# Siri Harijan & Anr v. State

- **Citation:** (2022) 9 ILRA 1470
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-31
- **Case number:** Criminal Appeal No. 1102 of 1987
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siri-harijan-anr-v-state-49029
- **Pages:** 19

## Headnote

(A) Criminal Law - Criminal Procedure Code,
1973 - Sections 161 - Indian Penal
Code,1860 - Sections 34, 299, 300, 302,
304(1), 304(2), 323 & 504: - Appeal - against
conviction and Sentence - FIR was lodged on the
St.ment of deceased - offence of murder - it is
alleged that incident has occurred in a fit of anger
and two sons had assault their father in
desperation to get their shares in the landed
property which was denied to them by their father
- Appreciation of evidence - from the injury report
as well as from the testimony of eye-witness, it is
evident that both the appellants had not
aimed/intent to cause their father's death -
deceased was conscious and speaking till he had
succumbed, he died due to he could not get
proper treatment - four elements of section 300 of
IPC was not proved - thus, offence would fall
under section 304 of IPC - held, surviving
appellants is not guilty of 'murder' (u/s 302 of IPC)
but his is guilty of 'culpable homicide not
amounting to murder' punishable in the first part
of section 304 of IPC - thus, appeal is allowed in
part - judgment under appeal is modified
accordingly. (Para 35, 36, 38, 40, 41, 42)

Appeal dismissed. (E-11)
List of Cases cited:

## Text

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1470 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 9 ILRA 1470
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL , J.
THE HON'BLE SUBHASH CHANDRA SHARMA, J.

Criminal Appeal No. 1102 of 1987

Siri Harijan & Anr. ...Appellants
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri S.N. Srivastava, Sri Anirudh Pratap
Singh Rathor, Ms. Jigyasa Singh, Ms.
Rajeshwari Singh

Counsel for the Opposite Party:
A.G.A.

(A) Criminal Law - Criminal Procedure Code,
1973 - Sections 161 - Indian Penal
Code,1860 - Sections 34, 299, 300, 302,
304(1), 304(2), 323 & 504: - Appeal - against
conviction and Sentence - FIR was lodged on the
St.ment of deceased - offence of murder - it is
alleged that incident has occurred in a fit of anger
and two sons had assault their father in
desperation to get their shares in the landed
property which was denied to them by their father
- Appreciation of evidence - from the injury report
as well as from the testimony of eye-witness, it is
evident that both the appellants had not
aimed/intent to cause their father's death -
deceased was conscious and speaking till he had
succumbed, he died due to he could not get
proper treatment - four elements of section 300 of
IPC was not proved - thus, offence would fall
under section 304 of IPC - held, surviving
appellants is not guilty of 'murder' (u/s 302 of IPC)
but his is guilty of 'culpable homicide not
amounting to murder' punishable in the first part
of section 304 of IPC - thus, appeal is allowed in
part - judgment under appeal is modified
accordingly. (Para 35, 36, 38, 40, 41, 42)

Appeal dismissed. (E-11)
List of Cases cited:

1. Virsa Singh Vs St. of Punj., AIR 1958 SC 465,

2. Rampal Singh Vs St. of U.P., (2012) 8 SCC
289,

3. Vineet Kumar Chauhan Vs St. of U.P., (2007)
14 SCC 660,

4. St. of Andhra Pradesh Vs Rayavarapu
Punnayya& anr., (1976) 4 SCC 382,

5. Rajwant Singh Vs St. of Kerala, AIR 1966 SC
1874,

6. St. of U.P. Vs Indrajeet, (2000) 7 SCC 249,

7. Satish Narayan Sawant Vs St. of Goa, (2009)
17 SCC 724,

8. Arun Raj Vs U.O.I., (2010) 6 SCC 457,

9. Phulia Tudu Vs St. of Bihar, (2007) 14 SCC
588,

10. Mohinder Pal Jolly Vs St. of Punj., (1979) 3
SCC 30 : 1979 AIR SC 577,

11. Aradadi Ramudu @ Aggiramudu Vs St.
through Inspector of Police, Yanam, (2012) 5
SCC 134.

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Ms. Jigyasa Singh and Ms.
Rajeshwari Singh learned Advocates for the
appellants and Sri Rupak Chaubey learned
AGA for the State-respondents.

2. This appeal is directed against the
judgment and order dated 16.12.1986
passed by the 2nd Additional Sessions
Judge, Ghazipur in Sessions Trial No. 68 of
1986 (State vs. Siri Harijan and Sripat
Harijan) whereby appellants Siri Harijan
and Sripat Harijan have been held to be
guilty for the offence punishable under
9 All. Siri Harijan & Anr. Vs. State
1471
Section 302 readwith Section 34 IPC and
have been convicted and sentenced to
undergo life imprisonment.

