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Munna Lal & another. v. State - CRIMINAL APPEAL No. 1074 of 1981 [2006] RD-AH 20480 (4 December 2006)


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              Criminal Appeal no. 1074  of 1981

1. Munna Lal

2. Jograj .......................................................................Accused



State of U.P. .................................................................Respondent

Hon'ble M.Chaudhary,J.

This is a criminal appeal filed on behalf of the accused appellants from judgment and order dated 28th of March 1981 passed by  III Additional Sessions Judge, Budaun in Sessions Trial no.155 of 1980 State vs. Munna Lal & another convicting them under section 304 IPC and sentencing each of them to rigorous imprisonment for eight years thereunder.

Brief facts giving rise to this appeal are that at 3:30 p.m. on 30th of January, 1979  Raja Ram lodged an FIR at police station Data Ganj situate at a distance of some eight miles from village Nagaria alleging that few days prior to the occurrence some altercation had taken place between his behnoi  Sukh Lal on one hand and Munna Lal and Jograj on the other in the market at  Sukhaura and the latter started nursing grudge against the former. In the evening of 28th of January, 1979 Munna Lal and Jograj were sitting at the door of the house of Sukh Lal; that at about 4:00 p.m.  as Sukh Lal returned from the market both of them gave lathi blows to him; that   in  the meanwhile on hearing the hue and cry Sonwati, mother of Sukh Lal and his wife came out of their house and one Manohar also rushed to the scene of occurrence and challenged the miscreants  and that  then the  miscreants  took to  their  heels. Sukh Lal suffered  internal  injuries  at  his  chest and  head and  blood oozed from his mouth.  Raja Ram, brother-in-law of Sukh Lal also reached his house at Nagariya the same night just  by chance and then Sukh Lal narrated the incident to him . Next day Sukh Lal could not be taken to the police station due to non-availability of any conveyance. On 30th of January, 1979 after arranging a bullock cart Raja Ram took his injured behnoi  Sukh Lal to the police station and handed  over  written report of the occurrence to the police there.  The police registered a crime against the accused under section 308 IPC accordingly.  SI Vijai Pal Singh Sirohi to whom investigation of the crime  was entrusted started the investigation. Sukh Lal was got medically examined by Dr Brij Mohan Saxena, Medical officer in-charge Primary Health Centre Data Ganj the same day.  His medical examination did not reveal any external injury on his body. However the injured complained of pain  in his chest and head. He was in semi- conscious state. He was kept at Primary Health Centre Data Ganj and referred to District Hospital Budaun. However  Sukh Lal succumbed to the injuries sustained by him  in the said incident on 1st of  Feb, 1979 at 5:30 a.m. at PHC Data Ganj.

SI Vijai Pal Singh Sirohi, the investigating officer drew inquest  on the dead body of Sukh Lal preparing inquest report (Ext Ka 9) and other papers (Exts Ka 10 to Ka 13) and handed over the dead body in a sealed cover alongwith necessary papers to constables  Dhruv Singh and Pran Sukh for its post mortem.

Then the crime was altered under section 304 IPC (Ext ka 4).

Autopsy conducted on the dead body of Sukh Lal by Dr P.C.Pandey, Medical officer District Jail, Budaun on 1st of February,1979 at 4:00 p.m. revealed belownoted ante mortem injuries on the dead body:

1. Contusion 7 cm x 3 cms on back of the  scalp right side10 cms above the right ear.

2. Contusion 6 cms x 2 cm  on right side of scalp 7 cms above the right ear .

3. Contusion 8 cms x 2 ½ cms on the left side of scalp  9 cms above  left ear.

On internal examination right and left temporal  bones and both the parietal bones were found fractured in zig-zag. The doctor opined that the death was caused due to shock and haemorrhage as a result of head injuries about half  day ago.

After completing investigation  the police submitted charge sheet against the accused under section 304 IPC.

