Allahabad High Court
Siri Harijan And Another vs State on 31 August, 2022
Bench: Sunita Agarwal, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 16.2.2022 Delivered on 31.8.2022 AFR Court No. - 39 Case :- CRIMINAL APPEAL No. - 1102 of 1987 Appellant :- Siri Harijan And Another Respondent :- State Counsel for Appellant :- S.N. Srivastava,Anirudh Pratap Singh Rathor,Jigyasa Singh,Rajeshwari Singh Counsel for Respondent :- A.G.A. Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Justice Sunita Agarwal)
1. Heard Ms. Jigyasa Singh and Ms. Rajeshwari Singh learned Advocates for the appellants and Sri Rupak Chaubey learned AGA for the State-respondents.
2. This appeal is directed against the judgment and order dated 16.12.1986 passed by the 2nd Additional Sessions Judge, Ghazipur in Sessions Trial No. 68 of 1986 (State vs. Siri Harijan and Sripat Harijan) whereby appellants Siri Harijan and Sripat Harijan have been held to be guilty for the offence punishable under Section 302 readwith Section 34 IPC and have been convicted and sentenced to undergo life imprisonment.
3. The prosecution case starts with the first information report lodged on a report scribed by Head Moharrir Sri Shyam Narain Yadav on the statement of deceased Dhorha Harijan. The said report which was lodged on 7.1.1986 at about 10:10 AM for the incident which occurred on the said date at about 7:00 AM, was a Non-cognizable report registered as NCR No. 3/86 under Sections 323/504 IPC. The report was scribed on the statement of the injured Dhorha (later deceased) stating that the assailants/accused were his own sons who were living separately from him. The deceased was residing with his brother Pati Ram at the time of the incident, the accused assaulted him with Lathis while saying that if their shares were not given, they would kill him. On hue and cry raised by the informant (injured himself), many people came to save him.
4. The written report scribed by the Head Moharrir is signed by him and had been proved in his deposition as PW-4. The scribe of the report namely Head Moharrir as PW-4 stated that he was posted as Head Moharrir on 7.1.1986 in the police station Mardah/concerned. At about 10:10 AM, the report was lodged on the oral information given by the injured Dhorha Harijan son of Jiut Harijan, who had later died. It was stated by PW-4 that whatever was told to him was scribed and the injured was conscious and was speaking clearly. PW-4 further stated that the said report was registered as NCR No. 3 in his handwriting and signature and the copy of Check FIR was in his handwriting and signature proved as Exhibit Ka-4. He further stated that whatever was written in the report was transcribed as Check FIR and it was read over to the informant who put his thumb impression thereafter. He stated that the thumb impression of the deceased was existing on the FIR and the copy thereof had been proved by him. The case was entered in GD at Rapat No. 11 at about 10:10 AM on the said date. The original GD was brought in the Court and the copy thereof was filed on record proved as Exhibit Ka-5 being in handwriting and signature of Constable Moharrir Ramlala Yadav. It was stated by PW-4 that the injuries found on the person of the deceased were entered in the GD. After making entries, the injured was sent for medical examination to the Government Hospital, Mardah. On 7.1.1986 at about 16:10 hours, a memo was received from the doctor about the death of the injured which was entered in GD at Rapat No. 25 at about 16:10 hours in his handwriting and signature. The original GD was brought in the Court and the copy thereof was filed and proved as Exhibit Ka-6.
PW-4 stated that on the basis of information of the death, the case was converted into an offence under Section 304 IPC from Section 323 IPC and the entry in this regard could be found in the GD. The original FIR which was dictated by deceased Dhorha was proved as Exhibit Ka-7 being in the handwriting and signature of PW-4. PW-4 was further confronted as to how the injured could reach at the police station. He stated that the injured Dhorha came alongwith Pati Ram, his brother on his own and the S.O. of the police station was present at that time. He was confronted about the entries in the GD and the inspection of GD by the Circle Officer. He was further confronted about the contents of the written report and PW-4 asserted that whatever was dictated by Dhorha (deceased) was written by him. Constable Shiv Mani Yadav took the injured for medial examination and his return entry was recorded on the same day at about 12:25 PM. At the time of entry of his return to the police station, the said Constable had filed the injury report of injured Dhorha which fact was entered in the GD, however, injury report was not copied in the GD. PW-4 was further confronted on this statement and he stated after going through the GD, that the injury report was not filed rather the Constable told that the doctor would provide injury report later.
5. The Investigating Officer S.I. Shyam Sundar Mishra examined as PW-5 stated that he was posted in the police station Mardah on 7.1.1986 as Sub-Inspector. On a memo of the doctor R.S. Prasad, Medical Officer, P.H.C., Mardah received at about 16:10 hours, the investigation was handed over to him after conversion of the case. He started investigation on 7.1.1986 itself and went to P.H.C. Mardah; found the dead body of deceased Dhorha and took it in his possession; the inquest was conducted and the inquest report was proved as Exhibit Ka-8 in the handwriting and signature of PW-5. Other related papers were proved as Exhibits Ka-9 to Ka-13 by PW-5 being in his handwriting and signature. The dead body was sealed and sent for postmortem. PW-5 stated that brother of the deceased namely Pati Ram was present in the hospital and his statement was recorded in the hospital itself. The statement of one more person named as Deena was also recorded and PW-5 left to the place of the incident and conducted raid for arrest of the accused who had run away. The spot inspection of the site in question was made on the next date, i.e. on 8.1.1986 at about 6:30 AM and the site plan was prepared which was proved as Exhibit Ka-14 being in the handwriting and signature of PW-5. Both the accused were arrested on the said date itself on the report of the informer and their statements were recorded and they were lodged in the lockup. After completion of the investigation, the charge sheet was submitted as Exhibit Ka-15 on 9.1.1986. PW-5 was confronted about the injury report in cross and he stated that the injury report was received at the police station before he proceeded to the hospital and it was given to the Head Constable Shyam Narain Yadav (PW-4) and its entry was made in the GD. He further stated that he reached at the hospital on 7.1.986 at about 16:30 hours and conducted inquest. PW-5 was further confronted about the statement of Pati Ram (PW-1) recorded under Section 161 Cr.P.C. and the topography of the place of the incident. The suggestion that the place of the incident indicated by him in the spot memo was his own creation was categorically denied by PW-5. Further suggestion that he made investigation in order to cover up the case and examined only the interested witnesses was also denied.
