BHAGESHWAR Vs. STATE OF U P

JUDGEMENT

(1.) The instant appeal has been preferred by Bhageshwar appellant impugning therein the judgment and order dated 28. 9. 78 convicting the appellant under section 3q2 I. P. C. and sentencing him to undergo R. I. for life - recorded by Sri C. B. Jayaswal, IV Additional District and Sessions Judge, Azamgarh. Along with the appellant Bhageshwar, Basantlal and his- brother Bhagwat also stood trial, but they were puged for the charges and acquitted by the trial court. The topography of the scene where the occurrence took place is that in the field of Kanhiya Lal which lies at a distance of about forty paces from his house and jutting his field is the field of Basant Lal accused on the, eastern side, there stood the crop of Peas (Matar) in the north in a part while in another part of the said field in the south there was the crop of chilly. The events on the day of incident which had sparked off the occurrence in the instant case resulting in the loss of one life, are that on 14. 11. 75 at about 3 p. m. Bhageshwar (Ploughman) Halwaha of Basant Lal accused, while ploughing the field of accused Basant Lal, intruded on the territory of Kanhiya Lal complainant and caused damage to the Chilly crop by ploughing upon the same and also dismantled the 'mend'. Mata Prasad, P. W. 2 the son of Kanhiya Lal complainant, who had come to his field a short while ago, remonstrated strongly against this act. of high handedness of the. accused persons on which the accused persons got incensed and this led to an altercation between Bhages-shwar appellant on one hand and Mata Prasad on the other. Ram Chander (deceased) com plainant's another son, who dashed to the; scene of occurrence upon seeing the alterca tion having started with his brother Mata Prasad, also joined his brother. Meanwhile, Bhageshwar appellant and Bhagwat went to the house of accused Basant Lal and brought 'chailas' (wooden bisected sticks) from the Sahan of Basant Lal's house. Mean while, Basant Lal accused caught hold of the hands of deceased Ram Chander and on being instigated and incited by Basant Lal, accused. Bhageshwar and Bhagwat attacked Ram Chander by means of 'chailas' which they had brought from the Sahan of Basant Lal accused. Mata Prasad, P. W. 2, sustained injuries. During the course of fight. Kanhiaya Lal, complainant, his neighbours Kalpnath, Salik Ram, Ram Lagan and others were a attracted to the scene of occurrence and on being, challenged by the aforesaid witnesses, the assailants bolted, away from the site of occur rence. On sustaining Chaila's injuries, Ram Chander fell down on the ground and breathed his last spontaneously. The prosecution case further is that after the occurrence, the dead body of Ram Chander (deceased) was removed to the house of the complainant. Thereafter, Kanhaiya Lal wrote down a report at his house itself and went to the Police Station, where he lodged his written report. The Head constable Ram Pyare, P. W. 4, prepared a Chik Report on the basis of the aforesaid written report, and registered a case under Section 302 I. P. C. in the General Diary of the Police Station against all the aforesaid three accused. Mata Prasad, P. W. 2 was medically examined by Dr. R. R. Rai, P. W. 5 at the District Hospital Azamgarh on 16. 11. 75 at 6. 20 p. m. However, the Doctor did not find any visible injury on the person of the witness and he prepared a report mentioning complaints of pain in right hand, lower part back, neck and chest. Investigation of the case was taken over by Kailash Pati Pandey, who arrived at the scene of occurrence, and recorded the state ments of Kanhaiya Lal, Mata Prasad, Salik Ram and others. He also inspected the site of incident and prepared a site-plan. The Investigating Officer also prepared inquest on the dead body of the deceased at the house of the complainant itself and sent the same to mortuary for autopsy. Dr. C. K. Gupta conducted autopsy on the dead body of the deceased at 1. 00 p. m. on 16. 11. 75 and he found the following ante-mortem injuries on the person of the deceased: 1. Abraded contusion 1. 1/2" x 1/2" on the nose middle nosal bone fractured in pieces. 2. Lacerated wound 1. 1/2" x 1/3" skin deep on the left side of mandible 1" away from the mid-line inner aspect. 3. Contusion 1/2" x 1/4" on the left side of face just near the left outer angle of eyes. 4. Multiple contusions over the back of skull, five in number measuring 1/2" x 1/4" to 2"x1". 5. Multiple contusions on the right upper arm in the area of 4" x 2. 