# Subhash (In Jail) v. The State of U.P

- **Citation:** (2019) 2 ILRA 211
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-18
- **Case number:** Criminal Appeal No.2434 of 2009
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-in-jail-v-the-state-of-u-p-44704
- **Pages:** 11

## Headnote

A. Indian Penal Code, 1860 - Section 504,
Section 506(II), Section323/34 and Section
304/34- Section 313 Cr.P.C - criminal appeal
- chose vital parts of the body to inflict
injuries - accused appellant had inflicted
repeated blows on the vital parts of the body
of deceased - knowing fully well the
consequences of his act that it may cause
death of deceased - guilty of the offence U/s
304(II) Indian Penal Code - imprisonment
for offence. (Para 19,25,27 & 30)

Criminal Appeal dismissed (E-7)

List of Cases Cited: -

## Text

2 All. Subhash Vs The State of U.P.
211

48. In the result, the appeal succeeds
and is allowed. The impugned judgment
and order dated 27.02.1982 passed by the
Special Judge (Dacoity Affected Areas),
Farrukhabad in Special Sessions Trial
no.3 of 1982, State vs. Jauhari and three
others, under Sections 399 & 402 IPC
(arising out of Case Crime no.430/81) and
under Sections 25/27 of the Arms Act
(arising out of Case Crime no.433/81),
Police
Station
Kayamganj,
District
Farrukhabad, is hereby set aside and the
appellant, Phool Singh is acquitted.

49. The appellant, Phool Singh is on
bail. He need not surrender. The bail
bonds are cancelled and sureties stand
discharged. However, the appellant, Phool
Singh, is ordered to comply with the
provisions of Section 437-A Cr.P.C.
before the Trial Court.

50. A copy of this judgment along
with Trial Court record be sent to the
learned Sessions Judge, Farrukhabad for
information and necessary compliance.
Judgment be certified and placed on
record.
----------

(2019)10ILR A 211

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Appeal No.2434 of 2009

Subhash ...Appellant (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sarvesh, Sri R. C. Yadav
Counsel for the Opposite Party:
A.G.A.

A. Indian Penal Code, 1860 - Section 504,
Section 506(II), Section323/34 and Section
304/34- Section 313 Cr.P.C - criminal appeal
- chose vital parts of the body to inflict
injuries - accused appellant had inflicted
repeated blows on the vital parts of the body
of deceased - knowing fully well the
consequences of his act that it may cause
death of deceased - guilty of the offence U/s
304(II) Indian Penal Code - imprisonment
for offence. (Para 19,25,27 & 30)

Criminal Appeal dismissed (E-7)

List of Cases Cited: -

1. Jai Prakash reported in (1991) 2 SCC 32

2. Virsa Singh's case AIR 1958 SC 465

3. Jagrup Singh's case AIR 1981 SC 1552

4. Sadha Singh & anr. Vs St. of Punj. (1985) 3
SCC 225
(Delivered by Mrs. Manju Rani Chauhan, J.)

1. Heard Mr. Sarvesh, learned
counsel for the appellant and Mr. Prashant
Kumar, learned Additional Government
Advocate for the State.

2. This criminal appeal has been
filed by accused appellant Subhash S/o
Shrinath, R/o village Basawanpur, police
station Ghosi, District Mau against the
judgment and order dated 30/31.03.2009,
whereby appellant Subhash has been
convicted under section 323/34 and 304
(II) Indian Penal Code and has been
sentenced
for
one
year
rigorous
imprisonment for offence under section
323/34 Indian Penal Code and for seven
years rigorous imprisonment and a fine of
Rs. 500 and in default of payment of fine
212 INDIAN LAW REPORTS ALLAHABAD SERIES
two months further imprisonment for
offence under section 304(II) Indian Penal
Code. All the sentences are directed to run
concurrently.

