Prayagraj: The Allahabad high court has dismissed the criminal appeal of an 82-year-old man convicted of murdering his brother in 1984 and directed him to surrender to serve the remaining part of his life sentence.A bench of Justice Atul Sreedharan and Justice Jai Krishna Upadhyay held that the evidence on record did not disclose any mitigating circumstances warranting conversion of the appellant’s conviction from Section 302 IPC (murder) to Section 304 Part II IPC (culpable homicide not amounting to murder).Rejecting the appellant’s plea to reduce his sentence to the period already undergone, the court observed that it could not extend such relief merely because the appellant was now aged 82 and had remained on bail during the pendency of the appeal for nearly four decades.The court observed, “The evidence adduced did not reflect any sudden and grave provocation or sudden fight on 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 are no such mitigating facts available to scale down the conviction from Section 302 IPC to Section 304 Part II IPC.”The court said that though it was disturbed that the accused-appellant would have to return to jail after 40 years, it could not grant relief as it did not possess the powers vested in the Supreme Court under Article 142 of the Constitution of India.The accused-appellant, Babu Lal, was convicted by the trial court in Oct 1984 for causing the death of his brother by repeatedly assaulting him with a sabri, an implement used for agricultural digging.Before the high court, his counsel, among other submissions, argued that the accused-appellant had allegedly used an implement that was not a dedicated weapon and had struck the deceased with its blunt side, which, according to the defence, showed that he had no intention to kill.It was contended that even if the prosecution case was accepted in its entirety and proved beyond reasonable doubt, the appellant could only have been held guilty and punished for an offence under Section 325 IPC (causing grievous hurt).“The intention to commit murder cannot be ruled out merely on account of the nature of the weapon used. More particularly, the intention has to be inferred from the part of the human body targeted by the assailant, coupled with the knowledge, which is also a part of mens rea, that using such an 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 would result in death,” the court observed in its judgment dated July 17.
