Vs. State of U.P.  INSC 1139 (6 July 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 996
OF 2004 Indrasan .... Appellant Versus State of U.P. .... Respondent
Mukundakam Sharma, J.
This appeal has been preferred by the appellant who has been
convicted by the Sessions Court as also by the High Court under Section 302 IPC
and sentenced to undergo rigorous imprisonment for life.
The deceased was one Jawahar who was murdered on 14.10.1979 at
about 8.00 A.M. in Village Marrie, Police Station Nichlaul, District Gorakhpur.
The prosecution story in brief is that in the said village there was a
Government Gausadan (a campus with pasture land where cattle are brought up and
looked after) spreading over an area of about 562 acres.
the said area is also located certain residential premises for the employees of
the Gausadan. The grasses were also grown in Gausadan and contract of growing
such grass in Gausadan was given by the Government through auction and one
Harendra Singh who was a contractor was given the said contract. Goverpal
Harijan was one of the employees in the Gausadan and on account of his illness,
his son Jawahar (deceased) was performing his duties in the Gausadan.
On 13.10.1979 at about 2.00 p.m. about 30-40 cattles including the
buffaloes of Goverpal Harijan were grazing in the pasture land of Gausadan.
they were eating the grasses for which there was a contract, a person on behalf
of the contractor Harendra Singh came and collected all the cattles including
buffaloes and took them to the contractor Harendra Singh.
Jawahar and other owners of the cattle went to Harendra Singh and requested him
to release their cattle. Harendra Singh permitted Jawahar to take away his
buffalo and also released the cattle of the other persons.
On 14.10.1979 i.e. the next day in the morning time, Ram Prahlad,
Sahdeo, Pratap, the appellant Indrasan and 2-3 persons were sitting in the
verandah of Gausadan. The appellant-Indrasan had lathi with him. While they
were so sitting in the verandah of the Gausadan, Jawahar happened to arrive
there. The appellant-Indrasan who was the employee of contractor 2 Harendra
Singh took up his lathi and suddenly rushed towards Jawahar and gave a lathi
blow on his head as a result of which he sustained head injury and fell down.
As a consequence of the said lathi blow on the head, deceased-Jawahar succumbed
to his injuries immediately thereafter. Ram Prahlad went to the house of Goverpal
and informed him about the fatal injuries caused to his son. Goverpal came to
Gausadan and found his son lying there dead. He then went to the police station
Nichlaul, where he lodged the written F.I.R. on the same day at 11.05 a.m. The
distance of the police station from the place of occurrence was six miles. On
information, a case was registered and investigation was entrusted to S.I.
Vinod Kumar Yadav (PW-7). Post mortem examination was also carried on the body
of the deceased-Jawahar. In the said post mortem examination, one injury was
found by the doctor on the head of the deceased which was of the following
nature : - "Lacerated wound on left parietal region 5 cm x 1 cm x skull
deep, 8 cm above left ear."
In support of its case, the prosecution examined all seven
Prahlad (PW-1), Sahdeo (PW-2) and Ram Pratap (PW-3) were the eye witnesses of
the occurrence. Goverpal (PW-4), the father of the deceased was also examined.
The defense raised on behalf of the accused was one of 3 denial and also of
false implication due to enmity. In examination under Section 313 of the Code
of Criminal Procedure, 1973 (for short "the CrPC"), the
accused-appellant stated that when Harendra Singh was Thekedar of grass of
Gausadan, he used to look after the affairs of Gausadan on his behalf. Goverpal
and other witnesses of the case and the villagers often used to graze their
cattle in the grass of Gausadan and he used to hand over their cattle at the
cattle pond. Thus, people started having grudge against him resulting in his
false implication in this case. On completion of the trial, the learned
Sessions Judge found the appellant guilty of the offence alleged against him
and accordingly convicted him and passed an order of sentence of imprisonment
On appeal, the High Court affirmed the order of conviction and
sentence as against which the present appeal has been filed on which we have
heard the learned counsel appearing for the parties.
The incident had taken place on 14.10.1979 at about 8 a.m. and
there is no dispute with regard to the aforesaid fact that there was broad day
light and the incident happened in the presence of PW-1, PW-2 and PW-3. The
defense has not raised any dispute with regard to the aforesaid fact nor any
suggestion was given to the aforesaid eye witnesses namely Ram Prahlad 4
(PW-1), Sahdeo (PW-2) and Ram Pratap (PW-3) as against their statements that
they were present at the time of incident and they had seen the entire incident
through their own eyes. The incident happened at about 8 a.m.
deceased-Jawahar received the aforesaid fatal blow at the hand of the
accused-appellant. The deceased-Jawahar died at about 9 a.m. due to excessive
bleeding as is established from the post mortem report. The distance of the police
station from the place of occurrence is six miles. The father of the
deceased-Jawahar was informed whereupon he came to the place of occurrence and
on seeing his son dead, went to lodge an FIR at the Police Station Nichlaul
which was registered at 11.05 a.m. There is, therefore, no delay in the lodging
of the FIR. There is also no possibility of any concoction of the incident as
there was no scope of framing anybody unnecessarily and without reason within
that short span of time. The incident happened in broad day light in front of
eye witnesses whose presence at the place of occurrence was quite natural.
