SHIV NARAIN AND OTHERSversusSTATE OF U.P.

      HIGH COURT OF JUDICATURE AT ALLAHABAD
           CRIMINAL APPEAL No. - 278 of 1988

Shiv Narain and others
                                              …..Appellant(s)

                            Versu
                              s

State of U.P.
                                            …..Respondent(s)


Counsel for Appellant(s)     : Govind Saran Hajela, K.s.
                               Tiwari
Counsel for                  : A.G.A.
Respondent(s)


Court No. - 76

           HON'BLE SAMIT GOPAL, J.

1.     This appeal has been preferred by the appellants
Shiv Narayan, Ram Roop, Dev Prasad, Ram Milan, Gorey
Lal and Jaikaran alias Jai Narayan under Section 374(2)
Cr.P.C. against the judgment and order dated 03.02.1988
passed by IInd Additional Sessions Judge, Banda in
Sessions Trial No.270 of 1986 (State of U.P. vs. Shiv
Narayan and 6 others) whereby the accused/appellants
Gorey Lal, Ram Milan, Dev Prasad and Jaikaran have
been convicted and sentenced under Section 147 IPC to
six    months’   rigorous   imprisonment;     accused   Shiv
Narayan and Ram Roop have been convicted and
sentenced for offence under Section 148 IPC to one
year’s rigorous imprisonment, accused Gorey Lal, Ram
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Milan, Dev Prasad, Jaikaran, Shiv Narayan and Ram
Roop have been convicted and sentenced under Section
307   read   with   149   IPC   to   four   years’    rigorous
imprisonment and a fine of Rs.500/-. In default of
payment of fine, they have been ordered to further suffer
six months’ rigorous imprisonment. They are further
convicted and sentenced under Section 323 read with
149 IPC to one year’s rigorous imprisonment. The
sentences have been ordered to run concurrently.

2.    By the same judgment and order, accused Shiv Das,
who was also tried with them, has been acquitted of the
charges levelled against him for offence under Sections
147, 148, 307/149, 323/149 IPC.

3. The facts of the case are that a tehrir dated
28.03.1986 was given by Kunjalwa to S.H.O., Police
Station Marka, District Banda of which Satya Narayan is
a scribe alleging therein that on 28.03.1986 at about
10:00 A.M., he was going to his house from the house of
Village Pradhan and when he reached the house of Shiv
Narayan, accused Shiv Narayan armed with a gun, Ram
Roop armed with a gun; Gorey Lal, Ram Milan, Dev
Prasad and their brother-in-law Jai Karan and Shiv Das
Kumhar armed with guns and lathies came. They
surrounded him and caught hold of him and assaulted
him with lathies. After it Shiv Narayan and Ram Roop
fired on him to kill him which went above his head and
he got saved. When the accused picked their gun to fire
again, he snatched their gun from them which is
numbered as Gun No.11149-82 after which again they
assaulted him with lathies. On his shout and shriek, Ram
Roop Yadav, Kedar Yadav, Shiv Pujan Yadav, Deshraj
Yadav, Bhola Yadav, Pattu Yadav, Nathu Chamar, Debiya
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Pasi, Sundar Pasi, Maiyadeen Pasi and Ram Kripal Pasi
came there and saved him. He has come along with the
said gun which he is submitting. An incident like this had
previously occurred in January 1986 in which also these
accused were involved. A report be lodged and action be
taken. The said tehrir is marked as Exb. Ka-1 to the
records.

4.   On the basis of the said tehrir, the first information
report was lodged on 28.03.1986 at 16:00 P.M. as Case
Crime No.19 of 1986, under Sections 147, 148, 149, 307,
323 IPC, Police Station Marka, District Banda. The Chik
FIR is Exb. Ka-4 to the records.

5.   The     SBBL    Gun     No.11149/82         was       taken     into
possession by the Investigating Officer and its memo was
prepared on 28.03.1986. The same is Exb.- Ka-6 to the
records.

