Partly allowed

Ram Avtar Bhar and Others v. State of U.P.

Allahabad HC9 Sept 2019CRLA/6430/2003

Case brief

AI extract

What is this about?

Appeals against conviction under Sections 304/34 and 323/34 IPC for death caused by lathi and danda injuries in a quarrel over throwing dung. The court partly allowed the main appeal, acquitted one appellant for a doubtful role, upheld the conviction and sentence of two appellants, and dismissed one jail appeal.

What did the court decide?

Main appeal partly allowed; Jail Appeal 5194/2005 allowed; Jail Appeal 5201/2005 dismissed. Ram Avtar Bhar acquitted and released; Bageshwar and Lahri's conviction and sentence confirmed, directed to

Ram Avtar Bhar and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2019)

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RESERVED ON : 20.05.2019 DELIVERED ON : 09.09.2019

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Case :- CRIMINAL APPEAL No. - 6430 of 2003

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Appellant :- Ram Avtar Bhar And Others Respondent :- State Of U.P. Counsel for Appellant :- Gajendra Pratap,Vimlendu Tripathi Counsel for Respondent :- Govt. Advocate

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Connected with

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Case :- JAIL APPEAL No. - 5194 of 2005

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Appellant :- Ram Autar Respondent :- State Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A.

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Connected with

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Case :- JAIL APPEAL No. - 5201 of 2005

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Appellant :- Bageshwar Respondent :- State Counsel for Appellant :- A.G.A.,Praveen Kumar Singh Counsel for Respondent :- From Jail

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Hon'ble Om Prakash-VII,J.

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1. Present criminal appeal No. 6430 of 2003 has been preferred by appellants Ram Avtar Bhar, Lahri and Bageshwar. Jail Appeal No. 5194 of 2005 has been preferred by appellant Ram Avtar Bhar and Jail Appeal No. 5201 of 2005 has been preferred by Bageshwar against the judgment and order dated 16.12.2003 passed by Additional Sessions Judge (IInd Fast Track Court), Ghazipur in Sessions Trial No. 281 of 2001 (State Vs. Ram Avtar and others) arising out of case crime no. 176 of 2001, under sections 304, 323, 506 IPC, Police Station Karimuddinpur, District Ghazipur whereby appellants Ram Avtar Bhar, Lahri and Bageshwar have been convicted and sentenced for the offence under section 304

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read with Section 34 IPC to undergo 10 years' R.I. along with fine of Rs.2,000/- each and a default sentence of 1 year R.I.; under section 323 read with Section 34 IPC to undergo 1 year's R.I. All sentences were directed to run concurrently. Accused Kashi surrendered before the Court on 16.12.2003. After affording opportunity of hearing on punishment trial court also sentenced him for the offence under Section 304 read with Section 34 IPC for a period of 10 years' R.I. and fine of Rs. 2,000/- and and a default sentence of 1 year R.I.; under section 323 read with Section 34 IPC to undergo 1 year's R.I. All sentences were directed to run concurrently.

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2. Since Criminal Appeal and both the jail appeals arise out of same judgment and order, they were heard together and are being disposed of by this common judgment and order. 3. Prosecution story, in brief, as unfolded in chik FIR (Ex.Ka. 2) is as follows : 4. Informant Swami Nath, P.W.-1 son of deceased moved written report (Ext. Ka-1) scribed by Jai Prakash Rai on 17.8.2001 at Police Station concerned mentioning therein that he was resident of village Karkatpur, Police Station Karimuddinpur, district Ghazipur. On 16.8.2001 at about 6 P.M. Ram Avtar Bhar was throwing dung in front of the house of the informant, on which informant's father Ram Dhari @ Sitavi (deceased) objected him then an altercation took place between them. Hearing the altercation accused Lahri, Bageshwar and Kashi armed with lathi and danda also reached there. They started abusing and beating Ram Dhari. Informant's father raised hue and cry then informant, his younger brother Shiv Shankar, mother Hansuria and one Vijai Raj Bhar reached at the place of occurrence. Accused persons also started beating them. Hearing the hue and cry other

