Hon'ble Subhash Chandra Sharma,J v. District Varanasi by which

Dular Singh and others) arising out of Crime No. 220 of 1983, under Section 307, 324, 504, 506 IPC, Police Station Mugalsarai, District Varanasi by which appellants (Dular Singh and Pakhandi Singh) by which learned court concerned has convicted and sentenced the appellants under section 307 IPC for 5 years rigorous imprisonment.

2. During pendency of this appeal, appellant no.1 Dular Singh has died, therefore, appeal on his part stood abated.

3. The prosecution case in brief is that on 2.10.1983 at about 10:00 a.m. in the paddy field of the informant, the buffaloes of the appellants entered and were expelled away from the field by beating with danda. At about 5 p.m. the nephew of the informant Phoolnath Singh and son Shailendra Singh were sitting in front of their house. In the meantime, Dular Singh, Pakhandi Singh armed with gadasa. Mithilesh and Mangla Singh armed with lathi came there and complained about beating of the buffaloes with danda, on objection, Pakhandi Singh exhorted to kill, on this Dular Singh and Pakhandi with intention to kill him assaulted with Gadasa and others also made assault with lathi causing injuries to Shailendra Singh and Phoolnath Singh. Tahreer was written by informant Mushafir Singh and F.I.R. was lodged on the same day at police station concerned.

4. Majrubi Chitti were prepared and injured Phoolnath Singh and Shailendra Singh were taken to the P.H.C. where their injuries were examined on the same day at about 8.10 and 8.30 p.m.

5. The investigation of the case was handed-over to Sub-Inspector Narendra Paratap Singh, who visited the place of occurrence, prepared site plan, collected blood stained & plain soil from the spot and prepared fard. After recording the statements of informant and other witnesses, he found the case established against the appellant and other accused persons under Section 307, 324, 323, 504, 506 IPC and submitted charge sheet.

6. The learned court concerned, took cognizance of the offence and after complying with the provisions of Section 207 Cr.P.C, committed the case to the Court of Sessions for trial.

7. The learned trial court framed the charge under Sections 307, 324 read with Section 34 IPC against them on the basis of material on record which was read-over and explained to the appellants. They did not plead guilty but claimed for trial.

8. In support of its case, prosecution examined, P.W.1 Mushafir Singh, who is informant; P.W.2 Bal Bodh Mishra; P.W. 3 the injured Phoolnath Singh; P.W. 4 Dr. K.S. Rai; P.W.5 S.I. Narendra Pratap Singh, Investigating Officer; P.W. 6 head constable Umashankar and P.W.7 constable Bhagwan Yadav.

9. After conclusion of prosecution evidence statement of appellants under Section 313 Cr.P.C. were recorded in which they stated the incident to be false and witnesses to be inimical. They did not adduce any evidence in defence.

10. After hearing the arguments for accused/appellants as well as the State, learned trial court passed the impugned judgment dated 25.09.1984.

11. Being aggrieved with the conviction and sentence, this criminal appeal has been preferred by the appellants but owing to the death of appellant no.1 Dular Singh during pendency of appeal, his appeal was abated.

12. Heard learned counsel for appellant no. 2 Pakhandi Singh as well as Sri Rajeshwar Singh, learned A.G.A.-I for State and perused the record.

13. Learned counsel for the appellant submits that he is innocent and has falsely been implicated in this case. In this case, there was dispute relating to entering of buffaloes in the paddy field of the informant. There was no any intention to kill the injured person but during the course of altercation, the incident took place in which injuries to Shailendra Singh and Phoolnath Singh were said to have been caused by present appellant and Dular Singh. Further submits that the present appellant Pakhandi is said to have caused injury to Sailendra Singh with gadasa but the injuries are not on vital parts of the body and not likely to cause death of the injured. In this way, the offence under Section 307 IPC cannot be said to be made out against him. At the most, it may extend to the limit of Section 324 IPC. In relation to injuries of Phoolnath Singh out of which one injury was on his head was caused by the appellant Dular Singh, who has already died during pendency of this appeal. The incident took place on 2.10.1983 and till now 42 years have elapsed and appellant has become aged about more than 70 years and suffering from old age ailments, therefore, no purpose will be served by sending him to jail to serve the sentence. During trial he remained in jail, therefore, he be released on the period already undergone and some fine may be imposed as compensation to be paid to the injured or surviving heir.

