Court No. 44 Criminal Appeal No. 1350 of 1982 1. Punni, 2. Babboo, 3. Badan Singh, and 4. Onkar ... Appellants Versus State of UP ... Respondent
Hon’ble Yatindra Singh, J
Hon’ble Surendra Singh, J
1. This is an appeal against the judgement of IIIrd Additional District and Sessions
Judge, Budaun (the ASJ) dated 21.5.1982 in ST No. 504 of 1980.
THE FACTS
2. An incident happened on 14.4.1980 at 11:00 hours in village Naushana, Police
station Binawvar, District Budaun. In this incident Moonga Lal, Ram Swarup and
Ram Bharose were injured. Subsequently, Moonga Lal (the Deceased) died on
15.4.1980 at 6:00 hours.
3. Bahori Lal (the Informant), resident of village Batiya Chauhan district Bareilly,
lodged an FIR on 14.4.1980 at 17:15 hours naming Punni, Babboo, Badan Singh
and Onkar (Appellants 1 to 4) (the Accused) as accused in the crime.
4. The allegations in the FIR are as follows:
Ram Swarup is the brother of the Informant. His in-laws are from village
Nausana, District Budaun. His wife Ganeshi inherited her parent’s property
including agricultural land that has been given on batai to Punni (Appellant-
1).
In the morning, Badan Singh (Appellant-3) came to their village and said
that wheat crop has been harvested and it would be distributed today. They
should come to take their share.
Ram Swarup, Ram Bharose, the Informant, and the Deceased went to
village Nausana to take their share in the wheat crop. The Informant told
Appellant-1 that he had misappropriated money and now has called them
for distribution of wheat. Due to this, there was altercation between the
parties;
The Deceased insisted that they would only leave after taking their share.
On this Appellant-1 to 4 came towards them armed with lathi. Babboo
(Appellant-2) hit lathi on the head of the Deceased because of which he fell.
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Thereafter other persons started hitting the Deceased, Ram Swarup, and
Ram Bharose with lathis;
On their shouting Sonpal, Ubhairai Singh, and others came and saved
them;
The Deceased has become unconscious and has been brought on bullock
cart. The report be lodged and appropriate proceeding be taken.
5. The parties are related to each other. The relevant pedigree are as follows:
Jodha Singh
_______________________|_________________________
| | | |
Lal Singh Bahori Lal Munga Lal Ram Swarup =Smt. Ganeshi
| (Informant) (Deceased) (PW-4)
Ram Bharose
(PW-2)
6. The Accused are related through Smt. Ganeshi. The relevant pedigree is as
follows:
________________________________
| |
Bhawani = wife = Ummedi
| |
Girdhari Punni
| (Appellant -1)
Ram Swarup = Ganeshi |
(PW-4) —————————
| |
Babboo Badan
(Appellant-2) (Appellant-3)
|
Onkar
(Appellant-4)
7. The police investigated the case and submitted the charge-sheet. The case was
committed to the session’s court and was numbered as ST No. 504 of 1980. The
ASJ framed the charge on 18.9.1981. The Accused were charged under sections
302 and 325, read with section 34 IPC.
8. Amongst others, the prosecution filed the following documents:
FIR dated 14.4.1980 Ex Ka-1;
Injury report of Moonga Lal Ex Ka-4;
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Injury report of Ram Swarup Ex Ka-5;
Supplementary report Ram Swarup Ex Ka-11;
Injury report of Ram Bharose Ex Ka-6;
Supplementary report of Ram Bharose Ex Ka-12;
Post mortem examination report of the Deceased Ex Ka-3;
Site Plan with the index Ex Ka-19.
9. The prosecution examined the following witnesses:
Bahori Lal (PW-1): Informant, eyewitness;
Ram Bharose (PW-2): Injured eyewitness;
Dr. MV Juael (PW-3): Doctor, conducted the post mortem;
Ram Swarup (PW-4): Injured, eyewitness;
Dr. VK Sharma (PW-5): Doctor, examined the injuries;
Mahendra Singh (PW-6): Head Constable, prepared the chik;
Ram Autar (PW-7): Investigating Officer (IO).
10. The Accused were examined under section 313 CrPC on 15.5.1982, They
denied their involvement in the incident and stated they were being involved due to
enmity. Appellants 1 to 3 also stated that Girdhari had executed a will in favour of
Smt. Ganeshi, Babboo (Appellant-2), and Badan Singh (Appellant-3) bequeathing
them land in equal shares.
