Ram Dev and Others vs State of U.P.

Pratyush Kumar, J.—Since these appeals arise out of the same sessions trial and filed against the same impugned judgment and order, they are being disposed of by a single order.

This a bunch of three criminal appeals numbering 2270 of 2007 (Ram Dev & another v. State of U.P.), 2578 of 2007 (Babadeen v. State of U.P.) and 2778 of 2007 (Ram Karan v. State of U.P.) arising out of same judgment and order passed by Sri Ram Sagar Mirdha, Additional Sessions Judge/Fast Track Court No. 2, Gonda in sessions trial No. 2 of 2001 (State v. Ram Kher and others) whereby the appellants were convicted under sections 302/34 and 323/34 I.P.C. and they were sentenced to undergo imprisonment for life and fine of Rs. 8,000/-, in default thereof to undergo two years rigorous imprisonment and six months rigorous imprisonment and fine of Rs. 500/-, in default thereof to further undergo rigorous imprisonment of two months respectively. All the appellants challenge the correctness of the impugned judgment and order on the grounds that prosecution version is improbable. The impugned judgment is against the material available on record, medical evidence does not support the ocular version of the incident, defence evidence has been wrongly discarded. Investigation is tainted.

Heard Sri Vivek Pandey, learned counsel for the appellants and Sri Sharad Dixit, learned AGA and perused the record.

In the present case, prosecution version in brief is that on 16th August, 2000 at about 7-8 p.m. within ''abadi'' of village Kewalpur, Police Station Motiganj, District Gonda, the first informant and his father Lale Prasad had a family feast on the occasion of ''Nawa Tewhar''. From there they proceeded to their ''Pahi''. On the way in drunken condition Harbadeen and Vilas were indulging in absurd talks in front of the door of Jamuna. They were rebuked by the first informant and his father and asked to go home. In the meantime, accused Rampher, Ramdev, Ramkaran and Babadeen came there suddenly and started to beat them, the first informant raised alarm, thereon Ambika Prasad, Parshuram came there. The accused also beat them with lathis and dandas. During that both the parties started to throw bricks from which Prithi sustained injuries, Ram Karan hit his father Lale Prasad with lathi on his head who died at the spot. He had brought dead body of his father and injured with him to the police station.

At this chik FIR was scribed. Case Crime No. 19 of 2000 under sections 302, 323, 336 IPC was registered and entry thereof was made in the general diary of the police station. The injured were medically examined. Postmortem examination was conducted on the dead body of the deceased, after investigation chargesheet was submitted against all the accused persons.

After committal of the case to the Court of Session, accused were charged under sections 302/34 and 323/34 I.P.C. which they denied and claimed to be tried.

Besides documentary evidence, eight witnesses were examined on behalf of the prosecution. Among them Ram Narayan, first informant and son of the deceased is P.W.-1, Ambika Prasad, an injured witness is P.W.2, Parshuram another injured witness is P.W.-3, Prithi, an injured witness is P.W.4. Prithvi P.W.-4 has turned hostile. Rest of these witnesses reiterated the prosecution version in their statements on oath. Dr. B.L. Rastogi, P.W.-9 conducted the postmortem examination on the dead body of the deceased. Ghanshyam Misra, P.W.-6 and P.W.-8 proved the injury reports Exhibit Ka-17 to Ka-19. The evidence of this witness is only secondary permitted to be adduced in absence of Dr. Amrendra Kumar, who conducted the medical examinations of the injured. Rest of the prosecution witnesses are police personals. After conclusion of the prosecution evidence, statements of accused persons were recorded under section 313 Cr.P.C. wherein they denied the facts stated by the eyewitnesses. Regarding medical and police evidence and documents proved by them, they pleaded ignorance, except the chargesheet which they claimed to be submitted wrongly. According to them they have been falsely implicated. In the defence, Ram Achal, D.W.-1 and Sakka Ram, D.W.-2 were examined. Ram Achal D.W.-1 deposed that during the incident bricks were used. Sakka Ram, D.W.-2 also stated the same.

