Intent to commit harm equates to liability for unintended death under IPC, affirming culpability.

1. This appeal has been preferred against order of conviction and sentence dated 16-7-1980, passed by 1st Additional Sessions Judge, Mathura, in Sessions Trial No. 164 of 1979, State v. Dan Behari, by which Dan Behari, appellant has been convicted under S.301/302, IPC with life imprisonment.

2. None appeared for the appellant to advance argument, although he is represented by Sri Tej Pal and Sri G. S. Chaturvedi, Advocates. Arguments of learned A.G.A. were heard and the judgment is being delivered. The appeal is being decided on merits.

3. One Than Singh lodged FIR against Dan Behari on 19-2-1979 at 10.30 a.m. under S.307, IPC bearing crime No. 85 at police station Vrindavan, district Mathura that Dan Behari had caused firearm injury to his son Budha on 19-2-1979 at 9.00 a.m. The occurrence is said to have taken place near Pattarpura Tonga stand, which is at the distance of one mile from the outpost Mathura Gate, Police Station, Vrindavan.

4. According to prosecution, there is a temple in Vrindavan. Kaushal Kishor's father got the father of the accused appellant appointed in the temple for Pooja. Kaushal Kishor lives in a house known as Kishori Rani Kunj. The appellant and his father wanted to get this house vacated. Civil litigation was pending between Kaushal Kishor and the father of the accused appellant in Mathura. Due to this enmity, on 18-2-1979 when Chandra Bhan, son of Kaushal Kishor was going on cycle from Vrindavan to Mathura, he met Dan Behari accused and his brother Yogendra. Dan Behari and Yogendra tried to attack Chandra Bhan but he escaped injuries. On the same day Dan Behari and Yogendra beat Chandra Prakash, another son of Kaushal Kishor at 6.30 P.M. FIR was lodged at the police station in respect of both these incidents. Dan Behari and his brother Yogendra were taking breakfast at the shop of Tonu. Kaushal Kishor enquired as to why they had beaten his son Chandra Prakash as the civil suit was pending and the right in respect of the house would be decided by the Court and there was no need to quarrel. At this appellant Dan Behari and his brother Yogendra abused, then Kaushal Kishor threw a piece of brick and accused Dan Behari fired with country made pistol at Kaushal Kishor, Kaushal Kishor sat down, hence one innocent child Budha son of Than Singh, who was standing behind Kaushal Kishor, was hit. Witness Sudhan brought Budha to his (Budha's) house. Dan Behari and Yogendra ran away. Budha was bleeding profusely. Sudhan and Than Singh, father of Budha carried Budha to C.F.C. Hospital Vrindavan on rikshaw. Injured Budha succumbed to his injuries in the hospital on 19-2-1979 at 10.30 p.m. The investigation was started by Police Sub-Inspector Shiv Ram Singh Sengar, who recorded the statements of Than Singh, Sudhan, Tonu and Kaushal Kishor and prepared site - plan. The accused was not traceable. Ultimately Dan Behari accused surrendered in the Court on 23-2-79. Police Sub-Inspector Babu Ram Dikshit prepared the inquest report. In the postmortem examination, following ante - mortem injuries were found on the dead body of Budha: -
(1) Firearm injury 1 - cm. x 1 cm. x muscle deep on front of left arm just below shoulder joint with blackening and charring surrounding the wound.
(2) Firearm injury 1 cm. lateral to injury No. 1. Both these injuries were connected through and through the muscle. Injury No.1 was wound of entry and injury No. 2 was wound of exit.
(3) Firearm injury of entry 1 cm. x 1 cm. x chest cavity deep at about middle third of right side clavicle. The wound was surrounded by blackening and charring.
(4) Firearm injury of exit