# Babu Ram & Ors v. State Of U.P - **Citation:** (2016) 4 ILRA 664 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2015-08-14 - **Bench:** Shashi Kant Gupta, Om Prakash-Vii - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-ram-ors-v-state-of-u-p-43465 - **Pages:** 8 ## Headnote CRIMINAL LAW - Murder - Common object under S. 149 IPC - Brutal group assault - Medical corroboration - Conviction upheld. EVIDENCE - Homicidal Death - Ocular evidence corroborated by medical evidence - Reliability of eyewitnesses - P.W.1 and P.W.2, both natural witnesses- gave a consistent and credible account of assault by accused- supported by post-mortem findings showing 15 ante-mortem injuries- no material contradictions found. Conviction of principal assailants upheld. (Paras 10-12, 22) S. 302/149 IPC - Common Object - Formation at the spot - Brutal assault showing shared intention - Applicability upheld- In the instant case the quarrel originated from a demand for return of Rs. 500/- - accused collectively assaulted the deceased with extreme brutality- causing multiple fractures on vital parts- establishing shared common object to cause death or such bodily injury likely to cause death- Held, Common object can form even spontaneously. (Paras 20-21, 26, 28) Exception 4 to S. 300 IPC - Sudden fight - Inapplicable - Cruel and unusual manner of assault. -Exception 4 requires absence of premeditation, a sudden fight, and no undue advantage or cruelty- Here, deceased was unarmed- no injury was inflicted by him-Nature, number and location of injuries corroborated-particularly repeated blows on the skull and vital organs-demonstrated cruel and unusual manner of assault-Held, Exception 4 not available- conviction under S. 302 IPC Just & proper. (Paras 2125) Role of Accused - Appreciation of Evidence - Acquittal of Ramawati - she was alleged to have struck the deceased with a spade - no incised or sharp-edged injury found on deceased body - Witnesses also admitted she arrived later - prosecution failed to prove her involvement beyond reasonable doubt; conviction of Ramawati set aside. (Paras 15-17, 19, 29-32) Appeal - Partly allowed - Conviction of main accused maintained. (Para 28-33) 4 All. Babu Ram & Ors. Vs State Of U.P. 665 ## Text 664 INDIAN LAW REPORTS ALLAHABAD SERIES APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 14.08.2015 BEFORE THE HON'BLE SHASHI KANT GUPTA, J. THE HON'BLE OM PRAKASH-VII, J. Criminal Appeal No.- 1543 Of 1983 Babu Ram & Ors. ...Appellants Versus State Of U.P. ...Respondent Counsel for the Appellants: G.S. Jahela Counsel for the Respondent: A.G.A. CRIMINAL LAW - Murder - Common object under S. 149 IPC - Brutal group assault - Medical corroboration - Conviction upheld. EVIDENCE - Homicidal Death - Ocular evidence corroborated by medical evidence - Reliability of eyewitnesses - P.W.1 and P.W.2, both natural witnesses- gave a consistent and credible account of assault by accused- supported by post-mortem findings showing 15 ante-mortem injuries- no material contradictions found. Conviction of principal assailants upheld. (Paras 10-12, 22) S. 302/149 IPC - Common Object - Formation at the spot - Brutal assault showing shared intention - Applicability upheld- In the instant case the quarrel originated from a demand for return of Rs. 500/- - accused collectively assaulted the deceased with extreme brutality- causing multiple fractures on vital parts- establishing shared common object to cause death or such bodily injury likely to cause death- Held, Common object can form even spontaneously. (Paras 20-21, 26, 28) Exception 4 to S. 300 IPC - Sudden fight - Inapplicable - Cruel and unusual manner of assault. -Exception 4 requires absence of premeditation, a sudden fight, and no undue advantage or cruelty- Here, deceased was unarmed- no injury was inflicted by him-Nature, number and location of injuries corroborated-particularly repeated blows on the skull and vital organs-demonstrated cruel and unusual manner of assault-Held, Exception 4 not available- conviction under S. 302 IPC Just & proper. (Paras 2125) Role of Accused - Appreciation of Evidence - Acquittal of Ramawati - she was alleged to have struck the deceased with a spade - no incised or sharp-edged injury found on deceased body - Witnesses also admitted she arrived later - prosecution failed to prove her involvement beyond reasonable doubt; conviction of Ramawati set aside. (Paras 15-17, 19, 29-32) Appeal - Partly allowed - Conviction of main accused maintained. (Para 28-33) 4 All. Babu Ram & Ors. Vs State Of U.P. 665 (Delivered by Hon'ble Shashi Kant Gupta, J. & Hon'ble Om Prakash-VII, J.) 1. This criminal appeal arises out of the judgment and order dated 27.06.1983 passed by the Ist Additional Sessions Judge, Farrukhabad in Sessions Trial No. 86 of 1982 (State Vs. Babu Ram & Others) whereby the appellants were convicted and sentenced to undergo one year rigorous imprisonment under Section 148 I.P.C. and imprisonment to life for offence under section 302/149 IPC. Both the sentences were directed to run concurrently. 