The judgment highlights the significance of establishing intention and the nature of injuries in determining criminal liability under the Indian Penal Code.

JUDGMENT :

Jyotsna Sharma, J.

1. Heard Sri Moti Chand Yadav, learned counsel for the appellant no. 2, who is the only surviving appellant and Sri O.P. Dwivedi, learned AGA for the State and perused the material on record.

2. The appellants-Durga Prasad and Bhawani Prasad have preferred this criminal appeal, challenging the judgment and order dated 12.09.1989 passed by Additional Session Judge, Sultanpur in Session Trial No. 74 of 1985 whereby the appellants were convicted under section 302 read with 34 IPC and sentenced to undergo rigorous imprisonment for life.

3. The facts relevant for the purpose of this case are as under:-

The first informant-Jagdish Prasad Sharma submitted a written report before the police station concerned stating therein that at about 3 in the afternoon of 29.06.1981, his father was clearing a drain. The accused persons Durga Prasad and Bhawani Prasad came using foul words. When his father protested, he was attacked with pieces of bricks. The incident was witnessed by the first informant-Jagdish Prasad and witnesses Ram Kalp, Devkali, Gayabaksh Singh. They rescued him, otherwise they would have killed his father. This information was given to the police station concerned, on the basis whereof NCR under section 323 IPC was registered on 01.07.1981 at about 09.45. The injured Babu Lal Sharma was medically examined on 30. 06.1981 at 8.00 AM at District Hospital, Sultanpur. Later on he died of injuries and his postmortem examination was done. The case came to be converted into section 302 IPC. After completion of investigation both the accused persons were chargesheeted. The case was committed to the Court of Sessions. The accused persons were charged for the offence under section 302 read with section 34 IPC. They denied the charge and claimed trial.

The prosecution produced Jagdish Prasad as PW1. Ram Kalp as PW2, Constable-Laljit Singh as PW3, Radhey Shyam Tiwari as PW4 and Dr. T.N. Sharma as PW5. The statement of the accused persons under section 313 Cr.P.C. were recorded. No evidence in defence was produced. After hearing both the sides the accused persons were convicted under section 302/34 I.P.C. and sentenced to undergo rigorous imprisonment for life.

4. Before the contentions of the accused persons are taken up, we find it appropriate to briefly refer to the evidence produced by the prosecution for proving its case.

The gist of the statement given by PW1-Jagdish Prasad is that the accused persons were his first cousins and that they have been staying in separate portions of the same house after mutual partition. There had been incessant rain on the day of occurrence. Both the sides had a common drainage which was closed by the accused persons, therefore, the rain water had collected in his 'aangan'. His father went for clearing the drain (naali). Both the accused persons stopped him from doing so and they had an argument. Accused threw pieces of bricks causing injuries to his father on his head, right shoulder and the lower lip. His father fell down. His mother Devkali, uncle Ram Kalp, witness Sharmajeet and Gayabaksh and he himself witnessed the incident and rescued Babu Lal. He has further stated that he went to police station next day. When rain stopped, he got his father admitted to civil hospital. From their, he was referred to Medical College, Lucknow. Later on, he died.

PW2-Ram Kalp is another witness of fact produced by the prosecution, who has subsequently narrated the same story as PW1.

PW3-Laljit Singh (Constable) is a formal witness, who has stated that S.I.-Ram Ashrey conducted inquest. Thereafter the dead body was sent for postmortem. The postmortem was done at 1.30 on the day, on 08.07.1981. Babu Lal died on 07.07.1981 at about 12 in the afternoon.

PW4-Radhey Shyam Tiwari is a witness, who has proved that the NCR was written by constable-Shyam Narayan Dubey in his own handwriting. He has further stated that on the basis of the information, as regards death of Babu Lal, the case was converted in