JUDGMENT V.D. Chaturvedi, J.
1. Both of these government appeals have been preferred against the judgment and order dated 23.12.2000 passed by Sri P.S. Chhabara, Additional Sessions Judge, Lalitpur in Sessions Trial No. 159 of 1996 whereby he acquitted the appellants Under Section 302/34, 307/34 and 504 I.P.G., but convicted them only Under Section 304(Part II) and 324 I.P.C. without awarding any sentence. Instead, he released them on probation of three years under the Probation of Offenders Act, 1958. Govt. Appeal No. 1038 of 2001 is Under Section 378 Cr.P.C. against respondents acquittal for offences Under Section 302/34, 307/34 and 504 I.P.C. whereas Govt. Appeal No. 4138 of 2005 is Under Section 377 Cr.P.C. for the enhancement of the sentences. Both of these appeals are being disposed of by this single and common judgment.
2. The prosecution case as revealed in written report Ex. Ka-1 was that on 16.1.96 the complainant's son Rajendra Singh alongwith his friends Vijay Singh and Mahendra Singh left his village Khadobara for the house of his friend Pankaj Patwari of village Gadyane; that at about 12.30 in the noon they reached at an open place (situated in the eastern side of a canal in village Gadyane) where accused Hari Lal son of Bhagone, Sheela wife of Parsu and Chainu son of Rampe armed with axes were watching their goats which were grazing there; that as the goats had blocked the pavement, Rajendra Singh, Vijay and Mahendra drove them from the pathway, whereupon Hari Lal, Sheela and Chainu started abusing them saying that they were thieves and were carrying their goats; that Rajendra Singh and his companions objected the accused persons for levelling charge of being thieves against them whereupon a hot altercation started between the two sides; that accused Hari Lal, Chainu and Sheela surrounded them hurling abuses and started assaulting Rajendra Singh by axes till his death; that Vijay Singh and Mahendra Singh communicated this incident to complainant Suraj Singh (father of the deceased) in village Khadobara whereupon he (complainant) alongwith his brother Ranveer Singh and Rama Gadaria reached spot where Shobha Singh son of Gajraj Singh and Jasrath Singh son of Jagat Singh were sitting aside the dead body of Rajendra Singh; that Shobha Singh and Jasrath Singh, who witnessed the occurrence, narrated the incident to the complainant; that the complainant saw that dead body of his son and son's Chappals were lying in a pool of blood near the culvert of the canal. The complainant lodged the report (Ex.Ka 1) of aforesaid facts same day at 17.30 p.m. at P.S. Bar, Lalitpur.
3. The investigation was conducted by Ram Sundar Yadav (P.W.10), the then S.O. of P.S. Bar. He reached the place of occurrence, prepared the inquest report and other necessary papers and sent the dead body for postmortem.
4. Dr. A.K. Tripathi (P.W. 6) conducted the autopsy on the dead body of Rajendra on 17.1.96 at 3.00 p.m. and found following injury on the corpse of Rajendra Singh who was aged about 22 years:
1. Incised wound 11 cms x5.5 cm x bone deep, oblique on left side of neck just above left clavicle starting from 2.5 cm. lateral to sternal notch upto 7 cms medially from tip of left shoulder, elliptical in shape, tailing of wound present over left shoulder underlying muscles & blood vessels are cut. left Ist rib cut posteriorly.
5. Doctor opined that he died due to shock and haemorrhage as a result of ante mortem injury.
6. Mahendra Singh (P.W.I) who also sustained injuries in the occurrence, was medically examined on 17.1.96 at 12.45 p.m. by Dr. G.P. Ojha (P.W.9) who found following injuries on his person:
1. One oblique incised wound 9 cm x 3cm x bone deep with lymphly cover on the right side of parietal region of scalp. 2 Cm above the right pinna (right ear)
2. One oblique incised wound 9 cm x 3cm x muscle deep with lymphly cover on the left side of neck.
3. One oblique incised wound 9cm x 3cm x bone deep with lymphly cover and dry clotted blood on the right palm.
4. One oblique incised wound 11 cm x 5 cm x bone deep with lymphly cover on the back of left shoulder
5. One incised wound (Oblique) 3 cm x 1.5cm x bone deep with lymphly cover on the back of middle and distal phalanx of left thumb.
