1

Reserved on 8

th

August, 2019

Delivered on 18

th

September, 2019

A.F.R.

Court No. - 88

Case :- CRIMINAL APPEAL No. - 2434 of 2009

Appellant :- Subhash

Respondent :- State Of U.P.

Counsel for Appellant :- Sarvesh

Counsel for Respondent :- Govt. Advocate

Hon'ble Mrs. Manju Rani Chauhan,J.

1.Heard Mr. Sarvesh, learned counsel for the appellant and Mr.

Prashant Kumar, learned Additional Government Advocate for the

State.

2.This criminal appeal has been filed by accused appellant

Subhash S/o Shrinath, R/o village Basawanpur, police station Ghosi,

District Mau against the judgment and order dated 30/31.03.2009,

whereby appellant Subhash has been convicted under section

323/34 and 304 (II) Indian Penal Code and has been sentenced for

one year rigorous imprisonment for offence under section 323/34

Indian Penal Code and for seven years rigorous imprisonment and a

fine of Rs. 500 and in default of payment of fine two months further

imprisonment for offence under section 304(II) Indian Penal Code.

All the sentences are directed to run concurrently.

3.According to prosecution version as narrated by informant

Ram Lakhan, on 25.04.2006 at about 12:00 in the day, accused

Subhash, Gulab and Dayanand came to his house and started

abusing him and thereafter assaulted him with lathi, danda. Upon

hue and cry, the co-villagers gathered there and saved him. The

record further reveals that P.W.1 Smt. Dhanmati took her husband-

Neutral Citation No. - 2019:AHC:151144

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informant to Community Health Centre, Ghosi, where his injuries

were examined by Dr. D.N. Rai and thereafter he was referred to

District Hospital, Mau where he was given treatment and after being

relieved from the hospital, Smt. Dhanmati and Ram Lakhan came to

their house in the village and remained in the house. On fourth day

of incident, deceased Ram Lakhan went to the police station and on

the oral dictation of first informant Ram Lakhan (deceased), one

Non-Cognizable Report no. 86/2006 was registered on 28.04.2006 at

about 12:30 P.M. in Police Station Ghosi, District Mau for offences

under section 323/504,506 IPC against accused Subhash, Gulab and

Dayanand. After eighteen days from the incident, Ram Lakhan died

on account of injuries and the P.W.1 Smt. Dhanmati gave

information to police station about death of her husband Ram

Lakhan, whereupon section 304 IPC was added and being

cognizable offence, the case was converted into case crime no. 429

of 2006 U/s 304 IPC. After investigation, the Investigating Officer

submitted charge sheet against the named accused persons for

offence under section 304 IPC and subsequent to the cognizance of

offence, the learned Magistrate committed the case to the Court of

Sessions and trial proceeded.

4.The learned Trial Court framed charge against the accused

persons for offence under section 504, 506(II), 323/34 and 304/34

IPC vide order dated 02.03.2007. In order to prove its case, the

prosecution also relied upon documentary evidence, which were

duly proved and consequently marked as Exhibits. The same are

cataloged herein below:-

i). Application made by the informant Dhanmati qua the death of the

deceased during treatment to the Police Station Ghoshi was marked

as Exhibit-Ka-1 and the same was proved by the informant (P.W.1);

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ii). Medical examination report of the deceased before his death was

marked as Exhibit-2 and the same was proved by Dr. D.N. Rai,

Primary Health Centre, Ghosi, Mau (P.W.-4);

iii). Post-mortem report of the deceased was marked as Exhibit-3

and the same was proved by Dr. A.K. Srivastava (P.W.-5);

iv). Entry made in G.D. regarding registration of Case Crime No. 429

of 2006 under Section 304 I.P.C. after the death of the deceased

was marked as Exhibit-Ka-4 and the same was proved by the

Constable Dhanoday Pandey (P.W.-6);

v). Entry made in G.D. regarding death of the deceased given by the

informant was marked as Exhibit-Ka-5 and the same was also

proved by the Constable Dhanoday Pandey (P.W.-6);

vi). Site plan was marked as Exhibit-Ka-6 and the same was proved

by Sub-Inspector Sheetala Prasad Upadhaya (P.W.-7);

