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HIGH COURT OF ALLAHABAD
Parmeshwar Dayal, M.M.Lal
CHANDRA PAL
Versus
STATE
Decided On : 17 March 1988
Criminal Appeal No. 185 of 1981 connected with Criminal Appeal No, 280 of 1981
CRIMINAL APPEAL - SECTION 302/34, 323 IPC - MURDER - COMMON INTENTION - EXHORTATION - EVIDENCE - INDEPENDENT WITNESSES - DELAY IN LODGING FIR - INJURIES - MOTIVE - PREMEDITATION - PROVOCATION - SUDDEN FIGHT - INTENTION TO CAUSE DEATH - CONVICTION - SENTENCE - FINE.
Fact of the Case:
The incident took place on 28-11-1979 at about 4 p.m. when Smt. Rajola, wife of Chhedi, went towards the east of the village to answer the call of nature. The appellants, Bhagwandin and Chandrapal, abused her and told her not to come to their side for answering the call of nature. When she returned home, she complained to her in-laws. Shortly thereafter, Bhagwandin, carrying a Kulhari, and Chandrapal, carrying a lathi, passed by that side. Khilari, the deceased, protested to them and asked them why they had abused his daughter-in-law. This led to an altercation. Chandrapal exhorted Bhagwandin to kill Khilari so that the quarrel may be over. Both the appellants then attacked Khilari with Kulhari blows. Smt. Lachhminia and Dayal, the injured witnesses, tried to intervene but they too were inflicted with injuries. Some witnesses came to the place of occurrence and the incident was witnessed by them. Both the appellants fled from the scene. Dayal arranged for a bullock cart and took Khilari and Smt. Lachhminia to the Police Station Purwa, located at a distance of 6 miles. Khilari expired on the way. The report of the incident was lodged on the same day at 9-30 p.m. at P.S. Purwa.
Finding of the Court:
The court found that the prosecution had proved its case beyond reasonable doubt. The evidence of the injured witnesses, P.W. 1 Dayal and P.W. 2 Smt. Lachhminia, was found to be credible and reliable. The motive set up by the prosecution was also proved. The court held that Bhagwandin appellant had the intention to cause the death of Khilari as he had inflicted injuries to Khilari deceased on vital part of the body and also when he gave many blows to him. The court also held that there was no premeditation and there was a sudden fight and the death of Khilari was caused in the heat of passion hence this case was covered by Exception 4 attached to Section 300, I. P. C. However, the court gave benefit of doubt to Chandrapal appellant as there was no independent witness to support the case of exhortation and the learned lower court did not accept the case of common intention and therefore did not convict and sentence Bhagwandin appellant under Section 323/34, IPC.
Issues: 1. Whether the prosecution had proved its case beyond reasonable doubt? 2. Whether the evidence of the injured witnesses was credible and reliable? 3. Whether the motive set up by the prosecution was proved? 4. Whether Bhagwandin appellant had the intention to cause the death of Khilari? 5. Whether there was premeditation and the death of Khilari was caused in the heat of passion? 6. Whether Chandrapal appellant was guilty under Section 302/34, IPC?
Ratio Decidendi: 1. The court held that the prosecution had proved its case beyond reasonable doubt based on the evidence of the injured witnesses, P.W. 1 Dayal and P.W. 2 Smt. Lachhminia, which was found to be credible and reliable. The motive set up by the prosecution was also proved. 2. The court held that Bhagwandin appellant had the intention to cause the death of Khilari as he had inflicted injuries to Khilari deceased on vital part of the body and also when he gave many blows to him. 3. The court held that there was no premeditation and there was a sudden fight and the death of Khilari was caused in the heat of passion hence this case was covered by Exception 4 attached to Section 300, I. P. C. 4. The court gave benefit of doubt to Chandrapal appellant as there was no independent witness to support the case of exhortation and the learned lower court did not accept the case of common intention and therefore did not convict and sentence Bhagwandin appellant under Section 323/34, IPC.
