AFR

Reserved

CRIMINAL JAIL APPEAL NO. 5622 of 2007

Ram Pyare and others ........................... Appellants

Vs.

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

Hon'ble Vinod Prasad, J.

Hon'ble Surendra Singh, J.

(Delivered by Hon'ble Vinod Prasad J)

The three appellants, Ram Pyare and his two sons Magroo

and Ashok @ Buchu, were tried and convicted for offences under

Sections 302/34, 323/34 I.P.C. by Additional Sessions Judge

(F.T.C.), Sonbhadra in S.T. No. 205 of 2004 (State Vs. Ram Pyare

Urao and others), P.S. Kon, District Sonbhadra who sentenced each

of them to life imprisonment with fine of Rs. Five Thousand and in

default of payment of fine to undergone two months further

imprisonment on the first count and three months simple

imprisonment on the second count with further direction that both

the sentences shall run concurrently vide his impugned judgement

and order dated 13.4.2006. Challenged in this Jail Appeal by the

three appellants are to their aforesaid conviction and sentences.

Abbreviated background facts are that Baleshwar (deceased)

and Ram Pyare (A1) both were sons of Moti Ram,Baleshwar

deceased being the elder of the two. Magaroo (A2) and Ashok @

Buchu(A3), two other appellants, are the sons of A1. Informant

2

PW1 Sukurti Devi is the wife of the deceased while Naresh(PW2)

and Ram Adhin(PW3), both injured are her brothers.On 24.9.2004

in the night at 11 p.m. deceased was accosting A1 for cutting and

trading in jungle woods on which all the appellants abusingly raided

house of the deceased/ informant, dragged him to their door and

belaboured him by lathi and danda. PW1 Informant reached at the

spot and seeing her husband being belaboured raised hue and cry

which attracted PW2 and PW3 at the spot who also sprinted at the

scene but they were also assaulted. Deceased died because of

beating. Hue and cry by all the witnesses attracted co-villagers also

towards murder spot, on which murderers had taken to their

heels.PW1 brought the cadaver of her husband at her door and

leaving the corpse there she carried her two injured brothers to

the police station Kon at a distance of 14 Kms, where she lodged

her written FIR Ext. Ka 1 on 25.9.2004 at 8.30 a.m. which she had

got scribed through Kameshwar Prasad Gupta.

S.I. Mansoor Ahmad, P.W. 6 registered the written report as

crime no. 68 of 2004, prepared the chik FIR Ext. Ka 5 and the

relevant G.D. entry Ext. Ka 6 and entrusted the investigation to

Inspector V.S. Yadav, P.W. 7, who recorded 161 Cr.P.C. statements

of P.W.1 and 6, copied chik FIR and the G.D. entry and thereafter,

reaching the spot, performed inquest on the dead body and got

inquest memo and other relevant documents, Ext Ka 7 to Ka 12,

3

scribed through S.I. Ram Darash Tiwari. Thereafter the dead body

was dispatched for autopsy purposes. I.O., thereafter conducted

spot inspection, prepared site plan Ext. Ka 13, collected blood

stained and plain earth and got its recovery memo Ext Ka 14

scribed through same S.I. Ram Darash Tiwari. Same day

Investigating Officer arrested all the three accused persons. On

26.9.2004,PW7 interrogated appellants and looked into their

medical examination reports. On 13.9.2004, I.O. copied the post-

mortem examination report and thereafter, on 18.10.2004, he

dispatched cloths of the deceased and blood stained and plain

earth for Forensic Science examination to laboratory at Lucknow.

Forensic Science Laboratory report dated 8.2.2005 indicate that

blood was found on the clothes of the deceased and in the blood

stained soil. Concluding investigation P.W.7 (I.O.) charge sheeted

all the appellants vide Ext. Ka 15 on 12.10.2004.

Autopsy on the dead body of the deceased was performed on

25.9.2004 at 4.30 p.m. by Dr. Udai Nath, PW4, Medical Officer,

CHC, Dudhi. In the estimation of the doctor, deceased was aged

about Fifty years and twenty hours had lapsed since his death. He

was average built, his eyes and mouth were half open. Rigour

mortris was present on the upper and lower limbs. Following injuries

were detected on the body of the deceased by P.W.4:-

1. Incised wound 6 c.m. X 1 c.m. X skin deep on right parietal

4

area.