3. According to prosecution version
as narrated by informant Ram Lakhan, on
25.04.2006 at about 12:00 in the day,
accused Subhash, Gulab and Dayanand
came to his house and started abusing him
and thereafter assaulted him with lathi,
danda. Upon hue and cry, the co-villagers
gathered there and saved him. The record
further reveals that P.W.1 Smt. Dhanmati
took
her
husband-informant
to
Community Health Centre, Ghosi, where
his injuries were examined by Dr. D.N.
Rai and thereafter he was referred to
District Hospital, Mau where he was
given treatment and after being relieved
from the hospital, Smt. Dhanmati and
Ram Lakhan came to their house in the
village and remained in the house. On
fourth day of incident, deceased Ram
Lakhan went to the police station and on
the oral dictation of first informant Ram
Lakhan (deceased), one Non-Cognizable
Report no. 86/2006 was registered on
28.04.2006 at about 12:30 P.M. in Police
Station Ghosi, District Mau for offences
under section 323/504,506 IPC against
accused Subhash, Gulab and Dayanand.
After eighteen days from the incident,
Ram Lakhan died on account of injuries
and the P.W.1 Smt. Dhanmati gave
information to police station about death
of her husband Ram Lakhan, whereupon
section 304 IPC was added and being
cognizable
offence,
the
case
was
converted into case crime no. 429 of 2006
U/s 304 IPC. After investigation, the
Investigating Officer submitted charge
sheet against the named accused persons
for offence under section 304 IPC and
subsequent to the cognizance of offence,
the learned Magistrate committed the case
to the Court of Sessions and trial
proceeded.

4. The learned Trial Court framed
charge against the accused persons for
offence under section 504, 506(II), 323/34
and
304/34
IPC vide
order
dated
02.03.2007. In order to prove its case, the
prosecution also relied upon documentary
evidence, which were duly proved and
consequently marked as Exhibits. The
same are cataloged herein below:-

i). Application made by the
informant Dhanmati qua the death of the
deceased during treatment to the Police
Station Ghoshi was marked as ExhibitKa-1 and the same was proved by the
informant (P.W.1);

ii). Medical examination report
of the deceased before his death was
marked as Exhibit-2 and the same was
proved by Dr. D.N. Rai, Primary Health
Centre, Ghosi, Mau (P.W.-4);

iii). Post-mortem report of the
deceased was marked as Exhibit-3 and the
same was proved by Dr. A.K. Srivastava
(P.W.-5);

iv).
Entry
made
in
G.D.
regarding registration of Case Crime No.
429 of 2006 under Section 304 I.P.C. after
the death of the deceased was marked as
Exhibit-Ka-4 and the same was proved by
the Constable Dhanoday Pandey (P.W.-
6);

v).
Entry
made
in
G.D.
regarding death of the deceased given by
the informant was marked as Exhibit-Ka5 and the same was also proved by the
Constable Dhanoday Pandey (P.W.-6);
2 All. Subhash Vs The State of U.P.
213

vi). Site plan was marked as
Exhibit-Ka-6 and the same was proved by
Sub-Inspector Sheetala Prasad Upadhaya
(P.W.-7);

vii).
The
charge-sheet
was
marked as Exhibit Ka-7 and the same was
proved by Sub-Inspector Sheetala Prasad
Upadhaya (P.W.-7);

viii). Non-Cognizable Report
(N.C.R.), which was registered on oral
information given by the Informant
regarding the incident, was marked as
Exhibit Ka-8 and the same was proved by
Constable Radhey Shyam Yadav (P.W.
8);

ix).
Entry
made
in
G.D.
regarding the N.C.R. was marked as
Exhibit-Ka-9 and the same was also
proved by Constable Radhey Shyam
Yadav (P.W. 8);

x). Inquest report of the deceased
was marked as Exhibit-Ka-10 and the same
was proved by Sub-Inspector Mithlesh Kumar
Mishra (P.W.-9);

xi). Chalan lash was marked as
Exhibit-Ka-11 and the same was proved
by Sub-Inspector Mithlesh Kumar Mishra
(P.W.-9);

xii). Photo lash was marked as
Exhibit-Ka-12 and the same was proved
by Sub-Inspector Mithlesh Kumar Mishra
(P.W.-9);

xiii). Letter written to the
Reserved Inspector, Police Line, Mau was
marked as Exhibit-Ka-13 and the same
was proved by Sub-Inspector Mithlesh
Kumar Mishra (P.W.-9); and

xiv). Letter written to the Chief
Medical Officer, Mau regarding postmortem of the deceased was marked as
Exhibit-Ka-14 and the same was proved
by Sub-Inspector Mithlesh Kumar Mishra
(P.W.-9).

