Ramesh Sinha, J.
1. Heard Sri Rajrishi Gupta, advocate, holding brief of Sri Dileep Kumar, learned counsel for the appellants and Sri L.D. Rajbhar, learned A.G.A. for the State.
2. This criminal appeal has been filed against the judgment and order dated 16.1.1982 passed by IVth Additional Sessions Judge, Allahabad in Criminal Sessions Trial No. 105 of 1980, State v. Kantan and others, convicting the appellants for an offence u/s 304, Part-I read with Section 34, I.P.C. and sentencing them to undergo rigorous imprisonment for a period of five years.
3. The prosecution case in brief is that accused Kantan and Sundar are the uncles of accused Baij Nath and Bhaiya Lal. Ghanshyam Bharti a resident of their village is the son of the deceased, Badloo Bharti. At about 3 p.m. on 26.3.1979, all the accused persons being armed with lathis were getting a charahi constructed on a passage to and near a public well in the said village. The villagers protested against the said encroachment. Badloo Bharti joined them and became more vocal and active in the said protest. Consequently, all the accused persons, forming a common intention started assaulting Badloo Bharti on the spot. Ghanshyam Bharti, Mahabir and Ram Das Pasi s/o Gaya Din Pasi arrived their and intervened. Being injured, Badloo Bharti fell down and became unconscious. After that, the accused persons ran away from there. The injured Badloo Bharti, then became unconscious and taken to the Police Station Sarai Aquil. Ghanshyam Bharti, his son, lodged the F.I.R. Ext. Ka-1 with the Police at 5 p.m. on the same day. After that the injuries of Badloo Bharti were medically examined by Dr. J.P. Gupta, the then Medical-officer-in-charge. State Dispensary, Sarai Aquil at 5.45 p.m. on the same day. Since the condition of Badloo Bharti was serious, he was referred to T.B. Sapru Hospital, Allahabad. He was brought there and again referred to the Medical College, Allahabad. He was admitted and treated there in S.R.N. Hospital of the said college. He succumbed to the injuries at 1.45 p.m. On 27.3.1979. Ruk Mangal Singh, the then Sub-Inspector
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out post Suraj Kund, P.S. Kotwali, District Allahabad, conducted the inquest between 9.15 a.m. and 10 a.m. on 28.3.1979. After that Dr. R.V. Singh, the then Medical Officer, M.L.N. Hospital, Allahabad, conducted the autopsy on the dead body of Badloo Bharti at 3.15 p.m. on the same day. Ghanshyam Bharti moved an application Ext. Ka-2 to S.S.P., Allahabad for converting the case. Since the local police had received the papers concerning the death of Badloo Bharti on 6.4.1979, the case for the Crime No. 49 for the offence u/s 304, I.P.C. was registered against all the accused persons at 8.40 a.m. on the same day. Thereafter, Sri Pal Singh, the then Sub-Inspector posted at Sarai Aquil conducted the investigation. All the accused persons were interrogated and Ext. Ka-5 the charge-sheet against them for the offence u/s 304, I.P.C. was submitted by him on 5.5.1979. Thereafter, all the accused were committed by the Court of Sessions by the then Addl. Chief Judicial Magistrate, Allahabad, by his order dated 2.5.1980.
4. After hearing all the accused persons, they were charged for the offence u/s 302, I.P.C. read with Section 34, I.P.C. They pleaded not guilty and claimed to be tried. Each of them has further contended that he has wrongly been implicated in this case due to enmity alone.
5. The prosecution has examined in all five witnesses. On the other hand, the accused persons inspite of repeated opportunity have failed to adduce any evidence in their defence.
6. P.W.1 Ghanshyam Bharti. the complainant has proved Ext. Ka-1 the F.I.R. which was written out by Jagannath Prasad, the then Constable Moharrir. In the absence of the said Constable Moharrir, P.W. 4 Sri Pal Singh, the Investigating Officer had proved the relevant entry No. 18 of the General Diary and Ext. Ka-6 a copy there of dated 26.3.1979, P.W. 5 Dr. J.P. Gupta, who had examined the injuries of Badloo Bharti at 5.45 p.m. On the same day has proved Ext. Ka-8 the injury report on the same day. There is nothing on the record to indicate that even P.W. 5 Dr. J.P. Gupta had pre-checked the time of actual medical examination of Badloo Bharti.