2. Contusion 5 c.m. X 3 c.m. on right side of forehead.

3. Contusion 6 c.m. X 2 c.m. on right side of face hear right

eye.

4. Contusion 5 c.m. X 1.5 c.m. on nose.

5. Lacerated wound 2 c.m. X 1 c.m. on upper lip.

6. Contusion 2 c.m. X 0.5. c.m. on right shoulder.

7. Contusion 4 c.m. X 3 c.m. on left hand upper fracture of

index fingure.

8. Contusion 15 c.m. X 7 c.m. on lower part of left side of

chest.

9. Contusion 6 c.m. X 3 c.m. on upper part of left side of

abdomen.

On internal examination autopsy doctor found 5th and 6th

ribs of left side chest of the deceased fractured with rupture of

tissues of inter coastal muscles. Stomach of the deceased contained

semi digested food, small intestine had digested food whereas large

intestine contained faecal matter. In the estimation of the doctor,

cause of death was shock due to haemorrhage from rupture of

spleen.

Injured Naresh, PW2 was medically examined on 25.9.2004 at

5.30 p.m. vide Ext. Ka 3 by the same autopsy doctor as P.W. 5. On

his person following injuries were detected by the doctor:-

5

(1) Lacerated 4cm X .5 cm skin deep on upper part of frontal

area, blood cloth present.

(2) Contused swelling 5cm x 2cm on left shoulder, red in

colour.

(3) Contused swelling 5cm x 2cm on lower part of right thigh

4cm above right knee, red in colour.

(4) Contused swelling 4cm x 2cm on dorsal aspect of right

hand. 2cm before right wrist, red in colour.

All injuries were simple in nature which were caused by hard

and blunt object. Duration of the injuries was one day old.

Another injured Ram Adhin,PW3 was also medically examined

on the same day at 5.45 p.m. by P.W. 5. On the body of Ram Adhin

following injuries were found by the doctor:-

(1) Lacerated 8cm x 10cm x skin deep on right parietal area

7cm above right eye brow, blood clot present.

(2) Contused swelling 11cm x 2cm on forearm 3cm below left

elbow joint, red in colour.

(3) Contused swelling 6cm x 4cm on dorsal aspect on right

hand. 2cm below right wrist, red in colour.

(4) Lacerated wound 11cm x .5cm x skin deep on right

thumb, blood clot present.

All the injuries of this witness were also simple in nature and

were caused by hard and blunt object and the duration of those

6

injuries was also one day.

After submission of charge sheet, the case of the appellants

was committed to the Session's court for trial, where Sessions

Judge, Sonbhadra charged them with offences under Sections

302/34, 323/34 and 504 I.P.C. on 24.2.2005 which charges were

denied by the appellants who claimed to be tried and hence their

trial commenced.

In order to establish guilt of the appellants prosecution

examined in all seven witnesses during the course of the trial out of

whom Sukurti Devi P.W. 1 (informant), Naresh P.W. 2 (injured) and

Ram Adhin P.W. 3 (injured) were witnesses of fact. Rest of the

witnesses Dr. Udai Nath P.W. 4 and P.W. 5, S.I. Mansoor Ahmad

P.W. 6 and S.I. V.S. Yadav P.W. 7 were the formal witnesses.

In her deposition before the Court, P.W. 1 informant narrated

the same story, which was disclosed by her in her FIR Ext. Ka 1.

