& Anr Vs. State of U.P  INSC 677 (14 November 1995)
M.K. (J) Mukherjee M.K. (J) Paripoornan, K.S.(J) M.K. Mukherjee. J.
1995 SCALE (6)368
seven appellants in these appeals and one Mahadev Prasad Pandey were placed on
trial before the learned Additional Sossions Judge, Mathura. Against the appellants common
charges under Sections 120-B. 148, 302/149. and 454 I.P.C. and against Mahadev
Prasad Pandey charges under Sections 302/109 and 307/109 IPC were framed. A
separate charge under Section 302 IPC was also framed against the appellant Anokhey
Lal. On conclusion of the trial the learned Judge. while acouitting Mahadev
Prasad, convicted all the appellants under Sections 148 and 324/149 IPC and
further convicted Anokhey Lal under Section 302 IPC. For each of their
convictions the appellants were sentenced to suffer rigorous imprisonment for
two years and Anokhey Lal was sentenced to imprisonment for life for his
conviction under Section 302 IPC. The sentences were directed to run
concurrently. Against the above judgment two appeals were filed; one by the
appellants assailing their convictions and the other by the State against their
acquittal of the other charges. The High Court dismissed both the appeals and
affirmed the judgment of the High Court. Hence these appeals.
to the prosecution case on March 27, 1975
at or about 6.30 A.M. the appellants. armed with deadly
weapons, raided the house of Gopal and appellant Anokhey Lal thrust a spear on
the chest of Makhan, brother of Gopal, felling him down. On hearing the hue and
cry raised by Makhan, Ram Dayal, Gopal and Ram Krishan came there and they were
also attacked by the appellants by their respective weapons. Finding no other
alternative. when Gopal started thowing brick-bats towards the appellants and
Ram Dayal and Ram Krishan started beating them with small dandas they fled
who was seriously injured, was taken to police station along with the other
injured by Giriraj. his elder brother. and there he (Giriraj) gave a written
report of the incident, on the basis of which a case was registered against the
appellants. Since the condition of Makhan was grave he was immediately sent to Mathura Hospital while the other injured were sent to local Government
however, did not respond to the medical treatment given to him at the hospital
and succumbed to his injuries within an hour.
appellants pleaded not guilty to the charges levelled against them and took up
the plea of right of private defence of their persons.
prove its case the prosecution examined a host of witnesses of whom Giriraj
(P.W.1). Ram Krishan (P.W.2), Rameshwar Prasad (P.W.3), Puran Devi (P.W.4) and
Ram Dayal (P.W.5) gave the ocular version of the incident. The appellants also
examined a number of witnesses in support of their defence.
consideration of evidence adduced during trial the trial Court accepted the
case of the prosecution in preference to that of the defence and held the
appellants guilty. The High Court also in its turn. reappraised the evidence
and upheld the order of the trial Court.
heard the learned counsel appearing for the parties and considered the
judgments of the learned Courts below in the light of the evidence adduced
during trial we do not find any reason whatsoever to disturb the concurrent
findings of fact recorded by them, more so, as they are based on detailed and
proper discussion of the entire evidence and supported by cogent reasons.
was, however, strongly urged on behalf of the appellants that even if the
entire prosecution case was accepted as true Anokhey Lal could only be, in view
of fact that Makhan sustained only one injury, guilty of an offence under
Section 304 (Part II) IPC and not under Section 302 IPC.
already noticed the prosecution case was that the appellant Anokhey lal had
thrust a spear on the chest of Makhan. Dr. Jagdish Lal (P.W. 13) who held
post-mortem examination on the dead body of Makhan found the following injury
on his person:
would 1 1/2" x 1/2" x chest cavity deep of linear nature near the
sternum bone on the front side below the chest." He further stated that on
internal examination he found the pericardium damaged and one ounce of blood
to P.W.13 the injury was sufficient in the ordinary course of nature to cause
death of Makhan and that the same could be caused by a spear.
considered in the context of the proved facts that the appellants had gone
armed with deadly weapons, to attack the members of Gopal's family and after
trespassing into the house Anokhey Lal caused a penetrating injury on a vital
part of the body of Makhan with a spear which was sufficient in the ordinary
course of nature to cause death, the conclusion is inevitable that the offence
committed by Anokhey Lal comes within clause III of Section 300 IPC so as to
make Anokhey Lal liable for conviction under Section 302 IPC. As regards the
other six appellants, whose convictions are to be upheld, we do not feel
inclined to send them behind the bars again as more than twenty years have elapsd
since the offences were committed by them and each of them has served a
substantial part of their sentence of two years rigorous imprisonment.
the foregoing discussion we uphold the convictions and sentence recorded
against the appellant Anokhey lal and the convictions of the other six
appellants put we reduce their sentence to the period already undergone. As all
the appellants are on bail. Anokhey Lal will now surrender to his bail bond to
serve out the sentence imposed upon him, while the other six appellants will
stand discharged from their respective bail bonds. The appeals are thus
the appeals have been disposed of Special Leave Petition filed by the
complainant and the other injured and the Crl. M.P. No. 2949 of 1994 filed in
connection therewith are dismissed.