Babu Ram and Another vs State of U.P.

Vishnu Sahai, J.—Through this appeal Babu Ram and Ram Bahadur challenge the judgment and order dated 20.7.1983 passed by Sessions Judge, Kheri in Sessions Trial No. 326 of 1982, whereby they have been convicted and sentenced in the manner stated hereinafter:

(1) u/s 302/34, I.P.C. to suffer imprisonment for life ; and

(2) u/s 324/34, I.P.C. to suffer six months R.I.

Their sentences on both the counts have been directed to run concurrently.

Shortly stated the prosecution case runs as under:

The informant Naval Kishore P.W. 1 is the son of deceased Chandra Bhal alias Putan. Appellants Babu Ram and Ram Bahadur real brothers inter-se, are the cousin of the informant ; their grandfathers being real brothers. At the time of the incident, the informant, the deceased Chandra Bhal alias Putan, the Appellants, Mangal Din P.W. 2, Harbans P.W. 3, Paikarma Din C.W. 1 and Uma Shanker C.W. 2 were living in village Tikaula within the limits of police station, Neemgaon, district Kheri.

2.1. On 5.4.1982 at about 8.00 p.m. the informant, his father Chandra Bhal alias Putan, Harbans P.W. 2, Paikarma Din C.W. 1, Satya Narain and Mangal Din P.W. 2 were sitting near the sugarcane crushing machine of Mangal Din. A lantern was burning there. There was also moon light. At that time Appellant Ram Bahadur armed with a kanta and Appellant Babu Ram armed with a banka came and in challenging tone told Chandra Bhal alias Putan as to why he did not partition the grove. He replied that they had cut his share of sheesham trees ; used to cut his trees ; and he would lodge an F.I.R. On that Appellant Ram Bahadur with a kanta and Appellant Babu Ram with a banka assaulted him. When Mangal Din tried to rescue Chandra Bhal alias Putan, he was also assaulted by the Appellants, resulting in injuries on his fingers.

2.2. Apart from the informant Naval Kishore and Mangal, this incident was seen by Harbans, Paikarma Din, Uma Shanker and some others.

2.3. As a consequence of the assault Chandra Bhal alias Putan succumbed to his injuries on the spot. After assaulting Chandra Bhal alias Putan and Mangal Din, the Appellants ran away.

2.4. Thereafter, the informant wrote his F.I.R. and along with the corpse of his father on a bullock-cart, accompanied by Mangal Din, Paikarma, Satya Narain, Harbans and Uma Shanker proceeded to police station Neemgaon where he lodged his written F.I.R.

The evidence of Constable Kaushlendra Singh P.W. 5 shows that on 5.4.1982, at 11.30 p.m. the informant Naval Kishore came to police station Neemgaon and lodged his written F.I.R. on the basis of which he prepared the chik F.I.R. Ext. Ka-4. A perusal of the chik F.I.R. shows that the distance between the place of incident and the aforesaid police station is four miles.

The evidence of S.I., T. N. Lal C.W. 3 shows: On 5.4.1982 the F.I.R. was lodged in his presence. He took over the investigation and performed the inquest on the corpse of the deceased, which had been brought by the informant on a bullock-cart and recovered a matress, scarf and sheet all of which were blood stained, from the bullock-cart, vide recovery memo, Ext. Ka-13. He then proceeded along with the complainant and others to the place of incident, where he recorded the statement of complainant and Mangal Din. He, thereafter, sent Mangal Din for medical examination. He then prepared site plan and seized from the place of incident plain and blood stained earth in separate containers under recovery memos. On 15.4.1982, he recorded the statements of Paikarma Din, Satya Narain, Harbans and Uma Shanker. Since the Appellants were not traceable, he submitted a report for initiating proceedings u/s 82/83, Cr. P.C. On 3.5.1982 the Appellants surrendered in the Court and were sent to jail. On 15.5.1982 he submitted charge-sheet against them.

Going backwards the injuries of Mangal Din were medically examined on 6.4.1982 at 2 p.m. by Dr. Om Parkash Misra P.W. 4 at Behijan Primary Health Centre. Dr. Misra found the following injuries on the person of Mangal Din:

(i) Incised wound (2 cm. x 0.4 cm. x skin deep) in size present on dorsal surface of the index and middle finger of let...sic...hand 10 cm. below left wrist joint. Margins are regular.

(ii) Incised wound (2.5 cm. x 0.5 cm. x skin deep) in size present on dorsal side of the I Ind phalanx of the left index finger of left hand. Fresh bleeding present.

