Gaya Prasad and Others vs State of U.P.

N.K. Mehrotra, J.—This is an appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order dated 17.11.1989 passed by the Sessions Judge, Unnao in S.T. No. 37 of 1988, State v. Gaya Prasad and Ors. u/s 302/325/34, I.P.C., Crime No. 3 of 1988, P.S. Hasanganj, district Unnao convicting and sentencing the accused Appellants u/s 304 (Part First) read with Section 34, I.P.C. to 10 years rigorous imprisonment and u/s 325, I.P.C. to undergo 5 years'' rigorous imprisonment.

I have heard Sri Virendra Bhatia, learned Counsel for the Appellants and Sri Bal Ganga Dhar Tripathi, Additional Government Advocate.

The prosecution story is that Sakoor Ahmad informant and accused Gaya Prasad and his sons Satya Narain and Jhabbul and co-accused Raj Kumar are all residents of village Ghol within the circle of police station Hasanganj, district Unnao. In front of the house of the deceased, Nazir Ali, one hand-pump was got installed by the deceased, water whereof used to be discharged towards north through a drain. Towards the north of the house of the deceased, there was Gram Sabha land. Gaya Prasad accused had taken that land on Patta from the Pradhan but the Pradhan had provided a drain for the flow of water from the hand-pump of the deceased. Gaya Prasad accused had dismantled and had assimilated the drain in his land and had sown ''lahsun'' (garlic) crop in that field. On 15.2.1989 at about 3 p.m., Sakoor Ahamad injured and the informant and his father deceased Nazir Ali were sitting at the door of their house. Accused Gaya Prasad and his sons Jhabbul and Satya Narain and Raj Kumar came there armed with lathi, danda and started hurling abuses on the deceased and his son saying that why they had inundated their garlic crop with water. Whereupon the deceased told them that they were flowing water in that direction according to the instructions of the Pradhan and that the water used to flow in that very direction since the time of their ancestors. Thereupon all accused started assaulting informant Sakoor Ahamad and his father Nazir Ali with lathi-dandas. At that time, Hasmat Ali and Wali Mohammad two close relations of the informant were present at his house. They had rushed to the rescue of informant and his father. The ladies of the house had also rescued. When these witnesses had challenged the accused persons, they had escaped towards north. Both informant and his deceased father had sustained injuries. Informant''s mother became busy in arranging a bullock-cart for transporting the injured persons to the police station but in the meantime, injured Nazir Ali expired at about 5.20 p.m. on the same day. Informant Sakoor Ahamad thereupon called Shafi and accompanied with him he left for the police station. On the way, at the crossing of Gajaffar Nagar, he got the written report of the occurrence prepared from a stranger on his dictation. He reached police station at 8.45 p.m. and handed over the written report to the Constable/scribe Shri Ram Asre Tiwari (P.W. 6) who prepared chik F.I.R. Ext. Ka-5 and simultaneously reduced into writing substance of the crime in the G.D. Sakoor Ahamad injured was interrogated at the police station and thereafter he was sent for medical examination to P.H.C., Hasanganj, but he could not be medically examined at P.H.C., Hasanganj, because the doctor was not there. Thereafter he was sent for X-ray examination. His X-ray was taken on 8.1.1988 by Dr. Sachan. On X-ray, it was found that ulna bone of the left hand was fractured. After completing the investigation, the charge-sheet was submitted in the Court and case was committed to the Court of Sessions. Accused were charged u/s 302/34, I.P.C. and 325/34, I.P.C. All the accused pleaded not guilty and claimed to be tried. Accused stated that they have been falsely implicated on account of previous enmity because Gaya Prasad had taken land on patta for ''lahsun'' field from the Gaon Sabha and Sakoor also wanted to take this land and this was grudge to Sakoor Ahamad who could not procure the land for himself.

Prosecution examined constable Babu Lal Dixit P.W. 1, Dr. Navneet Lal Mahajan P.W. 2, Dr. R. K. Sachan P.W. 3, Dr. A. K. Nigam P.W. 4, Sakoor Ahamad P.W. 5, H. C. Ram Asre Tiwari, P.W. 6, S.I. P. N. Misra P.W. 7 and S.I. G. P. Misra P.W. 8.

After considering the entire evidence, the learned Sessions Judge found the accused persons guilty u/s 304 (Part First) read with Section 34, I.P.C. for causing death of Nazir Ali and u/s 325 read with Section 34, I.P.C. for causing grievous hurt to Sakoor Ahamad and sentencing them to 10 years rigorous imprisonment u/s 304 (Part First) read with Section 34, I.P.C. and to undergo 5 years rigorous imprisonment u/s 325 read with Section 34, I.P.C. It is against this judgment of conviction and punishment, the accused have preferred this appeal.

