Ram Kishun alias Janardan Tiwari (in Jail) vs State of U.P.

N.K. Mehrotra, J.—This is an appeal u/s 374 of the Code of Criminal Procedure against the judgment and order dated 21.4.1992 passed by the II Ird Additional Sessions Judge, Faizabad in S.T. No. 118 of 1989, State v. Ram Kishun alias Janardan Tiwari, convicting and sentencing the accused u/s 304, I.P.C. to undergo seven years R.I.

Heard the learned Counsel for the Appellant and Sri C.P.M. Tripathi, the learned Additional Government Advocate.

The prosecution case in brief is that on 18.6.1985 at about 5.30 p.m. accused Ram Kishun Tiwari was digging out earth from the old house belonging to the informant Onkar Nath Tiwari in order to construct his house. When Manbahal Tiwari objected him from doing so, the accused gave him fist blow in his stomach and pushed him down as a result of which Ram Bahal Tiwari fell down and died on the spot. The occurrence was seen by several witnesses and in self-defence bricks and stones were also pelted on the accused and consequently, he received injuries. The F.I.R. was lodged at about 6.40 p.m. at P.S. Jahangiraganj, the same day i.e., 18.6.1985. The investigation was entrusted to S.I. Jag Narain Pathak who after completing the investigation submitted the charge-sheet against the accused.

After committal of the case to the Court of Sessions, the accused was charged for the offence u/s 304, I.P.C. The accused denied the prosecution case but stated that he was digging out earth from his old ''dharohi'', then Manbahal and others started beating him and he tried to save himself. He also lodged the F.I.R. Ext. Kha-2 at the police station and was medically examined by the doctor.

In support of its case, the prosecution examined Azad Tiwari (P.W. 1), Ram Pher alias Tappe Tiwari (P.W. 2), Sanjay Kumar Tiwari (P.W. 3) and Onkar Nath Tiwari (P.W. 4) as witnesses of fact, and S.I. Jag Narain Pathak (P.W. 5), the Investigating Officer of this case, Head Constable Shri Ram Tiwari (P.W. 6), Durga Prasad Singh (P.W. 7), Dr. Q. A. Ahmad (P.W. 8) and constable Safiullah (P.W. 9), the formal witnesses.

The accused also examined D.W. 1 Dr. M. A. Khan and D.W. 2 constable Jafar Abbas.

After taking into consideration, the evidence on record, the learned Sessions Judge found the accused guilty for the offence u/s 304, I.P.C. and convicted and sentenced him u/s 304, I.P.C. to undergo seven years R.I.

Aggrieved by the said judgment and order, the instant criminal appeal has been preferred by the accused-Appellant.

I find that out of the four witnesses of fact, the two witnesses named in the F.I.R. P.W. 1 Azad Tiwari and P.W. 2 Ram Pher Tiwari have not supported the prosecution case and they were declared hostile. The rest of the two eye-witnesses are namely: P.W. 3 Sanjay Kumar Tiwari and P.W. 4 Onkar Nath Tiwari. The other witnesses are formal witnesses who have proved the documents prepared by them.

P.W. 8 Dr. Q. A. Ahmad has conducted the post-mortem on the dead body of deceased Manbahal Tiwari and found the following ante-mortem injuries on his body:

(1) Abrasion 1 cm. - 4 cm. on left side of the nose, 2-1/2 cm. below the root of nose.

(2) Contusion 8 cm. - 4 cm. on the left side of the chest just above left nipple.

On internal examination, Dr. Q. A. Ahmad has reported that he found the clotted blood in the left side of the chest just below injury No. 2. He has also given opinion that the injury No. 2 could be caused by fist but it could not cause death. However, he has admitted that in case neurogenic shock occurs then death due to injury No. 2 may be caused. According to him in post-mortem examination, this neurogenic shock is not generally found.

D.W. 1 Dr. M. A. Khan, has also proved the injuries of the accused which are as follows:

(1) Lacerated wound 3 cm. - 0.5 cm. - D-scalp deep on the left side of head, 8 cm. above the left ear root, advised X-ray.

(2) Contusion 4 cm. - 2 cm. on the left temporal region. Advised X-ray (3) Abrasion 3 cm. - 2.5 cm. on the front of right upper arm, 4 cm. above the elbow joint.

(4) Abrasion 6 cm. - 2 cm. on the front of right forearm, 10.5 cm. above the wrist joint.

(5) Abraded contusion 2 cm. - 1 cm. on the back of left forearm, 6 cm. above the elbow joint.

