# Suraj Bali & Ors v. State Of U.P - **Citation:** (2016) 6 ILRA 92 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-06-10 - **Bench:** Shashi Kant Gupta, Harsh Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-bali-ors-v-state-of-u-p-44010 - **Pages:** 27 ## Text _Characters 0–39,719 of 86,803. This is a partial read: ask again with offset=39719 for what follows._ 92 INDIAN LAW REPORTS ALLAHABAD SERIES under Section 325 I.P.C. As regards the sentence, I direct the two appellants Ram Kishun and Jatan to suffer rigorous imprisonment for three years. The appellants are old persons and their age about 60 to 65 years. The incident is 28 years old and the appeal has come for hearing after 24 years for hearing and further taking into account, the position of the appellants as on date. As they have already undergone one year as under trial and after their conviction. 24. Considering the facts and circumstances of the case, the appellants Ram Kishun and Ram Jatan, who are convicted and sentenced under Section 325 I.P.C. for three years R.I. and further their sentence is reduced to fine of Rs. 1,00,000/-, which shall be deposited by the aforesaid two appellants, namely, Ram Kishun and Ram Jatan in equal proportion i.e. 50,000/- each in the Court of C.J.M. concerned within two months from today. Out of which Rs. 90,000/- is directed to be paid to the child of the deceased Malawati and Jagannath or to her legal hairs, if any and Rs. 10,000/- shall go to the State. 25. In default of payment of fine, as directed above, the appellants shall be taken into custody to serve out the sentence, as modified by this Court. 26. In view of the above, the appeal is partly allowed. 27. Senior Registrar of this Court is directed to send the certified copy of this order to the District Judge, concerned for its compliance. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 10.06.2016 BEFORE THE HON'BLE SHASHI KANT GUPTA, J. THE HON'BLE HARSH KUMAR, J. Criminal Appeal No.- 958 Of 1983 Suraj Bali & Ors. ...Appellants Versus State Of U.P. ...Respondent Counsel for Appellants: V.C. Katiyar, R.K. Tiwari, U.C. Mishra Counsel for Respondent: D.G.A. ................................. Murder -- Culpable Homicide -- Section 302/149 IPC vs. Section 304 Part I/149 IPC -- Sudden Fight -- No Premeditation -- Deceased's cattle per chance trespassed into arhar fields of accusedappellants -- Abusing followed by deceased's refusal to tender apology -- Altercation suddenly converted into 6 All. Suraj Bali & Ors. Vs State Of U.P. 93 a fight in heat of passion -- Deceased stubborn and also abused accused -- Lathi blows given to deceased and licensed gun brought upon extortion at spur of the moment only when first informant arrived for rescue - - No prior enmity between parties -- No plan to cause death -- Entire incident took place within few minutes -- Gun not possessed by any accused-appellant from the beginning but was brought from adjoining house upon exhortation -- No repeated fire -- Held: Occurrence committed without premeditation in sudden fight in heat of passion without taking undue advantage -- Case falls under Exception No. 4 to Section 300 IPC -- Conviction altered from Section 302/149 IPC to Section 304 Part I/149 IPC -- Sentence reduced from life imprisonment to 10 years rigorous imprisonment and fine of Rs. 5,000/- each. (Point No. 8) Place of Occurrence -- Disputed Defence Version -- Established by Prosecution -- Site plan not disputed by defence -- No suggestion made to prosecution witnesses or Investigating Officer during crossexamination regarding alternate place of occurrence -- Defence of alternate place (on way from fields to Cattle Pond) taken up only in statements under Section 313 Cr.P.C. -- Human blood found in samples collected from spot -- Boundary wall rendering defence version of firing from house across boundary wall physically impossible -- Held: Place of occurrence as alleged by prosecution fully established -- Afterthought plea of alternate place rightly rejected. (Point Nos. 1 & 2) Witnesses -- Natural Witnesses -- Credibility -- Interested Witnesses -- Absence of Injury to Witnesses -- P.W.2 Sita Ram working in khalihan of first informant situated in same courtyard where occurrence took place -- P.W.4 Ram Sajiwan being first cousin of accused-appellants and next-door neighbour -- No suggestion to P.W.2 that he was giving evidence on account of friendship or enmity -- Pendency of revenue case not concealed by P.W.4 and no enmity suggested to him in cross-examination -- Gun pointed towards eyewitnesses preventing them from intervening -- Held: Both witnesses are most natural witnesses -- Mere fact of employment with first informant or pendency of revenue case does not make testimonies untrustworthy -- Absence of injuries to eyewitnesses not fatal in the circumstances. (Point Nos. 3 & 4) Injuries on Accused -- Simple and Superficial -- Prosecution Not Obliged to Explain -- Medical examination of accused obtained only after 5 days of occurrence without any explanation for delay -- All injuries simple and superficial in nature -- No grievous injury on any vital part -- No injuries left unattended for 5 days without even first aid if genuinely sustained -- Possibility of self-infliction not ruled out -- Accused failed to prove nexus between alleged injuries and occurrence in question -- Held: Onus to prove that injuries were sustained in occurrence lies on accused -- Prosecution is not obliged to explain simple injuries of accused-persons -- Non-explanation not adversely affecting prosecution case. (Point No. 5) Right of Private Defence -- Not Established -- Deceased Not Armed with Deadly Weapon -- All injuries on accused simple, superficial and possibly self-inflicted -- Deceased not armed with any deadly weapon -- Accused-appellants armed with lathis and in majority -- No reasonable apprehension of death or grievous hurt in minds of accused established -- Defence version of firing by D.W.1 Shyam Lal from inside house across 6-feet boundary wall shown to be physically impossible -- Held: Right of private defence not available -- Even if right arose, it had ceased after causing multiple lathi injuries and could not be extended to causing death. (Point No. 6) Benefit of Doubt -- Not Available on Imaginary Doubt -- Held: Acquittal giving benefit of doubt requires reasonable doubt based on reason and common sense -- Every suspicion, minor discrepancy or possible hypothesis put forward by accused cannot be made basis for acquittal -- Exaggerated devotion to rule of benefit of doubt must not nurture fanciful doubts and thereby destroy social defence. (Point No. 7) Appeal Partly Allowed -- Conviction and sentence under Sections 147 and 148 IPC affirmed -- Conviction under Section 302/149 IPC set aside and modified to Section 304 Part I/149 IPC -- Each surviving 94 INDIAN LAW REPORTS ALLAHABAD SERIES appellant sentenced to 10 years rigorous imprisonment and fine of Rs. 5,000/-, in default two months simple imprisonment -- Sentences to run concurrently -- Period of sentence already undergone set off -- Appellants on bail directed to surrender forthwith. Case Law Discussed 1. Gangadhar Behra vs. State of Orissa (2002) 8 SCC 381 2. Leela Ram vs. State of Haryana (1999) 9 SCC 525 3. Indra Pal Singh vs. State of Uttar Pradesh 2009 (1) Allahabad Law Journal 666 SC 4. Krishna Mochi vs. State of Bihar (2002) 6 SCC 81 5. Paras Nath Singh vs. State of Bihar 1988 SCC (Crl.) 280 6. Ram Sundar Yadav vs. State of Bihar 1998 (37) ACC SC 7. Amar Malya vs. State of Tripura AIR 2002 SC 3052 8. Dharnidhar vs. State of Himachal Pradesh AIR 2002 SC 3097 9. Kiledar Singh vs. State of Madhya Pradesh 2003 ACC 219 SC 10. Rajendra Singh vs. State of Bihar 2001 (1) A.Cr.R. 443 11. State of Haryana vs. Prabhu (1979) 4 SCC 189 12. Bivash Chandra Debnath @ Bivash D vs. State of West Bengal 2015 (5) Scale 307 13. Pulicherla Nagaraja vs. State of A.P. (2006) 11 SCC 444 14. G. Parshwanath vs. State of Karnataka 2010 (4) Crimes 41 SC (Delivered by Hon'ble Harsh Kumar, J.) 1. This criminal appeal has been filed against the judgment and order dated 16.4.1983 passed by Special Additional Sessions Judge, Fatehpur in S.T. No.202 of 1982, State Vs. Suraj Bali and 5 others, under sections 147, 148, 302/149 IPC, P.S. Asothar, District Fatehpur and convicting all the six accused-persons for offences under section 302/149 IPC and further convicting accused Deo Muni for offence under section 148 IPC and all the rest five accused for offences under section 147 IPC and sentenced them with life imprisonment under section 302/149 IPC, two years rigorous imprisonment under section 148 IPC and one year rigorous imprisonment under section 147 IPC. Feeling aggrieved, all the six accused jointly filed present appeal seeking their acquittal. 2. The brief facts relating to the appeal are that:- 3. According to F.I.R. lodged by Gaya Prasad at 3:15 p.m. on 4.4.1982, his real brother Lalni @ Raj Kumar was grazing his cattle at noon on 4.4.1982 in the fields of Dhunna Pandit in North, of which there are fields of Suraj Bali and others in which the crop of Arhar was standing; that per chance, the cow of Lalni entered in the Arhar fields of Suraj Bali, upon which Suraj Bali, Ram Autar, Ram Lakhan and Deo Muni @ Putti sons of Devi Deen arrived and started abusing Lalni; that then Lalni ran into their fields and brought his cow out of the fields of Suraj Bali and others; that thereafter Lalni returned to home and was sitting over his Charahi while Suraj Bali, Ram Autar, Ram Lakhan, Deo Muni @ Putti, Chandra Bali and Ram Swaroop, gathered at their house, which is adjoining and threatened Lalni of life for getting their Arhar crop damaged by his cattle; that Suraj Bali exhorted to bring the gun and finish Lalni, upon which at about 1:00 p.m. Deo Muni @ Putti brought the licenced gun of Suraj Bali and fired at Lalni, upon exhortation of Suraj Bali, Ram Autar, Ram Lakhan, Chandra Bali and Ram Swaroop, in presence of complainant 6 All. Suraj Bali & Ors. Vs State Of U.P. 95 Gaya Prasad, Dhunna, Bhukan and Sitaram; that on being sustained with firearm injuries Lalni fell down, upon which Ram Autar, Chandra Bali, Ram Swaroop and Ram Lakhan gave lathi blows to Lalni and pointed the gun towards the complainant and others due to which, they could not dare to proceed and after leaving of accused-persons, taken body of Lalni to his barotha. 