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A.F.R.

(Reserved On: 16.09.2019)

(Delivered On: 17.10.2019)

Court No. - 41

Case :- CRIMINAL APPEAL No. - 497 of 2000

Appellant :- Dhaukal And Others

Respondent :- State Of U.P.

Counsel for Appellant :- D.R. Chaudhary,Jitendra Prasad Mishra

Counsel for Respondent :- Govt. Advocate

Hon'ble Bachchoo Lal,J.

Hon'ble Narendra Kumar Johari,J.

( Delivered by Hon’ble Narendra Kumar Johari, J. )

1.Present appeal has been filed against the judgment and conviction

order of Sessions Judge, Chitrakoot. Learned Sessions Judge vide order

dated 05.02.2000 has convicted and sentenced the accused-appellants

under Sections 302 read with Section 34 and 323 read with Section 34 of

Indian Penal Code (hereinafter referred to as “I.P.C.”). All the

accused/appellants Dhaukal, Lulli, Kaluwa and Sundaria were sentenced

for life imprisonment under Section 302/34 and rigorous imprisonment

for three months under Section 323 read with Section 34 I.P.C.

2.Prosecution version in nut-shell is as follows:-

3.It has been mentioned by complainant-Kalutia @ Sentarva in her

First Information Report on 23.07.1987 that she had kept a bundle of

JHAKHAR on her BIRABARI which was taken by Sundaria who was

daughter of her brother-in-law (Jeth). On an enquiry about aforesaid

JHAKHAR, Sundaria started abusing and an altercation took place orally

between them. At about 1:00 P.M. at noon, her husband-Sukhna returned

at his house after ploughing the field and was eating his meal. At that

time, her Jeth-Dhaukal came at her house and called her husband stated

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that Sagir is calling him. On his call, her husband went with Dhaukal.

Complainant followed them. When they reached near their old house,

Sundaria, the daughter of Dhaukal seeing them, started abusing. Hearing

the voice of Sundaria, her father-Dhaukal became angry and by abusing

her he exhorted to kill. Consequently, Lulli, son-in-law (Damad) of

Dhaukal and Kaluwa, son of Dhaukal and Dhaukal himself moved to

attack on complainant by their lathis. Seeing their activities, Sukhana (her

husband) came between accused persons and complainant just to save her

wife from attack. Lulli hit the first blow of lathi which attacked on head of

Sukhana and second blow of lathi was hit by Dhaukal. Receiving the

injuries of lathis, Sukhana fell down. Complainant just to prevent lathi

blows lie down and covered his body. At that time accused Kaluwa also

attacked by lathi. Complainant hurled voice for help. Hearing the voice,

the other villagers of neighbour Rania Pasin, Munni Pasin, Maika Pasi,

Garib Pasi, Ramla Raidas, Bhori Pasin and Kallu Brahman etc. reached

on spot who prevented accused persons from their attack. Then after that

all the accused persons fleed away from the spot. Her husband Sukhna by

the injuries of lathi blown by Lulli, Dhaukal and Kaluwa died on spot.

Accordingly, the F.I.R. was written in Police Station-Mau, Karbi, Banda

on the same date at 16:55 P.M. at Crime No.106 of 1987 under Section

304 I.P.C. Scriber of F.I.R. was Munni Ram.

4.The said First Information Report was entered at Serial No.27 in

General Diary of Police Station on same date. Investigating Officer

reached on spot. He took blood-stained piece of KATHARI and collected

blood-stained and plain soil from the place of occurrence and prepared

recovery memo (FARD) (Ex. Ka-4 and Ex. Ka-5) and sent the body of

deceased for post mortem (Ex. Ka-8). Post mortem of deceased-Sukhana

was conducted in combined health centre, Karvi, Banda on 25.07.1987 at

1:00 P.M. Medical Examination of injured complainant-Kalutia (Ex. Ka-

7) was also done on 25.07.1987 at 05:45 P.M. Investigating Officer also

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prepared the spot map (Ex. Ka-6), Panchnama, arrested accused persons

and submitted charge-sheet(Ex. Ka-9) in Court.

5.On behalf of the prosecution, complainant Kalutia @ Sentarva

deposed as PW-1, Garib Das (Scriber of Tehreer First Information Report)

as PW-2, Munni Ram (who lodged First Information Report) as PW-3.

Genuineness of Chik of FIR, recovery memos of KATHARI and soil,

injury report of Kalutia @ Sentarva, posts mortem report, spot map and

Charge-sheet was admitted by learned counsel for the accused persons

under Section 294 of Cr.P.C., therefore, the aforesaid documents were

exhibited in prosecution evidence without formal proof by concerned

witnesses.

6.Charges under Sections 304/34, 323/34 and 302/34 I.P.C. were

framed against the accused persons. Accused persons denied the charges

and elected to be tried. Statement of accused persons was recorded under

Section 313 I.P.C on behalf of accused persons who said about the facts of

the case as “wrong”. Regarding evidence they shown their “ignorance”.

Accused Kaluwa said that at the time of occurrence he was at Ansuiya

Ashram. Dhaukal replied that he was at the field. In reply of their

accusation, they replied “due to enmity”. Witness Chunni Lal was

examined as DW-1.

7.Considering the facts and circumstances and evidence of the case,

learned Sessions Judge convicted accused persons and sentenced accused

persons under Section 323/34 and 302/34 I.P.C.

8.In present appeal, in his oral argument, learned counsel for the

appellants/accused persons submitted that they have been falsely

implicated. Appellants-Kaluwa and Dhaukal were not present on the spot.

The quarrel was started by deceased and his wife. Deceased-Sukhana has

beaten brutally to appellant Lulli and Sundaria. Deceased-Sukhana and

injured Kalutia have received injury in private defence of appellant-Lulli.

The deceased was aggressor. Prosecution has failed to explain the injuries

of Sundaria and Lulli. There is no recovery of weapons. There was no

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intention of killing deceased. Prosecution witnesses are related and

interested witnesses. There are discrepancies in their statement. It was no

common intention. No motive has been prooved. They have wrongly been

convicted. Hence, appellants are liable to be acquitted and appeal is liable

to be allowed. In support of their contentions, learned counsel for the

appellants submitted the case laws Gurdial Singh and Ors. V. State of

Punjab 2011 Cri. L.J. 1110, Nagarathinam and Ors. Vs. State 2006

Cri.L.J. 2120, State of U.P. Vs. Gajey Singh and Anr. 2009 Cri. L.J. 2274,

Hanumantappa Bhimappa Dalavai and Anr. Vs. State of Karnataka 2009

Cri. L.J. 3045 and Darshan Singh Vs. State of Punjab and Anr. 2010 Cri.

