, situated on the boundary wall. There was no dispute over the Sheesham tree situated on the ridge. She does not know, whether there was any dispute over the ridge or not. There was an injury on the head, but no blood was oozing out. The blood was oozing from the hand and the leg. She could not see any blood oozing out from the body. The skin on the back was blown away and it had turned red, but no blood was oozing from there. The road on which her husband was travelling, was a gravel road. The road on which the incident took place was a gravel road. From there, she cannot tell how far is the crossing. She cannot state the distance of Gojah Suratpur. It is a little far. She cannot state how many sticks were hit by the accused, she cannot even tell how many sticks each of the accused hit. Miya's hut is on the left side of the road. It is incorrect to say that, her husband fell down from the motorcycle on the gravel road and got injured. It is incorrect to say that we reached the spot after receiving the information. The doctor of Rudrapur bandaged her husband's broken hand and leg. She also deposed that she does not know, whether the bandage, the doctor had tied at the time of my husband's death was still there or not. She does not remember, whether the bandages, were tied while taking him from Deoria hospital to Gorakhpur or not. She does not remember, whether her husband was given medical treatment in Gorakhpur or not. He was referred for X-ray. It is incorrect to say that, there was a dispute between her husband and the accused over the Sheesham tree, situated on the boundary of the field. Her husband fell down from the motorcycle and sustained injuries and because of that dispute, the accused were implicated in a false case. This is wrong to say that, I got the Sheesham tree cut after the accused were sent to jail. It is wrong to say that, I did not see any incident. It is wrong to say that at the time, place and in the manner, I have stated the incident occurred, no incident took place at that place. It is correct to say that, I went to the place of incident with the Investigating Officer.

15. Suman Yadav (PW-2) in her statement has stated that the deceased Ramratan was her father. She had come from her home in Jogia Buzurg a few days ago. The accused are the residents of Prayag Buzurg. Viveka and Dayanand are the sons of Prayag. Prayag and Ramshabd are brothers. Chandrashekhar was the son of accused Ram Shabd. Sharananand was also the son of Ram Shabd. Accused Chandrashekhar and Sharananand are brothers, and they are residents of Jogia Buzurg. She further deposed, that there was a land dispute with the accused. This incident has taken place on the road near Miyas hut on 11.7.14 at around 1:00 O'clock in the noon. PW-2 and her mother Krishna Devi had gone to market on a motorcycle with his father Ramratan. When they were returning from the market, the accused Vivekanand, Dayanand, Sharanand, Chandra Shekhar and Prayag were hiding in Miya's hut and when they reached the place, where they were hiding, then all the accused persons surrounded the motorcycle and pushed it. PW2 and her mother Krishna Devi fell down from the motorcycle. Thereafter all the accused persons started assaulting Ramratan with sticks. PW2 and her mother started crying and shouting, while being caught hold of. Apart from these five, there were some other people, who were holding us. PW2 also deposed that she does not know the other people by name, who were with the accused and can only recognize them by face. They also abused them and threatened them to kill. They assaulted her father Ramratan and broke his hands and legs. They have also given lathi blow in the stomach of her father and felt that he died and left him. Thereafter PW-2 took her father to Rudrapur Hospital in injured condition, where the doctor referred him to District Hospital Deoria. Seeing the serious condition of the injured, the doctor of the District Hospital, Deoria referred him to the Medical College Gorakhpur, but before reaching the Medical College her father succumbed to death. She also deposed that apart from PW2 and her mother, some other people have also seen the incident.

16. PW-2 in her cross examination has deposed that her statement was recorded by the I.O. While giving the statement to the I.O., she told him that "Vivekanand and Dayanand were the sons of Prayag. Prayag and Ram Shabd were brothers. Chandrashekhar is the son of the accused Ram Shabd. Sharananand is the son of Ram Shabd. Accused Chandrashekhar and Sharananand are brothers and residents of Jogia Buzurg." The witness was read out her statement under 161 CrPC and was asked that this fact was not mentioned in her statement, then she stated that she could not give any reason, as to why her statement was not recorded. Rudrapur was located in the East of the place, where the incident took place and the distance was about 4 km. At this stage, counsel for the accused Dayanand Yadav has submitted that PW-2 refused to reply during her cross-examination. Hence, the cross-examination is adjourned to the next date.

17. PW2 in her corss-examination has further deposed that her maternal house would be approximately 1-1/2 km. north of the place of incident and maternal house will be there, if someone take a chak road and goes north on the road a little west of the place, where the incident took place. That chak road is a RCC road. She did not know, whether the place of incident is in Karauta village or her village Jogia Buzurg and also did not know that Guna village will be behind the road from the place of incident. Miyan's hut, in which the accused were hiding would be in Karauta village or Guna Suratpura, she could not know, whether that would be in Jogia Buzurg. She also deposed that at the time of incident her father's motorcycle had fallen on the middle of the road, her mother and she were standing close to the motorcycle. Her father was not assaulted between the motorcycle and the place, where they were standing, but was beaten at some distance on the road. Seeing the said incident they got panicked. Her Father was being hit towards the east of us, everything was happening side by side, the distance was not measured. There was blood near the spot, it was not spilled. They were hitting with sticks, they were hitting on the stomach with the tip of the stick. It is not that blood fell on the spot and due to panic and hurry, She was unable to tell. She also deposed that, it is incorrect to say that she did not witnessed the incident in panic and hurry and that day gave a wrong statement on that point.

18. PW-2 also deposed that she saw the accused coming out from the Miya's hut which has a cement roof, no one lives there, it was an old ruin, it was not that the accused came from the west side from the back of the hut, rather they came out from inside the hut, She was not giving a false statement on that point also, all the accused came out from inside the hut, there was a door in the hut, there is no gate, first five people came out of the hut and then seven people came out to catch us, it was not that all the twelve accused came out of the hut together, it was also not the point that she was speaking wrong on this point also due to panic and hurry, these seven people did not have any weapons, apart from catching us, these seven did not do anything to us i.e. mother and daughter. She further deposed that on the advice of the five people, who had come out of the shed first, the seven people who came out of the shed and caught us later. All five of them stated that this mother and daughter are screaming a lot, catch them otherwise, we will kill them too. The Investigating Officer had not interrogated me about this, so she did not tell him. That is, whatever the I.O. asked me about the incident, she told that only to him, she did not tell anything about the incident from my side. PW-2 also deposed that on the very day, we left our house at around 11 A.M. At the time of occurrence her younger sister Kiran was at her in-laws house. Prior to the incident, her father had called her, but he did not call my younger sister, there was no special reason, he just called me. He had called me 10 days prior to the incident. No fight or scuffle took place with the opposite party at any point of time between 10 days or before the incident. After leaving home at 11:00 A.M., they did shopping in Rudrapur for about 2 hours, bought clothes, jewellery, vegetables etc. She also deposed that after the incident, they boarded a tempo and went to Rudrapur hospital. They did not go to our Jogia Bujurg after the incident, as there was a police station right next to Rudrapur hospital. They also went to the police station. From the hospital and in the ambulance, there was a police inspector and a constable from the police station, when we talked to them, they stated that first get yourself treated, then the report will be lodged. They stayed in the hospital for about 1/2 hour. When people went to the police station, my father was speaking a little, he was breathing. After the incident, while going to the medical college, her mother was informing the relatives about the incident through papas mobile phone. Upon receiving the information, some people reached Deoria and some reached Gorakhpur.