During the pendency of the appeal, Appellant No. 4 Raj Kumar alias Chaudhary has died, therefore, the appeal filed by him stands abated.

There is only one witness of fact Sakoor Ahamad P.W. 5. I have examined the statement of Sakoor Ahamad P.W. 5. According to Sakoor Ahamad P.W. 5, altercation on the flow of water had continued for about 2-3 minutes and thereafter his father had said that water was being discharged towards the ''lahsun'' field on the direction of the Pradhan. At this all the accused persons had opened attack on him as a result of which his father had fallen down in an injured condition and when he advanced ahead, he too was assaulted by the accused persons with lathi-dandas and he was also injured.

I may quote the findings of the learned Sessions Judge in his own words as follows:

It may be noted that all the four accused persons had come in group armed with lathis-dandas to the doors of the deceased where the deceased and his son Sakoor Ahamad P.W. 5 were sitting and had protested to them regarding flow of the water from the hand-pipe of the deceased to their lahsun field and while doing so had hurled abuses at the deceased and his son. When the deceased and his son had pointed out that they were discharging the water towards lahsun field of the accused with the approval of the Gram Pradhan, all the four accused had opened attack on the deceased and his son with lathi-dandas, resulting in head injury to Nazir Ali and when he had fallen down, all the four accused had opened attack with lathi on Sakoor Ahamad (P.W. 5). Head injury of Nazir Ali could have caused with blunt object like lathi, according to the medical opinion available on record and likewise three injuries of Sakoor Ahamad (P.W. 5) also could have been inflicted with the blunt object like lathi and danda.... However, it cannot be inferred from the prosecution evidence that all the accused had come to the door of the deceased after having plan to commit murder of Nazir Ali. As all the accused persons had simultaneously opened attack on the deceased and subsequently on his son Sakoor Ahamad (P.W. 5), it can be readily inferred that all of them have done so in furtherance of their common intention to assault the deceased and his son Sakoor Ahamad. Had their intention been to simply lodge protest with the deceased and his son, they would have come to the door of the deceased unarmed, but they had come armed with lathis, which goes to prove that they had come determined to lodge protest and in case necessity arose also to assault the deceased and his son. "However any intention to commit murder is not established, in my opinion, from the evidence available on record. None of the accused persons has had uttered any word during the occurrence from which it may be inferred that at the spur of moment, the accused persons had formed common intention to kill the deceased. However, the fact that all the accused persons had simultaneously opened attack, is sufficient to raise inference that they had sustained common intention on the spot to inflict injuries to the deceased and his son.

A perusal of the statement of Sakoor Ahamad goes to show that he has not given any such statement as to which of the accused had given fatal blow of which injury caused death of the deceased.

Now after quoting the statement of Sakoor Ahamad only eye-witness, I quote the ante-mortem injuries on the body of the deceased. Following ante-mortem injuries were noted by the doctors:

(1) Lacerated wound on right temporal region 6 cm. above right ear, 6 cm. - 1 cm. - bone deep, direction from front to backward.

(2) Abrasion 3 cm. - 2 cm. on the right side of forehead 3 cm. above right eye-brow. The nail were firm but the hairs had become loose.

On the internal examination, the skull bone was found fractured towards right side in an area of 5 cm. - 1 cm. below injury No. 1. The brain was contused and 150 cc blood was found accumulated towards right side in the skull.

Dr. A. K. Nigam P.W. 4 has given opinion that the death has been caused on account of shock produced by head injury.

I also quote the injuries of Sakoor Ahamad P.W. 5 noted by Dr. N. K. Mahajan which are as follows:

(1) Contusion 2 cm. - 1.5 cm. - 5 cm. above right ear.

(2) Contusion 8 cm. - 6 cm. on the left forearm on the backside and on exterior extremely, colour was red.

(3) Lacerated wound 1 cm. - 1/2 cm. skin deep on the backside of left fore-arm and 4 cm. above the wrist. After washing the wound and removing the clotted blood, bleeding was found present.

On the basis of the aforesaid statement of Sakoor Ahamad and the finding recorded by the learned Sessions Judge, I gather the following:

(i) The incident had taken place at the spur of moment.

(ii) All the four accused had attacked with lathis-dandas. No specific role for fatal injury is established.

