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Allahabad High Court · body

2002 DIGILAW 1711 (ALL)

CHHOTEY LAL PASI v. STATE OF U P

2002-11-18

M.C.JAIN

body2002
M. C. JAIN, J. The appeal has been preferred by three appellants, namely, Chhotey Lal Pasi, Raghubir Pasi and Billa Pasi against judgment and order dated 28-9-1981 passed by Sri S. L. Adarsh, the then Vth Additional Sessions Judge, Allahabad in Sessions Trial No. 332 of 1980. The first two appellants are real brothers whereas the third one Billa Pasi is son of appellant No. 1 Chhotey Lal Pasi, Billa Pasi has been convicted under Section 304 Part I, I. P. C. and sentenced to 8 years rigorous imprisonment. The other two appellants Chhotey Lal Pasi and Raghubir Pasi have been convicted under Section 323 IPC and each of them has been sentenced to pay a fine of Rs. 200/ -. In default of payment of fine, each of them has to undergo 3 months rigorous imprisonment. 2. The relevant fact as unfolded from the FIR and evidence adduced at the trial may be stated shortly for the appreciation of the discussion that would follow thereafter. The victims of the felony were Ramadhin deceased and Shiv Ram injured. The incident took place on 7-6-1978 at about 1 p. m. in hamlet Chakia of village Rampur Dhamawan, P. S. Saini, District Allahabad. The FIR was lodged by an eye- witness PW-1 Budhan Lal the same day at 5 p. m. The distance of the police station from the place of occurrence was 4 miles. The mother of the informant and of Ramadhin deceased had died and her Terahi ceremony was to be performed on the fateful day i. e. , 7-6-1978. The appellant Chhotey Lal Pasi and Raghubir Pasi are the cousin brothers of the informant and deceased. Pyare Lal father of the deceased went to the appellants twice to request them for attending the customary feast of Terahi ceremony. They were refusing to attend it, as they wanted to be served wine at the time of feast. The father of the informant and deceased was not prepared to offer wine. Pyare Lal father of the deceased went to the appellants twice to request them for attending the customary feast of Terahi ceremony. They were refusing to attend it, as they wanted to be served wine at the time of feast. The father of the informant and deceased was not prepared to offer wine. When the informant and his brother Ramadhin deceased came to know of this fact, they alongwith their maternal uncle Shiv Ram injured approached the appellant at their house situate at a distance of 15 paces on the fateful day at about 1 p. m. Ramadhin deceased told appellant Chhotey Lal Pasi that it was shameful for him to demand wine in Terahi of his mother and asked him to take the meal in the feast of Terahi ceremony. It infuriated the appellants who assaulted all the three, but the informant succeeded in running away. However, Shiv Ram was assaulted by them. Appellant Billa gave a pharsa blow on the head of Ramadhin. On the shouts raised by the informant, his father, Larmoo and Shital rushed up and witnessed the incident. The appellants retreated. Ramadhin who had sustained pharsa blow fell down. While being taken to the hospital, he succumbed to his injury at about 4. 30 p. m. near Saini Inter College. His dead- body was then taken to the police station where the written report was lodged by PW-1 Budhan Lal (brother of the deceased ). The case was registered and investigation followed. It was PW-4 Dr. Gyan Chandra Vyas who had examined Shiv Ram on 7-6-1978 at 7. 45 p. m. and the following injuries were found on his person : (1) lacerated wound 1 1/2" x 1/2" muscle deep on the right parietal region. (2) Traumatic swelling 2" x 2" on the dorsum of right hand on the medial half. (3) Traumatic swelling 3" x 2" on the dorsum medial surface of the left forearm in the middle. All the injuries were simple and caused by blunt object. 3. The post-mortem over the dead-body of the deceased Ramadhin was conducted on 8-6-1978 at 1. 15 p. m. by Dr. A. K. Bajpayee proved (the post-mortem report proved by PW-4 Gyan Chandra Vyas ). He was aged about 32 years and about one day had passed since he died. All the injuries were simple and caused by blunt object. 3. The post-mortem over the dead-body of the deceased Ramadhin was conducted on 8-6-1978 at 1. 15 p. m. by Dr. A. K. Bajpayee proved (the post-mortem report proved by PW-4 Gyan Chandra Vyas ). He was aged about 32 years and about one day had passed since he died. The following ante-mortem injury was found on his person : Incised wound 4" x 1/2" bone deep on the head in mid region 6" from the right eyebrow 4 1/2" above the right ear. 4. The cause of death was shock and haemorrhage resulting from ante-mortem injury sustained by the deceased. 