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IN THE HIGH COURT OF ALLAHABAD
P. N. Goel and S. J. Hyder, JJ.
STATE OF U.P. - Appellant
Versus
MISRI LAL - Respondents
. . Of .
Decided On : 03/15/1982
CRIMINAL APPEAL - SECTION 304, PART II, I. P. C. - SECTION 325, I. P. C. - SECTION 4, U. P. FIRST OFFENDERS PROBATION ACT - CULPABLE HOMICIDE NOT AMOUNTING TO MURDER - INTENTION TO CAUSE DEATH OR SUCH BODILY INJURY AS IS LIKELY TO CAUSE DEATH - KNOWLEDGE THAT IT IS LIKELY TO CAUSE DEATH - BENEFIT OF PROBATION - INTERPRETATION OF SECTIONS 360, 361, 484 OF THE CRIMINAL PROCEDURE CODE AND SECTION 4 OF THE U. P. FIRST OFFENDERS PROBATION ACT.
Fact of the Case:
The appellants were convicted under Section 304, Part II, I. P. C. for causing the death of Man Singh by assaulting him with lathis. The appellants contended that they were not present at the time of the occurrence and that the injuries on Man Singh were caused by Sadhu Singh, one of the appellants, in self-defense. The prosecution witnesses, however, testified that the appellants had surrounded Man Singh and Amar Singh and assaulted them with lathis.
Finding of the Court:
The court found that the occurrence took place in the manner alleged by the prosecution and not in the manner alleged by Sadhu Singh. The court also found that the appellants had the intention to cause death or such bodily injury as was likely to cause death, but that it was not possible to determine which of the appellants had caused the fatal injuries on Man Singh's head. Therefore, the court convicted the appellants under Section 325, I. P. C. for causing grievous hurt with common intention and gave them the benefit of probation under Section 4 of the U. P. First Offenders Probation Act.
Issues: 1. Whether the appellants were present at the time of the occurrence and whether they assaulted Man Singh and Amar Singh with lathis? 2. Whether the appellants had the intention to cause death or such bodily injury as was likely to cause death? 3. Whether the appellants could be convicted under Section 304, Part II, I. P. C. or Section 325, I. P. C.? 4. Whether the appellants were entitled to the benefit of probation under Section 4 of the U. P. First Offenders Probation Act?
Ratio Decidendi: 1. The court relied on the testimony of the prosecution witnesses and the first information report to conclude that the occurrence took place in the manner alleged by the prosecution and not in the manner alleged by Sadhu Singh. 2. The court held that the appellants had the intention to cause death or such bodily injury as was likely to cause death, as they had surrounded Man Singh and Amar Singh and assaulted them with lathis, causing grievous injuries. 3. The court held that the appellants could not be convicted under Section 304, Part II, I. P. C. because it was not possible to determine which of the appellants had caused the fatal injuries on Man Singh's head. However, the court convicted them under Section 325, I. P. C. for causing grievous hurt with common intention. 4. The court held that the appellants were entitled to the benefit of probation under Section 4 of the U. P. First Offenders Probation Act, as they were young offenders with no previous convictions and the occurrence took place suddenly when their cattle were driven away by the complainant.
Final Decision: The court dismissed the government appeal and modified the appellants' conviction from Section 304, Part II, I. P. C. to Section 325, I. P. C. The court also upheld the trial court's order granting the appellants the benefit of probation under Section 4 of the U. P. First Offenders Probation Act.
( 1 ) BOTH these appeals are directed against the order dated 2-2-1976 passed by the Ist Additional sessions Judge, Etawah in S. T. No. A 234 of 1975. Misri Lal, Mahesh Chand, Sadhu Singh and lalloo Singh were convicted under Section 304, Part II I. P. C. and given benefit of Section 4 of the U. P. First Offenders Probation Act in view of the provisions of Section 361 of the Criminal p. C, 1973.