7. P.W. 1 Ghanshyam Bharti, the complainant, has proved Ext. Ka-2 his application dated 4.4.1979 which was moved by him before the S.S.P., Allahabad for getting the case converted for the investigation of the crime. P.W. 4 Sri Pal Singh, has proved the entry No. 13 of 8.40 a.m. dated 6.4.1979 which was made by Head Constable Chandra Shekhar Singh and Ext. Ka-7 its copy about the altercation of the case and the registration of the crime No. 49 for the offence u/s 304, I.P.C. on the basis of the death of Badloo Bharti. He has also proved Ext. Ka-4 the site plan dated 8.4.1979 and Ext. Ka-5 the charge-sheet dated 5.5.1979.
8. P.W. 5 Dr. J.P. Gupta has testified that he had found the following injuries on the person of Badloo Bharti who was brought by Home Guard Bansi Lal from police station Sarai Aquil at 5.45 p.m. on 26.3.1979:
1. Lacerated wound 2-1/2" x 1/2" x muscle deep on the left side of scalp, 4-3/4 " above the left ear longitudinally oblique.
2. Lacerated wound 1-1/3" x 1/2" x muscle deep on the back of left side of the scalp 2-1/2" below the injury No. 1.
3. Lacerated wound 1/2" x 1/3" x skin deep on the outer angle of right eye.
4. Echymosis 3/2" x 1" on the outer aspect of right eye.
9. According to P.W. 5 Dr. J.P. Gupta the aforesaid injuries were simple, caused by blunt weapon including lathi and the said injuries might have been inflicted at about 3 p.m. also on the same day. It is further disclosed by him that the injured was then unconscious and vomiting food material. Being cross-examined, he has admitted that he had altered the endorsement of the remark column about the sharp and clean cut edges of injury Nos. 1 and 2 because the companion of the injured had reported about the user of a blunt weapon. Being suggested, he had denied that he had merely taken the thumb impression of the injured and had prepared injury report after his death only.
10. P.W. 3 Dr. R.V. Singh who conducted the autopsy at 3.15 p.m. on 28.3.1979 had found the following ante-mortem injuries on the dead body of Badloo Bharti then aged about 55 years and man of moderate built.
1. Stitched wound placed obliquely and transversely on the left parietal area of skull, measuring 2" in length and 4" above the left ear.
2. Stitched wound placed transversely on the occipital region on left side, 3" from the left mastoid process.
3. Abrasion 2" x 2" on the outer aspect of right knee.
4. Abrasion in 2" area on the right zygomatic process involving the outer part of the right eyebrow as well.
11. In the internal examination P.W. 3 Dr. R.V. Singh had found that the skull bone under the ante-mortem injury No. 1 was fractured, that membranes were congested, Haemotoma covering the label of the brain was present, and that brain underneath was compressed. Accordingly, he had opined that the death of Badloo Bharti was caused due to haemorrhage and shock which resulted from the ante-mortem injuries and that the aforesaid injuries were sufficient for causing his death in the ordinary course of nature. Being cross-examined, he had further opined that the ante-mortem abrasion found on the dead body of Badloo Bharti were possible from the fall also.
12. Learned counsel for the appellants has argued that P.W. 1 Ghanshyam who is the son of the deceased was not present at the place of occurrence and he reached at the place of occurrence after hearing the alarm raised by his father Badloo Bharti. The said fact was stated by the said witness in his statement recorded u/s 161. Cr.P.C. by the Investigating Officer, whereas he has deposed before the trial court that he was an eye-witness of the incident and has seen the four accused persons assaulting his father with lathis. He pointed out that the said previous statement of the P.W. 1 was when confronted before the trial court then he too has admitted the said fact that his statement which was recorded u/s 161. Cr.P.C. by the Investigating Officer was a correct one and the statement which he has given before the trial court is incorrect. Hence, he has challenged the presence of the said witness oh this count.
13. So far as P.W. 2. the other eye-witness of the occurrence namely Mahaveer is concerned, he submitted that the testimony of the said witness is also not reliable one as he is related to the deceased as the deceased was the cousin brother of the said witness. He argued that the said witness has deposed before the trial court that when the deceased was brought to P.H.C. Sarai Aquil after the incident by the Home Guard he had accompanied the injured Badloo Bharti to the hospital and he did not see that he was vomiting in the hospital. When the doctor had seen the injured then he asked them to take the injured Badloo Bharti to T.B. Sapru Hospital. Allahabad. He did not took any thumb impression on any piece of paper and the doctor remained with the injured for 10-15 minutes. Further, the doctor had not prepared any paper nor had given him any first aid. Thereafter, he alongwith the Ramdas, Ghanshyam and Dharamdas had taken the injured to T.B. Sapru Hospital, Allahabad and reached there on the next day at about 9 to 10 a.m. They had carried the injured on a cot. He remained at the police station from 5 p.m. to 7.30 p.m. and thereafter took the injured to the hospital.
