Allahabad High Court
Raj Narain And Others vs State Of U.P. on 20 April, 2026
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 666 of 1986
1. Raj Narain (died)
2. Kamlesh
3. Rajendra Prasad .....Appellant(s)
Versus
State of U.P. .....Respondent(s)
Counsel for Appellant (s)
:
K.P. Tripathi, M.B. Singh, O.P. Singh, R B S Rathore, Rajendra Prasad Mishra, Rishad Murtaza
Counsel for Respondent(s)
:
Govt. Advocate
Court No. -10
Reserved on 22.01.2026
Delivered on 20.04.2026
A.F.R.
HON'BLE RAJNISH KUMAR, J.
HON’BLE ZAFEER AHMAD, J.
(Per : Rajnish Kumar, J.)
(1) The instant criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (here-in-after referred to as Cr.P.C.) has been filed by the convicts/appellants, Raj Narain, Kamlesh and Rajendra Prasad, assailing the judgment and order dated 03.10.1986 passed by learned Sessions Judge, Pratapgarh in Sessions Trial No. 52 of 1985; State Versus Raj Narain and two others, emanating from Case Crime No. 141 of 1984, under Sections 302 and 504 of the Indian Penal Code, 1860 (here-in-after referred to as I.P.C.), Police Station Baghrai, District Pratapgarh, by means of which the appellant No.1, Raj Narain (died) has been convicted under Section 302 I.P.C. and the appellant No.2, Kamlesh and the appellant No.3, Rajendra Prasad have been convicted under Section 302 I.P.C. read with Section 34 I.P.C. and they have been sentenced with life imprisonment.
FACTS
(2) The prosecution case, in brief, is that on 09.06.1984, the complainant, Santosh Kumar Pandey, had submitted a written report (Ext. Ka.1) at police station Baghrai, district Pratapgarh, stating therein that on 09.06.1984, at 08:00 in the morning, watering the field from the drain of orchard of Satya Narain Dwivedi located on west of the house and looking after the water with a spade (फावड़ा), his uncle, Raj Narain Pandey son of Bechu Ram Pandey armed with single barrel gun and one box cartridge and Kamlesh Kumar Pandey son of Raj Narain Pandey armed with lathi and Rajendra Prasad Pandey son of Sarda Prasad Pandey armed with spade (QkoMk) and lathi came and cut their water course and diverted it towards their field. His father, Sri Jagat Narain Pandey son of late Bechu Ram Pandey prevented them from taking away the water, upon which Kamlesh Kumar Pandey and Rajendra Prasad Pandey exhorted that vkt lkys dks tku ls ekj Mkyks ns[k ysxsa (Today, bastard be killed, they would saw them). On their exhortation, Raj Narain Pandey fired from his gun at his father, which stuck his father on the right side of his chest and his father fell down there and died. During this quarrel, he and his brother-in-law Shri Shiv Prakash Mishra son of Shri Sitla Prasad Mishra resident of Chetaoo-Ka-Poora (Post Kasinpur) police station Holagarh, Allahabad and Kailash Narain Dwivedi son of Shri Badri Prasad Dwivedi, resident of Dubepur, Post Sakardaha ran and reached the spot. By that time, accused Raj Narain Pandey after firing shot, all the three persons fled towards north. On hue and cry, villagers came there but as the accused persons had gun, no one chased them on account of fear. The dead body of his father is lying at the place of occurrence. He gave information and requested that necessary legal action be taken.
(3) On the basis of the aforesaid written report (Ext. Ka.1), check F.I.R., bearing Case Crime No. 141 of 1984, under Sections 302 and 504 I.P.C. was prepared and registered on 09.06.1984 at 12:10 P.M. at Police Station Baghrai, District Pratapgarh, by Head Moharrir Rameshwar (P.W.5) against accused Raj Narain, Kamlesh Kumar and Rajendra Prasad, in the presence of S.I. Syed Maqsood Ahmad (P.W.6), who, after taking up the investigation, copying F.I.R., G.D., recording the statement of complainant at the police station, reached the place of occurrence, where he prepared the inquest report of the body of the deceased Jagat Narain Pandey, photo nash, challan lash, letter to Chief Medical Officer, sample of seal, Thereafter, he sealed the dead body of the deceased and sent it to District Hospital, Pratapgarh through Constable Kaji Mohd. Layak and Kamleshwar Chowidar for post-mortem. He recovered blood stained soil and plain soil from the place of occurrence in separate containers and prepared the recovery memo. He also recovered one live cartridge and spade (QkoMk) from the spot and prepared the recovery memos. He also prepared site plan.
(4) The postmortem of the dead body of the deceased Jagat Narain Pandey was conducted by Dr. R.B. Pandey (P.W.3) on 10.06.1984 at 12:30 P.M. The doctor found the age of the deceased about 35 years and probable time of death was about 28 hours; the deceased was of strong built; both eyes were closed and rigor mortis passed on in upper limbs but present in the lower limbs. He found following ante-mortem injuries on the body of the deceased Jagat Narain Pandey:-
1. Fire arm injury 1 x 1 x cavity deep on the Rt. side of chest 1 above from Rt. nipple at 1 Oclock position. Margins inverted, charring present. Wound of entry.
2. Fire arm injury x x cavity deep on right side of the chest. 1 from Rt. nipple at 3.30 Oclock position. Charring present.
On internal examination, Dr. R.B. Pandey found five big pallets and one piece of wad from the body of the deceased; 3rd, 4th and 5th ribs of right side were found fractured; right lung was ruptured and cavity containing two litres of blood; 250 C.C. semi-digested food was also found.
As per the opinion of Dr. R.B. Pandey, the cause of death was due to shock and haemorrhage due to inflicted fire arm injury.
(5) The Investigating Officer, Syed Maqsood Ahmad (P.W.6), after taking the statements of the witnesses and after completion of due investigation, submitted the charge-sheet against the accused persons, Raj Narain, Kamlesh Kumar and Rajendra Prasad, under Sections 302 and 504 I.P.C. on 19.06.1984.
