# Jangaliya & Anr. (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 499
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-31
- **Case number:** Criminal Appeal No. 1212 of 1983
- **Bench:** Manoj Misra, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jangaliya-anr-in-jail-v-state-of-u-p-48805
- **Pages:** 17

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 114 - Appeal against
conviction - Abettor present when offence
is committed, Section 302 - murder , The
Code of criminal procedure, 1973 - Section
313 .

Appeal of appellant no.2 - abated - consequent
to his death - appeal of appellant no.1 survives -
accused were dismantling the water channel of
deceased - deceased intervened - On his
intervention , non surviving appellant no.2 -
elder brother of deceased - exhorted his son
(surviving appellant) to beat the deceased by
uttering "Maar Saale Ko" - FIR lodged by son
(P.W. 1) of deceased - surviving appellant no.1
administered multiple Fawra (spade) blows on
vital part of the body of the deceased - property
dispute. (Para - 17,34)

(B) Criminal Law - Indian Penal Code, 1860
- Section 299 - Culpable homicide -Whoever
causes death by doing an act with the
intention of causing death - or with the
intention of causing such bodily injury as is
likely to cause death - or with the
knowledge that he is likely by such act to
cause death - commits the offence of
culpable homicide - held - at the time of
causing injury, the inflictor of that wound had
inflicted that injury with the knowledge that he is
likely by such act would cause death - No case of
the defence that the injury no.1 was inflicted
accidentally - appellant no.1 is liable for the
offence of culpable homicide. (Para -24,25 )

(C) Criminal Law - Indian Penal Code,
1860 - Section 300 - murder - when
culpable homicide is murder - clause
''Secondly' - If it is done with the intention
of causing such bodily injury as the
offender knows to be likely to cause the
death of the person to whom the harm is
caused - clause ''Thirdly' - If it is done
with the intention of causing bodily injury
to any person and the bodily injury
intended to be inflicted is sufficient in the
ordinary course of nature to cause death -
multiple blows on head of deceased - three
incised wounds found on head region - injuries
no.2 and 3 not fatal - accused targeted a vital
part - accused had the intention of causing such
bodily injury which he knew that it is likely to
cause death of the person to whom the harm is
caused - injury no.1 reflects that the underlying
tissues, vertebrae etc were all cut through and
through - deceased had died on the spot -
appellant's act traveled from the genus of
culpable homicide to the species of murder.
(Para -26,31 )

HELD:-Prosecution successfully proved that
injuries were caused by accused appellant.
500 INDIAN LAW REPORTS ALLAHABAD SERIES
Injuries were such that would fall in clause
''Secondly' and ''Thirdly' of Section 300 IPC .
Appellant would be liable to be convicted for an
offence of murder, as has been held by the trial
court. Judgment and order of the trial court
affirmed. (Para - 48)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,779 of 58,446. This is a partial read: ask again with offset=39779 for what follows._

6 All. Jangaliya & Anr. Vs. State of U.P.
499
There appears no ground for interference in
the conviction and sentence recorded by the
trial court.

20. The convict/appellant is already in
jail, he shall serve out the sentence awarded
by the learned trial court.

21.

The
appeal
is
dismissed,
accordingly.

22. Office is directed to send a copy
of this order along with lower Court record
to the trial Court concerned for necessary
information and compliance forthwith.
----------
(2022)06ILR A499
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1212 of 1983

Jangaliya & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri P.S. Raghav, Sri Dharmendra Singhal, Sri S.I.
Jafri, Sri S.P.S. Raghav, Sri Shivendra Raj
Snghal

Counsel for the Respondent:
D.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section 114 - Appeal against
conviction - Abettor present when offence
is committed, Section 302 - murder , The
Code of criminal procedure, 1973 - Section
313 .

Appeal of appellant no.2 - abated - consequent
to his death - appeal of appellant no.1 survives -
accused were dismantling the water channel of
deceased - deceased intervened - On his
intervention , non surviving appellant no.2 -
elder brother of deceased - exhorted his son
(surviving appellant) to beat the deceased by
uttering "Maar Saale Ko" - FIR lodged by son
(P.W. 1) of deceased - surviving appellant no.1
administered multiple Fawra (spade) blows on
vital part of the body of the deceased - property
dispute. (Para - 17,34)

(B) Criminal Law - Indian Penal Code, 1860
- Section 299 - Culpable homicide -Whoever
causes death by doing an act with the
intention of causing death - or with the
intention of causing such bodily injury as is
likely to cause death - or with the
knowledge that he is likely by such act to
cause death - commits the offence of
culpable homicide - held - at the time of
causing injury, the inflictor of that wound had
inflicted that injury with the knowledge that he is
likely by such act would cause death - No case of
the defence that the injury no.1 was inflicted
accidentally - appellant no.1 is liable for the
offence of culpable homicide. (Para -24,25 )

