Lalji And Others vs State Of U.P.
2023 Latest Caselaw 8124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
									Reserved
 

 

 
Case :- CRIMINAL APPEAL No. - 532 of 1997
 

 
Appellant :- Lalji And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- A.C.Nigam,Dhirendra Kumar Srivastava,Janmed Kumar,Kameshwar Singh,Om Prakash Chaurasia,Satya Prakash Shukla,Surendra Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Subhash Chandra Sharma,J.

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

1. The present criminal appeal emanates from the judgment and order dated 26.02.1997 passed by the learned Sessions Judge, Mirzapur in Sessions Trial No. 77 of 1993 (State Vs. Lalji and others) arising out of Crime No. 196 of 1991 under Section 302/34 IPC, Police Station Chunar, District Mirzapur whereby accused Lalji, Shyamji, Pyare and Chhotai have been convicted and sentenced under Section 302 read with Section 34 IPC with life imprisonment.

2. The prosecution case in brief is that on 26.10.1991 at about 4 p.m. Lalman, father of the informant was heightening the walls of the cow shed (Gaushala) on the land granted on lease with the informant, sister Savita, mason Chibilli and labour Sita. In the meantime, Lalji, Shyamji, Pyare and Chhotai equipped with lathies came there. While abusing they claimed the land belonging to them as their lease land. Lalman responded by saying that it was his lease land over which the old cow shed was constructed. At that Shyamji exhorted and all the accused persons started beating him with lathies. He ran for about 30-40 steps but the accused persons surrounded him and killed by beating with lathies. On hue and cry, Satyawan and Dhananjay came there and then the accused persons went away. The F.I.R. was lodged by the informant Shyam Bahadur on the same day at about 8.30 p.m. at the police Station Chunar as crime No. 370 of 1991, under Section 302 IPC. The detail of which was entered into G.D. Report no.42

3. The investigation of the case was handed over to S.I. V.P. Singh who proceeded to the place of occurrence and collected blood stained and plain soil from the spot and prepared the fard.

4. The inquest of deceased Lalman was conducted by S.I. V.P. Singh, inquest report was prepared in presence of witnesses, dead body was sealed, other essential papers were prepared and the dead body was handed over to constables Murtaza Ali and Chhangur Dubey for post-mortem.

5. Dr. S.C. Srivastava conducted the autopsy on the dead body of Lalman on 27.10.1991 at 3 p.m. at District Hospital Mirzapur & prepared the postmortem report Exhibit Ka-2. Details of which are as under:

The dead body was brought in sealed cloth. Seal compared and found intact. The age of the deceased was about 60 years and time since death was about one day.

External Examination: Average built body. Rigor mortis passed off in upper extremities and was present in lower extremities. Blood clot was present in nostrils. Eyes were closed.

Ante-mortem injuries:(1) Lacerated wound 3 cm x ½ cm x bone deep on right side of scalp, 8 cm above right external ear.

(2) Lacerated wound 8 cm x 2 cm x cranial cavity deep over right side of scalp posteriorly 5 cm above and posterior to right external ear. The underlying bone was fractured and brain matter was visible.

(3) Lacerated wound 2 cm x 1 cm x cranial cavity deep over posterior side of scalp on right side 2 cm below injury no. 2.

(4) Abrasion 4 cm x 1 cm over upper surface of right shoulder.

(5) Abrasion 2.5 cm x 1 cm over posterior surface of left elbow.

(6) Abrasion 2 cm x 2 cm over posterior medial surface of left arm 7 cm above left wrist.

(7) Abrasion 1 cm x 1 cm over posterior surface of left wrist.

Cause of death was mentioned as coma due to head injury.

6. After inspection of the place of occurrence, Investigating Officer prepared the site plan and recorded the statements of witnesses conversant to the facts of the case, thereafter concluded the investigation and found a case, prima facie made out under Section 302/34 IPC. After preparing the charge sheet, he submitted it to the court concerned.