6.   The accused Kunjalwa was medically examined on
28.03.1986 at 05:30 P.M. by the Medical Officer, PHC,
Baberu. The doctor found the following injuries on the
body of the injured:
     1. Contusion 14 Cms. X 2 Cms. on the back of right chest
     placed obliquely 10 Cms. below angle of scapula.

     2. Contusion 11 Cms. X 2.5 Cms. on the outer side back of
     right side of chest 8 Cms. above injury no.1.

     3. Contusion 8 Cms. X 5.5 Cms. on the back of right
     forearm 2 Cms. above wrist joint.

     4. Contused swelling 9 Cms. X 7.5 Cms. on the back of left
     hand.

     5. Lacerated wound 2 Cms. X 0.2 Cm. X 0-5 Cm. on the web
     between little and ring finger left hand.

     6. Contusion 10 Cms. X 2.5 Cms. on the inner side of right
     thigh 7 Cms. above knee joint.
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      7. Contused swelling 16 Cms. X 13 Cms. on the inner side
      and front of right knee joint.

      8. Contused swelling 18 Cms. X 11 Cms. on the front of left
      leg from 18 Cms. above ankle joint.

      9. Contusion 12 Cms. X 10 Cms. on the front and inner side
      of right knee joint.

      10. Contusion 9 Cms. X 8 Cms. on the dorsum of left foot.

      11. Abraded contusion 2.5 Cms. X 1.5 Cms. on the back of
      right elbow joint.

      12. Contusion 9 Cms. X 8 Cms. on the right hip.

      13. Incised wound 1.5 Cms. X 0.2 Cm. X superficial skin
      deep spindle shaped, margin sharp, clear cut.


6.1 The opinion of the doctor was that Injury Nos. 1 to
11 were caused by blunt object while injury No. 12 was
caused by sharp weapon. The duration of injuries was
half day old. The injuries were simple in nature except
Injury Nos. 2, 4, 7 & 8.


6.2 X-ray chest for injury No. 2, X-ray left hand for
injury No. 4, X-ray right knee joint for injury No. 7 and X-
ray left leg for injury No. 8 were advised for which he
was referred to District Hospital, Banda. The said injury
report is Exb.-Ka-3 to the records.


7.    The investigation concluded and chargesheet No.11
of 1986 dated 23.04.1986 under Sections 148, 149, 307,
324   IPC    was      filed      against   all   the    accused.    The
chargesheet against Gorey Lal and Jaikaran was filed as
absconder. The chargesheet is Exb.-Ka-8 to the records.


7.1 Subsequently,            a   Chargesheet      No.    11-A      dated
20.06.1986 under Sections 148, 149, 307, 324 IPC was
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filed against Gorey Lal and Jaikaran. The same is Exb.-
Ka-2 to the records.


8.   The Court of Special Judge, (DAA), Banda vide order
dated 25.09.1986 framed charges against Gorey Lal,
Ram Milan, Deo Prasad, Jai Karan and Sheo Das under
Sections 147 IPC, 307/149 IPC and 323/149 IPC.


8.1 The charge was framed by the same Court vide
order dated 25.09.1986 against Shiv Narayan and Ram
Roop under Sections 148 IPC, 307 IPC and 323/149 IPC.
All the accused were read over the charges which was
explained to them to which they pleaded ‘not guilty’ and
claimed to be tried.


9.   The prosecution in order to prove its case produced
and examined Kunjalwa, the first informant and the
injured as PW-1, Desh Raj as PW-2 and Pattu as PW-3
who were the alleged eyewitnesses of the incident. Sub
Inspector Chintamani (PW-4) is the second Investigating
Officer of the matter who took over the investigation
from Sub Inspector Asfaq Ahmad (PW-6) and concluded
it and filed chargesheet Exb.Ka-2 against the said two
accused. Dr. R.S. Gupta (PW-5) medically examined the
injured Kunjalawa. Sub Inspector Asfaq Ahmad (PW-6)
is the Investigating Officer of the matter who has
formally proved the chik FIR, its corresponding GD
prepared by Head Constable Raja Ram Yadav who
recorded the statements of the witnesses and prepared
site plan Exb. Ka-7. He then filed chargesheet against all
accused including two as absconder which is Exb. Ka-8
to the records.
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                                         CRLA No. - 278 of 1988

10. Samarjeet    Singh   was      examined   as   DW-1     for
deposing in favour of Ram Roop. Babu Lal Singh who
was examined as DW-2 who also stated and repeated the
same version as that of DW-1 Samarjeet Singh.


