Lallan vs State of U.P.

K.C. Agrawal, J.—This appeal has been preferred by Lallan son of Ram Deo, resident of village Dhav, P.S. Koraon, district Allahabad, against the judgment of the IV Additional Sessions Judge, Allahabad, delivered in S. T. No. 107 of 1980, convicting and sentencing the Appellant Lallan u/s 302 IPC to life imprisonment.

Lallan and Surendra were tried together in S. T. No. 107 of 1980. The charges against Lallan were u/s 307 IPC for attempting to commit the murder of Ram Asrey; u/s 323/34 IPC for voluntarily causing hurt to Sia Ram and Smt. Kaleshwari Devi. He was also charge-sheeted for committing the murder of Narad alias Ram Babu u/s 302 IPC.

Surendra accused was charged u/s 307 IPC and 302 IPC each read with Section 34 IPC and u/s 323 IPC for voluntarily causing hurt to Sia Ram and Smt. Kaleshwari Devi wife of Ram Asrey.

Accused Lallan and Surendra were the first cousins who resided in village Dhav.

On 12th December, 1979, at about 9 a. m., Ram Asrey PW 1 was ploughing his chak adjoining the western side of the chak road. His brother Sita Ram PW 2 and his wife Smt. Kaleshwari Devi were picking the weeds (Khar Patwar) from the field. Lallan and Surendra accused who had also their fields in the neighbourhood, were ploughing their own chak to the south of the chak of Ram Asrey. This chak of the accused would be towards west of the chak road. Finding that the accused were dismantling the chak road with spades (phawra), Ram Asrey went to Lallan and Surendra and objected to the digging of the passage by them. Ram Asrey PW 1 told that the chak road was meant for the benefit of the public at large and that the accused had no right to dig it. Lallan felt infuriated as a result of which abuses were exchanged. Lallan accused hit Ram Asrey with Phawra. Surendra also assaulted Ram Asrey with Lathi. Thereupon Sita Ram PW 2 and Smt. Kaleshwari Devi arrived on the spot on hearing the alarm of Ram Asrey PW 1. The accused started assaulting them also. According to the prosecution, in the mean time, one Beeti, who was the resident of the same village, intervened and brought about the marpit between them to an end. Upon the intervention, Lallan and Surendra went away with their respective weapons. Soon thereafter Lallan, accused-Appellant was seen coming from his house with the sword. He was followed by his brother Surendra. Near the guava trees situated in front of the house of Ram Asrey PW 1, Lallan found the son of PW 1 Ram Asrey standing. The accused Lallan assaulted the son whose name was Narad and who was aged about ten years on his neck as a result whereon the neck was almost severed and he died on the spot. Thereafter, PW 1 Ram Asrey went to the police station and lodged the first information report at 10.30 a. m.

After the first information report was lodged, the Head Moharrir Ahibaran Singh PW 7 prepared Chitthi Majroobi and sent Ram Asrey PW 1, Siya Ram PW 2 and Smt. Kaleshwari Devi for medical examination. The dead body of the deceased Narad was sent for autopsy which was conducted by Dr. Chandra Shekhar PW 5. Ante mortem injury found on the dead body of the deceased Narad vide post mortem report (Ex. Ka-5 was as follows:

Incised wound 3-1/4" x 3/4"x 1" deep on the right side of the base of the neck and just above the right clavicle bone, caroted plexus with caroted arteries and veins cut off.

Accused Lallan also went to the police station for lodging a report against Ram Asrey PW 1 and Siya Ram PW 2 at about 1.30 p. m. at P.S. Koraon. Lallan and his brother Surendra were arrested who had been named in crime No. 115 u/s 302 IPC lodged by Ram Asrey PW 1. They were medically examined.

After investigation, C.P.D Misra, 10 PW 10 submitted charge-sheet against the accused Lallan and Surendra.

The Chief Judicial Magistrate, thereafter, committed the case to the Court of Sessions.

The accused pleaded not guilty and asserted that Ram Asrey PW 1 and Siya Ram PW 2 had first assaulted them and Arun Kumar son of Lallan. Thereupon, in self defence, they wielded lathi on Ram Asrey and others. Narad had sustained injury as he had strayed into the area of fighting.

