Kishori vs State of U.P.

Vinod Prasad, J.—Appellant Kishori Lal alongwith his other socio criminises Nihore. Panna and Lalta, assaulted Sukhram (deceased). Ram Dular and ladies of informant Kallu Ram''s (P.W. 1), house with clubs (lathis), on 20.5.79 at 5.45 p.m. in village Deora. P.S. Rohaniya, district Varanasi, at the informants door as a result of which Sukhram expired after some time. The incident was witnessed by Kharpattu Ram, Vamdev, Mithai and many other co-villagers who had rescued the victims. Kallu Ram (P.W. 1), s/o of deceased Sukhram, scribed incident F.I.R., measured a distance of 8 Kms. and lodged it at P.S. Rohania, district Varanasi, same day at 8.10 p.m. as Crime Number 42 of 79. under Sections 323 and 308. I.P.C. vide Ex. Ka-7. Offence was registered by Head Constable Sita Ram Rai. P.W. 8. who had prepared the chik F.I.R., Ex. Ka-7, and the relevant G.D. Entry is Ex. Ka-8. He had also recorded recovery memo (fard) Ex. Ka-9 regarding receiving of blood stained clothes of the deceased in a sealed condition.

Injured Sukhram, was sent by the police for his medical treatment, through constable Ram Grahan Yadav and was examined same night by Dr. C.N. Shukla. P.W. 11, at 2 a.m. vide Ex. Ka-14 and following injuries were found on his person, vide his medical examination report, Ex. Ka-14 :

(1) Lacerated wound 2-1/2 cm, x 1/2 cm. x bone deep over right side head 5 cms. above middle of right upper orbital margin, associated with traumatic swelling 11 cms. x 8 cm. around it.

(2) Traumatic swelling 8 cms, x 7 cms. over right side upper part face with ecchymosis both lids.

In doctor''s opinion both the injuries were caused by blunt object and were about 1/4 to 1/2 day old. After demise of injured Sukhram inquest on his cadaver was performed by S.I. Ram Muni Rai. P.W. 7, on 22.2.79. who had prepared inquest report and other relevant documents vide Exts. Ka-3 to Ka-6 and thereafter dead body was dispatched for postmortem examination through Constable Balram Saroj. P.W. 4. to B.H.U. Hospital. Varanasi.

Autopsy on deceased cadaver was performed on 22.2.1979 at 3.40 p.m. by Dr. A.K. Dwivedi, P.W. 6. by inking post-mortem examination report Ex. Ka-2, a perusal of which indicates that the deceased was 65 years of age having fragile physical structure. Rigor Mortis was present all over his cadaver and there was a depressed fracture of his right side parietal bone 7 cm. x 5 cm. Subdural hematoma was present under the injury and deceased brain and membranes were lacerated and his stomach contained mucus, Small intestine contained semi-digested matters and gases. Large intestine contained faecal matter and gases. In doctor''s opinion cause of deceased death was coma as a result of head injury.

S.I. Chhagi Prasad. P.W. 9. had investigated the crime during, course of which he had interrogated and recorded the investigatory statements of the informant-Kallu Ram and other witnesses. He had also prepared the site plan map, Ex. Ka-10, and had collected blood stained clothes and soil and had inked it''s memo Ex. Ka-11. On 23.2.1979 injured Suguni was interrogated and same day, after receiving information about deceased death, had converted the crime, from Section 308. I.P.C. to Section 304, I.P.C. After finalising the investigation, Investigating Officer had charge-sheeted the accused vide Ex. Ka-12 on 20.3.1979.

Malefactors were summoned by the Magistrate, who finding their case triable by Sessions Court, had committed It to the Court of Sessions where S.T. No. 243 of 1980, State v. Kishori and others, was registered and the trial was allotted to IInd Sessions Judge, Varanasi.

Learned trial Judge charged the appellant under Sections 304 and 323/34, I.P.C. on 27.3.81. Rest of his associates Nihore. Panna and Lalta were charged under Sections 304/34. I.P.C. and 323/34, I.P.C. Since all the accused abjured those charges and claimed to be tried and therefore, to establish their guilt, their prosecution commenced.

To succeed in the trial, the prosecution relied upon oral testimonies of eleven witnesses, out of whom informant-Kallu Ram, P.W. 1, Kharpattu, P.W. 2, Suguni, P.W. 3 and Mithai, P.W. 5, were fact witnesses. Formal witnesses consisted of Constable Balram Saroj. P.W. 4. Dr. A.K. Dwivedi. P.W. 6. S.I. Raj Muni Rai. P.W. 7, H.C. Sita Ram Rai. P.W. 8, Investigating Officer S.I. Chhagi Prasad, P.W. 9, Dr. O.P. Pandey. P.W. 10 and Dr. C.N. Shukla, P.W. 11.

In accused examination u/s 313, Cr. P.C. all the accused denied prosecution evidences and pleaded common defence of false implication. Accused Nihore, further pleaded that deceased had taken terracotta tiles (khapra) from his father Sampat which was demanded back and when the deceased was taking it out standing on a ladder, he slipped and fell down and sustained injuries and taking advantage of that he has been falsely implicated in a fabricated case.

