- (1.) THIS appeal against the judgment of conviction and order of sentence passed in Sessions Trial No.341 of 1981 on 24.7.1982 by the learned First Additional Sessions Judge, Varanasi was initially preferred by three appellants, namely, Munshi, Raja Ram and Mohan. Appellant Mohan who was the father of the remaining two appellants Munshi and Raja Ram died during the pendency of the appeal and as may appear from court's order dated 29.3.2007 his appeal was ordered to abate on account of his death, thus, the appeal surviving only on behalf of appellants Munshi and Raja Ram.
(2.) THE appellants had been convicted under Sections 302/34 and 323/34 I.P.C. and each of them had been directed to suffer rigorous imprisonment for life as also rigorous imprisonment for one year on the respective two counts. Initially, there was a non-cognizable report of committing offences under Sections 323, 504 and 506 I.P.C. which report was registered on 10.9.1980 at 12:30 p.m. in respect of an occurrence of the same date having taken place at 10:00 a.m. It was stated that the three convicted accused including the deceased appellant Mohan had assaulted the uncle of the informant, namely, Sitaram with lathi and when he intervened he was also assaulted with the same weapon. What we find further is that there was a report lodged by appellant Munshi at 11:30 a.m. of the same nature against deceased Sita Ram, Ram Nandan (P.W.4) and Ram Dhani (P.W.1) the informant of the present case. It was stated in the cross case, which is the defence of the appellants also, that discussions were being going on in the joint family of which the two parties were members regarding the partition of the joint family property and during one of such discussions, the accused persons lost temper and started abusing and when they were forebade to do that they dealt lathi and danda blows as a result of which appellant Munshi, his mother Mahadei, father deceased, appellant Mohan as also the other appellant Raja Ram got injured. The accused persons left threatening that henceforth if appellants had ever raised the issue of partition, they would be killed.
(3.) THERE is no dispute in it that the cases were registered as non-cognizable report initially. But what we find is that deceased Sita Ram who was hospitalized in Sir Sunder Lal Hospital, Varanasi died on the sixth day of the occurrence, i.e., on 5.9.1980 at 11:00 p.m. due to injuries which were inflicted upon him allegedly by the appellants. Before succumbing to his injuries deceased Sita Ram had been examined by Dr. S.L. Yadav P.W.6 who found the following injuries on the person of the deceased: 1.Lacerated wound 3-1/2cm x 1/2cm x skull deep 8 cm above from left ear on left side of head. 2.Laceration wound 2cm x 1/4cm x skin deep on left side of head 11cm above from left eyebrow. 3.Laceration wound 1-1/2cm x ¼cm x skin deep on right side of head 9 cm above from right ear. 4.Swelling 7cm x 4cm on left side of head, just above the left eye brow. 5.Contusion 3-1/2cm x 1-1/2 cm on upper lid of left eye. 6.Contusion 22cm x 2-2/2 cm (back) both sides 11cm below 7th cervical vertebrae. 7.Contusion 6cm x 2cm on the left side of the back 1-1/2cm oblique from injury no.6. 8.Contusion 10cm x 2-1/2cm on the back left side 10cm below from injury no.7. 9.Contusion 9cm x 2-1/2cm on the left back 5cm below from injury no.8. 10.Laceration 3cm x 1/2 cm x skin deep on the left side of hand in between thumb and index finger. 11.Abrasion 1cm x 1/2cm on the left hand on root of thumb on dorsal surface. P.W.6 kept his opinion reserved as he had put the deceased Sita Ram under observation as regards injuries no.1 to 5 and advised X-ray in respect of those injuries, but was clearly expressing his opinion that injuries no.6 to 11 were simple in nature and all injuries were caused by hard and blunt substance. Subsequently, it appears that on the death of the deceased Sita Ram the postmortem examination was held by Dr. J.K. Singh, P.W.9 and he had found only four injuries on the dead body which were as under: (1) Stitched wound 2-1/2cm left side forehead 10cms. above left eyebrow. (2) Stitched wound 3cm on left side head 8cm away from left ear. (3) Healed wound 3cm x 3/4cm left elbow joint. (4) Multiple contusion 5cm x 1/2cm on left buttock. (5) Stitched wound of 3-1/2cm on left thumb. (6) Fracture of left frontal bone and left parietal bone. As may appear from the evidence of P.W.9 as also the original report (Ex. Ka-16) P.W.9 had found that the frontal bone and left parietal bone of the deceased were fractured and further that while the other wounds were simple in nature, they were sufficient to cause death. P.W.9 further stated as may appear from his evidence that on account of the injuries the man had gone into coma and had survived for 5-6 days as may be in such cases. After the death of Sita Ram, the case was converted into one under Section 302 I.P.C. and the investigation was carried out. ;