Jabbar Beg and Another vs State of U.P.

Bhanwar Singh, J.—This appeal is directed against the judgment dated 18th September, 1989 pronounced by the learned Sessions Judge, Rai Bareli, whereby the two Appellants were convicted u/s 302, I.P.C. read with Section 34, I.P.C. on two counts for causing murder of Mohd. Abbas and Irfan and sentenced to undergo imprisonment for life on each count. The sentences were directed to run concurrently.

The Appellants, who are father and son committed murder of another duo of father and son--both the twosome intimately related to each other. Mohd. Jabbar (Appellant No. 1) is the real brother of Mohd. Abbas (deceased No. 1) and real uncle of the other deceased Irfan. The accused Mohd. Rauf (Appellant No. 2) is the real nephew of Mohd. Abbas and naturally the cousin of the latter''s son Irfan.

The analytical resume leading to filing of this appeal may be recapitulated as below :

Both the real brothers, namely, Mohd. Jabbar (Appellant No. 1) and Mohd. Abbas (deceased No. 1) resided in village Nahargarh, Police Station Shiv Ratan Ganj, District Rai Bareli with their respective sons Mohd. Rauf (Appellant No. 2) and Irfan (deceased No. 2). The two brothers picked-up a quarrel on a flimsy issue. The two deceased persons had kept a few pieces in hide of a tree, known as ''CHHOOL'' in countryside. The accused persons committed theft of the entire timber, took it away and concealed in the heap of ''PUAL'' (paddy-straw) outside the village. The two deceased came to learn about this theft and also the place of the timber being stored. On January 20, 1989 at about 6 p.m. they went to the place of the timber being hidden by the Appellants and made an attempt to bring it back to their house. When Mohd. Jabbar and his son Rauf learnt about the endeavour of the two deceased, they chased the latter duo, intercepted them and attacked with lathis. Mohd. Abbas and Irfan raised an alarm and shouted for help hearing which Rais Ahmad (P.W. 1), the other son of Mohd. Abbas, Rafiq Ahmad (P.W. 2) and Mobin Ahmad rushed to their rescue. All these witnesses saw the two Appellants inflicting lathi blows to Mohd. Abbas and his son Irfan. Both the assailants however fled the scene seeing the witnesses reaching there. Both the victims of occurrence received serious head injuries and fell unconscious. Rais Ahmad (P.W. 1) with the help of the other witnesses carried the two injured by the jeep of Jahur Ahmad, a resident of Chandmau to the Police Station Shiv Ratan Ganj, where he lodged the report at 8.50 p.m. (Ext. Ka-1). On the basis of the said report, chik F.I.R. (Ext. Ka-5) was drawn and its entry was made in the G.D. at Sl. No. 31. The police had registered a case u/s 307 I.P.C. and got the two injured escorted to the P.H.C. Singhpur by Constable No. 321 Pooran Lal Sharma. The condition of the two injured being serious, their case was referred to the District Hospital Rai Bareli, where Mohd. Abbas was pronounced as brought dead. The injuries of Irfan were examined at the District Hospital at 1 p.m. on the intervening night of 20/ 21.1.1989. Mohd. Irfan could not recover from his unconsciousness and was therefore referred to Lucknow, but he died on the way.

On receipt of the information regarding the death of Mohd. Abbas, the case was altered from Section 307, I.P.C. to Section 302, I.P.C. and an entry about this conversion was made at SI. No. 14 in G.D. on 21.1.1989 at 2.15 p.m. (Extract Ext. Ka-7). The information regarding the death of Mohd. Abbas was received and noted at Sl. No. 29 at 10.35 p.m. on January 21, 1989. The inquest on the dead body of Mohd. Abbas was conducted by the Station Officer Ram Samujh Verma (P.W. 8) who was then posted at Police Station Kotwali Rai Bareli as Sub-Inspector. He prepared the inquest report Ext. Ka-10 at the mortuary of the District Hospital, Rai Bareli. He got the dead body packed and sealed in a cloth cover and sent to the Chief Medical Officer for post-mortem. Dr. A. K. Singhal conducted autopsy on the dead body of Mohd. Abbas and on examination found two injuries--one lacerated wound on right side scalp and the other contused swelling over left-side scalp. On internal examination, fracture of frontal parietal bone of both sides was noticed. Membranes were congested and haematoma was present over frontal left and right sides of the brain. Both the lungs were found congested and the right chamber of the heart was full and the left chamber empty. In the post mortem report categorical findings were recorded about the abdomen, liver, spleen and both kidneys, which were congested. The cause of death was due to coma as a result of ante-mortem injuries.

