G. P. Mathur, J. - (1.) CRIMINAL Appeal No. 3267 of 1979 has been filed by Kinno alias Rajendra and Shanker alias Shankaria against the Judgment and order dated 5.12.1979 of 3rd Additional Sessions Judge, Mathura in S. T. No. 37 of 1979 of convicting the former under Section 304, Part 1 J.P.C. and sentencing him to seven years R. I. and the latter under Section 304 Part II read with Sections 34 and 323, I.P.C. and sentencing him to four years R. I. and one year respectively under the two counts. Two other persons namely Har Swarup and Hardan were also tried alongwith the appellants and all of them were charged under Sections 302, 302/34, 394 and 323, I.P.C, but they were acquitted. The CRIMINAL Revision No. 2059 of 1979 has been filed by Gopal Prasad (complainant) against the acquittal of the accused.
(2.) THE case of the prosecution as set forth in the F.I.R. in brief, is that deceased Prem Pal was coming alongwith his mother Smt. Katori to his village Wahadin and when he arrived near the well, he saw the mare of Kinno accused grazing in his field. When he was trying to drive out the mare, all the four accused arrived and abused him and said why he had driven out the mare. THEreafter, Kinno armed with a Pharsa and the remaining armed with lathis assaulted him. Smt. Katori raised an alarm, on which Har Swarup-accused removed some ornaments which she was wearing. THE complainant Gopal Prasad also rushed to the spot after hearing the alarm and Shanker also assaulted him with Lathi. THE injured were taken to the district Hospital and thereafter a written first information report of the incident was lodged by Gopal at 11.25 p.m. on 16.7.1978 at P. S. Kotwali which is (six) kms. from the place of occurrence. P.W. 8 Dr. C. P. Srivastava, Medical Officer, District Hospital, Mathura examined three injured on the side of the prosecution from 7.15 p.m. onwards on 16.7.1978 and found the following injuries on their person: 1. Prem Pal :- (1) Incised wound 10 1/2 cm x 2 cm x brain deep on left side of scalp 6 cm above from the left ear. Bleeding profusely Adv. X-ray. (2) Contusion in an area of 6 1/2 cm x 4 cm over left side lower portion of chest. 2 Gopal Prasad :- (1) Traumatic swelling 6 cm x 2 cm outside of left forearm joint below elbow joint. (2) Lacerated wound 2 cm x 1/2 cm scalp deep right side of scalp near bore head 7 cm above from the right ear. (3) Lacerated wound 1 1/2cm X 1/2 cm x scalp deep left side of scalp 6 cm above from the left ear. (4) Contused swelling 7 cm x 21.2 cm obliquily on the back of waist line. 3. Smt. Katori: (1) Traumatic swelling 5 cm x 5 cm on back of right forearm of middle 1 3/rd. (2) Traumatic swelling 3 cm x 1 1/2 cm on muscle of right middle and ring fingers. Prem Pal was taken to Agra as his condition was serious where he succumbed to his injuries at 8.30 a.m. on 21.7.1978. P.W. 6 Dr. D. C. Saxena conducted post mortem on his body on the same day at 3.15 p.m. and found two stitched wounds on his body. On internal examination he found stitched wound on left side of scapula left parietal bone Just above (temporal parietal suture. Lessing of occipite parietal suture present and lacerated and congested below left parietal temporal bones. Clotted blood underneath of above present. Brain substance also lacerated on the region congested present. In the opinion of the doctor, the death had occurred due to cerebral haemorrhage caused as a result of head injury. Kumhar (father of Har Swarup-aaccused) also lodged the F.I.R. of the incident at 7.45 p.m. on 16.7.1978 at P. S. Surir which has been proved by D.W. 3 Dwarika Prasad Constable. According to the defence version the accused also received injuries. The injuries of Shanker Lal, Kumhar Singh were examined from 9.35 p.m. onwards on 16.7.1978 and that of Smt. Sarjo at 12.05 p.m. on 18.7.1978 by D.W. 2 Dr. M. C. Mittal. M. O. Incharge P. M. C. Med and he found the following injuries on their person : 1. Shanker Lal: (1) L. W. of 4.5 cm. x bone deep over mustoid process of left ear (curved) Bleeding started on as nipulation (under observation). (2) Bruise of 6 x 2 cm on the outer aspect of left arm in middle. (3) Incised wound of 5.3 cm x muscles deep oblique in direction from inner to outer on the back about in middle. Bleeding much Pt. Semi conscious B. P. 98/60 mps. 2 Kumhar: (1) Abrasion 4x1 cm on the right shoulder joint on front side. (2) Llnner abrasion of 5 x .5 on the back of leg on part aspect of lower third. (3) Traumatic swelling 8x8 cm. on the left ankle joint on the outer aspect. Inj. under observation. Adv. X-ray. (4) Cl. severe body pain, giddiness. a Smt. Surja. Bruise of 10 x 4 cm on the left groinn area to outer side of hip front colour changes started (violet- pinkilers). D.W. 1 Dr. J. P. Garg, M. O., P. M. C, Med, examined Kinno alias Rajendra at 11.00 a.m. on 17.7.1978 and found the following injuries on his person ; Kinno alias Rajendra: (1) Contusion 2.0 cm. x 3.0 cm. 5 cm. below right elbow over back of rt arm, simple blunt object. (2) Contusion 3.0 cm. x 1.8 cm. over front of Rt. knee simple, blunt object. The investigation of the case was commenced by C.W. 1 K. M. Upadhyaya S. O. of P. S. Surir, but on the complaint of first informant-Gopal, the S. P. Mathura by his order dated 30.7.78, directed that the investigation be done by P.W. 11 Shyam Singh Tomar. S.O.P.S. Brindaban. After completing the investigation, he submitted charge sheet against the accused, as well as in the cross case. The accused were committed to the court of Sessions where they were charged under Sections 302, 302/34, 323 and 394,I.P.C.
(3.) THE accused in their statement under Section 313, Cr. P.C. denied the prosecution case and stated that the incident did not take place on account of grazing by mere but Marpit took place in the field of Kumhar Singh over the cattle and Gopal had assaulted them. THEy examined two doctors and Dwarika Prasad Head Constable as defence witnesses. P.W. 10 Suresh Chandra Tiwari, Naib Tahsildar recorded the dying declaration of Prem Pal at 10.30 p.m. on 16.7.1078 in the district hospital. In his dying declaration, Prem Pal stated that he was grazing buffalo In the fields when Klnno and Shanker accused assaulted him with Pharsa and he fell down. Thereafter, Kinno again assaulted him with a Pharsa. Later on he stated that Shanker had caught hold of him by waist and Kinno assaulted by Pharsa.;