Indrasan vs State Of U.P

Indrasan .... Appellant

Versus

State of U.P. .... Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This appeal has been preferred by the appellant who has been

convicted by the Sessions Court as also by the High Court under Section 302

IPC and sentenced to undergo rigorous imprisonment for life.

2. The deceased was one Jawahar who was murdered on 14.10.1979 at

about 8.00 A.M. in Village Marrie, Police Station Nichlaul, District

Gorakhpur. The prosecution story in brief is that in the said village there

was a Government Gausadan (a campus with pasture land where cattle are

brought up and looked after) spreading over an area of about 562 acres.

Within the said area is also located certain residential premises for the employees of the Gausadan. The grasses were also grown in Gausadan and

contract of growing such grass in Gausadan was given by the Government

through auction and one Harendra Singh who was a contractor was given the

said contract. Goverpal Harijan was one of the employees in the Gausadan

and on account of his illness, his son Jawahar (deceased) was performing his

duties in the Gausadan.

3. On 13.10.1979 at about 2.00 p.m. about 30-40 cattles including the

buffaloes of Goverpal Harijan were grazing in the pasture land of Gausadan.

Since they were eating the grasses for which there was a contract, a person

on behalf of the contractor Harendra Singh came and collected all the cattles

including buffaloes and took them to the contractor Harendra Singh.

Thereafter, Jawahar and other owners of the cattle went to Harendra Singh

and requested him to release their cattle. Harendra Singh permitted Jawahar

to take away his buffalo and also released the cattle of the other persons.

4. On 14.10.1979 i.e. the next day in the morning time, Ram Prahlad,

Sahdeo, Pratap, the appellant Indrasan and 2-3 persons were sitting in the

verandah of Gausadan. The appellant-Indrasan had lathi with him. While

they were so sitting in the verandah of the Gausadan, Jawahar happened to

arrive there. The appellant-Indrasan who was the employee of contractor

2 Harendra Singh took up his lathi and suddenly rushed towards Jawahar and

gave a lathi blow on his head as a result of which he sustained head injury

and fell down. As a consequence of the said lathi blow on the head,

deceased-Jawahar succumbed to his injuries immediately thereafter. Ram

Prahlad went to the house of Goverpal and informed him about the fatal

injuries caused to his son. Goverpal came to Gausadan and found his son

lying there dead. He then went to the police station Nichlaul, where he

lodged the written F.I.R. on the same day at 11.05 a.m. The distance of the

police station from the place of occurrence was six miles. On information,

a case was registered and investigation was entrusted to S.I. Vinod Kumar

Yadav (PW-7). Post mortem examination was also carried on the body of

the deceased-Jawahar. In the said post mortem examination, one injury was

found by the doctor on the head of the deceased which was of the following

nature : -

"Lacerated wound on left parietal region 5 cm x 1 cm x skull deep, 8 cm above left ear."

5. In support of its case, the prosecution examined all seven witnesses.

Ram Prahlad (PW-1), Sahdeo (PW-2) and Ram Pratap (PW-3) were the eye

witnesses of the occurrence. Goverpal (PW-4), the father of the deceased

was also examined. The defense raised on behalf of the accused was one of

3 denial and also of false implication due to enmity. In examination under

Section 313 of the Code of Criminal Procedure, 1973 (for short "the CrPC"),

the accused-appellant stated that when Harendra Singh was Thekedar of

grass of Gausadan, he used to look after the affairs of Gausadan on his

behalf. Goverpal and other witnesses of the case and the villagers often

used to graze their cattle in the grass of Gausadan and he used to hand over

their cattle at the cattle pond. Thus, people started having grudge against

him resulting in his false implication in this case. On completion of the

trial, the learned Sessions Judge found the appellant guilty of the offence

alleged against him and accordingly convicted him and passed an order of

sentence of imprisonment for life.

6. On appeal, the High Court affirmed the order of conviction and

sentence as against which the present appeal has been filed on which we

have heard the learned counsel appearing for the parties.

7. The incident had taken place on 14.10.1979 at about 8 a.m. and there

is no dispute with regard to the aforesaid fact that there was broad day light

and the incident happened in the presence of PW-1, PW-2 and PW-3. The

defense has not raised any dispute with regard to the aforesaid fact nor any

suggestion was given to the aforesaid eye witnesses namely Ram Prahlad

4 (PW-1), Sahdeo (PW-2) and Ram Pratap (PW-3) as against their statements

that they were present at the time of incident and they had seen the entire

incident through their own eyes. The incident happened at about 8 a.m.

