& Ors Vs. State of Uttar Pradesh  INSC 626 (29 July 1997)
MUKHERJEE, S. SAGHIR AHMAD
persons, namely, Mohan Yadav were, Chhotkun Yadav, Muneshwar Yadav and Kantoo Yadav
were arraigned before the Sessions Judge, Azamgarh for rioting, murder and
other allied offences. The trial ended in conviction of all of them under
Sections 302/149 IPC, 307/149 IPC and 323/149 IPC. In addition, Mohan was
convicted under Section 148 IPC and the other four Section 148 IPC and the
other four Section 147 IPC. For the convictions so recorded, they were
sentenced to different terms of imprisonment, including life, with a direction
that the sentences would run concurrently. As the appeal preferred by them in
the High Court was dismissed, they filed the instant appeal after obtaining
special leave. During the pendency of the appeal, two of them, namely Tapsi and
Chhotkun died and hence, the appeal so for as they are concerned abate.
prosecution case briefly stated is as under :
The chak belonging to Kumar (P.W.3), father of Bandhoo (the deceased) and Chhotai
(P.W.4), is just in front of the house of Tapsi. For sometime past Tapsi was
trying to acquire that chak and he had even asked Kumar to sell it to him.
Kumar, however, did not agree to such proposal. Over that issue there was a
long standing dispute between them.
there were other disputes between kumar and his sons on the one hand and
accused persons on the other.
In the morning of October
13,1977, when the
deceased went to plough the chak with bullocks, Tapsi and the other accused
resisted him and tried to beat him up.
his bullock and plough in the chak, Bandhoo then ran towards his house. The
five accused persons then chased Bandhoo armed with various weapons. While
Mohan had a country-made piston with him, Tapsi and Chhotkun had ballams
(spears), Kantoo a burcha and Muneshwar a lathi. When Bandhoo reached the sehan
(courtyard) of his house, Mohan fired at him with his country-made pistol. The
shot, however, did not hit Bandhoo. Thereafter, Tapsi and chhotkun beat Bandhoo
with their respective weapons. When Kumar and Chhotai rushed there to save Bandhoo,
Muneshwar hit Kumar with the lathi and Kantoo hit Chhotai, with his burcha.
all the five accused persons ran away. Bandhoo was then taken to the district
hospital where he succumbed to his injuries in the same evening.
written report of the incident was given to the police station by kumar on the
same day at 9.30 A.M. and on that information a case was
registered against the five accused persons. Both Kumar and Chhotai were
medically examined at the District Hospital, Azamgarh for the injuries they had
Sub-Inspector Bhagirathi Singh (PW-7) took up investigation of the case and
went to the spot. He prepared a site plan and seized some blood stained earth
completion of investigation, he submitted charge-sheet against the
above-mentioned five accused persons.
accused persons pleaded not guilty to the charges leveled against them and
their defence was that Kumar met with his death in a dacoity that was committed
in his house by some unknown persons. In support of its case, the prosecution
examined ten witnesses, of whom Kumar and Chhotai figured as eye witnesses. No
witness was however examined on behalf of the defence. The Trial Court found
the evidence of the above two witnesses reliable and as, according to it, their
evidence stood corroborated by the evidence of Jhingur (PW-6), who claimed to
have seen the accused persons running away immediately after the incident the
medical evidence and the FIR that was lodged with utmost dispatch, it convicted
the five accused persons in the manner as stated earlier. The High Court
concurred with each of the findings of the Trial Court concurred with each of
the findings of the Trail
Court in dismissing
the appeal preferred by the five convicts.
Since the concurrent findings of fact arrived at by the learned courts below
are based on proper discussion of the evidence and since convincing reasons
have been given for relying upon the same, we do not find any justifiable
ground to disturb the same. However, having regard to the manner in which the
incident took place, it is difficult for us to conclusively hold that the
accused persons had the common object of committing he murder of Bandoo. It
appears to us, on going through the entire record that they (the accused
persons) wanted to teach Kumar and his sons a lesson for not selling the chak
to them and not to kill them. It is, of course, true that according to the
prosecution, accused Mohan fired a shot from a country-made pistol but there is
no satisfactory evidence to conclusively prove that it was aimed at Bandhoo. If
the common object of the unlawful assembly of which he (Mohan) was a member was
to commit the murder nothing prevented him form firing further shots to achieve
that object. In arriving at the above conclusion as regards the common object
of the unlawful assembly, we have also drawn inspiration from the fact that
except the puncture a wound on the left side of the chest of Bandhoo which was
caused by Tapsi and which resulted in his death, the other three injuries which
were found on his person, were simple injuries inflicted on non-vital parts of
the body, namely, right thigh, left arm and right arm. Similar is the injuries
that were found on the person of Chhotai.
Kumar. Considering all these aspects of the matter, we hold that the common
object of the unlawful assembly was to cause grievous hurt and not to commit
murder; l and the injury that was inflicted by Tapsi to cause the death of Bandhoo
was his individual act for which he would have been liable for conviction under
section 302 IPC (Simpliciter).
the foregoing discussion we alter the convictions of the three surviving
accused-appellants, namely, Mohan, Muneshwar and Kantoo under Sections 302/149
IPC and 307/149 IPC to Section 326/149 IPC (two counts) but maintain their
conviction under Section 323/149 IPC. We also maintain the conviction of Mohan
under Section 148 IPC and that of Kantoo and Muneshwar under Section 147 IPC.
Coming now to the sentence, we find that the appellants have already served
five years of rigorous imprisonment.
the fact that since the offences were committed almost twenty years have
elapsed, we reduce the sentence of Mohan, Muneshwar and Kantoo for their
altered convictions under Section 326/149 IPC to the period already undergone.
they have already served out the sentences imposed for their other convictions,
we direct that they be released forthwith unless wanted in connection with any
appeal is thus disposed of.