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BANKEY LAL versus STATE

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Bankey Lal v. State - CRIMINAL APPEAL No. 1042 of 1981 [2006] RD-AH 1954 (25 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Reserved)

Criminal Appeal No. 886 of 1981

Ram Lal and another Versus State of U.P.

And

Criminal Appeal No. 1042 of 1981

Bankay Lal versus State of U.P.

----

Hon'ble Mukteshwar Prasad J,

Two brothers Ram Lal and Mewa Lal sons of Lakkhi filed Criminal Appeal No. 886 of 1981 against the judgment and order dated 23.4.1981 passed by Sri S.L. Adarsh, the then Additional Sessions Judge, Allahabad in S.T. No. 72 of 1980. Criminal Appeal No. 1042 of 1981 was filed by third accused Bankay Lal against the aforesaid judgment and order-dated 23.4.1981. All the three appellants were convicted under Section 325 read with Section 34 I.P.C. and were sentenced to suffer rigorous imprisonment for a period of five years. Accused Mewa Lal and Ram Lal were further found guilty under Section 323 of Penal Code and each of them was ordered to undergo rigorous imprisonment for a period of six months. Accused Bankay Lal was convicted under Section 323 read with Section 34 I.P.C. and was sentenced to suffer rigorous imprisonment for a period of six months. All the sentences of each accused were directed to run concurrently.

Since both the appeals have arisen out of a common judgment dated 23.4.1981, they were heard together and are being disposed of by a common judgment.

Appellant Ram Lal son of Lakkhi Pasi expired during pendency of this appeal.

In nutshell, the facts of the case are as under:-

Complainant Ram Chandra Pandey son of Devi Prasad Pandey and all the three appellants named above are residents of village Kamaipur, Police Station Nawabganj, District Allahabad. Admittedly, the complainant was having his pumping set in his Chak situated towards north of the village for the last 10-12 years. He had a plot measuring 12 Biswas. Appellant Ram Lal had his plot quite adjacent to the plot of the complainant towards west. Bankay Lal had his plot towards west of the plot of Ram Lal and he had his pumping set towards north of the plot of Ram Lal. It is also admitted between the parties that prior to installation of the pumping set by Bankay Lal, all the appellants and others irrigated their plots from the pumping set of the complainant.

On 18.10.1978 at about 8.30 a.m. complainant's grand-father Onkar Nath was raising his western Mend in his plot. Ram Lal and Mewa Lal armed with lathies accompanied by Bankay Lal arrived there and used abusive language and forbade Onkar Nath Pandey from raising Mend. After having heard filthy language and threatening to Onkar Nath Pandey, the informant accompanied by his father Devi Prasad and grandfather Badri Prasad Pandey rushed there. Accused Bankay Lal exhorted Ram Lal and Mewa Lal that Onkar Nath Pandey would not stop raising Mend and instigated them to teach a lesson. Ram Lal and Mewa Lal assaulted Onkar Nath Pandey with lathies. The informant and others raised alarm and arrived at the spot but they were also belaboured with lathies. The incident was witnessed by PW 2 Bachnu Misra son of Paramsukh, Mohan Darji, Punit Lal son of Birju and others. The witnesses raised hue and cry and then assailants took to their heels. Onkar Nath Pandey sustained grievous injuries on his head and neck and he was brought to his house on a cot where he succumbed to his injuries after a few minutes.  

The informant prepared a report in his own handwriting and reached Police Station Nawabganj and handed over his report. PW 3 H.C. Kedar Nath Misra registered a case on the same day at 11.15 a.m. at Crime No. 182 under Section 304 I.P.C. and an entry was made in the G.D. The informant, his father and grandfather were sent to P.H.C. Holagarh through a constable Deota Dayal for medical examination of their injuries.

PW 7 Dr. V.D. Singh, the then Medical Officer, P.H.C. Holagarh examined the injuries of Ram Chandra Pandey at 3.15 p.m. on the same day and found one lacerated wound 4 cm. x 0.5 cm x 0.2 cm on left side occipital bone. The injury was simple and was caused by blunt object. In the opinion of the doctor, it was fresh at the time of examination.

Dr. Singh further examined injuries of Badri Prasad Pandey on the same day and found abrasions on occipital bone of head. The injuries were fresh and simple in nature.

After registration of the case at the Police Station, the investigation was taken up by S.I. Sadamuni Singh. He accompanied by S.O. B.K.Yadav, left the Police Station and reached the scene of incident at about 2.00 p.m.  He prepared inquest report and other relevant papers and sent the dead body of Onkar Nath Pandey to mortuary. He interrogated Ram Chandra Pandey on the same day at about 5.00 p.m. On the same day, he prepared a site plan at the pointing out of the informant and collected blood stained earth and prepared Fard.

