Allahabad High Court
Natthu Singh vs State Of U.P. on 20 December, 2024
Bench: Ashwani Kumar Mishra, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:199441-DB Court No. - 43 Case :- CRIMINAL APPEAL No. - 4793 of 2019 Appellant :- Natthu Singh Respondent :- State of U.P. Counsel for Appellant :- Lav Srivastava,Rajan Srivastava,Sr. Advocate Counsel for Respondent :- G.A. Connected with Case :- CRIMINAL APPEAL No. - 4438 of 2019 Appellant :- Malkhan Respondent :- State of U.P. Counsel for Appellant :- Pankaj Kumar Shukla Counsel for Respondent :- G.A.,Sunil Kumar Dwivedi And Case :- CRIMINAL APPEAL No. - 5029 of 2019 Appellant :- Raju Respondent :- State of U.P. Counsel for Appellant :- Pankaj Kumar Shukla,Rajesh Kumar Yadav Counsel for Respondent :- G.A. And Case :- CRIMINAL APPEAL No. - 5030 of 2019 Appellant :- Ramveer Respondent :- State of U.P. Counsel for Appellant :- Pankaj Kumar Shukla,Rajesh Kumar Yadav Counsel for Respondent :- G.A. Hon'ble Ashwani Kumar Mishra,J.
Hon’ble Dr. Gautam Chowdhary,J.
(Per: Hon’ble Ashwani Kumar Mishra, J.)
1. These appeals arise out of the judgment and order of conviction and sentence dated 1.6.2019, passed by the Additional Sessions Judge, Anoopshahar, Bulandshahar in Sessions Trial No.647 of 2006 (CNR No. UPBU07000005-2006), State Vs. Natthu Singh and others, arising out of Case Crime No.35 of 2006, Police Station Naraura, District Bulandshahar, whereby the accused appellants Natthu Singh, and Ramveer have been convicted and sentenced to two years rigorous imprisonment under Section 147 IPC; ten years rigorous imprisonment alongwith fine of Rs.10,000/- each under Section 307/149 IPC; rigorous life imprisonment alongwith fine of Rs.25,000/- each under Section 302/149 IPC, whereas accused appellant Raju has been convicted and sentenced to two years rigorous imprisonment under Section 147 IPC; ten years rigorous imprisonment along with fine of Rs.10,000/- under Section 307/149 IPC; rigorous life imprisonment alongwith fine of Rs.25,000/- under Section 302/149 IPC; five years rigorous imprisonment alongwith fine of Rs.2,000/- under Section 452 IPC, and accused appellant Malkhan has been convicted and sentenced to three years rigorous imprisonment under Section 148 IPC; ten years rigorous imprisonment along with fine of Rs.10,000/- under Section 307/149 IPC; rigorous life imprisonment alongwith fine of Rs.25,000/- under Section 302/149 IPC. On failure to deposit fine to undergo additional simple imprisonment for six months under Section 307/149 IPC; for one year under Section 302/149 IPC; and for one month under Section 452 IPC. All the sentences have been ordered to run concurrently.
2. There existed a disputed piece of land on the west of the house of the informant. The dispute was between him and Natthu Singh son of Bihari Singh. For this reason Natthu Singh allegedly maintained enmity against the informant. The incident in the present cases occurred on 1.8.2006 at about 9.00 in the morning when the informant’s son Hetram (deceased) was carrying bricks lying in front of the house for construction of a fence on the roof. It was then that the accused Natthu Singh, Malkhan Singh, Ramveer and Raju sons of Bihari Singh and Devendra @ Bhola son of Natthu Singh, Omvir son of Malkhan Singh, Bholeram son of Hotiram came to the house of the informant. Natthu was carrying a water tap handle (Nal Ka Hattha); Ramveer an iron rod; Raju a stick; Malkhan a rifle; Devendra a countrymade pistol; Omvir a stick and Bholeram an iron rod. As soon as the accused came to the house of the informant, they exhorted that let the issue be finished once for all, and thereafter these accused assaulted informant’s son. Malkhan tried to fire from his rifle but for some glitch it failed, despite couple of attempts, whereafter with the butt of his rifle and others with weapon in their hand started assaulting the informant’s son and other family members. The informant was having his breakfast as he had to go to school and on hearing the screams of his son Hetram, the informant alongwith his son Digamber and wife of Hetram namely Neksee rushed out and saw that all accused were assaulting Hetram. In the attempt to save Hetram, informant’s son Digamber, informant himself, wife of Hetram Neksee sustained injuries. On hearing the scream of these persons Nepal Singh and Dileep alongwith others came and but for their intervention everyone would have been done to death. Seeing these persons coming for rescue, accused Devendra fired from his Tamancha in air. Informant’s daughter, who Sarvesh was inside the house was also beaten in the house. Thinking that informant’s son Hetram has died, Malkhan told Devendra not to fire and the accused left. With these contents the FIR came to be lodged on 2.4.2006 at 3.10 pm on the basis of written report of informant as Case Crime No.35 of 2006, under Sections 147, 148, 149, 307/34, 452, 323, 504 IPC. After the lodging of the report the Investigating Officer came to the spot and collected plain and bloodstained soil from the place of occurrence on the date of incident itself.
