JUDGMENT D.K. Trivedi, J.
1. Both the above mentioned criminal appeals are directed against the judgment and order dt. 22-2-79 passed by the Sessions Judge, Rae Bareli, convicting Kailash appellant Under Section 452, IPC and Section 302, IPC and sentencing him to one year's R.I. and imprisonment for life, respectively. Baij Nath appellant was convicted under Sections 452 and 323, IPC and sentenced to one year's R.I. and six months R.I., respectively. The sentences of both the appellants were directed to run concurrently. Baij Nath filed Criminal Appeal No. 191 of 1979 and Kailash appellant filed Criminal Appeal No. 206 of 1979. Both these appeals were consolidated and are being decided by this judgment.
2. The prosecution case in brief is that Satya Narain deceased was brother of Baij Nath appellant and Kailash appellant is son of Baij Nath. It is said that there had been consolidation operations in the village in which lands of both the parties were recorded jointly in the names of Baij Nath appellant and Satya Narain deceased. According to the prosecution case there had been a partition of the residential house as well as agricultural fields except 7 or 8 Biswa field in which sugarcane crop was standing. According to the prosecution case this sugarcane crop jointly belonged to both the brothers, namely, Baij Nath appellant as well as Satya Narain deceased. It is further alleged that on the date of occurrence Baij Nath had cut some sugar-cane from this 7 Biswa land and prepared Gur out of the said sugarcane. In the night at about 8 or 9 p.m. Satya Narain deceased asked Baij Nath to give half share in the Gur as the sugarcane belonged to him also. Baij Nath appellant refused to give the share in the Gur on the pretext that sugarcane crop was not joint and in fact belonged to him. On this deceased Satya Narain said that he would cut sugarcane and prepare Gur the next day. On this Baij Nath abused Satya Narain on which Satya Narain raised an objection. Thereafter he sat in the Chhapper of his house near the kitchen. It is said that Smt. Ram Rati P.W. 6 wife of deceased Satya Narain was cooking food, Ram Kumar son of Satya Narain and Hori Lal brother-in-law of Ram Kumar were also sitting in the said house. Salik Ram P.W. 2 was also in the house talking to Hori Lal. According to the prosecution case at about 10-30 p.m. Baij Nath appellant armed with a lathi and Kailash armed with a Musal entered into the house and caught hold of Satya Narain and brought him to the Courtyard and thereafter both the appellants gave lathi and Musal blows to Satya Narain. Satya Narain after receiving the blows fell down. The witnesses snatched Musal as well as lathi from the hands of the accused-appellants and pushed them in their own house. It may be pointed out here that admittedly both the brothers were living in separate portion of one house adjoining to each other and there is one door inside the house which connects both the houses from inside. According to the prosecution case Satya Narain died after some time. Ram Kumar P.W. 1 prepared a report Ext, Ka. 1 at about 4 a.m. and thereafter left for P.S. Bhadhokar reaching there at about 7-15 a.m. The distance of the Police Station from the place of occurrence is about 4 Miles. The report was lodged at about 7-15 a.m. Head Constable Ishwar Deo Singh P.W. 5 after receipt of the written report prepared a Chik report Ext. Ka 2 and made an entry in the General Diary. P.W. 7 Rajendra Bahadur Singh Chauhan, Station Officer of P.S. Bhadokhar was present at the police station at the time of lodging of the report therefore he took up investigation of the case. He immediately left for the place of occurrence reaching there at about 9 a.m. He prepared the inquest report Ext.Ka 9 as well as other papers and handed over the dead body to Constable Jai Ram Yadav as well as Budhai Chaukidar for post mortem examination. The Investigating Officer after sending the dead body for post mortem examination recorded the statements of complainant Ram Kumar as well as other witnesses and prepared recovery memos of lathi as well as Musal. Thereafter the Investigating Officer prepared site plan Ext. Ka 10 and took samples of blood stained as well as plain earth from the place of incident. A lantern was alleged to be burning at the time of the incident. It was inspected by the Investigating Officer. On 29-1-78 the accused persons were arrested from a grove at 5-30 p.m. They were interrogated and sent to jail. On the next day the Investigating Officer further recorded the statements of other witnesses and after completing investigation submitted charge sheet against the accused persons.
