1

Reserved

A.F.R.

CRIMINAL APPEAL NO. 2967 OF 1986

Jit Singh and another Appellants

Vs.

State of U.P. …................. Respondent

Hon'ble Sheo Kumar Singh, J.

Hon'ble Vinod Prasad, J.

(Delivered by Hon'ble Vinod Prasad, J.)

Appellants Jit Singh (A-1) son of Sukua Gaud and Dayali (A-2)

son of Hem Raj, both r/o village Bagharu, P.S. Duddhi, District

Mirzapur, are aggrieved by the impugned judgment and order dated

21.10.1986 passed by Sessions Judge, Mirzapur recorded in S.T. No.

225 of 1985, State of U.P. Vs. Jit Singh and another, convicting both

the appellants under section 302/34 I.P.C. and sentencing them to

serve life imprisonment therefor and therefore have filed this

appeal.

Unfolded prosecution allegations, as are discernible from the

oral FIR Ext. Ka-1 and testified during the trial by the prosecution

fact witnesses, informant Ram Ratan P.W.2, Dasrath P.W.2 and

Bansidhar P.W.3, are that motivated by a lost court case with Dev

Swaroop (deceased /father of informant RamRatan) that both the

appellants, on 21.8.1985 at 9 A.M. assaulted Dev Swaroop

(deceased) near the field of Ram Baran with spade and club(lathi)

and caused him injuries, mostly on his upper and lower limbs. Dev

Swaroop (injured/deceased) squatted on the ground sustaining

inflicted injuries but even then he was belaboured by club. Injured

shrieks attracted informant Ram Ratan P.W.1, Dasrath P.W.2,

Bansidhar P.W.3 and other co-villagers at the assault scene, who

had witnessed the belaboring of Dev Swaroop. Intervention by the

witnesses and their attempt to apprehend the miscreants, forced

both the appellants to leave the incident spot intimidating and

threatening the witnesses. In an injured condition, Dev Swaroop,

Neutral Citation No. - 2014:AHC:14177-DB

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when was being carried to the hospital, midway, near Duddhi

market, lost the battle of his life and died.

RamRatan, informant/PW1, son of the deceased, immediately

rushed to the police station Duddhi at a distance of 7 KMs, along

with corpse of the deceased, where he orally dictated FIR to HM

Shyam Bihari Singh P.W. 6, who slated it by registering the crime at

11.45 A.M. and preparing chik FIR Ext. Ka-1 and GD entry Ext. Ka-3.

Special report regarding the crime was dispatched the same day at

12.45 P.M. through constables Lallan Rai and Lallan Bharti vide

Rapat No. 17 Ext. Ka-4.

SSI Shivdhari Singh, PW7, in whose presence the crime was

registered set afoot the investigation, copied the chik FIR and GD

entry and dispatched SI Jagdish Singh and constables Ram Babu

and Dharam Nath Singh to apprehend the murderers. PW7 himself

performed inquest on the dead body and inked relevant papers like

inquest memo, chalan lash, photolash, letters to RI and to CMO etc.

which all documents are Exts. Ka-5 to Ka-8. Sealing the dead body

in a cloth piece the same was dispatched to the mortuary through

constables Chandra Bhushan Tiwari and Ram Lochan Chauhan for

postmortem examination along with the prepared papers. Near the

corpse of the deceased an iron kadua (a jug with a spout) was also

recovered, which was sealed and recovery memo Ext. Ka-9 thereof

was prepared. Thereafter informant and inquest witnesses were

interrogated and their statements were recorded. Subsequent

thereto, I.O. came to the incident spot in village Bagharu where he

recorded the statements of witnesses Dasrath and Bansidhar and

others. Spot inspection was conducted and site plan along with

notings was prepared, which is Ext. Ka-10. Blood stained and plain

earth were collected from the spot and recovery memo Ext. Ka-11

thereto was prepared and thereafter witnesses Ram Gyan was

interrogated. Returning to the police station at 8.30 A.M. the

following day, I.O./PW7 deposited recovered blood stained and

plain earth vide GD Ext. Ka-12. Autopsy report was copied by the

I.O., who thereafter penned down statements of constables Ram

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Lochan Chauhan P.W. 4 and Chandra Bhushan Tiwari and also

forwarded a report to send blood stained earth and the clothes for

chemical examination to the serologist. On 30.8.1985, both the

accused Jit Singh and Dayali were arrested from down town

Mirzapur and were booked in penitentiary at 7.05 P.M. vide Rapat

No. 27 Ext. Ka-13. Concluding investigation on 31.8.1985, I.O.

charge sheeted both the accused vide Ext. Ka-14.