(C) Criminal Law - Indian Penal Code,
1860 - Section 300 - murder - when
culpable homicide is murder - clause
''Secondly' - If it is done with the intention
of causing such bodily injury as the
offender knows to be likely to cause the
death of the person to whom the harm is
caused - clause ''Thirdly' - If it is done
with the intention of causing bodily injury
to any person and the bodily injury
intended to be inflicted is sufficient in the
ordinary course of nature to cause death -
multiple blows on head of deceased - three
incised wounds found on head region - injuries
no.2 and 3 not fatal - accused targeted a vital
part - accused had the intention of causing such
bodily injury which he knew that it is likely to
cause death of the person to whom the harm is
caused - injury no.1 reflects that the underlying
tissues, vertebrae etc were all cut through and
through - deceased had died on the spot -
appellant's act traveled from the genus of
culpable homicide to the species of murder.
(Para -26,31 )

HELD:-Prosecution successfully proved that
injuries were caused by accused appellant.
500 INDIAN LAW REPORTS ALLAHABAD SERIES
Injuries were such that would fall in clause
''Secondly' and ''Thirdly' of Section 300 IPC .
Appellant would be liable to be convicted for an
offence of murder, as has been held by the trial
court. Judgment and order of the trial court
affirmed. (Para - 48)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. Litta Singh Vs St. of Raj., (2015) 15 SCC 327

2. Bhagwan Munjaji Pawade Vs St. of Mah.,
(1978) 3 SCC 330

3. Surain Singh Vs St. of Punj., (2017) 5 SCC
796

4. K.M. Nanavati Vs St. of Mah., AIR 1962 SC
605

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal is against the judgment
and order dated 11.05.1983 passed by
Special Judge, Bulandshahr in S.T. No.57
of 1983 whereby, the appellant no.1
(Jangaliya) has been convicted under
Section 302 IPC and the appellant no.2
(Shiv Lal) has been convicted under
Section 302 IPC read with Section 114 IPC
and
both
have
been
sentenced
to
imprisonment for life.

2. The appeal of appellant no.2 (Shiv
Lal)
was
abated
vide
order
dated
27.11.2021 consequent to his death. This
appeal therefore survives qua appellant
no.1 (Jangaliya).

INTRODUCTORY FACTS

3. On a written report (Ex. Ka-1),
dated 25.10.1982, scribed by Sunder
Swarup (PW-2), made by Lakhpat Singh
(PW-1), son of Nanua (the deceased), the
first
information
report
(FIR)
was
registered at P.S. Shikarpur, District
Bulandshahr as Case Crime No.246 of
1982, at 19.00 hours, on 25.10.1982. The
allegation in the FIR is that informant's
chak (a consolidated piece of agricultural
holding) adjoins the chak of his uncle (Tau
- father's elder brother) Shiv Lal (appellant
no.2). Three to four months before, the
informant had installed a tube-well. The
channel of its flow passed through the chak
of his uncle (Shiv Lal). On 25.10.1982, the
informant and the deceased were working
in their chak when, at about 5 pm,
informant's uncle (Shiv Lal) and his son
(Jangaliya) (the surviving appellant no.1)
started dismantling the channel which
passed through their field. When the
deceased requested them not to dismantle
the channel, Shiv Lal abused him and
exhorted Jangaliya to beat informant's
father. On this exhortation, Jangaliya
administrated ''Fawra' (spade) blows hitting
the head of the deceased. On witnessing
this, the informant, who was at the spot,
raised alarm, as a result, Gagan Singh,
Kewal Singh came running to the spot and
witnessed the incident. By alleging that
informant's father died on the spot and
Jangaliya and Shiv Lal escaped with the
''Fawra' (spade), the FIR was lodged.

4. Ex. Ka-4) was prepared by
Investigating Officer (Mahendra SinghPW-3). On 26.10.1982 itself, blood stained
earth and plain earth was recovered from
the spot of which collection memo (Ex. Ka11) was prepared. Autopsy was conducted
by Dr. Chandra Prakash (PW-4) on
26.10.1982 at about 4.30 pm. The autopsy
report (Ex. Ka-14) notices:

External Examination

Average built body. Rigor mortis
present all over. No Sign of decomposition.
6 All. Jangaliya & Anr. Vs. State of U.P.
501

Ante-mortem injuries:-

(i) Incised wound 51⁄2" x 4" into
skull cavity deep extending from left
parietal region to left lateral neck around
left ear.

(ii) Incised wound 1" x 1⁄2" into
bone deep on left frontal head 21⁄2" above
left eyebrow.

(iii) Incised wound 2" x 1⁄2" into
scalp deep on posterior head in middle.

(iv) Incised wound 1⁄2" x 1⁄4" into
muscle deep on tip of right index finger on
ventral aspect.

