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IN THE HIGH COURT OF ALLAHABAD
SUNITA AGARWAL, VIKAS KUNVAR SRIVASTAV, JJ.
Kali Prasad – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 1007 of 1996
Decided on : 10-05-2022
Penal Code, 1860 - Section 302 – Offence of Murder - “Death in Coma as a result of Ante-mortem injuries” - Scope of the offence under Section 304 Part II, i.e. of causing injuries with the knowledge that it was likely to cause death but without any intention to cause death - It is a case where there may be an absence of the intention to cause death but it is not where there is also an absence of intention to cause such bodily injury as is likely to cause death which in the ordinary course of things is likely to cause death. Para 32, 35
Finding of the Court :
Weapon used and the place and nature of the injuries, though it is found that the appellant committed the offence without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel but the same cannot be said to have been done by mistake or accident. The act of the appellant was clearly with the intent to cause bodily injury which could result in the death of the deceased.
Result: Appeal allowed in part
JUDGMENT :
Sunita Agarwal, J.
1. Heard Ms. Mary Punch (Sheeba Jose) and Mohd. Kalim learned counsels for the appellant and Sri Patanjali Mishra learned A.G.A. for the State-respondent.
2. This appeal is directed against the judgment and order dated 18.4.1996 passed by the VIIth Additional Sessions Judge, Allahabad whereby appellant Kali Prasad has been convicted of the offence under Section 302 IPC and sentenced for life imprisonment.
3. The first information report regarding the incident occurred on 29.6.1994 at about 11:30 AM, at the Phaphamau Railway Crossing, was lodged by Sri Ram Prakash Singh (PW-5) with the thumb impressions of the eye-witnesses PW-2 Ashok Kumar and PW-3 Ramesh Kumar Sharma. As per the eye-witness account as narrated in the written report, on the fateful day, i.e. on 29.6.1994, deceased Ram Aasre Bhartiya was driving a Truck No. UP70 9822 when he reached at the Phaphamau Railway Crossing at about 11:30 AM, the crossing gate was closed to pass a train. As soon as the gate was opened when the train crossed over, deceased Ram Aasre Bhartiya moved his vehicle (truck) to cross the railway track. At the same time, one Truck No. UP65 B8551 also moved forward from the opposite direction (Eastern side) to cross the railway track. By chance, both the trucks came side by side and got stuck in the middle of the railway track. The drivers of the trucks started arguing as to who would take his truck back. Getting angry, out of rage, the driver of Truck No. UP65 B8551 attacked in the neck of deceased Ram Aasre by knife. The Khalasis of the truck namely Ashok and Ramesh got down while making hue and cry and with the help of the public (crowd) present at the spot, they had succeeded in catching hold of the assailant driver. In the meantime, the Khalasi of the said truck had succeeded in running away from the spot of the incident. The truck driver Ram Aasre had died on the spot. Looking to the crowd, the Railway Police reached at the spot and the assailant driver namely the appellant herein was caught. The assailant driver disclosed his name as Kali Prasad son of Lochan Kumhar, resident of Mohalla Golachhani, Police Station Sasaram, District Rohtas (Bihar).
4. The Check FIR was lodged at about 13:30 PM on the same day, i.e. 29.6.1994, at the Chauki G.R.P. Prayag, Sadar, District Allahabad.
As per the version in the first information report, the offence of murder was committed during the course of altercation between two truck drivers on a trivial issue which took an ugly turn on the spot.
5. The recovery memo of the blood stained and plain earth made from near the railway track had been proved as 'Exhibit Ka-16'. The pieces of mirror and glass collected and seized from the Truck No. UP70 9822 were entered in the recovery memo proved as 'Exhibit Ka-17'. The memo of search 'Exhibit Ka-18' indicates that no incriminating material such as knife was recovered from the truck being driven by the accused appellant.
The Ante-mortem injuries indicated in the postmortem report are:-
(2) Contusion in an area of 2.0” diameter on left temporal region.
(3) Incised wound 5½” x 1½” x muscle deep front of neck below the lower jaw.
(4) Abrasions over both chest & Abdomen except lower 1/3 on the front side.”
On internal examination, left temporal bone was found fractured, Subdural & Arachnoid Haemorrhage was present in the brain membranes, Brain was congested. The cause of death as indicated in the postmortem report is “Death in Coma as a result of Ante-mortem injuries”.
6. The proximate time of death as opined by the doctor (PW-7) was about 1-1/2 day. The inquest was made on 29.6.1994 and commenced at about 12:35 PM. In the column of information about the crime in the inquest report, it is noted that the deceased was killed during an altercation out of rage. After completion of the inquest, at about 16:30 Hours, the body was sent for postmortem to ascertain the exact cause of death. As per the d
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