6. One oblique incised wound 5 cm x 1 cm x bone deep with lymphly cover on the back of proximal phalanx of left index finger
7. The Doctor admitted Mahendra Singh (P.W.I) in the hospital and advised for X-ray of his skull, neck, left shoulder, right hand and left hand. He opined that the injuries of Mahendra Singh were one day old and were caused by sharp and cutting object.
8. The Radiologist's report dated 18.01.96(Ex. Ka 21) revealed that injured Mahendra Singh sustained fracture in spine of scapula but Doctor saw no callus.
9. The I.O. arrested the accused Hari Lal, Sheela and Chainu on 18.1.96 on a tip off given by a person. On the pointing out by the accused Hari Lal, Sheela and Chainu, three blood stained axes were recovered by the I.O. from bushes with preparation of a memo Ext.Ka-17). The Investigating Officer also recovered a blood stained shirt (allegedly worn by accused Hari Lal at the time of occurrence) at Hari Lai's pointing out, its memo being Ex. Ka 16.
10. The Chemical Examiner reported in his report (Ex.Ka 22) that human blood was found on these three axes as also on the shirt of Hari Lal.
11. After recording the statements of the witnesses and after the usual investigation, the I.O. submitted chargesheet.
12. The trial court framed charges Under Section 302/34, 307/34 and 504 I.P.C. to which the accused persons denied and claimed to be tried. In statement Under Section 313 Cr.P.C. accused persons denied the circumstances appearing against them and pleaded that they were falsely implicated due to their enmity with Shobha Singh.
13. The prosecution produced P.W.I Mahendra Singh (injured), P.W.2 Vijay Singh, P.W.3 Shobha Singh, P.W.4 Jashrath Singh, P.W.5 Jairam, P.W.6 Dr. A.K. Tripathi, P.W.7 Surat Singh, P.W.8 Babu Singh, P.W.9 Dr. G.P. Ojha and P.W.10 Ram Sundar Yadav. The prosecution also filed the affidavits (Ext. Ka 11 to Ka 14)of formal witnesses Bhagwan Das, Radhey Shyam, S.M.H. Rijvi and Shyam Sahai Shukla (Radiologist) P.W.I to P.W.4 were the witnesses of fact whereas others were formal witnesses.
14. Accused persons produced D.W.I Govind Singh who claimed himself as the eye witness of the occurrence and stated that deceased Rajendra Singh, injured Mahendra Singh and Vijay Singh were armed with axes and they drove the goats with the intention to commit their theft; that Hari Lal objected to such theft whereupon Rajendra Singh attempted an assault upon Hari Lal by his axe which was snatched by Hari Lal; that Rajendra Singh thereafter fired at Hari Lal from a country made pistol but Hari Lal escaped; that thus a fight between Hari Lal and the deceased and his companions took place.
15. The gist of the material evidence should be given below:
P.W. 1 Mahendra Singh (Injured) deposed that on the date of occurrence he alongwith deceased Rajendra Singh and one Vijay Singh was going to village Gadyane to meet Pankaj Patwari; that at about half past 12 in the noon they reached near a canal where the goats were sitting on the pathway, therefore, he and his companions drove them from the pathway; that accused Hari Lal, Chainu and Sheela armed with axes reached there and charged them (witness and his companions) of being thieves and they (accused respondents) started abusing them; that Rajendra Singh explained that they were not thieves but were going to meet Pankaj Patwari; that the accused persons did not agree to his explanation; that Hari Lal said "YE CHOR HAIINKO MARO" and Hari Lal struck an axe blow upon Rajendra Singh; that when the witness (Mahendra Singh) reached for the rescue of Rajendra Singh, accused Hari Lal,Sheela and Chainu inflicted axe blows upon him and consequently he sustained injuries; that meanwhile witnesses Shobha Singh and Jashrath Singh of village Gadyane reached there; that Rajendra Singh after sustaining axe injury died within no time; that when he and Vijay Singh were going to communicate the incident to the deceased's father, he (witness) fell down near the canal; that he kept himself concealed in bushes where he became unconscious; that next day police took him to Lalitpur for his medical examination and treatment.