The inquest on the dead body of Irfan was conducted by Sub-Inspector Brij Kishore Yadav (P.W. 9) on 21st January, 1989. He prepared the inquest report (Ext. Ka-17), photolash (Ext. Ka-18), challan lash (Ext. Ka-19) and wrote a letter Ext. Ka-20 to the Chief Medical Officer for autopsy report. The dead body was packed and sealed in a piece of cloth and sent for post-mortem. Dr. Dilip Kumar (P.W. 5) conducted the autopsy at 3 p.m. on 22nd January, 1989. There were two ante-mortem injuries on the dead body of the deceased--first stitched wound on the right side of head, a little above the upper border of right pinna and the other an abrasion above the middle of the right eyebrow. On internal examination, a depressed fracture, triangular in shape, was found on the scalp and skull under injury No. 1. Membranes were clotted and extra-dural haematoma was present. Right chamber of the heart was full and the left chamber empty. Stomach contained semi-digested food, whereas large intestines contained gases and faecal matter, the small intestines had pasty material and gases. The cause of death was ascertained as coma as a result of ante-mortem head injuries.

The investigation of this case was entrusted to S.I. Brij Kishore Yadav (P.W. 9). He recorded the statements of witnesses beginning with the interrogation of Head Constable at the police station. At Nahargarh, he searched for the accused who were not traceable. On the other day of occurrence, he enquired about the informant and learnt that the latter had not returned home as he had gone with the injured persons who eventually died. He recorded the statement of Mobin Ahmad and on his pointing out he prepared the site-plan Ext. Ka-14 of the occurrence and collected the samples of ordinary and blood-soaked earth and the bloodstained pual and plain pual. He found the disputed wood of ''chhool'' tree at the place of occurrence and the same was taken into his custody, but handed over in the supurdagi of Mohd. Sharif, a resident of Nahargarh. Its supurdaginama Ext. Ka-16 was prepared by the Investigating Officer, who then left for District Hospital for recording the statement of the informant. However, he learnt there about the death of Mohd. Abbas and also, he was conveyed about the critical condition of Irfan, who was unable to speak. As Rais Ahmad was busy in taking care of his injured brother Irfan and also engaged in the post-death formalities of his father, his statement could not be recorded. He came back to the police station Shiv Ratan Ganj and noted the fact about the alteration of the case from Section 307, I.P.C. to 302, I.P.C. Although the dead body of the other deceased Irfan was brought to the police station on the same night, yet its inquest proceedings could not be conducted. However, Sub-Inspector Brij Kishore Yadav (P.W. 9) conducted the inquest on the next morning and prepared the inquest-report. The Investigating Officer again searched for the accused-persons and succeeded in getting them arrested. On being interrogated, both the accused volunteered to produce the weapons used in the commission of crime, i.e., lathis. Sub-Inspector Brij Kishore Yadav (P.W. 9) went alongwith the two accused to the ''CHAK'' of Rafiq having wheat crop from where the accused had taken out the two lathis. Sub-Inspector Brij Kishore Yadav took these lathis into his custody and prepared their recovery memo Ext. Ka-21. The site-plan Ext. Ka-22 of the place of occurrence was also prepared by him. The Station Officer Shiv Narain Singh (P.W. 3) had assumed the task of investigation from Brij Kishore Yadav on 25th January, 1989 and proceeded to record the statements of the eye-witnesses as mentioned above. The other witnesses, including those of the inquest report, were also interrogated by him. On having accomplished all the formalities of the investigation, the Station Officer submitted charge-sheet Ext. Ka-2 against the Appellants.

Learned Sessions Judge Rai Bareli at the commencement of the trial framed charges against the accused-Appellants on two counts u/s 302, I.P.C. read with Section 34, I.P.C. in respect of the murder of Mohd. Abbas and his son Irfan. The accused pleaded not guilty and denied all the incriminating allegations levelled against them.

