1

AFR

RESERVED

Case :- CRIMINAL APPEAL No. - 549 of 1983

Appellant :- Kanta

Respondent :- State of U.P.

Counsel for Appellant :- H.R. Misra,Amicus Curiae,Pankaj

Kumar Asthana,Vrindavan Mishra

Counsel for Respondent :- A.G.A.

Hon'ble Vikram D. Chauhan,J.

1.

Heard Sri Pankaj Kumar Asthana, learned Amicus Curiae

for the appellant, learned A.G.A. for the State and perused the

record.

2.

The present appeal is filed challenging the judgement

dated 18^th February, 1983 passed by the Special and Additional

Sessions Judge, Ghazipur in Sessions Trial No. 143 of 1982

(State Vs. Kanta and others), whereby the Appellant – Kanta

has been convicted under Section 304 of the IPC and has been

sentenced for three years rigorous imprisonment under Section

304 (II) of the IPC.

3.

As per the prosecution case, on 27^th October, 1981, at

about 11:00 a.m., complainant – Chandrajeet lodged a First

Information Report at Police Station Qasimabad, District

Ghazipur being Case Crime No. 161 under Section 304 of the

IPC against Kanta Yadav (Appellant), Rama Shankar Yadav and

Sudarshan. The prosecution case as per the First Information

Report is to the effect that the complainant was resident of

2

Village Bhatpura under Police Station Qasimabad. On 26^th

October, 1981, at about 12 noon, there was heated argument

between the complainant and his nephew Sudarshan with

regard to selling of agricultural land jointly belonging to the

complainant and his nephew Sudarshan. The nephew of the

complainant was selling the agricultural land and the

complainant was asking him not to sell the land and there was

heated argument between them and even abusive language was

used. In the meantime, the Appellant – Kanta Yadav and Rama

Shankar Yadav who are sympathisers of Sudarshan came and

started abusing the complainant in favour of Sudarshan and

when the complainant asked them not to use abusive language

then the mother of Laxmi Shankar came to defuse the situation.

Sudarshan caught the mother of Laxmi Shankar and Rama

Shankar caught the complainant. Thereafter, Appellant – Kanta

Yadav took ‘Faruhi’ in his hand to assault the complainant,

however, Laxmi Shankar came in between to save the

complainant and as such ‘Faruhi’ hit Lakshmi Shankar on his

head. Laxmi Shankar on being hit on the head fell down and

was taken to Dr. Shreekant who gave him first aid and

thereafter Laxmi Shankar was talking normally and as such the

complainant thought that he was out of danger and did not take

him to hospital. At about 11:00 p.m. Laxmi Shankar died on

account of injury. As the death occurred in the late night as such

the police could not be informed and the First Information

Report was lodged on 27^th October, 1981.

4.

The First Information Report was scribed by Ram

Chandra, son of Sri Kishun and the same was lodged as Case

Crime No. 161 under section 304 IPC. The Panchayatnama of

3

the deceased (Laxmi Shankar) was held on 27^th October, 1981

and according to the Panchayatnama the death of the deceased

has occurred on account of head injuries.

5.

The post-mortem examination of the deceased was held

on 28^th October, 1981 at 1:45 p.m. The post-mortem

examination was conducted by Dr. K.K. Srivastava. As per the

post-mortem report, the deceased died due to head injury

caused by anti-mortem injury no 1. The deceased sustained the

following external injuries as per the post-mortem report :-

“1. Horizontal incised wound 5cm x 1cm x brain deep on

the left side of skull, 8 cm above the root of left ear.

Blood clot and a little brain substance present. The

wounds painted yellow and is unstitiched.”

6.

After investigation, the Investigating Officer has

submitted a chargesheet against the accused person under

Section 304 IPC. The trial court on 3^rd December, 1982 framed

charge against the appellant under Section 304 IPC. It is to be

noted that the charge against co-accused Ramashankar and

Sudarshan was al