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Budhi v. State Of U.P. - CRIMINAL APPEAL No. 3120 of 1979 [2005] RD-AH 3636 (28 September 2005)


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Criminal Appeal No. 3120 of 1979

Budhi and two others Vs. State of U.P.

Hon'ble Mukteshwar Prasad J.

Three accused namely, Buddhi and his two sons Nathi and Bhola have come up in appeal against the judgment and order-dated 13.11.1979 passed by Additional Sessions Judge, Mathura whereby he convicted all the three accused under Sections 307 and 323 both read with Section 34 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for a period of three years and six months respectively thereunder. He further found accused Bhola guilty under Section 324 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of one year. Accused Buddhi and Nathi were also convicted under Section         324/34 I.P.C. and were sentenced to suffer rigorous imprisonment for a period of one year. All the sentences of each accused were directed to run concurrently.

In short, the facts of the prosecution case were as under:-

P.W.2 Ram Saran, the first informant, and P.W.1 Khemchand are real brothers. Buddhi had four sons, Kanha, Bhola, Nathi and Shyam. Buddhi started living separately in the lifetime of his father and the remaining four brothers lived jointly. In the year 1974, relations between Khemchand and Buddhi were strained and litigation was going on. Khemchand had filed an objection prior to the incident in question, which was not liked by Buddhi.

On 18.7.1974 at about 7-00 A.M., Khemchand, a teacher, was going to his school on a bicycle. When Khemchand reached the plot owned by Buddhi, he found Buddhi and his four sons sitting there on the Mend of the plot. They stopped the bicycle of Khemchand saying that he would be killed. He was pulled down from the cycle and all the accused assaulted him (Khemchand) with lathies and pharsa. On the alarm raised by Khemchand, Ram Saran, his wife Smt. Ramshree and wife of Khemchand also rushed there to rescue him but they were also assaulted. Accused Bhola gave a pharsa blow to Smt. Batto. Khemchand sustained grievous injuries on his head and became unconscious. He was taken to District Hospital Mathura. The incident was witnessed by Chhotelal, Kamal Singh, Gurdayal and Tej Singh.

A written report was handed over to the police and a case was registered at Kotwali Mathura on the same day at 3-15 A.M.

Dr. C.M. Swaroop, Medical Officer of the District Hospital, examined the injuries of Khemchand on 18.7.1974 at 9-15 A.M. and found three lacerated wounds on the head and three contusions. He advised X-ray of the skull. In his opinion, all the injuries were fresh and simple and were caused by blunt object. After X-ray, fracture of the right parietal bone and temporal bone was detected.

Dr. Swaroop examined Smt. Batto on the same day at 9-30 A.M. and found one incised wound on the left palm base of left index finger, one contusion and one abrasion. At 9-40 A.M., the injuries of Smt. Ramshri were examined and the doctor found two contusions on the right shoulder and right elbow. All the injuries of Smt. Batto and Smt. Ramshri were fresh and simple and were caused by blunt object. The injury no.1 of Smt. Batto was caused by sharp edged weapon.

After registration of the case, the case was investigated by S.I. Babu Ram Dixit. He interrogated Ram Saran, his wife Smt. Ramshri, Khemchand and his wife Smt. Batto and other witnesses. After inspection of the scene of the incident, prepared a site plan and after completing investigation filed charge sheet against all the five assailants named in the F.I.R.

All the five accused were charged under Sections        148, 307, 325, 324 and 323 all read with Section 149 of the Penal Code. They pleaded not guilty to the charges and claimed to be tried.

In support of its case, the prosecution examined P.W.1 Khemchand, the injured, P.W.2 Ram Saran, the informant and one of the eye witnesses, P.W.3 Ramshri, another injured, P.W.4 constable Dwarka Prasad who prepared chik report and made entry in the G.D., P.W. 5 Dr. C.M. Swaroop who examined injuries of Khemchand, Smt. Batto and Smt. Ramshri on 18.7.1974, P.W.6 S.I. Babu Ram Dixit I.O. of the case and P.W.7 Dr. Jagdish Lal, Radiologist of the District Hospital.

Accused in their statements admitted litigation between the parties and strained relations. They, however, totally denied the prosecution story and attributed their false implication on account of enmity. Accused Buddhi pleaded that he and his son Nathi were ploughing their plot, Ram Saran and others arrived there and stopped him from ploughing. On their refusal, they were assaulted with lathies. They too used lathies in their defence and Smt. Batto and Smt. Ramshri sustained injuries. The other accused adopted the statement of their father. Accused Bhola pleaded alibi.

