Tefa Ram And Anr. vs State Of U.P.
2022 Latest Caselaw 84 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Case :- CRIMINAL APPEAL No. - 1339 of 2018
 

 
Appellant :- Tefa Ram And Anr.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dharm Jeet Singh, Hari Bans Singh,Om Prakash Singh, Pradeep Kumar Rai, Prakhar Saran Srivastava,Shashi Bhushan Kunwar
 
Counsel for Respondent :- G.A.,S.B. Singh
 
Connected with
 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 40 of 2020
 

 
Appellant :- Pavnesh Yadav
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Appellant :- S.B.Singh
 
Counsel for Respondent :- G.A.,Shashi Bhushan Kunwar
 

 

 
Hon'ble Suneet Kumar,J.

Hon'ble Brij Raj Singh,J.

(Per se: Brij Raj Singh,J)

Appeal No. 1339 of 2018 has been filed by accused-appellants Tefa Ram and Basant Ram against the judgement and order dated 16.2.2018 passed by the learned Additional District and Sessions Judge, Court No. 5 Ballia, in ST No. 111 of 2014, arising out of Case Crime No. 103 of 2012 (State vs. Tefa Ram and another), whereby, the learned Trial Court has convicted and sentenced the appellants Tefa Ram and Basant Ram to ten years rigorous imprisonment and a fine of Rs. 30,000/- each under Sections 304/34 IPC and in default of payment of fine, the appellants were further directed to undergo one year imprisonment; six months' RI under Section 323/34 IPC; one year RI under Section 504 IPC and three years RI and a fine of Rs. 5000/- under Section 506 IPC and in case of default in payment of fine, the appellants were further directed to undergo two months' imprisonment. However, all the sentences were directed to run concurrently.

The informant/victim has not filed any appeal seeking enhancement of sentence.

The complainant Parvesh Yadav has filed appeal (Appeal No. 40 of 2020), against the same judgement and order dated 16.2.2018, in Sessions Trial No. 105 of 2015, under Sections 147, 114, 323/34, 304/34, 504, 506 IPC, whereby, accused-respondents, therein, viz. Hira Lal, Chottey Lal and Sunil Kumar have been acquitted.

Since, both the afore-captioned criminal appeals have been filed against the common judgement and order dated 16.2.2018, the appeals are being heard together on consent of the learned counsels for the parties.

In short compass, the facts giving rise to the present appeals is that Pavnesh Yadav (PW-1), informant, complained that on 26.02.2012, at about 14:30 hours, while he was levelling the naad charan with soil, accused Shintu, Rajesh Kumar, Tefa, Basant came on the spot and assaulted with lathi, danda, kicks and fists. On hearing hue and cry, Tulsi (deceased), grandfather of the informant, rushed to the spot to save him. The deceased was beaten with lathi, danda, kicks & fists. The deceased succumbed to the injuries during treatment. Non Cognizable Report (NCR) came to be lodged at 15:45 hours. The informant and the deceased were medically examined at 17:00 hours and 18:08 hours respectively. The injuries received by the injured Tulsi Yadav (deceased), aged about 80 years, s/o Late Bandhu Yadav, are as follows:

1- Contused swelling 10 cm x 5 cm on the left side of the head just above the left ear. The injury was kept under observation and x-ray was advised.

2- Abraded contusion 5 cm x 3.5 cm, 2 cm above of injury no. 1. This injury was also kept under observation and x-ray was advised.

3- Contused swelling 5 cm x 3.5 cm towards the left side on the forehead just above the left eye-brow. The injury was kept under observation and x-ray was advised.

4- Contused swelling 5 cm x 3.5 cm all around the left eye on the upper and lower side around the eyelid. The injury was kept under observation and x-ray advised.

5- Red swelling in the conjunctiva of the left eye. The injury was kept under observation and the injured was referred to the eye surgeon for better treatment.

6- Abraded contusion 4.5 cm x 3.5 cm on the posterior of the left elbow. The injury was kept under observation and X-ray was advised.

The injuries on the person of the injured Pawnesh Yadav (PW-1), aged about 23 years, s/o Sadanand Yadav, are as follows:

1- Lacerated wound 3.5 cm x 0.5 cm on the left side of the head, injury 7.5 cm above the right eye. The injury was kept under observation and X-ray advised.

2- Contused swelling 5 cm x 3 cm, 5 cm above the left hand thumb. The injury was kept under observation and and X-ray was advised.

On 28.8.2012 at 17:20 hours postmortem of the deceased Tulsi was conducted. The following injuries are noted in the report:

1- Lacerated wound 4 x 3 cm just above the left elbow the muscles were found lacerated.

