High Court · 2025

Bhaiyalal started beating with bricks. On hue and cry Sri Krishna Dubey, Radhey Shyam, Ashok Kumar and others came there in rescue. Ram Niwas sustained injuries and was being carried to police station on a cot but enroute the way he died. The first information report was lodged on the basis of written tehrir given by Saligram on the same day at about 7:00 P.M. at the police station Gursahaiganj as Crime No.126/1980, u/s 147, 304, 323 I.P.C.

5. The investigation was handed over to S.I. Dafedar Singh. Chitthi majrubi was prepared by the police for medical examination of injured/informant Saligram and he was taken to the hospital by Homeguard Ganga Naresh where he was medically examined at 10:30 PM on the same day and following injuries were found on his person:-

1. Abrasion 2 cm x ½ cm on the right parietal region of the scalp – it is 6 cm above the medial end of the right eyebrow. 3

2. Abraded contusion 4 cm x 1 cm on the medial aspect of the right forearm lower part – it is 4 cm above from the wrist joint, red, kept under observation and advised x-ray.

3. Contused swelling 20 cm x 18 cm on the dorso aspect of the lower part of the left arm, elbow & upto the middle of the left forearm, – it is 8 cm above the elbow joint, it is 15 cm above the left wrist joint & unable to move the forearm and elbow joint, red, kept under observation and advised x-ray. Referred to District Hospital.

4. Contusion 2 cm x 1 cm on the front of the right knee joint, Red. All injuries are caused by hard and blunt object and injury no.(I) & (IV) are simple and injury no.(II) &(III) are kept under observation and advised x-ray. Duration about fresh. The injured Saligram was referred for x-ray in which fracture at the lower end of humerus left arm was found.

6. The Investigating Officer, after conducting inquest and preparing other necessary papers sealed the dead body of Ram Niwas and sent it for post-mortem.

7. On 03.04.1980 at about 4:30 P.M. the post mortem was done by Dr. V.P. Bhatnagar Medical Officer, T.B. Clinic, Fatehgarh. During post-mortem the following ante-mortem injuries were found on the dead body of the deceased Ram Niwas:-

1. A contusion 3 inch x 11/2 inch on the left side chest upper part 2 inch below left Nipple.

2. Abrasion 1 inch x 3/4 inch in front of chin. 3. A contusion 11/2 inch x 1 inch on the Right side mandible (Jaw). Death due to shock and haemorrhage as a result of injury to left lung. 4

8. The Investigating Officer visited the place of occurrence and prepared the site plan on 04.04.1980 and after recording the statement of witnesses acquainted with the facts of the case, concluded the investigation and filed charge sheet against the appellants u/s 147, 325 & 304 IPC.

9. The learned court concerned took cognizance of the offences and after compliance of the provisions of Section 207 Cr.P.C. case was committed for trial to the learned court of Sessions.

10. The learned trial court framed the charges u/s 147, 325/149 and 302/149 IPC against the appellants which were read over and explained to them which they denied and claimed for trial.

11. The prosecution examined PW-1 Dr. A.K. Rastogi, conducting medical examination of injured Saligram; PW-2 Saligram, informant/injured; PW-3 Sri Krishna Dubey an eye witness; PW-4 S.I. Dafedar Singh, the Investigating Officer; PW-5 Harendra Singh, the X-ray technician; PW-6 Dr. V.P. Bhatnagar, conducting post-mortem of the deceased Ram Niwas.

12. On conclusion of prosecution evidence the statements of accused/appellants were recorded u/s 313 Cr.P.C. and opportunity for defence evidence was given to them in which they filed some papers which were taken on record.

13. Upon hearing the arguments advanced by the prosecution as well as the defence and appreciating the evidence available on record, the learned trial court convicted and sentenced the appellants u/s 147 and 325/149 IPC but acquitted u/s 302/149 IPC as aforesaid against which these appeals have been preferred.

14. Learned counsel for the appellant argued that in this case the injuries found on the person of informant and the deceased Ram Niwas were not caused by the present appellants but the informant side themselves caused injuries to the appellant Achhey Lal. In exercising right to private defence, injuries were caused to them. The injuries sustained by the informant 5 Saligram were superficial and likewise Ram Niwas fell on the ground and injuries were caused on his chest with bricks found lying on the place of occurrence. He also argued that there was no intention or knowledge with the appellants to cause such bodily injury to the deceased Ram Niwas as was likely to cause his death, therefore, he cannot be said to have caused the death of Ram Niwas and injuries to Saligram. The doctor has also opined that injuries to Ram Niwas may be caused due to falling on the ground. PW-2 Saligram though injured but is interested witness and due to enmity between both the parties he has falsely implicated them for causing injuries to him and to Ram Niwas. Learned trial court after considering all the material available on record held the appellants guilty u/s 325/149, 147 I.P.C. and sentenced them for a maximum period of 7 years rigorous imprisonment which is excessive. He also argued that during the pendency of appeal the appellants Achhey Lal and Bhaiyalal have died and appellants Rampal, Dhaniram and Vedram are alive but have become old. There was no specific role assigned to the appellants Vedram and Dhaniram for causing injuries to Ram Niwas but it was assigned to Bhaiyalal who has died. No specific injury caused by wielding lathi was found on the person of Ram Niwas, therefore, Vedram, Dhaniram and Rampal cannot be said to have caused the injuries and as such cannot be held to be guilty. He further argued that the incident took place in the year 1980 and accused/appellants were convicted in the year