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villagers also reached there and intervened in the matter. It is also mentioned in the written report (Ext. Ka-1) that due to beating by the accused persons informant and his father Ram Dhari, his brother Shiv Sewak, mother Hansuria and witnesses also received injuries. It was further mentioned that informant's father Ram Dhari received serious injuries. He was taken to the Community Health Centre, Muhammadabad, district Ghazipur and after first aid he was referred to the District Hospital, Ghazipur. Again Doctors of the District Hospital, Ghazipur referred the injured (deceased) to the Banaras Hindu University Hospital, Varanasi for better treatment. It further shows that deceased died during treatment at 6 A.M. on 17.8.2001. As per informant, since they were busy in the treatment and last rites of the deceased, they could not lodge the first information report on the day of incident and prayer was made to take action against the accused persons.

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5. On the basis of written report (Ext. Ka-1), chik FIR (Ext. Ka.-2) was registered on 17.8.2001 at 23.40 hrs. at police station concerned for the offence under Section 304, 323, 504 IPC against the accused appellants and G.D. entry was also made at the same time on the basis of Chik FIR.

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6. Injury report of deceased Ram Dhari prepared at Community Health Centre Muhammadabad, district Ghazipur is (Ext. Ka-6). Swami Nath and other injured Vijay Raj Bhar, Shiv Shankar were also medically examined at Community Health Centre, Muhammadabad on 18.8.2001 on the basis of majrubi chitthi of the police concerned. Injury reports are (Ext. Ka-14); (Ext. Ka-12) and (Ext. Ka-13) respectively. Since deceased Ram Dhari died during treatment on 17.8.2001, information was given by the Hospital concerned to the Police Station Lanka, Varanasi. Thereafter inquest report (Ext. Ka-8)

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and other police papers relating to inquest report were prepared on 17.8.2001 itself. Dead body was kept in sealed cloth and sent to the mortuary for post mortem examination. C.T. Scan report of deceased Ram Dhari was also prepared. Investigating Officer after interrogating the chik writer, the informant and the scribe at Police Station concerned itself proceeded to the place of occurrence and on pointing out of the informant (P.W.-1) he has prepared site plan (Ext. Ka.-4).

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7. Post mortem on the dead body of the deceased Ram Dhari was conducted on 17.8.2001 at 4.30 P.M. at mortury concerned. He was found aged about 45 years. It is clearly mentioned in the post mortem report (Ext. Ka7) that deceased died in Banaras Hindu University Hospital, Varanasi at 6 A.M. on 17.8.2001. He was of average body built. Eyes and mouth were closed. Rigor mortis were present on all over body.

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8. On internal examination of the body of the deceased following ante mortem injuries were found : 9. Abraded contusion 2 cm x 1 cm on the right side head 11 cm above the right eye brow 2 cm outer to mid line. On opening depressed, communicated fracture of frontal bone right side was found. Both middle and frontal bone and right side parital bone found fractured.

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10. In the opinion of the Doctor cause of death was coma as a result of head injury.

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11. Injury report of Ram Dhari Rajbhar (deceased) examined at Community Health Centre, Muhammadabad, Ghazipur on 16.8.2001 at 8.45 PM. discloses following injuries:-

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1. Fresh abraded contusion swelling 15 cm x 6 cms on the right side of face including right side of forehead. Advised X-ray. Referred to District Hospital, Ghazipur for

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X-ray and management.

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2. Reddish and contused swelling 9 cm x 4 cm on the left side of head 7 cm above left ear. Advised X-ray.

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3. Reddish contusion 4 cm x 2.5 cm on right eye.

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4. Complaint of pain on whole chest.

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5. Complaint of pain on whole abdomen.

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12. Injury no. 3 was simple in nature and rest were kept under observation.