L.J. 1393, Dharam Pal and Ors Vs. State of U.P. 2008 CRI.L. J.1016 SC

and Rizan and Anothers Vs. State of Chatisgarh 2003 CRI.L. J 1226 SC.

9.Per contra, learned A.G.A. has replied that accused persons in

consequence of earlier altercation in between Kalutia and Sundaria

prepared a plan and in furtherance, appellants attacked on deceased and

on his wife. Deceased was never aggressor. There was no occasion of

private defence. Injuries on accused have not been proved. There was

common intention and motive of all the accused persons. Sundaria is

injured witness. There is no substantial discrepancy in the statements of

prosecution witnesses. Evidence of eye witnesses is corroborated by

medical evidence. Ingredients of offence under Section 302 I.P.C. are

proved. Prosecution has proved the case against accused persons beyond

any doubt. Appellant/accused have rightly been convicted. Appeal is

liable to be dismissed.

10.Learned A.G.A. has relied on the case laws in support of his argument

Virsa Singh Vs. State of Punjab 1958 AIR 465, Dalip Singh Vs. State of

Punjab, AIR 1997 SC 2985, Ramdeo Kahar & Ors Vs. State of Bihar 2009 (1)

JIC 740 (SC), Hawa Singh and Anr. Vs. State of Haryana.

11.Heard learned counsel for the appellants, learned A.G.A. and perused the

record.

12.As according the First Information Report, prior to occurrence of

offence in question, there was an incident of altercation which had taken

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place earlier on same day at 07:00 A.M. It took place on the point of

removal of JHAKHAR in between complainant Kalutia @ Sentarva and

appellant-Sundaria.

This fact is proved by statements of PW-1-Kalutia and PW-2 Garib Das

which is corroborated by evidence of DW-1-Chunni Lal. That earlier

occurrence is sufficient to draw the inference about above presence of

motive of assailant in subsequent occurrene.

The motive of assailant is mental condition. How the mind of an assailant

reacts is not to be fathomed from a detached reflection, as it has been held

by Hon’ble Supreme Court in case of Baboolal Vs. State of U.P. 2001

SCC (Cri.) 1448.

13.Where there is direct evidence then in that case, it is not necessary

for prosecution to prove the motive of assailant. Therefore, it is no ground

for appellant to challenge the prosecution case.

14.As according to the facts of the case, informant had kept bundle of

JHAKHAR on her BIRABARI which was taken away by appellant-

Sundaria. On questioning about said JHAKHAR, Sundaria started abusing

and an altercation took place orally between them. Subsequent to that

occurrence, appellant-Dhaukal reached at the house of complainant and

said to her husband Sukhana (deceased) that he is being called by Sagir.

Deceased went with Dhaukal. Seing the activity of her husband,

complainant followed them. When both the persons reached near the old

house, appellant Sundaria started abusing. First Information Report shows

that at that time other appellants-Kaluwa and Lulli were also present.

Lulli, Dhaukal and Kaluwa were having lathis in their hands.

It has been mentioned in F.I.R. as well as in statement of PW-1 that at the

spot, hearing the abusive language of Sundaria, his father Dhaukal also

abused Kalutia and exhorted to attack. Consequently, Lulli, Kaluwa and

Dhaukal moved forward to attack on Kalutia. Then, Sukhana came in

between accused persons and Kalutia just to save his wife.

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The above narrated fact indicates that Sagir was employer of Sukhana and

by calling only to Sukhana from his residence by Dhaukal and on the

place of occurrence by trying to attack on Kalutia, it seems that there was

not any pre-planning in between accused persons to kill Sukhana. There

was no previous enmity in between Sukhana and accused persons. On the

spot, no altercation took place in between Sukhana and accused persons

and accused persons did not try to attack on Sukhana first, rather they

were aggressive on Kalutia. There was no weapon in the hand of

Sundaria. Sukhana had received single blow given by accused Dhaukal

and Lulli. Kaluwa (accused) has not given any lathi blow to Sukhana.

Therefore, considering the evidence as a whole it reflects that there was

no common intention of accused persons to give fatal blows to Sukhana.

On this point, learned counsel for the appellants has submitted that where

the common intention is not proved by the facts and circumstances of the

case, accused persons cannot be convicted under Section 34 I.P.C. In

support of his contentions, learned counsel has submitted case law of

Nagarathinam and Ors. Vs. State (2006) Cr. L.J. 2130.

In reply, learned A.G.A. has submitted that common intention can be

inferred from the surrounding circumstances of occurrence. Prosecution is

not required to adduce direct evidence. In support of his argument, he has

submitted case law of Ramdeo Kahar and Ors. Vs. State of Bihar (2009) 1

JIC 740 (SC).

We have considered the rival contentions of both the side and

circumstances of the case as discussed above, we are of the considered

view that there may be a chance of development of intention to attack on

Kalutia on altercation, but not on Sukhana (deceased). Hence, on the point

of common intention, argument advanced by learned counsel for the

appellants seems forceful, accordingly prosecution is failed to prove

common intention of accused person.

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15.Learned counsel for the appellants has contended that on the place

of occurrence, after hearing the abusive languages of Sundaria Sukhana

became angry and in support of his wife, he started beating and blowing

lathi on Lulli and Sundaria. Then after that only to save themselves Lulli

attacked on Sukhana and on Kalutia (informant). The act of appellant

Lulli was in private defence. In support of his argument, learned counsel

for the appellants has relied on para 26 of case law of State of U.P. and

Ors. Vs. Gajey Singh and another 2009 Cr.L.J. 2274, which is reproduced

as under:-

“26.- In the present case, the circumstances indicate that Gajey Singh

was assaulted on head by a sharp edged weapon ‘balkati’

causing a bone deep injury. As per the defence version there

were four assailants who had come well prepared to assault at

the door of their own house. In such a situation accused persons

could have a reasonable apprehension of death or at least of

grievous hurt. It was a case of single gun shot which was not

repeated. Therefore, it cannot be said that the accused persons

had exceeded their right of private defence in any manner.”

In continuation of his argument on above point, learned counsel for the

appellants has further submitted that there are several injuries of

appellants- Lulli and Sundaria. Their injury report are on record as paper

no.24-A and 25-A. The injury report of Lulli (paper no.24-A) indicates

that he had received six injuries on different part of his body in which

three injuries of contusion, one of aberrated contusion and one of

lacerated wound.

The injury report of Sundaria (paper no.25-A) indicates that she had

received five injuries on different parts of her body which includes injury

of one lacerated wound and four of contusion.

16.Learned counsel for the appellants has submitted that the above

injuries on accused Lulli and Sundaria shows that they have received the

injury which has been given by Sukhana hearing the abusive language of

Sundaria. Therefore, deceased Sukhana was aggressor who has given

above injuries to Lulli and Sundaria. Then, after that accused Lulli

became compelled to attack on Sukhana seeing the danger of life.