1982. At that time Achhey Lal was aged about 50 years, Rampal was aged about 27 years, Dhaniram was aged about 29 years, Bhaiyalal was aged about 24 years, likewise Vedram was about 22 years old. By now 45 years have elapsed from the date of occurrence and the appellants Achhey Lal and Bhaiyalal have died. Appellant Dhaniram has become about 72 years old, Vedram about 65 years old and Rampal is aged about 70 years. They have become old and are suffering from old age infirmities, and no purpose will be served by sending them into jail, therefore, they be released on the basis of period already undergone, if they are found guilty. 6 He also argued that the appeal filed by the State against the acquittal of the appellants under Sections 302/149 I.P.C. is not tenable since there was no any intention or knowledge with the appellants to cause such bodily injury to the deceased Ram Niwas as was likely to cause his death but it was result of altercation between the parties which took place at the time of occurrence itself. No unlawful assembly was gathered nor there was any common object to commit murder of the deceased.

15. Learned A.G.A. opposed the arguments advanced by the learned counsel for the appellants as above and contended that in this case there was dispute between the informant and the appellants regarding land owned by the informant and the matter was settled in panchayat even though the appellants did not comply with the terms as agreed in panchayat but started construction on the disputed land regarding which objections were raised by the informant on which they assaulted the informant side with lathi. In the course of marpit Ram Niwas fell on the ground then appellant Rampal and Bhaiyalal struck on his chest with bricks causing fracture of ribs and injury on the lungs as a result of which he died. Learned trial court has convicted and sentenced the appellants under Section 325/149, 147 I.P.C. ignoring the evidence on record. PW-1 Saligram himself is injured witness, likewise PW-3 Sri Krishn Dubey is an independent eye witness. Both of them have narrated about the incident as it took place and about the assault made by the appellants on him and also the deceased Ram Niwas. There are categorical statements of PW-2 Saligram and PW-3 Sri Krishn Dubey that appellants Rampal and Bhaiyalal assaulted deceased Ram Niwas with bricks on his chest causing injuries and when he was being carried on a cot to Police Station Gursahaiganj, enroute the way he died and F.I.R. was lodged at the police station. During post-mortem the 5th and 6th ribs of the deceased were found to be fractured and lungs were lacerated, it shows that the injury was not caused due to fall on the ground but it was caused as a result of assault with bricks that was used forcefully showing the knowledge on the 7 part of the appellants to cause such bodily injury as was likely to cause his death. The injured Ram Niwas died just after commission of incident, it also shows the gravity of the injury and also the knowledge on the part of the appellants. Since all the appellants caused injuries to the deceased Ram Niwas and the informant Saligram, therefore, their acts cannot be separated and it can also not be said that the assembly of five or more persons, that was not unlawful at the inception may not turn unlawful later on, as per the explanation appended to Section 141 I.P.C. In this way, the order of acquittal passed by learned trial court under Section 302/149 I.P.C. cannot be said to be just and proper based on the evidence on record, therefore, the judgment and order dated 08.09.1982 for acquittal of appellants under Section 302/149 I.P.C. is liable to be set aside and they are to be held guilty and sentenced accordingly.

16. From the arguments advanced by learned counsel for the appellants as well as learned A.G.A. for the State in Criminal Appeal No.2395 of 1982 and in Government Appeal No.3224 of 1982, this Court is to consider as to whether the appellants have been rightly convicted and sentenced by the learned trial court under Sections 147, 325/149 I.P.C. without appreciating the evidence on record in proper way and also acquitted them for the charge under Section 302/149 I.P.C.

17. In this case the incident is said to have taken place on 02.04.1980 at about 5:00 P.M. and F.I.R. was lodged on the same day at 7:00 P.M. at Police Station Gursahaiganj i.e. 3 kms. from the place of occurrence and deceased Ram Niwas was taken on a cot by people from the place of occurrence to the police station. In these circumstances, the F.I.R. cannot be said to be delayed but it is prompt.

18. So far as the place of occurrence is concerned, it is beside the house of informant. There is no any dispute regarding the place of occurrence.

19. Since injuries were sustained by both the parties in relation to which cross case was also got registered by the police regarding the same 8 incident which shows that the incident is admitted to both the parties.

20. So far as the intention or motive of the appellants for causing injuries is concerned, the informant himself is injured witness and PW-3 is independent eye-witness. Where direct evidence is available, motive looses its importance. The injuries on the person of PW-2 Saligram were examined at 10:30 P.M. on the same day at Gursahaiganj and has been proved by PW-1 Dr. A.K. Rastogi and all these injuries were found to have been caused at about 5:00 P.M. on 02.04.1980 with hard and blunt object like lathi. Likewise the injuries found on the dead body of the deceased Ram Niwas were also proved by PW-6 Dr. V.P. Bhatnagar who opined that those injuries were possible to have been caused on

02.04.1980 at 5:00 P.M. to to 7:00 P.M. PW-2 Saligram and PW-3 Shri Krishn Dubey have categorically stated during their examination before the learned trial court that the appellants Rampal and Bhaiyalal assaulted with bricks on the chest of the deceased, Ram Niwas. This proves the manner of causing of all the injuries on the person of PW-2 Saligram and also on the person of deceased Ram Niwas.