2. At the outset, it is relevant to mention here that during the pendency of this appeal, the Appellant No. 1, Babu Ram and Appellant No. 6 Hari Ram have died. Accordingly, vide order dated 1.5.2015, this Court has dismissed the appeal as abated as against the Appellant No. 1 Babu Ram and Appellant No. 6 Hari Ram. 3. Now, we are proceeding to consider the present appeal in respect of the remaining appellants, namely, Appellants No. 2, 3, 4, 5 and 7 namely Ram Niwas, Subhash, Ram Bilas, Sri Kishun and Ramawati respectively. 4. The facts of the case, as unfolded by the informant P.W.-1, Rajbahadur in the written report dated 6.6.1981 Ext. Ka-1 , are that on 5.6.1981 at about 7-7.30 P.M. his brother Chhotey Lal went to the house of Babu Ram asking him to return Rs. 500/- which he had taken as loan as he urgently needed the money for getting boring done. Babu Ram refused to return the money. When Chhotey Lal insisted him to pay the amount immediately, Babu Ram and the remaining accused persons became furious and attacked the deceased with Lathis and uttered "Abhi Tumhey Rapaye Diyae Detae hai". As a result, Chhotey Lal fell down to the ground crying for help. Meanwhile the wife of Sri Kishan, who is of a notorious character brought a spade and gave a blow on the head of Chhotey Lal and thereafter Hari Ram also inflicted a blow on the deceased by means of a spade. On hearing the cries, Ram Swarup, the informant and Ram Autar and Madan Lal who were returning from their field as well as Ram Autar Madan and Lal also rushed to the spot and dissuaded the accused from doing so. Thereafter Sri Kishan set fire to his Chhapper whereupon a lot of people gathered there to extinguish it. When his brother was being carried to the house on the cot, he succumbed to his injuries on the way as such they carried the dead body of the deceased to the police station and lodged the report. 5. Head constable Luxmi Narain P.W.4 prepared the Chik F.I.R. (Ext. Ka.7) and registered the case in the G.D. (Ext. Ka 8). S.I J.P. Gautam P.W.3 prepared the inquest report vide Ext. Ka 2. Sealed dead body was handed over to constables Ujagarmal and Raj Bahadur Singh for postmortem purposes. He also prepared the other necessary papers in this connection which are Exts. Ka 3 to Ka 6 and the same were also handed over to the aforesaid constables. S.I. Arjun Singh Tomar P.W.7 proved the investigation done by S.I. Sahdeo Singh who conducted the investigation from 6.6.1981. Blood stained and plain earth were taken from the place of occurrence and memo Ext. Ka 10 was prepared by him. S.I. Gautam prepared the memo Ext. Ka. 12 of blood stained 666 INDIAN LAW REPORTS ALLAHABAD SERIES pillow. He then prepared the site plan Ext. Ka 13. The statements of witnesses were recorded. After completing the formalities charge sheet Ext. Ka 14 was prepared and submitted against the accused persons on 30.8.1981 by the same I.O. 6. Post-mortem of the deceased Chhotey Lal was conducted by Dr. C.N. Bhalla, P.W. 6 on 6.6.1981 at about 4.15 P.M. in District Hospital, Fatehgarh. As per this witness, the deceased Chhotey Lal was aged about 45 years. Rigor Mortis passed from upper limbs and present in lower limbs. On external examination following ante-mortem injuries were found on the body of the deceased Chhotey Lal; 1.2 lacerated wound 1 cm. x 0.75 cm.x bone deep and 2 cmx 0.5 cm x bone deep left side forehand lower wound being on the left eye-brow. 2.Contused lacerated wound 2 Â1⁄2 cm. x 1 cm. on left side nose. 3.Contusion 7 cm. x 1 cm left side, middle part face obliquely present. 4.Lacerated wound 3 cm. x 1 cm. x bone deep on the left half of the lower hip. 5.Lacerated wound 4 cm. x Â1⁄2 cm. x bone deep on the chin mid line. 6.3 contusions 3 cm. x 1 cm. to 5 cm. x 1 cm. on the right side face, just below the zygomatic bone (temple). 7.Interrupted contusion 21 cm x 2 cm. starting from mid line, upper part of neck going to upper part of left axial, obliquely placed. 8. Abraded contusion 2 cm. x 1 cm. on the top of the left shoulder. 