The prosecution in support of its case examined Rais Ahmad (P.W. 1), Mohd. Rafiq (P.W. 2), Station Officer Shiv Narain Singh (P.W. 3), Dr. A. K. Singhal (P.W. 4), Dr. Dilip Kumar (P.W. 5), Head-Constable Babu Ram Verma (P.W. 6), Dr. S. K. Singh (P.W. 7), Station Officer Ram Samujh Verma (P.W. 8) and Sub-Inspector Brij Kishore Yadav (P.W. 9) and tendered with proof twenty four documents, as referred to above.

In their statements recorded u/s 313, Code of Criminal Procedure by the trial court, the two Appellants stated that they had been falsely implicated in this case on account of their enmity with Rafiq, Jahur and Manjur. According to them, Jahur wanted to marry his niece Salma with Rauf, but his proposal was turned down by them and this caused serious annoyance to Jahur. Rafiq was asking for a provision of water-channel through the agricultural field of the two accused and when they refused, the former got enraged. In addition to these issues of animosity, it was also stated that Jahur and Mohd. Rafiq both worked in a fertilizer company; and whereas Mohd. Rafiq provided his tractors on hire, Jahur was a contractor of supplying tractors to the fertilizer-mill. Mohd. Rafiq being under influence of Jahur had testified against them.

On having scrutinized the testimonies of all the prosecution witnesses, the trial court held the accused-Appellants guilty for having committed murder of Mohd. Abbas and his son Irfan, convicted them for both the murders u/s 302, I.P.C. read with Section 34, I.P.C. and sentenced them to undergo imprisonment for life.

Feeling aggrieved of the verdict of conviction and sentence, the two Appellants have filed the present appeal.

The first contention pressed into service by the learned Counsel for the Appellants pertains to the first information report. In this context, it was urged that the F.I.R. lacks confidence about its genuineness. A reference was made to the evidence of Head Constable Babu Ram Verma (P.W. 6), who is the scribe of the chik report (Ext. Ka-5). According to him, the informant Rais Ahmad submitted his written report (Ext. Ka-5) at 8.50 p.m. on January 20, 1989. It was on the basis of the said report that he had drawn the chik report and registered a case in the G.D. He stated further that under the instructions of Station Officer Shri Shiv Narain Singh, he nominated Sub-Inspector Brij Kishore Yadav (P.W. 9) as the Investigating Officer and soon after making relevant entries in the G.D. handed over the written report as also the copy of the F.I.R. to Sub-Inspector Brij Kishore Yadav, who was present at the police station. In contrast to this averment, Sub-Inspector Brij Kishore Yadav who was posted at the outpost Inhauna of Police Station Shiv Ratan Ganj testified that he received the information about his being nominated as the Investigating Officer of this case when he was at the Inhauna outpost. On receipt of this information, he left for the police station, which is at a distance of 16 kms. only from the outpost and he received all papers on his arrival there. This inconsistency has been treated to be insignificant by the learned trial court on the basis of reasoning that the Head Constable might have by inadvertence stated that Sub-Inspector Brij Kishore Yadav was present at the police station. Although Sub-Inspector Brij Kishore Yadav (P.W. 9) denied his presence at the police station, yet since he was posted at the outpost Inhauna of the same police station, his arrival within a short span of time at the police station cannot be ruled out. Further, as said above, Head Constable Babu Ram Verma might have inadvertently stated that Sub-Inspector Brij Kishore Yadav was present when the first information report was drawn. As a matter of fact, a drive on a motorcycle or police jeep might have taken for Shri Yadav a brief time of 15-20 minutes to arrive at the police station and since the Head Constable must still be in the process of accomplishing all other formalities, he might have in a stretched impression stated before the trial court that Shri Yadav was present at the police station. Therefore, we are of the opinion that this minor inconsistency does not have any adverse bearing upon the genuineness of the first information report.

