1

AFR

Reserved

Court No. - 45

Case :- CRIMINAL APPEAL No. - 232 of 2002

Appellant :- Surendra Harizan And Others

Respondent :- State of U.P.

Counsel for Appellant :- D.K. Srivastava,Hari Krishna Singh

Counsel for Respondent :- Govt. Advocate

Hon'ble B. Amit Sthalekar,J.

Hon'ble Piyush Agrawal,J.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1.Heard Sri D.K. Srivatava, learned counsel for the appellants,

learned AGA for the State and perused the records.

2.The present criminal appeal has been filed against the judgment

and order of the trial court dated 15.01.2002 passed by the

Additional District and Sessions Judge, (Fast Track Court No.2),

Azamgarh in S.T. No.227 of 1993 (State of U.P. Vs. Surendra and

Two Others) convicting and sentencing the appellants to undergo

imprisonment for life under Section 302/34 IPC and to pay a fine

of Rs.5,000/-. In default of payment of fine they shall undergo

further six months simple imprisonment.

3.The facts of the case are that a report was lodged by the informant

Mewati wife of the deceased Baldhari Harijan resident of village

Bajahuddinpur @ Jiudhipur, Thana Sidhari, District Azamgarh on

21.05.1992 at 11.30 am alleging that on 21.05.1992 she was

sitting in front of her house and her husband-the deceased had

come from Kanpur on the same day. She told her husband that

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with regard to the dispute about a temporary cottage (Madai)

regarding which there was a dispute about 7 months earlier with

accused persons (appellants herein) and three days prior to the

incident the accused Surendra Harijan, appellant no.1 and Parsad

Harijan, appellant no.2 had come to the house and caught her

father-in-law by his collar and shaken him up. Hearing this her

husband-the deceased remonstrated with the accused at the door of

his house whereupon accused Surendra rushed towards her

husband with a Jaraudha (bamboo stick with roots) and started

raining blows upon her husband as a result of which her husband

fell on the ground whereupon the deceased picked up a stick to

save himself and ran towards the house of other accused appellant

no.2- Parsad Harijan. Thereafter on the exhortation of Surendra,

the appellant no.2 Parsad Harijan picked up a Lathi and started

raining blows upon the deceased, as a result of which her husband

fell on the ground upon this the appellant no.3- Prabhawati alias

Dwiji, wife of Parsad caught the deceased by his testicles and

pulled it and also picked up a brick and started hitting the

deceased on his chest with it. This incident was witnessed by

P.W.2-Dhanpati wife of Mohan Harijan and P.W.3-Lekhraji wife

of Pancham and Suresh son of Munnar and on a hue and cry being

raised by the people the accused Surendra Harijan, Parsad Harijan

and Prabhawati @ Duiji ran away. When the informant and other

persons went to examine the deceased they found that he had

already died. This report was dictated by the informant to the

scribe Prabhakarnath Pandey son of Ramdev Pandey and marked

as Ext. Ka-1. On the basis of this report a First Information

Report, Ext. Ka-11 was lodged in the Thana Sidhari, District

Azamgarh.

4.The inquest, Ext. Ka-2 was conducted on 21.05.1992 at 12.20 pm.

and thereafter the body was sent for post mortem and the post

mortem, Ext. Ka-10 was conducted on 22.05.1992 at 3.00 pm. The

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doctor, P.W.5 has mentioned the time of death about one day old

and has noted the following injuries:

e`R;q iwoZ vkbZ pksVksa dk fooj.k

1& [kjkl fy, gq, fuyxw fu'kku 9 cm x 4 cm cka, rjQ lhus

ij ck,a fuiy ls 3 ls0eh0 uhps o e/; dh rjQ fLFkr FkkA

2& [kjkl fy, gq, fuyxw fu'kku 4 cm x 2 cm cka, rjQ psgjs

ij vkW[k ds rqjUr uhps FkkA

3& fuyxw fu'kku 15 cm x 8 cm nkfgus dU/ks ds Åijh fgLls

ij ekStwn FkkA

4& [kjkl fy, gq, fuyxw fu'kku 3 cm x 2 cm lj ij ukd ls

10 ls0eh0 Åij e/; js[kk esa FkkA

5& iksrk lwtk gqvk FkkA dkVus ij tek gqvk [kwu dk FkSyk\

ekStwn FkkA

nksuks ds lkFk gkbMªks'khy FkkA

6& ey}kj ds jkLrs jsDVe ckgj vk jgk FkkA

5. The informant, P.W.1, Mewati in her statement before the

court has reiterated the contents of the FIR, Ext. Ka-11 and her

written report, Ext. Ka-1 and stated that when she told her

husband about the incident that the accused Surendra and Parsad

had come to her house about 3 days prior to the incident in

connection with the dispute which had occurred regarding

construction of small cottage (Madai) on the mound (Bhita) and

had caught hold her father-in-law by his collar and shaken him up

the, deceased who was sitting about 4 steps at the door of the

house near the Gulmohar tree, where the informant was also

sitting, remonstrated with the accused Surendra and Parsad at the

door of the house. Upon this the accused Surendra picked up a

bamboo stick with roots (Jaraudha) and ran towards the deceased

and started beating him. The deceased received injuries and also

received a cut on the head upon which he ran towards the house of

the other accused Parsad where upon exhortation of appellant

no.1-Surendra, appellant no.2 Parsad picked up a Lathi and started

raining blows on the deceased upon which the deceased fell on the

ground. At the same time the appellant no.3-Prabhawati @ Dwiji

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caught hold the testicles of the deceased and pulled it. The

appellant no.3 also picked up a brick and hit the deceased on the

chest.

6.In her cross examination the witness has stated that there was a

dispute relating to construction of a small cottage (Madai) on the

mound (Bhita) which was her abadi and she and her husband were

also in possession of the said land and that for the last 11 years she

has seen the cottage over the said land. P.W.1 has also stated that

on the day of the murder the accused persons also pulled down the

cottage (Madai) and its roof (Chappar). P.W.1 also stated that her

husband was standing at the door of her house and remonstrated

with the accused with regard to pulling down his cottage (Madai)

whereupon accused Surendra picked up a bamboo stick with roots

(Jaraudha) and ran towards the deceased and started beating him.

In her cross examination the P.W.1 also stated that she fell upon

her husband in order to protect him and her bangles were also

broken on the spot whereupon the accused started beating her also

and she received injuries on her leg but there was no cut on her

body. She further stated that at about 3.00 o'clock in the night,

S.O., Thana Sidhari came to the village and took away the body of

the deceased in a police Jeep. She also stated that she has dictated

the report to Panditji, whose name she does not know but who was

known as Bhagwat Pandey, who used to often visit the village.

The report was dictated to Panditji who noted it down and read it

out to her which she took with her to the Thana and lodged the

first information report. This witness has also denied that the first

FIR was torn and thereafter another FIR was written.

7.P.W-2 is one Dhanpati Devi, who was declared hostile as she

could not disclose as to where the incident took place. She also

could not disclose whether the incident took place at 9.00 -10.00

am and she also denied having witnessed the incident.

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8.P.W.3 is Smt. Lakhraji wife of Pancham, who in her testimony has

stated that the incident had occurred at about 10.00 am and she

had witnessed the accused Surendra raining blows upon the

deceased- Baldhari with a Jaraudha (bamboo sticks with roots)

and the accused was also using abusive language. P.W.3 also

stated that to save himself the deceased ran towards the door of

Parsad where on the exhortation of Surendra the accused Parsad

picked up a Lathi and started raining blows upon the deceased, as

a result of which the accused fell outside the door of Parsad

whereupon the third accused, Prabhawati wife of Parsad caught

the deceased by his testicles and pulled it and also picked up a

brick and started hitting the deceased on his chest and after

hearing the hue and cry raised by the public all the accused ran

towards the West. She has also stated that the deceased died as a

result of the injuries received by him.