(6) The Chief Judicial Magistrate, Pratapgarh, took the cognizance on the charge-sheet on 28.06.1984 and after making compliance of Section 207 Cr.P.C., committed the case to the Court of Sessions by means of order dated 08.05.1985, where the case was registered as Sessions Trial No. 52 of 1985 and on 18.07.1985, accused Kamlesh Kumar Pandey and Rajendra Prasad Pandey were charged for the offence punishable under Section 302 read with Section 34 I.P.C., whereas accused Raj Narain Pandey was charged under Section 302 I.P.C. Accused persons pleaded not guilty and claimed to be tried.
(7) In support of its case, the prosecution examined the following six witnesses :-
P.W.1-Santosh Kumar Pandey
Complainant /son of deceased/eye witness
P.W.2-Shiv Prakash Misra
Son-in-law of deceased/ brother-in-law of complainant/ eye witness
P.W.3-Dr. R.B. Pandey
Conducted the autopsy on the dead body of the deceased and prepared the post-mortem report
P.W.4-Kailash Narain
Independent eye-witness/ Hostile
P.W.5-Rameshwar (Constable)
Prepared check F.I.R. and G.D. on the basis of written report submitted by the complainant
P.W.6-Syed Maqsood Ahmad
Investigating Officer
P.W.7-Kamleshwar Chowkidar
Filed affidavit that he carried the dead body to District Hospital Pratapgarh
(8) Learned Counsel appearing on behalf of the accused persons made an endorsement on the affidavit of P.W.7 that no cross-examination is to be done.
(9) The prosecution has produced and proved the following material exhibits :-
Ext.1
Plain soil; proved by P.W.6
Ext.2
Blood stained soil; proved by P.W.6
Ext.3
Cartridge; proved by P.W.6
Ext.4
Spade; proved by P.W.6
Ext.5
Pellets and wads; proved by P.W.6
Ext.6
Ring, a set of artificial teeth (denture), Janeu, Kanthi, two Rudraksh, Munga; proved by P.W.6
(10) The prosecution has also produced and proved the following documentary evidence :-
Ext. Ka.1
Written Report
Ext. Ka.2
Post-mortem Report
Ext. Ka.3
Chik F.I.R.
Ext. Ka.4
Copy of G.D. No. 19
Ext. Ka.5
Inquest Report
Ext. Ka. 6
Photo Nash
Ext. Ka. 7
Challan Nash
Ext. Ka.8
Letter to Chief Medical Officer
Ext. Ka.9
Sample of Seal
Ext. Ka.10
Site plan
Ext. Ka.11
Recovery Memo of plain soil
Ext. Ka. 12
Recovery Memo of blood stained soil
Ext. Ka. 13
Recovery Memo of one
live cartridge 12 bore
Ext. Ka. 14
Recovery Memo of one spade
Ext. Ka. 15
Charge-sheet
Ext. Ka.16
Application dated 22.11.1985 written by the complainant to Tehsildar, Kunda, requesting to give the details of the name of the persons who irrigated Plot No. 2023 in 1390 F and 1391 F (Rabi).
Ext. Ka.17
The report of the Tehsildar, Kunda on the aforesaid application dated 22.11.1985, indicating that in Rabi 1390 F and 1391 F (as a whole), Plot No. 2023 was irrigated by accused Raj Narain son of Bechu Ram.
Ext. Ka.18
Signature of the Tehsildar
Ext. Ka.19
Certified copy of Will executed by one Smt. Mahdei widow of Mata Bheekh Misra, resident of Dubepur dated 02.09.1981
Ext. Ka. 20
C.H. Form No. 23
(11) After completion of the oral evidence, the statements of the accused/appellants under Section 313 of Cr.P.C. were recorded, in which they stated that they were innocent and have been falsely implicated on account of enmity.
Accused Raj Narain had also stated that he has no field at the place of occurrence. In connection with the murder of the son of Babu Lal, namely, Guruddin, help was sought, which was not made, on account of which he has been falsely implicated. He further stated that neither he had a licence of gun nor had a gun nor has a gun. The character of Jagat Narain was bad. Some unknown person killed him at night and they have falsely been implicated.
Accused Kamlesh Kumar Pandey had also stated that in the case of murder of the son of Babu Lal, namely, Guruddin, help and money were sought, which were not made, on account of which he has falsely been implicated. He also stated that there is no field at the place of occurrence. The character of Jagat Narain was bad. Some unknown person killed him at night and when they went for call of nature in the morning, Jagat Narain Pandey fell down and on raising alarm by the persons, they have falsely been implicated.
Accused Rajendra Prasad Pandey had also stated that he has a relation with Babu Lal and in the matter of murder of his son Guruddin, he was frequently doing pairvi, which was objected by Santosh Pandey but he was doing pairvi, on account of which, he has falsely been implicated.
(12) The defense has examined Prayag Dutt, Lekhpal as D.W.1 and also produced following defense exhibits :-
Ext. Kha.1
Application of Kailash Narain
Ext. Kha. 2
Affidavit of Kailash Narain
Ext. Kha. 3
Vakalatnama
Ext. Kha. 4
Affidavit of Purshottam Prasad filed in High Court
(13) The learned Trial Court, after hearing learned Counsel for the parties, by means of impugned judgment and order dated 03.10.1986, convicted the accused/ appellant Raj Narain for the offence under Section 302 I.P.C. simpliciter and accused Kamlesh Kumar and Rajendra Prasad under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced them to undergo life imprisonment.
(14) Being aggrieved, the accused/appellants have come up before this Court with the present appeal.
(15) It is pertinent to mention that during pendency of the instant appeal, convict/appellant no.1-Raj Narain died and as such, the instant appeal filed on his behalf stood abated by means of order dated 18.11.2023. Hence the instant appeal survives only on behalf of convict/appellant no.2-Kamlesh and convict/ appellant No. 3-Rajendra Prasad.
ARGUMENTS
(16) Heard, Shri R.B.S. Rathore, learned Counsel for the appellant no.2, Shri Rajendra Prasad Mishra, learned Counsel for the appellant no.3 and Shri Umesh Verma, learned A.G.A. for the State.
