The court upheld the conviction under S.304 IPC, modifying it from S.302, focusing on culpability based on knowledge of likely bodily harm.

1The present appeal has been filed against the judgment and order dated 29-4-1981 passed by Xth Addl. Sessions Judge, Kanpur in S. T. No. 291 of 1979 whereby the appellants were convicted under S.302, I.P.C. and sentenced them to undergo imprisonment for life and appellant Laxmi Narain was further convicted under S.436, I.P.C. and sentenced to five years rigorous imprisonment along with one Himma who was convicted under S.302/34, I.P.C. His appeal is abated since he was reported to be dead.

2. The brief facts of the case mentioned in the first information report lodged by Dwarka r/o Dullapurwa Magra Gadan - purwa, P. S. Bilhore, District Kanpur to the effect that his fields are adjoining to his house. There were Jundhari and Arhar crops in the fields. Accused Radhey, Laxmi Narain and Himma always got his field grazed. On the date of occurrence they had again left their cattle to graze the field and he asked Himma to tie his cattle. On this Himma came out with his licensed gun and exhorted his sons Radhey and Laxmi Narain to settle the score with him. Radhey and Laxmi Narain came to his house armed with lathi and started abusing him. His brother Ram Dayal, nephew Jaswant reached near his field and asked them as to why they are abusing him. On the exhortation of Himma, Radhey and Laxmi Narain started assaulting Ram Dayal. On hearing the noises wife of Ram Dayal, his brother, son Paras Ram, Lallu, Hem Nath reached there. Himma challenged them and nobody came to rescue him. Ram Dayal fell on the ground and thereafter he succumbed to his head injuries. In the meantime Laxmi Narain took out match box from his pocket and set on fire the chhapar and also untied the cattle. After that the accused ran away towards southern side.

3. After the registration of the case R. U. Pandey, Sub-inspector started investigation of the case. He recorded the statements of Head Moharrir, informant Dwarika. He reached at the place of occurrence, prepared the inquest memo (Ex.Ka.10), Photo lash (Ex.Ka.11) Report to C.M.O. (Ex.Ka.12), Report to R.I. (Ex.Ka.13), Report to M.O. for taking possession of cloth of the dead body (Ex.Ka.14) and challan lash (Ex. Ka. 15). The dead body was sent for the post mortem examination.

4. Dr. P. C. Chaurasia conducted the post mortem examination on the dead body of Ram Dayal on 29-9-79 at 1.15 p.m. and he noted the following ante mortem injuries :

1. A. L. W. 4.3 cm x 2 cm x bone deep on the mid - line of Head. 12 cm above the bridge of nose.

2. A. L. W. 6 cm x 2 cm x bone deep on back of head occipital region 14 cm above and backward from injury No. one.

5. In the internal examination he found bones of scalp and skull commentated fracture of front bone present under injury No. 1 and commentated fracture of occipital bone of skull present under injury No. 2. In the opinion of doctor cause of death was due to shock and haemorrhage as a result of ante mortem head injuries.

6. After the submission of the charge - sheet the case was committed to the Court of Session. The Sessions Judge framed the charges under S.302/34 and 436, I.P.C. against the appellants.

7. In order to prove its case the prosecution examined eight witnesses in all.

8. PW - 1 Dr. P. C. Chaurasia had conducted the post - mortem examination.

9. PW - 2 Dwarika is informant of the case. He supported the prosecution case. He stated that occurrence took place at about 1' hours prior to sunset. There was Arhar crop in his field and half of the field was cultivated. He stated that the accused had several cattles and they used to leave them to graze the crop in the field. At the time of occurrence the cattle of the accused were grazing the crop in the field. He asked Himma to t