3. All the injured namely Digamber, Neksee, informant Nand Kishore and Hetram, who later died, were rushed to the nearest hospital at Naraura. The first examination of injuries by the Medical Superintendent, NAPS, Naraura, contains following specification of injuries:-
“1. Het Ram
Multiple deep lacerated wound over scalp.
I) 4-5 inches on right parietal region
II) 2-3 inches left parieto occipital region
III) Bleeding from both nostrils
Bleeding from both ears and multiple abrasion over body
Patient was unconscious responding to deep painful stimuli
Patient was in state of shock pulse feeble BP-not recordable
Haematoma left temporal right occipital region
2. Nand Kishore
3-4 inches lacerated would over scalp
Multiple abrasion over body
3. Digambar
Multiple lacerated wound over scalp
4-5 inches L.W. over occipital region
1-2 inches L.W. over occipital parietal region
4. Nekshree
2-3 inches lacerated wound over (scalp) parieto occipital region
1 inches lacerated wound over chin”
4. The informant’s son Hetram and other injured were then taken to the J.N. Hospital at Aligarh Muslim Universtiy wherein their injuries were examined again. The injury reports in respect of Hetram, Digamber, Nekshiya and Nand Kishore of the Hospital at Aligarh are on record, as per which following injuries were found:-
“(1) Name:- Het Ram
Nature of injury
Dimension of Injury
Part of the body inflicted
Simple/Grevious
Probable weapon used
1. Two stitched wound lying side by side
4 cm long &
3 cm long
Left parietal region of skull
Simple
Blunt
2. Two stitched wound present side by side
5 cm long & 3 cm long
Left parieto occipital region
Simple
3. CNS patient is deeply unconscious not responding to painful stimuli pupil bilaterally dilated with sluggish reaction to light
Grievous
(2) Name:- Digamber Singh
Nature of injury
Dimension of Injury
Part of the body inflicted
Simple/Grevious
Probable weapon used
1. Stitched wound
2 cm long
Top of head
Simple
2. Stitched wound
Occipital region of head
4 cm long
Simple
3. Lacerated wound red margin
4 cm x .5 cm skin deep
Little finger of left hand
Simple
Blunt
4. Swelling with tenderness with abnormal mobility with bony crepitus at base of middle phalynx of left thumb suggestive of fracture
Grevious
Blunt
(3) Name:- Neksee Devi
Nature of injury
Dimension of Injury
Part of the body inflicted
Simple/Grevious
Probable weapon used
1. Stitched wound
3 cm long
Frontal area of head
Simple
2. Abrasion with red base
3 cm x 2 cm
Right shoulder
Simple
(4) Name:- Nand Kishore
Nature of injury
Dimension of Injury
Part of the body inflicted
Simple/Grevious
Probable weapon used
1. Stitched wound
3 cm long
Right parietal region
Simple
2. Stitched wound
5 cm long
Left parietal region
Simple
3. Abrasion with red base
2 cm x 1 cm
Right knee
Simple
Blunt
4. Abrasion with red base
12 cm x 6 cm
Left side of chest
Simple
Blunt”
5. It appears that Hetram was later taken to Safdarjung Hospital at New Delhi where he ultimately died at 12.00 noon on 2.4.2006. Inquest was conducted on 2.4.2006 at the hospital itself, which is duly exhibited during trial as Ex.Ka-7. The apparent cause of death as per inquest was the head injury caused by iron rod. The postmortem of deceased Hetram was conducted in Safdarjung Hospital, in which following injuries were noticed in the external examination and the internal examination:-
“External Examination
(1) Lacerated wound (LW) – over midline, in anterior part, 3 x 1 cm size bone deep.