4. On F.I.R., having been lodged promptly against the named accused at case crime no.30 of 1982, the investigation was conducted by Investigating Officer and upon preparation of the inquest report, sending body of deceased for post mortem examination and collecting sufficient material evidence against accused-persons, charge sheet was submitted, upon which cognizance was taken and the case was committed to sessions. The Additional Sessions Judge (Special Judge), Fatehpur, framed charges under sections 302 read with section 149 IPC against all the accusedpersons for committing offence and causing death of Lalni on 4.4.1982 at 1:00 p.m., charges under section 148 IPC against Deo Muni @ Putti, who was armed with gun and charges under section 147 IPC against others who was armed with lathis. The accused-persons denied from the charges and demanded trial. 5. In order to prove its case, the prosecution produced first informant Gaya Prasad as P.W.1 (eye witness), Sita Ram as P.W.2 (eye witness) Ansar Hussain head constable as P.W.3, Ram Sajiwan @ Dhunna as P.W.4 (eye witness), Dr. S.C. Srivastava, (Medical Officer), who conducted post mortem of the body of deceased as P.W.5 and Brahm Dev Singh the then S.O. of P.S. Asothar, (Investigating Officer) as P.S.6. The witnesses of fact P.W.1, P.W.2 and P.W.4 have proved the factual position while P.W.3, P.W.5 and P.W.6 have proved documentary evidence on record. 6. After completion of prosecution evidence, the statements of accused-persons were recorded under section 313 Cr.P.C. and in their defence evidence the accused-persons produced Shyam Lal as D.W.1. 7. Learned trial court after hearing the parties counsel and perusal of record, upon detailed analysis of evidence on record found that the prosecution has succeeded in proving its case against the accused-persons beyond any reasonable doubt and the accused-persons out of which accused Deo Muni was armed with gun (deadly weapon) formed an unlawful assembly and in prosecution of common object of the unlawful assembly, committed riots and caused death of Lalni and consequently convicted and sentenced them for the offences under sections 302 read with section 149 IPC and sections 147 and 148 IPC. 8. Feeling aggrieved all the six accused filed present appeal jointly. During pendency of appeal, appellants Suraj Bali and Chandra Bali were reported to have died and the appeal with regard to them was abated vide order dated 30.3.2016 of this Court. 9. We have heard Sri I.K. Chaturvedi and Sri Akhilesh Pandey, learned counsel for the surviving accused-appellants and Sri Rajeev Gupta, Sri S.N. Tripathi, Sri Ramyash Pandey, Sri Pradeep Pandey, Sri Rahul Asthana, Sri Ram Sagar Yadav, Sri Umakant Mishra, Sri B.P. Tripathi, learned AGA for the State. 96 INDIAN LAW REPORTS ALLAHABAD SERIES 10. Learned counsel for the appellants contended that the conviction and sentence is against the weight of evidence on record; that the sentence is too severe and is bad in law; that the prosecution has failed to prove its case; that the real fact is that deceased Lalni was grazing his cattle in the Arhar fields of accused-appellants and when he did not desist from doing so Suraj Bali and Ram Autar caught his cattle and were taking to Cattle Pond (Kanji House/Maveshi Khana), when the deceased and Babu Lal attacked them and in order to save their lives, they also wielded their lathis; that their brother-in-law (Bahnoi) Shyam Lal, who was staying at their home, for the rescue of appellants, fired with the gun, which hit Lalni; that multiple injuries were sustained to appellants Suraj Bali, Ram Autar and Deo Muni, which were sufficient to cause reasonable apprehension in their minds that death or grievous hurt will otherwise be the consequence of such assault due to which in exercise of right of private defence fire was opened from a considerable distance by D.W.1 Shyam Lal; that the evidence on record shows that prosecution party was aggressor in launching the assault and the injuries, if any, caused to the deceased were caused during exercise of right of private defence, in a spur of moment and not in a premeditated manner; that the appellants, who are real brothers have been falsely implicated; that the prosecution has concealed the origin and has failed to prove the charges against the appellants beyond reasonable doubt; that the conviction and punishment of accused-appellants under sections 147, 148 and 302/149 IPC are bad on facts of law and they are liable to be acquitted of the charges framed against them; that in the alternative, the appellants at the most, may be convicted for offence under section 304/149 IPC and setting aside their conviction and sentence under section 302/149 IPC, the appeal is liable to be allowed and conviction and sentence are liable to be modified. 