Research › Search › Judgment

Allahabad High Court · body

2004 DIGILAW 826 (ALL)

VISHALI v. STATE OF U P

2004-04-16

MUKTESHWAR PRASAD

body2004
MUKTESHWAR PRASAD, J. Accused Vishali, son of Maiyadin, filed this appeal against the judgment and order dated 30-10-1981 passed by Sri D. K. Agrawal, the then Additional Sessions Judge, Banda whereby he convicted the accused under Section 304 Part II IPC and sentenced him to suffer rigorous imprisonment for a period of five years. 2. In brief, the facts of the case leading to the prosecution of the appellant are as under. 3. Accused Vishali and deceased Sheo Darshan, father of the informant Ram Bhawan, were residents of village Chausar, P. S. Bisanda (Banda ). Some altercation took place between informants mother on the one hand and wife of the accused on the other regarding cow-dung cakes. The wife of the accused used to steal cow-dung cakes of Smt. Jagdaiya, wife of the deceased. 4. On 11-1-1981, Sheo Darshan had gone to fields. At about 5. 00 p. m. on the same day he was returning home and reached in front of the house of the accused. Accused Vishali lodged a protest and disclosed that his wife was quarreling with his wife in respect of cow-dung cakes and raised his objection. The talks took an ugly turn. Vishali wielded his lathi on Sheo Darshan. He fell down and then Vishali assaulted him with fist and kicks also. On the hue and cry raised by Sheo Darshan, his son Ram Bhawan, his wife Smt. Jagdaiya, who were present at the adjoining well to draw water, co-villagers Ram Dayal, Birri and Sohna rushed there and challenged Vishali. On their intervention, Vishali entered into his house leaving Sheo Darshan in the injured condition. He had sustained head injury. Sheo Darshan succumbed to his injuries in the night at about 10. 00 p. m. 5. Ram Bhawan got a report of the incident prepared on 12-1-1981 by Babu Prasad Tiwari and reached P. S. Bisanda and lodge a FIR. The local police registered a case on 12-1-1981 at 8. 30 a. m. at crime No. 13. 6. S. I. Chedi Lal Tripathi started investigation of the case and reached the place of occurrence and prepared inquest report and other relevant papers. He sent the dead body to mortuary for post- mortem examination. 7. PW 5 Dr. U. C Dwivedi, conducted autopsy on the dead body of Sheo Darshan on 13-1-1981 at 12. 6. S. I. Chedi Lal Tripathi started investigation of the case and reached the place of occurrence and prepared inquest report and other relevant papers. He sent the dead body to mortuary for post- mortem examination. 7. PW 5 Dr. U. C Dwivedi, conducted autopsy on the dead body of Sheo Darshan on 13-1-1981 at 12. 45 p. m. and found three contusions and two abrasions on different parts of the body. Dr. Dwivedi found contusion 10 cm x 9 cm on the left side of head, just above the left ear and 9 cm above left eye-brow. He found another contusion 8 cm x 6 cm on outer right side of the root of neck and 6 cm inner to the top of right shoulder. The third contusion 6 cm x 4 cm on the root of the neck left side was also found. 8. Dr. Dwivedi found fracture of the left temporal, frontal and parietal bones. Blood clot was found present on left cerebral hemisphere and it was found depressed. In his opinion, injury No. 2 alone was sufficient to cause death and death was due to coma, shock and haemorrhage resulting from anti- mortem injuries. 9. During the investigation, S. I. Chedi Lal Tripathi interrogated Ram Bhawan, Smt. Jagdaiya and Sohna and other witnesses and after inspection of the scene of the incident prepared a site-plan. After completing investigation he submitted charge-sheet against the accused. 10. Accused Vishali was charged under Section 302 of the Penal Code on 2-5-1981 to which he pleaded not guilty. 11. At the trial, the prosecution in support of its case examined PW 1 Ram Bhawan, the informant and one of the eye- witnesses, PW 2 Smt. Jagdaiya, wife of the deceased and another eye-witness, PW 3 Birri and PW 4 Sohna, who were also said to be eye-witnesses, PW 5 Dr. U. C. Dwivedi, who was posted as Surgeon in the District Hospital, Banda on 13-1-1981 and conducted autopsy and PW 6 Chedi Lal Tripathi, IO of the case. 12. Accused Vishali in his statement totally denied his complicity and pleaded his false implication in the case on account of enmity. No evidence was led by the accused. 13. U. C. Dwivedi, who was posted as Surgeon in the District Hospital, Banda on 13-1-1981 and conducted autopsy and PW 6 Chedi Lal Tripathi, IO of the case. 12. Accused Vishali in his statement totally denied his complicity and pleaded his false implication in the case on account of enmity. No evidence was led by the accused. 13. After having considered the arguments advanced on behalf of the parties and the evidence on record led by the prosecution, learned Judge found the accused guilty for committing offence punishable under Section 304 Part II IPC and convicted and sentenced him, as indicated above. Hence, this appeal. 14. I have heard learned Counsel for the appellant at length, learned AGA and have perused the lower Court record also. 15. Learned Counsel for the appellant has assailed the judgment under appeal mainly on the grounds that the incident in question took place at about 5. 00 p. m. and he allegedly expired in his house at about 10. 00 p. m. He was not taken to any hospital and no attempt was made to provide him any medical aid. It means, the condition of the deceased was not serious and ante-mortem injuries were not caused to him at the time as alleged by the prosecution. It was further contended that there was no intention on the part of the assailant to kill Sheo Darshan and in fact, the incident happened in the early hours of the day and the prosecution did not come to the Court with clean hands. There was inordinate delay in lodging the FIR and the post-mortem report does not support the ocular testimony and the doctor found rigor mortis in all the extremities. Consequently, the appellant is entitled to be acquitted. 16. On the other hand, learned AGA has supported the judgment and contended that the delay in lodging the FIR was explained by the son of the deceased in the written report itself that on account of terror of the appellant, he did not go to the police station. 