(17) Learned Counsel appearing on behalf of the convict/appellant no.2 submitted that appellant No.2 has wrongly and illegally been convicted by means of the impugned judgment and order. He submitted that none has seen the occurrence and the investigation has also not been conducted in proper manner and the Investigating Officer had not made any effort to recover the gun used in the crime. Thus, he submitted that the investigation was tainted. Even otherwise, he submitted that the F.I.R. is ante-time because semi-digested food was found in the post- mortem report, therefore, the alleged occurrence could not have been of 08:00 in the morning and the deceased may have been murdered any time in the night but on account of enmity, the appellants have been implicated in the case and there is no F.S.L. report. He further submitted that there was only one gun fire as stated by the P.W.-1, whereas the doctor has given opinion that there may have been two fires. He further submitted that the appellant No.1 has been shown the main assailant but all ingredients of crime could not be proved and the evidence on record does not show that the alleged crime was committed by the common intention of all and there was no involvement of appellant No.2 in the crime, therefore, he could not have been convicted.
(18) On the basis of above, learned Counsel for the appellant no.2 submitted that the impugned judgment and order is not sustainable in the eyes of law and the same is liable to be set- aside and the appellant no.2 is liable to be acquitted. He relied upon Pandurang and others Vs. State of Hyderabad; AIR 1955 SC 216 (Vol. 42, C.N. 37) and Babu Alias Balasubramaniam and Another Vs. State of Tamil Nadu; (2013) 8 SCC 60.
(19) Sri Rajendra Prasad Mishra, learned counsel for the appellant No.3 submitted that the F.I.R. is ante-time because semi-digested food was found in the post mortem report and it is not possible that the deceased would have taken food at 06:00 in the morning. Even otherwise, he submitted that in the village, the food is not taken at such an early hour. He further submitted that it is not disputed that two injuries are not possible from one fire but the doctor has opined that the injuries may be of two fires and the fire has been said to have been made from 10 steps, whereas charring has been found, which is not possible from such a distance and is possible only in the case of firing from three to four feet, therefore, the medical report does not support the prosecution case. He further submitted that there was no meeting of mind between the appellants because they live separately, therefore, the conviction with the aid of Section 34 I.P.C. is not sustainable. He also submitted that admittedly there was no enmity between the parties, therefore, the question of murder of the deceased by the appellants does not arise. He also submitted that the P.W.-2 is a chance witness, therefore, unless his presence on the spot could have been proved by cogent evidence, his testimony is not reliable. He also submitted that there was no overt act of the appellant No.3 and it was a case of sudden fight, therefore, Section 34 I.P.C. will not apply. Thus, Counsel for the appellant no.3 submitted that since there was no prior meeting of mind, therefore, it can not be said that the crime has been committed with common intention of all and the appellant no.3 has been falsely implicated. Even otherwise, his submission is that it may have been a case of sudden fight, in case the Court comes to the conclusion that the appellant No.3 was involved in the occurrence. He also submitted that statement under Section 313 Cr.P.C. was recorded on proforma under old Cr.P.C., therefore, the trial itself vitiated and judgment passed in pursuance thereof is liable to be set aside. He relied on Parshuram Singh Vs. State of Bihar; AIR Online 2002 SC 189, State of Uttar Pradesh Vs. Farid Khan; 2004 AIR SCW 5746, Vaijayanti Vs. State of Maharashtra; AIR Online 2005 SC 29, Nagaraja Vs. State of Karnataka; AIR 2009 SC 1522, Anand Mohan Vs. State of Bihar; 2013 AIR SCW 2613, Garib Singh and others Vs. The State of Punjab; 1972 Cri. L.J. 1286, Jainul Haque Vs. State of Bihar; AIR 1974 SC 45 and Vijai @ Babban Vs. State of U.P.; Neutral Citation No. 2025:AHC:134249-DB (Criminal Appeal No. 2977 of 1984, decided on 08.08.2025).
(20) Per contra, Shri Umesh Verma, learned A.G.A. for the State submitted that impugned judgment and order has rightly been passed in accordance with law and there is no illegality or infirmity in the impugned order. He further submitted that the conviction of the appellant Nos.2 and 3 with the aid of Section 34 I.P.C. has rightly been made in accordance with law because the appellants had committed the crime with common intention and in furtherance thereof, which is apparent from the fact that they came together on the spot armed with weapons and deliberately cut water of the field of the deceased and diverted it towards their field and on being confronted, the appellant Nos.2 and 3 exhorted to kill the deceased and in pursuance thereof, the appellant No.1 killed the deceased by gun, which he was carrying and, thereafter, all ran away from the scene of occurrence. He further submitted that the intention remains locked in the mind of the accused persons and it can be perceived only with previous conduct, conduct at the time of incident and subsequent conduct and the aforesaid conduct of the appellants clearly indicates their common intention and the crime in furtherance thereof. He further submitted that though on the suggestion of the defence, the doctor has stated that two fires may be possible but no evidence in this regard has been adduced, therefore, the appellants are not entitled for any benefit of it. He further submitted that even in the statement under Section 313 Cr.P.C., nothing substantive could be disclosed or adduced in evidence. He further submitted that the defence had tried to create a doubt on the incident making question regarding illicit relation of the deceased, which has been specifically denied by the P.W.-1. He further submitted that it is a constant case of the prosecution that the appellant No.1 had come with a gun and a bandolier (belt of cartridges) but there is no cross-examination on the said point, therefore, non recovery of gun is not fatal to the case of prosecution. He further submitted that the prosecution case, as disclosed in the first information report, has been proved by the post mortem report also, which has been proved by the doctor and the evidence adduced during the trial, which is covered under the Clause 3 of Section 300 I.P.C. and proved by the evidence in accordance with Section 137 of the Indian Evidence Act, 1872 and nothing could be extracted contrary to the manner of assault proved by the prosecution, therefore, even if there may be any negligence in the investigation, it is of no benefit to the appellants. He also submitted that merely by recording statement on the proforma under old Cr.P.C., the trial cannot be said to be vitiated. Thus, learned A.G.A. submitted that the impugned judgment and order has rightly been passed in accordance with law and there is no illegality or error in it, which may call for any interference by this Court.
