Court No. 47
Reserved on 22.05.2018 Delivered on 31.05.2018 Case :- CRIMINAL APPEAL No. - 2155 of 1995 Appellant :- Shree Ram Yadav And Another Respondent :- State Of U.P.
Counsel for Appellant :- H.P. Mishra, D.K.Singh, Ravi Shanker Yadav, S.D.N. Singh, Saumya Chaturvedi, amicus curiae Counsel for Respondent :- Govt. Advocate,Inder Kumar,Ravindra Singh
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Mukhtar Ahmad,J.
[Delivered by Ram Surat Ram (Maurya), J.]
1. Heard Ms. Saumya Chaturvedi, Amicus Curiae for the appellants and Sri I.P. Srivastava, A.G.A. 1st, for State of U.P.
2. Shree Ram Yadav and Daya Ram Yadav (the appellants) have filed the present appeal from their conviction and sentence passed by 1st Additional Session's Judge, Jaunpur, dated 15.12.1995, in S.T. No. 199 of 1986, State vs. Shree Ram Yadav and Another, (arising out of Case Crime no. 217 of 1986, under Section 302/34 IPC, P.S. Line Bazar, district Jaunpur) convicting them under Section 302 read with Section 34 IPC and awarding sentence of imprisonment for life.
3. On the written complaint (Ex-Ka-1) of Rajendra Prasad Yadav (PW- 1), FIR (Ex-Ka-5) of Case Crime No. 217 of 1986 was registered under Section 302/34 IPC at P.S. Line Bazar, district Jaunpur, against Shree Ram Yadav and Daya Ram Yadav (the appellants) on 18.07.1986 at 8:50 AM. In the FIR, it has been stated that today, in morning, the first informant, his brother Radhey Shyam and his father Manohar, were planting paddy crop in his plot, situated at village Birhadpur. Shree Ram Yadav and Daya Ram Yadav, residents of his village, whose plot is adjoining to the plot of the first informant, came there and began to say that they had dismantled the demarcation line (mend) and encroached in his plot. On which his brother told that he was planting paddy crop in his plot and if they had any objection in this respect, then they could get it decided after measuring these plots, on which, they went back abusing. The first informant, his brother and father indulged in plantation of paddy crop. After sometime, at about 08:00 AM, Shree Ram, armed with a knife and Daya Ram, armed with a gun, came on the spot and caught hold his brother Radhey Shyam and began to say to uproot the planted paddy crop by the side of the mend of their plot, on which his brother told that without measurement, he would not uproot the paddy crop. On which Shree Ram Yadav and Daya Ram Yadav told “sala will not abide”. Daya Ram tried to dash down Radhey Shyam, while Shree Ram inflicted knife blow on the back of Radhey Shyam. At that time, Bansh Raj son of Samjhawan Yadav and Hari Lal son of Ram Kishore Yadav, residents of his village had also come. Seeing them Shree Ram Yadav and Daya Ram Yadav went from the spot, terrorizing them with the gun and knife. His brother Radhey Shyam died on the spot due to that injury.
4. After registration of FIR, S.I. Mahmood Alam started investigation. He recorded statements of Rajendra Prasad Yadav and Head Constable Laxman Singh Yadav. Thereafter, he went on the spot. He appointed Panches and prepared Inquest (Ex-Ka-4) of Radhey Shyam during 10:50 AM to 12:20 PM. He took plain and blood stained mud from the spot and prepared its recovery memo (Ex-Ka-5). He prepared site plan (Ex-Ka-6). He prepared photo lash, letters to RI and CMO for postmortem (Ex-Ka-10 to Ka-14) and handed over dead body to constable Vijay Bahadur Yadav (PW-5) and constable Surendra Singh take it to mortuary. Thereafter, SHO Raj Narain Tiwari (PW-7) undertook investigation. He recorded statements of Banshraj, Hari Lal, Manohar, other witnesses of the spot and witnesses of Inquest. He arrested the accused Shree Ram and Daya Ram on 22.07.1986 and on pointing out of Shree Ram, the knife used for committing the crime, was recovered and its recovery memo (Ex-Ka-8) was prepared. He prepared the site plan of the place of recovery (Ex-Ka-9). He took possession over SBL Gun No. 343284, belonging to Daya Ram Yadav. After investigation, he submitted charge sheet (Ex-Ka-15) on 02.08.1986. On which cognizance was taken.
