JUDGMENT R.C. Deepak, J.
1. The criminal appeal No. 1063 of 1981 of Shiva Nath Singh and Dhanraj Singh and criminal appeal No. 1520 of 1981 Kunwar Singh and Hargobind Singh arise out of case crime No. 110 of 1978 under Sections 302/34 IPC in S.T. No. 201 of 1979 are connected and have been filed against the judgment and order dated 11.5.1981 passed by Sri L.S.P. Singh, learned IV Additional District & Sessions Judge, Kanpur whereby he convicted the abovenamed appellants under Sections 302/34 IPC. The appellants-accused Shiva Nath Singh and Dhanraj Singh have been awarded life imprisonment whereas the remaining two appellants, being minor, released on probation for good conduct for a period of 3 years. The informant Udai Brian Singh has preferred criminal revision No. 1162 of 1981 against the sentence of Kunwar Singh and Hargobind Singh. This criminal revision relates to the same subject matter, therefore, they are heard together and decided by a common judgment and order accordingly.
2. The facts in brief of the prosecution case are that on 29.7.1978 at about 5:00 a.m. Kanchan Singh (deceased) was lying on a cot in front of his kothri of tube-well, which is situated at a distance of two pharlang from the abadi side. His son, Udai Bhan Singh (informant) was sitting nearby. It is alleged that the accused Shiva Nath Singh, Dhanranj Singh, Kunwar Singh and Hargobind Singh armed with lathis reached there; that surrounded Kanchan Singh and assaulted him with lathis on the exhortation of co-accused Kunwar Singh. On alarm raised by Kanchan Singh and Udai Bhan Singh, the witnesses Jaipal Singh, Laakhan Singh and Sohan Singh reached there and witnessed the occurrence. They made a challenge to the accused, who flew from there leaving Kanchan Singh in an injured condition. He was brought to Derapur Primary Health Centre where his injuries were examined by Dr. Suresh Chand (P.W.6) the same day at 9:25 a.m. and he prepared the injury report (Exhibit Ka-10) accordingly. The reproduction of the injuries is not warranted at this stage, as the injuries found on the person of the deceased as disclosed in the injury report and the postmortem examination report are the same so the injuries found in the postmortem examination report would be referred at the preceding paragraph.
3. Udai Bhan Singh submitted a written application at the police station Derapur in regard to the occurrence and on its basis the first information report was lodged, which was registered as case crime No. 110 of 1978 under Sections 308, 325, 323 IPC at 9:35 a.m. at chik report Exhibit Ka-1 by S.I. Giriraj Singh (P.W.7), who was then posted as head moharrir at the police station Derapur against the abovenamed accused. The G.D. was also prepared as Exhibit Ka-11.
4. Kanchan Singh was brought to the U.H.M. Hospital, Kanpur where he died of injuries on 12.8.1978. Thereafter the case was . converted under Section 304 EPC. The inquest on the dead body of the deceased was prepared by S.I. G.P. Maurya (P.W.8) as Exhibit Ka-18. The postmortem on the dead body of the deceased was conducted by Dr. R.K. Agarwal (P.W.5) and he found the following injuries on his person:
Ante Mortem Injuries I. Head
1. Healed wound 5 cm x 1 cm on (R) side of forehead above the eye brow.
2. Healed wound 5 cm x 1 cm on (L) side of scalp extending ...(Paper Torn) side also for 1 cm / 8 cm above (L) eyebrow & 12.5 cm above (L) Ear.
3. Healed wound 1.5 cm x 1 cm (R) side of scalp posteriorly.
II. Lower Extremity
1. Surgical wound 2 cm with polythene tube / cut open / on (L) medial wall sic line.
2. Healed abrasion 1.5 cm x 1.5 cm, 4 cm above Injury No. 1 on (L) Leg.
3. Healed abrasion 7.5 cm x 2.5 cm on (L) leg 2 cm above Injury No. 2.
4. Healed wound 7.5 cm x 1.5 cm on (L) leg 5 cm above Injury No. 3.
5. Healed abrasion 2 cm x 1 cm just below (L) knee.
6. Abrasion Healed 1.5 cm x 1 cm just above (L) knee.
III. (R) Lower Extremity (R)
1. Healed cut open wound 1 cm x 1 cm medial side (R) ankle.
2. Healed wound 2 cm x 1.5 cm. 14 cm above Injury No. 1.
3. Healed wound 5 cm x 1 cm. 5 cm above Injury No. 2 IV.
Upper Extremity (R)
