# Natthu Singh v. State of U.P. 424 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 12 ILRA 423
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-20
- **Case number:** Criminal Appeal No. 4793 of 2019
- **Bench:** Ashwani Kumar Mishra, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/natthu-singh-v-state-of-u-p-424-indian-law-reports-allahabad-series-51217
- **Pages:** 15

## Headnote

Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Sections 302, 147, 148, 149, 307, 325 &
452 - Code of Criminal Procedure, 1973 -
Section 437-A - Bail to require accused to
appear before next Appellate Court -
Culpable Homicide Not Amounting to
Murder - Common Intention - Sudden
provocation - fatal injury - severe beating
-
solitary
fatal
injury
-
A
sudden
provocation arising from a perceived
interference with property rights does not
amount to murder under Section 302 IPC
but instead falls under culpable homicide
not amounting to murder under Section
304 (Part I) IPC - When injuries inflicted
without premeditated intention result in
death, the act is classified under Section
304 (Part I), as the intent was to cause
grievous harm rather than death.(Para -
33,34,36,38)

(B)
Distinction
between
Murder
and
Culpable Homicide not amounting to
Murder: - In cases of sudden provocation or
heat of the moment incidents, if the intent to kill
is not clearly established, the offense may fall
under Section 304 IPC rather than Section 302
IPC. (Para - 33,34,36,38)

Case involved a dispute over a plot of land -
Appellants,
armed
with
various
weapons,
assaulted the deceased - resulting in fatal
injuries to his head - Incident arose suddenly
when the deceased was carrying bricks -
perceived by the accused as an encroachment
on disputed property - Injuries were also
sustained by other family members. (Paras 18, 32-36)

HELD: - Evidence not appreciated in correct
perspective. Possibility of incident occurring at
the spur of the moment on account of perceived
threat to the property of accused has been
overlooked. Findings and conclusions drawn by
trial court, modified. Act of accused (Malkhan)
causing fatal injury on the head would qualify to
be an offence under Section 304 (Part-I) IPC.
Conviction of accused converted from Section
302 IPC to Section 304 (Part-I) IPC. Three other
appellants were convicted under Section 325
IPC and released based on sentence already
undergone. (Para - 39,40,41)

Appeals partly allowed. (E-7)

List of Cases cited:

Shri Kishan & ors. Vs St. of U.P., AIR 1972 SC
2056

## Text

_Characters 0–39,787 of 47,109. This is a partial read: ask again with offset=39787 for what follows._

12 All. Nathhu Singh Vs. State of U.P.
423
account of old animosity Lilu PW-2 has given
false evidence against the accused appellant. It
has also been argued that the evidence
adduced by the defence also gets the same
weight as the prosecution evidence. Reliance
has been placed on a decision of the Apex
Court in Munshi Prasad vs. State of Bihar,
(2002) 1 SCC 351. Hence, in the entire facts
and circumstances of the case, the evidence
adduced by the defence helps the accused
appellant.

55. On the basis of the aforesaid
discussion, we are of the considered view that
the prosecution has miserably failed to prove
its case beyond reasonable doubt. Learned
trial court though discussed several factors
relating to the case but has not scrutinized
and appreciated the evidence on record in
proper and legal manner and thereby, has
accorded a perverse finding of conviction.
The chain of the circumstances is never
complete, which was essential to record a
conviction of an accused in a case based on
circumstantial evidence. All the material
circumstances,
like
last
seen,
motive,
recovery of kidnapped boy have not been
proved for want of cogent and reliable
evidence. The evidence rendered by the
prosecution is shaky and not trustworthy. The
medical evidence also is of no help to the
prosecution. All these lacunas denude the
prosecution case and in the aforesaid legal
and factual scenario, we have no option but to
set-aside the impugned judgment and order
and to record acquittal of the appellant.

56. Recently, in Ravi Sharma Vs. State
(NCT of Delhi), (2022) 8 SCC 536, where in
the circumstances of the case, the Hon'ble
Supreme Court found the last seen theory not
to be true, motive was not proved, recovery
of
firearm
was
doubtful,
material
contradictions found in the evidence rendered
and no sufficient link to come to the
irresistible conclusion pointing guilt only to
appellant, it was reiterated that mere
suspicion, howsoever strong it may be,
cannot be a substitute for acceptable
evidence. In the peculiar circumstances of the
present case, the aforesaid theory applies to
this case as well.

57. Hence, the impugned judgment
and order of conviction and sentence,
which has been sought to be assailed, calls
for and deserves interference. The criminal
appeal is liable to be allowed and the same
is, accordingly, allowed.

58. The impugned judgement and
order dated 16.4.2012 is, accordingly, set
aside. The convict-appellant Sattar is
accordingly found not guilty for the offence
punishable under Section 363, 302 and 201
IPC. He is acquitted from all the charges.
Convict-appellant is on bail. He need not
surrender, his bail bonds are cancelled and
sureties are discharged.