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In reply, learned A.G.A. has submitted that PW-1 has stated in her cross-

examination at page-6 that when her husband went with Dhaukal on his

calling, he was empty handed. She has not said anywhere in her statement

that ever Sukhana had lathi in his hand even in her cross-examination,

nowhere she has admitted that Sukhana had beaten Lulli and Sundaria.

Another eye-witness PW-2 has also denied and stated that Sukhana had

not beaten to Lulli and Sundaria.

17.The injury report of appellants Sundaria and Lulli indicates that

they had total 11 injuries on different parts of their bodies. For the sake of

argument, if it is true that deceased-Sukhana was carrying lathi in his

hand then in that case also it was not possible for deceased to give almost

11 injuries on appellants- Lulli and Sundaria particularly in presence of

other accused persons Dhaukal and Kaluwa. If it would have been true

then in that case deceased and his wife would also had received more

injuries on their bodies. On contrary, Sukhana and his wife Kalutia had

received only two injuries each, out of which Kalutia had simple injuries

which has been explained by her in evidence. Nowhere any such fact

came into light in any evidence that while Lulli and Sunadaria were being

beaten by Sukhana, they have shouted any voice for help.

18.The point of argument, regarding injuries on appellants and their

action in private defence is not found place in the statements of accused

appellants under Section 313 of Cr.P.C. also. They have not stated any

such mitigating circumstance in his above statement.

19.In injuries of Lulli, paper no.24-A the finding of doctor was that

except injury no.-3 which was as contusion on the left forearm of injured,

all the injuries were simple in nature. Doctor had advised X-ray for injury

no.3. Accordingly. The finding of doctor on examination of injuries of

Sundaria paper no.25-A also shows that doctor had advised X-ray for her

contusion injury on index finger and all other injuries were simple in

nature, but neither any X-ray report has been filed by accused persons

(Lulli and Sundaria) nor any doctor was produced to prove the aforesaid

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injury reports of Lulli and Sundaria (papers no.24-A and 25-A). In

absence of formal prove of injury report, paper no.24-A and 25-A cannot

be relied upon in evidence. Also there was no occasion to attack on Lulli

first by deceased Sukhana as the altercation was being taken place in

between Sundaria and Kalutia.

20.Learned A.G.A. has argued that accused has not produced any

witness in support of his above version of private defence whereas, so

many villagers were present at the time of occurrence. All the prosecution

witnesses PW-1, PW-2 and PW-3 has nowhere mentioned or admitted

either in their examination-in-chief or in their cross-examination that

deceased had assaulted on Sundaria and Lulli. There was no

preponderance of probability of such a situation. Burden of proof about

action in private defence was on accused persons which could have been

established by appellants by indicating the circumstances transpiring from

prosecution evidence itself, but they were failed.

21.On the above point, Hon’ble Apex Court has given verdict in case

law of Rizan and another Vs. State of Chhattisgarh 2003 Cr.L.J. 1226.

22.The relevant portion is reproduced as under:-

“13. Then comes plea relating to alleged exercise of right of

private defence. Section 96 I.P.C. provides that nothing is an

offence which is done in the exercise of the right of private

defence. The Section does not define the expression ‘right of

private defence.’ It merely indicates that nothing is an offence

which is done in the exercise of such right. Whether in a

particular set of circumstances, a person acted in the exercise of

the right of private defence is a question of fact to be

determined on the facts and circumstances of each case. No test

in the abstract for determining such a question can be laid

down. In determining this question of fact, the Court must

consider all the surrounding circumstances. It is not necessary

for the accused to plead in so many words that he acted in self-

defence. If the circumstances show that the right of the

circumstances show that the right of private defence was

legitimately exercised, it is open to the Court to consider such a

plea. In a given case the Court can consider it even if the

accused has not taken it. If the same is available to be

considered from the material on record. Under Section 105 of

the Indian Evidence Act, 1872, the burden proof is on the

accused, who sets of the plea of self-defence, and , in the

absence of proof, it is not possible for the Court to presume the

truth of the plea of self-defence. The Court shall presume the

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absence of such circumstances. It is for the accused to place

necessary material on record either by himself adducing

positive or by eliciting necessary facts from the witness

examined for the prosecution. An accused taking the plea of

the right of private defence is not required to call evidence; he

can establish his plea by reference to circumstances transpiring

from the prosecution evidence itself. The question in such a

case would be a question of assessing the true effect of the

prosecution evidence, and not a question of the accused

discharging any burden. Where the right of private defence is

pleaded, the defence must be a reasonable and probable version

satisfying the Court that the harm caused by the accused was

necessary for either warding off the attack of forestalling the

further reasonable apprehension from the side of the accused.

The burden of establishing the plea of self-defence is on the

accused and the burden stands discharged by showing

preponderance of probabilities in favor of that plea on the basis

of the material on record. (See Munshi Ram and others vs.

Delhi Administration, AIR 1968 SC 702; State of Gujarat vs.

Bai Fatima, AIR 1975 SC 1478; State of Bihar vs. Mohd.

Musheer Khan, AIR 1977 SC 2226 and Mohinder Pal Jolly vs.

State of Punjab, AIR 1979 SC 577). Sections 100 to 101 define

the extent of the right of private defence of body. If a person has

a right of private defence of body under Section 97, that right

extents under Section 100 to causing death if there is reasonable

apprehension that death or grievous heart would be the

consequence of the assault. The oft quoted observation of this

Court in Salim Zia vs. State of U.P. (AIR 1979 SC 391), runs as

follows:

“It is true that the burden on an accused person to establish the

plea of self-defence is not as onerous as the one which lies on

the prosecution and that, while the prosecution is required to

prove its case beyond reasonable doubt, the accused need not

establish the plea to the hilt and may discharge his onus by

establishing a mere preponderance of probabilities either by

laying basis for that plea in the cross-examination of the

prosecution witnesses or by adducing defence evidence.”

The accused need not prove the existing of the right of private

defence beyond reasonable doubts. It is enough for him to show

as in a civil case that the preponderance of probabilities is in

favour of his plea. ”

23. It has been further held by Hon’ble Supreme Court in paragraphs-

14 to 16 of case law of Rizan and others Vs. State of Chhattisgarh (Supra)

which is as under:-

“14.The number of injuries is not always a safe criterion for

determining who the aggressor was. It cannot be stated as a

universal rule that whenever the injuries are on the body of the

accused persons, a presumption must necessarily be raised that

the accused persons had caused injuries in exercise of the right

of private defence. The defence has to further establish that the

injuries so cause on the accused probabilises the versin of the

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right of private defence. Non-explanation of the injuries

sustained by the accused at about the time of occurrence or in

the course of altercation is a very important circumstances. But

mere non-explanation of the injuries by the prosecution may not

affect the prosecution case in all cases.