5. Dr. Hari Kant Tiwari (PW-4) conducted postmortem of Radhey Shyam on 18.07.1986 at 09:30 PM. In postmortem report (Ex-Ka-3), single injury, i.e. incised wound of 2.5 cm x 1 cm on the left side of back, near the middle border of scapula, at the level of T-4 Spine, by examining through finger, it felt that the wound proceed from the 4th rib towards left lung. This wound by cutting the membrane of left lung, reached upto the lowest part of wind pipe. In the pleural cavity, about 2 litre of blood was found. Heart and blood vessels were found empty. In the lower lobe of left lung, towards upper side, incised wound of 2 cm x 0.5 cm was found. The stomach was found empty. In small intestine, semi digested food was found and large intestine was found empty. In internal damages, the 4th rib was ruptured and bronchi was cut. Cause of death was noted as 'hemorrhage and shock, as a result of ante mortem injuries'. Duration of death has been noted as about half to one day.
6. On committal, the case was registered as ST No. 199 of 1986. III Additional Session's Judge framed charges on 12.11.1986. The appellants denied the charges and claimed trial. In order to prove the charges, the prosecution examined Rajendra Prasad (PW-1)- the first informant and an eye witness. Bansh Raj (PW-2)- an independent eye witness, Hari Lal (PW-3)- an independent eye witness, Dr. Hari Kant Tiwari (PW-4) to prove postmortem report (Ex-Ka-3), Constable Vijay Bahadur Yadav (PW-5), who carried the dead body of Radhey Shyam for postmortem, Sabhajeet (PW-6) to prove recovery of knife, Raj Nath Tiwari (PW-7)- Second Investigating Officer, to prove investigation and charge sheet. Documentary evidence were also filed.
7. After completion of evidence of the prosecution, all incriminatory facts and materials were put to the appellants under Section 313 CrPC. They denied evidence and materials and have stated that they were falsely implicated due to enmity. They did not adduce any evidence in their defense. It may be mentioned that the case i.e. ST No. 198 of 1986, State vs. Shree Ram Yadav, under Section 25 of Arms Act, 1959 was also consolidated and decided along with ST No. 199 of 1986, which resulted in acquittal as Sabhajeet (PW-6), witness of recovery turned hostile. No appeal has been filed from acquittal as such facts relevant to that case are not being noticed.
8. After hearing the parties, Additional Session's Judge by the impugned judgment found that from site plan (Ex-Ka-6), recovery of blood stained mud (Ex-Ka-2) and the evidence of witnesses, the place of occurrence has been proved, which was south-east corner of the plot of the deceased, where the paddy crops were recently planted. FIR of the occurrence was lodged on 18.07.1986 at 8:50 PM. Distance of police station from the place of occurrence was 8 KM, which could be covered within 15 minutes. The argument of the defense that FIR was ante-timed has no force. From the contents in the stomach and small intestine, the duration of death cannot be exactly ascertained, as medical report is merely an opinion of expert. The suggestion of defence that murder had taken place in the night, has not been accepted. The motive for commission of crime has been proved. From the side of the defence also, they had tried to show that due to enmity, they were falsely implicated. The witnesses could not be discarded only on the ground that they were enemical or interested witnesses. Presence of the witnesses at the place of occurrence is natural. Contradictions in statements of witnesses are not material fact relating to the murder. Minor contradictions were due to the fact that statements of the witnesses were recorded after eight years of the incident. Non-examination of SI Mahmood Alam, first investigating Officer does not cause any prejudice to the accused. Sabhajeet (PW-6) has denied recovery of knife, as such, recovery of weapon (knife) was not proved. From the statements of eye witnesses Rajendra Prasad, Bansh Raj and Hari Lal (PW-1, 2 and 3), the charges against the appellants have been proved. On these findings, he dismissed S.T. No. 198 of 1986, under Section 25 of Arms Act, 1959 but held the appellants guilty under Section 302, read with Section 34 IPC and awarded imprisonment for life, in S.T. No. 199 of 1986, under Section 302, read with Section 34 IPC. Hence, this appeal has been filed.