59. Let a copy of this judgment along
with trial court record be sent to the
Sessions
Judge,
Muzaffarnagar
for
necessary compliance.
----------
(2024) 12 ILRA 423
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4793 of 2019
With
Other Connected Cases

Natthu Singh ...Appellant
Versus
State of U.P. ...Respondent
424 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Lav
Srivastava,
Rajan
Srivastava,
Sr.
Advocate

Counsel for the Respondent:
G.A.

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Sections 302, 147, 148, 149, 307, 325 &
452 - Code of Criminal Procedure, 1973 -
Section 437-A - Bail to require accused to
appear before next Appellate Court -
Culpable Homicide Not Amounting to
Murder - Common Intention - Sudden
provocation - fatal injury - severe beating
-
solitary
fatal
injury
-
A
sudden
provocation arising from a perceived
interference with property rights does not
amount to murder under Section 302 IPC
but instead falls under culpable homicide
not amounting to murder under Section
304 (Part I) IPC - When injuries inflicted
without premeditated intention result in
death, the act is classified under Section
304 (Part I), as the intent was to cause
grievous harm rather than death.(Para -
33,34,36,38)

(B)
Distinction
between
Murder
and
Culpable Homicide not amounting to
Murder: - In cases of sudden provocation or
heat of the moment incidents, if the intent to kill
is not clearly established, the offense may fall
under Section 304 IPC rather than Section 302
IPC. (Para - 33,34,36,38)

Case involved a dispute over a plot of land -
Appellants,
armed
with
various
weapons,
assaulted the deceased - resulting in fatal
injuries to his head - Incident arose suddenly
when the deceased was carrying bricks -
perceived by the accused as an encroachment
on disputed property - Injuries were also
sustained by other family members. (Paras 18, 32-36)

HELD: - Evidence not appreciated in correct
perspective. Possibility of incident occurring at
the spur of the moment on account of perceived
threat to the property of accused has been
overlooked. Findings and conclusions drawn by
trial court, modified. Act of accused (Malkhan)
causing fatal injury on the head would qualify to
be an offence under Section 304 (Part-I) IPC.
Conviction of accused converted from Section
302 IPC to Section 304 (Part-I) IPC. Three other
appellants were convicted under Section 325
IPC and released based on sentence already
undergone. (Para - 39,40,41)

Appeals partly allowed. (E-7)

List of Cases cited:

Shri Kishan & ors. Vs St. of U.P., AIR 1972 SC
2056

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. These appeals arise out of the
judgment and order of conviction and
sentence dated 1.6.2019, passed by the
Additional Sessions Judge, Anoopshahar,
Bulandshahar in Sessions Trial No.647 of
2006 (CNR No. UPBU07000005-2006),
State Vs. Natthu Singh and others, arising
out of Case Crime No.35 of 2006, Police
Station Naraura, District Bulandshahar,
whereby the accused appellants Natthu
Singh, and Ramveer have been convicted
and sentenced to two years rigorous
imprisonment under Section 147 IPC; ten
years rigorous imprisonment alongwith fine
of Rs.10,000/- each under Section 307/149
IPC; rigorous life imprisonment alongwith
fine of Rs.25,000/- each under Section
302/149 IPC, whereas accused appellant
Raju has been convicted and sentenced to
two years rigorous imprisonment under
Section 147 IPC; ten years rigorous
imprisonment
along
with
fine
of
Rs.10,000/- under Section 307/149 IPC;
rigorous life imprisonment alongwith fine
of Rs.25,000/- under Section 302/149 IPC;
five years rigorous imprisonment alongwith
fine of Rs.2,000/- under Section 452 IPC,
and accused appellant Malkhan has been
12 All. Nathhu Singh Vs. State of U.P.
425
convicted and sentenced to three years
rigorous imprisonment under Section 148
IPC; ten years rigorous imprisonment along
with fine of Rs.10,000/- under Section
307/149 IPC; rigorous life imprisonment
alongwith fine of Rs.25,000/- under Section
302/149 IPC. On failure to deposit fine to
undergo additional simple imprisonment
for six months under Section 307/149 IPC;
for one year under Section 302/149 IPC;
and for one month under Section 452 IPC.
All the sentences have been ordered to run
concurrently.