Internal Examination

Skull cavity cut underneath injury
no.1. All soft tissues under injury no.1 cut
through an through upto bone depth in
neck. Membranes cut under injury no.1.
Left lateral procuses of second to fourth
cervical vertebrae cut under injury no.1.

Cause of death:- Death due to
shock and haemorrhage as a result of injury
no.1. The estimated time of death about one
day back.

5. After investigation, the appellants
were charge sheeted, vide charge sheet dated
28.11.1982
(Ex.
Ka-13).
On
which,
cognizance was taken and case was
committed to the court of session. By order
dated 01.02.1983, Jangaliya (the surviving
appellant no.1) was charged for the offence
punishable under Section 302 IPC whereas
Shiv Lal (appellant no.2) was charged for the
offence of instigating Jangaliya to commit the
murder of Nanua punishable under Section
302 read with Section 114 IPC.

6. During the course of trial, the
prosecution examined five witnesses. After
taking on record the prosecution evidence
and the statement of the accused under
Section 313 CrPC, the trial court convicted
and sentenced the appellants, as above.
Hence, this appeal.

7. Before we proceed to notice the
submissions of the learned counsel for the
parties, it would be useful to notice, in
brief, the testimony of the prosecution
witnesses.

PROSECUTION EVIDENCE

8. The prosecution examined five
witnesses. Their testimony, in brief, is as
follows:-

9. PW-1- Lakhpat Singh (the
informant). PW-1 is the son of the
deceased. He proved the incident as
narrated in the FIR noticed above. He also
stated that at the time of the incident Shiv
Lal had abused the deceased and had
exhorted Jangaliya by saying "Maar Saale
Ko". PW-1 stated that on that instigation,
Jangaliya inflicted blows with Fawra
(spade). The incident was witnessed by him
along with Sunder and Gagan. PW-1 stated
that on infliction of Fawra blows his father
died on spot. PW-1 stated that he, Gagan
and Sunder tried to catch the accused but
they ran away with the spade. PW-1 stated
that he dictated the FIR and after it was
written and read out to him, he had put his
thumb
impression.
The
report
was
exhibited as Ex. Ka-1.

During cross examination, PW1 stated that his grand father (Khamani)
had three sons, namely, Shiv Lal (appellant
no.2),
Nanua
(the
deceased)
and
Bhagwanta. All
three
have
common
holding. PW-1 stated that he never saw
Bhagwanta in his lifetime. Suggestion was
502 INDIAN LAW REPORTS ALLAHABAD SERIES
given to PW-1 that in the year 1967 from
the informant side a suit was instituted for
getting the share of Bhagwanta. In response
to the suggestion, PW-1 stated that he has
no knowledge of any such case and stated
that, in all, in the joint khata, there were 24
bighas of land; out of which, Nanua (the
deceased) had 12 bighas. PW-1 stated that
tube-well was installed 3-4 months before
the incident. PW-1 stated that before the
incident he had ploughed 3 - 4 bighas of
land. PW-1 stated that on that day
Jangaliya (the appellant no.1) was working
in his field. At the time of the incident,
Gagan and Sunder were also present in
their adjoining fields. PW-1 stated that the
incident was witnessed by him, Gagan and
Sunder but he was not aware whether any
other person witnessed the incident. He
clarified that the channel of the tube-well
was not built by him but it was a
government built channel (Sarkari Nali)
and in that channel, his tube-well's water
flowed. On further cross examination, PW1 stated that towards west of the tube-well,
he had made some constructions to derive
water from the channel, these constructions
fell in the field of Shiv Lal. When these
constructions were raised, Shiv Lal and
Jangaliya raised no dispute. PW-1 also
stated that on that day, before dismantling
the channel, there was no altercation or
fight between the informant side and the
accused side. PW-1 stated that the channel,
which was dismantled, also irrigated the
fields of Jangaliya and Shiv Lal. PW-1
stated that except for dismantling the
channel, there was no other reason for the
incident to have occurred. In respect of his
presence at the spot, PW-1 stated that when
his father (the deceased) had objected to the
dismantling of channel by Jangaliya, PW-1
was ploughing his field with a plough
(Hal). PW-1 stated that on his alarm, Gagan
and Sunder arrived at the spot. Thereafter,
they all three went to the spot where the
deceased was lying. PW-1 stated that by
the time he reached the spot, Nanua was
dead. PW-1 stated that when he left the
spot to lodge report, he had asked Gagan to
be present near the body. PW-1 stated that
he brought Sunder Singh to his house and
there he dictated the report to him.