9. The counsel for the appellants submitted that the motive was not proved inasmuch as it is alleged that the dispute had taken place due to dismantling the mend but in site-plan this fact has not been noticed. On the other hand, it was noticed that the appellants had already sown corm crop in their plot, which was grownup. Although occurrence is alleged to take place at 8:00 AM, but FIR was lodged at 8:50 AM, although distance of police station from place of occurrence was noted as 8 KM and Rajendra Prasad (PW-1) admitted that after incident, he remained on the spot for about 30 minutes. Which proves that FIR is ante-timed. The incident took place in dark hour of night and no one had seen the assailant. In postmortem report, the stomach was found empty and in small intestine, semi digested food was found, which proves that incident might have taken place after five-six hours of taking food in night. Place of occurrence is not proved. Although it is alleged that the deceased had fallen down in mud but on his clothes or body mud was not noticed either in Inquest or in postmortem report. Presence of the witnesses are highly doubtful. Rajendra Prasad (PW-1) (aged about 26 years) and Manohar, (the brother and father of the deceased) were claiming to be present on the spot but they did not try to interfere in scuffle between the deceased and Daya Ram nor thereafter they shouted and tried to apprehend the accused. It was alleged to be a daylight incident. It was not possible for the accused to fled away from the spot, as two family members and several persons of the village were present and the place of incident was surrounded by abadi in two sides. Radhey Shyam, the deceased received a single knife injury, it was natural for the witnesses to provide him first aid to stop bleeding or to take at Primary Health Centre which was at a distance of about 2 KM. From their conduct, it is proved that they were not present at the time of incident and did not see it. Banshraj (PW-2) is a chance witness. He had no occasion to go to his sugarcane field, as on 18 July, nothing was required to be done in sugarcane crop. There is contradiction between the statement of the witnesses relating to rainfall in night. Story that there was scuffle between Daya Ram and the deceased at the time of the incident is false, inasmuch as Daya Ram was allegedly armed with gun and a person armed with gun will never involved in scuffle as in scuffle, gun may be snatched. Recovery of knife is not proved as such the appellants are entitled for benefit of doubt. First investigating officer was not examined as such part of investigation was not proved. In alternative, she submitted that it was a sudden quarrel between the parties, in which Shree Ram inflicted single knife blow. Although Daya Ram was armed with the gun but it was not used, which shows that the appellants had no intention to cause death of Radhey Shyam. At the most, they are liable to be punished under Section 323 read with Section 34 IPC.
10. We have considered the arguments of counsel for the parties and examined the record. In order to prove charges, the prosecution examined three eye witnesses. Rajendra Prasad Yadav (PW-1) is elder brother of the deceased. He stated that on the date of incident at about 8:00 AM, he, his brother Radhey Shyam and his father Manohar, were planting paddy crop in his plot, situated at village Birhadpur. The accused Shree Ram and Daya Ram came there and started saying that they had cultivated more land encroaching in their adjoining plot. On which his brother told that he had cultivated his plot and planting paddy crop in it. If they had any objection in this respect, then they could get measured these plots and get it clear, on which, they went back abusing. The witness, his brother and father indulged in plantation of paddy crop. After about 10 to 15 minutes, Shree Ram, armed with a knife and Daya Ram, armed with a gun, came on the spot. They caught hold Radhey Shyam and told to uproot the planted paddy crop by the side of the mend of their plot, on which his brother told that without measurement, he would not uproot the paddy crop by the side of mend. On which the accused told “sala will not abide, kill him”. Daya Ram tried to dash down Radhey Shyam, while Shree Ram inflicted knife blow on the back of Radhey Shyam. Radhey Shyam fell down in the field due to that injury. Banshraj was present there prior to the incident. Hari Lal also came there. They tried to apprehend the accused. The accused fled away from the spot towards south-east, terrorizing them with the gun and knife. Radhey Shyam died on the spot. Blood oozed from his injury and fallen on the spot. He left the dead body on the spot and went to his house, where he scribe the complaint. He went to police station Line Bazar along with Banshraj and gave his complaint on which FIR was lodged. Investigating Officer recorded his statement and went on the spot and sealed the dead body. The accused went on his field along with knife and gun with an intention to kill them.