1. Healed / stitched wound 1 cm / 1 stitched lower-part (R) Arm.
2. Healed stitched wound 1.5 cm (2 stitched) 2.5 cm below. , (R) Elbow.
3. Healed abrasion 2 cm x 1 cm on the sic (R) wrist and (R) forearm.
4. Healed abrasion 2 cm x 5 cm on the sic (R) middle finger.
V. Upper Extremity (L)
1. Healed abrasion 1 cm x, 1 cm ... (Paper Torn) (L) forearm 6 cm above (L) wrist.
2. Contusion 2 cm x 2 cm on (L) wrist medial side.
3. Healed wound 5.5 cm x...on the...(Paper Torn) (L) forearm.
4. Healed wound 5.5 cm x...(Paper Tom) sic (L) elbow.
5. Three healed wound in an area 3 cm x 2.5 cm on (L) Arm. 16 cm below (L) shoulder.
6. Healed abrasion 2.5 cm x 1 cm on back of (L) shoulder.
VI Back
1. Bed sore wound 6 cm x 2.5 cm above the sic Healed abrasion on (L) side of back 3 cm x 3 cm sic.
5. The investigation into the case was entrusted to S.I. Chhaviraj Singh (P.W.4), who recorded the statement of Udai Bhan Singh and some other witnesses. He visited the place of occurrence and prepared the site plan Exhibit ka-2. He did not find any blood on the cot due to rainfall. He recorded the statement of Kanchan Singh / the deceased on 4.8.1978 in U.H.M. Hospital, Kanpur as Exhibit ka-3. After completion of the investigation, he submitted the charge-sheet (Exhibit Ka-8) on 15.8.1978 against the accused. The case was committed to the Court of Sessions. The charges were framed. The accused denied the charges and pleaded not guilty.
6. The prosecution examined 9 witnesses in support of its case. Out of them, P.W.1 Udai Bhan Singh, P.W.2 Jai Pal Singh, P.W.3 Laakhan Singh are the witnesses of the fact. The remaining are formal ones. The accused did adduce no evidence in defence. The trial court on the basis of the evidence on record convicted the accused under Section 302 IPC read with Section 34 IPC and awarded life imprisonment to the accused-appellants Shiva Nath Singh and Dhanraj Singh, but found the accused-appellants Kunwar Singh and Hargobind Singh about 16-17 years of age, therefore, provided benefit under the provision of U.P. Children Act and released them on probation for good conduct for a period of three years. During the pendency of the appeal, Dhanraj Singh died and his appeal has already abated.
7. We have heard Sri Anil Srivastava, learned Counsel for the appellants-accused, learned Counsel for the revisionist, learned A.G.A. for the State and perused the record.
8. Learned Counsel for the appellants-accused has confined his argument to the effect that the offence is not a murder, but a culpable homicide, at the prosecution witnesses of facts were unarmed. Had the appellants intended to kill the deceased, they had a golden opportunity to do so, but they did not do so, rather caused injuries to him and left him in an injured condition; that he did not die on the spot, but on 12.8.1978 i.e. after 15 days from the date of occurrence, that the statement of Dr. R.K. Agarwal (P.W.5) indicates that the injuries on the person of the deceased were sufficient to cause his death as well as injury No. 2 alone was sufficient for his death. No doubt these injuries are responsible for the death of Kanchan Singh, but the question arises whether the appellants had an intention to cause bodily injury or to cause death. The evidence on record shows that they had no intention to cause death, but to cause bodily injury and they did so. There is no evidence to indicate who is the author of injury No. 2.
9. We have examined the evidence on record and the prevailing circumstances and we are of the view that the appellants do not appear to have any intention to commit the murder, but to cause injuries. Since the injuries on the person of the deceased caused by the appellants are the cause of his death, therefore, we hold that they committed an offence not amounting to murder but the culpable homicide.
10. In above view of the matter, the following order is passed accordingly:
11. The appeals are partly allowed. The conviction of the appellants under Section 302 IPC is set-aside. They are convicted under Section 304 IPC and awarded sentence of 10 years rigorous imprisonment. The co-appellant Dhanraj Singh had already died and his appeal had already abated. The appellant Shiva Nath Singh is directed to be taken into custody to serve out the sentence awarded by this Court. The appellants Kunwar Singh and Hargobind Singh were minor below 16/17 years of age. The trial court has already provided them relief under the provision of U.P. Children Act and they had been released on probation of good conduct for a period of three years. This period has already expired and there is no complaint that they did not comply with the order in this regard, therefore, no interference in their sentence is warranted. The criminal revision filed by the informant in regard to the enhancement of the sentence of appellants Kunwar Singh and Hargobind Singh is hereby dismissed.
12. Let a copy of this judgment be furnished to the learned Chief Judicial Magistrate, Kanpur to ensure compliance.