After framing of charge against the accused the prosecution examined Manohar (PW 2), Natthu (PW 3) and Sonwati (PW 4) as eye witnesses of the occurrence.  PW 1 Raja Ram who lodged FIR of the occurrence proved the written report ( Ext ka 1). PW 5 HM Rama Shanker Sharma who prepared check report on the basis of the written report handed over by Raja Ram at the police station  and made entry regarding registration of the crime in GD proved these papers (Exts Ka 2 and Ka 3).  PW 6 Dr Brij Mohan Saxena, Medical Officer       in-charge PHC Data Ganj  who medically examined  injured Sukh Lal on 30th of January,1979 at 4:45 p.m. proved the injury report ( Ext ka 5). PW 8 Dr P.C. Pandey, Jail Doctor District Jail, Budaun who conducted autopsy on the dead body of Sukh Lal proved the post mortem report (Ext ka 7).  PW 9 SI Vijai Pal Singh Sirohi, the investigating officer who drew inquest on the dead body of Sukh Lal and after completing the investigation submitted charge sheet against the accused proved the police papers.

The accused pleaded not guilty denying the alleged occurrence altogether and stated that they were got implicated in the case falsely due to animosity. Their  defence is that  Sukh Lal  wanted  to marry his son with the daughter of  Girwar; that they  wanted that  Girwar   should marry   his daughter  with some boy of their  village  Dhinvarpura; that they  advised  Girwar not to marry  his daughter with  the son of  Sukh Lal to  which  Girwar   agreed and  that on that  account   Sukh Lal   started  nursing grudge  against them.

On an appraisal of evidence on the record the learned trial Judge held the accused guilty of the offence punishable under section 304 IPC and convicted  and sentenced them as  stated  above.

Feeling aggrieved by the impugned judgment the accused preferred this appeal for redress.

Heard Sri P.N.Misra, learned counsel for the accused appellant and learned AGA Sri R.S.Srivastava for the State respondent.

After  going through the impugned  judgment and  record of the  case the   Court finds   no good  reason not  to  accept  the  finding of  conviction  recorded  by the   court below against the   accused  appellants.  PW 2  Manohar, PW 3 Nathu and  PW4  Sonwati  appeared  as  eye witnesses  of the occurrence. PW 4  Sonwati, mother  of  the  deceased deposed that the alleged   evening   she alongwith  her daughter-in-law  and grand children was  inside her house; that  on hearing  the   scream of her son  Sukh Lal she  rushed  towards the   entry  door  of her house and  saw that  Munna   and  Jograj were  giving   lathi blows to  Sukh Lal; that in the meanwhile hearing the hue and cry one Babu, Natthu and  Manohar rushed to the scene of occurrence and as they challenged  the miscreants  both of them fled away and that they chased them but the assailants  succeeded  in making  their  escape  good.  She  further  stated that after receiving  lathi injuries   her son  Sukh Lal   fell down; that   with the help of  the co-villagers she took injured Sukh Lal  inside the house; that Raja Ram, brother-in-law of Sukh Lal reached her house the same night just  by chance and that  she  was very poor  and had no bullock cart and therefore could  not  take her injured  son to  Data  Ganj the same day.  PW 2 Manohar  and  PW 3  Natthu, both residing  in close vicinity  corroborated her   stating likewise.  All the  three  were subjected to   gruelling and searching cross-examination but nothing  tangible could be elicited  therefrom to shake their credibility. Shorn of few contradictions  which  are of an insignificant  nature and immaterial their testimony is cogently consistent. No doubt PW 4 Sonwati is mother of the  deceased and Manohar  his cousin but    PW 3 Natthu  is  an independent  witness.  Admittedly  Bihari and  Chet Ram  were  cousins.  Manohar is the son of  Chet Ram and  Sukh Lal was  son of  Bihari. Even  testimony  of  interested  witnesses  can not be  run down if  their presence  at the scene of occurrence  can not  be  doubted  and   their  testimony  finds   support   from the  circumstances  attending the  case and there is nothing  on the record  calling  for   its  rejection. All the three appeared to be honest and  straightforward witnesses.

