Tej Pal and Others vs State of U.P.

M.K. Mittal, J.—This appeal has been preferred by (1) Tejpal S/o Pyarelal (2) Devendra (3) Arvind and (4) Krishna sons of Tejpal, all residents of Kasba Vajirganj, police station Vajirganj, district Badaun, against the judgment and order dated 10th August, 2006 passed by Sri Arun Chandra Srivastava, Additional District and Sessions Judge (F.T.C. No. 3), Badaun, in Sessions Trial No. 108/02, whereby they have been found guilty and convicted under Sections 323/34, 304/34 and 504, I.P.C. and have been sentenced to undergo rigorous imprisonment for one year, 10 years and one year respectively. Fine of Rs. 5,000 on each of the accused has been imposed u/s 304/34, I.P.C. with default stipulation of one year. All the sentences of each of the accused have been directed to run concurrently. It has been further directed that after the fine is recovered Rs. 5,000 shall be paid to Hansraj, the injured and Rs. 10,000 to the legal heirs of Khemkaran, the deceased.

The brief facts of the case are that on 24.2.2001 at about 10 a.m. when the informant Hansraj and his brother Khemkaran were at their house in village Vajirganj the accused persons armed with lathis came to their house and invited Khemkaran for a feast as the marriage of Krishna accused was to take place. Khemkaran refused to go in the feast and at this the accused started abusing him and said as to why he would not come to join the feast. Thereafter the accused persons started belabouring Khemkaran and Hansraj with their lathis. At that time Chhatrapal and Rajpal also came and saw the incident. Khemkaran received grievous injuries and was taken by Hansraj to police station where he lodged oral report at 11.20 a.m. same day. It was written as N.C.R. and its copy is Ex. Ka-2.

Constable Virendra Kumar P.W. 4 was posted as constable clerk at police station Vajirganj on 24.2.2001. He has stated that Hansraj and his brother Khemkaran came in injured condition and on the oral information given by Hansraj he prepared the N.C.R. It was also thumb marked by Hansraj. The case was initially registered under Sections 323 and 504, I.P.C. against the present Appellants. The necessary entry was made in general diary at rapat No. 21 at 11.20 a.m. Its copy is Ex. Ka-3. Constable Virendra Kumar gave majroobi letters for medical examination to Hansraj and Khemkaran and they were sent to hospital. Hansraj took his brother to Government hospital, Vajirganj but finding his injuries grievous he was referred to District Hospital Badaun.

Dr. V. P. Bharadwaj, P.W. 5, was posted in district hospital Badaun on 24.2.2001. He examined Khemkaran at 1.05 p.m. and found the following injuries:

Lacerated wound 4 cm. x 5 cm. x scalp deep on head 13 cm. above left ear.

One contusion 6 cm. x 2 cm. on right side back of chest lower part.

One abraded contusion 3 cm. x 2 cm. on front of left knee. Injuries were caused by some blunt object and were fresh in duration. Injury No. 1 was kept under observation. The injury report is Ex. Ka-6.

Dr. V. P. Bharadwaj also examined Hansraj same day at 1.15 p.m. and found following injuries on his person.

One abraded contusion 3 cm. x 1.5 cm. on base of right index finger.

One abraded contusion 7 cm. x. 2 cm. on left shoulder.

These injuries were caused by some blunt weapon and were fresh. Injury No. one was kept under observation and X-ray was advised. The injury report is Ex. Ka-7. According to doctor these injuries of two injured could have been caused with lathis on 24.2.2001 at about 10 a.m.

Since the condition of Khemkaran was serious, he was referred by the Medical Officer, District Hospital, Badaun, for treatment at Bareilly. The informant took his brother to Bareilly hospital but before he could be admitted, he died. The complainant brought back the dead body to his house. He got a report Ex. Ka-1 written by Gazi Khan and gave it at the police station. On the basis of this report the case was converted to Section 304, I.P.C. and entry was made in the general diary at rapat No. 19 on 25.2.2002 at 1.45 p.m. Its copy is Ex. Ka-16.

The dead body was sent for post-mortem examination through constable Chhatrapal Singh and village Chaukidar Jogendra. They took the dead body in sealed condition and identified the same before the Medical Officer, Dr. M. P. Gangwar P.W. 4, who was on post-mortem duty in District Hospital, Badaun, on 26.2.2001. He conducted the post-mortem examination of the body of Khemkaran at 3.00 p.m. The age of the deceased was about 35 years and one day had passed since his death. The rigor mortis was partly present in the upper part of the body and was fully present in the lower part. There was a hospital bandage on the head. Doctor found the following ante-mortem injuries on his person.