9.In her cross examination the witness P.W.3 has also stated that the

police took away the body in the police jeep around 10.00 am. She

has also stated that at the time of the incidence she was inside the

house and cooking and when she came out of the house she saw

the deceased outside the house of the accused Prabhawati alias

Dwiji. She did not notice whether the deceased was bleeding but

the deceased had fallen on the ground and had died and the family

of the deceased were crying over him.

10.In her cross examination, P.W.3 has also stated that at the time

when the deceased was assaulted and had died, P.W.1-Mewati was

also present there. This witness has clearly stated that it was

wrong to say that she had not noticed the incidence.

11.The Investigating Officer, Sri R.N. Maurya was examined as

P.W.4 who has proved the first information report and the G.D.

Entries as well as the inquest report. He has also proved the

statement of Dhanpati under Section 161 Cr.P.C. P.W.4 has also

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stated that first of all he prepared the case diary and at the end of

the sentence with ^^otgqn~nhuiqj mQZ fto/khiqj fnuakd 21-05-92** he has

further written ^^bu nksuks ds ekjus ls gekjs ifr pksV [kkdj uhps fxj iM+s fd

brus es ijlkn dh vkSjr izHkkorh mQZ nqbth us >iV dj gekjs ifr dk cStk

idM+ dj ,saB fn;kA rFkk ogha tehu ij iM+k bZaVk mBkdj lhus ij ekjus yxhA**

and stated that these lines though were mentioned in the FIR but

due to omission he did not note it in the case diary and that it was

noted by him later on.

12.The Investigating Officer further stated that he did not notice

whether there was blood stains on the clothes of the informant

Mewati or whether her child had received any injuries in the

assault as claimed by her but he has clearly stated that the body

had been sent for post mortem on the same day around 3.00 pm.

He has also stated that in the chick FIR the distance of the police

station from the place of the incidence has been mentioned as 4 ½

km whereas in the inquest report it was mentioned to be 5 km to

which the Investigating Officer stated that this note was made by

him on the information of the people present at the spot. As to

how the distance was not noted by him in the Panchayatnama

according to the first information report, the witness stated that

since he was investigating the matter so he asked the people

present at the spot and noted it in the Panchayatnama. The

Investigating Officer has also stated that the body of the deceased

was found to the South East of the house (hut) of the accused

Parsad. P.W-4 has also proved the site plan, Ext. Ka-9.

13.Dr. K.K. Singh, E.N.T. Specialist, Shiv Prasad Gupta Hospital,

District Varanasi has testified as P.W.5. He has also proved the

post mortem report as well as injuries sustained by the deceased.

14.The P.W.5 has also proved the post mortem report, Ext. Ka-10 and

has also stated that the death could have occurred at 10.00 am on

21.05.1992. With regard to Injury no.1 he has also stated that

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injury could have been caused by brick and lathi. As regard Injury

no.5 he has stated that swelling in the testicles and collection of

blood therein could have been caused by pressing of the testicles

and he has also confirmed that these injuries were capable of

causing death of the deceased instantaneously.

15.P.W.6, Constable, Lallan Rai has proved the FIR stating that when

the same was being written down he has posted in the police

station Sidhari, District Azmagarh and he had seen Head Moharrir

noting down the FIR and he also recognises his handwriting and

signature.

16.Sri D.K. Srivastava, learned counsel for the appellants submitted

that in the inquest report distance between the police station and

place of incidence has wrongly been mentioned as 5 km whereas

in the first information report it is mentioned as being 4 ½ km.

which was a serious error committed by the Investigating Officer.

17.In this regard we find that the Investigating Officer has himself

clarified that though in the first information report the distance has

been mentioned as 4 ½ km because he was investigating the

matter and he had asked the people present at the spot as to what

would be the distance between the place of incidence and the

police station and on being informed that it was about 5 km he

mentioned the same in the inquest report.

