JUDGMENT D.P. Gupta, J.
1.This is a case in which accused appellants killed Mani Ram and injured PW 1 Babu Ram after picking up quarrel on a petty issue. IVth Additional Sessions Judge, Pilibhit, in S. T. No. A86 of 1981 State v. Lala Ram and 3 others, under Section 302/323 IPC, P.S. Barkhyera, District Pilibhit, convicted the accused appellants for offence punishable under Section 302, read with Section 34 IPC and sentenced each of them to undergo imprisonment for life and further convicted appellants Lala Ram and Hira Lal for offence punishable under Section 323 IPC and sentenced each of them to undergo rigorous imprisonment for a period of 6 months. The sentences so awarded were to run concurrently. Feeling aggrieved by this the present appeal has been preferred by accused appellants.
2. The prosecution ease as unfolded in the trial Court was that accused appellants Lala Ram, son of Dhani Ram, Hira Lal, son of Nand Ram, Chhote Lal, son of Nand Ram, Net Ram, son of Chheda Lal and complainant Babu Ram and deceased Mani Ram, all were residents of village Vikaramapur, P. S. Barkhera, District Pilibhit. On 5-12-1980, complainant PW1 Babu Ram and his father deceased Mani Ram went for catching fishes in a pond out side their village. After putting the fishing hook in the pond they were returning back to their house. It was about 7.00 P. M. when they reached near the house of accused Lala Ram they saw a fire burning under the Neem tree in front of the house of accused appellant Lala Ram and there all the 4 accused appellants were warming themselves. The lathies of the accused appellants were lying near thereby. Deceased Mani Ram and his son PW 1 Babu Ram also sat. there to warm themselves. Accused appellant Chhotey Lal demanded 'Sulfa' for smoking from deceased Mani Ram. Deceased told them that he had no 'Sulfa' with him at that time. Upon this accused saying that he used to smoke their sulfa but that day he was not giving to them, pushed the deceased, Deceased fell down. After his getting up there was exchange of abuses between deceased and accused appellants. Suddenly accused appellants picked up their lathies and started beating Maniram. Mani Ram and PW 1 Babu Ram cried for help. Upon this Lala Ram and Hira Lal also caused injuries to Babhu Ram by Lathies. Cries of the deceased and injured attracted PW 2 Hira Lal son of Kalyan, Pancham and Sumer to come to the spot. In the light of burning fire incident was seen by the witnesses. Mani Ram died of the injuries under the neem tree near the burning fire and the accused ran way. Persons of the village collected there. PW 1 Babu Ram went to the village Chaukidar and leaving the village people near the dead body of his father he proceeded along with chaukidar to the police station Barkhera, which was at the distance of 6 miles from the village. They went on foot and reached at the P. S. about 11.00 P.M. in the night. PW1 Babu Ram, orally narrated the incident. On the basis of oral report PW6 Sher Bahadur, constable prepared the chick report, which is Ex. Ka-3 and made an entry in G. D. which is Ex. Ka-4 at 11.15 PM on 5-12-1980. PW 1 Babu Ram was having injuries on his person and his clothes were blood stained. PW 6 took clothes of the injured in his possession and prepared the memo. From police station PW1 Babu Ram was sent for medical examination to P. H. C. Barkhera. P. H. C. Barkhera had no light and remained closed in the night. On 6-8-1980 at 8.00 A. M. PW 1 Babu Ram was medically examined by Dr. Surendra Mishra PW 3. He found following injuries on his person.
1. Lacerated wound 5 cm. x 5 cm. muscle deep. Over right side of scalp 11 cm. above the right ear pinna.
2. Abrasion 5 cm. x 5 cm. over forehead 12 cm. above the root of nose.
3. Contusion 3.5 cm x 2.5 cm. over back of left hand at 3rd metacarpus phalanges joint.
3. In the opinion of Dr. all the injuries were simple in nature and caused by some blunt object like lathi, duration was about 12 hours old.
4. PW 7 Mahendra Singh, S.I. Investigating Officer with necessary paper in the night of 5/6. 12.80 at about 1.15 A.M. proceeded to place of occurrence and reached there at about 4.00 A. M. He prepared the site plan, which is Ext. Ka-7. He prepared inquest report and necessary papers and sent the dead body of Mani Ram deceased for postmortem examination. He took simple and blood stained earth from the place of occurrence where the dead body was lying and prepared the memo. He also took sample of ash of the burnt fire, which was about 4-5 steps away from the Neem tree and prepared memo. He recorded the statements of witnesses. He raided the house of accused persons and from the house of Lala Ram and Hira Lal one lathi, each having blood stains were recovered and memo of recovery were prepared. He sealed the lathi.