PW-1 stated that he reached the
police station between 7-8 pm where his
report was lodged and after lodging the
report, he came back to the village. The
I.O. came later, by night. The body kept
lying at the spot over night and the police
constables also remained near the body that
night. In respect of the light condition when
the report was lodged, PW-1 stated that at
the time when the report was dictated, it
had become dark. In respect of scribing the
report, PW-1 stated that the report was
scribed because he believed that the police
personnel might insist for a written report.
PW-1 stated that prior to this, he had never
gone to the police station. PW-1 admitted
that agriculturists used to purchase water
from his tube-well and Gagan also used to
purchase water from his tube-well but
Sunder never purchased water. PW-1 stated
that the spot where the deceased was killed
is not the field of Sunder but is near the
field of Gagan whereas Sunder was
working in the field which he had taken on
Batayi and was sowing potato. In respect of
the site plan prepared by the I.O., PW-1
stated that the site plan was not prepared at
his instance but it must have been prepared
by the I.O. after spot inspection as he had
shown the spot to the I.O. and had also
shown him the field where he was working.

In respect of existence of light at
the time of the incident, PW-1 stated that at
the time when the incident occurred, the
sun had not set. In respect of the spot, he
6 All. Jangaliya & Anr. Vs. State of U.P.
503
stated that when he arrived at the spot,
Nanua was lying 2-4 paces north of the
channel. He denied the suggestion that at
the time of the incident no one was present.

10. PW-2 Sunder Swarup. He is the
scribe of the written report (Ex. Ka-1). PW2 stated that at the time of the incident, he
was in the field of Gagan. With him, Gagan
was there. At that time, he heard screams of
Lakhpat (PW-1), who was ploughing his
own field. On hearing his screams, they
saw that near the tube-well Jangaliya was
assaulting Nanua with his spade and near
Jangaliya his father Shiv Lal was there. By
the time they could reach the spot,
Jangaliya and Shiv Lal had escaped. They
checked whether Nanua was alive but he
was found dead. PW-2 stated that Lakhpat
(PW-1) dictated the report to him which
was in his handwriting.

During cross examination, he
stated that he had not informed the I.O. that
Aziz's field was on Batayi with him. PW-2
also stated that towards west of the field of
Gagan, there is his tube-well. PW-2 stated
that he had to go towards his tube-well near
which Gagan's field fell. When he was
going towards his tube-well, Gagan joined
him as it was evening time. He stated that,
by mistake, he said that he told Gagan to
come to his house. PW-2 stated that he had
informed the I.O. that when he was going
towards his tube-well, through the field of
Aziz, from a distance of 100 paces, he
watched Jangaliya assaulting the deceased.
PW-2 stated that the spot from where he
noticed the incident adjoins the field of
Lakhpat (PW-1) and at that time Lakhpat
was ploughing his field. PW-2 again
reiterated that by the time he could reach
the tube-well/spot, the accused had escaped
and he had seen them running away. PW-2
stated that by the time he had arrived at the
tube-well, the accused must have ran 100
paces. PW-2 stated that he had written the
report at the house of Lakhpat (PW-1) and
by the time he had written the report, it was
not dark but 10-15 minutes later, it had
turned dark.

In paragraph 3 of his statement,
during cross examination, PW-2 stated that
when he had left with Lakhpat to lodge the
report, at the spot, except Gagan, there was
no body else. He denied the suggestion that
he takes water from Lakhpat for the field
which is on Batayi with him. PW-2 stated
that near that field, there is tube-well of
Kanti, which is at a distance of 200-250
paces away from the field of Aziz. PW-2
also stated that he saw the I.O. next day
morning and the I.O. was seen inquiring
from people around him. PW-2 stated that
the I.O. had prepared the site plan in his
presence and in the presence of Lakhpat.
PW-2 stated that the I.O. had recorded his
statement. He denied the suggestion that he
was not at the spot and that on account of
his relations with PW-1, he is telling lies.

11. PW-3 - Mahendra Singh -
Investigating Officer. PW-3 stated that on
the date of lodging the report, he was
posted as Sub-Inspector at the police
station concerned and with him Lalta
Prasad, Head Muharrir, was posted. By
recognising the signature of Lalta Prasad,
he proved the chik FIR and the GD entry of
the written report, which were exhibited as
Ex. Ka-2 and 3 respectively. PW-3 stated
that, thereafter, he proceeded to the spot
and found the body of Nanua at the spot.
For the safety of the body, he deputed a
constable there. PW-3 stated that by the
time they could reach the spot, it was dark
therefore inquest was deferred to next day.
PW-3 stated that next day, inquest was
conducted. He proved the inquest report
504 INDIAN LAW REPORTS ALLAHABAD SERIES
and the papers prepared by him for autopsy
such as photo-nash, chalan-lash, letter to
Chief Medical Officer, etc., which were
exhibited as Ex. Ka-5 to Ka-10. He proved
the sealing of the body as also lifting of
blood stained and plain earth from the spot.
The recovery memos were exhibited and
recovered material were also produced and
exhibited. PW-3 stated that he had recorded
the statements of Lakhpat Singh (PW-1),
Gagan Singh (not examined) and Sunder
Swarup (PW-2) and had prepared the site
plan at their pointing out. The site plan was
exhibited as Ex. Ka-12. PW-3 stated that he
obtained photocopy of the autopsy report
on 28.10.1982 and made a search for the
accused. PW-3 stated that on 12.11.1982 he
recorded the statement of Head Muharrir
Lalta Prasad who had made GD entry of
the written report and on 27.11.1982, he
had recorded the statement of Shiv Lal and
on 27.11.1982 itself he had recorded the
statement of Jangaliya in jail. PW-3 stated
that after completing the investigation, he
submitted charge sheet, which was marked
as Ex. Ka-13.

