- (1.) THE appellant was con victed under Section 302/34, I. P. C. and was sentenced to life imprisonment by a judgment and order dated 30-10-81 recorded by the Sessions Judge, Varanasi, in ST. No. 308 of 1981. After preferring the appeal, he was directed to be released on bail.
(2.) AN FIR was lodged by one Smt. Indrawati wife of Chandra Bhushan Upadhya of Kamalpur, P. S. Thanapur, District Chandauli on 7-5-1981 at 2. 35 p. m. for an incident that had taken place on 4-5-1981 at 9 a. m. in village Kamalpur. In the FIR, two brothers Prem Nath Upadhya and Deo Sharan Upadhya were named as assailants. This Prem Nath died prior to the aforementioned Sessions trial and only Deo Sharan Upadhya (present appellant) stood trial. It was stated in the FIR that the two named accused persons were of the same family to which Chandra Bhushan Upadhya belonged. These two persons came to the house of the complainant with ballam and gandasa and started abusing and threatening. Prem Nath assaulted Chandra Bhushan with ballam and Deo Sharan by gandasa. On hue and cry people of the locality collected. Chandra Bhushan suffered serious injuries. He was taken to a Government hospital at Kabirchaura by the complainant. She was alone in her house with young children. Her husband was seriously injured and as such she could not come to the police station earlier to 7-5-1981. A dying declaration was made by Chandra Bhushan Upadhya at the hospital before an Executive Magistrate on 4-5-1981 itself in which he had named both the accused persons and had attributed specific roles to them indicating the weapons used. This dying declaration was proved in the Court below as Ext. Ka-5. During investigation, police seized blood-stained and plain earth. Chandra Bhushan died in the hospital and an in quest was made followed by a post-mortem examination. After examining witnesses and going through the formalities, charge-sheet was submitted.
(3.) THE prosecution had examined 9 witnesses during the trial. THE accused was examined under Section 313, Cr. P. C. but no defence witness was cited although the accused desired to lead defence evidence. THE records of the Court below indicate that the accused declined to produce any oral evidence but the documents filed by him were admitted. The trial Judge had place reliance on the eye-witness account as given by Indrawati as also on the dying declaration and he gave good reasons for accepting them. A point was raised before us that the FIR was unduly delayed. It is true that the occurrence took place on 4-5-1981 and the information was given on 7-5-1981. An explanation is, however, there by In drawati in the FIR itself that she, being the lone survivor in the family barring the young children, kept busy in the treatment of her husband and could not go to the police station earlier. This explanation ap pears to be acceptable as the near ones of a seriously injured person would first try to give him the first medical help and only thereafter would take recourse to law. The delay in the FIR without any proper ex planation for the delay is looked with suspicion for the reason that with delay concoction and deliberations are ex pected. In the instant case, however, that may be ruled out because immediately after the incident the injured was rushed to the hospital and on the same day, long before the drawing up of the FIR, he made a statement naming the accused person and indicating the manner of assault.;