(6) Abraded contusion 1.5 cm. - 0.2 cm. on the right side of head, 7.5 cm. above the root of right ear, advised X-ray.

After seeing the evidence of both the parties, the learned Sessions Judge recorded a finding that the presence of Manbahal Tiwari on the spot is not disputed because the F.I.R. has also been lodged by the accused, which is Ext. Kha-2, and this incident is admitted and the presence of Manbahal Tiwari and his death on the spot is also admitted. The presence of P.W. 3 Sanjay Kumar Tiwari has also not been disputed because he has been shown in the F.I.R. Ext. Ka-2.

I have seen the statements of two witnesses of fact, namely ; Sanjay Kumar Tiwari P.W. 3 and Onkar Nath Tiwari P.W. 4. They have not stated anything about the intention of the accused to kill Manbahal Tiwari. They have not stated anything that the accused caused such injuries intentionally so that Manbahal Tiwari may be murdered. It was the incident at a spur of moment. I may refer the findings recorded by the learned Sessions Judge in the judgment, which are as follows:

Although no intention to cause death is proved that the accused has any knowledge that the death may be caused.

After recording the aforesaid finding, the learned trial court has held that the accused is guilty for the offence u/s 304, I.P.C. I find that after recording these findings, the accused cannot be held guilty for the offence u/s 304, I.P.C.

For convicting a person u/s 304, I.P.C., it must be proved that the accused committed culpable homicide not amounting to murder. If, it is proved that the accused committed culpable homicide not amounting to murder as defined u/s 299, I.P.C., there are two kinds of punishments applying to two different circumstances:

(1) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life or imprisonment of either description for a term which may extend to ten years and fine.

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

Section 299, I.P.C. defines culpable homicide. It is causing of death by doing:

(i) an act with the intention of causing death ;

(ii) an act with the intention of causing such bodily injury as is likely to cause death ;

(iii) an act with the knowledge that it was likely to cause death."

"Intent and knowledge" as the ingredients of Section 299 postulate, the existence of a positive mental attitude and this mental condition is the special mens rea necessary for the offence.

As stated above, in this case there is no evidence that the accused had knowledge that the attack by fist may cause death of Manbahal Tiwari. In the instant case, the medical evidence shows that the injury No. 2 is not the cause of death and injury No. 1 cannot be cause of death even by mere perusal of that injury.

In Sri Prakash v. State of U.P. 1989 ACrR 76 : (1989) 2 Crimes 379 (All), four boys on the festival of holika removed that bitaura of the accused to take it to a nearby pond to set it to fire. Having heard about it, the accused came running and all the boys except one fled away. The boy was kicked, fisted and manhandled by the accused. There was no visible injury over the body of the boy but he died of rupture of his spleen, which was enlarged. The accused had no intention to kill him, nor had any knowledge that it would result in his death. The accused was convicted u/s 323, I.P.C.

In the instant case under judgment, it is not a case of any intention on the part of the accused nor it is a case that the accused had knowledge that the injury caused by a fist can cause death. There is no medical evidence that any particular injury caused by the accused resulted into the death of Manbahal Tiwari. The cause of death is not ascertained in this case. Therefore, the accused cannot be convicted u/s 304, I.P.C. The quarrel is admitted in which the accused had also sustained injuries.

In view of the above, it can be a case of conviction u/s 323, I.P.C. only. Section 323, I.P.C. provides for one year''s imprisonment, or fine or both. The conviction was recorded on 21.4.1992 and since then, the accused-Appellant is on bail, therefore, after a period of 11 years, I do not think proper to send him to jail again. After finding the accused-Appellant guilty u/s 323, I.P.C., I find that a fine of Rs. 1,000 (Rs. one thousand only) u/s 323, I.P.C. will meet ends of justice.

In view of the above, the appeal is partly allowed and partly dismissed. The judgment and order dated 21.4.1992 passed in S.T. No. 118 of 1989, State v. Ram Kishun alias Janardan Tiwari, is modified by holding that accused Ram Kishun alias Janardan Tiwari is found guilty u/s 323, I.P.C. and he is convicted and punished to a fine of Rs. 1,000 (Rs. one thousand only). In case of default in payment of fine within a period of one month, the accused shall undergo six months R.I. On deposit of this fine, the amount of Rs. 1,000 (Rs. one thousand only) shall be paid to the complainant by way of compensation.

Let a copy of this order be sent to the Chief Judicial Magistrate concerned within ten days for its compliance who will submit compliance report within six weeks from the date of receipt of copy of this order.