21. PW-2 Saligram has deposed that he alongwith his brothers purchased house of Tularam Jatav for Rs.1000/- and sale deed was executed before him and the seller and the other witnesses also made their signatures and afixed L.T.I. Since the execution of sale deed, they were in possession of the house. The house of Bhola is in the Southern side in which accused persons were living and they wanted to take forceful possession over the aforesaid house. Prior to one and half or two months to the present incident panchayat was held in which it was decided that the land of Tularam Jatav belonged to the informant and accused persons will not take forcible possession on that land but accused persons did not follow the decision of the panchayat. On the date of incident at about 5:00 P.M. accused Achhey Lal and his four sons started digging pit for fixing door on the land of the informant which they objected. On that the accused persons brought lathis and started making assault with lathi and bricks on 9 him and his brother Ram Niwas. One lathi blow hit his brother Ram Niwas but he could not know who struck that lathi blow. After sustaining lathi blow Ram Niwas fell down then appellant Rampal struck with a brick on the left side of chest of his brother and second brick was struck by Bhaiyalal on his chin. Achhey Lal, Vedram and Dhaniram assaulted with lathi on Saligram (informant) and his brother Ram Niwas. On hue and cry Sri Krishn Dubey, Radhey Shyam and Ashok Kumar came there who witnessed the incident and came to rescue and they also rescued the informant by making assault with danda. He (Saligram, informant) alongwith his family members and other villagers was carrying Ram Niwas to Gursahaiganj on cot but enroute the way he succumbed to injuries and he lodged an F.I.R. at the police station by giving a written report Ex Ka-2 getting it scribed by Ram Prakash and also took the dead body to the police station.

22. This witness was subjected to cross-examination by the accused persons at length but nothing material could be elicited from his testimony made by him in the examination-in-chief as above.

23. PW-3 Sri Krishn Dubey who is an eye-witness has deposed that it was about 5:00 O’clock in the evening, he heard Saligram crying and reached there. He saw that Achhey Lal, Vedram, Dhaniram knocked down Ram Niwas on the ground and were beating him with lathis. Rampal and Bhaiyalal were making assault with bricks on the chest of Ram Niwas. In addition to him Ashok Kumar, Radhey Shyam also reached there and saw the incident and also rescued them. Saligram also sustained injuries who was beaten by the accused persons and after beating, the accused persons fled away. Ram Niwas was taken on the cot by members of his family but enroute the way he died.

24. This witness was also cross-examined at length on the part of the accused persons but nothing contradictory could be elicited from his testimony. 10

25. PW-1 Dr. A.K. Rastogi has deposed that on 02.04.1980 he examined Saligram and found injuries as mentioned in para no.5 present on his person caused with hard and blunt object. All the injuries were fresh and injury report was prepared by him at the time of examination in his handwriting and signature and proved it as Ex Ka-3. All the injuries were possible to be inflicted with lathi on 02.04.1980 at about 5:00 P.M. Except injury no.3 other injuries were possible with the assault of bricks. On the same day he also examined appellants Achheylal & Ram Pal and proved the injury reports of Achhey Lal as Ex. Kha-1 & Ram Pal as Ex. Kha-2.

26. PW-5 Dr. Harendra Singh, X-ray technician has deposed that he X- rayed Saligram on 08.04.1980 and prepared X-ray plate Ex-1 and report was prepared by Dr. J.K. Jiglani in his handwriting and signature i.e. Ex Ka-13. He also proved the X-ray report of appellant Achhey Lal as Ex. Kha-5.

27. PW-6 Dr. V.P. Bhatnagar who conducted post-mortem on the dead body of Ram Niwas deposed that the death of the deceased was caused as a result of shock and hemorrhage due to ante-mortem injury on left lung. He prepared post-mortem report in his handwriting and signature which is exhibited as Ex Ka-14. The death of the deceased occurred possibly on

02.04.1980 between 5:00 P.M. to 7:00 P.M.

28. Now, we take note of the evidence deposed by the informant Saligram as PW-2 and Shri Krishn Dubey as PW-3 regarding commission of incident of marpit by the appellants. PW-2 Saligram is related to the deceased Ram Niwas but he himself is an injured witness who sustained injuries in the same incident. Though he is related to the deceased Ram Niwas but on the basis of his relation only, his testimony cannot be discarded by holding him to be unreliable or interested witness likewise PW-3 Shri Krishn Dubey is an independent witness residing in the same village but there is no any enmity or relation either with the injured witness or with the deceased Ram Niwas, therefore, his testimony can also not be said to be unreliable. The injured witness cannot be said to 11 absolve the real culprit and to implicate the false one. During the course of cross-examination of PW-3 there appears no any material contradiction adversely affecting his testimony. The contradictions those are present are minor in nature not affecting their trustworthiness. PW-2 Saligram has clearly stated that the appellants Achhey Lal, Dhaniram and Vedram assaulted with lathi causing injuries to him and also knocked down Ram Niwas and appellants Rampal and Bhaiyalal assaulted with bricks on his chest and chin. On hue and cry PW-3 Shri Krishn Dubey came there for rescue. PW-3 Shri Krishn Dubey also deposed and made statement about the assault made by the appellants on Saligram and the deceased Ram Niwas with lathi and bricks. The deceased Ram Niwas was taken by the informant alongwith other members of his family on a cot to Gursahaiganj but on the way he succumbed to injuries.

