STATE OF U.P. versus JAI DUTT AND ANR. on 19 January 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 18.09.2019 passed by the High Court of Judicature atAllahabad in Criminal Appeal No.870 of 1987, by which the High Courthas allowed the said appeal in part and has converted the conviction ofthe accused from that of Section 302 read with Section 34 IPC to Section326 IPC, the State of Uttar Pradesh had preferred the present appeal.

2. As per the case of the prosecution when the deceased wasworking in his agricultural field all the accused persons reached thereand started abusing him. That the deceased was beaten by theaccusedpersons. All the accused persons were having different weaponswith them. All of them started beating the deceased resulting ina numberof injuries and later considering his serious condition, he was taken tohospital at Lucknow where after about six days, he succumbed to theinjuries. All the accused persons were charged and tried for the offencesunder Section 302 read with Section 34 of the IPC except accused no.1Jai Dutt who was charged and tried for the offence punishable underSection 302 IPC. To prove the charge against the accused, the prosecutionexamined a number of witnesses of which, PW1 and PW2 were theeye-witnesses to the incident. By examining PW8 - Dr. P.R. Mishrawho conducted the post-mortem on the body of the deceased, theprosecution brought on record the post-mortem report. The trial Courtconvicted Jai Dutt for the offence under Section 302 IPC and sentencedhim to undergo life imprisonment. The learned trial Court also convictedother accused Lal Bahadur, Sher Singh and Shastri for the offencesunder Section 302 read with Section 34 of the IPC and sentenced themto undergo life imprisonment.

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A2.1 Feeling aggrieved and dissatisfied with the judgment and orderof conviction passed by the learned trial Court, all the accused preferredthe criminal appeal before the High Court. During the pendency of theappeal, accused Lal Bahadur and Sher Singh expired. Therefore, appealqua those persons abated. That by impugned judgment and order theHigh Court has partly allowed the said appeal qua rest of the accusedBJai Dutt and Shastri and has converted the conviction from that of Section302 read with Section 34 IPC to Section 326 IPC, mainly on the groundthat the deceased died after six days from the incident and no fractureof head was found. The High Court has imposed the sentence of twoyears only for the offence under Section 326 IPC solely on the groundCthat incident occurred about 36 years back and therefore imposing twoyears sentence would be sufficient to meet the ends of justice.

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2.2 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court converting the conviction from Section302 IPC to Section 326 IPC, the State has preferred the present appeal.D3. Shri Rana Mukherjee, learned Senior Advocate appearing onbehalf of the appellant – State has vehemently submitted that in thefacts and circumstances of the case the High Court has materially erredin converting the conviction from Section 302 IPC to Section 326 IPC.

3.1 It is submitted by Shri Mukherjee, learned Senior AdvocateEthat as such the High Court has specifically held against the accusedasthey went to the field of the deceased and started the quarrel and usedweapons and caused the injuries. It is submitted that the High Court hasalso observed and held that PW1 and PW2 – eye witnesses are whollytrustworthy but there is no reason to disbelieve their statements. It isFsubmitted that despite the above when the deceased succumbed to theinjuries and died because of the head injury, a clear case of murder wasmade out and therefore, the High Court ought not to have converted theconviction from Section 302 IPC to Section 326 IPC.

3.2 It is submitted that merely because the deceased died afterGsix days could not have been the ground to convert the conviction fromSection 302 IPC to Section 326 IPC. It is submitted that the High Courthas not at all appreciated and/or considered the injuries mentioned in thepost-mortem report and the cause of death. It is submitted that merelybecause no fracture on the head was found cannot be a ground, not toconvict the accused for the offence under Section 302 IPC. It is submittedHthat in a given case a person might have died because of the internal injuries like in the present case. It is submitted that therefore, the reasoninggiven by the High Court while converting the conviction from Section302 IPC to Section 326 IPC can be said to be perverse.

4. Present appeal is vehemently opposed by Shri Salman Khurshid,learned Senior Advocate appearing for the respondents – accused.

4.1 It is vehemently submitted by Shri Khurshid, learned SeniorAdvocate appearing for the accused that in the facts and circumstancesof the case and having found no fracture on the head of the deceasedand he died after six days of the incident and also, considering the factthat the injuries were not so serious and/or grave, the High Court hasrightly acquitted the accused for the offence under Section 302 IPC andhas rightly converted the same to Section 326 IPC. It is submitted byShri Khurshid, learned Senior Advocate that when the deceased wasfirst taken to the PHC, PW6 Dr.B.L. Katiyar who did MLC of injuredRam Autar (who subsequently died) noticed nine injuries which weresimple in nature. It is submitted therefore that the case would not fallunder Section 302 IPC as observed and held by the High Court.

4.2 It is submitted by Shri Khurshid learned Counsel appearing onbehalf of the accused that in fact the incident occurred on the spur ofthe moment and the quarrel took place because of the minor dispute andthere was no intention to kill the deceased, therefore, the case would notfall under Section 302 IPC.

5. Making the above submissions it is prayed to dismiss the presentappeal more particularly when the High Court has already passed anorder to pay compensation of Rs.2 lakhs to the objector Raman Babu.