3. The prosecution case starts with the
first information report lodged on a report
scribed by Head Moharrir Sri Shyam
Narain Yadav on the statement of deceased
Dhorha Harijan. The said report which was
lodged on 7.1.1986 at about 10:10 AM for
the incident which occurred on the said
date at about 7:00 AM, was a Noncognizable report registered as NCR No.
3/86 under Sections 323/504 IPC. The
report was scribed on the statement of the
injured Dhorha (later deceased) stating that
the assailants/accused were his own sons
who were living separately from him. The
deceased was residing with his brother Pati
Ram at the time of the incident, the accused
assaulted him with Lathis while saying that
if their shares were not given, they would
kill him. On hue and cry raised by the
informant (injured himself), many people
came to save him.

4. The written report scribed by the
Head Moharrir is signed by him and had
been proved in his deposition as PW-4. The
scribe of the report namely Head Moharrir
as PW-4 stated that he was posted as Head
Moharrir on 7.1.1986 in the police station
Mardah/concerned. At about 10:10 AM, the
report was lodged on the oral information
given by the injured Dhorha Harijan son of
Jiut Harijan, who had later died. It was
stated by PW-4 that whatever was told to
him was scribed and the injured was
conscious and was speaking clearly. PW-4
further stated that the said report was
registered as NCR No. 3 in his handwriting
and signature and the copy of Check FIR
was in his handwriting and signature
proved as Exhibit Ka-4. He further stated
that whatever was written in the report was
transcribed as Check FIR and it was read
over to the informant who put his thumb
impression thereafter. He stated that the
thumb impression of the deceased was
existing on the FIR and the copy thereof
had been proved by him. The case was
entered in GD at Rapat No. 11 at about
10:10 AM on the said date. The original
GD was brought in the Court and the copy
thereof was filed on record proved as
Exhibit Ka-5 being in handwriting and
signature of Constable Moharrir Ramlala
Yadav. It was stated by PW-4 that the
injuries found on the person of the
deceased were entered in the GD. After
making entries, the injured was sent for
medical examination to the Government
Hospital, Mardah. On 7.1.1986 at about
16:10 hours, a memo was received from the
doctor about the death of the injured which
was entered in GD at Rapat No. 25 at about
16:10 hours in his handwriting and
signature. The original GD was brought in
the Court and the copy thereof was filed
and proved as Exhibit Ka-6.

PW-4 stated that on the basis of
information of the death, the case was
converted into an offence under Section
304 IPC from Section 323 IPC and the
entry in this regard could be found in the
GD. The original FIR which was dictated
by deceased Dhorha was proved as Exhibit
Ka-7 being in the handwriting and
signature of PW-4. PW-4 was further
confronted as to how the injured could
reach at the police station. He stated that
the injured Dhorha came alongwith Pati
Ram, his brother on his own and the S.O.
of the police station was present at that
time. He was confronted about the entries
in the GD and the inspection of GD by the
Circle Officer. He was further confronted
about the contents of the written report and
PW-4 asserted that whatever was dictated
1472 INDIAN LAW REPORTS ALLAHABAD SERIES
by Dhorha (deceased) was written by him.
Constable Shiv Mani Yadav took the
injured for medial examination and his
return entry was recorded on the same day
at about 12:25 PM. At the time of entry of
his return to the police station, the said
Constable had filed the injury report of
injured Dhorha which fact was entered in
the GD, however, injury report was not
copied in the GD. PW-4 was further
confronted on this statement and he stated
after going through the GD, that the injury
report was not filed rather the Constable
told that the doctor would provide injury
report later.