18.In our opinion aberration in mentioning half km in the distance

between the place of incidence and the police station instead of 5

km in the present case cannot be said to be fatal to the trial or to

the investigation. Distance in such cases is usually based upon

approximates and not on an actual mathematical measurements in

such cases there are bound to be slight discrepancies and

variations. However, we may hasten to add that discrepancy in the

distance between the place of the incident and the police station

may acquire relevancy only if the same is so vitally different as to

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cast a doubt as regards occurrence of the incidence at the place

where it is alleged to have actually occurred.

19.Sri D.K. Srivastava, learned counsel for the appellants next

submitted that the assault by appellant no.3- Prabhawati Devi alias

Dwiji wife of accused Parsad was added later on after the first FIR

was torn and the second FIR was written down.In our opinion,

there is nothing emerging from the original records to support the

contention of the learned counsel for the appellants nor is there

any overwriting in the Ext. Ka-1 to suggest manipulation or other

error. The submission of the learned counsel is simply

hypothetical and without any foundation.

20.The learned counsel for the appellants then submitted that the

scribe of the report, Prabhakarnath Pandey was not examined. In

our opinion, this would also not be fatal since an FIR is neither

substantive evidence nor is an encyclopedia of the facts; the

lodging of a report only sets the law into motion for purposes of

investigation.

21.In 1993 Supp (1) SCC 208, (Surjit Singh alias Gurmit

Singh Vs. State of Punjab) the Supreme Court in paragraph 8

has held as under:-

“8.The High Court turned down all the grounds. The High

court termed the reasoning given by the Trial Judge as

implausible. What weighed with the High Court was the

presence of Surjit Singh in the village up to 13.5.78 till 4.00

p.m., whereafter he allegedly commenced his journey to

join his unit. The High Court viewed that it was for the

appellant to prove that he left the village at 4.00 p.m. on

May 13, 1978 so as to be absent at the time of the occur-

rence and then having reached his unit on May 16,1978.

The appellant had cited one Naib Subedar Waryam Singh as

defence witness but gave him up. The two defence witness

cited by the defence were merely formal with regard to the

sending of certain complaints in the office of Senior

Superintendent of Police, Jullundur. The evidence of these

defence witnesses did not even remotely touch the alibi of

the appellant. With regard to the confusion about the name,

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the High Court observed that it would be uncommon and

unreasonable for two brothers to be having the same name.

The appellant does have a brother named as Gurmit Singh

and yet strangely the appel- lant assumes his brother's name

to be Gurmit Singh. Taljit Singh PW 2 had deposed that the

appellant has read only up to 4th or 5th class whereas

Gurmit Singh was a Matriculate and that when the appellant

sought recruitment in the Army he gave his name as Gurmit

Singh and utilised the matricula- tion certificate of his

brother Gurmit Singh. He also de- posed that later when

papers for verification had come to the village the appellant

had approached Mohinder Singh deceased that he should

help him by telling the Enquiry Officer that his name was

Gurmit Singh and he was a matricu- late. This evidence was

totally overlooked by the Trial Judge for reasons we cannot

understand. The High Court used this evidence against the

appellant. The High Court had gone on to observe, and in

over view rightly, that the appellant was known as Surjit

Singh and was known as such even for the purpose of Army

records. He went with the assumed name Gurmit Singh, for

the reasons explained by the prosecution in the statement of

Taljit Singh PW 2. It is noticeable that in the appeal against

his acquittal, service of the appellant was effected in the

name of Surjit Singh alias Gurmit Singh through the

Military authorities. The High Court observed that this

particular was suggestive that in the force as well he was

known as Surjit Singh. The appellant having taken up a

positive plea of alibi, he could prove it from his travel

papers which have been checked and suitably endorsed

upon by the railway authorities and/or the Army authorities

on his joining his unit.The appellant miserably failed to

discharge that burden. In this situation the aforesaid

misdescription/ omissions in the FIR about the number of

shots fired and the absence of Taljit Singh's injuries or the

appellant being not described as a military man become of

lesser importance. First Information Report is not an

encyclopedia of the entire case and is even not a substantive

piece of evidence. It has value, no doubt, but only for the

purpose of corroborating or contradicting the maker. Here

the maker was a young woman who had lost her husband

before her very eyes. The omission or misdescription

of these details in the FIR which was recorded most

promptly, within three hours of the occurrence, would not

tell on the prosecution case or the statements of the eye-

witnesses with regard to the participation of the appellant in

the crime. He had taken a leading and prominent part in

spearheading and committing it. For these reasons, we are

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of the view that the High Court was right in convicting the