14. Learned A.G.A. vehemently opposed the contentions made by learned counsel for the appellant and submitted that in this case, the appellant with other co-accused appelalnt Dular Singh caused injuries to the Shailendra and Phoolnath Singh in furtherance of common intention, therefore, it cannot be said that there was no intention to kill and injuries said to be caused by the present appellant to Sailendra Singh were on non-vital parts of the body. His role cannot be said to be different from the other appellant Dular Singh who has already died. Though he could not dispute the fact that 42 years have elapsed from the date of incident till now and appellant has also become extremely old and also the fact that the nature of injuries caused to Sailendra were not fatal to life and not on vital parts of the body that is likely to cause death.

15. Before dealing with the contentions raised by learned counsel for the appellant, it will be convenient to take note of the evidences as adduced by the prosecution.

16. P.W. 1 Musafir Singh, informant, P.W. 2 Bal Bodh Mishra are eye witnesses of the incident, both of them have deposed before the learned trial court that incident took place on 02.10.1983 at about 5:00 PM in which the appellant Pakhandi made assault with gadasa to Shailendra Singh causing injuries to him, likewise about Dular Singh, who caused injuries to Phoolnath Singh. There is no any material contradiction in their testimony to shake their trustworthiness. P.W.3 Phoolnath Singh is injured witness. He has also deposed that Pakhandi assaulted him with gadasa and he sustained injuries.

17. P.W. 4 Dr. K.S. Rai has examined the injuries on the person of injured Shailendra Kumar Singh and Phoolnath Singh. He proved the injury reports and also the injuries said to have been caused on 2.10.1983 at about 5 p.m. These reports are exhibited as Ext. Ka-2 and Ka-3, those are on record. He has opined that the injuries were caused with sharp-edge weapon and were possible with instrument like Gadasa. Injuries were fresh. The injuries on the person of Shailendra Singh were simple in nature and the injury no. 1 was caused with sharp-edged weapon and others with lathi and all the injuries were simple in nature. In this way, this witness has proved the injuries sustained by the injured persons.

18. P.W. 5 S.I. Narendra Pratap Singh has proved the investigation including the fard prepared by him for collecting blood stained and plain soil from the place of occurrence. P.W. 6 Constable Umashankar Singh lodged the F.I.R. and proved chik report in his handwriting as Ext. Ka-10 and G.D. entry as Ext. Ka-11. he also proved Majroobi Chitthi as Ext. Ka-12 and 13. P.W. 7 Constable Bhagwan Yadav took the injured person to P.H.C. for medical examination.