5. The Investigating Officer S.I.
Shyam Sundar Mishra examined as PW-5
stated that he was posted in the police
station Mardah on 7.1.1986 as SubInspector. On a memo of the doctor R.S.
Prasad, Medical Officer, P.H.C., Mardah
received
at
about
16:10
hours,
the
investigation was handed over to him after
conversion
of
the
case.
He
started
investigation on 7.1.1986 itself and went to
P.H.C. Mardah; found the dead body of
deceased Dhorha and took it in his
possession; the inquest was conducted and
the inquest report was proved as Exhibit
Ka-8 in the handwriting and signature of
PW-5. Other related papers were proved as
Exhibits Ka-9 to Ka-13 by PW-5 being in
his handwriting and signature. The dead
body was sealed and sent for postmortem.
PW-5 stated that brother of the deceased
namely Pati Ram was present in the
hospital and his statement was recorded in
the hospital itself. The statement of one
more person named as Deena was also
recorded and PW-5 left to the place of the
incident and conducted raid for arrest of the
accused who had run away. The spot
inspection of the site in question was made
on the next date, i.e. on 8.1.1986 at about
6:30 AM and the site plan was prepared
which was proved as Exhibit Ka-14 being
in the handwriting and signature of PW-5.
Both the accused were arrested on the said
date itself on the report of the informer and
their statements were recorded and they
were
lodged
in
the
lockup.
After
completion of the investigation, the charge
sheet was submitted as Exhibit Ka-15 on
9.1.1986. PW-5 was confronted about the
injury report in cross and he stated that the
injury report was received at the police
station before he proceeded to the hospital
and it was given to the Head Constable
Shyam Narain Yadav (PW-4) and its entry
was made in the GD. He further stated that
he reached at the hospital on 7.1.986 at
about 16:30 hours and conducted inquest.
PW-5 was further confronted about the
statement of Pati Ram (PW-1) recorded
under
Section
161
Cr.P.C.
and
the
topography of the place of the incident. The
suggestion that the place of the incident
indicated by him in the spot memo was his
own creation was categorically denied by
PW-5. Further suggestion that he made
investigation in order to cover up the case
and examined only the interested witnesses
was also denied.

6. PW-6 is the doctor who had
conducted the postmortem. As per his
deposition, body was brought by two
constables C.P. No. 508 Iqbal Ahmad and
C.P. No. 57 Sambhu Nath in sealed state,
they
identified
the
body
and
then
postmortem was conducted. As per the
external condition, the age of deceased
was estimated as 55 years and the time of
death about one day. It was an average
built body, rigor mortis was present in all
four limbs.

Ante-mortem injuries found on
the person of the deceased are:-
9 All. Siri Harijan & Anr. Vs. State
1473

"(1) Abrasion on tip of vertex.

(2) Contusion on the left side of
the chest.

(3) Contusion on the left upper
arm.

(4) Contusion on the left thigh.

(5) Abrasion on the left leg.

(6) Fracture of left humerus shaft
and neck of left femur and left ribs."

On
internal
examination,
contusion was found at the left side of the
chest, third to eighth ribs were found
broken and lacerated. Left lung was
lacerated, half litre blood was present in the
chest cavity. Contusion was found on the
front wall of the stomach and one litre
blood was present in its cavity. The gall
bladder and liver were lacerated, Urinary
bladder was empty, white liquid material
was present in the stomach.

The cause of death, mentioned in
the postmortem report, was shock &
Hemorrhage as a result of ante-mortem
injuries.

PW-6 proved that the postmortem
report was prepared by him in his own
handwriting and signature and it was proved
as Exhibit Ka-16. The clothes of deceased
which were sealed and given to the Constable
were marked as Material Exhibits ''I', ''II' and
''III'. PW-6 stated that there was a possibility
of death of the deceased at about 3:45 PM on
7.1.1986 and the ante-mortem injuries were
sufficient to cause death. He further stated
that ante-mortem injuries could have been
caused by Lathi.

7. In cross, PW-6 stated that the injury
no. 2 (ante-mortem injury) was at the front
of the chest and could be seen from the
naked eyes. The injuries were sufficient to
cause death. There was a pasty liquid in the
stomach like flour and milk, which was
undigested and could be on account of
consumption of milk about 1 & 1⁄2 hours of
death. The suggestion that the death was
caused due to wrong treatment given to the
deceased was categorically denied by PW6.

8. PW-3 Dr. R.S. Prasad is the doctor
who had examined the injured when he was
brought to P.H.C. Mardah by the Constable
CP No. 314 Shiv Nath Yadav. He stated that
he was present in P.H.C. Mardah, posted as a
Medical Officer and deceased Dhorha was
brought by the aforesaid Constable at about
11:00 AM. His injuries were examined and
the injuries found on the person of deceased
have been described as under:-

"(1) Lacerated wound 4 cms x .5
cm on the right side of head scalp deep 13
cms above the right ear.

(2) Contused wound 9 cms x 2 cms
with marked swelling 10 cms x 7 cms on the
left upper Arm with fracture left upper arm
bone.

(3) Multiple contusion on the back
left side chest five in number (a) 19 cm x 2 cm
(b) 10 cm x 21 cm (c) 16 cm x 2 cm (d) 23 cm
x 2 cm (e) 11 cm x 2 cm suspected fracture
left Rib.

