Satish Kashyap And Another vs State Of U.P.
2021 Latest Caselaw 2187 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
									Reserved 
 

 
Case :- CRIMINAL APPEAL No. - 3433 of 2007
 

 
Appellant :- Satish Kashyap And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kuldeep Johri,A.K.Gaur,M.K. Upadhyay,Manish Tiwary,Prabhat Pandey,Zafar Abbas
 
Counsel for Respondent :- Govt. Advocate
 

 
			With
 

 
Case :- CRIMINAL APPEAL No. - 3179 of 2007
 

 
Appellant :- Harish Kashyap
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ratnendu Kumar Singh,Kuldeep Johari,Prabhat Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bachchoo Lal,J.

Hon'ble Subhash Chandra Sharma,J.

(Delivered by Hon'ble Subhash Chandra Sharma,J.)

1. Both criminal appeals emanate from the common judgment and order dated 21.03.2007 passed by learned Additional Sessions Judge, Court No. 3, Pilibhit in Sessions Trial No. 98 of 2003 (State Vs. Harish Kashyap and two others) arising out of Crime No. 414 of 2002 under Section 302/34 IPC, Police Station Barkheda, District Pilibhit by which appellants have been convicted and sentenced under Section 302 read with Section 34 IPC with life imprisonment and fine of Rs. 5,000/- for each, in default of payment of fine to undergo additional imprisonment for a period of six months, therefore these appeals are heard and being decided together.

2. The prosecution case in brief is that on 17.11.2002 deceased Veerpal (brother of informant Harpal Kashyap) was invited by Lalu Kashyap where Veerpal, Gopal and Lalu Kashyap took food in the feast and thereafter Veerpal came back to his house. They were talking on the terrace, meanwhile Harish, Satish s/o Kallu r/o P.S. Barkheda came there and started to talk to Veerpal. Veerpal said to Harish that marriage of daughter of Rampal had been engaged with his brother Satish. Why did he use to stay in the house of Rampal, he would not let it go on. While conversation he went to door of Kalicharan with Harish and Satish. Meanwhile sound of fire was heard by informant and he went there. In the way, he met to Lalu and Gopal who also went with him. They saw that Harish was equipped with Kasi Satish with danda and Om Prakash with lathi. Harish, Om Paraksh and Satish were beating Veerpal. Informant, Lalu and Gopal interfered then accused persons went away towards their house. This incident took place at about 11 p.m. In the night. Injured Veerpal was brought to Government Hospital, Barkheda by informant with the help of Lalu and Gopal, where doctors declared him dead. He lay dead body under pakad tree in the compound of hospital and arrived at police station, lodged an F.I.R. by giving tahreer as crime no. 414 of 2002 under Section 302 IPC against Harish, Satish and Om Prakash. Entry of which was made in the G.D. Report no. 2. Investigation of the case was handed over to S.I. A.A. Khan who moved to the place of occurrence.

3. Inquest of deceased Veerpal was conducted by S.I. A.A. Khan on 18.11.2002 at 7 a.m. at P.H.C. Barkheda. Inquest report was prepared in presence of witnesses. Dead body was got sealed. Other essential papers were prepared and dead body was handed over to constable Sajjan Saran and V.C. Rajesh for post-mortem.

4. Dr. Prabhat Mishra conducted the autopsy on the dead body of Veerpal on 18.11.2002 at 3 p.m. & prepared report Exhibit Ka-6. Details of post-mortem are as under:

External Examination: Time after death about half day. He was aged about 40 years. Average built body. Rigor mortis was present both upper and lower limbs. Left eye swelling & closed and right eye half opened. Mouth half opened clotted blood present in side. Nostrils (both) no sign of decomposition.

Ante-mortem injuries:(1) Multiple lacerated wound in area 6 cm x 2 cm x bone deep on left side of forehead just above left eyebrow underneath frontal bone fractured. (wound showing depressed are due to fractured skull bone).

(2) Contusion over left upper eye on the lid 6 c.m. x 3 c.m. Left eye closed due to swelling.

(3) Abraded contusion 4 c.m. X 2 c.m. On left side of cheek, 5 c.m. From left eye lateral ankle.