Dr. P.N. Singh P.W. 5 had performed autopsy on the cadaver of

the deceased on 21.8.1985 at 1.20 P.M. Deceased was 85 years of

age having a thin physic, rigor mortis and postmortem lividity were

in the process of setting in. Following nineteen ante mortem injuries

on the cadaver of the deceased were detected by the doctor:-

“1. Contusion 2cm x 1cm over the left side chest.

2. Contusion on 1.5cm x 1cm on right side forehead.

3. Incised wound 5cm x 2cm x 2.5cm on the back of left

forearm.

4. Incised wound 3cm x 2cm skin deep on the right fore

arm.

5. Incised wound 7cm x 5cm over the outer side of right

forearm. Both the bones of this fore arm were found

fractured.

6. Incised wound 3-1/2cm x 1-1/2cm skin deep over the

back side of right forearm.

7. Lacerated wound 2cm x 1cm skin deep on the back of

right forearm.

8. Lacerated wound 1.5cm x 1cm skin deep on the back of

right hand.

9. Incised wound 2-1/2cm x 1cm bone deep on the middle

and proximal phalanx.

10. Contusion 8cm x 2cm on the outer surface of right

thigh.

11. Contusion 11cm x 2cm on the back of right thigh.

12. Contusion 6.54cm x 2.5cm on the right side buttock.

13. Incised wound 9cm x 2.5cm x 3cm on the medial

surface of right leg.

14. Incised wound 6cm x 1.54cm skin deep on the medial

aspect of right leg just below injury no. 13.

15. Lacerated wound 6cm x 4cm bone deep on the back

side of left forearm. The bone under this injury was

fractured.

16. Incised wound 10cm x 6cm muscle deep on the back of

medial aspect of right forearm.

17. Lacerated wound 6cm x 4cm bone deep on the right

fore arm just at the left wrist joint. Both the bones

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underneath were fractured.

18. Lacerated wound 2cm x 1cm skin deep over the left

side of abdomen.

19. Incised wound 9cm x 3cm muscle deep on the outer

aspect of the left leg 5cm below knee joint.”

On internal examination, no abnormality was detected in any

of the internal organs but fractures of Rt. Ulna, Rt.lower middle

phalanx and shaft of humorous and wrist was detected in injuries

numbers 5,9,15, &17. Small and large intestines were empty. In the

estimation of the doctor, deceased had died due to shock and

hemorrhage produced by sustained injuries.

Submission of charge sheet resulted in registration of criminal

case against both the accused appellants before the committal court

of C.J.M., Mirzapur, on 23.9.1985 as Case No. 1790 of 1985, State

Vs. Jit Singh and another, under section 302 I.P.C., which case, in

due course, was committed to the Sessions Court for trial, were on

8.10.1985, it was registered as S.T. No. 225 of 1985, State Vs. Jit

Singh and another, in the court of Sessions Judge, Mirzapur.

Learned trial Judge charged both the accused with offence u/s

302 I.P.C. on 2.11.1985 and since both of them abjured that charge

and denied their guilt that to establish the same and prove their

complicity in the crime that the learned trial Judge resorted to

Sessions Trial procedure to prosecute both the accused appellants.

During the trial, prosecution placed reliance on testimonies of

in all seven witnesses including those of informant Ram Ratan P.W.

1, Dasrath P.W. 2 and Bansidhar P.W. 3 as fact witnesses. Constable

Ram Lochan Chauhan P.W.4, Dr. P.N. Singh P.W. 5, Head Constable

Shyam Bihari Singh P.W. 6 and SSI Shivdhari Singh/I.O. P.W. 7 were

the formal witnesses.