However,  the  appellants' learned  counsel   advanced  the following  arguments and   now  it has to be  seen  if any of them  has got  any force :

First,  the appellants' learned  counsel  laid much emphasis  upon the  fact that FIR of the  occurrence is  much delayed as the alleged occurrence took place   on  28th of  January, 1979  at about    4:00 p.m. whereas FIR of the occurrence was lodged  on 30th of  January, 1979 at  3:30 p.m. A perusal of the  record goes to show  that   police  station Data Ganj was situate at a distance of eight miles from village   Nagaria where  the incident took place in front of the house of  Sukh Lal in the month of  January.  PW 4  Sonwati, mother  of  the  victim stated in her cross-examination that she requested  some  of the  co-villagers  to provide   bullock cart to take her injured  son to  Data  Ganj but none acceded  to her  request  because  it was drizzling after the  occurrence and there were  cold  waves and as she entreated  for the bullock cart  they replied that  they would not trouble their  oxen  in that  chill.  She stated that after the occurrence  many of  the co-villagers  collected there  but none of them helped her in shifting her injured son to  Data  Ganj.  She also stated that since  the village chawkidar had developed  gangrene  in his feet he was not  in a position to move  and  none of the co-villagers  was   ready to accompany  her  to the police  station.  She further stated that  Raja  Ram, brother-in-law of  Sukh Lal  came to  her house in the night  the same day  the incident occurred   just   by chance and next day he went back to his village  to  bring bullock  cart and could  return back  with the  bullock cart  in the evening and then next day i.e. Tuesday she alongwith  Raja  Ram  taking her injured son Sukh Lal  in the bullock cart  went to the police station and  Raja  Ram handed  over written report of the occurrence to the police  there and then  Sukh Lal was sent to Data Ganj Hospital.  PW 2 Manohar  stated that Data Ganj is situate  at a distance of 5 kose from the  village and  one had to go to Data  Ganj through kaccha way and a river fell in between and therefore FIR of the occurrence  could be  lodged at  the police  station  on Tuesday i.e. 30th of  January, 1979.  Under these circumstances  the  Court is of the  view that delay in lodging the  FIR  has been  explained  satisfactorily.  It is  a matter  of  common  experience that in western UP sun is visible hardly for  3-4  hours in  noon time in the  month  of January, and due to intense fog   way is not  visible at a distance of  8-10  paces upto 11-12  noon for  days  together.

Secondly, learned   counsel   for the appellants  vehemently argued that   medical examination of  injured  Sukh Lal did not reveal any external injury on his body.  No doubt , a perusal of the injury report goes to show that  the medical examination of   Sukh Lal   did  not reveal any external injury on his person but at the same time   a perusal of the injury report  goes to show  that injured  Sukh Lal complained  of pain in  right side of his head and in the chest and he was  semi-conscious.  The  doctor  also  advised x-ray of his chest .  He also referred  him to  District  Hospital Budaun but due to remissness and  sluggishness  of the police  he was not shifted to District  Hospital Budaun and succumbed  to the injuries sustained by him in  Primary  Health Centre Data  Ganj itself on  1st  of  February, 1979 at  5:30 a.m.  It   has come in evidence that  after  receiving   lathi injuries   he became  unconscious for some  time and  blood  oozed   from his mouth and that  thereafter he remained semi-conscious for most of the time till death. Autopsy conducted on the dead body of Sukh Lal  revealed  three ante mortem  contusions on his  scalp. On internal examination right and left parietal bones  and  both the temporal bones were  found  fractured  in zig-zag. PW 6 Dr  Brij Mohan  Saxena, the then medical officer in-charge   PHC Data  Ganj stated that at the time of  medical examination injured  Sukh Lal was  in semi-conscious  state.   It has come in  evidence that blood  oozed  from mouth of the  injured. The appellants' learned counsel also contended that  a perusal of the injury report  goes to show that injured  Sukh Lal complained  of pain in   his chest  but   autopsy did not reveal  any  internal or external injury in the chest. It is true   that there is  no mention of any internal injury in chest  region in the post mortem  report; but a perusal of the  injury report goes to show that   thorough  checkup of  the injured  could not be done  as it was not possible at the  Primary Health  Centre  and therefore he was referred to  District  Hospital  Budaun.  The doctor  who conducted  autopsy on the  dead body of  Sukh Lal  was not   asked anything  relating thereto in his cross-examination. Under the circumstances nothing adverse can be presumed for the advantage of the accused appellants on that  count.  