vii). The charge-sheet was marked as Exhibit Ka-7 and the same

was proved by Sub-Inspector Sheetala Prasad Upadhaya (P.W.-7);

viii). Non-Cognizable Report (N.C.R.), which was registered on oral

information given by the Informant regarding the incident, was

marked as Exhibit Ka-8 and the same was proved by Constable

Radhey Shyam Yadav (P.W. 8);

ix). Entry made in G.D. regarding the N.C.R. was marked as Exhibit-

Ka-9 and the same was also proved by Constable Radhey Shyam

Yadav (P.W. 8);

x). Inquest report of the deceased was marked as Exhibit-Ka-10 and

the same was proved by Sub-Inspector Mithlesh Kumar Mishra

(P.W.-9);

xi). Chalan lash was marked as Exhibit-Ka-11 and the same was

proved by Sub-Inspector Mithlesh Kumar Mishra (P.W.-9);

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xii). Photo lash was marked as Exhibit-Ka-12 and the same was

proved by Sub-Inspector Mithlesh Kumar Mishra (P.W.-9);

xiii). Letter written to the Reserved Inspector, Police Line, Mau was

marked as Exhibit-Ka-13 and the same was proved by Sub-Inspector

Mithlesh Kumar Mishra (P.W.-9); and

xiv). Letter written to the Chief Medical Officer, Mau regarding post-

mortem of the deceased was marked as Exhibit-Ka-14 and the same

was proved by Sub-Inspector Mithlesh Kumar Mishra (P.W.-9).

5. The prosecution also examined total nine witnesses in the

following manner:-

P.W.1 Smt. Dhanmati wife of deceased Ram Lakhan is an eye

witness of the incident. P.W.2 Manraj is neighbor of the deceased

and is another eye witness of the incident. P.W.3 Smt. Gyanti @

Gyanmati wife of Rama Shanker is daughter-in-law of the deceased

and she was also present in the house at the time of the incident

and is an eye witness. P.W.4 Dr. D.N. Rai was posted at CHC, Ghosi,

who examined the injuries of Ram Lakhan on 25.04.2006 at about

06:00 P.M. and has proved the same. P.W.5 Dr. A.K. Srivastava had

conducted post mortem examination of the cadaver of Ram Lakhan

and has proved the post mortem examination report. P.W.6

Constable Dhanoday Pandey was posted as Constable Clerk in the

police station Ghosi, who proved the registration of non-cognizable

report and its subsequent conversion into cognizable report. P.W.7

Sub-Inspector Sheetla Prasad Upadhaya had conducted investigation

and had submitted charge sheet and has proved the same. The

P.W.8 Constable Radhe Shyam Yadav has proved the non-

cognizable report lodged by Ram Lakhan (deceased). The P.W.9

Sub-Inspector Mithilesh Kumar Singh had conducted inquest and has

proved the same along with other police papers.

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6.The defense has challenged the prosecution case by

submitting that:-

(a)There is delay in registration of the non-cognizable report

in as much as the incident alleged to have taken place on

25.04.2006 at about 12:00 in the afternoon, while the non-

cognizable report is said to have been lodged on

28.04.2006 at about 12:30 P.M. with delay of about three

days, which fact gives an obvious inference that the

prosecution case is concocted.

(b)Looking into the injuries of the deceased, it is highly

improbable that the deceased had himself dictated the

non-cognizable report at police station after three days of

receiving the injuries and hence, this circumstance creates

serious doubt about prosecution version. The prosecution

case has been materially improved from stage to stage

with the passage of time in as much as the first

information report does not disclose any specific role and

contains allegations about assault by lathi, danda only but

in the statement of witnesses before the court, the

allegation with regard to the exhortation and assault by fist

has also been introduced and role of lathi injury has been

specified against the appellant Subhash. All these

improvements make the prosecution case wholly

unreliable.

(c)The alleged eye witnesses are not reliable and their

presence at the scene of occurrence is highly improbable

as they did not receive any injury and they did not try to

save the deceased, which is quite unnatural.

