✦ High Court of India · 16 Sep 2025

State v. Counsel for

Case Details High Court of India · 16 Sep 2025

Court

High Court of India

Decided

16 Sep 2025

Bench

SUBHASH CHANDRA SHARMA SPECIAL

Length

2,816 words

Acts & Sections

Code of Criminal Procedure §207 Code of Criminal Procedure §313 Indian Penal Code

Cited in this judgment

2010 (2) SCC 229

District Banda lodged an FIR stating that on 25.06.1981 at about 12.30 P.M. he was taking lunch inside his house. Amar Singh was talking to Raja Singh out side the house. The accused Man Bodhan Singh and Raj Bahadur Singh equipped with lathi and Abhilash Singh equipped with Javelin came there and showing displeasure as to why Amar Singh entertained Raja Singh in his house, they began to assault with lathi and Javelin. On his cry, Devi Dayal Singh, Ram Naresh and Raja Singh inter meddled and saved Amar Singh and accused ran away. The informant brought injured Amar Singh for medical examination to District Hospital, Banda and then he went to the police station to lodge the FIR at 5.00 P.M. The FIR was lodged under Sections 323, 324, 504 I.P.C. 2 CRLA No. 382 of 1985

5.The injuries on the person of Amar Singh were examined by Dr. Ravi Kumar at 7.30 P.M. The injuries were as under:-

1. Contusion 3.5 cm x 2 cm. on the front of right side of head, 5 cm. above the right eye brow. The injury was kept under observation.

2. Contusion 5 cm. x 3 cm. on the middle of the top of head, 5 cms. below the injury no.1. This injury was also kept under observation.

3.Contusion 8 cm. x 2.5 cm. on left side of head, 1cm. above left ear. This injury was also kept under observation.

4.Abrasion 1 cm. x 0.5 cm. on the back of left elbow joint.

5. Abrasion 1 cm. x 0.5 cm. on the back of left forearm on ulnar side below the elbow joint. The duration of the injuries was fresh. The injured was admitted in the hospital for treatment under Dr. Ravi Mathur but he succumbed to injuries at 7.50 P.M. on 26.06.1981, as a result, case was converted into Section 304 I.P.C.

6. After conducting inquest, the dead body was sent for postmortem. In the postmortem four injuries were found:-

1. Abrasion 1 cm. x 0.5 cm. on the back of left elbow joint.

2. Abrasion 1 cm. x 0.5 cm. on the anterior aspect of left forearm on ulna side. 3 cm. below elbow joint.

3.Abrasion 1.5 cm. x 1 cm. over anterior aspect of right elbow joint.

4. Right parietal and temporal bones were found fractured though no any apparent mark of injury was found seen on that part. The cause of death was due to shock and coma on account of injury on parietal and temporal bone.

7. The investigation was handed over to Sub Inspector Ram Murti Dwivedi, who investigated the matter and recorded the statement of witnesses and also made spot inspection and prepared site plan.

8. After completing the investigation, he filed the charge sheet against the present appellant Raj Bahadur Singh and other accused persons Man Bodhan Singh and Abhilash Singh.

9. The learned court concerned, took cognizance of the offence and after complying with the provisions of Section 207 Cr.P.C, committed the case to the Court of Sessions for trial.

10. The learned trial court framed the charge under Section 304 (1) read with Section 34 I.P.C. against the appellant, which he denied and pleaded not 3 CRLA No. 382 of 1985 guilty but claimed for trial.

11. In support of its case, prosecution examined, P.W.-1 Devi Dayal, PW-2 Raj Bhupat Singh eye witness of the incident, PW-3 Head Moharrir Suba Singh, PW-4 Sub Inspector Ram Murti Dwivedi Investigating Officer, PW-5 Braham Dutta, Constable, who filed the affidavit, PW-6 Dr. Vikash Chandra and PW-7 Dr. Ravi Mathur.

12. After conclusion of prosecution evidence, statement of appellant under Section 313 Cr.P.C. was recorded in which he denied the allegations and told to be implicated in this case due to old enmity.

13. In defence, DW-1 Lakshman Singh Chauhan, record-keeper in police office, Banda was also examined and he proved the G.D. dated 24.08.1979 and 30.11.1979.

14. After hearing the arguments made by the prosecution as well defence, learned trial court passed the impugned judgment dated 12.02.1985 convicting and sentencing the appellant as aforesaid.