P.W.2 Vijay Singh who was accompanying Rajendra Singh and Mahendra Singh corroborated the testimony of P.W. 1 Mahendra Singh in all material particulars.
P.W.3 Shobha Singh deposed that on the date of occurrence at about half past 12 in the noon his cattle were grazing; that Hari Lal, Sheela and Chainu were also there where their goats were grazing near the culvert; that Rajendra Singh, Vijay Singh and Mahendra Singh coaxed the goats to leave the pathway whereupon the accused persons started abusing them and charged them of being thieves; that Hari Lal inflicted an axe blow upon Rajendra Singh who consequently fell down and died; that Sheela and Chainu inflicted axe blows to Mahendra Singh who sustained injuries; that Jashrath Singh of Melwara also saw the occurrence; that he (witness) and Jashrath Singh stayed there; that Suraj Singh, Veer Singh and another person reached there; that he (witness) scribed the report under the dictation of Suraj Singh. He proved the report Ex.Ka-1.
16. The evidence of P.W.4 Jashrath Singh was in tune with P.W.3 Shobha Singh. P.W.5 Jai Ram deposed that recovery of three axes and blood stained shirt was made in his presence on pointing out by Hari Lal, Sheela and Chainu. He proved its memo Ex.Ka-17 and identified these three axes and blood stained shirt in court.
17. We have heard Miss N.A. Monis, the learned A.G.A. for the appellant and Sri Rajul Bhargava Advocate for accused respondents and have also examined the record of the case carefully.
18. The learned A.G.A. argued that the acquittal of the respondents for offences Under Section 302/34, 307/34 and 504 I.P.C. was erroneous; that the offence falls well within the purview of Section 302/34, 307/34 and 504 I.P.C. instead of Section 304(Part II) and 324 IPC. She added that the trial court erred further in releasing the respondents on probation under the Probation of Offenders Act instead of sentencing them adequately.
19. The learned Counsel for the respondents argued that Sub-section (3) of Section 377 Cr.P.C. entitles the accused respondents to plead for their acquittal in an appeal against the enhancement of the sentence; that the prosecution failed to prove its case beyond doubt, hence the conviction of the respondents even for the offences under Section 304(Part II) and 324 IPC was erroneous; that Shobha Singh and Jashrath Singh, who were projected as eye witnesses, did not see the occurrence at all; that there were material contradictions in the statements of the eye witnesses. He argued further that there was nothing on record to suggest that the respondents Sheela and Chainu shared common intention with Hari Lal in causing the death of Rajendra Singh; that the occurrence took place in a sudden fight upon a sudden quarrel hence it falls within exception 4 of Section 300 of I.P.C. and thus the respondents cannot be convicted Under Section 302 IPC;
20. Firstly, we deal with the question whether witnesses Shobha Singh and Jasrath Singh were present or not at the time and place of occurrence?
21. P.W.1 Mahendra Singh injured stated in his examination in chief that Shobha Singh and Jasrath Singh of village Gadyane reached at the spot at the time of occurrence. But in cross examination he stated that Jasrath Singh and Shobha Singh were not seen by him till he remained conscious. This statement assumes more importance in the wake of statement Under Section 313 Cr.P.C. wherein respondents pleaded that Shobha Singh got them falsely implicated to misappropriate their land.
22. In these circumstances the safest course which we adopt is to ignore the evidence of P.W.3 Shobha Singh and P.W. 4 Jasrath Singh.
23. The presence of P.W. 1 Mahendra Singh (injured) and P.W.2 Vijay Singh cannot be disbelieved on the mere grounds that they were related to the deceased or there were few contradictions of minor nature in their respective statements. P.W. 2 Vijay Singh was the first person who reached village Khadobara and communicated the occurrence to the complainant who, in turn, reached at the spot and thereafter lodged the F.I.R. at 17.30 hours. In these circumstances the F.I.R. was not belated. The names of Mahendra Singh and Vijay Singh as the companions of deceased Rajendra Singh, found place in such F.I.R. Hence the presence of these two witnesses at the time and place of occurrence could not be doubted. Moreover, Mahendra Singh is a witness who sustained severe injuries in the occurrence. We, therefore, have no doubt regarding the presence of P.W. 1 Mahendra Singh and P.W.2 Vijay Singh.