11. Among others, the defence filed the following documents:
Police letter Ex Kha-1;
Police letter Ex Kha-2;
Police letter Ex Kha-3;
Khatauni of village Nausana Ex Kha-4;
Copy of judgement dated 30.9.1982 in case no. 136 section 229-B/176, UP
ZA&LR Act Ex Kha-5;
Copy of decree in case no. 136 section 229-B UP ZA& LR Act Ex Kha-6.
However, no witness was examined on their behalf.
12. The ASJ by his judgement dated 21.5.1982 convicted the accused and
awarded the following sentence:
Imprisonment for life under section 302 read with 34 IPC;
Four years rigorous imprisonment under section 325 read with 34 IPC.
Hence the present appeal.
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POINTS FOR DETERMINATION
13. We have heard Sri PN Misra and Sri Apoorv Misra counsel for the Appellants
and Sri AK Dwivedi AGA for the State. The following points arises for
determination:
(i) Whether the Appellants were present and participated in the incident;
(ii) If answer of first question is in affirmative then what offence was committed
by them;
(iii) In case the answer of the aforesaid questions is in affirmative then what
punishment should be given to them.
1st POINT: ALL PARTICIPATED IN THE INCIDENT
14. In order to prove its case, the prosecution has produced seven witnesses. Out
of these witnesses three are eyewitnesses and rest of them are formal witnesses.
Out of the three eye witnesses, two of them namely Ram Bharose (PW-2) and
Ram Swarup (PW-4) are injured witnesses.
15. The injury reports and supplementary injury reports of the injured eyewitnesses
are Ext Ka-5, Ka-6, Ka-11, and Ka-12. These injuries report indicate that because
of lathi injury bones were fractured. They have grievous injury. This is also
deposed by Dr. VK Sharma (PW-5) who examined the injuries. Their presence
cannot be doubted.
16. The incident happened at about 11:00 hours. The FIR was lodged at 17:15
hours. However, the distance between the place of the incident and the police
station is 11 km. According to the prosecution case as well as oral evidence, the
Informant also carried the injured Deceased on the bullock cart. Considering the
circumstances of the case, the delay in lodging the FIR is explained.
17. The eyewitnesses have deposed that:
They had gone to village Nausana for the distribution of harvested wheat
crop;
The incident happened at that place;
Ram Bharose (PW-2), Ram Swarup (PW-4), and the Deceased received
lathi injuries at the spot;
The Appellants were present, participated in the incident, and gave lathi
blows.
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18. There is nothing to disbelieve the oral evidence of the eyewitness. In our
opinion the prosecution has proved beyond reasonable doubt that the Appellants
were present on the spot and participated in the incident.
2nd POINT: APPELLANT-2 GUILTY U/S 304 PART-I IPC
19. The prosecution case in the FIR is that:
Smt. Ganeshi wife of Ram Swarup received agricultural land from her
parents that was let out on batai to Appellant -1;
Appellant-3 had come to inform them to come over to the village so that
wheat could be distributed;
The altercation began after the Informant made comment that Appellant-1
had misappropriated money.
20. The oral evidence of the eyewitnesses is also to the same effect as the
prosecution version except the reason of altercation has been deposed by Ram
Bharose (PW-2) only. He deposed that the Deceased told the Appellants that they
had misappropriated the wheat from the land belonging Smt. Ganeshi.
21. The parties are related to each other. Girdhari father of Smt. Ganeshi was not
only uterine brother of Appellant-1 but is also first cousin from his father’s side.
Admittedly Smt. Ganeshi’s land was on batai with Appellant-1. Appellant-3 had
come over to the village of the Informant side to request them to come over to the
village for distribution of the harvested wheat. There is nothing on record to show
that their relations were strained.
22. According to the prosecution version as well as oral evidence of PW-2 an
altercation started on the accusation made by Informant side that Appellants had
misappropriated the wheat belonging to Smt. Ganeshi. This might have taken the
serious turn as there seems to be some difference regarding extent of share of
Smt. Ganeshi. According to,
The prosecution, Smt. Ganeshi inherited the property of Girdhari;
The Appellants, Girdhari executed will in favour of Smt. Ganeshi, Babboo
and Badan Singh bequeathing the agricultural land in equal shares to them.
This is supported by the documents filed by them.
This shows that Smt. Ganeshi was co-tenure holder in the land but there was
difference regarding her share.