11. Per contra, learned AGA contended that the impugned judgment and order is based on detailed analysis of evidence on record; that the learned trial court has rightly come to the conclusion that the prosecution has succeeded in proving its case against the appellants to the hilt by reliable, cogent and trustworthy evidence, beyond any reasonable doubt; that there is no cross case or cross version by the accused-appellants and the allegations that they were allegedly attacked by deceased and Babu Lal, or injuries were caused to any of them or that the prosecution party was aggressor are absolutely wrong and incorrect; that the accused have failed to put their after-thought and false defence before the prosecution witnesses and have tried to set up a new case in their statements under section 313 Cr.P.C. regarding the incident having taken place elsewhere on way from fields to Cattle Pond (Kanji house) when they were carrying the cattle of deceased; that had it been so, there could have been no reason or justification of not lodging a F.I.R. by the accused-appellants; that it is absolutely wrong to say that deceased and Babu Lal attacked accusedappellants or any of them or caused any injuries to any of them with lathi or kanta; that the alleged injuries of accused-persons Suraj Bali, Ram Autar and Deo Muni are of simple and superficial nature (which may be self-inflicted) and may not be considered to have been sustained in the occurrence in question; that as per settled principle of law, the prosecution is not obliged to explain the alleged simple and superficial injuries of accused-persons; that false and concocted injury reports have been obtained by accused-appellants after a period of 5 days from occurrence in order to set up a false defence; that the examination of alleged injuries of appellants Suraj Bali, Ram Autar and Deo Muni after a period of five days of the incident itself speaks that no grievous hurt was caused to any of the accused and despite advise for X-Ray of injury no.3 of Deo Muni on hand, 6 All. Suraj Bali & Ors. Vs State Of U.P. 97 no X-Ray report was obtained; that it also shows that the false reports of simple and superficial injuries, which are self inflicted have been obtained; that the alleged injuries of appellants Suraj Bali, Ram Autar and Deo Muni are not proved to have been sustained in the occurrence in question and there is no nexus between the alleged injuries and occurrence in question; that it is proved from the evidence on record that on 4.4.1982 when the deceased was grazing his cattle in the fields of Ram Sajiwan @ Dhunna, per chance the cattle of deceased trespassed/entered in the Arhar fields of appellants on which they started abusing the deceased whereupon the deceased after chasing his cattle from their Arhar fields, took his cattle to home and tethered at his Charahi; that since the appellants were failed to catch and carry the cattle of deceased to Cattle Pond (Kanji house), feeling defeated and annoyed, they continued to threaten the deceased at his Charahi, beaten him with lathis and caused his death by gun shot injuries by Deo Muni @ Putti, upon exhortation of some of them; that the post mortem report of deceased shows that as many as 14 anti mortem injuries were there on his person, including several gun shot injuries and rest injuries of lathis; that the accusedappellants have failed to assign any plausible reason for inordinate delay of 5 days in getting them medically examined; that the prosecution witnesses of fact P.W.1., P.W.2 and P.W.4 are eye witnesses of the occurrence in question and their testimonies are consistent and trustworthy; that P.W.2 & P.W.4 are independent witnesses with no relationship with first informant and no enmity with accused-appellants and their testimony may not be discarded; that the alleged injuries of accused-persons or any of them were not sufficient to cause reasonable apprehension of life or grievous hurt in their minds entitling them to cause death of Lalni; that the defence evidence that upon attack on Suraj Bali, Ram Autar and Deo Muni by deceased and Babu, fire was made by D.W.1 Shyam Lal, is absolutely wrong and false; that the accused-appellants have been rightly convicted and punished under section 302 IPC and their conviction is not liable to be converted under section 304/149 IPC; that the appeal has been filed with absolutely false allegations and baseless ground and is liable to be dismissed. 