24. Learned Counsel for the respondents argued that according to P.W. 1 Mahendra Singh it was Hari Lal who exhorted "YE CHOR HAIINHE MARO" whereas P.W.2 Vijay Singh stated that Sheela and Chainu exhorted "MARO SALO KO" This contradiction is not so material so as to disbelieve their entire evidence. We adopt the safest course in this behalf and ignore their statements regarding exhortation.
25. No other infirmity in the statement of P.W. 1 and P.W.2 is pointed out. They were cross-examined at length and they constantly corroborated each other in all material particulars. There is nothing to shake their trustworthiness. Hence they are reliable witnesses.
26. It will be appropriate at this juncture to examine as to how far D.W.I Govind Singh deposed the truth. He deposed that deceased Rajendra Singh and his companions were armed with axes and Rajendra Singh attempted an assault on Hari Lal by axe. According to him, Sheela and Chainu were not present there. He also stated that Hari Lal snatched his axe whereupon Rajendra Singh fired on Hari Lal but he escaped. It is not probable at all that Rajendra Singh and his companions were armed with axes and pistol yet Rajendra Singh died and Mahendra Singh sustained six serious injuries including a fracture and, on the other hand, respondent Hari Lal who was alone sustained no injury at all. His statement finds no corroboration from medical evidence. His statement is unreliable and untrustworthy hence rejected. He admitted the presence of Hari Lal at the spot.
27. Now we deal with the issue whether the death of Rajendra Singh comes within the definition of Section 300 or Section 299 I.P.C.
28. The evidence available on record is to the effect that Hari Lal inflicted an axe blow (which is deadly weapon) upon the neck (which is most vital part) of Rajendra Singh who after sustaining axe injury, fell down and died immediately. The injury sustained by the deceased has already been reproduced above. It was of the size of 11 cm x 5.5 cm x bone deep on the left side of neck just above the left clavicle. The underlying muscles and blood vessels were cut. The left first rib was also found cut. The Doctor stated that excessive bleeding ceases the supply of oxygen to brain and it results in death. The single axe blow by Hari Lal was caused with such velocity that it cut all the muscles and blood vessels upto the depth of bone. It was so fatal that it resulted in immediate death of the victim.The act of offender was, thus, so imminently dangerous so as to cause the death in all probabilities. The offence, therefore, falls under the definition of murder given in Section 300 and not Under Section 299 IPC.
29. Now, we examine the occurrence in the light of Exception 4 of Section 300 of I.P.C. It is not disputed that the occurrence was not the outcome of any earlier incident The prosecution case was that the deceased and his two companions were on the way to village Gadyane; that the goats of the respondents blocked the pavement hence deceased Rajendra Singh drove the goats to pass therefrom whereupon the accused respondent charged them of being thieves and started abusing them which converted into an altercation and exchange of abuses whereupon the respondent Hari Lal inflicted an axe blow on the neck of Rajendra Singh who fell down and died on the spot. It is, thus, apparent that the offence was committed in a sudden fight in the heat of passion upon a sudden quarrel. There was no pre meditation about the occurrence. The accused respondents were having the axes in their hands from before the inception of the occurrence, for the purpose of watching and controlling their goats. The deceased had two male companions with him alike the respondent Hari Lal who also had two companions (including one lady) with him. The respondents did not take any undue advantage of the situation. Respondent Hari Lal inflicted a single blow of the axe upon the deceased Rajendra Singh. He did not act in cruel or unusual manner. Thus, we are of the opinion that the occurrence of murder of Rajendra Singh falls under Exception 4 of Section 300 IPC and consequently, under part I of Section 304 IPC and neither Under Section 302 IPC nor Under Section 304 Part II IPC.
30. Now we deal with the question whether respondents Sheela and Chainu shared or not the common intention with Hari Lal in causing the death of Rajendra Singh.