(2) LW- over right side of the head, 4 x 1 cm, stitches present, 3 cm above right ear bone deep, obliquely present.
(3) LW- over right side of head, 3 x 1 cm in size, stitches present, 2.5 cm behind injury no.2, obliquely present.
(4) LW- over midline, 3.5 x 1 cm size, stitches present, in back part of head, 6 cm behind injury no.1, bone deep.
(5) LW- over left side of front of head, inverted V in shape, 5 cm x 3 cm in size, stitches present, bone deep.
(6) left eyelids blue black.
(7) abrasion over bridge of nose, (1 cm size ) and left maxilla (1 cm size ), both scabbed.
(8) abrasion over back of Right elbow, 3 x 2 cm, scabbed.
(9) Bruise – over right forearm, lower part, back side, 9 x 3 cm size, vertical, blue red in colour.
(10) bruise mixed with abrasion, right side of back, lower part, 7 x 3 cm, blue red colour, obliquely present.
(11) Bruise over right thigh, outer part, 7 x 3 cm size, blue red in colour, horizontally placed in middle part.
(12) Bruise over right thigh, outer part, 5 x 3 cm size, blue red in colour, horizontally placed in middle part, 3 cm below injury no 11.
Internal Examination
1- Head – scalp- contused, lacerated below injuries no. 1 to 5
Skull- fracture separation of all sutures, fracture left temporal, parietal and frontal bones piece separated and present in place.
Brain- extradural haematoma in left anterior region
– duramater lacerated below fractured skull piece
-subdural haematoma over left superior and side(lateral) surfaces
– left temporal, parietal and frontal lobes contused and lacerated with subarachnoid haemorrhages.
2. Neck- All structures – NAD (No abnormality detected)
thorax – ribs+ lungs – NAD
Abdomen – stomach – 100 ml medicinal fluid present
Organs- NAD,
Rectum and bladder empty.”
6. Injury no.5 i.e. lacerated wound on the left side of front of head has been treated to be fatal and sufficient to cause death in the ordinary course of nature.
7. The investigation followed with the arrest of the accused persons. Recovery of weapons used in the crime was made by the Investigating Officer. The water tap handle (Nal Ka Hattha) containing mud without any bloodstain was recovered on the pointing out of the accused Natthu, whereafter on the pointing out of the accused Raju, a stick of Mulberry (Sehtoot Ka Danda) was recovered on which there were bloodstains and some hairs (Ex.Ka-14). On the pointing out of the Bholaram, an iron rod was recovered on 5.4.2006. Similarly on 19.4.2006 an iron rod was recovered on the pointing out of the accused Ramveer, which was admitted by the accused to have been used in the offence. On 21.4.2006 a stick was recovered from the accused Omvir.
8. The investigation proceeded with submission of chargesheet against the accused under Section 147, 148, 149, 307, 302, 452, 323, 34 IPC. The cognizance on the chargesheet was taken and the case was committed to the court of sessions, where it got registered as Session Trial No.647 of 2006. Charges were framed against the accused on 5.9.2008 and were read out to the accused, who denied their implication and demanded trial.
9. During the course of trial, documentary evidence are adduced by the prosecution in the form of FIR as Ex.Ka-9; written report as Ex.Ka-1; recovery of item used in the crime as Ex.Ka-14; recovery memo of bloodstained and plain soil as Ex.Ka-13; recovery memo of a piece of rod iron as Ex.Ka16; recovery memo of murder weapon bloodstained wooden stick Shehtoot as Ex.Ka17; recovery memo of items used in crime as Ex.Ka 21; injury reports dated 1.4.2006 as Ex.Ka-3, Ex.Ka-4, Ex.Ka-5, Ex.Ka-6, and Ex.Ka-23; postmortem report as Ex.Ka-2; death report as Ex.Ka-7; chargesheet as Ex.Ka-20; site plan with index as Ex.Ka-12; site plan with index as Ex.Ka-18; and site plan with Index as Ex.Ka-19.