(d)The alleged non-cognizable report cannot be treated as

dying declaration of the deceased.

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(e)The appellant had no intention or knowledge to commit the

offence, even according to the prosecution’s own case and

the accused persons were not armed with any weapon at

initial stage and admittedly the accused appellant merely

used lathi against the deceased.

(f)In any view of the matter, the sentence of seven years

rigorous imprisonment is too severe and is liable to be

reduced.

7.On the other hand learned Additional Government Advocate

has contended that the prosecution has proved its case beyond

reasonable doubt. The deceased had himself given the information

to police station and the non-cognizable report was registered on his

dictation and has been duly proved by the prosecution witnesses

and thus the prosecution evidence is wholly reliable and intact and

as such, the accused appellant has been rightly convicted and the

quantum of sentence is proportionate to the guilt of accused

appellant.

8.In order to appreciate rival submissions mentioned above, the

court proceeds to examine the evidence on record.

9.P.W.1 Smt. Dhanmati wife of deceased Ram Lakhan has

stated in her examination in chief that on the day of the alleged

incident at about 12:00 O’clock in the afternoon, her husband was

sitting on a cot under the shed in front of his house and she was

also present sitting on earth. Suddenly the accused persons namely

Subhash, Gulab and Dayanand arrived there crossing the boundary

of her house and started abusing her husband with filthy language

and asked her husband as to how he was talking to Raj Kumar. At

this juncture, her husband as well as she protested and asked the

accused persons not to abuse like this. Thereafter the accused

Dayanand exhorted to kill her husband and all of them dragged her

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husband from the shed. The appellant Subhash picked up the lathi,

which was kept near the cot of her husband and assaulted upon him

with lathi and accused Gulab assaulted with kick and fist causing

injuries. She took her husband to Amila Police Outpost and informed

the police but the police personals had stated that first of all medical

treatment may be given to the victim and thereafter she may to

register the case. She took her husband to Govt. Hospital Ghosi

where her husband was medically examined and he was referred to

District Hospital, Mau. In District Hospital Mau, her husband was

treated and thereafter on fourth day of the incident her husband

himself went to the police outpost and lodged the report. However

on 18th day of the incident, her husband died on account of injuries.

She sent written information regarding death of her husband to

police station, which has been proved by her as exhibit Ka-1.

Thereafter the police arrived and prepared inquest and site plan etc.

and also recorded her statement. Two days prior to the incident, a

quarrel had taken place with Raj Kumar and the aforesaid Raj Kumar

belongs to the gang of the accused persons.

10.She has also stated in her cross examination that two

months prior to this incident, a quarrel had taken with Raj Kumar

and in that quarrel Raj Kumar had beaten her daughter-in-law by

fist and kick and it was reported by her husband to the police and

the medical examination of her daughter-in-law was also conducted.

She has also stated in her cross examination that after treatment of

her husband in District Hospital, she took him to the village on the

same day and since then, her husband remained at home till his

death.

11.The P.W.2 Manraj son of Jallu, whose house is situated at

about 25 steps ahead from the house of the deceased, has stated in

his testimony that he was present in front of his house at the time

of the incident and after hearing hue and cry, he reached at the

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place of incident and saw the accused Subhash, Gulab and

Dayanand abusing and assaulting Ram Lakhan. When Ram Lakhan

protested, appellant with the danda and accused Gulab and

Dayanand with fists and kicks, assaulted Ram Lakhan. Thereafter he

and many persons intervened and saved Ram Lakhan. He has also

stated in his testimony that Ram Lakhan was taken to the hospital

by his wife and other persons and he died after 17-18 days of the

incident. He has further stated that deceased Ram Lakhan had

received injuries in his head and chest region. He also identified

accused Gulab and Subhash in the court and has stated that

accused Dayanand is not present in the court. He corroborated the

statement of P.W.1 in all material aspects. He was cross examined

at great length but nothing substantial could be elicited in his cross

examination.

12.P.W. 3 Smt. Gyanti @ Gyanmati is daughter-in-law of

deceased Ram Lakhan. She was there in the house when the

incident occurred. She corroborated the statement of P.W.1 and

P.W.2 in all material aspects with regard to the abuse and the

manner of assault by accused persons and also other relevant facts.