2. There existed a disputed piece of
land on the west of the house of the
informant. The dispute was between him
and Natthu Singh son of Bihari Singh. For
this
reason
Natthu
Singh
allegedly
maintained enmity against the informant.
The incident in the present cases occurred
on 1.8.2006 at about 9.00 in the morning
when
the
informant's
son
Hetram
(deceased) was carrying bricks lying in
front of the house for construction of a
fence on the roof. It was then that the
accused Natthu Singh, Malkhan Singh,
Ramveer and Raju sons of Bihari Singh and
Devendra @ Bhola son of Natthu Singh,
Omvir son of Malkhan Singh, Bholeram
son of Hotiram came to the house of the
informant. Natthu was carrying a water tap
handle (Nal Ka Hattha); Ramveer an iron
rod; Raju a stick; Malkhan a rifle;
Devendra a countrymade pistol; Omvir a
stick and Bholeram an iron rod. As soon as
the accused came to the house of the
informant, they exhorted that let the issue
be finished once for all, and thereafter these
accused
assaulted
informant's
son.
Malkhan tried to fire from his rifle but for
some glitch it failed, despite couple of
attempts, whereafter with the butt of his
rifle and others with weapon in their hand
started assaulting the informant's son and
other family members. The informant was
having his breakfast as he had to go to
school and on hearing the screams of his
son Hetram, the informant alongwith his
son Digamber and wife of Hetram namely
Neksee rushed out and saw that all accused
were assaulting Hetram. In the attempt to
save Hetram, informant's son Digamber,
informant himself, wife of Hetram Neksee
sustained injuries. On hearing the scream of
these persons Nepal Singh and Dileep
alongwith others came and but for their
intervention everyone would have been
done to death. Seeing these persons coming
for rescue, accused Devendra fired from his
Tamancha in air. Informant's daughter,
who Sarvesh was inside the house was also
beaten
in
the
house.
Thinking
that
informant's son Hetram has died, Malkhan
told Devendra not to fire and the accused
left. With these contents the FIR came to be
lodged on 2.4.2006 at 3.10 pm on the basis
of written report of informant as Case
Crime No.35 of 2006, under Sections 147,
148, 149, 307/34, 452, 323, 504 IPC. After
the lodging of the report the Investigating
Officer came to the spot and collected plain
and bloodstained soil from the place of
occurrence on the date of incident itself.

3. All the injured namely Digamber,
Neksee, informant Nand Kishore and
Hetram, who later died, were rushed to the
nearest hospital at Naraura. The first
examination of injuries by the Medical
Superintendent, NAPS, Naraura, contains
following specification of injuries:-

"1. Het Ram

Multiple deep lacerated wound
over scalp.

I) 4-5 inches on right parietal
region

II)
2-3
inches
left
parieto
occipital region
426 INDIAN LAW REPORTS ALLAHABAD SERIES

III) Bleeding from both nostrils

Bleeding from both ears and
multiple abrasion over body

Patient
was
unconscious
responding to deep painful stimuli

Patient was in state of shock
pulse feeble BP-not recordable

Haematoma left temporal right
occipital region

2. Nand Kishore

3-4 inches lacerated would over
scalp

Multiple abrasion over body

3. Digambar

Multiple lacerated wound over
scalp

4-5 inches L.W. over occipital
region

1-2 inches L.W. over occipital
parietal region

4. Nekshree

2-3 inches lacerated wound over
(scalp) parieto occipital region

1 inches lacerated wound over
chin"

4. The informant's son Hetram and
other injured were then taken to the J.N.
Hospital at Aligarh Muslim Universtiy
wherein their injuries were examined again.
The injury reports in respect of Hetram,
Digamber, Nekshiya and Nand Kishore of
the Hospital at Aligarh are on record, as per
which following injuries were found:-

"(1) Name:- Het Ram
Nature
of
injury
Dime
nsion
of
Injury
Part
of
the
body
inflic
ted
Simple/G
revious
Prob
able
wea
pon
used
1. Two
stitche
d
4 cm
long
&
3
Left
parie
tal
Simple
Blun
t
wound
lying
side by
side
cm
long
regio
n of
skull
2. Two
stitche
d
wound
present
side by
side
5 cm
long
&
3
cm
long
Left
parie
to
occi
pital
regio
n
Simple
3.
CNS
patient
is
deeply
uncons
cious
not
respon
ding to
painful
stimuli
pupil
bilater
ally
dilated
with
sluggis
h
reactio
n
to
light

Grie
vous

(2) Name:- Digamber Singh
Natur
e
of
injury
Dime
nsion
of
Injury
Part
of
the
body
infli
cted
Simple/G
revious
Prob
able
weap
on
used
1.
Stitch
ed
woun
2 cm
long
Top
of
head
Simple
12 All. Nathhu Singh Vs. State of U.P.
427
d
2.
Stitch
ed
woun
d
Occipi
tal
region
of
head
4 cm
long
Simple

3.
Lacer
ated
woun
d red
margi
n
4 cm
x
.5
cm
skin
deep
Littl
e
fing
er of
left
hand
Simple
Blun
t
4.
Swelli
ng
with
tender
ness
with
abnor
mal
mobil
ity
with
bony
crepit
us at
base
of
middl
e
phaly
nx of
left
thumb
sugge
stive
of
fractu
re

Grevious
Blun
t
(3) Name:- Neksee Devi
Natur
e of
injur
Dimen
sion of
Injury
Part
of
the
Simple/Gr
evious
Prob
able
weap
y
body
inflic
ted
on
used
1.
Stitc
hed
woun
d
3 cm
long
Fron
tal
area
of
head
Simple

2.
Abra
sion
with
red
base
3 cm x
2 cm
Righ
t
shou
lder
Simple

(4) Name:- Nand Kishore
Natur
e of
injur
y
Dimen
sion of
Injury
Part
of
the
body
infli
cted
Simple/Gr
evious
Prob
able
weap
on
used
1.
Stitc
hed
woun
d
3 cm
long
Righ
t
parie
tal
regio
n
Simple