12. As per post mortem report Exhibit Ka-5 duly proved by P.W.5 Dr. S.C. Srivastava, who conducted the post mortem of the body of Lalni @ Raj Kumar at 3 p.m. on 5.4.1982, the death of Lalni had taken place "due to shock & hemorrhage as a result of anti mortem injuries" about one day before and rigor mortis had passed from the upper body and was there on lower limbs. In post mortem report following anti mortem injuries were found on the body of deceased:- Ante Mortem Injuries 1. Fire arm wound of entry 3 1⁄2" X 2 " X brain matter coming out, on the right side of the front of the head, in the frontal region involving the right eye, 2" above the lateral angle of the right angle of mouth. The margins are lacerated, inverted Blackening present. The underlying bones i.e. frontal bone and the orbital bone of the right eye are fractured 10 pellets and one wadding piece recovered from this injury. 2. Multiple abrasion on the right side of face in an area of 5" X 4". 98 INDIAN LAW REPORTS ALLAHABAD SERIES 3. Multiple fire arm wound of entry in an area of 6 1⁄2" X 2 1⁄2" X chest cavity deep on the right upper part of the chest and the shoulder joint, 4" above the right nipple. The margins are inverted, lacerated and ecchymised - six pellets recovered from this injury. 4. Four fire arm wound of entry on the upper part of the right upper arm, 5" above the right elbow joint. The margins are lacerated, inverted and ecchymised. Four pellets recovered from this injury. 5. Abrasion 1⁄2" X 1⁄4" on the back of the right fore-arm, 5" below the elbow joint. 6. Contusion 7" X 1 1⁄2" on the left side of the back on the scapular region, lying obliquely, 3" above the inferior angle of scapula (left). 7.Contusion 6" X 1" on the right side of the back of abdomen lying obliquely 5" above the crest of illiac bone(right). 8. Contusion 5" X 2" just on the right illiac crest bone on the back. 9. Contusion 7" X 1 1⁄2" on the back of right scapular region, 3" above the inferior of the angle of right scapula. 10. Abrasion 4" X 1⁄2" on the left upper arm, 2" below the top of shoulder joint on the lateral aspect. 11. Abrasion 2 1⁄2" X 1⁄2" on the top of left shoulder joint. 12. Abrasion 4" X 1" on the lateral part of abdomen, 2" above the left anterior, superior, illiac spine. 13. Lacerated wound 2" X 1⁄2" X bone visible on the left parietal region, 4" above the left tragus of the ear and 4 1⁄2" above the left eye brow. 14. Lacerated wound 2 1⁄2 " X 1⁄2 " X bone visible, 1" medial to injury no. (13) ..... (Twenty pellets and one wadding piece recovered from the body sent to S.P. Fatehpur in a sealed envelope through proper channel) 13. P.W.5 Medical Officer in his cross examination, has also proved the injury reports of appellants Suraj Bali, Deo Muni and Ram Autar Exhibits B-1, B-2 & B-3, who were examined by him on 9.4.1982 between 12:15 to 12:40 p.m. and found following injuries on their body:- "Injury Report of Suraj Bali 6 All. Suraj Bali & Ors. Vs State Of U.P. 99 1. Lacerated wound 6 cm x 1⁄2 cm x 1⁄2 cm on the right side of head, 8 cm away from right tragus from the ear and 10 cms above the right eye brow. 2. Incised wound 3 cm x 1⁄4 cm x 1⁄4 cm on the top of skull, 6 cm medial to injury no.1 the margins are clear and clean cut. 3. Contusion 4 cm x 3 cm on the left leg 5 cm below the left knee joint on the back- Opinion- Simple. Injury no.1 and 3 by blunt object such as lathi, injury no.2 caused by sharp weapon, about 5 days old. Injury Report of Deo Muni 1. Traumatic swelling 4 cm x 3 cm on the left frontal region, 6 cm above the left eye brow. 2. Contusion 4 cm x 2 cm on the left back lying obliquely, 10 cms below the inferior angle of left scapula. 3. Traumatic swelling 8 cm x 5 cm on the right dorsum of hand after abrasion 4 cm x 2 cm situated in the mid part of the swollen area marked tenderness present Advised X-ray for any bony abnormalities. 4. Complaint of pain on the upper aspect of right thigh but no obvious injury seen. Opinion Simple. Except injury no.3 kept under observation caused by blunt object. Advised X-Ray. About 5 days old. Injury Report of Ram Autar 1. Traumatic swelling 4 cm x 2 1⁄2 cm on the right side of head 7 cms away from the right ear tragus and 8 cm above the right eye brow. 2. Abrasion 5 cm x 3 cm on the top of the head in occipital area 8 cms away from the injury no.1. 3. Abrasion 2 cm x 2 cm on the base of right middle finger on the dorsal aspect of the hand. 4.Contusion 9 cm x 8 cm on the top of the left shoulder joint. 100 INDIAN LAW REPORTS ALLAHABAD SERIES 5. Complaint of pain on the left back but no obvious injury seen. Opinion Simple. Caused by blunt object. About 5 days old." 14. Upon hearing at length the arguments advanced by the learned counsel for the appellants and learned AGA, we find that following points are involved, for consideration in this appeal against the impugned judgment and order of conviction and sentence of appellants:- 1. Whether the occurrence in question in which death of Lalni was caused did took place in the courtyard in front of the house of accused between the Charahi of deceased and the house of accused as alleged by the prosecution and shown in the site plan Exhibit A-12. 