This principle applies to cases where the injuries sustained by

the accused are minor and superficial or where the evidence is

so clear and cogent, so independent and disinterested, so

probable, consistent and creditworthy, that it far outweighs the

effect of the omission on the part of the prosecution to explain

the injuries. [See Lakshmi Singh V. State of Bihar (AIR 1976

SC 2263)]. In this case, as the Courts below found there was

not even a single injury on the accused persons, while PW-2

sustained large number of injuries and was hospitalized for

more than a month. A plea of right of private defence cannot be

based on surmises and speculation. While considering whether

the right of private defence is available to an accused, it is not

relevant whether he may have a chance to inflict severe and

mortal injury on the aggressor. In order to find whether the right

of private defence is available to an accused, the entire incident

must be examined with care and viewed in its proper setting.

Section 97 deals with the subject matter of right of private

defence. The plea of right comprise the body or property (i) of

the person exercising the right; or (ii) of any other person; and

the right may be exercised in te case of any offence against the

body, and in the case of offences of theft , robbery, mischief or

criminal trespass, and attempts at such offences in relation to

property. Section 99 lays down the limits of the right of private

defence. Sections 96 and 98 give a right of private defence

against certain offences and acts. The right given under

Sections 96 and 98 and 100 to 106 is controlled by Section 99.

To claim a right of private defence extending to voluntary

causing death, the accused must show that there were

circumstances giving rise to reasonable grounds for

apprehending that either death or grievous hurt would be caused

to him. The burden is on the accused to show that he had a right

of private defence which extended to causing of death. Sections

100 and 101, IPC define the limit and extent of right of private

defence. 1976 Cri LJ 1736.

15.Sections 102 and 105, IPC deal with commencement

and continuance of the right of private defence of body and

property respectively. The right commence, as soon as a

reasonable apprehension of danger to the body arises from an

attempt, or threat, or commit the offence, although the offence

may not have been committed but not until that there is that

reasonable apprehension. The right lasts so long as the

reasonable apprehension of the danger to the body continues. In

Jai Dev V. State of Punjab (AIR 1963 SC 612), it was observed

that as soon as the cause for reasonable apprehension

disappears and the threat has either been destroyed or has put to

route, there can be no occasion to exercise the right of private

defence. 1963 (1) Cri LJ 495

16.In order to find whether right of private defence is

available or not, the injuries received by the accused, the

imminence of threat to his safety, the injuries caused by the

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accused and the circumstances whether the accused had time to

have recourse to public authorities are all relevant factors to be

considered. Thus, running to house, fetching a tabli and

assaulting the deceased are by no means a matter of course.

These acts bear stamp of a design to kill and take the case out

of the purview of private defence. Similar view was expressed

by this Court in Biran Singh v. State of Bihar, AIR 1975 SC 87

and recently in Sekar alias Raja Sekharan v. State represented

by Inspector of Police, Tamil Nadu (2002 (7) Supreme Court

124). 1975 Cri LJ 44 AIR 2002 SC 3667: 2002 AIR SCW

4315.”

24.Therefore, appellants could not establish either by evidence or by

surrounding circumstances that deceased himself was aggressor and

deceased Sukhana and injured Kalutia have received injuries in private

defence of accused appellants- Lulli and Sundaria.

25.It has been further argued by learned counsel for the appellants that

prosecution witnesses are closely related with informant. Therefore, those

are interested witnesses and their evidence cannot be relied upon.

26.PW-1 is wife of deceased Sukhana. PW-2 is scriber of FIR. Both

the witnesses have stated that they are eye-witnesses at a time of incident.

PW-1 was present on the spot and she has received injuries also which has

been proved by her medical examination report (Ex. Ka-VII). Spot map

(Ex. Ka VI) shows that house of PW-2 and its front gate is towards North

from the place of occurrence. Therefore, it is highly probable that he

might have been eye witness of occurrence. Accordingly, in absence of

any evidence in contrary his statement cannot be doubted. Witness PW-1

has received injury in the same occurrence, hence her presence on spot is

natural and trustworthy. On the point, it has been held by Hon’ble

Supreme Court in Surjit Singh @ Gurmit Singh Vs. State of Punjab 1993

SCC (Cri) 161.

“9.-To be fair to the learned counsel for the appellant, we may

mention that he ventured to argue that the evidence regarding the

marrying of the crime bullet shells with the pistol recovered was

not convincing, more so when the 303 pistol, the alleged crime

weapon, was recovered from Gurmit Singh, co-accused. It is

noteworthy that Gurmit Sing, co-accused, stands convicted

under the Arms Act for being in possession of that pistol. This

aspect of the case cannot be a substitute to the eyewitness

account or the plea taken by the appellant. Had the presence of

the two witnesses, that is, Jaswinder kaur PW 5 and Taljit Singh

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PW 2 at the scene of the occurrence been doubted, the recovery

of the weapon of offence and its connection with the empty

shells recovered at the spot would have assumed some

significance. When the two eyewitnesses are natural witnesses of

the crime, one being the young wife who would normally be in

the company of the husband at 10.30 p.m. on a summer night

and the other the nephew of the deceased who had suffered

grievous injuries in the occurrence and was thus a stamped

witness, not much importance is to be attached to this aspect of

the case. The venture is futile.”

27.On the same point, Hon’ble Supreme Court in case lwa Rizan and

another Vs. State of Chatisgarh (Supra) it has been held that:-

“6.- We shall first deal with the contention regarding interestedness

of the witnesses for furthering prosecution version. Relationship

is not a factor to affect credibility of a witness. It is more often

than not that a relation would not conceal actual culprit and

make allegations against an innocent person. Foundation has to

be laid if plea of false implication is made. In such cases, the

court has to adopt a careful approach and analyse evidence to

find out whether it is cogent and credible.”

28.The same verdict has been given by Hon’ble Supreme Court in the

case of Dharampal and others Vs. State of U.P. 2008 Cr.L.J. 1016. The

relevant part of the judgment is reproduced as under:-

“This takes us to the next question viz. whether the other

lacunae pointed out by the learned counsel for the appellants

are fatal to the prosecution case . We agree that the High Court

erred in relying on the evidence of PW4, who admittedly was

declared a hostile witness. Nevertheless, we fell that in the fact

of the other evidence of PW2 Dannu, PW3 Om Prakash who

were corroborated in all material respects by PW7 Dr. R.P.

