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Judgment
M.C. Jain, J.—The instant criminal appeal came to be filed by Gangiya and her two sons Bilas and Bachhraj against judgement dated 16.1.1982 passed by V Additional Sessions Judge, Fatehpur in S.T.No.618 of 1980. All of them have been convicted u/s 302 read with Section 34 I.P.C. with sentence of life imprisonment.
Gangiya and Bilas have died during the pendency of the appeal and the same has abated on their behalf under order dated 14.7.2005. Only appellant Bachhraj remains for whom Sri Shishir Tandon was appointed amicus curiae under order dated 15.2.2006.
We start with the resume of the broad spectrum of the case. The incident occurred on 18.7.1978 at about 8.00 A.M. outside the house of the accused in village Shiv Prasad Ka Dera hamlet of Raipur Masraul, Police Station Kishunpur, District Fatehpur and the F.I.R. was lodged the same day at 12.45 P.M. by Chhedu son of Bhondu, victim-deceased. Bhondu had stacked 200-250 tiles of Khaprail by the side of the door of the house of Durga Kewat- Husband of Gangiya and father of the other two-Bilas and Bachhraj. Gangiya, for the last few days, was asking Bhondu to remove the same and the latter had assured her that he would do so. The previous evening also, Gangiya and her sons (accused) asked Bhondu to remove the tiles of Khaprail by the next morning else it would not be good. In the morning at about 8.00 A.M on 18.7.1978 Gangiya and her two sons started throwing the tiles one after another from the heap. On their doing that, Bhondu went there and asked them not to throw the tiles that way, saying that he would take them away by noon. They did not stop and started abusing Bhondu. Hearing the shouts, Bhondu''s wife Chandrakali, Bachchi Lal, Indra Pal, Ram Kumar, Babu Lal, Chhedi and Shiv Prasad reached there. Gangiya scuffled with Bhondu and started giving him slaps. Bilas gave him a blow with thick bamboo and Bachhraj caused injuries to him with lathi. As a result, Bhondu fell down. Even at his fall, the said accused kept assaulting him with bamboo and lathi.
Seeing the assault, the witnesses went away to their houses. Chhedu PW 5 took his father on a Doli to police station. As soon as he reached the police station gate, Bhondu died on account of the injuries sustained by him. He lodged written F.I.R. on the basis of which chick was prepared and case registered in G.D. by Constable Clerk Ram Badan Shukla PW 4 in the presence of Station Officer Devi Dayal Dixit PW 3. He prepared inquest report of the dead body including other necessary papers. The dead body was sealed and sent for post mortem through constable Badri Prasad. Thereafter, he went to the spot and busied himself to the other activities related to the investigation of the case i.e. preparing site plan, collecting samples of blood-stained and simple earth, recording the statements of the witnesses, etc.
Post mortem over the dead body of the deceased was conducted on 19.7.1978 at 11.30 A.M. by Dr. Prakash Joshi, PW 6 The deceased was aged about 45 years and about a day had passed since he died. The following three injuries were found on his person:
One lacerated wound on left parietal region 1" x 1/4" x bone deep, 2 1/2" above the left eye brow.
Contusion over left occipital region 2" x 2".
Contusion left upper arm, outer side upper part 4" x 3".
On internal examination, clotted blood beneath injury No. 1 was found. There was also fissured and depressed fracture of left parietal bone and fracture of left cranial fossae. The cause of death was coma due to ante mortem injuries on the head. The injuries could have been caused by blunt object like lathi and also by thick bamboo.
On being charged, the accused pleaded false implication. So far as the accused Bachhraj was concerned, the defence was of alibi that on the specified date he was in Bhondu''s sasural. Real sister of Bhondu''s wife was married to Munni Lal-younger brother of Durga (husband of Gangiya). This way both the parties were related.
At the trial, the prosecution in all examined six witnesses including the Doctor and Investigating Officer. The eye-witnesses were Chandrakali PW 1-wife of deceased Bhondu, Ram Kumar PW 2 (brother of the deceased) and Chhedu PW 5 (son of the deceased).
Believing the prosecution case, the trial judge, passed the impugned judgement.
We have heard Sri Shishir Tandon, Amicus Curiae for the surviving accused-appellant Bachhraj and Sri Rajiv Sharma, learned A.G.A. The record is before us which we have carefully perused. In the first instance, the learned amicus curiae levelled criticism against the testimony of eye-witnesses, namely, Chandrakali PW 1 (wife of deceased Bhondu), Bondhu''s younger brother Ram Kumar PW 2 and Chhedu PW 5- son of deceased Bhondhu. He urged that they were closely related and were thus interested witnesses. We have waded through the testimony of these eye-witnesses carefully and find that there was nothing to dislodge their testimonial assertions. No doubt, they were closely related to the deceased but this alone was not sufficient to discard their testimony overboard, particularly when they withstood the test of cross-examination firmly. They were most natural witnesses of the incident.
The gist flowing from cumulative consideration of testimony of these witnesses was that the deceased had placed his Khaprail tiles at the mend of his field by the side of the door of the house of the accused persons sometime before the occurrence. The said tiles remained there even upto the date and time when the occurrence took place. Bhondu was assaulted by thick bamboo and lathi, thick bamboo being wielded by Bilas and lathi by the present accused appellant Bachhraj. The cause of incident was that Durga''s wife (Gangiya accused) had been asking Bhondu for the last few days to remove the tiles, but Bhondu had not removed them in spite of having given assurance. At the time of the incident, Gangiya and her two sons including Bachhraj started throwing the tiles from the heap. In the process of being thrown, the tiles got broken. Bhondu reached there and asked them not to throw the tiles that way, but to no effect. Instead, she grappled with Bhondu and her son Bilas hit Bhondu with thick bamboo whereas the present accused appellant Bachhraj struck a lathi blow on him.