(4) Multiple contusion on the left
hip and buttock, six in number (a) 13 cm x
2 cm (b) 7 cm x 2 cm (c) 9 cm x 2 cm (d) 12
cm x 2 cm (e) 11 cm x 1 cm (f) cm x 2 cm.
Reddish with mark tenderness.
1474 INDIAN LAW REPORTS ALLAHABAD SERIES

(5) Abrasion 1 cm x 1 cm on the
front of left leg.

(6) Lacerated wound 1 cm x 0.5
cm x 0.5 cm on the front of left leg 1 cm
below the left knee.

(7) Abrasion 11.5 cm x 0.5 cm on
the left leg. 2.5 cm below the injury no.
(c)."

He stated that the injuries were
fresh and looking to the nature of injuries,
the injured was referred to the District
Hospital, Ghazipur. All the injuries seem to
have been caused by hard blunt object like
Lathi and Danda. The injury report was
proved as Exhibit Ka-1 being in his
handwriting and signature and the thumb
impression of deceased (injured) was also
proved by PW-3. PW-3 stated that he also
recorded the identification marks of the
injured. As per his statement, the injuries
could have been caused at around 7:00 to
8:00 AM on 7.1.1986. PW-3 stated that he
treated the injured when he was in the
hospital and the injured died at around 3:45
PM on 7.1.1986 in his hospital itself. The
information of death was then given to the
Station House Officer. The memo sent to
the Police Station shown to PW-3 was
proved as Exhibit Ka-2 being in his
handwriting and signature. PW-3 stated that
after preparation of the injury report, X-ray
was advised and a separate memo was
prepared for referring the injured to the
District Hospital. The said memo was also
proved as Exhibit Ka-3 being in his
handwriting and signature by PW-3 who
stated
that
thumb
impression
and
identification marks of the deceased were
noted therein. PW-3 stated that when
injured was brought to the hospital, his
condition
was
serious
but
he
was
conscious, his dying declaration was not
recorded as the injured was referred to
Ghazipur. After preparation of the injury
report and referring the injured to Ghazipur,
the first aid was given while the injured
was admitted in P.H.C. Mardah. PW-3 was
confronted about the treatment given to the
injured and he stated that the injured
remained in his hospital despite referring to
the district hospital, Ghazipur as he was not
in a condition to transport. He was further
confronted that he did not give adequate
treatment to the injured and there was no
arrangement for blood transfusion. The
District Hospital was about 25 kms. and he
did not make any effort to take any help
from the District Hospital. The suggestion
that the injured had died because of lack of
proper treatment and the injury report was
prepared to cover up his fault was denied
by PW-3.

9. PW-2 is the Constable Iqbal Ahmad
who
took
the
dead
body
for
the
postmortem. He stated that the body was
handed over to the doctor at the Mortuary
in sealed state and no one had touched it
when it was in his custody.

10. The only witness of fact, i.e. the
incident in question is PW-1 Pati Ram
brother of deceased Dhorha. PW-1 stated
that he was residing in Harijan Basti in the
village and described the topography of the
said colony. He stated that the people of
Harijan Basti used to go to defecate on
Puliya and Canal which was located near
the Basti. His father had two sons, one of
them was deceased Dhorha and the second
one he himself. PW-1 was living separately
for the last 15 years and before his death,
Dhorha (deceased) separated from his sons.
The accused (sons of the deceased)
separated alongwith their family (wife and
children) and Dhorha was left alone as he
became old. The wife of Dhorha had
9 All. Siri Harijan & Anr. Vs. State
1475
predeceased him. When the accused
persons had left Dhorha, being brother PW1 had kept him and they were residing
together. Dhorha was having 10 biswas of
agriculture field and after he was separated,
Dhorha was ploughing his field on his own.
The accused persons were demanding the
agricultural field of Dhorha and Dhorha
used to say that since the accused were not
paying money to him and hence they would
get the field only when he was dead. The
accused persons were, therefore, angry with
their father Dhorha. A day prior to when
Dhorha was murdered, in the evening, a
scuffle took place between the accused
persons and deceased Dhorha. The villagers
intervened and ended the fight.

