B.S.Chauhan, J. - (1.) THIS instant appeal has been filed by the appellant, Shanker Dayal Tewari against the Judgment and order dated 13.12.1978 passed by the IVth Additional Sessions Judge, Ballia in Sessions trial No. A-208 of 1974 convicting the appellant under Section 302/452, I.P.C. and sentencing him to undergo rigorous impisonment for one year under Section 452, I.P.C. and imprisonment for life under Section 302, I.P.C. though directing that both the sentences would run concurrently.
(2.) THE case of the prosecution is that on 26.2.1974 at about 7 a.m. when deceased-informant, Sarju Tiwari was brushing his teeth, sitting outside his house, the appellant, Shanker Dayal Tiwari, armed with a spear reached there alongwith three other co-accused namely, Uma Shanker, Rama Shanker and Shri Kant Tiwari co-accused, Uma shankar and Shri Kant started beating the informant, Sarju Tiwari with kicks and fists. In order to save himself the informant rushed towards his house but he was chased by the appellant along with his co-accused and inside the room the appellant struck his spear on the chest of the complainant. Hearing the cries of the deceased, Sarju Tiwari, brother to the informant and several other persons namely, Ramji, Gauri Shanker, Shri Ram and Vishwanath Pandey also arrived there. THE appellant ran away after causing the said injury to the victim along with co-accused. THE victim placed his hands on the injury and fell down. Subh Narain, P.W. 9 who is the son of the informant also arrived and took dictation from the informant which was , read over by the said Subh Narain P.W. 9 to his father, the informant and thereafter the informant was taken to the police station by Rameshwar Tewari P.W. 6 and Subh Narain, P.W. 9. THE said written report was handed over to Shri Vikrama Yadav, Head Moharrir, P.W. 5 who had prepared the formal F.I.R. (Ext. Ka 2) and registered a case at 8.30 a.m. against the accused under Section 452/323/307, I.P.C. and the injured informant was sent to Primary Health Centre, Notwa, where he was medically examined by Dr. Ram Surat, P.W. 2. Later on, the informant was shifted to the District Hospital at Ballia and on 1.3.74 at 4 p.m. his dying declaration was recorded by Shri B. K. Singh, Magistrate, P.W. 8 (Ext. Ka 16/1). THE informant succumbed to the injury on 2.3.74 THE post-mortem examination was conducted by Dr. Sabir Hussain, P.W. 12 on 2.3.74 and the postmortem report is Ext. Ka 20. On receiving the post-mortem report by the Investigating officer, the case was converted into one under Section 302, I.P.C. Shri Matacharan Pandey investigated the case, recorded the statements of the witnesses under Section 161, Cr. P.C. and prepared a sketch map of the site. Shri Ram Palat Yadav completed the investigation and submitted the charge sheet (Ext. Ka 19) against the appellant and other co-accused. All the four accused denied their involvement in the offence and pleaded their innocence and further contended that they had falsely been implicated in the case because of the old enmity. In support of its case prosecution examined as many as twelve witnesses. Shri Mukhtar Ahmad, Constable, P.W. 1 is a formal witness who had deposited the sample of the plain and blood stained earth and the blood stained cloths in the malkhana. Ram Surat, P.W. 2 examined the complainant-deceased on 26.2.74 as he was Incharge of the Primary Health Centre, Bachuni, District Ballia Md. Ilyas Khan, P.W. 3, Constable is a formal witness, who had taken the dead body of the deceased for the post-mortem on 2.3.74. Bhagwat Tiwari, P.W. 4 is also a constable and a formal witness who had brought the sealed materials from the malkhana to hospital on 6.8.74. Vikrama Yadav, P.W. 5 was the Head Moharrir, who had taken the written report from Subh Narain, P.W. 9 and got the chik F.I.R. recorded at 8.30 a.m. Rameshwar Tewari, P.W. 6 is the only eye-witness in addition to the injured informant himself and his statement will be discussed at a later stage. Kailash Nath Pandey, P.W. 7, Sub-Inspector of Police proved the Panchayat nama of the deceased (Ext. Ka 9). B. K. Singh, P.W. 8 is the Magistrate, who