Allahabad High Court
Hari Ram Son Of Munnu And Ors. vs State Of U.P. on 29 November, 2007
Author: K.S. Rakhra
Bench: K.S. Rakhra, R.K. Rastogi
JUDGMENT K.S. Rakhra, J.
1. This is an appeal under Section 374 IPC against the judgment and order dated 30.9.1982 passed by V Addl. Sessions Judge, Fatehpur in S.T. No. 480 of 1980 whereby the appellants Hari Ram, Harish Chandra, Munnu, Mahadeo and Moti Lal have been convicted and sentenced to life imprisonment under Section 302 read with Section 149 IPC. In addition to this, Harish Chandra, Munnu, Mahadeo and Moti Lal have been sentenced to two years' rigorous imprisonment under Section 147 IPC and appellant Hari Ram has been sentenced to three years' rigorous imprisonment under Section 148 IPC. During the pendency of appeal, appellants, Hari Ram, Munnu and Mahadeo expired and therefore their appeal has abated.
2. The incident relates to 1.8.1979 on which date Binda Deen son of Deota Deen was done to death at about 4.30 p.m. when he was returning from Obipur where he had gone to buy sweet root. This incident took place within the circle of police station Husainganj of district Fatehpur. His brother Goverdhan Prasad resident of Lakhpura who was an eye witness lodged the report of this incident at police station Husainganj on the same day at 18.30 hours against all the five appellants. It was alleged that some time before this incident, cattle of appellant Hari Ram and Moti Lal had grazed and damaged the standing crop in the field of the deceased. They had quarrelled at that time and the accused persons had taken the protest of the deceased as their insult and started harbouring ill will towards him. On the fateful day the deceased had gone to village Lakhpura nearby village Obipur to purchase sweet root and while he was returning to his house in the evening with the sweet root which he had purchased, the accused persons encountered him near Kalikan Ka Purwa. Accused Hari Ram was armed with an axe while the remaining four accused were armed with lathis. Out of the accused persons Hari Ram and Harish Chandra are real brothers being sons of Munnu whereas the accused Munnu and Mahadeo are also real brothers being sons of Badal. The fifth accused Moti Lal is said to be friend and relative. All of them are residents of Kalikan ka Purwa. The first informant who is a teacher in a primary school of Gopalpur was returning to his house on bicycle after the school had closed at four p.m. Ganga Prasad P.W. 2 is other eye witness who was also returning from village Obipur after purchasing sweet root and was a few steps behind the victim. Sri Pal P.W. 3 resident of Kalikan ka Purwa claimed that he had seen the occurrence when he was returning to his village from the market of village Jamranwa. The five accused persons on seeing the victim, who was carrying gunny bag of sweet root on his head started abusing him. The deceased dropped the bag on the ground and asked them why they were abusing him. Upon this accused Hari Ram exhorted "MAARO SALO KO". After this, all the accused persons opened attack on Binda Deen with lathis and axe. The informant Goverdhan Prasad and witnesses including Ganga Prasad and Sri Pal saw the assault, advanced towards the accused persons and challenged them. The culprits then ran away towards their village Kalikan Ka Purwa. The victim had received serious injuries on the head and other parts of the body and had become unconscious. On the report of the informant, crime No. 129 under Section 308/147/148 IPC was registered at the police station. Binda Deen however died on the same date at the hospital on account of above injuries and the case was thereafter converted into Section 302 IPC.
3. Investigation of the crime was taken up by P.W. 5 Shri Nath Pathak. He visited the place of occurrence on 3.8.1979 and prepared a site plan with the help of eye witnesses. He also recovered the gunny bag full of sweet root lying at the place of occurrence. On the same day he recorded statements of first informant and witnesses Ganga Prasad P.W. 2 and Shri Pal P.W. 3. The inquest of the dead body was conducted by S.I. Sri Jagmohan Singh and the dead body was sent for autopsy after due formalities. Dr. V.P. Tripathi P.W. 4 who had performed the autopsy and had prepared the post mortem report Ex.ka.3 had found the following ante mortem injuries on the person of the deceased:
1. Lacerated wound oblique 1 ½" x ½" x muscle deep on the left side of head 2" at the upper part of left ear. Underneath temporal bone fractured.
