Markandey vs State of U.P.

S.K. Verma, J.—The Sessions Judge, Gorakhpur in S.T. No. 271 of 1979 convicted the Appellant u/s 302, I.P.C. and sentenced him to life imprisonment. Through the same judgment, co-accused Munai Appellant in Criminal Appeal No. 457 of 1980 was convicted under Sections 323/34, I.P.C. and sentenced to six months'' rigorous imprisonment. The appeal of Munai has abated due to his death. We have partly allowed the appeal of Markandey, Appellant and have acquitted him u/s 302, I.P.C. but have convicted him u/s 304(II) and have sentenced him to five years'' rigorous imprisonment. The reasons for our judgment are as follows:

Appellant Markandey and co-accused Munai are son and father. Deceased Chirkut was the elder brother of Appellant Markandey. They lived in village Math Khem Karan situate within police station Sikriganj, district Gorakhpur. Chirkut being dis-satisfied with his father and brother obtained a partition about one year before the occurrence and started living in the northern portion of the house along with his wife P.W. 2 Phoola Devi and four children. The Appellant and his father lived in the southern portion. On 5.5.1979 at about 6.30 p.m. the Appellant''s sister Smt. Gujrati placed a cot in the court-yard and started breast-feeding her child. Appellant Markandey and his father Munai were taking their evening meals in the verandah situate inside the court-yard. Deceased Chirkut came at about 7.00 p.m. into the court-yard outside and complained about obstruction in the passage to his portion. Soon thereafter exchange of abuses started. While this wordy quarrel was going on, Chirkut came out of the house followed by his wife Phoola Devi, P.W. 2 and Appellant and his father. Further wordy altercation and exchange of abuses took place between the two sides on the question of the sister of Chirkut as well as Appellant Markandey placing cot and breast-feeding her child causing obstruction to the passage (approach) to the portion of Chirkut. Witnesses Bhagwati Gosai, P.W. 3 and Daroga Gosai, P.W. 4 and Jokhai, Bharati and Somai arrived at the scene of occurrence. Suddenly Munai, the father of Chirkut orally exhorted Markandey to kill Chirkut whereupon Markandey brought out a spear from the osara nearby and dealt one blow on the chest of Chirkut. It is alleged that a second blow was also given but the same missed the target. Chirkut went about 83 paces and then fell down on the cot of Toofani and died. The two assailants ran away. Phoola Devi, P.W. lodged the report at 10.00 p.m. after covering a distance of five miles. Investigation ensured. The post-mortem on the dead body of Chirkut was performed on 6.5.1979 at 12.15 noon and the following injuries were found on the dead body:

Incised wound on left side of chest 1/2" x 1/6" lungs deep. 11/2" below medial end of left clavicale.

Multiple abrasion 1" x 1.2" on the lateral side of the incised wound. Left pleura was punctured and left lung was pierced and crossed. Oesophagus was punctured. Thoracic cavity was filled with blood. In the opinion of the doctor the injury was sufficient to cause death as some major artery under injury No. 1 would have been cut causing blood loss.

The prosecution examined eye-witnesses Phoola Devi, P.W. 2, Bhagwati, P.W. 3 and Daroga, P.W. 4 besides other formal witnesses. Learned Sessions Judge placing reliance on the eye-witness account, convicted Markandey u/s 302, I.P.C.

We have gone through the statement of three eye-witnesses, namely, Phoola Devi, Bhagwati and Daroga. The first information report mentioned that two spear blows were given by Markandey to his brother Chirkut. However, the medical evidence did not support this position and, therefore, the eye-witnesses slightly changed the version by saying that they cannot say whether the second blow hit the victim or not. The trial court has discussed the evidence of the three eye-witnesses and has rightly believed their statements inspite of minor discrepancies and contradictions. After considering their statement, we are also of opinion that the three eye-witnesses are substantially reliable and their presence cannot be doubted and they would not falsely Implicate the Appellant and his father in this incident. Not much can be said against the findings recorded by the trial court regarding participation of Appellant Markandey in the crime. There is no manner of doubt that Appellant Markandey did give a spear blow on the chest of his elder brother Chirkut which resulted into the death of Chirkut.

However, the main contention of the learned Counsel for the Appellant is that the case of the Appellant is covered u/s 304(II) I.P.C. because it was a case of grave and sudden provocation. We are inclined to accept this line of argument because we can visualise the circumstance under which the incident occurred. There should be no difficulty in taking into consideration the mental state of the Appellant in the background of what had happened earlier. There is evidence that Chirkut was quarrel some and he had forced his father Munai to partition the house. The house was partitioned actually one year before the incident and the northern portion was allotted to Chirkut while the southern portion was allotted to Markandey and his father. On the date of occurrence, the real sister of Chirkut had come and she had placed a cot in the court-yard and was breast-feeding her child while sitting on the cot. The cot was causing obstruction to the approach of Chirkut to his own portion. When he entered his house, he started shouting and abusing. Naturally Markandey and his father Munai who were taking evening meals nearby protested and exchange of hot words ensued. The victim as well as the assailants then came out of the house and there also inspite of the pursuasion of the persons of the locality, Chirkut continued exchange of hot words with his younger brother Markandey and his father Munai. The cause of the quarrel being the arrival of real sister of Chirkut and the placing of cot by her in the approach of Chirkut''s portion, it is natural for Chirkut''s father and brother to be provoked when Chirkut protested and started abusing them, on such a trifling matter. They would have expected that Chirkut would welcome his sister and at least not protest for the action of his sister in sitting in a court-yard and breast-feeding the child so as to obstruct the approach of Chirkut''s portion. Under these circumstances, out of annoyance and provocation because of the unusual behaviour of Chirkut, if Markandey gave one single spear blow to Chirkut at the exhortation of his father, his case would certainly be covered u/s 304(II), I.P.C.

We are of opinion that the appeal should be partly allowed. The conviction of the Appellant Markandey u/s 302, I.P.C. is set aside and instead he is convicted u/s 304(II), I.P.C. and sentenced to five years'' rigorous imprisonment. We order accordingly.