Stitch wound 4 cm. on left side top of skull, 15 cm. above left ear. The left parietal bone and occipital bone were found fractured. Under the injury and the membrane of the brain, there was a big haematoma and the brain was also congested.

Contusion with swelling 6 cm. x 2 cm. on right side of the back of chest.

Contused abrasion 3 cm. x 3 cm. on left knee front side.

According to the doctor cause of death was shock and haemorrhage as a result of ante-mortem injuries. The post-mortem report is Ex. Ka-1A. According to doctor death could have taken place on 25.2.2001 at about 11 a.m. and the injuries could have been caused by lathi danda.

The Police Inspector P.W. 6 Megh Singh who was posted at P.S. Vajirganj on 25.2.2001 investigated the case. He alongwith Station Officer Janak Singh and police force and the informant came to the village. The inquest report Ex. Ka-8 was prepared. Relevant papers were also prepared and dead body was sealed. The Investigating Officer interrogated the witnesses and inspected the place of occurrence and prepared the site plan Ex. Ka-14. After completing the investigation he submitted the charge-sheet against the Appellants Tejpal, Devendra, Munnalal and Sonepal as according to him the involvement of Arvind and Krishna was found to be incorrect. The charge-sheet is Ex. Ka-15.

The case of the accused Tejpal, Devendra, Sonepal and Munnalal was committed by order dated 4.2.2002 by C.J.M., Badaun. The accused Tejpal, Arvind, Sonepal and Munnalal were charged u/s 304, I.P.C. on 20.8.2002. The informant Hansraj was examined on 13.11.2002. He stated that the Investigating Officer had wrongly implicated Sonepal and Munnalal and had wrongly left out Arvind and Krishna. Thereafter, application u/s 319, Cr. P.C. was filed by the prosecution and the learned trial court summoned the accused Krishna and Arvind u/s 304, I.P.C. They were charged on 17.5.2003. There was some mistake in the charge regarding the name of the informant and the charges were amended on 6.1.2004 against the 6 accused persons. Additional charges against the accused persons under Sections 147, 149, I.P.C. were framed on 6th April 2005 and under Sections 323/149 and 504, I.P.C. on 2nd August, 2006. The accused pleaded not guilty and claimed trial.

In support of its case the prosecution led evidence and examined Hansraj P.W. 1, Smt. Ved Kumari P.W. 2 as witnesses of fact and occurrence besides the above noted formal witnesses.

The accused were examined u/s 313, Cr. P.C. and they denied the prosecution case and contended that they were falsely implicated in this case and that witnesses gave wrong statements. The accused also pleaded innocence. However, they did not adduce any evidence in defence.

Learned trial court after considering the evidence on record came to the conclusion that the prosecution had been able to establish its case against the accused-Appellants beyond reasonable doubt. However, learned trial court did not find any case to have been established against the accused Munnalal and Sonepal and acquitted them of the charges they stood trial. The accused feeling aggrieved, by their conviction and sentence, have come up in this appeal.

I have heard Sri P. N. Mishra learned senior counsel for the Appellants, Sri Navin Shukla learned A.G.A. and have perused the trial court record.

Learned Counsel for the Appellants has contended that the Appellants have been wrongly convicted in this case and that the prosecution witnesses are interested witnesses and are not reliable. He has also contended that Khemkaran received one fatal injury on head by lathi and all the accused cannot be held liable for causing his death. He has also contended that the independent witnesses Chhatrapal and Rampal have not been produced by the prosecution and that the learned trial court has erred in convicting the accused persons. Against it the learned Counsel for the State has contended that the prosecution witnesses Hansraj and Smt. Ved Kumari, although related to the deceased, are wholly reliable witnesses and there is nothing in their evidence to show that they are not speaking the truth. He has also contended that the witnesses Chhatrapal and Rampal are relative of the accused persons and if they have not been examined, it does not affect the correctness of the prosecution case and that the accused were acting in furtherance of their common intention while they caused injury to Khemkaran and Hansraj and therefore all the accused are vicariously liable for the death of Khemkaran.

In the instant case it is proved from evidence on record that the incident took place at the time, date and place as mentioned by the prosecution witnesses. These facts have not been challenged by the defence. The fact that Khemkaran was given lathi blow (as a result thereof he received grievous injury in his head) resulting in fracture of temporal and parietal bones as well as the congestion of brain, and ultimately resulting in his death has also been proved by the prosecution witnesses and has been corroborated by medical evidence on record.