During cross examination, PW-3
stated that the spot from where Lakhpat
(PW-1) had witnessed the incident is
shown by him in the site plan and that
during site inspection he had noticed that
the field had been recently ploughed. PW-3
stated that the field of Aziz would be at a
distance of 150 paces from the tube-well.
PW-3 stated that Sunder (PW-2) had no
field of his own. PW-3 stated that he left
for the spot after registration of the report
at about 7.30 pm. PW-3 stated that he
remained at the spot near the dead body till
9.30 pm to 10 pm and, in between, he had
noticed the marks on the body and had
given instructions to the constables to
protect the body. PW-3 stated that he had
not noticed any digging of the mud near the
body. PW-3 stated that near the spot there
was no tube-well of the witness Sunder
Swarup (PW-2). PW-3 stated that he made
spot inspection on the next day at 9.40 am
and the body was handed over to the
constable for autopsy at 7.15 hours. He
stated that papers in connection with
inquest and autopsy were prepared before
7.15 am. PW-3 stated that the first CD
parcha was prepared on 26.10.1982, which
was sent to the C.O. office on 27.10.1982.
PW-3 stated that there is no endorsement of
the C.O. office in respect of receipt of that
parcha. PW-3 stated that he had prepared
the site plan with the help of the informant
and the witnesses. He denied the suggestion
that at the time of preparing the site plan,
he received no help from the informant.

12. PW-4 - Dr. Chandra Prakash -
Autopsy Surgeon. He proved the autopsy
report and the injuries mentioned therein,
which have already been noticed above. On
his statement, the autopsy report was marked
as Ex. Ka-14. PW-4 also proved the clothes,
etc. of the deceased which were marked
material exhibit. He accepted the possibility
of the injuries found on the body of the
deceased as a result of Fawra (spade) blows.
He also accepted the possibility of death to
have occurred at 5 pm on 25.10.1982.

During cross examination, PW4 stated that he had received 10 papers
from the police at the time of autopsy and
those papers were received by him around
12 noon of 26.10.1982. He accepted that it
may be possible that those papers were
received earlier or later. He also accepted
the possibility of injuries found on the body
of the deceased as a consequence of heavy
sharp edged weapon.

13. PW-5- Natthu Singh- the
constable who carried the cadaver for
6 All. Jangaliya & Anr. Vs. State of U.P.
505
autopsy. PW-5 stated that he was handed
over the body for autopsy on 26.10.1982
and till the body was delivered for autopsy,
the body was kept in secured custody and
was not allowed to be touched by anyone.

During his cross examination,
PW-5 stated that the body was delivered to
him in the morning at 7.30 am. The
mortuary was 34-35 km away and they
covered the distance on a ''Tonga' and
reached the mortuary by 9.30 am. PW-5
stated
that
he
delivered
the
papers
concerning the body at around 4 pm.

14. After the prosecution had led its
evidence, the incriminating circumstances
appearing in the prosecution evidence were
put to the accused. The accused-appellant
Jangaliya pleaded that the deceased had
installed a tube-well and was drawing a
channel for selling water through the field
of accused in connection with which there
was litigation. In the litigation, the accused
had won. In connection with the dispute,
earlier also, altercations had taken place.
But, on the date of the incident there was
no altercation.

15. We have heard Sri Dharmendra
Singhal, learned Senior Counsel, assisted
by Sri Shivendra Raj Singhal, for the
surviving
appellant
no.1;
Sri
Pankaj
Saxena, learned AGA, for the State; and
have perused the record.

