Data Ram And Sudha Kant vs State Of U.P.
2023 Latest Caselaw 14160 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW
 
RESERVED ON 16.1.2023
 
DELIVERED ON 5.5.2023
 
Court No. - 12
 

 
Case :- CRIMINAL APPEAL No. - 629 of 2001
 
Appellant :- Data Ram and Sudha Kant
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Mohsin Iqbal,Shailendra Pratap Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Present criminal appeal under section 374(2) of CrPC has been preferred challenging judgment and order dated 8.8.2001 passed by Addl. district & Sessions Judge, court No.4, Hardoi in S.T. No.194 of 1994 arising out of crime No.115 of 1992, P.S. Sandi, district Hardoi whereby both the appellants were convicted and the appellant No.1 was sentenced under section 308 read with section 34 I.P.C. for four years R.I. and appellant No.2 Sudha Kant was sentenced under section 308 I.P.C. for four years R.I.

2. During pendency of this appeal, appellant No.1 Data Ram died and the appeal with respect to said appeallant stood abated.

3. Prosecution case, in brief, as per written report is that the informant Ashik Ali is the resident of village Tiraha Chaudharipur, P.S. Sandi, district Hardoi. The neighbour of Ashik Ali, Sudha Kant opened a liquor shop in his house, due to which enmity was prevailing between Ashik Ali and Sudhakant. On 9.6.1992, Sudhakant and his father Data Ram came from their village Dhodhi on a tractor trolley with 25 persons to his village Tiraha. Some persons from Sandi were also accompanying them, in which Uma Shankar, Haji Sahab, Lekhraj Singh and Imtiyaz were also there. Haji Sahab called the informant Ashik Ali and told him that Sudhakant will construct wall in his part and will take it to the road on which Ashik Ali replied that he has no objection in raising the wall, however, as soon as Sudhakant started digging plinth, he started digging on the part of land of Ashik Ali. Immediately, the informant stopped Sudhakant and Dataram. Then, Dataram told Ashik Ali to run away; or else he would be killed. Sudhakant hit Ashik Ali on his head towards right side with "tekni of chhappar(wooden rod on which the shed is resting). This incident was witnessed by Uma Shankar, Imtiyaz and Haji Sahab. After exhortion by the witnesses, the accused ran away. The incident took place on 9.6.1992 at about 9.00a.m.

Immediately, the informant Ashik Ali went to police station Sandi and gave a written report, however, his first information report was not registered. Then he went to district Hospital, Hardoi for treatment of his injury. In the district hospital, the informant was referred for X-Ray to Lucknow. On 12.6.1992 again, the informant went to the police station, still no first information report was registered. Ultimately, the informant gave information of this incident in writing to the Superintendent of Police, Hardoi on 12.6.1992, upon which the Superintendent of Police directed the police station Sandi to register the first information report, on the basis of which the first information report was registered on 16.6.1992 at 18.10 hours at police station Sandi as case crime No.115 of 1992 under sections 323, 504 I.P.C..

The investigating officer inspected the place of occurrence, prepared the site plan, recorded the statement under section 161 CrPC and submitted charge sheet against the appellants Dataram and Sudhakant under sections 323, 506 I.P.C.

The informant Ashik Ali gave application dated 7.7.1992 to the Superintendent of Police, Hardoi praying for conversion of offence to that of section 308 I.P.C.. The Superintendent of Police, Hardoi directed the police station Sandi to investigate the matter after perusing the original medical report and supplementary medical report and take appropriate action for conversion of offence under section 308 I.P.C.After perusing the medical report of District Hospital, Hardoi and the report of S.G.P.G.I., the investigating officer submitted charge sheet under sections 308, 323, 506 I.P.C. against the accused persons.

4. The matter was committed to the Court of Sessions by the Judicial Magistrate-I, Hardoi vide order dated 11.5.1994. Charges were framed against the accused Dataram under section 308 read with section 34 I.P.C. and against the appellant No.2 Sudhakant under section 308 I.P.C. which they denied and claimed to be tried.

