IMPORTANT POINT
The court modified the conviction from murder to culpable homicide not amounting to murder, emphasizing the lack of intent to kill and the nature of injuries inflicted.

JUDGMENT :

ATTAU RAHMAN MASOODI, J.

1. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the material on record.

2. During the course of hearing of this appeal, the appellant nos. 1 and 2 namely Mata Prasad and Bhurey @ Dinesh Kumar have died and the appeal insofar as it relates to them has been abated vide order dated 11.7.2023 and 16.8.2023 respectively. Thus, the appeal survives on behalf of these appellants namely Pappu, Puttan and Daddan (appellant nos. 3, 4 and 5) only.

(A) Prelude

3. By means of this criminal appeal, the appellants, out of whom, only appellant nos. 3, 4 and 5 (hereinafter referred to as appellants) survive have challenged the judgment and order dated 26.5.2001 by which learned Sessions Judge, Bahraich in sessions trial no. 25 of 1999 arising out of case crime no. 318 of 1998, under Sections 147, 148, 149 and 302 I.P.C. police station Ikauna, district Shrawasti has convicted them under Sections 302/149 I.P.C, and sentenced to undergo imprisonment for life with a stipulation of fine of Rs.5000/- each and further to undergo rigorous imprisonment for a period of two years in default of payment of fine. In addition, appellants namely Pappu, Puttan and Daddan were also convicted under Section 147 I.P.C. and sentenced to undergo one year's R.I. with stipulation of fine of Rs. 500/- each. In default of payment of fine a further R.I. of three months. All the sentences are directed to run concurrently.

4. The prosecution case, in nutshell, is that the complainant namely Smt. Meera Devi submitted a tahrir (exhibit ka-1) on 23.9.1998 at 10.00 p.m. in the police station alleging therein that on 23.9.1998 at 5.30 p.m. the accused appellants namely Mata Prasad armed with pharsa, Bhoorey alias Dinesh Kumar armed with ballam and rest of the accused namely Pappu, Puttan and Dadan armed with lathis were sitting near the 'Dhabli' of one Nankoo Tiwari and while her father-in-law was going to his agricultural field from his house they all started assaulting him and dragged him to the door of Chhotkau Kurmi where they again assaulted him with lathi, ballam and pharsa. The complainant on hearing the scream reached at the place of occurrence. The other persons namely Nand Kumar, Mahipal and several villagers also reached there. On being reprimanded by theses persons, the accused appellants ran away from the spot. The complainant with the help of villagers brought the deceased at the door of Kailash Nath Pradhan where he succumbed to the injuries. The report of the incident was registered as case crime no. 318 of 1998, under Sections 147, 148, 149 and 302 I.P.C. at police station Ikauna, district Shrawasti and was entered in the G.D. No. 32(Exhibit ka-3).

5. Inquest report of the dead body was prepared by the Investigating Officer (PW-4) and the postmortem was conducted by PW-6 who noted the following antemortem injuries on the body of the deceased:

(i) Larger abraded contusion on right outer front of abdomen and adjacent part of back size 26 cm x 12.5 c.m.

On opening abdominal cavity about 2 litres of blood found.

Liver raptured

(ii) 3 cm X 1.5 cm abraded contusion left side forehead just about left eyebrow.

(iii) 1.5 cm incised wound mid-part of back of left forearm.

(iv) 8.0 c.m. x 6.0 cm contusion dorsum of right hand, on deeper dissection, outer three metacorpals found fractured.

(v) 7.00 cm x 5.5 cm contusion dorsum of left hand

(vi) Larger abraided contusion over back and sides of lower half of right upper arm and uper half of right forearm. Size 28.0 cm X 8.0 cm on deeper dissection right humerous fractured near lower end.

(vii) Incised wound size 1.5 cm X 0.5 cm outer side right arm lower part 7 cm above the elbow joint.

(viii) 7.5 Incised would front of left leg 12.0 c. above the ankle joint

(ix) 4.0 cm. incised wound front of right leg 13 cm above the ankle joint.

(x) 3.5 cm long incised wound inner side right foot 7 cm in front of medial malleolus.

In the opinion of the doctor deceased died due to shock