2. Incised wound 1 ½ x ¼ cm x muscle deep on the left side of head on the left temporal region of head 3" above and medially and posteriorly to the upper part of left ear.
3. Incised wound 1 ½ x ¼ cm x muscle deep on the left side of head ¼ cm below the injury No. 2.
4. Lacerated wound ½ cm x 1/4 cm x muscle deep on the left side of head in the temporal region ½" below the injury No. 3.
5. Contusion with abrasion 3" x 1" on the left side of head 2" above the lateral third part of left eye brow. Underneath this injury blood clot present, underneath frontal and temporal bone fractured in pieces, brain lacerated.
6. Contusion 3" x 1" on the upper most part of left upper part in the antero lateral aspect. It is oblique.
7. Contusion 3" x 1" on the middle part of left deltoid region of left upper arm.
8. Multiple contusion in different directions in antero lateral aspect of lower half of left upper arm.
9. Multiple contusions on different directions in the area of 12" x 11" on the left side of back. Contusion area extends from upper part of left chest to the left rib, 8th rib fractured causing laceration of spleen.
10. Multiple contusion in the area of 9 cm x 4 cm on the right side of back in upper third part.
In the internal examination, he found fracture of base of skull. Membranes and brain were found lacerated. Peritoneum was lacerated. The stomach contained semi digested food. Large and small intestine were full. The spleen was also found lacerated. In the opinion of the doctor, this death had occurred due to shock and haemorrhage as a result of ante mortem injuries. Conducting autopsy on 2.8.1979 at 4 p.m., the doctor opined that the probable time of death of Binda Deen was about one day prior to autopsy.
All the accused had surrendered in the court prior to 25.8.1979. After completion of the investigation S.I. Shri Nath Pathak submitted charge sheet.
The case of accused persons was of denial and they claimed that they were falsely implicated on account of enmity.
4. In the trial, five witnesses were examined by the prosecution in all. Goverdhan Prasad P.W. 1, Ganga Prasad P.W. 2 and Shri Pal P.W. 3 claimed to be eye witnesses and they have supported the prosecution story with regard to date, time and place of occurrence, manner of assault, participation of five accused appellants accused in this crime. They also stated that in this incident Binda Deen had received injuries and subsequently he died on account of injuries sustained by him. P.W. 4 Dr. V.K. Tripathi as mentioned above had conducted autopsy whereas P.W. 5 Sri Nath Pathak is the investigating officer.
The trial court found the testimony of eye witnesses to be reliable. Their presence on the spot was also believed and no material contradiction was found in the statements. Their statements were also corroborated by medical evidence as well as attending circumstances including prompt lodging of FIR. The police station was at a distance of five miles from the place of occurrence and within two hours from the incident, the FIR was lodged.
5. We have heard Sri P.N. Mishra, learned Senior counsel for the appellants and Sri Ram Awadh Mishra, learned AGA for the State. We have gone through the entire evidence on record in the light of arguments raised before us.
5.1 A scrutiny of entire evidence on record shows that there are no material contradiction in the statements of eye witnesses. The presence of eye witnesses near the place of occurrence at the relevant time is probable and has been duly proved. The recovery of gunny bag containing sweet root at the place of occurrence and the prompt lodging of FIR naming the accused persons, attributing specific role to them and describing the weapons as well as manner of assault are in corroboration of ocular evidence. Sri Mishra pointed out that P.W. 1 Goverdhan Prasad and P.W. 2 Ganga Prasad were accused in another murder case and were jointly convicted. We are of the opinion that this circumstance is not enough to discard their testimony in this case. P.W. 2 Ganga Prasad is also resident of same village Lakhpura to which the deceased belonged. In fact on the fateful day he alongwith the deceased and others had gone together to village Obipur for purchasing sweet root and they were returning from Obipur after making the said purchase with gunny bag on the head of each of them. Similarly Sri Pal P.W. 3 has given explanation that he was present at the place of occurrence at the relevant time. He is resident of Kalikan ka Purwa and was returning from the market of Jamrawan where he had gone to make some weekly purchases. His village is about one mile south from the place of occurrence. After going through their statements, we find them corroborating each other and their testimony is sound and reliable.