9.4 Irregular contusions on the outer aspect of the left arm in an area of 15 cm. x 9 cm. 10.Contusion 16 cm. x 2 cm. traversly placed on the outer abdomen. 11.Contusion 13 cm. x 1.5 cm. on the outer and upper aspect of left arm, obliquely placed. 12.Contusion 11 cm. x 2 cm front and upper part of right thigh. 13.Contusion 12 cm. X 2 cm. 4'' above the left knee joint anteriorly placed. 14.9 Contusions measuring from 4 cm. x 2 cm. to 14 cm. x 2 cm. on the upper and middle part of back, both side in different directions. 4 All. Babu Ram & Ors. Vs State Of U.P. 667 15.Abraded contusions 2.5 cm. 1 cm., 11 cm. above the right ankle joint, on the front of right leg. Note: Clotted blood and mud soaked in blood present in skull tans. Clotted blood present on face and neck. 7. External Examination: (i) Frontal bone of the head was broken at several places. Parietal bone of left side and temporal bones were broken. Fracture of left maxulla was found. Ear bone was broken. Brain and membrane was torn. Left Scapula bone was broken. Stomach was empty. Gas and bad odour was present in small and large intestine. 8. Dr. C.N. Bhalla, P.W. 6, who conducted the post-mortem of the deceased, found as many as 15 ante-mortem injuries on this person and fracture at different portions and the cause of death was due to shock and haemorrage as a result of ante-mortem injuries and the injuries suffered by the deceased were sufficient to cause death and the death could have been caused on 5.6.1981 at 77.30 P.M. Post-mortem report was prepared and signed by P.W. 6. 9. In this trial the prosecution has in all examined seven witnesses and out of them P.W.1 and 2 are witnesses of facts, PWs 3 to 5 are three police witnesses, P.W.6 is the doctor and P.W.7 proved the investigation done by S.I. Sahdev Singh and the police papers. 10. P.W. 1 Raj Bahadur and P.W. 2, Madan Lal are the witnesses of facts. They have supported the prosecution case and have categorically made allegations against the appellants of beating the deceased mercilessly and have also stated that Smt. Ramwati inflicted injuries on the deceased with a spade (phawara). Allegations have also been made against Hari Ram for inflicting injuries by spade (phawara) apart from causing Lathi injuries. 11. After closure of prosecution evidence, statement under Section 313 CrPC of the accused were recorded. The accused persons pleaded not guilty and stated that they have been falsely implicated in the case on account of enmity. 12. Trial court after hearing the learned counsel for the parties and going through the record found that the prosecution has fully succeeded in bringing home the charges against the appellants beyond reasonable doubt and vide impugned judgment and order dated 27.06.1983 convicted and sentenced the accused appellants, hence this appeal. 13. We have heard Mr. G.S. Hajela, learned counsel for the appellants and Mr. Rajiv Gupta, Mr. Rajiv Mishra, learned A.G.A. and perused the record. 14. At the very outset, Mr. G.S. Hajela, learned counsel for the appellants categorically stated that except Appellant No. 6, he does not challenge the conviction of other accused appellants namely Ram Niwas, Subhash, Ram Bilas and Kishun, Appellants No. 2, 3, 668 INDIAN LAW REPORTS ALLAHABAD SERIES 4 and 5 respectively. However, he has submitted that the appellants conviction should have been, inter alia, under Section 304 Part I IPC and not under under Section 302/149 IPC. 15. It was contended by the learned counsel for the appellants that Ramwati has been assigned the role of inflicting injuries to the deceased with phawara but there is not even a single incised wound or any such wound which may suggest that any injury was caused by phawara which shows that the accused appellant No. 7, Ramawati was falsely implicated. It is further submitted that the court below without any evidence on record has arrived at a wrong conclusion that Ramwati too had participated in causing injuries to the deceased by phawara . 16. Learned counsel for the appellant further referred to the statement of P.W. 1, Raj Bahadur to show that only during the course of incident, the accused appellant No. 7, Ramawati arrived at the spot from her house, she was not present on the spot when the incident commenced. 17. Learned AGA has not seriously objected to the submissions made by the appellant with regard to the involvement of Ramwati in the matter. In the FIR, she has been accused of inflicting injuries on the deceased by spade (phawara ). 