PW-1 then stated that on the
fateful day in the early morning, after the
Sun rise, Dhorha (deceased) went to
defecate towards the Canal. After ten
minutes, he (PW-1) also went towards
Puliya to defecate. When he reached at the
Puliya, he saw Dhorha on the Southern side
of Puliya at the West corner of the Canal
while he was washing his hands. PW-1 sat
near Puliya after crossing it to defecate and
within a short time, he heard cries of
Dhorha "save, life is in danger". PW-1
stated that on hearing cries of Dhorha, he
immediately washed his hands at the Puliya
and went towards him. He saw accused Siri
and Sripat assaulting their father Dhorha by
Lathis and he started shouting. Hearing the
noise, the people of Harijan Basti namely
Deena, Ramvat Janu and the wife of PW-1
ran towards the place of the incident. The
accused persons had run away towards
South of the Canal at the Patri after injuring
Dhorha. They arranged a cot, kept Dhorha
in it and took him to the police station
Mardah. Dhorha (later deceased) was
conscious and was speaking when he was
brought to the police station. The report
was dictated by Dhorha and the Head
Moharrir read it over to him and got thumb
impression of Dhorha. The injuries of
deceased were examined by the Head
Moharrir
and
he
was
sent
to
the
Government Hospital along with the
Constable where doctors had treated him.
Dhorha died on the same day in the
hospital at about 4:00 PM. The statement of
PW-1 was recorded by the Investigating
Officer in the hospital at about 7:00-8:00
PM.

11. In cross, PW-1 stated that
deceased Dhorha was elder to him and they
were living separately for about 10-12
years with their families. The wife of
deceased Dhorha had predeceased him
(died about two years prior to their
separation). PW-1 then goes on to say that
he himself was not doing any work and was
in his home at the time of the incident
otherwise he was doing the work of
''Harwahi'. He then stated that at the time of
the incident the work of irrigation of field
had started but it was being done during
day time. PW-1 further stated that Dhorha
was physically fit and was earning on his
own. He was also doing labour work. PW-1
stated that he did not remember as to
whether Dhorha was working at someone
else's place a day prior to the incident.

PW-1 then stated that the houses
of accused Siri and Sripat was nearby and
in between their houses, there were fields
of both the brothers. The house in which
the accused persons were living was of
deceased Dhorha in which he was residing
prior to their separation. The houses of
accused persons was in the same Chak
which belonged to the deceased. The said
house was constructed about 6-7 years
prior to the incident. In the house in which
PW-1 was living was constructed about 2-3
1476 INDIAN LAW REPORTS ALLAHABAD SERIES
years prior to his deposition. PW-1 then
stated that the Abadi was from the time of
their ancestors and they were all residing in
the same Abadi. At the time of the incident,
wheat crop sown by the deceased was
standing in the field which was irrgated
about 2-4 days prior from the tube well of
one Kalpnath Singh. A fight between the
deceased and his sons (accused) occurred
one day prior to the incident in his presence
and other villagers were also present, the
time was around 5:00 PM. PW-1 stated that
the incident of fight occurred in the field
where wheat was sown and it was lasted for
around half an hour. The crop was damaged
near the Medh for about one Laththa.
Before the fight started, Dhorha was at the
door of his house and the accused Siri was
at his door. They all moved towards each
other carrying Lathi and started pushing
each other in the field. On the intervention
of villagers no untoward incident had
occurred. No report of the said incident,
however, was lodged.

12. On a suggestion given to PW-1,
he stated that he and deceased Dhorha were
having good relation and deceased was
residing with him after his sons had thrown
him out of his house. It was admitted by
PW-1 that the wheat crop was harvested by
him after the death of Dhorha as his sons
were lodged in the jail. He then stated that
he had no concern with the field of Dhorha
and he never had any concern with it
during the lifetime of Dhorha. He always
intended that after death of Dhorha, his
field would go to his family and the said
fact was also told by the deceased to his
daughter.

PW-1
then
stated
that
the
Investigating Officer came on the spot on
the second day of the incident and the place
where the previous incident had occurred in
the evening was also shown to him. PW-1
stated that people in the village normally
would wake up around 4:00 AM and
everyone would go to their field after being
freshen up. However, in winters, they go to
the field to work at around 8:00 AM. He
then described the place of the incident and
stated that he saw deceased washing his
hands when he reached at the place of the
incident. PW-1 was further confronted
about the presence of other persons at the
pumping set and the place where he stated
that he went to defecate. He stated that as
soon as he heard the cries of deceased, he
rushed towards him as he had identified the
voice of his brother. He saw the accused
persons hitting the deceased and he started
shouting while standing at Puliya. The
accused were hitting the deceased at a short
distance from Puliya and other persons had
reached within minutes of his cries. PW-1
further described that deceased was hit for
about 7-8 times from all sides by Lathi by
both the accused and he fell down. When
villagers reached, the accused persons ran
away. On further confrontation PW-1 stated
that he was shouting while standing at
Puliya and did not make any effort to save
the deceased as he was empty hand. He and
deceased both went to defecate and no one
else was there.

