Court No. - 90
Case :- CRIMINAL APPEAL No. - 3032 of 1981 Appellant :- S. Singh And Others Respondent :- State of U.P.
Counsel for Appellant :- C.S.Saran,Ajit Kumar Singh,Rajesh Singh,S.P. Rai,Sanjiv Ratna,Satish Trivedi Counsel for Respondent :- A.G.A.,Y.K. Shukla
Hon'ble Ajit Singh,J.
The Court has been informed that appellant no. 4 Durwasa Singh, appellant no. 5 Kawaldhari Singh, appellant no. 6 Rajendra Rai and appellant no. 7 Jagardev Yadav have died.
The appeal in respect of appellant no. 4 Durwasa Singh, appellant no. 5 Kawaldhari Singh, appellant no. 6 Rajendra Rai and appellant no. 7 Jagardev Yadav has already been abated vide order dated 8.12.2014.
Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri A.K. Pandey and Sri A.S. Rai appearing on behalf of the surviving appellant no. 1 Shlok Singh, appellant no. 2, Jagdish Singh, appellant no. 3, Janardan Singh and appellant no. 8 Baliram Singh.
This criminal appeal has been filed against a judgement and order dated 19.12.1981 passed by IIIrd Additional Sessions Judge, Ghazipur in S.T. No. 157 of 157 of 1979 (State vs. Shlok Singh and others), under Sections 147, 148, 304 read with section 149 I.P.C., P.S. Karanda, district-Ghazipur, whereby learned Judge convicted and sentenced the appellant no. 1 Shlok Singh, appellant no. 7, Jagardev Yadav and appellant no. 3, Janardan Yadav to one year rigorous imprisonment under Section 148 I.PC., eight years imprisonment under Section 304 read with Section 149 I.P.C., while appellant no.3, Janardan Singh, appellant no. 4, Durwasa Singh, appellant no. 5, Kawaldhari Singh, appellant no. 6, Rajendra Rai and appellant no. 8, Baliram Singh to six months R.I. under Section 147 I.P.C. and eight years R.I. under Section 304 read with section 149 I.P.C. All the sentences shall run concurrently.
The prosecution story in brief is that at about 5:00 p.m. the victim Gunraj alias Gooza complainant and his brother Deaza (PW-2) and Ram Iqbal Singh alias Tunnu (PW-3) were returning from Choekapur village Bazar and going to village-Jhuir. They were going on foot, near village-Barwa at the road which leads to Baisara. As soon as when the victim and his two companions reached near the Pipal tree at the road, two accused persons came out of the Arhar field, where they were hiding from before and the accused Kawaldhari Singh exhorted other co-accused persons to kill the victim, then the accused Jagardeo and Jaishankar, who were having gadasa in their hands. Jagdish Singh and Shlok singh were having spears and the other accused were having lathies in their hands. Upon hearing the shouts, the victim Gunjraj alias Gooza repriminded the accused not the commit the offence in his presence, thereupon the accused persons stopped themselves from making assault on Tannu alias Ram Iqbal (PW-3) got opportunity to run away from the spot. Thereupon, the accused Rajendra Rai exhorted the other accused to kill the informant Gunraj alias Gooza and on his exhortation all the accused persons started assaulting him with their respective weapons. The brother of the victim Dazza (PW-1) due to fear ran away from there up to some distance and started raising alarm. Upon hearing the alarm raised by the brother of the victim, Dhani, Mahesh, Mangoo and Rejendra reahced at the place of occurrence. They were also raising alarm. By that time, the accused persons had badly injured the victim Gunraj alias Gooza and had thrown him towards north of the road in the field of wheat. On arrival of the witnesses the accused persons left the victim and ran away from the spot towards west.