5". On internal examination, right occipital and parietal bone was found fractured under injury No. 4 Membranes were also found congested. Semi clotted blood was also present in the occipital region of middle fossa in left side base of the scalp. The Doctor opined that the death was caused due to head injury as a result of ante-mortem injuries on the person of the deceased. In defence, the case of the accused was one of denial-stating that they were falsely roped in on account of enmity and acrimony. However, the accused persons examined Ram Lal, D. W. T in their defence who is Pradhan of a neighbouring village namely, Navwara, turnk chara, who deposed that on the day of occurrence, after sunset he heard of the I murder of Ram Chander (deceased ). He went to the house of Kanhiaya Lal complainant and on enquiry, it was revealed that Ram Chander deceased had been done to death, while he was on way to his home. The learned Sessions Judge, Azamgarh, after considering the evidence on record-adduced in the case, arrived at a conclusion that the prosecution had succeeded in bringing are home the quilt to the accused and, accordingly he convicted and sentenced Bhageshwar as stated above at the same time acquitting Basant Lal and Bhagwat Lal accused persons. , The prosecution in support of its case, examined seven witnesses in all and out of them, Kanhaiya Lal P. W. 1 Mata Prasad P. W. 2 and Salik Ram P. W. 3 were examined as witnesses of the occurrence. Out of the aforesaid evidence, we first take up the testimony of Mata Prasad, P. W. 2 for scrutiny. Mata Prasad, P. W. 2 has dwelt upon the prosecution case in length. He is the son of Kan. haiya Lal, complainant (P. W. 1) and brother of Ram Chander (deceased ). He is also an injured witness. He deposed that on the day of occurrence at about 3 p. m. when he went to his field from his house, he found that crops of Peas and Chilly in his field had been ploughed upon and damaged by the accused persons and when he remons trated strongly against doing damage to the standing crop of peas and chilly, all the three accused gave a drubbing. On noticing that his brother was being slapped, Ram Chander (deceased) his brother ran to the scene and joined Mata Prasad in the fight with the accused person Upon which accused Bhageshwar and Bharwat went to the house of Basant Lal and Sahan of the aforesaid house, they uuught 'chailas' (wooden stick) and beset themselves on Ram Chander, inflicting blows by means of the aforesaid 'chailas' on being instigated and incited by Basant Lal. He further stated that at the time of attack on Ram Chander, Basant Lal accused had caught hold of the deceased' hands. The witness further deposed that 2 to 3 blows of 'chailas' were inflicted on Ram Chander, with the result that Ram Chander fell down and died instantaneously. It was also stated by him that when he inter vened to rescue Ram Chander (deceased), he was also attacked and pushed aside. He further stated that his injuries were examined in the hospital at Azamgarh. He further stated that he was given slaps but he did not receive any visible injury on his person. It was further stated by him that the occur rence was witnessed by Ram Lagan, Salik Ram Kalpnath as well. The evidence of Mata Prasad (P. W. 2) does not lack in intrinsic worth and fully lends assurance to the prosecu tion case. His persevere at the scene of occur rence is vouched from the fact that he had got drubbing during the fight and he was medically examined and injury report prepared. Hence his presence at the scene of occur rence is unimpeadable. The defence during the cross examination has not been able to spin out any discrepancy which may cast a cloud of suspicion on his giving a true account of events of the occurrence. Testimony of Mata Prasad is fully substan tiated by Kanhaiya Lal, P. W. 1. Kanhaiya Lal, P. W. 1 complainant of the instant case stated that on the day of occur rence in some parts of the field, crops of peas and chilly were standing and at about 3 p. m. his son Mata Prasad went to the field, he found that 'mend' of the field had been dismantled and the crops of peas and chilly had been ploughed upon and damaged. He further stated that his son Mata Prasad strong ly objected to the fiendish act of the accused persons whereupon an altercation ensued and on seeing that accused persons were giving slaps to Mata Prasad, his another son, namely, Ram Sunder (deceased) rushed to the scene to rescue his brother and joined in the altercation. Upon his joining the fight accused persons, namely, Bhageshwar and Bhagwat went to the house of Basant Lal and from the Sahan of the said house of Basant Lal, they brought 'chailas' (wooden bisected sticks) or. . , on being exhorted and incited, they attacked Ram Chander (deceased) by means of the aforesaid 'chailas'. He further stated that when Ram Chander was attacked by the aforesaid two accused persons, Basant Lal accused had caught hold of the hands of Ram Chander. He further stated that his son Mata Prasad tried to intervene in order to rescue his brother Ram Chander but he was also assaulted and pushed aside. It was further stated by him that the occurrence was witnessed by Ram Lagan. Kalpnath and Salik Ram.