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SHOBH NATH & OTHERS versus STATE OF U.P.

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Shobh Nath & Others v. State Of U.P. - CRIMINAL APPEAL No. 1237 of 1998 [2006] RD-AH 12078 (24 July 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

Government Appeal No. 2997 of 1998

State of U.P..............................................................Appellant

Vs

1. Lallu @ Rama  Shankar Shukla

2. Roop Narain @ Devendra Shukla

3. Harish Chandra......................................................Accused

             Respondents

Connected with

Criminal Appeal No.1237 of 1998

1. Sobh Nath

2. Siddh Nath(died)

3. Asheshar Nath

3. Lalita

4. Girish..................................................................Accused

                 Appellants

Vs

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

Hon'ble  M. C. Jain, J.

Hon'ble  M. Chaudhary, J.

(Delivered by Hon'ble  M. Chaudhary, J.)

Since  Criminal Appeal no. 1237 of 1998 Sobh Nath  & others vs State of U.P. and Government Appeal no.2997  of 1998  State of U.P. vs Lallu @ Rama Shankar Shukla & others  have arisen  out of one and the same judgment and order  dated 2nd  of July, 1998 passed by XI  Additional Sessions Judge, Gorakhpur in Sessions  Trial No. 128 of 1989 State vs Sobh Nath  & others they have been taken  up and heard together  and judgment shall be placed on the record of Criminal Appeal no.1237 of 1998 Sobh Nath  & others vs. State of U.P. which is   leading one.

By the impugned judgment dated 2nd of  July, 1998  passed in Sessions trial no. 128  of 1989 accused  Sobh Nath,  Siddh Nath and Asheshar Nath convicted under section 147 IPC  and section 302  read with 149 IPC were  sentenced to rigorous imprisonment for a period of six months  and imprisonment for life respectively thereunder and accused Lalita  and Girish convicted under section 148 IPC and section 302  read with section 149 IPC were sentenced  to rigorous imprisonment for one year and imprisonment for life respectively thereunder.  All the five  accused abovenamed  were also  convicted under sections 323, 324 and 325 each read with section 149 IPC and sentenced to rigorous imprisonment  for three months, one year and two years respectively thereunder.  Accused Harish Chandra, Lallu @ Rama Shankar and Roop Narain @ Devendra were acquitted of the charge levelled  against  them.

Since  accused appellant  Siddh Nath was reported having died appeal filed on his behalf  stood abated vide order dated  12.9.05.

Brief facts giving rise  to these appeals  are that  Sobh Nath, Siddh Nath and Asheshar Nath were real brothers  residing  at village Digghi, police station Harpur Budhat, District Gorakhpur.  Lalita Prasad, Dhruv Chand  and Roop Narain are the sons of Sobh Nath and Lallu, Rama Shankar and Devendra that of Siddh Nath.  Girish and Harish Chandra are sons of  Ashesar Nath. Ram Narain, Suraj Narain and Shiv  Poojan were real brothers. Ghan Shyan, Kaushal, Radhey Shyam and Satish  were sons of Shiv Poojan  and Shravan Kumar   is the son of Ram Narain.  At the relevant time  Satish, cousin of Shravan Kumar was studying in  10th class   in High School Rampur Akhara.  Dhruv Chand, son of  Sobh Nath   was also studying in 10th  class in Janta High School Khajani.  On 16th of November, 1987 some quarrel  took place  between  Satish Kumar on one hand and  Dhruv  on the other  while they were going to the school.  Satish complained regarding the said dispute to his elder brother and thereon that very noon Lalita   went to the house of Shravan Kumar and started  hurling abuses. He also   threatened that wherever he would see Satish he would kill him. In the evening of 16th of November, 1987 Shravan Kumar  and his family members were   ploughing their field  situate in the north of  abadi at village Diggha. At about 5:00 p.m.  Sobh Nath, Siddh Nath, Lalta, Roop Narain, Girish, Harish Chandra  and Lallu having lathis  and shovels were also  ploughing their fields situate nearby  at village Diggha. At about 5:00 p.m. as Satish was returning back to his home from the school and reached  there, sighting  him Lalita shouted that he had  come back and  should be killed and  then  all the persons abovenamed pounced upon him and  started giving  him blows with lathis. Immediately Shiv  Poojan  and his sons  Ghan Shyam and Kaushal rushed for rescue of Satish and then the miscreants also gave  blows to them  with their respective weapons. Sobh Nath was about to decapitate  Satish   but in the meanwhile Narvada, Ram Pyarey, Lal Chand  and Jai  Prakash Pandey rushed to the scene of occurrence and sighting  them  the miscreants fled away.  Then  Shravan Kumar  with  the help of others  taking all the four injured   rushed to the District Hospital  Gorakhpur in a jeep.  All the four injured  were medically examined there.  Since condition of Satish and  Shiv Poojan  was  quite critical  they were admitted  in the Hospital.  Then Shravan Kumar scribed report  of the incident and went to  police station Sikriganj situate at a distance of some 15 kms from village Diggha and handed over  written report of the occurrence to the police there  at 2:45 a.m. the same night.  The police registered a crime against the accused under sections  147, 148, 149, 323, 307 and 504 IPC.  Investigation of the crime was entrusted to   SI Gaya Prasad Singh  who  rushed to the scene of occurrence.