(iii) Incised wound (1.5 cm. x 0.2 cm. x skin deep) in size present. Dorsal surface of the inner phalangeal joint of the proximal and middle phalanx of right ring of right hand.

In the opinion of Dr. Misra the said injuries were simple in nature ; caused by a sharp cutting edged weapon ; and their duration was about one day.

In his deposition in the trial court, Dr. Misra stated that they could be caused on 5.4.1982 at 8 p.m.

The autopsy on the corpse of the deceased Chandra Bhal alias Putan was conducted on 6.4.1982 at 3 p.m. by Dr. R. K. Vats P.W. 6, who found on it the following ante-mortem injuries:

(1) Incised wound 7 cm. x 1.5 cm. x bone deep on the middle 1/3 inner side of right forearm, horizontal, spindle in shape margins sharp and clean cut, both ends tailing off covered with clotted blood. Both the radius and ulna bones were found fractured underneath the injury.

(2) Incised wound 17 cm. x 2 cm. x cranial cavity deep over right side of forehead and middle 1/3 right side of head anterior-posterior. Anterior end of the wound was 4 cm. above from the middle of right eye-brow and posterior end of the wound was 12 cm. above the top of the right ear. The wound was spindle in shape, tailing off on both ends, cutting sharply the frontal bone on right side with right parietal bone along with the injury. Margins of the wound were clean-cut and sharp covered with clotted blood.

The cause of death spelt out in the post-mortem report, which was also reiterated by Dr. Vats in his statement in the trial court was coma as a result of the ante-mortem head injury.

In his statement in the trial court Dr. Vats stated that the said injuries were attributable to a sharp cutting weapon ; were possible by kanta and banka ; could have been caused on 5.4.1982 at 8 p.m. ; and were sufficient to cause death.

The case was committed to the Court of Sessions in the usual manner where the Appellants were charged for offences punishable under Sections 302/34, I.P.C. and 324/34, I.P.C. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial:

During trial in all prosecution examined six witnesses. Three of them namely Naval Kishore P.W. 1, Mangal Din P.W. 2, Harbans P.W. 3 were examined as eye-witnesses. Two eye-witnesses namely, Paikarma Din and Uma Shanker were summoned by the Court and were examined as C. Ws. 1 and 2 respectively.

7.1. The learned trial Judge believed the ocular account adduced by prosecution and convicted and sentenced the Appellants in the manner stated in para 1.

7.2. Hence, this appeal.

We have heard Mr. Subodh Shukla, advocate for the Appellants and Mr. Janardan Singh, Additional Public Prosecutor for the State of U.P. (Respondent) and have perused the depositions of the prosecution witnesses ; the material exhibits tendered and proved by the prosecution ; statements of Appellants recorded u/s 313, Cr. P.C. and the impugned judgment. In our view, this appeal deserves to be partly allowed ; inasmuch as, in place of the offence punishable u/s 302/34, I.P.C. Appellants deserve to be convicted for one u/s 326/34, I.P.C.

We, however, feel that the conviction of the Appellants for the offence punishable u/s 324/34, I.P.C. has been rightly recorded by the Court below.

We now propose giving reasons for reaching the said conclusion.

So far as the involvement of the Appellants in the incident is concerned, the same, in our view, is established, to the hilt by credible ocular account furnished by the informant Naval Kishore P.W. 1, Mangal Din P.W. 2, Harbans P.W. 3, Paikarma Din C.W. 1 and Uma Shanker C.W. 2. It is pertinent to mention that excepting Uma Shanker, whose house was situated at a distance of about 10 paces from the place where the sugarcane crushing machine of Mangal Din P.W. 2 was installed (where the incident took place) the other witnesses as also the deceased Chandra Bhal alias Putan, at the time of the incident were sitting at the said sugarcane crushing machine. In other words, all the eye-witnesses of the incident were natural witnesses of the same.