2- Lacerated wound 3 x 2 cm found in the pinna of the left ear; the wound was present length-wise on front.

3- Lacerated wound 3 x 2 cm muscle deep above the left eye-brow width-wise. It was surrounded by 9 x 7 cm contusion.

4- Contused swelling 7 x 6 cm above the left ear above the parietal and temporal bones of the head.

It appears that apart from the nominated accused, after almost a year, on an application under Section 173(8) Code of Criminal Procedure, 19731 accused Heera Lal, Chhotey Lal and Sunil Kumar were alleged to have been present on the spot and they exhorted the nominated accused to commit the offence, accordingly, a separate charge sheet came to be filed against them on 20.05.2013. The charge sheet against the nominated accused was filed on 4.5.2012. Accused Shintu and Rajesh Kumar being juvenile, their case was referred to the Juvenile Justice Board.

The trial court on considering the prosecution evidence and material placed on record acquitted the accused-respondents (Appeal No. 40 of 2020), subsequently, named by the informant.

We have heard Shri Kamal Krishna, learned Senior Counsel assisted by Shri Shashi Bhushan Kunwar, Sri Pradeep Kumar Rai, Sri Prakhar Saran Srivastava, learned counsel for the accused-appellants, learned A.G.A. appearing for the State and Sri S.B. Singh, learned counsel for the informant/appellant against acquittal in Appeal No. 40 of 2020.

As per prosecution case, the nominated assailants reprimanded and prevented the informant (PW-1) from levelling the naad charan with soil, on resistance, they assaulted PW-1 with lathi, danda, kicks and fists. The informant incurred two simple injuries. During assault, grandfather (deceased) came rushing to intervene and prevent the assailants from causing injury to his grandson. Consequently, he incurred injury on left side and one injury on the head above left eyebrow. The head injury proved fatal. The other injuries are simple in nature.

In opinion of the medical expert, injuries could have been caused by sudden fall on a hard object. The trial court convicted the accused-appellants and sentenced them to maximum punishment of 10 years under Section 304 Part-II, IPC, though, the impugned judgment does not record the conviction and sentence in Part-II in that many words. But on a careful reading of the judgment and conclusion, the trial court was of the opinion that having regard to the ''knowledge and circumstances', conviction and sentence has been imposed upon the accused-appellants under Section 304 IPC. The learned State counsel submits that the conviction would fall under Section 304 Part-II IPC.

It is submitted by learned Counsel for the appellants that taking the prosecution case on face value, the conviction and sentence of the accused would not travel beyond Part-II of Section 304 IPC. There was no intention to cause any injury or assault the deceased. The deceased intervened during assault on his grandson over a parcel of land on which naad charan is situated. Injuries caused to the deceased was sudden and accidental. It is, further, submitted that the accused had a right of private defence of the property which is subject matter of suit pertaining to the same property, including, naad charan, pending, inter se, parties i.e. father of the accused-appellants and the deceased (Tulsi). An injunction order of the civil court is operative against the deceased.

It is further submitted that incident took place in front of appellants' house; Civil Judge granted status quo order in favour of appellants father on 10.07.2003. The parties were injuncted from changing the nature of land; prosecution case itself is to the effect that the informant was filling the manger (naad-charan) with soil. The action of PW-1 probably provoked the assailants as he was changing the nature of disputed land; there is no evidence to suggest that the act was done in furtherance of a common intention. The three co-accused persons who were assigned the role of exhortation have been acquitted by the trial court; prosecution case intends to allege that the dispute arose when the appellants objected to informant's action of filling up the manger (naad charan). Thus, the prosecution case does not suggest that there was any premeditated common intention between the parties; there is no specific allegation against any accused as to who was assaulting with lathi-danda and who was assaulting with kicks & fists. Thus, even if the entire probable case is taken as gospel truth, it cannot be ascertained that who was assaulting with lathi-danda and who was assaulting with kicks & fists. A person who is assaulting with fists cannot be said to have intended to cause death. Therefore, no common intention can be attracted to the facts of the present case. Further, while acting in exercise of right to private defence, the appellants cannot be said to be motivated by a common intention to commit a criminal act. Common intention has relevance only to the offence and not to the right of private defence. In support of his submission, learned Senior Consel has placed reliance on a decision of Supreme Court rendered in V. Subramani & others v. State of Tamil Nadu2.

In the alternative, learned counsel submitted that having regard to the incident as narrated by the prosecution, it is in the nature of an abrupt quarrel caused on account of informant's attempt to change the nature of land. Allegedly, all the four accused persons were armed with lathi and danda respectively, yet, assault was made not only with lathi-danda but also kicks and fists. It clearly shows that there was no intention to cause death. At most, knowledge may be attributed. It is urged that the quantum of sentence is on the higher side. Reliance has been placed on several decisions of the Supreme Court, wherein, the Court was pleased to modify the sentence of the accused therein to five years imprisonment.