SUBMISSIONS ON BEHALF OF
THE APPELLANT

16. The learned counsel for the
appellant submitted that the incident
occurred late evening when the sun was
about to set. The incident occurred in an
open field, near the tube-well which was
far away from the village abadi. None was
present to witness the incident and the
prosecution story was developed against
the accused persons on ground of enmity,
as there existed a property dispute. If
Lakhpat had been present at the spot he
would have made an attempt to save his
father but since Lakhpat neither made any
attempt to save his father nor had suffered
an injury in the incident, the prosecution
story does not inspire confidence. The
presence of PW-2 at the spot is not natural
as he did not have any field adjoining the
spot and being scribe of the written report,
if his presence is not disclosed in the
written report, the possibility of him being
present at the spot is extremely doubtful.
Further, there is no recovery of the spade to
corroborate the prosecution story. In the
alternative,
learned
counsel
for
the
appellant submitted that even if the
prosecution story is accepted as correct, the
dispute was in respect of carrying water
channel through the field of accused for
selling water to others which, by itself, was
an illegal act and the accused had every
right to protect their field and if in
connection with exercise of that right there
had been an altercation or fight and there
was no exhortation to kill but only to beat,
if in that fit of rage, injury with the help of
spade was caused, the offence would not
travel beyond the one punishable under
Section 304 Part II IPC therefore, in the
worst case scenario, the appellant is not
liable to be convicted under Section 302
IPC.

SUBMISSIONS ON BEHALF OF
THE STATE

17. Per contra, learned AGA submitted
that this is a case where a prompt first
information report has been lodged. The
distance of the police station from the spot is 3
km and the written report was lodged at 19.00
506 INDIAN LAW REPORTS ALLAHABAD SERIES
hours i.e. at 7 pm in respect of an incident that
occurred at 5 pm. From the testimony of the
witnesses, it has come on record that sun had
not set by the time of the incident therefore,
there was sufficient light to witness the
incident. The presence of PW-1 was quite
natural as he was ploughing his own field and
his father (the deceased) was at his tube-well
when the assault took place. Absence of
injuries on the body of PW-1, or PW-1's
attempt to save his father, is not a good ground
to disbelieve his presence because by the time
he could arrive at the spot, his father had been
administered blows by the surviving appellant
no.1 and the surviving appellant no.1 along
with his own father (appellant no.2) had
effected his escape. It has been submitted that
the prosecution evidence appears natural and
the medical report also corroborates the oral
testimony. It has been submitted that there is
no suggestion to the prosecution witnesses that
the incident occurred at some other spot or at
some other time and there is also no
suggestion whatsoever to the prosecution
witnesses that the first information report was
ante-timed. Further, there is a suggestion to
PW-2 that he takes water from the informant
party to irrigate the field taken by PW-2 on
Batayee therefore, the argument that PW-2
had no field around is not sustainable. Hence,
PW-2's presence at the spot is also proved. It
has thus been submitted that the eye witness
account
coupled
with
surrounding
circumstances have clearly proved that the
surviving appellant no.1 administered multiple
spade blows on vital part of the body of the
deceased and therefore he was rightly
convicted for the offence punishable under
Section 302 IPC.

ANALYSIS

18.

Having
noticed
the
rival
submissions and the prosecution evidence
in detail, the following features stand out:-

(a) that, the deceased Nanua is
the brother of accused Shiv Lal (non
surviving appellant no.2) and the surviving
appellant no.1 (Jangaliya) is the son of Shiv
Lal which means appellant no.1 is the
nephew of the deceased, whereas the
informant is the son of the deceased and
nephew and cousin brother, respectively, of
the two accused, namely, Shiv Lal and
Jangaliya; (b) that, a tube-well was
established by the deceased, the water
channel of which passed through the field
of the accused in respect of which the
accused
had
raised
objection
and,
according to own statement of the accused,
in the past there had been altercations in
that regard; (c) that, according to the
explanation of the surviving appellant no.1
under Section 313 CrPC, a suit was
instituted by the deceased which was
decided in favour of the accused; (d) that,
from paragraph 7 of the judgment of the
trial court, it appears that the said suit,
which was instituted by Lakhpat (PW-1) in
the revenue court, was for partition against
Shiv Lal (non surviving appellant no.2) and
it was dismissed. In fact, this suit, as per
the observations of the trial court, was not
only against non surviving appellant Shiv
Lal but against Nanua (the father of PW-1)
also; (e) that, the witnesses were not in
close proximity to the deceased at the time
when the deceased was assaulted rather,
they reached the spot after the assault had
taken place and the accused were about to
escape, which means that the witnesses
were not in a position to intervene at the
time of the assault; (f) that, according to the
autopsy surgeon, the injuries found on the
body of the deceased could have been a
result of infliction of blows from a spade.

19. Bearing in mind the key features
noticed above, what stands out is that there
are no suggestions to the prosecution
6 All. Jangaliya & Anr. Vs. State of U.P.
507
witnesses in respect of the incident
occurring at some other time or that there
were other enemies of the deceased having
a strong motive to finish him. There is also
no challenge to the spot and of the spot
having fields of the deceased and the
accused around. Thus, if the accused were
in their field and the deceased and his son
were managing their own field the presence
of the two parties at the spot is quite
natural. According to the testimony of the
prosecution
witnesses,
the
incident
occurred at 5 pm on 25.10.1982 and by that
time the sun had not set and there was light.
The first information report was scribed
and was lodged at a police station 3 km
away at 7 pm. There is no suggestion that
the first information report was ante-timed.
Nothing has been shown to indicate that the
police was in collusion with the informant
and being in collusion with the informant,
the first information report was ante-timed.
In
these
circumstances,
the
first
information report is prompt and therefore
it can be taken that there was no time for
the informant to contrive the prosecution
story.