She has been cross examined and in her cross examination she

states that during quarrel with Raj Kumar, she was not assaulted

and beaten. She has denied the suggestion made to her in cross

examination that on the alleged date of incident, she was in her

Maika.

13.P.W.4 Dr. D.N. Rai who firstly examined the victim on

25.04.2006 at 06:00 P.M. at C.H.C., Ghosi has stated that at about

06:00 P.M., Ram Lakhan was brought before him by his wife Smt.

Dhanmati and was examined by him, whereupon the injuries

mentioned in the medical examination report were found on the

person of Ram Lakhan and thereafter, the victim was referred to

District Hospital, Mau. This prosecution witness has proved the

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medical examination report and has stated that all the injuries had

possibly occurred on 25.04.2006 at about 12:00 O’clock in the

afternoon and were caused by hard, blunt object and were fresh

and the injuries no. 1 & 5 were on vital part of the body. He did not

give any opinion regarding nature of injuries and had referred the

victim to District Hospital, Mau for further management.

14.P.W.5 Dr. A.K. Srivastava had conducted the post mortem and

has proved the post mortem examination report, in which he found

five ante mortem injuries on the person of deceased and has stated

that the cause of death was subdural hematoma on account of head

injuries. He found the fracture of left parietal bone and also found

fracture of 10th, 11th & 12th ribs of left side back. Membranes,

brain, pleura were found congested and peritonea and spleen was

found contused. He has stated that injuries of head and chest were

sufficient in the ordinary course of nature to cause death and it

could have been caused by lathi. He has also stated that if the

proper medical treatment would have been given to the deceased,

his life would have been saved.

15.P.W.6 Constable Dhanoday Pandey has stated in his

examination-in-chief that on 17.05.2006, he was posted as

Constable Clerk in police station Ghosi. The then In-charge Inspector

Sri Bachha Paswan submitted post-mortem examination report

no.106/2006 at police station and directed him to alter the offences

and in pursuance thereof, he altered the non-cognizable report

no.86/2006 U/s 323, 504, 506 IPC to Case Crime No.429/2006 U/s

304 IPC. He was also present at police station on 13.05.2006, when

Smt. Dhanmati informed in writing about the death of Ram Lakhan.

This prosecution witness has proved the relevant G.D. entry in this

regard.

16.P.W.7 Sub-inspector Sheetla Prasad Upadhyay has stated that

on 18.05.2006, he was posted in police station Ghosi as Sub-

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inspector (Civil Police) and the investigation of Case Crime NO.429

of 2006 was entrusted to him. He investigated the same and had

submitted a charge-sheet.

17.P.W.8 Constable Radhe Shyam Yadav has stated in his

examination-in-chief that on 28.04.2006, he was posted as

Constable Clerk at police station Ghosi. On 28.04.2006, at about

12.30 P.M. Ram Lakhan came to police station and gave oral

information about the incident and in pursuance thereof, a non-

cognizable report no.86/2006 u/s 323, 504, 506 IPC was registered.

This prosecution witness has proved the non-cognizable report to

the incident of Ram Lakhan.

18.P.W.9 Constable Mithilesh Kumar has stated that on

13.5.2006, he was posted as In-charge police outpost Amila of

police station Ghosi and he had conducted inquest of deceased Ram

Lakhan. This prosecution witness has proved the inquest report and

other police papers prepared by him.

19.In their examination U/s 313 Cr.P.C., the accused persons

have denied their involvement in the offence and have stated that

they have been falsely implicated on account of enmity and the

evidence adduced against them is false. An application 63Kha was

moved by accused Dayanand showing his date of birth as

07.05.1991 and claiming to be juvenile on the date of incident. He

produced the entries of Kutumb register mentioning his date of

birth, voter list and his medical examination showing his age on the

date of medical examination in between 20-21 years. The learned

Trial Court conducted enquiry and came to the conclusion vide order

dated 15.01.2009 that the accused Dayanand was juvenile at the

time of incident and his case was separated and the trial continued

for accused appellant Subhash and co-accused Gulab.

