RAM KRISHNA GAUTAM,J. - (1.) This appeal under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') has been filed by Niyamullah, Mahendra, Sahendar, Wakeel, Naushad, Kalimullah, Anaruddin and Enmul Huda @ Dugru against judgment of conviction and sentence made therein in Sessions Trial No. 163 of 2004 (State Vs. Niyamullah and others), arising out of Case Crime No. 151 of 2004, under Sections 147, 304/149, 504, 506 I.P.C., Police Station Kolhuee, District Maharajganj with connected Sessions Trial No. 31 of 2005 (State Vs. Anaruddin) and Sessions Trial No. 92 of 2005 (State Vs. Enmul Huda @ Dugru) by Additional Sessions Judge, Court No. 1, Maharajganj, whereby each of the convicts-appellants were convicted for offences punishable under Section 304 Part-I read with 149, 147, 504, 506 I.P.C. and they have been sentenced with ten years rigorous imprisonment and fine of Rs.10,000/- each under Section 304 Part-I read with 149 I.P.C., one year rigorous imprisonment under Section 147 I.P.C., six months rigorous imprisonment under Section 504 I.P.C. and six months rigorous imprisonment under Section 506 I.P.C. In case of default in making fine, each of the convicts-appellants were to undergo one year rigorous imprisonment. There was direction for concurrent running of sentences and adjournment of previous imprisonment, if any.
(2.) Memo of appeal contends that learned trial court failed to appreciate facts and law placed on record. The convicts-appellants No. 5 and 8 were not named in first information report, which was lodged by first informant himself, wherein PW-2 Izhar Ali was shown to be the eyewitness, accompanying the first informant, but subsequently, they were added. It itself shows that both these witnesses of fact were not with clean hands. Rather, they have falsely implicated convicts-appellants due to their personal enmity. PW-3 Nandlal and PW-4 Jumrat Ali were also not shown to be the eyewitness account in first information report, but subsequently introduced as eyewitness account. There was no intention to cause death of deceased. Rather, the only said intention was, though not admitted, for offence punishable under Section 325 I.P.C. Hence, the conviction of appellants under Section 304 Part-I I.P.C. was unsustainable and was against the evidence on record. X-ray report of deceased has not not been proved by the prosecution or any witness. On the score of this too, finding was erroneous. A general allegations against appellants, except appellant nos. 5 and 8, was levelled with no disclosure as to who had caused the stone injury on the lower back of deceased. It seems that the said injury, which could be a reason for the death of deceased, situated on the left lower back, was due to falling down from a height into a pit hole, in which he got his limbs and lower back injured, but subsequently due to previous enmity, this false implication occurred. Appellants are in jail since 20.12.2013. The conviction and sentence of appellants is contrary to law, on the point of sentencing too. The same is not proportionate to offence. Rather, it is too severe. Hence, this appeal is liable to be allowed. Accordingly, this appeal be allowed and judgment of conviction and sentence made therein be set aside. Further, appellants be acquitted from the charges levelled against them.
(3.) From the very perusal of record of trial court and impugned judgment, it is apparent that first information report (Ext.Ka-3) was got lodged by way of presenting a written report, signed by informant Mahboob Alam at Police Station Kolhuee, District Maharajganj on 25.09.2004 at 21.50 P.M. against Anaruddin, Kalimullah, Niyamullah, Wakeel, Mahendra and Sahendar, all R/o Saakinaan Kamharia Bujurg, Tola Bargadhia, P.S. Kolhuee, Maharajganj, for offences punishable under Sections 147, 308, 325 I.P.C. for an occurrence, which took place at about 4 P.M. on the same day i.e. 25.09.2004, within the area of village Kamharia Bujurg, with this contention that informant Mahboob Ali along with his cousin Izhar Ali, was on his way to their home from 'Eksadawa Chauraha' on 25.09.2004 and when about 4 P.M. they reached near wooden bridge, they found that Anaruddin, S/o Ali Hasan, Kalimullah, S/o Jafar, Niyamullah, S/o Jafar, Wakeel, S/o Furd, Mahendra and Sahendar, S/o Chinni Lal, were beating informant's brother Mashoor Alam, by lathi, who was lying on ground and shouting for help. Upon this noise, he and his cousin along with Yogender, S/o Sundar rushed on spot. They intended to save injured, but accused persons, while seeing those persons, reaching on spot, ran towards river. His brother was unconscious, having fracture over both upper and lower limbs. This assault was owing to previous enmity. Injured was taken to Bankati, Farenda Hospital from where doctor opined for taking to Sadar Hospital, Gorakhpur, where he was got admitted and this information was submitted for taking legal recourse. Injured was medically examined at District Hospital, Gorakhpur and medico legal report (Ext.Ka-16) was got prepared by Dr. Hiralal of District Hospital, Gorakhpur. Injured was having following injuries:- 1. Traumatic swelling 9cm x all around on upper part of right forearm just below elbow joint. K.U.O. Advised X-ray right forearm. 2. Traumatic swelling on upper part of left forearm 9cm x all around just below left elbow. K.U.D. Advised X-ray left forearm. 3. Lacerated wound 1cm x 0.5cm x muscle deep on anterior aspect of right lower leg just below the right knee joint. 4. Lacerated wound 3cm x 2cm x bone deep traumatic swelling all around the leg, 5cm above the right ankle joint. K.U.O. Advised X-ray right lower leg. 5. Lacerated wound 1cm x 0.5cm on front of left lower leg, 7cm below the left knee joint. 6. Lacerated wound 2cm x 1cm x bone deep in front of left lower leg traumatic swelling all around leg. K.U.O. Advised X-ray left lower leg. 7. Abrasion 2cm x 2cm on lateral aspect of left lower leg. 7cm above the left ankle joint. Owing to above injuries, while being under treatment, injured succumbed and this information was transmitted at above police station, whereupon inquest proceeding was got conduced by Investigating Officer at District Hospital, Gorakhpur on 26.09.2004 at 12.30 P.M., wherein witness of inquest opined death owing to above anti mortem injuries, for which he was under treatment. Accordingly, documents, connected with inquest proceeding i.e. letter to C.M.O., letter to Range Inspector, Police Form No. 13, Photo Dead Body, Specimen Seal, by which this dead body was sealed after wrapping in a cloth, were got prepared. This dead body along with those documents were sent for its autopsy examination, which was got conducted at mortuary of District Hospital, Gorakhpur on 26.09.2004 by Dr. R.P. Prasad, wherein autopsy examination report (Ext. Ka-4) was got prepared. The anti mortem injuries, found on the person of deceased, were as follows:- 1 Contused traumatic swelling 10cm x 5cm deformity on right upper arm on cutting underlying bone fractured. 2. Contused traumatic swelling 12cm x 6cm deformity on left forearm on cutting underneath both bone fractured. 3. Lacerated wound 1cm x 1cm x muscle deep on the back of left upper arm on lower end. 4. Stitched wound 6cm long having two stitches on the left lower leg outer aspect on cutting wound is muscle deep. 5. Lacerated wound 3cm x 1cm x muscle deep on outer aspect of left leg. 6. Stitched wound 4 cm long having 1 stitched on upper part of medial aspect leg on cutting wound is bone deep underlying bone fractured. 7. Stitched wound 6cm long having stitches on the right lower leg, wound is deep, on cutting underlying bone fractured. 8. Contusion 15 x 2cm on this left lower back. ;