Injured Shiv Poojan  was medically examined  by Dr  M.K. Saxena  who was on emergency duty in the Hospital  at 8:00  p.m. His medical examination revealed below noted injuries on his person:

1. Lacerated wound 4 cm x ½ cm x scalp deep on right side of head 8 cm  above right ear vertical to nose.

2. Lacerated wound 5 cm x ¼ cm x scalp deep 2 cm in front to  injury no.1 placed horizontally.

3. Lacerated wound 1.5 cm. x 1/3 cm x scalp deep on right lateral side of forehead upper part  placed horizontally.

4. Contused traumatic swelling 10 cm x 8 cm x on  right side of face middle and interior part,  kept under observation.

5. Contused traumatic swelling 2 cm x 1 cm on the base of nose medial part, kept under observation.

          The doctor opined  that all the injuries were caused by some blunt object and  fresh in duration. Condition of the injured was  low and pulse feeble and he was  unconscious. Advised x-ray of skull.

.

Injured Satish  was medically examined by the doctor at 8:15 p.m..  the same evening. His medical examination revealed below noted injuries on his person:

1. Lacerated wound 4 cm x ½ cm x bone deep on left side of head about 4 cm above the left ear.

2. Lacerated wound 3 ½ cm x ½ cm x scalp deep on head about      4 ½ cm above the left eye brow medial end.

3. Incised wound 2 ½ cm x ½ cm x scalp deep  on left side of head about 7 ½ cm  above the left  eye brow.

4. Lacerated wound  ½ cm x ¼ cm x skin deep on left eyelid upper.

5. Lacerated wound 5 cm x ½ cm x scalp deep on right side of  Occipital region 11 cm above the right ear.

6. Lacerated wound 5 ½ cm x 1/3 cm x scalp deep on head  about 14 cm above the right ear.

7. Lacerated wound 2 cm x ½ cm x skin deep above left angle of mouth.

The doctor opined that all the injuries except injury no.3 were caused by some blunt object and injury  no. 3  by some  sharp weapon and all  were fresh. General condition of the injured was very low. Advised x-ray of skull.

Both the injured were admitted in the Hospital and the police was informed.

 

Medical examination of Ghan Shyam by the doctor at 8:30 p.m. the same  evening revealed  below noted  injuries on his person:

1. Lacerated wound  reversed  ^ shaped on left side of forehead about 8 ½ cm x ½ cm x scalp deep about 3 cm above left eye brow.

2. Contused swelling 4 cm x 1 cm on back of middle third of left forearm.

3. Contusion 3 cm x 1 cm on front of anterior aspect of upper third of right forearm.

Complained of pain in left hand, right hand and back. No external mark of injury detected.

The doctor  opined that all the injuries were caused by some blunt object and fresh in duration.  He advised X-ray  of  right  and left forearm.

X-ray of  left hand of Ghan Shyam revealed  fracture of ulna bone.

Medical examination of injured Kaushal  Kumar  by the doctor at 8:45 p.m. the same evening revealed  below noted injuries on his person:

1. Contused swelling 4 cm x 2 cm on back of elbow and lower part of left arm. Advised x-ray.

2. Contused swelling 3 cm x 1 cm on back of upper  third of left forearm. Advised x-ray.

3. Abrasion 3 cm x 1 cm on the front of anterior aspect of right arm.

4. Lacerated wound 3 cm x ½ cm x scalp deep on occipital aspect of head about 11 cm behind and above the left ear.

The doctor opined that all the injuries were caused by some blunt object and fresh in duration.

SI Gaya  Prasad  Singh    to whom  investigation of the crime was entrusted  visited the scene of occurrence and prepared its site plan map         ( Ext Ka 4) and collected  blood stained and simple earth from the scene of occurrence and prepared its memo ( Ext Ka 5).  He also  recorded statements of the witnesses.  Next day  investigation of the case was taken by   Station Officer   Gauri Pratap Singh in his hands.

Injured Satish succumbed to the fatal injuries  sustained by him in the said occurrence  in the  Hospital  the following morning i.e. on 17th of November, 1987  at 7:10 a.m.

Station officer Gauri  Pratap Singh who took  up investigation of  the case in his hands collected blood stained clothes  of injured  Ghan Shyam, Kaushal and Shiv Poojan and prepared their memos ( Exts Ka 23 & Ka 25). Then the investigating officer recorded statement of  injured  Ghan Shyam. On the direction of the  Station Officer Gauri Pratap Singh SI Devi Din Singh  drew inquest  on the dead body of Satish preparing inquest report ( Ext Ka 18) and other papers     (Exts Ka 19 to Ka 22) and entrusted the dead body in a sealed  cover alongwith necessary papers to  CP Ram Badan Tiwari and  CP Chaturbhij Verma for its postmortem.

Autopsy conducted on the dead body of Satish   by Dr  K.K. Tripathi, Orthopaedic  Surgeon, District  Hospital Gorakhpur on 17th  of  November, 1987  at 3:15 p.m. revealed blow noted  ante mortem injuries:

1. Four stitches wound on left side of  head 4 cm above left eyebrow. On cutting stitches it revealed  lacerated wound 5.0 cm x 1.0 cm x bone deep.

2. Three stitches wound on left side of head 2.0 cm lateral to injury no.1. On cutting stitches it revealed lacerated  wound 3.0 cm x 0.5 cm x bone deep.

3. Four stitches wound  on left side of  head 7 cm above left ear. On cutting stitches  it revealed lacerated wound 4 cm x 0.5 cm x bone deep.

4. Four stitches wound on the top of  head. On cutting stitches  it  revealed lacerated wound 5 cm x 0.5 cm x bone deep.

5. Four stitches wound  on  right side of  head 11 cm above right ear. On cutting stitches it revealed  lacerated wound 5 cm x 0.5 cm x bone deep.