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20.From a careful scrutiny of the evidence available on record, it

is undoubtedly apparent that the witnesses of fact i.e. P.W.1 Smt.

Dhanmati and P.W.3 Smt. Gyanti @ Gyanmati are most natural

witnesses as P.W.1 Smt. Dhanmati is wife of deceased and her

presence with her husband Ram Lakhan in daytime at her house

cannot be doubted. Similarly, Smt. Gyanti @ Gyanmati is daughter-

in-law of the deceased and according to the normal course of daily

life, she is also supposed to be there in the house, as she is also a

housewife. The presence of both these witnesses has not been

seriously challenged by the defense. Even a suggestion has not been

given to P.W.1 Smt. Dhanmati that on the alleged date and time of

occurrence, she was not there in the house with Ram Lakhan. A half

hearted suggestion has been given to P.W.3 Smt. Gyanti @

Gyanmati that she was at her Maika on the date of the incident but

she has denied the same. Similarly no suggestion has been given to

P.W.2 that he was not there in his house when the incident took

place. A lengthy cross examination has been made from all the three

witnesses, but nothing could be achieved to raise slightest doubt

regarding the veracity of their deposition, which is otherwise natural

and truthful and is corroborated by medical evidence. The statement

of P.W. 1 Smt. Dhanmati corroborates other independent

circumstances and evidence available on record. In the medical

examination report of deceased Ram Lakhan prepared in Community

Health Center, Ghosi, the injured was shown to be brought by Smt.

Dhanmati and this fact has also been proved by P.W.4 Dr. D.N. Rai

in his deposition.

21.Learned defense counsel has tried to argue that the

investigation of the case is not proper and there appears cutting and

over-writing in police papers and in addition to this circumstance,

the registration of non-cognizable report by Ram Lakhan after third

day of the incident is also doubtful in as much as after receiving

such injuries, he would have been in a state of coma on account of

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subdural hematoma as suggested by the doctor and it is highly

improbable for him to reach to the police station and lodge the non-

cognizable report at his own instance.

22.This submission made by the learned Counsel for the accused

appellant prima facie appears to be attractive but a conspicuous

view over evidence available on record reveals its weakness. The

P.W. 1 has categorically stated in her statement that after medical

examination in District Hospital, the deceased Ram Lakhan was

taken back to his home and he remained at his home continuously

till his death. Not a single question has been put by the prosecution,

while cross-examining P.W.1 about the condition of the victim Ram

Lakhan when he was at home since 25.04.2006 to 13.05.2006.

There is not even a suggestion to this effect that after coming from

the hospital, the victim regained his health and was capable of

speaking something or not or whether he was bed-ridden or was in

a state of coma. On the other hand, there is specific averment made

by P.W.1 that the deceased went to police station and lodged the

non-cognizable report. This fact has been corroborated by Constable

Clerk P.W. 6 Dhanoday Pandey and P.W. 8 Constable Radhey Shyam

Yadav, who have proved the registration of non-cognizable report by

deceased Ram Lakhan and have also proved thumb impression of

the deceased on that report. The defense has tried to challenge

aforesaid facts by pointing out some cuttings and over writing in the

police papers and General Diary entries but such shortcomings has

been duly explained by the witness P.W. 8 Constable Radhey Shyam

Yadav. Hence, there is no such circumstance available on record,

which may raise doubt about the registration of the non-cognizable

report by the deceased himself. Rather it makes out an additional

factor in support of eye-witness account of the incident.

23.Thus, from the evidence available on record, this Court comes

to the definite conclusion that the prosecution evidence and the

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alleged eye-witnesses are natural and truthful and the prosecution

has succeeded beyond reasonable doubt in proving the participation

of the accused in commission of the offence.

24.With respect to the submission on behalf of appellant

regarding absence of intention or knowledge about inflicting deadly

injuries to the deceased, it born out from the statement of P.W.4 Dr.