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13. Injured Swami Nath was medically examined at Community Health Centre, Muhammadabad, Ghazipur on 18.8.2001 at 3.45 PM. and following injuries were found on his body :

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1. Stitched wound 3 c.m. on top of skull, irregular surrounding, swelling, bluish in colour.

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2. Contusion on left arm 3 cm x 3 cm above 3.5 cm below left shoulder joint, colour bluish.

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14. Injured Vijay Rajbhar was medically examined at Community Health Centre, Muhammadabad, Ghazipur on 18.8.2001 at 3.00 PM. and following injuries were found on his body :

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1. Lacerated wound on palm side of left middle finger with surrounding, blue swelling, margin of wound was rectangular. Referred to District Hospital, Ghazipur for X- ray of left middle finger AP and later view. Wound is 2 cm x 5 cm x muscle deep.

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2. Pain and bluish swelling on left side of neck 2 inch above left colloar bone swelling in size of 3 cm x 3 cm. 3. Swelling on left part of abdomen 2 cm x 2 cm above 10 cm from midline anteriorly.

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15. Injured Shiv Shankar was medically examined at Community Health Centre, Muhammadabad, Ghazipur on 18.8.2001 at 3.20 PM. and following injuries were found on his body :

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1. One lacerated wound on left forehead 2 cm x 1 cm above 2 cm left eye brow. Surrounding area swollen and blue. Margin of wound irregular.

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2. Swelling on left shoulder 5 cm x 4 cm colour bluish.

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Swelling on back of left front of abdomen 3 cm x 3 cm above 10 cm away from middle of back.

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16. Investigating Officer interrogated the witnesses and after fulfilling entire formalities submitted charge sheet (Ext. Ka 5) against the appellants for the offence under Section 304, 323, 504 IPC. Cognizance was taken by the concerned Magistrate and case being exclusively triable by the Sessions Court was committed to the Court of Sessions for trial.

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17. Accused appeared. Prosecution opened its case describing all the evidence collected by the Investigating Officer and proposed to be adduced against the accused.

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18. Trial Court also heard the accused side and framed charges on 15.1.2002 for the offence under Section 304 read with Section 34 IPC and Section 323 read with Section 34 IPC and Section 504 IPC against the accused. Charges were read over to the accused persons to which they denied and pleading not guilty claimed trial.

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19. In order to prove its case, prosecution examined P.W.-1 Swami Nath; P.W.-2 Vijay Rajbhar; P.W.-3 Jai Prakash Rai; P.W.-4 Shiv Dayal Tiwari; P.W.-5 Pushkar Pratap Singh, Investigating Officer; P.W.-6 Dr. S.J. Verma, who has medically examined Ram Dhari Raj Bhar at C.H.C. Concerned; P.W.-7 Dr. S. K. Singh, who has conducted post mortem on the body of the deceased; P.W.-8 S.I. Rajesh Kumar, who has prepared inquest report and P.W.-9 Dr. K. K. Singh, who has medically examined the injured persons. It appears that after conclusion of the prosecution evidence Trial Court recorded the statement of the accused appellants under Section 313 Cr.P.C. in which

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they denied the prosecution case. They also denied from the incident as alleged in the FIR and causing of injuries to the deceased and injured persons.

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20. As per their statements, FIR was lodged belatedly after consultation. Injury reports regarding injured were said to be forged and fake documents. All the accused have stated that they did not cause injuries to the deceased Ram Dhari, all the police papers are forged and fake documents. Witnesses examined in the matter have also made false statement. Prosecution was started due to enmity. They stated to file written statement in their defence.

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21. It appears that appellants did not adduce any evidence in their defence. Trial Court after hearing the parties vide impugned judgment and order convicted and sentenced the accused appellants, as above, hence this appeal.

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22. I have heard Sri Vimlendu Tripathi, learned counsel for the appellants and Sri R. K. Srivastava, learned A.G.A. for the State.