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23. Dr. MV Juael (PW-3) conducted the post mortem of the Deceased. The ante
mortem injuries recorded are as follows:
(i) Lacerated wound on had left side situated 11.5 cm above left ear size 4.25
cm x .5 cm x bone.
(ii) Abraded contusion 2 cm x 1 cm on maxillary prominence of right side 1 cm
below in outer angle of right eye.
(iii) Lacerated wound 1-3/4 cm x 3/4 cm on the (paper torn) between II and III
toe of right side foot.
(iv) Contusion 8 cm x 4 cm on front of chest upper third middle.
24. In the post mortem report it is mentioned that the death was caused due to
injury no. (i). The Doctor (PW-3) deposed the same thing in his oral evidence. This
injury was caused by Appellant-2. It is the prosecution case as well as deposed by
the eyewitnesses.
25. There is no evidence to show that the parties were in bad terms. Appellant-3
had gone over to inform the Informant side about distribution of wheat. There was
no evidence that there was any premeditation to commit the crime. To us, it
appears that the incident happened due to the accusation made by the Informant
side that wheat was misappropriated. It was due to this sudden provocation that
fight started and Appellant-2 hit on the head of the Deceased that caused injury
no.1. This was done without premeditation in a sudden fight in the heat of passion
upon a sudden quarrel without taking undue advantage or acting in cruel or casual
manner. Considering the circumstances, Babboo (Appellant-2) is guilty under
section 304 Part-I IPC and not under section 302 read with section 34 IPC.
26. Appellant-2 caused the injury no.(i) on the head of the Deceased due to the
sudden provocation and as such it cannot be said that there was any common
intention to commit any culpable homicide. However, from the evidence it is clear
that all the appellants gave lathi blows causing lathi injuries to the Deceased as
well as to the injured witnesses. There are injuries on the body of Ram Bharose
(PW-2) and Ram Swarup (PW-4). Their bones have been fractured. Dr. VK
Sharma (PW-5) is doctor who has examined the injuries. He has stated that
grievous hurt was caused to them. There are other injuries on the body of the
Deceased. In view of this at the most it can be said that there was common
intention to cause grievous hurt. In view of this, the conviction of the Appellants
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under section 325 read with section 34 IPC is maintained.
3rd POINT: PUNISHMENT
27. The age of the Appellants 1, 3 and 4 are as follows:
The statement of the accused were recorded on 15.5.1982 under section
313 CrPC. On that date, Punni (Appellant-1) was aged about 60 years.
More than 28 years had already passed. Today he must be 88 years old;
Badan Singh and Onkar (Appellant -3 and 4) were about 20 years and 16
years at the time of statement under section 313 CrPC. The incident
happened two years before. On the date of incident Badan Singh
(Appellant-3) must be around 18 years and Onkar was about 14 years of
age.
Considering the age of the Appellants-1, 3 and 4, they are sentenced to period
already under gone under section 325 read with section 34 IPC.
28. Babboo (Appellant-2) was aged about 45 years at the time of recording of
statement under section 313 CrPC. He caused the fatal blow and has been
convicted under section 304 Par-I IPC as well as section 325 read with section 34
IPC. Considering the circumstances of the case, he is sentenced to,
Ten years rigorous imprisonment under section 304 Part-I IPC; and
Period already under gone under section 325 read with section 34 IPC ;
CONCLUSIONS
29. Our conclusions are as follows:
(i) The Accused were present and participated in the incident;
(ii) Punni (Appellant-1), Badan Singh (Appellant-3) and Onkar (Appellant-4) are
acquitted under section 302 read with section 34 IPC but their conviction
under section 325 read with section 34 IPC is maintained. They are
sentenced to the period already undergone;
(iii) The conviction of Babboo (Appellant-2) is altered from section 302 read with
section 34 IPC to section 304 Part-I IPC. His conviction under section 325
read with section 34 IPC is maintained. He is sentenced to,
Ten Years rigorous imprisonment under section 304 Part-I IPC; and
Period already undergone under section 325 read with section 34
IPC.
30. In view of our conclusions, the appeal against the conviction and sentence
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dated 21.5.1982 in ST No. 504 of 1980 passed by the ASJ is partly allowed.
(i) The bail bonds of Punni, Badan Singh and Onkar (Appellants 1, 3 and 4) are
cancelled; their sureties are discharged; they need not surrender.
(ii) The bail of Babboo (Appellant-2) is cancelled. He will be taken into custody
to serve out the remaining part of the sentence.
With these observations the appeal is partly allowed.
Date: 2.7.2010
BBL