11. The accused in their statements under Section 313
Cr.P.C. denied the prosecution version and stated to have
been falsely implicated in the present matter due to
enmity. Ram Roop stated that he was harvesting his crop
wherein at about 8:00 A.M. the Village Pradhan Ram Raj,
Kunjalawa, Dibiya, Sundarwa, Shiv Pujan, Shiv Baran,
Ram Roop and other persons came there after which
Kunjalawa caught hold of his gun. On the alarm raised,
his labourers came to the said place and had beaten
Kunjalawa. Ram Raj and others started beating him and
snatched his gun. He also filed his statement in writing
to the said effect. He states that he had gone to lodge a
report at the police station but his report was not lodged.
In his defence, he examined two witnesses.


12. During pendency of this appeal, appellant No. 2
Ram Roop died and thus his appeal stood abated vide
order dated 30.07.2026. Further, Gorey Lal is also
reported to have died and thus his appeal also stands
abated. The appeal survives only with regards to
appellant No. 1, Shiv Narayan, appellant No. 3 Dev
Prasad, appellant No. 4 Ram Milan and appellant No. 6
Jaikaran alias Jai Narayan.


13. PW-1 Kunjalwa is the first informant of the matter
and also alleged injured in the matter. He narrates the
version of the incident as per first information report
which was registered on the basis of a tehir given by
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him. He states that the accused are resident of his
village and he knows them. He states of the injuries
received by him and his medical examination. He states
of dictating the tehrir and then the same was read out to
him and affixed his thumb impression on it. He proves
the same. He further states that he was admitted in the
hospital for about 10-15 days.

14. PW-2 Deshraj is the alleged eyewitness of the
incident.   He states that he did not see the accused
assaulting Kunjalwa. He states that he did not see any
such incident. The witness was declared hostile.

15. Pattu PW-3 is also an alleged eyewitness of the
incident. He states that he did not see the accused who
are present in court assaulting Kunjalwa. He was also
declared hostile.

16. Sub Inspector Chintamani (PW-4) states that he
took up the investigation and before it, the matter was
being investigated by Sub Inspector Asfaq Ahmad. He
filed chargesheet against Gorey Lal and Jai Karan on
20.06.1986. The chargesheet against five other accused
was filed by Sub Inspector Asfaq Ahmad on 23.04.1986.
He proves the chargesheet filed by him as Exb.Ka-2 to
the records.

17. Dr. R.S. Gupta (PW-5) was posted as the Medical
Officer, PHC Baberu. He states of conducting the medical
examination of the injured Kunjalwa and preparing the
injury report. The details of the injury report has already
been given above and thus, the same is not reiterated
herein. He also states about the opinion given by him in
the same.
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                                          CRLA No. - 278 of 1988

18. Sub Inspector Asfaq Ahmad (PW-6) is the first
Investigating Officer of the matter. He proves the hand
writing   of Head   Constable   Raja    Ram    Yadav,     who
transcribed the chik FIR and its corresponding GD. He
also proves the recovery memo of the gun which was
given to him along with one cartridge. He states of
recording of the statements of witnesses and then
concluding the investigation with regard to five accused
and filing a chargesheet against them on 23.04.1986. He
proves the said chargesheet as Exb.Ka-8 to the records.