From the perusal of the evidence of the aforesaid five witnesses it emerges that the incident took place in the following manner:

On the date of the incident at 8.00 p.m. they (excepting Uma Shanker) were sitting at Mangal Din''s sugarcane crushing machine. At that time, Appellant Ram Bahadur with a kanta and Appellant Babu Ram with a banka came and in challenging tone questioned Chandra Bhal alias Putan as to why he did not partition the grove. On that, Chandra Bhal alias Putan replied that they had cut the sheesham trees of his share and used to cut his trees and cause loss to him. He said that he would lodge an F.I.R. against them. On that, Appellants started assaulting Chandra Bhal alias Putan and when Mangal Din tried to save him he was also assaulted by them, resulting in his sustaining injuries on fingers. This incident was seen (by the witnesses) in the light of lantern which was burning at the sugarcane crushing machine and in moon light. After fatally assaulting Chandra Bhal alias Putan and injuring Mangal Din the Appellants ran away. Thereafter, Naval Kishore scribed the F.I.R. and all of them, with the corpse of the deceased proceeded to police station Neemgaon on a bullock-cart, where the F.I.R. was lodged.

In our judgment, ocular account furnished by the eye-witnesses (which we have given out in the preceding paragraph) is credible.

11.1. In the first place, the presence of the eye-witnesses on the place of the incident and their claim of having seen the incident stands established. We have seen that excepting Uma Shanker, whose house was situated at a distance of ten paces from the sugarcane crushing machine of Mangal Din (where the incident took place) the other witnesses at the time of the incident were at the said machine. Consequently, in our view, it is also not surprising that Uma Shanker saw the incident because his evidence shows that place of the incident is ten paces from his house and is visible from there.

11.2. Secondly, the manner of assault as furnished by the witnesses, i.e., the deceased being assaulted by the Appellants with kanta and banka and Mangal Din being assaulted by them with the said weapons is corroborated by medical evidence because as we have seen earlier Dr. R. K. Vats, who performed autopsy on the corpse of the deceased, found two incised wounds on it and Dr. Om Prakash Mishra, who medically examined Mangal Din, found on his person three incised wounds. The evidence of both Dr. Vats and Dr. Mishra shows that injuries of both the victims could be caused by kanta and banka (weapons alleged to have been used by the Appellants).

11.3. It is pertinent to mention that although all the five witnesses were subjected to cross-examination but their credibility could not be impeached in any manner.

For the said reasons, in our, view, the evidence of the five eye-witnesses, namely Naval Kishore P.W. 1, Mangal Din P.W. 2, Harbans P.W. 3, Paikarma Din C.W. 1 and Uma Shanker C.W. 2 inspires confidence.

It should be borne in mind that out of these five witnesses, Mangal Din is an injured witness, whose injuries clinch his presence on the place of incident. In our view even had he been the only eye-witness of the incident, his evidence would have been sufficient to hold the involvement of the Appellants established in the incident.

It is significant to mention that the F.I.R. of the incident was also lodged very promptly. We have seen that the incident took place on 5.4.1982 at 8 p.m. and the F.I.R. was lodged on the said date, itself, at 11.30 p.m. by Naval Kishore at police station Neemgaon, which is situated at a distance of four miles from the place of incident. Considering the circumstances that after the incident the informant Naval Kishore scribed the F.I.R. and then on a bullock cart, along with the corpse of his father and the witnesses, proceeded to police station Neemgaon to lodge the F.I.R., the F.I.R. was promptly lodged.

It is significant to point out that in this prompt F.I.R. of the incident all the essential features of the prosecution case including:

(a) the names of the witnesses ;

(b) the names of the Appellants ;

(c) the names of victims ;

(d) the weapons in the hands of the Appellants ;

(e) the manner of assault ;

(f) the motive for the incident ; and (g) the light in which the witnesses are said to have identified the Appellants namely moon light and the light of lantern ;

have all been mentioned.

For the aforesaid reasons, in our view, the learned trial Judge acted correctly in finding the involvement of the Appellants in the incident, established.

We are also of the judgment that learned trial Judge acted correctly in convicting them for the offence punishable u/s 324/34, I.P.C. because they with kanta and banka assaulted Mangal Din, when he rushed to the rescue of the deceased Chandra Bhal alias Putan and inflicted three simple incised wounds on his fingers.

But we make no bones in observing that it was not prudent for the learned trial Judge to have convicted the Appellants for the offence punishable u/s 302/34, I.P.C.