14. He further urged that P.W. 5 Dr. J.P. Gupta who has examined the injured Badloo at 5.45 p.m. has stated that when the injured was brought at the P.H.C. Sarai Aquil then he was in an unconscious state and was vomiting and he found four lacerated wounds on the person of the injured which were stated to have been caused by blunt object, but he has also noted down in the said injury report which was prepared on 26.3.1979 that the edges of all the injuries No. 1 and 2 were seen to be sharp and clear cut as the persons who had brought the injured to him has reported that the injuries were caused by blunt object. Hence, he has altered the fact that the injuries were found to be sharp and clean cut. He submitted that the evidence given by P.W. 5 is contradictory to the statement of P.W. 2 who had accompanied the injured to the P.H.C. Sarai Aquil. Hence, the medical examination which has been done by Dr. J.P. Gupta appears to be fabricated document in order to falsely implicate the four appellants in the present case as the post-mortem report of the deceased shows that he received two injuries on his head and the third injury, which was abrasion, was found on outer aspect of knee and fourth abrasion was on the right eyebrow.
15. Learned counsel for the appellants further submitted that a general role has been assigned to all the accused persons for causing injuries to the injured who subsequently died as a result of head injury, hence, the author of the said injury which has proved fatal causing death of the deceased is not known.
16. He further urged that after seeing the post-mortem and the injuries which were prepared by the Dr. J.P. Gupta of the injured have been fabricated as is also evident from the evidence of P.W. 2 as well as the evidence of P.W. 5 who has admitted about the altercation of sharp edge injuries with respect to sharp edge injuries which he had initially detected at the injured.
17. He further submitted that the truthfulness of the prosecution story appears to be a doubtful one and appellants be given benefit of doubt as false implication of the appellants is quite natural as the Badloo. the deceased, was a man of criminal antecedents and there were criminal cases pending against him and he also bore some inimical relationship with the family of the appellants. Hence, the sentence and conviction of the appellants be set aside.
18. The learned counsel for the appellants has lastly, submitted that the present appeal has come up for hearing after 32 years and the appellant No. 2 is aged about 63 years, appellant No. 3 is aged about 53 years and appellant No. 4 is aged about 73 respectively as on date and they have settled with their family and to send them to jail after 35 years when the incident took place, it would be too harsh and further their family would be put to great hardships. The appellants had already remained in jail for about two months during the trial and after their conviction by the trial court. Hence, the rest of his sentence of the appellants No. 2, 3 and 4 be converted into fine and the same shall not be treated as enhancement of sentence.
19. Per contra, Sri L.D. Rajbhar, has argued that from the evidence of P.W. 2 who is an eye-witness of the incident, it is evident that the four accused persons had assaulted the deceased with lathis and four injuries were received by him. He received three injuries on left side of his head and fourth injury above right eye and all the four injuries were bleeding. He further submitted that the P.W. 2 who was an independent witness and his evidence cannot be said to be partisan one as he was not related to the deceased Badloo and he only treated him as his cousin brother because of the fact that he was resident of the same village where the deceased was also residing.
20. He further argued that the medical report which was prepared by Dr. J.P. Gupta P.W. 5 also found four injuries on the person of the injured Badloo when he was first brought to him at P.H.C. Sarai Aquil and due to the said injuries the deceased succumbed to his injuries and died on the next day in Tej Bahadur District Hospital because of the said injuries and post-mortem report of the deceased also shows that he received four injuries which was also detected by Dr. J.P. Gupta P.W. 5. He further submitted that the ocular testimony of P.W. 2 fully corroborates the medical examination report as well as postmortem report of the deceased. Hence, the conviction and sentence of the appellants by the trial court is absolutely justified and proper.
21. Considered the submissions advanced by the learned counsel for the parties and perused the record.
22. From the evidence of P.W. 1 who is the informant of the case it is clear that he has witnessed the incident which had taken place on the date and time which has been stated by the prosecution. The argument which has been argued by the learned counsel for the appellants that P.W. 1 when confronted in his 161, Cr.P.C. statement before the trial court that he was not present at the place of occurrence and he has reached at the place of occurrence on the alarm raised by his father appears to have been made under some mistaken belief as his evidence was recorded by the trial court after 2-1/2 years of the incident and it might be possible that his memory would have faded.
23. It is noteworthy to mention here that in the non-cognizable report which was lodged by P.W. 1, all the four accused persons were named. He has stated that there was a dispute with the accused persons for the construction of a charahi at the well which was resisted by his father and all the accused persons had assaulted his father with lathis and dandas and on the arrival of the witnesses and other villager, accused persons fled away after threatening them. Moreover, on 4.4.1979 after the death of the deceased, P.W. 1 had further reiterated the prosecution story in an application made to the S.S.P., Allahabad wherein he has stated that all the accused persons have assaulted the deceased with lathis.
