C. Nagappan, J.— This appeal is preferred against the judgment of the High Court of Allahabad in Jokhai v. State of U.P (2012) 77 ACC 323, (2012) 3 All LJ 557 The appellants herein are Accused 2, 4 and 7 respectively, in Sessions Trial No. 106 of 1980 on the file of the IIIrd Additional Sessions Judge, Mirzapur and they were tried along with 4 others and all of them were convicted for the offences under Sections 147, 323/149 and 302/149 IPC and each of them was sentenced to undergo rigorous imprisonment for 1 year for the offence under Section 147 IPC, six months' rigorous imprisonment for the offence under Sections 323/149 IPC and life imprisonment for the offence under Sections 302/149 IPC. Aggrieved by the conviction and sentence Accused 1 to 7 preferred Criminal Appeal No. 2986 of 1982 and the High Court by the impugned judgment dated 3-2-2012 (2012) 77 ACC 323, (2012) 3 All LJ 557 dismissed the appeal preferred by Accused 2, 4 and 7. The appeals preferred by Accused 1, 3, 5 and 6 stood abated as they were reported dead. Challenging the same Accused 2, 4 and 7 have preferred this appeal.
2. The prosecution case in brief is as follows: accused Jokhai, Nachakau and Sadhu are brothers being sons of Barakau and accused Chaitu, Kishana and Kinka are brothers being sons of Chhote. These six accused belong to the same family. The accused Dhorha was originally resident of a village in Bihar. Deceased Rajmani alias Bihari was the nephew of the complainant, PW 1, Gomti. All of them were residents of Village Layan and their agricultural lands were situated near each other.
3. On 1-2-1980 at about 8.00 p.m when PW 1 Gomti and his nephew Rajmani alias Bihari were irrigating their lands with canal water, accused Jokhai went there and opened muhar of nali and diverted the water of the canal to flow into his field. On this issue there was altercation between the parties and also scuffle between them which ended by the intervention of PW 2, Vishwanath and PW 3, Sikander. Accused Jokhai went to his house and came back again to the field along with other accused and assaulted PW 1 Gomti and his nephew Rajmani alias Bihari with lathi-danda, legs and fists. Accused Chaitu gave lathi-blows to Rajmani as a result of which he fell down whereupon accused Kinka mounted upon his chest and beat him with fists while other accused gave blows with lathi, legs and fists. PW 1 Gomti, PW 2 Vishwanath and PW 3 Sikander intervened along with Himchha Narain, Jagannath and Surya Bali and due to their intervention the accused persons went to their house. Rajmani became unconscious as a result of injuries and was taken to the house along with injured PW 1 Gomti.
4. Due to distance and fear of the accused the injured could not be taken to Police Station Halia or hospital. In the early morning of 2-2-1980 while being taken to police station Rajmani succumbed to his injuries. PW 1 Gomti with the help of PW 3 Sikander prepared a written report and lodged the same with PW 6, Sub-Inspector Surya Bali Singh at Police Station Halia. Ext. Ka-1 is the complaint. Ext. Ka-5 is the chick report. Ext. Ka-6 is the general diary entry. PW 6 Sub-Inspector took up the investigation, prepared Ext. Ka-9 Panchayatnama and sent the body for post-mortem.
5. PW 4 Dr Mohd. Tauhid was Medical Officer at PHC Lalganj on 2-2-1980 and he examined the complainant, PW 1 Gomti at 8.45 p.m and found the following injuries:
(i) Superficial injury in the form of abrasion 1.5 cm × 2 cm in the left upper arm, anteriorly, 8 cm away from the lateral end of the clavicle. Tenderness and signs of inflammation were present. Similar injury was present in the same upper arm in the middle measuring 2 cm × 3 cm laterally.
(ii) There was blackening of the nail of left ring finger with mark of clotted blood at the margin of the nail. Tenderness and inflammation signs were present.
(iii) Transverse linear skin deep injury of 2.5 cm × ½ cm with blood clot and all signs of inflammation on the dorsal surface of the junction of the first and middle phalanx of the right ring finger. Dried blood was noted by PW 4 in the palm of PW 1.
