Hon'ble Umesh Chandra Tripathi,J.

By way of instant criminal appeal, the appellant has challenged the legality and sustainability of the judgment and order dated 20.08.2002 passed by Sessions Judge, Ballia in S.T. No. 432 of 1997 (State v. Kailash Mishra & others), whereby the appellant - Santosh Mishra was convicted under Section 304 Part II of the Indian Penal Code (hereinafter referred to as 'IPC') and sentenced to rigorous imprisonment for five years and fine of Rs. 10,000/- and in case of default in payment of fine, one year's additional rigorous imprisonment has to be undergone.

2. By the impugned judgment and order, the appellant was acquitted of the offences punishable under Section 323/34 IPC.

3. Facts of the case, in brief, as discernible from perusal of record, are that on 20.07.1996 at about 01.00 P.M., while Tej Bahadur Mishra, nephew of informant Sarvdev Mishra was levelling the path (chak road) which led to his tube well, accused-appellant Santosh Mishra having a 'fawda' (spade) and co-accused Kailash Mishra having a 'lathi' (wooden stick) came on the spot and told Tej Bahadur Mishra not to level the road. On this, Tej Bahadur Mishra resisted and said that the said road is being used by him frequently and they have no right to stop him from levelling it. This led to accused-appellant Santosh Mishra and co-accused Kailash Mishra getting infuriated. Santosh Mishra assaulted Tej Bahadur Mishra on his head with his 'fawda' and Kailash Mishra assaulted on the right side of his chest, due to which he fell on the ground and became unconscious. When his mother Smt. Vimlawati Devi came on the spot to rescue him, co-accused Kailash Mishra also inflicted wounds on her. On alarm being raised, Kuber, Ramprasad Tiwari (relative of informant) of village Maniyar, Tiwari ka Pura, Police Station - Rasda and others reached the spot and saw the occurrence. Informant Sardev Mishra and other people took injured Tej Bahadur Mishra to Government Hospital, Rasda for treatment. It was request that report be lodged and action be taken. The written report is on record and the same is marked as Ex.Ka.1.

4. Contents of written report were taken down in the chik FIR (Ex.Ka.6) at Case Crime No. 238 of 1996 under Section 308/323 IPC at Police Station - Rasda, District - Ballia on 20.07.1996 at 04.05 P.M. The FIR is on record and the same is marked as Ex.Ka.6. On the basis of entry so made in the FIR, relevant entry was made in the General Diary and a case was registered against the accused at the aforesaid case crime number under the aforesaid section. The carbon copy of G.D. is on record and the same is marked as Ex.Ka.7.

5. Injured Tej Bahadur Mishra was medically examined by Dr. Satya Prakash at Community Health Centre, P.S. - Rasda, District - Ballia on 20.07.1996 at about 03.30 P.M., wherein the following injuries were found on his person :

1. A lacerated wound 7.0 cm. x 1.0 cm. x bone deep present over middle of scalp. lacerated margins. bleeding present.

Advised - x-ray skull AP and lateral view.

2. A traumatic swelling 5.0 cm. x 2.5 cm. present over right side of chest situated 11.0 cm. below the right nipple. tenderness present.

Advised - x-ray chest AP view.

6. General condition : very poor, pupil B/c semi dilated, not responding to painful stimuli.

7. Opinion : Injury no. 1 & 2 was kept under observation. Both injuries are caused by some hard and blunt object. Duration fresh.

8. The injury report is on record and the same is marked as Ex.Ka.3.

9. Thereafter, the injured was referred to District Hospital for x-ray and further management.

10. In the meanwhile, on 20.07.1996 at 04.15 P.M., a memo from Community Health Center, Rasda, District - Ballia was received with the information that injured Tej Bahadur Mishra has become unconscious due to injuries caused and that his condition is very severe. He be sent to some other hospital immediately for further treatment. The letter is on record and the same is marked as Ex.Ka.4.

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