Goyal and by PW9, Dr. U. Kanchan, the evidence of PW4, even

if discharged, is inconsequential. The evidentiary value of a

dying declaration and the principles underlying the imprtance

of a dying declaration have already been discussed herein

earlier. Simply because PW2 and PW3, in their cross-

examination, have been shown to be related to the deceased

does not mean that their testimony has to be rejected. It is well

settled that evidence of a witness is not to be rejected merely

because he happens to be a relative of the deceased. In State of

Himanchal Pradesh V. Mast Ram [(2004) 8 SCC 660], this

Court observed as under :-

“………...The law on the point is well settled that the testimony

of the relative witnesses cannot be disbelieved on the ground of

relationship. The only main requirement is to examine their

testimony with caution. Their testimony was thrown out at the

threshold on the ground of animosity and relationship. This is

not a requirement of law…………..”

14

In this view of the matter and this being the well-settled law, it

is difficult for us to discard the evidence of the witnesses, as

discussed hereinabove, only on the ground that they were

related to the deceased, in the absence of any infirmity in the

said evidence.”

In view of the above, it cannot be said that evidence of witness PW-1 and

PW-2 is not believable only on the ground of their relation with deceased.

Particularly, when their presence on spot is highly probable, there is

consistency in their statement on substantial point of the case and their

statements are supported with medical evidence and nothing is on record

to prove contrary.

29.Learned counsel for the appellants submitted that there is no

consistency in statement of witnesses. He has pointed out that witness

PW-1 has stated in her evidence at page-2 that first lathi was blown on the

head of Sukhana by Lulli, second lathi was blown by Dhaukal, then her

husband fell down. On the other hand, witness PW-1 has stated that her

husband was fallen down just after first lathi blow. He further said that the

above discrepancy destroys the FIR version.

30.The record shows that statement of PW-1 at page-2 is corroborated

with medical evidence (Anti mortem injury in P.M.R.). The statement of

witness should be considered as a whole. It must be kept in mind that the

witness PW-1 is rustic and illiterate lady. Her statement is being recorded

after a period of approximately eleven and half years from the date of

incident. In such a situation, some contradictions are bound to occur as

has been held by Co-ordinate Bench of this Court in the case of State of

U.P. vs. Shane Haidar & others 2015 (1) J.Cr.C 775 that:-

“34. After an overall assessment of all the witnesses, produced

by prosecution, we are of thhe firm view that all the witnesses

are throughout cogent and consistent while deposing in court.

All the factual witnesses are rustic villagers, who are bound to

get confused during their cross-examination. PW-2 is an injured

witnesses, which fact is evident from his injury report, duly

proved by the Doctor. Apart from some minor contradictions

nothing has been elicited in their statements to cause a shadow

of doubt on their credibility.”

15

31.On the same point, another Bench of this Court in case of Tufail

Ansari vs. State of U.P. 2015 (2) J.Cr.C 1086 has held that:-

“28. The contention that PW-3 Smt. Babli Jaiswal has admitted in

her cross examination that the police had come to their house at

about 8.00 p.m., and that she was unsure when she had left for

the police station and that PW-1 Ramesh Kumar Jaiswal,

informant had stated that he had reached the police station at

about 7.00 p.m. or that the appellant Tufail was arrested at

about 9.00 p.m. Even if there were some conflicts in the

timings, it only suggests that the rural witnesses were a little

confused about the timings of the incident or the time when the

police had taken the appellant Tufail at about 2.00 a.m. to get

the body recovered. Even if there are certain minor

discrepancies in the timings and conduct of the investigation, as

the basic structure of the prosecution evidence is intact in this

case, on the basis of the factum of discovery of the dead body

in the middle of the night on the pointing out of the appellant,

which was admissible under section 27 of the Evidence Act and

the last seen evidence against the appellant by PW-2 Suresh is

also intact, little reason exist for not relying on these crucial

circumstances which are sufficient to establish the complicity of

the appellant in this offence.”

32.In para 9 of the case Leela Ram vs. State of Haryana and Others,

2000 SCC (Cri) 222:- Hon'ble Supreme Court has held that:-

"9.- Be it noted that the High Court is within its jurisdiction being

the first appellate court to reappraise the evidence, but the

discrepancies found in the ocular account of two witnesses

unless they are so vital, cannot affect the credibility of the

evidence of the witnesses. There are bound to be some

discrepancies between the narrations of different witnesses when

they speak on details, and unless the contradictions are of a

material dimension, the same should not be used to jettison the

evidence in its entirety. Incidentally, corroboration of evidence

with mathematical niceties cannot be expected in criminal cases.

Minor embellishment, there may be, but variations by reason

therefor should not render the evidence of eyewitnesses

unbelievable. Trivial discrepancies ought not to obliterate an

otherwise acceptable evidence. In this context, reference may be

made to the decision of this Court in State of U.P. v. M.K.

Anthony ; AIR 1985 SC 48. In para 10 of the Report, this Court

observed: (SCC pp. 514-15)

"10. While appreciating the evidence of a witness, the approach

must be whether the evidence of the witness read as a whole

appears to have a ring of truth. Once that impression is formed,

it is undoubtedly necessary for the court to scrutinise the

evidence more particularly keeping in view the deficiencies,

drawbacks and infirmities pointed out in the evidence as a whole

and evaluate them to find out whether it is against the general

tenor of the evidence given by the witness and whether the

earlier evaluation of the evidence is shaken as to render it

unworthy of belief. Minor discrepancies on trivial matters not

16

touching the core of the case, hypertechnical approach by taking

sentences torn out of context here or there from the evidence,

attaching importance to some technical error committed by the

investigating officer not going to the root of the matter would

not ordinarily permit rejection of the evidence as a whole. If the

court before whom the witness gives evidence had the

opportunity to form the opinion about the general tenor of

evidence given by the witness, the appellate court which had not

this benefit will have to attach due weight to the appreciation of

evidence by the trial court and unless there are reasons weighty

and formidable it would not be proper to reject the evidence on

the ground of minor variations or infirmities in the matter of

trivial details. Even honest and truthful witnesses may differ in

some details unrelated to the main incident because power of

observation, retention and reproduction differ with individuals."

33.In case Shivappa and Others vs. State of Karnataka, 2008

CrLJ 2992, Hon'ble Supreme Court has held in para 26 that:-

"…..….Minor discrepancies or some improvements also in our

opinion, would not justify rejection of the statements of

eyewitnesses if they are otherwise reliable. Some discrepancies

are bound to occur because of the sociological background of

the witnesses as also the time gap between the date of

occurrence ad the date on which they give their depositions in

Court."

34.Perusal of evidence as a whole, shows that there is no such

discrepancies found in the evidence of prosecution witness which touches

the core of prosecution story. There may be discrepancy minor/trifle in

nature, but in our considered opinion they are not able to destroy

prosecution story.