19. Samarjeet Singh (DW-1) states that he knows
Kunjalwa who is of his village. He also knows the
accused who are also of his village. He states that Ram
Roop was harvesting his crops at Sadbhavna Har, where
15–20 labourers were working. He was also harvesting
his crop in the adjacent field. Kunjalwa came there and
caught hold of Ram Roop. Ram Roop was holding a gun.
Kunjalwa snatched his gun and in the meantime, the
labourers ran to the place. In the meantime, 7-8 other
peoples    also   reached   there.     Sundarwa,      Dibiya,
Maiyadeen and Ram Raj, Village Pradhan, came there
who were armed with lathies and they all snatched the
gun of Ram Roop. The labourers had assaulted Kunjalwa
with lathi and hansiya. Apart from him, Babu Lal also
reached there and they intervened to save them. The
persons then took away the gun and went away. Babu Lal
(DW-2) also reiterated the same version as given by
DW-1.


20. Learned counsel for the appellants submits that the
appellants have been falsely implicated in the instant
case. It is submitted that the prosecution version is not
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                                           CRLA No. - 278 of 1988

truthful inasmuch as the incident as stated in the FIR
did not occur in the said manner but had occurred in a
different manner for which accused Ram Roop has fairly
stated in his statement under Section 313 Cr.P.C. and
also in his written statement. It is submitted that even he
has stated that he went to the police station to lodge his
report which was not registered. It is submitted that
Ram Roop has produced two witnesses in defence who
have also stated of the incident occurring in a different
manner and not as per the version of the FIR. It is
further submitted that the injured Kunjalwa although
was found to have received 13 injuries but except for
injuries No. 2, 4, 7 and 8, all the other injuries were
opined to be simple in nature whereas the said four
injuries were advised for X-ray and he was referred to
the District Hospital, Banda for X-ray and further
treatment but there is nothing on record to show that
any   X-ray   examination   for   the   said   injuries   were
conducted and any further opinion regarding nature of
the said four injuries has come on record and thus a fair
conclusion can be drawn that even the said injuries were
simple in nature. It is further submitted that insofar as
the injury No. 13 is concerned, the same is described as
incised wound and the doctor has opined it to have been
caused by sharp weapon but as per the prosecution
version there is no accused armed with any sharp
weapon and thus, even the prosecution is not truthful
with regard to the manner of assault and even the
weapon of assault. It is submitted that thus the
prosecution story in all even after considering the fact
that Kunjalwa has received injuries            would not be
truthful as alleged. It is submitted further that the
further aspect of the matter is that two witnesses namely
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Desh Raj (PW-2) and Pattu (PW-3) were examined as
alleged eyewitnesses who were named as the persons
with others who reached the place of occurrence and had
saved the injured but the said two witnesses have not
supported the prosecution case and have been declared
hostile. It is submitted that there is no other independent
witness produced and examined by the prosecution in
the matter despite the fact that as per the FIR many
other persons reached at the place of occurrence and
had saved the first informant who is the alleged injured.
It is submitted further that although the prosecution
version states that Shiv Narayan and Ram Roop fired
upon the first informant, Kunjalwa, with their guns but
the said fire as per prosecution version did not hit him
and he was saved. It is submitted that the said version is
only because of the reason that the SBBL gun was taken
away by the informant and deposited with the police
along with the tehrir and thus just in order to give the
colour of use of the gun an ornamental allegation of
firing has been stated. It is submitted that that there is
nothing on record to show that firing at the said place
was done inasmuch as the said gun was never sent for
any ballistic opinion and even there is no empty
cartridges recovered to show that any firing from the
said weapon was done. It is submitted that thus the case
of the prosecution simplicitor stands of simple injuries to
the first informant/injured and even amongst it one of
the injuries being an incised wound which has been
opined to be caused by sharp weapon has not been
explained by the prosecution as to how it was received
by him and thus the prosecution is not truthful. It is
submitted that no offence thus under Section 307/149
IPC is made out. The case at the best would be a case
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                                         CRLA No. - 278 of 1988

under Sections 323/149 IPC. It is submitted further that
the interest of justice would serve if the surviving
appellants are directed to be released on the period
undergone by them and appropriate compensation is
ordered to be paid to the first informant/ injured and/or
his legal heirs as the case may be meet the ends of
justice looking to the time which has elapsed since the
day of occurrence. It is stated by learned counsel for the
appellants that any compensation, if awarded, shall not
be treated as a fine or enhancement of sentence by the
accused. It is submitted that the accused/appellants, now
senior citizens and are above 62 years of age and now
the incident also has taken place around more than 40
years back.


