Kailashi And Others vs State Of U.P.
2021 Latest Caselaw 11053 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 76
 

 
Case :- CRIMINAL APPEAL No. - 183 of 1986
 

 
Appellant :- Kailashi And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Pt. Mohan Chand,Satya Prakash Tiwari
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ajai Tyagi,J.

1. This appeal has been preferred against the judgment and order dated 6.1.1986, passed by 3rd Additional Sessions Judge, Agra, in Sessions Trial No.53 of 1985 arising out of Case Crime No.66 of 1984 under Section 304 IPC, Police Station Etmad-ud-daula, District-Agra, whereby the appellants, namely, Kailashi and Ramesh were convicted and sentenced under Section 304 (2) IPC read with Section 34 IPC for three years rigorous imprisonment.

2. The brief facts for disposal of this appeal are that informant-Radhey Shyam lodged a report at Police Station Etmad-ul-daula, Agra on 22.2.1984 stating that at about 4:00 p.m., he was going from his house to his field at Ram Nagar, when he was passing through the street near his house, one Kailashi and Ramesh R/o Ram Nagar were coming from the side of their shop. When they reached near the informant, Kailashi struck his shoulder to him. At this, the informant said that they should walk carefully and Kailashi and Ramesh started abusing and beating the informant. On hearing the noise and shouting of the informant, his father Ram Dayal reached the spot and tried to intervene. At this, Kailashi and Ramesh left the informant and dashed Ram Dayal-father of informant to the ground and started beating him with fists, kicks and bricks. Kailashi told Ramesh that today they will settle the score with him. Informant's mother-Smt.Premwati, grand mother-Smt.Govindi, sisters-Usha and Mithalesh and the neighbours-Soonsa Ram and Rajendra arrived at the place of occurrence. They saw the occurrence and saved Ram Dayal from Kailashi and Ramesh. When they were going to the doctor, Radhey Shyam succumbed to the injuries, which he had sustained in his abdomen and chest. While keeping the dead-body at house, the informant reached the police station and lodged the report. On the basis of written-report, Case Crime No.66 of 1984 under Section 304 IPC was registered. After investigation, Investigating Officer submitted charge-sheet against the appellants under Section 304 IPC. Learned trial court framed charge against both the appellants under Section 304 IPC read with Section 34 IPC and after trial, convicted and sentenced both the appellants for the charges levelled against them for three years rigorous imprisonment. Aggrieved with the judgment and order, this appeal has been preferred by the appellants.

3. Heard Shri Satya Prakash Tiwari, learned counsel for the appellants, Shri S.S. Sachan, learned AGA appearing on behalf of State and perused the record.

4. Learned counsel for the appellants has submitted that prosecution case is that on the day of occurrence, appellants started beating informant-Radhey Shyam on very little cause, i.e., striking the shoulder with the informant. When informant's father Ram Dayal came to his rescue, appellants started beating Ram Dayal with fists, kicks and bricks. Ram Dayal sustained injuries in his abdomen and chest due to which he died.

5. Shri Tiwari, learned counsel for the appellants argued that postmortem report of deceased-Ram Dayal shows that there was no external injuries on the body of Ram Dayal. In postmortem report, there was no ante-mortem external injury. If, there was use of bricks, external injury was must. There was no external injury on the body of Ram Dayal, hence prosecution story falsifies the incident that brick was used in beating Ram Dayal. It creates heavy doubt on the prosecution story.

6. Learned counsel for the appellants argued that three so called eye-witness were produced to prove this case. Mithalesh (PW3) is the niece of deceased, Premwati (PW4) is wife of the deceased and Radhey Shyam-informant (PW5) is the son of the deceased. Hence, all the three witnesses are related to the deceased and they are partisan witnesses. Learned counsel submitted that as per prosecution story, Soonsa Ram and Rajendra, who were neighbor, also came at the place of occurrence, but they were not produced by prosecution in evidence, who were independent witnesses. Hence, no reliance could be placed on the testimony of related and interested witnesses. Moreover, there was no injury, even a scratch, to the informant-Radhey Shyam and to any other family member of the deceased, who gathered at the place of occurrence. It also shows that witnesses and other family members of the deceased were not present on the spot. They are eye-witnesses and reached the spot afterwards. It is stated by all prosecution witnesses that appellants started beating Radhey Shyam first and when deceased came to intervene, appellants started beating his father. If it was so, there should have been some injuries to informant Radhey Shyam also, but there is no medical evidence on record to show that Radhey Shyam sustained any injury. Hence, nobody saw the occurrence and appellants were falsely implicated in the present case.

