Allahabad High Court
Hari Shankar Rai vs State on 17 May, 2024
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:89140-DB A.F.R. Reserved on 25th April, 2024 Delivered on 17th May, 2024 Court No. - 45 Case :- CRIMINAL APPEAL No. - 128 of 1983 Appellant :- Hari Shankar Rai Respondent :- State Counsel for Appellant :- A.D.Gilani,A.D. Giri,R.K. Shahi,S.K.Rai Counsel for Respondent :- A.G.A.,Harish Chandra Tiwari Connected with Case :- GOVERNMENT APPEAL No. - 877 of 1983 Appellant :- State Respondent :- Mahendra Rai Counsel for Appellant :- A.G.A., Harish Chandra Tiwari Counsel for Respondent :- ,R.K. Shahi Hon'ble Rajiv Gupta,J.
Hon'ble Shiv Shanker Prasad,J.
(Delivered by Hon. Shiv Shanker Prasad, J.)
1. Heard Mr. R.K. Shahi, learned counsel for the accused, Mr. Harish Chandra Tiwari, learned counsel for the first informant and Mr. Jitendra Kumar Jaiswal, learned A.G.A. for the State in both the appeals, as well as perused the record.
2. Since these criminal appeal as well as government appeal are directed against the judgment and order dated 19th January, 1983 passed in Sessions Trial No. 245 of 1981 (State Vs. Mahendra Rai & Hari Shanker Rai) arising out of Case Crime No. 215 of 1979 (251/3), under Section 302 of I.P.C., Police Station, Tariya Sujan, District-Deoria, whereby the accused Hari Shanker Rai has been convicted and sentenced to undergo four years rigorous imprisonment for the offence punishable under first part of Section 304 of I.P.C., whereas the accused Mahendra Rai has been acquitted for the offence punishable under Section 302 of I.P.C., the same have been heard and clubbed together and are being decided by this common judgment.
3. During the pendency of the instant Government Appeal before this Court, the accused-respondent no.1 Mahendra Rai has already passed away and the Government Appeal qua accused-respondent no.1 Mahendra Rai has been abated vide order dated 31st August, 2022.
4. The prosecution case as cropped up from the records of both the above appeals is that on a written report given by the informant/P.W.-1 Shivji dated 13th December, 1979 (Exhibit-ka/1), first information report (Exhibit-Ka/8) came to be registered on 13th December, 1979 at 1305 hours at Police Station-Tariya Sujan, District-Deoria against the accused Hari Shanker Rai @ Chhotey and Mahendra Rai under Section 302 of I.P.C. In the written report, it has been alleged by the informant/P.W.-1 that his brother Krishna Kumar was studying in Lok Manya Inter College. The accused Hari Shankar Rai @ Chhotey also studied in the same school. There was a fight between his brother Krishna Kumar and accused Harishanker Rai @ Chhote a few days back over some issue. Because of said fight, on 13th December, 1979 at 08:00 a.m. in the morning, when his brother Krishna Kumar was going to have tea from the western side of the road, while passing in front of the house of Harishankar alias Chhote, he saw that accused Harishanker Rai @ Chhotey and his father Mahendra Rai assaulted his brother Krishna Kumar by knives on his chest and stomach with intention to kill him due to which his brother Krishna Kumar sustained injuries and fell down. Due to noise, Navrang Prasad, Ramji, Subhan, Radha Kishna, Prasad, Kanu and Ram Kankan Ram, the informant and many other persons reached there, by then the accused Harishankar and Mahendra Rai ran away. The informant took his brother Krishna Kumar, who was in a serious condition, to the Government Hospital at Tamkuhi Road for his treatment. The incident has been witnessed by above witnesses and many other people. While the treatment of his brother Krishna Kumar was going, on at the Government Hospital, Tamkuhi Road, his brother succumbed to the said injuries caused by the accused, namely, Harishanker Rai @ Chhotey and Mahendra Rai. After leaving the dead body of his brother at Government Hospital, he came to the Police Station for lodging the first information report.
5. After lodging of the first information report, P.W.-4 Sub-Inspector Ausaf Ahmad Khan, after taking over the charge of Investigating Officer, went to the Government Hospital, where the dead body of the deceased was lying and at about 02:45 p.m. he prepared the inquest report (Exhibit-ka/2) of the body of the deceased. Thereafter P.W.-4 prepared the diagram and chalan (Exhibit-ka/3 and 4). After keeping the dead body of the deceased in a sealed cover, the same was sent to the Mortuary for post-mortem.