Final Decision: The court dismissed the appeal of Bhagwandin appellant and upheld his conviction and sentence of life imprisonment under Section 302, IPC. The court partly allowed the appeal of Chandrapal appellant, set aside his conviction and sentence under Section 302/34, IPC, and upheld his conviction under Section 323, IPC. The sentence of 6 months R.I. imposed upon him under Section 323, IPC was reduced to the imprisonment already undergone by him and to pay a fine of Rs. 2,000 or in default thereof to undergo 6 months R.I.
Both these appeals arise from the same judgment and order dated 9-3-1981 passed by Sri V. K. Jain, Sessions Judge, Unnao whereby he has convicted Chandrapal appellant under Sections 302/34, IPC and 323, IPC and has sentenced him to undergo imprisonment for life and six months R. I. respectively, thereunder and has convicted Bhagwandin appellant under Section 302, IPC and has sentenced him to undergo imprisonment for life.
2. Dori and Kusehar were two real brothers. Dori had a son named Dori. Bhagwandin and Chandra Pal appellants are the sons of said Dori. Kusehar on the other hand had two sons named PW 1 Dayal injured and Khilari who has been murdered in this incident Scot. Lachhminia injured is the widow of said Khilari. They have a son named Chhedi. Smt. Rajola is the wife of said Chhedi. The parties are the residents of village Bhadin, P. S. Purwa, district Unnao.
3. The wife of Dori had died in the month of Asarh, prior to this incident. Dori had, however not performed per last rites. The marriage of aforesaid Chhedi, son of Khilari deceased was about to take place and according to the custom the said marriage could not be performed till the last rites of the wife of Dori had been performed. Therefore, Khilari and Dayal asked Dori to perform the said rites but he declined to do so. Thereupon the marriage of Chhedi was salemnized without the said rites having been performed. On the same the relations between the two families were broken.
4. According to the case of the prosecution on 28-11-1979 at about 4 p. m. aforesaid Rajola had gone towards the east of the village, where the house of the Bhagwandin was situate, to answer the call of nature. At that time the appellants had abused Smt. Rajola and told her not to come to their side for answering the call of nature. When she returned to her house Smt. Rajola made a complaint of same to her in-laws. At about the same time Bhagwandin appellant carrying Kulhari and Chandrapal appellant carrying lathi passad by that side. Kulhari deceased made a protest to them and asked them that they should not have abused his daughter-in-law and that if they had any complaint to make, then they
should have made the same to him. The same led to an altercation. At that time Chandrapal appellant exhorted Bhagwandin appellant to kill Khilari so that quarrel may be over. Both the appellants then attacked Khilari as a result of which he sustained Kulhari blows. Smt. Lachhminia and Dayal had tried to intervene but they too were inflicted injuries. Some witnesses had come at the place of occurrence and incident was seen by them. Both the appellants had gone away from the place of occurrence. Dayal injured made an arrangement for a bullockcart and on the same took Khilari and Smt. Lachaminia to the Police Station Purwa. In the way Khilari had expired. The report of the incident was lodged on the same day at 9-30 p. m. at P. S. Purwa, situate at a distance of 6 miles.
5. In support of its case the prosecution examined PW 1 Dayal informant and PW 2 Smt. Lachhminia injured PW 3 is Dr. S. M. Tripathi who was Medical Officer, District Hospital Unnao. He had conducted the postmortem examination of the dead body of Khilari on 29-11-1981 at 2 p. m. He had found the following ante-mortem injuries on the dead body of Khilari :
1. Incised wound "2 "x " bone cut on front of head 3" above the bridge of nose.
2. Incised wound 2 "x 3/4" x bone cut on right shoulder top. Acromin process of scapula was fractured.
3. Incised wound 3/4"x "x muscles deep on right arm back 3" above the elbow.
4. Incised wound 3/4"x "x 1" deep on right thigh front and middle.
5. Incised wound 1 "x "x bone deep on left side back of neck middle part.
6. On internal examination the doctor had found left parietal bone of Khilari having been fractured. The membrance were lacerated under injury No. i. The brain was congested. According to the doctor the death of Khilari had taken place due to shock and haemorrhage as a result of the
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