Baboo Ram alias Lalley and Others vs State of U.P.

Babu Ram, Ram Autar and Chandra Bhan Appellants have preferred this appeal against the judgment and order dated 6/9-1-1979, passed by Sr. P.K. Jain, VII Additional Sessions Judge, Farrukhabad, in Sessions Trial No. 59 of 1978. The Appellant Babu Ram has been convicted and sentenced u/s 302 IPC to life imprisonment, Ram Autar has been convicted and sentenced u/s 307 IPC to five years'' rigorous imprisonment and Appellant Chandra Bhan has been convicted and sentenced u/s 323 IPC to six months'' rigorous imprisonment.

The facts of the case, in brief, are that on 22-11-1977 at about 10 A.M. accused Babu Ram alias Lalley and Chandra Bhan, both sons of Shiv Dayal, were taking water to their field from the tube-well of Appellant Ram Autar through infront of the door of the complainant Bubu Ram on of Pearey Lal. Smt. Swet Kumari, aunt of the complainant Babu Ram PW 1 objected to it. Thereupon Appellant Chandra Bhan gave a Danda blow on her head. Thereafter a quarrel ensued and the parties quarrelling reached infront of the house of Sia Ram and Mewa Ram Kachi where Appellant Babu Ram brought a gun of his brother from his house and Ram Autar brought a pistol and challenged the prosecution witnesses and said that they would shoot if any one objected to the flow of water. Even then Ramendra Prasad, brother of Bubu Ram objected that they would not permit the flow of water. PW 1 Babu Ram, the complainant, and Om Prakash also brought out lathis and challenged the Appellants. Thereupon Appellant Ram Autar fired a shot from his pistol causing pallet injuries to Ramendra Prasad, Om Prakash, Jai Prakash, Smt. Shanti Devi, Ved Prakash, Smt. Ram Beti and Smt. Long Shri. They all then started running and then Babu Ram Appellant fired a shot from his gun which caused fatal injuries on the back of Ramendra Prasad, who fell down dead on the platform infront of the house of Mewa Ram.

Ext. Ka 1, the first information report, was lodged at police station Kamal Ganj on the same day at 11.30 A.M. at a distance of 2 miles. Thereafter investigation started. The dead body of Ramendra Prasad after preparation of inquest report was sent for postmortem and the injured were sent for their medical examination.

After completion of the investigation the Appellants were prosecuted and to prove its case the prosecution examined in all & witnesses of whom PW 1 Babu Ram, PW 2 Shiam Baboo and PW 3 Om Prakash are the eye witnesses of the occurrence and they corroborated the prosecution case. PW 4 Dr. H.B. Singh had examined the injured on 22-11-1977 from 2.25 P.M. to 3.40 P.M. and noted the following injuries on their persons:

Injury of Mahesh Chand (Vide Ext. Ka 2)

An abraded contusion 1 cm x 0.5 cm on the top of right shoulder.

Injury of Ved Prakash (Vide injury report Ext. Ka 3)

Gun shot wound of entry on medial side on fore-arm, 18 cm below the elbow joint round in shape 0.2 cm in diameter, 1 cm deep, margins inverted. No blackening or tattooing or scorching.

Injury of Om Prakash (vide injury report Ext. Ka 4)

Gun shot wound of entry on upper part right side abdomen 1 cm from mid line, 16 cm above the mid line round in shape, 0.1 cm in diameter, probing could not be done, marging inverted. No blackening, tattooing or scorching.

Injury of Jai Prakash (vide injury report Ext. Ka 5)-

Gun shot wound of entry on right back of head 4 cm above the pinna of right ear, 0.1 cm in diameter, 0.5 cm deep. No blackening, tattooing or scorching present.

Gun shot wound of entry on right side of head 6 cm above injury No. 1, round in shape, 0.1 cm in diameter, 0.5 cm deep. No blackening, tattooing or scorching present.

Gun shot wound of entry on left side of head 9.5 cm above the pinna of left ear, round in shape, 0.1 cm in diameter. No blackening, tattooing or scorching.

Injury of Smt. Ram Beti (vide injury report Ext. Ka 6)

Abrasion 1 cm x 1 cm on middle 3rd part of front of thigh.

Injury of Smt. Shanti Devi (vide injury report Ext. Ka 7)

Gun shot wound of entry on lower part right side back, round in shape, 0.2 cm in diameter, 05 cm deep, margins inverted. No blackening, tattooing or scorching present.

Injury of Smt. Swet Kumari (vide injury report Ext. Ka 8)

Lacerated wound 6 cm x 1 cm x upto bone on right side of head, 8.5 cm above right eye brow.

In the opinion of Dr. Singh all the injuries were fresh. They were caused the same day at about 10 A.M.

PW 5 Dr. V.K. Vatsal had done the autopsy on the dead body of Ramendra Prasad on 23-11-1977 at 12.30 P.M. and prepared the post mortem report Ext. Ka 9 and noted as follows:

The deceased was average built. Rigor mortis was present all over body. No sign of decomposition.

Ante mortem injuries.

