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Mauji Ram And another v. State - CRIMINAL APPEAL No. 2053 of 1981 [2006] RD-AH 18335 (30 October 2006)


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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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