In their examinations by the court u/s 313 Cr.P.C., both the

accused abjured all the incriminating prosecution evidences

occurring against them in the testimonies of the witnesses and

pleaded a common defence of false implication with additional plea

that the deceased was murdered some times in the night as he had

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lots of other enemies and since the murderers could not be

identified, therefore, because of already concluded court

proceedings that the appellants have been nailed in by the

informant and other witnesses in the present crime, albeit they both

had nothing to do with it.

Recapitulating the final outcome of the trial, since learned

Sessions Judge found the guilt of the accused established beyond all

shadow of reasonable doubt, that he convicted the appellants under

section 302/34 I.P.C. and sentenced them to life imprisonment vide

impugned judgment and order, and consequently challenging said

decision that this appeal has arisen.

In the backdrop of aforesaid factual matrix, when this appeal,

after being pending in the dockets of this Court for nearly about

twenty seven(27) years came up for hearing, nobody appeared to

argue the appeal for the appellants although the names of Sri B.B.

Paul and Sri P.N. Tripathi advocates were printed in the cause list.

Since appeal could not have been kept pending into the racks of

criminal section for an unlimited period therefore, for its final

disposal, we applied the law laid down by the Apex Court in Bani

Singh and others Vs. State of U.P.: AIR 1996 Supreme

Court 2639 and appointed Sri Brijesh Sahai, learned advocate as

an amicus curiae to assist the court in disposal of this appeal, as in

our opinion, he has a good experience of arguing criminal appeals

and would have rendered valuable assistance to us. We therefore

have heard him for the appellants in support of the appeal and Sri

Sangam Lal Kesharwani, learned AGA in opposition.

Assailing the impugned judgment learned amicus curiae

harangued numerous contentions viz: none of the fact witnesses

were present at the spot during the incident nor had witnessed the

crime, which in fact had occurred in the darkness when deceased

was all alone and therefore all the fact witnesses have deposed a

mendacious tutored story without any element of truth in it. No

motive ever existed for the appellants to annihilate the deceased,

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investigation into the crime is inept and dishonest and I.O./PW7 had

deliberately tried to implicate the appellants as perpetrators of the

crime. Witnesses are unworthy of credence and even the learned

trial judge has doubted presence of P.W.1 and P.W.3 during the

incident and for this contention Sri Sahai has brought to our notice

internal page 24 of the impugned judgment. Next, it was argued

that the oral dying declaration of the deceased made to his son

informant PW1 is opaque, afterthought and unbelievable and

therefore, cannot be relied upon to sustain appellant’s conviction.

Dasrath P.W.2 is the cousin of the first informant and is a chance

and interested witness and his testimony being unreliable and

unconvincing, on vetting and summating of it, is liable to be

discarded. Site plan does not show presence of any of the witness

ostensibly for the reason that none of them were present during

happening of the incident and because of this reason no

independent witness has supported the prosecution case and lend

credence to it. On the testimonies of only interested and partisan

witnesses conviction of the appellants should not be affirmed

strenuously urged learned amicus curie. Unnatural conduct of

related witnesses of remaining silent spectators to the assault made

on the deceased being very surreal and weird does not satiate

inquisitiveness of judicial scrutiny of their being present at the spot.

Elaborating the submission it was contended that had ten witnesses

being present at the time of the incident, there was no difficulty for

them to apprehend the culprits armed only with two agricultural

implements, a spade and a club, and they would not have allowed

them to escape scot free without hindrance. Concluding his

submissions lastly it was submitted by learned amicus curie that

looking to the autopsy report and the testimony of the doctor, part

of the body selected to inflict injuries, nature of injuries and

surrounding circumstances guilt of the appellants do not cross

boundary of section 304 (II) I.P.C. and therefore conviction u/s

302/34 I.P.C. cannot be sustained. Prosecution had failed to get it

elicited from the doctor that any of the injury was sufficient in

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ordinary course of nature to cause death of the deceased and hence

crime committed by the appellants should be mollified and they

should be convicted only u/s 304 (II) I.P.C. to culpable homicide not

amounting to murder, if the appellants are not conferred with clear

benefit of doubt and awarded clean acquittal, and since they have

already served more than seven years behind the bars from

30.8.1985 to 7.9.1992 that they should be let off by sentencing

them to the period of imprisonment already under gone by them.