3. The autopsy on the dead body of Satya Narain was conducted by Dr. J.P. Sharma P.W. 3 on 30-1-78 at about 2 p.m. The autopsy report is Ext. Ka 7. The doctor found the following ante mortem injuries on the dead body of the deceased Satya Narain :--
1. Incised wound 1.5 c.m. x 1 cm. x scalp deep on the left side of the head 2l/z cm. above the left ear.
2. Contusion 6 cm, x 6 cm. on the middle portion of the back.
On internal examination left parietal and temporal bones were found fractured. According to the doctor injury No. 1 could be caused by a blow of Musal and injury No. 2 was possible by lathi. According to the doctor the cause of death was shock and haemorrhage due to injury No. 1 which by itself was sufficient to cause death.
4. The prosecution in support of its case examined seven witnesses. Out of them P.W. 1 Ram Kumar, P.W. 2 Salik Ram, P.W. 4 Rati Pal and P.W. 6 Smt. Ram Rati are the witnesses of fact. P.W. 3 Dr. J.P. Sharma conducted autopsy of the dead body and proved the autopsy report Ext. Ka 7. P.W. 5 Ishwar Deo Singh, Head Constable of P.S. Bhadokar, received the report and prepared the chik report etc. P.W. 7 Rajendra Bahadur Singh Chauhan conducted investigation in this case and submitted charge sheet.
5. On the other hand the accused-appellants denied the prosecution case and stated that at about 10 or 11 p.m. they were sleeping in their house when some persons entered into their house and they raised alarm. It is said that Baij Nath appellant gave a Danda blow to the said person who tried to run away but fell clown striking his head against the frame of the door. According to the defence then they came to know that the man who had fallen down was Satya Narain. They further stated that they called the doctor but Satya Narain died before the doctor could arrive. They further stated that they went to the Police Station but no report was lodged and they were brought back to the village and thereafter to police station again and were implicated in this case. On behalf of the accused one Devi Din was also examined to prove the defence case that at about 11 p.m. he heard hue and cry and reached the house of Baij Nath, He further stated that when he entered into the house of Baij Nath he saw Satya Narain lying just near the door and blood was coming out from his head.
6. The learned Sessions Judge after considering the evidence on record came to the conclusion that the prosecution has successfully proved the guilt of the accused appellants beyond reasonable doubt and therefore he convicted and sentenced the appellants as mentioned above. Aggrieved by the said judgment and order the appellants have filed the present appeals.
7. We have heard Sri Mridul Rakesh, learned Counsel for the appellants as well as Sri Jyotindra Misra on behalf of the State. The learned Counsel for the appellants tried to challenge the findings of the trial court by saying that the trial court committed error in recording the finding that the prosecution has successfully proved the guilt of the appellants beyond reasonable doubt. According to him there are some contradictions in the statements of the eye witnesses, therefore, the trial court committed error in relying on the said statements but in our opinion there is nothing on record to show that the learned Sessions Judge committed any illegality in arriving at the finding of guilt of the accused in this case. We have perused the statements of the witnesses and in our opinion there is nothing in their statements on which basis it can be said that they are not reliable witnesses. The parties are related to each other and there is no reason for the witnesses for falsely implicating the accused persons in this case.
