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Mauji Ram And another v. State - CRIMINAL APPEAL No. 2053 of 1981  RD-AH 18335 (30 October 2006)
Criminal Appeal No. 2053 of 1981
1. Mauji Ram
2. Ram Khilari.......................................................Accused
State of U.P...........................................................Respondent
Hon'ble M. Chaudhary, J.
This is a criminal appeal filed on behalf of the accused appellants from judgment and order dated 31st of August, 1981 passed by I Additional Sessions Judge, Agra in Sessions Trial No. 802 of 1979 State vs. Mauji Ram & another convicting accused Ram Khilari under section 304 Part II IPC and sentencing him to three years' rigorous imprisonment thereunder and accused Mauji Ram under section 323 IPC and section 325 read with section 34 IPC and sentencing him to six months and two years' rigorous imprisonment respectively thereunder. Both of them were acquitted under section 302 IPC.
Brief facts giving rise to this appeal are that Bhadai were four brothers namely Chhidda, Bisna and Sarman besides him. Dhanpal was the son of Chhidda and Ram Sahai son of Sarman. Mauji Ram and Ram Khilari are sons of Bisna. Maharaj Singh was the son of Bhadai. One day prior to the alleged occurrence there was sagai ceremony of Soran, son of Dhanpal. Smt Basanti, wife of Maharaj Singh and daughter-in-law of Bhadai had gone to attend the sagai ceremony. In the ceremony batashas were distributed. On being asked by Smt Shankutala, wife of Dhanpal if she had got batashas Basanti denied. Thereon Smt Swaroopi, wife of Mauji Ram stated that she had given batashas to Basanti twice which resulted in a tiff between them. Basanti told the said incident to her mother-in-law Sukko. Thereon Maharaj Singh asked Basanti to ignore that matter. At about 1:00 p.m. on 27th of December, 1977 Bhadai and his wife Sukko were planting onion saplings in their field at village Khandauli. Shanty of Ram Khilari and that of Mauji Ram were situate adjacent to the fields of Bhadai. In the meanwhile children of Mauji Ram started damaging the onion saplings. Then Bhadai and Sukko asked Mauji Ram to keep his children away as they were damaging the saplings, and an altercation ensued between them. At that very time Maharaj Singh also reached there. In the meanwhile Mauji Ram and Ram Khilari picked up sawed green bamboos belonging to Bhadai lying there, and Ram Khilari gave blow to Bhadai with that bamboo hitting him at his head. Mauji Ram also gave him a bamboo blow. Immediately Sukko and Maharaj Singh rushed for his rescue but both of them also gave them bamboo blows. In the meanwhile Maharaj Singh wielded danda in self-defence thereby causing injuries to Mauji Ram. On hearing the hue and cry Mahavir Singh, Ram Khilari resident of Matua and Mohan Singh rushed to the scene of occurrence. Immediately Maharaj Singh and Sukko taking injured Bhadai on a cot went upto the road and then took him in a tonga to police station Khandauli where Sukko lodged a report of the said incident with the police at 3:30 p.m. The police recorded NCR of the said incident. Then injured Bhadai, Sukko and Maharaj Singh were got medically examined by Dr Nar Singh Bahadur at PHC, Khandauli between 4:00 p.m. to 4:15 p.m that very evening.
Medical examination of Bhadai revealed below noted injuries on his person:
1. Lacerated wound on head in middle part measuring 1 ½ cm x ½ cm x ½ cm with margins lacerated. Blood present in wound.
2. Swelling 2 cm x 1 cm on left side of face just above the upper part of left ear.
The doctor opined that the injuries were caused by blunt object , fresh in duration and grievous in nature. His BP was 120/80 . He was unconscious and both the pupils dilated.
Medical examination of Sukko revealed below noted injuries on her person:
1. Linear abrasion 3 cm on the right upper arm in middle part frontal region & lateral part. Wound not scabbed.
2. Contusion 2 cm x 1 cm on upper left arm in middle part frontal region, red in colour.
The doctor opined that injuries were caused by blunt object , fresh in duration and simple in nature.
Medical examination of Maharaj Singh revealed below noted injuries on his person:
1. Swelling 2 cm x 1 cm on left fore arm back part in middle region.
2. Abrasion ½ cm x ½ cm on back part of left fore finger in upper one third, wound not scabbed.
3. Abrasion ½ cm x ½ cm on back part of left middle finger in middle part, wound not scabbed.
4. Lacerated wound 1 cm x ½ cm x ½ cm on back of head left side in lower one third. Blood present in wound.
5. Swelling 2 cm x 1 cm on back of left leg in upper one third.
The doctor opined that injuries were caused by blunt object , fresh in duration and simple in nature.
Injured Bhadai was admitted in S N Medical College Agra the same day i.e. on 27th of December, 1977 where he was operated on 30th of December, 1977 as he was unconscious.