10. In addition to above, the prosecution has produced the informant as PW-1, who has supported the prosecution case. He has stated that the accused persons were all residents of his village. The accused Raju is the co-brother of the informant’s deceased son Hetram. There existed a plot of land, over which he had a dispute with Natthu Singh. The dispute was got resolved with the intervention of family members, according to which Rs.45,000/- was to be paid by the informant to the accused Natthu. However, Natthu was not ready to accept this amount, on account of which he (Natthu) maintained enmity. On 1.4.2006 at about 9.00 in the morning, Hetram (deceased) was carrying bricks lying outside the house of informant to the roof for raising a fence when accused persons came armed with a water tap handle (Nal Ka Hattha), iron rod, stick, rifle, countrymade pistol, stick and iron rod. On hearing the shouts of Hetram, the informant alongwith his younger son Digamber and Hetram’s wife Nekshiya came out and saw the accused persons assaulting Hetram. Malkhan tried to fire from his rifle but did not succeed, whereafter he assaulted Hetram with rifle butt. Other accused assaulted the deceased with sticks and iron rods. In the attempt to save his son, informant alongwith his younger son and daughter-in-law also sustained injuries. The accused then entered the house of the informant and also assaulted his daughter Sarvesh. Thereafter Nepal and Dulli came at the spot. Devendra then fired in the air from his Tamancha. Nepal and Dulli retracted on account of firing by Devendra. Treating Hetram to have died, the accused left. The informant, Digamber, Hetram, Neksee and Sarvesh all sustained injuries and were rushed to NAPS Hospital at Naraura, whereafter they were referred to the District Hospital at Aligarh. Considering the serious condition of Hetram he was referred to Delhi. Informant has proved the written report, which was got scribed by Puran Singh on 2.4.2006. On 3.4.2006 informant came to know that his son has died in Delhi and the written report in that regard was made at the police station. This written report is Ex.Ka-2.
11. Informant has been cross-examined by the accused and he has been questioned on the relationship between the parties and also the dispute of land. Informant has denied that his son Hetram was a criminal. However, he admitted that Hetram had remained in jail for two months for an offence under Section 376 IPC. He denied the fact that Hetram was implicated under the Gangsters Act or that there were other cases against him. Informant’s son Digamber also has criminal record and was sent to jail after the incident in an offence under Section 307 IPC and is mostly lodged in jail. The informant has denied the suggestion that police station fell on his way to the hospital from the place of incident. The police station is at a distance of about one and a half furlong, whereas the hospital is at about two furlongs. He has also stated that he was unconscious in the hospital at Aligarh. The hospital where informant alongwith others were first taken for treatment was not open to public and a suggestion has been given to him that Kunwar Sen since was working in that hospital, who happens to be his cousin, that is why they got themselves examined in this hospital. The informant (PW-1) has stated that about 3000 bricks were lying in front of his house. His son Hetram had already carried 50-100 bricks on the roof while other bricks were lying there. He has denied the suggestion that any dispute occurred on account of bricks. He has, however, not shown the bricks lying in front of his house to the Investigating Officer. He has denied the suggestion that no bricks were found in front of the house and his son was not carrying the bricks on the roof.
12. PW-1 has moreover admitted that there existed a boundary around the disputed plot. He has nevertheless denied the suggestion that about 6000 bricks were kept in that plot and that he wanted to grab it. Informant alleged that the disputed plot belonged to him. In the panchayat it was agreed that Rs.45,000/- would be paid by informant to Natthu but Natthu was not willing to take that amount. He has, however, not mentioned the liability to pay Rs.45,000/- in the report. He has also denied the suggestion that on account of harassment and torture meted out by his son Hetram to several persons in the locality, someone else has caused the incident.
13. Digamber Singh (PW-2), son of the informant, is the other prosecution witness. He has supported the prosecution case about a dispute subsisting in respect of open piece of land with Natthu. He too admits that the villagers had got the dispute resolved and they had to pay Rs.45,000/- to Natthu but he was demanding Rs.60,000/-, on account of which enmity occurred. PW-2 has substantially followed the stand of PW-1 about the manner in which the incident occurred. He has stated that Malkhan assaulted him and his brother with the rifle butt. Others assaulted them with weapon in their hand. In his further cross-examination PW-2 has admitted that he has not shown the place to police where the bricks were lying in front of the house. He could not tell as to how many bricks were lying in front of the house. He could not even guess the number of bricks lying there. He has, however, denied the suggestion that in fact no bricks were lying in front of the house. He claims that after the incident he fainted and only regained consciousness in the hospital at Aligarh during night. He could offer no explanation as to why no report was lodged, though the police chowki was on the way.
14. PW-3 is Dr. Sarvesh Tandon of Safdarjung Hospital, who has proved the postmortem report. In his opinion, the cause of death was head injury, which could have been caused by a hard and blunt object. In the cross-examination he has stated that injuries on the deceased could have been caused by stick and iron rod. It could not have been caused by rifle butt or Sariya. Fatal injury could have been caused by the water tap (Nal Ka Hattha). He has, however, stated later in his cross-examination that rifle butt is heavy and injury on the head could have been caused by it. Cause of death was specified as cramio cerebral damage.