35.So far as, the gravity of offense is concerned, it has to be

determined that whether the offence committed by accused persons comes

under the definition of culpable homicide not amounting to murder

(Section-299 I.P.C.) or it was murdered (Section 300 I.P.C.).

36.On the above point, learned A.G.A. has submitted case laws of

Virsa Singh vs. State of Punjab AIR 1958 (SC) 465 and State of Andhra

Pradesh vs. Rayavarapu Punnaya & others (1976) SCC (4) 382.

37.In the light of verdict given by Hon’ble Apex Court, the fact and

evidence on the record is needed to be scrutinized according to the

essential ingredients of Section 299 and Section 300 of I.P.C. The

question to be considered at the first stage would be:-

17

whether the accused persons/ appellants have done an act by doing which

he has been caused the death of Sukhana.

38.Witness PW-1 (eye-witness) has stated in his evidence that when

they reached near their old house, Sundaria started abuse them. Dhaukal

and Sundaria given threat and Dhaukal exhorted to kill her. Hearing the

voice, Lulli blown Lathi on the head of her husband. Then, the second

lathi blow was given by Dhaukal. By the injuries of above attack, Sukhna

fell down. She lay down over the body of her husband to cover him from

further attack, then Kaluwa given lathi blow which hit the head of Kalutia,

then after that again Dhaukal gave another lathi blow to PW-1 which hit

her leg.

39.Witness PW-2 have stated in his evidence at page-2 that Lulli has

assaulted to Sukhna on his head by his lathi. Dhaukal also assaulted him

by his lathi. Although, he has further stated that Kaluwa has given lathi

blow to Sukhna then after that Dhaukal again given lathi blow to hit

Kalutia. Here is a little discrepancy in the statement of PW-2 with the

statement of PW-1, which is explained itself by the statement of PW-2 at

page 3 of his evidence. He has deposed that at the time of occurrence, he

was in his house and was hearing the abusement of accused persons and

Kalutia. Further he has mentioned in his evidence at page-3 that when

deceased Sukhana received first lathi blow, his wife was standing at the

door of house. When PW-2 heard the noise, he ran towards the place of

occurrence. He has further stated that wife of deceased reached first then

after that he (PW-2) reached on spot. When he reached, he saw that wife

of deceased was covering in lying position over the body of her husband.

The part of statement shows that, in fact PW-2 was not present on the spot

when Sukhana fell down after lathi blow. In fact he was watching the

occurrence from his house, which is in just south from place of

occurrence (as shown in spot map, Ex. Ka-VI). Hence, he cannot describe

the exact actions of accused persons. Therefore, the above discrepancy is

not fatal for prosecution story in the light of evidence of injured witness

18

PW-1. It is to be kept in mind that evidence of PW-2 was also recorded on

23.02.1999 i.e. after almost eleven and half years from the date of

occurrence.

40.The statement of PW-1 regarding assault on Sukhana is

corroborated by anti-mortem injury (as mentioned in post-mortem report

Ex. Ka-VIII). There were two injuries, first of lacerated wound on the top

of the skull with fracture of occipital bone, 30 c.m. above the left ear. The

parietal bone was also found fractured. Second injury was of aberrated

contusion at right parietal region over 9 c.m. above the right ear with

fracture of right parietal bone. The cause of death has been shown coma

due to anti-mortem injuries.

41.It is to be noted that genuineness of post-mortem report has been

admitted by the counsel for appellants.

42.No other evidence is found on record which could show that

deceased has not received above the fatal injuries or injuries by any other

mode than facts and evidence of the case. Therefore, it is proved that

accused persons Dhaukal, Kaluwa and Lulli have done the act of assault

over the vital part of Sukhana’s body which caused his death.

Now, it is to be considered that:

whether the act of accused persons amounts to culpable homicide not

amounting to murder as defined Section 299 I.P.C.

43.The provisions of Section 299 is reproduced as under:-

“299. Culpable homicide.—Whoever causes death by doing an

act with the intention of causing death, or with the intention of

causing such bodily injury as is likely to cause death, or with

the knowledge that he is likely by such act to cause death,

commits the offence of culpable homicide.

Illustrations

(a) A lays sticks and turf over a pit, with the intention of thereby

causing death, or with the knowledge that death is likely to be

thereby caused. Z believing the ground to be firm, treads on it,

falls in and is killed. A has committed the offence of culpable

homicide.

19

(b) A knows Z to be behind a bush. B does not know it A,

intending to cause, or knowing it to be likely to cause Z’s death,

induces B to fire at the bush. B fires and kills Z. Here B may be

guilty of no offence; but A has committed the offence of

culpable homicide.

(c) A, by shooting at a fowl with intent to kill and steal it, kills

B who is behind a bush; A not knowing that he was there. Here,

although A was doing an unlawful act, he was not guilty of

culpable homicide, as he did not intend to kill B, or to cause

death by doing an act that he knew was likely to cause death.

Explanation 1.—A person who causes bodily injury to another

who is labouring under a disorder, disease or bodily infirmity,

and thereby accelerates the death of that other, shall be deemed

to have caused his death.

Explanation 2.—Where death is caused by bodily injury, the

person who causes such bodily injury shall be deemed to have

caused the death, although by resorting to proper remedies and

skillful treatment the death might have been prevented.

Explanation 3.—The causing of the death of child in the

mother’s womb is not homicide. But it may amount to culpable

homicide to cause the death of a living child, if any part of that

child has been brought forth, though the child may not have

breathed or been completely born.”

44.The evidence on record indicates that accused persons are near

relatives of deceased. In First Information Report, it has been mentioned

that when they reached near their old house, Sundaria and Dhaukal started

abusing and Dhaukal exhorted to attack. Hearing the voice, Lulli and

Kaluwa came forward to hit her. Seeing their activities, the husband of

informant moved forward to save his wife. Consequently when Lulli and

Dhaukal blown their lathis that hit Sukhana. Witness PW-1 has narrated

the same fact at page-2 of his evidence. Witness PW-2 has also stated in

his evidence that he heard the abusing voices of PW-1 and Sundaria.

Nowhere it has been shown that there was any quarrel between deceased

and accused persons. Witness PW-1 has also contended in his evidence at

page-4 that before the occurrence on that date, there was no previous

enmity between Kalutia and Sundaria. The above evidence indicates that

appellants had no intention to kill Sukhana. But, they were certainly

intending to cause such bodily injury as was likely to cause death. It

20

transpires that Sukhana received the fatal injuries by chance as he entered

between his wife and accused persons.

45.The above conclusion can be drawn by the statement of PW-1 at

page-3 that when she lie down over the body of her injured husband, she

received two lathi blows, one by Kaluwa and another by Dhaukal. The

injury of Kalutia has been shown in his medical examination report (Ex.