31. The occurrence resulted in sudden quarrel in the heat of passion. The respondents were having axes in their hands from before the inception of the occurrence for the purpose of watching and controlling their goats. Therefore, holding of axes by Sheela and Chainu cannot be construed for attributing their common intention with Hari Lal for causing the death of Rajendra Singh. The accused respondents reached near the deceased, not in furtherance of common intention to commit murder, but just because they suspected that the deceased and his companions were thieves. Probably for this reason alone, the respondents only charged them of being thieves and hurled abuses. It was only HariLal who during course of the hot altercation inflicted an axe blow on the neck of deceased Rajendra Singh which proved fatal and resulted in Rajendra Singh's spontaneous death. Thus, till the point of time when the fatal axe blow on Rajendra Singh was inflicted by Hari Lal, the respondents Sheela and Chainu neither did any act nor spoke any word which could indicate that the duo shared any common intention with HariLal in inflicting said fatal axe blow on Rajendra Singh and thereby in causing the death of Rajendra Singh.
32. Causing the death of Rajendra Singh was the individual act of Hari Lal for which we have found him to be guilty of offence of culpable homicide not amounting to murder punishable under Part I of Section 304 IPC for the reason of the act being covered by Exception 4 of Section 300 I.P.C. Of course, the axe blow was inflicted by Hari Lal on Rajendra Singh in consequence of sudden quarrel erupting at the spur of the moment, but it is no-where in evidence as to what was uttered by him(Hari Lal) or any of the other two accused during the course of altercation which was construed as "abuses" by eye witnesses P.W. 1 Mahendra Singh and P.W.2 Vijay. Therefore, Hari Lal and,for that matter, even Sheela and Chainu could not be held guilty of committing an offence under Section 504 I.P.C.
33. One thing is glaring in the statement of P.W.2 Vijay Singh. In his statement, there is the conspicuous omission of the names of Sheela and Chainu among those who had caused injuries to P.W. 1 Mahendra Singh P.W.2 Vijay Singh stated that Hari Lal inflicted axe blow on Rajendra Singh who fell down and died ; that when Mahendra Singh ran to protect Rajendra Singh he (Mahendra Singh) was also beaten. P.W.2 Vijay Singh never stated as to who had beaten Mahendra Singh. His statement is silent on the point whether Sheela and Chainu had caused any injury or not to Mahendra Singh. This omission of the names of Sheela and Chainu assumes more significance in the wake of circumstances that Sheela and Chainu did not share the common intention with Hari Lal in causing fatal axe blow to Rajendra Singh and also in the light of the statement of D.W.I Govind Singh who stated that Sheela and Chainu were not present there at the time of occurrence. We have examined carefully the injuries sustained by P.W. 1 Mahendra Singh. These injuries were not necessarily the result of the act of three assailants. These injuries could be caused by Hari Lal alone by inflicting few axe blows to unarmed Mahendra Singh in quick succession, as Hari Lal was already hot under the collar with blood in his eyes after inflicting fatal blow on Rajendra Singh.
34. In the above circumstances a grave doubt has arisen regarding the involvement of Sheela and Chainu in causing injuries to Mahendra Singh.
35. On a dispassionate analysis, benefit of doubt should be afforded to the accused respondents Sheela and Chainu. Hari Lal alone committed the offence under Section 308 IPC. also.
36. On the basis of what we have discussed above, we partly allow these appeals as under.
37. We find the accused Hari Lal guilty for the offence Under Section 304 (Part I) (instead of, Section 304 Part II IPC) and under Section 308 I.P.C. (instead of Section 324 IPC).He stands convicted accordingly with rigorous imprisonment of ten years for the former and, four years rigorous imprisonment for the latter offence. Both the sentences shall run concurrently.
38. The other two accused respondents Sheela and Chainu are not found guilty of any offence. Their conviction is set aside and they are acquitted.
39. The C.J.M. Lalitpur is directed to get the accused respondent Hari Lal arrested and lodged in jail to serve out the sentences awarded above. He shall send his compliance report within two months from the date of the receipt of the copy of this judgment.
40. Certify the copy of the judgment to trial court and the C.J.M. Lalitpur for its compliance.