15. PW-4 is Dr. Nazim Alam, who was posted at J.N. Medical College, Aligarh and has proved the injury report. PW-5 is ASI P.D. Meena, who was posted at Sarojani Nagar at Delhi. He has proved the inquest report. PW-6 is S.I. Vinod Kumar Singh, who has proved the GD entry made at 3.10 pm on 2.4.2006. PW-7 is SI Madan Mohan Pandey, who was the first Investigating Officer in the case. He collected the bloodstained and plain earth and has proved the recovery memo in that regard. He has inspected the place of occurrence on the disclosure made by Sarvesh (daughter of the informant).
16. PW-8, Karan Singh Chauhan, is the second Investigating Officer. He arrested the accused on 5.4.2006 and also recovered the weapon used in the offence. Various recovery memo in that regard have been proved by this witness. In the cross-examination, PW-8 has not been able to explain as to whether the recovered weapons used in the crime were sent to Forensic Science Laboratory or not. Investigating Officer had not recorded the statement of doctor of Naraura Hospital during the investigation. He also made no effort to collect injury report from NAPS Hospital, Naraura.
17. PW-9 is Dr. Rajesh Bhaskar, who was posted at NAPS Hospital, Naraura and has proved the first injury report. This witness has stated that NAPS hospital is only for the employees of Naraura Atomic Power Plant and only if police comes with injured that the hospital is authorized to treat the patient. He has given the information of the treatment of injured to the police. The hospital record in respect of examination of injured was latter destroyed but he had maintained the carbon copy in his office. He has denied the allegation that in collusion with the informant’s side he has falsely prepared the injury report.
18. Smt. Sarvesh, who happens to be the daughter of the informant, has been called by the court as a witness and her statement is recorded as CW-1. She has supported the prosecution case. She claims that she saw the accused persons assaulting her deceased brother. At the time of incident she was inside the house. She has alleged that though Devendra had a Tamancha but he had not fired. Malkhan also had a rifle but he had not fired from it and had only used the butt of rifle. She claims to have seen the incident from inside the house, since the doors were open. She was assaulted inside the house by the accused Bholeram, Raju and Omvir. In her further cross-examination CW-1 has stated that after Nepal Singh and Dileep Singh came to save her, Devendra fired due to which they backtracked.
19. Smt. Nekshiya, wife of late Hetram, has been produced as CW-2. She has also supported the prosecution case, according to which cause of incident was the dispute between the informant and Natthu over a portion of land, which was purchased by Natthu from Ganga Devi, from her family. In the panchayat it was decided that Rs.45,000/- would be paid by informant to Natthu, but Natthu did not accept this decision of panchayat, on account of which enmity existed between the informant and Natthu. This witness has stated that Malkhan had fired on her husband but the fire missed. Natthu and other accused kept assaulting her husband. She was also assaulted. This witness has further stated that her husband was carrying bricks since 7.00 in the morning to the rooftop. By the time accused came, few bricks had remained. Some bricks were lying at the place where incident occurred.
20. On the basis of aforesaid evidence led by the prosecution, the statement of accused persons was recorded under Section 313 Cr.P.C. All the accused have stated that they have been falsely implicated and that medical report and other evidence are not reliable. Accused Rajvir has stated that no incident occurred at the place indicated by the prosecution.
21. The defence has produced Narendra Singh, Block Education Officer, Anoopshahar as DW-1. He has proved the record, which indicated school timings where informant was employed. As per the record, the school timing was 7.00 am to 12.00 noon.
22. It is on the strength of above evidence that the trial court has concluded that the prosecution has established the guilt of the accused appellants beyond reasonable doubt, and consequently, the trial court has convicted and sentenced the accused appellants, as per above.