For the last limb of argument Sri Sahai incisively and repeatedly

pointed out at the injuries, the body parts on which it were inflicted,

absence of any internal damage and also to the fact that intention

of the accused can be safely gathered from the injuries caused

most of which were simple in nature and were on non-vital parts of

the body on both the limbs. Sri Sahai further submitted that even

doctor was not sure about the fatality of any injury sustained by the

deceased and in a situation like this, it was urged, that the safest

course to be adopted should be that knowledge to cause death can

only be imputed to the accused appellants and not the intention to

commit murder and therefore, crime of the accused will not fall

outside the purview of culpable homicide not amounting to murder.

Transversely Sri Sangam Lal Kesharwani, learned AGA

submitted that the accused had fail to fathom out any favourable

evidence from all the fact witnesses and the oral dying declaration

of the deceased made to his son immediately after the incident

remained unchallenged and therefore, guilt of the appellant’s is

established within all canons of judicial discipline. Accused have

failed to dislodge the prosecution story and testimonies of fact

witnesses and therefore, their participation in the crime is

indubitable and is a foregone conclusion. Causing nineteen(19)

injuries, most of which were on the limbs without any internal

damage, does not necessarily take out the case of the appellants

out of the purview of 302 I.P.C. and it should be presumed that they

have committed murder of the deceased. Learned AGA, therefore,

submitted that the appeal sans merit and be dismissed in its entirety

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with affirmation of impugned judgment and order.

We have gone through the entire record including oral and

documentary evidences and have critically examined the

submissions raised by both the sides.

Pondering over various contentions on merits of the appeal,

we find that on an overall assessment of testimonies of fact

witnesses it cannot be said that witnesses are untrustworthy and

unreliable. Although from the depositions of the informant/PW1 it is

conspicuous that he had not witnessed the assault at all and was

informed about the same by PW2 but nonetheless soon after the

incident he had inquired from his father who had narrated him the

names of the two appellants as inflicters of his injuries. It is very

significant to note that this statement by the injured/deceased by

virtue of his demise has to be treated as his oral dying declaration

but for the reasons best known to the defence it has not challenged

it’s authenticity. On all material and major part of prosecution

version all the fact witnesses informant P.W.1, Dasrath P.W.2 and

P.W.3 Bansidhar have supported the prosecution case in its entirety

without spelling out any otherwise evidence, which may cast a

doubt on the genuineness of the prosecution version. Incipient and

inchoate oral testimonies regarding genesis of the incident may

have a vital consideration on the offence committed by the

appellants but on the assessment of presence of the witnesses and

involvement of the appellants in the crime it does not diminish

efficacy of statements of all the fact witnesses that only appellants

had participated in the incident. PW1 besides confirming FIR

allegations as aforesaid has deposed further regarding civil litigation

between the deceased and A-2 in which appellant accused A-2 had

remained unsuccessful and it was decreed favouring the deceased.

The nature of the dispute was that Dayali wanted to purchase a

piece of land to which the deceased had denied. Although PW1 had

failed to narrate details about the litigation but he was emphatic and

sure that murder was motivated because of that reason. When

questioned P.W.1 has asserted that had that not being the motive,

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the murder would not have been committed. It was further stated

by PW1 that the civil litigation was decreed in the year 75-76 and in

between decree and murder brawl had taken place between the

deceased and appellant Dayali (A-2) because deceased had refused

to sign on the documents three months after he became decree

holder. Besides said litigation there was no other dispute with the

appellants nor even with Jit Singh A-1. Both PW2 & 3 have not been

tested on civil litigation and therefore we find that appellants could

have motive to do away with the deceased and it cannot be said

that incident had occurred without any motive and resultently we

repel learned amicus curie's submissions on the score that

appellants could not have any motive to commit murder.