29. On the other hand, the appellants Rampal and Achhey Lal also sustained injuries in the same incident in relation to which an F.I.R. was lodged at the police station and injuries were examined by PW-1 who proved before the learned trial court, the injuries sustained on their person and said to be caused on the same day and at the same time. The injuries were also proved by PW-1 as Ex Kha- 1 & 2 and said to be caused on

02.04.1980 at about 5:00 P.M.

30. From the testimony of PW-2 Saligram and PW-3 Shri Krishn Dubey and the testimony of PW-1 Dr. A. K. Rastogi, it is proved beyond reasonable doubt that the incident of marpit between the appellant and the informant took place on 02.04.1980 at about 5:00 P.M. in which injuries were caused on the person of informant PW-2 Saligram and also the deceased Ram Niwas. The injuries on the person of PW-2 were simple in nature as opined by the PW-1 Dr. A.K. Rastogi and on the dead body of the deceased injuries were grievous in nature and fatal to the life of the deceased. PW-6 Dr. V.P. Bhatnagar who conducted post-mortem of the dead body of the deceased and examined the injuries who stated clearly that his death was caused as a result of shock and hemorrhage due to ante- 12 mortem injury on left lung. The injury no.1 was on left side chest, chin and right side lower jaw. In internal examination, the inner wall of the chest was ruptured and left side 5th and 6th ribs were fractured. Pleura was also damaged with the left lung. The injuries caused on the person of the deceased Ram Niwas cannot be said to be simple in nature or not fatal to the life. It was so forcefully caused that resulted into fracture of 5th and 6th ribs damaging the inner wall and the lung in relation to which it can be said that the appellants Rampal, Bhaiyalal caused such injury by using the bricks regarding which they were knowing that such assault is likely to cause death of the deceased, as a result his death was caused just after the incident. The death of the deceased was found to be instant result of injuries caused by the appellants. The appellants were five in number and all were digging pits for fixing the door on the land of the informant, when objected they made assaults with lathi and bricks causing injuries on the informant and also to the deceased which shows their common object as enumerated under Section 141 I.P.C. making the assembly unlawful. Where any member of an unlawful assembly commits the offence in prosecution of common object of such an assembly every member of that assembly becomes liable for that offence and all the members of that assembly are liable for punishment for the offence committed invoking application of Section 149 I.P.C, therefore, the appellants cannot be said to be liable for their separate acts but all are liable for the act committed by any of the accused in prosecution of common object.

31. Thus on analysis of evidence on record, we are of the considered opinion that the appellants in prosecution of their common object caused such bodily injury to the deceased Ram Niwas regarding which they knew that it was likely to cause his death, therefore, are liable for causing his death, though there appears no any intention to cause such bodily injury likely to cause his death, therefore, the act of the appellants comes under the category of culpable homicide not amounting to murder punishable under Section 304 Part II I.P.C. 13

32. The learned trial court passed the judgment and order acquitting the appellants under Section 302/149 I.P.C. and convicting them for the offence under Section 147, 325/149 I.P.C. cannot be said to be based on proper appreciation of evidence on record, but, it being erroneous requires interference by this Court.

33. We convict the appellants Dhaniram, Vedram and Rampal guilty for the offence under Section 304 Part II I.P.C. read with Section 149 I.P.C. and 147 I.P.C. in place of Section 325/149 I.P.C.

34. Now, we have to consider about the sentence to be awarded to the appellants for the offence under Sections 147 and 304 Part II I.P.C. read with Section 149 I.P.C. In this regard, it is to be noted that incident took place on 02.04.1980 and by now 45 years have elapsed and appellant Achhey Lal & Bhaiyalal have already died and appeal against them stands abated. Appellant Dhaniram is aged about 72 years, Rampal is aged about 70 years and Vedram is about 65 years old. All of them are suffering from the old age infirmities. In the case of Neelam Bahal & another v. State of Uttrakhand 2010 (2) SCC 229 where conviction and sentence of appellant u/s307 IPC was converted into S.326 IPC simpliciter. Incident took place in the year 1987 and appellant was about 25years old. Considering the facts and 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.

35. In view of the lapse of time between the occurrence i.e. 02.04.1980 till now, the age of the appellants, the circumstances in which incident took place and the view taken by the hon’ble Apex Court in the above-noted 14 cases, it will serve no better purpose to send the appellants to jail but considering their incarceration in jail for about six weeks during the period of trial and pendency of this appeal, it is just and proper for ends of justice to victim and also to the appellants to sentence them for the period already undergone and with fine amounting to Rs.30,000/- for each of the appellants out of which Rs. 75,000/- shall be paid as compensation to the injured or the legal heirs of the deceased proportionally, in default of payment of fine, to undergo six months of rigorous imprisonment.

36. So far as the Criminal Appeal No.2395 of 1982 filed by the appellants is concerned, since the Government Appeal No.3224 of 1982 against the same impugned judgment and order has been allowed and the appellants have been held guilty of the offence under Section 147 I.P.C. and Section 304 Part II I.P.C., in place of Section 325/149 I.P.C. and have been sentenced for the period already undergone with a fine amounting to Rs.30,000/- for each of the appellants with default stipulations, as such, in terms of the judgment and order passed in the connected Government Appeal No.3224 of 1982, the instant Criminal Appeal No.2395 of 1982 filed by the appellants also stands disposed of.

37. Accordingly, Government Appeal No.3224 of 1982 is allowed.

38. Copy of this judgment along-with trial court record be transmitted to the learned 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. Order Date :- 8th July, 2025 Ashok Gupta (Subhash Chandra Sharma,J.) (Rajiv Gupta,J.)