appellant on giving cogent reasons to demolish the

reasoning of the Trial Judge and adding thereto reasons of

its own.”

In (2017) 6 SCC 1, Mukesh Vs. State (NCT of

Delhi) the Supreme Court in Paragraph 55 has held as

under:

“55. As far as the argument that the FIR does not contain

the names of all the accused persons is concerned, it has to

be kept in mind that it is settled law that FIR is not an

encyclopedia of facts and it is not expected from a victim to

give details of the incident either in the FIR or in the brief

history given to the doctors. FIR is not an encyclopedia

which is expected to contain all the details of the

prosecution case; it may be sufficient if the broad facts of

the prosecution case alone appear. If any overt act is

attributed to a particular accused among the assailants, it

must be given greater assurance. In this context, reference

to certain authorities would be fruitful.”

22. The FIR has been proved by the Investigating Officer- R.N.

Maurya who has also clearly stated that the words ^^bu nksuks ds ekjus

ls gekjs ifr pksV [kkdj uhps fxj iM+s fd brus es ijlkn dh vkSjr izHkkorh mQZ

nqbth us >iV dj gekjs ifr dk cStk idM+ dj ,saB fn;kA rFkk ogha tehu ij

iM+k bZaVk mBkdj lhus ij ekjus yxhA** were added in the case diary later

on as due to omission he had not noted in the case diary and that it

was being noted by him later on.

23.We have gone through the original records and we have noticed

that the lines as quoted hereinabove have been added by the

Investigating Officer separately in the case diary but we also find

that the same facts have already been stated in the written report

Ext.Ka-1 and also in the FIR, Ext. Ka-11 therefore it is not a case

of embellishment or improvement of the facts as narrated in the

first information report, therefore, the submission of the learned

counsel for the appellants to that effect is thoroughly

misconceived.

24.We also find that there is nothing to support the submission of the

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learned counsel for the appellants that there was initially a first

FIR which was torn and destroyed and thereafter a second FIR

Ext. Ka-11 was written down later. We find that the written

report Ext. Ka-1, which is on record has been proved by Smt.

Mewati the informant which is of the same date as the date of

incidence i.e. on 21.05.1992 clearly mentioning the time of the

incidence as 10 am. The FIR, Ext. Ka-11 is a prompt FIR having

been lodged at 11.30 am same day as the incidence i.e. on

21.05.1992 and in that also the time of the incidence has been

mentioned as 10.00 am.

25.In this view of the matter we find that the learned counsel for the

appellants has failed to establish a foundation for his submission

that there was a second FIR after destroying the first FIR.

26.Sri D.K. Srivastava, learned counsel for the appellants then

submitted that initially the case was registered by the police under

Section 304 and 504 IPC but subsequently it was converted into

under Section 302/34 IPC which was suggestive of a second FIR.

27.The submission of the learned counsel must necessarily be

rejected at the outset since in the written report Ext.Ka-1 as well

as the FIR, Ext. Ka-11 itself it has been mentioned that the

deceased Baldhari had died as a result of the assault by Lathi and

Jarautha (Bamboo stick with root) and of Prabhawati catching

hold the testicles of the deceased and pulling it. Dr. K.K. Singh,

P.W.5 who conducted the post mortem has also mentioned the

cause of death as due to ante mortem injuries having been caused

by injury no.1 and injury no.5 and that these injuries were capable

of causing instantaneous death.

