Sita Ram and Another vs State of U.P.

Poonam Srivastav, J.—The instant appeal was preferred by two appellants namely Sita Ram and Manohar. Appellant No. 1 Sita Ram is reported to be dead. Appeal in respect of appellant No. 1 stands abated vide order dated 28.10.2006.

Appellant No. 2 Manohar was convicted by Vth Additional District & Sessions Judge, Jalaun at Orai, vide judgment and order dated 25.4.1981 in S.T. No. 131 of 1980 u/s 304 Part II I.P.C. and sentenced to five years R.I. In the event of default in payment of fine, six months further rigorous imprisonment.

Ms. Anita Srivastav, Advocate, was appointed amicus curiae by this Court vide order dated 23.10.2009. She is present in Court to argue the instant appeal on behalf of appellant No. 2 Manohar.

Occurrence is alleged to have taken place on 16.11.1978 at 3 p.m. in village Nasirpur, P.S. Churkhi, District Jalaun. N.C.R. was lodged by Jaidev Singh PW-1 on the same day at 8:30 p.m. at Police Station Churkhi, District Jalaun. Police Station is situated at distance of eight kilometres. Injured Govind Singh died on 17.11.1978. Thereafter, an application was given by his father Roshan Singh PW-4 to Superintendent of Police, Jalaun at Orai.

The admitted facts in short are that in village Nasirpur within circle of Police Station Churkhi, deceased Govind Singh had an agricultural field known as ''MARHAI HAR''. The north of this field adjoins field of accused persons. PW-1 Jaidev Singh complainant is cousin of deceased Govind Singh. PW-3 Surendra Singh is first cousin of deceased. The accused persons, deceased and two witnesses named above jointly owned this ''MARHAI HAR''. However, there was some mutual arrangement private partition by which northern 1/3 part of ''MARHAI HAR was given to the accused persons. Both parts of fields are irrigated by an irrigation canal (Gool) which flows from the south to north. It turns from field of deceased then flows through boundary of his filed, and reaches field of the accused persons. Both fields are irrigated by this canal.

It is further admitted that relations of accused persons with the deceased and his family were strained. There was some dispute between one Nanhi Bai on one side and father of deceased and his uncles on the other side regarding ownership of about 30 Bighas of land. Nanhi Bai was widow of Bhoop Singh and claimed ownership of the land of Bhoop Singh as his heir. Roshan Singh father of deceased and his brothers claimed ownership on the same land on the basis of a Will, which is said to have been executed by Bhoop Singh in their favour. A litigation was going on between Nanhi Bai and these persons. Accused Sita Ram was doing Parvi of the case of Nanhi Bai. This case was decided by the trial court in favour of Nanhi Bai after an incident in question i.e. 27.11.1978. This is also not denied that Sita Ram appeared as a witness for Nanhi Bai in this case on 29.8.1977.

It is further admitted by both sides that a litigation was pending between accused Sita Ram and father of the deceased in consolidation court as well which is still continuing.

On the date and time of occurrence, altercation between the deceased and appellant took place on account of stoppage of flow of water in the field. Allegation is that appellant tried to forcibly close supply of water to the field of the deceased, which was objected and two Lathis blows were given to the injured.

According to injury report of Govind Singh Ext. Ka-3, his injuries were examined on 17.11.1978 at 12:15 a.m. He was taken to the doctor by Jaidev Singh PW-1, who happens to be cousin of the deceased. Injuries found on his body are detailed herein below:

M.I. One black mole 4 cm below Rt. nipple 5 O''clock position. Injuries:

(1) Abrasion 1 cm x 1/10 cm on Rt. side of skull 10 cm above Rt. ear.

(2) Traumatic swelling 8 cm x 10 cm on the back of right hand. Adv. X-ray.

(3) Complaint of pain on right forearm but no mark of injury seen.

Injury No. 1 is reported to be simple. Injury No. 2 kept under observation. Duration about half a day. Injury No. 1 caused by friction and injury No. 2 caused by blunt object.

Post mortem on the body of deceased was performed on 18.11.1978 at 1:00 p.m. According to the doctor, brain was congested and smeared with blood. Haematoma on left part to frontal area of brain size 7"x 5" above 9 ozs free and clotted blood present, which resulted in his death.