In cross-examination, he denied that Sarup was brother of Hargen (his grand father). Samjhawan was the father of Hanshraj. He did not know as to whether Sarup was father of Samjhawan. Ramraj was brother of Banshraj. His house and house of Banshraj were separate. Hari Lal belonged to Yadav caste but was not his collateral. He cannot tell the approximate area of the land in which they were planting paddy. Land of Banshraj situates in south of his land. He could not tell the area of that plot also. Land of Sagir Ahmad situates in east of his land. Land of the accused situates in south of the land of Sagir Ahmad. The plot of the accused adjoins with his plot upto some distance. In the same way the plot of the accused adjoins with the plot of Banshraj upto some distance. He denied that Mahip was his collateral, whose property was acquired by Bujharat and later on it was purchased by the accused. He denied that his father wanted to purchase the property of Bujharat, which was purchased by the accused. mend of plot of Sagir Ahmad runs in straight up to his plot. He denied that mend of his plot is towards west after the plot of Sagir Ahmad. No dispute was ever raised by the accused in respect of demarcation line (mend) of their plot with them. The accused were not cultivating their plot after murder of Radhey Shyam. It is incorrect to say that they had forbidden the accused from cultivating their land. He denied that they were raising dispute in cultivation of the accused of their plot from the date when they had purchased it from Bujharat. Harizen abadi situate at a distance of about 100 paces from the place of occurrence. In that abadi, houses of Buddha, Nihore, Lalta, Shobhai, Suddha and Dasai were lying. They were at their house at the time of incident but no one had come. The plot of Jang Bahadur situating in north of his plot was vacant at the time of occurrence and in plot Sher Bahadur sanai crop was sown. In plot of Sagir, corn was sown. In west of pokhra of his plot, Fateh Bahadur was preparing for sowing crop. He cannot name the persons whose land situates near the plot of incident. No one had come on the spot at the time of occurrence from nearby plots. Border of village Ahirauli and Birhadpur adjoins at his plot of incident. His plot situates at village Birhadpur, while plot of Sagir Ahmad situates at village Ahirauli. He was resident of village Ahirauli. The accused were also residents of village Ahirauli. Abadi of village Ahirauli situates at a distance of 100 to 150 paces from the place of incident. He denied any quarrel being taken up in respect of land of the accused, in which Thakur Radhey Singh held any pachayat between them and made them to understand and not to create any dispute in cultivation of the accused. He denied that father of Hari Lal had any plot in east of the plot of the accused and Banshraj had any plot in west of the plot of the accused or Hari Lal and Banshraj had encroached 6 decimal land of the accused. He admitted that Primary Health Centre situates at Sikrara, which was a block and at a distance of 1.5 to 2 KM from his village. House of Banshraj situates in south of his land at a distance of 100 to 150 paces, near his house. But they had separate houses. There was no other house in between his house and house of Banshraj. He denied that walls of their house adjoined. Nursery of paddy crop was at a distance of 150 paces from the plot where it was planted by them. Planting was started on that day. They ploughed the plot two-three days before. They uprooted seed crop of paddy one day prior to the incident. Apart form three persons, no other person was planting. They have brought seed crop at one time before starting planting. They used to sow paddy in that plot in every year but the accused never raised any objection prior to this incident. On that day, they had not dismantled mend of the accused. Apart from this land dispute they did not have any other dispute with the accused. They reached on the plot of incident at 7:00 AM along with his brother Radhey Shyam and father Manohar. They had not taken meal. Last night at about 7:00 to 8:00 PM, he had taken meal. Radhey Shyam did not take meal with him. He might have taken meal prior or after his taking meal. At 9:00 to 10:00 PM, they finished meal. He might have taken meal prior to it. They had spread the seed crop of the paddy, which was taken to that plot on the same day. That place was at a distance of 15 paces from place of incident. They had taken about 50-50 lots of seed crop of paddy, which took 15-20 minutes. They did not have any danda lathi. Their house was at a distance of 200 to 250 paces from the place of incident. He did not