Kalloo alias Kalyan and Others vs State of U.P.

M.C. Jain, J.—he Appellants Kalloo alias Kalyan, Har Sahai, Hukmi and Himmat have preferred this appeal against the judgment and order dated 24.9.1980 passed by Sri N. C. Jain, the then VII Ith Additional Sessions Judge, Bareilly. Each of them has been convicted u/s 302 I.P.C. and sentenced to life imprisonment.

The case relates to the murder of one Naubat. The incident took place in between the night of 28/29th December, 1978 at about 10-11 p.m. in village Tumariya, P. S. Aonla, district Bareilly and the report was made on 29.12.1978 at 8.30 a.m. by Hemraj. Naubat deceased had some illicit relations with the mother of the Appellant Har Sahai. In between the fateful night he went out from his house after taking his meals. The deceased Naubat was actually the son of Dauli who was the real brother of Hemraj. Dauli had died leaving Naubat in an early age and the said Naubat was brought up by Hemraj. Dauli''s wife had started living with Hemraj as his wife. Naubat did not return home upto 10-11 p.m. Just at that hour, noise of Naubat was heard in the house of complainant Hemraj coming from the house of Kadhe, whereupon he along with Ram Swarup went towards the house of Kadhe whose son accused Har Sahai is. Ram Sarup and Mukut are sons-in-law of Hemraj. Reaching at the house of Kadhe, they found the main gate open and in the light of the lantern hung in the Chhappar, they saw that all the Appellants were assaulting Naubat. Ram Swarup, P.W. 6 had a torch also. Kalloo alias Kalyan was assaulting Naubat with a Sooja (a sharp edged weapon) and the other three Har Sahai. Hukmi and Himmat were hitting him with lathis. Hemraj and his companions raised alarm but nobody turned up due to fear of the Appellants. The Appellants threatened Hemraj and his companions who fled back to their house. In the morning, the complainant went to the Police Station Aonla and lodged a report there. At about 10 a.m. on 29.12.1978 the Appellants Har Sahai and Kalloo alias Kalyan brought Naubat in injured condition in a bullock cart alleging that he had entered their house in the night along with others to commit theft and was apprehended after giving a beating. Naubat being critically injured was sent to Aonla hospital for treatment. He expired of his injuries in between the night of 29/30.12.1978 at 4.10 a.m. Consequent thereupon the case was converted inter alia u/s 304, I.P.C. Investigation followed as usual whereafter a charge-sheet was laid against them.

It may also be stated here that the following injuries were found on the person of Naubat at the time of his examination in Aonla hospital on 29.12.1978 at 11.55 a.m.:

Lacerated wound 2 cm. ? 2 cm. ? bone deep on parietal of head.

Contusion 2 cm. ? 2 cm. ? with lacerated wounds 1/3 cm. ? 1/4 cm. ? skin deep on the ball of right ear on the bony portion.

Contusion 11 cm. ? 6 cm. on posterior part of forearm upper half portion. Advised X-ray.

Lacerated wounds 1/2 cm. ? 1/4 cm. ? bone deep on left elbow bleeding.

Contusion 10 cm. ? 5 cm. on right hip bony portion.

Abrasion 5-1/2 cm. ? 4 cm. on right lower thigh.

Contusion 12 cm. ? 9 cm. on right knee and upper leg bony portion and abrasions 10 in number on area measuring 1/4 cm. ? 2 cm. ? 1 cm. Advised x-ray.

Punctured wounds 1 cm. ? 1/3 cm. x 2 cm. on right medial of leg upper forth portion.

Punctured wounds 1/4 cm. ? 1/4 cm. on oral ? 1 cm. on right. medial of leg about middle calf region.

Lacerated wounds 3 cm. x 1/4 cm. x bone deep front middle right leg advised X-ray.

Contusion 11 cm. ? 6 cm. on right foot lateral part advised X-ray.

Abrasion 1/2 cm. ? 1/2 cm. and 1 cm. ? 1/2 cm. on right lateral lower leg.

Lacerated wound 3/4 cm. ? 1/5 cm. x skin deep on right foot forth finger near little toe.

Lacerated wounds 2 cm. ? 1/5 cm. x skin deep on right big toe.

Contusion 6 cm. ? 6 cm. on left upper lateral thigh.

Punctured wounds 3/4 cm. ? 1/2 cm. x side of bone and muscle 1 cm. deep on left anterior medial upper forth of leg, advised X-ray.

Abrasion 1-1/2 cm. ? 1/2 cm. left lower and 3rd lateral of leg.