20. In the aforesaid background when
we notice the testimony of PW-1 (the son
of the deceased), we find that according to
him at the time of the incident his father
had arrived at the spot upon noticing that
the water channel was being dismantled by
the accused. When the deceased intervened
and objected to dismantling of the water
channel, Shiv Lal (non surviving appellant
no.2) exhorted his son (the surviving
appellant no.1) to beat the deceased Nanua
by stating "Maaro Saale Ko". On this
exhortation, spade blows were inflicted by
the surviving appellant no.1. Noticing this,
PW-1, who was ploughing his field at a
short distance, raised an alarm and ran
towards the spot. By the time he could
reach, the fatal blows had been inflicted
and the accused had escaped. The presence
of PW-1 at the spot does not appear
doubtful and is rather proved by the
circumstance that the investigating officer,
during the course of investigation, at the
time of spot inspection, noticed that the
field had been ploughed. Thus, by keeping
in mind that the medical evidence has
accepted the possibility of the injuries
sustained by the deceased as a consequence
of spade blows and had also accepted the
possibility of death to have occurred at or
about the time put by the eye witness
account, in our view, it has been proved
beyond reasonable doubt that the deceased
died due to infliction of spade blows by the
surviving appellant no.1 (Jangaliya). At this
stage, we may notice that there is no
suggestion to the prosecution witnesses that
the deceased had other enemies who could
have been a cause of his murder. There is
also no suggestion to the prosecution
witnesses that PW-1 himself was interested
in finishing off the deceased for some
reason. Thus, for all the reasons mentioned
above, we do not find a good ground to
disbelieve the ocular account rendered by
PW-1. The testimony of PW-1 is clear and
is consistent throughout in respect of the
time, place and the manner in which the
incident occurred, which is corroborated by
medical evidence as well as the material
collected during investigation.

21. In so far as the PW-2 is concerned,
he claims to have been there as he had the
field of Aziz on ''Batayee' from where he
arrived at the spot with Gagan. Gagan has
not been examined as prosecution witness
and from the statement of PW-2 it appears
that he arrived at the spot when the accused
had already escaped and were away from
the spot by quite a distance (100 paces).
Most importantly, even though the written
508 INDIAN LAW REPORTS ALLAHABAD SERIES
report is stated to have been scribed by
PW-2 but his presence as a witness of the
incident is not shown in the first
information report. In these circumstances,
it appears to us that PW-2 may have arrived
at the spot on hearing alarms raised by PW1
and,
therefore,
it
would
not
be
appropriate for us to rely on his statement
as an eye witness of the incident.
Nevertheless, the statement of PW-2 serves
as a corroborative material to prove that
PW-1 had promptly taken his help to scribe
the written report to lodge the first
information report in respect of the
incident. Thus, the testimony of PW-2
supports the prosecution case to prove that
the incident occurred on or about 5 pm and
that the report was promptly lodged.

22. As we have found the testimony
of PW-1 wholly reliable and corroborated
by surrounding circumstances including the
material collected during the course of
investigation, we affirm the findings
returned by the trial court that the deceased
died due to infliction of spade blows by the
surviving appellant no.1 (Jangaliya).

23. Now, the question that arises for
our consideration is whether the accused
appellant no.1 Jangaliya is liable to be
convicted for the offence punishable under
Section 302 IPC or under Section 304 Part
I or Section 304 Part II of the Indian Penal
Code. The other question that arises for our
consideration is that if we find the appellant
not liable to be convicted under Section
302 IPC but under Section 304 Part I or
Section 304 Part II, then what would be the
appropriate sentence.

24. To appropriately address the
above issue, we have to first examine as to
when culpable homicide would amount to a
murder. Before that we have to examine as
to when a person commits the offence of
culpable homicide. In that regard, Section
299 IPC provides as follows:-

"Culpable homicide.--Whoever
causes death by doing an act with the
intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the
knowledge that he is likely by such act to
cause death, commits the offence of
culpable homicide."

