- (1.) THIS criminal appeal arises out of a judgment and order dated 12.03.2007, passed by learned Additional Sessions Judge/F.T.C. Court No.10, Pratapgarh, in Sessions Trial No.25 of 1998 recording conviction of accused appellants under sections 302/34 IPC and 323/34 IPC and sentencing them each to imprisonment for life with a fine of Rs.1000/-; in the default of payment of fine, to undergo further R.I. for 3 months on first count, and a fine of Rs.1000/- each on second count; in default of payment of fine, to undergo further R.I. for 3 months.
(2.) BRIEFLY narrated the facts of prosecution case are that on 28.09.1997, complainant Ram Anuj, a resident of village Tala while being accompanied by his father Gangadeen was going to Pratapgarh in the morning hours at 8.00 O'Clock. Gangadeen was ahead of complainant and the moment they reached near the culvert (Pulia) of Tala crossing, accused persons namely Rasheed, armed with axe (Kulhari), Hakim and Ghayasuddin armed with lathis appeared from the culvert and out of enmity started abusing them, and while threatening them with dire consequences exhorted that the deceased be done to death. That very moment, accused Rasheed caused a Kulhari blow on the head of the father of complainant with an intention to kill him. Having sustained the injuries, the father of complainant collapsed on the spot. Rest two accused persons who were wielding lathis also caused assaults. When the complainant while challenging the accused rushed to rescue the deceased, he was chased and assaulted by accused Hakim and Ghyasuddin. Hearing the hue and cry, Shobhai, Nanhu, Shamshad Ali, and a number of other people gathered on the spot. When they challenged the accused persons, they left the spot while giving threats to the complainant side. As the condition of the father of complainant was very serious, he was admitted for treatment. On a complaint submitted to the Police Station concerned, an FIR was lodged, and the case was taken for investigation. After completion of investigations, a charge sheet was filed and charges were drawn against the accused persons, under Sections 302/34 and 323/34 IPC. On the charges being read out to the accused persons, they denied the same and prayed for trial. During the course of trial, the prosecution placed as many as 11 documents on record which were exhibited as Ka-1 to Ka-11 apart from adducing oral evidence of six witnesses. Only two accused namely Hakim and Ghayasuddin were examined under Section 313 Cr.P.C. by the trial court, and the third only namely accused Rasheed died during the course of trial. Postmortem on the dead body of deceased Gangadeen was conducted by Dr. K.L.Shah, who noticed 9 injuries as given below; Injury No.1 - Swelling on left arm. Under this injury the bones of elbow joint and wrist joint, were fractured. Injury No.2 - Swelling on Right arm. All right arm bones were fractured. Injury No.3 - Lacerated wound 1/2'' x 1/2'' x bone deep in index finger. Injury No.4 - Swelling in left leg with fracture of both bones at middle one third. Injury No.5 - Lacerated wound 3x3 ? ''x bone deep in front side of left leg, 3 ?'' below left knee. Injury No.6 - Lacerated wound 1''x1/2'' x bone deep in front side of left leg, 2 ?'' below injury no.5. Injury No.7 - Lacerated wound 1'' x 3/4''x bone deep on right leg, 3 ? '' below right knee. Injury No.8 - Lacerated wound 1'' x ?'' x bone deep, 3 ?'' below injury no.7. Injury No.9 - Lacerated wound 1 ?'' x ?'' x bone deep 2 ?'' below injury no.8 and the bone was fractured.
(3.) IN the opinion of doctor, the cause of death was haemorrhage and shock as a result of ante-mortem injuries. On a careful appreciation of evidence on record, the learned Trial Judge passed the impugned judgment and order under challenge. We have heard learned counsel for parties, and perused the records. Learned counsel for the appellants submitted that the accused appellants had no intention to cause death of deceased, which is obvious from the nature of injuries caused on the person of deceased. The accused appellants were only armed with lathis and the injuries were caused on the non-vital parts of the body. The principal accused, namely Rasheed, who caused Kulhari injury on the head of deceased which impacted the deceased to collapse on the spot, died during the course of trial. It is also a submission of learned counsel that the deceased did not succumb to the injuries on the spot but he died during the course of treatment in the hospital. As per the statement of Autopsy Surgeon, Dr. K.C. Shah ( PW-6), the time gap between the injuries and death was about 6 to 12 hours. It is further submission of learned counsel for appellants that eye witnesses' accounts stand falsified in view of contradiction with the medical report. Learned counsel further submitted that solitary injured witness is the complainant himself, namely, Ram Anuj, son of the deceased. His injuries were found to be simple and during cross examination, Dr. P.K. Dwivedi (PW-3), had stated that these injuries could be self-suffered as well. On the other hand, learned AGA submitted that as per the inquest report as well as injuries report, an incised wound was noticed on the head of deceased. According to learned counsel, though that injury was attributed to accused Rasheed, who died during the course of trial, was inadvertently missed in the postmortem report by the Autopsy Surgeon. Learned AGA contended that even though the lathi injuries attributed to the accused/appellants herein were caused on the non-vital parts of the body of the deceased, but that fact itself would not exonerate them from the charge of murder for the allegation that the accused appellants had caused repeated lathi blows leading to fractures on different parts of body and as per the opinion of Doctor the cause of death was shock and hemorrhage resulting from the cumulative effect of all the injuries.;