(4) Incised wound 5 c.m. X 2 c.m. X bone deep on left side of skull, 7 c.m. Above left ear underneath left parietal bone cut & fractured.

(5) Multiple abraded contusion 7 c.m. X 1 c.m., 4 c.m. Below right elbow joint on posterior side.

(6) Abrasion 3 cm x 1 cm on posterior (dorsal) aspect of right palm.

(7) abrasion 1 cm x 1 cm on front of chest, 11 cm below right nipple.

On Deeper Dissection found: 1. Left side frontal bone fractured, membranes lacerated, brain were found lacerated (injury no. 1), large hemeolema present over nostrils and brain matters. 2. Left side parietal bone cut and fractured. Membranes & brain lacerated. Large hoemolema present over membranes and brain matter (injury no. 4).

Internal examination: Scalp left side frontal and parietal bone-fractured. Membranes-lacerated left side. Brain-lacerated with haemolema. Base-NAD. Vertebrae-NAD. Spinal card not exposed. Thorax, wall, ribs and cartilages-NAD. Pleura-NAD. Larynx trachea and bronchi-NAD. Both lungs-NAD. Paricardium-NAD. Both chambers empty. Vessels-NAD. Paritoneum-NAD. Cavity-NAD. Teeth 15/16-NAD. Oesophagus-NAD. Contents of stomach-200 ml. semi digested food material was present, fecal matter and gases were present in small and large intestine, Liver-NAD 100gm, gallbladder-one half full. Pancreas-NAD. Spleen-NAD, 160 gm, both kidneys-200 gm-NAD. Urinary bladder-empty. Generation organs-NAD. Cause of death coma due to antemortem injuries.

5. Investigating Officer visited the place of occurrence from where he collected blood stained and plain soil putting it into separate boxes sealed them and prepared fard Ext. Ka-3 on 18.11.2002. On 19.11.2002 on the instance of accused Om Prakash Kashyap one lathi was recovered from his house which was fitted with iron on its top, it was taken into custody and recovery memo was prepared in presence of witnesses. On 23.11.2002 accused Harish and Satish were arrested at about 11.30 o'clock and examined by Investigating Officer, they told him about Kasi and danda used in causing injuries to deceased Veerpal. On their instance kasi and danda with blood stains were recovered from their house. Recovery memo was prepared in presence of witnesses. These articles along with cloths of deceased found on his body were sent to Forensic Science Laboratory, Agra for examination.

6. After inspection of place of occurrence, Investigating Officer prepared the site plan on 18.11.2002 and recorded the statements of witnesses conversant to the facts of case, thereafter concluded the investigation and found a case, prima facie made out under Section 304 IPC. After preparing the charge sheet, he submitted it to the court concerned.

7. The cognizance of the offence was taken by learned Additional Chief Judicial Magistrate-I who provided copies of prosecution papers to accused persons in compliance of Section 207 Cr.P.C. and committed the case to the court of session for trial.

8. Learned trial court framed the charge under Section 302 read with Section 34 IPC on the basis of material on record and after giving opportunity of hearing to appellants. Charge was read-over and explained to them. They did not plead guilty but denied it and claimed for trial. Consequently, case was fixed for prosecution evidence.

9. The prosecution examined P.W.1 Harpal, P.W.2 Gopal as witnesses of fact. P.W.3 constable Om Prakash who prepared F.I.R. on the basis of Tahreer. P.W.4 Raja Ram @ Rajan who is witness of fard recory of lathi. P.W. 5 Dr. Prabhat Mishra who conducted post-mortem of deceased Veerpal and prepared the post-mortem report. P.W.6 Kaderam witness of fard recovery relating to danda. P.W.7 S.I. Ashif Ali Khan who conducted investigation of the case.

10. After conclusion of prosecution evidence statement of appellants were recorded under Section 313 Cr.P.C. in which they negated the statements made by witnesses before the court and said that witnesses had stated falsely due to enmity. Satish and Harish also said that they used to go to the house of Rampal which enraged deceased and his brother as a result, they had been implicated falsely. Likewise, appellant Om Prakash said that he is relative of Satish, therefore implicated falsely.

