Babu Lal vs State

AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 236 of 1985
Babu Lal
.....Appellant(s)
Versus
State
.....Respondent(s)
Counsel for Appellant(s) : Virendra Singh Chauhan, Dhiraj
Srivastava, Deepak Kumar Pandey A/C,
From Jail, H.N.Sharma, V.S.Chauhan
Counsel for Respondent(s) : A.G.A

Court No. - 42
HON'BLE ATUL SREEDHARAN, J.
HON'BLE JAI KRISHNA UPADHYAY, J.
1. Heard Sri D.P. Singh, learned Senior Counsel assisted by V.S. Chauhan,
learned counsel for the appellant and Ms. Divya Ojha, learned AGA-I, for
the State.
2. The present appeal has been filed by the sole appellant who is aggrieved
by the judgment of the conviction dated 11.10.1984 passed by the learned
Court of Session, in S.T. No.607 of 1984 (State Vs. Babu Lal Kachi). By the
said judgment and order, the appellant was convicted for offence under
Sections 302 and 323 IPC and sentenced to suffer rigorous imprisonment for
life under Section 302 IPC and one year's rigorous imprisonment under
Section 323 IPC.
3. Brief facts of the case are as follows:
4. The deceased Ganga and the accused Babu Lal are brothers. On
25.03.1984 at about 11:30 am, an oral report was given by PW-1 to the
police, a summary of which reflects that on the date of the incident, the
appellant Babu Lal who was armed with the Sabri (from description given
by learned Senior Counsel for the appellant and learned AGA, it appears to
be used for digging which is approximately one and half feet), came from
behind and struck the deceased on his head at least three to four times. When
she pleaded with him to stop, she was also attacked. PW-1 is the wife of the

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2
deceased. She further says that her sister-in-law came there, interceded and
removed the Sabri from the hands of the appellant (which is stated to be used
for digging which is one and half feet), as so stated by the Investigating
Officer in his deposition.
5. Learned Senior Counsel appearing on behalf of the appellant submits that
during the course of the trial and thereafter during pendency of the appeal,
the appellant may have completed approximately five years of sentence
before he was enlarged on bail by this Court. Learned Senior Counsel for the
appellant has put forth several arguments, firstly, stating that the entire case
against the appellant is false as most material witness in this case who was
Rani, sister of the deceased who is alleged to have interceded, snatched the
Sabri from hands of the appellant and who gave the Sabri to the police, has
never been examined as a witness. Therefore, the argument is that the best
evidence in this case has been concealed by the prosecution which vitiates
the trial itself.
6. The secondly, the learned Senior Counsel for the appellant submitted that
no motive for the murder has been proved by the prosecution and what is
stated to be motive which has come out in the deposition of PW-1 to the
effect that a day before the incident, there was a sharing of moveable articles
between the deceased and the appellant during which, the deceased
requested the appellant to leave some articles for him also to which the
appellant allegedly stated that he will not leave a single article for the
deceased and his family and shall take everything. This, according to the
learned counsel for the appellant, was too insignificant an instance in order
to motivate the appellant to take the life of his own brother and, therefore, it
should be held by this Court that the prosecution has not been able to prove
the motive in this case.
7. The third argument put forth by learned Senior Counsel for the appellant
is whether the death allegedly caused by the accused using an object which
is not used as a dedicated weapon and was further used from the blunt side,
would reflect that the accused had the intention to kill the deceased. He
further submits that even if the prosecution case is taken in its entirety to be
true and proved beyond reasonable doubt, the only offence for which the
appellant could have been held guilty of and punished, was for an offence
under Section 325 IPC (causing grievous hurt).