Now it has to be seen whether these injuries were caused by all of the accused and whether all of them are vicariously liable or not. In order to arrive at correct conclusion it will be appropriate to refer the statements of the factual witnesses as examined by the prosecution.

Hansraj P.W. 1 the injured and the brother of the deceased, has stated on oath that it was about 10 a.m. in the day when he was going to purchase some wood. At that time the accused persons armed with lathis came there. His brother Khemkaran was sitting at the door of his house. The accused invited Khemkaran to a feast in connection with the marriage of Krishna, son of Tejpal. However, Khemkaran refused the invitation. Thereafter, the accused started abusing him and said as to why he would not come in the feast. Thereafter, the accused started belabouring Khemkaran and the witness Hansraj with lathis. Since the condition of Khemkaran was serious he took him to police station where he lodged the oral report and then took him to Vajirganj hospital from where he was referred to district hospital Badaun. Khemkaran was admitted in district hospital Badaun and was medically examined and was treated but when condition deteriorated he was referred to the district hospital Bareilly. But he died before he could be admitted. The witness has also stated that he informed about the death of his brother and thereafter police started investigation. He was interrogated by the Investigating Officer. He did not tell the name of Sonepal and Munnalal to the Investigating Officer. He told the Investigating Officer that Tejpal, Devendra, Arvind and Krishna had beaten them. The lathis wielded by Arvind and Krishna had hit him and Khemkaran received injuries from the lathis wielded by Devendra and Tejpal. According to this witness Chhatrapal and Rampal, the witnesses, are brother-in-law of accused Tejpal. He also stated that he did not want to examine other witnesses as they had colluded with the accused. In cross-examination this witness stated that the police inspector had inspected the place of occurrence at his pointing out on the third day of incident. They were not on visiting terms with the accused persons because of earlier partibandi. Arvind and Krishna came after 5 minutes of the start of marpeet. When they arrived Devendra and Tejpal had already started marpeet and crowd had also collected there. Munnalal and Sonepal were not present at that time. The accused were armed with lathi dandas. Ramkali wife of Khemkaran had also saved her husband. Tejpal and Devendra beat his brother Khemkaran, Arvind and Krishna beat him. Smt. Ved Kumari wife of his brother Chandrapal had also saved them. At that time his father was not present at the house. He denied the suggestion that the accused were implicated because of enmity. He also denied that Khemkaran had illicit relations with his wife and that on that account there was quarrel between him and Khemkaran and in that Khemkaran received injuries. He also denied the suggestion that the wife of Khemkaran did not intervene.

Smt. Ved Kumari (wife of Chandrapal) P.W. 2 is an eye-witness and has stated that the deceased Khemkaran was her jeth. She knew all the accused persons from before. At the time of incident the accused came armed with lathis. She was standing at the door of the house at that time. The accused invited Khemkaran and Hansraj for a feast in the marriage of Krishna but Khemkaran refused the invitation and then accused abused them and started belabouring Khemkaran and Hansraj with lathis. Rampal and Chhatarpal the witnesses were not present at that time. Khemkaran received grievous injuries and died because of his injuries. She did not tell the names of Munnalal and Sonepal to the Investigating Officer as the assailant. In cross-examination she has stated that at the time of the incident she was at the door of her house. She, Hansraj and Khemkaran have one house. At that time her husband was in Delhi. Her father-in-law was also not present. At that time Khemkaran was inside the house and Hansraj was standing outside the house and when the accused Tejpal called, Khemkaran came out. The accused had come to invite armed with dandas although, it is not customary to come with dandas while coming to invite. They invited for the marriage of Krishna. The marriage party had to leave that day. Khemkaran refused the invitation. She could not tell the reason as to why he refused. The accused started abusing. Hansraj and Khemkaran might have also abused. There was lot of noise and after about 5 minutes the marpeet took place. Ramlali did not come out of the house because she had a small child. After 6 months of the death of Khemkaran, Ramlali had second marriage. The child of Khemkaran also died. She denied the suggestion that Khemkaran had any illicit relations with the wife of Hansraj and that there was any marpeet between Khemkaran and Hansraj and on that account Khemkaran received injuries and died.

The statements of these two witnesses fully corroborate the prosecution case that the accused persons came armed with lathis and when the invitation was refused Khemkaran and Hansraj were beaten. Although these two witnesses are related to Khemkaran but there is nothing in their evidence to show that they are not speaking the truth. According to Hansraj he had not mentioned the names of Munnalal and Sonepal in his report and had also not disclosed their names to the Investigating Officer but they were wrongly impleaded in place of other two accused namely Arvind and Krishna. He has also stated that out of four accused (Appellants) two caused injuries to Khemkaran. These statements show that the witness is speaking the truth. Although the prosecution did not examine, Chhatrapal and Rampal alleged by Hansraj to have been present at the time of the incident, but their non-examination is not material. These two persons are brother-in-law of the accused Tejpal and if they have not been examined it does not affect the prosecution case in any manner.