19. It is in correct to say that due to nervousness and hurry, she did not tell the Investigating Officer about the mobile. They reached the medical college at around 8:00 P.M., till then, no policeman from Rudrapur police station had reached there. The hospital must have given the slip to my mother for the medical college, but did not give it to me. She had completed M.A. and B.Ed. till date. She do not know about that referral paper. It is incorrect to say that, her father was admitted to B.R.D. Medical College, Gorakhpur on 11/7/14 at 9:00 P.M. It is incorrect to say that after one hour of treatment in the medical college, her father died at 10:00 P.M. Her mother must have spent the money for her father's medicine and treatment from Rudrapur to the medical college. When the doctor was taking her father for X-Ray in the emergency ward of the medical college, her mother was with him. Oxygen was given through her fathers mouth. His neck had rolled to one side. Then she came to know that her father had died. Her mother told her that, while she was going near the stretcher. A dead man was recognized. It must have been around 9:00 P.M. at that time. Her mother was scared and was crying and shouting. That is why, she did not inform the police through mobile. She was educated, but was scared and shouting due to my father's death. That is why she did not inform the police through mobile. Her mother had left the medical college after the post mortem. Her mother left Gorakhpur on the second day of the incident, on the 12th, at around 12:00 PM. Her mother told her that, she had to go to the police station to report the incident. Her mother took the mobile with her. She don't know, if her mother would have informed the police station through mobile, only her mother can explain. While going to the police station from Gorakhpur, my mother did not say that she had informed the police station through mobile. she did not tell my mother that, why are you going to the police station, she should inform the police station through mobile. Her mother did not go to Medical College, Police Station Rudrapur alone, but with relatives. No report was filed between the journey of my mother from medical and Rudrapur. Only her mother will be able to say, where the report was filed. Till date she had not asked her mother, where she filed the report. Till date she did not know, where and at what place she wrote or got the report written, that my mother had handed over in the police station. PW-2 told the inspector that, the incident took place to the east of Giyapur Tiraha, her mother and she had shown the inspector the Giya Tiraha, she had also shown the place, where the incident took place. The inspector only asked, where the incident took place, so we showed him the spot. The inspector did not ask, where the motorcycle had fallen, so she did not show him the place, where the motorcycle had fallen. she showed the inspector the place, where she and her mother saw the incident. she also showed him the path from where the accused came out. When the inspector wrote the statement, she told him that the accused came out from the shed. If the inspector has not written the statement that they were hiding in the shed and came out from there, then she cannot state the reason. She did not give such a statement to the I.O. that during treatment, her father died. If this is written in the statement, she could not tell the reason. It is incorrect to say that the police inspector has not shown the crime scene.

20. PW-2 further deposed that the road on which the incident took place, was used by government vehicles and four wheelers. At the place where the accident occurred, there was no jaam of passengers or passenger vehicles on both sides. About half an hour after the incident, a tempo arrived. She deposed that the goods, which were purchased in Rudrapur that day, were given to the people, who had come to Rudrapur, who delivered them to their home. Among those goods, there was a set of jewellery, which was also delivered to the home. When the incident happened, they left the motorcycle there and did not hand it over to anyone. The villagers came and took it away. She knew the villagers, very well, who took the motorcycle away. The investigating officer did not ask her anything about the motorcycle. When they returned home, the motorcycle was parked at the door. Even that day, she could not tell, who brought her father's motorcycle from the scene of the incident, whether the person who brought it drove it or someone else brought it with her. PW-2 has further deposed that, it is incorrect to say that her father was driving his motorcycle in an inebriated state and fell down on one side, due to which he sustained injuries and died during treatment in the medical college. It is also incorrect to say that, her father was a person of political influence and used to harass the accused persons over petty matters of the village assembly, but was not successful. It is also incorrect to say that, despite falling from the motorcycle in an inebriated condition, he, in consultation with friends and persons of the village, falsely implicated innocent people, with an intention to wreak vengeance due to enmity. It is also incorrect to say that, she was at her in-laws' place on the date of incident and was not at the place of incident in any manner, she is a witness in this case, only to seek revenge out of enmity. It is also incorrect to say that no incident took place in the manner, as described by her in the statement.

21. Ram Ashish (PW3) in his statement has deposed that on 12.7.2014 he was posted in Police Station Rudrapur, District Deoria in the capacity of Head Constable. On 12.7.14 at 3.30 pm, on the basis of written complaint made by Krishna Devi, he registered the FIR bearing No. 1154/14 under sections 147,148,307,308,323,504,506 IPC & 342,304 IPC and 7 Crl. Law Amendment Act against Dayanand Yadav son of Prayag, Vivekanand son of Prayag, Chandrashekhar son of Ramshabd, Sharananand son of Ramshabd, Prayag s/o Bhagwan residents of Jogiya Buzurg Police Station Rudrapur. The case was got registered on the basis of the written report of Smt. Krishna Devi, wife of late Ramratan, Chick FIR No. 112/14 had been prepared, which was in his writing and signature. After filing the complaint, he prepared the entry of the case in report No. 25 at 15.20 P.M. on 12.7.2014 in his handwriting and put signature on it. The original GD was prepared on 12.7.14, which is marked as Ext. Ka-1. He certified that it was the same, as per the original. Exhibit Ka-2 was put on original FIR and Exhibit Ka-3 on GD. The investigating officer had taken PW3s statement.

22. Dr. J.P. Singh (PW-4), who was posted as Pathologist in District Hospital, Gorakhpur, in his statement has stated that on 11.7.2014, he was on duty as Emergency Medical Officer in District Hospital, Deoria. At about 6.10 P.M. the injured Ram Ratan Yadav, age 57 years, son of late Jairam Yadav, resident of Jogia Bujurg, Police Station Rudrapur, District Deoria, was brought by his wife Krishna Devi in an injured condition to the District Hospital Emergency. He further deposed that he has examined the injured and found following injuries on his body:-

(1) There was swelling and redness of 6 cm x 4 cm on the left leg 5 cm below the knee.

(2) A lacerated wound 5 cm x 3 cm on the right thigh which was red in colour and 11 cm above the right knee.

(3) A lacerated wound 1 cm x 5 cm on the left foot and its big toe Blood was coming from the finger next to the first finger.

(4) A peeled wound 10 cm x 7 cm on the left side of the abdomen from the waist bone to above the left waist bone was red in colour.

(5) Pain was being felt on the back of the right hand. Due to severe pain in the fingers, the right hand was x-rayed. It was red in colour.