SI Amar Singh Bhadauria to whom investigation of the case was entrusted recorded statements of the witnesses. He also inspected the site and prepared its site plan map ( Ext ka 4). On 29th of December, 1977 the case was altered under section 308 IPC vide GD entry no.30 at 5:35 p.m.
Injured Bhadai was operated again on 7th of January, 1978. Depressed fracture on right parietal region was detected. He died due to ante mortem injuries in the Hospital on 2nd of February, 1978 at 00:30 a.m.
Autopsy conducted on the dead body of Bhadai revealed below noted ante mortem injuries on the dead body:
1. ''L' shaped surgical wound 4" in length above right eyebrow. On opening the wound depth was found bone deep. On further examination both parietal bones were found fractured.
2. Surgical stitched wound ( tracheal)
3. Multiple scabbed abrasions on front of skull in an area 4" x 4" scabbed tissues fallen out.
4. White heeled scar on right arm, two in number each measuring 1 ½" x 1 ½" .
5. Cut open wound left lower arm septic.
On an internal examination skull was found fractured in piecemeal. In brain haematoma was present. Pus was present in brain tissues. Multiple bedsores below the pressure points.
The doctor opined that the death was caused due to septicemia as a result of ante mortem injuries.
After completing investigation the police submitted charge sheet against the accused under sections 304 and 323 IPC.
It may be mentioned here that Mauji Ram also lodged report of the said incident at police station Chhata at 3:45 p.m. the same day that some tiff had taken place between Maharaj Singh and his mother on one hand and his wife on the other that day at about 1:00 or 1:15 p.m.; that Maharaj Singh beat his wife Basanti; that then he asked Maharaj Singh as to why he beat Basanti which resulted in an altercation between them and that thereon Mahatraj Singh gave him lathi blows and Sukko abused him. He also mentioned in the report that his brother Ram Khilari had also received injuries ( Ext kha 3). The police recorded NCR under sections 323 and 504 IPC.
Mauji Ram got himself medically examined at PHC, Khandauli by Dr Nar Singh Bahadur at 5:45 p.m. the same evening. His medical examination revealed below noted injuries on his person:
1. Lacerated wound 1 cm x ½ cm x ½ cm on left side of head 5 cm above upper part of left ear. Blood present in the wound.
2. Lacerated wound 1 cm x ¾ cm x ½ cm on right side of head 4 cm above upper part of right ear. Blood present in wound.
Complained of pain in right leg back region & left forearm.
The doctor opined that the injuries were caused by blunt object, simple in nature and fresh in duration.
After framing of charge against accused Mauji Ram and Ram Khilari under sections 302 and 323 each read with section 34 IPC the prosecution examined Sukko ( PW1) and Maharaj Singh (PW 3) as eye witnesses of the occurrence. PW 2 Basanti, wife of Maharaj Singh deposed about the incident at sagai ceremony of Soran, son of Dhanpal. Testimony of rest of the witnesses more or less was of formal nature. PW 4 constable Vijendra Singh proved copy of NCR recorded at the instance of Sukko under sections 323, 504 and 506 IPC ( Ext ka 1) and copy of GD entry regarding alteration of crime under section 308 IPC ( Ext ka 2). PW 6 Dr M.L. Sharma who conducted autopsy on the dead body of Bhadai proved post mortem report ( Ext ka 7). PW 7 Dr Nar Singh Bahadur who medically examined all the three injured proved the injury reports ( Exts ka 8 and ka 10). He also proved the injury report of Mauji Ram ( Ext kha 2). PW 8 Dr C.B. Nigam, Surgeon S.N. Medical College, Agra who operated injured Bhadai stated the said fact. PW 5 SI Amar Singh Bhadauria who investigated the crime and after completing the investigation submitted charge sheet against the accused proved the police papers.
Both the accused pleaded not guilty stating that some quarrel took place between Bhadai and his son Maharaj Singh; that then Maharaj Singh himself gave lathi blows to his father Bhadai and that as they intervened Maharaj Singh also gave lathi blows to them.
On an appraisal of evidence and other material on record the learned trial judge believing the testimony of two eye witnesses found accused Ram Khilari and Mauji Ram guilty and recorded the finding of conviction against them sentencing each of them as stated above.
Feeling aggrieved by the impugned judgment and order the accused appellants preferred this appeal for redress.
Heard Sri H.C. Tewari and Sri Rajesh Pathik, learned counsels for the appellants and Sri Naveen Shukla, learned AGA for the State respondent.
Admittedly the incident of marpit took place between the parties at the time and place alleged by the prosecution. The only question for consideration is as to who were the aggressors and if the incident took place in the manner alleged by the prosecution.