Learned Counsel for the Appellants has contended that the presence of these two witnesses (P.W. 1 and P.W. 2) is not proved from the evidence on record. He has pointed out that when Hansraj was examined for the first time in the Court before summoning of the two accused namely Devendra and Krishna, he stated in his cross-examination that he was in his field as he had gone to irrigate it and at about quarter to ten Mahboob Tangawala had informed him about the ''jhagra'' at his house and he came running to his house and reached there in 10-15 minutes, the distance between his house and the agricultural field being one km. On the basis of this statement, learned Counsel for the Appellants contended that Hansraj could not have seen the incident. But according to the learned A.G.A. Hansraj has made a positive statement that he was present at his house when the accused came and that he also received injuries in this incident and that there is no reason to disbelieve his presence. The statement of Hansraj as has come on record inspires confidence and there is no reason to discard it. He received injuries in this incident and his presence cannot be doubted. Moreover, after summoning the two accused u/s 319, Cr. P.C. the statement of Hansraj P.W. 1 was recorded afresh and his attention was not invited to his earlier statement as required u/s 145 and 155 (3) of Indian Evidence Act and in the circumstances his earlier statement is not legally admissible.

As far as the question of presence of Smt. Ved Kumari is concerned, she is the wife of the brother of Hansraj and all these persons were living together in the same house. Smt. Ved Kumari has stated that she was present at the door of her house. The incident took place at her house and in the circumstances her presence is probable and natural and it cannot be doubted. Therefore, the prosecution was able to establish that the incident took place as alleged by it. The witnesses were suggested that the deceased Khemkaran had illicit relations with the wife of Hansraj and on that account there was marpeet between Khemkaran and Hansraj and in that incident Khemkaran received fatal injuries. But the accused did not state about this version in their statements u/s 313, Cr. P.C. No evidence has also been produced by them to substantiate their defence version. The two witnesses examined by the prosecution have positively denied the suggestion as given to them. In the circumstances there is no reason to accept the defence version as suggested to the witnesses.

Now it has to be seen whether all the accused are vicariously liable for the death of Khemkaran. Section 304, I.P.C. reads as under:

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.

Section 34, I.P.C. deals with vicarious liability. It provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Hansraj has given a positive statement that Khemkaran was attacked by Tejpal and Devendra and he was attacked by the other two accused namely Arvind and Krishna. He has also stated that Arvind and Krishna came when the marpeet had already started. Although, at the initial stage he stated that all the accused persons had belaboured him and Khemkaran but the specific statements as given show that Khemkaran was given lathi blows by Tejpal and Devendra. The accused are alleged to have come for giving invitation although they were armed with lathis. The marpeet started when Khemkaran refused the invitation. In the circumstances the possibility of there being no marpeet cannot be ruled out, had the invitation been accepted. Since the invitation was refused the accused Tejpal and Devendra felt insulted and abused Khemkaran and his brother and then belaboured them. While doing so they had the knowledge that the lathi blows being given by them may result in the death of Khemkaran. It shows that they had common intention to cause injuries to Khemkaran and acted in furtherance thereof and both of them are liable for the injuries caused to Khemkaran. The common intention can develop during the course of the incident also. Since the other two accused Arvind and Krishna came when the marpeet had already started and did not beat Khemkaran, they cannot be said to have shared any common intention with the other two accused. Therefore, only two accused Tejpal and Devendra who gave lathi blows to Khemkaran can be held responsible for his injuries and consequent death. Learned Counsel for the Appellants has contended that Khemkaran received only one fatal injury on his head and the other injuries were on back and left knee and it has not come in evidence, as to which of the accused caused the fatal injury. But this contention cannot be accepted. Both these accused beat Khemkaran in furtherance of their common intention and therefore in view of Section 34 of I.P.C., they are equally liable.

In the case of Rajesh Govind Jagesha Vs. State of Maharashtra, it has been held that no premeditation or previous meeting of mind is necessary for applicability of Section 34, I.P.C. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. In the case of State of U.P. Vs. Jhinkoo Nai, this position was again reiterated and it was held that common intention can be proved on the basis of the circumstances of each case, namely, the direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Where several persons launch murdererous assault on deceased simultaneously, common intention can be inferred therefrom and no distinction can be made for allocating guilt between the persons who inflicted the fatal wounds and who inflicted the non-fatal wounds. In this case both of these accused persons beat Khemkaran and even if there was only one fatal blow on the head of the deceased both of them are vicariously liable u/s 34 of the Indian Penal Code and the contention of the learned Counsel to the contrary is not acceptable.