She confirmed the relationship between the deceased and the

appellants and further deposed that the deceased was forbidding

appellant Ram Pyare from cutting forest woods and not to sell it in

the market as Ram Pyare used to do the same without knowledge

of the Forest Department. The objection of the deceased was

affronted by the appellants who took it to be a temerity and

thereafter they dragged the deceased at their door where he was

assaulted with lathi and danda. She further testified that the lathi of

7

Ram Pyare was studded with an iron ring. She further deposed that

she was issuless and because of dead hour of night she remained

near the corpse. Next day morning she got the written FIR scribed

and then went to the police station along with her brothers and got

it registered. She has proved her written report Ext. Ka 1. In her

cross examination she disclosed that there was karma festival on

the date of the incident which all the aboriginals celebrate with

liquor,music, dance and feast to please the GOD. First of all liquor

is offered to the GOD and then it is consumed as his blessings by

the devotees. However PW1 and the deceased had not participated

in the festival as they had never celebrated it. She had further

deposed that her parental relatives used to look after her

agriculture. According to her deposition festival of 'karma' was

being celebrated in the house of Satya Narayan at a distance of one

kilometre in Rohania Bakharia Tola, which had a cluster of forty or

fifty houses. Her brothers P.W. 2 and P.W.3 were the resident of

the said Tola. Nobody from the house of the informant or that of

the appellants had gone to participate in the festival. P.W.1 further

deposed that her house in Shikari Khuli Tola consists of ten or

twelve houses. Her neighbours are Ram Kaval, Lallu, Jokhu, Ram

Chandra etc. who all have gone to participate in the festival and

were not present at the spot at the time of the incident. She further

deposed that she had not sustained any injury in the incident as she

8

was standing away and prior to the incident there was no enmity

between the appellants and them. She admitted that the deceased

was not a Forest Department personnel and the appellants were

never challaned under the Forest Act for cutting jungle woods at

any time. She further deposed that the incident occurred in the

Hindi calender month of Bhado, which had rains and clouded clouds

off and on. According to her deposition the incident night was a

moonlit night and the incident had occurred at the door of the

appellants where blood had also tickled down. Some of the blood

had also sprinkled at her door, which she had shown to the

Investigating Officer. She confessed that she did not endeavour to

save her husband because she was deterred of being assaulted.

Soon after the incident she had brought the injured since deceased

at her door. She had stayed at the police station for ten or twelve

minutes and prior to going to the police station she had already got

her FIR scribed. From the police station she had returned to her

house in a police jeep. She was interrogated on the subsequent day

of conducting of inquest in the village. The assault continued for

two or three minutes. She further deposed that she had gone to the

police station in a jeep from the road. F.I.R. was scribed at her

dictation by Kameshwar. All the accused persons had belaboured

the deceased at a distance of ten or fifteen paces from her house.

She emphatically denied defence suggestion that the accused

9

persons are not the murderers nor any incident occurred in front of

their house.

Naresh P.W.2 in his deposition testified the relationship and

supported P.W.1 in all material aspects of the incident. He further

deposed that he and his brother Ram Adhin were also belaboured

when they intervened to save their brother-in-law. He also

confirmed that the night was a moonlit night and there was a

lantern, which was also burning. He further confirmed that P.W.1

had carried the deceased at her door but soon thereafter he had

lost his life. He further deposed that both the injured were carried

to the hospital by the police where they were medically examined.

Regarding the topography of the place of the incident also this

witness has supported the deposition of P.W.1. On being questioned

regarding the celebration of festivity he has supported the

deposition of P.W.1. He further confirmed that they had gone to the

police station in a private jeep next day morning and they had

reached the police station in half an hour. This witness was clear

that the Investigating Officer did not interrogate him at the time

when he had gone to the police station at the time of lodging of FIR

but he was interrogated three or four days subsequently. He has

also confirmed the place of the incident to be the front of the

house of the appellants. From his entire cross examination, nothing

has come out which can discredit his testimony. This witness has

10

also denied the defence suggestion that the incident was executed

by some unknown persons and they have not been able to

recognize the real assailants and a false FIR has been lodged and

that he was deposing falsely.

Testimony of P.W. 3 Ram Adhin, another injured also

supported version of P.W. 1 and P.W. 2 in all the material aspects of

the case . From his cross examination also defence has not been

able to surface any damaging or destructive evidence. He is also

categorical in his testimony that he had witnessed the assault on

the deceased by the appellants and when he endeavour to save him

he was also beaten. He had further supported the earlier two

witnesses by saying that in the night, there is no plying of vehicles

and, therefore, they had gone to the police station next day

morning. He further testified that because of terror they did not

inform the other people in night. His further deposition is that the

incident occurred because of cutting of wood and the deceased had

no previous enmity with the appellants. His deposition was

categorical that he and his brother P.W. 2 were assaulted at the

door of the accused and not on the road. He denied the suggestion

that he was deposing falsely and the deceased was done to death in

the dark hours and because of enmity, he was deposing falsely

against the appellants.