2.
Stitc
hed
woun
d
5 cm
long
Left
parie
tal
regio
n
Simple

3.
Abra
sion
with
red
base
2 cm x
1 cm
Righ
t
knee
Simple
Blunt
4.
Abra
sion
with
red
base
12 cm
x 6 cm
Left
side
of
chest
Simple
Blunt
"
428 INDIAN LAW REPORTS ALLAHABAD SERIES

5. It appears that Hetram was later taken
to Safdarjung Hospital at New Delhi where
he ultimately died at 12.00 noon on 2.4.2006.
Inquest was conducted on 2.4.2006 at the
hospital itself, which is duly exhibited during
trial as Ex.Ka-7. The apparent cause of death
as per inquest was the head injury caused by
iron rod. The postmortem of deceased
Hetram
was
conducted
in
Safdarjung
Hospital, in which following injuries were
noticed in the external examination and the
internal examination:-

"External Examination

(1) Lacerated wound (LW) - over
midline, in anterior part, 3 x 1 cm size bone
deep.

(2) LW- over right side of the
head, 4 x 1 cm, stitches present, 3 cm above
right ear bone deep, obliquely present.

(3) LW- over right side of head, 3
x 1 cm in size, stitches present, 2.5 cm
behind injury no.2, obliquely present.

(4) LW- over midline, 3.5 x 1 cm
size, stitches present, in back part of head,
6 cm behind injury no.1, bone deep.

(5) LW- over left side of front of
head, inverted V in shape, 5 cm x 3 cm in
size, stitches present, bone deep.

(6) left eyelids blue black.

(7) abrasion over bridge of nose,
(1 cm size ) and left maxilla (1 cm size ),
both scabbed.

(8) abrasion over back of Right
elbow, 3 x 2 cm, scabbed.

(9) Bruise - over right forearm,
lower part, back side, 9 x 3 cm size,
vertical, blue red in colour.

(10) bruise mixed with abrasion,
right side of back, lower part, 7 x 3 cm,
blue red colour, obliquely present.

(11) Bruise over right thigh, outer
part, 7 x 3 cm size, blue red in colour,
horizontally placed in middle part.

(12) Bruise over right thigh, outer
part, 5 x 3 cm size, blue red in colour,
horizontally placed in middle part, 3 cm
below injury no 11.

Internal Examination

1- Head - scalp- contused,
lacerated below injuries no. 1 to 5

Skull- fracture separation of all
sutures, fracture left temporal, parietal and
frontal bones piece separated and present
in place.

Brain- extradural haematoma in
left anterior region

- duramater lacerated below
fractured skull piece

-subdural haematoma over left
superior and side(lateral) surfaces

- left temporal, parietal and
frontal lobes contused and lacerated with
subarachnoid haemorrhages.

2. Neck- All structures - NAD
(No abnormality detected)

thorax - ribs+ lungs - NAD

Abdomen - stomach - 100 ml
medicinal fluid present

Organs- NAD,

Rectum and bladder empty."

6. Injury no.5 i.e. lacerated wound on
the left side of front of head has been
treated to be fatal and sufficient to cause
death in the ordinary course of nature.

7. The investigation followed with the
arrest of the accused persons. Recovery of
weapons used in the crime was made by the
Investigating Officer. The water tap handle
(Nal Ka Hattha) containing mud without
any bloodstain was recovered on the
pointing out of the accused Natthu,
whereafter on the pointing out of the
accused Raju, a stick of Mulberry (Sehtoot
Ka Danda) was recovered on which there
were bloodstains and some hairs (Ex.Ka14). On the pointing out of the Bholaram,
12 All. Nathhu Singh Vs. State of U.P.
429
an iron rod was recovered on 5.4.2006.
Similarly on 19.4.2006 an iron rod was
recovered on the pointing out of the
accused Ramveer, which was admitted by
the accused to have been used in the
offence.
On
21.4.2006
a
stick
was
recovered from the accused Omvir.

8. The investigation proceeded with
submission of chargesheet against the
accused under Section 147, 148, 149, 307,
302, 452, 323, 34 IPC. The cognizance on
the chargesheet was taken and the case was
committed to the court of sessions, where it
got registered as Session Trial No.647 of
2006. Charges were framed against the
accused on 5.9.2008 and were read out to
the accused, who denied their implication
and demanded trial.

9.
During
the
course
of
trial,
documentary evidence are adduced by the
prosecution in the form of FIR as Ex.Ka-9;
written report as Ex.Ka-1; recovery of item
used in the crime as Ex.Ka-14; recovery
memo of bloodstained and plain soil as
Ex.Ka-13; recovery memo of a piece of rod
iron as Ex.Ka16; recovery memo of murder
weapon
bloodstained
wooden
stick
Shehtoot as Ex.Ka17; recovery memo of
items used in crime as Ex.Ka 21; injury
reports dated 1.4.2006 as Ex.Ka-3, Ex.Ka4, Ex.Ka-5, Ex.Ka-6, and Ex.Ka-23;
postmortem report as Ex.Ka-2; death report
as Ex.Ka-7; chargesheet as Ex.Ka-20; site
plan with index as Ex.Ka-12; site plan with
index as Ex.Ka-18; and site plan with Index
as Ex.Ka-19.