D.N. Rai and from the medical examination report of deceased dated

25.04.2006 proved by him and from the post mortem examination

report proved by P.W.5 Dr. A.K. Srivastava and from his other part

of statement, it is established that multiple blows were inflicted to

the deceased by blunt weapon on the vital parts of the body and

this role has been specifically assigned to accused appellant

Subhash. The injury no. 5 shows multiple abraded contusions in an

area of 28 cm and 10 cm over left side of abdomen and chest and

underlying the seat of injuries, three ribs were found fractured and

many internal organs were found contused. In the head region, the

parietal bone was found fractured. The P.W.5 Dr. A.K. Srivastava

has specifically stated that the injuries received by the deceased in

his head and chest were sufficient in the ordinary course of nature

to cause death.

25.To ascertain element of knowledge regarding any criminal act,

whenever any person with conscious state of mind about his act

causes injury to another without any reasonable excuse, it is

required to be inferred that he was knowing about the outcome of

injuries so caused by him and like-wise, repeated blow of Lathi as a

weapon to an old age person on his vital parts like head, chest,

abdomen, etc. would certainly give inference that he was having

complete knowledge about its result. The term “intention” and

“knowledge” have been discussed and explained in catena of

judgments of Hon’ble Supreme Court and this court. While intention

requires guilty state of mind or what we say ill will, the law provides

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punishment for those acts too, which doesn’t have element of

“intention” but the awareness of the consequences of the act.

Without burdening the judgment with bunch case-laws, one

celebrated judgment of Hon’ble Supreme Court may be referred in

this regard. In the case of Jai Prakash reported in (1991) 2 SCC

32, the Hon’ble Supreme Court while referring to Virsa Singh’s

case, AIR 1958 SC 465 and Jagrup Singh’s case, AIR 1981

SC 1552 made observations about element of “knowledge”, which

are worth quoting and are recapitulated as follows: -

“In both these cases it is clearly laid down that the

prosecution must prove (1) - that the body injury is

present, (2) - that the injury is sufficient in the ordinary

course of nature to cause death, (3) - that the accused

intended to inflict that particular injury that is to say it was

not accidental or unintentional or that some other kind of

injury was intended. In other words Clause Thirdly

consists of two parts. The first part is that there was an

intention to inflict the injury that is found to be present

and the second part that the said injury is sufficient to

cause death in the ordinary course of nature. Under the

first part the prosecution has to prove from the given

facts and circumstances that the intention of the accused

was to cause that particular injury. Whereas the second

part whether it was sufficient to cause death is an

objective enquiry and it is a matter of inference or

deduction from the particulars of the injury. The language

of Clause Thirdly of S. 300 speaks of intention at two

places and in each the sequence is to be established by

the prosecution before the case can fall in that clause.

The 'intention' and 'knowledge' of the accused are

subjective and invisible states of mind and their

existence, has to be gathered from the circumstances,

such as the weapon used, the ferocity of attack,

multiplicity of injuries and all other surrounding

circumstances. The framers of the Code designedly used

the words 'intention' and 'knowledge' and it is accepted

that the knowledge of the consequences which may

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result in doing an act is not the same thing as the

intention that such consequences should ensue. Firstly,

when an act is done by person, it is presumed that he

must have been aware that certain specified harmful

consequences would or could follow. But that knowledge

is bare awareness and not the same thing as intention

that such consequences should ensue. As compared to

'knowledge', 'intention' requires something more than the

mere foresight of the consequences, namely the

purposeful doing of a thing to achieve a particular end.”

26.The Hon’ble Supreme Court further elaborated the discussion

by referring to Russell on Crime (12th edn. at page 41) and

observed as follows:

“………………………………………

……………………………………………………

"In the present analysis of the mental element in

crime the word 'intention' is used to denote the mental

attitude of a man who has resolved to bring about a

certain result if he can possibly do so. He shapes his line

of conduct so as to achieve a particular end at which he

aims."

It can thus be seen that the 'knowledge' as

contrasted with 'intention' signify a state of mental

realization with the bare state of conscious awareness of

certain facts in which human mind remains supine or

inactive. On the other hand, 'intention' is a conscious

state in which mental faculties are aroused into activity

and summoned into action for the purpose of achieving a

conceived end. It means shaping of one's conduct so as

to bring about a certain event. Therefore in the case of

'intention' mental faculties are projected in a set direction.