PW 1 Sukko and PW 3 Maharaj Singh, both the injured appeared as eye witnesses of the occurrence. PW 1 Sukko, wife of the deceased and the first informant narrated all the facts of the occurrence from the beginning to the end deposing that shanty of Ram Khilari and that of Mauji Ram were situate adjacent to her fields; that the fateful noon she and her husband were planting onion saplings in their field that children of Mauji Ram reached there and started damaging onion saplings by uprooting the same; that then they asked Mauji Ram to keep his children away as they were damaging the onion saplings which resulted in an altercation with them; that thereon Mauji Ram and his brother Ram Khilari picked up bamboos lying there and Ram Khilari gave bamboo blow to Bhadai hitting him at his head; that in the meanwhile Maharaj Singh reached there and as she and her son Maharaj Singh tried to intervene they also gave them bamboo blows and that immediately Maharaj Singh picked up the danda which fell down from the hand of Bhadai in self-defence and gave danda blows to Mauji Ram. PW 3 Maharaj Singh corroborating her stated that Ram Khilari and Mauji Ram both picked up stripped bamboos lying there; that Ram Khilari gave a lathi blow to his father hitting him at his head and Mauji Ram also gave a lathi blow to him; that as he and his mother rushed for his rescue they also gave lathi blows to them and that he wielded lathi in self- defence causing injuries to Mauji Ram. Both were subjected to searching and gruelling cross-examination but nothing tangible could be elicited therefrom to shake the central core of the substratum of the prosecution version. Sworn testimony of the two injured witnesses stands corroborated by medical evidence. Report of the occurrence lodged at the police station promptly without losing any time further lent support to the sworn testimony of the injured eye witnesses. It has come in evidence that Bhadai when taken to Primary Health Centre Khandauli was unconscious.
The defence version as stated by the accused appellants in their statements recorded under section 313 Cr.P.C. that some quarrel took place between Bhadai and his son Maharaj Singh; that thereon Maharaj Singh attacked his father Bhadai thereby causing injuries to him and that as they rushed to the rescue of Bhadai he also gave lathi blows to them. But accused appellant Mauji Ram who lodged report of the occurrence at police station Chhata did not state the said fact therein. The said defence version is in conflict with the report of the occurrence lodged by accused appellant Mauji Ram at police station Chhata on 27.12.77 at 3:45 p.m. ( Ext kha 3).A perusal of the NCR recorded by the police goes to show that since Basanti complained that Batashas were not provided to her at the sagai ceremony of Soran son of Dhanpal, Maharaj Singh beat his wife Basanti and as he asked him as to why he beat Basanti he abused him and gave lathi blows to him and that his brother Ram Khilari also received injuries ( Ext kha 3). Both the versions of the alleged occurrence are entirely different and cannot be reconciled together.
In view of the medical evidence on record the conflicting and incongruent defence versions deserve outright rejection.
Besides it, defence version that accused appellant Ram Khilari also received injury in the said incident does not inspire confidence. PW3 Maharaj Singh deposed that receiving the injuries at his head his father Bhadai fell down; that immediately he picked up the small lathi which fell down from his father's hand in self- defence; that Ram Khilari and Mauji Ram gave bamboo blows to him and his mother Sukko and that he gave lathi blows to Mauji Ram and in the meanwhile Ram Khilari ran away. This statement of PW 3 Maharaj Singh appears to be correct. Because if Ram Khilari was also given lathi blows he would have received injuries, and had he received any injury he would have certainly got himself medically examined. But there is nothing on the record to show that he got himself medically examined.
For the above, it is established by cogent and convincing evidence that the accused appellants were the aggressors. Thus the feeble plea of assaulting in self-defence argued by the appellants' learned counsel falls to the ground. In fact, neither of the two injured eye witnesses was given any suggestion by the defence counsel in their cross-examination that any of the accused appellants gave lathi blows to any of the injured in self- defence. It has also been argued by the accused appellants' learned counsel that it is mentioned in the report recorded as NCR ( Ext ka 2) that on hearing the hue and cry one Mohan Singh and Mahavir rushed to the scene of occurrence and witnessed the incident of marpit; but no independent witness has been examined by the prosecution in its support. It is a matter of common knowledge and experience that residents of the same locality or village remain reluctant to appear as a witness when some quarrel or dispute occurs between members of a family. In the instant case both the accused appellants were real nephews of Bhadai, the deceased. Under the circumstances, the independent witnesses might not have relished the idea of appearing as a witness against any of them and might have preferred to be neutral. The said argument advanced by the appellants' learned counsel therefore has no merit and is repelled.
The learned trial judge has written an elaborate and well reasoned judgment and this court finds no good reason not to agree therewith. The appeal has got no life and is liable to be dismissed.
The appeal is dismissed, and the impugned judgment convicting accused appellant Ram Khilari under section 304 Part II, IPC and sentencing him to three years' rigorous imprisonment thereunder and accused Mauji Ram under section 323 IPC and section 325 read with section 34 IPC and sentencing him to six months' and two years' rigorous imprisonment respectively thereunder is hereby affirmed. Both the accused appellants are on bail. Their bail bonds are hereby cancelled. Chief Judicial Magistrate, Agra is directed to get accused appellants Mauji Ram and Ram Khilari 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 case to the court below immediately for necessary compliance under intimation to this Court within two months from today.
Dated: 30th of October, 2006
Criminal Appeal No.2053 of 1981
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