Allahabad High Court
Mahabir And Others vs State Of U.P. on 23 February, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:32625-DB Judgement Reserved on 01.02.2024 Judgement Delivered on 23.02.2024 Case :- CRIMINAL APPEAL No. - 470 of 1986 Appellant :- Mahabir And Others Respondent :- State of U.P. Counsel for Appellant :- Virendra Saran,Ram Jeet Yadav,Sharad Kumar Srivastava Counsel for Respondent :- A.G.A. Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Sri Sharad Kumar Srivastava, learned counsel for the appellant no.3; learned AGA for the State and perused the material placed on record.
2. Criminal Appeal against the judgement and order dated 7.2.1986 passed by the court below in S.T. No.10 of 1980 convicting and sentencing the appellants under Sections 302/34 I.P.C. to imprisonment of life.
3. Appellant no.1, Mahabir and appellant no.2, Bhulai, have already died during the pendency of this appeal and appeal was dismissed as abated against them by this Court vide order dated 4.3.2022. This appeal has been argued only on behalf of appellant no.3, Ram Siromani, by learned counsel for the appellant.
4. As per the prosecution case, there is litigation about the land between Banshi, s/o Kishore and Mahabir s/o Jai Karan. On the date of incident dated 28.8.1978, the disputed agricultural field was being ploughed by Mahabir, Bhulai Yadav, Ram Srhiromani and Kripa Shanker, when at 8:00 a.m., Banshi tried to stop them. On the exhortation of Mahabir, Ram Siromani, Bhulai and Kripa Shanker chased Bashi with intention to kill. Banshi ran away. Sarju, s/o Baldev was going to purchase bullock from the same way and seeing the incident, he forbaded the accused persons. On this, accused persons, on the exhortation of Mahabir, started beating Sarju with lathi -danda and Banshi raising alarm ran away. On his alarm, Bodai, s/o Chhattu, Shiv Paras, Rajpati, Naresh and Pulani reached there and intervened. Because of injuries caused by accused persons by lathi-danda, hands and legs of Sarju got broken and he suffered other injuries on his body. The informant, Jamuna Prasad, claimed that there is old enmity between the accused and informant side. Sarju being badly injured was sent to the hospital.
5. Before the trial court, informant, Jamuna Prasad, was examined as PW-1, He stated that name of his grand-father is Ram Anand, who had four sons, namely, Baldev, Jagdev, Aniruddh and Mahadev. Except Mahadev, all have died. Rajmani and Rajbali are the sons of Jagdev. Infomant, Jamuna Prasad, deceased, Sarju Prasad, Rajbahadur and Arjun are the sons of Baldev. Sarju Prasad has been murdered in this case. Aniruddh has three sons, namely, Rajpati, Rampal and Chandrapal. The informant, Jamuna Prasad, and deceased, Sarju, were brothers and living jointly. He knows Jai Karan, who had died leaving behind his sons, Mahabir (accused), Bhulai (accused), Ramdev and Mahadev. Accused, Ram Siromani, is the son of accused, Mahabir. Accused, Daya Shanker, is son of Bhulai. His house is situated 1 km. away from the house of Mahabir and others. Prior to the incident, litigation regarding land took place between PW-2, Banshi and accused, Mahabir and Bhulai. On the date of incident at about 8:00 a.m., the informant and Godai Pasi were tethering buffaloes besides the Pili Nadi. They saw Mahabir, Bhulai, Ram Siromani and Daya Shanker forcibly ploughing the disputed field. When Bashi tried to stop them, he was chased. In the meantime, brother of the informant, Sarju, was passing from there to purchase bull, when Banshi was being chased. He tried to stop the accused persons. On the exhortation of Mahabir, all accused forgetting Banshi; attacked Sarju saying that he is the person behind their litigation with Banshi and all the accused persons caused injuries to him by lathi. They beated him in the field of Achhewar. The informant also raised alarm. On his alarm, Godai, Rajpati, Bulari, Shivparas, Ramnaresh, etc., came on the spot. Accused persons ran away. The injured, Sarju, was taken to the doctor. Thereafter report was made to the police station. The inspector of the police station recorded his statement and he was taken to Sadar hospital, Jaunpur. Sarju died in Sadar hospital. Where the Sarju fell down down, his blood had fallen. The informant admitted that earlier he was accused in a case with deceased, Sarju, which was got registered by Vishwanath. One, Sriram, co-villager, lodged a report against Rajbali, Showle, Sarju and others, under Sections 342/384 IPC. One, Figuri lodged a case under Section 323 IPC, wherein he was not the accused. Details of some other cases were given by PW-1 proving that there was prior enmity between the parties. PW-1 clarified in his statement that he did not mentioned in the FIR that Mahabir exhorted other accused to kill the deceased since he is the person behind the litigation with Banshi. He explained that because of nervousness he did not mentioned all the facts in FIR. He also explained that he could not write in FIR that blood of the deceased had fallen on the scene of incident. He proved the place of incident by referring to other agricultural fields around and their distances from the place of incident. He also stated in his statement which agricultural field belongs to which owner. He proved that he was in the field of Bhagadu, fromwhere he saw the incident. He further denied that Sarju was not having good character and therefore he was murdered. He proved that blood was on the clothes of deceased.