5. PW 5, Dr. K.P. Dubey conducted the autopsy on the dead body of deceased Mani Ram on 7-12-1980 at 12.00 noon. The age of the deceased was about 60 years. Probable time of death was about 1-3/4 day. Rigor mortis had passed of in upper limbs and was passing out in the lower limbs. Postmortem staining was present. He found the following ante mortem injuries :--
1. Lacerated wound 4 cm. x 1 cm. x scalp deep over the left side skull. 8 cm. above the left pinna of left ear.
2. Lacerated wound 1 cm. x 0.5 cm. x scalp deep over the right side skull 7 cm. above the right pinna.
3. Lacerated wound 1 cm. x 0.5 cm. x scalp deep over the back of head.
4. Contusion 4 cm. x 3 cm. over the back right eye all around.
5. Contusion 4 cm. x 1 cm. over the back of right ear.
6. Contusion 2 cm. x 1 cm. on the right shoulder (top).
7. Contusion 3 cm. x 2 cm. on the right wrist joint (back-side).
8. Contusion 3 cm. x 2 cm. on the left side forearm lower 1/3rd (back side).
9. Contusion 3 cm. x 1 cm. on the left thumb back side.
10. Contusion 1 cm. x 1 cm. on the back of left index finger.
11. Contusion 16 cm. x 3 cm. on the left side chest (front).
12. Contusion 3 cm. x 2 cm. on the left side chest back side below the left scapula.
13. Contusion 6 cm. x 2 cm. on the back of abdomen in the spinal region.
14. Contusion 3 cm. x 2 cm. on the left side foot lateral side.
6. On internal examination, doctor found that 2nd, 3rd, 4th and 5th ribs of left side were fractured. Pleura was lacerated. 10 Oz. blood was found in the left pleural cavity. Left lung was lacerated. Both chambers of the heart were empty. Stomach and small intestine were empty. Large intestine contained faecal matter. In the opinion of doctor death was due to shock & haemorrhage produced by ante mortem injuries. The postmortem report is Ex. Ka-2.
7. On completion of the investigation PW 7, Mahendra Singh, Sl., submitted charge-sheet against all the appellants.
8. In the trial Court the prosecution examined PW1 Babu Ram injured complainant, S/o deceased Mani Ram and PW 2 Hira Lal son of Kalyan as eye witnesses. PW 3 Dr. Surendra Mishra, who medically examined PW 1 Babu Ram PW 4 constable Payarey, who took the dead body for postmortem examination, PW 6 Head constable Sher Bahadur, who prepared the First information Report and made entries in the G. D. and also took the blood stained clothes of the PW1 Babu Ram and PW7 Sri Mahendra Singh, IO. who investigated the case and submitted the charge-sheet.
9. Accused denied their involvement in the crime. They stated that deceased Mani Ram was a history-sheeter. Many cases were pending against him. He asked the accused persons to give evidence in his defence and on their refusal they were falsely implicated. No evidence in defence was adduced.
10. Trial Court on scrutiny and analysis of evidence found all the appellants guilty for offence punishable under Section 302 read with Section 34 IPC and further found accused-appellant Nos. 1 & 2 namely Lala Ram and Hira Lal guilty for offence punishable under Section 323 IPC, for causing injury to PW 1 Babu Ram, convicted and sentenced them as mentioned above. Accused appellant Chhotey Lal and Net Ram were found not guilty for offence punishable under Section 323 read with Section 34 IPC, and were acquitted under that count.
11. We have heard Sri V.P. Mathur, learned counsel for the appellants and learned AGA for the State and have perused the entire evidence on record and have gone through the judgment of the trial Court.
12. It was argued on behalf of appellants that deceased Mani Ram was a history sheeter against whom many cases were pending. It appears that some body in night committed the murder of Mani Ram and the accused were falsely implicated. It was further argued that there was no light on the spot. Therefore, assailants could not be recognized. There was change in place of occurrence. FIR was ante-timed. No witness of the nearby place of occurrence was cited or examined. PW2 Hira Lal (son of Kalyan) being nephew and PW1 Babu Rarn being the son of deceased both were highly interested witnesses. The trial Court did not place reliance upon the statement of PW 2 Hira Lal. It was further contended that in the postmortem examination the stomach and small intestine were found empty. In large intestine faecal matter was found. It appears that occurrence was of the late in night. It was a sudden occurrence. There was no intention to cause death. The occurrence took place on a very petty matter in heat of moment. In these circumstances at the most conviction could be recorded only under Section 304 IPC.