6. Contused swelling 10 cm x 8 cm on the forehead extending both the upper eye lids.

7. Three stitches wound on left side face just lateral to left angle of mouth. On cutting stitches it revealed  lacerated wound 3.0 cm x 0.5 cm x skin deep.

On  internal examination  blood   clots were found present in  skull and  in the brain mater.  Occipital,  left temporal, frontal and  both the  parietal  bones were found fractured at places.   The doctor opined  that the death was caused due to  coma as a result of ante mortem head injuries.

On 19th of  November, 1987 the case was altered  under section 302 IPC vide  GD Entry no 25 ( Ext Ka 5).

It appears that injured  Shiv Poojan was  referred to Medical  College, Lucknow where he was   treated but he  succumbed to the  fatal injuries  sustained by him in the  said incident on 23rd of November, 1987 at 11:50 p.m. SI Vijai Singh, police station Chawk, District Lucknow  drew  autopsy on the dead body of Shiv Poojan  preparing the inquest report ( Ext Ka 30) and other papers  ( Exts Ka 31 and 32) and handed over the dead body in a sealed cover alongwith necessary papers to  CP Banwari Singh for its post mortem.

Autopsy on the dead body  of Shiv Poojan was conducted by Dr U.B. Singh, Orthopaedic Surgeon, Civil Hospital Lucknow on 24th of November, 1987 at 2:25 p.m. which revealed below noted  ante mortem injuries:

1. Lacerated wound  4 cm x 1 cm x bone deep on right side scalp 8 cm above right ear pinna.

2. Lacerated wound 5 cm x 1 cm x bone deep  on right side scalp 4 cm behind injury no.1.

3. Contusion in an area of 12 cm x 9 cm on the right side  scalp behind  right ear pinna.

4. Scabbed abrasion 7 cm x 2.5 cm on the lateral aspect of right arm  15 cm above elbow.

5. Multiple scabbed abraded contusions in an area of 8 cm x 6 cm on the right elbow back.

6. Scabbed abrasion 5 cm x 3 cm on back of left elbow.

7. Scabbed abrasion 12 cm x 5 cm on right side back 14 cm below the 7th  cervical  vertebra.

           Internal examination  revealed  depressed fracture  of right temporal and frontal bone on right side  in an area of  4 cm x 3 cm. Sub dural  haemotoma was  present in the posterior part of  brain.   The doctor opined that the death was caused due to coma as a result of head injuries.

Investigating officer got blood stained clothes of the victims and  blood stained earth collected from the scene of occurrence sent to the Scientific  Laboratory, Lucknow for   serologist 's opinion if they contained  human blood  and if so   their blood groups.

After completing investigation the police submitted charge sheet against the accused under sections  147, 148, 323, 324, 325, 307, 302, 504 and 149 IPC.  

In order to bring the charge home to the accused the prosecution examined  Shravan Kumar  ( PW 1), Ghan Shyam ( PW 2), Lal Chand (PW3) and Jai Prakash ( PW 4)  as eye witnesses of the occurrence. PW 5  Dr R.A.L. Gupta, Radiologist  who got  elbow  and  fore arm of  injured  Ghan Shyam  x-rayed proved  the x-ray plate ( material Ext Ka IV) and x-ray report             ( Ext Ka 2). PW 7 Dr M.K. Saxena, EMO District Hospital Gorakhpur who medically examined injured  Shiv Poojan, Satish, Ghan Shyam and Kaushal proved   their injury reports ( Exts Ka 3 & Ka 6 to  Ka 8).  He also deposed  that x-ray of the fore arm of Ghan Shyam  revealed ulna bone  fractured. PW8  Dr K.K. Tripathi who conducted autopsy on the dead body  of Satish proved the post mortem  report ( Ext Ka 12). PW 9 constable  Sumer Prasad  who prepared check report on the basis of the written report handed over  by  Shravan Kumar  at the police station  on 17th of  November, 1987 at 2:45 a.m. and made entry regarding registration of the crime in  GD proved these papers  ( Exts Ka 13 & Ka 14).  He also proved GD entry no.25 regarding  alteration  of the crime under section 302 IPC on 19.11.87( Ext ka 15). PW10 SI  Devi Din  Singh who drew inquest  on the dead body of Satish proved  the inquest  papers    (Exts Ka 18  to Ka 22). PW 11  CP Chaturbhuj Verma  to whom dead body  of Satish  in a sealed cover  alongwith necessary papers  was  handed over  for being taken for its post mortem  stated the said fact.  PW 6 SI Gaya Prasad  Singh and PW 12  Station officer Gauri Pratap Singh who  investigated   the crime  proved  the police papers.  PW 13  Dr U.B.Singh, Orthopaedic Surgeon, Civil Hospital Lucknow   who conducted  autopsy on the dead body of  Shiv Poojan  proved the post mortem report  (Ext Ka  29). PW 14 Umesh Chand  Srivastava, Pharmacist, District   Jail Hospital, Gorakhpur who produced medico-legal register stated that  during the period  from 22.5.87 to 12.8.88 there was no injury report of  Siddh Nath, Rama Shankar, Ashesher Nath, Harish Chandra, Girish and  Sobh Nath recorded therein.  PW 15 constable Banwari Singh  to whom dead body  of Shiv Poojan in a sealed cover alongwith necessary papers   was handed over   for its post mortem  stated the said fact.  CW 1  SI  Vijai Singh  who drew inquest on the dead body of Shiv Poojan proved the inquest papers                 ( Ext ka 30 to Ka 32).