Next day, at about 5.00 p.m. accused Bankay Lal was arrested by the police. The Investigating Officer interrogated the accused.  

PW 6 Dr. V.K. Gupta, the then Medical Officer of M.L.N. Hospital, Allahabad conducted autopsy on the dead body of Onkar Nath Pandey on 19.10.1978 at 3.45 p.m. and found following ante mortem injuries: -

1. Lacerated wound 2 ½" x ¼" x bone deep on the middle of the left parietal bone of the skull 4" above to the highest point of the left ear. Clotted blood present around the wound.

2. Abrasion 1 ½" x 1" on the left lateral portion of the left neck. Colour blue.

3. Abrasion ½" x ¼" on the back of the let elbow.

On internal examination, Dr. Gupta found fracture of left parietal bone, left and right frontal bones of the skull. In the opinion of doctor, death was caused on account of shock and hemorrhage resulting from ante-mortem injuries.

After completing investigation, the Investigating Officer submitted charge sheet against all the three appellants named in the First Information Report.

All the three accused were charged under Sections 304 read with Section 34 and Section 323 of Penal Code, to which they pleaded not guilty and claimed to be tried.

The prosecution in support of its case, examined PW 1 Ram Chandra Pandey, complainant and one of the injured, PW 2 Bachnu who is said to be an eyewitness and named in the F.I.R., PW 3 S. I. Kedar Nath Misra, who prepared Chik report and made entry in the G.D., P.W. 4 Kishori Lal, Chaukidar, PW 5 S.I. Sadamuni Singh, Investigating Officer, PW 6 Dr. V.K. Gupta, who conducted postmortem examination on 19.10.1978 and PW 7 Dr. V.D. Singh, the Medical Officer who examined the injuries of informant and Badri Prasad Pandey on 18.10.1978.

Accused Bankay Lal in his statement admitted relationship of the parties as well as location of their plots and pumping set. He, however, denied the prosecution version and attributed his false implication in the case on account of enmity. The defence version is that he and other farmers used to irrigate their plots from the pumping set of the complainant and there were drains for this purpose. After boring of the tube well by him, the farmers including him stopped irrigating their plots from the complainant's pumping set and they were annoyed. Four persons were dismantling the drains on the impugned day forcibly. He along with his mother went there and were assaulted with lathies. On raising alarm, Mewa Lal and Ram Lal with a view to defend his life and to protect his property wielded lathies. He was arrested by the police on the same day and on the next day, he lodged F.I.R. The injuries of Bankay Lal were examined at P.H.C. Kaurihar and injuries of his mother were examined in T.B. Sapru Hospital, Allahabad. He added that PW 2 Bachnu had no plot in the vicinity and he did not reach there. Mewa Lal adopted the statement given by Bankay Lal.

Accused examined DW 1 N.K. Khare to prove the injuries of Smt. Ram Pati, (mother of Bankay Lal), DW 2 Chandrama Prasad, Pharmacist, P.H.C. Kaurihar. who filed medico legal register and DW 3 Dr. Amol Kumar Saxena, the then Medical Officer, P.H.C. Kaurihar. He proved injury report dated 19.10.1978 of Bankay Lal.

After having considered the arguments advanced on behalf of the parties as well as oral and documentary evidence on record led by them, learned Judge found all the three accused guilty and convicted and sentenced them, as noted above.

I have heard learned counsel for the appellants, learned A.G.A. and perused the record carefully. Learned counsel for the appellants has assailed the judgment in question mainly on the grounds that two accused assaulted the deceased Onkar Nath Pandey with lathies. Hence there would have more injuries on his body. However, P.W. 6 Dr. V.K. Gupta who conducted the autopsy found one lacerated wound bone deep on the middle of left parietal bone and ante-mortem injuries do not tally with the prosecution version, as contained in the written report of Ram Chandra Pandey. It was further contended that F.I.R. is totally silent regarding injuries of appellant Bankay Lal and his mother Smt. Ram Pati.  Moreover, the prosecution failed to explain the injuries of Bankay Lal, which were found bleeding by P.W. 2 Bachnu. It was also urged that P.W. 2 Bachnu was not present at the scene of incident and he had no agricultural plot in the vicinity of the place of occurrence. The appellants caused injuries to the complainant and his grand father who succumbed to his injuries in exercise of their right of private defence of person and property and they deserve acquittal. The court below did not consider the defence version and the evidence led by the appellants and failed to arrive at correct conclusion.