6. PW-2, Banshi, was another eye witness, who proved before the court below that accused persons chased him for killing by lathi-danda. He also proved that the deceased, Sarju, was going from the passage near the place of incident for purchasing bull, when he was being chased by accused persons. Sarju intervened and was beaten by accused persons who stated that Banshi is litigating with them because of Sarju being behind him and Sarju is taking revenge of his old enmity with them. He proved that Sarju cried for help but the accused persons assaulted him badly and he fell down. He further proved that informant, Jamuna Prasad, Shiv, Paras, Bodai, Rajpati, etc., reached the scene of incident, when the alleged offence was being committed. He proved that the litigation between the accused persons and PW-2 regarding land of plot nos. 165, 166, 170 and 171. He proved that he was informed by children of the village that accused persons were ploughing his disputed agricultural field. When he when there, he was not armed with any weapon. When he reached there, appellant no.3, Ram Siromani, and Daya Shanker were ploughing the field while Mahabir and Bhulai were standing armed with lathi. When he tried to stop them, all of them chased him. The deceased, Sarju, was not hurt by lathi, but by a bamboo log. He ran away from the accused persons and saw the accused from distance, who were assaulting Sarju with lathi.
7. PW-3 proved the incident as alleged in the FIR. He assigned general role to all the accused persons. He stated that deceased, Sarju, was not having lathi, but Paina (stick).
8. PW-4, Dr. Badri Prasad Gupta, who conducted the post mortem on the dead body of the deceased, Sarju, found 22 injuries on his body. Most of the injuries are contusions and multiple overlapping contusions on non-vital parts of his body. The doctor opined that the injuries suffered by the deceased were sufficient to cause his death. There was no internal injury or fracture found on the person of the deceased.
9. PW-5 proved the proceedings conducted by him regarding lodging of FIR for informant.
10. PW-6, earlier Investigating Officer of the case, proved that he did some investigation only.
11. PW-7 proved entire investigation conducted by him. He proved that the memo prepared by him regarding collection of blood stained earth and plain earth from the scene of incident and proved that he recorded the statements of eye witnesses and did other formalities regarding investigation.
12. Statements of accused persons were recorded under Section 313 Cr.P.C. Appellant no.3 denied all the questions put before him and only stated that he has been falsely implicated in this case because of enmity.
13. Learned counsel for the appellant no.3 has submitted that the appellant no.3 was implicated in this case on the ground of enmity with other side. PW-2 has stated that when he reached at the scene of incident, he saw the appellant no.3 and Daya Shanker ploughing the field while Mahabir and Bhulai were present there and were armed with lathi. He has submitted that when the appellant no.3 was not armed with lathi at all how he caused the injuries to deceased has not been explained by the prosecution. PW-1 has also not assigned any specific role to the appellant no.3. He has been falsely implicated alongwith other accused in this case because of earlier enmity between his father, Mahabir, appellant no.1 and PW-2. He has submitted that similarly implicated co-accused, Daya Shanker, was acquitted by the trial court, when all the accused persons were generally implicated in this case. No specific role has been assigned to any of the four accused except to Mahabir, who was assigned the role of exhortation also. There was no intention to cause murder of deceased. Deceased, Sarju, was only an intervener in the dispute between accused and the PW-2.
14. Learned counsel for the appellant has relied upon the judgement of this Court in the case of Jai Karan and another Vs. State of U.P., 2018-4-AllLJ 529, wherein this Court has held that guilt of the accused must be proved beyond all reasonable doubts, where presence of witnesses on the scene of incident is doubtful, eye witnesses are interested and inimical and there is conflict between ocular and medical evidence, conviction cannot be sustained. Further reliance has been placed by learned counsel for the appellant on the judgement of Apex Court in the case of Ram Pratap - appellant Vs. State of Haryana - respondent, reported in 2022 0 Supreme (SC) 1241, regarding case of circumstantial evidence.