6. An autopsy of the deceased has been conducted by Dr. C.B. Singh (P.W.-5) on 14th December, 1979 at 11:15 a.m. and in the autopsy report (Exhibit-ka/7), the cause of death of the deceased has been reported to be shock and haemorrhage as a result of following ante-mortem injuries:
"1. Stab wound with incised margins 1 cm. x 1 cm. x chest cavity deep on the front and middle of chest, 8 cm. below the sternal notch.
2. Stab wound with incised margins 1 cm. x abdominal cavity deep on the right side of abdomen, 6 cm above the umbilicus at 11'0 clock position.
3. Multiple abrasion on an area of 2 cm. at the base of right thumb."
7. On the very day of incident i.e. 13th December, 1979, P.W.-4 i.e. the Investigating Officer inspected the place of occurrence and prepared site plan (Exhibit-ka/5) and found the earth scratched. He recorded the statement of Subhan and Radha Kishun. He also arrested the accused Mahendra Rai in Tamkuhi market. On 17th December, 1979, a site plan (Exhibit-ka/11) of the house of the accused was also prepared. Thereafter the investigation was taken over by Sri Lalji Singh, who after conclusions of the statutory investigation under Chapter XII Cr.P.C. has submitted the charge-sheet (Exhibit-Ka/6) against both the accused persons, namely, Mahendra Rai and Hari Shanker Rai on 30th January, 1980.
8. On submission of charge-sheet, the concerned Magistrate took cognizance in the matter and committed the case to the Court of Sessions by whom the case was to be tried. On 12th April, 1981, the concerned Court framed following charges against the accused-persons:
"CHARGES I, S.L. Tripathi, Sessions Judge, Deoria, hereby charge you-
1. Harishanker Rai alias Chhote, &
2. Mahendra Rai as follows :-
That you, on 13.12.1979, at about 8.30 a.m. , in village Seorahi, P.S. Tarayasujan of this district, did commit murder by intentionally or knowingly causing the death of Krishna Kumar (with knife) and thereby committed an offence punishable u/S 302 of Indian Penal Code and within the cognizance of this Court of Sess.
And I hereby direct that you be tried by this Court on the aforesaid charge."
9. The charges were read out and explained in Hindi to the accused, who pleaded not guilty and claim to be tried.
10. The trial started and the prosecution has examined six witnesses, who are as follows:-
1Shivji (complainant) (elder brother of the deceased)/eye witness as per the prosecution P.W.-1 2 Subhan (resident of village Sevarahi, Police Station-Sevarahi)/another eye witness as per the prosecution P.W.-2 3 Radha Kishun (resident of Tamkuhi Road, Police Station-Sevarahi), other eye-witness of the incident as per the prosecution P.W.-3 4 Sub-Inspector Ausaf Ahmad Khan, the first Investigating Officer P.W.-4 5 Dr. Chandra Bhushan Singh, the then Medical Officer, Sadar Hospital, Deoria, who conducted the autopsy of the deceased P.W.-5
11. The prosecution in order to establish the charges levelled against the accused-appellant has relied upon following documentary evidence, which were duly proved and consequently marked as Exhibits:
1Written report dated 13th December, 1979 Ex.Ka.-1 2 First Information Report dated 13th December, 1979 Ex.Ka.-8 3 Injury report of the deceased Krishna Kumar Ex. Ka.-10 4 Entry of registration of case in General Diary Ex. Ka/9 5 Inquest report dated 13th December, 1979 Ex.Ka.-2 6 Diagram of the dead body of the deceased Ex.Ka.-3 7 Chalan of the dead body of the deceased Ex.Ka.-4 8 Post-mortem report of the deceased dated 14th December, 1979 Ex.Ka.-7 9 Charge-sheet original dated 30th January, 1980 Ex.Ka.-11 10 Site plan with index dated 13th December, 1979 Ex.Ka.-5
12. The defence in support of their case has also produced following documentary evidence:
1Injury report of accused Hari Shanker Rai Ex.Kha.-1 2 Awadhesh Kumari wife of accused Mahendra Rai Ex.Kha.-2
13. After completion of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. The accused Hari Shanker Rai and Mahendra Rai, while giving their statements in the Court, denied the prosecution evidence and stated that they have been falsely implicated on account of harbouring grudges. The accused have also stated that they lived at a distance of about one furlong from the house of the deceased. Accused Hari Shanker Rai also conceded that he was the rival contestant in the election of the Students Union against the accused Krishna Kumar and the deceased had beaten him in that connection. However, accused Mahendra Rai had not accepted the said grudge. Both the accused have also denied that they had committed the murder of the deceased Krishna Kumar or that any witnesses had seen them in commissioning of the alleged crime. They have also stated