For the appellant: Mrs Nanita Sharma, advocates
For the respondent: Mr Sourav Roy, Deputy advocate general, Mr Mahesh Kumar, Mr Pranav Sachdev, Mr Prabudh Singh, Mr Sushant Yadav, Mr Devika Khanna, Mr Leeladhar Prajapat advocates.
The appellant attacks his conviction under section 302 of the Indian Penal Code and the consequent sentence of life imprisonment upheld by the high court.
Ms Nanita Sharma the learned counsel or the appellant submits that all the four witnesses are related to the deceased. The two independent witnesses were not examined. The serological report about the blood group of the deceased matching that alleged to have been found on lathi has not been established. The recovery of the lathi has not been given proper evidence. The deceased did not die immediately but scummed to his injuries in the hospital the assault was at the spur of the moment with no planning the appellant had also suffered injuries
Shri Sourav Roy the learned counsel for the State opposing the appeals submits that the deceased had the field the appellant was the aggressor the deceased died on the spot the intention to cause death is apparent from the assault made on the head, a sensitive part of the human body the appellant cannot urge to have acted in self-defence because he was the aggressor.
The learned counsel was heard for the parties at length civil land dispute of parties existed the occurrence is stated to have taken place on 23rd November 2001 at 2:00 pm while the deceased was harvesting crops. The appellant attacked him with a lathi on the head. The deceased expired in the hospital the next day at 7:45 pm the doctor proved the post mortem report found the two contusions on the left and the right partial portion and fracture on the left parietal bone opening it to be dangerous to life other witnesses who were injured confirmed that the appellant also suffered injuries in the occurrence.
The high court on appreciation of the proof has concluded that the assault was not premeditated but had taken place in a heat of passion due to dispute of land if the appellant had the intention nothing stopped him from further assaulting the deceased nevertheless it maintained the sentenced of the appellant under section 302 of IPC as death had taken place in accordance to assault to him.
Lathi is a common item carried by a villager in the country connected to his identity the fact that it is also able of being used as a weapon of assault does not make it a weapon of assault simpliciter in cases like the presence of an assault on the head with a lathi it is always a question fact in each case whether there was the intention to cause death or only knowledge that the death was likely to occur. The circumstances manner of assault nature and number of injuries will a have to be taken into consideration.
The weapon used is not a deadly weapon as rightly said by the learned counsel the whole occurrence was a result of a trivial incident and in those situations, the accused dealt two blows on the head with a lathi, therefore, it cannot be said that he intended to cause the sufficient injury. It can be said that by inflicting such injuries he knew that he was likely to cause the death in which case the offence done by him would be a culpable homicide and not amounting to murder accordingly the conviction was set aside of the appellant under section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead, the appellant was convicted under section 304 part II IPC and sentence him to five years. The injuries were medically opined sufficient in the ordinary course to cause death conviction under section 302 IPC.
Accordingly, the appeal was allowed to this extent that the conviction of the appellant under section 302 IPC and the sentence of transportation for life awarded to him will be set aside but the appellant will be convicted of having committed of an offence under section 304 part II of the Indian Penal Code and will be sentenced to seven years of rigours imprisonment.
In Gurmukh vs state of Haryana, the deceased died three days after an assault on the head with the lathi opined to be sufficient in the ordinary course of nature to cause death holding that the assault was made on the spur without presentation the conviction was altered from one under section 302 to section 304 part II and a sentence of seven years was handed making changes the conviction from section 302 to 304 part II the appellant was sentenced to the period undergone since 1999.
Accordingly the conviction of appellant was altered from section 302 IPC to section 304 part II IPC the appellant is on custody since 2004 he has already undergone maximum period of sentenced prescribed under the same the appellant is therefore directed to be set at liberty forth wise unless wanted in any other case.