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3
8. The last argument put forth by learned Senior Counsel for the appellant is
that the prosecution has failed miserably to prove the intention beyond
reasonable doubt. In this regard, it has been submitted that the intention has
to be inferred from the sum totality of facts of a particular case. In this case,
learned Senior Counsel for the appellant has argued that the offending
weapon which was seized by the police is only one and half feet long in
length and made of iron and not an article that is used as a weapon but
something that finds use in agriculture.
9. Under the circumstances, learned Senior Counsel for the appellant submits
that as the appellant did not reach the scene of occurrence and attack the
deceased with a weapon which could only cause grievous hurt or death, then
in such a situation, the Court must necessarily arrive at a finding that the
prosecution has not been able to prove the intention.
10. Per contra, learned counsel for the State, on the other hand, has argued
that though it is correct that Rani who otherwise a material witness, has not
been examined by the prosecution, the case of the prosecution is not
weakened as the rule of best evidence is never applicable in criminal
jurisprudence. She has further argued that the guilt of the accused must be
arrived at by the learned trial court on the basis of the evidence as has been
adduced by the prosecution and if the same, in exclusion to the best evidence
is still able to prove guilt of the accused beyond reasonable doubt, then in
such a case the accused can be convicted for the offences that he has been
charged of.
11. As regards the second submission of the learned Senior Counsel for the
appellant with regard to the absence of motive, learned counsel for the State
has drawn the attention of the Court to the deposition of PW-1 before the
learned trial court where she has categorically stated that a day before the
incident, there was a discussion between the deceased and the appellant with
regard to apportioning of the moveable properties. In this regard, learned
counsel for the State submits that PW-1 has stated that there was a request
by the deceased to the appellant to leave some articles for him and his family
which was outrightly refused by the appellant who said that he would not
leave anything for the deceased and his family and that he would take
everything. According to the learned counsel for the State, this altercation
and the answer given by the appellant was proved by statement of PW-1
which has not been disturbed by cross examination only goes to show that

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4
there was an element of animosity which came into existence a day before
the incident itself, and the same can be deemed to be reasonable motive.
Even otherwise, learned counsel for the State has argued that where the
evidence on record is available to prove the intention on the basis of the

ocular evidence, the question of motive loses significance which, according
to the learned counsel for the State, may be an imperative aspect in a case
based on circumstantial evidence but not in a case where direct evidence has
come on record.
12. As regards the question of death being caused by the accused by use of
an object which is not traditionally used as a weapon of offence but as an
agricultural tool and, therefore, the question of intention not being proved by
the prosecution, learned counsel for the State has submitted that the intention
to cause death or grievous hurt which in its ordinary course of nature can
result in death, has to be assessed from some totality of the circumstances. In
this case, learned counsel for the State has submitted that there were multiple
assaults on the deceased by the appellant and, therefore, the circumstance
supports the inference that the appellant wanted to cause the death of the
deceased rather than to subject him to bodily pain.
13. Heard learned counsel for the parties and perused the record of the
learned trial court.
14. There are two prosecution witnesses who are material in this case. They
have been examined. Rani who was also a material witness, as is so
appearing from the charge sheet, has not been examined. However, in
criminal jurisprudence, it is well settled that the best evidence rule does not
apply, and its non-production in trial would not disturb the substratum of the
prosecution's case. The prosecution's case is always to be assessed on the
basis of evidence adduced by it before the learned trial court. It is the
prosecution's prerogative as to whom they examine as witness and even
though they may have named ten witnesses in the charge sheet, they are not
bound to examine all of them. The Court, on the other hand, would
appreciate the guilt of the accused, or lack of it, based upon the evidence
adduced by the prosecution. As relating to the best evidence rule and non-
examination of a material witness, it is always open to the defence to call
that witness in defence. Non-production of material or best evidence before
the learned trial court does not mean that the defence is precluded from
calling them as witnesses on their behalf. Where the best evidence is a