19. Now the testimony of P.W. 1 Musafir Singh, P.W. 2 Bal Bodh Mishra and P.W. 3 Phoolnath Singh is to be scrutinized. P.W. 3 Phoolnath Singh has deposed before the learned trial court that the accused Dular Singh made assault on him with gadasa. The accused Pakhandi made assault on Shailendra Kumar Singh with gadasa. Shailendra Kumar Singh has not been examined by the prosecution. From the testimony of P.Ws. 1, 2 and 3 it is established that on the date of incident at about 10 a.m. in the paddy field of the informant, the buffaloes of accused-appellant Dular Singh entered. The buffaloes were expelled from the field by Himmat Bahadur, nephew of informant and while expelling the buffaloes, he beat them with danda. On the same day, at about 5 p.m. the nephew of informant Phoolnath Singh and his son Shailendra Kumar Singh were sitting in front of their door. In the meantime, the accused Dular Singh and Pakhandi Singh with gadasa in their hands, Mithilesh and Mangla Singh with lathis came there and complained them about beating of the buffaloes by Himmat Bahadur Singh. On this there arose dispute and altercation between both the parties and marpeet took place in which Phoolnath Singh and Shailendra Singh sustained injures said to be caused by Dular Singh and Pakhandi Singh. Other two accused persons said to have caused injuries with lathi. The injuries said to be caused to Phoolnath Singh were examined and proved in which injury no. 1, was incised wound scalp deep on the skull. Injury no. 2 was incised wound on back of right side on right shoulder joint. Injury no. 3 was incised wound on the back of right side below the injury no. 2. Injury no. 4 Reddish contusion on right knee joint. All the injuries were simple in nature as mentioned by the doctor while examining the injuries and preparing the injury report as Ext. Ka- 2. In this way, the injuries on the person of injured Phoolanath Singh cannot be said to be fatal to the life. Only injury no. 1 was incised wound scalp deep on the skull. Likewise on the person of Shailendra Kumar Singh, injury was incised wound on the back of right forearm. Injuries no. 2 and 3 reddish contusion on left hand and knee joint. These injuries were also simple in nature and not fatal to the life of the injured.

20. Thus, the nature of injuries caused to both the injured persons were simple in nature as mentioned by doctor in injury reports as Ext. Ka-2 and 3, those cannot be said fatal to their life and falling in the category of injuries that bring the case into purview of attempt to murder as contemplated for the offence under Section 307 IPC but these are falling within the purview of simple injuries caused with sharp edged weapon punishable under Section 324 IPC. The learned court concerned has convicted the present appellant guilty under Section 307, 324 read with Section 34 IPC and sentenced them accordingly. Though as per evidence and nature of injuries, offence under Section 307 read with Section 34 IPC is not established but it is under Section 324/34 IPC. Thus the finding recorded by the learned trial court to the extent of Section 307 IPC being erroneous is hereby set aside and conviction under Section 324 read with Section 34 IPC is confirmed.

21. So far as the sentence is concerned, the learned trial court has awarded rigorous imprisonment for a period of 5 years under Section 307 IPC. It is noteworthy that incident took place on 2.10.1983 when there was altercation relating to entry of buffalo in the field of informant and till now more than 42 years have elapsed and the appellant has become more than 70 years old and is suffering from old age ailments. During the trial he remained in jail, thereafter he was released on bail and now he is on bail.

22. In the case of Neelam Bahal & another v. State of Uttrakhand 2010 (2) SCC 229 where conviction and sentence of appellant u/s 307 IPC was converted into S.326 IPC simpliciter. Incident took place in the year 1987 and appellant was about 25 years old. Considering the facts and circumstances of the case, Hon'ble the Apex Court reduced the sentence to the period undergone by him. Likewise, in the case of Hussainbhai Asgarali Lokhandwala v. State of Gujarat dated 14 August 2024 in Criminal Appeal No. 1691 of 2023 Hon'ble Apex Court modified to the period of incarceration already undergone by him while maintaining the conviction where the entire incident had occurred in the heat of moment on 07.11.2000.

23. In considered opinion of this Court, in view of altercation between the parties relating to entry of buffalo in the field of informant, simple nature of injuries, the time gap & the age of appellant it will serve no purpose to send appellant to jail for serving out the remaining period of sentence, but it will be just and proper and will serve the purpose of justice to impose fine to be paid as compensation to the complainant/injured or his survivors.

24. Consequently, the appellant no.2 Pakhandi is directed to make payment of Rs.20,000/- as fine within a period of 60 days from today, that will be paid to the complainant/injured or his survivors as compensation. In case of default, the appellant no.2 Pakhandi will serve the sentence for a period of one year rigorous imprisonment.