The occurrence took place at about 6 p.m. on 20th January, 1989 and the report was lodged at 8.50 p.m. at the police station Shiv Ratan Ganj located at a distance of 16 kms. from Nahargarh village. As has been explained by Rais Ahmad, it took some time for arranging a vehicle so as to carry the two injured persons to the police station. He got his injured brother and father reclined on cots and first brought to his house in the village and then requested Jahur Ahmad to bring some vehicle and by the time Jahur Ahmad brought his jeep, he had prepared his written report (Ext. Ka-5). He then carried his brother and father both in serious injured state in the jeep to the police station and submitted his written report. The police had asked him to take both the injured for medical examination to P.H.C. Singhpur but since the condition of both the injured was critical, the doctor on duty after administering life saving injections referred them to Rai Bareli District Hospital. In the District Hospital, Rai Bareli, Mohd. Abbas was declared as brought dead. The other injured Irfan was however admitted in the hospital for treatment of his injuries.

In this way, Rais Ahmad proved that the first information report was lodged as promptly as could be possible after getting a vehicle arranged. A distance of 16 kms. was covered by the jeep with the two injured and the attendants in it. In these circumstances, it can reasonably be observed that there was no delay in getting the report lodged. Merely because Rais Ahmad could not be examined at the police station by the Investigating Officer Brij Kishore Yadav is not enough to disbelieve the version that the first information report was lodged at 8.50 p.m. on 20th January, 1989. Shri Yadav has given a plausible explanation as to why he could not examine the informant and other witnesses of the occurrence. He asserted in his evidence that when he arrived at the police station, the informant with the two injured had left for Singhpur hospital. He recorded the statement of the Head Moharir and immediately left for the site of occurrence. He searched for the accused persons but could not apprehend them as they were not traceable. It being dark all around, he could not inspect the site of occurrence. He stayed in the village itself and on the other day, he recorded the statement of Mobin Ahmad, who was recited in the first information report as a witness of occurrence and then on his pointing out inspected the place where the occurrence had taken place. He prepared the site-plan (Ext. Ka-14). He collected the blood soaked and ordinary earth as also the bloodstained and ordinary paddy straw from the place of occurrence and prepared their memo Ext. Ka-15. It would have been quite natural for Rais Ahmad and other attendants for being worried about the welfare of the two injured and since their condition was critical, they were rightly carried to Singhpur Dispensary and from there to District Hospital Rai Bareli. After reporting the matter to the police, it was the informant''s first and foremost concern to save the life of his brother and father both and it was in this earnest desire of his that he was not available to the Investigating Officer at the police station on the date of occurrence and in the village for a day or two more.

Then Brij Kishore Yadav might have been busy elsewhere in an investigation of other cases for the next 2-3 days. From perusal of various recovery memos, which were prepared by the Investigating Officer, it is evident that he was present in the village in connection with the investigation of this case. From January 20, 1989 to January 22, 1989 he interrogated other witnesses and prepared several memos. When it was so, there would have been no avoidable reason for his not coming forward to record the statement of Rais Ahmad. In fact, the informant was badly disturbed, besides being busy in taking care of the injured and after their death, of their dead bodies. He was examined on 26th January, 1989 by the other Investigating Officer, namely, Shiv Narain Singh who was the Station Officer of Shiv Ratan Ganj Police Station. These circumstances themselves speak about the bona fide of the first Investigating Officer for his being not in a position to interrogate the informant Rais Ahmad upto the time he was seized of the investigation. Merely delay in all probability in interrogating the informant does not cast a shadow of doubt about the genuineness of the first information report and the prosecution case recited therein. If there are cogent and reasonable grounds to explain the delay, as present in this case, no adverse inference can be drawn against the prosecution story.

The Station Officer Shiv Narain Singh, who subsequently assumed investigation of this case on 25th January, 1989 signed the chik report and proved its genuineness. Thus his evidence also lends a valuable support to the genuineness of the prosecution case that the first information report was lodged at 8.50 p.m. on the date of occurrence itself.