2. Whether the occurrence took place elsewhere, on way from fields to Cattle Pond (Kanji house), when the accused Suraj Bali, Ram Autar and Deo Muni @ Putti at the time of taking cattle of deceased to Cattle Pond (Kanji house), were attacked by deceased and Babu, upon which gun shot made by Shyam Lal (Behnoi of accused-persons) from the house, hit Lalni, resulting in his death, as alleged by accused-appellants. 3. Whether P.W.2 Sita Ram and P.W.4 Ram Sajiwan @ Dhunna are not independent witnesses and their testimonies are not trustworthy and whether the trial court failed to appreciate evidence in right prospective and acted wrongly in relying on the testimony of above witnesses. 4. Whether due to absence of any injury to P.W.1, P.W.2 & P.W.4, they may not be considered to be eye witnesses of the occurrence in dispute. 5. Whether the prosecution has failed to explain the injuries on the body of accused-appellants Suraj Bali, Ram Autar and Deo Muni @ Putti. If so its effect. 6. Whether the death of Lalni was committed by Shyam Lal D.W.1 in exercise of appellant's right of private defence. If so its effect. 7. Whether the prosecution has failed to prove the charges and accused-appellants are entitled for acquittal by giving them benefit of doubt. 8. Whether the death of Lalni in the occurrence in dispute is culpable homicide not amounting to murder in view of provisions of exceptions if any to section 300 IPC and is punishable under section 304 read with section 149 IPC. Point Nos.1 & 2 6 All. Suraj Bali & Ors. Vs State Of U.P. 101 15. Upon hearing the learned counsel and careful consideration of the evidence on record as well as findings given by the learned trial court, we find that it is admitted to both the parties that prior to the occurence in question, the deceased was grazing his cattle in the fields of Dhunna Pandit, when suddenly a cow of deceased trespassed/entered in the Arhar fields of accusedappellants, upon which they abused the deceased, and the deceased drove his cow out of their Arhar fields, to his home, tethered his cow on Charahi (the place where people tether their cattle outside their house) and was sitting over his Charahi. It is not disputed that the first informant and accused-persons had a common ancestor, their grand fathers were real brothers and their houses are adjoining to each other in North of which, there are their courtyards and Charahi of both the parties East-West adjoining to each other and in East and West of their Charahis, three nails are fixed, on each side for tethering their respective cattle. According to prosecution when the deceased was sitting over his Charahi, the accused-persons, also returned from the fields to their home and continued to abuse and threaten the deceased for damaging their Arhar crop, which converted into a quarrel and upon extortion of co-accused-appellants, Deo Muni @ Putti brought the licensed gun of Suraj Bali from their adjoining house and fired at the deceased, who fell on the ground and, thereafter, accused-persons continued to beat him indiscriminately with lathis in their hands. The prosecution witnesses of fact P.W.1, P.W.2 and P.W.4, are eye witnesses of the incident, who have proved prosecution version and their evidence, is consistent with respect to the place and manner of occurrence, in which the death of Lalni was committed by accused-appellants. There are no material contradictions in their statements so as to discredit or disbelieve their testimonies. 16. It is also the case of prosecution that after the incident since the gun was also pointed out towards the eye witnesses, they could not dare to interfere and subsequent to the occurence, took the body of deceased from the place of occurrence to their Barotha. It is noteworthy that upon lodging of F.I.R. promptly, naming all the miscreants, the Investigating Officer prepared the inquest report, took the blood stained and simple mud/soil from the place of occurrence, the outer courtyard in South of Charahi, marked by (1) where deceased was sitting, beaten and his body was lying after causing the gun shot injury by accused-appellants, as well as from the Barotha, where the body of deceased was kept subsequent to the occurrence, and upon inspecting the spot prepared site plan of the place of occurrence Ext. A-12 as well as the memo of recovery of mud Exhibit A13. The Investigating Officer P.W.6, has proved the documentary evidence on record and also above Ext.A-12, the site plan of the place of occurrence and Ext.A-13, the recovery memo in respect of collecting