- He further stated that on sustaining injuries, his son Ram Chander succum bed to his injuries on the spot. After the occur rence he wrote down a report of the occur rence, went to the police station and lodged the same at the Police Station. From a scru tiny of the above evidence, we find that the testimony of the witness is consistent, disinterested and does not act in intrinsic worth and independence. In the entire grueling cross- examination of the witness, the defence has not been able to spin out any discrepancy which may show the witness to be prone to exaggeration or that his evi dence is demonstrably false. Now we descend on the testimony of Salik Ram, P. W. 4 for scrutiny. Salik Ram has lent full corroboration to the prosecution case deposing that on the day of occurrence, he was sitting at his door at about 3 p. m. and on hearing the alarm he was attracted to the scene of occurrence and on arriving at the scene of occurrence, he witnessed that a fight was going on between Basant Lal, Bhageshwar and Bhagwat on one hand and Ram Chander (deceased) on the other. He stated that in the first instance, Bhagwat gave a 'chaila blow in the face of Mata Prasad while Bhageshwar appellant assaulted Ram. Chander by means of Chaila. The witness also stated that appellant Bhageshwar did attack Ram Chander by means of Chaila but not with intent to kill him. He further stated that Bhageshwar accused gave 2 to 3 blows to Ram Chander deceased. He further stated that the altercation had been sparked off due to the damage done to the crops of com plainant Kanhaiya Lal and dismantling of 'mend' of the field. He further stated that he did not see the 'mend' being dismantled by anyone. This witness has also substantiated the prosecution case in all material particulars. He is and independent and disinterested witness having no animus against the appellant. The learned counsel for the appellant while taking us through the findings of the court below, contended that a scrutiny of the finding arrived at by the trial court would bring forth the fact that the prosecution evidence is not wholly reliable inasmuch as he pointed out that Bhagwat Lal, accused (since acquitted) who was equally to be blamed for inflicting injuries on the persons of the deceased along with the appellant was purged of the charges and acquitted by the trial court vis-a-vis the evidence being substantially the same against the appellant and it would be unsafe to single out the appellant for conviction and incrimina ting him with the guilt,at the same time setting at liberty the accused Bhagwat on the same evidence. We have devoted our thoughtful consideration to this aspect of the matter and we feel that the argument is substantially devoid of any merit inasmuch as the trial court purged Bhagwat Lal on the consideration of his advanced age observing that taking into account his old age he was not likely to have actively participated in the occurrence. Firstly adverting to the testimony of Salik Ram, P. W. 3, the witness did not state that Bhagwat had given any Chaila blow to the deceased, secondly the trial court either missed or mistook the salient features of the case in; arriving at a finding acquitting the accused -Bhagwat Lal. The reasons dished out are not convincing and cogent warranting acquittal of Bhagwat accused. So far as this Court is concerned, in the absence of ,any Government appeal having been filed by the State of U. P. impugning the order of acquittal, our hands are tied to venture upon upsetting the findings of acquittal against accused 'bhagwat inasmuch as we may observe, that participation of Bhagwat Lal in the assault on Ram Chander deceased cannot be ruled out, as he figures as an assailant right from the beginning and has been assigned specific by role by two witnessses, namely, Kanhaiya Lal and Mata Prasad. Now adverting to the findings arrived at by the trial court holding appellant Bhageshwar guilty we are fully satisfied that the trial court has rightly placed reliance on the prosecution case for the conviction of the appellant. Having gone through the finding of the