13. On behalf of State, learned AGA had supported the judgment and findings of the trial Court and had contended that there were 14 injuries caused by blunt object like lathi. Numbers and seat of injuries had clearly established the intention of the accused appellants to commit murder.
14. The presence of PW1, though he is the son of deceased, could not be doubted. As he is injured. There was no delay in lodging the FIR and FIR was not ante-timed.
15. In this case the time and place of occurrence and lodging of FIR at 11.15 p.m. on 5-12-80 is fully proved by the statement of PW 1 Babu Ram and had found corroboration from the statement of PW 3 Dr. Surendra Mishra, PW 5 Dr. K.P. Dubey, PW 6 Sher Bahadur constable and PW 7 Mahendra Singh.
16. PW 1 Babu Ram had stated that before sun set he along with his father went for catching fishes to the pond and affixed fishing hook which took about 4-5 minutes. Thereafter, they were returning to their house in the village. It was dark night and without light nothing could be seen from a distance. He and his father reached near the house of accused appellant Lala Ram. There all the 4 accused appellants were warming under the neem tree by the burning fire. Both of them also sat there. Appellants demanded Sulfa for smoking from the deceased who showed his inability to provide Sulfa at that time. Upon this, accused passing a remark that he used to smoke their sulfa but that day was not giving to them pushed the deceased. Deceased and appellants exchanged abuses. All the appellants started beating Mani Ram with lathi. This occurrence took place about 4-5 steps away from the place of fire. He raised alarm. He was also beaten by lathies and in the meantime witnesses came. Deceased fell down on the ground. Appellants ran away. He stated that he saw the accused in the light of burning fire and also recognized them by their voice, uttered to his father. Leaving village people there he took village chaukidar with him and went to police station, which was about 6 miles away. He orally lodged the report in same night at about 11.15 p.m. He returned to his village in the morning after medical examination. This witness was cross-examined at length, but no material contradiction or circumstance which could make a dent in the testimony and credibility of this witness could be brought on record by the accused appellant.
17. PW 3 Dr. Surendra Mishra medically examined PW 1 Babu Ram on 6-12-80 at 8.00 a.m. and found three injuries which could be caused by lathi and were about 12 hours old. In cross-examination this witness stated that injuries could be caused between 7.00 p.m. and 10.00 p.m. His statement corroborated the statement of PW 1 Babu Ram that occurrence took place at about 7.00 p.m. PW 6 Sher Bahadur, head constable stated that PW 1 Babu Ram was having injuries and his clothes were blood stained. He took the blood stained clothes in his possession and prepared the memo. He stated that PW 1 Babu Ram came to police station with village chaukidar. FIR was prepared by him on oral dictation given by PW 1 Babu Ram. He sent the injured with police constable for medical examination. In cross-examination of this witness nothing could be brought on record which would affect the testimony of PW 1 adversely on any point. Statement of this witness fully corroborated the statement of PW 1 Babu Ram on all relevant points.
18. Thus on close scrutiny we find the statement of PW 1 Babu Ram wholly reliable. His statement is natural.
19. PW 7 Mahendra Singh had stated that he prepared site plan and in the site plan he had shown the place where dead body was found. He had indicated the place where ash of the fire was found by him and its sample was taken. He had shown the place from where he had taken simple and blood stained earth. Statement of PW 7 Mahendra Singh Investigation Officer gave full corroboration to the statement of PW 1 Babu Ram on all material points. PW 1 Babu Ram had stated that about 4-5 steps from the Neem tree the occurrence took place while at one place he stated that occurrence took place under the neem tree. On analysis we find no difference between two statements. Under the Neem tree did not mean close to the trunk of tree only. When a person states that under the neem tree it means under the shade of neem tree i.e. the area covered by its branches. Argument of the learned counsel for the appellants that there was a change in the place of occurrence had no merit. Ash of the burnt fire was taken from the place which was under the Neem tree at the distance of 4-5-steps from the roots and trunk of the Neem tree. Place of occurrence was in front of the house of appellant Lala Ram in the rasta under the neem tree. Thus there was no change in the place of occurrence.
20. Time of occurrence had also been established beyond reasonable doubt. Distance of Police Station from the place of occurrence was 6 miles. PW 1 Babu Ram along with chaukidar went on foot. They took about 2-1/2 hours to cover that distance. The case was registered at 11.15 p.m. From the cross-examination of PW 6 Sher Bahadur, PW 1 Babu Ram and PW 7 Mahendra Singh nothing had been elicited from which an inference could be drawn that FIR was ante timed. PW 7, Mahendra Singh IO, proceeded from the P.S. in the night of 5/6. 12.80 at about 1.15 a.m. and reached on the spot about 4.00 a.m. This finds corroboration from the statement of PW 2 Hira Lal, who stated that Darogaji reached in the village about 4.00 a.m. though his presence at the time of actual Mar-peet had not been believed by the trial Court. Argument that FIR was ante timed has no substance.