the blood stained and simple soil/mud from the place of occurrence and Barotha. As per Government forensic reports Ext. A-18-19 human blood was found in the two samples of blood stained soil/mud. The accused appellants have not challenged the place of occurrence and have not suggested to any of the prosecution witnesses of fact or even to the Investigating Officer, that the occurrence did take place elsewhere and not in outer courtyard in South of Charahi of deceased, but after completion of prosecution evidence, in their statements under sections 313 Cr.P.C., they have stated that the incident in question took place on way from fields to Cattle Pond (Kanji house) at the time, when the accused Suraj Bali, Deo Muni and Ram Autar were taking the cattle of deceased to Cattle Pond (Kanji house) and were attacked by deceased and Babu Lal causing multiple injuries to them, upon which their brother-in-law Shyam Lal fired from their house resulting in death of Lalni. The suggestion given to P.W.1 in this regard 102 INDIAN LAW REPORTS ALLAHABAD SERIES that deceased and Babu Lal tried to get their cattle released from accused Suraj Bali, Ram Autar and Deo Muni @ Putti, and beaten them with lathi and kanta, upon which they also gave lathi blows to Lalni and Lalni died due to injuries caused by gun shot made from the house of accusedpersons, has been clearly denied by the first informant. There is nothing on record to show that damage of Arhar crops, if any, and upto what extent was caused due to trespass of cow of deceased in the fields of accused-appellants. 17. It is proved from the evidence on record that the spot position has been correctly shown in site plan Exhibit A-12, which has not been disputed by the accused-appellants. According to the site plan Exhibit A-12, infront of the adjoining houses of deceased and accused-appellants, towards North, there is outer courtyard/Ahata, where they keep their Khalihan and where Charahis of both parties exist and the above courtyard of accused-appellants has a boundary wall on its West parallel to the Western wall of the house of accused-appellants. The height of above wall is about 6 feet as has been stated by P.W.4 Ram Sajiwan @ Dhunna in his statement on oath, on which neither any cross examination was done, nor any other evidence to the contrary has been produced. The site plan also shows that in West of the above courtyard across the western boundary wall, are fields of accused-appellants shown by letter 'B' and on its South there is field as well as courtyard and house of P.W.4 Ram Sajiwan @ Dhunna. In his cross examination defence witness D.W.1 Shyam Lal, at page 94 of paper book has stated that "मवेशी फाटक (i.e. Cattle Pond (Kanji house) असोथर में है l मुल्जिमान के खेत उनके मकान से पश्चिम-उत्तर पड़ते है l मुल्जिमान के खेत उनके घर से 2-21⁄2 फ़र्ाांग दूर है"l 18. It may not be the case of accused-persons that the rasta of Cattle Pond (Kanji house) goes through their courtyard and house. Apart from it, in view of the 6 feet high boundary wall in West of their courtyard, there can be no question or possibility of rasta of Cattle Pond (Kanji house) going through the courtyard or house of accused-appellants. However since the accused were not in a position to dispute the place of occurrence which is shown at a distance of 6 steps in North of house of accused-appellants, their defence witness D.W.1 has made an attempt to improve their stand and stated at page 95 of paper book that "मुल्जिमान जानवरोों को अपने घर की दुकान के पास र्े आये जहााँ से होकर सदर रास्ते के श्चर्ए रास्ता जाता है, यही पर र्र्नी और बाबूर्ार् अपने घर की तरफ से मुल्जिमान के पास आये"l 19. The above statement is wrong, false and incorrect on its face because neither any such rasta has been shown in the site plan Ext. A-12, nor any suggestion as to passing of the road to Cattle Pond (Kanji house) through the courtyard or houses of accused-appellants has been put to any prosecution witnesses or P.W.6, the investigating officer, nor there can be any possibility of rasta (thoroughfare) going through houses nor there is any evidence to above effect. Even if, it is presumed for the sake of arguments (which is not admitted to prosecution) that cattle of deceased was being carried by accused-appellants from fields to Cattle Pond (Kanji house), the alleged place, over the rasta to Asothar (where the Cattle Pond (Kanji house) situate as per accused-appellants), may only be at a great distance, far-far away in West across the western wall of the house and courtyard of the accused-appellants. In any case, the alleged rasta from fields to Cattle Pond (Kanji house) in Asothar, across the boundary wall may not be visible from the house and courtyard of accused-appellants across the boundary wall. Since Shyam Lal D.W.1 is not alleged to be blessed with devine power to see across the wall as 'SANJAY' of 'MAHABHARAT', who was blessed 6 All. Suraj