Ka-VII) as one contusion on 3 cm × 2 cm on the right side of her face and

one contusion 8 cm × 3 cm on her left thigh, which were not fatal but

simple in nature.

46.The age of deceased has been shown in post mortem report as 35

years with average built body. He has received two lathi blows on

different part of his head which caused his death. Witness DW-1 has

mentioned in evidence at page-5 that Sukhana had received the injury by

the iron part of lathi. So, the attack by iron part of lathi on vital part of

body with proper force is sufficient to draw inference that accused

persons Dhaukal and Lulli were having the knowledge that injury caused

by them will cause grievous injury on vital part of victim and may likely

to cause death of Sukhana. Therefore, the act of accused Lulli and

Dhaukal comes under definition of offence defined under Section 299 of

I.P.C. The ingredients of Section 299 of I.P.C. has been proved.

It can be termed that culpable homicide is “Genus” and murder as

“Species”. Accordingly, all the murders are culpable homicide, but every

culpable homicide is not murder.

Now, it has to be seen that:

whether the such act of accused appellants comes under the perview of

section 300 I.P.C. or not.

The provisions of Section 300 I.P.C. is reproduced as under:-

“300. Murder.—Except in the cases hereinafter excepted,

culpable homicide is murder, if the act by which the death is

caused is done with the intention of causing death, or—

(Secondly)—If it is done with the intention of causing such

bodily injury as the offender knows to be likely to cause the

death of the person to whom the harm is caused, or—

21

(Thirdly)—If it is done with the intention of causing bodily

injury to any person and the bodily injury intended to be in-

flicted is sufficient in the ordinary course of nature to cause

death, or—

(Fourthly)—If the person committing the act knows that it is so

imminently dangerous that it must, in all probability, cause

death or such bodily injury as is likely to cause death, and

commits such act without any excuse for incurring the risk of

causing death or such injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in

consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a

blow is likely to cause his death, strikes him with the intention

of causing bodily injury. Z dies in consequence of the blow. A is

guilty of murder, although the blow might not have been suffi-

cient in the ordinary course of nature to cause the death of a

person in a sound state of health. But if A, not knowing that Z is

labouring under any disease, gives him such a blow as would

not in the ordinary course of nature kill a person in a sound

state of health, here A, although he may intend to cause bodily

injury, is not guilty of murder, if he did not intend to cause

death, or such bodily injury as in the ordinary course of nature

would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient

to cause the death of a man in the ordinary course of nature. Z

dies in consequence. Here, A is guilty of murder, although he

may not have intended to cause Z's death.

(d) A without any excuse fires a loaded cannon into a crowd of

persons and kills one of them. A is guilty of murder, although

he may not have had a premeditated design to kill any particular

individual.

Exception 1.—When culpable homicide is not murder.—

Culpable homicide is not murder if the offender, whilst

deprived of the power of self-control by grave and sudden

provocation, causes the death of the person who gave the

provocation or causes the death of any other person by mistake

or accident.

The above exception is subject to the following provisos:—

(First) —That the provocation is not sought or voluntarily pro-

voked by the offender as an excuse for killing or doing harm to

any person.

(Secondly) —That the provocation is not given by anything done

in obedience to the law, or by a public servant in the lawful exer-

cise of the powers of such public servant.

(Thirdly) —That the provocation is not given by anything done

in the lawful exercise of the right of private defence.

22

Explanation.—Whether the provocation was grave and sudden

enough to prevent the offence from amounting to murder is a

question of fact.

Illustrations

(a) A, under the influence of passion excited by a provocation

given by Z, intentionally kills. Y, Z's child. This is murder, in as

much as the provocation was not given by the child, and the death

of the child was not caused by accident or misfortune in doing an

act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on this provo-

cation, fires a pistol at Y, neither intending nor knowing himself

to be likely to kill Z, who is near him, but out of sight. A kills Z.

Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden

and violent passion by the arrest, and kills Z. This is murder, in as

much as the provocation was given by a thing done by a public

servant in the exercise of his powers.

(d) A appears as witness before Z, a Magistrate, Z says that he

does not believe a word of A's deposition, and that A has per-

jured himself. A is moved to sudden passion by these words,

and kills Z. This is murder.

(e) A attempts to pull Z's nose, Z, in the exercise of the right of

private defence, lays hold of A to prevent him from doing so. A

is moved to sudden and violent passion in consequence, and

kills Z. This is murder, in as much as the provocation was given

by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage.

A, a bystander, intending to take advantage of B's rage, and to

cause him to kill Z, puts a knife into B's hand for that purpose.

B kills Z with the knife. Here B may have committed only

culpable homicide, but A is guilty of murder.

Exception 2.—Culpable homicide is not murder if the offender,

in the exercise in good faith of the right of private defence of

person or property, exceeds the power given to him by law and

causes the death of the person against whom he is exercising

such right of defence without premeditation, and without any

intention of doing more harm than is necessary for the purpose

of such defence. Illustration Z attempts to horsewhip A, not in

such a manner as to cause grievous hurt to A. A draws out a

pistol. Z persists in the assault. A believing in good faith that he

can by no other means prevent himself from being

horsewhipped, shoots Z dead. A has not committed murder, but

only culpable homicide.

Exception 3.—Culpable homicide is not murder if the offender,

being a public servant or aiding a public servant acting for the

advancement of public justice, exceeds the powers given to him

by law, and causes death by doing an act which he, in good

23

faith, believes to be lawful and necessary for the due discharge

of his duty as such public servant and without ill-will towards

the person whose death is caused.

Exception 4.—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

having taken undue advantage or acted in a cruel or unusual

manner. Explanation.—It is immaterial in such cases which

party offers the provocation or commits the first assault.

Exception 5.—Culpable homicide is not murder when the

person whose death is caused, being above the age of eighteen

years, suffers death or takes the risk of death with his own

consent.

Illustration

A, by instigation, voluntarily causes, Z, a person under eighteen

years of age to commit suicide. Here, on account of Z's youth,

he was incapable of giving consent to his own death; A has

therefore abetted murder.”