when the deceased-Jawahar received the aforesaid fatal blow at the hand of

the accused-appellant. The deceased-Jawahar died at about 9 a.m. due to

excessive bleeding as is established from the post mortem report. The

distance of the police station from the place of occurrence is six miles. The

father of the deceased-Jawahar was informed whereupon he came to the

place of occurrence and on seeing his son dead, went to lodge an FIR at the

Police Station Nichlaul which was registered at 11.05 a.m. There is,

therefore, no delay in the lodging of the FIR. There is also no possibility of

any concoction of the incident as there was no scope of framing anybody

unnecessarily and without reason within that short span of time. The

incident happened in broad day light in front of eye witnesses whose

presence at the place of occurrence was quite natural. There is also motive

for the murder established in the case from the fact that a day before the

occurrence i.e. on 13.10.1979, the cattles of some persons including the

buffaloes of the father of the deceased-Jawahar were taken away from the

grazing field of Gausadan by the accused-appellant and subsequently,

buffaloes of the father of the deceased-Jawahar were released. Since the

5 buffaloes belonged to the father of the deceased-Jawahar which were

impounded and taken to the contractor-Harendra but was released

subsequently, therefore, there was some grudge of the accused-appellant

being an employee of the contractor-Harendra against the deceased-Jawahar

and when on the next day, early in the morning he saw the deceased he got

infuriated and without any reason approached the deceased-Jawahar after

picking up his lathi and gave blow on the head with the help of his lathi and

thereafter the accused-appellant ran away from the scene of occurrence. So,

the motive has also been established.

8. Counsel appearing for the accused- appellant, however, submitted

before us that there was no intention of causing death or causing any bodily

injury to the deceased by the accused-appellant. It was also submitted

before us that all the three eye witnesses namely Ram Prahlad (PW-1),

Sahdeo (PW-2) and Ram Pratap (PW-3) are interested witnesses and that

other witnesses although present at the scene of occurrence, they were not

examined by the prosecution. Accordingly the conviction and sentence is

required to be set aside. It was next submitted by the counsel appearing for

the accused-appellant that the weapon of alleged attack was not a dangerous

weapon and was only a lathi and allegedly only one blow was given by the

accused-appellant on the deceased which clearly establishes that it is neither

6 a case of murder nor could be a case of culpable homicide not amounting to

murder. In support of aforesaid contention, he has relied upon few decisions

of this Court namely State of Orissa v. Bhagaban Barik [AIR 1987 SC

1265], State of U.P. v. Indrajeet [(2000) 7 SCC 249], Joseph v. State of

Kerala [AIR 1994 SC 34], Mohd. Shakeel v. State of A.P. [(2007) 3 SCC

119].

9. We have considered the aforesaid submissions as also the ratio of the

aforesaid cases. After carefully going through the same we, however, find

that none of the aforesaid decisions could be said to be directly applicable in

the present case as the facts are quite distinguishable. So the same have no

application in the facts and circumstances of the present case and we are

required to consider the facts of the case independently.

10. In Bhagaban Barik case (supra), there was an appeal before this

Court as against the order of acquittal. In that case one blow was given by

the accused with a lathi on the apprehension that the deceased was a thief. In Indrajeet case (supra) also, there was an appeal against acquittal and

therefore it has no similarity with the facts and circumstances of the present

case. In Joseph case (supra) although the death was caused by one blow of

lathi but there was clear evidence of quarrel between the parties preceding

7 the incident. In Mohd. Shakeel case (supra) the accused also received

injuries during the course of the incident and taking notice of the said fact, it

was held to be a case of culpable homicide not amounting to murder.

Clearly, all the decisions relied upon by the accused-appellant are quite

distinguishable.

11. We are required to examine the facts of the present case as it stand

before us. The submission that there was no motive in committing the

offence is clearly belied from the fact that the motive has been established in

the present case. The accused-appellant being an employee of the contractor

definitely had a grudge against the deceased as the buffaloes belonging to

the father of the deceased were impounded and taken to the contractor by the

accused-appellant on 13.10.1979 and the same were released on repeated

requests by the deceased. Therefore, there was a clear grudge of the

employee of the contractor, accused-appellant against the deceased. When

on the very next day morning i.e. 14.10.1979, the accused-appellant saw the

face of the deceased he simply picked up his lathi and with that gave one

blow on the head of the deceased. The said blow was so forceful that as a

consequence of which the deceased died within an hour and before he could

be taken to the hospital. There is a direct nexus between the blow of lathi

8 and death of the deceased which is immediately caused after giving the

blow.

12. We, therefore, are of the considered opinion that although it is a case

of culpable homicide not amounting to murder, but considering the nature of

the injuries which was caused on a vital part of the body, we are of the

considered view that there was intention on the part of the accused-appellant

to cause death of the deceased.

13. We, therefore, alter the conviction of the appellant from Section 302,

IPC to Section 304 Part I IPC. In our considered opinion, custody and

sentence of 10 years would be appropriate and sufficient. The accused-

appellant shall undergo imprisonment for a term of 10 years, if not already

undergone, in terms of this order.

14. With the above modification, the appeal is allowed to the aforesaid

extent.

................................J. [Dr. Mukundakam Sharma]

..................................J. [Dr. B.S. Chauhan]

New Delhi, July 6, 2009

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