The learned trial Judge after hearing the arguments convicted the present appellants and sentenced them as above. According to him, though eye-witnesses are relatives but on this account their testimonies cannot be rejected. All of them are injured witnesses, nothing adverse came out during the cross examination, treating them to be natural witnesses he relied on these testimonies and recorded finding of guilt against the present appellants. Feeling dis-satisfied, the instant appeals have been filed.

Sri Hemant Kumar Misra, Advocate, appearing for the appellants at the very outset argued that the incident had occurred suddenly. There was no per-meditation, no dangerous weapon was used to show intention of murder on the part of the appellants. The present case squarely falls within the ambit of culpable homicide not amounting to murder punishable under Section 304(II) IPC.

On behalf of the State, learned AGA has repelled these arguments but could not dispute the facts indicated on behalf of the appellants.

We have an obligation to re-examine and reassess the prosecution evidence adduced in support of the charge. First we would like to take into account medical evidence comprising statement of Dr. B.L. Rastogi, P.W.-9 and postmortem report Exhibit Ka-9 thereafter, we would deal with the injury reports Exhibit Ka-17 to Ka-19. Dr. B.L. Rastogi, P.W.-9 has reiterated the facts recorded in the postmortem report and opined, time since death to be one day and further cause of death to be shock as a result of ante-mortem injuries. In the postmortem report Exhibit Ka-9, he has recorded eight injuries. They read as under:--

"(1) Lacerated wound 3 c.m. X 1 c.m. skin deep 11 c.m. above the ear on the right side of head.

(2) Contusion 10 c.m. X 6 c.m., 2 c.m. above ear on the right side of head.

(3) Contusion 3 c.m. X 1 c.m., 2 c.m. on the upper lip.

(4) Contusion 10 c.m. X 3 c.m., 14 c.m. above knee joint on the right thigh.

(5) Contusion 8 c.m. X 2.5 c.m. below 4 c.m. on the left side of the back below shoulder joint.

(6) Contusion 6 c.m. x 3 c.m. on the left shoulder.

(7) Contusion 5 c.m. x 2 c.m., 5 c.m. below the elbow.

(8) Contused swelling on the left side of the head, 5 c.m. above the ear."

During internal examination left parietal bone was found fractured. The death of the deceased is not disputed. Statement of this witness is corroborated by the postmortem report Exhibit Ka-9. Testimony of the witness has been challenged by the suggestion that he has exaggerated the injuries sustained by the deceased. The suggestion was denied by the witness. Since he is an independent witness, his testimony is worthy of reliance and on its basis we hold that on the stated date and time, homicidal death of the deceased was caused by blunt objects.

Ocular version of the incident has been unfolded by three prosecution witnesses Ram Narayan, P.W.-1, Ambika Prasad, P.W.-2, Parshuram, P.W.-3. Prithi, P.W.4 has turned hostile. The learned trial Judge has treated all the eye witnesses to be injured witnesses. He found their testimonies unshaken during cross examination. Injuries sustained by these witnesses have been proved by the secondary evidence. Pharmacist Ghanshyam Misra, P.W.-8 has proved the handwriting of Dr. Amrendra Kumar and further the injury reports Exhibit Ka-17 to Ka-19. The witness was not cross-examined by the defence, therefore, rightly believed by the learned trial Judge. Since the examining doctor could not be examined, we have to take into consideration the injury reports prepared by him at the time of medical examination. Exhibit Ka-17 is the injury report of Ambika Prasad who was medically examined on 17th August, 2000 at 1.20 p.m. and following injuries were found on his body.

"(1) Lacerated wound 2 c.m. x 1/2 c.m. x scalp deep on the front head almost in middle 6 c.m. above root of nose, clot present.

(2) Abraded contusion 4 c.m. x 3 c.m. on left side face, 1 c.m. below left eye, Radish scab started.

(3) Contusion 3 c.m. x 1 c.m. on front of left upper arm, 4 c.m. below shoulder top, Radish.