6. PW-6 is the doctor who had conducted the postmortem. As per his deposition, body was brought by two constables C.P. No. 508 Iqbal Ahmad and C.P. No. 57 Sambhu Nath in sealed state, they identified the body and then postmortem was conducted. As per the external condition, the age of deceased was estimated as 55 years and the time of death about one day. It was an average built body, rigor mortis was present in all four limbs.
Ante-mortem injuries found on the person of the deceased are:-
"(1) Abrasion on tip of vertex.
(2) Contusion on the left side of the chest.
(3) Contusion on the left upper arm.
(4) Contusion on the left thigh.
(5) Abrasion on the left leg.
(6) Fracture of left humerus shaft and neck of left femur and left ribs."
On internal examination, contusion was found at the left side of the chest, third to eighth ribs were found broken and lacerated. Left lung was lacerated, half litre blood was present in the chest cavity. Contusion was found on the front wall of the stomach and one litre blood was present in its cavity. The gall bladder and liver were lacerated, Urinary bladder was empty, white liquid material was present in the stomach.
The cause of death, mentioned in the postmortem report, was shock & Hemorrhage as a result of ante-mortem injuries.
PW-6 proved that the postmortem report was prepared by him in his own handwriting and signature and it was proved as Exhibit Ka-16. The clothes of deceased which were sealed and given to the Constable were marked as Material Exhibits ''I', ''II' and ''III'. PW-6 stated that there was a possibility of death of the deceased at about 3:45 PM on 7.1.1986 and the ante-mortem injuries were sufficient to cause death. He further stated that ante-mortem injuries could have been caused by Lathi.
7. In cross, PW-6 stated that the injury no. 2 (ante-mortem injury) was at the front of the chest and could be seen from the naked eyes. The injuries were sufficient to cause death. There was a pasty liquid in the stomach like flour and milk, which was undigested and could be on account of consumption of milk about 1 & ½ hours of death. The suggestion that the death was caused due to wrong treatment given to the deceased was categorically denied by PW-6.
8. PW-3 Dr. R.S. Prasad is the doctor who had examined the injured when he was brought to P.H.C. Mardah by the Constable CP No. 314 Shiv Nath Yadav. He stated that he was present in P.H.C. Mardah, posted as a Medical Officer and deceased Dhorha was brought by the aforesaid Constable at about 11:00 AM. His injuries were examined and the injuries found on the person of deceased have been described as under:-
"(1) Lacerated wound 4 cms x .5 cm on the right side of head scalp deep 13 cms above the right ear.
(2) Contused wound 9 cms x 2 cms with marked swelling 10 cms x 7 cms on the left upper Arm with fracture left upper arm bone.
(3) Multiple contusion on the back left side chest five in number (a) 19 cm x 2 cm (b) 10 cm x 21 cm (c) 16 cm x 2 cm (d) 23 cm x 2 cm (e) 11 cm x 2 cm suspected fracture left Rib.
(4) Multiple contusion on the left hip and buttock, six in number (a) 13 cm x 2 cm (b) 7 cm x 2 cm (c) 9 cm x 2 cm (d) 12 cm x 2 cm (e) 11 cm x 1 cm (f) cm x 2 cm. Reddish with mark tenderness.
(5) Abrasion 1 cm x 1 cm on the front of left leg.
(6) Lacerated wound 1 cm x 0.5 cm x 0.5 cm on the front of left leg 1 cm below the left knee.
(7) Abrasion 11.5 cm x 0.5 cm on the left leg. 2.5 cm below the injury no. (c)."
He stated that the injuries were fresh and looking to the nature of injuries, the injured was referred to the District Hospital, Ghazipur. All the injuries seem to have been caused by hard blunt object like Lathi and Danda. The injury report was proved as Exhibit Ka-1 being in his handwriting and signature and the thumb impression of deceased (injured) was also proved by PW-3. PW-3 stated that he also recorded the identification marks of the injured. As per his statement, the injuries could have been caused at around 7:00 to 8:00 AM on 7.1.1986. PW-3 stated that he treated the injured when he was in the hospital and the injured died at around 3:45 PM on 7.1.1986 in his hospital itself. The information of death was then given to the Station House Officer. The memo sent to the Police Station shown to PW-3 was proved as Exhibit Ka-2 being in his handwriting and signature. PW-3 stated that after preparation of the injury report, X-ray was advised and a separate memo was prepared for referring the injured to the District Hospital. The said memo was also proved as Exhibit Ka-3 being in his handwriting and signature by PW-3 who stated that thumb impression and identification marks of the deceased were noted therein. PW-3 stated that when injured was brought to the hospital, his condition was serious but he was conscious, his dying declaration was not recorded as the injured was referred to Ghazipur. After preparation of the injury report and referring the injured to Ghazipur, the first aid was given while the injured was admitted in P.H.C. Mardah. PW-3 was confronted about the treatment given to the injured and he stated that the injured remained in his hospital despite referring to the district hospital, Ghazipur as he was not in a condition to transport. He was further confronted that he did not give adequate treatment to the injured and there was no arrangement for blood transfusion. The District Hospital was about 25 kms. and he did not make any effort to take any help from the District Hospital. The suggestion that the injured had died because of lack of proper treatment and the injury report was prepared to cover up his fault was denied by PW-3.
