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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Raj Beer Singh, J.
Pritam And Others - Appellant
Vs.
State of U.P. - Respondent
CRIMINAL APPEAL No. -159 of 1988
Decided On : 03-03-2021
Indian Penal Code, 1860 - Section 302, 304 (Part-I)/34, 325/34 and 304-II – Criminal Trial - Murder/Culpable homicide not amounting to murder - Testimony of eye-witnesses and injured witness - Dying declaration – Appeal against conviction - Dispute between first informant (deceased) and one Bhagru over issue of land of Gram Samaj and temple and some persons of party of Bhagru Pradhan were pressing first informant to withdraw case lodged by him - Accused persons came to the informant and asked to withdraw case but the informant and his son Ram refused for the same and thereafter, said accused persons started assaulting the informant and his son with lathis - Whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, officer concerned has ensured that declarant was in fact, in a fit condition to make statement in question, then if both these aforementioned conditions are satisfactorily met, declaration should be relied upon - Held, it does not appear that all the accused persons have assaulted the deceased with an intention of causing death of deceased or causing such bodily injuries as is likely to cause death. However, as the deceased has sustained three injuries at his head, which were inflicted with lathis, it appears that the accused persons can safely be attributed with knowledge that causing of injuries to deceased was likely to cause his death. There is no such evidence that accused-appellants have intended to cause death of deceased or to cause such bodily injury as likely to cause death - common intention of the accused was to cause grievous injury and thus conviction of the accused was altered from Section 302 read with Section 34 I.P.C. to Section 325/34 I.P.C.. It may be observed that said case materially differs on several basic aspects from this case and thus it would not apply in the instant case. However, examining entire evidence carefully the accused persons can safely be attributed with knowledge that injury caused to deceased was likely to cause his death and thus, the mischief of accused-appellant would fall within ambit of section 304 Part II/ 34 IPC - Conviction of accused-appellants \under Section 304 Part I/34 I.P.C. is altered in to under Section 304 Part II/34 I.P.C. - Appeal is partly allowed.
JUDGMENT :
1. The present appeal has been filed against the Judgment and order dated 20.01.1988 /21.01.1988 passed by IIIrd Additional Sessions Judge, Saharanpur in S.T. No. 340 of 1985 State Vs. Pritam and three others, under Section 304 (Part-I)/34, 325/34 I.P.C. Police Station Nakud, District Saharanpur, whereby accused-appellants Pritam, Dila, Sharma and Shuggan have been convicted under Section 304 (Part I)/34 and 325/34 I.P.C. and sentenced to undergo for rigorous imprisonment of seven years under Section 304 (I)/34 I.P.C. and rigorous imprisonment of two years under Section 325/34 I.P.C. Both the sentences were to run concurrently.
2. According to the prosecution version, there was some dispute between the first informant Asha Ram (deceased) and one Bhagru Pradhan over the issue of land of Gram Samaj and temple and some persons of the party of Bhagru Pradhan were pressing the first informant Asha Ram to withdraw the case lodged by him. On 08.12.1984 at about 05.00 P.M., the accused Pritam, Sharma, Dila and Shuggan came to the informant and asked to withdraw the case but the informant Asha Ram and his son Sadhu Ram refused for the same and thereafter, the said accused persons started assaulting the informant and his son Sadhuram with lathis. Hearing noise one Jeeram, Punna and Budh Singh have reached there and saved the informant and his son.
3. The first informant Asha Ram reported the matter to police by submitting a Tehrir Ex. Ka-4 and on the basis thereof, a Non-Cognizable-Report was registered on 08.12.1984 at 9:10 P.M. vide N.C.R. Ex. Ka-1 No. 132 of 1984 under Section 323 I.P.C. In this regard entry was made in G.D. vide Ex. Ka-2.
4. As per M.L.C. Ex. Ka-5, the injured Asha Ram sustained the following injuries:-
2. Lacerated wound 3 c.m. X .5 c.m. X scalp deep on Lt. side head 13 c.m. above the Lt. ear with traumatic swelling 4 c.m. X 2 c.m. around the wound.
3. Lacerated wound 2 c.m. X .5 c.m. X scalp deep on Lt. side head 6.5 c.m. above Lt. eye brow with traumatic swelling 5 c.m. X 4 c.m. around the wound.
4. Lacerated wound 1 c.m. X .2 X .2 c.m. on Lt. side forehead 2 c.m. above and lateral to Lt. eye brow.
5. Abrasion .5 X .5 c.m. on back of lt. Index finger.
6. Abrasion .5 c.m. X .5 c.m. on back of Lt. middle finger.
5. As per M.L.C. Ex. Ka-6, the injured Sadhu Ram sustained the following injuries:-
2. Lacerated wound 1.5 c.m. X .2 c.m. X scalp on Lt. side head 8 c.m. above Lt. ear.
3. Lacerated wound 1.5 c.m. X .2 c.m. X scalp deep on Lt. side head extending to forehead 6 c.m. above & Lt. to Bridge to nose.
4. Reddish Traumatic swelling 9 c.m. X 7 c.m. on Rt. fore arm lower part extending to Rt. wrist in posterior & outer side. Kept U.O. Adv. X-Ray.
5. Reddish altered contused swelling 18 c.m. X 12 c.m. on Lt. leg upper 1/2 in front & outer side. Kept U.O. Adv. X-Ray.
6. Reddish abraded contusion 3 c.m. X 1 c.m. on Lt. shoulder in back.
7. Reddish contusion 2 c.m. X 1 c.m. on Lt. supra scapular region.
8. Reddish abraded contusion 4 c.m. X 1 c.m. on Lt. scapular region.
9. Reddish abraded contusion 7 c.m. X 2 c.m. on Lt. infra scapular region."
As per X-Ray report, Ex. Ka-16, fracture was found in his right forearm radius.
6. On 12.12.1984 on the basis of the medical examination report of injured persons, the case was converted into under Sections 323/325 I.P.C as injured Sadhu Ram has sustained fracture and investigation was started vide G.D. entry Ex. Ka-3. The blood stained clothes of injured Sadhu Ram were taken into possession vide Ex. Ka-2 and Ka-13.
7. During the course of treatment, injured/first informant Asha Ram succumbed to injuries and thus Section 304 I.P.C. was added. The inquest proceedings of deceased were conducted on 03.12.1984 vide inquest report Ex. Ka-7
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