Bhaiyalal started beating with bricks. On hue and cry Sri Krishna Dubey, Radhey Shyam, Ashok Kumar and others came there in rescue. Ram Niwas sustained injuries and was being carried to police station on a cot but enroute the way he died. The first information report was lodged on the basis of written tehrir given by Saligram on the same day at about 7:00 P.M. at the police station Gursahaiganj as Crime No.126/1980, u/s 147, 304, 323 I.P.C.

5. The investigation was handed over to S.I. Dafedar Singh. Chitthi majrubi was prepared by the police for medical examination of injured/informant Saligram and he was taken to the hospital by Homeguard Ganga Naresh where he was medically examined at 10:30 PM on the same day and following injuries were found on his person:-

1. Abrasion 2 cm x ½ cm on the right parietal region of the scalp – it is 6 cm above the medial end of the right eyebrow. 3

2. Abraded contusion 4 cm x 1 cm on the medial aspect of the right forearm lower part – it is 4 cm above from the wrist joint, red, kept under observation and advised x-ray.

3. Contused swelling 20 cm x 18 cm on the dorso aspect of the lower part of the left arm, elbow & upto the middle of the left forearm, – it is 8 cm above the elbow joint, it is 15 cm above the left wrist joint & unable to move the forearm and elbow joint, red, kept under observation and advised x-ray. Referred to District Hospital.

4. Contusion 2 cm x 1 cm on the front of the right knee joint, Red. All injuries are caused by hard and blunt object and injury no.(I) & (IV) are simple and injury no.(II) &(III) are kept under observation and advised x-ray. Duration about fresh. The injured Saligram was referred for x-ray in which fracture at the lower end of humerus left arm was found.

6. The Investigating Officer, after conducting inquest and preparing other necessary papers sealed the dead body of Ram Niwas and sent it for post-mortem.

7. On 03.04.1980 at about 4:30 P.M. the post mortem was done by Dr. V.P. Bhatnagar Medical Officer, T.B. Clinic, Fatehgarh. During post-mortem the following ante-mortem injuries were found on the dead body of the deceased Ram Niwas:-

1. A contusion 3 inch x 11/2 inch on the left side chest upper part 2 inch below left Nipple.

2. Abrasion 1 inch x 3/4 inch in front of chin. 3. A contusion 11/2 inch x 1 inch on the Right side mandible (Jaw). Death due to shock and haemorrhage as a result of injury to left lung. 4

8. The Investigating Officer visited the place of occurrence and prepared the site plan on 04.04.1980 and after recording the statement of witnesses acquainted with the facts of the case, concluded the investigation and filed charge sheet against the appellants u/s 147, 325 & 304 IPC.

9. The learned court concerned took cognizance of the offences and after compliance of the provisions of Section 207 Cr.P.C. case was committed for trial to the learned court of Sessions.

10. The learned trial court framed the charges u/s 147, 325/149 and 302/149 IPC against the appellants which were read over and explained to them which they denied and claimed for trial.

11. The prosecution examined PW-1 Dr. A.K. Rastogi, conducting medical examination of injured Saligram; PW-2 Saligram, informant/injured; PW-3 Sri Krishna Dubey an eye witness; PW-4 S.I. Dafedar Singh, the Investigating Officer; PW-5 Harendra Singh, the X-ray technician; PW-6 Dr. V.P. Bhatnagar, conducting post-mortem of the deceased Ram Niwas.

12. On conclusion of prosecution evidence the statements of accused/appellants were recorded u/s 313 Cr.P.C. and opportunity for defence evidence was given to them in which they filed some papers which were taken on record.

13. Upon hearing the arguments advanced by the prosecution as well as the defence and appreciating the evidence available on record, the learned trial court convicted and sentenced the appellants u/s 147 and 325/149 IPC but acquitted u/s 302/149 IPC as aforesaid against which these appeals have been preferred.

14. Learned counsel for the appellant argued that in this case the injuries found on the person of informant and the deceased Ram Niwas were not caused by the present appellants but the informant side themselves caused injuries to the appellant Achhey Lal. In exercising right to private defence, injuries were caused to them. The injuries sustained by the informant 5 Saligram were superficial and likewise Ram Niwas fell on the ground and injuries were caused on his chest with bricks found lying on the place of occurrence. He also argued that there was no intention or knowledge with the appellants to cause such bodily injury to the deceased Ram Niwas as was likely to cause his death, therefore, he cannot be said to have caused the death of Ram Niwas and injuries to Saligram. The doctor has also opined that injuries to Ram Niwas may be caused due to falling on the ground. PW-2 Saligram though injured but is interested witness and due to enmity between both the parties he has falsely implicated them for causing injuries to him and to Ram Niwas. Learned trial court after considering all the material available on record held the appellants guilty u/s 325/149, 147 I.P.C. and sentenced them for a maximum period of 7 years rigorous imprisonment which is excessive. He also argued that during the pendency of appeal the appellants Achhey Lal and Bhaiyalal have died and appellants Rampal, Dhaniram and Vedram are alive but have become old. There was no specific role assigned to the appellants Vedram and Dhaniram for causing injuries to Ram Niwas but it was assigned to Bhaiyalal who has died. No specific injury caused by wielding lathi was found on the person of Ram Niwas, therefore, Vedram, Dhaniram and Rampal cannot be said to have caused the injuries and as such cannot be held to be guilty. He further argued that the incident took place in the year 1980 and accused/appellants were convicted in the year