( 2 ) THE occurrence took place on 7-11-1972 at about 1 P. M. within the limits of Nagla Bhawan, hamlet of Pali Khurd, police station Bhartana, District Etawah some cattle belonging to Misri lal, Mahesh Chand, Sadhu Singh, sons of Jahar Singh. D. W. 4 and Lalloo Singh, son of Johari singh, residents of Nagla Ajai, hamlet of village. Bhanpur, police station Bhartana, district etawah, were grazing the Laha field of Man Singh, uncle of Amar Singh, P. W. 2, native of Pali khurd. Man Singh and Amar Singh were harvesting bajra crop from their field just to the north of the field having Laha. On seeing that the cattle were grazing recently sown Laha crop, they came up and drove the cattle towards south. They reached in the field of Sadan Singh where misri Lal, Mahesh Chand, Sadhu Singh and Lalloo Singh were relaxing. These 4 parsons had lathis. Instead of taking away their cattle they assaulted Man Singh and Amar Singh with lathis because they were carrying the cattle towards the pound. Thereafter they took away their cattle. It is apparent that the marpeet took place in the field of Sadan Singh. As a result of the injuries sustained Man Singh became unconscious. He was taken to his house on a cot. Amar Singh wrote a report at his house. Then he Proceeded to the police station along with injured unconscious Man Singh. On reaching police station which is 3 or 4 miles away at 4-15 P. M. Amar Singh lodged his report. The police then sent both the injured to Bhartana hospital for the examination of their injuries.
( 3 ) DR. S. C. Gupta, P. W. 1, first of all examined Amar Singh at 4-30 P. M. and found following simple injuries on his person:
1. Lacerated wound 3/4" x 1/4" x scalp right side 2" from hair line. 2. Lacerated wound 1 1/2" x 1/4" x (scalp deep on back of scalp left side 3" above and behind left ear. 3. Abrasion 1/4" x 1/2" on left side forehead 1/2" above left eyebrow.
( 4 ) ABRASION 1/1. 0" x 1/10" on back of left wrist joint.
4. Dr. S. C. Gupta examined Man Singh next at 4. 45 P. M. and found following injuries on his person: 1. Lacerated wound 2" x 1/2" probing not done as general condition of the patient was very poor. On middle of scalp 4" above midline. 2. Lacerated wound 1. 1/2" x1/2i" probing not done on left side scalp 5" above left ear. 3. Lacerated wound l" x 1/10" probing not done 1 1/4" above left ear. 4. Lacerated wound 3/4" x 1/4" probing not done on left side scalp 1/2" below injury No. 3.
( 5 ) LACERATED wound 1. 1/4" x 1/2" muscle on left side face 1" on the left angle of lip.
( 6 ) TRAUMATIC swelling 4. 1/2" x 4" on left arm, left elbow joint.
5. Man Singh was taken to the District Hospital Etawah where he died. Brijendra Vir Singh, S. I. P. W. 10, attached to the police station Kotwali, Etawah Held inquest on the dead body on 10-11-1972 at 9-30 A. M. On the same day at 4 P. M. Dr. Sheo Kishore Sharma, P. W. 11, conducted post-mortem examination on the dead body. He found following ante-mortem injuries: 1. Lacerated wound l" x 3/8" bone deep on the left side of head 4" above the left ear. 2. Lacerated wound 1. 3/4" x 1/8" on the middle of the head direction of wound anterior to posterior. 3. Lacerated wound 3/4" x 3/8" scalp deep on the left side of the head 1/2" above the left ear. 4. Lacerated wound 3/4" x 1/8" scalp deep on the left side head 1/2" above injury No. 3. 5. Abrasion 3/8" x 1/8" on left temple 1" above the left eye brow. 6. Abrasion 1/2" x 1/4" on the back of right thigh.
( 7 ) ABRADED contusion 3/4" x i" medial surface of the right elbow joint. 6. On opening the skull, frontal, both par
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