About the injuries, PW-1 stated
that the deceased got injuries on his chest,
back, hands, skull and legs. He did not
remember as to whether blood oozed out
from the wounds fell on the ground. PW-1
then stated that they were at the place of the
incident for about half an hour and then
went to the police station, Dhorha was
conscious. The police station was about
two kms. from his house and he could not
remember as to how much time was taken
to reach there. Other villagers namely
Deena, Saheb were accompanying him.
9 All. Siri Harijan & Anr. Vs. State
1477
When they reached at the police station, the
Investigating Officer was not present. The
report was scribed by the Head Moharrir
and after taking thumb impression of the
injured, the injuries were examined. They
remained at the police station for about half
an hour and then were sent to the hospital.
The hospital was around 1 km. from the
police station and they reached there at
around 10:45 AM. The doctor treated the
deceased from 11:00 AM to 4:00 PM and
PW-1 could not explain as to what
treatment was given but stated that he and
Deena were present in the hospital. PW-1
stated that the deceased was conscious
from 11:00 AM till 3:30 PM and was
speaking but about 3:30 PM he stopped
speaking and then doctors made a lot of
efforts to save him. The deceased could not
be taken to the District Hospital as he had
died.

13. On further confrontation, PW-1
admitted that apart from two accused
persons there was no other heir of deceased
Dhorha and stated that he had no idea as to
whether deceased would get the property
after conviction. He further stated that he
was doing pairvi of the case and engaged a
counsel and he was not aware as to whether
the accused would be convicted. The
suggestion that he had falsely implicated
the accused persons in order to grab the
field of Dhorha or to get his name mutated
on the record was categorically denied by
PW-1. The suggestion that he had sown the
field of Dhorha was also denied and it was
categorically stated that the field was now
Parti (barren). The suggestion that he had
planned murder of his brother Dhorha in
the night in order to grab his landed
property and house and falsely implicated
the accused persons (both his sons) for that
reason, was categorically denied by PW-1.
The suggestion that he ensured the death of
Dhorha by managing wrong treatment in
the
hospital
was
also
denied.
The
suggestion that the injury reports were
fabricated at his instance in order to cover
up the wrong treatment given by the doctor
was further denied by PW-1. PW-1 had
denied the suggestion that he had given
wrong statement and that he did not witness
the incident.

14. Before proceeding further, we
may record that appellant Siri Harijan had
died and the appeal on his behalf has been
abated. Only appellant Sripat Harijan is
before us who has been lodged in jail on
2.12.2021 in execution of the non-bailable
warrant issued by this Court.

15. It is argued by the learned counsel
for the appellant that it was a case of false
implication
of
the
accused
persons/appellants herein and the first
informant was instrumental in it. The
submission is that the deceased was
residing with the first informant who was
his brother as he had separated from his
two sons was admitted by the first
informant
in
his
deposition.
The
agricultural field of the deceased was in his
possession and he was ploughing the field
after the incident. The dispute between the
accused (sons) and deceased (father) was
about agricultural field which would have
gone to the share of two sons after the
death of the deceased. However, in order to
grab the landed property of the deceased
not only the agricultural field but the house
occupied by the appellants, the first
informant, brother of the deceased, hatched
the conspiracy in which he got the deceased
murdered and managed to put his sons
behind the jail. It was argued that it was
admitted
by
the
informant
that
the
agricultural field of the deceased was in his
possession after the incident and the Wheat
1478 INDIAN LAW REPORTS ALLAHABAD SERIES
crop sown by the deceased was harvested
by the informant.

16. It was further argued that in any
case, the injuries found on the person of the
deceased were mostly simple in nature and
there were suspected fractures on injury
nos. 2, 3 and 4 which was never ascertained
as no X-ray was done. The doctor at P.H.C.
namely PW-3 admitted that he though had
referred the deceased to the District
Hospital, Ghazipur which was about 25
kms. from P.H.C., Mardah but the deceased
was never taken to the District Hospital. It
is, thus, clear that the deceased had died
because he could not get proper and timely
medical intervention. The act of the
informant in taking the deceased to the
police station rather than taking him
straight to the hospital also added to the
worsening condition of the deceased. It is
admitted by the informant that it took about
one hour to take the deceased to the
hospital to get even first aid and in the
intervening period, the deceased himself
narrated the incident to the Head Moharrir
at the police station.

17. The submission is that from the
statement of the informant and the doctor
(PW-3), it is evident that the deceased was
conscious and speaking throughout, till he
had died at about 3:45 PM. Looking to the
nature of the injuries and turn of events
after the injuries were caused to the
deceased, it is evident that the injuries were
not fatal in nature. The deceased had
succumbed to the injuries only on account
of the delay in getting the first aid and lack
of proper treatment at the P.H.C. Mardah. It
was then submitted that even in the report
dictated
by
the
deceased,
he
only
mentioned it to be a case of assault by Lathi
and the Non-cognizable report was lodged
under Section 323/504 IPC, accordingly.