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23. Submission of learned counsel for the appellants is that appellants are innocent and have not committed present offence. Prosecution was not able to prove its case beyond reasonable doubt. Trial Court has not appreciated the facts and evidence in correct manner, thus reached on wrong conclusion convicting and sentencing the accused appellants. At this stage learned counsel for the appellants also argued that FIR in the present matter was lodged belatedly and no plausible explanation was given by the prosecution. There is contradiction in the statement of the eye account witnesses and the Doctors who have examined the deceased as well as who conducted the post mortem on the point of number of injuries. P.W.-1, P.W.-2 and other injured have not received

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injuries in the said incident. If they had received injuries in the said incident, there was ample opportunity to present themselves for medical examination at C.H.C., Muhamadabad; District Hospital, Ghazipur as well as Sir Sundar Lal Hospital, B.H.U. Varanasi at initial stage itself. Since injury reports in respect of P.W.-1 and P.W.-2 relate to 18.8.2001, therefore, it indicates that injured have not received injuries during the said incident and injury reports are fake and forged documents. Material facts have been suppressed by the prosecution witnesses and due to that reason there are major contradiction in their statement and also in the statement of the Investigating Officer. Referring to the entire medical evidence it was also argued that in injury report of the deceased Ram Dhari Rajbhar prepared at C.H.C., Muhammadabad five injuries are shown but in the post mortem report Doctor concerned found only one injury. This fact also suggests that prosecution has suppressed origin and genesis of the incident. Since the Investigating Officer did not find cow dung at the gate of the informant's house and there was a road adjacent to the house of the informant thus motive taken by the prosecution is also not proved in the present matter. Incident did not take place, as alleged in the FIR. Referring to the findings of the trial court it is also argued that trial court has not appreciated the prosecution evidence in correct perspective and thereby arrived at cursory and wrong conclusion. Learned counsel appearing for the appellants also referred to the findings of the trial court in the impugned judgment and order about the guilt of the accused appellants and argued that no specific finding has been given regarding the guilt of accused appellant Ram Autar Rajbhar. This fact itself shows non application of judicial mind at the time of

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passing of the impugned order. Thus, prayer was made to allow the appeal and acquit the appellants.

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24. Learned counsel for the appellants in support of his submissions placed reliance on the following case laws :

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(i) (1995) 3 SCC 603 (Lal Mandi Vs. State of West Bengal).

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(ii) 1980 (Supp) SCC 408 (MD Isak MD and others Vs. State of Maharashtra).

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(iii) (1976) 2 SCC 117 (Ninaji Raoji Boudha and another Vs. State of Maharashtra.

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(iv) LAWS (SC) 2 99 (Chowa Mandal Vs. State of Bihar).

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(v) (1975) 3 SCC 751 (Mohinder Singh and another Vs. State of Delhi. )

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(vi) CRIMES 1995 4 480 (Dina alias Dinabandhu Banchhor Vs. State of Orissa)

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(vii) (2002) 8 SCC 372 (Sardul Singh Vs. State of Haryana).

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25. Per contra, learned A.G.A. argued that prosecution was able to prove motive, date, time and place of the incident, presence of the witnesses on the spot at the time of incident and also involvement of the accused appellants from its evidence beyond reasonable doubt. Deceased Ram Dhari Rajbhar died during treatment due to injuries sustained by him in the said incident which were caused by the accused appellants. There is no illegality, infirmity or perversity in the impugned judgment and order on the point of law and facts both. All the accused appellants were involved in committing the present offence. Medical evidence fully supports the oral version. Thus prayer was made to dismiss the appeal.

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26. I have considered the rival submissions made by the

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learned counsel for the parties and have gone through the entire record carefully.