15. Being aggrieved with the conviction and sentence, this criminal appeal has been preferred by the appellant.

16. Learned counsel for appellant argued that in this case the informant was not examined before the learned trial court since he had already died. PW-1 Devi Dayal Singh is said to be eye witness but inimical to the appellant. PW- 2 Raj Bhupat Singh was not named in the FIR as eye witness. Other witnesses are formal witnesses. He also argued that the injuries were found in the nature of contusion on the head of the injured during medical examination. During postmortem, no such contusions were found on the head of the deceased except abrasions as injury no. 1 and 5 on the wrist joint. Frontal parietal bones were found fractured, but no external injury was there, therefore, it cannot be said that these injuries were caused with lathi by the present appellant, who is said to have equipped with lathi with other accused Man Bodhan Singh. No any specific role was given to the present appellant that he made assault on the deceased with lathi, in such a situation, it cannot be said that present appellant made assault with lathi, but it may be Man bodhan Singh. He also argued that if the assault is made with lathi on the head, it will cause lacerated wound not contusion, therefore, medical report also does not corroborate the incident as narrated by the PW-1 and PW-2. PW-1 Devi Dayal is inimical, therefore, his testimony cannot be said to be reliable and PW-2 Raj Bhupat Singh was not named in the FIR as witness to see the incident. Except the testimony of the PW-1 and PW-2, 4 CRLA No. 382 of 1985 there is no any other evidence on record to show that the appellant made assault on the deceased with lathi with other co-accused Man Bodhan and Raj Bahadur Singh. Lastly, he argued that there was altercation between the appellant and other accused person with Amar Singh, the deceased, who entertained Raja Singh, as a result, altercation arose between both the parties and in the heat and passion the incident occurred. There was no any intention to commit murder of Amar Singh, but it may be only to cause injury to him. The weapons were used was lathi that cannot be said to be lethal but it was blunt. Learned trial court has convicted the appellant under Section 304 Part-1 I.P.C. though utmost it will come within the purview of Section 304 Part-2 I.P.C. He also argued that the incident took place on 25.06.1981 and till now 44 years have elapsed and revisionist has also become more than 67 years and suffering from old age infirmity. He served in jail for a period of more than one month, therefore, request to release him on the period already undergone by him and impose fine to be paid as compensation to the complainant/injured or his survivors, since no better purpose will be served by sending the appellant to jail after such a long gap of the incident.

17. Learned A.G.A. vehemently opposed the contentions made by learned counsel for the appellant and contended that in this case, the appellant with other co-accused Man Bodhan Singh and Abhilash Singh caused injuries to Amar Singh with common intention, therefore, it cannot be said that there was no intention to kill and the injuries were not on non vital part of the body. The role of the present appellant cannot be said to be different from other co-accused persons, who have already died. The appellant is said to have lathi and injuries on the head of the deceased were also found in the nature of contusion during the medical examination and also postmortem. To say that during medical examination, contusions were found on the head but not lacerated wound, cannot belie the prosecution version and also the testimony of PW-1 and PW-2, those were eye witnesses of the incident.Though, he cannot dispute the fact that 44 years have elapsed from the date of incident till now and the appellant has also become old more than 67 years. He also not disputed the fact that there was altercation between the deceased and accused persons regarding chatting with Raja Singh, as a result incident occurred in the heat of passion.

18. Before dealing with the contentions raised by learned counsel for the appellant, it will be convenient to take note of the evidences as adduced by the prosecution. 5 CRLA No. 382 of 1985

19. PW-1 Devi Dayal has deposed that on the day of the incident at about

12.30 P.M. he went to Bakery shop of one Kali Deen for making some purchases and heard some noise within the boundary of Gaya Charan and reached there and saw Man Bodhan Singh, Raj Bahadur Singh equipped with lathi and Abhilash Singh with Barchhi, beating Amar Singh in front of the door. Raja Singh was present there. The accused persons abused Amar Singh and said as to why he entertained Raja Singh on which Amar Singh objected. During cross-examination, he was asked about elopement of his wife by Abhilash Singh, but he denied the suggestion, on which ground the appellant had said the witnesses to be inimical. He has also said that after assault Amar Singh fell on the ground but after falling non assaulted him.

20. PW-2 Raj Bhupat Singh has also deposed that at about 12.30 P.M. his brother Amar Singh was sitting at his door and Raja Singh was talking to him. The accused Raj Bahadur Singh, Man Bodhan Singh and Abhilash Singh abused him and asked as to why he entertained Raja Singh and Amar Singh objected on which he was beaten.