7. The cognizance of the offence was taken by the court concerned and copies of prosecution papers were provided to accused persons in compliance of Section 207 Cr.P.C. and the case was committed to the court of session for trial.

8. Learned trial court framed the charges 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 Shyam Bahadur, the informant, P.W.2 Dhananjai, P.W.3 Chibilli (mason) as eye witnesses. P.W. 4 Dr. S.C. Srivastava who conducted the postmortem was also examined.

10. After conclusion of prosecution evidence the statement of appellants were recorded under Section 313 Cr.P.C. wherein they stated that they had not committed the murder and statements made by the prosecution witnesses were false. Accused Lalji stated that Arazi no. 330 measuring 1 bigha 10 biswa belonged to him on the basis of the patta granted in his favour on 25.07.1979. Since then he was in possession of that land, there was a case before the Tehshildar, Chunar which was decided in his favour on 30.11.1988. On that land, the deceased was making construction by force and in the night somehow he sustained injuries and he along with his real brothers were implicated falsely with a view to grab his land. Likewise, accused Shyamji, Pyare and Chhotai also stated about the incident and the statements made by the prosecution witnesses being false.

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 26.2.1997 wherein he found all of the appellants guilty under Section 302 read with Section 34 IPC and sentenced them for rigorous imprisonment for life. Against this judgment and order, these two appeals have been preferred by the accused persons. One Criminal Appeal No. 477 of 1997 was filed by accused Chhotai but during the pendency of the appeal, he had died, as a result his appeal stood abated.

13. We have heard Sri Janmed Kumar, learned counsel on behalf of appellant no. 1, Sri Satya Prakash Shukla learned counsel on behalf of appellant nos. 2 and 3, Sri Arun Kumar Singh learned A.G.A. for the State and perused the record.

14. Learned counsels for the appellants would submit 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 being based on the testimony of interested witnesses who are relatives of the deceased. The F.I.R. was lodged with inordinate delay having no explanation. There was no motive to commit the murder of the deceased. P.W. 1 Shyam Bahadur being son of the deceased was an interested witness. P.W. 2 Dhananjay Singh was not present on the place of the occurrence but he was a managed witness. P.W. 3 Chibilli (mason) was also related to the deceased, therefore, the testimony of three prosecution witnesses cannot be said to be reliable. There are inter se contradictions in their testimony which do not inspire confidence. Further it was submitted that no specific role has been assigned to any of the accused except general role. In such a situation, liability cannot be fixed on either of the appellants to cause injuries on the person of the deceased. No liability can be fixed by invoking the provision of Section 34 IPC. The injuries found on the person of the deceased were simple in nature and cannot be said to have been caused with the intention or knowledge to cause death of the deceased. It is also submitted that the nature of the injuries found on the person of the deceased cannot be said to have been caused with lathi by three accused persons but they occur due to fall on some stone during night hours. The Investigating Officer who investigated the case was not examined during trial which caused prejudice to the accused appellants. In this way, the whole prosecution case becomes unreliable and the conviction of the appellants by the learned trial court is a result of misappreciation of evidence on record, unsustainable in the eye of law and the appellants, as such are liable to be acquitted. Lastly, it was argued in alternative that the offence said to have been committed does not fall within the ambit of Section 302 IPC but at the most it could be said to be covered to the extent of Section 304 Part II of IPC.