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27. As is clear from the record itself that FIR was lodged in the present matter on 17.8.2001 at 23.40 hrs. at Police Station Karimuddinpur, district Ghazipur. Incident is said to have taken place on 16.8.2001 at 06:00 P.M. Although P.W.-1, P.W.-2, deceased and one Vijay were said to have received injuries in the incident but medical examination of only Ram Dhari was done on 16.8.2001 in the night at C.H.C., Muhamadabad, Ghazipur. It has also come in the evidence that all the injured were present at C.H.C. concerned at the time of medical examination of deceased Ram Dhari. Injured were also present at District Hospital, Ghazipur along with the deceased but none of the injured except the deceased were medically examined at District Hospital, Ghazipur on 16.8.2001. All the injured including other villagers have taken the deceased to the Banaras Hindu University Hospital, Varanasi in the night itself on a jeep but they did not get themselves medically examined there also. Treatment was continued at Banaras Hindu University Hospital, only in respect of the deceased Ram Dhari. Prosecution case is also that after the death of Ram Dhari, post mortem was done in the mortuary of Banaras Hindu University Hospital itself on 17.8.2001. Thereafter they performed last rites (funeral) of deceased and then they returned by a bus to their respective houses. On the way, informant and scribed Jai Prakash alighted from bus and went to the Police Station concerned in the night itself preparing the written report and lodged the FIR at 23.40 hrs. Trial Court was of the view that since reason assigned by the prosecution about the delay occurred in lodging FIR is natural, probable and satisfactory, therefore,

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prosecution case cannot be disbelieved on this ground. If the finding recorded by the Trial Court in the impugned judgment and order on point of delay in lodging the FIR is minutely analysed it emerges that although there is delay in lodging of the FIR but the reason given by the prosecution witnesses explaining the delay cannot be disbelieved. It is pertinent to mention here that accused appellants themselves in the cross examination of the prosecution witnesses itself by placing suggestions have admitted that Ram Dhari received injuries on the date, time and place mentioned in the FIR. They only pleaded that incident took place in any other manner, appellants have not caused injuries to the deceased. If such is the position, findings recorded by the Trial Court about the existence of the FIR at the time mentioned in the chik FIR as well as explanation offered about the delay in lodging the FIR cannot be said to be illegal.

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28. As far as motive is concerned, as per FIR appellant Ram Autar was throwing cow dung at the gate of the informant, when he was objected by the deceased (father of the informant), other accused appellants armed with lathi and danda came there and started beating him. On hue and cry of the deceased, witnesses also reached there and they were also beaten by the accused persons and due to which they also received injuries. If the facts mentioned in the FIR as well as statement made by the P.W.-1 and P.W.-2 are taken into consideration there was no previous enmity between the parties. Altercation took place between the deceased and accused appellant Ram Autar due to throwing of cow dung. P.W.-1 and P.W.-2 although have stated that accused appellant Ram Autar was throwing cow dung at the gate of the house of the informant but P.W.-5 Pushkar Pratap Singh the

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Investigating Officer when examined before the court has specifically stated that he did not find any evidence of throwing of cow dung at the gate of the house of the informant. Heap of cow dung were found besides the road side at three places on the ridge of field of Ram Cheej. Referring to the aforesaid facts, learned counsel appearing for the appellants has argued that prosecution was not able to establish motive as cow dung was not found at the gate of the informant. If the statement of the P.W.-5 Pushkar Pratap Singh, Investigating Officer, is compared with the statement of the P.W.-1 and P.W.-2, certainly there is only oral statement of these witnesses that cow dung thrown by Ram Autar was lying at the gate of the informant at the time of inspection made by the Investigating Officer also. Since Investigating Officer in the site plan (Ext. Ka-4) has not shown cow dung at the gate of the informant instead three heap of cow dung were shown besides the road, therefore, in my opinion prosecution was not able to establish the motive part beyond reasonable doubt, although prosecution has come with specific motive. It is pertinent to mention that prosecution case is based on eye account witnesses, therefore, entire prosecution evidence cannot be thrown out merely on this basis that prosecution fails to establish the factum of throwing of cow dung at the gate of informant beyond reasonable doubt. Thus, in my opinion, other prosecution evidence has to be analysed.