The prosecution produced Ram Asrey PW 1 and Siya Ram PW 2 as eye witnesses to prove the occurrence. It also relied on the recovery of the sword at the pointing out of the accused-Appellant. The recovery is recorded in Ex. Ka-4. This recovery has been proved by Nandu PW 3.

In the statement u/s 313 Code of Criminal Procedure the accused stated that they had caused injuries to the complainant Ram Asrey, Siya Ram in self defence. They denied having caused any injury to Smt. Kaleshwari Devi.

The Appellant Lallan as well as Surendra had been acquitted by the court below of the various charges having attempted to kill Ram Asrey PW 1 and Siya Ram PW 2 as well as causing injuries to them. We are not called upon in this appeal to discuss the same. The court below held amongst others that the prosecution had failed to offer explanation for the injuries of the accused Lallan and Surendra. Surendra was acquitted of all the charges. The Appellant Lallan was, however, convicted for the offence u/s 302 IPC having killed Narad, the son of Ram Asrey PW 1. In arriving at this conclusion, the view of the court below was that the killing of Narad was the individual act of Lallan and he alone could be held responsible for the same. Surendra accused had been acquitted of the offence u/s 302/34 IPC on that basis.

Being aggrieved by the judgment of the court below, Lallan has preferred this appeal against his conviction u/s 302 IPC. We are concerned with the correctness of the judgment of the court below convicting him under the same.

We have already mentioned the case of the prosecution. Its version was that the marpit which started on the allegation of digging of the chak road by Lallan and Surendra ended on the intervention of Booti. Lallan and Surendra left the place of the occurrence with their respective weapons. However, soon thereafter, Lallan accused came out of his house with the sword with which he killed Narad who was playing near the guava tree belonging to the complainant Ram Asrey. Narad alias Ram Babu was 10 years of age. The sword was struck on the neck of the deceased Narad so heavily by Lallan, the Appellant, that it almost severed his neck and he died on the spot. In fact, the Appellant Lallan admitted that he had beheaded the deceased Narad. His defence, however, was that since Narad came to the place where the marpit was taking place between Lallan and Surendra on the one hand and Ram Asrey PW 1 and Siya Ram, on the other, it was accidentally that the blow of the sword was received by the deceased Narad. The Appellant stated that he had not beheaded Narad with a view to kill.

We have carefully examined the evidence of the prosecution as well as the circumstances and are of opinion that the prosecution has proved beyond doubt that Lallan struck the blow on the neck of the deceased Narad with great force and the intention which can be gathered is that he intended to kill him. Going inside the house after the marpit was over and bringing the sword demonstrate the intention which Lallan had while striking the blow on the neck of Narad. Both Ram Asrey PW 1 and Siya Ram PW 2 deposed that the fighting between the two sides was brought to end by the intervention of Booti whose chak was situated near the place of occurrence. According to the aforesaid two injured, Lallan returned in their direction from their house armed with the sword. On reaching the guava tree situated to the north of the informant''s house, where Narad was playing, accused Lallan struck with the sword on his neck. The statement of Ram Asrey PW 1 is amply corroborated from the FIR (Ex. Ka-1) which was lodged soon thereafter. Siya Ram PW 2 has supported Ram Asrey PW 1 on this point. Their statements find support from the post mortem conducted on the body of Narad by Dr. Chandra Shekhar PW 5. In his opinion the inflicted wound on the neck of Narad could have been caused with the sword (Ex. I). This sword (Ex. I) was recovered on the pointing out of Lallan, the Appellant, from the room of his house. The recovery of the sword at the pointing out of Appellant Lallan establishes his authorship. Nandu PW 3 in whose presence the sword was recovered has proved the recovery. C.P.D. Misra PW 10 has also proved that sword (Ext I) was duly recovered at the instance of accused Lallan. This sword was found stained with human blood on chemical analysis.