11. Appellants were given an opportunity for defence but they did not adduce any evidence in their support.

12. Learned trial Court heard the argument for prosecution as well as appellants, passed the judgment and order dated 21.03.2007 in which he found all of the appellants guilty under Section 302 read with Section 34 IPC and sentenced to them for rigorous imprisonment for life with a fine of Rs. 5,000/- each and in default of payment of fine to undergo six months additional imprisonment. Against this judgment and order, these appeals have been preferred.

13. We heard Sri Prabhat Pandey, learned counsel for the appellants as well as Sri Rajesh Mishra, learned A.G.A. for the State and perused the record.

14. Learned counsel for the appellants submits that the judgment and order passed by the learned trial court is against evidence available on record which is bad in the eyes of law and based on the testimony of interested witnesses those are relatives of deceased. No any independent witness has been examined, though, occurrence took place in residential area. Even the person in front of whose door occurrence took place has not been examined. Prosecution has failed to establish the motive of crime, therefore, no offence is made out against the appellants under Section 302 IPC. In spite of this it has come in the evidence of prosecution witnesses that deceased and appellants were under influence of intoxication of wine and there was altercation between them relating to the matter of appellants' (Satish and Harish) staying in the house of Rampal. There was no pre-meditation or plan in the minds of appellants to murder the deceased. If, it is found that prosecution has proved its case then it only goes to the extent of exception no. 4 of Section 300 which brings the case within the purview of culpable of homicide not amounting to murder and punishable under Section 304 IPC. In this way, appeals deserves to be allowed.

15. Learned A.G.A. opposed the submissions made by learned counsel for the appellants and urged that in this case, appellants caused injuries to the deceased with lathi, danda and kassi. The injuries inflicted were sufficient in the ordinary course of nature to cause the death of deceased. The case does not fall within the ambit of exception 4 to Section 300 in any way. Prosecution witnesses are relatives of deceased, it is true but on account of relation they cannot be said to be unreliable. They are eye witnesses of the case and they have named the appellants without any enmity. Such relative witnesses cannot conceal the truth and also the real culprits. On account of village (mohalla) rivalry, no person dares to become a witness in a case like murder. In such circumstances, the submissions made by learned counsel about non-examination of independent witness is not tenable. The evidence on record is sufficient on the basis of which learned trial judge has concluded the conviction of appellants which is right in the eye of law. There is no illegality or impropriety. The appeals are force less and liable to be dismissed.

16. From the submissions and perusal of record the following questions emerge for consideration of this Court as to whether motive is absent, witnesses are relatives and no independent witnesses have been examined. The injuries caused to deceased are not intentional but incident took place under the influence of intoxication of parties during altercation which brings the case under exception 4 of Section 300.

17. Before we deal with the contentions raised by learned counsel for the appellants, it will be convenient to take note of the evidence as adduced by the prosecution.

18. P.W.1 Harpal is the informant who deposed that on the day of incident, there was baptism ceremony of the son of Lalu Kashyap at his home. Veerpal was invited to the feast in the evening when Veerpal came back from the feast and on the terrace of Gopal, Lalu Kashyap and Veerpal were talking. He was present in his hut situated beside it. Meanwhile Harish and his brother Satish came there from the house of Rampal in the neighbor-hood and started talking to Gopal, Veerpal and Lalu. His brother Veerpal told Harish that the marriage of daughter of Rampal had been engaged with his brother Satish why did he stay in the house of Rampal and telling this bad, he forbade him from coming to the house of Rampal. After this Harish, Satish and Veerpal went towards the north direction while talking. After a while he heard the sound of fire and went towards that side with Lalu and Gopal. Where he saw that in-front of door of Kalicharan; Harish, Satish and Omprakash were beating to his brother Veerpal with kasi, lathi and danda. Harish was equipped with Kasi, Satish with danda and Om Prakash with lathi. It was about to 11 o'clock in the night, at that time electric bulb was lightening outside the house of Ram Charan. In the light of that bulb, he identified the accused persons when he along with two others went there and scolded to accused persons, they fled away. Injured Veerpal was brought to Government Hospital, Barkheda where doctor told them that Veerpal had died. Meanwhile, members of his family came there and leaving them with the dead body, he went to the police station and lodged an F.I.R. after getting tahreer scribed by Lalaram Tailor.