28.Learned counsel for the appellants next submitted that the P.W.1

informant has not assigned any actual role to the appellant no.1-

accused Surendra. The submission is without any basis and may

be rejected outright since in the testimony of P.W.1 she has clearly

12

stated that the accused Surendra had picked up a Jarautha

(bamboo stick with roots) and was beating her husband on account

of which he received injuries and cuts on the head. The P.W.1 has

also stated that after the deceased had fallen on the ground the

accused Surendra and Parsad pinned him down on the ground with

bamboo stick. Medical Officer, P.W.5, Dr. K.K. Singh has also

testified that it was possible for injury no.1 to have been caused by

brick and by Lathi.

29.Learned counsel for the appellants then submitted that P.W.1 while

testifying had forgotten whether the incident was a day light

incident or whether a night incident and has referred to the

evidence in cross-examination. We may refer to that part of the

statement of P.W.1 in cross examination where she has stated that

she had rushed to the police station to lodge a first information

report and had reached at 12.00 o'clock night but later on she has

corrected herself and stated that at 12 o'clock in the day. Minor

aberration or slip of tongue while making the statement which is

immediately corrected by the P.W.1 then and there cannot be cast

as a conflict in testimony. P.W.1 is quite clear that the incident had

occurred at 12 o'clock in the day. In the FIR, Ext. Ka-11 and

written report, Ext. Ka-1 she had stated that it had occurred at 10

am. On 21.05.1992. The FIR was lodged at 11.30 am on the same

day. Minor errors in details relating to the exact timing of an

incident like the one in the present case particularly when a person

is not looking at a watch but watching a fatal incident being

executed cannot be said to vitiate the trial.

30.Learned counsel for the appellants next submitted that the

testimony of P.W.2- Dhanpati Devi who is stated to be an eye

witness is most unreliable as she has been declared a hostile

witness.

31.We may note that Dhanpati Devi has stated that she does not know

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where the incident took place. She also could not disclose whether

the incident took place at 9.00 -10.00 am and she has also stated

that she has not witnessed the incident and it is for this reason she

has been declared hostile. In the circumstances her testimony

becomes completely useless but we have to see whether the

prosecution has still succeeded in proving their case.

32.The testimony of P.W.3- Smt. Lakhraji is very clear and candid.

P.W.3 has in clear terms stated that she saw the accused Surendra

with a Jaraudha assaulting the deceased and using abusive

language. She has also stated that the deceased in order to save

himself ran towards the door of the second accused Parsad where,

on the exhortation of Surendra, accused Parshad assaulted him

with a Lathi whereupon the deceased fell on the ground outside

the door of Parsad and just then the third accused Prabhawati alias

Dwiji rushed towards the deceased and pulled his testicles so

much so that he died on the spot.

33.Learned counsel for the appellants submitted that the P.W.3 was

not an eye witness as she has stated that at the time of incident she

was in the house cooking and when she came out she saw the

deceased lying dead outside the door of Parsad.

34.We find from the testimony of Lakhraji that a direct question was

put to her that she has not seen the incident to which the witness

replied that it is wrong to say that she has not witnessed the

incident. Merely because she was cooking in the house also does

not go to show that she could not have witnessed the incident as

no question was put to her by the defence in this regard that if she

was inside the house cooking she could not witnessed the incident.

The Supreme Court in (2013) 7 SCC 278 (Ganga Singh

Vs. State of Madhya Pradesh) in paragraphs 12 and 13 has held as

under:

“12. According to Mr. Mehrotra, however, PW-5 is not a reliable

14

witness as she has made a significant omission in her evidence by not

stating anything about the seizure of the blouse, dhoti and broken

bangles which were made in her presence. But we find that no

question has been put to PW-5 in cross-examination with regard to

seizure of the blouse, dhoti and broken bangles in her presence. If the

appellant’s case was that PW-5 cannot be believed because she made

this significant omission in her evidence, a question in this regard

should have been put to her during her cross- examination. To quote

Lord Herschell, LC in Browne vs. Dunn [(1893) 6 R 67]:

“……it seems to me to be absolutely essential to the proper

conduct of a cause, where it is intended to suggest that a

witness is not speaking the truth on a particular point, to

direct his attention to the fact by some questions put in cross

examination showing that the imputation is intended to be

made, and not to take his evidence and pass it by as a

matter altogether unchallenged, and then, when it is

impossible for him to explain, as perhaps he might have

been able to do if such questions had been put to him, the

circumstances which it is suggested indicate that the story

he tells ought not to be believed, to argue that he is a

witness unworthy of credit.”

13. Section 146 of the Indian Evidence Act also provides that when a

witness is cross-examined, he may be asked any question which tend

to test his veracity. Yet no question was put to PW-5 in cross-

examination on the articles seized in her presence. In the absence of

any question with regard to the seizure of the blouse, dhoti and

broken bangles in presence of PW-5, omission of this fact from her

evidence is no ground to doubt the veracity of her evidence.”

35. Sri D.K. Srivastava, learned counsel for the appellants

submitted that the chik FIR has not been proved as Head Moharrir

Vishwanath Yadav was not examined.

36.We may note here that the Investigating Officer has proved the

first information report and P.W.6, head constable Lallan Rai has

also in his testimony stated that on the date of the incident he was

posted in the police station Sidhari, Ghazipur and the first

information report was noted down in his presence by Sri

Vishwanath Yadav whose writing and signature he has identified

as he was familiar with the same. Therefore, we are of the view

that even if Vishwanath Yadav was not produced as a witness this

was not fatal to the trial for the reason that it was a broad day light

incident which has been proved by P.W.1, Mewati. P.W.3 Smt.

Lakhraji. The inquest report has been proved by the Investigating

15

Officer and the post mortem report, Ext. Ka-10 has been proved

by P.W.5, Dr. K.K. Singh. We find that the testimony of P.W.1 and

P.W.3 and the findings in the post mortem Ext. Ka-10 corroborate

and support the facts as stated in the written report, Ext. Ka-1 and

FIR, Ext. Ka-11 as well as the Site Plan, Ext. Ka-9 and there is no

contradiction in the same. It was a case of a prompt and noted

FIR. The body was recovered by the Investigating Officer and sent

for post mortem on the same day. We are therefore satisfied that

the prosecution has succeeded in proving the guilt of the accused.

37.Learned counsel for the appellants further submitted that the

accused have wrongly been convicted under Section 302 IPC for

murder although there was neither intention nor knowledge could

be attributed to the accused for commission of murder and he

further submitted that it was a case to which the appellants would

be entitled to the benefit of Exception-1 to Section 300 IPC which

reads as under:

Exception-1.- When culpable homicide is not

murder.- Culpable homicide is not murder if the offender,

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

sudden provocation, causes the death of the person who

gave the provocation or causes the death of any other

person by mistake or accident.

The above exception is subject to the following

provisos:-

First.- That the provocation is not sought or

voluntarily provoked by the offender as an excuse for

killing or doing harm to any person.

Secondly.- That the provocation is not given by

anything done in obedience to the law, or by a public

servant in the lawful exercise of the powers of such public

servant.

Thirdly.-That the provocation is not given by

anything done in the lawful exercise of the right of private

defence.

Explanation.- Whether the provocation was grave and

sudden enough to prevent the offence from amounting to

murder is a question of fact.

16

38.The submission of the learned counsel for the applicant has

substance in as much as in the written report Ext.Ka-1 as well as

in the first information report Ext.Ka-11 it has been clearly stated

by the informant Mewati that her husband had come from Kanpur

on the date of incident and while they were sitting outside the door

of her house under the Gulmohar Tree she told him that with

regard to the dispute relating to the temporary cottage (Madai) on

the Bhita the accused Surendra and Parsad had came to her house

in the absence of her husband and caught her father-in-law by the

collar and shaken him up. She further stated that hearing this her

husband rushed to the door of his house and started shouting and

remonstrated with the accused persons, whereupon the accused

Surendra rushed towards the deceased with a Jaraudha (bamboo

stick with roots) and started beating him. The deceased in order to

save himself rushed towards the house of Parsad where, on the

exhortation of Surendra the accused Parsad also came out with a

Lathi and started raining blows upon the deceased as a result of

which the deceased fell on the ground and then the third accused

Prabhawati caught hold of the deceased's testicles and pulled it

resulting in his death.