A Gun shot wound of entry 1/4" x 1/4" x brain cavity deep on left side back of head 4" away from left ear. No blackening or charring present. Margins inverted.

Two gun shot wounds of entry 1/4 x 1/4 x muscle deep on the back left side of neck 1 1/2" below injury No. 1. Margins were inverted and there was no blackening or charring.

Two slip shots on the right supra clevicle region measuring 1" x 1/4".

Abrasion 1 1/4" x 1/4" over left side abdomen joint below 12th rib.

Multiple gun shot wound of entry (12 in number on the left side of back of chest each measuring 1/4" x 1/4" x chest cavity deep in an area of 14" x 8". No blackening or charring present. Margins inverted.

Four gun shot wounds of entry in an area 9" x 4" on the back of right side chest each measuring 1/4" x 1/4" x muscle deep.

Internal examination.

There was fracture of left occipital bone. Membrance and brain were lacerated. Fifth, sixth and seventh ribs on left side were fractured. Left pleura, lung, paricardium and heart were lacerated. Stomach contained 4 (sic) semi digested food. In the opinion of the Doctor the death was caused due to the aforesaid gun shot injuries which were sufficient in the ordinary course of nature to cause death.

PW 6 Constable Ganga Charan had taken the dead body for postmortem and PW 7 Head Constable Tehsildar Singh had prepared the chick report on the basis of the written FIR Ext. Ka 1 and registered the case.

Lastly, PW 8 Sub Inspector Mahavir Singh, Investigating officer, deposed about the various steps taken by him during the course of investigation.

Constable Lakhan Singh was also examined as a formal witness and he had brought some Registers.

Appellants Ram Autar and Chandra Bhan denied their participation and presence on the scene of occurrence and alleged to have been falsely implicated. Appellant Babu Ram, however, admitted that he was taking water to his field and had been taking the water through that Gali for the last 25 years and that intact Om Prakash fired the shots which caused injuries to the injured and the deceased. He denied to have fired any shot at Ramendra Prasad.

In defence four witnesses were examined DW 1 is Har Prasad, DW 2 is Head Constable Bhoo Deo Singh. DW 3 is Raghunandan Misra, Clerk in the office of the District Magistrate Farrukhabad and DW 4 is Radha Krishna. However, none of them made any statement regarding the occurrence.

The learned Sessions Judge believed the prosecution evidence and disbelieved that of the defence, hence he convicted and sentenced the appellants as stated above. On being aggrieved, this appeal has been preferred.

On behalf of the appellants their learned Counsel did not dispute the prosecution case that the occurrence had taken place on 22-11-77 at about 10 A.M. and also the fact that various injuries were caused to the injured and the deceased at that time. Thus the factum of occurrence has not been challenged. The same also stands proved from the prosecution evidence mentioned above. The learned Counsel also did not make any argument regarding the plea taken by Appellant Bubu Ram before the trial court that Om Prakash PW 3 had fired shots with his gun as a result of which so many persons were injured and Ramendra Prasad was killed The learned Counsel, however, contended that from the facts and circumstances of the case the offence u/s 302 IPC was not made out against Babu Ram Appellant nor u/s 307 IPC against Ram Autar as the intention to cause death on their part could not be borne out from the evidence on record. He, however, contended that at the most the offence amounted to culpable homicide not amounting to murder punishable u/s 304 IPC.

According to the learned Counsel, admittedly a wrangle had ensued in between the parties when the appellants were taking water to their field through the Gali from which they had been taking water for the last 25 years and, therefore, the prosecution witnesses had no right to stop or put any obstruction in the passage of the water. That from the record it was clear that obstruction was placed by the prosecution witnesses and thus the right to take water to their field was illegally interfered with by them whereupon quarrel had ensued and during that sudden quarrel when admittedly two of the prosecution witnesses, namely, PW 1 Babu Ram and PW 3 Om Prakash had taken out lathis and made assault, then the two shots were fired.

We find that there is force in the above contention of the learned Counsel for the appellants. From the testimony of PW 1 Babu Ram, who had lodged the first information report, as admitted by him in his cross-examination, it is clear that he had dropped bricks, stones and earth in the passage upto the height of 6 inches to stop the flow of water towards his side and when the accused were bringing water even at that time they were putting obstruction by dropping earth there and that the earth was dropped by Babu Ram himself, his Bhabhi and Mahesh. He has also admitted that if the accused had not taken water their potato crop would have withered. He admitted that the accused had given an application against him for not permitting him to take water through the passage. He has also admitted that after the dispute the tube-well was got stopped. He has further admitted that after the skirmish with Smt. Satyawati and Mahesh earlier they received Danda blows, they had followed the accused and he had also followed them and Smt Satyawati and he himself and Mahesh were abusing them and that a wrangle was going on till they received the gun shot injuries. He further admitted that he and Ramendra and Om Prakash also picked up lathis. He further admitted that in his report he has stated that he himself and Om prakash had corns with lathis and Ramendra had said that they would not permit the accused to carry water. He has also admitted that he himself and Om Prakash and Ramendra were saying even at the cost of their lives they would not permit the accused to take water and that the accused had fired after he himself and Omprakash brandished lathis in his own words. "Fire mere va Omprakash ke lathi uthane ke bad huwe.... Jab ham logo par pahila fire huva us samey ham Uttar ki taraf muh kiye huve khare the. Us samaya Ramendra ka muh bhee Uttar Ki tarf tha.... Jese he Ramendra ghoome vese hee unke doosara fire laga." From the above it is clear that the prosecution witnesses were facing and threatening the accused with lathis that they would not permit them to take water and admittedly they were also abusing them.