9. PW-2 is the Constable Iqbal Ahmad who took the dead body for the postmortem. He stated that the body was handed over to the doctor at the Mortuary in sealed state and no one had touched it when it was in his custody.
10. The only witness of fact, i.e. the incident in question is PW-1 Pati Ram brother of deceased Dhorha. PW-1 stated that he was residing in Harijan Basti in the village and described the topography of the said colony. He stated that the people of Harijan Basti used to go to defecate on Puliya and Canal which was located near the Basti. His father had two sons, one of them was deceased Dhorha and the second one he himself. PW-1 was living separately for the last 15 years and before his death, Dhorha (deceased) separated from his sons. The accused (sons of the deceased) separated alongwith their family (wife and children) and Dhorha was left alone as he became old. The wife of Dhorha had predeceased him. When the accused persons had left Dhorha, being brother PW-1 had kept him and they were residing together. Dhorha was having 10 biswas of agriculture field and after he was separated, Dhorha was ploughing his field on his own. The accused persons were demanding the agricultural field of Dhorha and Dhorha used to say that since the accused were not paying money to him and hence they would get the field only when he was dead. The accused persons were, therefore, angry with their father Dhorha. A day prior to when Dhorha was murdered, in the evening, a scuffle took place between the accused persons and deceased Dhorha. The villagers intervened and ended the fight.
PW-1 then stated that on the fateful day in the early morning, after the Sun rise, Dhorha (deceased) went to defecate towards the Canal. After ten minutes, he (PW-1) also went towards Puliya to defecate. When he reached at the Puliya, he saw Dhorha on the Southern side of Puliya at the West corner of the Canal while he was washing his hands. PW-1 sat near Puliya after crossing it to defecate and within a short time, he heard cries of Dhorha "save, life is in danger". PW-1 stated that on hearing cries of Dhorha, he immediately washed his hands at the Puliya and went towards him. He saw accused Siri and Sripat assaulting their father Dhorha by Lathis and he started shouting. Hearing the noise, the people of Harijan Basti namely Deena, Ramvat Janu and the wife of PW-1 ran towards the place of the incident. The accused persons had run away towards South of the Canal at the Patri after injuring Dhorha. They arranged a cot, kept Dhorha in it and took him to the police station Mardah. Dhorha (later deceased) was conscious and was speaking when he was brought to the police station. The report was dictated by Dhorha and the Head Moharrir read it over to him and got thumb impression of Dhorha. The injuries of deceased were examined by the Head Moharrir and he was sent to the Government Hospital along with the Constable where doctors had treated him. Dhorha died on the same day in the hospital at about 4:00 PM. The statement of PW-1 was recorded by the Investigating Officer in the hospital at about 7:00-8:00 PM.
11. In cross, PW-1 stated that deceased Dhorha was elder to him and they were living separately for about 10-12 years with their families. The wife of deceased Dhorha had predeceased him (died about two years prior to their separation). PW-1 then goes on to say that he himself was not doing any work and was in his home at the time of the incident otherwise he was doing the work of ''Harwahi'. He then stated that at the time of the incident the work of irrigation of field had started but it was being done during day time. PW-1 further stated that Dhorha was physically fit and was earning on his own. He was also doing labour work. PW-1 stated that he did not remember as to whether Dhorha was working at someone else's place a day prior to the incident.
PW-1 then stated that the houses of accused Siri and Sripat was nearby and in between their houses, there were fields of both the brothers. The house in which the accused persons were living was of deceased Dhorha in which he was residing prior to their separation. The houses of accused persons was in the same Chak which belonged to the deceased. The said house was constructed about 6-7 years prior to the incident. In the house in which PW-1 was living was constructed about 2-3 years prior to his deposition. PW-1 then stated that the Abadi was from the time of their ancestors and they were all residing in the same Abadi. At the time of the incident, wheat crop sown by the deceased was standing in the field which was irrgated about 2-4 days prior from the tube well of one Kalpnath Singh. A fight between the deceased and his sons (accused) occurred one day prior to the incident in his presence and other villagers were also present, the time was around 5:00 PM. PW-1 stated that the incident of fight occurred in the field where wheat was sown and it was lasted for around half an hour. The crop was damaged near the Medh for about one Laththa. Before the fight started, Dhorha was at the door of his house and the accused Siri was at his door. They all moved towards each other carrying Lathi and started pushing each other in the field. On the intervention of villagers no untoward incident had occurred. No report of the said incident, however, was lodged.
12. On a suggestion given to PW-1, he stated that he and deceased Dhorha were having good relation and deceased was residing with him after his sons had thrown him out of his house. It was admitted by PW-1 that the wheat crop was harvested by him after the death of Dhorha as his sons were lodged in the jail. He then stated that he had no concern with the field of Dhorha and he never had any concern with it during the lifetime of Dhorha. He always intended that after death of Dhorha, his field would go to his family and the said fact was also told by the deceased to his daughter.