5. The prosecution also examined
total nine witnesses in the following
manner:-

P.W.1 Smt. Dhanmati wife of
deceased Ram Lakhan is an eye witness of
the incident. P.W.2 Manraj is neighbor of
the deceased and is another eye witness of
the incident. P.W.3 Smt. Gyanti @
Gyanmati wife of Rama Shanker is
daughter-in-law of the deceased and she
was also present in the house at the time of
the incident and is an eye witness. P.W.4
Dr. D.N. Rai was posted at CHC, Ghosi,
who examined the injuries of Ram Lakhan
on 25.04.2006 at about 06:00 P.M. and has
proved the same. P.W.5 Dr. A.K. Srivastava
had conducted post mortem examination of
the cadaver of Ram Lakhan and has proved
the post mortem examination report. P.W.6
Constable Dhanoday Pandey was posted as
Constable Clerk in the police station Ghosi,
who proved the registration of noncognizable report and its subsequent
conversion into cognizable report. P.W.7
Sub-Inspector Sheetla Prasad Upadhaya had
conducted investigation and had submitted
charge sheet and has proved the same. The
P.W.8 Constable Radhe Shyam Yadav has
proved the non-cognizable report lodged by
Ram Lakhan (deceased). The P.W.9 SubInspector Mithilesh Kumar Singh had
conducted inquest and has proved the same
along with other police papers.

6. The defense has challenged the
prosecution case by submitting that:-
214 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) There is delay in registration
of the non-cognizable report in as much
as the incident alleged to have taken place
on 25.04.2006 at about 12:00 in the
afternoon,
while
the
non-cognizable
report is said to have been lodged on
28.04.2006 at about 12:30 P.M. with
delay of about three days, which fact
gives an obvious inference that the
prosecution case is concocted.

(b) Looking into the injuries of
the deceased, it is highly improbable that
the deceased had himself dictated the noncognizable report at police station after
three days of receiving the injuries and
hence, this circumstance creates serious
doubt about prosecution version. The
prosecution case has been materially
improved from stage to stage with the
passage of time in as much as the first
information report does not disclose any
specific role and contains allegations
about assault by lathi, danda only but in
the statement of witnesses before the
court, the allegation with regard to the
exhortation and assault by fist has also
been introduced and role of lathi injury
has been specified against the appellant
Subhash. All these improvements make
the prosecution case wholly unreliable.

(c) The alleged eye witnesses
are not reliable and their presence at the
scene of occurrence is highly improbable
as they did not receive any injury and they
did not try to save the deceased, which is
quite unnatural.

(d) The alleged non-cognizable
report cannot be treated as dying
declaration of the deceased.

(e)
The
appellant
had
no
intention or knowledge to commit the
offence,
even
according
to
the
prosecution's own case and the accused
persons were not armed with any weapon
at initial stage and admittedly the accused
appellant merely used lathi against the
deceased.

(f) In any view of the matter, the
sentence
of
seven
years
rigorous
imprisonment is too severe and is liable to
be reduced.

7. On the other hand learned
Additional Government Advocate has
contended that the prosecution has proved
its case beyond reasonable doubt. The
deceased
had
himself
given
the
information to police station and the noncognizable report was registered on his
dictation and has been duly proved by the
prosecution
witnesses
and
thus
the
prosecution evidence is wholly reliable
and intact and as such, the accused
appellant has been rightly convicted and
the quantum of sentence is proportionate
to the guilt of accused appellant.