Besides motive informant PW1 has also divulged relationships

between both the appellants as A-2 being father-in-law of A-1 as

wife of A-1 Smt. Suman D/O Ram Prasad r/o Baghadu was the

relative of A-2.Concerning actual incident it becomes apparent from

the testimonies of the informant/PW1 that in fact he has not seen

the actual assault and was informed about it by PW2 but even then

it is also apparent that soon after the incident when informant asked

from his injured father as to how he had sustained injuries, he was

informed by the injured that it were the appellants who had caused

injuries to him. As already mentioned herein above such a disclosure

by the deceased to his son immediately after the incident

concerning his death has to be treated as his oral dying declaration

u/s 32 of the Evidence Act and it is very significant to note that

defence had not made any effort to dislodge such an important

piece of evidence by challenging it’s veracity. Under section 32

Evidence Act it is both relevant and admissible. Informant has not

been probed regarding other aspects of lodging of FIR and

transporting of the deceased to the hospital on a cot and most of

his other cross examination remains concentrated on insignificant

and peripheral trivial aspects and therefore do not require any

detailed discussion and hence we eschew from referring them.

However it has been stated by PW1 that at the time of the incident

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he was grazing his buffaloes in the fallow land(Nala) near the hillock

along with DashrathPW2 and Banshidhar PW3 since 6 A.M. and the

incident had occurred near the field of Ram Gyani where the

deceased had met both the appellants armed with their respective

weapons at 8 A.M. on the incident date. Informant had emphatically

denied the defence case that he was stating a spurious version and

no such incident alleged by him ever occurred or he has witnessed

any such incident.

Now adverting to the depositions of Dashrath/PW2 he too was

grazing his cattle alongwith informant and PW3 in the vicinity of the

place of the incident. He further evidenced that since Kadua could

not be repaired by the iron-smith therefore deceased was returning

with both the Kaduas unrepaired and when Dev Swaroop

(deceased) had reached near the agricultural field of Ram Gyani

that both the accused appellants, out of whom Jit Singh A-1 armed

with a spade and Dayali A-2 armed with a club had started

assaulting him who could not withstand the assault and squatted on

the ground and thereafter also was assaulted with club by A-2. On

hearing the shrieks of the injured that he had rushed to the spot

and after accused had left the incident scene that informant P.W.1

had inquired from his father as to how he had sustained injuries, to

which injured father had replied that the two appellants were his

assaulters and when injured was being carried to the hospital on a

cot that he died midway. PW2 was searchingly cross-examined at

length by the accused but most of his cross-examinations are

directed on topography about the place of the incident. Insignificant

omissions and contradictions have been put to this witness, which

do not bely the main substratum of the prosecution allegations.

Thus P.W.2 had supported P.W.1 on all the material aspects of the

incident and defence had miserably failed to get elicited from him

any damaging statement on the basis of which it can be said that he

was not present at the spot. On being questioned by the Court

P.W.2 had clearly deposed that he had gone to graze the cattle at

the same spot where he used to take the livestock everyday for

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grazing because at that spot new grasses come up. He also

cemented the presence of P.W.1 and P.W.3. and had further testified

that the deceased had left the house at dawn at 4 A.M. for getting

the Kadua repaired and at the time of incident they were grazing

their cattle with PW1 & 3. Dasrath P.W.2 further confirmed the

statement of the informant regarding the oral dying declaration

made by the deceased when he was questioned by the informant.

PW2 has also deposed that when he along with PW1 had arrived

near the injured he was speaking. Nothing material contrary to the

prosecution story has come out in his evidence. P.W.2 has also

denied the same suggestion emphatically and clearly as was put to

the informant regarding his not witnessing the incident.

P.W.3 further added truthfulness and credence to both the

earlier witnesses concerning the disclosure made by the deceased to

PW1 and regarding other facts and from vetting of his testimonies

also we have not been able to fathom out any statement which can

dent the core issues in the present appeal. He had also seen the

accused running from the spot but has also rebuffed defence

suggestion that due to the relationship with the deceased of being

grandfather and grandson that he was deposing falsely. However

one thing which is apparent from his evidence is that he has also

not seen the genesis of the incident.