47.Applying the provisions of Section 300 I.P.C. with fact and

evidence of the case, it transpires that although it was in the knowledge of

accused-appellants Dhaukal and Lulli that the injury which is being

caused by them to Sukhana on his vital part i.e. head, is likely to cause

death, but considering the close relation of deceased with accused persons

and also that there was no previous enmity and that removal of bundle of

JHAKHAR is a trifle matter, it appears that it was not the intention of

accused persons to cause injury which is sufficient in ordinary course of

nature to cause death or which must in all probability sufficient to cause

death. The distinction on the point of knowledge is very fine. In the above

circumstances it can be inferred by the degree of probability of death

resulted by injury. In other words, it was in the knowledge of accused

persons Lulli and Dhaukal that by their assault death of victim Sukhana

may possible, but not most probable. Normally, the village persons

carrying lathi in their hand with iron covering or ring on its top. Witness

DW-1 has stated in his evidence at page-5 that deceased had received

injury from the iron part of lathis. The iron part, accelerates the force of

attack and is able to give severe injury that is why the bones underneath of

injury found fractured. The facts mentioned in F.I.R. and evidence led by

PW-1 clearly indicates that accused persons were not intending to attack

24

on Sukhana rather they were intending to attack on his wife. Angry

accused attacked on Kalutia by their lathis, but as a matter of chance

deceased arrived between Kalutia and accused persons and received

injury by the iron ring part of the lathi which became fatal for him. The

evidence on record also indicates that neither there was sudden fight in

between Sukhana and accused persons nor there was any occasion of

sudden provocation, any circumstance was also not existing for recourse

of private defence by accused persons.

48.During the trial, an opportunity was given to accused persons to

explain the evidence and incriminating circumstances against them under

Section 313 Cr.P.C. in which they have mentioned that the facts and

evidence are “not true”. On the question that why they are facing trial,

they have submitted that “due to enmity”, but what was the previous

enmity with deceased or informant they have not explained, rather the

evidence on record indicates the absence of any previous enmity between

the parties. Accused appellants Dhaukal and Kaluwa has further stated in

their statement under Section 313 that at the time of occurrence, he

(Dhaukal) had gone to his field for ploughing the field and Kaluwa was

present at the Anusuiya Ashram. The burden of proof was on accused

appellant to prove Alibi, but they were failed to establish this fact. Even

witness Chunni Lal who had been projected by defence as an eye witness

has not stated in his evidence that at a time of occurrence, Dhaukal was

in his filed and Kaluwa was at Anusuiya Ashram, rather he has stated that

Dhaukal and also Kaluwa were ½ mile away from the place of

occurrence. No where he has stated specially that Dhaukal was present at

his field and Kaluwa at Anusuiya Ashram. Therefore, the above stand of

Alibi is not supported by any evidence and is not proved.

49.So far as evidence of DW-1 is concerned, his present on the spot

has neither been shown in F.I.R. nor in evidence of any witness. He has

stated in his evidence that when he reached on spot then, Sundaria and

Kalutia were making a noise and Sukhana was at the gate of his (DW-1)

25

house which is against the spot map (Ex. Ka-6) and evidence of PW-1

and PW-2. Witness DW-1 has shown himself as close relative and

neighbour of Sukhana and accused persons, but even then he did not try

to interfere to settle the quarrel of Kalutia and Sundaria. His statement at

pages-4 and 5 seems against the human behaviour, at page-5 he has

stated that his father and Sukhana’s father were real brother. On the

other hand, as according to his version at page-4, he went to call

Dhaukal and Kaluwa, as they were not present on the spot. He did not

try to take care of injured Sukhana and he also not tried to arrange for

any medical aid to injured persons. This is against human behaviour of

close relative. Therefore, the statement given by DW-1 is not credible

which has rightly been ignored by learned Sessions Judge.

50.In conclusion, it has been proved that it was in the knowledge of

accused Dhaukal and Lulli while blowing their lathis which was covered

by iron ring on its top on the head of Sukhana. It is likely to cause death

of victim. Like a prudent man it was well in their knowledge, that head

of a person is vital part. But, facts and circumstances show that the

degree of such probability of causing death, which was in the knowledge

of accused persons, was not much severe as will definitely cause death

of Sukhana. There was no previous enmity. They were in close relation

with fiduciary capacity. The subject matter of dispute was trifle in

nature. Number of lathi blows were single in number (given by Dhaukal

and Lulli separately). There was no brutal attack. Genesis of occurrence

was mere sudden quarrel by abusement which took place in between

Sundaria and Kalutia. No active/aggressive role of Sukhana has been

shown. Victims themselves had gone near the residence of accused

persons. No common intention proved. Weapons used are common in

nature which normally carried by villagers. Therefore, all the above

circumstances indicate that the offence committed by accused Dhaukal

and Lulli was without pre-meditation of mind and accused Dhaukal and

Lulli have not taken any undue advantage.

26

Hence, it can be concluded that the act of accused persons Dhaukal and

Lulli comes under the provisions of exception-4 of Section 300 I.P.C.

and is covered by offence defined under Section 299 of I.P.C.

51.It has been proved by the prosecution witnesses PW-1 and PW-2

that accused Kaluwa has given voluntary hurt to Kalutia which was

simple in nature. The same is corroborated by injury report of Kalutia

(Ex. Ka-VII).

52.Therefore, taking into consideration, the facts and circumstances

of the case, argument advanced by both the parties and considering the

citations submitted by both the sides, we are, therefore, of the

considered view that the appellants Lulli and Dhaukal have committed

the offence pubishable under second part of Section 304 I.P.C. It has

been proved that appellant Kaluwa committed offence pubishable under

Section 323 I.P.C. Further, Sundaria and Kaluwa are liable to be

acquitted from the offence punishable under Section 302 read with

Section 34 of I.P.C. As prosecution has failed to prove ingredients of the

offences against them. Accused Lulli and Sundaria is liable to be

acquitted under Section 323 read with Section 34 I.P.C. Dhaukal has

died during the pendency of appeal and appeal has been abated against

him, therefore, in the light of above discussion, considering the time gap

of occurrence accused Lulli is liable for the rigorous imprisonment for

the terms of 5 years and Rs.10,000/- as fine under second part of Section

304 I.P.C. In default of payment of fine accused Lulli shall under go

rigorous imprisonment further three months. In case the fine is realized

then in that case Rs.8,000/- out of Rs.10,000/- shall be paid to

complainant Kalutia @ Sentarva as compensation. Accused Kaluwa is

liable for the rigorous imprisonment for the terms of three months under

Section 323 of I.P.C..

Accordingly, the conviction and sentence given by learned Sessions

Judge is modified. The period of previous detention of accused persons

in jail will be set off. The appellants Lulli and Kaluwa will surrender

27

before Chief Judicial Magistrate concerned forthwith, failing which

Chief Judicial Magistrate, concerned will issue non-bailable warrant

against them. In compliance, if accused Lulli and Kaluwa appear or are

brought before the court of Chief Judicial Magistrate, concerned they

shall be sent to jail by warrant for their sentences.

53.Let the copy of the judgment be sent to court concerned forthwith

for compliance.

54.Appeal allowed partly.

(Narendra Kumar Johari, J.) (Bachchoo Lal, J.)

Order Date :- 17.10.2019

SK Goswami