This witness was subjected to gruel cross-examination by the learned counsel for the appellants in which the witness has not disclosed any such fact which weakens his testimony. He has affirmed the fact of beating by the appellants-Satish, Harish and Omprakash.

19. P.W.2-Gopal deposed that there was baptism ceremony of son of Lalu Kashyap in his town in which Veerpal and he were invited in the feast. Veerpal and he came back after taking food in the feast and started talking on his terrace in presence of Lalu Kashyap, meanwhile Harish, Satish came there from the house of Rampal. Veerpal said to Harish & Satish that Satish had been engaged to be married in the house of Rampal and before marriage they (both) used to stay in his house which should not go on. At this conversation started among Harish, Satish and Veerpal, thereafter, all the three persons while talking went to the north direction, he (Gopal) and Lalu remained sitting on the terrace after a while sound of fire was heard and Harpal came out from his hut and asked about fire, thereafter they went towards the direction sound of fire was heard. As they reached to the house of Kalicharan, they saw Harish, Satish and Omprakash beating to Veerpal. Harish was equipped with Kasi, Satish with danda and Om Prakash with lathi. It was at about 11 o'clock in the night. There was an electric bulb light outside the house of Kalicharan. He identified the accused persons in that light. On scolding by them, accused persons fled away. Veerpal sustained so many injuries. He was brought to Government Hospital, Barkbheda where doctor declared him to have died.

This witness has also faced gruel cross-examination on behalf of learned counsel for appellants. During cross-examination, he has again stated that he along with Harpal and Lalu reached to the house of Kalicharan. He further stated that he saw Veerpal and appellants while standing there, meanwhile, marpeet began. No such statement has been made as to indicate his absence on the place of occurrence.

20. Both these witnesses remained intact during cross-examination. No such contradictions are visible in their statements which can make their testimony unreliable and unnatural. Minor contradictions are there but they are of cosmetic nature and not likely to affect the credibility of their testimony.

21. In the instant case, there is no enmity between the parties. They belong to near relation. There is no dispute about identification of appellants. Appellants have also not disclosed any enmity with the informant as well as with prosecution witnesses which might adversely affect their reliability and become an excuse for implicating them falsely while absolving real culprits.

22. There is not even an iota of evidence on record which may even remotely suggest that PW-1 and PW-2 had any grouse against the appellants for any cause to implicate them falsely.

23. Injuries on the person of deceased Veerpal were caused by kasi, lathi and danda as stated by P.Ws. 1& 2. Ext. Ka-6 is the post-mortem report in which multiple lacerated wound, contusion abraded contusion, incised wound were found on the body of deceased Veerpal and P.W.5 Dr. Prabhat Mishra has proved the injuries and told that injury no. 4 was caused with sharp object like kasi and injuries no. 1, 2, 3, 5 and 7 were likely to be caused with lathi and danda. All the injuries were caused at about 11 o'clock in the night on 17.11.2002. He opined that cause of death was coma due to ante-mortem injuries.

24. In this way injuries found on the body of deceased Veerpal are proved to have been caused with kasi, lathi and danda at about 11 o'clock in the night on 17.11.2002 and it corroborates the manner of causing injuries resulting into death as stated by P.W.1 & P.W.2. Thus, the eye witnesses account finds complete corroboration from the medical evidence on record.

25. There is no any inordinate delay in lodging the F.I.R. Occurrence took place at 11 o'clock in the night on 17.11.2002 and F.I.R. was lodged at 0.10 a.m. on 18.11.2002, after one hour and ten minutes. It cannot be said inordinate delay.

26. P.W.7 Sub-Inspector Ashif Ali Khan has proved the investigation of the case. Exhibit Ka-14 and Ka-15 are farad (recovery memo) of weapons lathi and kasi used in the commission of crime. He has also proved the bundles containing boxes of blood stained and plain soil. Ext. Ka-17 is report from Forensic Science Laboratory where kasi, lathi & danda, blood stained and plain soil were sent for analysis in which blood stains were also found on them. It proves that kasi, lathi, danda were used in commission of crime and place of occurrence was the same as stated by PW-1 and PW-2.