(6) A bluish mark 20 cm x 15 cm on the right arm, which was 1 cm below the right shoulder. X-ray was advised for this injury. It was red in colour. There was swelling and redness in it.

(7) A bluish mark 17 cm x 10 cm with swelling on the left arm which was 5 cm below the shoulder. X-ray was advised for this as well.

(8) Swelling and bluish mark 11 cm x 9 cm on the right side of the back, 2 cm below the rib cage, was red in colour.

The doctor (PW4) has deposed that for injury Nos. 1, 5, 6, 7 the injured was got admitted and advised for X-Ray and thereafter he was referred to Orthopadic surgeon. Injury Nos. 2, 3, 4, 8 were simple in nature, which can be caused by hard and blunt object like lathi-danda. The duration of the injuries seems to be 5 to 6 hours. The injury was verified by taking the left thumb impression of the injured person. All these injuries were written in his writing and signature. On that day, the medico-legal register had been prepared in his presence, by the pharmacist of Sadar Hospital. On which, the examination report of the injuries of Ramratan Yadav was prepared in his writing and signature. The certified photograph of the medical report of the injuries of the Ramratan Yadav is as Ext-Ka10. PW-4 in his cross-examination has deposed that he recorded the medical report of the injured in the register, he did not attach a carbon copy of the same. The fact is that, after recording the medical report, PW4 did not immediately give any copy of the same to the injured or his companion. It was also true that no copy of the injuries recorded in the register had been asked from him till date. He further deposed that, it is incorrect to say that the photocopy was obtained and its entry was made in the register. He further deposed that after examining the injured and looking at his injuries, the report was prepared. The injured are admitted to the hospital, only when the injury was serious. If the injury was not serious, then the injured were treated and then discharged. There was no mention in Ext.Ka-4 that the patient was admitted to the hospital. But he was referred to an Ortho Surgeon. After referral, no report of the ortho surgeon was ever presented to him by the injured or his family members. The process of scab formation in the injury of abrasion, report or X-ray report or X-ray plate starts after 12 hours. Writing 'Simple in Nature' means that there could not be any danger to the life of the injured. Injuries of blunt object or accidental nature were almost of the same nature. The injured did not have any head injury.

23. Dr. Mahesh Kumar-PW5- Medical Officer Incharge Primary Health Center Khajni, District Gorakhpur in his examination has stated that, on 12.07.2014, he was posted in Khajni as Medical Officer Incharge. On the said date, by the order of Chief Medical Officer, Gorakhpur, he was posted at B.R.D. Medical College, Gorakhpur for conducting post mortem and the post mortem of deceased Ram Ratan Yadav son of late Jairam Yadav, Resident of Jogia Buzurg, Police Station Rudrapur, District Deoria, aged about 57 years started at 4.10 P.M. and ended at 4.30 P.M. The dead body of the said deceased-Ram Ratan Yadav was brought by the Constable Sikander Singh from the Police Station Gulharia, District Gorakhpur and he got the said body identified and the post-mortem of the said body started on 12.07.2014 at 4.10 P.M. The physical structure of the said dead body was of medium height. Stiffness was present in the whole body, the eyes of the deceased were closed and the mouth was half opened. The following injuries were found on the body of the deceased before death.

(1) Scratch whose size is 15 cm. X 8 cm. on the right shoulder joint and on the right forearm below the shoulder joint.

(2) Contusion swelling in right hand index finger. Blood clot was present under the skin and bone was broken.

(3) Swollen bluish mark on right side of forehead measuring 6 cm x 4 cm. On opening the skin, blood clot was present under it. On opening the head, brain fluid and blood clot were found.

(4) Swollen bluish mark was present all around below left knee. On opening it, blood clot was found under the skin and both bones were broken.

24. The death of the deceased was due to coma, caused due to injuries on his body before death. The deceased died on 11.7.2014 at 10:00 P.M. in B.R.D. Medical College, Gorakhpur and the doctor had conducted the autopsy on time, which was in his handwriting and signature, on paper No. 17K/1, was included in the file, which was before the doctor on that day, on which Ex. K-5 was marked. The ante-mortem injuries of the deceased could have been at 1:00 P.M. on 11.7.2014. The ante-mortem injuries of the deceased could have been caused by lathi or stick. The ante-mortem injuries of the deceased were generally sufficient to cause death. A total of 9 documents were sent by the S.H.O. Gulharia, Gorakhpur, alongwith the body of the deceased. Panchayatnama Paper No. 11-K/1 to 11-K/2, two pages memo of B.R.D. Medical College, Gorakhpur Paper No. 9K/1, Carbon copy of arrival memo police station Gulharia dated 12.7.2014 Paper No. 7-K/2, challan destruction Paper No. 12-K/1, report R.I. Paper No. 13-K/1, photo destruction Paper No. 14-K/1, Report C.M.O. Paper No. 15-K/1, specimen stamp was sent, out of which specimen stamp is not in front of him. The rest is in front of him. On which, his signature is there.

25. Dr. Mahesh Kumar-PW-5 in his cross-examination has deposed that while dissecting the body, doctor did not find any other injury on the body of the deceased apart from the injuries, which he had recorded in the dissection as Exhibit A-5. It was not true, that he was negligent while inspecting the body. The first injury, which he had mentioned in the dissection is not fatal. Injury No. 2 was also not fatal. Injury No. 4 was also not fatal. Doctor did not get the X-ray done of injury No. 3, because he did not consider it necessary. In injury No. 3, he did not find any fracture of the skull bone of the deceased. The witness himself stated that, when the said injury was opened, swelling was found, therefore, it was indicated and when it was opened and examined, hematoma was found in the brain and brain membrane.

26. Despite this, the bones of the deceased's head were not found broken anywhere. When the deceased was brought for post-mortem, there was no bleeding from any injury. Before conducting the post mortem, doctor had filled up all the police forms. The police had given total 9 police forms to the doctor. The specimen stamp, which came with the police forms was not in the trial file at this time. There were a total of 8 enclosures in front of doctor in the file on that day, which he had seen and signed. Nine enclosures were mentioned in front of the doctor, but there are only 8 enclosures on file today. Doctor had received the above mentioned 9 police forms, those were returned to the police personnel, who brought the dead body. There was no mention of the weapon in police form 3. The deceased went into coma due to the injury and he died due to coma. The injuries sustained by the deceased must have been caused by a blunt object, but doctor could not say, which particular weapon must have caused that. Accidental injuries could also be caused by blunt objects. Exhibit A-6 to A-12 were marked respectively.