In furtherance to his submission, the learned counsel for the accused-appellants submits that the act of the appellants was not intentional. He next submits that although the trial court has convicted the present accused on the basis of mere conjuncture while the appellants are absolutely innocent and has been falsely implicated in this case with the ulterior intention of harassing them. Further submission is that the appellants are above 75 years of age and the incident had taken place in 1974 and more than 45 have passed. Further submission is that in the first information report general allegation of assaulting the deceased with gadasa and spears has been made against seven persons including appellants. The postmortem report of the deceased shows only one injury on the vital part of the body, which was fatal to life, author whereof is not known. He also submits that had the accused persons an intention of committing murder of the deceased Gunraj, they would have have easily chopped his head. As the accused persons were so many, naturally the injured was likely to suffer so many injuries. He also submits that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking a lenient view considering the age of the accused and their age related ailments.
In the case of Jagriti Devi vs State of Himachal
Pradesh (2009) 14 SCC 771, it was held by the Apex Court that the expression intention and knowledge postulate the existence of positive mental attitude. It was further held that when and if there is intent and knowledge, then the same would be a case under first part of Section 304 and if it is only case of knowledge and not intention to cause death by bodily injury, then the same would be a case of Second part of Section 304".
In the case of Madhusudan Salpathy vs. State of Orissa (AIR 1944 SC 474) the accused assaulted to cause the death of the victim with bhala and relying on the prosecution witness the High Court convicted him under Section 304 part – I. On appeal Supreme Court found that there was only one injury on the head that proved to be fatal and weapon used were proved not deadly but the accused had knowledge that injuries caused by them were likely to cause death. It was held that the accused was guilty of culpable homicide and his conviction was alter to part II of Section 304 IPC." Learned A.G.A. has vehemently opposed the submission made by learned counsel for the appellant. He has however, submits that if alteration in sentence is made, he has no objection.
Regard being had to the above law laid down by the Apex Court and also having gone through the facts and circumstances of the instant case, it is evident from the material on record that there was hostility between accused and the deceased and criminal litigation had taken place between the deceased and the accused. It also emerges from the material evidence on record that the attack on the deceased and his side by the accused persons was not premeditated and preplanned and it happened at the spur of moment in sudden altercation between the deceased and the accused persons and there was no intention of the accused persons to kill the deceased. Whether the injury inflicted by the accused persons was sufficient in the ordinary course of nature to cause death or not, must be determined on the basis of the facts and circumstances of the case. In the instant case, only one injury was on the vital part, which proved fatal. The injury caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel or unusual manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon is handly and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.
From the above discussion, it is evident that appellants were not having intention to cause death of the deceased. However, they had knowledge that death would be likely caused by the use of the alleged weapons and they have caused with knowledge bodily injuries as were likely to cause death and in view of the above, a case against the appellants under Part-II to Section 304 I.P.C. is made out and they are not found guilty of the offence punishable under Section 304 I.P.C.
In view of the matter, the conviction of the accused is altered from Section 304 I.P.C. to 304 Part-II I.P.C.
After considering the rival submissions made by learned counsel for the appellant, considering the facts and circumstance of the case, considering that the alleged incident which took place in the year 1974 about 46 years ago and now appellant is more than 75 years of age, both the parties are resident of same village, at this stage, this Court feels that it would not be proper to sent the accused-appellants to jail at the fag end of their lives and the accused were on bail since 21.12.1981 and the accused persons have suffered the agony of conviction for more than 39 years and no criminal antecedents have been shown to their credit after passing of so much long period out of jail, at this stage it does not appear appropriate to send the accused-appellants to jail. It has been pointed out by learned counsel for the accused- appellants that the accused-appellants had remained in jail for sometime during trial and after conviction. Considering all these facts, it would be appropriate and proper that the accused be sentenced with the period already undergone in prison by them and the amount of fine be enhanced.
In the result the conviction of the present accused is altered from Section 304 I.P.C. to section 304 Part-II and they are convicted under Section 304 Part-II with imprisonment, if already undergone in prison with fine of Rs. 5000/- each. As they are old persons, they are directed to deposit Rs. 5000/- each in the court concerned within six months from the date of passing of the order.
Office is directed to transmit the lower court record along with a copy of this judgment to the learned court below for information and necessary compliance as warranted.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the learned counsel for the applicant alongwith a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 6.1.2021 Faridul