7. Learned counsel for the appellants also argued that appellants had no motive to beat either Radhey Shyam or his father; there was no previous enmity between the parties. He submits that learned trial court has believed that appellants gave beating to Ram Dayal in such a manner that he died by sustaining fatal injuries, but from entire prosecution case, it is well established that appellant had no intention and they had no knowledge that deceased could die. Even, appellants were not having any sort of weapon with them nor any weapon was used by them. Manner of assault also does not indicate that they had any intention to kill the deceased-Ram Dayal.

8. Submission of counsel for the appellants is that if Court reaches on conclusion that appellants are guilty then their offence reaches maximum to Section 323 IPC. In support of this argument, he has placed reliance on the judgment in the case of Prithi vs. State of Haryana [1994 Supp. (1) SCC 498] and Dayaneshwar Dagdoba Hivrekar vs. State of Maharashtra [1982 (0) CrLJ 1870] and argued that charge under Section 304 (2) could not be framed along with Section 34 IPC as there was no common intention of appellants to commit the alleged offence. As per prosecution story, they were coming from their shop and there was scuffle between them and informant on striking the shoulder of each other. So, there was no prior meeting of minds of appellants, therefore, common intention could not be gathered. Learned trial court adopted wrong approach for taking the recourse of Section 34 IPC by convicting the appellants otherwise there was no such evidence on record as to who caused fatal injury to the deceased.

9. Lastly, it was submitted by counsel for the appellants that it is a case of 1984, when appellants were at the age of about 23-25 years and now they are about 60-65 years old. If Court reaches the conclusion of their guilt, their sentence may be modified as undergone.

10. Learned AGA appearing on behalf of State opposed the arguments advanced by counsel for the appellants and submitted that there are three eye-witnesses in this case, who saw the occurrence. He argued that although PWs.3, 4 & 5 are related to the deceased, but their presence at the place of occurrence was very much natural because the occurrence took place very near to the informant's house. Hence, family members immediately reached the spot after hearing hue and cry of informant and his father. He next argued that evidence of eye-witnesses is fully corroborated by medical evidence also. Dr.U.C.Vaishya (PW1), who conducted postmortem on the body of deceased-Ram Dayal, he has stated in his evidence that lever and spleen of the deceased were found ruptured and deceased died due to the injuries sustained by him, which were sufficient to cause death. Lastly, it is argued that both the appellants attacked at the time of occurrence to settle the score with the deceased, therefore, they had common intention to beat the deceased and due to which, the deceased sustained fatal injuries. Hence, prosecution case is fully proved and learned trial court rightly convicted the appellants.

11. Learned counsel for the appellants firstly assailed the conviction of appellants on the basis of eye-witnesses (PW3, PW4 and PW5) being related to the deceased, therefore, they are partisan witnesses. It is admitted fact that Mithalesh (PW3) is the niece of the deceased and Premwati (PW4) is the wife of the deceased and PW5 is the son of the deceased, but the settled law is that testimony of partisan witnesses cannot be discarded on this count alone. In Tameshwar Sahi and others vs. State of UP [1976 ACC 36 (SC)], it is held by Hon'ble Apex Court that there is no hard and fast rule that the evidence of a partisan witness cannot be acted upon without corroboration, if his presence at the scene of the occurrence cannot be doubted and his evidence is consistent with the surrounding circumstances and the probability of the case striking the court as true, it can be good foundation for conviction. More so, if some assurance is available from the medical evidence.

12. If the evidence of PWs.3, 4 & 5 is examined in the light of above observations of Hon'ble Apex Court, it can be undoubtedly believed that the presence of above eye-witnesses is natural at the place of occurrence as Mithalesh (PW3) was the child of just 11 years old at the time of deposing before the learned trial court. She has categorically stated in her statement that at the time of occurrence, she was playing near the place of occurrence. Radhey Shyam (PW5) is the son of the deceased. It is the prosecution version that appellants started quarreling and beating Radhey Shyam first and they started beating deceased-Ram Dayal when he came to the spot to intervene and save his son Radhey Shyam. So the presence of Radhey Shyam at the place of occurrence cannot be doubted. Premwati (PW4) wife of the deceased could also be present on the spot because occurrence was in the street near the house of the deceased. So the presence of PWs.3, 4 & 5 was natural on the spot and it cannot be doubted. Hence, their evidence cannot be discarded on this count alone that they are partisan witnesses rather it is important for the Court to scrutinize their evidence very carefully. Perusal of the impugned judgment shows that the learned trial court has very carefully and meticulously scrutinized the testimony of PWs.3, 4 and 5 on every count. There was no material contradiction in their statements. Trial court appreciated their evidence in right perspective.