(21) He relied on Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another; 2000 SCC (Cri) 222, State of Madhya Pradesh Vs. Ramesh and Another; (2011) 2 SCC (Cri) 493, Shivaji Sahebrao Bobade and Another Vs. State of Maharashtra; AIR 1973 SC 2622, Aejaz Ahmad Sheikh Vs. State of U.P. and Another; 2025(3) JIC 840 (SC), Ramesh Singh Alias Photti Vs. State of A.P.; 2004 SCC (Cri) Supp 70, Patai @ Krishna Kumar Vs. State of U.P.; 2010(2) JIC 286 (SC) and Virendra Singh Vs. State of Madhya Pradesh; 2011 Cri. L.J. 952.
(22) We have considered the submissions of learned counsel for the parties and perused the records.
(23) The prosecution case, as emerged from the first information report, indicates that on 09.06.1984 at 08:00 in the morning, the father of the complainant was watering the field from drainage of orchard of Satya Narain Tiwari in the west of house and looking after the water with a spade, when his uncle Raj Narain Pandey armed with single barrel gun and a bandolier and Kamlesh Kumar Pandey having lathi and Rajendra Prasad having spade and lathi came on the spot and cut the water course and diverted it towards their field, which shows that the convicted appellants have come on the spot armed with weapons and cut the course of water to the field of the complainant and diverted it to their field and when his father Jagat Narain Pandey confronted them from taking away the water, the appellant No.2, Kamlesh Kumar Pandey and the appellant No.3, Rajendra Prasad exhorted आज साले को जान से मार डालो देख लेंगे and on their exhortation, Raj Narain Pandey fired from his gun at his father, which hit his father on the right side of his chest and he fell down and died. During this quarrel, the complainant, his brother-in-law, Shiv Prakash Mishra and Kailash Narain Dwivedi ran and reached on the spot but by that time, after firing shot, all the three persons fled away towards the north. In view of above, the conduct prior to the occurrence, at the time of occurrence and subsequent conduct of the appellants shows that they had come on spot armed with weapons and prepared to cut the course of water to the field of the complainant and to divert it to their field and on being confronted, the appellant Nos.2 and 3 exhorted to kill, on which, the appellant No.1 killed, thereafter, when the complainant and other witnesses ran and reached near the deceased, the accused persons fled away.
(24) The complainant appeared as P.W.-1, who proved the prosecution case, as disclosed in the F.I.R. He also stated that alongwith him, his brother-in-law, Shiv Prakash Mishra was also present on the spot. He also stated that Kailash Narain Dwivedi has also seen the incident but he has been win over and not ready to give the impartial evidence. He proved the written report as Ex. Ka-1 and also stated that his statement was recorded by the Inspector at the police station and the Inspector visited the place of occurrence in his presence. In the cross-examination, nothing could be extracted, which may created any doubt on the testimony of P.W.-1 given in the examination-in-chief. The cross-examination also indicates that no cross-examination has been made in regard to the presence of the accused appellants, about the manner in which the crime was committed as well as exhortation by the appellant Nos.2 and 3, in pursuance of which, the appellant No.1 had fired from his gun and killed the deceased.
(25) The brother-in-law of the complainant, Shiv Prakash Mishra appeared as P.W.-2, who is also an eye witness and proved the prosecution case. The cross-examination made from him also could not extract anything, which may create any doubt about his testimony, rather he reiterated the evidence given in the examination-in-chief and the fact that the appellant Nos.2 and 3, Kamlesh and Rajendra had exhorted. He also stated that he had come a day before to his in-laws’ house and accompanied them to field on the said day. His presence on spot has been proved by P.W.-1 and P.W.-4, an independent eye witness, therefore, his evidence cannot be discarded on the ground of chance witness. Thus, the prosecution case has been proved by two eye witnesses, who appeared as P.W.-1 and P.W.-2.
(26) The post mortem of the deceased was conducted on the next day i.e. on 10.06.1984 at 12:30 PM by Dr. R.B. Pandey, who appeared as P.W.-3 and proved the post mortem report as Ex. Ka-2 as well as the injuries recorded therein. He also stated that the deceased could have died on 09.06.1984 at 08:00 in the morning. He also disclosed that the cause of death was shock and hemorrhage due to inflicted fire arm injuries. He also stated that ante-mortem injuries were sufficient for death in normal course. In the cross-examination, he stated that 250 C.C. semi-digested food was found in the stomach of the deceased, therefore, he would have eaten about two or two and half hours before the death. He also disclosed that the firing would have been done from a distance of 3 – 4 feet and he is in agreement with the opinion of Dr. Modi. He also stated that it is possible that the injuries may have been caused by one or two fires and there may be difference of 6 – 7 hours in the time of death on either side. On the written request, he was further cross-examined by the defence, in which, he stated that the injury Nos.1 and 2 are possible to have come by one fire. Thus, the post-mortem and the injuries have also supported the prosecution case except for the doubt, which has been tried to be created as to how two injuries could have been caused by one fire and the doctor has opined that both the injuries could have been caused by one fire, though he stated there may have been two fires, however, it was merely an opinion on suggestion and no evidence has been adduced in this regard, therefore, the appellants are not entitled for any benefit of it. However, time of death and duration, after which the post-mortem was done, remained unrebutted.
(27) Kailash Narain Dwivedi has been shown as an eye witness in the F.I.R. He filed an application dated 09.07.1985 alongwith an affidavit stating therein that he was not present on the place of spot and had gone to Agra near the son of his brother in connection with a job and he does not want to give false evidence to implicate an innocent person, thus, he may be relieved from giving evidence. However, he appeared during trial as P.W.-4. In the examination-in-chief, he stated that at the time of murder of Jagat Narain, he was at home and he has not seen the incident and the Inspector had not taken his statement. He was declared hostile and cross-examined by the prosecution. In the cross-examination, he stated that it is wrong to say that he has collided with the accused persons and does not want to state the correct things. He further stated that upon hearing hue and cry, he reached on the spot and at that time 2 – 3 hours have been passed on opening of the day, when he reached there, where Jagat Narain was lying on the east of the drainage. Thus, he supported the time of incident at about 08:00 in the morning. He also stated that when he reached on the spot, son of Jagat Narain i.e. Santosh Kumar Pandey and brother-in-law of Santosh i.e. Shiv Prakash Mishra and other villagers were present and on reaching the spot, he asked as to what has happened. Then Santosh and his brother-in-law informed that the accused persons, who are present in the Court, have killed the Jagat Narain. He also stated that he had seen two persons fleeing away in east from the spot, where Jagat Narain was lying, out of which, one was having gun in his hand and other was having lathi. He also stated that he was told that on account of change of course of water, the quarrel took place. He also stated that he had seen water flowing in the drainage. He also stated that the Inspector had come at about 02:00 and prepared the inquest, in which, he is a witness. He also proved his signatures on the inquest. Thus, his presence on the spot can not be doubted and he supported the prosecution case.