27. S.S.I. Virendra Singh Yadav-PW6, who was posted at Georgetown Police Station, Allahabad at the time of deposition, deposed that on 12.07.2014, he was posted as the In-charge Station Officer at Police Station Rudrapur. On the said date, based on the written information provided by the complainant Smt. Krishna Devi, wife of the deceased Ram Ratan, resident of Jogia Bujurg, Police Station Rudrapur, FIR No. 1154/14 was registered under Sections 147, 148, 307, 308, 323, 504, 506, 342, 304 IPC and Section 7 Criminal Law Amendment Act, in his presence against the accused Dayanand Yadav, Vivekanand, Chandrashekhar, Sharananand, and Prayag Yadav. S.S.I. Virendra Singh Yadav has further stated that he himself conducted the investigation. During the course of the investigation, he recorded the statement of the informant, the statement of other witnesses, and inspected the scene of the incident based on the complainants identification. S.S.I. Virendra Singh Yadav had prepared a site map in his own handwriting and signed on it. When shown the site plan marked as Paper No. 16A/1, PW-6 identified it and confirmed that it was the same site plan prepared by him, which he verified and the same was marked as Exhibit A-13. During the investigation, on 16.07.2014, Paper No. II was prepared and signed by S.S.I. Virendra Singh Yadav. It included the postmortem report and the inquest report of the deceased-Ram Ratan. On the same day, the accused Prayag Yadav (son of Bhagwan Yadav), Chandrashekhar (son of Ramshabd), and Dayanand Yadav (son of Prayag Yadav), all Residents of Jogia Bujurg, were arrested and their statements were recorded. On 17.07.2014, Paper No. III was issued, which recorded the arrest and statements of accused Sharananand alias Sarvanand (son of Ramshabd) and Vivekanand (son of Prayag), both residents of Jogia Bujurg. On the same date, Slip No. III-A was also prepared. Upon further investigation, Sections 307 and 308 IPC were not found to be applicable, the charge was modified and a supplementary Prescription No. IV was issued on 23.07.2014. PW-6 stated that he reviewed the Panchayatnama, the original postmortem report, and the injury report, along with statements of Chandrama Yadav, Brahmadev, Awadhen, and Lal Murat Yadav, all Residents of Jogia Bujurg, as well as the statement of the inquest witness Vijay Pratap Yadav, resident of Saraiya Malaidia, Police Station Badahalganj. S.S.I. Virendra Singh Yadav PW6, also recorded the statement of the Injury Examiner Dr. V.P. Singh, Head Pathologist, on 25.07.2014, he issued Prescription No. V, which included the statement of the inquest examining officer SI Ram Vriksh Ram from Police Station Gulharia, District Gorakhpur, and the statement of Dr. Mahesh Kumar, Medical Officer, Primary Health Centre, Khajni, District Gorakhpur, who conducted the postmortem. Thereafter, Investigating Officer filed Charge Sheet No. 135/14 against all the accused persons, under Sections 147, 148, 323, 504, 342, 304 IPC and 7 Criminal Law Amendment Act. S.S.I. Virendra Singh Yadav affirmed that the charge sheet was prepared by him in his own handwriting and signature. When shown Charge Sheet No. 3A, he confirmed it, as the same and verified it as bearing his writing and signature. It was marked as Exhibit A-14.

28. S.S.I. Virendra Singh Yadav-PW 6, in his cross-examination has deposed that at the time of registration of FIR, only the complainant Krishna Devi and the informant Vijay Pratap Yadav were present at the police station; no one else accompanied them. S.S.I. Virendra Singh Yadav clarified that the FIR writer Ram Ashish Prasad, did not question the complainant or the informant, while preparing the FIR. S.S.I. Virendra Singh Yadav-PW6, further admitted that although he recorded the statement of the informant Vijay Pratap Yadav later, he did not do so on the date of the FIR, as the site inspection and search for the accused were to be carried out. PW-6 conceded that he did not mention this reason in the case diary and could not explain, why it was omitted. S.S.I. Virendra Singh Yadav-PW6, further deposed that during the site inspection, one or two relatives of the complainant were present, but they were not named in the case diary, as he found no reason to mention them. PW-6 noted that the nearest village to the north of the incident site was Miya Bujurg, approximately half a kilometer away, but could not recall its exact direction. S.S.I. Virendra Singh Yadav-PW6 has acknowledged that, while he prepared Exhibit A-13 based upon information from the people present there but he did not remember, whether he inquired about the direction and distance of Village Karauta, nor did he mention the names of the persons, who provided such details. S.S.I. Virendra Singh Yadav-PW6 admitted that the complainant had shown the place of incident, but the marking on the site plan were based upon the input received from the locals. Investigating Officer confirmed that people from Miya Bujurg, were present during the site visit, though he did not recall the west side distance from the incident site. S.S.I. Virendra Singh Yadav-PW6 further stated that he could not identify the village, in which, the incident site fell, as no one inform him about that. PW-6 marked a cornfield near Mian's hut, based on what locals told him, but PW-6 did not independently verified the hut's exact area or its ownership and he mentioned that, there was an exit gate at the hut, but no grills. S.S.I. Virendra Singh Yadav-PW6 has next testified that, no one had told him that people were sitting inside Mians hut. The road was said to begin around 20 meters north of the hut, and the incident took place approximately five steps north from where the road started. PW-6 did not attempt to ascertain the distance between the parties, at the time of confrontation, nor did he investigate, where the motorcycle fell or in which direction the accused fled away after the incident. PW-6 did not verify, who lived in Mians hut, nor did he met or recorded the statements of Sudama Harijan, Ramashray, Nagina Mishra, or Liaqat (son of Samdulli), all of whom were mentioned in the site plan. PW-6 claimed he did not felt its necessity. S.S.I. Virendra Singh Yadav-PW6 has further stated that he found no evidence of oil spillage at the scene and that the motorcycle was not found during the site inspection. PW-6 did not ask the complainant about the motorcycle's location, though he later found it near her house, but he has not mentioned in the case diary and never inspected the motorcycles condition or documents. S.S.I. Virendra Singh Yadav-PW6 did not attempt to identify, which attacker struck the deceased from which direction or from how much distance. PW-6 made no efforts to investigate who were giving the blows from front, back, or side. No blood stains were found at the alleged site of incident. PW-6 attributed this to more than 24 hours having passed and the road being a busy one. He did not mention in the case diary about the absence of blood or traffic activity at the scene. PW-6 never asked the complainant about the blood-stained clothes, nor were such clothes produced or mentioned. PW-6 did not ask about the weapons used, though it was mentioned that the accused carried lathis, rods, and sharp weapons. S.S.I. Virendra Singh Yadav-PW6 further admitted that witness Suman never told him, that the deceased possessed a mobile phone and he also never asked her about it. He acknowledged that, there was a land dispute between the deceased and the accused, but did not examine the details of land ownership or transactions. PW-6 denied the suggestions that he deliberately misrepresented the facts regarding the location, direction of the place of incident and evidence in order to file a false charge sheet. He also denied that he had falsified details concerning the motorcycle or that the incident did not happen as described.