On the other hand, learned A.G.A. submitted that the court below took into consideration the defence version as well as evidence led by the appellants and law also on the point and after thorough discussion convicted the appellants. The appellants were rightly found guilty and appeal is liable to be dismissed.

I have considered the submissions made on behalf of the parties. I have scrutinized and scanned the evidence on record led by them carefully. So far as the case of prosecution is concerned, it examined two witnesses of fact including injured Ram Chandra Pandey to prove the story. As noted above, the location of the parties' plots and pumping set was admitted between the parties. The appellants further admitted their presence in the plot where the incident in question took place.

P.W. 1 Ram Chandra Pandey who is informant and one of the injured, fully supported the prosecution story and categorically stated that on the impugned date at about 8.30 a.m. his grant-father Onkar Nath Pandey was raising Mend of his plot admeasuring 12 Biswas. All the three appellants were present there and abused Onkar Nath Pandey and forbade him from raising Mend. After having heard altercation and threatening by the appellants, he accompanied by his father Devi Prasad reached there. According to him, on exhortation of Bankay Lal to teach a lesson, Ram Lal and Mewa Lal wielded their lathies and caused injuries to Onkar Nath Pandey. When informant and others reached there raising alarm, they were also assaulted by Ram Lal and Mewa Lal. The witness added that on hue and cry Bachnu Misra, Nanhu and Punit Lal, arrived there and raised alarm and then the assailants ran away.

It is noteworthy that this incident was reported to the police at 11.15 a.m. on the same day at Police Station Nawabganj situated at a distance of six miles from the place of occurrence. It is also noteworthy that informant's grandfather Onkar Nath Pandey succumbed to his injuries within half-an-hour of the incident. However, the incident was reported promptly and there was no time at all for any consultation. Similarly I find that injury of Ram Chandra Pandey was examined on the same day at 3.15 p.m. by P.W. 7 Dr. V.D. Singh at P.H.C. Holagarh. Dr. Singh found one lacerated wound 4 cm. x 0.5 cm. x 0.2 cm. left side of occipital bone. Dr. Singh further examined Badri Prasad Pandey on the same day and found two abrasions on the occipital bone of head.

P.W. 2 Bachnu, who is named in the F.I.R. as one of the  eyewitnesses, claimed to have arrived at the scene of incident and saw the appellants assaulting Onkar Nath Pandey and they forbade Onkar Nath Pandey from raising Mend. He testified that Ram Lal and Mewa Lal had assaulted Ram Chandra, Devi Prasad and Badri Prasad Pandey also with lathies.  Onkar Nath Pandey fell down in the plot from where he was taken home and he succumbed to his injuries. In cross-examination, Bachnu asserted that he was present in his plot and his plot was situated towards south of plot of Onkar Nath Pandey. Both Ram Chandra Pandey and Bachnu were cross examined extensively on behalf of accused but nothing material could be elicited in the cross examination to dis-believe their testimony. Even if the testimony of P.W. 2 Bachnu is excluded from consideration, there is direct and  reliable evidence of informant who sustained injuries in the course of same incident. I, therefore, see no reason to discard his testimony, which finds full support and corroboration from the prompt F.I.R. and medical evidence on record.

P.W. 6 Dr. V.K. Gupta who conducted post mortem examination found fracture of left parietal bone as well fracture of left and right frontal bones of Onkar Nath Pandey. He opined that the ante- mortem injuries of Onkar Nath Pandey could be caused by lathies. It is noteworthy that it was nowhere suggested to the doctor as to how many lathi blows were given to deceased. In my opinion, the deceased was given more than one lathi blow.

Now so far as defence version is concerned, Ram Lal expired during pendency of this appeal. Mewa Lal who was also assigned the role of assaulting with lathies to Onkar Nath Pandey along with his brother Ram Lal adopted the statement of Bankay Lal. Bankay Lal asserted that on the impugned date and time, Devi Prasad. Ram Chandra, Onkar Nath Pandey and Badri Prasad Pandey were dismantling the Mend forcibly. When he and his mother Smt. Ram Pati reached there, they were assaulted with lathies. On his alarm, Mewa Lal and Ram Lal used their lathies with a view to defend his person and property and he was arrested by the police on the same day and he lodged a F.I.R. He and his mother got their injuries examined. In other words, the appellants pleaded that it was informant and others, who were aggressors and Ram Lal and Mewa Lal wielded their lathies in defending Bankay Lal and their plots. It is admittedly adjacent to the plot of the complainant.