15. Learned A.G.A. opposed the submissions made by the learned counsel for the appellants and urged that in this case, the appellants went on the spot where the deceased was heightening the wall on his pre-constructed cow shed on the land allotted to him on lease and made assault with lathi in furtherance of the common intention of all to cause his death, as a result the deceased sustained injuries and died. The F.I.R. of the incident was lodged by the informant promptly without any delay. P.Ws. 1, 2 and 3 are eye-witnesses of the incident, who were working on the spot at the time of the incident. Further it was urged that P.W. 3 Chibilli was a mason and was not resident of the same village so he cannot be said to be related to the deceased he was an independent witness who gave vivid details of the incident during his examination before the court. There are no major contradictions in the testimony of the prosecution witnesses. The injuries found on the person of the deceased also corroborate with the description by the ye witnesses about the manner of injuries caused by the accused appellants. In this way, it is established with the evidence on record that the injuries were caused by the appellants to the deceased as a result of which he had died. So far as non-examination of the Investigating Officer is concerned, it was argued that it does not cause any prejudice to the appellants and on mere non-examination of the Investigating Officer the prosecution case will not fail, as there was sufficient evidence on record to support the prosecution case. The evidence on record is sufficient on the basis of which the learned trial judge has recorded the conviction of the appellants, perfectly justified in the eye of law. There is no illegality or impropriety. The appeal is liable to be dismissed as such.

16. From the submissions of the learned counsels for the parties, the following questions emerge for consideration of this Court as (i) to whether there was delay in lodging the F.I.R., (ii) motive was absent, (iii) absence of common intention to cause death of the deceased, (iv) the unreliability of witnesses being relatives and interested, (v) the nature of injuries found on the person of the deceased, (vi) the effect of non-examination of Investigating Officer and (vii) as to whether the case comes within the purview of Section 302 IPC or under Section 304 Part II IPC.

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

18. P.W.1 Shyam Bahadur is the informant who deposed that he knew accused Lalji, Shyamji, Pyare and Chhotai, who were residents of his village. Amongst them Lalji, Shyamji and Pyare were real brothers and Chhotai was their friend. Deceased Lalman was the father of the informant who was murdered four years ago at about 4 o'clock when he was at his cow shed (gausala) and for heightening the wall, work was being done by the mason Chibilli with labour Sita. The land of cow shed was given in favour of his father on lease. The accused came there and prevented his father from constructing the wall, on which he retaliated that it was his old cow shed and the lease deed was in his favour. At that Shyamji exhorted and all the four accused persons started beating his father with lathies who tried to escape but while he could run for about 30 paces, all the four accused persons surrounded him and caused his death by beating. At the time of the incident, he, his sister Sangita, labour Sita and mason Chibilli were present and Dhananjay & Satyawan had reached on the spot hearing their hue and cry. They all saw the incident and accused persons went away after beating. He got tahreer ( written report) scribed by Mastram and after hearing the contents thereof, he affixed his thumb impression and lodged the F.I.R. He admitted the tahreer ( written report) having been given by him at the police station and also identified his thumb impression on it, which was proved as Ext. Ka-1.

This witness was subjected to gruelling cross-examination by the learned counsels for the appellants before the trial court but the witness had not disclosed any such fact which weakens his testimony. He had affirmed the fact of beating by the appellants.

19. P.W.2-Dhananjay Singh deposed that he knew accused Lalji, Shyamji, Pyare and Chhotai, who were residents of his village. Deceased Lalman was also a resident of his village who was murdered about four years ago. At the time of the incident Lalman was heightening the wall of his old cow shed where mason Chibilli was carrying construction work of the wall and labourer Sita was also present on the spot. The son of Lalman namely Shyam Bahadur and his daughter Savita were also present. The land of cow shed belonged to deceased Lalman and was in his possession. At the time of the incident at a distance of about 25-30 paces away, the witness was giving food to his charwaha. In the meantime, Lalji, Shyamji, Pyare and Chhotai equipped with lathi-danda came on the spot and started beating Lalman who fell down on the ground and succumbed to his injuries. P.W.2. stated that he went on the spot and saw the incident. The accused persons went away towards the east direction. Daroga Ji reached on the spot in the night and collected blood stained and plain soil from the site and prepared the fard, on which he also made his signature.

This witness also faced gruelling cross-examination made by the learned counsel for the appellants, but nothing contrary to the case of the prosecution could be pointed out from his deposition.