15. Learned AGA has opposed the submissions advanced by learned counsel for the appellant no.3 and submitted that the offence alleged against the appellant no.3 was proved by the prosecution beyond doubt. He has submitted that it is not a case of circumstantial evidence, but it is a case of direct evidence proved by three eye-witnesses of the incident viz., PW-1, PW-2 & PW-3. He has submitted that there can be conviction on the basis of sole eye witnesses account, when the testimony of such witnesses is found to be trustworthy and reliable. In the present case, learned counsel for the appellant no.3 has not pointed out any infirmity in the statements of prosecution witnesses of fact. He has placed on the reliance in the case of State through Inspector of Police Vs. Laly @ Manikandan and other etc. reported in AIR 2022 Supreme Court 5034 in support of his contention that account of solitary witness is sufficient to convict and accused, it is found to be credible.
16. After hearing rival contentions, this Court finds that there is motive of crime well established by the prosecution regarding the dispute about agricultural land between PW-2 and the accused. Accused persons were ploughing the land, which was subject matter of dispute between them and PW-2, Banshi. Informant was living together with deceased, Sarju, who was brother of the informant. Trial court has found some old enmity of informant's family with accused side. But nothing definite has been proved. Accused persons suspected that deceased was also helping Banshi and Banshi was litigating against them with his support. Learned counsel for the appellant no.3 has submitted that accused persons had no enmity with the deceased, Sarju and he only intervened and was beaten and accidentally died, but this fact cannot be belied from 22 injuries, many of them overlapping in nature, caused to the deceased, which proved that he was beaten with substantial vehemence by more than one person. Reference of injuries suffered by the deceased would be relevant, which are as follows:-
1. Lacerated wound 1 cm. X ½ cm. muscle deep on the right side scalp 8 cm. above the right eye brow.
2. Contusion 8 cm. X 4 cm. on the left arm outer and upper part.
3. Multiple contusion overlapping in are 27 cm. X 11 cm. on the left forearm and elbow.
4. Multiple over lapping contusion, 9 cm x 6 and 1/2 cm on the dorsum of left hand.
5- Lacerated wound 1 cm x 0.5 cm on the back part of upper middle finger.
6- Multiples over lapping contusion 28 cm x 14 cm on the joint and outer aspect of left thigh.
7- Contusion 9 cm x 5 cm back of left thigh.
8- Lacerated wound 2 cm x ½ cm x muscle deep on the Joint and middle left leg.
9- Multiple over lapping contusion 17 cm x 10 cm on the dorsum upper /art.
10- Contusion16 cm x 4 cm on the right arm upper and outer aspect.
11. Contusion Multiple 28 x 10 cm on the right forearm.
12- Contusion multiple in an area 8 cm x 6 dm doesum right hand.
13- Multiple contusion 15 cm x 6 cm on the right thigh front.
14- Contusion 9 cm x 4 cm on the front of right thigh below injury no.13.
15 Contusion 9 cm x 6 cm right leg front.
16- Contusion multiple (not clear) x 7 cm on the-dorsum of right foot..
17- Multiple contusion in area 12 cm x 8 cm on the right scapular region.
18- Multiple contusion in area 11 cm x 5 cm on the back right.
19- Contusion 10 cm x 5 cm on the rightside back.
20 Contusion 12 cm x 3 cm left side back scapular region.
21- Contusion 12 cm x 3 cm on the upper side back below injury no.20.
22- Contusion 6 cm x 3 cm on the back left side below.
17. The argument of learned counsel for appellant no.3 is that the motive of the crime committed by the accused was established before the trial court only against PW-2, Banshi. The deceased, Sarju, was not proved to be having any direct enmity with the accused persons. He came to the scene of incident by chance, when accused persons were chasing PW-2, Banshi, for beating him. Because deceased, Sarju, tried to stop them, in rage of anger and suspecting that deceased was helping PW-2 from behind, they caused indiscriminate beating of the deceased. In essence, the argument of counsel for appellant no.3 is that implicated appellant no.3 for committing offence under Section 302 IPC is unwarranted in the absence of any intention/motive to commit the alleged offence.