5. The defence was of denial and false implication due to enmity. The appellants Chhotey Lal Pasi and Raghubir Pasi also set up the plea in their statements under Section 313 Cr. P. C. that they had been instrumental in a loan being advanced to Ramadhin by Suraj Pal. Suraj Pal wanted Ramadhin to repay the loan for which he was not prepared and he also used to turn a deaf ear to their requests to repay the loan. 6. Besides medical and formal evidence including that relating to the investigation of the case, the prosecution relied on PW-1 Budhan Lal informant, PW-2 Shiv Ram and PW-3 Shitla Prasad as eye- witnesses, out of whom the first one disowned himself to be an eye-witness and he was allowed to be cross-examined by the prosecution. The other two eye-witnesses fully supported the prosecution case. On cumulative consideration, the trial Court convicted and sentenced the accused-appellants as stated in the earlier part of the judgment. It is in this way that the appellants are aggrieved and have preferred this appeal. 7. I have heard Sri Kamal Krishna, learned Counsel for the appellants and learned A. G. A. from the side of the State. The record of the lower Court has been summoned before me which has carefully been examined. 8. The argument of learned Counsel for the appellants is that the conviction has been recorded by the Court below on insufficient and unreliable evidence. In the alternative, it is urged that the case of the accused-appellant Billa Pasi would fall under Part II of Section 304 I. P. C. , if at all it is found to be proved. 9. The argument of learned Counsel for the appellants is that the conviction has been recorded by the Court below on insufficient and unreliable evidence. In the alternative, it is urged that the case of the accused-appellant Billa Pasi would fall under Part II of Section 304 I. P. C. , if at all it is found to be proved. 9. On carefully examining the evidence in the light of argument of learned Counsel for the appellants, I find that the case was proved to the hilt by clinching and convincing evidence adduced at the trial. The ocular testimony is also in conformity with the medical evidence. PW-2 Shiv Ram (injured witness) who had been assaulted by the appellants Chhotey Lal Pasi and Raghubir Pasi by lathi had sustained lacerated wound and two traumatic swellings which could be caused by blunt object. The deceased Ramadhin had been hit on the head by third appellant Billa Pasi by a pharsa (sharp edged weapon) and the injury sustained by him was incised wound on the head, 6" above right eyebrow. There was also fracture of bone underneath. To say in other words, the same could have been caused by the weapon wielded by Billa Pasi. The place of occurrence was the frontage of the house of the appellants. The Investigating Officer PW-5 Dharam Vir Singh Malik had collected the blood stains from that spot and blood stained earth was sent to the chemical examiner. The report is there that that was human blood. The place of occurrence is clearly established by the testimony of injured witnesses PW-2 Shiv Ram and PW-3 Shitla Prasad also. It may also be pointed out that though PW-1 Budhan Lal was somewhat hesitant in supporting the prosecution case in full measure in his deposition before the Court below but the place of occurrence is fixed by his testimony too. The testimony of PW-2 Shiv Ram is of great value, he himself being injured of the felony. He is maternal uncle of the deceased and PW-3 Shitla Prasad is his sisters husband. The occasion being Terahi ceremony of the mother of the deceased, their presence was quite natural. The testimony of PW-2 Shiv Ram is of great value, he himself being injured of the felony. He is maternal uncle of the deceased and PW-3 Shitla Prasad is his sisters husband. The occasion being Terahi ceremony of the mother of the deceased, their presence was quite natural. PW-2 Shiv Ram had accompanied the deceased Ramadhin to the house of the appellants to implore them to join the feast of Terahi and PW-3 Shitla Prasad was sitting under a neem tree on a cot outside the house of Ramadhin which was only at a distance of 10-15 paces from the place of occurrence wherefrom he witnessed the incident. The perusal of site plan prepared by the Investigating Officer shows that the houses of the parties were in close proximity and there was no hindrance or obstruction between the site of incident and the place where PW-3 Shitla Prasad was sitting. Therefore, he was very well in a position to see the occurrence. It is further to be noted that the witnesses are close relatives of both the parties and there could hardly be a reason for false implication of appellants who themselves happened to be close relatives of the injured and the deceased. 