PW 2 Shyam Babu has also admitted that before the firing exchange of abuses had taken place for 2-3 minutes and at that time Omprakash and Babu Ram were also armed with lathis and that the accused had fired both the shots from a distance of 18-20 paces. PW 3 Omprakash has also admitted in his cross-examination that the accused were at a distance of 20 paces when they fired the shots. He has further stated "Jab Muljiman Tamancha va Bandook le aaye tab Ramendra ne kaha pani nahi nikalne devenge marange aur marjayenge."

From the above it is clear that indeed a wrangle had ensued before the shooting took place. The complainant and injured were hurling abuses at the accused and they were also trying to stop the flow of water to their field; that the prosecution witnesses were also armed with lathis and were threatening that they will not permit them to carry water even at the risk of their lives.

The facts of the case Sunder Singh Vs. State of Rajasthan, , were also some-what similar. In that case there was a bitter quarrel between the complainant and accused as to the right to draw water. The complainant was asserting that it was his turn whereas the Appellant and his sons were asserting that it was their turn. It was alleged further by the prosecution that the accused came there in the early part of the day and switched off the motor telling the complainant that they would be operating the tube-well in that night to irrigate their land. The complainant, however, did not agree. When that dispute was going on Appellant with his gun fired at Shiv Narain deceased, who succumbed to the injuries sustained. In the view of their Lordships of the Supreme Court it was not a pre-meditated or pre-planned fire. Each of the party was asserting their turned and not of the other. Their Lordships under those circumstances assumed that the Appellants in exercise of their right got enraged and tried to prevent the mischief by the deceased and, therefore, they were liable only u/s 304 Part I, IPC. In the present case also the circumstances are almost similar. The Appellants were asserting their right to carry water and admittedly the complainant and the prosecution witnesses put all possible obstructions by placing bricks-stones and earth and even thereafter the Appellants succeeded in carrying water. They came out with lathis while the Appellants came with fire arms and when exchange of abuses took place in the heat of the moment to assert their right, two of the Appellants fired. Ram Autar Appellant had fired with a country made pistol as a result of which only simple gun short injuries were received by Ved Prakash, Omprakash. Jai Prakash, Smt. Shanti Devi and Bhajan Lal, while gun shots of Babu Ram Appellant caused injuries to Ramendra which proved fatal even though the same were fired from a distance of 20 paces as a result of which he died. It is thus clear that prima facie there was no intention to cause death though knowlege that the injuries were likely to cause death can be safely imputed to the Appellant Babu Ram The intention of a person has to be judged not in the light of the actual circumstances but in the light of what he supposed to be the circumstances, while knowledge has reference to the particular circumstances in which a person is placed. Thus there may be knowledge about intention as the knowledge of the consequence which may result in the doing of an act is not the same thing as the contention that such consequence should ensue. Under the circumstances of the case, therefore, Babu Ram Appellant''s conviction is liable to be altered from Section 302 - 304 Part I, IPC.

As regards Ram Autar, he had fired with a country made pistol and caused only simple pellet injuries from a distance of about 20 paces and as it has already been held above that the Appellant had not fired with the intention to kill, his conviction is to be altered from Section 307 IPC to one u/s 324, IPC.

The Appellant Chandra Bhan has been convicted u/s 323 IPC for causing simple Danda injuries to Smt. Satya Wati and Mahesh and the same has to be maintained.

As regards the sentence, considering that the occurrence had taken place on 22-11-1977, i.e., more than 13 years back, the ends of justice would amply meet if Babu Ram is convicted u/s 304 Part I, IPC and is sentenced to 4 years'' rigorous imprisonment, Ram Autar u/s 324 IPC and is sentenced to the period already undergone and Chandra Bhan u/s 323 IPC to the period already undergone instead of six months rigorous imprisonment.

In the result, we allow this appeal in part. The conviction of Appellant Babu Ram u/s 302 IPC is altered to one u/s 304 Part I, IPC and is sentenced to 4 years'' rigorous imprisonment. Ram Autar''s conviction is altered from Section 307 - 324 IPC and is sentenced to the period already undergone. The conviction of Appellant Chandra Bhan is maintained u/s 323 IPC and his sentence is reduced to the period already undergone.

Appellant Babu Ram is on bail. He shall surrender forthwith and be taken into custody to serve out his sentence. The court below shall immediately issue non-bailable warrants against him. Bail bonds of Appellants Ram Autar and Chandra Bhan are cancelled and their sureties are discharged. They need not surrender.