1982. At that time Achhey Lal was aged about 50 years, Rampal was aged about 27 years, Dhaniram was aged about 29 years, Bhaiyalal was aged about 24 years, likewise Vedram was about 22 years old. By now 45 years have elapsed from the date of occurrence and the appellants Achhey Lal and Bhaiyalal have died. Appellant Dhaniram has become about 72 years old, Vedram about 65 years old and Rampal is aged about 70 years. They have become old and are suffering from old age infirmities, and no purpose will be served by sending them into jail, therefore, they be released on the basis of period already undergone, if they are found guilty. 6 He also argued that the appeal filed by the State against the acquittal of the appellants under Sections 302/149 I.P.C. is not tenable since there was no any intention or knowledge with the appellants to cause such bodily injury to the deceased Ram Niwas as was likely to cause his death but it was result of altercation between the parties which took place at the time of occurrence itself. No unlawful assembly was gathered nor there was any common object to commit murder of the deceased.

15. Learned A.G.A. opposed the arguments advanced by the learned counsel for the appellants as above and contended that in this case there was dispute between the informant and the appellants regarding land owned by the informant and the matter was settled in panchayat even though the appellants did not comply with the terms as agreed in panchayat but started construction on the disputed land regarding which objections were raised by the informant on which they assaulted the informant side with lathi. In the course of marpit Ram Niwas fell on the ground then appellant Rampal and Bhaiyalal struck on his chest with bricks causing fracture of ribs and injury on the lungs as a result of which he died. Learned trial court has convicted and sentenced the appellants under Section 325/149, 147 I.P.C. ignoring the evidence on record. PW-1 Saligram himself is injured witness, likewise PW-3 Sri Krishn Dubey is an independent eye witness. Both of them have narrated about the incident as it took place and about the assault made by the appellants on him and also the deceased Ram Niwas. There are categorical statements of PW-2 Saligram and PW-3 Sri Krishn Dubey that appellants Rampal and Bhaiyalal assaulted deceased Ram Niwas with bricks on his chest causing injuries and when he was being carried on a cot to Police Station Gursahaiganj, enroute the way he died and F.I.R. was lodged at the police station. During post-mortem the 5th and 6th ribs of the deceased were found to be fractured and lungs were lacerated, it shows that the injury was not caused due to fall on the ground but it was caused as a result of assault with bricks that was used forcefully showing the knowledge on the 7 part of the appellants to cause such bodily injury as was likely to cause his death. The injured Ram Niwas died just after commission of incident, it also shows the gravity of the injury and also the knowledge on the part of the appellants. Since all the appellants caused injuries to the deceased Ram Niwas and the informant Saligram, therefore, their acts cannot be separated and it can also not be said that the assembly of five or more persons, that was not unlawful at the inception may not turn unlawful later on, as per the explanation appended to Section 141 I.P.C. In this way, the order of acquittal passed by learned trial court under Section 302/149 I.P.C. cannot be said to be just and proper based on the evidence on record, therefore, the judgment and order dated 08.09.1982 for acquittal of appellants under Section 302/149 I.P.C. is liable to be set aside and they are to be held guilty and sentenced accordingly.

16. From the arguments advanced by learned counsel for the appellants as well as learned A.G.A. for the State in Criminal Appeal No.2395 of 1982 and in Government Appeal No.3224 of 1982, this Court is to consider as to whether the appellants have been rightly convicted and sentenced by the learned trial court under Sections 147, 325/149 I.P.C. without appreciating the evidence on record in proper way and also acquitted them for the charge under Section 302/149 I.P.C.

17. In this case the incident is said to have taken place on 02.04.1980 at about 5:00 P.M. and F.I.R. was lodged on the same day at 7:00 P.M. at Police Station Gursahaiganj i.e. 3 kms. from the place of occurrence and deceased Ram Niwas was taken on a cot by people from the place of occurrence to the police station. In these circumstances, the F.I.R. cannot be said to be delayed but it is prompt.

18. So far as the place of occurrence is concerned, it is beside the house of informant. There is no any dispute regarding the place of occurrence.

19. Since injuries were sustained by both the parties in relation to which cross case was also got registered by the police regarding the same 8 incident which shows that the incident is admitted to both the parties.

20. So far as the intention or motive of the appellants for causing injuries is concerned, the informant himself is injured witness and PW-3 is independent eye-witness. Where direct evidence is available, motive looses its importance. The injuries on the person of PW-2 Saligram were examined at 10:30 P.M. on the same day at Gursahaiganj and has been proved by PW-1 Dr. A.K. Rastogi and all these injuries were found to have been caused at about 5:00 P.M. on 02.04.1980 with hard and blunt object like lathi. Likewise the injuries found on the dead body of the deceased Ram Niwas were also proved by PW-6 Dr. V.P. Bhatnagar who opined that those injuries were possible to have been caused on

02.04.1980 at 5:00 P.M. to to 7:00 P.M. PW-2 Saligram and PW-3 Shri Krishn Dubey have categorically stated during their examination before the learned trial court that the appellants Rampal and Bhaiyalal assaulted with bricks on the chest of the deceased, Ram Niwas. This proves the manner of causing of all the injuries on the person of PW-2 Saligram and also on the person of deceased Ram Niwas.