8. In order to appreciate rival
submissions mentioned above, the court
proceeds to examine the evidence on
record.

9. P.W.1 Smt. Dhanmati wife of
deceased Ram Lakhan has stated in her
examination in chief that on the day of the
alleged incident at about 12:00 O'clock in
the afternoon, her husband was sitting on
a cot under the shed in front of his house
and she was also present sitting on earth.
Suddenly the accused persons namely
Subhash, Gulab and Dayanand arrived
there crossing the boundary of her house
and started abusing her husband with
filthy language and asked her husband as
to how he was talking to Raj Kumar. At
2 All. Subhash Vs The State of U.P.
215
this juncture, her husband as well as she
protested and asked the accused persons
not to abuse like this. Thereafter the
accused Dayanand exhorted to kill her
husband and all of them dragged her
husband from the shed. The appellant
Subhash picked up the lathi, which was
kept near the cot of her husband and
assaulted upon him with lathi and accused
Gulab assaulted with kick and fist causing
injuries. She took her husband to Amila
Police Outpost and informed the police
but the police personals had stated that
first of all medical treatment may be
given to the victim and thereafter she may
to register the case. She took her husband
to Govt. Hospital Ghosi where her
husband was medically examined and he
was referred to District Hospital, Mau. In
District Hospital Mau, her husband was
treated and thereafter on fourth day of the
incident her husband himself went to the
police outpost and lodged the report.
However on 18th day of the incident, her
husband died on account of injuries. She
sent written information regarding death
of her husband to police station, which
has been proved by her as exhibit Ka-1.
Thereafter the police arrived and prepared
inquest and site plan etc. and also
recorded her statement. Two days prior to
the incident, a quarrel had taken place
with Raj Kumar and the aforesaid Raj
Kumar belongs to the gang of the accused
persons.

10. She has also stated in her cross
examination that two months prior to this
incident, a quarrel had taken with Raj
Kumar and in that quarrel Raj Kumar had
beaten her daughter-in-law by fist and
kick and it was reported by her husband to
the police and the medical examination of
her daughter-in-law was also conducted.
She has also stated in her cross
examination that after treatment of her
husband in District Hospital, she took him
to the village on the same day and since
then, her husband remained at home till
his death.

11. The P.W.2 Manraj son of Jallu,
whose house is situated at about 25 steps
ahead from the house of the deceased, has
stated in his testimony that he was present
in front of his house at the time of the
incident and after hearing hue and cry, he
reached at the place of incident and saw
the
accused
Subhash,
Gulab
and
Dayanand abusing and assaulting Ram
Lakhan. When Ram Lakhan protested,
appellant with the danda and accused
Gulab and Dayanand with fists and kicks,
assaulted Ram Lakhan. Thereafter he and
many persons intervened and saved Ram
Lakhan. He has also stated in his
testimony that Ram Lakhan was taken to
the hospital by his wife and other persons
and he died after 17-18 days of the
incident. He has further stated that
deceased Ram Lakhan had received
injuries in his head and chest region. He
also
identified
accused
Gulab
and
Subhash in the court and has stated that
accused Dayanand is not present in the
court. He corroborated the statement of
P.W.1 in all material aspects. He was
cross examined at great length but nothing
substantial could be elicited in his cross
examination.

12. P.W. 3 Smt. Gyanti @ Gyanmati
is daughter-in-law of deceased Ram
Lakhan. She was there in the house when
the incident occurred. She corroborated
the statement of P.W.1 and P.W.2 in all
material aspects with regard to the abuse
and the manner of assault by accused
persons and also other relevant facts. She
has been cross examined and in her cross
216 INDIAN LAW REPORTS ALLAHABAD SERIES
examination she states that during quarrel
with Raj Kumar, she was not assaulted
and beaten. She has denied the suggestion
made to her in cross examination that on
the alleged date of incident, she was in
her Maika.

13. P.W.4 Dr. D.N. Rai who firstly
examined the victim on 25.04.2006 at
06:00 P.M. at C.H.C., Ghosi has stated
that at about 06:00 P.M., Ram Lakhan
was brought before him by his wife Smt.
Dhanmati and was examined by him,
whereupon the injuries mentioned in the
medical examination report were found
on the person of Ram Lakhan and
thereafter, the victim was referred to
District Hospital, Mau. This prosecution
witness
has
proved
the
medical
examination report and has stated that all
the injuries had possibly occurred on
25.04.2006 at about 12:00 O'clock in the
afternoon and were caused by hard, blunt
object and were fresh and the injuries no.
1 & 5 were on vital part of the body. He
did not give any opinion regarding nature
of injuries and had referred the victim to
District
Hospital,
Mau
for
further
management.

