Allahabad High Court
Shiv Raj Singh And Another vs State Of U.P. on 5 August, 2022
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 89
Case :- CRIMINAL APPEAL No. - 3085 of 1984
Appellant :- Shiv Raj Singh And Another
Respondent :- State of U.P.
Counsel for Appellant :- S.P. Kumar,Sanjay Kumar
Counsel for Respondent :- A.G.A.,Na
Hon'ble Karunesh Singh Pawar,J.
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 22.10.1984 passed by II Addl. Sessions Judge, Ballia whereby the accused Shiv Raj Singh has been convicted and sentenced to undergo rigorous imprisonment of six months under section 323 I.P.C. and the accused Shiv Shankar Singh to undergo rigorous imprisonment for six months under section 323 read with section 34 I.P.C., present criminal appeal has been preferred by the appellants.
Heard Mr. Sanjay Kumar, learned counsel for the appellant and Mr. Shrawan Kumar Ojha, learned Addl. Government Advocate for the State.
The prosecution case is that on 26.11.1983 at about 5.00p.m. while the informant was coming home after selling milk from Ballia near Dhodha Rai Ka Dera, the accused Shiv Shankar Singh and Shiv Raj Singh met him and at the instigation of Shiv Shankar Singh, Shiv Raj Singh gave lathi blows to the complainant. On alarm being raised by the complainant, the witnesses Sudarshan Yadav, Shivjee Yadav along with others reached at the spot and saw the occurrence. Then the accused persons ran away.
A written report was given on 27.11.1983, which was registered as first information report. Sample of blood stained soil and simple soil was collected by the investigating officer which is ext. Ka-6. The injured was examined at district Hospital, Ballia by Dr. Kailash Singh who in the injury report has found two contusions, one of 8cm x 2cm. Lacerated wound of 6cm x 1cm scalp deep on right periotal region of skull 7cm above to right eyebrow and the second injury of 6cm x 2cm on left glutial region 10cm below left lliac crest. The doctor opined that the injuries are simple, however, he advised x-ray. After completing investigation, charge sheet was filed. Charge under section 308 I.P.C. was framed against the accused persons. In their evidence under Section 313 CrPC, they pleaded not guilty and claimed to be tried.
The prosecution to prove its case has examined P.W.1 Triloki Yadav, P.W.2 Shivjee Yadav, P.W.3 Dr. Kailash Singh and P.W.4 investigation officer Ashok Kumar Singh.
The injured Triloki Yadav, P.W.1 in his statement has specifically stated that on 26.11.1983 at about 5.00p.m., the accused Shiv Raj and Shiv Shankar entered into an altercation with him regarding selling of the milk and the accused Shivraj gave lathi blow at the instigation of the accused Shiv Shankar which resulted in lacerated wound over his head. The testimony of the injured witness regarding this piece of evidence is intact. No cross examination has been done by the defence on this evidence.
P.W.2 Shivjee Yadav has also supported the prosecution case and reiterated the version given by P.W.1. P.W.2 is the eye-witness. He has clearly stated that the accused Shiv Raj gave lathi blow to Triloki while the co-accused Shiv Shankar was standing there. Thereafter, they ran away. Blood was oozing out from injury of the injured from the head.
P.W.3 Dr. Kailash Singh has corroborated the prosecution case. He has advised x-ray for injury No.1. In the examination in chief, he has not stated that the injuries were fatal. However, in his cross examination at the instance of the Public Prosecutor, he for the first time has said that from injury No.1, death could have caused. Nothing abnormal was detected in the x-ray report. No supplementary report of Dr. Kailash Singh is on record. Had there been any grievous injury sustained by the injured as has been stated by P.W.3, then, he must have mentioned it in the injury report. It has been mentioned for the first time at the instance of the public prosecutor.
It is significant to note that the first blow given by the accused Shiv Raj on the injured was on waist and thereafter only one blow was given on the head. This shows that there was no intention of the accused to cause death or to commit culpable homicide not amounting to murder. In case the intention was to cause death, the first blow would have been on the head itself and, not on the waist. There is no fracture on the skull. There is no repeated assault on the head. Hence, from the evidence on record, it cannot be said that these injuries were caused to the injured Triloki with an intent and knowledge and under such circumstances, even by that act, in case the accused had caused death, he would have been guilty of culpable homicide not amounting to murder. Thus, from overall evaluation and re-appreciation of evidence, I am of the view that the trial court has rightly convicted the accused under section 323 read with section 34 I.P.C.
Learned counsel appearing on behalf of the accused has stated that there is a delay in lodging the first information report. The injuries are simple in nature as stated by the doctor himself. There was no intention to cause the injuries. Therefore, it is prayed to reduce the sentence to the period already undergone.
Learned counsel appearing on behalf of the State, while opposing the prayer to reduce the sentence, has submitted that the accused gave lathi blows on the vital part of the body with an intention to commit crime, therefore no sympathy should be shown to the accused persons.
Having heard learned counsel appearing on behalf of the respective parties and, in the facts and circumstances of the case, more particularly, considering the fact that the incident is of 39 years back and the appeal is pending since 1984, the sentence awarded by the trial Judge is six months, it would be appropriate to reduce the sentence to the period already undergone.
In view of the above and for the reasons stated above, the present appeal is dismissed. The conviction of the accused Shiv Raj Singh under section 323 I.P.C. and the accused Shiv Shankar Singh under section 323 read with section 34 I.P.C. is hereby confirmed. However, the sentence imposed by the learned Trial Court is hereby modified and reduced to the period already undergone.
Let a copy of this order be sent to the concerned Jail Superintendent and the learned trial Court. Lower court record be also sent back to the trial court.
Order Date :- 5.8.2022
kkb.