27. Learned counsel has also drawn attention of this Court towards the absence of motive to commit murder. He urged that the prosecution has failed to prove any motive on the part of the appellants to commit the crime.

28. It is true that there is no mention of motive in F.I.R. about the commission of crime. Even PW-1 and PW-2 have also not disclosed anything that became the root cause of committing murder by the appellants except conversation started on the part of Veerpal with the appellants in relation to their stay in the house of Rampal whereas marriage of daughter of Rampal was engaged with brother of Harish but there is no such principle or rule of law that where the prosecution fails to prove motive for commission of the crime, it must necessarily result in acquittal of the accused. Where ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of crime has not been proved.

29. In State of Himachal Pradesh Vs. Jeet Singh 1999 (38) ACC 550 SC, it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but it's corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it as it is almost an impossibility for the prosecution to unravel full dimension of the mental deposition of an offender towards the person whom he offended.

30. In Nathuni Yadav and others vs. State of Bihar and others 1997 (34) ACC 576, it was held that motive for committing a criminal act, is generally a difficult area for prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause unnecessarily need not be proportionately grave to grave crimes. It was further held that many a murders have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable.

31. In our opinion, in the facts and circumstances of the case the absence of an evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which certainly establishes the guilt of the accused. In the case of Thaman Kumar vs. State of Union Territory of Chandigarh 2003 (47) ACC 7 the Hon'ble Apex Court has reiterated the same view after taking into consideration the aforementioned cases.

32. The next limb of argument of learned counsel for the appellants is that the prosecution had examined highly interested and relative witnesses and they have not produced any independent witness in support of its case. No doubt the witnesses of fact examined in the case are real brother and nephew and both of them are clearly related to the deceased. Relationship itself is not a ground to reject the testimony of witness, rather he would be last person to leave the real culprit and falsely implicate any other person.

33. In the case of Brahm Swaroop and another vs. State of U.P. (2011) 6 SCC 288 the Hon'ble Apex Court in Para No.21 has observed as under

"merely because the witnesses were related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the real culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence."

34. The Court also referred cases of Dalip and others vs. State of Punjab A.I.R. (1953) SC 364; Masalti vs. State of U.P. (A.I.R.) 1965 SC 202.

35. In Masalti vs. State of U.P. (A.I.R.) 1965 SC 202, the Hon'ble Apex Court observed in Para No.14

"but it would, we think, be unreasonably to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on sole ground that it's partisan would inveriably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it's partisan cannot be accepted as correct.

36. It is common knowledge that village (mohalla) life is faction ridden and involvement of one or the other in the incidents is not unusual. One has also to be cautious about the fact that wholly independent witnesses are seldom available or are otherwise not inclined to comeforth. Lest they may invite trouble for themselves for future. Therefore, relationship of eye-witnesses inter se, cannot be a ground to discard their testimony. There is no reason to suppose the false implication of the appellants at the instance of the eye-witnesses. It would also be illogical to think that witnesses would screen the real culprits and substitute the appellants for them.

37. This Court has also made such observations in Para No.14 of Rameshwar and others vs. State 2003 (46) ACC 581.

38. In the instant case, P.W.1 is brother of deceased and P.W.2 is also relative of deceased and P.W.2 has disclosed in his cross-examination that deceased Veerpal was his uncle in relation. Being relative is not sufficient to discard their testimony. They are natural witnesses. They were present at the time of incident even on the terrace where all of them were talking in the village (mohalla) and also they went to the place where incident took place between the deceased and the accused-appellants. They have also identified the accused persons in the light of electric bulb in the night and also they are of the same town. So there is no any confusion in identification. Being relative, it can not be said that they would falsely implicated the appellants in the case, while leaving the real culprits free. There is no enmity between appellants and witnesses, therefore, no reason to implicate them falsely. In this way, these witnesses are wholly reliable & credible. Their testimony cannot be discarded only on the ground that they are relatives of the deceased. In this regard, the argument placed by learned counsel for the appellants cannot be accepted.

39. In our opinion the evidence on record clearly establishes the case of prosecution against the appellants beyond any shadow of doubt.