17. I have considered the submissions made on behalf of the parties. I have also gone through the entire oral and documentary evidence on record carefully and what I feel is that the prosecution succeeded in proving its allegations against the appellant beyond reasonable doubt and he was rightly convicted by the Court below. 18. 17. I have considered the submissions made on behalf of the parties. I have also gone through the entire oral and documentary evidence on record carefully and what I feel is that the prosecution succeeded in proving its allegations against the appellant beyond reasonable doubt and he was rightly convicted by the Court below. 18. In the instant case, it is crystal clear from the medical evidence on record that the deceased had as may as five ante- mortem injuries, including three contusions on the head and at the root of the neck. Dr. Dwivedi found fractures of the left temporal, left parietal and frontal bones and these fractures of the skull bones were sufficient to cause death. Dr. Dwivedi has noted down that death took place about one-and-half day prior to the examination. Therefore, timing given in the post-mortem report fully tallies with the case of the prosecution. The post-mortem examination was done on 13-1-1981 at 12. 45 p. m. The death took place at about 10. 00 p. m. on 11-1-1981. There could be a difference of 6-8 hours in respect of duration of death. Therefore, I am not prepared to believe that Sheo Darshan was assaulted somewhere in the early hours of the day i. e. in the morning of 12-1-1981. It is noteworthy that no such suggestion was given to the son or wife of the deceased. It was suggested to Ram Bhawan that some dispute took place between Sohna and Sheo Darshan and Sheo Darshan sustained injuries. Learned Counsel for the defence nowhere challenged in the trial Court that Sheo Darshan was assaulted in the early hours of the day and not in the evening as alleged by the prosecution. Contrary to this, all the four witnesses examined on behalf of the prosecution stated categorically that on the impugned date at about 5. 00 p. m. (before sun set) accused Vishali had assaulted the deceased with lathi and fists and kicks in front of his house and he was taken to his house by the members of the family. Sheo Darshan succumbed to his injuries in the night. 19. It is noteworthy that PW 3 Birri who turned hostile stated that he did not see the accused giving lathi blow to Sheo Darshan. Sheo Darshan succumbed to his injuries in the night. 19. It is noteworthy that PW 3 Birri who turned hostile stated that he did not see the accused giving lathi blow to Sheo Darshan. He, however, admitted the presence of the appellant on the spot as well as Sohna, Smt. Jagdaiya, Ram Bhawan and Ram Dayal who took Sheo Darshan in the injured condition to his house. The witness saw the injured lying on the ground in front of the house of the appellant. All the four witnesses, including son and wife of the deceased, were cross-examined at length but nothing could be elicited in their cross-examination and they all succeeded in the test of cross-examination. It has come in the evidence that PW 1 Ram Bhawan and PW 2 Smt. Jagdaiya were present on the well where they had gone to fetch water and on the alarm raised by the deceased, they reached the scene of incident and saw the appellant assaulting his father. I see no good reason to disbelieve or discard the testimony of the prosecution witnesses. So far the contention of the appellants learned Counsel is concerned that deceased was assaulted in the early hours of the day, I see no reason as to why the members of the family lodged a false report and changed the timing of the incident. There is clear and reliable statement of four witnesses to the effect that Sheo Darshan was assaulted by the appellant at about 5. 00 p. m. on the date in question and they had seen the incident and recognized the assailant. In my opinion, no inconsistency has been pointed out between the medical evidence and ocular testimony. 20. So far as the alleged delay in lodging the FIR is concerned, Ram Bhawan testified in clear words that on account of fear he could not go to the police station in the night and next morning, he got the report prepared by Sarpanch of the village. There is nothing in his cross-examination to disbelieve his statement on this point. 21. I, therefore, hold that the prosecution succeeded in proving the charge against the appellant by reliable and convincing evidence and the trial Court rightly found him guilty for the offence punishable under Section 304 Part II IPC. It is clear that there was no intention on the part of the appellant to commit murder. 21. I, therefore, hold that the prosecution succeeded in proving the charge against the appellant by reliable and convincing evidence and the trial Court rightly found him guilty for the offence punishable under Section 304 Part II IPC. It is clear that there was no intention on the part of the appellant to commit murder. However, the act was done with the knowledge that the injury caused was likely to cause death. 22. In view of the foregoing discussion and scrutiny of the evidence on record and the circumstances of the case also and considering the submission made on behalf of the appellant, I have arrived at the conclusion that the learned Judge committed no illegality in appraisal of the evidence and he was justified in holding the accused guilty for the offence punishable under Section 304 Part II IPC. So far as the sentence is concerned, I seen no valid ground to reduce the sentence imposed by the Court below. A young man aged about forty years was killed at the hands of the appellant leaving behind his young widow and sons. The incident happened in broad day light and in front of the appellants door. In this view of the matter, there is no ground to reduce the sentence passed by the learned Judge. Consequently, I find that this appeal has no merits and is liable to be dismissed. 23. The appeal fails and is dismissed. The conviction and sentence recorded against the appellant are hereby confirmed. The appellant is on bail. His bail bonds are cancelled and sureties are discharged. He shall be taken into custody to serve out the sentence. Compliance report be submitted to this Court within 2 months. Apeal dismissed. .