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CASE NO.: Appeal (crl.)  1945 of 1996

PETITIONER: Ramu                                                             

RESPONDENT: State of U.P.                                                    

DATE OF JUDGMENT: 04/02/2004

BENCH: N.Santosh Hegde & B.P.Singh

JUDGMENT:

J U D G M E N T

SANTOSH HEGDE,J.

       The appellant has preferred this appeal against the  judgment of the High Court of Allahabad in Criminal Appeal  No.678 of 1980 wherein the High Court while partly allowing  the appeal of 5 other appellants by altering their conviction  from section 302 read with section 149 to one under section 324  IPC confirmed the conviction and sentence imposed on this  appellant for an offence punishable under section 302 read with  section 149 as also for offences punishable under sections 148  and 147 IPC. Brief facts necessary for the disposal of this  appeal are as follows :         Rani Bitti, PW-1 along with her son Satti was residing in  village Sahanipur within the jurisdiction of Police Station  Hussainganj. It is alleged that said Satti was married about 6  years ago but his wife stayed with him only for a short time and  thereafter deserted him. PW-1 and her son Satti suspected this  desertion by Satti’s wife was at the instance of Ram Piare A-1  hence entertained some grudge against him. It is further stated  that about 1 month prior to 21.7.1978 said PW-1 had sold some  sugarcane leaves worth about Rs.50 on credit which amount A- 1 had not paid to her. Prosecution further alleges on 21.7.1978  at about 8.30 a.m. PW-1 and Satti went to the house of A-1 and  demanded the money which led to a verbal altercation. At that  point of time appellant (A-2) came to the house of PW-1 armed  with a bhala. Noticing this PW-1 and Satti started fleeing from  the house of A-1 when both A-1 and the appellant started  chasing them. On the way the prosecution alleges 4 other  accused persons also joined A-1 in the chase and when they  reached the house of Jagdei PW-6 and started further quarrel  there, said PW-6 asked them not to quarrel in front of her house  hence PW-1 and Satti ran away from the said place but they  were again chased by the accused persons in front of the house  of Ram Adhar PW-4 and were attacked by the accused persons.  In the said attack PW-1 suffered a lathi blows on her thigh and  finger while deceased Sati suffered  lathi blows and one incised  wound on the abdomen allegedly dealt by the appellant herein  with a bhala and died. The incident in question was reported to  Hussainganj Police Station at about 10 a.m. by PW-1 and after  investigation a chargesheet was filed against the appellant and 5  others before the 2nd Additional Sessions Judge, Fatehpur for  offences punishable under sections 147, 148, 302 read with 149  IPC. The Sessions Court after trial came to the conclusion that  the prosecution has established its case against A-2 the  appellant herein for offence punishable under section 148 IPC  hence awarded a sentence of 2 years’ RI for the said offence. It

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further convicted the appellant for an offence punishable under  section 302 read with 149 IPC and sentenced him to  imprisonment for life while other accused persons were held  guilty for an offence punishable under section 147 and  sentenced to one year RI each. They were also further convicted  under section 302 read with section 149 IPC and sentenced to  undergo imprisonment for life. All the sentences were directed  to run concurrently. In an appeal filed against the said judgment  and conviction as stated above, the High Court of Judicature at  Allahabad came to the conclusion that the prosecution has  established its case against 5 other accused who are not  appellants before us only for an offence punishable under  section 147 IPC for which the said accused persons were  punished with the period already undergone and with a fine of  Rs.500. They were also held guilty for offence under section  324 IPC and for the said offence also the punishment already  undergone by them was held sufficient with a fine of Rs.1,000/- . While the appellant herein was acquitted of the charge under  section 302 read with section 149 IPC but was found guilty of  an offence punishable under section 304 IPC for which offence  he was awarded a sentence of 7 years’ RI.         The other accused persons being satisfied with the  substantial benefit they obtained under the High Court  judgment have not preferred any appeal while the appellant  who is convicted for an offence punishable under section 304  IPC alone has preferred this appeal. We have heard Mr. Jaspal  Singh, learned senior counsel for the appellant and Mr. Garvesh  Kabra, learned counsel for the respondent-State and perused the  records. From the evidence of PW-1 who is the injured witness  it is clear that she and her son deceased Satti were attacked by  the accused persons consequent to which Satti died. It is also  clear from the evidence led by the prosecution that Satti died  due to an incised wound suffered on his abdomen which could  have been caused by a sharp-edged weapon like bhala carried  by the appellant. It is the prosecution case that the appellant  alone carried such a weapon and from the medical evidence  also it is clear that the cause of death was due to shock and  haemorrhage consequent to the incised wound suffered on the  abdomen of the deceased. But the question for our  consideration is what is the nature of offence committed by the  appellant in this case. The trial court came to the conclusion  that the offence committed by the appellant was one punishable  under section 302 read with section 149 while the High Court  came to the conclusion that the said offence cannot be one  punishable under section 302 because the said offence could not  be categorised as a culpable homicide amounting to murder  hence held the said offence would fall under section 304 IPC.  While coming to this conclusion the High Court held :  "Coming to the role of Ramu we have no  doubt that the fatal injury was caused by him  to Satti. Yet we find that Ramu had no  motive whatsoever or intention to cause any  fatal injury to Satti. It is obvious that in the  melee relating to assault on Satti he without  realising as to what he was doing, he struck  a single blow of spear on Satti which hit him  on his vital part resulting in his death. He  had not repeated the blow and as held  earlier, had no motive to otherwise inflict  injury on Satti. Consequently we feel that he  could be at more held guilty of causing  homicide not amounting to murder."

Having examined the evidence on record we are in  agreement with the High Court that the appellant did not have

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any motive whatsoever to cause any fatal injury to the  deceased. We also agree with the High Court that the injury in  question was caused during a melee in which 6 persons took  part therefore in our opinion on the facts and circumstances of  this case, the act of the appellant in causing injury to the  deceased which led to his death, cannot be the one which could  be construed even as an act of culpable homicide not amounting  to murder. Therefore, to that extent in our opinion the High  Court fell in error in holding the appellant guilty for an offence  under section 304 IPC. In our considered opinion on the facts  and circumstances of this case the act of the appellant is one of  causing grievous hurt with a deadly weapon which is  punishable under section 326 IPC. Noticing the fact that the  incident in question has occurred as far back as 1978 and the  appellant had no enmity against the deceased nor any motive to  cause a fatal injury, we think the ends of justice would be met if  the appellant’s conviction is altered to one under section 326  IPC and a sentence of 3 years’ RI is awarded for the said  offence. Accordingly, this appeal is partly allowed. The appellant  is held guilty of causing grievous injury to deceased Satti  punishable under section 326 IPC and is sentenced to undergo  RI for a period of 3 years. We are told that the appellant has  undergone a part of the sentence awarded to him by the courts  below. If so, he be given remission for the said period. The  appellant is on bail. His bail bonds are cancelled and he shall  surrender to serve out the remainder of sentence.