10.
In
addition
to
above,
the
prosecution has produced the informant as
PW-1, who has supported the prosecution
case. He has stated that the accused persons
were all residents of his village. The
accused Raju is the co-brother of the
informant's deceased son Hetram. There
existed a plot of land, over which he had a
dispute with Natthu Singh. The dispute was
got resolved with the intervention of family
members, according to which Rs.45,000/-
was to be paid by the informant to the
accused Natthu. However, Natthu was not
ready to accept this amount, on account of
which he (Natthu) maintained enmity. On
1.4.2006 at about 9.00 in the morning,
Hetram (deceased) was carrying bricks
lying outside the house of informant to the
roof for raising a fence when accused
persons came armed with a water tap
handle (Nal Ka Hattha), iron rod, stick,
rifle, countrymade pistol, stick and iron
rod. On hearing the shouts of Hetram, the
informant alongwith his younger son
Digamber and Hetram's wife Nekshiya
came out and saw the accused persons
assaulting Hetram. Malkhan tried to fire
from his rifle but did not succeed,
whereafter he assaulted Hetram with rifle
butt. Other accused assaulted the deceased
with sticks and iron rods. In the attempt to
save his son, informant alongwith his
younger son and daughter-in-law also
sustained
injuries.
The
accused
then
entered the house of the informant and also
assaulted his daughter Sarvesh. Thereafter
Nepal and Dulli came at the spot. Devendra
then fired in the air from his Tamancha.
Nepal and Dulli retracted on account of
firing by Devendra. Treating Hetram to
have died, the accused left. The informant,
Digamber, Hetram, Neksee and Sarvesh all
sustained injuries and were rushed to
NAPS Hospital at Naraura, whereafter they
were referred to the District Hospital at
Aligarh. Considering the serious condition
of Hetram he was referred to Delhi.
Informant has proved the written report,
which was got scribed by Puran Singh on
2.4.2006. On 3.4.2006 informant came to
know that his son has died in Delhi and the
430 INDIAN LAW REPORTS ALLAHABAD SERIES
written report in that regard was made at
the police station. This written report is
Ex.Ka-2.

11.
Informant
has
been
crossexamined by the accused and he has been
questioned on the relationship between the
parties and also the dispute of land.
Informant has denied that his son Hetram
was a criminal. However, he admitted that
Hetram had remained in jail for two months
for an offence under Section 376 IPC. He
denied the fact that Hetram was implicated
under the Gangsters Act or that there were
other cases against him. Informant's son
Digamber also has criminal record and was
sent to jail after the incident in an offence
under Section 307 IPC and is mostly
lodged in jail. The informant has denied the
suggestion that police station fell on his
way to the hospital from the place of
incident. The police station is at a distance
of about one and a half furlong, whereas
the hospital is at about two furlongs. He has
also stated that he was unconscious in the
hospital at Aligarh. The hospital where
informant alongwith others were first taken
for treatment was not open to public and a
suggestion has been given to him that
Kunwar Sen since was working in that
hospital, who happens to be his cousin, that
is why they got themselves examined in
this hospital. The informant (PW-1) has
stated that about 3000 bricks were lying in
front of his house. His son Hetram had
already carried 50-100 bricks on the roof
while other bricks were lying there. He has
denied the suggestion that any dispute
occurred on account of bricks. He has,
however, not shown the bricks lying in
front of his house to the Investigating
Officer. He has denied the suggestion that
no bricks were found in front of the house
and his son was not carrying the bricks on
the roof.

12. PW-1 has moreover admitted that
there existed a boundary around the
disputed plot. He has nevertheless denied
the suggestion that about 6000 bricks were
kept in that plot and that he wanted to grab
it. Informant alleged that the disputed plot
belonged to him. In the panchayat it was
agreed that Rs.45,000/- would be paid by
informant to Natthu but Natthu was not
willing to take that amount. He has,
however, not mentioned the liability to pay
Rs.45,000/- in the report. He has also
denied the suggestion that on account of
harassment and torture meted out by his
son Hetram to several persons in the
locality, someone else has caused the
incident.

13. Digamber Singh (PW-2), son of
the informant, is the other prosecution
witness. He has supported the prosecution
case about a dispute subsisting in respect of
open piece of land with Natthu. He too
admits that the villagers had got the dispute
resolved and they had to pay Rs.45,000/- to
Natthu but he was demanding Rs.60,000/-,
on account of which enmity occurred. PW2 has substantially followed the stand of
PW-1 about the manner in which the
incident occurred. He has stated that
Malkhan assaulted him and his brother with
the rifle butt. Others assaulted them with
weapon in their hand. In his further crossexamination PW-2 has admitted that he has
not shown the place to police where the
bricks were lying in front of the house. He
could not tell as to how many bricks were
lying in front of the house. He could not
even guess the number of bricks lying
there. He has, however, denied the
suggestion that in fact no bricks were lying
in front of the house. He claims that after
the incident he fainted and only regained
consciousness in the hospital at Aligarh
during night. He could offer no explanation
12 All. Nathhu Singh Vs. State of U.P.
431
as to why no report was lodged, though the
police chowki was on the way.