remember the plot number but its area was about 10 to 12 biswa. Present demarcation line was existing prior to murder of Radhey Shyam, which was not dismantled by them. They ploughed the plot two-three days propr to the incident. Rain was fallen, then he had ploughed. At the time of plantation, there was some rain water in his plot. Somewhere it was about two fingers while somewhere only mud was there, in which plantation can be made. When the accused came there first time it was at about 7:45 AM. They were standing at a distance of two-three hand from each other, while planting. If it has not been mentioned in FIR and the statement recorded by Investigating Officer that “the accused told to uproot the paddy planted by the side of their mend,” then he cannot give any reason. In first altercation, he and his father did not involve and remained silent. Radhey Shyam was talking. No other person were working in adjoining plots. They went back to their house, while abusing. The accused did not have any arm when they came first time. House of the accused was at a distance to 250 paces from the place of incident. After 10-12 minutes, the accused returned back. Incident took place in corner of the plot at a distance of 2-3 paces from mend. He saw that Daya Ram was armed with gun and Shree Ram was armed with knife. They were under terror but did not runaway from the spot nor shouted. They stopped plantation and stand up. Daya Ram caught hold Radhey Shyam and told to uproot the paddy by the side of mend which was refused by him. He and his father proceeded to Radhey Shyam to get rid of him but could not reach there. Radhey Shyam also tried to get rid of. Scuffle took place about one minutes with his brother. Daya Ram get Radhey Shyam bent down from waist. Blade of knife was about 5 to 6 finger and handle was about 4 to 5 finger long. Shree Ram inflicted single blow of knife from which Radhey Shyam fell down. They tried to apprehend them but the accused fled away terrorizing them. Daya Ram did not open any fire at the time of incident. He, his father, Banshraj and Hari Lal did not receive any injury in this incident. When they came second time, then 3-4 minutes took place in altercation and assault. During this period, they did not try to save Radhey Shyam. Radhey Shyam fell in right direction on the spot. Blood spread there. When they examined Radhey Shyam, he had died as such they did not lift him nor they tried to stop bleeding from injury. They did not try to see the injury changing his direction nor tried to tie bandage on the injury. They did not try to remove him from mud and water nor bring cot to him. They examined his pulse and breathes. Daya Ram had licensed gun, which he was having at the time of incident. In morning, when sun was rising, they went at the field for plantation of paddy crop. They took ten minute in reaching at the field. After about one and half hour, the accused came on their plot for the first time. They did not have kudal etc. He his brother and father were planting paddy crop. They planted in any area of half biswa. Radhey Shyam died on spot and could not be taken to hospital nor he could be taken to house. After lodging FIR, he reached his house about 9:00 AM, at that time police did not reach. The police reached about 9:15 AM. Dead body of Radhey Shyam remained in the field for about 1.5 to 2 hours. The police brought out the dead body from mud and sealed it in same condition. They did not wash mud from dead body. Dead body was lying in right direction. At that time no ladies of the house came there. Radhey Shyam had taken meal in night at about 10:00 PM. In morning, when they went for plantation, they did not take break-fast. The ladies of his house did not go for plantation in morning. At that time there were 3-4 ladies and 4-5 children at the house, who were doing other domestic work. His house and house of the accused were visible from the place of incident. When first time the accused came, they did not have arms. Second time, when they came, they were armed, which was seen by him from a distance of 10 paces. They did not run, seeing the gun. Daya Ram hanged the gun on his shoulder. About half hours, scuffle took place. He did not know difference between a karauli and knife. Blood was lying in an area of 1.5 to 2 hand. On the day of incident, there was no rain fall. Sugarcane of Banshraj were about two feet high. He denied the suggestion that place of incident was different. He denied the suggestion that on place of incident, no blood was found. He denied the suggestion that the deceased was a man of loose character due to which he was murdered some where else in night by unknown assailants.