P.W. 4, Dr. Uadi Nath, Autopsy doctor has testified the same

11

facts, which have already been mentioned herein before. He had

further deposed that the deceased can sustain the injuries detected

on his body by blunt object studded with an iron ring and the death

may ensue at the time alleged by the prosecution. He further

deposed that there was no mark of dragging found on the body of

the deceased. Regarding injuries sustained by P.W. 2 and P.W. 3,

the doctor has testified those very facts which have already been

recorded herein before. During his cross examination, nothing

material has come out to damage prosecution case. P.W. 6, S.I.

Mansoor Ahmad has deposed regarding registration of FIR,

preparation of chik FIR and G.D. entry and had denied the

suggestion that the FIR was cooked up after due consultation. P.W.

7, Investigating Officer has testified regarding various steps taken

by him during investigation as has already been inked herein

before.

In their statements under Section 313 Cr.P.C. all the appellant

accused pleaded the defence of false implication by stating that the

deceased was done to death by some unknown persons and

because of enmity, they have been falsely implicated. In their

defence, appellants had examined constable Raghu Nath as D.W. 1.

Trial court placed reliance on the depositions of prosecution

witnesses and reposing confidence in their testimonies concluded

that prosecution has proved it's case to the hilt and therefore it

12

convicted all the appellants for the charge of murdering the

deceased and causing simple hurt to the witnesses and

consequently convicted and sentenced them for those offences as is

already mentioned in the opening paragraph of this judgement. It

however, acquitted them for the charge U/S 504 IPC.Hence this Jail

appeal by all the three appellants.

On above facts we have heard Sri Sudhist, learned counsel for

the appellants in support of this appeal and Mrs. Raj Lakshami

Sinha, learned AGA for the appellee State.

Sri Sudhist, learned counsel for the appellants contended that

the incident occurred in the dark hours of night and the cause of

death is bursting of spleen and, therefore, it cannot be said that

the appellants really intended to cause murder of the deceased. He

further contended that it was the deceased who picked up the

quarrel with the appellants by accosting them to forbade from

cutting of woods when he was neither an employee of the Forest

Department nor had got anything to do with those woods. Learned

counsel further submitted that all of sudden it was the deceased

who made utterances which must have rankled the appellants who

all took it to be a faux pas because of which the incident occurred.

He further submitted that the perusal of the injuries of the deceased

indicates that injury no. 1, which is an incised wound, was only skin

deep with only a linear fracture of right parietal bone, which is not

13

the cause of death. Rest of the injuries are on non vital part of the

body. It was therefore submitted that on such facts it is difficult to

presume that the appellants intended to cause death of the

deceased or they intended to cause such bodily injury as in all

probability was likely to result in death and, therefore, conviction of

the appellants under Section 302 I.P.C. is not sustainable. He

further pointed out some small contradictions in the depositions of

the witnesses which are wholly immaterial to be recorded.Learned

counsel further castigated the impugned judgement by contending

that no independent witness came forward to lend credence to the

prosecution case which relied upon only on testimonies of

interested,partisan and related witnesses and therefore testimonies

of those witnesses be not relied upon.How ever,the sheet anchor of

the argument of learned counsel for the appellants is that conviction

of the appellants be altered from one under section 302 I.P.C. to

one under Section 304 part (II) I.P.C. and since the appellants have

already undergone imprisonment for six years, their appeal

deserves to be allowed by altering their conviction to one under

Section 304 (II) I.P.C. with sentence of imprisonment already

undergone by them.

Learned AGA, on the other hand contended that there was no

motive for the prosecution witnesses to falsely implicate the

appellants and, therefore, the appeal lacks merits and deserves

14

dismissal in full. She further submitted that the deceased died

because of bursting of spleen because of injury caused by the

appellants and therefore there is no ground to alter the conviction

and the sentence.

We have considered the arguments raised by both the sides.

Admittedly the incident occurred at the spur of the moment. It was

accosting by the deceased at that unusual hour of night which had

engineered the quarrel. It is not known whether the accused

persons were cutting the woods at the time of the incident or not?

Neither in the FIR nor in statement in court, it has been testified by

any of the witness as to whether at the time of the incident, the

appellants were cutting wood or not? No axe etc. was carried by the

accused persons so as to indicate that the accused persons were

chopping the woods at that time. It seems that because the

accused persons were cutting woods in the past that a tiradic

alteration ensued between the deceased and the accused appellants

at the door of the appellants in which the deceased was assaulted.