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29. So far as medical evidence is concerned, deceased died during treatment on 17.8.2001 in the Banaras Hindu University Hospital, Varanasi. Doctor conducting the post mortem has clearly stated that the deceased died due to head injuries found on the body of the deceased. Deceased has been medically examined on 16.8.2001 at C.H.C., Muhammadabad,

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Ghazipur. P.W.-6 Dr. S. J. Verma has prepared the injury report (Ext. Ka-6) in which one abraded contusion in the right side of head and forehead, one reddish contusion swelling on the left side of head and one reddish contusion on the right hand have been found. Other two injuries are complaint of pain. If the injuries shown in the (Ext. Ka-6) are compared with the injuries shown in the post mortem report there is difference in number of injuries. Doctor conducting the post mortem has found only one injury in the right side, although middle, frontal and parietal bone were found fractured. If such is the position, injury no. 2 shown in the injury report (Ext. Ka-6) cannot be said to be false. Looking to the nature of injury shown in the post mortem report there is possibility that other injuries found in (Ext. Ka-6) had also come. If the aforesaid statement of P.W.-6 are taken into consideration then it appears that at the time of examination at C.H.C., Muhammadabad the injured (deceased) was conscious. Since he was immediately sent to the District Hospital, Ghazipur and thereafter on the same day he was sent to the Banaras Hindu University Hospital, Varanasi where he died during treatment in the night of 17.8.2001, opinion formed by the Trial Court on the point of medical examination cannot be termed to be illegal. It is also pertinent to mention here that appellants have also not denied that deceased did not receive injuries on the date, time and place of occurrence. They have only pleaded that incident took place in any other manner. Thus, in the opinion of Court, there is no contradiction in oral and medical evidence. Cause of death of the deceased is also clear. Deceased died during treatment due to injuries sustained by him in the incident. Prosecution was able to prove this fact beyond reasonable doubt.

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30. As far as injuries sustained by P.W.-1 Swami Nath; P.W.2 Vijay Raj Bhar and Shiv Shankar are concerned they did not submit themselves for medical examination at C.H.C., Muhammadabad, district Ghazipur on 16.8.2001 nor medical examination was done at District Hospital, Ghazipur where they were present along with deceased. No medical examination was done at Banaras Hindu University Hospital in their respect. For the first time it appears that after registering the FIR they were sent for medical examination and thereafter injury reports were prepared. Dr. K. K. Singh, P.W.-9 in cross examination has stated that injuries found on the body of the injured could come on 16.8.2001. Colour of all the injuries found on the body of the injured were bluish. This witness has specifically stated the duration of the injuries as three days old. Trial Court while analysing this fact was of the opinion that since the condition of the deceased was precarious and injured were busy in his treatment, therefore, if they were not medically examined at initial stage, injury reports prepared in respect of injured cannot be doubted. Finding of the Trial Court can not be said to be illegal merely on this basis that injury reports are of 18.8.2001. Thus findings recorded by the Trial Court on the point of medical evidence cannot be said to be contrary to the evidence.

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31. So far as presence of P.W.-1, P.W.-2 at the place of occurrence is concerned, at initial stage altercation took place between deceased and appellant Ram Autar. As per prosecution witnesses they reached after hearing the hue and cry. Defence suggestion is that woman belonging to the appellants side hearing the altercation between the deceased and appellant Ram Autar reached there, stones were pelted by both sides and in that recourse deceased received injuries.

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Appellants have not caused injuries to the deceased. If the medical evidence is compared with the statement/suggestion given by the appellants in the cross examination, plea of appellants cannot be accepted. Injuries found on the body of the deceased and injured could come with the weapon lathi and danda. Thus, presence of P.W. 1 and P.W. 2 on the spot at the time of incident cannot be doubted.