It was, thus, argued by the
learned counsel for the appellant that the
conviction of the surviving appellant Sripat
Harijan for the offence under Section 302
IPC with the aid of Section 34 IPC is too
harsh. From any angle, the offence
committed by the appellant Sripat Harijan
does not fall beyond the scope of the
offence under Section 304 Part II, i.e. of
causing injury with the knowledge that it
was likely to cause death but without any
intention to cause death.

The
contention
is
that
the
conviction of the appellant under Section
302 IPC is a result of misappreciation of
the evidence on record. The appellant had
suffered incarceration of more than two
years as he also remained in jail for some
time during the course of trial. It was
contended that the appellants is entitled to
be released from jail by condoning his
period of sentence to the period undergone
by converting the conviction from Section
302 IPC to Section 304 Part II IPC.

18. Learned A.G.A., on the other
hand, vehemently argued that the facts of
the present case would bring it under
Section 300 ''thirdly' as it is proved from
the record that the accused persons attacked
the deceased with an intention to inflict
such bodily injury which in the ordinary
course of nature would cause death. As all
four elements of Section 300, i.e. the
presence of a bodily injury, the nature of
the injury being fatal, the intention of the
accused to inflict that particular bodily
injury and further that the injuries were of
the type which were sufficient to cause
death in the ordinary course of nature, were
present and established by the prosecution,
the offence is ''murder' under Section 300
''thirdly'. It does not matter that there was
no intention to cause death. It does not
9 All. Siri Harijan & Anr. Vs. State
1479
matter that there was no intention even to
cause an injury of a kind that was sufficient
to cause death in the ordinary course of
nature. It does not even matter that there is
no knowledge that the act of that kind will
be likely to cause death. It is argued that
once the intention to cause bodily injury
actually found to be present is proved, the
rest of the enquiry is purely objective and
the only question remains whether the
injury was sufficient in the ordinary course
of nature to cause death.

Reliance is placed on the decision
of the Apex Court in the case of Virsa
Singh vs. State of Punjab1 to argue that
looking to the nature of injuries and the
turn of events thereafter, the conviction of
appellant Sripat Harijan for the offence
under Section 302 with the aid of Section
34
IPC
is
perfectly
justified.
No
interference may be made in the decision of
the trial court in this regard.

19. As regards, the submission of the
learned counsel for the appellant that it was
a case of false implication of the appellant,
it was argued by the learned A.G.A. that
there is an eye-witness account and the
presence of eye-witness on the spot was
natural. The place of the incident was
proved by the eye-witness as also in the
enquiry made by the Investigating Officer.
No contrary suggestion could be given to
any of the witnesses of making a false
investigation.

It was further argued that the
contention of the learned counsel for the
appellant of false implication at the hands
of the informant is hypothetical, inasmuch
as, even after death and conviction of two
sons of the deceased, his landed property
and house of the accused could not have
gone in the hands of the informant. As both
the sons of the deceased were alive, by
mere implication of them in the murder of
their father, they would not be denuded of
the landed property of their father. It has
come on record that apart from two sons,
there was no other heir of the deceased and
in any case, the landed property and the
house would remain in the name of the
accused persons, being sons of the
deceased. In any case, the informant could
not have derived any benefit from the death
of his brother. Even otherwise, the
deceased was living with his brother, the
informant for a period of more than two
years before the date of the incident. No
evidence could be brought by the accused
person for drawing any adverse inference
against the informant of planning murder of
his brother and false implication of the
accused persons.

