- (1.) AMAR Saran, J. This criminal appeal has been preferred by the appellants Phulai, Puranmasi and Lakhan, who have been convicted to life imprisonment under Section 304 read with Section 34 IPC and to six months R. I. Under Section 323 read with Section 34 IPC by a judgment and order of the IIIrd Additional District and Sessions Judge, Gorakhpur, dated 16-8-1982. The sentences were to run concurrently. As there is a report of the C. J. M. , Gorakhpur, dated 22-6-2007 that the appellant Lakhan has died about 10-12 years ago, about which Gram Pradhan has issued a certificate, hence the appeal preferred by the appellant Lakhan abates. One other accused person Vrishbhan had been acquitted by the trial Court by the aforesaid judgment. We have now only to consider the appeal preferred by the appellants Phulai and Puranmasi.
(2.) IN pursuance of an order dated 22-5-2007 passed by an earlier Division Bench, the appellant Puranmasi was produced in Court in custody, whereas Phulai had appeared in person. Puranmasi was sent back to jail and is presently in custody. An application was moved for releasing Puranmasi on bail, but on 27-7-2007 we decided to hear the appeal itself on merit and reserved our orders. The prosecution case was that in the month of Chait, the informant Khedan's brother Sahadeo was taking his bullocks in front of the house of appellant Phulai. Phulai and his family members had objected to the bullocks being taken from that route. Since then Phulai and his family members had become inimical to the family of the informant. On the date of incident, i. e. 11-5-1980, the appellants Phulai and Purnamasi, sons of Lakhan were taking their bullocks in front of the door of the informant Khedan's house. Khedan prevented them and Phulai had to go back with his bullocks. Because of this enmity at 3 p. m. on the same day Phulai, Purnamasi, Lakhan and Vrishbhan came armed with lathies and dandas and tried to forcibly take their bullocks in front of the house of Khedan. Again, the informant Khedan, his uncle (elder brother of father) Tribeni and brother Sahadeo prevented them from taking their bullocks by that route. In consequence a quarrel ensued. Then Phulai caught hold and knocked down Tribeni Purnamasi started assaulting Khedan with a lathi, and when Sahadeo tried to save Khedan and his elder uncle Tribeni, Phulai and Purnamasi started belabouring Sahadeo with lathies as well. At that time Lakhan and Vrishbhan were exhorting these accused to kill their opponents, so that the quarrel could be ended. On the alarm raised by Khedan, Phulchand, Manogi Harijan, Shayam Mohan, Tetar and Banhoo and other villagers arrived there, who witnessed the incident and intervened. When Sahadeo's condition deteriorated as a result of the assault, he was carried to the police station, but he died on the way. The report of this incident was subsequently lodged on 11-5-1980 at 7. 30 p. m. at P. S. Nichlaul, by the informant Khedan. The F. I. R. (Ext. Ka-1) and Chik report were prepared by P. W. 5 Head Moharrir Subhash Chandra Tripathi. Another Head Moharrir Indrajeet Mishra made the relevant entry in the G. D. (Ext. Ka-6) on the basis of the report at 7. 30 p. m. S. I. Bans Bahadur Yadav, P. W. 6 who was posted as Second Officer, at P. S. Nichlaul started investigating the case on the report. He recorded the statements of the informant and other witnesses. As it had become late, hence inquest was performed on the dead- body the next morning. After that the challan lash and other papers were prepared and the dead-body was sealed and thereafter the dead-body and papers were handed over to Constable Ram Karan Pandey and Constable Prem Nath Tiwari (P. W. 3) for forwarding them for post-mortem. After that the Investigating Officer S. I. Bansh Bahadur Yadav, P. W. 6 recorded the statements of other witnesses and proceeded to the place of incident. On the pointing out of the informant's father Vammad, he prepared the site plan (Ext. Ka-10 ). Thereafter, he arrested the accused Brishbhan and searched for the other accused. Two persons, informant Khedan and his uncle (elder brother of father) Tribeni, who were injured in this incident, were medically examined by P. W. 2 Dr. S. Pal Singh at P. H. C. Nichlaul. Khedan was medically examined on 12-5-1980 at 9. 15 a. m. He had been brought by Constable Kamla Kant Pandey. The Doctor found a contusion 4 cm x 2 cm on the back of right fore-arm, 8 cm below the elbow and a contusion 3 cm x 2 cm on the right shoulder. Both the injuries were simple and caused by blunt object and the duration of injury was about one day. According to the doctor, they could have been caused on 11-5-1980. The injury report was marked as Ext. Ka-2. On 14-5-1980 at 1. 30 p. m. he also examined Tribeni who was aged about 65 years. He found an abrasion 3 cm x 1/4 cm on the front of left leg 10 cm below the knee and complaints of pain on the back of chest. The duration of the injuries was about three days. The injuries were simple and caused by friction with a blunt object. They could have been caused at 3 p. m. on 11-5-1980. The injury report was marked as Ext. Ka-3. He admitted in his cross-examination that both the injuries of Khedan could have been caused by falling on some hard substance on the right side. Even Tribeni could have suffered some injuries by falling on some hard substance. He conceded that there could be six hours difference on each side from the time mentioned by him in his examination. The post-mortem (Ext. Ka-4) was conducted on the deceased Sahadeo on 13-5-1980 at 9 a. m. at P. H. C. Maharajganj by Dr. A. P. Singh, P. W. 4. The deceased was about 20 years in age. The time of death was 1-1/2 days prior to the medical examination. He was young and well built. His eyes were closed, the cornea was soft and milky. There was blood discharge from both nostrils and mouth, rigor mortis was present in the hands and legs. The deceased had the following ante-mortem injuries : (1) Lacerated wound 3" x 1/2" bone deep on left side head, 2-1/2" above the left eyebrow. (2) Contusions with swelling 2-1/2" x 2" on right side head, 1" above the right ear.
(3.) ON internal examination, the frontal bone on the left side of the head and parietal bone on the right side of the head below injuries No. 1 and 2 were found fractured. There was blood on the membranes. There was blood below both the injuries. Clotted blood was present in the brain tissues below the injuries. Both chambers of the heart were empty. Small intestine and stomach was empty. There was faecal matters in the large intestine. The bladder was empty. The death could have been caused as a result of shock and haemorrhage due to above injuries, which were sufficient in the ordinary course of nature to cause death. The injuries could have been caused due to lathies. The deceased could have died on 11-5-1980 at about 7 p. m. However, he admitted in his cross-examination that Sahadeo's injuries could have been caused in a scuffle (pataka pataki) by falling twice on the hard ground. There could have been variance of six hours in the estimate of time and deceased could have died on 11- 5- 1980 at about 3 p. m. ON 12-6-1980 the I. O. P. W. 6 received the post-mortem report and on 13-6-1980 he learnt that the other accused had surrendered in Court. He recorded their statements in jail after obtaining permission from the Judicial Magistrate, Maharajganj and after investigation, he submitted the charge- sheet on 19-6-1980 (Ext. Ka-11 ). The charge in this case was framed under Section 304 read with Section 34 IPC for culpable homicide not amounting to murder for causing the death of the deceased Sahadeo and also under Section 323 read with Section 34 IPC also for causing injuries to Khedan and Tribeni.;