There is also motive for the murder established in the case from the fact that
a day before the occurrence i.e. on 13.10.1979, the cattles of some persons
including the buffaloes of the father of the deceased-Jawahar were taken away
from the grazing field of Gausadan by the accused-appellant and subsequently,
buffaloes of the father of the deceased-Jawahar were released. Since the 5
buffaloes belonged to the father of the deceased-Jawahar which were impounded
and taken to the contractor-Harendra but was released subsequently, therefore,
there was some grudge of the accused-appellant being an employee of the
contractor-Harendra against the deceased-Jawahar and when on the next day,
early in the morning he saw the deceased he got infuriated and without any
reason approached the deceased-Jawahar after picking up his lathi and gave blow
on the head with the help of his lathi and thereafter the accused-appellant ran
away from the scene of occurrence. So, the motive has also been established.
Counsel appearing for the accused- appellant, however, submitted
before us that there was no intention of causing death or causing any bodily
injury to the deceased by the accused-appellant. It was also submitted before
us that all the three eye witnesses namely Ram Prahlad (PW-1), Sahdeo (PW-2)
and Ram Pratap (PW-3) are interested witnesses and that other witnesses
although present at the scene of occurrence, they were not examined by the
prosecution. Accordingly the conviction and sentence is required to be set
aside. It was next submitted by the counsel appearing for the accused-appellant
that the weapon of alleged attack was not a dangerous weapon and was only a lathi
and allegedly only one blow was given by the accused-appellant on the deceased
which clearly establishes that it is neither 6 a case of murder nor could be a
case of culpable homicide not amounting to murder. In support of aforesaid
contention, he has relied upon few decisions of this Court namely State of
Orissa v. Bhagaban Barik [AIR 1987 SC 1265], State of U.P. v. Indrajeet [(2000)
7 SCC 249], Joseph v. State of Kerala [AIR 1994 SC 34], Mohd. Shakeel v. State
of A.P. [(2007) 3 SCC 119].
We have considered the aforesaid submissions as also the ratio of
the aforesaid cases. After carefully going through the same we, however, find
that none of the aforesaid decisions could be said to be directly applicable in
the present case as the facts are quite distinguishable. So the same have no
application in the facts and circumstances of the present case and we are
required to consider the facts of the case independently.
In Bhagaban Barik case (supra), there was an appeal before this
Court as against the order of acquittal. In that case one blow was given by the
accused with a lathi on the apprehension that the deceased was a thief.
Indrajeet case (supra) also, there was an appeal against acquittal and
therefore it has no similarity with the facts and circumstances of the present
case. In Joseph case (supra) although the death was caused by one blow of lathi
but there was clear evidence of quarrel between the parties preceding 7 the
incident. In Mohd. Shakeel case (supra) the accused also received injuries
during the course of the incident and taking notice of the said fact, it was
held to be a case of culpable homicide not amounting to murder.
all the decisions relied upon by the accused-appellant are quite
We are required to examine the facts of the present case as it
stand before us. The submission that there was no motive in committing the
offence is clearly belied from the fact that the motive has been established in
the present case. The accused-appellant being an employee of the contractor
definitely had a grudge against the deceased as the buffaloes belonging to the
father of the deceased were impounded and taken to the contractor by the
accused-appellant on 13.10.1979 and the same were released on repeated requests
by the deceased. Therefore, there was a clear grudge of the employee of the
contractor, accused-appellant against the deceased. When on the very next day
morning i.e. 14.10.1979, the accused-appellant saw the face of the deceased he
simply picked up his lathi and with that gave one blow on the head of the
deceased. The said blow was so forceful that as a consequence of which the
deceased died within an hour and before he could be taken to the hospital.
There is a direct nexus between the blow of lathi 8 and death of the deceased
which is immediately caused after giving the blow.
We, therefore, are of the considered opinion that although it is a
case of culpable homicide not amounting to murder, but considering the nature
of the injuries which was caused on a vital part of the body, we are of the
considered view that there was intention on the part of the accused-appellant
to cause death of the deceased.
We, therefore, alter the conviction of the appellant from Section
302, IPC to Section 304 Part I IPC. In our considered opinion, custody and
sentence of 10 years would be appropriate and sufficient. The accused-
appellant shall undergo imprisonment for a term of 10 years, if not already
undergone, in terms of this order.
With the above modification, the appeal is allowed to the
................................J. [Dr. Mukundakam Sharma]