21. It had been established by the prosecution that there was sufficient light at the time of occurrence. It was about 7.00 p.m. in winter night. Both the parties were fully known to each other and belonged to same village. Appellants deceased and PW 1 Babu Ram were standing in close proximity having no distance. There was exchange of abuses. Burning fire was also there PW 1 Babu Ram had stated that he recognised the appellants by voice as well in light of burning fire. Therefore, there was no room for the argument that assailant could not have been recognised. PW 7 Mahendra Singh IO, found burnt ash near the dead body under the neem tree. Therefore, the argument that there was no light in which assailants could be recognised has no force.
22. Our attention was drawn to the postmortem report that stomach and small intestines were empty and large intestine contained faecal matter. On the basis of this it was argued that occurrence took place after 10.00 p.m. late in night. We are unable to accept this contention for the reasons that no cross-examination on this point was made with PW 5 Dr. K.P. Dubey, PW 1 Babu Ram pointedly stated that his father and he took food (Rice and pulse) before they went for catching fishes. He had also stated that when they reached the pond, sun was about to set, but enough light was there. In cross-examination no question was asked at what time food was taken by him and the deceased. In absence of cross examination we cannot interpret words before going for catching fish means immediately before proceeding for catching the fishes. It is possible that food might had been taken at about 1 or 2 p.m. and some time thereafter they might had proceeded for catching fishes. Therefore, no capital could be made out from this statement of PW 1 Babu Ram. On the surmises conjectures probabilities and possibilities no inference could be drawn. There should be full and complete cross-examination on the point only then advantage of this part of statement could be taken by the defence. Therefore, the argument that as the stomach and small intestine were empty, time of occurrence was after 10 p.m. or late in the night had no force.
23. From the entire evidence on record, we find that prosecution has proved beyond reasonable doubt that on 5-8-80 (sic) at about 7.00 p.m. in front of house of appellant Lala Ram under the Neem tree near the burning fire, these accused appellants caused injuries to the deceased Mani Ram who died of the injuries on the spot and appellant Lala Ram and Hira Lal also caused simple injuries to PW 1 Babu Ram.
24. Now question remains whether the act of the appellants falls under Section 302 IPC or 304 IPC. It was admitted to the prosecution that there was no previous enmity between the parties. Accused appellant had suggested that deceased was a history-sheeter and many cases were pending against him. On their refusal to be witnesses for deceased they were falsely implicated. This incident took place on a very petty matter. Deceased and appellants used to smoke Ganja from the prosecution evidence it had been established that it was a sudden occurrence which took place in the heat of moments. Accused demanded Ganja from the deceased for smoking, he showed inability in providing ganja. Deceased and appellants indulged in abusing each other. Appellants caused injuries which resulted in instantaneous death. There is no evidence of previous enmity between the parties. There* is no such evidence that appellants in order to cause murder picked up the quarrel. If such would had been the case then certainly appellants would have been guilty of murder. The intention is the important factor in separating or distinguishing the murder from culpable homicide not amounting to murder. In this case from the evidence and circumstances on record we do not find such intention.
25. It was not a pre-planned occurrence. It happened suddenly in the heat of moments. As such no inference could be drawn about the intention to cause death. The injuries caused to the deceased were 14 in number. Babu Ram PW 1 had stated that all appellants gave lathi blows to the de ceased. From the number of injuries which were caused on almost all the parts of the body it is established that appellants could have known that by causing these injuries death is likely to be caused. Therefore, from the evidence on record, we find accused appellants guilty for offences punishable under Section 304 Part II read with Section 34 IPC.
26. We accordingly partly allow the appeal. Conviction under Section 302 IPC read with Section 34 IPC is set aside and instead of it we convert the conviction of all the appellants under Section 304 Part III IPC read with Section 34, IPC and sentence each of the appellant to undergo rigorous imprisonment for a period of seven years. However, conviction and sentence of Hira Lal and Lala Ram as awarded by trial Court for offences punishable under Section 323 IPC. is confirmed. All the sentences shall run concurrently.
27. Appellants are on bail. They shall surrender before the CJM concerned to serve out the sentence.
28. Office is directed to send a copy of this judgment to them CJM concerned within 3 days for compliance, who shall submit compliance report to this Court within 15 days from the receipt of the copy of order.