The accused denied  the alleged occurrence  altogether  stating that they were implicated in the case  falsely due to  animosity.  The defence  case is that in the evening of 16th of  November, 1987 Sobh Nath  and his brother  Siddh Nath   and son  Dhruv Chand  were getting their field  situate at  Diggha sowed; that at about 5:00 p.m. Satish, Kaushal, Ghan Shyam, Surya Narain, Shiv Poojan and  Viddhya taking lathis, spade and spears  reached  at his field and  Satish shouted  that  Dhruv Chand  had beaten him while  going to  the school and now he  would be murdered; that then Sobh Nath  and  Siddh Nath asked them not  to abuse them;  that immediately they  gave them lathi, spade and spear blows and as Ashesher Nath alongwith   Lalita  and  Girish  rushed for their rescue they also  gave them blows  with their  respective weapons; that  Sobh Nath  and his  companions also gave blows to the assailants in their self-defence  and that   then  Sobh Nath  taking all the injured went  to police station Sikriganj for lodging  FIR of the occurrence  but they were  rebuffed  and their report was not taken down by the police.  It is also contended that on 29th of  December, 1987 Sobh Nath    gave a complaint  in the court of Magistrate but in spite of the  order of the court  no case was  registered by the police against the assailants.  It is also  stated that injured Sobh Nath, Siddh Nath, Asheshar  Nath  and  Lalita  Prasad  were got medically examined at the Primary Health Centre Khajani, District Gorakhpur.  The accused examined  DW 1  Dr  Purshottam Tiwari, DW 2 Dr C.B. Singh and DW3 Dhruv Chand  in their  defence.  DW 1 Dr Purushottam Tiwari, Medical Officer in-charge Primary Health Centre Khajani stated that he  medically examined   injured  Sobh Nath, Ashesher  Nath, Siddh Nath and Lalita Prasad on 17th of  November, 1987 between 2:35 to 4:05 p.m.  and proved  their injury  reports.  

Medical examination of  Sobh Nath  revealed below noted injuries on his person:

1. Incised wound 2.4 cm x 0.5 cm x scalp deep stained with blood and blood clots present. Not bleeding on touch but full of blood clots and neighbouring portion swollen  in an area of 4 cm x 3 cm. This wound was situate on scalp  12 cm above the left ear with clear cut sharp margins and edges. All the garments  stained with blood.

2. Traumatic swelling in an area of 6 cm x 4 cm on left fore arm just above the wrist; tender on touch, colour  pinkish greyish. Movement at right wrist free.

3. Post traumatic swelling in an area of 12 cm x 10 cm on the extension aspect of right hand. Swollen part  tender and  reddish grey in colour. Patient is not able to perform proper movements by his right hand. There may be fracture of any of carpals or metacarpals. Advised  x-ray of right hand.  

4. Post traumatic swelling covering whole of left hand in an area  of 23 cm x 11 cm .Patient quite unable to perform any useful movement by his left hand. Advised  x-ray of left hand.  Colour  is pinkish grey.

5. Complained of pain in both the shoulders.

6. Abrasion 3 cm x .5 cm not oozing, dry and red in colour in the upper most part of right side neck  in sub mandible region.

The doctor opined that  injury no. 1 was caused by some sharp edged weapon and rest  by blunt object and about  one day old in duration.  

Medical examination of  injured Asheshar Nath  revealed below noted injuries on his person:

1. Lacerated  wound 1.5 cm x 0.5 cm x scalp deep on head 10 cms. Above the left ear with irregular margins and edges; stained with blood  & blood  clots presents.  The wound  not bleeding on touch, oozing of serum present.  Colour  reddish grey.

2. Incised wound 2.5 cm x 0.4 cm x scalp deep on  back part of head 15 cms  above the root of  neck with clean cut sharp margins  & edges  and  stained with blood  & blood clots present.  Garments  stained with blood.

3. Contusion with swelling in an  area of  4 cm x 3 cm on  left side face just below the left lower eye lid, colour  pinkish grey.

4. Lacerated wound 0.5 cm x 1 cm x skin & muscle deep on the antero lateral aspect of left fore arm 9.5 cm below the elbow stained with blood  and blood clots present.

5. Diffused swelling in an area of  23 cm x 14 cm extending from just below the injury no. 4 and covering whole of the lower part of left forearm and whole of the extension aspect of left hand.  Patient unable to perform useful movements at his left wrist and left hand.

He  complained of  pain in left shoulder.

The doctor  opined that injuries  no.1 and 3 to 5 were  caused by blunt object  and injury no.2 by some  sharp edged weapon and about one  day old in duration. Injuries  no.1 to 3  were  simple in nature.    Injuries no.4 & 5 were  advised  x-ray.

Medical examination of Siddh Nath revealed below noted injuries on his  person:

1. Lacerated wound 4 cm x 0.5 cm x scalp deep on head  9 cms  above the left ear; stained  with blood & blood clots  present.  Colour  pinkish grey.

2. Lacerated wound  2.5 cm x 0.6 cm x scalp deep on head 8.5 cm above the medial end of right eyebrow; stained with blood  & blood clots  present.  Colour  reddish grey.

3. Contusion with swelling in an  area  4 cm x 3 cm on  left side face just below the left lower eyelid; colour  pinkish grey.

4. Post traumatic swelling in an area of  7 cm x 4 cm  on the lower  & anterior  part of left fore arm just above the wrist with tender swelling  but movements at wrist  quite free, colour  pinkish grey.