PW-1 then stated that the Investigating Officer came on the spot on the second day of the incident and the place where the previous incident had occurred in the evening was also shown to him. PW-1 stated that people in the village normally would wake up around 4:00 AM and everyone would go to their field after being freshen up. However, in winters, they go to the field to work at around 8:00 AM. He then described the place of the incident and stated that he saw deceased washing his hands when he reached at the place of the incident. PW-1 was further confronted about the presence of other persons at the pumping set and the place where he stated that he went to defecate. He stated that as soon as he heard the cries of deceased, he rushed towards him as he had identified the voice of his brother. He saw the accused persons hitting the deceased and he started shouting while standing at Puliya. The accused were hitting the deceased at a short distance from Puliya and other persons had reached within minutes of his cries. PW-1 further described that deceased was hit for about 7-8 times from all sides by Lathi by both the accused and he fell down. When villagers reached, the accused persons ran away. On further confrontation PW-1 stated that he was shouting while standing at Puliya and did not make any effort to save the deceased as he was empty hand. He and deceased both went to defecate and no one else was there.
About the injuries, PW-1 stated that the deceased got injuries on his chest, back, hands, skull and legs. He did not remember as to whether blood oozed out from the wounds fell on the ground. PW-1 then stated that they were at the place of the incident for about half an hour and then went to the police station, Dhorha was conscious. The police station was about two kms. from his house and he could not remember as to how much time was taken to reach there. Other villagers namely Deena, Saheb were accompanying him. When they reached at the police station, the Investigating Officer was not present. The report was scribed by the Head Moharrir and after taking thumb impression of the injured, the injuries were examined. They remained at the police station for about half an hour and then were sent to the hospital. The hospital was around 1 km. from the police station and they reached there at around 10:45 AM. The doctor treated the deceased from 11:00 AM to 4:00 PM and PW-1 could not explain as to what treatment was given but stated that he and Deena were present in the hospital. PW-1 stated that the deceased was conscious from 11:00 AM till 3:30 PM and was speaking but about 3:30 PM he stopped speaking and then doctors made a lot of efforts to save him. The deceased could not be taken to the District Hospital as he had died.
13. On further confrontation, PW-1 admitted that apart from two accused persons there was no other heir of deceased Dhorha and stated that he had no idea as to whether deceased would get the property after conviction. He further stated that he was doing pairvi of the case and engaged a counsel and he was not aware as to whether the accused would be convicted. The suggestion that he had falsely implicated the accused persons in order to grab the field of Dhorha or to get his name mutated on the record was categorically denied by PW-1. The suggestion that he had sown the field of Dhorha was also denied and it was categorically stated that the field was now Parti (barren). The suggestion that he had planned murder of his brother Dhorha in the night in order to grab his landed property and house and falsely implicated the accused persons (both his sons) for that reason, was categorically denied by PW-1. The suggestion that he ensured the death of Dhorha by managing wrong treatment in the hospital was also denied. The suggestion that the injury reports were fabricated at his instance in order to cover up the wrong treatment given by the doctor was further denied by PW-1. PW-1 had denied the suggestion that he had given wrong statement and that he did not witness the incident.
14. Before proceeding further, we may record that appellant Siri Harijan had died and the appeal on his behalf has been abated. Only appellant Sripat Harijan is before us who has been lodged in jail on 2.12.2021 in execution of the non-bailable warrant issued by this Court.
15. It is argued by the learned counsel for the appellant that it was a case of false implication of the accused persons/appellants herein and the first informant was instrumental in it. The submission is that the deceased was residing with the first informant who was his brother as he had separated from his two sons was admitted by the first informant in his deposition. The agricultural field of the deceased was in his possession and he was ploughing the field after the incident. The dispute between the accused (sons) and deceased (father) was about agricultural field which would have gone to the share of two sons after the death of the deceased. However, in order to grab the landed property of the deceased not only the agricultural field but the house occupied by the appellants, the first informant, brother of the deceased, hatched the conspiracy in which he got the deceased murdered and managed to put his sons behind the jail. It was argued that it was admitted by the informant that the agricultural field of the deceased was in his possession after the incident and the Wheat crop sown by the deceased was harvested by the informant.
16. It was further argued that in any case, the injuries found on the person of the deceased were mostly simple in nature and there were suspected fractures on injury nos. 2, 3 and 4 which was never ascertained as no X-ray was done. The doctor at P.H.C. namely PW-3 admitted that he though had referred the deceased to the District Hospital, Ghazipur which was about 25 kms. from P.H.C., Mardah but the deceased was never taken to the District Hospital. It is, thus, clear that the deceased had died because he could not get proper and timely medical intervention. The act of the informant in taking the deceased to the police station rather than taking him straight to the hospital also added to the worsening condition of the deceased. It is admitted by the informant that it took about one hour to take the deceased to the hospital to get even first aid and in the intervening period, the deceased himself narrated the incident to the Head Moharrir at the police station.
17. The submission is that from the statement of the informant and the doctor (PW-3), it is evident that the deceased was conscious and speaking throughout, till he had died at about 3:45 PM. Looking to the nature of the injuries and turn of events after the injuries were caused to the deceased, it is evident that the injuries were not fatal in nature. The deceased had succumbed to the injuries only on account of the delay in getting the first aid and lack of proper treatment at the P.H.C. Mardah. It was then submitted that even in the report dictated by the deceased, he only mentioned it to be a case of assault by Lathi and the Non-cognizable report was lodged under Section 323/504 IPC, accordingly.
