S.C.Jain - (1.) APPELLANT, Autar, has filed this appeal against Judgment and order dated 24.3.1979 passed by Sri S. S. Srivastava, the then Vllth Addl. Sessions Judge, Gorakhpur in Sessions Trial No. 233 of 1977 convicting the appellant under Sections 323 and 304, Part I, I.P.C. and sentencing him to undergo rigorous imprisonment for one year and seven years respectively. The sentences mentioned above were also made to run concurrently.
(2.) IN brief, the prosecution version as is apparent from the record is that the appellant and the deceased belong to the same village Mahuawa police station Pharenda, district Gorakhpur. On 6.5 1974 at about noon Smt. Murati and her son. Ram Charan were sitting outside of the house and Murati's husband, Bhullan, deceased, went to take bath on the well situate near his house. IN the meantime, appellant's wife, Smt. Koela came to take water from the well to which Bhullan objected. This led to a quarrel between Autar, husband of Smt. Koela, and Bhullan aforesaid and during the said quarrel the appellant, Autar caused injuries to Bhullan by Akhain, as a result of which Bhullan received injuries on the skull and right temporal region. He was taken to hospital Pharenda. A report of the occurrence was lodged on the same day at the police station at 7.25 p.m. same day, t.e. 6.5.1974. A case was registered for an offence under Section 308. I.P.C. but subsequently on the death of Bhullan the case was converted into Section 304, I.P.C. During post-mortem conducted on the dead-body of Bhullan following injuries were found : 1. Lacerated wound 2-1/2" x 1/4" x scalp deep, vertical on top of skull anterior end 4-1/2" from the bridge of nose. 2 Contused swelling 5" x 6" on right temporal region. On external examination haemotoma was found under the scalp. Long sub-scalp haemotoma was found present in the right temporal region and the vertical linear fracture was found on top of right temporal region involving the right temporal bone, right and left parietal bone and frontal bone. Brain was deeply conjested on right side and sub-dural haemotoma was present on the right temporal parietal region. In the opinion of the doctor death was caused due to coma as a result of head injuries. The prosecution examined nine witnesses and on the basis of the statements of these witnesses including the medical report the trial court found the appellant, Autar guilty for the offence punishable under Section 304 (Part I), I.P.C. for the death of Bhullan. He was also found guilty under Section 323, I.P.C. for causing injuries to Smt. Murati, wife of Bhullan and as such he was convicted and sentenced as mentioned above.
(3.) THE learned counsel for the appellant has challenged the judgment and order of the trial court on various grounds. He pointed out minor contradictions in the statements of the witnesses. According to him the name of Chowkidar who took the injured has been wrongly mentioned at various places. Whether he was Kashi or Malloo was not clear in the mind of complainant, Smt. Murati. According to him the presence of Smt. Murati and her son Ram Charan on the scene of occurrence is doubtful. According to the learned counsel the appellant has been falsely implicated in this case on account of enmity. The learned counsel for the appellant also submitted that it is very unsafe to base conviction of the appellant on the testimony of Murati, widow of Bhullan, Ram Charan son of Bhullan as they are relatives and interested witnesses. Other material witnesses have been kept back and have not been examined by the prosecution. In the village there are several other persons who could have seen the occurrence but no other witness has come forward to depose anything in support of the prosecution case. He drew my attention towards the statements of Smt. Murati, P.W. 2, and Ram Charan P.W. 3, wherein they contradicted each other on material point. P.W. 2 has stated that Malloo, Chowkidar, had come to Pharenda alongwith the deceased. She clearly stated that Kashi, Chowkidar, had not come. According to the Investigating Officer and the post-mortem report Kashi, Chowkidar, had come to Pharenda with the deceased. This contradiction is fatal to the prosecution case. He also pointed out that Murati, P.W. 2, has deposed in her statement that Malloo and Kashi live in one house. This contradiction in the name of Chowkidar goes to the root of the matter. He also pointed out that P.W. 2, Murati, deposed in her statement that the doctor told that the condition of her husband was serious and, therefore, he was taken to district hospital Gorakhpur. On account of these contradictions the learned counsel stated that prosecution has failed to prove its case beyond doubt. He also argued that when Murati received injuries while saving her husband her clothes must have become blood stained, but her blood stained clothes have not been produced. This is also fatal which goes against the prosecution case.;