Thirdly,  the appellants' learned  counsel strenuously argued that  statements of  the eye witnesses  were recorded by the investigating officer with  inordinate delay.   PW 9  SI  Vijai Pal Singh Sirohi who investigated  the   crime recorded the statements of  Smt  Sonwati and  the witnesses on 17th of  February, 1979.  He stated that  he could not  investigate the instant  crime  till 13th of  February, 1979 because he was busy in investigation of some other heinous crimes. If the  investigating officer did not think it necessary to record the statements of the witnesses  at the  earliest possible  the sworn testimony of the three eye witnesses can not be  thrown over- board.

Some contradictions and  inconsistencies in the  statements of  eye witnesses  have also been pointed out.  As  for example, PW 4 Sonwati, mother of  the   deceased  stated that the occurrence took place  on Sunday; that Raja  Ram brother-in-law of  Sukh Lal came to her   house   in the night  the very day the incident took place; that  next day i.e. on Monday he went  to his  village to take the  bullock cart and by the evening he  could  return   back taking bullock cart  and that  on Tuesday morning  they taking   injured  Sukh Lal  in the bullock cart  went to  the police  station where  Raja  Ram handed  over  written report of the occurrence to the police.   However,  PW 2   Manohar  stated that  Raja Ram  had reached  the house of   Sukh Lal  the day of  the occurrence  when it became dark and that next day he went to his village Lehru to take  a bullock cart and  came  back with the  bullock cart  on Tuesday. A perusal of the record  goes to show that statements  of  the witnesses  were recorded in the  trial court some  two years  after the occurrence. PW 2 Manohar   being cousin of  Sukh Lal  was not  so much  concerned  with him but Sonwati being mother of  Sukh Lal was   much  concerned  about her  son's  welfare.  PW2   Manohar  might have  given said statement under some confusion or  by mistake.    It may be  that  Raja  Ram  might have returned back with the  bullock cart  in the  late evening and  therefore  Manohar   might  not have noted  that Raja  Ram  returned  back with the   bullock cart  on Monday itself.  However  such contradictions being of trivial nature do not   go to the very root of the case.  

Regarding   the testimony of  DW 1 Girvar, he  stated that he had  settled  the marriage  of his daughter with the  son of  Sukh Lal in the  month of  Aghan two years  ago but  subsequently he did not   go to the house of  Sukh Lal  taking   Shagun as  Jograj and  Munna  Lal  advised him not to marry his  daughter in that  family as they were too poor and  he agreed with them which  annoyed  Sukh Lal.  This   witness Girwar expressed  ignorance  to the  suggestion given by the state  counsel in his cross-examination that  eldest  child of  Sukh Lal was   a  girl aged about 11 years and thereafter two sons, 6 years and 2 years of age  respectively.  These  facts  go  to show  that  DW 1  Girwar  was  examined  just to save the   accused  appellants  who were related to him,  but his testimony is of no help to the accused.

For the  foregoing  discussion, the Court is of the view that the trail court  was  perfectly justified in believing the prosecution  case   and evidence against the accused  appellants  and  recording  finding of  guilt  against them.  The appeal   has  no merit  and is  liable to be dismissed.

The  appeal  is dismissed and  the  impugned  judgment  and  order convicting  accused  appellants  Munna Lal and  Jograj under  section 304 IPC and  sentencing   each of them to eight years'  rigorous   imprisonment thereunder is  affirmed.  Both the  accused  appellants  are on bail.  Their   bail bonds are  cancelled.  Chief  Judicial Magistrate Budaun is  directed to get  accused  appellants  Munna  Lal and Jograj arrested  and  send them to jail to serve out the sentence  imposed upon  them.

Office is directed to send  copy of the judgment  alongwith record of the lower  Court to the  Court  below  immediately for necessary compliance  under intimation to this  Court  within two months.

Dated: 4th of  December, 2006

Crl Appeal No.1074 of 1981


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