It was, thus, argued by the learned counsel for the appellant that the conviction of the surviving appellant Sripat Harijan for the offence under Section 302 IPC with the aid of Section 34 IPC is too harsh. From any angle, the offence committed by the appellant Sripat Harijan does not fall beyond the scope of the offence under Section 304 Part II, i.e. of causing injury with the knowledge that it was likely to cause death but without any intention to cause death.
The contention is that the conviction of the appellant under Section 302 IPC is a result of misappreciation of the evidence on record. The appellant had suffered incarceration of more than two years as he also remained in jail for some time during the course of trial. It was contended that the appellants is entitled to be released from jail by condoning his period of sentence to the period undergone by converting the conviction from Section 302 IPC to Section 304 Part II IPC.
18. Learned A.G.A., on the other hand, vehemently argued that the facts of the present case would bring it under Section 300 ''thirdly' as it is proved from the record that the accused persons attacked the deceased with an intention to inflict such bodily injury which in the ordinary course of nature would cause death. As all four elements of Section 300, i.e. the presence of a bodily injury, the nature of the injury being fatal, the intention of the accused to inflict that particular bodily injury and further that the injuries were of the type which were sufficient to cause death in the ordinary course of nature, were present and established by the prosecution, the offence is ''murder' under Section 300 ''thirdly'. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that was sufficient to cause death in the ordinary course of nature. It does not even matter that there is no knowledge that the act of that kind will be likely to cause death. It is argued that once the intention to cause bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question remains whether the injury was sufficient in the ordinary course of nature to cause death.
Reliance is placed on the decision of the Apex Court in the case of Virsa Singh vs. State of Punjab1 to argue that looking to the nature of injuries and the turn of events thereafter, the conviction of appellant Sripat Harijan for the offence under Section 302 with the aid of Section 34 IPC is perfectly justified. No interference may be made in the decision of the trial court in this regard.
19. As regards, the submission of the learned counsel for the appellant that it was a case of false implication of the appellant, it was argued by the learned A.G.A. that there is an eye-witness account and the presence of eye-witness on the spot was natural. The place of the incident was proved by the eye-witness as also in the enquiry made by the Investigating Officer. No contrary suggestion could be given to any of the witnesses of making a false investigation.
It was further argued that the contention of the learned counsel for the appellant of false implication at the hands of the informant is hypothetical, inasmuch as, even after death and conviction of two sons of the deceased, his landed property and house of the accused could not have gone in the hands of the informant. As both the sons of the deceased were alive, by mere implication of them in the murder of their father, they would not be denuded of the landed property of their father. It has come on record that apart from two sons, there was no other heir of the deceased and in any case, the landed property and the house would remain in the name of the accused persons, being sons of the deceased. In any case, the informant could not have derived any benefit from the death of his brother. Even otherwise, the deceased was living with his brother, the informant for a period of more than two years before the date of the incident. No evidence could be brought by the accused person for drawing any adverse inference against the informant of planning murder of his brother and false implication of the accused persons.
20. Having heard learned counsels for the parties and perused the record, as regards the place of the occurrence and the manner in which the incident had occurred, they stood proved with the statement of the informant, formal witnesses and material circumstances brought on record. The presence of eye-witness (PW-1) on the spot cannot be doubted as the deceased was residing with the informant/eye-witness. The time of the incident and the reason for presence of the informant at the place of the incident presents a natural picture. The informant had categorically stated that both sons of the deceased were annoyed with him and thrown the deceased out of his house. The deceased, thereafter, was living with the informant (PW-1) and the agricultural property was in the possession of the deceased. It was being sown by the deceased who was physically fit to look after his field. Both the sons were fighting for the agricultural field and the deceased had denied to give it to his sons. When the sons were fighting with him, the deceased told them that they would get the field only after his death. A day prior to the incident, both the sons fought with their father (the deceased) but the said incident did not aggravate on account of the intervention of villagers. As it was an incident of fight between father and sons, no report was lodged. It is proved from the record that the information of the incident in question was given by the deceased himself who was injured and conscious at the time when the non-cognizable report was lodged under Section 323/504 IPC. The Head Moharrir (PW-4) had proved that he himself scribed the report on the oral statement of the deceased (injured). The deceased had named his two sons Siri Harijan and Sripat Harijan being the assailants and categorically stated that he was hit by Lathi and the reason for assault was the demand of share in the land by his sons. The report dictated by the injured/deceased itself shows that his sons were saying at the time of assaulting him that they would beat him more if he would not give them their shares. The deceased could be saved as many people reached at the spot. No contrary suggestion could be given to the Head Moharrir and the report lodged by the injured/deceased was proved.
21. In the above facts and circumstances of the case, the contention of the learned counsel for the appellant that it was a case of false implication of the appellants at the hands of the informant, brother of the deceased, is liable to be turned down. Once it is proved that the report was dictated by the injured himself and scribed by the Head Moharrir in the same language as was dictated to him, it cannot be said to be a false implication of the accused persons at the instance of the informant, by any stretch of imagination. There is no answer to the question as to why father would falsely implicate his two sons if he was injured by some stranger allegedly hired by his brother. It is not the case of the defence that the informant had himself attacked the deceased or injured him.