14. PW-3 is Dr. Sarvesh Tandon of
Safdarjung Hospital, who has proved the
postmortem report. In his opinion, the
cause of death was head injury, which
could have been caused by a hard and blunt
object. In the cross-examination he has
stated that injuries on the deceased could
have been caused by stick and iron rod. It
could not have been caused by rifle butt or
Sariya. Fatal injury could have been caused
by the water tap (Nal Ka Hattha). He has,
however,
stated
later
in
his
crossexamination that rifle butt is heavy and
injury on the head could have been caused
by it. Cause of death was specified as
cramio cerebral damage.

15. PW-4 is Dr. Nazim Alam, who
was posted at J.N. Medical College,
Aligarh and has proved the injury report.
PW-5 is ASI P.D. Meena, who was posted
at Sarojani Nagar at Delhi. He has proved
the inquest report. PW-6 is S.I. Vinod
Kumar Singh, who has proved the GD
entry made at 3.10 pm on 2.4.2006. PW-7
is SI Madan Mohan Pandey, who was the
first Investigating Officer in the case. He
collected the bloodstained and plain earth
and has proved the recovery memo in that
regard. He has inspected the place of
occurrence on the disclosure made by
Sarvesh (daughter of the informant).

16. PW-8, Karan Singh Chauhan, is the
second Investigating Officer. He arrested the
accused on 5.4.2006 and also recovered the
weapon used in the offence. Various recovery
memo in that regard have been proved by this
witness. In the cross-examination, PW-8 has
not been able to explain as to whether the
recovered weapons used in the crime were
sent to Forensic Science Laboratory or not.
Investigating Officer had not recorded the
statement of doctor of Naraura Hospital
during the investigation. He also made no
effort to collect injury report from NAPS
Hospital, Naraura.

17. PW-9 is Dr. Rajesh Bhaskar, who
was posted at NAPS Hospital, Naraura and
has proved the first injury report. This
witness has stated that NAPS hospital is only
for the employees of Naraura Atomic Power
Plant and only if police comes with injured
that the hospital is authorized to treat the
patient. He has given the information of the
treatment of injured to the police. The
hospital record in respect of examination of
injured was latter destroyed but he had
maintained the carbon copy in his office. He
has denied the allegation that in collusion
with the informant's side he has falsely
prepared the injury report.

18. Smt. Sarvesh, who happens to be the
daughter of the informant, has been called by
the court as a witness and her statement is
recorded as CW-1. She has supported the
prosecution case. She claims that she saw the
accused persons assaulting her deceased
brother. At the time of incident she was
inside the house. She has alleged that though
Devendra had a Tamancha but he had not
fired. Malkhan also had a rifle but he had not
fired from it and had only used the butt of
rifle. She claims to have seen the incident
from inside the house, since the doors were
open. She was assaulted inside the house by
the accused Bholeram, Raju and Omvir. In
her further cross-examination CW-1 has
stated that after Nepal Singh and Dileep
Singh came to save her, Devendra fired due
to which they backtracked.

19. Smt. Nekshiya, wife of late
Hetram, has been produced as CW-2. She
has also supported the prosecution case,
432 INDIAN LAW REPORTS ALLAHABAD SERIES
according to which cause of incident was
the dispute between the informant and
Natthu over a portion of land, which was
purchased by Natthu from Ganga Devi,
from her family. In the panchayat it was
decided that Rs.45,000/- would be paid by
informant to Natthu, but Natthu did not
accept this decision of panchayat, on
account of which enmity existed between
the informant and Natthu. This witness has
stated that Malkhan had fired on her
husband but the fire missed. Natthu and
other accused kept assaulting her husband.
She was also assaulted. This witness has
further stated that her husband was carrying
bricks since 7.00 in the morning to the
rooftop. By the time accused came, few
bricks had remained. Some bricks were
lying at the place where incident occurred.

20. On the basis of aforesaid evidence
led by the prosecution, the statement of
accused persons was recorded under
Section 313 Cr.P.C. All the accused have
stated
that
they
have
been
falsely
implicated and that medical report and
other evidence are not reliable. Accused
Rajvir has stated that no incident occurred
at the place indicated by the prosecution.

21.
The
defence
has
produced
Narendra Singh, Block Education Officer,
Anoopshahar as DW-1. He has proved the
record, which indicated school timings
where informant was employed. As per the
record, the school timing was 7.00 am to
12.00 noon.

22. It is on the strength of above
evidence that the trial court has concluded
that the prosecution has established the
guilt of the accused appellants beyond
reasonable doubt, and consequently, the
trial court has convicted and sentenced the
accused appellants, as per above.