(28) The P.W.-4 also stated that it is true that he is being pressurized in the village as to why Raj Narain would be got hanged by giving the evidence because the deceased and Raj Narain were real brothers. He also stated that it is true that on account of it, he is not giving any evidence against Raj Narain. In the cross-examination by the defence, he accepted his signatures on paper Nos. 6 Kha, 7 Kha and 8 Kha and that they were made in the premises of Court. However, he stated that he had made signatures without reading the affidavit because he is illiterate. He further stated that the accused Kamlesh and father-in-law of his sister were with him when he had made the said signatures. He also stated that they had brought him for the affidavit and the said affidavit was neither read before him nor typed before him nor it was told to him in the village that the affidavit is to be given in regard to seeing or not seeing the incident and he had also not asked before proceeding from the village as to what is to be written in the affidavit. He also stated that he does not dispute that his nephew is residing in Agra and he had gone to Agra in search of a job but he specifically stated that he had not got written any paper Nos.7 Kha and 8 Kha mentioning that he had not seen any incident and he was not present on the spot, while truth is that the aforesaid persons stated that give the evidence because who knows that he was in Agra or not and it has wrongly been written and he was only told that he would not have to give any evidence and he had come to know it on the date of affidavit. He denied the suggestion to have given the affidavit i.e. paper No. 7 Kha correctly and he is deviating from the affidavit under the pressure of the brother-in-law of the Santosh and police.
(29) The aforesaid evidence of P.W.-4 indicates that though he has been declared hostile and may have not seen the incident but he has proved the place of occurrence and the persons, who were present on the spot at the time of occurrence. He has also proved the presence of P.W.-1 and P.W.-2 and also the evidence given by them, which was told to him upon his reaching on the spot. He has also proved that at least two persons were fleeing away from the spot, out of which, one was having a gun and another lathi, which were with the appellants. The evidence of P.W.-4 also shows the conduct of the appellants subsequent to the incident, i.e. running away from the place of incident and particularly that of the appellant No.2, Kamlesh, who got a false affidavit of P.W.-2 prepared in favour of the appellants and to show that he was neither present in the village nor on the place of occurrence, whereas the P.W.-4 has discarded the statements made in the affidavit, therefore, he had not gone to Agra on the date of incident. It also shows that the false affidavit was got prepared by misleading the P.W.-4 on the ground that he would not have to come to the Court to adduce the evidence, so that the correct position may not come before Court. The swearing of affidavit by P.W.-4 with a view that he may not have to appear in evidence cannot be disbelieved, firstly, because nothing could be extracted from him in the cross-examination and, secondly, it is a natural human conduct that normally the persons, who have seen the incident, avoid to give any evidence in Court of law because they remain afraid of the questions, which may be asked in the cross-examination and they or their family may have any difficulty in future.
(30) The main thrust of the arguments of learned counsel for the appellants was that there was no meeting of mind of the appellant Nos.1, 2 and 3, therefore, their conviction has wrongly and illegally been made. It was also argued that the charge against the appellant No.1 was made under Section 302 I.P.C., whereas charge against the appellant Nos.2 and 3 was made under Section 302 I.P.C. read with Section 34 I.P.C., therefore, since the charge against the appellant No.1 was not made under Section 302 I.P.C. read with Section 34 I.P.C., therefore, the appellant Nos.2 and 3 could not have been convicted with the appellant No.1 with the aid of Section 34 I.P.C. on the basis of constructive liability.
(31) Section 34 of I.P.C. provides that when a criminal act is done by several persons with a pre-meditated mind of committing crime, each of them is liable for the said criminal act in the same manner as if it was done by him alone. Section 34 I.P.C. is extracted here-in-below:-
“34. Acts done by several persons in furtherance of common intention. – When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
(32) The Hon’ble Supreme Court, in the case of Ramesh Singh @ Photti Vs. State of A.P. (Supra), held that essence of the liability under Section 34 I.P.C. is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention and the inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. It has further been held in this regard that an illegal omission on the part of such accused can indicate the sharing of common intention. Thus, the totality of circumstances is to be taken into consideration in each case. The relevant paragraph 12 is extracted here-in-below:-
“12. To appreciate the arguments advanced on behalf of the appellants it is necessary to understand the object of incorporating Section 34 in the Indian Penal Code. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held to guilty. By introducing Section 34 in the penal code the Legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principles of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted.”
(33) The Hon’ble Supreme Court, in the case of Pandurang and others Vs. State of Hyderabad (Supra), has held that it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all:- ‘Mahbub Shah v. Emperor; AIR 1945 PC 118 at pp. 120 & 121 (B). Accordingly there must have been a prior meeting of minds. It has further been held that the plan need not be elaborate, nor is long interval of time required, it could arise and be formed suddenly either by their words or their acts. It has further been held that prior concert and arrangement can, and indeed often must, be determined from subsequent conduct.
(34) The Hon’ble Supreme Court, in the case of Vaijayanti Vs. State of Maharashtra (Supra), has held that common intention can be formed even on the spot but for the said purpose, it is essential to consider the role played by the accused.