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32. Coming to the next question regarding interestedness of witnesses is concerned, certainly P.W.-1 and P.W.-2 both are close relatives of the deceased Ram Dhari and they reached at the place of occurrence on hearing hue and cry of the deceased but injuries found on the body of the injured, as has been discussed herein above, had come on the date of incident itself and they are the injured witnesses. Injuries were sustained by them when they were trying to save the deceased. Taking in view the entire facts and circumstances of the case, P.W.-1 and P.W.-2 cannot be placed in the category of interested witnesses. It is clarified at this stage itself that presence of P.W.-1 and P.W.-2 on the spot at the time of occurrence, is not improbable and unnatural. They are natural and probable witnesses. Thus submissions raised by the learned counsel for the appellants in this respect is not acceptable. Only requirement is that their statements must be scrutinised more carefully to find out the truth of the facts. If it is found acceptable and inspire confidence of the Court, their statements cannot be brush aside merely on this basis that they are close relatives of the deceased.

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33. Now coming to the role of the accused appellants played in the present matter, I have scrutinised the entire evidence including the observation of the Trial Court. Prosecution from the very beginning has come with the stand that deceased

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was objecting in throwing the dung by the appellant Ram Avtar Bhar at the gate of the informant and due to that reason some altercation took place between them. Thereafter accused appellants Bageshwar, Lahri @ Uma Shankar and co-accused Kashi armed with lathi and danda reached on the spot and started beating to the deceased. When witnesses reached there, aforesaid named accused also caused injuries to the witnesses. P.W.-1 and P.W.-2 both during the course of examination on oath have stated same facts. In the cross examination they have specifically stated that accused appellant Ram Avtar Bhar caused injuries with the brick piece. So far as the role assigned to the appellant Ram Avtar Bhar is concerned if the statement of P.W.-1 and P.W.-2 is compared with the medical evidence, none of the injuries found on the body of the deceased as well as injuries sustained by injured person could come with the brick pieces. Statement of P.W.-6 Dr. S. J. Verma in this regard is mere opinion. In the examination in chief P.W.-6 himself has stated that injuries found on the body of the deceased were caused by a blunt and hard object. Although brick piece is also a hard object but injuries found on the body of the deceased as well as injured could not be caused with the brick pieces. Both frontal, middle and parital bones were found fractured. Thus involvement of the accused appellant Ram Avtar Bhar in causing injuries to the deceased and injured appears doubtful and on that basis conviction of the accused appellant Ram Avtar Bhar for the offence under Section 304 read with Section 34 and Section 323 read with Section 34 IPC cannot be sustained. Trial Court itself has not found proved the charge for the offence under Section 504 IPC. If the impugned judgment and order passed by the Trial Court is minutely perused then also what actual

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role was played by accused appellant Ram Avtar Bhar in committing the present offence has not been analysed by the Trial Court, thus, conviction and sentence imposed upon accused appellant Ram Avtar Bhar for the offence under Section 304, 323 IPC taking recourse to the provisions of Section 34 IPC is palpably wrong. Although he was present on the spot at the time of incident and dispute between the parties arose on the altercation took place between the deceased and the accused appellant Ram Avtar Bhar yet he has not been assigned any weapon said to have been used in commission of crime.

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34. As far as role assigned to the accused appellant Bageshwar and Lahiri is concerned, prosecution from its evidence has established beyond reasonable doubt that on hearing altercation these two appellants and co-accused Kashi reached at the place of occurrence armed with lathi and danda and they started beating deceased. Although there is contradiction in the number of injuries shown in the injury report of deceased as well as post mortem report but keeping in view this fact that frontal, middle and parital bones of the head of the deceased were found fractured and cause of death of the deceased was ante-mortem head injuries, therefore, intention of the accused appellants Bageshwar and Lahiri can be gathered from the act committed by them on the spot itself. Deceased died during treatment in the Hospital on 17.8.2001. Although injuries of the injured persons were examined on 18.8.2001 but from the close analysis of the entire evidence finding of the Trial Court regarding charge for the offence under Section 304 read with Section 34 IPC as well as Section 323 read with Section 34 IPC in the opinion of the Court is based on correct appreciation of fact and

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evidence. Since injuries were caused on the head of the deceased, frontal, middle and parietal bones were found fractured, at the time of post mortem medial of right orbit wall was also found fractured which cannot come simply with the use of brick piece, thus, with certainty it can be held that fracture found on the head of deceased was the result of injury caused by lathi and danda. Intention of the appellants as required to attract offence under Section 304 IPC could easily be gathered from the attending circumstances emerged on the spot itself. Trial Court has rightly convicted the accused appellants Bageshwar and Lahiri for the offence under Section 304 and 323 IPC taking recourse to the provisions of Section 34 IPC.