8. The next and the main contention of the appellants counsel is that even accepting the prosecution case no case under Section 302, IPC is made out and in fact the case would fall under Section 304, Part II, IPC. In support of his contention the learned Counsel pointed out that the appellants as well as the deceased belonged to the same family and admittedly there was no previous enmity between the parties. He further pointed out that even according to the prosecution case they were living in separate portions of the same house, and on the date of incident some altercation took place and the appellants took up Musal and lathi and gave one blow from each of these weapons to the deceased. The appellants counsel further pointed out that the cause of quarrel was also trivial in nature, therefore, the appellants could not be imputed with the intention to cause death or intention to cause that particular injury which proved fatal. On the other hand Sri Jyotindra Misra, Additional Government Advocate, relying on the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 : (1958 Cri LJ 818) contended that the case would fall under Section 302, IPC and further the nature of injury itself shows that the accused intended to cause such bodily injury which in the ordinary course of nature was sufficient to cause death. According to him the nature of the injury itself shows that blow was given with force and this itself shows that the appellants intended to cause such bodily injury which in the ordinary course of nature was sufficient to cause death. After hearing both the counsel for the parties we find force in the contention of the learned Counsel for the appellants. Appellant Kailash is son of Baij Nath and Baij Nath appellant is real brother of deceased Satya Narain. There is an admitted fact that both the brothers lived in the same house which had been partitioned between the parties but a door in between the two portions was there and the parties used to visit each other. Even on the date of occurrence they visited the house through this door. It is also not disputed that there is no previous enmity or malice between the parties. It is also not disputed that the cause of quarrel was trivial in nature. According to the prosecution case on the date of incident an altercation between the accused and the deceased took place and then accused Kailash brought a Musal and Baij Nath brought a lathi and gave one blow from these weapons to the deceased. It is also not disputed that there was no repetition of blow by the accused. Musal is not a usual weapon of assault. The cause of the incident was also very trivial in nature and therefore it cannot be said that the accused wanted to kill the deceased on the said ground. According to the prosecution case on the date of incident the deceased claimed share in Gur which was prepared by the appellants from the sugarcane in which the deceased claimed his share It is said that on this an altercation took place between the parties and then the appellants gave one blow each to the deceased of which one blow proved fatal. Looking to the total evidence and the circumstances in which the offence came to be committed it would not be possible to come to the conclusion that when accused Kailash struck deceased Satya Narain with Musal he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. No doubt, if the injury is caused by Musal on the head with force then it is bound to cause death but that by itself is not sufficient to raise an inference that he actually intended to cause such bodily injury as was sufficient to cause death. In the case of Kulwant Rai v. State of Punjab, AIR 1982 SC 126 the Hon'ble Supreme Court took a view that the case would fall under Section 304, Part II, IPC. In the said case Kulwant Rai was armed with a dagger and gave a blow on the epigastrium area of the deceased. The Hon'ble Supreme Court made the following observations in the said case (para 3) :
The question is in the circumstances in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case, part 3 of Section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under Section 304, Part II Penal Code.
9. Again in the case of Jagtar Singh v. State of Punjab, AIR 1983 SC 463 : (1983 Cri LJ 852) the Hon'ble Supreme Court affirmed the view taken in the case of Kulwant Rai (AIR 1982 SC 126) (supra) and observed (para 7 of AIR 1983 SC) :--
We have considerable doubt about the conclusion reached by the High Court. We cannot confidently say that the appellant intended to cause that particular injury which is shown to have caused death. There was no premeditation. There was no malice. The meeting was a chance meeting. The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. Neither para 1 nor para 3 of Section 300 would be attracted. We are fortified in this view by the decision of this Court in Jagrup Singh v. State of Haryana (1981) 3 SCC 616 : AIR 1981 SC 1552 : (1981 Cri LJ 1136). It was subsequently followed in Randhir Singh v. State of Punjab decided on September 18, 1981 : (reported in AIR 1982 SC 55 : (1982 Cri LJ 195) and Kulwant Rai v. State of Punjab (Criminal Appeal No. 630 of 1981 decided on August 7, 1981 (reported in AIR 1982 SC 126). Following the ratio of the above mentioned decisions, we are of the opinion that the appellant could not be convicted for having committed murder of the deceased Narinder Singh. His conviction for an offence under Section 302, IPC and sentence of imprisonment for life are liable to be set aside.
10. No doubt, the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 : (1958 Cri LJ 818) has throughout been followed as laying down the guiding principles but in the said case it was held that the prosecution must prove the following facts before it can bring a case under Section 300 'thirdly' :--
1. It must establish quite objectively that bodily injury is present.
2. The nature of the injury must be proved.
3. It must be proved that there was an intention to inflict that particular bodily injury i.e. that it was not accidental or unintentional or that some other kind of injury was intended. After this again it must be proved that the injury caused is sufficient to cause death in the ordinary course of nature.
11. However, in the instant case the prosecution has failed to prove the third condition that the appellant intended to cause such bodily injury which in the ordinary course of nature was sufficient to cause death, therefore, in our opinion the principles enumerated in Virsa Singh's case (1958 Cri LJ 818) (SC) (supra) will not apply in this case and the guidelines enumerated in the cases of Kulwant Rai (AIR 1982 SC 126) (supra) and Jagtar Singh (1983 Cri LJ 852) (155) (supra) will apply with full force.