20. Having heard learned counsels for
the parties and perused the record, as
regards the place of the occurrence and the
manner in which the incident had occurred,
they stood proved with the statement of the
informant, formal witnesses and material
circumstances brought on record. The
presence of eye-witness (PW-1) on the spot
cannot be doubted as the deceased was
residing with the informant/eye-witness.
The time of the incident and the reason for
presence of the informant at the place of
the incident presents a natural picture. The
informant had categorically stated that both
sons of the deceased were annoyed with
him and thrown the deceased out of his
house. The deceased, thereafter, was living
with the informant (PW-1) and the
agricultural property was in the possession
of the deceased. It was being sown by the
deceased who was physically fit to look
after his field. Both the sons were fighting
for the agricultural field and the deceased
had denied to give it to his sons. When the
1480 INDIAN LAW REPORTS ALLAHABAD SERIES
sons were fighting with him, the deceased
told them that they would get the field only
after his death. A day prior to the incident,
both the sons fought with their father (the
deceased) but the said incident did not
aggravate on account of the intervention of
villagers. As it was an incident of fight
between father and sons, no report was
lodged. It is proved from the record that the
information of the incident in question was
given by the deceased himself who was
injured and conscious at the time when the
non-cognizable report was lodged under
Section 323/504 IPC. The Head Moharrir
(PW-4) had proved that he himself scribed
the report on the oral statement of the
deceased (injured). The deceased had
named his two sons Siri Harijan and Sripat
Harijan
being
the
assailants
and
categorically stated that he was hit by Lathi
and the reason for assault was the demand
of share in the land by his sons. The report
dictated by the injured/deceased itself
shows that his sons were saying at the time
of assaulting him that they would beat him
more if he would not give them their
shares. The deceased could be saved as
many people reached at the spot. No
contrary suggestion could be given to the
Head Moharrir and the report lodged by the
injured/deceased was proved.

21.

In
the
above
facts
and
circumstances of the case, the contention of
the learned counsel for the appellant that it
was a case of false implication of the
appellants at the hands of the informant,
brother of the deceased, is liable to be
turned down. Once it is proved that the
report was dictated by the injured himself
and scribed by the Head Moharrir in the
same language as was dictated to him, it
cannot be said to be a false implication of
the accused persons at the instance of the
informant, by any stretch of imagination.
There is no answer to the question as to
why father would falsely implicate his two
sons if he was injured by some stranger
allegedly hired by his brother. It is not the
case of the defence that the informant had
himself attacked the deceased or injured
him.

22. As regards the second submission
with regard to the conviction of the
appellant Sripat Harijan under Section 302
readwith Section 34 IPC, we are required to
examine as to whether the act of the
appellant in causing death of the deceased
(his father) would amount to ''murder'
within the meaning of Section 300 IPC or it
is a case of ''culpable homicide which will
not
amount
to
murder'
attracting
punishment under Section 304 IPC. Further
question is as to in which part of Section
304 IPC, the offence in question would be
punishable, in case, the Court reaches at the
conclusion that it was a case of 'culpable
homicide not amounting to murder' and not
'murder'.

23. In order to ascertain the same, we
are required to go through the legal
principles
governing
the
distinction
between the provisions under Sections 300
and 302 of the Code on the one hand and
Section 304 Part I and Part II of the Code
on the other. Section 299 of the Code which
deals with the definition of culpable
homicide is also to be taken note of.

Sections 299 and 300 of the
Indian Penal Code deal with the definitions
of
'culpable
homicide'
and
'murder';
respectively. In terms of Section 299,
'culpable homicide' is described as an act of
causing death:- (i) with the intention of
causing death, or (ii) with the intention of
causing such bodily injury as is likely to
cause death, or (iii) with the knowledge
9 All. Siri Harijan & Anr. Vs. State
1481
that such an act is likely to cause death. As
is clear from the reading of this provision,
the first part of it emphasises on the
expression ''intention' while the latter upon
''knowledge'. As has been noted in a catena
of decisions, both these words denote
positive mental attitudes of different
degrees. The mental element in ''culpable
homicide', i.e. the mental attitude towards
the consequences of conduct is one of
intention and knowledge. Once an offence
is caused in any of the above three stated
manners, it would be ''culpable homicide'.

Section 300, however, deals with
''murder'. Though
there
is
no
clear
definition of ''murder' in Section 300 of the
Code but as has been held by the Apex
Court and reiterated in Rampal Singh vs.
State
of
Uttar
Pradesh2,
''culpable
homicide' is the genus and ''murder' is its
species and all ''murders' are ''culpable
homicides' but all ''culpable homicides' are
not ''murders'.

24.

Another
classification
that
emerges from the Code is "culpable
homicide not amounting to murder",
punishable under Section 304 of the Code.
There are decisions which also deal with
the fine line of distinction between the
cases falling under Section 304, Part I and
Part II.

25. Dealing with a matter, wherein the
question for consideration was whether the
offence established by the prosecution
against the appellant therein was "murder"
or "culpable homicide not amounting to
murder", the Apex Court in Vineet Kumar
Chauhan vs. State of Uttar Pradesh3
considered its earlier decision in the State
of Andhra Pradesh Vs. Rayavarapu
Punnayya and Another4, wherein the then
Justice R.S. Sarkaria brought out the points
of distinction between the two offences
under Sections 299 and 300 IPC, reiterating
the law laid down in Virsa Singh Vs. State
of Punjab5 and Rajwant Singh Vs. State
of Kerala6.