18. So far as the motive of the incident is concerned Sri Raj Bahadur P.W.1 has stated that his brother Chhotey Lal was demanding back his money Rs.500/- from the the accused Babu Ram as he urgently required this money for boring, but Babu Ram refused. When Chhotey Lal insisted, Babu Ram got furious and annoyed and refused to return the money, then along with other coaccused he started attacking Chhotey Lal. 19. From a perusal of the post-mortem report and the material available on record, it is evident that no injury has been shown to have been caused by spade (phawara), therefore, this Court is of the opinion that Ramwati, accused-appellant No. 7 has been falsely implicated and finding of trial court regarding participation of this appellant is not supported from medical evidence, has been illegally convicted under Sections 302/149 and 148 IPC. 20. Next argument of the learned counsel for the appellants is that no offence under Section 302 IPC is made out in the matter and Section 149 IPC cannot be applied in the present matter. It was further contended that the offence made out against the accused appellants at the most can be said to be "culpable homicide not amounting to murder" and Exception 4 to section 300 IPC is applicable in the matter and maximum the punishment can be inflicted under Section 304 IPC. It was further submitted that none of the injuries caused to the deceased can be said to be fatal. No specific role has been assigned to any of the accused. He further submitted that sad demise of the deceased happened suddenly as a result of sudden quarrel, as such, it cannot be said that the accused-appellants had common object to cause the death of the deceased. 21. We have carefully considered the argument of the appellants as well as the post-mortem report, the oral evidence and other materials available on record. 4 All. Babu Ram & Ors. Vs State Of U.P. 669 22. A bare perusal of the external and internal injury caused to the deceased as described in the earlier part of the judgment clearly shows that as many as 15 ante-mortem injuries on the person of the deceased have been caused and most of the injuries have been caused on the vital part of the deceased. The internal examination further shows that frontal and parietal bone were found fractured at a number of places. The temporal bones were also found broken. Fracture of left maxulla and nasal bone was also found. Brain and membrane were torn and left scapula bone was broken. Several contusions and lacerated injuries were found all over the body of the deceased including vital part i.e. head. Looking to the entire nature of the injuries caused to the victim, it is evident that the appellants (excluding Ramawati) belaboured the deceased to death. At this juncture, it is also useful to refer to Exception 4 to Section 300 IPC; 21. Exception 4 to Section 300 IPC reads as under:- "Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." In order to invoke the applicability of Exception 4 to Section 300 IPC, the following conditions are to be satisfied namely: (i) that the incident happened without premeditation; (ii) in a sudden fight; (iii) in the heat of passion; (iv) upon a sudden quarrel and (v) without the offender having taken undue advantage or acted in a cruel or unusual manner." 23. Thus, for applying the Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. 24. In the present case, the deceased was unarmed. There is nothing on record to show that any injury or any assault whatsoever was caused by the deceased. Another most important aspect of the matter which has to be noted that according to Exception 4 to Section 300 IPC, the accused while committing the offence should not and ought not to have taken undue advantage or acted in a cruel or unusual manner. Here in the present matter, the number and nature of injuries caused to the deceased clearly indicates that the appellants (excluding Appellant No. 6, Ramwati) acted in a cruel and unusual manner and belaboured the deceased to death there and then. 670 INDIAN LAW REPORTS ALLAHABAD SERIES 25. In view of the above, it cannot be said that Exception (4) of Section 300 IPC would be applicable in the matter. 26. As far as application of Section 149 IPC is concerned, we fully agree with the findings recorded by the court below. Common object can develop even on the spot. It is the existence of the common object at the time of actual occurrence which is to be seen. The factual scenario clearly goes to show the existence of common object. None of them were curious onlookers or spectators to the macabre drama that was enacted on 5.6.81 at 7-7.30 P.M. Nature and number of injuries clearly shows that there was common object to cause death with the knowledge that the injuries caused by them could likely cause death. 