The prosecution witnesses no. PW-1, PW-2 & PW-3 in their examination have categorically stated that co-accused Heera Lal, Chhotey Lal and Sunil Kumar had not assaulted nor indulged in maarpeet. There is no allegation that they had threatened to kill the deceased or the complainant. They merely stated that the accused were present on the spot and on their exhortation, other nominated co-accused Shintu, Rajesh Kumar, Tefa, Basant assaulted the complainant and the deceased. In assault, complainant received simple injuries, whereas, the deceased received serious and simple injuries. The F.I.R. was lodged on the same day without any delay. The accused Heera Lal, Chhotey Lal and Sunil Kumar as per FIR version were not nominated either as aggressor or being present on the spot. They were subsequently implicated after a year of the incident, which appears to be on afterthought. No role was assigned to them except that of exhortation. The ingredients of the offence in the backdrop of the prosecution case is not made out against the accused Heera Lal, Chhotey Lal and Sunil Kumar. The trial court rightly acquitted them.

Insofar the appellants are concerned, they were nominated by the informant (PW-1) of having assaulted PW-1 and his grandfather. The deceased succumbed to the injuries caused by lathi-danda; all the assailants were having lathi and danda. In cross-examination, defence was unable to demolish the testimony of the prosecution witnesses. The injuries was duly corroborated by the medical expert. The fatal injury on the head of the deceased caused his death on the subsequent day of the incident. Submission of the learned counsel for the appellants that there was no intention to cause grievous hurt is without substance in the backdrop of the injury and the testimony of the ocular witness.

Culpable homicide may be classified in three categories - (1) in which death is caused by the doing of an act with the intention of causing death; (2) when it is committed by causing death with the intention of causing such bodily injury as is likely to cause death; and (3) where the death is caused by an act done with the knowledge that such act is likely to cause death.

It must be kept in mind the distinction between knowledge and intention. Knowledge in the context of Section 299 would, inter alia, mean consciousness or realization or understanding. The distinction between the terms `knowledge' and `intention' again is a difference of degrees. An inference of knowledge that it is likely to cause death must be arrived at keeping in view the fact situation obtaining in each case. The accused must be aware of the consequences of his act.

The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the, weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.

Section 34 does not create a substantive offence. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled, i.e., the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime. It is imperative that before a man can be held liable for acts done by another, under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.

The common intention postulates the existence of a pre-arranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention.

In the given circumstances, nominated accused inflicted assault causing injury to the complainant (PW-1) and the deceased. The deceased succumbed to the injury. The presence and participation of all accused in the commission of offence is proved. In the circumstances, common intention is inferable and there is presumption of harmful consequence, knowledge of the consequences is inferable and attributable to the accused appellants, which is inferable on the conjoint statement of the witnesses duly corroborated by the medical expert opinion.

There is a civil dispute pending between the parties. The injunction order was operating in favour of the appellants. As per prosecution case, PW-1 provoked the appellants as he attempted to change the nature of the property; during assault, PW-1 incurred simple injuries. The deceased intervened and he succumbed to the single fatal blow of the lathi, other injuries are simple nature. In the circumstances, maximum sentence awarded for on offence under Section 304 Part-II, in our opinion, is excessive.

Having due regard to the prosecution evidence and circumstances, we do not find any illegality, infirmity or perversity in the finding returned by the trial court in the impugned judgment and order. Accordingly, the conviction of the appellants is affirmed. However, so far as sentence of the appellants under Section 304/34 IPC is concerned, considering the facts and circumstances of the case, we are of the opinion that quantum of sentence awarded to the appellants is excessive. Accordingly, interest of justice would require that sentence of ten years rigorous imprisonment each under Sections 304/34 IPC awarded be reduced to five years. We accordingly order. Sentence of the appellants under Sections 323/34, 504 and 506 is maintained.

However, the amount of fine of Rs. 35,000/- each awarded by the learned Trial Court on different counts is enhanced to Rs. 50,000/- each and out of the fine so realized, half of the same shall be given to the legal heirs/representatives of the deceased as compensation.

In view of what has been indicated herein above, Criminal Appeal No. 1339 of 2018 preferred by the accused-appellants against their conviction and sentence is partly allowed, whereas, Criminal Appeal No. 40 of 2020, preferred by the complainant against the acquittal of accused-respondents is dismissed.

Order Date :- 8 February 2022

Mukesh Kr.

				(Brij Raj Singh,J)      (Suneet Kumar,J)