However no fatal physical injury was caused to the deceased. Cause

of his death was bursting of spleen. The incident had occurred in

the dead hour of night.The charge levelled by the deceased must

have affronted the appellants as in essence it was a charge of theft

and appellants being the thieves.In such a view, it is difficult to

presume that the accused really intended to cause death of the

15

deceased. This opinion finds support from the injuries sustained by

the injured persons as well as they both sustained only simple

injuries. Therefore a glimpse of the injuries sustained by the

deceased and injured does not give indication that any of the

accused really intended to cause death of the deceased.What can

be held with certainity is that the appellants intended to give sever

beating to the deceased and not to cause his death. Nature of

injuries and it's situs also lead us to this conclusion. Injury no. 1 of

the deceased was only skin deep, injury no. 2 was a contusion on

right side forehead, injury no. 3 was contusion on right eye, injury

no. 4, 6, 7, 8 and 9 all were contusions on right shoulder, upper

index finger, left hand, upper side of chest and left side of

abdomen. It seems that because of injury no. 9 that the spleen of

the deceased bursted and he lost his life. It is not known who had

caused that injury which could have been sustained because of fall

in the brawl as well in the night. The autopsy report does not

indicate any external physical damage sustained by the deceased

capable of causing his death independently or cumulatively. In such

a view, it is very difficult to cogitate and conclude that the

appellants really intended to cause death of the deceased.

It is also noted that at the initial stage of the incident, the

deceased was dragged at the door by the accused-appellants. At

that time they were all empty handed as alleged by the prosecution.

16

Assault was made on the deceased only by blunt objects, but not

with much force, so as to cause only contusions and not even

lacerated wound but for one injury, which is on the lips, being injury

no. 5. In such a view, when the accused persons were assaulting

the deceased, it will be puerile to cogitate that they harbingered

intention or knowledge to cause death. We also doubt dragging part

of prosecution story as the deceased had not sustained any

dragging injury. Incident occurred at the door of the appellants and

therefore it seems that the deceased had gone to the door of the

appellants accusing them of being thieves and because of that

conduct of the deceased himself that the incident occurred at a

very unusual time in the night. There was no occasion for him to

have picked up the brawl at that hour of night for some thing which

had occurred in the past.In our view the case of the appellants is

covered under more than one exception of section 300 IPC and

their offence will not travel beyond the scope of section 304 part II

IPC.

From the evidence led in the trial, P.W. 1 had no animus

against the appellants to falsely implicate them. She is a close

relative and defence has not been able to shake her testimony at

all to indicate that she had any reason to rope in the accused-

appellants falsely. P.W. 2 and 3 are injured witnesses and their

presence at the spot cannot be doubted. They have supported the

17

evidence of P.W. 1 in all it's material aspects of the incident. They

are close relatives and prior to the present incident they had no

animus with the appellants so as to motivate them to depose falsely

against them. We are not in agreement with the argument of

learned counsel for the appellants that the appellants have been

falsely implicated and that some unknown persons are perpetrators

of the crime, other than the appellants. Presence of the appellants

at the spot is established beyond any shadow of doubt.

In view of above discussion we are of the opinion that though

accused persons did participate in the incident, but the offence,

which they have committed will be purviewed only under section

304 part II IPC and not under section 302 IPC. In our this

conclusion we are fortified with the following judgment of the apex

court. In the case of Abani K. Debnath v. State of Tripura:

AIR 2006 SUPREME COURT 518 ; apex court has held as

under :-

“5. This leads us to consider as to under what Section of law

A-1 Abani K. Debnath is liable to be convicted in a given facts of the

case. The prosecution evidence clearly discloses that the dao blow

dealt by A-1 is preceded by a mutual quarrel. We have already

noted that there was no common intention to kill Ranjit Das. From

the nature of injuries it is disclosed that A-1 dealt only one dao blow

perhaps in the spur of moment. The incident had taken place on

18

10-8-1990 and the deceased succumbed to injury on 15-8-1990

after a lapse of 7 days. Taking the prosecution evidence and

medical evidence cumulatively we are of the view that the

conviction of A-1 also cannot be fell under Section 302 IPC but at

the most under Section 304 Part II. We accordingly convert the

sentence of A-1 Abani K. Debnath under Section 302 IPC to that

one under Section 304 Part II IPC and sentence him to suffer R.I.

for five years.”

