Conviction under Section 304 IPC upheld based on credible eyewitness testimony; appellant acquitted under Section 323 IPC due to lack of medical evidence.

JUDGMENT :

Ramesh Chand Malviya, J.

Heard Mr. Deepak Kumar learned Amicus Curiae for the appellant and Ms. Anita Kumari Singh, learned APP for the State.

2. The present appeal has been filed under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the judgment of conviction dated 23.08.2006 and order of sentence dated 25.08.2006 passed in Sessions Trial Case No. 695 of 1994/235 of 2004 arising out of Durgawati P.S. Case No. 34 of 1994 dated 10.05.1994 passed by the learned Additional Sessions Judge (FTC)-II, Kaimur, Bhabhua, whereby and whereunder the appellant has been convicted for the offence punishable under Sections 304/34 part II and Sections 323 /34 of Indian Penal Code (hereinafter referred as ‘IPC’) and had been sentenced to undergo rigorous imprisonment for seven years under Sections 304/34 part II of the IPC and further one year imprisonment for the offence punishable under Sections 323/34 of the IPC and both the sentences will run concurrently.

3. As per the prosecution story, the informant, namely Radhe Shyam Singh (PW-5) recorded fardbeyan on 10.05.1994 at 3:00 pm before police that on 09.05.1994 in evening at 7:00 pm there was an exchange of hot words between the appellant Ramayan Yadav and deceased Chirkut Yadav. In the meanwhile the appellant and other accused armed with lathi came at there assaulted Chirkut Yadav. Later he was being treated in his own house itself but when the deceased felt several pain he was brought to the hospital for the treatment. Later on, the deceased Chirkut Yadav died in Varanasi.

4. Further on the basis of fardbeyan of informant Durgawati P.S. Case no. 34 of 1994 dated 10.05.1994 under Sections 341, 323/34 of the IPC has been registered and after investigation charge-sheet against this appellant has been submitted by the Investigating Officer under Section 302 of the IPC and accordingly cognizance against this appellant has been taken and case was committed to the Court of Sessions and charge was framed which was explained to the accused who denied of prosecution taking plea of false implication in the case and declared himself innocent.

5. On behalf of prosecution altogether 7 witnesses were examined to substantiate the charges levelled against the appellant, who are namely, PW-1 Kailash Yadav, PW-2 Bhola Yadav, PW-3 Kaushalya Devi (wife of deceased), PW-4 Meera Devi (daughter-in-law), PW-5 Radheshyam Singh, PW-6 Dr. Sunil Kumar Tripathi and PW-7 Ambika Tiwari (formal witness of injury report).

6. PW-1 in his examination-in-chief stated that incident is of about 5-6 years ago at 7 pm when I was returning from Chapra saw that quarrel was going on among Ramanand Yadav, Jitendra, Chirkut, Radheshyam, Mira, Radheshyam wife and Radheshyam’s mother. Both sides were firing bullets and in that occurrence Chirkut Yadav’s head got injured and he got many injuries on his waist and arms. In the morning Chirkut was brought to police station and from there he was taken to the hospital. Thereafter, he was referred to Varanasi and after two to three days PW-1 went there and found that Chirkut Yadav has died.

6.i. In his cross-examination, PW-1 stated that when he went to place of occurrence he saw that blood was oozing out from the head of Chirkut Yadav and Chirkut Yadav was lying down there. Chirkut Yadav had fallen on bricks and there blood stain on his dhoti and ganji. He had seen that blood was dripping out from the head of Chirkut Yadav. In para 10 of his deposition, he stated that when he reached the hospital, Radhe Shyam, Raju, Bhola said that Chirkut Yadav had died. In para 13 of his deposition, he stated he was made accused in kidnapping case of Ajit Yadav.

7. PW-2 in his examination-in-chief stated that he is the brother of the deceased and accused/appellant had beaten Chirkut with lathi on the head and his brother got severe injuries on other body parts, while undergoing treatment Chirkut Yadav died in Varanasi in para-8, he stated that when he came