5. The prosecution in support of their case has produced five witnesses, viz. P.W.1 Ashik Ali, P.W.2 Uma Shankar, P.W.3 Bedharak Singh Kushwaha, Sub Inspector of Police, , P.W.4 Ram Sharan Prasad, Sub Inspector of Police and P.W.5 Dr. Surendra Singh.

6. Statement of the accused under section 313 CrPC was recorded in which their defence was that they have been falsely implicated due to enmity. The accused in their defence has produced Dr. N.A. Khan.

7. P.W.1 Ashik Ali has submitted in his examination-in-chief that during the days of incident, Sudhakant in his house opened one medical shop and gave another shop on rent for liquor business. P.W.1 opposed the liquor shop. An application in this context was also given by Pradhan Tiraha Chaudhariyapur village to District Magistrate on 12.5.1992. Owing to this, there was enmity between the accused persons and the informant.

In the cross, he stated that he saw that the accused Sudhakant hit him from the wooden rod (chhappar ki tekni). However, he did not see him taking out the tekni. The tekni was 3" wide. After 15-20 minute, he went to police station Sandi with written information. His report was not lodged. Again on 10.6.1992 at about 11.30, he went to police station Sandi where Station House incharge told him to go away. No document was given by police for his medical. He got his medical conducted at District Hospital, Hardoi on 11.6.1992. On the said date, X-Ray of the informant was conducted in District Hospital, Hardoi. Since the injury was not diagnosed from the X-Ray, therefore, he was advised by the doctor to go to Lucknow and get ultrasound done. The doctor said that the injury is serious. Both the doctors asked him to go to Lucknow and get ultrasound done and gave reference letter for S.G.P.G.I. for conducting ultrasound. He went to Lucknow on 12.6.1992. The Head of Department of Neurosurgery was on leave and ultrasound machine was not working. On 16.6.1992, ultrasound was conducted. No blood came from this injury, nor blood came on his clothes. The incident took place at 2-3 paces from his house.

8. P.W.2 Uma Shankar has not supported the prosecution case. On the request of the prosecution, this witness was declared hostile.

9. P.W.3 Bedharak Singh Kushwaha, Sub Inspector of Police investigated the matter. Prior to him, Ramsharan Prasad, Sub Inspector investigated it. He stated that the injury of the injured was serious and therefore, he has filed charge sheet under section 308 I.P.C. after amendment. He also proved order of the Circle Officer, Sandi which was passed on the application of the informant which is Ext.K-2. After finding ample evidence against the accused, he filed charge sheet, Ext.Ka-3. He also proved Ext.Ka-4 and Ext.Ka-5 which are first information report and general diary. He stated that the incident took place on 9.6.1992 at about 9.00a.m.. On the application given by the informant, the Circle Officer passed order and after perusing the order of the Circle Officer, he has converted the offence under section 308 I.P.C. as in the opinion of the Doctor, the injuries were serious and fatal.

10. P.W.4 Ramsharan Prasad, Sub Inspector of Police started investigation on 16.6.1992. He recorded statement of Ashik Ali under section 161 CrPC. He has entered the first information report and general diary in the case diary. On pointing out of Ashik Ali, he inspected the site and prepared site plan which is Ext.Ka-6. The medical report was received by him on 29.6.1992 and after receiving it, he recorded statement of Haji, Shafiq Ahmad, Uma Shankar and Imtiyaz under section 161 CrPC in the case diary. He also recorded statement of the accused Dataram and Sudhakant and submitted charge sheet Ext.Ka-7.

In the cross, he stated that he filed charge sheet under sections 323, 506 I.P.C.. He failed to mention Chhappar in the site plan and this mistake has been admitted by him.

