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Munna Lal & another. v. State - CRIMINAL APPEAL No. 1074 of 1981  RD-AH 20480 (4 December 2006)
Criminal Appeal no. 1074 of 1981
1. Munna Lal
2. Jograj .......................................................................Accused
State of U.P. .................................................................Respondent
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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