Dr. P.W. 5 has clearly stated that the deceased could have

sustained injuries by spade and lathi and, therefore, analyzing

broader aspects we are of the considered opinion that participation

of both the appellants into the crime is proved beyond any shadow

of reasonable doubt and therefore, conviction of the appellants

through the impugned judgment cannot be taken to be unmerited

and non- sustainable. Prosecution story seems to be credible also

for the reason that there was total absence of any viable reason for

the close relatives to spare real assailants and implicate innocent

persons. It is day light incident with prompt FIR and consistent

medical evidence. Insignificant contradictions inconsistencies and

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omissions, which all do not touch the root of the allegations,

occurring in witnesses deposition do not discredit prosecution

charge and of the appellants being the actual perpetrators of the

crime nor it demolishes prosecution story, and it appears, that

because of this reason that the accused had failed to lead any

defence evidence supporting their version. Conviction of the

appellants consequently are hereby affirmed.

This now takes us to the second limb of the argument

regarding the offence disclosed against both the appellants. On this

aspect, we find considerable force in the submissions of learned

amicus curie. As discussed herein above none of the fact witnesses

had seen how the incident started as they have not disclosed its

genesis. Incident as is discernible from the evidence seems to have

occurred all of a sudden without having any causa causans or

immediate cause nor it seems to be premeditated. Autopsy report

Ext. Ka-2, indicates most of the injuries, except two sustained by

the deceased, to be on his upper and forehands. Except the

fracture of phalanx, right elbow and wrist joint, no other grievous

injury was detected by the doctor on the cadaver of the deceased.

There was no internal damage as well underneath all these injuries

except as stated above. No assault was made on the deceased on

his vital parts, torso, bony cage or on the head by spade and lathi

so as to impute intention to cause death to both the appellants.

Moreover none of the injuries in ordinary course of the nature was

sufficient to cause death and appellants had never intended to

cause it. All the injuries except three, underneath of which fractures

have been found, were simple in nature. The weapons of assault

wielded by both the appellant accused for the purposes of causing

injuries, were dependent upon the force applied by the accused and

parts of the body selected by them. In cases where such type of

weapons are used which are dependent upon the force applied

while inflicting injuries, common intention of the accused can very

well be gathered from the natures of actually inflicted injuries, part

of the body selected to inflict them with other surrounding

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circumstances. If both the appellants had shared the same common

intention to commit murder of the deceased, they would have

inflicted more serious and grievous injuries on the vital parts of the

deceased than what they have actually caused. Number of injuries

is not always the safest and surest determinative criterion to judge

intention of the accused which has to be gathered from taking into

considerations all the attending relevant and germane facts and

circumstances peculiar to an incident. Further, causing number of

injuries taking abundant caution not to damage any vital part nor

inflicting them on vital parts of the body with no injury to the

internal and vital organs is a significant guide to cogitate and

fathom out the real intention of the assailants which has to be

anything but be not an intention to commit murder. Looking to

Section 300 I.P.C. we find that both the accused had no intention to

cause death of the deceased as their acts do not fall in any of the

categories mentioned for disclosing an offence of murder. They also

had no intention to cause such bodily injury as in all probability

would have resulted in deceased death nor they possessed any

intention to cause such an injury which definitely would have caused

death. Regard being had to all the above materials with attending

facts that incident occurred all of a sudden without any

premeditation and weapons of assault were ordinary agricultural

implements that we are in grave doubt as to whether both the

appellants had the requisite intention to cause death of the

deceased although it can be safely inferred that by chastising the

deceased, they did possess requisite knowledge that their assault

may result into his death and, therefore, crime of the appellants do

not travel beyond the purview of section 304 part II I.P.C. In our

such an opinion we also draw support from the statement of the

doctor, who, when questioned as to which injury of the deceased

was fatal, deposed in no uncertain terms that he had not found any

such injury. Although, the doctor had noted cause of death as shock

and hemorrhage due to sustained injuries but after scanning the

autopsy report searchingly and minutely we have not been able to

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find out sine qua non requisite intention to cause death as none of

the injury singularly was sufficient in ordinary course of nature to

cause death with no internal damage underneath any injury except

three fractures on the upper limb noted as above. Thus only

chastising the victim severely having a knowledge that it may result

into his death can only be imputed to both the appellants.