21. PW-2 Saligram has deposed that he alongwith his brothers purchased house of Tularam Jatav for Rs.1000/- and sale deed was executed before him and the seller and the other witnesses also made their signatures and afixed L.T.I. Since the execution of sale deed, they were in possession of the house. The house of Bhola is in the Southern side in which accused persons were living and they wanted to take forceful possession over the aforesaid house. Prior to one and half or two months to the present incident panchayat was held in which it was decided that the land of Tularam Jatav belonged to the informant and accused persons will not take forcible possession on that land but accused persons did not follow the decision of the panchayat. On the date of incident at about 5:00 P.M. accused Achhey Lal and his four sons started digging pit for fixing door on the land of the informant which they objected. On that the accused persons brought lathis and started making assault with lathi and bricks on 9 him and his brother Ram Niwas. One lathi blow hit his brother Ram Niwas but he could not know who struck that lathi blow. After sustaining lathi blow Ram Niwas fell down then appellant Rampal struck with a brick on the left side of chest of his brother and second brick was struck by Bhaiyalal on his chin. Achhey Lal, Vedram and Dhaniram assaulted with lathi on Saligram (informant) and his brother Ram Niwas. On hue and cry Sri Krishn Dubey, Radhey Shyam and Ashok Kumar came there who witnessed the incident and came to rescue and they also rescued the informant by making assault with danda. He (Saligram, informant) alongwith his family members and other villagers was carrying Ram Niwas to Gursahaiganj on cot but enroute the way he succumbed to injuries and he lodged an F.I.R. at the police station by giving a written report Ex Ka-2 getting it scribed by Ram Prakash and also took the dead body to the police station.

22. This witness was subjected to cross-examination by the accused persons at length but nothing material could be elicited from his testimony made by him in the examination-in-chief as above.

23. PW-3 Sri Krishn Dubey who is an eye-witness has deposed that it was about 5:00 O’clock in the evening, he heard Saligram crying and reached there. He saw that Achhey Lal, Vedram, Dhaniram knocked down Ram Niwas on the ground and were beating him with lathis. Rampal and Bhaiyalal were making assault with bricks on the chest of Ram Niwas. In addition to him Ashok Kumar, Radhey Shyam also reached there and saw the incident and also rescued them. Saligram also sustained injuries who was beaten by the accused persons and after beating, the accused persons fled away. Ram Niwas was taken on the cot by members of his family but enroute the way he died.

24. This witness was also cross-examined at length on the part of the accused persons but nothing contradictory could be elicited from his testimony. 10

25. PW-1 Dr. A.K. Rastogi has deposed that on 02.04.1980 he examined Saligram and found injuries as mentioned in para no.5 present on his person caused with hard and blunt object. All the injuries were fresh and injury report was prepared by him at the time of examination in his handwriting and signature and proved it as Ex Ka-3. All the injuries were possible to be inflicted with lathi on 02.04.1980 at about 5:00 P.M. Except injury no.3 other injuries were possible with the assault of bricks. On the same day he also examined appellants Achheylal & Ram Pal and proved the injury reports of Achhey Lal as Ex. Kha-1 & Ram Pal as Ex. Kha-2.

26. PW-5 Dr. Harendra Singh, X-ray technician has deposed that he X- rayed Saligram on 08.04.1980 and prepared X-ray plate Ex-1 and report was prepared by Dr. J.K. Jiglani in his handwriting and signature i.e. Ex Ka-13. He also proved the X-ray report of appellant Achhey Lal as Ex. Kha-5.

27. PW-6 Dr. V.P. Bhatnagar who conducted post-mortem on the dead body of Ram Niwas deposed that the death of the deceased was caused as a result of shock and hemorrhage due to ante-mortem injury on left lung. He prepared post-mortem report in his handwriting and signature which is exhibited as Ex Ka-14. The death of the deceased occurred possibly on

02.04.1980 between 5:00 P.M. to 7:00 P.M.

28. Now, we take note of the evidence deposed by the informant Saligram as PW-2 and Shri Krishn Dubey as PW-3 regarding commission of incident of marpit by the appellants. PW-2 Saligram is related to the deceased Ram Niwas but he himself is an injured witness who sustained injuries in the same incident. Though he is related to the deceased Ram Niwas but on the basis of his relation only, his testimony cannot be discarded by holding him to be unreliable or interested witness likewise PW-3 Shri Krishn Dubey is an independent witness residing in the same village but there is no any enmity or relation either with the injured witness or with the deceased Ram Niwas, therefore, his testimony can also not be said to be unreliable. The injured witness cannot be said to 11 absolve the real culprit and to implicate the false one. During the course of cross-examination of PW-3 there appears no any material contradiction adversely affecting his testimony. The contradictions those are present are minor in nature not affecting their trustworthiness. PW-2 Saligram has clearly stated that the appellants Achhey Lal, Dhaniram and Vedram assaulted with lathi causing injuries to him and also knocked down Ram Niwas and appellants Rampal and Bhaiyalal assaulted with bricks on his chest and chin. On hue and cry PW-3 Shri Krishn Dubey came there for rescue. PW-3 Shri Krishn Dubey also deposed and made statement about the assault made by the appellants on Saligram and the deceased Ram Niwas with lathi and bricks. The deceased Ram Niwas was taken by the informant alongwith other members of his family on a cot to Gursahaiganj but on the way he succumbed to injuries.

29. On the other hand, the appellants Rampal and Achhey Lal also sustained injuries in the same incident in relation to which an F.I.R. was lodged at the police station and injuries were examined by PW-1 who proved before the learned trial court, the injuries sustained on their person and said to be caused on the same day and at the same time. The injuries were also proved by PW-1 as Ex Kha- 1 & 2 and said to be caused on

02.04.1980 at about 5:00 P.M.