29. DW-1 Ramesh Paswaan son of Ram Dulare Paswaan, R/o. Jogia Bujurg, Thana Rudrapur, District Deoria, aged about 38 years, profession farming, deposed that he knows Dayanand Yadav, Vivekanand, Prayag Yadav, Chandrashekhar and Sarmanand. These people are from his village. He knew Mrs. Krishna Devi, she is also from his village and her husband's name is Ram Ratan Yadav, he died about four years ago. Her daughter's name is Suman, he knows her too. Suman was married long before the death of his father Ram Ratan Yadav, she lives in her in-laws' house. He never had any fight, quarrel or litigation with Krishna Devi and there has also never been any enmity, quarrel or litigation with the families of Dayanand and Vivekanand.

30. DW-1 Ramesh Paswaan, further deposed that it is true, he has normal relations with both the families. Ram Ratan Yadav has good agricultural land and he used to deal in buying and selling of land. DW-1 have not seen the place, where Ram Ratan got injured. Some people brought Ram Ratan to his doorstep in a tempo, he was alive at that time. From there, people and his wife took him to Rudrapur hospital for medical treatment. When people brought Ram Ratan home in a tempo, his wife Krishna Devi was also present and took him there in injured condition for medical treatment. Ram Ratans daughter Suman was not there at that time. When Ram Ratan was brought to their door, many people of the village had gathered there. The people who had brought him to the door in a tempo had told that Ram Ratan was coming on a motorcycle and fell from it and got injured. Ram Ratan was a domineering man and also used to take drugs.

31. DW-1 Ramesh Paswaan, in his cross-examination has deposed that no summons from the court were received by him. Today, he has come to give a statement along with the accused Dayanand and he is giving statement on the instructions of those people and he has come to state what he has seen.

DW-1 Ramesh Paswaan, in his cross-examination has further deposed that, he is not the Pradhan of the village, but his wife is the Pradhan of the village and her name is Sharda Devi. The deceased Ram Ratan has two daughters and a son, whose names are Suman and Kiran respectively and he does not know the name of the son because he lives elsewhere. DW-1 has seen Suman, who used to visit the village after her marriage. Suman must have got married about eight years ago. He further deposed that, when his wife contested the election of Village Pradhan, seven candidates had contested in that election. All the candidates were women and belonged to the same caste. DW-1s wife became the Pradhan of the village after this incident. All the candidates tried to woo the voters. When DW-1 heard about the injury of Ram Ratan, he was at his home at that time.

He does not know at what time Ram Ratan was injured or who did hit him. DW-1 can identify the people who brought Ram Ratan to the house, but he does not know their names. He cannot tell at what time people brought Ram Ratan to the door and what time they reached there. He did not go to the hospital with Ram Ratan. He cannot tell, as to where, people took the deceased Ram Ratan from Rudrapur in his injured state. He saw his daughter Suman for the first time during Ram Ratan's last rites. He does not remember, when he saw Suman before the incident. He did not see Suman after the last rites (Brahmbhoj). Ram Ratan's house is to the east of the house of DW-1. It is at a distance of about 300 meters. The house of the accused is at a distance of about 600 meters to the east of his house.

It is wrong to say that on the day of the incident, Ram Ratan was returning home from Rudrapur on a motorcycle with his wife Krishna Devi and daughter Suman.

It is also incorrect to say that on the day of the incident, Dayanand, Vivekanand, Sharananand and Chandrashekhar stopped the Ram Ratan on the way and assaulted him with sticks etc., injured him, due to which he died.

It is incorrect to say that the family of deceased Ram Ratan opposed him in the Pradhani election, so he has come to testify today.

He does not know, who voted for his wife and who did not. The truth is that all the people are his own.

32. DW-2-Sri Rajaram Yadav deposed in his examination-in-chief that he knew the complainant Smt. Krishna Devi, her husband's name was Ram Ratan, though people used to call him (SIC Yadav.). The house of D.W.-2 was located approximately two katthas west of Ram Ratans house. Conversely, Ram Ratans house lay two katthas east of his house. DW-2 stated that he knew Dayanand, Vivekanand, Prayag, Chandrashekhar, and Sharananand all of whom belonged to his village. He had no quarrel, dispute or litigation with the appellant-complainant Krishna Devi or her husband Ram Ratan. Similarly, he had no enmity, dispute, or litigation with Dayanand, Vivekanand, Prayag Yadav, Chandrashekhar, and Sharananand. He maintained normal relations with both parties.

33. DW-2-Sri Rajaram Yadav, further deposed in his examination-in-chief that, he knew Ram Ratans daughters. Ram Ratan had two daughters, both of whom were married and resided at their matrimonial homes. Ram Ratan had been involved in land sale-purchase, during his lifetime. He was described as a domineering man. He died in a road accident, while riding a motorcycle and at that time, the road was gravelly. After the accident, some people brought the injured to his home in an injured condition using a tempo. DW-2 was unable to name those, who brought Ram Ratan home, as he could not recall their names. At that time, Ram Ratans wife, Krishnavati was present at home, she took him in the same tempo for treatment. His elder daughter, Suman, was not present at the time. The incident had occurred approximately four years earlier.

DW-2-Sri Rajaram Yadav, in his cross-examination has deposed that he lived in Bombay and had been working there for a long time, much prior to the incident. Although Ram Ratan had two daughters, he did not know their names, neither at the time of the incident nor even now. Ram Ratan also had a son, but he did not know his name.

When asked about the surroundings of his house, he responded as follows:

East of his house: There was a khadanja (paved brick path), beyond which stood Ram Ratan Yadavs house.

West: Ram Vachan Yadavs house, his cousin.

North: The house of Mahadev Paswan.

South: The house of Kedar Paswan.

DW-2-Sri Rajaram Yadav, confirmed that his cousin Ram Vachan had two sons, he knew their names. However, he did not know the names of his five daughters. He further stated that he rarely visited the village from Bombay, usually only once, every one or two years. People of his age in the village knew and recognized him, and he knew them in return.

DW-2-Rajaram Yadav, further confirmed that the present case had been filed by Krishnavati Devi. A civil case had previously been filed between him and the appellants-complainants family, although it was no longer pending. He next stated that he did not know, whether Krishnavati Devi had filed a criminal case against him, his sons namely, Jitendra and Ram Prakash Yadav, and his wife Vimla Devi.

When asked to DW-2, whether Krishnavati Devi had filed an assault case against you and your sons in the year 2013 at P.S. Rudrapur, he replied that they had been in Bombay at that time. His wife had been beaten with sticks, causing a forehead injury. He stated that they were poor people and he had not taken any retaliatory action due to their economic condition.

34. DW-2-Sri Rajaram Yadav, in his cross-examination has further deposed that he had not committed any act of violence and was not involved in any such incident. Being a labourer, he earned his livelihood through daily wages. He claimed that the opposite party was domineering and had threatened to kill them. He returned to the village upon hearing about the incident, but did not speak to anyone about it. He no longer had any relations with the opposing party.

DW-2 confirmed that he had felt bad upon learning that his wife had been assaulted, but did not take any steps in retaliation. No action had been taken, primarily due to poverty. He further clarified that he was not present at the scene, when the incident involving the deceased Ram Ratan took place, as he was working on his farm at that time. When asked to DW-2, whether any food eatables have been shared with the family of Krishnavati Devi after 2013 incident, he responded that they were poor people and that wealthy individuals generally do not associate with labourers. He asserted that he had no previous association with that family and maintained no relations at present either.

