Isri vs Janki and Others

Ikram-ul-Bari, J.—This is an appeal against acquittal. At the time of the hearing, neither the Respondents nor their counsel appeared. The records of the trial court were perused with the assistance of the learned A.G.A.

According to the complaint lodged by Isri Appellant against the four Respondents on 26.5.1979 before the Ilnd Special Judicial Magistrate, Mirzapur, it was stated that on 4.5.1979 at about 7.00 a.m. a cow of the accused-Respondents was fighting with the cow of Isri complainant; that Isri rushed towards them and tried to disengage them, but they were fighting so fiercely that he had to give beating to the two cows to separate them; that in the meantime accused-Respondents armed with sticks reached there and on account of long animosity, threatened Isri complainant-Appellant with death and started assaulting him with sticks, that Isri suffered injuries; that the occurrence was seen by Garib, Deenu and Satya Narain and others who intervened lest the accused would have killed him; that the accused left with threat of death of Isri; that a report was lodged by Isri at the police station and his injuries were examined by the doctor; that when no action was taken by the police on his report, this complaint was being filed.

Charges under Sections 323, 504 and 506, I.P.C. were framed against the accused. In support of the charges, Isri P.W. 1, Satya Narain P.W. 2 and Garib P.W. 3 were examined. Constable Sadanand Yadav P.W. 4 was examined to prove the F.I.R. lodged by Isri on 4.5.79 at 8.40 a.m. against the accused-Respondents.

Dr. A.K. Bapuna, Medical Officer-ln-Charge, Mote Allopathic Dispensary (Male) Adalhat, Mirzapur, who had examined the injuries of Isri at about 11.45 a.m. on 4.5.1979 was examined as P.W. 5.

The accused claimed that the case had been instituted against them out of enmity, but neither put up an alternative version nor led any defence evidence.

The learned Magistrate disbelieved the prosecution evidence giving his reasons and acquitted the accused.

A perusal of the evidence leads to the conclusion that the learned Magistrate has disbelieved it on flimsy grounds and his finding about its unreliability is perverse.

There was a undisputable circumstance that Isri had sustained in the morning of 4.5.1979 the following injuries:

(1) Lacerated wound 3 cm � 1 cm � bone deep just 7 cms. above the root of nose.

(2) Abrasion 1 cm � 0.5 cm on the back of left ear and upper end.

(3) Contusion 1 cm � 2.5 cm on the left side of the chest just over scapula.

(4) Contusion 8 cm � 2.5 cm on the left side of chest just 2.5 cm below angle of scapula.

(5) Contusion 14 cm � 2.5 cm on the left side of chest just 5 cm below injury No. 4.

(6) Contusion swelling 2 cm � 2 cm on the back of left elbow joint.

(7) Contusion swelling 6 cm � 3.5 cm on the left forearm just 5 cm above left wrist joint back.

(8) Abraded contusion 3 cm � 2 cm on the left shoulder.

The colour of all the contusions was red. The doctor had given his opinion that the injuries were simple, had been caused by blunt weapon and were fresh. Dr. A.K. Bapuna, Medical Officer incharge, Mote Allopathic Dispensary (Male) Adalhat, Mirzapur had prepared the injury report Ext. Ka-4.

As P.W. 5 the doctor has made a statement to the same effect and has proved his report.

Isri had lodged an F.I.R. at the police station at 8.45 a.m. on the same day. A non-cognizable case was registered by the police on his report against the four accused, a copy of the said F.I.R. is Ext. Ka-2. It, therefore, cannot be said that the complaint of Isri was in the air and there was no foundation for the allegations. As P.W. 1 Isri has given detailed version of the occurrence and his testimony is not shaken. He is corroborated by the F.I.R. as well as injury report Ext. Ka-2. Further corroboration of his version regarding the injuries sustained by him, is founded (sic) by the evidence of the doctor. His statement in the absence of a rival version of the occurrence is sufficient to establish the charge of Section 323, I.P.C. Even if evidence of the other two P.Ws. Garib and Satya Narain is not taken into account, there will not be any deficiency of the prosecution evidence. They have not said anything which helped the defence. There is also nothing serious in their statements to justify rejection of the evidence.

The charge u/s 323 read with Section 34, I.P.C. is established against the accused-Respondents beyond any shadow of doubt.

As regards the other two charges, there is scope to argue that the finding of the learned Magistrate cannot be said to be perverse. The evidence in support of charges under Sections 504 and 506, I.P.C. is not so convincing.

The appeal is, therefore, partly allowed. The conviction of the four Respondents u/s 323. I.P.C. is set aside and they are convicted of the charge u/s 323 read with Section 34. I.P.C.

As regards the sentence, the occurrence had taken place about 20 years ago. It would be proper to award the sentence of the line only at this stage. Each of the Respondents i.e., Janki. Lalbarat. Shivbarat and Ilari is sentenced to a fine of Rs. 1,000 (Rs. one thousand) or to undergo three months'' rigorous imprisonment in default, for the offence u/s 323 read with Section 34, I.P.C. The fine shall be deposited within two months.