Rais Ahmad (P.W. 1) rejected the defence suggestion that the report was prepared in consultation with Manjur and Jahur who were related to him. As testified by Rais, he was married to Mazda Bano, the niece of Jahur and Manjur and his brother Irfan was married to Manjur''s daughter. Although his marriage with Mazda terminated with a divorce, yet his relationship with Jahur and Manjur continued on account of Irfan being the son-in-law of Manjur Ahmad. These two brothers were no doubt stated to be affluent villagers of the area, yet the fact of their being rich could not provide any ground for a false report being lodged against the accused-Appellants. Rais Ahmad rejected the suggestion that while preparing his written report (Ext. Ka-5), he was swayed by the influence of the two brothers, namely, Manjur and Jahur. He also rejected the suggestion that Manjur wanted to marry his daughter with Rauf (Appellant No. 2) ; rather added that it was Rauf himself who offered to marry with Manjur''s daughter. However, the offer was turned down by the mother of Manjur. In this context, it may be observed that whether an offer for the marriage of Manjur''s daughter came from his side or from that of Rauf is not very relevant, since there was no occasion for Jahur and Manjur to have dictated Rais Ahmad under their influence to get the two accused-Appellants falsely implicated in this case, nor the suggestion that Rafiq supplied his tractor to Jahur Ahmad who was a contractor in the fertilizer factory could have contributed towards the Appellants'' false implication in this case. We, therefore, reject the contention that the first information report was the well-deliberated decision of Jahur and Manjur in getting the two Appellants implicated in this case. The first information report, in these circumstances, can be termed to be genuine in all respects.

Assailing the theory of motive propounded by the prosecution, learned Counsel for the accused-Appellants contended that it was a very flimsy ground which could not have prompted or provoked the two accused-Appellants to commit a serious offence of this kind. A motive, howsoever trivial, can be a good basis for brewing a criminal intention to commit an offence. It is testified by Rais Ahmad (P.W. 1) that a day before the occurrence, the Appellants had surreptitiously removed the trunk and wood of ''CHHOOL'' tree which belonged to the deceased. However, when the two Appellants were in the process of carrying the wood, they were witnessed by Irfan. On being caught red-handed, they felt embarrassed and ran away having abandoned the trunk and the other wood which were collected by Irfan and kept secured in his house but the two Appellants appeared to be desperate for the said timber and they again succeeded in getting it removed from there. They concealed the entire wood including the trunk under the heaps of paddy straw in their kalihan (threshing place). Irfan and Abbas came to learn about all this and they went to the kalihan to collect and bring their wood back. But no sooner than they arrived there, they were chased by the two accused-Appellants and attacked. The main trunk of the tree was about 40 kgs. in weight and about 6 cubic long. No doubt, the timber was not a valuable property, but it appears that the two sets of father and son, i.e., the Appellants and the deceased staked their respective claims over its ownership. It has been suggested on behalf of the Appellants that since the disputed timber was recovered from the kalihan of the two accused-Appellants, it would be deemed that it belonged to them and the two deceased had made an attempt to unlawfully remove it. No evidence has been led in support of this defence contention nor the two Appellants stated so in their statement u/s 313, Code of Criminal Procedure Both of them expressed their ignorance about the disputed timber. It was recovered by the Investigating Officer and a memo prepared. Ordinarily, the dried wood is not found in kalihan, although there may be some exception. But since the accused Appellants have neither claimed the disputed wood as their own nor led any evidence in support of their ownership, the testimony of Rais Ahmad (P.W. 1) and Rafiq (P.W. 2) that the wood belonged to the deceased is held to be worthy of credit. The accused Appellants were stated to have inflicted lathi blows to the deceased to prevent them from removing the disputed timber from their kalihan. It was with this motive that they had assaulted the informant''s brother and father. This motive is found recited in the first information report also. Therefore, we are of the view that there was a motive for the two Appellants to have caused fatal injuries to the two deceased.

The ocular account of the two witnesses, Rais Ahmad (P.W. 1) and Rafiq (P.W. 2) is quite convincing and credible. Learned Counsel for the Appellants contended that the third witness Mobin had been deliberately withheld by the prosecution and had he been examined, he would have spoken against the prosecution story. In this context, it may be observed that it is not obligatory for the prosecution to examine all the witnesses whose names have been disclosed in the first information report. It is not the quantity of evidence, which matters but real importance lies in the quality of the evidence which is led in support of the charge. Therefore, non-examination of Mobin does not bring any adverse effect so as to discard the evidence of all other witnesses.

