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2014 DIGILAW 89 (ALL)

Hazari v. State of U. P.

2014-01-09

RAMESH SINHA

body2014
Hon'ble Ramesh Sinha, J. 1. Heard Sri P.C. Srivastava, learned counsel for the appellant, Sri M.A. Siddiqui, learned counsel for the complainant as well as Sri Rajnath Bhakt, learned Brief Holder for the State. 2. The present appeal has been filed against the judgment and order dated 4.6.1981 passed by Sessions Judge, Bareilly in Session Trial No. 348 of 1978 convicting the appellant under Section 326 I.P.C. and sentencing him to undergo four years rigorous imprisonment. 3. The prosecution case in brief is that amongst the accused, Chhadammi is the father of Ram Chandra, Ram Bahadur and Hazari, who are residents of village Mehtarpur, police station Bithri Chainpur, Bareilly. On 26.3.1978 at about 6:30 p.m., they assaulted one Lala Ram of their village, who subsequently died. The deceased was stabbed with a knife by accused Ram Bahadur. Further the father and cousin of the deceased, namely, Ram Ghulam and Ram Lal were also beaten with lathies by the accused Chhadammi and Ram Chandra. All the accused have pleaded not guilty to the respective charges and according to them they have been falsely implicated in the present case. 4. The prosecution in support of its arguments has relied upon the statement of P.W.1 Ram Ghulam, who has stated that on the date of occurrence, i.e., 26.3.1978 there was a Holi "Chaupai" congregation at the door of Mukerjee Mukhia in the village. Thousand of people were there. At about 6:30 p.m. Ram Ghulam left the congregation and while he was passing by the house of the accused Chhadammi he saw all the four accused standing there. Amongst them Chhadammi exhorted the other accused to kill him. On that Chhadammi himself and Ram Chandra beat him with lathies. In the mean time his son Lala Ram (deceased) and Ram Lal also arrived on the spot. Then the accused Ram Bahadur gave two blows of knife on Lala Ram. Ram Lal was also struck lathi. The witnesses Siya Ram and Babu Ram (P.W.2) also arrived on the spot and then all the four accused entered into their house. After the occurrence Ram Ghulam went to the police station Bithri Chainpur alongwith his son Lala Ram and his nephew Ram Lal and he lodged the F.I.R. 5. In the said incident three persons, namely, Lala Ram, Ram Lal and Ram Ghulam have received injuries, who were medically examined by Dr. After the occurrence Ram Ghulam went to the police station Bithri Chainpur alongwith his son Lala Ram and his nephew Ram Lal and he lodged the F.I.R. 5. In the said incident three persons, namely, Lala Ram, Ram Lal and Ram Ghulam have received injuries, who were medically examined by Dr. R.N. Singhal (P.W.3) Medical Officer of Primary Health Centre Bithri Chainpur between 9:30 and 10:20 p.m. Lala Ram was advised to be shifted to the District Hospital Bareilly. 6. The injuries received by all the injured are as follows:- 1. Injuries of Lala Ram:- (i) Penetrating wound size about 3 & ½ cm. x long deep on back of left side of chest in between the 4th and 5th Rib 7 cm. away from ventibral coloumn. X-ray advised. (ii) Penetrating wound size about 3 & ½ cm. x 1 cm. x muscle deep front over the left side of lower back 1 cm. above the (Sic) Sacram 1 & ½ cm. away from vertibral coloumn. Opinion:- Nature-Kept u.c. (Refd to District Hospital Bareilly). Weapon:-Pointed sharp edged weapon Duration:-Fresh. 2. Injuries of Ram Lal (i) Abrasion size about 1 cm. x .5 cm. front over the inner side of left hand, 3 cm. below the left wrist joint. (ii) Lacerated wound size about 1 cm. x. 1.5 cm. front over the outer border of left ear. Opinion:-Nature-Simple Duration:-Fresh about in 6 hours Weapon:-For injury no.1 Friction aged hard object Injury no. 2 blunt object. 