10. Of course, PW-1 Budhan Lal informant (brother of the deceased) turned hostile as he was hesitant to stand in full support of the prosecution case, having disowned to have seen the incident but it does not adversely affect the prosecution case. He admitted to have lodged the FIR. It is recited in the FIR itself that he had run away to save himself. This could be the reason for his statement that he did not witness the assault himself. He however, admitted that PW-2 Shiv Ram had told him at that very time that Billa Pasi appellant had given pharsa blow to Ramadhin. This res gestae evidence also supports the prosecution case and he had also seen Shiv Ram in injured condition. In any case, he is a partly reliable witness whose testimony cannot be discarded altogether as it supports the prosecution case in certain measure. It should be stated at the risk of repetition that the testimony of injured witnesses PW-2 Shiv Ram and PW-3 Shitla Prasad is also there in support of the prosecution case which is in conformity with the medical evidence also. It should be stated at the risk of repetition that the testimony of injured witnesses PW-2 Shiv Ram and PW-3 Shitla Prasad is also there in support of the prosecution case which is in conformity with the medical evidence also. Therefore, the case was proved to the hilt and the conclusion of the trial Court cannot be challenged by finding imaginary and artificial fault in the evidence adduced by the prosecution. 11. So far as the alternative argument of learned Counsel for the appellants for converting the conviction from Part I of Section 304 I. P. C. to Part II of Section 304 in respect of appellant Billa Pasi is concerned, I do not see any justification for the same. He struck a forceful pharsa blow on the head of Ramadhin when his insistence for being supplied wine for joining terahi feast of the mother of the latter was declined and he was rather rebuked by him for demanding wine on such occasion. The blow of pharsa struck by him was so forceful that underneath bone had also been fractured. Everyone is supposed to intend the natural consequences of his act. He shall be deemed to have intended to cause the death of Ramadhin or cause such bodily injury as was likely to cause death by striking forceful pharsa blow on his head (vital part ). The trial Court has already given maximum benefit to him by taking the case to be covered under Exception 1 to Section 300 IPC that the blow had been given by him on sudden provocation consequent on the generation of heat between the two sides, Ramadhin and Shiv Ram asking him and other two appellants to join the feast of Terahi and rebuking them for the demand of wine. 12. It has been urged by learned Counsel for the appellants that the incident took place on 7-6-1978 and the statement of appellant Billa Pasi under Section 313 Cr. P. C. was recorded on 18-9-1981. There he gave his age as 20 years, meaning thereby that he was about 17 years of aged at the time of incident. It has been submitted that he could be considered to be a misguided youth who committed this crime on sudden provocation without any premeditation. 13. The trial Judge has awarded him 8 years rigorous imprisonment. There he gave his age as 20 years, meaning thereby that he was about 17 years of aged at the time of incident. It has been submitted that he could be considered to be a misguided youth who committed this crime on sudden provocation without any premeditation. 13. The trial Judge has awarded him 8 years rigorous imprisonment. Appellant Billa Pasi obviously needs to learn the requirement, desirability and necessity of co-existence on which orderly society governed by law is founded. I think that the ends of justice would be met by reducing his imprisonment by one year. In other words, the sentence of 8 years rigorous imprisonment would be converted into 7 years rigorous imprisonment. 14. The appeal has to be dismissed in all other respects, concerning all the three appellants. 15. I finally order as under : The appeal is partly allowed. While affirming the conviction of the three appellants, the sentence of 8 years rigorous imprisonment awarded to the appellant Billa Pasi under Part I of Section 304 I. P. C. is converted to 7 years rigorous imprisonment. There would be no change in the sentence passed against the other two appellants Chhotey Lal Pasi and Raghubir Pasi, each of whom has been convicted under Section 323 IPC and sentenced to pay a fine of Rs. 200/ -. In default of the same, three months rigorous imprisonment has to be undergone by each of them. 16. Let a copy of the judgment alongwith the record be sent to the Court below for needful action and compliance of this order under intimation to this Court within one month. Appeal allowed. .