14. P.W.5 Dr. A.K. Srivastava had
conducted the post mortem and has
proved the post mortem examination
report, in which he found five ante
mortem injuries on the person of deceased
and has stated that the cause of death was
subdural hematoma on account of head
injuries. He found the fracture of left
parietal bone and also found fracture of
10th, 11th & 12th ribs of left side back.
Membranes, brain, pleura were found
congested and peritonea and spleen was
found contused. He has stated that injuries
of head and chest were sufficient in the
ordinary course of nature to cause death
and it could have been caused by lathi. He
has also stated that if the proper medical
treatment would have been given to the
deceased, his life would have been saved.

15. P.W.6 Constable Dhanoday
Pandey has stated in his examination-inchief that on 17.05.2006, he was posted as
Constable Clerk in police station Ghosi.
The then In-charge Inspector Sri Bachha
Paswan
submitted
post-mortem
examination report no.106/2006 at police
station and directed him to alter the
offences and in pursuance thereof, he
altered
the
non-cognizable
report
no.86/2006 U/s 323, 504, 506 IPC to Case
Crime No.429/2006 U/s 304 IPC. He was
also
present
at
police
station
on
13.05.2006,
when
Smt.
Dhanmati
informed in writing about the death of
Ram Lakhan. This prosecution witness
has proved the relevant G.D. entry in this
regard.

16. P.W.7 Sub-inspector Sheetla
Prasad Upadhyay has stated that on
18.05.2006, he was posted in police
station Ghosi as Sub-inspector (Civil
Police) and the investigation of Case
Crime NO.429 of 2006 was entrusted to
him. He investigated the same and had
submitted a charge-sheet.

17. P.W.8 Constable Radhe Shyam
Yadav has stated in his examination-inchief that on 28.04.2006, he was posted as
Constable Clerk at police station Ghosi.
On 28.04.2006, at about 12.30 P.M. Ram
Lakhan came to police station and gave
oral information about the incident and in
pursuance
thereof,
a
non-cognizable
report no.86/2006 u/s 323, 504, 506 IPC
was registered. This prosecution witness
has proved the non-cognizable report to
the incident of Ram Lakhan.
2 All. Subhash Vs The State of U.P.
217

18. P.W.9 Constable Mithilesh
Kumar has stated that on 13.5.2006, he
was posted as In-charge police outpost
Amila of police station Ghosi and he had
conducted inquest of deceased Ram
Lakhan. This prosecution witness has
proved the inquest report and other police
papers prepared by him.

19. In their examination U/s 313
Cr.P.C., the accused persons have denied
their involvement in the offence and have
stated that they have been falsely
implicated on account of enmity and the
evidence adduced against them is false.
An application 63Kha was moved by
accused Dayanand showing his date of
birth as 07.05.1991 and claiming to be
juvenile on the date of incident. He
produced the entries of Kutumb register
mentioning his date of birth, voter list and
his medical examination showing his age
on the date of medical examination in
between 20-21 years. The learned Trial
Court conducted enquiry and came to the
conclusion vide order dated 15.01.2009
that the accused Dayanand was juvenile at
the time of incident and his case was
separated and the trial continued for
accused appellant Subhash and coaccused Gulab.

20. From a careful scrutiny of the
evidence available on record, it is
undoubtedly apparent that the witnesses
of fact i.e. P.W.1 Smt. Dhanmati and
P.W.3 Smt. Gyanti @ Gyanmati are most
natural witnesses as P.W.1 Smt. Dhanmati
is wife of deceased and her presence with
her husband Ram Lakhan in daytime at
her house cannot be doubted. Similarly,
Smt. Gyanti @ Gyanmati is daughter-inlaw of the deceased and according to the
normal course of daily life, she is also
supposed to be there in the house, as she
is also a housewife. The presence of both
these witnesses has not been seriously
challenged by the defense. Even a
suggestion has not been given to P.W.1
Smt. Dhanmati that on the alleged date
and time of occurrence, she was not there
in the house with Ram Lakhan. A half
hearted suggestion has been given to
P.W.3 Smt. Gyanti @ Gyanmati that she
was at her Maika on the date of the
incident but she has denied the same.
Similarly no suggestion has been given to
P.W.2 that he was not there in his house
when the incident took place. A lengthy
cross examination has been made from all
the three witnesses, but nothing could be
achieved to raise slightest doubt regarding
the veracity of their deposition, which is
otherwise natural and truthful and is
corroborated by medical evidence. The
statement of P.W. 1 Smt. Dhanmati
corroborates
other
independent
circumstances and evidence available on
record. In the medical examination report
of deceased Ram Lakhan prepared in
Community Health Center, Ghosi, the
injured was shown to be brought by Smt.
Dhanmati and this fact has also been
proved by P.W.4 Dr. D.N. Rai in his
deposition.

