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CASE NO.: Appeal (crl.)  1344-1346 of 1999

PETITIONER: STATE OF U.P.

RESPONDENT: SHYAM VEER & ORS

DATE OF JUDGMENT: 20/04/2005

BENCH: B.P. SINGH & ARUN KUMAR

JUDGMENT: J U D G M E N T

B.P.Singh,J.

        These appeals have been preferred by the State of Uttar Pradesh against the  judgment and order of the High Court of Judicature at Allahabd dated 17th December, 1997 in  Criminal Appeal Nos. 186, 214 and 474 of 1997 along with Criminal Appeal No.(Capital  Case)No.198/97.   The High Court also disposed of Reference No.17/97.   The respondents 13 i n  number were put up for trial before the Ist Addl.District & Sessions Judge, Etah in Sessions   Trial No.321/89.  By  judgment and order of 25th January, 1997 the trial court found  respondents 1 to 5 guilty of the offences under Section 302/149 IPC, 436, 353 and 147 IPC.    It  sentenced them to death under Section 302/149 IPC, to life imprisonment under Section 436 IP C  and 2 years rigorous imprisonment each under Sections 353 and 147 IPC.   The respondents 6 t o  13 were sentenced to life   imprisonment under Section 302/109 as well as under Section 436/ 109  IPC, and to two years rigorous imprisonment under Section 353 IPC.   They were, however,  acquitted of the charge under Section 147 IPC.   The several appeals along with Death Refere nce  were disposed of by the High Court by its impugned judgment and order.   The High Court  declined the Death Reference on a finding that respondents  1 to 5 were guilty of offence un der  Section 304 Part-I and not under Section 302/149 IPC.   It sentenced them to 10 years rigoro us  imprisonment under that Section.   It further reduced their sentence under Section 436 IPC t o 7  years rigorous imprisonment while upholding the sentence under Section 147 IPC.   Respondent s  6 to 13 were acquitted of all the charges levelled against them.         The case of the prosecution is that on 22nd March, 1989 the villagers of village  Badhapura were celebrating Holi festival when that unfortunate incident took place.   Deceas ed  Ghamandi Lal, a dhobi by caste was also a resident of the village.   At about 7.00 P.M. Rajv ir  Singh, who appeared to be under the influence of liquor, came in front of his house and alle gedly  started abusing Ghamandi Lal, (deceased) calling him a dhobi, etc.   To this, Indal (decease d) son  of Ghamandi Lal objected.  Rajvir Singh did not pay any heed and continued  to abuse  Ghamandi Lal by his caste.  This infuriated Indal, son of Ghamandi Lal who went inside his  house brought out the licensed gun of his father and fired 2/3 shots at Rajvir Singh, as a r esult of  which Rajvir Singh died on the spot.   Immediately, the message reached the family members o f  Rajvir Singh.  Respondents 1 to 3 his brothers, and respondents 4 and 5 his cousins reached

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the  house of Ghamandi lal.   They lifted the body from in front of the house of Ghamandi Lal and   placed it under a Neem tree.   They were infuriated and vowed to avenge the murder of their  brother, and in that mood they approached the house of Ghamandi Lal.   Ghamandi Lal  apprehending death at their hands, entered his house and bolted the door from inside.   The  aforesaid respondents climbed on the roof of his house, broke opened a portion of the roof a nd  threw inside the room straw and other inflammable materials.   Thereafter, they set fire to  the  house.   The admitted  case is that all this took place within 15 minutes of the murder of R ajvir  Singh.         A first information report had been lodged at 2.45 A.M. regarding the death of  Rajvir Singh by Shyamvir Singh, his brother.   The first information report relating to the  incident in question was lodged at 3.15 A.M. by Kamlesh PW4, a cousin of Ghamandi Lal.   On  the basis of the earlier first information report the police force had reached village Badha pura.    It is the case of the prosecution that respondents 6 to 13 prevented the police force as wel l as the  villagers from extinguishing the fire.   Ultimately, the house was burnt down.  From the bur nt  house the bodies of Ghamandi Lal, his wife Janak Dulari and his sons Vir Pal, Raj Kumar and  Indal were recovered.         Though the prosecution examined several witnesses to prove its case, PWS 1,2 &3  were declared hostile.  PW4 Kamlesh who was also informant in the case and a cousin of the  deceased supported the case of the prosecution.   PW5 Bittan Devi is also a neighbour like  Kamlesh PW4.  She was also a sister of the wife of Ghamandi Lal.  The trial court relied upo n  their testimony and found the respondents guilty as noticed earlier.   The High Court also r elied  upon the testimony of PW4 Kamlesh as corroborated by the testimony of Bittan Devi PW5.    However, the High Court was of the view that in the facts and circumstances of the case the  respondents 1 to 5 were entitled to the benefit of Exception 1 of Section 300 IPC.  Responde nts 6  to 13 were acquitted of the charges   framed against them because admittedly they were not  present when the remaining accused decided to set fire  the house or when they actually set  fire  the house.   The High Court found that in the facts of the case they could not be found guil ty of  the offences under either Sections 302/109 IPC or Section 436/109 IPC or even under Section  353  IPC.   In fact, the Addl. Advocate General appearing before the High Court conceded the case  as  against them.         In appeal before us, learned counsel appearing for the appellant State submits that  so far as respondents 1 to 5 are concerned, their conviction under Section 302/149 IPC ought  to  have been affirmed.   According to him, this is not a case which is covered by Exception I t o  Section 300 IPC.   No doubt, the provocation was grave but it was not sudden.  According to  him,  respondents 1 to 5 had come to the place of occurrence on hearing about their brother’s deat h,  they had thereafter picked up the body of the deceased brother and kept it under a Neem tree .     Only thereafter they set fire to the house of the deceased.  No  argument was advanced befor e  us against acquittal of respondents 6 to 13 by counsel appearing for the State of U.P.              On the other hand, counsel for the aforesaid respondents submitted that it is n ot  disputed that the second occurrence took place within 15 minutes of the first occurrence.    Indal,  son of Ghamandi Lal had unnecessarily caused the death of their brother Rajvir Singh.   The  incident seriously infuriated the family members of the deceased and resulted in deprivation

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of  power of self control.   The time gap  of only 15 minutes between the two incidents supports  the  case of the respondents that what they did was under grave provocation whilst deprived of th eir  power of self control on account of the murder of their brother by Indal.   According to her  the  time gap of 15 minutes was not sufficient for the members of the family of the Rajvir Singh  to  gain their self control particularly, when they saw the dead body of their brother who was  murdered by Indal.   It must have taken some time for them to reach the house of Ghamandi  Lal, and  within no time thereafter the second occurrence took place.         Having regard to the facts and circumstances of the case, we are not in a position t o  say that the view taken by the High Court is not a possible reasonable view of the evidence  on  record.   The respondents 1 to 5 have been sentenced to 10 years rigorous imprisonment under   Section 304 Part-I IPC and also to 7 years rigorous imprisonment under Section 436 IPC apart   from the sentence of two years under Section 147 IPC.   The occurrence took place 16 years a go.    We are, therefore, not inclined to interfere with the order of the High Court.         The appeals are accordingly dismissed.