(35) The Hon’ble Supreme Court, in the case of Virendra Singh Vs. State of Madhya Pradesh (Supra), considered the scope of Section 34 I.P.C. and observed that the vicarious or constructive liability under section 34 I.P.C. can arise only when two conditions stand fulfilled, i.e., the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime. This participation need not in all cases be by physical presence. Section 34 I.P.C. does not create any distinct offence but it lays down the principle of constructive liability. The relevant paragraph 47 is extracted herein below:-
“47. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a pre-arranged and pre- meditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the pre-meditation and though the plan may be formed suddenly. In order that section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34.”
(36) A division Bench of this Court, in the case of Vijai @ Babban Vs. State of U.P. (Supra), relied on several reports of the Hon’ble Supreme Court and has held that in general, principle of criminal law is that the person who commits the offence be held guilty. Yet, Section 34 I.P.C. introduces joint liability. The relevant paragraph 29 is extracted herein below:-
“29. In general, principle of criminal law is that the person who commits the offence be held guilty. Yet, section 34 of Indian Penal Code introduces joint liability. The essence of joint liability is in existence of a common intention connecting all the accused to the doing of a criminal act, in furtherance of such common intention. Upon existence of common intention being established, individual acts of t he principal offenders, in the actual occurrence, looses relevance. All participants who may act with that common intention would become equally liable for the offence committed. Common intention essentially is a state of mind. Therefore, it is very difficult to procure direct evidence to prove its existence. Hence, in majority of cases it has to be inferred from the overt or covert act, other relevant circumstances of the case and conduct of the accused in the totality of circumstances of the case. In this regard gainfully, para 12 of the judgment of apex court in the case of Ramesh Singh @ Photti VS State Of A. P. AIR 2004 (SC) 4545, is reads as under:”
“12. ………………………..”
(37) In view of above, a person can be held liable for the offence, which he may not have committed directly but the crime has been committed in furtherance of the common intention of the said person also and he also had intention to commit the crime, which has been committed and in case it may not have been committed by the person, who committed, he may have committed that crime and on proof of the fact that there was a joint meeting of mind, which may be prior to the incident or on the spot or may be even if he was not present on the spot, he can be convicted in the same manner, in which the person who has committed the crime. Thus, Section 34 I.P.C. is only an enabling provision for convicting a person, who is not directly connected with the crime, but participated in any manner in commission of crime and even if the charge of offence with the aid of said Section 34 I.P.C. has not been framed, he may be convicted. Thus, the contention of learned counsel for the appellants that since charge against the appellant No.1 has been made only under Section 302 I.P.C. and the appellant Nos.2 and 3 under Sections 302 I.P.C. read with Section 34 I.P.C., therefore, they could not have been convicted with the appellant No.1 as it cannot be said that they had meeting of mind or common intention of committing the crime i.e. murder in the instant case and the appellant No.1 has committed the crime in furtherance thereof, which is misconceived and not tenable because even if the charge under Section 302 I.P.C. read with Section 34 I.P.C. would not have been made against the appellant Nos.2 and 3 and they would have been found to have common intention of committing the crime, which has been committed by the appellant No.1 and the appellant No.1 has committed the crime in furtherance thereof, they would have been convicted with the aid of Section 34 I.P.C. because it only provides the condition, in which the persons, who have common intention to commit the crime, are liable to be convicted and separate living and no enmity cannot be grounds of escape, if it is otherwise proved.
(38) Adverting to the facts of the present case, the common intention and meeting of mind of the appellant Nos.1, 2 and 3 is apparent from the prior conduct of the appellants of reaching on the spot armed with single barrel gun, bandolier, lathi and spade for the purpose of stopping the course of water towards the complainant and for opening it towards their field and it shows that they had come with intention that in case they are stopped from doing it, they may use the weapons, which they had brought and they used the deadly weapons, which they had brought. The conduct at the time of incident discloses that they had all meeting of mind to commit the crime either since prior to the incident or it was on the spot because on being prevented from changing the course of water from opening the course of water towards their field by stopping it towards the complainant’s field, the appellant Nos.2 and 3 exhorted for opening the course of water towards their field and also exhorted to kill the deceased and upon their exhortation, the appellant No.1, who was on the other side of the drainage, fired on the deceased, who was standing on the south of the appellant No.1. The subsequent conduct of fleeing away from the sight, when the complainant and other witnesses ran towards the deceased also shows that they had accomplished their motive, therefore, left the spot and the appellant No.2 made an attempt also to prevent P.W.-4 from giving evidence.
(39) The learned Trial Court, after considering the evidence and material on record, has recorded a finding that the statements of P.W.-1 and P.W.-2 that the accused Raj Narain, Kamlesh and Rajendra Prasad were present on the spot is trustworthy and Kamlesh and Rajendra Prasad exhorted and on their exhortation, Raj Narain made fire, which hit deceased and he died. Thus, these two accused persons are guilty of offence of murder with the aid of Section 34 I.P.C., although they have not caused any injury to the deceased by the lathi or legs and fists. It has further been recorded that the statements of aforesaid two witnesses found corroboration with the F.I.R. and cutting of the water and diverting it from the drain is not possible unless there is instrument like spade (fawda) with the accused. The F.I.R. narrates that accused Rajendra Prasad had a fawda alongwith lathi and others also had lathi and gun and this fact is proved by the evidence of P.W.-1 and P.W.-2. It has also been recorded that the aforesaid evidence of P.W.-1 and P.W.-2 are corroborated with the statement of P.W.-4 on the point of their presence on the spot, running of water in the drain, time and place. The statement of P.W.-4 is relevant under Section 8 of the Indian Evidence Act, 1872. The evidence of the witnesses has been recorded in accordance with Section 137 of the Indian Evidence Act, 1872. The learned Trial Court has relied upon a judgment of the Hon’ble Supreme Court rendered in the case of Nachhattar Singh Vs. State of Punjab; 1976 S.C.C.(Cri.) Page 182, in which their Lordships of the Hon’ble Supreme Court have held that one could find all the appellants guilty with the aid of Section 34 I.P.C.