23. Sri V.P. Srivastava, learned Senior counsel for the appellants submits that incident herein has not occurred in the manner suggested by the prosecution and that the accused appellants have been falsely implicated. He submits that there was no intention on part of the accused persons to commit murder of Hetram, inasmuch as two of the accused persons i.e. Malkhan and Devendra @ Bhola were armed with rifle and tamancha but no firearm injury has been caused to the deceased. So far as attempted use of rifle and tamancha are concerned, learned Senior counsel argues that the testimony of witnesses in that regard is an exaggeration only to attach greater seriousness to the act of the accused persons and that such version otherwise is not consistent with other prosecution evidence on record. It is argued on behalf of the appellants that the intention of accused, at best, was to give severe beating and thereby cause grievous injuries due to dispute of immovable property and the solitary blow on the head was the apparent cause of death. Submission is that conviction and sentence under Section 302 IPC is excessive and disproportionate to the gravity of offence proved and, therefore, the judgment of conviction and sentence cannot be sustained.
24. So far as the injuries on other persons are concerned, most of such injuries are simple in nature and do not indicate any intent of the accused to cause any serious harm to them.
25. On behalf of the informant, Sri Sunil Kumar Dwivedi and learned AGA for the State, however submits that the conviction and sentence is justified on the evidence led by prosecution, inasmuch as all accused have come armed and caused the fatal injury to the deceased. Other family members have also been assaulted. It is also urged that accused Malkhan did try to fire from his rifle on the deceased but due to some glitch rifle did not fire, whereafter rifle butt was used to cause injury on the head of the deceased. It is submitted that causing of injury by rifle butt is clearly indicative of the intent of accused Malkhan to commit the murder of deceased. It is also submitted that there was sufficient motive for the accused to commit the offence and the intent was to end the life of the deceased. The respondents, therefore, argue that the conviction of the accused persons is based upon correct appreciation of evidence on record which requires no interference. It is also argued that the sentence awarded to the accused persons clearly commensurate with the gravity of offence as all the accused had joined with the intent to commit the murder and, therefore, no interference in the appeal is called for.
26. We have heard Shri V. P. Srivastava, learned Senior Counsel, assisted by Shri Rajan Srivastava, learned counsel for the accused-Natthu Singh, and Shri Pankaj Kumar Shukla, learned counsel for the accused-Malkhan, Raju and Ramveer, as well as Mrs. Archana Singh, learned A.G.A. for the State and have examined the records including the original records of Sessions Trial No.647 of 2006.
27. At the outset, we may note that accused Natthu Singh, Ramveer, Raju and Malkhan, Devendra @ Bhola, Omvir and Bholeram are shown to be the aggressor in the incident leading to death of Hetram and injuries being caused to informant Nand Kishore, Digamber and Neksee (wife of deceased Hetram). Out of all these accused Devendra @ Bhola and Omvir were declared juvenile and their trial was segregated. Accused Bholeram, who was assigned the role of carrying iron rod, has died. The conviction and sentence of accused Natthu Singh, Ramveer, Raju and Malkhan alone are, therefore, the issues to be determined in the present appeal.
28. Before coming to the incident we would like to refer to the prosecution evidence on the aspect of motive for the offence and the genesis of the incident. The informant in his written report made to the police has clearly acknowledged the fact that to the west of his house there is a disputed piece of land. Litigation over such disputed land was pending between informant and accused Natthu Singh son of Bihari Singh. Natthu Singh allegedly maintained enmity with the informant and his family on account of such dispute. The witnesses of fact, namely the informant and his son Digamber both have admitted such enmity between the parties. It has come in their testimony that a panchayat was held with the intervention of villagers to settle the dispute between informant and accused Natthu Singh. In this panchayat it was agreed that Rs.45,000/- would be paid by informant to accused Natthu Singh. Both the prosecution witnesses of fact alleged that though informant was willing to pay this amount of Rs.45,000/- but the same was not accepted by accused Natthu Singh. PW-2 states that accused Natthu Singh was asking for payment of Rs.60,000/- instead of Rs.45,000/- due to which the dispute was not resolved. The prosecution evidence, therefore, reveals that there was a disputed piece of land close to the house of informant over which the claim of accused Natthu Singh was acknowledged by the informant and it was agreed that a sum of Rs.45,000/- would be paid to accuse Natthu Singh. Fact that this amount was not accepted is a different aspect on which we may not attach much importance, but the admitted position, nevertheless, is that the right of accused Natthu Singh over this disputed land was recognised and an amount of Rs.45,000/- was admitted by the informant to be payable to accused Natthu Singh but in fact this amount was not paid/received.
29. The prosecution evidence also shows that the disputed plot was surrounded by a boundary and some bricks were kept inside this plot. Learned Senior counsel for the appellants argues that the genesis of the incident was the act of deceased Hetram in taking some of the bricks from the plot to his house on which an objection was raised by the accused persons. This argument is countered by the respondents by submitting that the bricks taken by Hetram to the roof were stacked outside the house of the informant and that such bricks belonged to the informant.