24. The discrepancy regarding the introducing of pharsa was explained by the said witnesses in his deposition before the trial court as he has stated that due to mistake he has written in his application that the accused had assaulted his father also with pharsa alongwith lathis.
25. So far as the evidence of P.W. 2 Mahaveer who is an eye-witness of the incident is concerned, his deposition before the trial court regarding the manner of the incident which had taken place has been narrated by him and he had deposed that all the four accused persons had assaulted the injured Badloo Bharti with lathis when he protested for the construction of the charahi at the well on account of which the accused were annoyed and he was assaulted by them. As soon as the injured received injuries, he was taken to the police station by his son P.W. 1 alongwith P.W. 2 and other villagers from where the injured was sent by a Home Guard to P.H.C. Sarai Aquil for his medical examination. Dr. J.P. Gupta, who was the medical officer at the said P.H.C. has examined the injured Badloo Bharti at 5.45 p.m. and found three lacerated wounds on his person and out of which two lacerated wounds were found on his head and one lacerated wound was found on his outer side of right eye and one abraded contusion on outer aspect of right eye. He deposed that the injured was brought in an unconscious state and he had thrice vomited which shows that the injured was brought in a serious condition at the P.H.C, Sarai Aquil.
26. It further transpires from the evidence of P.W. 5 that the injured was examined by him on the basis of chitthi majroobi and he has proved the medical report Ext. Ka-8.
27. The argument of the learned counsel for the appellants that medical report of the injured which was prepared by Dr. J.P. Gupta P.W. 5 was a fabricated one, does not find force as he has denied the suggestion regarding any such fabrication by him before the trial court and explanation has been given by him for alteration of the edge of injuries sharp and clean cut. It appears that the said discrepancy which has occurred in the medical report of the injured by the said doctor appears to be a human error and there is nothing on record to show that the injuries which was prepared by P.W. 5 are the fabricated injuries, particularly, when the same is taken into account alongwith the ante-mortem injuries which was found on the person of the deceased who succumbed to his injuries and subsequently died. Dr. R.V. Singh who had conducted the post-mortem of the deceased, at the time of postmortem found two stitch wound on parietal and occipital region of the injured and there was also abrasion on his right knee and also an abrasion on outer aspect of right eye. Thus, the post-mortem of the deceased also corroborates the medical report which was prepared by the Dr. J.P. Gupta P.W. 5. Hence, the evidence of P.W. 3 Dr. R.V. Singh also corroborates the medical examination report prepared of the injured by P.W. 5 Dr. J.P. Gupta coupled with the fact that the evidence of P.W. 2 who has also narrated the prosecution story finds corroborated by the medical report. Hence, the submission made by learned counsel for the appellants that the medical report and the postmortem report of the deceased does not corroborate the ocular testimony also false to ground.
28. From the evidence of P.W. 1 and P.W. 2, it is clear that all the accused have participated in the crime and they had assaulted the injured with lathis and he received four injuries on his person and he died on account of the injuries sustained by him on his head. Hence, the argument of the learned counsel for the appellants that the author of the injuries is not known also not acceptable as all the accused persons had assaulted the deceased and he sustained four injuries on his person. Hence, the participation of the accused appellant cannot be ruled out.
29. Thus, from the perusal of the record and the evidence of the injured and other prosecution witness, I do not find anything adverse in the evidence of P.W. 1 and P.W. 2 and other prosecution witnesses which may discard their testimony and further the prosecution has proved it's case beyond reasonable doubt against the appellants No. 2, 3 and 4. Hence, the conviction and sentence of the appellants No. 2, 3 and 4 by the trial court vide its impugned judgment and order dated 16.1.1982 is hereby upheld.
30. Considering the facts and circumstances of the case, submissions of the learned counsel for the appellants, looking into the age of the appellants No. 2, 3 and 4 and taking into account that the incident is 35 years old and the appeal has come up for hearing after 32 years and the position of the appellants as on date, it is directed that rest of the sentence of the appellants No. 2, 3 and 4 be converted into fine of Rs. 1,00,000, which shall be deposited by the appellant Nos. 2, 3 and 4 in equal proportion in the court of C.J.M., Allahabad within a period of three months from today. Out of which, Rs. 90.000 shall be paid to the legal heirs of deceased, if any, and Rs. 10,000 shall go the State.
31. In default of payment of fine, as directed above, the appellants No. 2, 3 and 4 shall be taken into custody to serve out the sentence, as ordered by the trial court.
32. In view of the above, the appeal is partly allowed.
33. Office is directed to send a certified copy of this order to the C.J.M., Allahabad for its compliance.