We further note, as stated, the incident occurred all of sudden

at the spur of moment. From the testimony of P.W. 1 from pages 21

to 24, it does not transpire that he had witnessed the incident. He

was informed about belaboring of the deceased by P.W. 2, who in

his statement also do not spell out that he had seen the real genesis

of the incident. He had only mentioned that when he had reached at

the spot then he had seen that the deceased already lying in an

injured condition and the accused were beating him. This is so

apparent from internal pages 5 to 8 of the testimony of P.W.2. In

view of above fact, so far as genesis of the incident is concerned, it

is somewhat shrouded in mystery. Taking abandoned caution of the

entire fact scenario, we have concluded that the guilt of the

appellants will not be one under section 302 IPC but will be only

under section 304 Part (II) IPC. In support of our view, we rely

upon some of decisions of the Apex Court in Bhoopat Singh Vs.

J.B. Katariya: (2009) 17 SCC 242. Wherein it has been held by

the apex court as under:-

“10. In Para 3 Dr. Shukla stated, “in our opinion, the death of the

deceased may have been caused due to ante-mortem injuries,

bleeding and shock”. In Para 6, Dr. Shukla opined that the injuries

on the body of the deceased could be caused by lathi and that ante-

mortem injuries were ordinarily sufficient to cause death. In view of

this, it is not safe to rely on the testimony of PW 8 for recording a

firm conclusion that injuries inflicted by the appellant were sufficient

to cause death in the ordinary course of nature and the High Court

15

cannot be said to have erred in altering the appellant’s conviction

from Section 302 to Section 304 Part II IPC.”

In Babu Lal versus State of Madhya Pradesh:1993 Cr.L.J.

2667 it has been laid down by the apex court as under:-

“5.Now coming to the nature of the offence, according to the

eye-witnesses the three accused came together armed with sharp-

edged weapons and inflicted injuries which resulted in the fracture

of the skull bones. The fracture of the tibia, fracture of the

metacarpal bone and some other injuries were also caused.

However, if their intention was to cause death, they should have

inflicted some more injuries on any vital part of the body but they

have given one blow only with the blunt side of the axe and the

deceased died only six days later. Therefore, in these circumstances,

it cannot be said that they had a common intention for causing the

death. But they must be attributed that by inflicting such injuries

they were likely to cause the death of the deceased, in which case

the offence will amount only to culpable homicide and not murder.”

In another decision State of Rajasthan versus Jora Ram:AIR

2005 SC 2440 it has been held by the apex court as under:-

“The case of the prosecution was that the respondent who was

armed with a knife had caused injuries on the person of the

deceased. The High Court found that the medical evidence on

record did not make out a case of murder. The medical evidence on

record discloses that the injuries found on the person of the

deceased were simple injuries and none of them was described as

grievous. There is no evidence to prove that the injuries inflicted on

the deceased were sufficient in the ordinary course of nature to

cause death. There was a bruise on the front of the neck of the

deceased and the medical evidence disclosed that there was

bleeding of the trachea as a result of that injury, and the bleeding

resulted in clotting of the blood in the trachea leading to Asphyxia.

This injury was not attributed to the respondent, and there was

nothing to establish that the injury which ultimately resulted in the

16

death of the deceased was intended by any one. In these

circumstances, the High Court held that the offence under Section

302, IPC was not made out and that the offence made out was one

punishable under Section 304, Part II, I.P.C.”