40. The next argument of learned counsel for the appellants is that the injuries caused to deceased were not intentional but incident took place under the influence of intoxication of parties. Deceased himself started conversation with the appellants who were silent and not having any weapon. During altercation assault was made in the course of a sudden quarrel. There was no pre-meditation and the appellants did not take undue advantage and had also not acted in cruel manner. In essence it was submitted that Section 302 IPC has no application and in this case Fourth Exception of Section 300 IPC applies.

41. In support of his argument he has relied the case of Pappu Vs. State of Madhya Pradesh Appeal (Crl.) 751 of 2006 decided on 11.07.2006 by Hon'ble Supreme Court and Chhabinath and others Vs. State of U.P. Criminal Appeal No. 8238 of 2007 decided on 22.5.2019 by this Court.

42. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.

43. In the light of above noted legal position, it would be expedient to examine the evidence on record.

44. P.W.1 Harpal stated that accused Harish and Satish came from house of one Rampal Kashyap and started talking to Veerpal, Gopal and Lalu. Deceased Veerpal asked Harish that the marriage of daughter of Rampal had to be engaged with Satish, why he used to go and stay in the house of Rampal. This was not good and he would not come to the house of Rampal. After this Harish, Satish and deceased Veerpal went to north direction while talking. Thereafter incident took place. On page 19 of paper-book, this witness has stated that deceased had drunk wine in small quantity and he told it to Investigating Officer. He has further stated on page 20 that there was altercation between Harish, Satish & Veerpal for 5-7 minutes. P.W.2 Gopal has stated that when Veerpal, Lalu Kashyap and he were talking on the terrace, Harish and Satish came out of house of Rampal. Veerpal said to them that the marriage of Satish had to be engaged in the house of Rampal and before marriage both of them stay there which was not good. On this there was altercation between Harish, Satish and Veerpal and all these persons went towards north direction while talking. He has further stated on page 23 of paper-book that he had disclosed it before the Investigating Officer that they had drunk wine in small quantity. On page 46 this witness had stated that Satish & Harish did not start any talk but Veerpal started to say that marriage was to be done with Satish why did Harish use to stay there. Meanwhile matter became worse. P.W.7 Ashif Ali Khan, Investigating Officer, has also stated that witness Gopal told him in his statement that incident took place under the effect of intoxication of wine.

45. So far as the injuries caused to the deceased resulting into his death are concerned, there are contusions and abrasions except injury no. 4 which is incised wound on the skull.

46. From the testimony as deposed by P.Ws. 1 & 2 it becomes clear that there was no previous enmity between the deceased and appellants. The incident took place suddenly. Deceased Veerpal was drunken at the time of occurrence. It was he who gave start to the incident. Appellants did not start talking. They were silent and having no any weapon. Deceased himself asked appellants that the marriage of daughter of Rampal was to be engaged with Satish but Harish also used to stay in the house of Rampal which was bad. He would not let it go further. On this there was altercation among them for 5-7 minutes which resulted in marpeet before the house of Kalicharan and causing bodily injuries to Veerpal who succumbed to injuries. All this resulted under influence of intoxication and in the spur of moment. There was sudden fight though no pre-meditation or pre-plan was in the minds of appellants to cause murder of deceased Veerpal. Neither appellants seem to have taken undue advantage nor acted in cruel or unusual manner. It appears that on the spot, the matter became so aggravated, passions ran so high that appellants became very aggressive and it resulted causing death of deceased. Thus, this case would fall in the purview of exception 4 to Section 300 IPC which brings the case under the category of culpable homicide not amounting to murder and punishable under Section 304 Part-I IPC with life imprisonment or imprisonment of either description for a term which may extend to 10 years and with fine.

47. We held the appellants guilty under Section 304 Part-I read with Section 34 IPC and would like to reduce sentence of the appellants, to meet the ends of justice, to ten years rigorous imprisonment and fine of Rs. 5000/- each and in default of payment of fine, to undergo six months additional imprisonment.

48. In case, the appellants have already served out the said period, they would be released forthwith, if not wanted in any other case.

49. These appeals are allowed to the aforesaid extent.

50. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.

 
Order Date :- 10th February 2021
 
A. Singh
 
			     (Subhash Chandra Sharma,J.)    (Bachchoo Lal,J.)