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5
document, the Court would always decide whether to call for that document
under Section 91 of the erstwhile Cr.P.C. either on its own, or if such
application is moved by the defence or prosecution. Therefore, this Court
with all due respect, rejects the argument that non-examination of a material
witness and thereby not producing the best evidence by the prosecution, has
gone to weaken its case.
15. In this case, PW-1 is the wife of the deceased. PW-2 is the daughter of
the deceased. Both of them have corroborated each other on material
particular of the case. PW-1 has categorically stated the events of the
morning as to how the appellant came from behind when her husband was
sitting near the front door and assaulted him from behind three to four times
which caused injuries to the deceased due to which he died on the spot. This
witness has also stated that a day before the incident, the discussion had
taken place between the deceased and the appellant with regard to
apportionment of moveable property to which both of them were heirs.
16. PW-2 is also an eyewitness to the incident and being the daughter, she
states likewise as her mother. She has also stated how her aunt (sister of the
deceased) came and disarmed the appellant. She also states that the deceased
died on the spot. Both these witnesses have not been contradicted on
material particulars given in their examination in chief. A suggestion was
also given to both these witnesses that they have not actually seen the
incident and they are falsely stating before the learned trial court which has
been denied by both the witnesses.
17. The post mortem report goes to corroborate the statements of PW-1 and
PW-2. However, learned counsel for the appellant has taken an objection for
taking the post mortem report into consideration as that was marked as
Exhibit without getting the same proved by calling the doctor as a witness
and has stated that the post mortem report would not be covered under
Section 293 of the erstwhile Cr.P.C. as that only covers scientific reports like
FSL reports or ballistic reports etc. He has also submitted that it was
essential for the learned trial court to call the doctor before the learned trial
court and get him to reiterate the injuries recorded by him in the post mortem
report and give an opportunity to the defence to cross examine.
18. However, while going through the impugned order, it appears that at
internal page no.5 of the impugned judgment, the learned trial court has

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recorded that learned counsel for the accused himself has admitted the
genuineness of the post mortem report on account which it was marked as
Exhibit Ka-13. Thus, it appears that at the time of admission or denial of the
document under Section 294 Cr.P.C., the defence has admitted the
genuineness of the post mortem report and the effect of such admission is
that no formal proof needs to be adduced. Thereafter, the learned trial court
has recorded five injuries seen on the deceased, which are reproduced herein
below:
"(i) Abraded contusion in an area of 8 cm x 7 cm on inner side of
right eyebrow of right side present.
(ii) Abraded contusion 3 cm x 1 cm on top of right cervical.
(iii) Abraded contusion in an area of 11 cm x 2 cm on outer side
of left shoulder joint.
(iv) Abraded contusion in an area of 7 cm x 5 cm on left side face
just below ear.
(v) Lacerated wound 4 cm x 2 cm on right side head parietal and
frontal bone."
19. The last injury no.5 was a lacerated wound on the right side of the head
on the parietal and frontal bone resulting in communited fracture and the
death was caused on account of the ante mortem injuries which were
sufficient to cause instantaneous death and could be caused by the Sabri
which is stated to have been used by the appellant in the ordinary course of
nature.
20. We find the arguments put forth by the learned counsel for the State
forceful that the incident that happened a day previous was sufficient enough
to be taken into congnizance to establish motive. Even otherwise, as the
offence has been proved by direct evidence of two eyewitnesses who have
testified before the learned trial court, the motive loses its significance.
21. As regards the next issue raised by the learned counsel for the parties
with regard to the absence of the intention, as the article that was used to
commit the offence was not a dangerous weapon and that it was an article
that was used commonly in agriculture. As regards this, the learned counsel
for the State has submitted that when the appellant entered the house and

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7
approached the deceased from behind, he had concealed the Sabri by holding
it in such manner that its possession by the appellant was concealed by his
forearms. As regards the argument of the learned counsel for the appellant,
the absence of the intention in this case or inability of the prosecution to
prove the same, this Court holds that the intention to commit an act depends
upon several factors. By examining these factors, the Court is able to infer
that the actions of the appellant resulted in the outcome that was expected or
desired by the appellant. The first thing that goes to reflect the intention in
this case is that it was the vital part of the body (head) that was repeatedly
assaulted five times by the appellant.
22. The post mortem report corroborates the deposition of PW-1 who says
that her husband's head was struck three to four times by the appellant. The
post mortem report also corroborates that part of the witness testimony that
the appellant approached the deceased from behind as the injuries on the
body are on the head which is parietal and frontal bone, cervical area of the
neck, and right shoulder, are all parts of human anatomy which are on the
rear of the human body but for the injury on the parietal bone (side of the
head) and the frontal bone (front upper part of the skull). Therefore, the
intention of the appellant was to approach the deceased in such a manner
that the victim did not have a chance to act in self defence.
23. The intention to commit murder cannot be dismissed only on account of
nature of weapon used. More particularly, the intention is to be adduced by
that part of human anatomy which was targeted by the assailant, coupled
with the knowledge (also a part of mens rea) that the use of the article to
target a vital part of the human body would cause grievous hurt which, in the
ordinary course of nature, may result in death or will result in death.
Illustratively, a person throwing a brick at the victim but missing the target
altogether or resulting in a minor injury on the head, the person may still be
tried and convicted for an offence under Section 307 IPC for attempt to
commit murder as the article used and targeted the part of human anatomy
was such that if the blow was full and completely received by the targeted
part of the body, it would, in all probability, have resulted in death,
depending upon the force with which it was thrown. Contrast this, with a
pebble thrown on the head of a person which strike the head of the person,
for which an offence under Section 307 IPC is inconceivable as the article
that was used would never cause either grievous hurt or death in the ordinary
course of nature. Another illustration with regard to such a situation where