3. Injuries of Ram Ghulam (i) Abrasion size about .25 cm. x .25 cm. front over the scalp left side, 8 cm. above the left ear. (ii) Abrasion size about 3 cm. x .5 sm. Front over the left palm 1 cm. below the left wrist joint. Opinion-Nature-Simple Duration-Fresh within 6 hours Weapon-Friction aged hard object" 7. Initially on the report of Ram Ghulam, the police had registered a case under Sections 323/324 I.P.C. at the police station but as the injured Lala Ram succumbed to his injuries, the police on receiving the post mortem report of Lala Ram converted the case for investigation into Section 304 I.P.C. vide entry in the general dairy report whose extract Ex. Ka.5 is on record as proved by head constable Ram Kumar Singh (P.W.5). 8. The post mortem of the deceased Lala Ram was conducted by Dr. Ka.5 is on record as proved by head constable Ram Kumar Singh (P.W.5). 8. The post mortem of the deceased Lala Ram was conducted by Dr. K.S. Tewari P.W.9 on 3.4.1978 at 3:30 p.m. which has been proved by him and marked as Ex. Ka.14. The ante mortem injuries found on the deceased Lala Ram are quoted hereinbelow:- "1. A stitched wound 2.5 cm. long with two stitches on the back of chest left side portion axillary line 14 cm. below posterior fold of axilla. 2. A stitched wound 3 cm. long with 3 stitches (paper torn) of clust. Left side 4 cm. below inferior angle of seatrul. 3. A stitched wound 2.5 cm. long with two stitches on the each lower part. 1 cm. from mid line at the levil of illiac crest. 4. Vene section culmortle 1 cm. long with one stitches on (paper torn) leg. Lower part inner side." 9. In the opinion of Dr. K.S. Tewari P.W.9 the cause of death was shock and hamerohage on account of ante mortem injuries. 10. The dying declaration of deceased Lala Ram was recorded by the Executive Magistrate Sri S.B. Singh on 27.3.1978 on the certificate of Dr. A.K. Bansal that the patient was in a fit state of mind to make a statement. The said doctor has proved the fitness certificate of the patient as Ex. C-1 and the Magistrate has proved the dying declaration as Ex. C-2. The Magistrate Sri S.B. Singh and the doctor A.K. Bansal have been examined as CW-1 and CW-2 respectively by the trial court. 11. The investigation was conducted by S.I. Randhir Singh Chauhan P.W.7. He inspected the place of occurrence and prepare the site plan (Ex. Ka. 7). He submitted the charge-sheet Ex. Ka.9 against all the four accused persons. During investigation, the statement of Lala Ram (deceased) was recorded on 1.4.1978 which is marked as Ex. Ka.10. 12. The trial court framed the charges against the accused under Section 304 read with Section 34 I.P.C. as well as Section 323/34 I.P.C. against accused Chhadammi, Ram Charan, Ram Bahadur and Hazari. 13. The accused denied the said charges and claimed to be tried by the court. 14. The prosecution in support of its case examined as many as nine witnesses out of which two witnesses were summoned under Section 311 Cr.P.C. by the trial court. 13. The accused denied the said charges and claimed to be tried by the court. 14. The prosecution in support of its case examined as many as nine witnesses out of which two witnesses were summoned under Section 311 Cr.P.C. by the trial court. The accused did not lead any evidence or any witness in their defence. 15. The witness of fact, namely, Ram Ghulam PW.1, Babu Ram PW.2 and PW.6 Ram Lal. 16. The statement given by Ram Ghulam PW.1, who is the father of the deceased and also an injured witness was supported by Babu Ram PW.2 and Ram Lal PW.6. 17. Sri P.C. Srivastava, learned counsel for the appellant submits that out of four accused persons three accused persons have been acquitted by the trial court on the ground that as the two injured witnesses, namely, P.W. 1 Ram Ghulam, father of the deceased and P.W. 6 Ram Lal, who had given a contradictory version before the trial court as has been stated by the deceased in his dying declaration. He further submits that in view of the two versions given by the injured and the deceased in his dying declaration assigning the role of assaulting him with knife to the appellant appears to be false, hence the appellant is also entitled for acquittal. 