recorded the dying declaration, of the informant (Ext. 16/1). and he has stated that he had recorded the dying declaration when the deceased-informant was in good physical condition. Subh Narain, P.W. 9 is the son of deceased- informant who deposed that the deceased had dictated to him the complaint which he wrote on the paper, read over to the deceased and took the deceased to the police station along with Rameshwar Tewari, P.W. 6, lodged the F.I.R. there and took the informant-deceased to the hospital. Shri Mata Charan Pandey, P.W. 10, who was posted in police station Bairya in February, 1974 recorded the statements of Rameshwar Tewari, P.W. 6 and Subh Narain, P.W. 9 under Section 161, Code of Criminal Procedure. Dr. T. N. Singh, P.W. 11 stated in the court that he had certified the mental and physical condition of the deceased-informant to be satisfactory when the dying declaration was recorded by the Magistrate, Shri B. K. Singh, P.W. 8 Dr. Sabir Husain, P.W. 12 conducted the post-mortem of the deceased and proved the post mortem report. He found the following anti mortem injury on the person of the deceased. "Punctured wound 1" x 1/4" x 1 1/4 on the left lateral side of chest (bit over 7th and 8th inter coasted space) direction was oblique. Bleeding was present. Margins were clean cut." Dr. opined that the death was caused due to syncope and due to shock and haemorrhage due to ante-mortem injury. The appellant and other co-accused were examined under Section 313, Cr. P.C. where all of them denied their involvement in the case and stated that they had falsely been implicated, though co-accused Shri Kant Tiwari and Uma Shanker have further stated that they had been supporters of Congress Party in U. P. Vidhan Sabha Elections of 1974 as the case of the prosecution had been that the informant deceased had supported the Jan Sangh candidate and he did not vote and support the Congress candidate as per the wishes of the accused. The appellant and the co-accused also examined as many as 7 defence witnesses namely, Prabhu Nath Singh, D.W. 1, Kashi Prasad, D.W. 2 Kamla Chaudhary, D.W. 3, Ram Ji Tewari, D.W. 4, Har Nandan Prasad, D.W. 5, Rama Shanker Srivastava, D.W. 6 and Harihar Pandey D.W. 7 just to prove that the accused had been supporting the Congress candidate.
(3.) LEARNED Additional Sessions Judge, Ballia after considering the case of the prosecution and the defence reached the following conclusions. I. The F.I.R. (Ext. Ka 2) dying declaration (Ext. Ka-16/1) and the statement of the deceased recorded under Section 161, Cr. P.C, if considered together, there was no material inconsistency in the same and in all the three documents it has specifically, been mentioned that the appellant has given a spear blow on the chest of deceased. The contradictions, if any, between the three documents were immaterial as being of trivial nature and of no merits. II. The Statement of Rameshwar Tewari, P.W. 6 was trustworthy and there was nothing in the statement which can be discarded or disbelieved. He was subjected to long cross-examination but nothing could be elicited from him, to dis credit his testimony or throw doubts on his veracity. III. The injury found on the person of the deceased was caused by the sharp edged weapon and it was sufficient to cause death in the ordinary course of nature. IV. Medical evidence too fully corroborate the version of the prosecution. V. Non production of the independent witness and other contradictions or shortcoming in the prosecution evidence are trivial in nature and do not adversely effect the prosecution case. The missing of the piece of cloth which had been tied around the wound of the deceased was also found to be irrelevant. VI. Only co-accused, Uma Shanker cast his vote in favour of the Congress candidates, though the other accused did not. VII. The motive of causing the injury to the informant was also there. However, there was only one injury on the person of the deceased, the participation of the other co-accused was found doubtful and they were acquitted giving the benefit of doubt and the appellant was convicted and sentenced as stated above.;