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8
two labourers have a quarrel and one stabbed the other on the inner part of
the victim's thigh which severs the femoral artery, and the victim dies on
account of which the accused may only be convicted for an offence under
Section 326 IPC for having caused grievous hurt using dangerous weapon or
means. Contrasting the same situation, if a quarrel takes place between two
doctors and the same injury is caused by the doctor on account of which the
victim dies, the doctor may be prosecuted and convicted for an offence
under Section 302 IPC or 304 Part-I or II IPC because the doctor being
educated in medical science knows exactly where the femoral artery passes.
Thus, mens rea should be adduced from the circumstance to see if the
accused bore adequate knowledge or intention.
24. Thus, in the present case, the argument of the learned Senior Counsel
appearing on behalf of the appellant that the intention has not been proved,
this Court rejects the same. The deceased was struck not once but four times.
He died on the spot. The ferocity of the attack on the victim disclosed the
intention of the accused person to cause death as he arrived there
surreptitiously concealing the weapon, from behind the deceased in order to
ensure that the deceased did not even get a fighting chance or an opportunity
to exercise his right of private defence. Where the knowledge is of such a
nature that a reasonable person can draw the inference that the actus reus
would, in all probability than not, in the ordinary course of the nature, only
result in death and that the death would be the only probable outcome in
which case, the conviction may take place under Section 302 IPC. In the
present case, as already stated by learned counsel for the State that the
deceased has been targeted repeatedly on the head which clearly shows that
the appellant's intention was not merely to cause hurt to the deceased as if
that was the intention, the appellant could have struck any non-vital part of
the body.
25. Under the circumstances, in view of what has been argued and evidence
adduced before the learned trial court, this Court holds that the appellant
acted in a manner with the intention of causing death of the deceased which
was an natural outcome of his action, therefore, we do not find any infirmity
or perversity in the impugned judgment passed by the learned trial court.
Consequently, the present appeal is dismissed.
26. However, we have also taken into consideration the argument put forth
by learned Senior Counsel for the appellant that the appellant is now 82

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9
years of age and, therefore, the Court may consider in reducing his sentence
to the period undergone. That, unfortunately, is an impossibility for this
Court. The evidence adduced did not reflect a sudden and grave provocation
or sudden fight account of which the Court may examine the possibility of
setting aside the conviction under Section 302 IPC and hold the appellant
guilty under Section 304 Part-II IPC. There is no such mitigating facts
available to scale down from Section 302 IPC to Section 304 Part-II IPC.
27. The fact that the appellant would have to go back to jail after 40 years,
no doubt, disturbs this Court but this Court, not being vested with powers of
the Supreme Court under Article 142 of the Constitution of India, cannot do
otherwise but send the appellant now back to jail to complete the remaining
part of his life sentence.
28. The appellant's bail bonds are cancelled. He shall surrender forthwith
before the learned court concerned which shall send him back to jail to
complete the remaining part of the sentence. If the appellant does not
surrender before the learned court concerned, shall issue non-bailable
warrants to secure his presence and thereafter send him to jail.
29. The record of the learned trial court be sent back.
July 17, 2026
rkg
(Jai Krishna Upadhyay,J.) (Atul Sreedharan,J.)
Digitally signed by :-
RAKESH KUMAR GAUTAM
High Court of Judicature at Allahabad