30. On the above aspect we have examined the evidence and we find that though informant alleges that the bricks belonged to him and were stacked outside his house but in fact no such bricks were shown to the I.O. when he inspected the place of offence. In the site plan also the place where bricks were stacked is now shown. No evidence has been led by the prosecution to show that the bricks that were being taken by Hetram on the roof for erecting its fence belonged to the informant. The prosecution witnesses, nevertheless, admitted that the disputed plot was surrounded by a boundary and that some bricks were stored in it.
31. In the absence of positive proof led by the prosecution to show that bricks belonged to informant and stacked outside the house of the informant the possibility of such bricks being taken from the disputed plot cannot entirely be ruled out. It is otherwise admitted to the prosecution witnesses that the incident occurred at the time when Hetram was carrying bricks. In the event bricks were stacked outside the house of informant and it belonged to the informant then there was hardly any reason for an issue to be raised on the carrying of bricks by Hetram. The fact that the incident occurred when Hetram was carrying the bricks appears to be the act of provocation which triggered the incident.
32. Accused Natthu Singh, Malkhan, Raju, Ramveer (appellants before us) are all real brothers being sons of Bihari Singh. They alongwith others are said to have suddenly come to the house of informant while Hetram was carrying bricks from outside to his roof. The FIR as well as the two witnesses of fact clearly specify the weapons in their hands. Accused Natthu Singh is shown to be carrying a water tap handle (Nal Ka Hattha) while accused Ramveer had an iron rod and accused Raju was carrying a stick. Accused Malkhan allegedly carried a rifle. But for the rifle in the hands of accused Malkhan and tamancha in the hands of accused Devendra @ Bhola all others were carrying articles which are easily available in any village. Water tap handle (Nal Ka Hattha), stick and iron rod (sarya) etc. are easily found. It appears that the incident occurred suddenly when the accused persons found that Hetram was carrying the bricks to his roof top. The other two accused, namely Malkhan and Devendra @ Bhola were carrying firearms.
33. Prosecution witnesses of fact allege that accused Malkhan tried to fire from his rifle but the fire did not take place. Accused Devendra @ Bhola allegedly was armed with tamancha but it is admitted case of prosecution that he has not fired on Hetram. We find some substance in the argument of the appellants that in the event accused persons wanted to kill the deceased they could have easily fired from the tamancha if the rifle had developed some snag. No empty cartridges etc have been recovered from the place of occurrence. A cumulative assessment of the prosecution evidence on record on the aspect of genesis and the manner of incident persuades us to assume the possibility that on account of dispute between the parties in respect of the plot of land the incident suddenly occurred on the perceived act of deceased in taking disputed bricks to his house. The accused persons suddenly reacted and rushed to the house of informant and seeing Hetram carrying bricks started assaulting him. The intent apparently was to stop Hetram from taking the bricks to his house. Temper ran high on account of perceived act of deceased and the intent apparently was to cause serious beating to Hetram as a lesson for doing something wrong to Natthu Singh and his family. We, therefore, find substance in the argument of Sri Srivastava that this is not a case where the intent of the accused was to commit murder of Hetram.
34. Instead the intent was to give severe beating and thereby cause grievous injuries to the accused and in their anxiety to do so at the spur of the moment, the deceased was assaulted by the accused. There are two injury reports followed with the description of injuries in the postmortem. In the first and second injury report, reproduced above, only two injuries are found on Hetram. These injuries are on the right parietal region and left parietal occipital region. Hetram was found bleeding from both his nose. In the postmortem report injuries are more. The other injuries are in the form of abrasion and bruises etc and the autopsy surgeon has opined that injury no.5, which is a lacerated blow on the head, is the solitary injury capable of causing death of the deceased. Injuries on others are mostly simple in nature and could have been caused by a blunt object. Only other injury grievous in nature is of Digamber which is at the base of middle phalynx of left thumb suggestive of fracture. The injury on the head by a blunt object is serious enough to cause death in ordinary course. We, therefore, are of the view that the case in hand would fall not under Section 302 IPC but would fall in Part-I of Section 304 IPC. This too would be restricted to the person who caused the fatal injury on the head of deceased.
35. Accused Malkhan is assigned the role of assaulting Hetram with his rifle butt. In the opinion of the doctors, who had examined the injured and had conducted postmortem fatal injury on the deceased could have been caused by the butt of the rifle.
