PETITIONER: ANOKHEY & ANR. Vs. RESPONDENT: STATE OF U.P.WITH CRI A.NO. 531-32/93. 609-610/93. CRL.M.P. DATE OF JUDGMENT14/11/1995 BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) PARIPOORNAN, K.S.(J) CITATION: 1995 SCALE (6)368 ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
M.K. MUKHERJEE. J.
The seven appellants in these appeals and one Mahadev
Prasad Pandey were placed on trial before the learned
Additional Sossions Judge, Mathura. Against the appellants
common charges under Sections 120-B. 148, 302/149. and 454
I.P.C. and against Mahadev Prasad Pandey charges under
Sections 302/109 and 307/109 IPC were framed. A separate
charge under Section 302 IPC was also framed against the
appellant Anokhey Lal. On conclusion of the trial the
learned Judge. while acouitting Mahadev Prasad, convicted
all the appellants under Sections 148 and 324/149 IPC and
further convicted Anokhey Lal under Section 302 IPC. For
each of their convictions the appellants were sentenced to
suffer rigorous imprisonment for two years and Anokhey Lal
was sentenced to imprisonment for life for his conviction
under Section 302 IPC. The sentences were directed to run
concurrently. Against the above judgment two appeals were
filed; one by the appellants assailing their convictions and
the other by the State against their acquittal of the other
charges. The High Court dismissed both the appeals and
affirmed the judgment of the High Court. Hence these
appeals.
According to the prosecution case on March 27, 1975 at
or about 6.30 A.M. the appellants. armed with deadly
weapons, raided the house of Gopal and appellant Anokhey Lal
thrust a spear on the chest of Makhan, brother of Gopal,
felling him down. On hearing the hue and cry raised by
Makhan, Ram Dayal, Gopal and Ram Krishan came there and they
were also attacked by the appellants by their respective
weapons. Finding no other alternative. when Gopal started
thowing brick-bats towards the appellants and Ram Dayal and
Ram Krishan started beating them with small dandas they fled
away.
Makhan, who was seriously injured, was taken to police
station along with the other injured by Giriraj. his elder
brother. and there he (Giriraj) gave a written report of the
incident, on the basis of which a case was registered
against the appellants. Since the condition of Makhan was
grave he was immediately sent to Mathura Hospital while the
other injured were sent to local Government dispensary.
Makhan, however, did not respond to the medical treatment
given to him at the hospital and succumbed to his injuries
within an hour.
The appellants pleaded not guilty to the charges
levelled against them and took up the plea of right of
private defence of their persons.
To prove its case the prosecution examined a host of
witnesses of whom Giriraj (P.W.1). Ram Krishan (P.W.2),
Rameshwar Prasad (P.W.3), Puran Devi (P.W.4) and Ram Dayal
(P.W.5) gave the ocular version of the incident. The
appellants also examined a number of witnesses in support of
their defence.
On consideration of evidence adduced during trial the
trial Court accepted the case of the prosecution in
preference to that of the defence and held the appellants
guilty. The High Court also in its turn. reappraised the
evidence and upheld the order of the trial Court.
Having heard the learned counsel appearing for the
parties and considered the judgments of the learned Courts
below in the light of the evidence adduced during trial we
do not find any reason whatsoever to disturb the concurrent
findings of fact recorded by them, more so, as they are
based on detailed and proper discussion of the entire
evidence and supported by cogent reasons.
It was, however, strongly urged on behalf of the
appellants that even if the entire prosecution case was
accepted as true Anokhey Lal could only be, in view of fact
that Makhan sustained only one injury, guilty of an offence
under Section 304 (Part II) IPC and not under Section 302
IPC.
As already noticed the prosecution case was that the
appellant Anokhey lal had thrust a spear on the chest of
Makhan. Dr. Jagdish Lal (P.W. 13) who held post-mortem
examination on the dead body of Makhan found the following
injury on his person:
“Incised would 1 1/2″ x 1/2″ x chest
cavity deep of linear nature near the
sternum bone on the front side below the
chest.”
He further stated that on internal examination he found
the pericardium damaged and one ounce of blood present.
According to P.W.13 the injury was sufficient in the
ordinary course of nature to cause death of Makhan and that
the same could be caused by a spear.
When considered in the context of the proved facts that
the appellants had gone armed with deadly weapons, to attack
the members of Gopal’s family and after trespassing into the
house Anokhey Lal caused a penetrating injury on a vital
part of the body of Makhan with a spear which was sufficient
in the ordinary course of nature to cause death, the
conclusion is inevitable that the offence committed by
Anokhey Lal comes within clause III of Section 300 IPC so as
to make Anokhey Lal liable for conviction under Section 302
IPC. As regards the other six appellants, whose convictions
are to be upheld, we do not feel inclined to send them
behind the bars again as more than twenty years have elapsd
since the offences were committed by them and each of them
has served a substantial part of their sentence of two years
rigorous imprisonment.
For the foregoing discussion we uphold the convictions
and sentence recorded against the appellant Anokhey lal and
the convictions of the other six appellants put we reduce
their sentence to the period already undergone. As all the
appellants are on bail. Anokhey Lal will now surrender to
his bail bond to serve out the sentence imposed upon him,
while the other six appellants will stand discharged from
their respective bail bonds. The appeals are thus disposed
of.
Since the appeals have been disposed of Special Leave
Petition filed by the complainant and the other injured and
the Crl. M.P. No. 2949 of 1994 filed in connection therewith
are dismissed.