11. Bansh Raj (PW-2) stated that on 18.7.1986 at about 8:00 AM, he had gone to his sugarcane field. The land of Radhey Shyam is adjoining to his sugarcane field in its north. He had gone there to repair the demarcation line (mend) for collection of rain water in his field. In the field of Radhey Shyam, paddy crop being planted by Manohar, Radhey Shyam and Rajendra Prasad. Daya Ram was armed with gun and Shree Ram was armed with knife came there. They told Radhey Shyam to uproot the paddy crop, which was planted by the side of their mend. Radhey Shyam told that first you get measurement of both the plots and in case it was fallen in your field then he would be uprooted the paddy crop. On which Daya Ram exhorted that he will not understand in this way. Daya Ram catch hold to Radhey Shyam and try to dash down him. Shree Ram inflicted knife blow on the back of Radhey Shyam due to which Radhey Shyam fell down and died in his field itself. The incident was seen by him and Hari Lal. Blood was oozed on the spot. Investigating Officer came on the spot and done inquest of the dead body. He had made site plan as well as recovery memo of the blood stained mud.
In cross-examination, he has stated that on the date of incident, rain was fallen in night. There was heavy rain. He went on his field at 7:30 AM in morning. Since then he was through out in his field. He was at a distance of 7-8 paces from the place of incident at the time of incident. Manohar, Rajendra and Radhey Shyam were planting paddy crop since before his arrival at his field. On the date of incident, the Investigating Officer did not record his statement. He stated in his statements that in the night there was rain fall and he went at his field in the morning. If this was not written by the Investigating Officer, then he could not give any reason about this. In the field in which Manohar, Radhey Shyam and others were planting paddy , there was water at some place and mud at some place. The paddy could be planted in the water as well as in the mud also. Ladies of house of Manohar were not planting paddy at that time. Sugarcane crop was about 3 feet in height. His plot was adjacent to plot of Radhey Shyam and have common mend. He was repairing his mend standing in the field of Radhey Shyam. Nursery of paddy crop seed was at a distance of 100 paces from the place of occurrence. Area of that plot was about 1 biswa. At the time of incident, someone else were uprooting the nursery of paddy crop while Manohar, Radhey Shyam and Rajendra were planting the seed paddy crop. The crop of paddy was carried by the children up to the field. Investigating Officer did not make any inquiry in respect of nursery of paddy crop. He also did not go at the plot of nursery. About half biswa land was planted in the east-south corner of plot where the land of Shree Ram and Daya Ram, the accused was situated. The mend was not dismantled at that place. Daya Ram armed his gun at his shoulder and caught hold Radhey Shyam from his both hands. When he tried to dash down Radhey Shyam, at that time Shree Ram inflicted blow of knife from the back side. He denied that half an hour had taken in this incident. There was black colour handle of knife which was about 10-11 finger breadth. The blood was oozed on mud. Neither it was filled with water nor it was dry. It was fallen in the area of about one hand. After receiving injury Radhey Shyam was fallen towards back side. After falling Radhey Shyam, they chased to apprehend the accused but could not apprehend them. He denied that Radhey Shyam was carried on cot to the hospital and Doctor had declared Radhey Shyam as dead. Manohar and Rajendra examined Radhey Shyam and found him dead. Then they left the dead body there. The other family members of Radhey Shyam came there after 10 minutes. Ladies came there and begun to weep. After about two hours of the incident, the Police came on the spot. When Police came, then he was not present on the spot as he remained at Line Bazar police station for his work. The Police came on the spot at about 10:30 to 11:00 AM. The witness was examined at length but nothing adverse had been stated by him.
12. Hari Lal, PW-3 has stated that on the date of incident at about 8:00 AM, he was going to take laborers at Harijan Basti, then he found that Shree Ram and Daya Ram were telling Radhey Shyam that he had dismantled their mend. Then Radhey Shyam told them that they got their land measured then Dayaram said to Shree Ram to kill Radhey Shyam. Dayaram was armed with gun and Shree Ram was armed with knife. They tried to dash down Radhey Shyam then Shree Ram inflicted knife blow to Radhey Shyam, which caused injury on his back. After receiving injury, Radhey Shyam fell down upon the land and died. Apart from him, Bansh Raj (PW-2) was also reached at the place of occurrence, who saw the incident. Radhey Shyam, Manohar and Rajendra were planting paddy crop in their field in which Radhey Shyam was killed. They were tried to apprehend the accused but they fled away towards south. The Investigating Officer came on the spot and prepared recovery memo which was also signed by him.