Thus, I am of the opinion that the Appellants Tejpal and Devendra have been rightly convicted for causing fatal injuries to Khemkaran but the other two accused namely Arvind and Krishna have been wrongly convicted u/s 304/34, I.P.C.

Hansraj has made a specific statement that the accused Arvind and Krishna caused him injuries by lathis. However, his injuries were found to be simple and therefore, these two persons could be convicted u/s 323/34, I.P.C.

The accused persons have been convicted u/s 304/34, I.P.C. Learned Counsel for the Appellants has contended that in any case the offence of the accused would not travel beyond Section 304 (ii), I.P.C. In this connection, he placed reliance on the case of Mankey Ram v. State of Haryana 2004 SCC 106 : 2003 (3) ACR 2226 (SC). In that case the accused had invited the deceased to his room to have drink and when both of them were drinking, the nephew of the deceased invited and asked his uncle to get up and join him for dinner. The deceased agreed but this annoyed the accused and he abused in filthy language. There was also a physical fight between the accused and the deceased. Thereafter, the accused took his service revolver and fired two shots at the deceased resulting in his death. In that case the trial court convicted the accused u/s 302, I.P.C. and the High Court confirmed it but the Hon''ble Supreme Court felt that it was a case of sudden fight in heat of passion and that the accused had not taken any undue advantage of the said fight or acted in a cruel or unusual manner and consequently his conviction was converted to Section 304 (ii), I.P.C. In the instant case also the marpeet was sudden and the accused were not cruel or unusual and only one fatal blow was caused on the head of the deceased.

In the circumstances, I am of the opinion that the case of the accused is covered by Section 304 (ii) and not part (1) and the learned trial court has wrongly convicted the accused u/s 304 (1), I.P.C. All the accused have also been convicted u/s 504, I.P.C. But no specific allegations about the abuses have been made by the witnesses and the abuses have not been specified. Therefore, the accused should not have been convicted u/s 504, I.P.C. and are entitled to be acquitted of the same.

In view of the above discussion I come to the conclusion that the appeal of Tejpal and Devendra is to be partly allowed to the extent that their conviction is to be set aside u/s 304 (i), I.P.C. and instead they are to be convicted u/s 304 (ii), I.P.C. The appeal of Arvind and Krishna is to be allowed to the extent that their conviction is to be set aside u/s 304/34, I.P.C. and they are to be convicted only u/s 323/34. All the accused are to be acquitted u/s 504, I.P.C. also.

I have also heard learned Counsel for the parties on the question of sentence. Considering the facts and circumstances, the interest of justice will be served if the Appellants Tejpal and Devendra are sentenced to undergo rigorous imprisonment for a period of 5 years u/s 304 (ii)/34, I.P.C. and the Appellants Arvind and Krishna are sentenced with the period (about 15 days) of imprisonment already undergone u/s 323/34, I.P.C.

The appeal of Tejpal and Devendra is allowed to the extent that instead of Section 304 (i), I.P.C. they are convicted u/s 304 (ii), I.P.C. and are sentenced to undergo rigorous imprisonment for 5 years. Their conviction under Sections 323/34 and 504, I.P.C. is set aside. The accused shall also pay Rs. 5,000 each as the fine u/s 304 (ii), I.P.C. instead of Section 304 (i), I.P.C. and in default shall undergo simple imprisonment for three months. The sentence already undergone by the accused shall be adjusted u/s 428, Cr. P.C.

The appeal of the Appellants Arvind and Krishna is allowed to the extent that their conviction and sentence under Sections 304/34, I.P.C. and 504, I.P.C. are set aside. Their conviction u/s 323/34, I.P.C. is confirmed and they are sentenced with the period of imprisonment already undergone. A fine of Rs. 1,000 is imposed on Arvind and Krishna each u/s 323/34, I.P.C. and in default they shall undergo simple imprisonment for one month. These two Appellants are allowed one months time to deposit the fine as imposed on them. If any part of the fine has already been deposited by them the same shall be adjusted. In case of default they shall be committed to custody.

After the fine is deposited by the accused it shall be paid equally to the injured and the legal heir of the deceased.

Copy of judgment be certified to the learned trial court for necessary compliance forthwith.