Coming to the merit of the eye-testimony of the two witnesses, it may be observed that Rais Ahmad is the real nephew of the Appellant No. 1 Mohd. Abbas. Obviously, the other Appellant is the first cousin of Rais Ahmad. There was no reason for Rais Ahmad to have falsely implicated his own kith and kin, particularly when Mohd. Abbas was the real brother of the Appellant No. 1 and uncle of the Appellant No. 2. As a matter of fact, the blood relationship between the accused-Appellant on one side and the deceased and Rais Ahmad (P.W. 1) on the other, would not have been impaired merely on the ground of some skirmish or the other. Rais Ahmad stated that his father Mohd. Abbas and the Appellant No. 1 Jabbar had separated from each other way-back in the year 1973, i.e., sixteen years prior to the date of occurrence and the two were living in adjoining houses with their other family members. There was no animosity or ill-will between the two families. They were on visiting terms and occasionally enjoyed feasts together. There was no family dispute on residential or agricultural property nor any criminal case between the two families was pending. Learned Counsel for the defence in the trial court had not made a suggestion to Rais Ahmad on the ground of enmity before the trial court that any dispute, enmity, ill-will or animosity was behind the false implication of the two accused-Appellants. In these circumstances, we find it difficult to accept the defence contention that Rais Ahmad (P.W. 1) while giving an ocular account on oath before the trial court was dominated by ill-will and malice.

Rais has stood the test of cross-examination remarkably well and proved beyond doubt that he had seen the two Appellants inflicting lathi blows one each to his father and brother. He rejected the suggestion that he was not an eye-witness of the occurrence and also he had termed it to be wrong to say that he never worked in a fertilizer industry and his father and brother had been assaulted by some miscreants. He testified that after discharging his duty on the date of occurrence, he had come back to his home by 5 p.m. Soon after he was informed by his father that he and Irfan were going to collect the trunk and timber of ''chhool'' tree from the kalihan of the two accused-Appellants, where the latter had concealed it. A little while after, he heard the hue and cry coming from the kalihan side, which was in close vicinity of his house. As added further by him, he and Mobin rushed towards the site of occurrence. On the way, they were joined by Mohd. Rafiq and all of them had seen the accused-Appellants assaulting Mohd. Abbas and Irfan. Rafiq and other witnesses challenged the assailants but after giving one or two blows to each deceased, they took to their heels and succeeded in making their escape good. When they came closer, they saw Abbas and Irfan lying injured but alive. The two injured were not in a position to speak. The injured were first brought to the house and then taken to the Police Station, where the report was lodged.

The testimony of Rais Ahmad (P.W. 1) has been fully corroborated by Rafiq (P.W. 2) whose agricultural field, which was being irrigated by him, is located in immediate southern vicinity of the place of occurrence. After finishing his job, he was returning to his home when he met Rais Ahmad and Mobin rushing towards the kalihan of the accused-Appellants. As stated by Rafiq, he also joined them and saw from a distance of 20 paces only that the two Appellants gave fatal blows to the two deceased. He came to learn that Abbas and Irfan subsequently succumbed to the injuries suffered by them. During his cross-examination, Rafiq testified that his agricultural field was located at a distance of 40-50 paces only, towards south of kalihan of the accused-Appellant and he had conveyed the fact of operating his tube-well for irrigation of his fields to the Investigating Officer. It appears that the Investigating Officer did not record his statement u/s 161, Code of Criminal Procedure but the omission is not a material contradiction, as he has testified his presence at the site of occurrence. His name was recited as a witness of the occurrence in the first information report. He rejected the suggestion that he had any partnership with Manjur and Jahur in the fertilizer factory, nor there was any common interest between them so as to falsely implicate the two accused-Appellants at their instance. Rafiq had also rejected the suggestion that he wanted to pressurize the accused-Appellants to spare some land of their agricultural field for construction of the tube-well drain with a view to facilitate him to sell and supply water to other agriculturists. It is further significant to note that Rafiq does not have an iota of animosity, ill-will or malice with the two accused persons. Never a dispute subsisted between the two and therefore, we do not find any cogent reason to disbelieve his testimony. He has lent full assurance to the prosecution story of the deceased persons being assaulted by the Appellants. We, therefore, regard his testimony as worthy of credit.

Recovery of lathis--the weapons used in causing injuries to the two deceased--is also very relevant. The recovery of the two lathis on the pointing out of the accused is a very important feature of this case. After commission of the offence, the two accused while fleeing from the scene of occurrence had thrown their lathis in the adjoining agricultural field and when they were in the custody of Investigating Officer, they disclosed that they had thrown the lathis, which could be got recovered. Sub-Inspector Brij Kishore Yadav proved the recovery memo Ext. Ka-21, a perusal of which shows that the two lathis made of bamboo were recovered on the pointing out of both the accused-Appellants.