Lacerated wounds 3/4 cm. x 1/2 cm. x bone deep on lower 3rd leg front.

Lacerated wounds 1/4 cm. ? 1/2 cm. ? bone deep left leg 1 cm. lower to injury No. 8 advised X-ray for number 18 and 19 both.

Abrasion 1/4 cm. ? 4 cm. of left leg near injury No. 16.

Contusion 8 cm. ? 8 cm. left knee advised X-ray.

The above injuries had been caused by different weapons, viz., blunt as well as pointed.

The post-mortem over the dead body of the deceased was conducted on 30.12.1978 at 5 p.m. by Dr. I. J. Punhani, P.W. 3. The deceased was aged about 30 years and 1/2 day had passed since he died. The ante-mortem injuries found on his person almost corresponded to those reported in his earlier medical examination report reproduced above. The death had occurred due to shock and haemorrhage as a result of ante-mortem injuries.

At the trial, the prosecution examined eight witnesses out of whom Hemraj complainant P.W. 1 and Ram Swarup, P.W. 6 were eye-witnesses. The learned Additional Sessions Judge discarded the defence theory and convicted the Appellants as stated hereinabove believing the prosecution evidence.

Though in record the accused-Appellants are represented by Sri Satish Trivedi, Sri Sudhir Agarwal and Sri Adya Gupta, advocates but none turned up to argue the appeal despite the appeal having been taken in the revised list. We have gone through the evidence on record and heard learned A.G.A. on behalf of the State.

It is an admitted position that Naubat was in the house of the Appellant Har Sahai in the night of the incident and sustained injuries there which have been detailed earlier. The two sides are not uniform as to how he reached there. The testimony of eye-witnesses, Hemraj, P.W. 1 and Ram Swarup, P.W. 6 is that he had left the house after taking meals in the night and he did not return thereafter, that his noise was heard coming from the house of the Appellant Har Sahai whereupon they reached his house and found the main gate open through which they saw in the light of a lantern hung inside that all the Appellants were assaulting him (Naubat). Ram Swarup P.W. 6 had torch also which he had flashed. It is also to be pointed out that the statement of the injured Naubat had also been recorded at the Police Station by the Investigating Officer when he had been taken there by accused Har Sahai and Kalloo alias Kalyan on 29.12.1978 at about 10 a.m. it is Ex. Ka 18 and is admissible in evidence according to Section 32(1) of the Indian Evidence Act as it relates to the cause of his death, explaining the circumstances under which he had received injuries. He stated therein that he had some relations with Smt. Tilak mother of the accused Har Sahai wife of Kadhe and in the fateful night when he had come out of his house after taking meals, Har Sahai met him and took him to his house on the pretext of needing his company as his father was not there on that day. For some time, they conversed there and then the accused Kalloo alias Kalyan, Hukmi and Himmat came over there out of whom Kalloo alias Kalyan had a Sooja (a sharp pointed weapon) and Hukmi and Himmat had lathis. He tried to come out but all the four accused surrounded him in the Sahan of the house and hurling abuses started assaulting him with the weapons that they had.

On the other hand, the defence theory is that he along with Buddhi and some other persons had entered the house of Har Sahai in the fateful night. On scenting sound, he raised an alarm whereupon, the villagers came and the deceased Naubat was apprehended and was given beating.

On consideration, we are in agreement with the view taken by the trial Judge that the defence theory was unacceptable. It has come in the testimony of D.W. 2 Gulab who is the husband of the sister of the father of Appellant Har Sahai that in the fateful night Har Sahai''s father Kadhe and his wife were in village Barkhera, district Budaun in connection with Daswain ceremony of his wife who had died. It is apparent from the own statement of the deceased (Ex. Ka. 18) which is his dying declaration, from the F.I.R. as also from the statement of Hemraj, P.W. 1 that the deceased had some illicit liaison with the mother of the Appellant Har Sahai. He was a bachelor aged about 30 years. Har Sahai accused was aged about 17 year at that time of the incident and it appears that his mother must have been a lady in the neighbourhood of about 35 years of age. The point that we wish to drive home is that it was quite possible that the two had developed illict relations. What appears to be the truth is that Har Sahai accused coaxed the deceased to accompany him to his house on the pretext that he was all alone and wanted his company as his father was not there that night. Since the deceased had illicit relations with Har Sahai''s mother and had no knowledge of the non-presence of Har Sahai''s mother also that night, he was tempted to go with him with expectation to enjoy the company of his mother sometime late in the night. It explains away the presence of the deceased Naubat in the house of Har Sahai in the fateful night. The defence theory is wholly untenable that the deceased along with others had been caught inside the house of Har Sahai as a thief. Had it been the fact, there could hardly be any question of inflicting multiple injuries on his person after he had been caught.