21. Learned defense counsel has
tried to argue that the investigation of the
case is not proper and there appears
cutting and over-writing in police papers
and in addition to this circumstance, the
registration of non-cognizable report by
Ram Lakhan after third day of the
incident is also doubtful in as much as
after receiving such injuries, he would
have been in a state of coma on account
of subdural hematoma as suggested by the
doctor and it is highly improbable for him
to reach to the police station and lodge the
non-cognizable report at his own instance.
218 INDIAN LAW REPORTS ALLAHABAD SERIES

22. This submission made by the
learned Counsel for the accused appellant
prima facie appears to be attractive but a
conspicuous view over evidence available
on record reveals its weakness. The P.W. 1
has categorically stated in her statement that
after medical examination in District
Hospital, the deceased Ram Lakhan was
taken back to his home and he remained at
his home continuously till his death. Not a
single question has been put by the
prosecution, while cross-examining P.W.1
about the condition of the victim Ram
Lakhan when he was at home since
25.04.2006 to 13.05.2006. There is not even
a suggestion to this effect that after coming
from the hospital, the victim regained his
health and was capable of speaking
something or not or whether he was bedridden or was in a state of coma. On the
other hand, there is specific averment made
by P.W.1 that the deceased went to police
station and lodged the non-cognizable
report. This fact has been corroborated by
Constable Clerk P.W. 6 Dhanoday Pandey
and P.W. 8 Constable Radhey Shyam
Yadav, who have proved the registration of
non-cognizable report by deceased Ram
Lakhan and have also proved thumb
impression of the deceased on that report.
The defense has tried to challenge aforesaid
facts by pointing out some cuttings and over
writing in the police papers and General
Diary entries but such shortcomings has
been duly explained by the witness P.W. 8
Constable Radhey Shyam Yadav. Hence,
there is no such circumstance available on
record, which may raise doubt about the
registration of the non-cognizable report by
the deceased himself. Rather it makes out
an additional factor in support of eyewitness account of the incident.

23. Thus, from the evidence
available on record, this Court comes to
the
definite
conclusion
that
the
prosecution evidence and the alleged eyewitnesses are natural and truthful and the
prosecution
has
succeeded
beyond
reasonable
doubt
in
proving
the
participation
of
the
accused
in
commission of the offence.

24. With respect to the submission
on behalf of appellant regarding absence
of intention or knowledge about inflicting
deadly injuries to the deceased, it born out
from the statement of P.W.4 Dr. D.N. Rai
and from the medical examination report
of deceased dated 25.04.2006 proved by
him
and
from
the
post
mortem
examination report proved by P.W.5 Dr.
A.K. Srivastava and from his other part of
statement, it is established that multiple
blows were inflicted to the deceased by
blunt weapon on the vital parts of the
body and this role has been specifically
assigned to accused appellant Subhash.
The injury no. 5 shows multiple abraded
contusions in an area of 28 cm and 10 cm
over left side of abdomen and chest and
underlying the seat of injuries, three ribs
were found fractured and many internal
organs were found contused. In the head
region, the parietal bone was found
fractured. The P.W.5 Dr. A.K. Srivastava
has specifically stated that the injuries
received by the deceased in his head and
chest were sufficient in the ordinary
course of nature to cause death.