(iv) Superficial abrasion of 1.5 cm × 2 cm, 5 cm above the hyoid process of ulna dorsally in the right forearm.
(v) Tenderness in the left thigh in the upper part at the bony protuberance posteriorly with sign of inflammation.
(vi) Transverse linear skin-deep injury of 4 cm × ½ cm with hair caught in the wound with dried blood clot in front of head, 6.5 cm above the right eyebrow. There was injury 1.5 cm × 2 cm superficial tender on the middle of the head 2 cm left to the midline. Dried blood clot was also found over the injury by PW 4.
(vii) Pain and tenderness on the right side of the neck without signs of inflammation with two scratch marks was also present.
Ext. Ka-3, is the injury report issued by him expressing opinion that the injuries were simple in nature.
6. PW 5 Dr V.J Khanna, Medical Officer in District Hospital Mirzapur conducted the autopsy on the dead body of Rajmani on 3-2-1980 at 11.00 a.m and found the following ante-mortem injuries on it:
1. Contusion 10 cm × 6 cm on the right frontal region of scalp.
2. Traumatic swelling 10 cm × 8 cm on the anterior aspect of left forearm on its upper part.
3. Traumatic swelling with abrasion 10 cm × 8 cm on the lower part and back of left forearm.
4. Contusion in the area of 10 cm × 6 cm on right chest.
5. Traumatic swelling 9 cm × 6 cm on the upper part and back of right forearm.
6. Contusion and swelling 15 cm × 8 cm on the anterior and upper part of right leg.
7. Traumatic swelling 5 cm × 2 cm on the back of neck.
8. Contusion 3 cm × 2 cm on upper part and back of left leg.
On internal examination of Injury 1 he found the skull fractured and the brain congested with clotted blood inside. He expressed the opinion that the death had occurred on account of shock and haemorrhage due to injuries particularly due to Injury 1. Ext. Ka-4 is the post-mortem report.
7. In order to prove its case the prosecution examined PW 1 to 7 and marked Exts. Ka-1 to 21 besides material Exts. 1 to 9. DW 1 was examined on the side of the defence. The trial court found all the accused guilty of the charges framed and sentenced them as narrated above. On appeal preferred by all the accused the conviction and sentence imposed on Accused 2, 4 and 7 were confirmed and the appeals preferred by the other accused stood abated. Challenging the same Accused 2 Chaitu, Accused 4 Kishana and Accused 7 Dhorha have preferred the present appeal.
8. We have heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the respondent State.
9. The prosecution case is that Accused 1 to 7 attacked and caused the death of Rajmani alias Bihari during the occurrence. Six of the accused belonged to the same family and the remaining one was a resident of the same village. PW 1 Gomti is the uncle of deceased Rajmani alias Bihari and his agricultural land was situated near the lands owned by Accused 1 Jokhai and their lands were being irrigated by a sub-canal. PW 2 Vishwanath and PW 3 Sikander were also residing in the same village and their agricultural lands were situated at a little distance from the above lands and were being irrigated by another sub-canal. PWs 1 to 3 were examined as having witnessed the occurrence.
10. According to PW 1 Gomti, on 1-2-1980 at about 8.00 p.m he and his nephew Rajmani alias Bihari were irrigating their lands with sub-canal water and Accused 1 Jokhai came there and opened muhar of nali and diverted the water flow into his field which led to altercation and scuffle between them and PW 2 Vishwanath and PW 3 Sikander intervened and Accused 1 Jokhai went to his house and after few minutes he came back again to the field along with other accused and accused Chaitu gave lathi-blows to Rajmani and when he fell down accused Kinka mounted upon his chest and beat him with fists while other accused gave blows to him with lathi, legs and fists and they also beat PW 1 Gomti and due to intervention of PW 2 Vishwanath and PW 3 Sikander and three other villagers the accused persons returned to their house and Rajmani became unconscious because of the injuries and was taken to his house along with PW 1 Gomti and on the next day morning while being taken to police station Rajmani succumbed to the injuries.