Charge was framed by learned Sessions Judge Jalaun at Orai, on 8.12.1980 u/s 302/34 I.P.C. However, conviction was recorded u/s 304 Part-II I.P.C. Accused Sita Ram was convicted u/s 323 I.P.C. and sentenced six months R.I. whereas present appellant was convicted u/s 304 Part-II I.P.C. and sentenced five years R.I. and fine of Rs. 1000/-.

Prosecution examined as many as nine witnesses namely Jai Dev Singh PW-1, Sahdev Singh PW-2, Surendra Singh PW-3 are eye witnesses. Roshan Singh PW-4, Dr. R.K. Khattar PW-5, Dr. R.C. Singh PW-6 performed post mortem on body of the deceased. Shyamji Tripathi PW-7 and Amar Singh PW-8 are Investigating Officers. Jai Narain PW-9 is only formal witness.

First submission made by Ms. Anita Srivastava is that Jai Dev Singh PW-1 who is said to have lodged F.I.R. was not present at the scene of occurrence. He was a teacher. He has admitted in his cross examination that school functions from 10:00 a.m. to 4:00 p.m. and the school was opened on the said date. He has tried to explain his presence in the field by saying that school functioned only half day on account of (fair) MELA of Kartik Purnima and the witness was back from school. However, he could not substantiate it by any documentary evidence. Sahdev Singh PW-2 is a chance witness. Presence of PW-3 has been specifically disputed by appellant''s counsel on the basis of statement of Investigating Officers.

Second submission is that there was neither any intention to cause death nor injuries were caused with a knowledge that injuries could have resulted in death of the deceased. Bare perusal of injury report, is sufficient to establish that injuries were very simple and death of the deceased could be caused on account of said injuries. It is submitted that deceased received injuries somewhere else and appellant was implicated on account of enmity in the present case. Some suggestions were given to Sahdev Singh PW-2, who has admitted that he received injuries which resulted in fracture since he fell down from the tractor in which deceased was also sitting. The injuries to the deceased were caused only on account of fall from tractor. This has not been substantiated. I am not inclined to accept this argument.

However, it is true that injured was medically examined for the first time on 17.11.1978 at 12:15 a.m. There was no Majrubi Chitthi accompanying the injured and he was admitted in hospital by Jai Dev Singh PW-1. Therefore, submission of the counsel for appellant is that at the relevant time when injuries were examined on 17.11.1978 at 12:15 a.m. F.I.R. was not in existence. In fact, it appears that proper medical and timely assistance were not given to the injured, which resulted in his death. Conviction u/s 304 Part-II I.P.C. could have been justified if there was even a fracture on any part of the body. It is only a case of concoction in brain, which could have been caused by falling from the tractor.

Next submission is that it is apparent in the statement of witnesses that appellant was inimical with the deceased and his family members. There was already litigation going on between them. Therefore, appellant was falsely implicated in the present case.

Ms. Anita Srivastava also submits that there was no intention to cause death of the deceased. It is only a case of sudden quarrel, which ensued at a spur of the moment.

Learned A.G.A. has disputed each and every argument advanced on behalf of appellant and supported judgment of learned Sessions Judge.

Having given a careful consideration to the arguments advanced by the counsels for respective parties, I am of the view that present appellant should also be awarded the same conviction as that of Sita Ram u/s 323 I.P.C. Conviction u/s 304 Part-II I.P.C. is uncalled for since role of the appellant is identical to that of accused Sita Ram and evidence is also same. There is no reason why different yardstick should be applied in the case of the present appellant.

In my opinion, the injuries caused to the deceased were not grievous, the injury report clearly shows that there was neither any intention nor knowledge that death would occur as a result of the said injury. The theory propounded by prosecution stands completely nullified and is bereft of sound reasoning.

In view of the aforesaid discussion, conviction u/s 304 Part-II I.P.C. is altered to one u/s 323 I.P.C. and sentence of five years R.I. is reduced to the period already undergone. However, imposition of fine of Rs. 1,000/- is maintained. Judgment and order dated 25.4.1981 passed by Vth Additional District & Sessions Judge, Jalaun at Orai, in S.T. No. 131 of 1980 convicting the appellant u/s 304 (II) I.P.C. is set at naught. The instant appeal is partly allowed.

Chief Judicial Magistrate concerned is directed to ensure that fine of Rs. 1,000/- shall be realized from appellant''s property if it is within district.