(iii) Accused were not pre-planned to commit murder or to cause grievous injuries.

(iv) There was no common intention before coming on the spot.

(v) The intention to commit murder is not established.

(vi) There was no utterance by any accused to show the intention to kill.

(vii) Attack was simultaneous.

Section 304, I.P.C. is as follows:

Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder, shall be punished with (imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death ;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death....

Part First of this section applies only to acts done with the intention to cause death of such fatal injuries as was likely to cause death.

Section 325 of the Indian Penal Code is as follows:

Punishment for voluntarily causing grievous hurt.-Whoever, except in the case provided for by Section 335, voluntarily cause grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable for fine.

In Shri Kishan and Others Vs. State of U.P., the facts of the case were near about the same. Hon''ble Supreme Court, after quoting the finding of the High Court that the common intention of the Appellant was to give a severe beating, held as follows:

The above finding as well as broad circumstances of the case go to show that the common intention of the accused was to cause grievous injury to the victim. The fact that one of them exceeded the bound and gave a fatal blow on the head of the deceased would make him personally liable for the fatal injury, but so far as the other three are concerned, they can be held liable only for the injuries which were caused in furtherance of the common intention and not for the fatal injury. As it is not possible on the material on record to find out as to which one of the accused gave the fatal blow, there is no escape from the conclusion that each one of the four accused can only be guilty of the offence u/s 325 read with Section 34, Indian Penal Code. We accordingly alter the conviction of each of the accused Appellants from u/s 302 read with Section 34 of Indian Penal Code to that u/s 325 read with Section 34, Indian Penal Code.

In Ram Lal Vs. Delhi Administration, , the conclusion was that the common intention was not to cause death but only grievous hurt and the evidence discloses that two lathi blows had been given on the head and there was no evidence which of these two was given by the accused. Hon''ble Supreme Court after giving the benefit of doubt converted the conviction u/s 302, I.P.C. to Section 325, I.P.C. read with Section 34, I.P.C.

In the instant case also, in view of the findings recorded by the learned Sessions Judge which are found in accordance with the evidence on record, I find that there is neither any intention to kill on the part of the accused nor there is any evidence to hold any particular accused responsible for causing fatal injury on the head of the deceased and there was no pre-planned intention to cause grievous hurt even.

In these circumstances, this is a fit case for altering the conviction from u/s 304 (Part First), I.P.C. to Section 325/34, I.P.C. for causing ante-mortem injuries to Nazir Ali deceased. So far as the offence u/s 325 read with Section 34, I.P.C. for causing grievous hurt to Sakoor Ahamad is concerned, no interference is required.

Learned Counsel for the accused Appellants has also placed other contention to show that the charge is not proved on the ground that the place of occurrence has been shifted and Sakoor Ahamad has been medically examined very late. I do not find any force in these two contentions.

In view of the discussions above even after agreeing with the aforesaid finding of the learned Sessions Judge, I find that in this case, the accused cannot be convicted u/s 304 (Part First) read with Section 34, I.P.C. for causing the death of Nazir Ali but they are to be convicted u/s 325/34, I.P.C. for causing ante-mortem injuries to Nazir Ali and further injuries to Sakoor Ahamad.

Learned trial court has sentenced the accused persons to 5 years'' rigorous imprisonment u/s 325/34, I.P.C. In my opinion, the sentence of 5 years'' rigorous imprisonment u/s 325/34, I.P.C. is excessive and it should be reduced to 3 years.

Similarly for causing the fatal injury which is grievous in nature to deceased Nazir Ali, the sentence of 3 years'' rigorous imprisonment u/s 325/34, I.P.C. will meet the ends of justice.

In result, the appeal is partly allowed. The conviction of the accused persons Gaya Prasad, Satya Narain and Jhabhul alias Babu Lal u/s 304 (Part First) read with Section 34, I.P.C. is set aside. They are convicted u/s 325/34, I.P.C. and sentenced u/s 325/34, I.P.C. for causing grievous hurt to Nazir Ali to three years'' rigorous imprisonment. Further conviction u/s 325/34, I.P.C. for causing grievous hurt to Sakoor Ahamad is confirmed and the order of sentence is modified from 5 years to 3 years'' rigorous imprisonment. Both the sentences shall run concurrently.

Let a copy of this judgment be sent to the C.J.M. concerned for compliance within ten days. On arrest of accused Appellants, their bail bonds shall stand cancelled. C.J.M. concerned, shall submit the compliance report within one month, thereafter.