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ALLAHABAD HIGH COURT
H.C. Mittal and M.M. Lal, JJ.
Chandru & ors. -Petitioners
versus
State of U.P. -Respondent
Criminal Appeal No. 1239 of 1978
Decided on 11-8-1989
IMPORTANT POINT
When as many as four persons were severely beating the deceased with 'Lath is' and in that process injury on vital part of his body was also caused each of the accused can be imputed with the knowledge that the death was the likely result of the said beating and therefore common intention to commit that criminal act"
Headnote:(i) Indian Penal Code, 1860-Section 302-- Prosecution for the offence under - Eye-witnesses-- Corroboration by the First Information Report and the medical evidence - Acquittal' of accused B by giving him benefit of doubt- Mere fact that the evidence of the witnesses was unsafe for convicting the accused was no ground for rejecting the whole body of their testimony with regard to other accused - It is a misconception that a witness has to be believed in toto or disbelieved in toto. (Para 13)
(ii) Indian Penal Code, 1860- Section 304 Part. II read with Section 34- Four persons severely beating the deceased with Lathis- In that process injury on vital part of his body, i.e. bead, was also caused- Each of the appellants can be imputed with the knowledge that the death was the likely result of the said beating- Appellants are held guilty under Section 304 Part n read with Section 34 of the Code- Sentence of 5 years to each of the appellants. (Paras 14 & 15)
(iii) Indian Penal Code, 1860- Section 304 Part II read with Section 34- Death by beating-- Assailants had struck only one Lathi below on the head even when they had all the opportunity to cause injuries on other vital parts of the body- No intention to cause death Appellants had merely said at the time of the incident that the deceased should be caught and beaten-- Conviction under Section 302 not sustainable Appellants are held guilty under Section 304 Part of the Code. (Para 14)
Result: Appeal allowed in part.
JUDGMENT
M.M. Lal, J.- This is an appeal against a judgment and order dated 28-4-1978 passed by Sri G. R. S. Tandon, the then 7th Additional Sessions Judge, Meerut by which he has convicted the above named four appellants under Sections 302/34 of the Indian Penal Code and 323/34 of the Indian Penal Code and has sentenced each of them to undergo imprisonment for life and R.I. for six months respectively there under.
2. Chandru and Ram Niwas appellants are real brothers. Nain Singh and Atar Singh appellants, and Braham Singh who has been acquitted by the learned Trial Court, were also brothers.
3. The relations between -the parties were strained. The "chak" of Bali deceased was adjacent to "Rajbaha" and the road. The accused persons used to take "Rajbaha Patriot in auction to graze the cattle. They also used to allow their cattle to enter into the field of Bali deceased and thereby cause damage to the crop standing in the field. Although Bali deceased used to protest but the same never yielded any result.
About two years prior to this incident the accused persons had launched prosecution against Bali deceased and his brother Mahendra Singh informant. Bali deceased used to look after the defence of the said case.
4. According to the case of the prosecution on 23-12-1976, at about 1 p.m., when Bali deceased, along with his wife Smt. Chandtari, was in his field and Mahendra Singh informant was also nearby, all the aforesaid appellants carrying Lathis, along with Braham Singh armed with a "Ballam" came there. At that time Chandru. appellant exhorted his companions to beat Bali, thereafter all the four appellants and Braham Singh attacked Bali with their weapons and caused injuries to him. Smt. Chandtari tried to save her husband but she too was beaten. Mahendra Singh informant, Charan Tyagi and Chhotan Lal rushed to the place of occurrence, where upon the assailants took to their heals. A piece of Lathi of Nain Singh appellant was left behind at
the place of occurrence, which was recovered subsequently.
Bali deceased was taken to the Hospital for his examination and medical treatment.
However, Bali succumbed to his injuries on the same day, at about 7.45 p.m., whereafter Mahendra Singh wrote a report of the incident and took the same to the P.s. Hastinapur in district Meerut, where he lodged it at 8 p.m. on the same day.
In support of its case the prosecution examined nine witnesses. P.W.1 Mahendra Singh is the informant. He has narrated the motive and the incident. P.W.6 Smt. Chandtari is the injured, P.W. 4 Chhotan Lal is an eye witness. P.W. 3 Sheo Charan Tyagi was also an eye witness but he turned out to be hostile. P.W. 2 Vitpal Singh was clerk, constable at P.S. Hastinapur. He was examined to depose that on 23-12-1976 at 8 p.m. Mahendra Singh informant handed him over the written report of the incident, on which this case was registered. The piece of the aforesaid blood stained Lathi as also the sample of blood stained and unstained earth from the place of occurrence were taken in possession in the presence of P.W. 8 Rampal. The investigation of this case was conducted by P.W. 9 Banwari Lal.
5. P.W. 6 Dr. V. D. Goel, the then Medical Officer, Incharge P.H.C., Hastinapur, had examined the two injured persons, i.e. Bali and Smt. Chandtari on 23-12-1976. He had found the following injuries on the person of Bali:
A contused swelling 5 cm x 4.5 cm on left side of scalp 12 cm above left ear.
A lacerated wound 1.5 cm x .5 cm on left side of scalp, 5 cm above left ear.
Bleeding from left ear.
A contusion 6 cm x 2.5 cm, on right shoulder, with an abrasion 1.5 cm x 1 cm, red.
A contusion 4 cm x 1.5 cm, vertical on middle of right arm outer side red.
As abraded contusion 6 cm x 1 cm vertical on lower part of right arm 6 cm below injury No.5 red.
A contused swelling 8 cm x 3 cm on dorsum of right forearm oblique, rend in lower part.
A contusion 4 cm x 2 cm oblique, red n front and outer part of upper portion left forearm.
A contusion 20
