- (1.) GHANSHYAM Dass, J. By means of instant appeal the accused- appellants namely Swaroop Chandra and his three sons Phool Chandra, Santosh Kumar and Jitendera Sharma have challenged the conviction order dated 24-8-92 passed by the Special Judge, Unnao in S. T. No. 360 of 1990, State v. Swaroop Chandra Sharma & Ors. , by means of which the accused appellants have been found guilty for the offences punishable under Sections 304/34 and 323/34, IPC and have been sentenced to undergo R. I. for 10 years and one year with the order that the sentence shall run concurrently.
(2.) ACCORDING to the prosecution on 23-9-90 at about 1 p. m. in the day while Ram Sajiwan (informant) alongwith his father Jag Pal (deceased) were plucking vegetable crop of Kumani nearby his paddy field, the accused appellants came there with then cattle grazing. Some of the cattle of the accused entered into paddy field of informant which was resisted to whereupon the accused Swarup Chandra Sharma exhorted his sons with the words 'maaro sale ko jyada neta banta hai. ' Thereupon, all the accused persons assaulted Jagpal and the informant with lathi, with the result Jagpal became unconscious on the spot. The injured were taken to the police station on the bullock cart. The report of the incident was lodged at 3. 55 p. m. Both the injured were medically examined on the same day at 4. 20 p. m. The condition of Jagpal was found to be serious and he was referred for expert to District hospital, Unnao. Consequently, he was admitted in emergency in the hospital on the same day i. e. 23-9-90 at 4. 45 p. m. but Jagpal succumbed to the injuries at 6. 40 p. m. The post-mortem on the body of the deceased was conducted by Dr. V. N. Mathur on 24-9-90. Cause of injury was found to be shock and haemorrhage as a result of ante-mortem injuries. I have heard Sri Amit Chaudhary, learned Counsel for the appellants and learned AGA and perused the record. The learned Counsel for the appellants did not challenge the finding of guilt recorded by the Trial Court. He confined his argument only with respect to the quantum of sentence. He submitted that offence under Section 304, IPC is not made out. At best the offence made out is under Section 325, IPC and that being so the sentence of ten years as awarded by Court below is harsh and same may be reduced to five years. He placed reliance on the three case laws reported in Sri Kishan & Ors. v. State of U. P. , 1972 SCC (Crl.) 875; Ram Lal v. Delhi Administration, 1972 (9) ACC 244 (SC) and Liladhar v. State, 1981 (18) ACC 152. He submitted that in all these cases the Apex Court as well as this Court converted the offence under Section 302, IPC and under Section 304, IPC to that of Section 325, IPC and the accused were sentenced to undergo R. I. for five years. He submitted that from the statement of injured and other eye-witnesses it is clear that the incident did take place suddenly in the heat of moment. The lathi blows were given by the accused just to teach a lesson but there was no intention on the part of accused to cause death nor there was any pre-determination or any existing enmity in between the parties. It was unfortunate that lathi blows were proved to be so fatal that the injured died on the same day in the District hospital.
(3.) ON a perusal of ocular evidence available on record and the statements of three eye-witness P. W. 1, P. W. 2 and P. W. 3, I conclude that guilt of accused for causing grievous injury to the deceased by lathi blow is proved on record. The presence of all the four accused is proved and all of them are proved to have caused injuries with common intention on the exhortation of Swarup Chandra. The injuries are proved on record by the doctor who did medical examination first and then did the post-mortem on the body of the deceased. The injuries resulted in death. There is nothing on record which would deviate from the conclusion drawn by the Trial Court to the effect that the guilt of accused is proved to the hilt on record. I, therefore, conclude that the learned Court below was right in holding the accused guilty for causing grievous injuries to the deceased and simple injury to the informant. Now the question arises as to whether the appellants be held guilty for the offences punishable under Section 304/34, IPC or 325/34, IPC. On a perusal of the case laws cited by the learned Counsel for the appellants (supra), I conclude that in the instant case the incident did take place in the heat of moment and there was no intention on the part of the accused from before to cause death since the cattle of the accused had entered into the paddy field of informant, the natural resistance was there but it was not relished by the accused, with the result that all the four accused persons with common intention gave lathi blow to the deceased as well as informant. The lathi blow was proved to be fatal for Jagpal since he died on the same day as a result of ante-mortem injuries. Keeping in mind the aforesaid case laws I conclude that it is a case where the appellants be convicted for the offence punishable under Section 325/34, IPC instead of 304/34, IPC besides the offence punishable under Section 323/34, IPC.;