In Ranjha and another v ersus State of Punjab:AIR 1996

SC 2741= 1996 CR.L.J. 3991 it has been held by the apex court

as under:-

“10. The next question, which is required to be considered, is

whether by causing the death of Khanu the appellants committed

the offence of murder, as held by the High Court, or culpable

homicide not amounting to murder.From the injuries found on the

person of Khanu, as detailed earlier, we get that except one

abraded contusion on the back of the lower part of the chest (injury

No. 3), beneath which three ribs were found fractured, all other

injuries were simple and most of them were inflicted on non-vital

parts of the body. If really the three accused persons intended to

cause death of the deceased it was likely that they would have

caused much more grievous injuries on vital parts of the body more

so when they were armed with deadly weapons. Considering this

aspect of the matter and the nature of the injuries sustained by

Khanu, we feel that the offence committed by the two appellants in

causing the death of Khanu comes under S. 304 (part II), IPC. We,

therefore, set aside the conviction and sentence of the appellants

under S. 302/34, IPC; and instead thereof convict them under S.

304 (Part II)/34, IPC and sentence each of them to suffer rigorous

imprisonment for seven years.”

On injuries in somewhat similar facts apex court in the decision of

Karia Versus State of Karnataka : JT 2002 (6) SC 582 has

held as under :-

“ 3. It is the case of the prosecution that the appellant

attacked the deceased in his village which was witnessed

by PW 1, his daughter-in-law. Taking into consideration the

case of the prosecution, it is evident that if the appellant

had intended to cause the death of the deceased then he

should have attacked the victim at the vital part of his body.

On perusing the injuries which are only on the hands and

17

legs of the deceased and there being no injuries on the

vital part of the body and the evidence of the doctor who

conducted the post-mortem, who has stated that none of

the injuries individually was sufficient to cause the death,

we are of the opinion that the appellant did not intend to

cause the death of the deceased.

4. In the said circumstances having considered the material

on record and having heard the parties, we are of the

opinion that the conviction of the appellant under Section

302 is not sustainable and the same should be one under

Section 304 part II of the IPC. Accordingly, we partly allow

the appeal and convert the sentence to ten years rigorous

imprisonment under Section 304 part II of IPC. If the

appellant has served the said sentence he shall be released

forthwith. While deciding the period of sentence the

authorities will take into consideration the remission of

sentence which the appellant is entitled to in law.”

From our above discussion the precipitated residue which

emerges is that conviction of the appellants for the charge of

murder u/s 302 I.P.C. is unsustainable and they both are liable to be

convicted u/s 304 (II)/34I.P.C. as their guilt do not travel beyond

the scope of that offence and, therefore, we alter their conviction

from 302 I.P.C. to one u/s 304 (II)/34 I.P.C.

This now lead us to the question of sentence. As already

noted, appellants have already served seven years of imprisonment.

They have caused injuries to the deceased who was an

octogenarian because of an earlier concluded civil litigation which

was assolzied against them and they had remained judgment

debtor. The deceased had lost his life same day and, therefore, in

the fitness of things, but looking to the intervening period lapsed as

of now and there being no other offence reported against the

appellants and hostile atmosphere must have been palliated by now

that in our opinion 8 years R.I. with fine of Rs.25,000/- to each of

the appellants and in default of payment of fine to serve one year

additional R.I. will meet the ends of justice.

Wrapping up the discussions appeal succeeds in part.

Conviction of the appellants under section 302 IPC is altered to

304(II) I.P.C. and their sentence from life imprisonment is modified

to 8 years R.I. with Rs. 25,000/- fine on each of the appellants and

18

in default of payment of fine to serve 1 year R.I. additional

imprisonment. If the fine is deposited by both the appellants, half of

the total amount of the same shall be given as compensation to the

family members of the deceased.

Appeal is finally allowed in part as above.

Let a copy of this judgment be certified to the learned trial

Judge for it's intimation and further action.

Dt.29.1.2014

Rk/Arvind/Tamang/-

19

Hon'ble Sheo Kumar Singh, J.

Hon'ble Vinod Prasad, J.

Sri Brijesh Sahai, advocate was appointed as Amicus Curiae by

us to assist the Court in disposal of the appeal under the direction

passed by the Apex Court. Sri Sahai has rendered valuable

assistance for which he is directed to be paid Rs. 8,000/- as his fees

by the office of this Court.

Dt.29.1.2014

Rk/Arvind/Tamang/-