18. In order to appreciate the argument of learned counsel for appellant no.3, relevant law requires to be considered. The Apex Court in the case of Rampal Singh Vs. State of U.P., reported in (2012) 8 SCC 289 has discussed the distinction between Section 302 and 304 IPC and also distinction between Section 304 Clause I and II IPC in paragraph nos. 15 to 25 as follows:-
15. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the Code, i.e., ''culpable homicide' and ''murder' respectively. In Phulia Tudu & Anr. v. State of Bihar (now Jharkhand) 2007 SC 3215], the Court noticed that confusion is caused if courts, losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of these sections.
16. The Court in Phulia Tudu (supra) provided the following comparative table to help in appreciating the points of discussion between these two offences :
"Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done-
Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done-
INTENTION
(a) with the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE
(c) with the knowledge that the act is likely to cause death.
(4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse or incurring the risk of causing death or such injury as is mentioned above." |
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.
18. This Court in the case of Vineet Kumar Chauhan v. State of U.P. (2007) 14 SCC 660 noticed that academic distinction between ''murder' and ''culpable homicide not amounting to murder' had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382], where it was observed as under:
".....that the safest way of approach to the interpretation and application of Section 299 and 300 of the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of section 299 and 300 of the Code and the drawing support from the decisions of the court in Virsa Singh v. State of Punjab and Rajwant Singh v. State of Kerala, speaking for the court, Justice RS Sarkaria, neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that wherever the 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 would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be that the accused has done an act by doing which he has caused the death of another. Two, if such causal 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 in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether this second or the third clause of Section 299 is applicable. If this question is found in the positive, but the cases come 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 of the Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative."
19. Having noticed the distinction between ''murder' and ''culpable homicide not amounting to murder', now we are required to explain the distinction between the application of Section 302 of the Code on the one hand and Section 304 of the Code on the other.
20. In Ajit Singh v. State of Punjab [(2011) 9 SCC 462], the Court held that in order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, Section 300 states both, what is murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that ''amounting to murder' as well as that ''not amounting to murder' in a composite manner in Section 300 of the Code.
21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. 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, that is (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 this section 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 this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor, 1151. C. 476 (Refer : Penal Law of India by Dr. Hari Singh Gour, Volume 3, 2009 )
22. Thus, where the act committed 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.
23. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. 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 merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused.
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 "4thly", 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."
25. As we have already discussed, classification of an offence into either Part of Section 304 is primarily a matter of fact. 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. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused."
19. After considering of the above legal position, this Court finds that the accused had no intention to cause the death of the deceased. The deceased accidentally came before them and was badly beaten by the accused. Accused persons had dispute of land with PW-2, Banshi, directly and were forcibly ploughing the land in dispute between them. There was no premeditation to cause death of deceased, Sarju, since he was helping Banshi. Deceased only tried to stop the accused persons, who were chasing Banshi to beat him. The accused persons are said to have caused bodily injuries to the deceased, which were likely to cause his death. They had knowledge but they cannot be attributed the intention to cause the death of the deceased. Hence the implication of accused under Section 302 IPC was not justified. The act was done on account of sudden provocation caused to the accused when the deceased tried to stop them from causing injuries to PW-2., Banshi. Therefore the offence alleged would fall under exception-4 to Section 300 IPC and punishment under Section 304 IPC would have been ordered. The injuries are although large in numbers, but none of the injuries are on the head or other vital part of the body of the deceased, which may prove that the accused had intention to cause the death of the deceased. In the present case, from the allegations against the accused and nature of injuries suffered by the deceased, it can only be said that act was done with knowledge that it may cause death of deceased. Knowledge of causing death was there, but without any intention to cause death or to cause such bodily injury likely to cause death.
20. Therefore ends of justice would be served if the appellant no.3 is directed to be convicted for five years with fine of Rs.20,000/- under Section 304 Part II IPC. The sentence awarded to the appellant no.3 is modified and his conviction under Section 302 read with Section 34 IPC for imprisonment of life is converted to sentence of five years with fine of Rs.20,000/-. In default of payment of fine, the appellant will undergo simple imprisonment of one year. The period of earlier detention shall be set off. The bail bond of the appellant is cancelled and his sureties are discharged. He is directed to surrender forthwith and serve remaining sentence.
21. This Criminal Appeal is partly allowed.
22. Let a copy of this judgment alongwith the lower court record be sent to the trial court forthwith by the office to ensure the compliance of this judgment. Learned trial court shall send the compliance report to this Court within a month.
Order Date :- 23.2.2024
Ruchi Agrahari
(Ram Manohar Narayan Mishra,J.) (Siddharth, J.)