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2021 Supreme(All) 30
IN THE HIGH COURT OF ALLAHABAD
RAMESH SINHA, SAMIT GOPAL, JJ.
Ram Das – Appellant
Versus
State of U.P. – Respondents
Jail Appeal No.352 of 2018
Decided on : 05-01-2021
Advocate Appeared:
For the Appellant : From Jail, Ajay Kumar Singh, Dileep Singh Yadav
Headnote:
Indian Penal Code, 1860 - Section 304 –version as stated in the said report is that his brother was coming back home on a cycle from cold storage Thithiya and behind him Ram Ashrey son of Bechey Lal was also coming on a cycle and when they reached Bhadausa Road on the drain, Ram Das son of Sundar Lal met him and tried to sit on his cycle, to which, his brother refused and then Ram Das started abusing him. On being tried to stop, he assaulted his brother with kicks and shoes, as a result of which, his brother received injuries on his nose and face and started shouting. Co-villager Naeemuddin saw the incident and saved him
Finding of the Court:
Evidence of the only eye witness being Faizuddin PW-4 does not inspire confidence. In so far as the fact that the deceased had given an oral dying declaration to Shamshuddin PW-3 whereby he had described the entire incident and detailed about it to him also does not appear to be true and trustworthy -Provision of Section 437-A of The Code of Criminal Procedure, 1973 the accused-appellant Ram Das is directed to furnish a personal bond in terms of Form No. 45 prescribed in The Code of Criminal Procedure, 1973 of a sum of Rs. 25,000/-with two reliable sureties in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Apex Court.
Result: Appeal is allowed
JUDGMENT :
(Per Samit Gopal, J. for the Bench) [Delivered by Samit Gopal, J. for the Bench under Chapter VII Rule 1 (2) of the Allahabad High Court Rules, 1952]
1. The present appeal has been preferred from jail by the appellant Ram Das against the judgment and order dated 29.03.2016 passed by the Additional Sessions Judge, Court No.1, Kannauj, in Sessions Trial No. 428 of 2008 (State of U.P. Vs. Ram Ashrey) which was connected with Sessions Trial No. 445 of 2007 (State of U.P. Vs. Ram Das) whereby the appellant has been convicted and sentenced under Section 304 of the Indian Penal Code, 1860 to Life imprisonment and fine of Rs. 25,000/-. In default of payment of fine, he is directed to undergo two years imprisonment.
2. Initially, in the present matter, a non-cognizable report was lodged by Shamshuddin which was registered as N.C.R No. 122 of 2005 at 22:45 hrs on 07.11.2005 at Police Station Thithiya, District Kannauj. The version as stated in the said report is that his brother was coming back home on a cycle from cold storage Thithiya and behind him Ram Ashrey son of Bechey Lal was also coming on a cycle and when they reached Bhadausa Road on the drain, Ram Das son of Sundar Lal met him and tried to sit on his cycle, to which, his brother refused and then Ram Das started abusing him. On being tried to stop, he assaulted his brother with kicks and shoes, as a result of which, his brother received injuries on his nose and face and started shouting. Co-villager Naeemuddin saw the incident and saved him. The incident is of 07:00 pm. It is further stated that the treatment of his brother is being done in Qasba Thithiya. He states that a report be registered and action be being taken. The name of his brother is Shahjuddin. The said application is marked as Exb: Ka-2 to the records.
3. Shahjuddin was got medically examined on 08.11.2005 at 10:00 am at PHC, Thithiya by Doctor S.B. Dwivedi (PW-2) wherein he was brought by the informant Shamshuddin. The doctor found one lacerated wound on his person which is as follows:-
“1. Lacerated wound 4.6 cm x 0.5 cm x bone deep on right side nose just away right eye brow. Irregular margin. Blood clot present. Unconscious. Heavy blood loss and swelling on forehead and nose, vomiting, Adv. X-ray and expert opinion.”
The injury was kept under observation, X-ray was advised and expert opinion was also advised. The same was opined to have been caused by hard and blunt object and the duration was about half day old, the said medical examination report is marked as Exb: Ka-1 to the records.
4. Subsequently, Shahjuddin died on 09.11.2005 at 09:45 pm while being under treatment in L.L.R Hospital, Kanpur Nagar. The inquest was conducted on his body by Sub-Inspector Shyam Lal Das (PW-10) on 10.11.2005 between 11:40 am and 12:40 pm at L.L.R. Hospital Kanpur Nagar, the same is marked as Exb: Ka-4 to the records.
5. The postmortem examination of Shahjuddin was conducted on 10.11.2005 at 02:20 pm by Doctor Kamal Kumar (PW-9) and the doctor found the following injuries:
“1. Contused swelling 6.0 cm x 5 cm on left temporo-parietal area just above left ear.
2. Abraded contusion 5 cm x 4.0 cm on left side of face.
3. Stitched wound 3 cm long. Four stitches present on right eye lid.
4. Stitched wound 2 cm long. Two stitches present on nose.”
The cause of death opined was coma as a result of head injury. The postmortem report is marked as Exb: Ka-6 to the records.
6. The investigation concluded and a charge sheet no. 9 of 2006 dated 10.02.2006 was filed against Ram Ashrey under Section 304 of the Indian Penal Code, 1860, the same is marked as Exb: Ka-4 to the records.
7. A charge sheet no. 9-A of 2006 dated 22.04.2006 was filed against Ram Das under Section 304 of the Indian Penal Code, 1860 as an absconder, the same is marked as Exb: Ka-5 to the records.
8. The trial court framed charge under Section 304 of the Indian Penal Code, 1860 vide order dated 02.01.2009 against Ram Ashrey and under the same section vide order dated 04