The learned Counsel for the Appellant submitted that Narad was accidentally hit by the blow of Katwasa while he strayed within the range of fighting when the accused were exercising the right of self defence. The argument further was that the sword (Ex. I) had not in fact been recovered on the pointing out of Lallan. We are unable to accept this submission. There is ample evidence on record to prove its recovery. The papers filed and the depositions made in that connection establish that Ex. I was recovered at the instance of Lallan from his room. The court below, in our opinion, rightly held that the injuries caused by the Appellant was not by the Katwasa but by the sword Ex. I. The dimension of the incised wound on the neck of deceased Narad was 3 1/2" x 3/4" x 1". The injury shows that it sould be caused by the sword and not by a Katwasa.

The argument of the Appellant that death of Narad was an accident, is not acceptable to us. The first fighting had come to an end on the intervention of Booti and the parties had separated. It was, thereafter, that Lallan went to his house and brought the sword. Having found Narad playing under the guava tree, he beheaded him. It was suggested by the learned Counsel for the Appellant that as Arun Kumar, the son of Lallan had received injuries, the same justified striking of sword by Lallan. It appears that Arun Kumar, the son of Lallan had received the following injuries on his person vide injury report Ex. Kha-1:

Lacerated wound 4.5 cm. x 0.8 cm. x bone deep on the head back right side 7 cm. above the occipital protubrance. Bleeding present.

Abrasion 3 cm. x 0.2 cm. on the back right side 11 cm. below the inferior angle of right scapula. Staining present.

Both of these injuries were, however, simple. Dr. Mahendra Kumar PW 6 stated that injury No. 1 of Arun Kumar could be caused by some pointed brick bat and injury No. 2 could be caused due to fall.

Be that as it may, the beheading of Narad by Lallan could not be considered as accidental. It was not a happening by chance but was a deliberate act. It was an unlawful act done in an unlawful manner.

In Glanville William''s Text Book of Criminal Law 1978 Edn., the law with regard to this matter has been stated as below;--

A defence that the Defendant did not intend a consequence to follow from his act is frequently called a defence of accident. A defence of accident is merely a denial of intention.

In the instant case, we are satisfied from the evidence of the prosecution that Lallan accused knowingly and intentionally gave the blow on the neck. It was a heavy blow which proved his intention. Narad, the deceased, could not have survived the blow given on the neck by the Appellant. It was with an intention to kill him that the sword was struck on the neck.

The argument of the learned Counsel in justification of killing of Narad primarily was that of self defence. Narad, admittedly, had no role to play in the fighting between the two groups. The Appellant did not have any right of self defence in causing the blow by the sword. The justification next pleaded was that of Section 106 of the IPC. It applies to a case of extreme necessity in which a person is entitled to run to risk of harming innocent person in order to save himself from mortal injury. Section 106 of the IPC neither applies in terms nor in principles.

For what we have said above, we are unable to accept that the present case falls under Part II of Section 304 IPC. This provision applies when the act is done with the knowledge that it is likely to cause death but without intention So this clause will not come into operation when there is intention to cause such bodily injury as is likely to cause death. The killing of a boy of ten years of age was brutal.

After looking at the totality of the evidence in the instant case, we are of opinion that the present case would fall under Clause Thirdly of Section 300 of the Code. This clause provides that culpable homicide is murder if the two conditions (i) that the act which causes death is done with the intention of causing bodily injury; and (ii) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, are fulfilled. The ingredients of Clause Thirdly of Section 300 of the Code were brought out by Vivian Bose J. In Virsa Singh Vs. The State of Punjab, in the following words:

To put it short, the prosecution must prove the following facts before it can bring a case u/s 300 Thirdly

First, it must establish, quite objectively, that a bodily injury is present, Secondly, the nature of the injury must be proved. These arc purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unitentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of offender."

The learned Judge explained the third ingredient in the following words;

The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that Appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there.

These observations of the Supreme Court as said by Vivian Bose, J. in Jagrup Singh Vs. State of Haryana, have become locus classicus. Applying the test of the Supreme Court, we find that there being nothing beyond the injury and that the Appellant inflicted it, the only possible inference is that he intended to inflict it. We, accordingly, are of the opinion that Part II of Section 304 IPC did not apply.

For what we have said above, we dismiss the appeal. The conviction and sentence awarded to the Appellant, Lallan, are maintained. He is in jail. He shall serve out his sentence.