    The doctor opined that  injuries  were caused by  blunt object and about a  day old in duration.

Medical examination  of Lalita Prasad  revealed below noted  injuries on his person:

1. Lacerated wound 3.5 cm x 1 cm x scalp deep in occipital region  14 cm above right ear stained  with blood; colour  reddish grey.

2. Post traumatic swelling in an area  9 cm x 7 cm  on the extension and lower part of right fore arm just above the wrist with tender  swelling; colour pinkish grey.   Movements at wrist  free.

3. Complained of  pain in right thumb.

4. Complained  of  pain in whole of the left hand.

5. Post traumatic swelling in an area  5 cm x 4 cm  on back part of right elbow joint; pinkish grey in colour  & movements at right elbow free.

6. Multiple abrasions in an area   22 cm x 6 cm on left side abdomen 6 cm away from umbilicus not oozing; colour pinkish grey.

All the injuries were caused by some blunt  object or by hit  against some hard object, simple in nature and about one day  old in duration.

DW 2  Dr  C. B. Singh, Medical Officer in-charge Primary Health Centre Nath Nagar, Basti who medically examined injured Dhruv  Chand and Girish on 17.11.87 at 6:00 a.m.  and 6:15 a.m respectively proved their injury reports     ( Exts Kha 5 & Kha 6).

Medical examination of injured Dhruv Chand  revealed below noted injuries on his person:

1. A reddish contusion 3 cm x 2 cm over right side of head over parietal eminence.

2. A reddish contusion 5 cm x 2 cm over left side of back lower part

3. A reddish abrasion  4 cm x 1 cm over left arm middle part medial surface.

    The doctor opined that  injuries no. 1 and 2 were caused by  blunt object and injury no.3 by friction. All the injuries were simple in nature and about half day old in duration.

Medical examination of injured Girish  revealed below noted injuries on his person:

1. A reddish contusion   4 cm x 2 cm over right side of back middle part.

2. A reddish  contusion 6 cm x 2 cm  over left side of thigh middle part outer surface.

Complained of  pain over right thigh.

    The doctor opined that the injuries were caused by blunt object, simple in nature and about half day old in duration.

DW 3  Dhruv  Chand, son of  accused Sobh Nath  also  appeared as a defence witness.

On an appraisal of the parties' evidence the learned trail Judge  held  accused  Sobh Nath, Siddh Nath, Asheshar Nath, Lalita and Girish  guilty of the  charge levelled  against them and  convicted them sentencing each of  them as stated above and extending benefit of doubt  to accused  Lallu @ Ram Shankar, Roop Narain @ Devendra and  Harish Chandra.

Feeling aggrieved by the impugned  judgment accused  Sobh Nath, Siddh Nath,  Asheshar Nath, Lalita and Girish preferred   criminal appeal for redress.  Feeling  dissatisfied   with the   acquittal of accused  Lallu @ Rama Shankar, Roop Narain @ Devendra, Harish Chandra the State  also preferred   appeal assailing the impugned judgment to the   said extent.

We have heard Sri  P.N. Misra, learned  Senior Advocate for the  accused  appellants in Criminal Appeal and the accused respondents in the State  Appeal  as well and  AGA  Sri Karuna Nand Bajpai for the  State  respondent  in the criminal appeal and  State appellant   in the State  appeal and gone through the record.

After going through  the impugned judgment and  record of the  case  we see that the learned  trial judge  has  written  an elaborate and  well discussed judgment and  we find  ourselves  in consonance therewith.  However, learned counsel for the  accused appellants   in the criminal appeal has advanced the following arguments  and now we shall  examine  if any of the submissions  made by  the learned counsel for the accused  appellants has got any force:

First, learned counsel for the accused appellants  strenuously argued that  since the prosecution has not been   able to  explain   the injuries  suffered by accused appellants Asheshar Nath, Siddh Nath, Lalita  Prasad, Sobh Nath and Girish the prosecution case  should  fail. After giving  our anxious  consideration,  we are of the considered view that the said  submission made by the  accused appellants' learned counsel  proceeds with the fallacious assumption  that  all the   accused  appellants received  injuries   in the course of the said incident, and therefore  the said  submission is misconceived.  A perusal of the parties' evidence goes to show  that at the relevant  time  Satish, son of Shiv  Poojan and  Dhruv Chand, son of  Sobh Nath were  studying in  10th  class in different schools; that at about 9:00 a.m. on 16th of November, 1987 when  they were going  to their  respective schools some brawl took place between the two and  that then  Dhruv Chand went back to his house.  PW 1  Shravan Kumar  and PW 2  Ghan Shyam both consistently stated that at about 12-1  noon  that very day  Lalita Prasad, elder brother  of Dhruv Chand   went to their house and complained about the conduct of Satish   and  started hurling abuses; that  thereon they told him that   when  Satish  will return back  they would  take his class; that at about 4:30 p.m. they alongwith  Shiv Poojan, Kaushal and maternal uncle  Jai Prakash taking their tractor  went to  their field at village  Diggha and were   getting their  field  ploughed with the  tractor; that at  that time  Sobh Nath,  Asheshar  Nath, Siddh Nath, Rama Shankar, Dhruv Chand, Roop Narain, Girish and Lalita were getting  their field  ploughed with an ox; that at  about 5:00 p.m. that very evening  Satish  was returning  back from the school and  as he reached near the   corner of the  field  of Deep  Narain situate  to the west of the field of the  accused  sighting him  Lalita   exhorted that he should be  killed  and  all of them  taking lathis, shovels and hoe chased him and  gave him lathi and hoe blows;  that immediately Shiv Poojan and his sons  Ghan Shyam and Kaushal rushed for the rescue of Satish; that then all the  assailants  abovenamed  started  giving lathi and shovel blows to all the three and  that sustaining  the fatal injuries  Satish and Shiv Poojan  fell down and became unconscious and  Ghan Shyam and  Kaushal also  fell down; that in the meanwhile  hearing the  hue and cry  one Narvada, Ram Pyarey and Lal Chand rushed   from the market  to the scene of occurrence and  that  at that time Sobh Nath taking the  hoe  was about to decapitate  Satish  but sighting  the witnesses  all   of them  ran towards  their houses.  PW 3  Lal Chand  and PW 4 Jai Prakash also  stated likewise  corroborating  both  the witnesses  abovenamed on material aspects of the case. Both   PW1 Shravan Kumar  and PW 2  Ghan Shyam consistently stated that no person  on their side was  armed with any weapon nor did they cause any  injury  to any of the  assailants.