The medical evidence corroborates substantially the evidence of the eye-witnesses. As mentioned earlier, the deceased Mohd. Abbas had suffered two ante-mortem injuries. Dr. A. K. Singh (P.W. 4) testified that these injuries could have been caused by a blunt object. Injury No. 1 was a lacerated wound with contused swelling on the right side of his scalp. There was a depression on the affected part and the second injury was a contused swelling over left side scalp 2 cms. above the upper border of the left ear. The internal examination conducted by the doctor revealed fracture of both sides frontal bone and right side parietal and temporal bones. These fractures were sustained as a result of the Injury No. 1. Brain was congested and haematoma was present over frontal left and right sides of the brain. Both lungs were also congested. Both the kidneys and liver as also the spleen were found congested. The cause of death was coma, which was the result of the ante-mortem injuries.

Similarly, Dr. Dilip Kumar, who had conducted autopsy on the corpse of Mohd. Irfan testified that the stitched wound present on the right side of the head revealed a depressed fracture, triangular in shape. The temporal bone and orbital plate of frontal bone were found fractured. Haematoma was present below the injury No. 1. Brain was diffused with intra-cerebral haemorrhage. The two injuries suffered by the deceased had resulted in coma, which eventually proved to be fatal. The two injuries were examined by Dr. S. K. Singhal (P.W. 7) who was posted as Medical Officer in District Hospital, Rai Bareli. It may be recalled that when Irfan was admitted in the hospital, he was alive though unconscious. His medical examination by Dr. S. K. Singhal revealed presence of two injuries--the first being a lacerated wound on the right side of the head and the second was an abrasion above the right eyebrow. Both the doctors who conducted autopsy on the dead bodies stated that these injuries were in ordinary course sufficient to cause death. In this way, it is established that the medical evidence is in conformity with the ocular account of the two eye-witnesses.

Learned Counsel for the Appellants contended about the legal position of the category of offence with reference to the circumstances in which the offences were committed that there was no intention of the accused-Appellants to cause murder of their own kith and kin ; rather, they wanted to prevent them from taking away the wood and it was with a view to check them that they used the lathis.

In other words, the argument pressed into service is that since the accused-Appellants had no intention to cause death or such bodily injury which they might have known to be sufficient to cause death, an offence of culpable homicide not amounting to murder can be said to have been committed and the said offence would fall within the ambit of Section 304 Part II, I.P.C. In support of this contention, reliance has been placed upon the following citations :

(i) Chhotey Lal v. State 1998 (1) ACR 771: XXXVIII 1998 ACC 2 ;

(ii) Mavila Thamban Nambiar v. State of Kerala XXXIV 1997 ACC 406;

(iii) Kulandaisamy Vs. State,

In the case of Chhotey Lal v. State (supra), the accused had caused a single sickle blow to the deceased without any premeditation and previous ill-will or animosity. The incident in which the occurrence had taken place was the outcome of an altercation in which the accused had acted suddenly at the spur of moment and gave the sickle blow into the chest of the deceased. This High Court while delving upon the issue of category of occurrence held that the incident took place at the spur of moment and if due to sudden quarrel and heat of passion the accused gave only one knife blow which caused the death of the deceased, then the case will fall under Exception 4 of Section 300, I.P.C. and the accused is liable to be convicted u/s 304 Part II of the I.P.C.

Exception 4 to Section 300 postulates as follows :

Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage or acted in a cruel or unusual manner.

Section 304, I.P.C provides that 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.