IN Cmilo Vaz v. State of Goa:AIR 2000 SUPREME COURT

1374; it has been held by the apex court as under:-

“14. This section is in two parts. If analysed the section

provides for two kinds of punishment to two different situations. (1)

if the act by which death is caused is done with the intention of

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

death. Here important ingredient is the "intention"; (2) if the act is

done with knowledge that it is likely to cause death but without any

intention to cause death or such bodily injury as is likely to cause

death. When a person hits another with a danda on vital part of the

body with such a force that the person hit meets his death,

knowledge has to be imputed to the accused. In that situation case

will fall in Part II of Section 304, IPC as in the present case. We are

also not oblivious of the fact that other four accused who were

similarly convicted with the appellant with the aid of Section 149,

19

IPC have been held guilty only for offence under Section 326, IPC.

15.We, therefore, hold the appellant to be guilty for an offence

under Section 304, Part II, IPC. His conviction under Section 302,

IPC is, therefore, set aside.”

In Chinnathaman v. State, Rep. by Inspector of Police:AIR

2008 SUPREME COURT 784 ; it has been held as under :-

“10. This brings the court to consider the question as to

which offence is committed by the appellant. Admittedly, the

incident had taken place in the field/garden belonging to the

appellant, where he was engaged in his farming activities. From the

evidence led by the prosecution it is evident that the deceased, in

the company of witness Senthil Kumar had gone to the field of the

appellant to get bitterguard though they were warned not to do so

by the father of the deceased. In spite of knowing that the

appellant was nurturing a feeling that the deceased and his own

sister's son had facilitated elopement of Punitha with her teacher,

the deceased in the company of Senthil Kumar had gone to the field

of the appellant on the pretext of getting bitterguard. The

testimony of the father of the deceased establishes that his

deceased son, in the company of witness Senthil Kumar had stayed

in the field of the appellant for about 15 minutes and that there was

an altercation between the appellant and the deceased. The

appellant never knew and anticipated that the deceased would

20

enter his field nor had prepared himself in advance to attack the

deceased. Thus there was no premeditation or pre-plan on the part

of the appellant, to cause the death of the deceased. Though the

appellant is senior in age to the deceased, the deceased had

advised the appellant to behave nicely without rhyme or reason,

when the appellant had refused to part with bitterguard saying that

the deceased and others had disgraced his family by facilitating

elopement of Punitha with her teacher. It is not the case of the

prosecution that on seeing that the deceased was entering his field

in the company of Senthil Kumar, the appellant had straightway

attacked him. The evidence led by the prosecution clearly

establishes that after verbal duel, which had lasted for pretty long

time, the appellant had picked up a sickle which is an agricultural

implement, lying on the ground and delivered a blow on the neck of

the deceased. By entering the field of the appellant on the pretext

of getting bitterguard, though he was knowing fully well that the

appellant was nurturing a feeling that he had played a role in the

elopement of Punitha with her teacher as well as engaging himself

in an altercation with the appellant, and advising the appellant to

behave the deceased had offered grave and sudden provocation to

the appellant as a result of which the appellant, in the heat of the

moment had delivered a blow with sickle to the deceased. The

Medical Officer who had performed autopsy on the dead body of

21

the deceased has not stated that the injuries sustained by the

deceased were sufficient in the ordinary course of nature to cause

his death. It is not the case of the prosecution that the appellant

had acted cruelly, in the sense that he had delivered successive

blows to the deceased. There was sufficient time and opportunity to

the appellant to give repeated blows. It is not the case of the

prosecution that the appellant wanted to deliver other blows and

that he was prevented from doing so, by any person. So, there is

reasonable ground to believe that after giving the blow, the

appellant had stopped and not acted cruelly. As noticed earlier, the

appellant was doing his work and was not waiting for the deceased

to come. On the facts and in the circumstances of the case, this

Court is of the opinion that Exception 1 to Section 300, IPC would

apply to the facts of the case and the offence committed by the

appellant would be one punishable under Section 304, IPC. There is

nothing on record to indicate that the appellant had committed

culpable homicide amounting to murder by causing death of the

deceased with the intention of causing death of the deceased or of

causing such bodily injury as was likely to cause his death.