39.Learned counsel for the appellants therefore submits that the

assault upon the deceased by the accused was as a result of the

abuse being hurled in a public place at the accused by the

deceased stating at the door of his house and that the incident was

neither preplanned by any of the accused nor executed with the

common intention to kill the deceased.

40.Learned counsel for the appellants further submitted that though

P.W.5, the Dr. K.K. Singh has opined that Injury no.5 i.e pulling of

the testicles of the deceased by the third accused would have

resulted in his instantaneous death it cannot be said that the

appellant no.3-Prabhwati alias Dwiji had intended or planned to

17

actually pull the testicles of the deceased with the intention to kill

him and that whatever happened, happened in the heat of the

moment on the provocation of the deceased himself.

41.We find that the story as narrated by the informant P.W.1 that there

was a dispute about 7 months earlier with regard to the temporary

cottage (Madai) on the Bhita over which the informant and the

deceased were in possession and that three days prior to the

incident the accused Surendra and Parsad had come to her house

and caught her father-in-law by collar and roughed him up and

shaken him up and on the date of the incident when the deceased

returned from Kanpur and she narrated this fact to her husband he

went to the door of the house and started abusing and

remonstrating the accused upon which the accused Surendra

picked up a Jaraudha (bamboo stick with roots) and rushed

towards the deceased and started thrashing him; the deceased

thereafter in order to save himself ran towards the house of Parsad

where on the exhortation of Surendra, accused Parsad also picked

up a Lathi and started raining blows upon the deceased after this

the third accused Prabhawati wife of Parsad caught hold of the

testicles of the deceased and pulled it as a result of which the

deceased died on the spot. This narrative is sustained in the

written report, Ext. Ka-1, the FIR, Ext. Ka-11, in the testimony of

P.W.1. P.W.3. in her testimony has also testified that at the time of

the incident she was inside in her house but hearing the noise of

abuse she came out to see what had happened and saw accused

Surendra assaulting the deceased with a Jaraudha and when the

deceased rushed toward the door of the house of Parsad with

exhortation of Surendra, accused Parsad took up Lathi and started

assaulting the deceased whereupon he fell on the ground and then

the third accused Prabhawati, wife of accused Parsad caught the

deceased by his testicles and pulled it and thereafter picked up a

brick and hit it on the chest of the deceased. From this narrative

18

what emerges is that the incident was neither preplanned by the

accused nor was it executed with the intention to cause his death

but was caused due to shouting and remonstrations by the

deceased himself at the accused.

42.We are therefore of the view that the accused persons have

wrongly been convicted under Section 302 IPC when in fact they

were entitled to the benefit of Exception-1 of Section 300 IPC and

therefore we are of the view that the appellants would succeed on

the point that the incident occurred due to grave and sudden

provocation offered by the deceased himself. We therefore modify

the conviction and sentence of the appellants under Section 302

IPC, awarded by the trial court and instead hold them guilty of an

offence under Section 304 Part I IPC and sentence each of them

imprisonment for 10 years with fine of Rs.5000/- each, and in

default of payment of fine they shall undergo a further simple

imprisonment of six months.

43.The appellants Surendra Harijan, Parsad Harijan and Prabhawati

alias Dwiji are on bail. The C.J.M. Azamgarh is directed to take

them into custody forthwith and send them to jail to serve out the

sentence awarded by us as aforesaid.

44.Accordingly, the Appeal is partly allowed.

Order Date :- 06.12.2019

N Tiwari