23. Sri V.P. Srivastava, learned Senior
counsel for the appellants submits that
incident herein has not occurred in the
manner suggested by the prosecution and
that the accused appellants have been
falsely implicated. He submits that there
was no intention on part of the accused
persons to commit murder of Hetram,
inasmuch as two of the accused persons i.e.
Malkhan and Devendra @ Bhola were
armed with rifle and tamancha but no
firearm injury has been caused to the
deceased. So far as attempted use of rifle
and tamancha are concerned, learned
Senior counsel argues that the testimony of
witnesses in that regard is an exaggeration
only to attach greater seriousness to the act
of the accused persons and that such
version otherwise is not consistent with
other prosecution evidence on record. It is
argued on behalf of the appellants that the
intention of accused, at best, was to give
severe beating and thereby cause grievous
injuries due to dispute of immovable
property and the solitary blow on the head
was
the
apparent
cause
of
death.
Submission is that conviction and sentence
under Section 302 IPC is excessive and
disproportionate to the gravity of offence
proved and, therefore, the judgment of
conviction
and
sentence
cannot
be
sustained.

24. So far as the injuries on other
persons are concerned, most of such
injuries are simple in nature and do not
indicate any intent of the accused to cause
any serious harm to them.

25. On behalf of the informant, Sri
Sunil Kumar Dwivedi and learned AGA for
the State, however submits that the
conviction and sentence is justified on the
evidence led by prosecution, inasmuch as
all accused have come armed and caused
12 All. Nathhu Singh Vs. State of U.P.
433
the fatal injury to the deceased. Other
family members have also been assaulted.
It is also urged that accused Malkhan did
try to fire from his rifle on the deceased but
due to some glitch rifle did not fire,
whereafter rifle butt was used to cause
injury on the head of the deceased. It is
submitted that causing of injury by rifle
butt is clearly indicative of the intent of
accused Malkhan to commit the murder of
deceased. It is also submitted that there was
sufficient motive for the accused to commit
the offence and the intent was to end the
life of the deceased. The respondents,
therefore, argue that the conviction of the
accused persons is based upon correct
appreciation of evidence on record which
requires no interference. It is also argued
that the sentence awarded to the accused
persons clearly commensurate with the
gravity of offence as all the accused had
joined with the intent to commit the murder
and, therefore, no interference in the appeal
is called for.

26. We have heard Shri V. P.
Srivastava,
learned
Senior
Counsel,
assisted by Shri Rajan Srivastava, learned
counsel for the accused-Natthu Singh, and
Shri Pankaj Kumar Shukla, learned counsel
for
the
accused-Malkhan,
Raju
and
Ramveer, as well as Mrs. Archana Singh,
learned A.G.A. for the State and have
examined the records including the original
records of Sessions Trial No.647 of 2006.

27. At the outset, we may note that
accused Natthu Singh, Ramveer, Raju and
Malkhan, Devendra @ Bhola, Omvir and
Bholeram are shown to be the aggressor in
the incident leading to death of Hetram and
injuries being caused to informant Nand
Kishore, Digamber and Neksee (wife of
deceased Hetram). Out of all these accused
Devendra @ Bhola and Omvir were
declared juvenile and their trial was
segregated. Accused Bholeram, who was
assigned the role of carrying iron rod, has
died. The conviction and sentence of
accused Natthu Singh, Ramveer, Raju and
Malkhan alone are, therefore, the issues to
be determined in the present appeal.

28. Before coming to the incident we
would like to refer to the prosecution
evidence on the aspect of motive for the
offence and the genesis of the incident. The
informant in his written report made to the
police has clearly acknowledged the fact
that to the west of his house there is a
disputed piece of land. Litigation over such
disputed
land
was
pending
between
informant and accused Natthu Singh son of
Bihari Singh. Natthu Singh allegedly
maintained enmity with the informant and
his family on account of such dispute. The
witnesses of fact, namely the informant and
his son Digamber both have admitted such
enmity between the parties. It has come in
their testimony that a panchayat was held
with the intervention of villagers to settle
the dispute between informant and accused
Natthu Singh. In this panchayat it was
agreed that Rs.45,000/- would be paid by
informant to accused Natthu Singh. Both
the prosecution witnesses of fact alleged
that though informant was willing to pay
this amount of Rs.45,000/- but the same
was not accepted by accused Natthu Singh.
PW-2 states that accused Natthu Singh was
asking for payment of Rs.60,000/- instead
of Rs.45,000/- due to which the dispute was
not resolved. The prosecution evidence,
therefore, reveals that there was a disputed
piece of land close to the house of
informant over which the claim of accused
Natthu Singh was acknowledged by the
informant and it was agreed that a sum of
Rs.45,000/- would be paid to accuse Natthu
Singh. Fact that this amount was not
434 INDIAN LAW REPORTS ALLAHABAD SERIES
accepted is a different aspect on which we
may not attach much importance, but the
admitted position, nevertheless, is that the
right of accused Natthu Singh over this
disputed land was recognised and an
amount of Rs.45,000/- was admitted by the
informant to be payable to accused Natthu
Singh but in fact this amount was not
paid/received.

