- (1.) CHALLENGE in this appeal is to the judgment and order dated 28.11.2003 passed by XI Addl. District & Sessions Judge, Varanasi in S.T. No. 224 of 2002, whereby the appellant has been convicted for the offence punishable u/s 308 and 323 IPC. He has been sentenced to undergo three years R.I. with a fine of Rs. 5000/ - u/s 308 IPC and six months RI under section 323 IPC and in default of payment of fine the appellant was directed to undergo further RI for six months.
(2.) PROSECUTION version as unfolded during trial is as follows: that on 8.11.1997 at about 3.15 p.m. Sikander Patel son of Ramji Patel resident of Bhogwarey, P.S. Mughalsarai, District Chandauli submitted a written report in P.S. Mughalsarai stating that on 3.11.1997 his father had gone to Mughalsarai for receiving pension and when he did not return back till 7.00 a.m. of 4.11.1997 he made search and found his father in injured condition lying in a paddy field. It was further stated that the complainant has admitted his father in Government Hospital, Mughalsarai after getting him medically examined. His father is still unconscious and not speaking. On enquiry about the incident he was told by co -villagers Shyam Lal and Buddhu that his father has been assaulted by Phekoo son of Ganga and Bachau rickshaw wala. On the basis of this report case at crime no. 351 of 1997 u/s 308 IPC was registered at P.S. Mughalsarai, investigation whereof was entrusted to S.I. Jitendra Upadhyay. Ere that injured was medically examined by Dr. U.S. Yadav on 4.11.1997 at 8.00 a.m. in the State Allopathic Hospital, Mughalsarai, Varanasi and he found the following injuries on his person: 1. Abraded contusion 6 cm x 2 cm, 6 cm above the Lt ear. 2. T. swelling 5 cm x 3 cm just above the Lt eye brow. 3. Abrasion 1 cm x 0.5 cm, 1.5 cm above the Rt eye brow. 4. T, swelling at the nose. Laceration with blood clot seen in the left nostril. 5. Multiple lacerated wound at the tip of tongue, swelling of tongue present. 6. Lacerated wound size 1 cm x 1 cm at Rt side of upper lip. 7. Contusion around the neck above the adam's apple. Mark of rope seen. 8. Contusion size 6 cm x 4 cm at the angle of Rt. Mandible. 9. Contusion 6 cm x 1.5 cm at medial and front to the Lt shoulder Jt. 10. Contusion 4 cm x 2 cm just above the Lt wrist jt. 11. Abraded contusion 7 cm x 3, 4 cm cm below the Rt. nipple. 12. Multiple abraded contusion 7 cm x 3 cm, 8 cm below the Lt nipple. 13. Abrasion 3 cm x 2 cm at L3 level. 14. Abrasion 1 cm x 1 cm at the Rt patilla. The doctor has noted that the patient was conscious, responding stimuli, but was not speaking. In the opinion of the doctor all the injuries except injury no. 7 and swelling of oropharynx is grievous in nature and were caused by friction, blunt object and strangulation. The injuries were half day old. The I.O. recorded the statement of the complainant, witnesses Shyam Lal and Buddhu and on their pointing out prepared site plan. On 15.11.1997 he interrogated the injured and prepared memo after taking into possession his four blood stained apparels. The investigation culminated into charge sheet against the accused/appellant.
(3.) AFTER committal of the case to the Court of Session charges for the offence punishable u/s 308 and 323 IPC were framed against the accused/appellant who abjured his guilt and claimed trial. In order to prove its case the prosecution has examined complainant Sikandar Patel PW -1, injured Ramji Patel PW -2, S.I. Havaldar Singh PW -3, eye witness Shyam Lal PW -4, Dr. U.S. Yadav PW -5, Dr. B.B. Singh PW -6 and I.O. Jitendra Upadhyay PW -7.;