It is settled that everybody has a right to defend his person and body of any other person and property but this right may be exercised under the conditions and circumstances and to the extent given in various Sections of Penal Code. It is also well settled that prosecution is not always obliged to explain the minor or superficial injuries of the accused. It was held by the Supreme Court of India in Jagdish vs. State of Rajasthan reported in AIR 1979 CRI. L. J. 888 that following two conditions must be satisfied:

1. that the injuries on the person of the accused must be very serious and severe and not superficial;

2. that it may be shown that these injuries must have been caused at the time of the occurrence in question.

In the aforesaid circumstances, it becomes obligatory for the prosecution to explain the injury so far as to satisfy the court as to the circumstances under which occurrence originated.

In the light of the aforesaid guidelines laid by the Apex Court, I find that the appellants failed to establish that they exercised their right of self-defence. As mentioned above, the impugned incident took place on 18.10.1978 at about 8.30 a.m.  S.I. Sadamuni Singh Investigating Officer, arrested Bankay Lal on 19.10.1978 at 5.00 a.m. who lodged F.I.R. on the same day at 8.30 a.m. It means the incident was reported to the police by the appellant after 24 hours and he got his injuries examined on the same day at 12.00 noon i.e. after 28 hours. Bankay Lal admitted in his report that Mewa Lal and Ram Lal assaulted Onkar Nath Pandey with their lathies and he fell down. First of all, I find that Dr. N.K. Khare, who examined the injuries of Smt. Ram Pati, found one abrasion on the forehead above right eyebrow. It means she sustained no lathi injury. Further, her injury was 36 hours old. The injuries of Bankay Lal were examined by Dr. Amol Saxena, who found one lacerated wound on the skull, one lacerated wound on left thumb and one contusion on left thigh. In his opinion, the injuries were 24 hours old. First of all, Dr. Saxena disclosed that injuries could not be caused at 8.30 a.m. on 18.10.1978. He, however, changed his version immediately and testified that all the injuries were simple. A close look on the injuries of Bankay Lal clearly indicates that injuries were not serious. The informant was also assaulted in the course of incident and his grandfather aged about 60 years after sustaining injuries fell down in the plot and expired within half-an-hour. In this view of the matter, the possibility that informant could not mark the injuries of Bankay Lal could not be ruled out. Keeping in view the seat of injury nos. 1 and 4, the informant would not have marked the injury. The injury no. 4 must have been covered with clothe (Dhoti). Keeping in mind the aforesaid facts and circumstances, I am of the opinion that non-mentioning of the injuries of Bankay Lal in the report or in the testimony of informant is not fatal.  The appellants, first of all, failed to establish by reliable evidence that injuries were caused at the time of occurrence.  They have further failed to show that the injures were serious and prosecution was obliged to explain the injuries.

As stated above, Bankay Lal was assigned the role of exhortation. On the other hand, Bankay Lal claimed that he was given lathi blows by four persons in the plot and then Ram Lal and Mewa Lal came to his rescue and used lathies. Had there been truth that four persons wielded lathies on Bankay Lal, he must have received more injuries including serious injuries on his head and other vital parts of the body. The defence version in itself is full of contradictions. All the four family members were alleged to be busy in raising Mend. It means that they were having four spades. However, none of them, used spades either for attack or for defence. This circumstance further goes to show that the appellants have not come with clean hands and defence version is not trustworthy.

After close scrutiny and analysis of the entire material on record as well as circumstances of the case, I hold that learned trial Judge rightly found the appellants guilty for committing offences punishable under Section 325 read with Sections 34 of Penal Code. The surviving appellants (Bankay Lal and Mewa Lal) are also found guilty under Section 323 read with Section 34 of the Penal Code. So far as sentence is concerned, Onkar Nath Pandey an old man aged about 60 years succumbed to his injuries as a result of fracture of parietal and frontal bones, I therefore, see no good ground to reduce the sentence imposed by the court below. Consequently, I find that this appeal has no merit and it must fail.

In the result, the appeal is disposed of as under: -

Appellants Bankay Lal and Mewa Lal are hereby convicted under Sections 325 and 323 both read with Section 34 of Penal Code and each of them is sentenced to suffer rigorous imprisonment for a period of five years and six months respectively.

Both the sentences of each accused are directed to run concurrently.

The appellants are on bail. Their bail bonds are cancelled. They shall be taken into custody to serve out the sentences.

A certified copy of this judgment along with lower court record shall be transmitted to the court concerned / Chief Judicial Magistrate for compliance of the order with intimation to this Court within two months from the date of receipt of the record.

Dated:   25th January 2006

SU


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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