21. During cross-examination, this witness has again affirmed that the incident took place before him and when Amar Singh fell down on the ground, none made assault on him. In this way the testimony of PW-1 and PW-2 cannot be said to be unbelievable, since there is no any contradiction affecting their reliability. So far as the fact of the enmity between the appellant and informant is concerned regarding elopement of his wife, it is also not established as the witness has denied. PW-2 brother of the deceased can also not be said to be unreliable as being relative and interested with them. The incident took place on the day at about 12.30 P.M. in the same village where the appellant and the witnesses lived, therefore, there cannot be any confusion in the identity of the accused persons.

22. PW-6 Dr. Vikash Chandra conducted the postmortem and proved the postmortem report in his hand writing and signature. The PW-7 Dr. Ravi Mathur has proved the injury report, which was prepared by him at the time of examination of the injuries on the person of the deceased when he was alive. He has opined about the injuries to have been caused at 12.30 P.M. on

25.06.1981 with lathi. In this way, time of incident and the manner of assault with lathi also gets support with the testimony of PW-6 and PW-7. PW-3 Suba Singh Head constable, who lodged the chick FIR and made entry in the G.D. has proved these papers. PW-4 Sub Inspector Ram Murti Dwivedi is 6 CRLA No. 382 of 1985 Investigating Officer, who has proved the investigation, site plan and the charge sheet. PW-5 Braham Dutta carried the dead body to the postmortem house with relevant papers.

23. From the testimony of PW-1 and PW-2 it is proved beyond reasonable doubt that the appellant with other accused persons made assault with lathi on the deceased Amar Singh causing injuries on his head, as a result, he succumbed to injuries during the course of treatment in the hospital.The incident was the result of altercation between the deceased and the appellant in which the deceased was chatting with Raja Singh out of his house. The appellant and other accused persons asked about entertaining Raja Singh on which Amar Singh objected and in the heat of passion the appellant with other accused persons made assault with lathi causing injuries on the head. When the circumstances are taken into account as a whole, it transpires that the appellant did not intend to kill the deceased Amar Singh, but it was to cause injuries, though during the course of treatment, the injured died as a result of antemortem injuries on the head. This fact also get support with the testimony of PW-1 and PW-2 that when Amar Singh fell down and appellant and other accused persons did not make the assault again. It also shows that his intention was only to beat and cause injuries but not to kill him. In this way, the case cannot be said to fall within the purview of Section 304 Part-1 of I.P.C., but it comes within the purview of Section 304 Part-2 of I.P.C. Thus the finding recorded by the learned trial court to the extent of Section 304 Part-1 of I.P.C. being erroneous, is hereby set aside and conviction under Section 304 Part-2 read with Section 34 of I.P.C. is affirmed.

24. So far as the sentence is concerned, the learned trial court has awarded rigorous imprisonment for a period of 7 years under Section 304 Part-1 read with Section 34 of I.P.C. It is noteworthy that incident took place on 26.05.1981 when there was altercation between the appellant and informant and till now more than 44 years have elapsed and the appellant has become more than 67 years old and is suffering from old age ailments. During the trial he remained in jail, thereafter he was released on bail and now he is on bail.

25. In the case of Neelam Bahal & another v. State of Uttrakhand 2010 (2) SCC 229 where conviction and sentence of appellant u/s 307 IPC was converted into S.326 IPC simpliciter. Incident took place in the year 1987 and appellant was about 25 years old. Considering the facts and 7 CRLA No. 382 of 1985 circumstances of the case, Hon'ble the Apex Court reduced the sentence to the period undergone by him. Likewise, in the case of Hussainbhai Asgarali Lokhandwala v. State of Gujarat dated 14 August 2024 in Criminal Appeal No. 1691 of 2023 Hon'ble Apex Court modified to the period of incarceration already undergone by him while maintaining the conviction where the entire incident had occurred in the heat of moment on 07.11.2000.

26. In considered opinion of this Court, in view of altercation between the parties, simple nature of injuries, the time gap & the age of appellant it will serve no purpose to send the appellant to jail for serving out the remaining period of sentence, but it will be just and proper and will serve the purpose of justice to reduce the sentence already undergone and to impose fine to be paid as compensation to the complainant/injured or his survivors.

27. Consequently, the appellant no.3 Raj Bahadur Singh is directed to make payment of Rs. 20,000/-) as fine within a period of 45 days from today, that will be paid to the complainant/injured or his survivors as compensation. In case of default, the the appellant no.3 Raj Bahadur Sijngh will serve the sentence for a period of one year rigorous imprisonment.

29. Accordingly, this criminal appeal is partly allowed.

29. Copy of this judgment along-with original trial court record be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within two months. Office is directed to keep the compliance report on record. September 16, 2025 T.S. (Subhash Chandra Sharma,J.) TRIBHUWAN SINGH High Court of Judicature at Allahabad