(4) Abrasion 1 c.m. x 1 c.m. dorsum of right palm on base of right little finger, scab started.

(5) Abrasion 1/2 c.m. x 1 c.m. on front of left thigh, 7 c.m. above knee joint, scab started."

Parshuram P.W.-2 was medically examined on 17th August, 2000 at 1.45 p.m. Two injuries were found on his body they are as under:--

"(1) Abrasion 1/2 c.m. x 1 c.m. on back of head 14 c.m. above 7 o''clock scab started.

(2) Complaint of pain on back both sides. No visible injury was found vide injury report Exhibit Ka-18."

Ram Narain, P.W.-1 was medically examined on the same day at 1.35 p.m. in the injury report Exhibit Ka-19. Injuries found during the medical examination on his body were recorded as under:--

"(1) Abraded contusion 5 c.m. x 2 c.m. on front of left side of head. 1 c.m. above medial and of left eye brow. Radish scab started.

(2) Abraded contusion 6 c.m. x 2 c.m. on outer and lower of right forearm 5 c.m. above right wrist, Radish scab started.

(3) Abrasion 1 c.m. x 1/2 c.m. on tip of let middle finger.

(4) Complaint of pain on back of left leg. No feasible injury was found."

In all the injury reports, the doctor has opined injuries to be simple and caused by hard blunt object and estimated duration to be within a day. Correctness of Exhibit Ka-17 to Ka-19 has not been disputed. Taking into account the injuries recorded therein and opinion expressed about their duration and weapon, we hold that at stated date and time, these witnesses sustained simple injuries caused by blunt object. Being injured witnesses, their presence at the place of occurrence becomes probable. They have given vivid account of this incident. We agree with the learned trial Judge that the witnesses are worthy of reliance. Thus, findings recorded by the learned trial Judge up to this stage are substantiated from the record and challenge made against them in the memo of appeal is without substance.

Now the question remains whether it was a case of murder or culpable homicide not amounting to murder. As per eye-witness account, the accused persons had no intention to kill. The incident occasioned on account of worthless talks by Harbadeen and Ram Vilas in drunken state and their admonition by the first informant and the deceased. This is the genesis of the occurrence. According to all the eye-witnesses it was a free fight. Both the parties indulged in throwing bricks to each other. Keeping in view the facts and circumstances noted above, nature of the weapon used and seat and nature of the injuries sustained by the deceased there remains no doubt that the incident occurred on the spur of moment in a heat of passion and both sides indulged in ''marpeet'' on account of grave provocation. Neither there was intention to kill nor knowledge that injuries inflicted by them would be so eminently dangerous that in all probability death would occur. The accused persons cannot be held to be guilty of committing murder of the deceased at most their offence would amount of culpable homicide not amounting to murder punishable under sections 304(2) I.P.C. and voluntarily causing simple under section 323 I.P.C.

Perusal of the judgment reveals that learned trial Judge has not applied his mind whether facts necessary to constitute the offence of murder have actually been proved to this extent. The impugned judgment suffers from wrong finding on this count and the appeal succeeds to this extent that the appellants are held guilty of committing offences punishable under sections 304 (2)/34 and 323/34 I.P.C. Their conviction and sentence under section 302/34 I.P.C. cannot be sustained and deserves to be set aside.

Accordingly, Criminal Appeal No. 2270 of 2007 (Ram Dev and another), Criminal Appeal No. 2578 of 2007 (Babadeen v. State of U.P.) and Criminal Appeal No. 2778 of 2007 (Ram Karan v. State of U.P.) are partly allowed and we alter the offence i.e. murder with which the appellants have been held guilty punishable under section 302/34 I.P.C. to one under Section 304 (2)/34 I.P.C. Their conviction and sentence under section 323/34 I.P.C. need no interference. Having held the appellants guilty of the offence under section 304 (2) I.P.C., we sentence them to undergo four years rigorous imprisonment and to pay fine of Rs. 1,000/- failing which they would further undergo simple imprisonment of one month.

Office is directed to certify this order of the court concerned forthwith and send back the lower court record.