22. As regards the second submission with regard to the conviction of the appellant Sripat Harijan under Section 302 readwith Section 34 IPC, we are required to examine as to whether the act of the appellant in causing death of the deceased (his father) would amount to ''murder' within the meaning of Section 300 IPC or it is a case of ''culpable homicide which will not amount to murder' attracting punishment under Section 304 IPC. Further question is as to in which part of Section 304 IPC, the offence in question would be punishable, in case, the Court reaches at the conclusion that it was a case of 'culpable homicide not amounting to murder' and not 'murder'.
23. In order to ascertain the same, we are required to go through the legal principles governing the distinction between the provisions under Sections 300 and 302 of the Code on the one hand and Section 304 Part I and Part II of the Code on the other. Section 299 of the Code which deals with the definition of culpable homicide is also to be taken note of.
Sections 299 and 300 of the Indian Penal Code deal with the definitions of 'culpable homicide' and 'murder'; respectively. In terms of Section 299, 'culpable homicide' is described as an act of causing death:- (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from the reading of this provision, the first part of it emphasises on the expression ''intention' while the latter upon ''knowledge'. As has been noted in a catena of decisions, both these words denote positive mental attitudes of different degrees. The mental element in ''culpable homicide', i.e. the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the above three stated manners, it would be ''culpable homicide'.
Section 300, however, deals with ''murder'. Though there is no clear definition of ''murder' in Section 300 of the Code but as has been held by the Apex Court and reiterated in Rampal Singh vs. State of Uttar Pradesh2, ''culpable homicide' is the genus and ''murder' is its species and all ''murders' are ''culpable homicides' but all ''culpable homicides' are not ''murders'.
24. Another classification that emerges from the Code is "culpable homicide not amounting to murder", punishable under Section 304 of the Code. There are decisions which also deal with the fine line of distinction between the cases falling under Section 304, Part I and Part II.
25. Dealing with a matter, wherein the question for consideration was whether the offence established by the prosecution against the appellant therein was "murder" or "culpable homicide not amounting to murder", the Apex Court in Vineet Kumar Chauhan vs. State of Uttar Pradesh3 considered its earlier decision in the State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another4, wherein the then Justice R.S. Sarkaria brought out the points of distinction between the two offences under Sections 299 and 300 IPC, reiterating the law laid down in Virsa Singh Vs. State of Punjab5 and Rajwant Singh Vs. State of Kerala6. It was held therein that whenever a Court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder"; on the facts of a case, it will be convenient for it to approach the problem in three stages:- (i) the question to be considered, at the first stage, would be whether the accused has done an act by doing which he has caused the death of another; (ii) proof of such connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC is reached; (iii) the third stage is to determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable.
Further, if this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304 IPC. It was, however, clarified therein that these were only the broad guidelines to facilitate the task of the Court and not cast iron imperative.
26. In Aradadi Ramudu alias Aggiramudu vs. State through Inspector of Police, Yanam7, the question was for modification of sentence from Section 302 to Section 304 Part II. While answering the same, the Apex Court had considered the above noted decisions in Virsa Singh (supra) as also other decisions in line namely State of U.P. v. Indrajeet8; Satish Narayan Sawant vs. State of Goa9 and Arun Raj vs. Union of India10 to note that for modification of sentence from Section 302 to Section 304 Part II, not only should there be an absence of the intention to cause death, but also an absence of intention to cause such bodily injury that in the ordinary course of things was likely to cause death. [Reference Paragraph 16] Noticing the above noted decisions, in Rampal Singh (supra) the Apex Court had considered the distinction between the terms "murder" and "culpable homicide not amounting to murder". The observation in State of Andhra Pradesh Vs. Rayavarapu Punnayya (supra) was noted in paragraph '13' of Rampal Singh (supra) as under:-
"13. In the case of State of A.P. v. Rayavarapu Punnayya, this Court while clarifying the distinction between these two terms and their consequences, held as under: -
"12. In the scheme of the Penal Code, ''culpable homicide' is genus and ''murder' its species. All ''murder' is ''culpable homicide' but not vice versa. Speaking generally, .......''culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called ''culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as ''murder'. The second may be termed as ''culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is ''culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."
The guidelines laid down in its earlier decision in Phulia Tudu vs. State of Bihar11 had been noted therein to reiterate that the safest way of approach to the interpretation and application of these provisions (Sections 299 and 300) is to keep in focus the key words used in the various clauses of these sections. In paragraph '17', it was noted that :-
"17. Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to "murder". It is also "murder" when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to "culpable homicide amounting to murder". The Explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre- mediation. Where the offender whilst being deprived of the power of self- control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, "culpable homicide would not amount to murder". This Exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case."
It was observed in paragraph '21' in Rampal Singh (supra) that Sections 302 and 304 of the Code are primarily the punitive provisions. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is, thus, an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, i.e. (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really "murder", but mitigated by the presence of circumstances recognized in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular.
In paragraph '22' Rampal Singh (supra), it was observed that where the act is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the Exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed. (emphasis added) It was, thus, held therein that the distinction between two parts of Section 304 (Part I and Part II) is evident from the very language of this Section. While Part I is founded on the intention of causing the act by which the death is caused, the other is attracted when the act is done without any intention but with the knowledge that the act is likely to cause death.
It was further observed therein that it is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merit. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with the clear demarcation as to under what category of cases, the case at hand falls and accordingly, punish the accused.