A perusal of the medical evidence  goes to show that  when injured Satish and Shiv Poojan were  medically examined by the doctor at District Hospital Gorakhpur condition of each of them was quite critical and both  of them were  unconscious.   Injured Satish  succumbed to the  fatal injuries  sustained by  him in the said incident in the Hospital the following morning at  7:10 a.m.  Since  the condition of injured   Shiv Poojan was also worsening he was  referred to  Medical College Lucknow and   admitted  there on 17th of November itself where he succumbed to fatal injuries sustained by him on 23rd of November at 11:50 p.m.  Dr R.A.L. Gupta, Radiologist   who   got left hand of injured  Ghan Shyam  x-rayed found  his ulna bone fractured. A perusal of the injury report  of  Ghan Shyam also revealed  that he received a lacerated wound 8 ½ cm x ½ cm x scalp deep on left side of  his  forehead.  Medical examination  of injured  Kaushal also revealed injuries  on his person  including  a lacerated wound  3 cm x  ½ cm  x scalp deep on  occipital region.  All the injuries  sustained  by  the four victims were found to be  fresh in duration.  Regarding the injuries   allegedly sustained by  the accused appellants  and Dhruv Chand ( DW 3) it is doubtful if they sustained injuries  in the said incident for threefold reasons: (i) There is no Cross FIR of the occurrence lodged by any of the accused at the police station.  The  defence case is that injured  Sobh Nath taking all the injured went to the police station but his report was not  taken down by the police. This defence version does not inspire confidence   because   that day no FIR was lodged by injured Ghan Shyam or any person  from the side of the  victims on prosecution side due to fatal injures sustained by  Shiv Poojan and Satish  as they were rushed to the  District  Hospital  situate  at  a distance of  some 40-45 kms  from the place of occurrence and thereafter  their relatives  remained awfully busy in looking after  them as they were  hospitalized.  It is but natural that  blood relations were  more concerned  about the lives of  the two injured  whose condition was so critical that one of them  died the following morning  at 7:15 a.m. and the other was referred to Medical  College Lucknow.  In such a situation it does not appeal to our minds   that  if accused  Sobh Nath, Asheshar, Siddh Nath and Lalita Prasad  who  had allegedly received  head injuries  in the said incident  went to the police station soon after the occurrence but their report was not taken down by the police for the following reasons: ( i )  There is nothing  on the record to show that all or any of the   police officials  posted at  the police station were so inimical to them that they did not  record the FIR inspite of the fact that several  injured with bleeding injuries were present  there,  (ii) According to the defence case  four accused  abovenamed   had suffered  open  wounds on their heads  bleeding so much that  the clothes  put on  by them  got  blood stained  but  they did not go  either to the  District Hospital Gorakhpur or  Primary Health Centre, Khajani soon thereafter  for their medical examination  and treatment as all the four  got  themselves medically examined  at  Primary  Health Centre Khajani next evening i.e. on 17th of November, 1987 and  (iii) Strangely enough  accused Girish  and  Dhruv  Chand  got themselves medically examined  at  the Primary Health  Centre Nath Nagar, District Basti next morning i.e. on 17th of  November 1987 at 6:00 a.m. and 6:15 a.m. respectively.  Medical examination of injured Girish revealed  two contusions and one   abrasion  at his back and thigh.  It is  incomprehensible and unintelligible  as to  why they did not  get themselves  medically examined at  PHC, Khajani and that what were the compelling circumstances  which made them  to go to the neighbouring  district and  get themselves medically examined at  PHC Nath Nagar emergently at 6:00 a.m. and 6:15 a.m. in the  month of November when neither of them had received any serious injury.  Possibility cannot be ruled out  altogether that their injury reports are fictitious.  