Learned trial Judge, by impugned judgment and order held that prosecution charge for commission of offence u/s 323/34. I.P.C. was not established and, therefore, acquitted all the accused for that crime. It also disbelieved participation of three accused Nihori. Panna and Lalta in the incident and therefore, absolved them of all the charges. Regarding appellant alone, learned trial Judge concluded that appellant''s guilt for offence u/s 304. Part II. I.P.C. was proved beyond doubt and hence it convicted and sentenced him to four years R.I. for that crime, vide impugned judgment and order dated 15.10.1981. which conviction and sentence is under challenge in the instant appeal.

When the appeal was called out for hearing, nobody appeared to argue it on behalf of the appellant, hence. Sri Amit Saxena was appointed as amicus curiae to assist the Court.

I have heard Sri Amit Saxena, amicus curiae for the appellant and Sri Raghuraj Mishra, learned A.G.A. for respondent State.

Assailing the impugned Judgment of conviction, learned amicus curiae submitted that the major part of the prosecution story in respect of participation of three other accused namely Nihore, Panna and Lalta has been disbelieved by learned trial Judge and so is the case in respect of offence u/s 323/34, I.P.C. and therefore, learned trial Judge should not have relied upon those very witnessed to hold appellant guilty as none of those witnesses could be bracketed as wholly reliable witnesses. Learned trial Judge further held that medical examination report of Smt. Sugani was fabricated and therefore, entire prosecution version was not free from doubt and hence there was no occasion for the learned trial Judge to convict the appellant submitted learned amicus curiae. Since entire prosecution story is suspect, hence holding appellant guilty is indefensible and be set aside. It is further argued that appellant''s defence of deceased slipping from the ladder while taking out terracotta tiles was probable and hence he should have been conferred benefit of preponderance of probabilities, as single sustained injury by the deceased could have also been possible because of fall. Learned amicus curiae went further to submit that medical report is inconsistent with ocular prosecution version of deceased being assaulted twice by lathis. Consequently it was contended that appeal be allowed and appellant be acquitted of the charge.

Learned A.G.A. submitted conversely and argued that there is no reason to disbelieve the charge against the appellant which has been established beyond any shadow of doubt against the appellant and as such appeal be dismissed.

I have considered rival contentions and have perused the evidences, both oral and documentary existing on record. Present incident had occurred in day light in between co-villagers and hence neither date, time and place of incident, nor the identity of the accused could be disputed by the accused. Defence has not seriously challenged these aspects. From the beginning of the incident, role of the appellant of assaulting the injured/deceased with lathi, was specified. At no point of time, neither during the investigation nor in the trial, prosecution gave up it''s allegations and hence, on the record there exist reliable and acceptable evidences that the appellant was the author of fatal injury to the deceased. His case, therefore, is distinguishable from rest of the accused who have been acquitted. Otherwise also falsus in uno falsus in omnibus does apply to our jurisprudential system. All the fact witnesses, during trial, have testified appellant''s specific role which appellant had failed to dislodge. There is no material on record to disbelieve prosecution charge against the appellant. It is relevant to note that defence plea of deceased falling from a ladder and sustaining fatal injury while taking out terracotta tiles [khapra] was never asked to Kallu Ram. P.W. 1, whose presence at the spot is established. His testimony does not suffer from any damaging statement, so as to cast a doubt on it. regarding participation of the appellant in the crime and assault made by him on the injured/deceased. The medical report as well as autopsy report, proved by the doctors lend credence to prosecution story in it''s entirety and this is an additional circumstance against the appellant in proving his guilt. Learned trial Judge does not seem "to have fallen in error while convicting and sentencing the appellant u/s 304. Part II. I.P.C. resultantly conviction of the appellant is hereby affirmed.

Coming to the sentence to be imposed on the appellant, since the incident occurred more than three decades ago and as now appellant should be about 65 years of age. and during intervening period he had not indulged into any criminal activity nor he had any criminal back ground that his sentence deserves to be mollified. This opinion is further supplemented by the fact that the incident had occurred in heat of temerity without any criminal proclivity and only a single blow was hurled on the deceased by club. Considering entire possible conspectus of circumstances, in my opinion, sending appellant back to penitentiary, to serve out remaining part of his sentence, after three decades, will not be in the interest of justice. Fear of being sending back to jail looming large for such long period must have tormented him enough for which he must have been penancing.

Concludingly, while appellant''s conviction is upheld, but his sentence is reduced to the period of imprisonment already undergone by him with fine of Rs. 30,000. out of which, a compensation of Rs. 25,000 is awarded to the family members of the deceased. The appellant is permitted to deposit the fine within a period of one month from the date of issuance of realisation warrant for the said purpose by the learned trial Judge. Failing to deposite the same, appellant shall surrender or he be taken in custody to serve out one year R1. as a default sentence. The appeal is partly allowed as above. Appellant is already on ball, he need not to surrender, but his personal and surety bonds shall be discharged only after he had deposited the fine or has been arrested to serve out default sentence imposed hereinabove.

Let a copy of this order be certified to the learned trial Judge for it''s intimation and compliance.