27. No other contention has been made by the learned counsel for the appellants. 28. In view of the aforesaid discussions, we are of the view that the trial court has rightly held the accused Appellant No. 2, Ram Niwas, Appellant No. 3 Subhash, Appellant No. 4 Ram Bilas and Appellant No. 6 Sri Kishun guilty for the aforementioned offence committed by them and findings recorded by the trial court against the accused appellants No. 2, 3, 4, and 5 namely Ram Niwas, Subhash, Ram Bilas and Sri Kishun respectively are not liable to be interfered with. Trial court has rightly held that the prosecution has succeeded to prove the guilt of the accused appellants beyond reasonable doubt as far as Appellant No. 2, Ram Niwas, Appellant No. 3 Subhash, Appellant No. 4 Ram Bilas and Appellant No. 6 Sri Kishun are concerned, as such, the impugned judgment and order passed by the trial court is liable to be upheld and the appeal having no force is liable to be dismissed as against the Appellant No. 2, Ram Niwas, Appellant No. 3 Subhash, Appellant No. 4 Ram Bilas and Appellant No. 6 Sri Kishun. 29. So far as Appellant No. 7 Ramwati is concerned, she was responsible for her individual act and the element of common object is essentially lacking in her case as she was initially not present on the spot at the time of incident. Therefore, recourse to Sections 149 IPC is not sustainable in the instant case so far as Appellant No. 7 is concerned. The findings recorded by the trial Court regarding guilt of the appellant Ramwati is also not sustainable as the prosecution has not been able to establish the guilt of the appellant Ramwati beyond reasonable doubt. Thus, we are of the view that conviction and sentence imposed vide impugned judgment and order as against the appellant Ramwati under the aforementioned sections is liable to be set aside. 30. Thus, on the basis of foregoing discussions, we are of the considered opinion that the appeal deserves to be allowed in part and accordingly the same is partly allowed. 31. Finding of the trial Court regarding guilt of appellant Ramawait is also hereby setaside. Appellant Ramawait is acquitted from the charges under Sections under Section 148 I.P.C. and 302/149 IPC. 32. Appellant Ramawati is on bail. She need not to surrender. Her personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 4 All. Thakur @ Umendra Jogi Vs State Of U.P. 671 33. However, the Impugned judgment and order dated 14.9.1982 is hereby confirmed as against Appellant No. 2, Ram Niwas, Appellant No. 3 Subhash, Appellant No. 4 Ram Bilas and Appellant No. 6 Sri Kishun. The Appellant No. 2, Ram Niwas, Appellant No. 3 Subhash, Appellant No. 4 Ram Bilas and Appellant No. 6 Sri Kishun who are on bail. Their personal and surety bonds are cancelled and they are directed to surrender before the Chief Judicial Magistrate concerned immediately to serve out the remaining sentence imposed upon them by the trial court. In case they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard. 34. Copy of this judgment along with lower court record be sent immediately to the concerned Sessions Judge and Chief Judicial Magistrate for compliance. Compliance report be also sent to this Court. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 28.03.2016 BEFORE THE HON'BLE MRS. RANJANA PANDYA, J. Criminal Appeal No.- 1567 Of 2012 Thakur @ Umendra Jogi ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellant: Kailash Goyal,Ajay Sengar,Virendra Kumar Yadav Counsel for the Respondent: Govt.Advocate Criminal Appeal Criminal Appeal - Indian Penal Code, 1860 - Section 376 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1)(xii)- Rape - Delay in lodging F.I.R. - Explanation for delay found unnatural and improbable - Inordinate delay fatal to prosecution - Contradictions and inconsistencies in testimony of prosecutrix and witnesses - Medical evidence not supporting prosecution case - Identity of accused doubtful - Possibility of false implication due to admitted enmity - Prosecution failed to prove case beyond reasonable doubt - Conviction set aside. 1. That, though in rape cases delay in lodging the F.I.R. by itself may not be of consequence, in the present case merely asserting that police authorities were approached was not sufficient, and the explanation for delay of about six days was found unnatural and improbable, which cast a serious doubt on the prosecution case. (Paras 11-14)