Further, DW 1 Dr Purshottam Tewari, Medical Officer in-charge, Primary  Health Centre  District  Gorakhpur who medically examined  Sobh Nath, Asheshar Nath, Siddh Nath and Lalita on 17th of November, 1987 between 2:35 p.m. to 4:05 p.m. stated that all the injuries sustained by Siddh Nath and  Lalita  were simple in nature  and about  one day old in duration.  A perusal of the injury report  of Lalita  Prasad goes to show that the doctor opined that all the injuries allegedly sustained  by him  were caused by some blunt object   or by hit  against some hard object.  He also  stated that  injuries  no. 1  & 2  received by Asheshar   at his scalp were simple.  He also  stated that injury no. 1  sustained by Sobh Nath at his scalp  could not be  caused with spade   because if spade is used  for causing injury at  head it would  cause injury much more in depth.  Further, according  to the prosecution case  accused  Siddh Nath was  arrested by the police  on 20th  of November, 1987.  PW 12  Station Officer  Gauri Pratap Singh  who arrested accused Siddh Nath on 20th of November, 1987  stated that in the GD entry  it is mentioned  that there  was no injury  on the   body of  Siddh Nath and  there was a  mark of  old injury on his head ( Ext Ka 27).  Further, it has come in evidence that  accused  appellant  Sobh Nath, Asheshar Nath, Lalita and  Girish were  challaned  by the police  under  Railways  Act and were  in the  District  Jail Gorakhpur  in connection with the said crime on 27th  of November, 1987.  PW 14 Umesh Chand  Srivastava , Pharmacist District  Jail   Gorakhpur  produced Medico- Legal Register in the  Court  and deposed that there was no mention  of any injury report regarding accused Siddh Nath, Rama Shankar, Lalita , Harish Chand,   Sobh Nath and Girish during   the period  from 22nd of May, 1987  to 12th  of August, 1988. According to the  Jail Manual, before  any accused  is lodged in the  District Jail  it is mandatory for the Jail Doctor  to medically examine him and to record injuries in the  Medico- Legal Register, if there is any  injury on his person.  Since there is no mention of any injury on the person of Siddh Nath  who was lodged in the  District Jail on 21st of November, 1987  it raises  a considerable doubt if he suffered  any lacerated  wounds at his head  at all because injuries no. 1 & 2  as mentioned in his  injury report   could not  have healed up  within 4-5 days. Non- mention of  any injury much less any head injury in the   GD entry and  Medico-Legal Register maintained by the Jail Doctor  goes to reveal  that injuries  mentioned in the  injury report  of Siddh Nath may be fictitious  or were noted down in an exaggerated manner because  DW 1 Dr Purshottam Tewari, Jail Doctor  himself  admitted in his cross-examination that   skin  over scalp contains seven layers. And if  injuries   no. 1 & 2  allegedly sustained by Siddh Nath were  scalp deep  they could not have completely  healed up within 4-5 days.  

For the reasons aforesaid,  we are of the considered view that  the accused   appellants   did not sustain   any injury  in the  incident aforesaid and  injuries noted in the injury reports   might be self inflicted or  manufactured and might have been mentioned  in the injury reports in an exaggerated  manner.  Since it is  not proved  that the accused appellants sustained injuries in the said incident at the hands of  the victims   on the prosecution side, it was not  at all obligatory upon the prosecution to explain the injuries  allegedly sustained by the accused appellants in the said incident.   Moreover, since testimony of four eye witnesses examined by the prosecution is very strong and of unimpeachable character the prosecution  would not  fail  if the injuries  allegedly sustained by the accused   have not been explained by the prosecution.  Both the eye witnesses namely Shravan Kumar and Ghan Shyam  categorically  stated that none on their side was armed  with any weapon at the time of incident  nor  did they   cause  any injury  to any of the  accused appellants.  The said argument advanced by the learned counsel for the  accused  appellants is therefore liable to be rejected and is  repelled.

Secondly, it has been vehemently  argued by the learned counsel for the accused appellants that  eye witnesses examined by the prosecution  being close relatives   or associates of the  deceased  their testimony cannot be  relied upon.  No doubt,   PW 1  Shravan Kumar was  real nephew  of deceased Shiv Poojan and  first cousin of deceased Satish and PW 2  Ghan Shyam  was son of deceased  Shiv Poojan and  real brother of deceased  Satish and PW 4 Jai Prakash  happened to be   the maternal uncle of deceased Satish  and brother-in-law  of deceased  Shiv Poojan but their sworn testimony cannot be  thrown over  board on that  ground  alone. Admittedly,  PW 3  Lal Chand   is the resident of village  Badra  where  deceased  Shiv Poojan  alongwith his  brother  Ram Narain   and  their sons  used to reside  constituting   a joint family. He emphatically denied that  Suraj Narain,  brother  of deceased  Shiv Poojan  appeared as a witness in his favour in revenue litigation between  him and one  Ghisiyavan.  No doubt  that  he did not support the prosecution case against  accused Harish Chandra,  Lallu @ Rama Shanker and Roop Narain @ Devendra as he could not  recognize them.  But  otherwise  he  supported the prosecution case against  the remaining  accused on all the material  aspects. All the four eye witnesses  who cogently and  consistently deposed  on the main  aspects of the prosecution case  corroborating  each other were subjected to rambling and gruelling  cross-examination  but nothing  substantial    could be  elicited to shake  their  credibility.   Shorn   of few contradictions and inconsistencies which are of trivial  and insignificant nature nothing  tangible  could be   elicited   to shake  the central core of their assertions  in respect of the prosecution  version.  Since  the testimony  of four eye witnesses is of unimpeachable  character and above reproach of suspicion there is no reason to doubt  their testimony nor the  trial judge who  had  an opportunity to watch the demeanor   of these witnesses  castigated their testimony in any manner.  Moreover,  if the witnesses  are related to the deceased it would add to the value of their testimony,  if found  reliable  because they  would naturally be  interested  in ensuring that  real culprits  should be   punished. Therefore the said argument  advanced by the learned counsel for  the accused appellants has got no life and is rejected.