25. To ascertain element of
knowledge regarding any criminal act,
whenever any person with conscious state
of mind about his act causes injury to
another without any reasonable excuse, it
is required to be inferred that he was
knowing about the outcome of injuries so
caused by him and like-wise, repeated
blow of Lathi as a weapon to an old age
2 All. Subhash Vs The State of U.P.
219
person on his vital parts like head, chest,
abdomen, etc. would certainly give
inference that he was having complete
knowledge about its result. The term
"intention" and "knowledge" have been
discussed and explained in catena of
judgments of Hon'ble Supreme Court and
this court. While intention requires guilty
state of mind or what we say ill will, the
law provides punishment for those acts
too, which doesn't have element of
"intention" but the awareness of the
consequences
of
the
act.
Without
burdening the judgment with bunch caselaws, one celebrated judgment of Hon'ble
Supreme Court may be referred in this
regard. In the case of Jai Prakash
reported in (1991) 2 SCC 32, the Hon'ble
Supreme Court while referring to Virsa
Singh's case, AIR 1958 SC 465 and
Jagrup Singh's case, AIR 1981 SC 1552
made observations about element of
"knowledge", which are worth quoting
and are recapitulated as follows: -

"In both these cases it is clearly
laid down that the prosecution must prove
(1) - that the body injury is present, (2) -
that the injury is sufficient in the ordinary
course of nature to cause death, (3) - that
the accused intended to inflict that
particular injury that is to say it was not
accidental or unintentional or that some
other kind of injury was intended. In other
words Clause Thirdly consists of two
parts. The first part is that there was an
intention to inflict the injury that is found
to be present and the second part that the
said injury is sufficient to cause death in
the ordinary course of nature. Under the
first part the prosecution has to prove
from the given facts and circumstances
that the intention of the accused was to
cause that particular injury. Whereas the
second part whether it was sufficient to
cause death is an objective enquiry and it
is a matter of inference or deduction from
the
particulars
of
the
injury.
The
language of Clause Thirdly of S. 300
speaks of intention at two places and in
each the sequence is to be established by
the prosecution before the case can fall in
that
clause.
The
'intention'
and
'knowledge' of the accused are subjective
and invisible states of mind and their
existence, has to be gathered from the
circumstances, such as the weapon used,
the ferocity of attack, multiplicity of
injuries
and
all
other
surrounding
circumstances. The framers of the Code
designedly used the words 'intention' and
'knowledge' and it is accepted that the
knowledge of the consequences which
may result in doing an act is not the same
thing
as
the
intention
that
such
consequences should ensue. Firstly, when
an act is done by person, it is presumed
that he must have been aware that certain
specified harmful consequences would or
could follow. But that knowledge is bare
awareness and not the same thing as
intention that such consequences should
ensue. As compared to 'knowledge',
'intention' requires something more than
the mere foresight of the consequences,
namely the purposeful doing of a thing to
achieve a particular end."

26. The Hon'ble Supreme Court
further elaborated the discussion by
referring to Russell on Crime (12th edn. at
page 41) and observed as follows:

".............................................
............................................................

"In the present analysis of the
mental element in crime the word
'intention' is used to denote the mental
attitude of a man who has resolved to
220 INDIAN LAW REPORTS ALLAHABAD SERIES
bring about a certain result if he can
possibly do so. He shapes his line of
conduct so as to achieve a particular end
at which he aims."

It can thus be seen that the
'knowledge' as contrasted with 'intention' signify
a state of mental realization with the bare state
of conscious awareness of certain facts in which
human mind remains supine or inactive. On the
other hand, 'intention' is a conscious state in
which mental faculties are aroused into activity
and summoned into action for the purpose of
achieving a conceived end. It means shaping of
one's conduct so as to bring about a certain
event. Therefore in the case of 'intention' mental
faculties are projected in a set direction.
Intention
need
not
necessarily
involve
premeditation. Whether there is such an
intention or not is a question of fact. In Clause
Thirdly the words "intended to be inflicted" are
significant. As noted already, when a person
commits an act, he is presumed to expect the
natural consequences. But from the mere fact
that the injury caused is sufficient in the ordinary
course of nature to cause death it does not
necessarily follow that the offender intended to
cause the injury of that nature. However, the
presumption arises that he intended to cause
that particular injury. In such a situation the
court has to ascertain whether the facts and
circumstances in the case are such as to rebut
the
presumption
and
such
facts
and
circumstances cannot be laid down in an
abstract rule and they will vary from case to
case. However, as pointed out in Virsa Singh
case the weapon used, the degree of force
released in wielding it, the antecedent relations
of the parties, the manner in which the attack
was made that is to say sudden or premeditated,
whether the injury was inflicted during a
struggle or grappling, the number of injuries
inflicted and their nature and the part of the
body where the injury was inflicted are some of
the relevant factors. These and other factors
which may arise in a case have to be considered
and if on a totality of these circumstances a
doubt arises as to the nature of the offence, the
benefit has to go to the accused. In some cases,
an explanation may be there by the accused like
exercise of right of private defence or the
circumstances also may indicate the same.
Likewise there may be circumstances in some
cases which attract the first exception. In such
cases different considerations arise and the
court has to decide whether the accused is
entitled to the benefit of the exception, though the
prosecution established that one or the other
clauses of S. 300 Indian Penal Code is attracted.
In the present enquiry we need not advert to that
aspect since we are concerned only with scope
of Clause Thirdly of S. 300 IPC."