11. PW 2 Vishwanath and PW 3 Sikander in their testimonies corroborated the version of PW 1 Gomti about the occurrence. The occurrence took place at about 8.00 p.m in the night and PWs 2 and 3 were irrigating their lands in the moonlight and on seeing the occurrence they intervened and brought it to an end and their testimonies are cogent and trustworthy. PW 1 Gomti sustained simple injuries during the occurrence as is evident from Ext. Ka-3 injury report. Accepting the testimonies of PWs 1 to 3 it is clear that Accused 1 to 7 caused injuries to Rajmani alias Bihari as well as PW 1 Gomti. In fact the occurrence has been admitted by Accused 1 Jokhai who also lodged the complaint at Police Station, Halia alleging that while he attempted to divert the water to his field for irrigation, it was obstructed by PW 1 Gomti and Rajmani and they also attacked him and he also wielded blows with lathi.
12. The occurrence place is situated at a distance of 8 miles from Halia Police Station as shown in Ext. Ka-5 chick report and according to PWs 1 to 3 the injured Rajmani could not be taken to the police station or hospital on the occurrence night itself due to distance factor and fear of accused and in the next day morning when they took him to the police station he succumbed to the injuries on the way. The delay in lodging the first information report is properly explained.
13. Rajmani died of homicidal violence is established by the medical evidence adduced by the prosecution. PW 5 Dr V.J Khanna conducted the autopsy on 3-2-1980 at 11.00 a.m in District Hospital, Mirzapur and found eight ante-mortem injuries. The first injury was a contusion on the right frontal region of scalp and on internal examination he found the skull fractured and the brain congested with the clotted blood. He has expressed his opinion that the death had occurred on account of shock and haemorrhage mainly due to Injury 1 found on the head. Ext. Ka-4 is the post-mortem report.
14. The learned counsel for the appellants contended that the occurrence took place 34 years ago on account of sudden provocation and the act was committed by the accused without premeditation and four of the accused are already dead and the present appellants are also aged persons and the act committed by them would fall under first exception to Section 300 IPC. However, according to the learned counsel appearing for the respondent State the conviction imposed on the appellants is proper.
15. The lands owned by PW 1 Gomti and Accused 1 Jokhai were situated nearby and they were irrigated by the water drawn from the same sub-canal. PW 1 Gomti was irrigating the wheat crop standing in his field when Accused 1 Jokhai came there and diverted the flow of water into his own field which was situated ahead of the field of PW 1 and that was objected to, which led to scuffle and grappling between them and it came to an end on the intervention of PWs 2 and 3. Accused 1 Jokhai thereafter went home. After about 15 minutes when the accused returned to the field, they found PW 1 Gomti had continued to divert the flow of water into his field. This appears to have led to another altercation between the two sides, which escalated into a fight over the sharing of water. It was in the course of this fight that the deceased was injured that led to his death subsequently.
16. It is evident that the assault was in the heat of passion on a sudden quarrel in which the accused cannot be said to have acted in an unduly cruel manner. Evidence shows that the appellant-accused gave blows with lathi, legs and fists mainly on the limbs of Rajmani except Injury 1, which was on the head. The death of Rajmani was not instantaneous, rather he died on the next day of the occurrence. Considering the entire attending circumstances it was a case of grave and sudden provocation and would fall under the first exception to Section 300 IPC and the offence would come within the second part of Section 304 IPC and the appellants would be liable to be convicted for the said offence.
17. We are of the considered view that imposition of five years' rigorous imprisonment on each of the appellants for the conviction under Section 304 Part II IPC would meet the ends of justice.
18. In the result the criminal appeal is partly allowed and the conviction of the appellants for the offence under Section 302 read with Section 149 IPC and the sentence of life imprisonment each imposed on them are set aside and instead they are convicted for the offence under Section 304 Part II read with Section 149 IPC and sentenced to undergo five years' rigorous imprisonment each. All other convictions and sentences imposed on them by the High Court are maintained.