Back
2018 Supreme(All) 144
ALLAHABAD HIGH COURT
BEFORE : A.P. SAHI AND RAJEEV MISRA, JJ.
HARI DAYAL AND ANOTHER ....Appellants
Versus
STATE OF U.P. ....Respondent
(Criminal Appeal No. 3151 of 2011, decided on 6th February, 2018)
Pramod Kumar Sharma, Anubhav Chandra, Hitesh Pachori, Noor Muhammad, Rai Sahab Yadav, Rajendra Prasad Tiwari and Yogesh Srivastava for the Appellants; A.G.A. for the Respondent.
Headnote:(Indian) Penal Code, 1860 – Section 302/34, 304, Part III and Part I – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 3(2) – Criminal negligence – Quantum of sentence – Court below convicted accused-appellants of charge under Section 302/34 IPC, but acquitted them of charge under Section 3 (2) (5) of S.C./S.T. Act – Challenge against – No premeditated mind on part of accused-appellants to commit crime – F.I.R. cannot be treated to be ante-timed merely on account of panchayatnama having been prepared earlier and F.I.R. having been lodged later on – Credibility of prosecution witnesses their presence at scene of occurrence and having witnessed crime, clearly establishes guilt of appellants – No previous enmity between deceased and accused – Witnesses have narrated a sudden fight upon a round of drinks having been taken together during which hot discussions took place between accused and deceased – Appellant No. 1 who had utilized a stick cannot be said to have been inflicted with any intention to cause a bodily injury that is likely to cause death – Therefore his sentence reduced to 5 years rigorous imprisonment under Part II of Section 304 – Appellant No. 2 having been assigned to role of utilizing knife is entitled to get sentence altered into Part-I of the Section 304 – Therefore awarded 10 years rigorous imprisonment – Sentence modified accordingly. [Paras 17 to 37]
Result; Appeal Partly Allowed.
Hon’ble Rajeev Misra, J.—This Criminal Appeal is born out of the judgement and order dated 10.5.2011 passed by the Special Judge, S.C.S.T. Act, Jhansi in Special Trial No. 70 of 2011 (State of U.P. v. Heera Lal and Hari Dayal), arising out of Case Crime No. 200 of 2001, under Sections 302 I.P.C. and Sections 3 (2) (5) S.C.S.T. Act, P.S. Mauranipur, District Jhansi, convicting and sentencing the appellants for imprisonment for life and imposing a fine of Rs. 10,000/- upon each of the accused-appellants under Section 302 read with Section 34 I.P.C. In case of default, they were further directed to undergo two years rigorous imprisonment.
2. An incident is alleged to have occurred on 15.6.2001 at 5.30 p.m. at Chhatarpur Road- Bye pass Malkethi Parao (Ground) within Police Station Mauranipur, District Jhansi, when the accused-appellants Hari Dayal and Hira Lal duped Vijay Kumar for a drink. They took him to a place called Malkethi Parao (Ground) Chhatarpur Road- Bypass, where all the three are alleged to have taken liquor together. All of a sudden, while they were drinking, accused Hari Dayal and Hira Lal suddenly assaulted Vijay Kumar with lathi/danda (stick) and chaku (knife). Pankaj, son of Ram Milan and Kailash, son of Jati upon witnessing the occurrence challenged the accused. Thereupon, the accused persons leaving the injured Vijay Kumar ran away. The injured Vijay Kumar was taken to the Community Health Centre, Mauranipur, by Santosh, where he is alleged to have been administered first aid and two of the wounds on his body are also alleged to have been stitched by the doctor, who attended him at the aforesaid Community Health Centre. But looking at the serious condition of the injured Vijay Kumar, he was referred to the Medical College, Jhansi for effective treatment from where he was further referred to K.G.M.C., Lucknow on 16.6.2001. Accordingly, the injured Vijay Kumar was taken to Lucknow in a motor car. As the car reached at a place called Karta Modh, the injured Vijay Kumar breathed his last. Consequently, the party taking the injured to Lucknow returned and deposited the dead body of Vijay Kumar in the mortuary of the Medical College, Jhansi on 15.6.2001.
3. The Medical College, Jhansi, where the body of the deceased Vijay Kumar was deposited came within the area of Police Post (Chauki) University (Vishwavidyalaya) Police Station Nawabad. As such the police of the aforesaid Police Station got the panchayatnama/inquest of the deceased done on 16.6.2001. According to the panchayatnama/inquest report, the panchayatnama/inquest commenced at 16.45 p.m. and concluded at 18.00 p.m. As per the panch witnesses, the death of the deceased Vijay Kumar was homicidal and was on account of the ante-mortem knife injury.
4. Subsequent to the completion of the inquest/panchayatnama of the body of the deceased Vijay Kumar, an F.I.R. dated 16.6.2001 was lodged at 18.40 p.m. by the first informant Suresh Chandra Prakash with the police of Police Station Mauranipur, District Jhansi, resulting in Case Crime No. 200 of 2001, under Section 302 I.P.C. and Sections 3 (2) (5) S.C.S.T. Act, P.S. Mauranipur, District Jhansi.
5. The prosecution story as unfolded in the F.I.R. is substantially the same as noted above.
6. After the lodging of the above mentioned F.I.R. dated 16.6.2001, the police of Police Station Mauranipur, District Jhansi came into action. The post-mortem upon the body of the deceased Vijay Kumar was conducted on 17.6.2001. As per the post-mortem report (Ext. Ka-2), the same was conducted by Dr. U.K. Jain. In the opinion of the doctor, the cause of death of Vijay Kumar was haemorrhage and shock due to ante-mortem injuries. The following injuries were found upon the body of the deceased :
(1) A stitched wound having 5 stitches 4 cm. long on left side of forehead 3 cm. above the eyebrow.
(2) A 5 cm. long stitched woun