Thirdly,  learned counsel for the accused appellants   contended that   according to the prosecution witnesses  two assailants namely  Roop Narain @  Devendra and Girish  were  armed with hoes and Lalita and Harish Chandra  with shovels  but  a perusal  of the injury reports of  all the four   victims  goes to  show   that only  Satish  had received an incised  wound at his scalp.  No doubt,  the doctor  who medically examined  all the four injured  mentioned only one  incised wound  sustained by Satish at his  head,  but  regarding nature of  the injuries  only  opinion is given  by the doctor. Looking to the  size of the injuries  no. 1 & 2  sustained by  Shiv Poojan  they could be caused   with  shovel or hoe.  Moreover, shovel and hoe   come in the category of sharp edged weapon but they are not  so sharp as  knife, sword  etc. as both  shovel and hoe are agricultural implements.  Therefore, the said argument advanced by the learned counsel for the appellants  has got no substance and  falls to the ground.

Fourthly, it has  also  been argued that the prosecution  party was  aggressor and the accused  appellants wielded lathis in their self-defence.  This   submission advanced by the learned counsel  for the accused appellants is wholly  fallacious as  observed above. It has not been established at all that the accused appellants suffered any injuries in the incident aforesaid.  Moreover,  a perusal of the injury reports of the accused  appellants and medical evidence  goes  to  show that   none of them received  any injury of serious  or grievous nature.  On the other hand, on the prosecution side Satish  was made target and assaulted  by the accused appellants in a calculated manner and intensity and impact of the  blows given to him was so severe that the autopsy on his  dead body revealed fracture of both the parietal, temporal, occipital and frontal bones  of his head.  He sustained all the injuries on his head and face.  Shiv  Poojan, father of Satish  rushed for his rescue. He was also given fatal blows at his head  and  he was also medically examined by the doctor at District Hospital, Gorakhpur at 8:00 p.m. the same evening. At that time he was unconscious and his condition was so critical that next morning he was referred to Medical College Lucknow  where he succumbed to the fatal injuries  sustained by him  on 23rd of November itself.  All these facts  go to show that  it were the accused who were the aggressors.

Lastly, it has also been argued by the learned counsel for the  appellants that the  FIR  of the occurrence  lodged at the police station  was much delayed.  We are unable to agree with the  said submission advanced  by the  learned counsel for the accused appellants.  Two persons  namely Satish and his father Shiv Poojan received fatal injuries  in the said incident and  their condition was quite critical  so much so that  Satish succumbed to the fatal injuries sustained by him in the  Hospital the following morning  at 7:30 a..m. and injured  Shiv Poojan  was referred to medical  College, Lucknow  as his condition was getting worsened.  Under these circumstances,  close male   members  who  were present at the scene of occurrence were more concerned about their lives and  remained  awfully   busy in getting them hospitalized and  managing for medicines etc.  PW 1  Shravan, real nephew  of  Shiv Poojan, the deceased stated that since he  remained  awfully  busy as  their condition was quite critical and  injured  Ghan Shyam  and  Kaushal were also   admitted in the hospital the FIR could be  lodged  at the police station Sikriganj at 2:45 a.m. in the night. We are of the view that delay in lodging FIR has been explained satisfactorily.

The  learned trial Judge has given cogent  and convincing  reasons  for extending benefit of doubt to accused Lallu @ Rama Shankar Shukla, Roop Narain @ Devendra Shukla and Harish Chandra.  He  rightly extended benefit of  doubt  to three accused  Harish Chandra, Roop Narain @ Devendra and Lallu @ Rama Shanker as PW 3 Lal Chand  could not recognize them.  He also  observed that  Harish  Chandra was allegedly  armed with shovel but  it was  stated that  Sobh Nath took  hoe from the  hands of Harish Chandra  in order to decapitate  Satish.   He  rightly observed that   sometimes there is a tendency of roping all the male members of  a family in the  crime and  that looking to the number and nature of injuries  sustained  by the victims  presence of accused  Harish Chand, Roop Narain @ Devendra and Lallu  @ Rama Shankar appeared to be doubtful. And since  the said finding cannot be said to be perverse  or unreasonable  we have to  confirm the same.

Both  the appeals  have no merit and are liable to be dismissed.  

The Government  Appeal  is hereby dismissed and acquittal of accused  respondents  Lallu @ Rama Shankar Shukla, Roop Narain @ Devendra  Shukla and Harish Chandra is hereby affirmed.  All the three  accused respondents abovenamed are on bail.  Their  bail bonds are hereby discharged.

The Criminal Appeal is also dismissed. Conviction of accused   appellants   Sobh Nath and Asheshar  Nath under section 147 IPC and section  302  read with 149 IPC and that of  accused  Lalita  and Girish  under section 148 IPC and section 302  read with 149 IPC and that of all the four accused   appellants under sections 323, 324 and 325 each read with section 149 IPC and sentences awarded to each of them thereunder  by the  trial  court are hereby affirmed. Accused appellants  Sobh Nath, Asheshar Nath, Lalita and Girish are on bail.  Their  bail bonds are hereby cancelled.  Chief Judicial  Magistrate, Gorakhpur  is hereby directed to get  accused   appellants  Sobh Nath, Asheshar Nath, Lalita  and Girish  arrested and sent to jail to serve out the sentences  imposed upon them.

Appeal filed  on behalf of accused appellant Siddh Nath stood abated as he was reported having died.

Office is directed to send copy of the judgment  alongwith record of the case to the court  concerned immediately for  compliance  under intimation to this court within two months of receipt   thereof.

Dt: 24th of July, 2006

GA No.2997 of 1998

Connected with Cr Appeal No.1237-98


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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