27. Referring to an earlier decision in Mohinder Pal Jolly vs. State of Punjab12, it was noted in Rampal Singh (supra) that the distinction between two parts of Section 304 has been stated with some clarity therein which reads as under:-
"24. A Bench of this Court in the case of Mohinder Pal Jolly v. State of Punjab [1979 AIR SC 577], stating this distinction with some clarity, held as under :
"11. A question arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause "fourthly", then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not Part I."
As a guideline as to how the classification of an offence into either Part of Section 304 would be made, it was held in paragraph '25' as under:-
"25. ......xxxxxxxxxxxx.......This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of pre-meditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the ''principle of exclusion'. This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, ''culpable homicide amounting to murder'. Then secondly, it may proceed to examine if the case fell in any of the exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law........xxxxx............."
The following observations in paragraph '16' of the decision in Aradadi Ramudu alias Aggiramudu (supra) have been quoted in para '34' to state that while answering the question for modification of sentence from Section 302 of the Code to Part II of Section 304 of the Code, it has to be kept in mind that:-
"not only should there be an absence of the intention to cause death, but also an absence of intention to cause such bodily injury that in the ordinary course of things is likely to cause death."
28. Keeping in mind the guidelines laid down by the Apex Court, in the facts of the present case, the first step in analysis, would be to examine as to whether the appellant had committed an offence punishable under the substantive provisions of Section 302 of the Code, i.e. "culpable homicide amounting to murder".
29. To return a finding on the issue, we have to determine as to whether the act by which the death is caused would fall in any of the four Clauses detailed in Section 300 of the Code.
30. Proceeding in this way in the facts of the instant case, it may be noted that both the accused and the deceased were sons and father. Their relationship were sour as the deceased was evicted from his own house by his two sons. The house in which two sons were living was in the Chak (agricultural field) which was in the possession of the deceased. It has come on record that the house in which two sons were living was in the Abadi which was ancestral and after eviction from his own house, the deceased was living with his brother, the informant herein. The deceased was fit enough to look after his field and he was managing his field without the assistance of his brother. It has further come on record that both the sons were annoyed and demanding their shares in the field which also seem to be an ancestral property. It has come in the evidence of PW-1 (brother of the deceased) that both the sons were living in one house and the fields of two brothers namely the deceased and the informant were adjacent. The house which was in occupation of the informant and in which the deceased was living, was in the possession of the informant since the time of his grandfather. It was stated by PW-1 that in the Abadi in which they were living, their ancestors were also living and after death of their ancestors, it came in their occupation. It has come in the evidence of PW-1 that he was having three houses in the village and both the accused persons were living in one house belonging to the deceased which was built about 6-7 years prior to the incident. From the statement of PW-1, it seems that the landed property and the Abadi wherein the houses were built by two brothers belonged to their ancestors. The accused persons were demanding their shares in the agricultural property which was denied by their father namely the deceased and that was the reason for their annoyance.
31. A day before the incident, a fight broke between two warring parties (father and sons) but with the intervention of villagers, no untoward incident could occur. However, in the early morning on the next day both the brothers (sons of the deceased) went together to the place where the deceased used to go to defecate and hit him by Lathis while saying that they would beat him more if he would not give their shares in the landed property.
32. The injuries found on the person of the deceased as indicated in the injury report prepared by PW-3 (doctor) show that the deceased was beaten by Lathis all over his body. PW-1 has stated that both the sons namely the accused persons were beating the deceased from all four sides and injuries were caused to the deceased on his chest, back, hands, legs and a portion of skull was also lacerated. The injury no. 1, found on the right side of the head of the deceased seem to be a simple injury. The injury no. 2 on the upper arm of the deceased was also found to be simple. However, the injury no. 3 on the back side of chest, five in number, proved fatal. The remaining injuries on the leg, hip, and buttock were also simple in nature having been caused by Lathis. It was stated by PW-3 (doctor) that five injuries on the chest of the deceased, multiple contusions as indicated in injury no. 3, could be seen from the naked eyes and the same situation was about injury no. 3. As per the doctor's report, all injury nos. 1, 5, 6 and 7 were simple and injury nos. 2, 3 and 4 were suspected fractures.
33. The doctor (PW-3) who himself treated the deceased stated that the deceased was brought to the hospital at about 11:00 AM and looking to the nature of injuries, he had suspected fractures and suggested X-ray and referred the deceased to the District Hospital, Ghazipur. However, no reason could be assigned by PW-3, the doctor who had treated the deceased as to why after reference the deceased was treated in the Primary Health Centre itself where there was no facility even of X-ray. No explanation could be offered as to why the deceased was not taken to the District Hospital, Ghazipur. PW-1, the informant also could not give any reply when confronted on this aspect. PW-3, the doctor who had treated the deceased at the hospital stated that the deceased was in a serious condition but was conscious and admitted in the P.H.C. even after reference to the District Hospital, Ghazipur, and his treatment continued there till the evening.