6. We have heard learned counsel appearing for the respectiveparties at length.

7. At the outset, it is required to be noted that on appreciation ofevidence the trial Court convicted the accused for the offence underSection 302 IPC and Section 302 read with Section 34 of the IPCrespectively, having killed/committed the murder of deceased Ram Autar,relying upon the medical evidence on record as well as the evidence ofeye-witnesses of PW1 and PW2. However, in an appeal preferred bythe accused, the High Court has observed that PW1 and PW2 – eyewitnesses are wholly trustworthy and there is no reason to disbelievetheir statements. Though the High Court has accepted the case on behalfof the prosecution that on 20.12.1983 in the evening all the four accused A

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Apersons entered the field of the complainant and started abusing deceasedRam Autar and all the accused persons were having different weaponswith them and all of them started beating the deceased resulting in anumber of injuries on his body and thereafter when the Ram Autar wastaken to the hospital and later succumbedto injuries and died, the HighCourt has converted Section 302 IPC to Section 326 IPC on the groundBthat the deceased died after six days of the incident and no facture onhis head was found. However, the High Court has not at all consideredthe injuries mentioned in the post mortem report. As per the post mortemreport following antemortem injuries on the dead body of the Ram Autarwere found:C“1. Scabbed abraded contusion 8 cm x 6 cm on the left side ofheadabove the left eye brow.

2. Scabbed abraded contusion 9 cm x 5 on the left scapularregion.3. Scabbed abraded contusion 6 cm x 5 cm on the left sideofbuttock.D

4. Abraded contusion 4 cm x 4 cm on the 5th lumber spine.

5. Infected wound 1.5 cm x 0.5c, x muscle deep on the frontofmid of left leg.

6. Multiple scabbed abraded contusion in an area of 18 cm x2 cmEon the upper half of left leg.

7. Scabbed abrasion on an area of 22 cm 2 cm on the front ofrightleg.”

7.1 As per the deposition of Dr.P.R. Mishra – PW8 who conductedFthe post mortem, on opening of the brain menages, found brain congested,subdural hematoma over both temporal lobes. As per the doctor thedeceased died due to head injury no.1. The aforesaid injuries moreparticularly head injury no.1 was fatal and because of said injuries thedeceased died. Merely because the deceased died after six days couldnot have been the ground to set aside the conviction for the offenceGunder Section 302 IPC and to convert it to Section 326 IPC. The deceasedwas first taken to the PHC, however his condition was found to beserious and therefore, he was taken to the Lucknow Hospital on20.12.1983 and thereafter while under treatment he died on 26.12.1983and the main cause of death is found to be the head injury no.1. At thisHstage, it is required to be noted that though the High Court has noticed the nine injuries as noticed by Dr. B.L. Katiyar of Medical Officer atPHC, the High Court has not at all noticed and/or considered at all theantemortem injuries on the dead body of Ram Autar mentioned in thepost-mortem report. As observed hereinabove and as per the medicalevidence the cause of death was due to head injury no.1. The weaponwas used on the head - vital part of the body and ultimately the sameproved to be fatal and the deceased died due to head injury no.1.Therefore, by no stretch of imagination the case would fall under Section326 IPC.

7.2. One another reason given by the High Court to convert theconviction from Section 302 IPC to Section 326 IPC is that no fractureon the head was found. However, it is required to be noted that thedeceased died because of the internal injuries. As per the post-mortemreport and the medical evidence head injury is found. Head injury no.1 isreproduced hereinabove. As per the deposition of Dr. P.R. Mishra –PW8, who conducted the post-mortem, on opening of the brain menages,he found brain congested, subdural hematoma over both temporal lobes.Therefore, merely because no fracture was noticed and/or found cannottake the case out of Section 302 IPC when the deceased died due tohead injury no.1. As observed hereinabove causing injury on the headcan be said to be causing injury on the vital part of the body and thereforea clear case of Section 302 IPC has been established and proved.Therefore, the learned trial Court rightly convicted the accused for theoffences under Section 302 IPC and Section 302/34 IPC respectively.

7.3 Even otherwise considering Section 326 IPC, we fail toappreciate how the case would fall under Section 326 IPC when thedeceased actually died due to grievous hurt and the injuries were on thevital part of the body – head. At this stage, it is required to be noted thatin fact the accused went to the field of the complainant where his fatherdeceased Ram Autar was also working. All of them went with the deadlyweapons and had beaten the deceased Ram Autar and caused seriousinjuries and immediately the deceased Ram Autar was required to betaken to the hospital and he was first taken to PHC and thereafter toLucknow, Hospital where he succumbed to the injuries. For the reasonsstated above also the High Court has committed grave error in convictingthe accused for the offence under Section 326 IPC by acquitting theaccused for the offence under Section 302 IPC. The impugned judgmentand order passed by the High Court acquitting the accused for the offenceSection 302 IPC and to convict the accused for the offence under Section A

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A326 IPC is unsustainable and deserves to be quashed and set aside andthe judgment and order passed by the trial Court is required to be restored.

8. In view of the above and for the reasons stated hereinabovethe present appeal succeeds. The impugned judgment and order passedby the High Court acquitting the accused – respondents Jai Dutt andBShastri for the offence under Section 302 IPC and Section 302/34 IPCrespectively and convicting them for the offence under Section 326 IPCis hereby quashed and set aside. The judgment and order of the learnedtrial Court convicting the accused Jai Dutt for the offence punishableunder Section 302 IPC and convicting the accused - Shastri for theoffence punishable under Section 302/34 IPC is hereby restored. TheCrespondents – accused are sentenced to undergo life imprisonment withthe fine as imposed by the learned trial Court.

Now both the accused be taken into custody forthwith to undergothe life imprisonment. Present appeal is allowed accordingly.

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Bibhuti Bhushan Bose

Appeal allowed.

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