trial court we find that the trial court has very competently picked out the grain of truth from the mass of Chaff. The next contention of the learned counsel is that the conviction of the appellant under section 302 I. P. C. is not sustainable inasmuch as from the evidence adduced by the prosecu tion, it does not appear that the two accused persons, namely, Bhageshwar and Bhagwat entertained any intention to kill the deceased. It was also pointed out by the learned counsel that the death of the deceased was as a result of single injury sustained on the head by the deceased and there is no evidence on record pointing to a particular accused, who had caused the fatal blow on the person of this deceased resulting in his instantan eous death and in this situation, at the most the offence for which the appellant can be incri minated with, does not go beyond the ambit of section 325 I. P. C. We have devoted our anxious consideration to this submission of the learned counsel and we feel that the appellant can at the most be convicted for the offence under section 325 I. P. C. instead of section 302 I. P. C. as held by the trial court. Under the circumstances, the conviction of the appellant recorded by the trial court is liable to be set aside and instead the appellant deserves to be convicted under section 325 I. P. C. read with section 34 I. P. C. inasmuch as per our finding as recorded in the preceding part of the judgment only three blows were delivered on the person of the deceased by two persons although the fact that only three blows were inflicted by two persons does not mitigate the offence. There was no animus or ran court between the parties preexisting the date of occurrence or for that matter with any member of the family Of the deceased. The occurrence started all of a sudden at the spur of the moment without premeditation. These are such circum stances which justify the acceptance of the prayer of the learned counsel for the appellant and prompt us to take a lenient view of the matter. In the last, the learned counsel invokes the compassion of this court and commiserating submits that the occurrence had taken place in the year 1975 and it is drawing to a close in the year 1989 and hence more than 14 years have since rolled by and during this period - both the parties in the village have been living in an amicably peaceful atmosphere with love and fellow feeling. There exists no more any trace of animus between the parties. It is further submitted that no useful purpose would be served if the appellant is again sent to Jail for serving out the sentence and in the alternative, the learned counsel proposes that instead of sending the appellant again to jail, he may be sentenced to pay the fine and the period of imprisonment already undergone by him. It is next contended by the learned counsel that the appellant is the only member earning for his family and if he is sent again to Jail, his family is likely to be on the brink of starvation. This submission of the learned counsel carries conviction with us. The learned counsel further submitted that the imposition of fine on the appellant shall not be considered by him as enhancement of sentence. In the result, the conviction and sentences recorded by the trial court against the appellant under section 302 I. P. C. are set aside and instead the appellant is convicted under section 325 I. P. C. read with section 34 I. P. C. and he is sentenced to pay a fine of Rs. 4000. 00 and the period of imprisonment already under gone by him in default of payment of fine, the appellant shall undergo R. I. for 4 years. The appellant is granted three months' time from today to deposit the aforesaid fine in the court of 4th Addl. Sessions Judge Azamgarh. The learned counsel for the appellant stated that the father and mother of Ram Chander deceased have since expired and Ram Chander deceased being unmarried, Mata Prasad P. W. 2 is the only surviving heir of Ram Chander deceased. Out of the fine deposited by the appellant, a sum of Rs. 3000. 00 shall be given to Mata Prasad, P. W. 2 (brother of the deceased) under section 357 Cr. P. C. The remaining sum of Rs. 1000. 00 shall go to State Exchequer. A copy of the judgment shall be supplied to the learned counsel for the appellant within a week from today on payment of usual charges. Office is also directed to send a copy of the judgment along with the record to the court of 4th Addl. Sessions Judge Azam garh within two weeks from today for com pliance. The IV Addl. Sessions Judge is further directed to send the compliance report to this court within four months from today. .