12. The learned Additional Government Advocate lastly pointed out that according to the prosecution case the demand of Gur was made by the deceased Satya Narain at about 9 p.m. but the incident took place after an hour, therefore, it cannot be said that the incident took place immediately and in continuation of the exchange of hot words. However, we are unable to accept this argument in view of the statement of P.W. 2 Salik Ram in which he admitted that the incident took place in continuation of hot words. The relevant paragraph is para 3 which runs as under:--
^^tc lR; ujk;u NIij ds uhps cSBs Fks rc eqyfteku vius ?kj esa Fks vkSj nksuks rjQ ls vius vius ?kj ls xkyh xykSt gks jgh Fkh A xkyh xykSt gksrs gksrs nksuksa eqyfteku vius edku ds mRrjh njokts ls tks fd lR;ujk;u ds edku dk nf{k.kh njoktk gS mlesa ls gksdj lR; ujk;u ds ikl mlds NIij ds uhp vk;s A cStukFk eqyfte gkftj vnkyr ds ykBh bDt- 2 Fkh vkSj dSyk'k eqyfte gkftj vnkyr esa gkFk ls ewlj bDt- o Fks A ml le; eqlj ds nksuksa VqdMs+ tqMs+ Fks A** The above mentioned statement itself shows that the incident took place in continuation of the hot words and not after an hour.
13. In view of the above discussion the case would fall under Section 304, Part II, IPC and not Section 302, IPC, therefore, the Sessions Judge committed error in convicting the appellant Kailash under Section 302, IPC.
14. Learned Counsel for the appellants on the question of sentence contended that looking to the peculiar facts and circumstances of the case it would not be proper now to send the appellants to jail. According to him the appellants may be sentenced with a fine and the same would meet the ends of justice. In support of his contention the learned Counsel for the appellants relied upon the case of Gurdeep Singh v. Jaswant Singh, (1992) 1 SVLR Cri) 88 : (1992 Cri LJ 1283) in which the Hon'ble Supreme Court after holding that the appellants are guilty under Section 304, Part II, IPC and looking to the fact that the incident is of 1978 and the appellants were on bail for nearly 10 years the sentence was reduced to the period already undergone. Learned Counsel for the appellants relying on this case pointed out that in the instant case also the incident is of 1978 and the present appeal was filed in 1979. Since then the appellants are on bail, therefore, looking into the facts and circumstances of the case it would be proper to modify the sentence and substitute the sentence of imprisonment with fine. We find force in the contention of the appellants' counsel. As pointed out above, the parties belong to one family and are admittedly living in separate portions of the same house. They are closely related and the cause of quarrel was also very trivial in nature. It is also not disputed that the offence was committed without any premeditation or malice. It is also not disputed that there was no prior enmity between the parties. Apart from all this the appellants are on bail since 1979 and no untoward incident took place between the parties since then. Looking to these facts and circumstances and relying on the case of Gurdeep Singh (supra) we are of the opinion that the sentence of the period already undergone with a fine of Rs. 5000/- on Kailash appellant will meet the ends of justice. Similarly, a fine of Rs. 500/ - each on Baijnath under Sections 452 and 323, IPC and the sentence of the period already undergone will meet the ends of justice.
15. In view of the above discussion the appeal of appellant Kailash (No. 206 of 1979) is dismissed with the modification that while his conviction under Section 452, IPC is maintained, his conviction Under Section 302, IPC is set aside and instead he is convicted under Section 304, Part II, IPC and is sentenced to the period already undergone and a fine of Rs. 5000/-. In case of default in payment of fine appellant Kailash shall undergo R.I. for a period of five years. Similarly, the appeal of Baij Nath (Criminal Appeal No. 191 of 1979) is dismissed and while the conviction under Sections 452 and 323, IPC is maintained the sentence is modified and reduced to the extent that he is sentenced to the period already undergone and a fine of Rs. 500/- on each of the two counts i.e. 452 and 323, IPC. In case of default in payment of fine appellant Baij Nath will undergo R.I. for a period of one year. Fines in both the cases be deposited within a period of two months. Out of the fines, if deposited, the Chief Judicial Magistrate will hand over Rs. 5000/- to the heirs of deceased Satya Narain.
16. The Chief Judicial Magistrate, Rae Bareli, is directed to send compliance report within three months.