Bali & Ors. Vs State Of U.P. 103 with such power, for giving running commentary of War between 'PANDAWAS' and 'KAURAVAS' at a distant battle ground in 'KURUKSHETRA' to 'DHRITRASHTRA' in 'HASTINAPUR'' in 'MAHABHARAT'. Under any imagination there can be no possibility of existence of alleged rasta through houses or of watching the incident at alleged rasta by Shyam Lal from house of accused-appellants and causing of firearm injury to the deceased by the fire allegedly made by him from their house beyond the boundary wall of courtyard and house of accusedappellants. The defence witness Shyam Lal D.W.1 has failed to prove the distance from which he fired as well as that the deceased was visible to him and could have been sustained fire arm injuries by the fire allegedly made by him from inside the house or from across the boundary wall. From the above facts and evidence on record, we find that appellants have taken a wrong and false stand of occurrence having been taken place elsewhere in the manner alleged by them, on way from fields to Cattle Pond (Kanji house) and also failed in their attempt to establish that the way to Cattle Pond (Kanji house) goes through the place of occurrence as well as house of accused-appellants. 20. In view of discussions made above, we find that it is fully established from the evidence on record that the occurrence in question as well as firing by accused-appellant Deo Muni did take place in the manner as mentioned in F.I.R. in courtyard to the South of Charahi of deceased and not over rasta in the manner alleged by the accused-appellants, at the alleged time of carrying the cattle of deceased from fields to Cattle Pond (Kanji house), and that neither the rasta from fields to Cattle Pond (Kanji house) goes through houses of accused-appellants nor the gun shot injury was caused to deceased by Shyam Lal. 21. Accordingly point no.1 is decided in affirmative and Point No.2 is decided in negative. Point Nos.3 & 4 22. It is established from the evidence on record as has been discussed and held on point nos.1 & 2, that the occurrence in question took place in the manner mentioned in the F.I.R., in which upon extortion of co-accused appellants, Deo Muni with the licensed gun of Suraj Bali fired at the Lalni, hitting him on vital parts of body and all the accused-persons armed with lathis caused multiple injuries to the deceased, resulting in his death. The afterthought contention as to fire having been made by Shyam Lal D.W.1, in order to set up a false defence has been proved to be false and incorrect. It is pertinent to mention that there was no enmity between the first informant and accused-appellants and had the fire been made by Shyam Lal, as alleged by accused-appellants, there would have been no reason for prosecution (first informant Gaya Prasad, who is real brother of deceased), to falsely implicate the accused-appellants leaving Shyam Lal, the alleged real culprit. 23. It has been held by Apex court in the case of Gangadhar Behra Vs. State of Orissa (2002) 8 SCC 381 that "It is more often than not that a relation would not conceal actual culprit and make allegations against innocent person." 104 INDIAN LAW REPORTS ALLAHABAD SERIES 24. As far as trustworthiness of evidence of P.W.2 and P.W.4, Sita Ram and Ram Sajiwan @ Dhunna on account of their being interested witnesses is concerned, the trial court has analyzed the evidence on record in detail and has rightly held that both of them are most natural witnesses and mere fact that P.W.2 Sita Ram used to be a worker of first informant and mere pendency of a case regarding correction of settlement map between P.W.4 Ram Sajiwan @ Dhunna and accusedpersons, does not make their testimonies untrustworthy. It is proved from the evidence on record that at the time of occurrence P.W.2 Sita Ram was working in the khalihan of first informant, which was placed in the same courtyard in which, occurrence in question did take place and if the first informant stood as surety for him and used to call him for work as and when required, he may not be considered interested witnesses and his testimony may not be discarded on this score, particularly when it has not been suggested to the witnesses that he was not present at the khalihan or is giving evidence due to any friendship with the first informant or on account of any enmity with the accused-persons. 25. As far as the testimony of P.W.4 Ram Sajiwan @ Dhunna is concerned, he is next door neighbour and first cousin of the accused-appellants. It is not disputed that the first informant, deceased and accused-appellants had a common ancestor, their grand fathers were real brothers while father of P.W.4 Ram Sajiwan @ Dhunna and accused-appellants were real brothers and thus P.W.4 Ram Sajiwan is more closely related with accused-appellants being their first cousin in comparison to the first informant being his distant cousin.