20. P.W.3 Chibilli deposed that he knew Lalji, Shyamji, Pyare and Chhotai, who were residents of village adjacent to his own village located at about 1 km. He also knew deceased Lalman who was murdered four years ago at about 4 p.m. This witness was working on the cow shed of Lalman at the time of alleged incident. At that time Lalman, his son Shyam Bahadur, daughter Savita and labourer Sita were also present. All the four accused persons equipped with lathies came at the cow shed (gausala) and started beating Lalman who fell on the ground after sustaining injuries. All the accused persons went towards east direction after committing the incident.

This witness also faced gruelling cross-examination made by the learned counsel for appellants but nothing contrary to the case of the prosecution could be brought before us from his deposition.

21. All the prosecution witnesses remained intact during their cross-examination. No such contradictions are visible in their statements which would make their testimony unreliable and unnatural. Minor contradictions pointed out in their deposition are of cosmetic nature and cannot affect the credibility of their testimony.

22. P.W.4 Dr. S.C. Srivastava stated that on 27.10.1991, he was posted as Child Specialist in the District Hospital, Mirzapur. At about 4 o'clock he conducted postmortem of the dead body of deceased Lalman which was brought by Constables Murtaza Ali and Chhangur Dubey from the Police Station Chunar. He had prepared postmortem report and in his opinion the cause of death was coma as a result of injury on the head of the deceased. He prepared the postmortem report in his handwriting and signature which he proved as Ext. Ka-2. He also stated that injury nos. 1, 2 and 3 were on vital parts and due to injury no. 2, the injured would have gone into coma, thereafter, his death was possible. He also opined that injury no. 1 to 7 could have occured with lathi.

This witness was also subjected to cross-examination on behalf of the appellants but nothing adverse was found.

22. There is not even an iota of evidence on record which may even remotely suggest that Pws. 1, 2 & 3 had grudges against the appellants for any cause to implicate them falsely.

23. Injuries on the person of deceased Lalman were caused by lathi as stated by P.Ws. 1, 2 & 3. Ext. Ka-2 is the post-mortem report wherein multiple lacerated and abrasion wounds were found on the body of the deceased Lalman and P.W.4 Dr. S.C. Srivastava has proved the injuries and told that all the injuries were likely to be caused with lathi. He opined that cause of death was coma due to head injury.

24. In this way injuries found on the body of deceased Lalman are proved to have been caused with lathi at about 4 p.m on 26.10.1991 and it corroborates the manner of causing injuries resulting into death as stated by P.Ws. 1, 2 & 3. Thus, the eye witnesses account regarding cause of death finds corroboration from the medical evidence on record.

25. There is no delay in lodging the F.I.R. Occurrence took place at 4 p.m. on 26.10.1991 and F.I.R. was lodged at 8. 30 p.m. on the same day, after four hour and thirty minutes. It cannot be said to be inordinate delay.

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, PW-2 and P.W. 3 have also not disclosed anything that became the root cause of committing murder by the appellants except conversation started on the part of the appellants and Lalman in relation to construction of the wall belonging to cow shed but it is settled law that merely because the prosecution fails to prove motive for commission of the crime, it must not necessarily result in acquittal of the accused. It is well settled that 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 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 the learned counsel for the appellants is that the prosecution had examined highly interested and related witnesses and they have not produced any independent witness in support of its case.

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. No doubt P.W. 1, the witness of fact examined in instant case, is real son of the deceased but the relationship itself is not a ground to reject the testimony of this witness, rather he would be last person to leave the real culprit and falsely implicate any other person. P.W. 2 is a resident of the same village of the deceased as well as appellants and he is not related to the family of the deceased. Likewise, P.W. 3 is a mason who is resident of another village and was working at the instance of the deceased. He had no interest in either of the party, therefore, he can not be termed as an interested witness. All of the witnesses are natural witnesses. P.Ws. 1 & 3 were present at the time of the incident at the site where they were constructing the wall and P.W. 2 also arrived at the place where the incident took place. They all have identified the accused persons. P.Ws. 1 & 2 being residents of the same village were known to each another. P.W.3 was also resident of the adjacent village located on 1 km. distance. So there is no question of confusion in identification. P.W.1 being relative, it can not be said that he would falsely implicate the appellants in the case, while leaving the real culprits free. There is no suggestion of enmity between the appellants and witnesses and 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. The arguments placed by learned counsel for the appellants, in this regard, cannot be accepted.