In cross-examination, he stated that his house is situated in west of the house of Rajendra at a distance of 100 paces. He went for taking labourers at 7:45 AM. There was heavy rain fall in the last night due to which pokhary etc were filled up with water. The place of incident was at a distance of 100 to 150 paces in north -east from his house. In the west of field of Rajendra, there was pokhary , which was filled up with water. In the east of field of Rajendra, there was Harijan basti at a distance of about 150 paces. His statement was recorded by the Investigating Officer. He was examined at length.
13. So far as place of incident is concerned, all the witnesses of fact have stated that Radhey Shyam and others had planted paddy in the south -eastern corner of their field. In the site plan, the Investigating Officer has found plantation of paddy crop in an area of 7 paces on one side and 6 paces on another side in south-eastern corner of the filed of Radhey Shyam. Dead body of Radhey Shyam was found in the middle of this planted area of paddy crop , where there was mud on the spot. Blood stained mud was collected from the place of occurrence. Thus it cannot be said that place of occurrence was not proved. It may be mentioned that from the injury there was much internal blooding than the external blooding. But the blood stained mud was collected by the Investigating Officer as such place of occurrence was fully established.
14. In view of the evidence on record, it comes out that FIR of this incident depicts two incidents. First incident occurred when deceased, his brother and father were planting paddy crops in their plot then accused Shree Ram and Daya Ram Yadav came there and started saying that they had cultivated more land by encroaching their adjoining plot, on which deceased told that he had cultivated his own plot and planting paddy crop in it. If they have any objection in this respect, they could get these plots measured and get it clear on which both the accused persons went therefrom abusing. Second incident took place when after 10-15 minutes both the accused persons returned on the spot. At that time accused Shree Ram was armed with knife and Daya Ram was having gun in his hands. PW-1 Rajendra Prasad in his oral testimony at page 12 states that they came mum without any exhortation. They began to say to uproot the paddy crop by the side of mend of their plot, on which deceased told that without measurement he would not uproot the paddy crop, on which Daya Ram caught hold the deceased Radhey Shayam and tried to dash him down. Shree Ram inflicted knife blow on the back of Radhey Shyam due to which he fell down and succumbed to the injuries sustained. This witness further says at page 28 that scuffling between Radhey Shayam and Daya Ram took place about 1/2 an hour. The prosecution evidence is of this effect that though Daya Ram was having gun but it was not used in the incident even at the time of scuffling and catching hold of the deceased, he put the gun on his shoulder, which appears to be unnatural particularly when father and brother of the deceased were also present there. PW-1 at page 24 says that he and his father were kept mum and they did not participate in the altercation took place between deceased and accused persons which also appears to be unnatural conduct of father and brother of deceased. After death of deceased on spot he was neither taken from the field nor any effort was made on their behalf to stop the bleeding of Radhey Shyam. There is no evidence of this effect that any effort on the part of any eye witness was made to take the victim out of the grapples of accused persons. This may not be in accordance with the normal behavioral pattern. In these situation, the participation of accused Daya Ram in the incident, appears to be doubtful.
15. In Manoharan and ors. Vs. State, rep. By S.I. Of Police, Chevayur 2003 (2) ACr R 1564 (SC) three accused persons, alleged to have caught hold of victim to facilitate stabbing by other accused, were acquitted providing benefit of doubt on the ground that no effort by the witness was made to take the victim out of grapples of the accused persons, considering it not in accordance with the normal behaviour.
16. In view of the above, we consider that appellant Daya Ram is liable to be acquitted giving benefit of doubt.
17. So far as motive is concerned, according to the prosecution , the accused made allegation that deceased encroached upon their land and dismantled their demarcation line (mend) , which was denied by the deceased as well as his family members. The incident was caused for this reason. From the side of defense , it was tried to prove that accused had purchased the land of Bujharat, which was objected by father of the deceased but no documentary evidence has been filed in this respect showing that sell transaction was taken place at the time of incident. Thus there was no chance of false implication of the accused, while motive as alleged by the prosecution is fully proved from the statements of the witnesses of fact. In any case, where eye witnesses were present, this has no impotence.