The explanation offered by the doctor (PW-3) on confrontation that the deceased was not in a condition to be transported to the District Hospital, Ghazipur does not seem to be convincing for the reason that the deceased himself went to the police station to lodge the report and then was taken to the hospital. PW-1 stated that the deceased was speaking till the evening while he was being treated in the P.H.C., Mardah. The postmortem report indicated that the deceased had consumed Milk sometime before he had died. The condition of the deceased could not be said to be such as is clear from the record that he could not have been transported to the District Hospital, Ghazipur. Further from the statement of the informant (PW-1), it is evident that the deceased was put on a Cot and was taken to the police station instead of a hospital. It took about one hour to them to reach at the hospital that too at a place where the deceased could not get proper treatment. It was admitted by PW-3 that emergency blood was not available in the P.H.C. From the turn of events, the manner in which, the deceased was treated after he had suffered injuries and died on the same day at about 4:00 PM, it is evident that the adequate medical treatment could not be provided to the deceased. The reason for the same could not be known to us nor can be discerned from the record but it seems to us that had the deceased got the proper treatment on admission in the District Hospital, Ghazipur, his life could have been saved.
34. Further from the nature of the injuries and the manner in which the deceased was assaulted by his two sons, it seems that both the sons were assaulting their father not with an intention to cause his death but to injure him being furious by the fact that the deceased was not giving them shares in the agricultural land. Both the sons were arguing and fighting with the deceased for their shares in the landed property which was an ancestral property. It is established that a fight had also broke between the father and his two sons and both sides were carrying Lathis when fighting in the field on the previous day, as per statement of PW-1. It is though proved by the prosecution that both the sons were carrying Lathis and they had assaulted their father at the place where he went to defecate and that the deceased who had no weapon in his hand was beaten mercilessly but merely from the nature of the injuries and the manner in which the assault took place, it could not be proved by the prosecution that the sons had an intention to cause death or such bodily injury which they knew would cause the death of their father being sufficient in the ordinary course of nature to cause death. The treating doctor PW-3 had categorically stated that the deceased was though serious but conscious and as such he did not record his dying declaration. The deceased was referred to the District Hospital to get a better treatment. From the postmortem report, it seems that the internal organs of the deceased got damaged because of breaking of six ribs due to injuries on his chest and as per the postmortem doctor's report, the said injury was sufficient to cause death.
35. However, on a careful analysis of the above circumstances, it is proved that the intention of the appellant was though to cause bodily injury to their father but there was no intention to cause his death or such bodily injury as they knew would cause the death of their father being sufficient in the ordinary course of nature to cause his death. Had the accused intended to cause murder of their father, they could have assaulted him with Lathis on the head and barely two blows of lathi on head would have been sufficient to cause the death of the deceased on the spot.
36. The Court, thus, reaches at the answer to the first question that the appellant had not committed an offence within the meaning of Section 300 IPC, i.e. "culpable homicide amounting to murder" which is punishable under Section 302 IPC. The four elements of Section 300 IPC are not proved from the circumstances discussed above. The incident had occurred in a fit of anger and two sons had assaulted their father in desperation to get their share in the landed property which was denied to them by their father. The record further indicates that the only agricultural land of the family was in possession of the father, the deceased himself. The offence committed by the appellant, thus, would fall within the meaning of "culpable homicide not amounting to murder" under Section 304 of the Code.
37. A further question then would be whether the surviving appellant is guilty under Part I or Part II of Section 304.
38. As is evident from the statement of the injured in the written report, his two sons while giving blows of Lathi were saying that they would beat him more if their shares were not given by the deceased. From the injury report and the statement of PW-1, who was the eye-witness, it is evident that both the sons were freely assaulting their father by Lathis together but they had not aimed to cause his death. Out of seven injuries, barring one namely injury no. 3 all others were simple injuries. The injuries sustained by the deceased on his head were also simple. The deceased was conscious and speaking till he had succumbed to his injuries as he could not get proper treatment in the P.H.C., Mardah which was not equipped to deal with such injuries.
39. Considering the weapon used, the place and time of the incident and the nature of the injuries, it is found that the surviving appellant had committed the offence with his brother in a premeditated plan to cause injuries to his father and the act of the appellant cannot be said to have been done by mistake or accident but with the clear intent to cause bodily injury, which was likely to cause the death of the deceased. It is a case where there may be an absence of the intention to cause death or such bodily injury which was sufficient in the ordinary course of nature to cause death, but it is not a case where there was also an absence of intention to cause such bodily injury as was likely to cause death in the ordinary course of thing.
40. In view of the above discussion, though we find that the surviving appellant Sripat Harijan is not guilty of ''murder' under Section 302 IPC but he is guilty of committing an offence under Section 304 Part I of the Code "culpable homicide not amounting to murder" punishable in the First Part (Part I) of Section 304 of the Code.
41. We, therefore, do not accept the contentions of the learned counsel for the surviving appellant that the offence committed by the surviving appellant would fall in the Second Part (Part II) of Section 304 IPC.
42. Having held that the surviving appellant Sripat Harijan is guilty of the offence under Section 304 Part I, we partially accept this appeal and alter the offence from that of Section 302 of the Code to one under Section 304 Part-I of the Indian Penal code.
Further giving due consideration to the facts and circumstances of the present case, we find that the sentence of ten years rigorous imprisonment would be adequate for the offence of which the appellant has been held guilty.
We, therefore, award a sentence of ten years rigorous imprisonment to the appellant.
The judgment under appeal is modified in the above terms.
The appellant Sripal Harijan is in jail.
According to the counsel for the appellant, the period of incarceration of the appellant is about more than two years as he remained in jail during the course of trial and further has been lodged in jail on 2.12.2021 in execution of the non-bailable warrant issued by this Court.
Be that as it may, the appellant Sripat Harijan shall serve out the sentence awarded above.
The appeal is allowed in part.
The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.
(Subhash Chandra Sharma, J.) (Sunita Agarwal, J.)
Order Date :- 31.8.2022
Brijesh