36. The witnesses are consistent that accused Malkhan assaulted Hetram with his rifle butt on his head. The FIR also records that accused Malkhan assaulted the deceased with the butt of the rifle. In such circumstances we hold accused Malkhan to be guilty of the offence under Section 304 (Part-I) IPC. So far as other accused are concerned, they are liable to be convicted for offence under Section 325 IPC as we have found that the incident occurred instantly and the intent of accuse was to cause serious beating to Hetram.
37. On behalf of the appellants, reliance is placed upon the judgment of the Supreme Court in Shri Kishan and others Vs. State of U.P. AIR 1972 SC 2056. In para 6 the Supreme Court has observed as under:-
“6. There was no previous enmity between the accused-appellants on the one hand and Seru deceased and Sadaphal (PW) on the other. The occurrence was the offshoot of a trifling incident in the nature of a scuffle between two urchins. Nandlal, it appears then went weeping and told his father that he had been beaten by Seru and Sadaphal. The four accused thereupon protested to Seru and Sadaphal for the beating given to Nandlal and also belaboured them with lathis. Five injuries were caused to Seru. Apart from the one injury on the head, which proved fatal, the other injuries were not of a very serious nature. Sadaphal had seven injuries all of which were simple in nature. The prosecution evidence, as observed by the High Court, does not indicate as to which one of the accused appellants inflicted the fatal blow on the head of Seru. As such, none of the accused can be held to be personally liable for the fatal injury. The liability can only be vicarious under Section 34 of the Penal Code, 1860 and, as such, we have to find out as to what was the common intention of the accused in furtherance of which they caused injuries to Seru and Sadaphal. In this context we find that the High Court has arrived at the following finding;
“There could, therefore, be no doubt that the common intention of the appellants was to give a severe beating to Seru and Sadaphal.”
The above finding as well as the broad circumstances of the case go to show that the common intention of the accused was to cause grievous injury to the victim. The fact that one of them exceeded ‘the bound and gave a fatal blow on the head of the deceased would make him personally liable for the fatal injury, but so far as the other three are concerned, they can be held liable only for the injuries which were caused in furtherance of the common intention and not for the fatal injury. As it is not possible on the material on record to find out as to which one of the accused gave the fatal blow, there is no escape from the conclusion that each one of the four accused can only be guilty of the offence under section 325 read with section 34 Indian Penal Code. We accordingly alter the conviction of each of the accused-appellants from under section 302 read with section 34 Indian Penal Code to that under s. 325 read with s. 34 Indian Penal Code. Each of them is sentenced to undergo rigorous imprisonment for a period of five years on that count. The sentence of rigorous imprisonment for a period of one year awarded to each of the accused under section 323 read with section 34 Indian Penal Code would run concurrently with the above sentence. The appeal is allowed to that extent.”
38. From the above observations, we find support for our opinion that all the accused persons came with the intent of causing severe beating to Hetram for having done some objectionable act which interfered with their rights over the property and in the process the solitary injury on the head proved fatal.
39. We have perused the judgment and we find that the evidence has not been appreciated in correct perspective and possibility of incident occurring at the spur of the moment on account of perceived threat to the property of accused by Hetram has been overlooked. For the reasons indicated in our judgment, we are not inclined to endorse the view of the trial court. The findings and conclusions drawn by the trial court are, accordingly, modified.
40. These appeals are, accordingly, allowed in part. The conviction of accused appellant Malkhan is converted from Section 302 IPC to Section 304 (Part-I) IPC, whereas for three other accused, namely Natthu Singh, Ramveer and Raju their conviction is substituted as that under Section 325 IPC. Since these three accused have already served incarceration of more than six years, therefore, they are released on the sentence already undergone by them, unless they are wanted in any other case, subject to compliance of Section 437-A Cr.P.C.
41. So far as accused Malkhan is concerned, we find that the act on his part of causing fatal injury on the head would qualify to be an offence under Section 304 (Part-I) IPC. This is, however, first offence of accused Malkhan and we have already seen the context in which the incident occurred. In such circumstances we sentence him to seven years rigorous imprisonment and enhance the fine to Rs.1 lakh, failing which he will undergo default sentence of one year.
42. Let a copy of this order be sent to the concerned Chief Judicial Magistrate for necessary compliance.
Order Date :- 20.12.2024
Anil/RA
(Dr. Gautam Chowdhary,J.)(Ashwani Kumar Mishra,J.)