29. The prosecution evidence also
shows
that
the
disputed
plot
was
surrounded by a boundary and some bricks
were kept inside this plot. Learned Senior
counsel for the appellants argues that the
genesis of the incident was the act of
deceased Hetram in taking some of the
bricks from the plot to his house on which
an objection was raised by the accused
persons. This argument is countered by the
respondents by submitting that the bricks
taken by Hetram to the roof were stacked
outside the house of the informant and that
such bricks belonged to the informant.

30. On the above aspect we have
examined the evidence and we find that
though informant alleges that the bricks
belonged to him and were stacked outside
his house but in fact no such bricks were
shown to the I.O. when he inspected the
place of offence. In the site plan also the
place where bricks were stacked is now
shown. No evidence has been led by the
prosecution to show that the bricks that
were being taken by Hetram on the roof for
erecting
its
fence
belonged
to
the
informant. The prosecution witnesses,
nevertheless, admitted that the disputed
plot was surrounded by a boundary and that
some bricks were stored in it.

31. In the absence of positive proof led
by the prosecution to show that bricks
belonged to informant and stacked outside
the house of the informant the possibility of
such bricks being taken from the disputed
plot cannot entirely be ruled out. It is
otherwise admitted to the prosecution
witnesses that the incident occurred at the
time when Hetram was carrying bricks. In
the event bricks were stacked outside the
house of informant and it belonged to the
informant then there was hardly any reason
for an issue to be raised on the carrying of
bricks by Hetram. The fact that the incident
occurred when Hetram was carrying the
bricks appears to be the act of provocation
which triggered the incident.

32. Accused Natthu Singh, Malkhan,
Raju, Ramveer (appellants before us) are
all real brothers being sons of Bihari Singh.
They alongwith others are said to have
suddenly come to the house of informant
while Hetram was carrying bricks from
outside to his roof. The FIR as well as the
two witnesses of fact clearly specify the
weapons in their hands. Accused Natthu
Singh is shown to be carrying a water tap
handle (Nal Ka Hattha) while accused
Ramveer had an iron rod and accused Raju
was carrying a stick. Accused Malkhan
allegedly carried a rifle. But for the rifle in
the hands of accused Malkhan and
tamancha in the hands of accused Devendra
@ Bhola all others were carrying articles
which are easily available in any village.
Water tap handle (Nal Ka Hattha), stick
and iron rod (sarya) etc. are easily found. It
appears that the incident occurred suddenly
when the accused persons found that
Hetram was carrying the bricks to his roof
top. The other two accused, namely
Malkhan and Devendra @ Bhola were
carrying firearms.

33. Prosecution witnesses of fact
allege that accused Malkhan tried to fire
from his rifle but the fire did not take place.
12 All. Nathhu Singh Vs. State of U.P.
435
Accused Devendra @ Bhola allegedly was
armed with tamancha but it is admitted case
of prosecution that he has not fired on
Hetram. We find some substance in the
argument of the appellants that in the event
accused persons wanted to kill the deceased
they could have easily fired from the
tamancha if the rifle had developed some
snag. No empty cartridges etc have been
recovered from the place of occurrence. A
cumulative assessment of the prosecution
evidence on record on the aspect of genesis
and the manner of incident persuades us to
assume the possibility that on account of
dispute between the parties in respect of the
plot of land the incident suddenly occurred
on the perceived act of deceased in taking
disputed bricks to his house. The accused
persons suddenly reacted and rushed to the
house of informant and seeing Hetram
carrying bricks started assaulting him. The
intent apparently was to stop Hetram from
taking the bricks to his house. Temper ran
high on account of perceived act of
deceased and the intent apparently was to
cause serious beating to Hetram as a lesson
for doing something wrong to Natthu Singh
and his family. We, therefore, find
substance in the argument of Sri Srivastava
that this is not a case where the intent of the
accused was to commit murder of Hetram.

34. Instead the intent was to give
severe beating and thereby cause grievous
injuries to the accused and in their anxiety
to do so at the spur of the moment, the
deceased was assaulted by the accused.
There are two injury reports followed with
the
description
of
injuries
in
the
postmortem. In the first and second injury
report, reproduced above, only two injuries
are found on Hetram. These injuries are on
the right parietal region and left parietal
occipital
region.
Hetram
was
found
bleeding from both his nose. In the
postmortem report injuries are more. The
other injuries are in the form of abrasion
and bruises etc and the autopsy surgeon has
opined that injury no.5, which is a lacerated
blow on the head, is the solitary injury
capable of causing death of the deceased.
Injuries on others are mostly simple in
nature and could have been caused by a
blunt object. Only other injury grievous in
nature is of Digamber which is at the base
of middle phalynx of left thumb suggestive
of fracture. The injury on the head by a
blunt object is serious enough to cause
death in ordinary course. We, therefore, are
of the view that the case in hand would fall
not under Section 302 IPC but would fall in
Part-I of Section 304 IPC. This too would
be restricted to the person who caused the
fatal injury on the head of deceased.

35.