11. P.W.5 Dr. Surendra Singh on 11.6.1992 at 10.00a.m. examined the injuries on Ashik Ali which is a contusion measuring 6' x 4' on the right side over occipital region. The injured was complaining severe pain in the head and was also feeling dizzy. In the opinion of P.W.5 Dr. Surendra Singh, injury was caused by hard object. Injury was kept in the supervision. X-Ray was advised. He proved injury report, Ext.Ka-8. He also prepared supplementary report dated 3.7.1992 of the injured. He also perused the opinion of the Neurologist of S.G.P.G.I. and in the opinion of P.W.5, the injury was serious and fatal for life. He prepared supplementary report dated 3.7.1992 of injured Ashik Ali, Ext. Ka-9. He opined that due to this injury, he could have died. He was not aware that Doctor A.N.Khan has conducted X-Ray or not. In the report of P.G.I., no fracture was mentioned. According to the opinion of Neurologist, by operating, the blood clot was removed. The injured Ashik Ali was admitted in P.G.I. on 24.6.1992 and was discharged on 25.6.1992.

In Ext.Ka-8 it was not mentioned that the injury was fatal or serious. He stated that if he would have found the injury simple, he must have mentioned it in his medical report.

12. D.W.1 Dr. N.A. Khan conducted X-Ray on 11.6.1992 of Ashik Ali and no abnormality was found in the X-Ray report. He has proved the X-Ray report, Ext.Kha-1. According to him the injury was simple. He stated that in the P.G.I., C.T. scan of the injured was conducted.

13. Learned counsel for the appellants has submitted that he does not dispute the incident. He submits that the appeal is of the year 2001 and much water has already flown. The appellant has already suffered a lot of trauma, due to pendency of this appeal. The appellant No.2 is presently 69 years of age. It is the appellants' first offence and he may be granted the benefit of Section 4 of Probation of Offenders Act.

14. On the other hand, learned A.G.A. has opposed the appeal.

15. I have considered the submission advanced by parties' counsel as well as perused the judgment of conviction and the relevant evidence available on record.

16. The injured in his testimony has supported the prosecution case. The injury was caused to him by appellant No.2. The testimony of P.W.1 is duly corroborated by the medical report. According to the opinion of P.W.5 Dr. Surendra Singh, who after perusing the report of P.G.I. has opined that the injury sustained by the injured was fatal and life threatening. The said doctor proved Ext.Ka-9 and supplementary medical report. He has clearly stated that the injury sustained by the injured on the head was fatal for life. Since, in the X-Ray, the blood clot was not detected, the said witness has opined that this injury was simple. Therefore, the trial court has rightly concluded that the injury sustained by the injured was grievous and if the blood clot was not removed by operation in the P.G.I., then the injured Ashik Ali could have died.

17. As regards statement of D.W.1 Dr. N.A. Khan, he has conducted X-Ray of accused and in the X-Ray, no abnormality could be detected. The blood clot in the head could not be detected and therefore, he opined that the injury was simple, however, C.T. Scan report of P.G.I. clearly shows that the injury was fatal.

18. In view of what has been discussed hereinabove, the appeal is liable to be and is hereby dismissed. The conviction of the appellant No.2 Sudha Kant, who is the sole living accused, recorded vide judgment and order dated 8.8.2001 (supra) is upheld.

However, this Court does not find any material on record to show that the appellant No.2 is convict of any other criminal case. Thus, it appears that he is a first offender. It further appears that now he has crossed the age of 68 years and this case pertains to the year 2001 whereafter almost 22 years have already elapsed. The maximum punishment for the offence under section 308 I.P.C. is to the extent of seven years.

19. In view of the above, the appellant No.2 Sudha Kant is entitled to get the benefit of Section 4 of Probation of Offenders Act, 1958. The appellant No.2 is on bail. The said appellant is directed to surrender in the court concerned. The trial court is directed to release him as per the provisions of section 4 of Probation of Offenders Act, 1958.

The appeal is disposed of.

Let a copy of this order be sent to the concerned Court along with the Lower Court record within ten days from today.

(Karunesh Singh Pawar, J)

Order Date :- 5.5.2023/kkb/