In fact, the reality was that the Appellants harboured grudge against the deceased and were in search of an opportunity to settle score with him and to teach him a lesson. For Har Sahai the reason was that he was carrying amorous affairs with his mother. Hukmi Appellant had earlier been assaulted by Naubat and others. His wrist bone had been fractured as stated by him in his statement u/s 313, Cr. P.C. Admittedly, in that case, Naubat had been let off on probation. Kalloo alias Kalyan''s brother Ganga Ram had appeared as the witness against Naubat in that case of assault and the Appellant Himmat''s brother Komil had also appeared as a witness against him. Naubat''s letting off on probation in that case would not have been to the liking of these Appellants. Factions in village-life are common. All the Appellants had grudge against the deceased and in league with one another, they hatched a plan to teach a lesson to him in the night of the occurrence inside the house of one of them, namely. Har Sahai where they assaulted him mercilessly causing a number of injuries.

The testimonial assertions of the eye-witnesses Hemraj, P.W. 1 and Ram Swarup, P.W. 6 have rightly been accepted by the learned trial Judge that on hearing the shouts, they had reached the house of the Appellant Har Sahai and had seen all the four Appellants assaulting Naubat. Kalloo alias Kalyan was using a Sooja and other three were wielding lathi in assaulting him. It has also come in the testimony of Hemraj P.W. 1 that the distance between the two houses was only 100 paces. In the night time Hemraj and Ram Swarup could have heard the noise of Naubat emanating from the house of Har Sahai as the distance between their houses was negligible. Ram Swarup, P.W. 6 is the son-in-law of Hemraj, P.W. 1 and was there in his Sasural in the fateful night. A look at the site plan Ex. Ka. 10 prepared by the Investigating Officer, namely, Sardar Beg, P.W. 7 shows that there was a street running towards south from the main Rasta running east-west. At the end of that street was the door of Har Sahai''s house in the Angan of which the incident took place. The eye-witnesses saw the occurrence from this street and the door which they could very well do. It is also explained as to why the report was not made in the night itself. The deceased Naubat was also at fault in carrying illicit liaison with the mother of Har Sahai and Hemraj P.W. 1 and Ram Swarup, P.W. 6 might reasonably expect that Naubat would be let off by morning by the Appellants. It is further to be recalled that on 29.12.1978 at about 10 a.m. it were the Appellants Har Sahai and Kalyan who had taken Naubat in injured condition to the Police Station on bullock cart.

On judicial appreciation of the evidence on record, we find that the trial Judge rightly concluded that the four accused-Appellants assaulted Naubat in between the fateful night in the house of one of them and caused multiple injuries to him as many as 21 in number of blunt as well as of sharp pointed weapons. However, we are of the considered view that the accused-Appellants only committed culpable homicide not amounting to murder punishable under Part 2 of Section 304, I.P.C. Learned trial Judge fell in error by convicting and sentencing them u/s 302, I.P.C. Of course, all the four accused-Appellants were acting in concert with previous meeting of minds and shared the common intention of one another in assaulting Naubat, but the intention to kill was not there. Had it been otherwise, they could have accomplished their mission by murdering him and disposing of his dead body at some desolate spot and there was no hindrance in their doing so. But the fact is that two of them carried him in injured condition to the Police Station on 29.12.1978 at about 10 a.m. it is apparent that their intention was only to give a good thrashing to teach him a lesson. However, the fact cannot be lost sight of that multiple injuries were caused to him mercilessly including punctured wounds and ultimately he died of the injuries inflicted on his person by them. Therefore, they have to be imputed with the knowledge that their such act was likely to cause the death of the victim Naubat. Judged with this right approach, we conclude that the case is covered by Part 2 of Section 304, I.P.C. and all the accused- Appellants are liable to be convicted for the said offence read with Section 34, I.P.C. We are also of the opinion that seven years'' rigorous imprisonment to each of them would meet the ends of justice.

For the reasons mentioned above, we partly allow this appeal and set aside the conviction and sentence of the Appellants u/s 302, I.P.C. Instead, each of the Appellants, namely, Kaloo alias Kalyan, Hukmi, Har Sahai and Himmat is convicted for culpable homicide not amounting to murder punishable u/s 304, I.P.C. Part II read with Section 34, I.P.C. Each of them is sentenced to undergo rigorous imprisonment for seven years. The Appellants are on bail. They shall surrender forthwith to serve out the sentence passed against them.