In our view, the following circumstances show that the common intention of the Appellants was only to cause grievous hurt to deceased:

(a) Appellants were nephews of the deceased and enmity alleged by the prosecution (referred to in para 2), in our view, was not so strong that from it an inference with respect to the murder of the deceased could be raised ;

(b) It is own case of the prosecution that although in a challenging tone, Appellant Babu Ram came armed with a banka and Appellant Ram Bahadur with a kanta, they did not stainghtaway assault the deceased Chandra Bhal alias Putan. On the converse, they asked him to partition the grove and when he said that he would lodge an F.I.R. against them for cutting his trees, they assaulted him ;

(c) Neither in the F.I.R. nor in the evidence of the eye-witnesses has it come out that the challenge made by the Appellants was that the deceased be killed ; and (d) Appellant Babu Ram with a banka and Appellant Ram Bahadur with a kanta are alleged to have only given a solitary blow each to deceased Chandra Bhal, who sustained two incised wounds-one on the right forearm and one on the head ; the latter proved as fatal. It is pertinent to mention that out of five eye-witnesses four namely, Mangal Din, Harbans, Paikarma Din, and Uma Shanker have not been able to specify as to whose blow caused fatal incised wound suffered by the deceased on his head. It is true that Naval Kishore did say that it was the banka blow of Babu Ram which caused the head injury but we are not inclined to accept his evidence, not only because other four eye-witnesses did not say so but also because he himself has not mentioned it in his F.I.R.

In the factual matrix, referred to in the preceding paragraph, in our view, it would be reasonable to infer that the common intention of the Appellants was not to commit the murder of the deceased but it was only to inflict grievous hurt to him, but during the course of assault one of the Appellants exceeded it and caused the fatal head injury suffered by the deceased.

We make no bones in observing that where an act is committed by persons in furtherance of their common intention and one of them exceeds the common intention, then only the person exceeding it would be liable for his individual act and others would not be constructively liable for it. It is in this sense that the liability fastened by Section 149, I.P.C. is wider than Section 34, I.P.C. because for the application of the latter, it has to be shown that the criminal act committed by several persons was committed by them in furtherance of their common intention but this is not necessary in the case of the former because for it''s application it is not necessary that the criminal act committed by the members of the unlawful assembly should be committed by them in furtherance of the common object of unlawful assembly. They would be equally liable for it if circumstances show that they had the knowledge of its being committed.

For the said reasons in our view, the learned trial Judge erred in convicting the Appellants for the offence punishable u/s 302/34, I.P.C. and instead he should have convicted them for that punishable u/s 326/34, I.P.C. We are fortified in our view by the decision of the Supreme Court in the case of Shri Kishan and Others Vs. State of U.P., , a perusal of para 6 of which shows that as an off-shoot of a trifling incident, four accused persons armed with lathies caused five injuries to the deceased Seru and one of which, which was on the head, proved fatal and the remaining were simple in nature. The trial court had convicted all the accused persons u/s 302/34, I.P.C. and the High Court had dismissed the appeal. The Supreme Court took the view that circumstances went on to establish that the common intention of the accused was only to cause grievous hurt to the deceased and one of them exceeded it and inflicted the fatal injury on his head and since it was not possible to find out as to which of the four accused persons exceeded the common intention, the offence made out would be one u/s 325/34, I.P.C. and not u/s 302/34, I.P.C. Consequently, the Supreme Court altered the conviction of the accused from Section 302/34, I.P.C. to one u/s 325/34, I.P.C. and sentenced them to undergo five years'' R.I.

In our judgment, Sri Kishan''s case (supra) is fully applicable to our case and consequently, as observed by us earlier, in place of the offence punishable u/s 302/34, I.P.C. only one u/s 326/34, I.P.C. would be made out against the Appellants.

Coming to the question as to the sentence, which should be awarded to the Appellants for the offence punishable u/s 326/34, I.P.C., in our view, considering the circumstances that the Appellants assaulted deceased Chandra Bhal alias Putan with lethal weapons like kanta and banka and the head injury suffered by the deceased involved fracture of right side of frontal and parietal bones, a sentence of seven years'' R.I. would meet the ends of justice.

As regards the sentence for the offence punishable u/s 324/34, I.P.C. is concerned, since the same is six months'' R.I. it does not merit reduction.

In the result, this appeal is partly allowed. Although we confirm the conviction of Appellants Babu Ram and Ram Bahadur for the offence punishable u/s 324/34, I.P.C. and the sentence of six months R.I. awarded to them thereunder but we set aside their conviction for the offence punishable u/s 302/34, I.P.C. and the sentence of imprisonment for life awarded to them thereunder and instead convict them for the offence punishable u/s 326/34, I.P.C. and sentence them to undergo seven years'' R.I., which sentence of theirs shall run concurrently with their sentence for the offence punishable u/s 324/34, I.P.C.

Appellants Babu Ram and Ram Bahadur are on bail and shall be taken into custody forthwith to serve out their sentences.