MARKANDEY AND MURARI Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Verma, J. The Sessions Judge, Gorakhpur in S. T No. 271 of 1979 con victed the appellant under Section 302, I. P. C. and sentenced him to life imprison ment. Through the same judgment co-ac cused Munai appellant in Criminal Appeal No. 457 of 1980 was convicted under Section 323/34, I. P. C. and sentenced to six months rigorous imprisonment. The appeal of Munai has abated due to his death. We have partly allowed the appeal of Markan dey, appellant have acquitted him under S. 302, I. P. C. but have convicted him under Section 304 (II) and have sentenced him to five years' rigorous imprisonment. The-reasons for our judgment are as follows :

(2.) APPELLANT Markandey and co-ac cused Munai are son and father. Deceased Chirkut was the elder brother of appellant Markandey. They lived in village Math Khem Karan situate within Police Section Sikriganj, district Gorakhpur. Chirkut being dissatisfied with his father and brother obtained a partition about one year before the occurrence and started living in the northern portion of the house alongwith his wife P. W. 2 Phoola Devi and four children. The appellant and his father lived in the southern portion. On 5. 5. 1979 at about 6. 30 p. m. the appellant's sister Smt. Gujrati placed a cot in the court-yard and started breast feeding her child. APPELLANT Markandey and his father Munai were taking their evening meals in the verandah situate inside the court-yard. Deceased Chirkut came at about 7. 00 p. m. into the court-yard outside and complained about obstruction in the passage to his portion. Soon thereafter exchange of abuses started. While this wordy quarrel was going on, Chirkut came out or the house followed by his wife Phoola Devi, P. W 2 and appellant and his father. Further wordy altercation and exchange of abuses took place between the two sides on the question of the sister of Chirkut as well as appellant Markandey placing cot and breast feeding her child causing obstruction to the passage (approach) to the portion of Chirkut. Wit nesses Bhagwati Gosai, P. W. 3 and Daroga Gosai, P. W 4 and Jokhai, Bharati and Somai arrived at the scene of occurrence. Suddenly Munai, the father of Chirkut orally exhorted Markandey to kill Chirkut whereupon Markandey brought out a spear from the Osara nearby and dealt blow on the chest of chirkut. It is alleged that a second blow was also given but the same missed the target. Chirkut went about 83 paces and then fell down on the cot of Tbofani and died. The two assailants ran away. Phoola Devi, P. W. lodged the report at 10. 00 p. m. after cover ing a distance of five miles. Investigation ensued. The post mortum on the dead body of Chirkut was performed on 6. 5. 1979 at 12. 15 Noon and the following injuries were found on the dead body. (1) Incised wound on left side of chest 1/2" x 1/6" lungs deep. 1 1/2" below medial end of left clavicle. (2) Multiple abrasion 1" 1/2" on the lateral side of the incised wound. Left pleura was punc tured and left lung was pierced and crossed. Oesophagus was punctured. Thoracic cavity was filled with blood. In the opinion of the doctor the injury was sufficient to cause death as some major artery under injury No. 1 would have been cut causing blood loss.

(3.) HOWEVER, the main contention of the learned counsel for the appellant is that the case of the appellant is covered under Sec tion 304 (II) I. P. C. because it was a case of grave and sudden provocation. We are in clined to accept this line of argument be cause we can visualise the circumstances under which the incident occurred. There should be no difficulty in taking into con sideration the mental state of the appellant in the back- ground of what had happened earlier. There is evidence that Chirkut was quarrel-some and he had forced his father Munai to partition the house. The house was partitioned actually one year before the incident and the northern portion was al lotted to Chirkut while the southern por tion was allotted to Markandey and his father. On the date of occurrence the real sister of Chirkut had come and she had placed a cot in the court-yard and was breast feeding her child while sitting on the cot. The cot was causing obstruction to the ap proach of Chirkut to his own portion. When he entered his house he started shouting and abusing. Naturally Markandey and his father Munai who were taking evening meals nearby protested and exchange of hot words ensued. The victim as well as as sailants then came out of the house and there also in spite of the persuasion of the persons of the locality, Chirkut continued exchange of hot words with his younger brother Markandey and his father Munai. The cause of the quarrel being the arrival of real sister of Chirkut and the placing of cot by her in the approach to Chirkut's portion, it is natural for Chirkut's father and brother to be provoked when Chirkut protested and started abusing them, on such a trifling mat ter. They would have expected that Chirkut would welcome his sister and atleast not protest for the action of his sister in sitting in a court- yard and breast feeding the chile so as to obstruct the approach of Chirkut's portion. Under these circumstances, out of annoyance and provocation because of the unusual behaviour of Chirkut, if Markandey gave one single spear blow to Chirkut at the exhortation of his father, his case would certainly be covered under section 304 (II) I. P. C.