(40) The Hon’ble Supreme Court, in the case of Patai @ Krishna Kumar Vs. State of U.P. (Supra), has held that Section 34 I.P.C. lays down that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
(41) The judgment rendered in the case of Babu Alias Balasubramaniam and Another Vs. State of Tamil Nadu (Supra) is not applicable in the facts and circumstances of the present case because in the said case the accused was charged for the offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. and there was no charge under Section 109 I.P.C., which by itself is an independent offence though punishable in the context of other offence, therefore, the Hon’ble Supreme Court has held that she cannot, therefore, be convicted for offence punishable under Section 304 Part I of the I.P.C. with the aid of Section 109 of the I.P.C.
(42) A contention was raised that at the most, it can be said to be an incident occurred on sudden provocation, which has no legs to stand and liable to be repelled only in view of Section 300 (thirdly) and Exception 1 (first) of the I.P.C. for the reason that the appellants had come prepared with arms and instrument for cutting and changing course of water and cut the water of deceased and opened towards them and on being confronted, after committing crime fled away from the spot leaving the deceased real brother of appellant No.1. The site plan, Ex. Ka-10, prepared by the Investigating Officer on the pointing out of the complainant, clearly discloses the position of the place of closing of drainage and opening of drainage as well as the places of the deceased, the appellant No.1 and the appellant Nos.2 and 3 and their way of fleeing away from the spot and witnesses, which could not be disputed in the trial or before this Court in any manner.
(43) The incident had occurred on account of a dispute over diverting of water by the accused persons forcibly and the deceased asked the accused not to do so, on account of which, the appellant Nos.2 and 3 exhorted and the appellant No.1 opened fire on the deceased, on account of which, he sustained injuries and died. Thus, the motive for the crime also stands proved. The appellant Nos.1 and 2 have also alleged that the deceased was a man of loose character and some unknown persons have murdered him and when the accused, Kamlesh went for natural call, some persons raised hue and cry and he has been falsely implicated in the case. Besides it, he and his father did not help P.W.-1 in Gurudin’s murder case, therefore, they have been falsely implicated in the case. However, neither it could be proved nor this enmity, which is too remote and can be said to have a call for false implication of appellant Nos.2 and 3. The learned Trial Court, after considering it, has recorded a finding that there is no reason why the real nephew would involve his real uncle and would spare the real assailants and it further recorded a finding that contention of learned counsel for the accused persons that the motive has not been proved or they had no motive to commit the murder is of no help to the defence. Thus, this Court finds no illegality or error in the findings recorded by the learned Trial Court in this regard.
(44) It has also been submitted that there is discrepancy between the medical evidence and the statements of P.W.-1 and P.W.-2 as only single fire has been shown, whereas two injuries were found on the body of the deceased and the fire has been shown to have been made from a distance of about 10 steps, therefore, the blackening and charring are not possible. The P.W.-3, Dr. R.B. Pandey has stated that these injuries may also be caused by one fire and the learned Trial Court has found it to be correct because if one injury either injury No.1 or No.2 is caused first, second injury in this close range is not possible as the person would fell down after receiving any injury, out of the two injuries first, therefore, injury No.2 is nothing but a part of injury No.1, which is on account of dispersal of pellets. The learned Trial Court has also recorded that the cartridge did not appear to be of standard size and it was a self loaded cartridge. The wadding piece is of extra-ordinary width and appears to be of polyster or of some very hard substance. In a standard weapon, the wadding piece is of cardboard. It also appears that the wadding piece recovered from the body of the deceased also worked as a pellet and in case if a cartridge is self loaded the material or the powder which was used cannot be ascertained. From Ex. Ka-2, it is apparent that charring was present in injury No.1 as well as in injury No.2. Nowhere it is written that charring was present on the wound of entry only as the distance between the two wounds is very less, therefore, charring all around these two injuries is most probable. It is also noticed that country made pistol was used, therefore, principles of medical jurisprudence of Dr. Modi in regard to standard weapon and bullet may not of much help. On internal examination, third, fourth and fifth ribs were found fractured and right lung was also found ruptured, which shows that fire was very heavy and some extra-ordinary material i.e. gun powder or blastic powder was used.
(45) The learned Trial Court has also recorded a finding that during the course of argument, it has come that the accused Raj Narain is compulsory retired police personnel but evidence to this effect is not there on the record but this fact that he was in police department is not denied, therefore, he being a police personnel was considered to have a licensed gun. Thereafter, the learned Trial Court, after considering the evidence of P.W.-1, P.W.-2 and P.W.-4 and the circumstances of the incident, has recorded a finding that the alleged conflict between the direct and medical evidence are not applicable on the facts of the present case.
(46) An argument was also raised on the basis of post-mortem report that 250 C.C. semi-digested food was found inside the body of the deceased, therefore, he could not have been murdered at 08:00 in the morning because it is highly improbable that he would have taken the food at 06:00 in the morning. The contention of learned counsel for the appellants is misconceived and not tenable for the reason that in natural course once the person leaves the home for work, he normally takes something and in the villages, people before going to the field usually eat something. The learned Trial Court has recorded that if a person takes a cup of tea and biscuits, it would be 250 C.C. in the measurement and it is just possible that before leaving the house in the morning, the deceased might have taken a glass of milk or half glass of tea or some other liquid and a piece of bread and, therefore, the contention of learned counsel for the accused is of no help to the accused and it cannot be said that F.I.R. was ante-time. This Court does not find any illegality or error in the aforesaid findings recorded by the learned Trial Court on the point of alleged conflict between the medical and the oral testimony and is in agreement with the findings recorded by the learned Trial Court.
(47) The judgments rendered in the case of Parshuram Singh Vs. State of Bihar (Supra), State of Uttar Pradesh Vs. Farid Khan (Supra), Nagaraja Vs. State of Karnataka (Supra), Anand Mohan Vs. State of Bihar (Supra), Garib Singh and others Vs. The State of Punjab (Supra) and Jainul Haque Vs. State of Bihar (Supra) relied by learned counsel for the appellant No.3 are of no assistance to his case as the same have been passed in the facts and circumstances of those cases and are distinguishable on the facts and circumstances of the present case.
(48) One of the grounds urged by learned counsel for the appellant No.3 was that the investigation was tainted and was not done in proper manner, therefore, the appellants could not have been convicted. However, merely on account of some discrepancy in the investigation and fault on the part of Investigating Officer, it could not be a ground for acquittal if the charge is otherwise proved beyond reasonable doubt during the trial. Our view is supported by judgment of the Hon’ble Supreme Court, rendered in the case of Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another (Supra), in which the Hon’ble Supreme Court has held that it is now a well settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case.