25. Accordingly, this criminal appeal is partly allowed.

26. Copy of this judgment along-with original trial court record be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within two months. Office is directed to keep the compliance report on record. Order Date :- 22.8.2025 Anurag Singh ANURAG SINGH High Court of Judicature at Allahabad

Dular Singh and others) arising out of Crime No. 220 of 1983, under Section 307, 324, 504, 506 IPC, Police Station Mugalsarai, District Varanasi by which appellants (Dular Singh and Pakhandi Singh) by which learned court concerned has convicted and sentenced the appellants under section 307 IPC for 5 years rigorous imprisonment.

2. During pendency of this appeal, appellant no.1 Dular Singh has died, therefore, appeal on his part stood abated.

3. The prosecution case in brief is that on 2.10.1983 at about 10:00 a.m. in the paddy field of the informant, the buffaloes of the appellants entered and were expelled away from the field by beating with danda. At about 5 p.m. the nephew of the informant Phoolnath Singh and son Shailendra Singh were sitting in front of their house. In the meantime, Dular Singh, Pakhandi Singh armed with gadasa. Mithilesh and Mangla Singh armed with lathi came there and complained about beating of the buffaloes with danda, on objection, Pakhandi Singh exhorted to kill, on this Dular Singh and Pakhandi with intention to kill him assaulted with Gadasa and others also made assault with lathi causing injuries to Shailendra Singh and Phoolnath Singh. Tahreer was written by informant Mushafir Singh and F.I.R. was lodged on the same day at police station concerned.

4. Majrubi Chitti were prepared and injured Phoolnath Singh and Shailendra Singh were taken to the P.H.C. where their injuries were examined on the same day at about 8.10 and 8.30 p.m.

5. The investigation of the case was handed-over to Sub-Inspector Narendra Paratap Singh, who visited the place of occurrence, prepared site plan, collected blood stained & plain soil from the spot and prepared fard. After recording the statements of informant and other witnesses, he found the case established against the appellant and other accused persons under Section 307, 324, 323, 504, 506 IPC and submitted charge sheet.

6. The learned court concerned, took cognizance of the offence and after complying with the provisions of Section 207 Cr.P.C, committed the case to the Court of Sessions for trial.

7. The learned trial court framed the charge under Sections 307, 324 read with Section 34 IPC against them on the basis of material on record which was read-over and explained to the appellants. They did not plead guilty but claimed for trial.

8. In support of its case, prosecution examined, P.W.1 Mushafir Singh, who is informant; P.W.2 Bal Bodh Mishra; P.W. 3 the injured Phoolnath Singh; P.W. 4 Dr. K.S. Rai; P.W.5 S.I. Narendra Pratap Singh, Investigating Officer; P.W. 6 head constable Umashankar and P.W.7 constable Bhagwan Yadav.

9. After conclusion of prosecution evidence statement of appellants under Section 313 Cr.P.C. were recorded in which they stated the incident to be false and witnesses to be inimical. They did not adduce any evidence in defence.

10. After hearing the arguments for accused/appellants as well as the State, learned trial court passed the impugned judgment dated 25.09.1984.

11. Being aggrieved with the conviction and sentence, this criminal appeal has been preferred by the appellants but owing to the death of appellant no.1 Dular Singh during pendency of appeal, his appeal was abated.

12. Heard learned counsel for appellant no. 2 Pakhandi Singh as well as Sri Rajeshwar Singh, learned A.G.A.-I for State and perused the record.

13. Learned counsel for the appellant submits that he is innocent and has falsely been implicated in this case. In this case, there was dispute relating to entering of buffaloes in the paddy field of the informant. There was no any intention to kill the injured person but during the course of altercation, the incident took place in which injuries to Shailendra Singh and Phoolnath Singh were said to have been caused by present appellant and Dular Singh. Further submits that the present appellant Pakhandi is said to have caused injury to Sailendra Singh with gadasa but the injuries are not on vital parts of the body and not likely to cause death of the injured. In this way, the offence under Section 307 IPC cannot be said to be made out against him. At the most, it may extend to the limit of Section 324 IPC. In relation to injuries of Phoolnath Singh out of which one injury was on his head was caused by the appellant Dular Singh, who has already died during pendency of this appeal. The incident took place on 2.10.1983 and till now 42 years have elapsed and appellant has become aged about more than 70 years and suffering from old age ailments, therefore, no purpose will be served by sending him to jail to serve the sentence. During trial he remained in jail, therefore, he be released on the period already undergone and some fine may be imposed as compensation to be paid to the injured or surviving heir.