The Investigating Officer also found physical evidence in the form of Khaprail tiles stacked at the spot. He had also found bloodstained broken tiles. Blood had been found on the ground also. The house of Ram Kumar PW 2 was in close proximity as he and Bhondu lived in adjacent houses. The house of Gangiya was 5-7 paces away.
What we wish to emphasise is that Chandrakali PW 1, Ram Kumar PW 2 and Chhedu PW 5 were natural witnesses of the incident whose presence at the spot could not at all be doubted.
The medical evidence was in conformity with ocular testimony of the eye-witnesses in that one lacerated wound on left parietal region had been found on the dead body of the deceased. This was the fatal injury. The other two were contusions- one over left occipital region and the other on left upper arm, outer side upper part.
So, the criticism offered by the learned amicus curiae against eyewitnesses is without foundation and is not at all sustainable. The surviving accused appellant Bachhraj was one of the assailants of the deceased Bhondu as satisfactorily established by the testimony of natural eye-witnesses, falling in conformity with medical evidence.
The next argument of the amicus curiae is that the offence did not travel beyond Part II of Section 304 I.P.C. On the other hand the learned A.G.A. argued that it was an out and out murder. On careful consideration, we are of the opinion that the offence committed was culpable homicide not amounting to murder. We give our reasons for so finding. It is to be noted that there was no pre-meditation. The incident originated all of a sudden when Gangiya and her two sons started throwing Khaprail tiles of Bhondu. When Bhondu went to her and asked her not to do so, she did not stop. Instead, she abused him, Bhondu asked her not to abuse him. The two sides traded hot words, the accused being adamant to throw away the tiles and the deceased pleading for more time to remove the same. It was under such surcharged moments that the deceased accused Bilas struck a thick bamboo over the head of the deceased and the surviving accused-appellant Bachhraj struck a lathi blow on him. The parties were even closely related to each other. There was no other malice between the two sides. As we said, fatal injury sustained by the deceased was one on the head. It was also not known as to who out of them (Bilas and Bachhrajsons of Gangiya) had struck the said blow. The surviving accused appellant Bachhraj acted in concert with his mother-Gangiya and brother Bilas. On holistic consideration, the accused appellant Bachhraj committed the offence of culpable homicide not amounting to murder. He has to be imputed the knowledge that his act of striking lathi blow on the deceased was likely to cause his death. So, the offence committed was one under Part II of Section 304 I.P.C., and not murder.
The third argument of the learned amicus curiae is that the surviving accused appellant Bachhraj was aged about 15 years only at the time of commission of this offence and even on being found guilty, he cannot be sentenced to imprisonment. It would be recalled that the incident occurred on 18.7.1978. The learned amicus curiae invited our attention to the statement of the surviving accused appellant Bachhraj recorded u/s 313 Cr.P.C. on 12.12.1981. Herein he gave his age as 15 years. It has been argued that the trial judge has not made any observation with regard to his age. Instead, the amicus curiae has pointed out that while considering the question of sentence, the trial judge recorded in the concluding part of the judgement that surviving accused appellant Bachhraj was aged about 15 years. He also pointed out that the plea as to the age of Bachhraj was not an afterthought, inasmuch the plea of his minority had been raised in the bail application moved on his behalf on 14.8.1978 before the Chief Judicial Magistrate, Fatehpur. Thus, it comes out that Bachhraj must have been aged around 12 years at the time of incident which took place on 18.7.1978.
The U.P. Children Act, 1951 was in force at the relevant time when the incident took place. Section 2(4) of the U.P. Children Act, 1951 defines a child to mean a person under the age of 16 years. Section 27 of the said Act says that notwithstanding anything contained to the contrary in any law, no court shall sentence a child to imprisonment for life or to any term of imprisonment. Section 29 provides, so far as it is material, that if a child is found to have committed an offence punishable with imprisonment, the Court may order him to be sent to an approved school for such period of stay as will not exceed the attainment of the age of 18 years by the child. The Supreme Court has held in the case of Bhola Bhagat v. State of Bihar AIR 1998 SC 236 that the benefit of Children Act should not be refused on technical grounds. In the instant case also, the benefit of Children Act should be afforded to accused appellant Bachhraj. Though he was about 12 years of age at the time of the incident, but must be a grown up person of about 40 years of age at present. Therefore, he cannot be sent to an approved school now. The result would be that while convicting him under Part II of Section 304 I.P.C. read with Section 34 I.P.C., we would not pass any sentence of imprisonment against him as he is entitled to the benefit of Children Act.
In the net result, we conclude as under:
The appeal stands abated on behalf of Gangiya and Bilas who died during the pendency of the appeal. The conviction of the surviving accused appellant Bachhraj is converted from Section 302 I.P.C. read with Section 34 I.P.C. to that of Part II of Section 304 I.P.C. read with Section 34 I.P.C. The sentence passed against him is quashed as he was a child as per the U.P. Children Act, 1951 at the time of the incident. Though he stands convicted under Part II of Section 304 I.P.C. read with Section 34 I.P.C. but he shall not suffer any sentence. He is on bail. He need not surrender.
Sri Shishir Tandon, amicus curiae, who argued the appeal for the surviving accused appellant Bachhraj, shall get Rs. 1000/- as his fee.
Certify the judgement to lower court for incorporating necessary entry in relevant register.