If we bring the facts of the case in hand to the above quoted provisions, it may be held that the accused-Appellants admittedly had no malice or ill-will against the deceased persons, nor there was any litigation pertaining to some properties pending between them. Rais Ahmad (P.W. 1) fairly conceded that except a few skirmishes as usually happens between the two families, there was no spite or dispute between his family members and that of the accused-Appellants. The members of the two families were on visiting terms and also attended each other''s feasts. Even on the issue of the Chhool tree''s wood, no altercation or quarrel had taken place prior to the date of occurrence. Rais Ahmad disclosed in his evidence that a day before the date of occurrence, Irfan had seen the accused persons removing the trunk of the tree but there was no exchange of hot words as the accused persons fled away when they noticed Irfan coming in the street. This shows that the accused persons had simply endeavoured to take away the wood surreptitiously and perhaps with the same intention of doing things in a surreptitious manner, they had again removed the wood from the house of the deceased and concealed it in their kalihan under the heaps of paddy straw. The accused persons did not know from before that the other duo of father and son would be going to their kalihan to bring the wood back, nor the Appellants had knowledge that their surreptitious act had been taken note of by the deceased persons. They were also probably not knowing that the place of concealment of the wood was within the knowledge of the deceased persons. Therefore, there was no pre-meditation of causing serious injuries to the deceased. It appears that when the fact about the two deceased persons having gone to the kalihan came to the notice of the two Appellants, they also rushed to the site and in order to prevent Abbas and his son from taking away the wood each one of them gave one or two blows to the deceased persons. May be, there was a little bit altercation between the two sets of father and son ; but it was all due to heat of passion that the two accused acted suddenly at the spur of moment. They had not intended to cause death of their own blood relations. It is also evident from the fact that the accused Appellants simply had lathis with them. Lathi is not considered to be a dangerous weapon and the use of lathi blows being not more than two each further indicates that the accused had no intention to cause the death of the two victims. We are, therefore, of the considered view that the offence of causing lathi blows to the deceased persons which eventually resulted in their death falls within the ambit of Section 304 Part II of the I.P.C.

Our view further finds support from a Supreme Court''s decision in Mavila Thamban Nambiar v. State of Kerala, (supra). It was held in this case that the Appellant had given one blow with a pair of scissors on the vital part of the body of the deceased and therefore, it would be reasonable to infer that he had knowledge that any injury with the pair of scissors on the vital part would cause death though he may not have intended to commit the murder. Accordingly, the conviction of the Appellant was altered from Section 302, I.P.C. to one u/s 304, Part II of the I.P.C.

In similar case, the Apex Court held in Joseph v. State of Kerala, (supra) that if an occurrence has taken place on a trivial matter resulting in quarrel and the accused inflicted two lathi blows on the head of the deceased which proved fatal, it cannot be said that the accused intended to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. The accused can be attributed with knowledge that by inflicting such injury he was likely to cause death and such an offence falls u/s 304 Part II of the I.P.C. and not u/s 302, IPC. It was also held in this case that lathi is not a deadly weapon.

Yet in one more similar case, the Madras High Court held in Kulandaisamy v. State, (supra) that it was altered from Section 302, I.P.C. to Section 304 Part II of the I.P.C. having regard to the fact that the death occurred after twenty four hours of inflicting injury and also the type of weapon used for causing injury. In that case, injuries were caused by hockey sticks, iron rods and chains. The Appellant caused the death of the deceased by inflicting stick blows on the head and chest. There was no direct enmity between the Appellant and the deceased. No mens rea was present at the time of causing offence. Also there was absence of intention to cause death. The Madras High Court held that in these circumstances, the accused was not guilty of the offence u/s 302 and accordingly, altered the conviction to one u/s 304 Part II of the I.P.C.

In view of all these decisions and the provisions of Section 304 Part II of the I.P.C. coupled with the facts and circumstances of this case which clearly indicate that there was neither any intention on the part of the accused-Appellants to cause the murder of their own blood relations nor there was any pre-meditation to cause any offence and whatever was done, it was at the spur of movement and under the heat of passion, we are of the decisive opinion that the offences committed by the accused-Appellants fall within the ambit of Section 304 Part II of the I.P.C.

Accordingly, the conviction of the Appellants is altered from Section 302, I.P.C. to u/s 304 Part II of the I.P.C.

In view of above, we uphold the guilt of the duo-accused Appellants but set aside their conviction u/s 302, I.P.C. We are of the decisive view that the two Appellants deserve to be convicted u/s 304 Part II read with Section 34 of the I.P.C. Accordingly, they are held guilty and convicted under the said provisions of the I.P.C. and sentenced to seven years rigorous imprisonment on each count. Both the sentences shall run concurrently. The appeal is decided accordingly.