S.K.Agarwal, K.K.Misra - (1.) -Heard learned counsel for the appellants and learned A.G.A.
(2.) BOTH these criminal appeals arise from a judgment passed by the then Ist Additional District Judge, Basti dated 30.6.1984. By the said order and judgment, the appellants were convicted and sentenced to undergo under Section 147, I.P.C. 6 months R.I., under Section 342/149, I.P.C. 6 months R.I., under Section 325/149, I.P.C. one year's R.I. and under Section 302/149, I.P.C. life imprisonment. Criminal Appeal No. 1770 of 1984 was filed by Ashwani Kumar Pandey. Hari Om Srivastava, Arun Kumar Tiwari and Sri Prakash Bhar and Criminal Appeal No. 1771 was filed by Raj Kumar Pandey alone. BOTH these appeals are disposed of by a common judgment. Brief facts of the case are that on 26.12.1980, plinth was got dug during the day hours by the labour of Sahdev Dhar Dwivedi, father of the informant. At about 5.30 p.m. when they went there to pay the day's wages to the labour, they found that Ashwani Kumar Pandey and his son Raj Kumar Pandey, Arun Kumar Tiwari, Hari Om Prakash and one of the servant of Ashwani Kumar were filling their plinth by pushing back mud which was stacked beside the dug-up plinth. When Sahdev Dhar Dwivedi asked them to desist from doing so, Ashwani Kumar Pandey exhorted his companions "Maaro Salo ko and inter them in the plinth". On this exhortation, all the accused started belaboring his father with lathis. A lathi blow by Raj Kumar struck his father on his head. As a result of this injury, he fell down. When the informant Raghvendra Dhar Dwivedi, P.W. 1, rushed to save him, he too was assaulted. Their alarm attracted Nanhau, Phoolram and Ram Charan and other labour to the site of occurrence. They saved his father from further assault. The assailants thereafter took injured Sahdev Dhar Dwivedi into their custody and brought him to police station. On their way to police station also, they assaulted him. The F.I.R. of the incident was lodged by Raghvendra Dhar Dwivedi, P.W. 1 at P. S. Kotwali, district Basti on 26.12.1980 at about 8.30 p.m. i.e., 3 hours after the occurrence. The police station is placed at 4 kms. from the place of occurrence. A case under Sections 147/323/307/342, I.P.C. was registered at the above said police station. The investigation was entrusted to Raj Dev Rai, P.W. 9. He took up the investigation and on its completion, submitted a charge-sheet which had ultimately resulted into conviction of these appellants as stated above. Injured Sahdev Dhar Dwivedi was medically examined by Dr. G. P. Shukla, P.W. 5 on 26.12.1980 at 7.05 p.m. He found following injuries on his person : (1) Lacerated wound 8 cm. x 1 cm. x bone deep on left side head 8 cm. above left ear, bleeding present. (2) Abrasion 2 cm. x 0.5 cm. on shin right leg 14 cm. below right knee joint. (3) Abrasion 2 cm. x 0.5 cm. shin of right leg 11 cm. below right ankle joint. According to him, injury No. 1 was kept under observation. It was caused by some hard blunt object. Advise for X-ray. A. P. was made. Rest of the injuries were simple. The duration of the injuries was fresh.
(3.) RAGHVENDRA Dhar Dwivedi was examined at 10.30 p.m. by Dr. P. K. Misra on the same day. This doctor was not examined in the trial court. His medical examination report is Ex. Ka-20 on record. According to the medical officer, these injuries were simple. Injury Nos. 1 and 5 was caused by some hard blunt object whereas injury Nos. 2, 3 and 4 caused due to friction. No advise for any X-ray examination of injury No. 5, i.e., contusion was made by the doctor. However, the injured, according to him, got himself X-rayed by a private radiologist Dr. R. N. Chaudhary, P.W. 11 after 2 days of the first medical examination. Dr. R. N. Chaudhary found lowest end of fibula fractured. It is Ex. Ka-19 on the record. He had prepared the report on its basis. The deceased, Sahdev Dhar Dwivedi, breathed his last in the District Hospital, Basti at 5.20 a.m. on 28.12.1980. His post-mortem was conducted by P.W. 6 Dr. S. J. Tekriwal on the same day at 2.30 p.m. Following injuries were noted by the doctor : (1) Stitched lacerated wound (5 stitches) : 8 cm. x 1 cm. x bone deep, scalp, left side, 8 cm. above ear ; 4 cm. from midline oblique. (2) Contusion 8 cm. x 6 cm. top of scalp, right side, just lateral to midline, oblique. (3) Contusion 6 cm. x 4 cm. around medial part of right eye. (4) Abraded contusion 5 cm. x 1.5 cm. on neck right side 3 cm. above clavicle, oblique. (5) Contusion 10 cm. x 4 cm. on left forearm, right hand. (6) Abrasion 2 cm. x 0.5 cm. right leg front, 14 cm. below knee joint. (7) Abrasion 2 cm. x 0.5 cm. right leg front, 4 cm. below injury No. 6. (8) Contusion 9 cm. x 4 cm. chest left side, oblique, crossing nipple. Injury No. 1 was also noted in the medical examination report (Ex. Ka-20). Injury Nos. 6 and 7 were also there in the medical examination report. Rest of the injury Nos. 2, 3, 4, 5 and 8 were not noted by Dr. G. P. Shukla, P.W. 5. They were not there in his medical examination report. In the internal examination, scalp has ecchymosis in an area of 25 cm. x 18 cm., readiating multiple fracture of left parietal, temporal and frontal bone in an area of 12 cm. x 10 cm. under injury No. 1 and depressed fracture left temporal bone 6 cm. x 3 cm. under injury No. 1 was also detected. This injury apparently was the cause of death. The post-mortem examination report is Ex. Ka-4.;