14. Learned A.G.A. vehemently opposed the contentions made by learned counsel for the appellant and submitted that in this case, the appellant with other co-accused appelalnt Dular Singh caused injuries to the Shailendra and Phoolnath Singh in furtherance of common intention, therefore, it cannot be said that there was no intention to kill and injuries said to be caused by the present appellant to Sailendra Singh were on non-vital parts of the body. His role cannot be said to be different from the other appellant Dular Singh who has already died. Though he could not dispute the fact that 42 years have elapsed from the date of incident till now and appellant has also become extremely old and also the fact that the nature of injuries caused to Sailendra were not fatal to life and not on vital parts of the body that is likely to cause death.

15. Before dealing with the contentions raised by learned counsel for the appellant, it will be convenient to take note of the evidences as adduced by the prosecution.

16. P.W. 1 Musafir Singh, informant, P.W. 2 Bal Bodh Mishra are eye witnesses of the incident, both of them have deposed before the learned trial court that incident took place on 02.10.1983 at about 5:00 PM in which the appellant Pakhandi made assault with gadasa to Shailendra Singh causing injuries to him, likewise about Dular Singh, who caused injuries to Phoolnath Singh. There is no any material contradiction in their testimony to shake their trustworthiness. P.W.3 Phoolnath Singh is injured witness. He has also deposed that Pakhandi assaulted him with gadasa and he sustained injuries.

17. P.W. 4 Dr. K.S. Rai has examined the injuries on the person of injured Shailendra Kumar Singh and Phoolnath Singh. He proved the injury reports and also the injuries said to have been caused on 2.10.1983 at about 5 p.m. These reports are exhibited as Ext. Ka-2 and Ka-3, those are on record. He has opined that the injuries were caused with sharp-edge weapon and were possible with instrument like Gadasa. Injuries were fresh. The injuries on the person of Shailendra Singh were simple in nature and the injury no. 1 was caused with sharp-edged weapon and others with lathi and all the injuries were simple in nature. In this way, this witness has proved the injuries sustained by the injured persons.

18. P.W. 5 S.I. Narendra Pratap Singh has proved the investigation including the fard prepared by him for collecting blood stained and plain soil from the place of occurrence. P.W. 6 Constable Umashankar Singh lodged the F.I.R. and proved chik report in his handwriting as Ext. Ka-10 and G.D. entry as Ext. Ka-11. he also proved Majroobi Chitthi as Ext. Ka-12 and 13. P.W. 7 Constable Bhagwan Yadav took the injured person to P.H.C. for medical examination.