18. So far as the argument that the FIR was ante-timed is concerned, it was not liable to be accepted inasmuch as village Birhadpur , the place of occurrence is shown at a distance of about 8 KM from police station Line Bazar. Judicial notice may be taken that police station is within the limit of Jaunpur city while village Birhadpur is shown towards west on Jaunpur -Allahabad Road. Thus village Birhadpur might be on State Highway, where the conveyance may be available at every time. No question in this respect has been put to first information.
19. Now we have to consider that the matter in respect of appellant Shree Ram Yadav. It is the prosecution version that appellant Shree Ram Yadav stabbed on the back of the deceased which proved fatal and this fact has been established by the witnesses adduced on behalf of the prosecution. Admittedly, single injury was caused to the deceased and no effort for causing repeated injury was made by appellants Shree Ram Yadav, who is said to have ran away from spot after the incident.
20. Considering the facts on record it appears that altercation between appellant Shree Ram Yadav and deceased occurred which converted into sudden fight and accused Shree Ram Yadav in heat of passion caused stab injury and thereafter he succeeded in running away from the spot. Further he did not take any undue advantage or acted in a cruel manner, which reflects from his conduct of causing single injury.
21. Learned counsel for the appellant has lastly contended that matter in hand does not fall within Section 302 I.P.C. and considering the single injury and all round facts at the most it was a case under Section 324 I.P.C but learned counsel has failed to demonstrate as to how this case shall come within the ambit of Section 324 I.P.C. Hence, we found no force in the argument.
22. The question however still remains considering the nature of offence committed by accused Shree Ram Yadav, as to whether it falls under exception 4 of Section 302 I.P.C.
23. In the case of Surinder Kumar vs Union territory of Chandigarh (1989)2 SCC 217, the Apex Court has held as under:-
"7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv)The assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds 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 manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly."
(emphasis supplied)
24. Further in the case of Arumugam v. State,(2008) 15 SCC 590 at page 595 in support of the proposition of law that under what circumstances Exception 4 to Section 300, IPC can be invoked if death is caused, it has been explained as under:-
"18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight;
(c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage' as used in the provision means ''unfair advantage'."
25. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder then the same would fall under Section 304 Part II. We are inclined to accept the view that in the facts and circumstances of the present case, it cannot be said that the appellant/accused had any intention of causing the death of the deceased when he committed the act in question. The incident took place out of sudden fight and scuffling in heat of passion hence the accused is entitled to the benefit of Section 300 Exception 4 of IPC.
26. In this matter it is a fact that there was exchange of heated conversation and just there after sudden scuffling took place between appellant and deceased in heat of passion. Level of preparedness namely being armed with knife was not such that it could be called a premeditation attack, coupled with this fact also that appellant caused a single stab injury and co-accused Daya Ram did not use the gun. Absence of any repetition of blow clearly reveals that the appellant did not take any undue advantage of his having been armed with knife or having acted in any cruel or unusual manner. Thus, in entirety, considering the factual scenario of the case in hand, the evidence on record and in the background of legal principles laid down by Apex Court in the cases referred to above, we are inclined to hold that the case of appellant Shree Ram Yadav comes under Exception 4 to section 300 IPC. and as such, the appropriate conviction of the appellant would be under Section 304 Part II, IPC instead of Section 302 IPC. Consequently the conviction of appellant Shree Ram Yadav is modified from 302 IPC into one under Section 304 (II) IPC.
27. In view of the above discussions, the appeal is partly allowed. Appellant Daya Ram Yadav is acquitted of the charges giving benefit of doubt. He is already on bail, his bail bonds are cancelled and sureties are discharged from their liability. Appellant Shree Ram Yadav is convicted under Section 304 part II, I.P.C. and awarded 10 years rigorous imprisonment and fine of Rs. 10,000/- and in default of fine he shall further undergo imprisonment for the period of 6 months. The period already undergone shall also be adjusted as per Rules.
28. Office is directed to communicate this judgment to the Trial Court concerned for ensuring compliance, under intimation to this Court. Original record be also returned.
29. Ms. Saumya Chaturvedi, Amicus Curiae, who had argued this case on behalf of appellants shall be paid Rs. 10,000/- (ten thousand) as her fee.
Order Date :- 31.05.2018 Rahul/-
[Mukhtar Ahmad] [Ram Surat Ram (Maurya)]