DW-2 acknowledged having social relations with the families of Dayanand, Vivekanand, Chandrashekhar, and Sharananand.

DW-2-Sri Rajaram Yadav, admitted that a civil case had been filed between him and deceased Ram Ratan Yadav, but accepted that he had not disclosed it in his main statement and had intentionally withheld it.

He denied the suggestion that a prior altercation with the complainants family had motivated him to depose falsely in favour of the accused.

DW-2 further denied having good relations with the accused or any enmity with the complainant, that could have prompted him to give false testimony to protect the accused.

He also denied the suggestion that, he was not present at the place of incident, but had still given false evidence before the court regarding the occurrence.

35. DW-3-Ramashray, deposed in his examination-in-chief that, he knew Krishna Devi, who belonged to his village. He also stated that he knew Dayanand, Vivekanand, Prayag Yadav, Chandrashekhar, and Sharananand all of whom were residents of the same village. He affirmed that he never had any quarrel, altercation or litigation with any of the individuals named above.

He further stated that he knew Ram Ratan, resident of his village, who had passed away. According to DW-3, Ram Ratan had died, while travelling from Rudrapur to the village on a motorcycle, due to large pebbles on the road, he had slipped, fallen and sustained injuries. Thereafter, some individuals had placed Ram Ratan in a tempo and brought him to his house located in Jogia Bujurg. From there, his wife Krishna Devi had taken him to the hospital in Rudrapur for treatment. At that time, Suman, Ram Ratans daughter was not present at home, as she was staying at her in-laws' house.

The witness clarified that he had no dispute, quarrel or litigation with Ram Ratan. He also confirmed that he was present, when Ram Ratan was brought home in an injured condition.

DW-3 lastly deposed that Ram Ratan was engaged in farming and was also involved in the business of purchasing and selling of agricultural land.

36. DW-3-Ramashray, in his cross-examination has deposed that his house is located at about ten bigha in the West from the house of Ram Ratan and from the house of Dayanand and others, his house is located at the same distance. He further deposed that he used to visit the house of the accused persons and there was a relationship between them. He also deposed that, he knows Prayag Yadav and Shivlal. Both are the native of his village. On the date of the incident he reached at the door of Ram Ratan at about 3:00-4:00 P.M. and stayed there for about 10-15 minutes. At that point of time Ramratan was lying at the door in injured condition. From there, he went to his house. He further deposed that on the date of incident, when he reached at the door of Ramratan, there was a huge crowd there and the wife of Ramratan was crying and wailing. He did not see the Dayanand and the other accused persons at the door of Ram Ratan. He further deposed that, it is incorrect to say that to save the accused persons he was giving false testimony. It is also incorrect to say that he has not seen the incident, however the deceased has died due to the injuries sustained by him.

37. Learned counsel appearing on behalf of the appellants has submitted that judgment and order dated 18.08.2018 passed by learned Additional Session Judge, IV/Special Judge, E.C. Act, Deoria is illegal and arbitrary and the learned trial court ignored the facts and law as applicable in the facts and circumstances of the present case and has failed to appreciate the evidence on record. He further submitted that learned trial court did not fully appreciate the evidence on record and arrived at a different conclusion, whereby convicting the appellants in an illegal and arbitrary manner. Learned Additional Session Judge, without taking into consideration the factual matrix and the testimony of the witnesses as corroborated during the trial in a coherent, cogent and homogeneous manner, meaning thereby the evidence did not support the prosecution case and the learned Additional Sessions Court did not consider and appreciate the same in letter and spirit. However, the inculpatory part of evidence was taking into account, while passing the judgment and sentence against the appellants. He also submitted that the complainant of the case could not remember, as to which hand of her late husband/deceased was fractured, the PW-1 namely Smt. Krishna Devi, complainant of the case, could not remember the correct names of the accused persons and she further stated that there was some dispute between her husband/deceased and accused persons over a Shisham tree, which was situated at the mid point of fields of complainant and accused persons. She next stated that there was no such dispute in respect of Shisham tree.

38. Learned counsel for the appellants further submitted that it was a mere incident, where the deceased was going on a motorcycle and unfortunately the motorcycle met with an accident and as a result of which the deceased had sustained injuries and ultimately, he succumbed to the injuries. He also submitted that the presence of daughter of the deceased has been shown, just to give a colour to the story and as an addition to the number of witnesses. He next argued that, as far as the testimony of PW-2 is concerned, the said witness has been planted in an arbitrary manner, in order to prove a false case of accident into an incident, that she alongwith her mother and deceased (father) were returning from the market by having purchased some household articles, but the PW-2 has failed to disclose as to what articles were purchased by the family of the deceased, but she merely stated that articles those were purchased from the market, were given to someone else, just before lodging of the FIR, as if the deceaseds family was anticipating some incident likely to happen on the way. PW-2 has also failed to disclose the place of incident, which was very important for the case of prosecution, as to where and at which place the incident of beating and assaulting of the deceased took place. He has further submitted that, PW-2 in her corroboration stated that she saw the assailants coming out of miyajee ki madayee. He further submitted that, if someone could be seen, while riding on the motorcycle and coming out of a distance, then in the meantime time, the motorcycle will proceed sufficient distance ahead, by the time, the assailants stopped the vehicle and attacked. Since the speed of the vehicle was much higher then the speed of a person, who were coming out from the hut to catch the vehicle and if the deceased could see any danger or attack by the assailants, then there was a sufficient time to run away with the motorcycle and it is not the case of the prosecution, that the assailants were already standing on the road, where the incident took place. He also argued that PW-2 could easily count the number of assailants first, being 5 in number and thereafter stated that a total 7 persons (in number) came out to catch and assault the deceased, which shows that the motorcycle was not running, but would have been either kept standing or parked, but it is not the case of the prosecution that the motorcycle was either standing or parked at the place of occurrence. Almost, all the witnesses of fact have stated that the motorcycle was stopped by them, therefore, the factual gap between the number of persons being counted and coming out from the hut and chasing the motorcycle would show that, there was no likelihood of any danger or attack by the assailants. The persons sitting on the motorcycle would have run away from the spot.

39. Learned counsel for the accused-appellants further submitted that PW-2 during her cross examination has corroborated that the deceased and her mother have purchased clothes, jewellery and vegetables from the market, but neither the clothes, jewellery, vegetables nor anything was recovered from the place of the incident by the Investigating Officer and no purchase of article was ever produced during the course of trial. Learned counsel for the appellants has further submitted that, it has also been acknowledged during the course of trial, that many people gathered at the place of incident, but none of independent witness was examined during the investigation or thereafter in the trial. He further submitted that the deceased's wife and daughter are the interested witnesses and in the absence of any independent witness in a case, where an incident took place and many people gathered, but none of them had dared to come forward to corroborate the manner in which the incident took place and therefore, the manner in which the incident has happened is missing from the point of view of an independent corroboration. He further submitted that PW-2 was not aware, as to when and at which police station the report was lodged. He next argued that if the person, who came from Rudrapur and received the goods those were purchased from the market on that day, but none of those persons were made as a witness, even to explain that a particular person received the goods, those were purchased from the market by the deceased and his family. Learned counsel for the appellants submitted that PW-2 further stated that she knew the villagers, who gathered at the place of incident, but surprisingly none of them were made a witness to support the case of prosecution.