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35. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

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36. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it

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should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [ Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731 , M.P. v. Saleem, (2005) 5 SCC 554 , Ravji v. State of Rajasthan, (1996) 2 SCC 175].

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37. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence. 38. In the present matter accused appellants Bageshwar and Lahiri have been found guilty for the offence under Section 304 IPC. In the post mortem report, frontal and parietal bones as well as medial bone were found fractured. Cause of death of the deceased was due to aforesaid injuries and the contradiction, omissions occurred in the prosecution evidence like presence of the dung at the gate of informant, existence of the chak road in front of the house of the informant as well as heap of brick pieces itself are not sufficient to disbelieve the statement of P.W.-1, P.W.-2 on material points. It is not a case wherein only offence under Section 325 IPC could be held to be committed by the accused appellants. Only ten years' rigorous imprisonment and a fine of Rs. 2,000/- has been imposed upon the accused appellants for the offence under Section 304 IPC and one year

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rigorous imprisonment for the offence under Section 323 IPC. In the opinion of the court punishment imposed upon the accused appellants will meet the ends of justice and will also be in consonance with the facts and circumstances of the case as well as it will also meet the cry of the society. Submissions raised regarding the conversion of the conviction of the accused appellants Bageshwar and Lahri for the offence under Section 325 IPC in place of Section 304 IPC is not acceptable.

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39. Hence, applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused appellants by the Trial Court in the impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on the point of punishment imposed upon the appellants.

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40. Thus on the basis of aforesaid discussion, Criminal Appeal No. 6430 of 2003 is liable to be partly allowed. Jail Appeal No. 5194 of 2005 filed by appellant Ram Avtar Bhar is liable to be allowed. Jail Appeal No. 5201 of 2005 filed by accused appellant Bagheshwar is liable to be dismissed.

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41. Criminal Appeal No. 6430 of 2003 is hereby partly allowed. Jail Appeal No. 5194 of 2005 is allowed. Jail Appeal No. 5201 of 2005 is dismissed. Appellant Ram Avtar Bhar is acquitted of all the charges levelled against him. If he is on bail need not to surrender. Personal bonds and surety bonds filed in respect of the accused appellant Ram Avtar Bhar are hereby cancelled and sureties are discharged from their liability. It is clarified that if appellant Ram Avtar Bhar is still

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languishing in jail in this matter he be released forthwith from jail.

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42. Conviction and sentence of appellants Bageshwar and Lahri for the offence under Section 304 IPC read with Section 34 IPC and 323 IPC read with Section 34 IPC is hereby confirmed. Appellants Bageshar and Lahri, if not in jail in this matter, are hereby directed to surrender forthwith before the court concerned to serve out the remaining sentence. Personal bond of the accused-appellants Bageshwar and Lahri as well as sureties bonds are hereby canceled. Sureties are hereby discharged from their liabilities.

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43. Copy of this order along with lower court record be sent to court concerned forthwith for compliance. Compliance report be also sent to this Court. A copy of this order be also sent to the concerned Jail Superintendent.

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44. Keeping in view provisions of Section 437-A Cr.P.C., appellant Ram Avtar Bhar is directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants on receipt of notice thereof shall appear before Hon'ble Supreme Court.

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45. Office is directed to place a copy of the order on the record of Jail Appeal No. 5194 of 2005 and Jail Appeal No. 5201 of 2005 also.

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Order Dated : 09.09.2019. Sachdeva

Ram Avtar Bhar and Others v. State of U.P.

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Ram Avtar Bhar and Others v. State of U.P.

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