Accused examined D.W.1 Dina Nath, who was Amin in Tehsil Mathura and D.W.2 Onkar Nath Tiwari, a practicing lawyer at Mathura and led documentary evidence also in their defence.

After considering the arguments advanced on behalf of the parties and the material on record, learned Judge acquitted Kanha and Shyam of all the charges and they were given benefit of doubt. The remaining three accused Buddhi, Nathi and Bhola were found guilty, convicted and sentenced as mentioned above.

During pendency of this appeal, appellant no.1 Budhi expired.

Before proceeding further, it may be mentioned that Ram Saran, the complainant, his wife Smt. Ramshri and Khemchand all the three injured compounded their case with two appellants Nathi and his brother Bhola and filed a compromise and sought permission of this Court for filing compromise also. The injured filed a joint affidavit also in support of the application. The compromise was sent to the court of Chief Judicial Magistrate, Mathura for verification which was verified on 15.5.1995. All the three injured and the two appellants appeared before him and verified the compromise. The necessary permission to the injured is accorded for compounding the case. Consequently, both the appellants are entitled to be acquitted of the charges framed under Sections 324 and 323 both read with Section 34 of the Penal Code.

Learned counsel for the appellants has assailed the judgment under appeal mainly on the grounds that admittedly a cross case was also pending in the court which ended in acquittal. It was also urged that no independent witness came forward to support the prosecution story and all the three witnesses examined to prove the accusation are members of one family and are related to each other. It was also contended that Nathi and Bhola are nephews of Khemchand and their father Buddhi was real brother of Khemchand. The parties settled their dispute out side the court and filed compromise also and now they want to live peacefully and forget their past.

In the instant case, Khemchand sustained six injuries in all, including three injuries on his head. Out of three injuries on head, injuries no.1 and 2 were found to be grievous after X-ray and there were fractures of right parietal bone and temporal bone. Thus, I find that there is sufficient reliable ocular testimony coupled with medical evidence on record to the effect that the assailants made an attempt to commit murder of Khemchand and the offence committed by them comes within the purview of Section 307 I.P.C. Besides Khemchand, Ram Saran and Smt. Ramshri fully supported the prosecution story and testified that the appellants and others had assaulted Khemchand with lathies on the impugned date at about 7-00 A.M. when he was going to his school. Keeping in mind the number of injured i.e. 3, total number of injuries, their nature and seat also and the weapons used by the assailants, I am clearly of the opinion and hold that the appellants and others were aggressors and caused the injuries on the head of Khemchand with a view to kill him. It is, therefore, held that the prosecution succeeded in establishing the charge against the appellants under Section 307 I.P.C. and the finding recorded by the court below is sustainable.

So far sentence under Section 307 I.P.C. is concerned, I am inclined to take a lenient view. There are several mitigating factors and extenuating circumstances which compel me to take a lenient view. First of all, I may mention that the parties are closely related to each other and the appellants Nathi and Bhola are sons of Buddhi who was real brother of Khemchand. Besides, the incident, in question, took place in the month of July, 1974 i.e. more than 31 years ago. Accused Bhola was 35 years old and Nathi was 25 years old in the month of August, 1979. Now they are 61 and 51 years old respectively. The last but not the least important factor is that in case the two appellants are now sent to jail there would be again tension and bitterness between the two families who have decided to leave peacefully and do not want to remember their past. I am, therefore, of the opinion that it will be just and proper to sentence the appellants to the period already undergone by them and to pay a fine of Rs.1,000/- under Section 307 read with Section 34 I.P.C.

The appeal is, therefore, disposed of as under.

The appeal is partly allowed. Appellant Nathi is hereby acquitted of the charges framed under Sections 323 and 324 both read with Section 34 I.P.C.

Accused Bhola is hereby acquitted of the charges framed under Sections 324 and 323/34 I.P.C.

The conviction of appellants Nathi and Bhola under Section 307 read with Section 34 I.P.C. is upheld and each of them is sentenced to the period already undergone by them and to pay a fine of Rs.1,000/- and in default each of them will suffer rigorous imprisonment for a period of six months. They are allowed three months time from today to deposit the fine in the trial court.

A copy of this judgment shall be sent to the court below for compliance and compliance report shall be submitted by 15.1.2006.

Dated:       28th  September, 2005



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