40. Learned counsel for the appellants further submitted that as far as medical report is concerned, which was prepared by PW-4 Dr. J.P. Singh, nowhere in the said report, it has been mentioned that any head injury was found on the body of the deceased. He further submits that, so far as the postmortem report is concerned, which was conducted by the PW-5-Dr. Mahesh Kumar, some blood clots were found, in brain and on opening the head, the doctor opined that the cause of death was due to injuries on his body before death and PW-5 further stated that so far as injuries No. 2 and 4 are concerned these were not fatal in nature and as per injury no. 3, PW-5 did not found any skull bone fracture on the dead body of the deceased. Only soft swelling was found in the brain membrane.

41. Learned counsel for the appellants submitted that the accused-appellants have not committed any offence. They are absolutely innocent and have been falsely implicated in the present case. Learned counsel further submits that no such incident has ever happened, as stated by the prosecution side and the prosecution has also failed to prove its case. It was stated in the first information report that, at the time of incident Smt. Krishna Devi, the wife and Suman Devi the daughter of the deceased, who were examined as PW-1 and PW-2 were accompanied with the deceased, but not even a single injury has been sustained either by the PW-1 or PW-2 in the incident, which is very strange. Learned counsel further submits that as per prosecution case, several people gathered at the place of incident, but surprisingly not even a single person was produced by the prosecution before the trial court to record their testimony as independent witness. There is no independent public witness of the incident. Both the eye witnesses namely, Krishna Devi and Suman Devi are the wife and the daughter of the deceased. They are the interested and partisan witnesses, hence their testimony is wholly untrustworthy and unreliable. The place of occurrence, which is mentioned in the site plan, and the labourers, who were doing agricultural work in the fields have not been made as eye witness. The motorcycle, which is said to be driven by the deceased was not shown in the site plan hence, creates a suspicion. The deceased has not received any injury on the vital part of the body. The injuries shown in the postmortem report are suspected one. Learned counsel further submits that all the accused persons are the family members and they have falsely been nominated as accused and on the basis of evidence adduced by the prosecution, no offence against the accused-appellants is made out. In support of his contention learned counsel for the accused-appellants has placed reliance upon the judgment passed in the cases of Vijendra Singh and another vs. State of U.P., 2018(102) ACC 411, Jasbir vs. State of U.P. 2018(103) ACC 489, Nandu and others vs. State of U.P. 2018(103) ACC 739, Lalchand Dixit and others vs. State of U.P. 2017(99) ACC 691, Krishna Gowda and others vs. State of Karnataka 2009(64) ACC 302, State of Haryana vs. Krishna 2006(56) ACC 219, V.N. Rathees vs. State of Kerala 1997(35) ACC 841.

42. On the other hand Sri Jitendra Kumar Jaiswal, learned AGA for the State and Sri Rajeev Kumar Singh, learned counsel for the first informant have submitted that from a bare perusal of the testimony of PW-1, PW-2 and PW-3, it is fully established that the assailants assaulted the deceased, while he was returning from the market along with his wife and daughter. The testimony of PW-1 reveals that while the deceased, PW-1 and PW-2 were returning from the market, they were apprehended by the assailants, who were hiding in the hut owned by one miyan nearby the road and as soon as the motorcycle came at the place of incident, the accused started assaulting the deceased. It has further submitted that all the 5 persons, who were hiding in a hut came out and surrounded the vehicle and started assaulting the deceased with lathi, danda, and sharp edged weapons and as a consequence of beating and assaulting, the deceased had sustained grievous injuries and he was taken to nearby Health Clinic and thereafter was taken to the Rudrapur Government Hospital and finally taken to Government Hospital, Gorakhpur, where he succumbed to the injuries. He further submitted that there was some rivalry between the deceased and assailants over a Shisham tree, which was situated at ridge/boundary of fields owned by the deceased and the assailants, side by side respectively. He also submitted that, it is not necessary that no other persons, who had arrived at the place of incident were ready to depose and become witness of the incident voluntarily because, no one was compelled to become the witness, as the number of witnesses are not important in the case crime, however, quality of deposition is more valuable piece of evidence, who throws light on each and every aspect of incident, which had taken place at the relevant time, between the parties. Hence, mother and daughter those were present and accompanied with the deceased on the motorcycle have very carefully and cogently deposed the entire incident, showing the involvement of assailants-accused persons and as per the series of events, evidence on record and testimony of witnesses the case of murder is fully established, which ought to have been considered and tried by the Trial Court, under section 302 of IPC, and not under section 304 of IPC, even if, presuming, but not admitting that the ingredients of sections 304/149 of IPC are attracted the same shall not fall within the category of section 304 Part-II of IPC, but certainly be covered within the ingredients of section 304 Part-I of IPC.

43. Having considered the rival contentions, on behalf of the learned counsel for the appellants and the State, though there are minor contradictions in the statements of the witnesses, as recorded during the course of trial, but these contradictions are not of such nature, that the case of prosecution would fail completely, but support the case of prosecution in entirety. The witnesses have by and large stated that accused persons have stopped the vehicle of the deceased, who was riding alongwith his wife and daughter, but the witnesses got misplaced in bringing a coherent, unequivocal and concrete facts and events leading to the incident, however maintained the happening of the incident at the hands of accused persons and the testimony of the witnesses is not of such nature, which is likely to defeat the case of the prosecution, simply because the testimony of the witnesses has been recorded after the lapse of quiet some time from the date of happening of the incident, hence the appellants have not made out foolproof case for acquittal of themselves. However, in given facts and circumstances of the case, the conviction, which has been rendered under section 304 Part II I.P.C. is liable to be upheld, as per available record, evidence and testimony of the witnesses.

Order on Criminal Appeal U/s. 372 Cr.P.C. No. - 680 of 2022

44. Heard Sri Sharad Kumar, learned counsel for the surviving accused-appellants, Sri Jitendra Kumar Jaiswal, learned AGA for the State and Sri Rajeev Kumar Singh, learned counsel for the first informant and perused the record.

45. As a matter of fact and record Criminal Appeal No. 4922 of 2018 has been filed on behalf of the accused-appellants challenging the judgment and order dated 18.08.2018 passed by learned Additional Sessions Judge, IV/Special Judge, E.C. Act, Deoria in Sessions Trial No. 286 of 2014 (State Vs. Dayanand and Others), arising out of Case Crime No. 1154 of 2014, under Sections 147, 148, 323/149, 342, 304/149, 504, 506 of IPC, Police Station Rudrapur, District Deoria.