Therefore, the provisions of Part II of Sction 304, IPC would apply

to the facts of the case on hand. Thus, the appeal will have to be

allowed by converting the conviction of the appellant under Section

302, IPC to one punishable under Section 304 Part II, IPC. This

22

Court has considered the submissions advanced at the bar for the

purpose of imposition of sentence on the appellant for commission

of offence punishable under Section 304, Part II, IPC. As held

earlier there was no pre-meditation or pre-plan on the part of the

appellant to cause death of the deceased, and the occurrence had

taken place when the deceased, with another had entered the field

of the appellant and engaged himself in an altercation with the

appellant when the appellant had refused to part with bitterguard.

Having regard to the attending circumstances in which the incident

had taken place, this Court is of the opinion that the interest of

justice would be served if the appellant is sentenced to rigorous

imprisonment for five years for commission of offence punishable

under Section 304, Part II, IPC.”

IN Nafe Singh v. State of Haryana : AIR 2009 SUPREME

COURT 2825 the facts were :-

“4. On 30.5.2002, Kanwar Singh (PW.4) complainant

along with his brother, namely, deceased Bhanwar Singh was

working in the fields known by the name of Yamuna belt. Ram Phal

son of Sugna, resident of Goela Khurd, was also ploughing his

fields. Besides, the sons of the complainant, namely, Vinod and

Mukesh, were also working in the field. At about 12 noon, appellant

Nafe Singh armed with a Ballam, Dheeraj armed with a Gandasi and

Angrej Singh armed with a lathi, came to their fields and raised a

23

lalkara that Bhanwar Singh be taught a lesson for ploughing the

fields, whereafter Nafe Singh gave a Ballam blow to Bhanwar Singh

on the right side of his chest on its lateral side lower part, while

Dheeraj gave a Gandasi blow on his left knee and Angrej gave a

lathi blow to him. Upon this, Bhanwar Singh cried "Mar Diya Mar

Diya" and on hearing his noise, Vinod and Mukesh went to rescue

their uncle Bhanwar Singh; but they were also inflicted injuries by

the above three accused with their respective weapons. When

Kanwar Singh - complainant along with Ram Phal intervened, the

accused along with their respective weapons fled away from the

spot. Accused Nafe Singh while leaving told them that his brothers

Sahab Singh and Iqbal Singh has lot of money and can manage the

affairs. Kanwar Singh, complainant along with Ram Phal went to the

spot and found his brother Bhanwar Singh lying dead. Thereafter,

Hari Singh son of Phula Singh and his wife Kiran Sarpanch who

were coming from the fields along with Jhota Buggi took the injured

to village and subsequently, to Civil Hospital, Panipat. Complainant

Kanwar Singh made statement exhibits PB before ASI Randhir Singh

in regard to the occurrence which led to registration of formal FIR

exhibit PB/1 after making an endorsement Ex. PB/2.”

On such facts it was held as under :-

“10. Considering the facts of this case, according to us, the

appropriate conviction will be under Section 304, Part-II IPC instead

24

of Section 302 IPC. Ends of justice would be met if the conviction is

altered from Section 302 IPC to Section 304, Part II IPC and the

custodial sentence is reduced to 7 years R.I. We order accordingly.”

In view of our above discussion this Criminal Jail Appeal

is partly allowed. While we maintain conviction of all the appellants

under section 323/34 IPC and the sentence recorded therefor by the

trial court in it's impugned judgement,but we set aside their

conviction under section 302/34 IPC and imposed sentence of life

imprisonment with fine of Rs. Five thousand there for and instead

convict them under section 304 Part II/ 34 IPC. Since the

appellants had already under gone six years of imprisonment, in our

view, the same will suffice as the sentence for the said charge.

Appellants are already in jail. Since they have already served

out the entire period of sentence on both the charges, we direct

that they shall be released from jail forthwith unless they are

required or incarcerated in connection with any other offence.

This Criminal Jail Appeal is allowed in part as above. Let a

copy of this judgement be certified to the trial court for it's

intimation.

Date:16.7.2010

AKG/