Intention need not necessarily involve premeditation.

Whether there is such an intention or not is a question of

fact. In Clause Thirdly the words "intended to be inflicted"

are significant. As noted already, when a person commits

an act, he is presumed to expect the natural

consequences. But from the mere fact that the injury

caused is sufficient in the ordinary course of nature to

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cause death it does not necessarily follow that the

offender intended to cause the injury of that nature.

However, the presumption arises that he intended to

cause that particular injury. In such a situation the court

has to ascertain whether the facts and circumstances in

the case are such as to rebut the presumption and such

facts and circumstances cannot be laid down in an

abstract rule and they will vary from case to case.

However, as pointed out in Virsa Singh case the weapon

used, the degree of force released in wielding it, the

antecedent relations of the parties, the manner in which

the attack was made that is to say sudden or

premeditated, whether the injury was inflicted during a

struggle or grappling, the number of injuries inflicted and

their nature and the part of the body where the injury was

inflicted are some of the relevant factors. These and

other factors which may arise in a case have to be

considered and if on a totality of these circumstances a

doubt arises as to the nature of the offence, the benefit

has to go to the accused. In some cases, an explanation

may be there by the accused like exercise of right of

private defence or the circumstances also may indicate

the same. Likewise there may be circumstances in some

cases which attract the first exception. In such cases

different considerations arise and the court has to decide

whether the accused is entitled to the benefit of the

exception, though the prosecution established that one or

the other clauses of S. 300 Indian Penal Code is

attracted. In the present enquiry we need not advert to

that aspect since we are concerned only with scope of

Clause Thirdly of S. 300 IPC.”

27.In view of above discussed position of law, it is established

beyond doubt that accused appellant Subhash had inflicted repeated

blows on the vital parts of the body of deceased Ram Lakhan and

the only inference, which can safely be drawn is that he was

knowing fully well the consequences of his act that it may cause

death of deceased Ram Lakhan and thus, he is guilty of the offence

U/s 304(II) Indian Penal Code.

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28.Lastly, the learned counsel for the defense has submitted that

in view of the facts and circumstances of the case, the sentence is

too severe and it may be reduced as may deem fit.

29.In this regard, the position of law as held by Hon’ble Supreme

Court in Sadha Singh And Anr. vs State of Punjab, (1985) 3

SCC 225 is as follows: -

“5. The next question is what should be the adequate

sentence. We must confess that what ought to be the

proper sentence in a given case is left to the discretion of

the trial court, which discretion has to be exercised on

sound judicial principles. Various relevant circumstances

which have a bearing on the question of sentence have

to be kept in view. Before deciding the quantum of

sentence the learned Sessions Judge has to hear both

the sides as required by the relevant provision of the

Cr.P.C.

6. In an appeal against the conviction, it is open to

the High Court to alter or modify or reduce the sentence

after confirming conviction. If the High Court is of the

opinion that the sentence is heavy or unduly harsh or

requires to be modified, the same must be done on well

recognised judicial dicta. Therefore, we may first notice

the reasons which appealed to the learned Judge to

reduce the substantive sentence awarded to the

appellants to sentences undergone.”

30.This Court has considered submission in this regard in the

light of the evidence, facts and circumstances of the case and finds

in the present case that the deceased who is an old man, aged

about 60 years, has been assaulted without any provocation. He

was beaten mercilessly by repeated blows of lathi. The accused

appellant Subhash is a healthy men aged about 40 years. The

accused chose vital parts of the body to inflict injuries. In these

circumstances the sentence of seven years rigorous imprisonment

appears to be appropriate and does not call for any interference.

18

31.The appeal fails and is, accordingly, dismissed.

32. Since the appellant is already on bail, the Chief Judicial

Magistrate, Mau is directed to ensure that the appellant is taken into

custody and sent in jail for serving out of his sentence awarded by

the trial court. The bail bond of the appellant is cancelled and his

sureties are also discharged.

33.A copy of this order be sent to the Chief Judicial Magistrate,

Mau immediately for necessary compliance of this judgment and

order.

(Manju Rani Chauhan, J.)

Order Date :- 18.9.2019

Sushil/-