46. On the other hand, complainant/informant of the case has also filed Criminal Appeal No. 680 of 2022, challenging the judgment and order dated 18.08.2018 passed by learned Additional Sessions Judge, IV/Special Judge, E.C. Act, Deoria in Sessions Trial No. 286 of 2014 on the ground that the sentence awarded to the assailants is not commensurate with the gravity of the offence and as much as her husband had died, as a consequence of assault and beating at the hands of the assailants, which is a clear case of murder and not a mere incident.

47. Learned counsel for the appellants/informant by and large adopted the same arguments those of appeal No. 4922 of 2018, as argued by the prosecution, but with rider of enhancement of the sentence being covered under section 302 IPC, as the ingredients of section 302 IPC are fully made out in the given facts and circumstances of the case and has submitted that the case of prosecution is intact and from bare perusal of the testimony of PW-1, PW-2 and PW-3, it is fully established that the assailants assaulted the deceased, while he was returning from the market along with his wife and daughter. The testimony of PW-1 reveals that, while the deceased, PW-1 and PW-2 were returning from the market, they were apprehended by the assailants, who were hiding in the hut owned by one miyan nearby the road and as soon as the motorcycle came at the place of incident, all the 5 persons, who were hiding in a hut came out and surrounded the vehicle and started assaulting the deceased with lathi, danda, and sharp edged weapons and as a consequence of beating and assaulting, the deceased had sustained grievous injuries and he was taken to nearby Health Clinic and thereafter was taken to the Rudrapur Government Hospital and finally taken to Government Hospital, Gorakhpur, where he succumbed to the injuries. He further submitted that there was some rivalry between the deceased and assailants over a Shisham tree, which was situated at ridge/boundary of fields owned by the deceased and the assailants. He also submitted that it is not necessary that no other persons, who had arrived at the place of incident was ready to depose and become witness of the incident voluntarily, and therefore, no one was compelled to become the witness, as the number of witnesses are not important in the case crime, whereas, quality of deposition is more valuable piece of evidence, who throws light on each and every aspect of incident, which had taken place at a particular time and place between the parties. Hence, mother and daughter, who were present and accompanied with the deceased on the motorcycle have very carefully and cogently deposed the entire incident, showing the involvement of assailants-accused persons and as per the series of events, evidence on record and testimony of witnesses, the case of murder is fully established, which ought to have been considered and tried under section 302 of IPC, and certainly be covered within the ingredients of section 302 of IPC. Learned counsel for the appellants/informant submitted that the learned trial court has undermined the quantum of sentence, in as much as, the accused persons ought to have been awarded the sentence under section 302 IPC and thus an illegality has been committed by the learned trial court to that extent and the sentence of the accused persons is liable to be enhanced and to be awarded under section 302 IPC, though wrongly awarded under section 304 IPC.

48. Learned counsel for the accused-appellants has relied upon the judgement of Honble Supreme Court in the case of Devendra Kumar and others vs. State of Chhattisgarh [2024] 11 S.C.R. 523 : 2024 INSC 841. He also relied upon the judgment of Honble Apex Court in the case of Sankath Prasad vs. State of Uttar Pradesh (2020 12 SCC 564, in which the Honble Supreme Court has held that the incident was caused at the spur of moment and it was a fallout of an altercation, the charge under Section 302 I.P.C. was converted to that under Section 304 Part I, I.P.C. Though the facts of the present case are not quite similar to the facts of the cited law. However, the law laid down on the subject is helpful to the accused-appellants which suggests, that there was some dispute over Shisham tree between the accused persons and the deceased, that became a cause of assault and injury caused to deceased, but not with the intention to kill the deceased and there is no material on record to show that, there was any premeditation of mind and therefore, taking into consideration all these aspects, the possibility of offence being committed by the appellant without premeditation, in a manner which did not support it fully, cannot be ruled out, thus the accused-appellants. Hence, conviction made under Section 304 Part II IPC is upheld. However, the quantum of sentence has to be looked into in the given facts and circumstances of the case.

49. It has also been came to the notice of this Court that one of the appellant-Prayag Yadav in Criminal Appeal No. 4922 of 2018 has died on 10.05.2023, as per information received on record, according to his death certificate. Hence, the appellant No. 3-Prayag Yadav has already expired, the Criminal Appeal No. 4922 of 2018 in respect of appellant No. 3-Prayag Yadv is dismissed as having been abated.

50. Having regard to the contentions raised on behalf of the parties, the Court has come to the conclusion that the Appeal No. 680 of 2022 filed by the informant is devoid of merits, as also discussed in Appeal No. 4922 of 2018 and in entirety of the arguments raised in both the appeals. Hence the Criminal Appeal No. 680 of 2022 is liable to be dismissed. No case is made out to convict the accused under Section 302 IPC. Hence dismissed accordingly.

51. Now coming to the question of modification of sentence of the accused-appellants learned counsel for the appellants has submitted that about 11 months have already gone from the date of incident and from the evidence on record it is not clearly established whether the victim died on account of accident or as a result of injuries inflicted by the accused-appellants persons. Learned counsel for the appellants has also relied upon the judgments of Honble Apex Court in the cases of Dattatraya Vs. The State of Maharashtra reported in AIROnline 2024 SC 196, Shahid Ali Vs. The State of Uttar Pradesh reported in AIROnline 2024 SC 129, Kariman Vs. The State of Chhattisgarh reported in AIROnline 2024 SC 422, Devendra Singh Vs. The State of Uttar Pradesh reported in AIROnline 2024 SC 598 and Hussainbhai Asgarali Lokhandwala Vs. The State of Gujarat reported in AIROnline 2024 SC 525 wherein accused persons have been released for a period which they have been undergone incarceration and the conviction has been altered from Section 302 IPC to Section 304 Part II IPC. He further submitted that appellants are old age persons and pleaded that their sentence to be reduced to the period which they have already undergone behind the bars. The appellants have already undergone a sentence of more than 11 months and 12 days. We find that the said sentence would sub serve the ends of justice. Therefore, the appellants are sentenced to the period already undergone.

52. The appeal stands partly allowed. The judgment and order of the trial court on conviction is upheld and sentencing the appellant is modified. Hence, all the appellants (other than Prayag Yadav) are sentenced to the period already undergone by each of them, however, imposed fine is enhanced to Rs. 50,000/- each, which shall be paid by the appellants to the victim within one month from their release.

53. The appellants be released forthwith, if not wanted in any other case. Bail bonds of the appellants are cancelled and sureties discharged. The appellants are directed to furnish bail bonds U/s. 437-A Cr.P.C. within a week from their release.

54. Let a copy of this judgment and order be sent to the court concerned alongwith the trial court record within a week for compliance. The compliance report shall be sent by the court concerned to this Court within a further period of fifteen days.

(Justice Harvir Singh)      (Justice Rajiv Gupta) 
 

 
August 29, 2025
 
Vikram