KISHAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Shri Kishun, Ram Bali, Jai Shri and Jattan were convicted by learned Sessions Judge Ballia under section 302 read with section 34 Indian Penal Code for causing the death of Seru (aged 45) and under S. 323 read with section 34 Indian Penal Code for causing injuries to Sadaphal (PW 2), and were sentenced to undergo imprisonment for life on the former count and rigorous imprisonment for a period of one year on the latter court. The sentences in the case of each accused were ordered to run concurrently. On appeal the High Court of Allahabad affirmed the order of the trial court. The four accused thereafter came to this Court by special leave. The leave was, however, limited to the question whether the offence disclosed was murder or culpable homicide not amounting to murder or some lesser offence.

(2.) Ram Bali and Jattan accused are brothers. Likewise, Shri Kishun and Jai Shri accused are brothers and are the nephews of Ram Bali and Jattan. The prosecution case is that on February 13, 1964 about half an hour before sunset Bhagwati (PW 3), who is aged about 11, and his sister's son Kolahal were playing gucchi (a game played with paisa) in the Khalihan of Shri Kishun accused. Nandlal, son of Shri Kishun, came there and protested against the playing of the game of guchhi in his Khalihan. Nandlal also threw away in a neighbouring field the paisa with which the game was being played. A scuffle then took place between Nandlal and Bhagwati. Seru deceased and Sadaphal PW on coming to know of the aforesaid scuffle went to Shri Kishun's Khalihan and stopped the scuffle Nandlal then began to weep and went to his house. Seru, Sadaphal, Bhagwati and Kolahal made a search for the paisa which had been thrown away by Nandlal but could not find it. They then left for their houses. When they reached in front of the house of one Suraj Mal, the four accused, who were armed with lathis, accosted them. The accused protested against the beating given to Shri Kishun's son (Nandlal) and, at the same time, belaboured Seru and Sadaphal. Seru on receipt of injuries fell down on the ground and became unconscious. On alarm being raised, Sada Shiva (PW 4) and Rajaram (PW 5) reached there, whereupon the accused ran away. Sadaphal PW carried Seru on a cot to the police Station Deoria. On the way Seru was put in a riksha. The party then went to police station Deoria where first information report was lodged by Sadaphal PW at 7.05 p. m. the same evening. Seru and Sadaphal were then directed to go to the hospital for medical examination. Seru, however, died on the way. Post mortem examination on the dead body of Seru was performed by Dr. G. D. Agarwal on Feb. 14, 1964. The following five injuries were found on the body of Seru:

(3.) At the trial the plea of the appellants was that a she buffalo belonging to Seru and trespassed into the field of Shri Kishun accused. Jattan accused caught hold of the she buffalo and was taking it to the cattle pound when Seru and Sadaphal made an effort of snatch the she buffalo. They also assaulted Jattan with lathis. On alarm having been raised by Jattan, Jai Shri reached there and both of them used their lathis in self-defence. Evidence was led in defence of show that Jattan accused on being examined on February 18, 1964 was found to have two injuries on his person.