39. It has also been argued that non-examination of the Investigating Officer has caused prejudice to the defence as it did not get opportunity to cross-examine him. This defect vitiates the whole trial.

40. In the case of Behari Prasad vs. State of Bihar 1996 SCC (2) 317 it was held by the Supreme Court that-

"For non-examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Office is not examined in a case, such a case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial."

41. In the facts of the present case, it transpires that the involvement of the accused in the incident has been clearly established with the evidence of the eye witnesses P.Ws. 1 to 3. Such evidences are in conformity with the case as made out in F.I.R. and also with the post mortem report.

42. It is also relevant to note that the prosecution witnesses i.e. P.W.1 & P.W.2. have not been confronted with their previous statement as recorded by the Investigating Officer under section 161 Cr.P.C. except P.W.3 Chibilli on some minor issues which are not material to the case. Even regarding the place of occurrence there is no dispute. In this way, it cannot be said that any prejudice had been caused to the defence on account of non-examination of Investigating Officer.

43. From the statements as deposed by the P.Ws. 1, 2 and particularly by P.W. 3, it came out that there was specific role of assault with lathi by appellant Lalji. First he stroke lathi on the deceased when he was making gara (mud mortar) and again when the deceased ran to save his life , Lalji chased him and blowed four strokes with lathi on him which hit on his hand and shoulder. Post mortem report Ext. Ka-2 also supports the aforesaid contention of P.W. 3 Chivilli. In this way, it is established that it was appellant Lalji at whose instance the dispute started and he himself made assault on the deceased with lathi as a result of which the deceased Lalman died.

There is no specific role assigned to other appellants for assault except general allegation that all of the appellants assaulted the deceased but post mortem report Ext. Ka-2 does not support the allegation of assault by more than one person. Thus from the evidence on record it is clearly established beyond reasonable doubt that appellant Lalji caused injury to the deceased as a result of which, he died.

So for as other appellants are concerned, their participation in causing injuries to the deceased cannot be said to be proved beyond reasonable doubt only on the basis of their presence on the spot with Lalji unless there is an act of premeditation of all the accused persons to commit murder of the deceased which is lacking from the very outset and it was only to the extent of preventing the deceased from further construction on the land in dispute.

44. In our opinion, the evidence on record clearly establishes the case of the prosecution against the appellant Lalji beyond any shadow of doubt but not against other accused appellants Shyamji and Pyare. They are entitled for benefit of doubt.

45. The next argument of the learned counsel for the appellants is that the injuries caused to the deceased were not intentional but the incident took place at the spur of the moment during the course of oral altercation in relation to the disputed land when the deceased was heightening the wall and both the parties were claiming the land to be their own on the basis of the lease granted in their favour. The appellants went on the spot to prevent the deceased from making construction but he did not stop the work, upon which both the parties started quarreling and appellants assaulted the deceased with lathi causing injuries on his person, which has resulted in his death. The nature of injuries was simple and except one, all other injuries were not fatal to the life of the deceased. This shows that there was no intention of the appellants to committ murder of the deceased but only to cause simple injuries. Even knowledge can also not be inferred that they knew about the effect of injuries likely to cause death. Thus, there being no premeditation, the offence cannot fall under Section 302 IPC but utmost it may travel to the extent of Section 304 part II IPC.

46. In the case of Pulicherla Nagaraju @ Nagaraja Vs. State of A.P. (2006) 11 SCC 444, the Supreme Court while deciding whether a case falls under Section 302 or 304 part I or 304 part II IPC, held thus:

"Para 29: Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot;

(iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."