27. In view of above discussed
position of law, it is established beyond
doubt that accused appellant Subhash had
inflicted repeated blows on the vital parts
of the body of deceased Ram Lakhan and
the only inference, which can safely be
drawn is that he was knowing fully well
the consequences of his act that it may
cause death of deceased Ram Lakhan and
thus, he is guilty of the offence U/s
304(II) Indian Penal Code.

28. Lastly, the learned counsel for
the defense has submitted that in view of
the facts and circumstances of the case,
the sentence is too severe and it may be
reduced as may deem fit.

29. In this regard, the position of law
as held by Hon'ble Supreme Court in
Sadha Singh And Anr. vs State of
Punjab, (1985) 3 SCC 225 is as follows: -

"5. The next question is what
should be the adequate sentence. We must
confess that what ought to be the proper
sentence in a given case is left to the
2 All. Dinesh & Anr. Vs State of U.P.
221
discretion of the trial court, which
discretion has to be exercised on sound
judicial
principles.
Various
relevant
circumstances which have a bearing on
the question of sentence have to be kept in
view. Before deciding the quantum of
sentence the learned Sessions Judge has
to hear both the sides as required by the
relevant provision of the Cr.P.C.

6. In an appeal against the
conviction, it is open to the High Court to
alter or modify or reduce the sentence
after confirming conviction. If the High
Court is of the opinion that the sentence is
heavy or unduly harsh or requires to be
modified, the same must be done on well
recognised judicial dicta. Therefore, we
may first notice the reasons which
appealed to the learned Judge to reduce
the substantive sentence awarded to the
appellants to sentences undergone."

30. This Court has considered
submission in this regard in the light of
the evidence, facts and circumstances of
the case and finds in the present case that
the deceased who is an old man, aged
about 60 years, has been assaulted
without any provocation. He was beaten
mercilessly by repeated blows of lathi.
The accused appellant Subhash is a
healthy men aged about 40 years. The
accused chose vital parts of the body to
inflict injuries. In these circumstances the
sentence
of
seven
years
rigorous
imprisonment appears to be appropriate
and does not call for any interference.

31. The appeal fails and is,
accordingly, dismissed.

32. Since the appellant is already on
bail, the Chief Judicial Magistrate, Mau is
directed to ensure that the appellant is
taken into custody and sent in jail for
serving out of his sentence awarded by
the trial court. The bail bond of the
appellant is cancelled and his sureties are
also discharged.

33. A copy of this order be sent to
the Chief Judicial Magistrate, Mau
immediately for necessary compliance of
this judgment and order.
----------

(2019)10ILR A 221

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2019

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No.1335 of 1988

Dinesh & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri T.M. Rizvi, Sri Abhishek Tripathi, Sri
Amit Tripathi, Sri Vishesh Kumar (A.C.)

Counsel for the Opposite Party:
Sri J.K. Upadhyay, A.G.A.

A. Indian Evidence Act, 1872 - It is the
quality of the evidence which is required to
be seen and not the quantity -trial court
justified in convicting the appellants-
imprisonment for life. (Para 7 & 25)

B. Indian Evidence Act, 1872 - Section 118
- competency of person to testify- evidence
of a child witness - Child not an
incompetent witness by reason of its age.
There is no precise age which determines
the question of competency- - child of
tender age is a competent witness, if it