5.3 Sri P.N. Mishra argued that neither Goverdhan Prasad who is real brother of deceased nor remaining witnesses made any attempt to save the victim and they had not received any injury. After considering the submissions, we are of the view that no adverse inference can be drawn on the basis of above circumstance. It is important to note that all the five accused were armed with weapons, four with lathi and one with axe. None of the witnesses had any arm with him. Their intervention at that time could not have given any respite to the victim but they themselves must have been beaten if they intervened. We, therefore, decline to draw an adverse inference.
5.4 Learned Counsel for the appellants then argued that even accepting the prosecution story with regard to the manner of assault, participation of the accused persons and the role attributed to them it can not be said that there was intention of any accused to cause death of the victim. After analysing the evidence carefully we find force in his submission. It is significant to note that the motive for the assault was a simple one and that too was not a recent motive. The incident of cattle grazing and a quarrel occurring at that time had happened about 15 to 20 days prior to present incident. There is nothing on record to show that any report was lodged with the police by either side at that time nor is there any evidence that any body from either side had received any injury. The motive was therefore weak and it appears that the intention of the accused persons was only to belabour the victim on account of previous incident.
6. In this regard it is further important to note that none of the accused was carrying any fire arm. Four of them were armed with lathis and the fifth was armed with axe. Lathi and axe are instruments of general utility in the villages. It, therefore, can not be said that accused persons had made any preparation for the present assault.
Thirdly the accused persons have not ambushed the victim at a lonely place or in dark hours of night. He was assaulted on public passage at day time. This is also suggestive of the fact that the accused persons had no intention to cause death.
7. It is true that the victim had received as many as ten injuries and two of them were incised wounds on his head. The remaining injuries were either lacerated wounds or contusion. Two lacerated wounds were on the head and there was also fracture of temporal bone in its whole length. Although it is evident from the record that axe was used by Hari Ram appellant (who has already expired) it is not clear from record as to whose lathi had caused lacerated wound on the head of the deceased or was responsible for fracture of temporal bone or any other fatal injury.
In the case of State v. Kallu Lal 1985 ACC page 34 it was observed by this Court that object of unlawful assembly is question of fact and has to be decided on the facts and circumstances of each case. Where death was caused by head injury but it was not known as to who had caused that injury, uncertainty of the common object of murder being there, it was not safe to convict all the accused persons under Section 302/149 IPC.
Similarly in the case of Moti and Ors. v. State 1967 ACC page 140, this Court had held that common object of unlawful assembly is determined on the facts and circumstances of each case and mere use of lethal weapons can not determine the common object. Motive for crime, weapons used, conduct of assailants, both before and at time of attack are relevant factors.
In the case of Matadin v. State of Maharashtra 1998 (37) ACC page 584, one of the accused had exhorted the co-accused by saying "MARO SAALE KO". The co-accused stabbed the victim in stomach. The victim died after ten days of the incident. The injury suffered by him was found sufficient to cause death in the normal course. The court held that co-accused who had stabbed the victim alone could be held guilty under Section 302 IPC but the other accused who had exhorted could not be held guilty under Section 302/34 IPC and his conviction was altered to under Section 324/110 IPC.
Applying the above tests to the facts of the case before us we are of the view that common object of the accused persons in the instant case does not appear to be to cause death of Binda Deen. They probably wanted to belabour him on account of incident of quarrel which had taken place a few days ago. The said quarrel does not appear to be too big to provide motive for commission of murder. There was no special preparation made by the accused persons either with regard to their being armed with weapons or in selection of time and place of assault. There is no evidence to show whose injury proved to be fatal. In view of all these facts and the circumstances and also keeping in view the number, nature and seat of injury, we are of the view that the case would fall under Section 304 Part I IPC as the intention of the accused persons appears to be causing such bodily injury as was likely to cause death.
8. In view of aforesaid, we partly allow the appeal. The conviction of appellants Harish Chandra and Moti Lal under Section 302/149 IPC is altered to 304 Part-l/149 IPC and instead of imprisonment for life, they are sentenced to ten years rigorous imprisonment for this. Their conviction under Section 147/148 IPC and sentences passed thereunder are not disturbed.
Let a copy of this judgment be certified to the trial court for necessary action.