(49) One of the grounds raised by learned counsel for the appellant No.2 was that the learned Trial Court recorded the statements of the appellants under the old Act i.e. Section 364 of the Code of Criminal Procedure, 1898 on the proforma prescribed for the same, which was repealed by Section 484 of the Code of Criminal Procedure, 1973, which came into force w.e.f. 01.04.1974, therefore, the entire proceedings are vitiated and liable to be quashed. The Code of Criminal Procedure, 1898 was repealed by Section 484 but, by means of the Section 484(2)(b) Cr.P.C., 1973, all forms prescribed alongwith others, which were enforced immediately before commencement of the said Code, have been deemed respectively to have been published, issued, conferred, prescribed defined, passed or made under the corresponding provisions of this Code, which is extracted here-in-below:-
“all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the Old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code;
(50) Section 8 of The General Clauses Act, 1897 provides Construction of references to repealed enactments. It provides that where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. In view of above, the object of the provision is that where any act is repealed and re-enacted, references in any other enactment or instrument to provisions of the repealed former enactment must be read and construed as references to the corresponding provision of re-enacted new provision, unless a different intention appears. Thus, the reference to the provision in the format, on which the statement under Section 364 Cr.P.C., 1898 was recorded, would be referable to Section 313 Cr.P.C., 1973.
(51) In view of above, the forms prescribed under the old Act have been deemed to have been prescribed under the corresponding provisions of Code of Criminal Procedure, 1973. Perusal of the records indicates that though the statement under Section 313 Cr.P.C. of the accused/appellants were recorded, but it started on the proforma prescribed for statement under Section 364 of the Criminal Procedure Code, 1898, whereas it is mentioned in the order dated 06.08.1986 passed by the learned Trial Court that the case is fixed on the next date i.e. on 13.08.1986 for statement of accused under Section 313 Cr.P.C.
(52) Learned counsel for the appellants failed to point out any discrepancy, illegality or error in the statements of the appellants under Section 313 Cr.P.C. except above. This Court is of the view that it may be an irregularity and cannot be said to an illegality affecting the trial or merit of case in itself, on account of which the whole trial may be said to have vitiated. Even otherwise, learned counsel for the appellants has failed to point out any discrepancy or illegality in the statements of the appellants recorded under Section 313 Cr.P.C., as referred in the order sheet of the said date, in any manner or it may have caused any prejudice to the appellants in any manner. It is also settled in law that merely by mentioning of wrong provision, the order or any proceeding etc. cannot be said to be vitiated and set aside. Even otherwise, it may have been a procedural violation only, therefore, the appellants have to show that on account of it, they could not get proper opportunity to defend them and it prejudiced them in any manner, but they failed to do so. Thus, the contention in this regard is wholly misconceived and not tenable and liable to be repelled, repelled accordingly.
(53) The Hon’ble Supreme Court, in the case of State of Uttar Pradesh Vs. Sudhir Kumar Singh and Others; (2021) 19 SCC 706, held that breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed.
(54) The Hon’ble Supreme Court, in the case of State of Madhya Pradesh Vs. Ramesh and Another (Supra), has held that statement of the accused made under Section 313 Cr.P.C. can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. The relevant paragraph No.28 is extracted herein below:-
“28. Statement of the accused made under Section 313 Cr.P.C. can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined, his statement so recorded under Section 313 Cr.P.C. can not be treated to be evidence within the meaning of Section 3 of the Evidence Act, 1872. Section 315 Cr.P.C. enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required. (Vide: Tukaram G. Gaokar v. R.N. Shukla & Ors., AIR 1968 SC 1050; and Dehal Singh v. State of Himachal Pradesh, (2010) 9 SCC 85). In such a fact-situation, the accused being a competent witness, can depose in his defence and his evidence can be considered and relied upon while deciding the case.”
(55) The Hon’ble Supreme Court, in the case of Shivaji Sahebrao Bobade and Another Vs. State of Maharashtra (Supra), has held that it is trite law, nevertheless fundamental that the prisoner’s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area many gravely’ imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. The relevant portion of paragraph 16 is extracted herein below:-
“16. …………….It is trite law, nevertheless fundamental that the prisoner’s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area many gravely’ imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and- prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. it is also open to the appellate court to call has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of Such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards compliance with section 342, Cr. P.C., the omission has not been shown to hive caused prejudice to the accused………….”
(56) Similar view has been taken by the Hon’ble Supreme Court in the case of Aejaz Ahmad Sheikh Vs. State of U.P. and Another (Supra).
(57) In view of above and considering the over all facts and circumstances of the case, this Court does not find any illegality or error in the impugned judgment and order passed by the learned Trial Court, which has been passed by a reasoned and speaking order after considering the evidence and material on record appropriately as the charge under Section 302 I.P.C. read with Section 34 I.P.C. has rightly and in accordance with law been found proved against the appellants. The appeal has been filed on misconceived and baseless grounds, which lacks merit.
(58) The appeal is, accordingly dismissed, upholding the impugned judgment and order passed by the learned Trial Court. The conviction of the appellants for the offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. is upheld and the sentence awarded is confirmed.
(59) The appellant No.1, Raj Narain has died and the appeal on his behalf has abated, whereas the appellant No.2, Kamlesh and the appellant No.3, Rajendra Prasad are on bail. The appellant No.2, Kamlesh and the appellant No.3, Rajendra Prasad are directed to surrender within a period of two weeks from today before the Chief Judicial Magistrate, Pratapgarh, who shall send them to jail to serve out the sentence, failing which, the Chief Judicial Magistrate, Pratapgarh shall take appropriate steps in accordance with law for their arrest to serve out the sentence.
(60) Let a copy of this judgment alongwith Trial Court’s Record be transmitted to the Court concerned forthwith and in any case within a period of one week from today for compliance.
(Zafeer Ahmad, J.) (Rajnish Kumar, J.)
Order Date : 20.04.2026
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