30. From the testimony of PW-2 Saligram and PW-3 Shri Krishn Dubey and the testimony of PW-1 Dr. A. K. Rastogi, it is proved beyond reasonable doubt that the incident of marpit between the appellant and the informant took place on 02.04.1980 at about 5:00 P.M. in which injuries were caused on the person of informant PW-2 Saligram and also the deceased Ram Niwas. The injuries on the person of PW-2 were simple in nature as opined by the PW-1 Dr. A.K. Rastogi and on the dead body of the deceased injuries were grievous in nature and fatal to the life of the deceased. PW-6 Dr. V.P. Bhatnagar who conducted post-mortem of the dead body of the deceased and examined the injuries who stated clearly that his death was caused as a result of shock and hemorrhage due to ante- 12 mortem injury on left lung. The injury no.1 was on left side chest, chin and right side lower jaw. In internal examination, the inner wall of the chest was ruptured and left side 5th and 6th ribs were fractured. Pleura was also damaged with the left lung. The injuries caused on the person of the deceased Ram Niwas cannot be said to be simple in nature or not fatal to the life. It was so forcefully caused that resulted into fracture of 5th and 6th ribs damaging the inner wall and the lung in relation to which it can be said that the appellants Rampal, Bhaiyalal caused such injury by using the bricks regarding which they were knowing that such assault is likely to cause death of the deceased, as a result his death was caused just after the incident. The death of the deceased was found to be instant result of injuries caused by the appellants. The appellants were five in number and all were digging pits for fixing the door on the land of the informant, when objected they made assaults with lathi and bricks causing injuries on the informant and also to the deceased which shows their common object as enumerated under Section 141 I.P.C. making the assembly unlawful. Where any member of an unlawful assembly commits the offence in prosecution of common object of such an assembly every member of that assembly becomes liable for that offence and all the members of that assembly are liable for punishment for the offence committed invoking application of Section 149 I.P.C, therefore, the appellants cannot be said to be liable for their separate acts but all are liable for the act committed by any of the accused in prosecution of common object.

31. Thus on analysis of evidence on record, we are of the considered opinion that the appellants in prosecution of their common object caused such bodily injury to the deceased Ram Niwas regarding which they knew that it was likely to cause his death, therefore, are liable for causing his death, though there appears no any intention to cause such bodily injury likely to cause his death, therefore, the act of the appellants comes under the category of culpable homicide not amounting to murder punishable under Section 304 Part II I.P.C. 13

32. The learned trial court passed the judgment and order acquitting the appellants under Section 302/149 I.P.C. and convicting them for the offence under Section 147, 325/149 I.P.C. cannot be said to be based on proper appreciation of evidence on record, but, it being erroneous requires interference by this Court.

33. We convict the appellants Dhaniram, Vedram and Rampal guilty for the offence under Section 304 Part II I.P.C. read with Section 149 I.P.C. and 147 I.P.C. in place of Section 325/149 I.P.C.

34. Now, we have to consider about the sentence to be awarded to the appellants for the offence under Sections 147 and 304 Part II I.P.C. read with Section 149 I.P.C. In this regard, it is to be noted that incident took place on 02.04.1980 and by now 45 years have elapsed and appellant Achhey Lal & Bhaiyalal have already died and appeal against them stands abated. Appellant Dhaniram is aged about 72 years, Rampal is aged about 70 years and Vedram is about 65 years old. All of them are suffering from the old age infirmities. In the case of Neelam Bahal & another v. State of Uttrakhand 2010 (2) SCC 229 where conviction and sentence of appellant u/s307 IPC was converted into S.326 IPC simpliciter. Incident took place in the year 1987 and appellant was about 25years old. Considering the facts and 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.

35. In view of the lapse of time between the occurrence i.e. 02.04.1980 till now, the age of the appellants, the circumstances in which incident took place and the view taken by the hon’ble Apex Court in the above-noted 14 cases, it will serve no better purpose to send the appellants to jail but considering their incarceration in jail for about six weeks during the period of trial and pendency of this appeal, it is just and proper for ends of justice to victim and also to the appellants to sentence them for the period already undergone and with fine amounting to Rs.30,000/- for each of the appellants out of which Rs. 75,000/- shall be paid as compensation to the injured or the legal heirs of the deceased proportionally, in default of payment of fine, to undergo six months of rigorous imprisonment.

36. So far as the Criminal Appeal No.2395 of 1982 filed by the appellants is concerned, since the Government Appeal No.3224 of 1982 against the same impugned judgment and order has been allowed and the appellants have been held guilty of the offence under Section 147 I.P.C. and Section 304 Part II I.P.C., in place of Section 325/149 I.P.C. and have been sentenced for the period already undergone with a fine amounting to Rs.30,000/- for each of the appellants with default stipulations, as such, in terms of the judgment and order passed in the connected Government Appeal No.3224 of 1982, the instant Criminal Appeal No.2395 of 1982 filed by the appellants also stands disposed of.

37. Accordingly, Government Appeal No.3224 of 1982 is allowed.

38. Copy of this judgment along-with trial court record be transmitted to the learned 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. Order Date :- 8th July, 2025 Ashok Gupta (Subhash Chandra Sharma,J.) (Rajiv Gupta,J.)