13. It is very important to note that in this case, first information report was very prompt. Occurrence took place at 4:00 p.m. on 22.2.1984 and on the same day, FIR was lodged at 5:30 p.m., i.e., just after one and half hour of the occurrence. So, in such a short time, there was no occasion for any false implication of the appellants. It is also not the case that appellants and deceased were having previous enmity.

14. The evidence of witnesses of fact was fully corroborated by medical evidence. Dr.U.C.Vaishya (PW1), who conducted the postmortem, has deposed that lever and spleen of the deceased were ruptured and it is said by him that the internal injuries sustained by deceased could be the result of beating as stated by prosecution and it was not necessary that external injuries should have been there. The doctor has given opinion that injuries sustained by the deceased were sufficient to cause his death. He has specifically denied the suggestions put before him by the defence that above injuries could be result of falling of the deceased or striking with any object. It is also stated by the doctor in his statement that spleen cannot be ruptured due to disease and if spleen is enlarged, it can rupture by inflicting simple injury. Hence, as per medical evidence, the injuries sustained by deceased were sufficient to cause his death. It is also important to note that as per prosecution evidence, appellants gave blow to the deceased in his chest, stomach and pelvis (pedu) and if injuries are inflicted to any person at chest, stomach and pelvis, it is very much possible that lever and spleen will sustain injuries. So, the manner of assault by the appellants matches with the injuries sustained by the deceased. Since the testimony of PWs.3, 4 & 5 is corroborated by medical evidence, therefore, their testimonies carried more weight and learned trial court has rightly believed their testimonies. It is submitted by counsel for the appellants that the offence of appellants does not travel beyond the offence under Section 323 IPC for which he has placed reliance on Pirthi (supra) and Dayaneshwar Dagdoba Hiverkar (supra). In the case of Pirthi (supra), the deceased died after two days of incident and cause of death was Toxaemia due to Gangrene, which developed because of lack of immediate medical help, but this was not the case here. In this case, deceased Ram Dayal succumbed to the injuries while taking to the hospital. The facts of Dayaneshwar Dagdoba Hiverkar (supra) were also differ from this case because in that case deceased was beaten by using the stick. It was held that stick could not be held the weapon from which knowledge can be attributed that the blow by such stick could cause death. In this case, there were repeated blows by the appellants on chest, stomach and pedu of the deceased for which deceased had knowledge that such type of blows could cause fatal injury in the internal organs of the deceased. Therefore, both the above cases did not apply in this case due to different set of facts. As far as common intention is concerned, it is not necessary that it should always be premeditated. It can take place on the spot also. It is very much on record that when the quarrel started by striking the shoulders of appellants and informant-Radhey Shyam and on protest by informant, appellants started slapping him and after that when deceased reached the spot, appellants left informant and started beating deceased-Ram Dayal. Hence, it cannot be believed that quarrel took place all of sudden. Appellants intentionally started beating the deceased, therefore, it is very much clear that they were having common intention to beat the deceased and they repeatedly gave blows to him. Hence, learned trial court has rightly convicted the appellants with the aid of Section 34 IPC.

15. Learned counsel for the appellants has also submitted that in case Court comes to the conclusion that appellants are guilty then keeping in view their age to be nearly 60-62 years, their sentence can be modified as undergone. But, in my opinion, this case is not a case where appellants can be set free as undergone. Learned trial court has sentenced the appellants only for three years under Section 304(2) read with Section 34 IPC. The sentence awarded by the learned trial court, in my considered opinion, is not very harsh keeping in view the offence of the appellants.

16. In view of the discussion as above, this Court is of definite view that learned trial court appreciated the evidence on record in right perspective and rightly convicted the appellants under Section 304 (2) read with Section 34 IPC. The appeal has no force and is liable to be dismissed.

17. The appeal is, accordingly, dismissed. Appellants are reported to be on bail, their bail bonds stand cancelled and sureties are discharged. Appellants are directed to surrender before the court-below forthwith to serve the remaining sentence.

18. Let a copy of this judgment be sent to concerned court for ensuring compliance.

(Ajai Tyagi, J.)

Order Date :- 03.09.2021

LN Tripathi