47. The Court while determining the question that whether it is culpable homicide or murder has to keep in focus key words used in Section 299 and 300 of IPC. It is the degree of probability of death which determines that whether a case would fall within the ambit of ''murder' or ''culpable homicide not amounting to murder'. But when there is question as to whether a particular offence would come within the scope of Part-1 or Part-II of the ''culpable homicide not amounting to murder', the Court would look into two important elements mentioned in the Section 304 IPC. First element is the intention and other one is the knowledge. When there is a case which involves intention to cause death with the knowledge that the act is likely to cause death then the accused would be convicted under the first part of Section 304 IPC. But if the element of intention for causing death is missing and the act is done with the knowledge that it is likely to cause death of the person, then in such a case the accused would be punished under part II of Section 304 IPC

48. Applying the law as laid down by the Supreme Court in the aforesaid decision, it is required to be considered whether the case would fall under Section 302 IPC or any other lesser offence. P.W.1 and P.W. 2 who are the eye witnesses to the incident right from the beginning deposed that when the deceased was heightening the wall of gausala on the land in dispute between the parties, appellants came there with lathies and asked the deceased to stop the work claiming the land being their own lease land which the deceased objected, on this there was hot talk. The appellants assaulted the deceased with lathi who tried to escape then again the appellants surrounded him and beaten him, as a result the decased fell on the ground and died. P.W. 3 Chibilli, the mason gave vivid details in this regard in his cross-examination and stated that appellant Lalji made assault on the deceased and when the deceased tried to escape, Lalji chased and assaulted him with lathi four times. There were injuries on the person of the deceased, lacerated wounds on the head and abrasions on the hand. In the opinion of doctor, injury no. 1, 2 and 3 were on vital parts and as a result of injury no. 2, the patient would have gone into Coma and died.

49. In this case, as noticed above, the appellant Lalji was equipped with lathi, a blunt weapon. There was no previous enmity between the parties. There was dispute relating to goshala land which was being claimed by both of them. The deceased was heightening the walls which was prevented by the accused appellant and there was oral altercation on this issue. In the course of oral altercation, the appellant assaulted the deceased with lathi on his head. The deceased tried to esacpe, the appellant again assaulted him but lathi blows were made on hands, not on head or chest. The circumstances show that there was no premeditation in the mind of appellant to cause death of the deceased or to cause such bodily injury which was likely to cause his death. On account of oral altercation, in the spur of moment, he assaulted the deceased with lathi on his head and again other lathi blows on his hands. Striking lathi on the head can be attributed to have knowledge that the injury was likely to cause death but it was not with the intention to cause such bodly injury which was likely to cause death. The intention of the appellant seemed to be only to prevent the deceased from making further construction on the wall of cow shed (goshala) land. Thus, there appears absence of intention on the part of the appellant but it was only with the knowledge to cause injury likely to cause death which would fall within the ambit of Section 304 Part-II IPC.

50. Thus, we hold that the appellant Lalji guilty under Section 304 Part-II IPC in the place of Section 302 IPC. The appellant is aged about 75 years, the occurrence took place in the year 1991 and he is in jail since 04.03.2021, therefore, to meet the ends of justice, we would like to the reduce sentence of the appellant, to three years rigorous imprisonment in the place of life imprisonment.

51. The appellants Shyamji and Pyare are acquitted of the charges levelled against them while extending them the benefit of doubt. Their conviction and sentence is hereby set aside. They are in jail, so they be released from jail forthwith, if not wanted in any other case.

52. To the extent as aforesaid the judgment and order dated 26.02.1997 as passed by the learned Sessions Judge is hereby modified.

53. Accordingly, this appeal is partly allowed.

54. Copy of this judgment alongwith the 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 :- 21st March, 2023
 
A. Singh
 

 
		      (Subhash Chandra Sharma,J.)    (Sunita Agarwal,J.)