19. Now the testimony of P.W. 1 Musafir Singh, P.W. 2 Bal Bodh Mishra and P.W. 3 Phoolnath Singh is to be scrutinized. P.W. 3 Phoolnath Singh has deposed before the learned trial court that the accused Dular Singh made assault on him with gadasa. The accused Pakhandi made assault on Shailendra Kumar Singh with gadasa. Shailendra Kumar Singh has not been examined by the prosecution. From the testimony of P.Ws. 1, 2 and 3 it is established that on the date of incident at about 10 a.m. in the paddy field of the informant, the buffaloes of accused-appellant Dular Singh entered. The buffaloes were expelled from the field by Himmat Bahadur, nephew of informant and while expelling the buffaloes, he beat them with danda. On the same day, at about 5 p.m. the nephew of informant Phoolnath Singh and his son Shailendra Kumar Singh were sitting in front of their door. In the meantime, the accused Dular Singh and Pakhandi Singh with gadasa in their hands, Mithilesh and Mangla Singh with lathis came there and complained them about beating of the buffaloes by Himmat Bahadur Singh. On this there arose dispute and altercation between both the parties and marpeet took place in which Phoolnath Singh and Shailendra Singh sustained injures said to be caused by Dular Singh and Pakhandi Singh. Other two accused persons said to have caused injuries with lathi. The injuries said to be caused to Phoolnath Singh were examined and proved in which injury no. 1, was incised wound scalp deep on the skull. Injury no. 2 was incised wound on back of right side on right shoulder joint. Injury no. 3 was incised wound on the back of right side below the injury no. 2. Injury no. 4 Reddish contusion on right knee joint. All the injuries were simple in nature as mentioned by the doctor while examining the injuries and preparing the injury report as Ext. Ka- 2. In this way, the injuries on the person of injured Phoolanath Singh cannot be said to be fatal to the life. Only injury no. 1 was incised wound scalp deep on the skull. Likewise on the person of Shailendra Kumar Singh, injury was incised wound on the back of right forearm. Injuries no. 2 and 3 reddish contusion on left hand and knee joint. These injuries were also simple in nature and not fatal to the life of the injured.

20. Thus, the nature of injuries caused to both the injured persons were simple in nature as mentioned by doctor in injury reports as Ext. Ka-2 and 3, those cannot be said fatal to their life and falling in the category of injuries that bring the case into purview of attempt to murder as contemplated for the offence under Section 307 IPC but these are falling within the purview of simple injuries caused with sharp edged weapon punishable under Section 324 IPC. The learned court concerned has convicted the present appellant guilty under Section 307, 324 read with Section 34 IPC and sentenced them accordingly. Though as per evidence and nature of injuries, offence under Section 307 read with Section 34 IPC is not established but it is under Section 324/34 IPC. Thus the finding recorded by the learned trial court to the extent of Section 307 IPC being erroneous is hereby set aside and conviction under Section 324 read with Section 34 IPC is confirmed.

21. So far as the sentence is concerned, the learned trial court has awarded rigorous imprisonment for a period of 5 years under Section 307 IPC. It is noteworthy that incident took place on 2.10.1983 when there was altercation relating to entry of buffalo in the field of informant and till now more than 42 years have elapsed and the appellant has become more than 70 years old and is suffering from old age ailments. During the trial he remained in jail, thereafter he was released on bail and now he is on bail.

22. In the case of Neelam Bahal & another v. State of Uttrakhand 2010 (2) SCC 229 where conviction and sentence of appellant u/s 307 IPC was converted into S.326 IPC simpliciter. Incident took place in the year 1987 and appellant was about 25 years old. Considering the facts and circumstances of the case, Hon'ble the Apex Court reduced the sentence to the period undergone by him. Likewise, in the case of Hussainbhai Asgarali Lokhandwala v. State of Gujarat dated 14 August 2024 in Criminal Appeal No. 1691 of 2023 Hon'ble Apex Court modified to the period of incarceration already undergone by him while maintaining the conviction where the entire incident had occurred in the heat of moment on 07.11.2000.

23. In considered opinion of this Court, in view of altercation between the parties relating to entry of buffalo in the field of informant, simple nature of injuries, the time gap & the age of appellant it will serve no purpose to send appellant to jail for serving out the remaining period of sentence, but it will be just and proper and will serve the purpose of justice to impose fine to be paid as compensation to the complainant/injured or his survivors.

24. Consequently, the appellant no.2 Pakhandi is directed to make payment of Rs.20,000/- as fine within a period of 60 days from today, that will be paid to the complainant/injured or his survivors as compensation. In case of default, the appellant no.2 Pakhandi will serve the sentence for a period of one year rigorous imprisonment.

25. Accordingly, this criminal appeal is partly allowed.

26. Copy of this judgment along-with original trial court record be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within two months. Office is directed to keep the compliance report on record. Order Date :- 22.8.2025 Anurag Singh ANURAG SINGH High Court of Judicature at Allahabad