25. In the instant case, there are four
external injuries found on the body of the
deceased. Injuries no.2 and 3 though are on
vital part but there appears no underlying
fracture to those injuries. Injury no.2 is
bone deep and injury no.3 is scalp deep.
Injury no.4 is on non vital part, namely,
index finger and is muscle deep. The fatal
injury is injury no.1. Injury no.1 is skull
cavity deep extending from left parietal
region to left lateral neck around left ear.
Underlying the injury no.1, all soft tissues
are cut through and through upto bone
depth in neck. Membranes are cut, brain cut
and second and fourth cervical vertebrae
cut. In these circumstances, it can be said
that at the time of causing that injury, the
inflictor of that wound had inflicted that
injury with the knowledge that he is likely
by such act would cause death. Notably,
there is no case of the defence that the
injury no.1 was inflicted accidentally.
Therefore, by all means, the appellant no.1
is liable for the offence of culpable
homicide.

26. As to whether he is liable for the
offence of murder, we have to examine the
provisions of Section 300 IPC to find out as
to when a culpable homicide is murder.
Section 300 IPC, without exceptions, reads
as follows:-
6 All. Jangaliya & Anr. Vs. State of U.P.
509

"300. Murder.--Except in the
cases
hereinafter
excepted,
culpable
homicide is murder, if the act by which the
death is caused is done with the intention of
causing death, or--

(Secondly) --If it is done with the
intention of causing such bodily injury as
the offender knows to be likely to cause the
death of the person to whom the harm is
caused, or--

(Thirdly) --If it is done with the
intention of causing bodily injury to any
person and the bodily injury intended to be
inflicted is sufficient in the ordinary course
of nature to cause death, or--

(Fourthly) --If the person committing
the act knows that it is so imminently
dangerous that it must, in all probability,
cause death or such bodily injury as is
likely to cause death, and commits such act
without any excuse for incurring the risk of
causing death or such injury as aforesaid."

27. In the instant case, the argument
of the learned counsel for the appellant is
that the surviving appellant no.1 is a
rustic villager. At the time of the
incident, he was with his father (Shiv
Lal-non surviving appellant no.2) in his
own field and was with a spade, which is
a common agricultural implement. Spade
by its nature is not a weapon of assault
but
can
be
converted
into
one.
Admittedly, according to the prosecution
case, the deceased had set up a tube-well,
water channel of which flowed through
the field of the accused, as a consequence
of which, the accused were annoyed and
were raising objection and in the past
also, there had been altercation. It is
argued on behalf of the appellant that no
one has a right to draw a water channel
from another's field and therefore if the
owner protects his interest and seeks to
dismantle that water channel, his action is
in furtherance of exercise of his right to
property and that, by itself, is no offence.
The intervention by the deceased in that
exercise of right had evoked a strong
reaction, leading a person to lose his self
control and, therefore, if, as a result of
which, blows were inflicted in that spur
of the moment, it cannot be said that the
blows were inflicted with an intention of
causing death. Hence, it would not be a
case of murder. It was argued that if it is
assumed, from the nature of the injuries
caused, that the injuries inflicted were
such that they, in all probability, would
have caused death then the case of the
appellant would be covered by the
exceptions to Section 300 of the IPC.

28. To appropriately test the
aforesaid submissions, it would be useful
to extract the exceptions to Section 300
IPC. These are extracted below:-

"Exception 1.--When culpable
homicide
is
not
murder.--Culpable
homicide is not murder if the offender,
whilst deprived of the power of self-control
by grave and sudden provocation, causes
the death of the person who gave the
provocation or causes the death of any
other person by mistake or accident.

The above exception is subject to
the following provisos:

First.- That the provocation is not
sought or voluntarily provoked by the
offender as an excuse for killing or doing
harm to any person.

Secondly.- That the provocation
is not given by anything done in obedience
to the law, or by a public servant in the
510 INDIAN LAW REPORTS ALLAHABAD SERIES
lawful exercise of the powers of such public
servant.

Thirdly.- That the provocation is
not given by anything done in the lawful
exercise of the right of private defence.

Explanation.--Whether
the
provocation was grave and sudden enough
to prevent the offence from amounting to
murder is a question of fact.

Exception 2.--Culpable homicide
is not murder if the offender, in the exercise
in good faith of the right of private defence
of person or property, exceeds the power
given to him by law and causes the death of
the person against whom he is exercising
such
right
of
defence
without
premeditation, and without any intention of
doing more harm than is necessary for the
purpose of such defence.

Exception 3.--Culpable homicide
is not murder if the offender, being a public
servant or aiding a public servant acting for
the advancement of public justice, exceeds
the powers given to him by law, and causes
death by doing an act which he, in good
faith, believes to be lawful and necessary
for the due discharge of his duty as such
public servant and without ill-will towards
the person whose death is caused.

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.

Explanation.--It is immaterial in
such cases which party offers the provocation
or commits the first assault.

Exception 5.--Culpable homicide is
not murder when the person whose death is
caused, being above the age of eighteen
years, suffers death or takes the risk of death
with his own consent."

29. The learned counsel for the
appellant submits that the case of the
appellant would fall in any one or more of the
following Exceptions, namely, Exception-1,
Exception-2 and Exception-4.

30.