21. Learned counsel for the State has also been heard
at length who submits that the judgment and order in the
matter is on merits and trial court has meticulously dealt
with the matter and the prosecution has proved its case
beyond reasonable doubt. It is submitted that the appeal
is devoid of any merit and deserves to be dismissed.


22. After having heard the learned counsel for the
parties and perused the record, it is evident in the
present matter that seven accused were tried and out of
them, one accused namely Shiv Das was acquitted of the
charges levelled against him. Six persons were convicted
and sentenced who have preferred an appeal before this
Court. Out of the six appellants two have died during
pendency of the appeal and their appeals stand abated
and as of now only four appellants remain before this
Court.    The    injuries   received    by      the      first
informant/injured Kunjalwa are 13 in number. Four
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                                           CRLA No. - 278 of 1988

injuries were opined for X-ray and he was referred for X-
ray examination and further treatment. The doctor
opined the other injuries to be simple in nature. There is
nothing on record to show that any x-ray examination
was conducted and any further medical report regarding
the said four injuries was produced. Out of the said 13
injuries, one injury was incised wound which was opined
to have been caused by sharp weapon as per the doctor
conducting his medical examination. The prosecution
version is of use of the gun and lathies only. Insofar as
the incised wound is concerned, the same was opined to
have been caused by sharp weapon but there is no
allegation of use of any sharp weapon in the present
matter. Specific case of the prosecution is that the
gunshot did not hit the injured although a SBBL gun was
snatched by the first informant and given to the police of
which a recovery memo was prepared but there is
nothing on record to show that there was use of the said
weapon   as   it   was   not   subjected   to   any    ballistic
examination. Even no empty cartridges were found or
recovered in the present matter. The accused Ram Roop
in his defence states that the first informant and his
associates came to his field and where they had
apprehended him after which on shout and shriek, his
labourers came there and first informant was assaulted
by them. He has even stated of the same in his written
statement before the court. The defence witnesses have
been examined for the said purposes. Two eyewitnesses
were produced by the prosecution being                Desh Raj
(PW-2) and Pattu (PW-3) who have been cited in the FIR
as eyewitnesses along with many other persons. The said
two eyewitnesses have not supported the prosecution
case and have been declared hostile. There is no other
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                            independent person who has been produced by the
                            prosecution to prove its case. The injuries sustained by
                            the informant/injured Kunjalwa, in the absence of any
                            supplementary medical report, can safely be termed as
                            simple in nature. The accused are convicted and
                            sentenced under Section 323/149 IPC. The ends of
                            justice after more than 40 years in the present matter
                            would suffice if the accused are directed to be released
                            on the period undergone by them in jail. However,
                            compensation of Rs.5000/- each is awarded to all of them
                            which is directed to be paid by them in the court of Chief
                            Judicial Magistrate, Banda within a period of 45 days
                            from today which shall be disbursed to the first
                            informant/injured/Kunjalwa (PW-1) and/or his legal heirs
                            as the case may be after due verification of their identity
                            as per rules.


                            23. The appeal thus is partly allowed.


                            24. The appellants are on bail. They need not surrender
                            unless wanted in any other case. The bail bonds are
                            cancelled and sureties stands discharged. In the event,
                            compensation as awarded is not deposited by them in the
                            time as provided aforesaid, the conviction and sentence
                            as awarded by the trial court shall operate.




                                                                     (Samit Gopal,J.)

                            September 14, 2026
                            Mukesh Kumar




Digitally signed by :-
MUKESH KUMAR
High Court of Judicature at Allahabad