18. On the other hand, learned counsel for the complainant as well as learned A.G.A. has opposed the said argument of learned counsel for the appellant and have submitted that the dying declaration of the deceased recorded by the doctor in the presence of Magistrate on 1.4.1978, cannot be doubted in any manner as the said dying declaration was recorded in accordance with law and the deceased was in a full conscious state of mind while giving the said statement in which he has attributed the role of assaulting him with knife by the accused appellant Hazari. The medical examination report as well as post mortem of the deceased shows that the deceased has received knife injuries, hence the conviction and sentence of the appellant by the trial court is absolutely justified and no interference is called for by this Court. 19. Considered the submissions advanced by learned counsel for the parties. The medical examination report as well as post mortem of the deceased shows that the deceased has received knife injuries, hence the conviction and sentence of the appellant by the trial court is absolutely justified and no interference is called for by this Court. 19. Considered the submissions advanced by learned counsel for the parties. From the record it transpires that no doubt, there were contradiction in the statement of the two injured witnesses, namely P.W.1 Ram Ghulam, P.W. 6 Ram Lal and the deceased, hence the trial court disbelieved the testimony of the two injured witnesses as Babu Ram and Ram Lal are real brothers and their father Lakhan was admittedly the real brother of PW-1 Ram Ghulam, therefore only interested witnesses were examined. But taking into account the dying declaration of the deceased Lala Ram which was recorded before a Magistrate in which he has assigned the role of assaulting him with knife to the appellant and the post mortem report of the deceased shows that there were injuries found on the person of the deceased, it cannot be said that there was any error on the part of the trial court for recording conviction and sentence of the appellant on the basis of dying declaration of the deceased. The trial court has already taken liberal view for convicting the appellant for offence under Section 326 I.P.C. instead of Section 304 I.P.C. 20. Taking into account the facts and circumstances of the case, I am of the view that the conviction and sentence of the appellant for offence under Section 326 I.P.C. by the trial court does not call for any interference by this Court and the same is hereby upheld. 21. The learned counsel for the appellant lastly submitted that the appellant is about 60 years of age. He further submits that the appellant has already settled with his family and to send him to jail after 34 years when the incident took place, it would be too harsh and further their families would be put to great hardships. The appellant had been already in jail for a period of about two months during the pendency of trial and after his conviction, hence the rest of the sentence of the appellant be converted into fine and the same shall not be treated as enhancement of the sentence. 22. The appellant had been already in jail for a period of about two months during the pendency of trial and after his conviction, hence the rest of the sentence of the appellant be converted into fine and the same shall not be treated as enhancement of the sentence. 22. Considering the argument of learned counsel for the appellant and looking to the age of the appellant namely Hazari, who is aged about 60 years and taking into account that the incident is 34 years old and the appeal has come up for hearing after 32 years, it is directed that rest of the sentence of the appellants converted into fine of Rs. 1,00,000/-, which shall be deposited by the appellant namely, Hazari in the Court of C.J.M. Bareilly within two months from today. Out of which, Rs. 70,000/- shall be paid to the legal heirs of deceased, if any, and Rs. 10,000/- each to the injured two injured, namely, Ram Ghulam and Ram Lal, if alive, or to their legal heirs, if any, Rs. 10,000/- shall go to the State. 23. In default of payment of fine, as directed above, the appellants shall be taken into custody to serve out the sentence, as ordered by the trial Court. 24. In view of the above, the appeal is partly allowed. 25. Office is directed to send a certified copy of this order to CJM , Bareilly for its compliance.