that they did not know about the medical examination of Krishna Kumar, his death on account of those injuries and the postmortem examination. They also did not know about the lodging of the report, preparation of the site plan and the scratched blood-stained earth. They have further stated that they have been falsely implicated due to enmity. The accused Hari Shanker Rai has further stated that before the occurrence, some heated conversations were exchanged between him and the deceased Krishna Kumar and the deceased Krishna Kumar had threatened him. He has again stated that on 13th December, 1979 at about 07:30 a.m. when he was sitting in his verandah, the deceased along with three other persons had come and beaten him mercilessly by stick and when his mother Avadhesh Kumari tried to save him, she had also been beaten by them. Then, his mother Avadhesh Kumari wielded a sickle in self-defence due to which the deceased Krishna Kumar sustained injuries. After that, accused Hari Shanker Rai went to his relative's place. He also got himself medically examined and a police report has also been lodged by him on which the Police made local inspection.
14. Apart from the documentary evidence, both the accused Hari Shanker Rai as well as Mahendra Rai have also produced two witnesses in their defence, who are as follow:
1Dr. Pavan Kumar Srivastava, who had medically examined the accused Hari Shanker Rai and prepared the medical examination report (Exhibit-Kha/1) D.W.-1 2 Dr. Satya Prakash Tripathi, who had medically examined the wife of accused Mahendra Rai, namely, Smt. Avadhesh Kumari and prepared medical examination report (Exhibit-Kha/2) D.W.-2
15. On the basis of above evidence oral as well as documentary adduced during the course of trial, the trial court, while passing the impugned judgment, while relying upon the defence argument that the role of accused Mahendra Rai in the holistic view as per the testimonies of P.W.1 Shivji, P.W.-2 Subhan and P.W.-3 Radha Kishun, is doubtful, has recorded its finding that undoubtedly the prosecution evidence makes the participation of the accused Mahendra Rai in the entire occurrence extremely doubtful and the benefit of doubt must be extended to him. Consequently, the trial court has opined that the accused Mahendra Rai had nothing to do with the murder of the deceased Krishna Kumar and therefore, he must be acquitted of the charge of murder levelled against him. So far as the role of accused Hari Shanker Rai is concerned, the trial court has recorded that there is absolutely no occasion to doubt that he has not committed the murder of the deceased. The trial court has also not accepted the argument of the defence counsel that since no blood was found on the spot, therefore, the place of occurrence is doubtful. In that regard, the trial court has recorded its finding that the scratched earth had been found by the Investigating Officer (P.W.-3), then no blood was found anywhere else nor even the accused had shown the blood at any other place to the Investigating Officer. Hence, the above argument too has no force and particularly where the witnesses had consistently testified to prove the place of occurrence. The trial court has also recorded that the edge of the motive was also not very relevant where it was established by cogent evidence that an occurrence had really taken place.
16. The trial court has also not accepted the theory of self-defence put forth by the defence counsel on behalf of the accused Hari Shanker Rai that the deceased was the aggressor, who came inside the house of the accused along with three other persons and started beating him by stick and when his mother, namely, Awadhesh Kumari tried to save him, they also had beaten her because of the same, accused Hari Shanker Rai and his mother Awadhesh Kumari sustained injuries and in the self-defence, the accused caused injuries to the deceased Krishna Kumar. The trial court has recorded that neither the accused has produced Awadhesh Kumari before the trial court as defence witness nor any blood was found inside the house. The stick which is alleged to have been used by the deceased was also not available nor has the same been produced by the defence before the trial court. Hence the theory of self-defence could not be said to be correct.
17. So far as the medical examination report of the mother of the accused Hari Shanker Rai, namely, Awadhesh Kumari (wife of accused Mahendra Rai) (Exhibits-kha/1 and 2) produced by the defence in order to prove the theory of self-defence, is concerned, the trial court has opined that the injuries sustained by Awadhesh Kumari were not connected with the occurrence in which the deceased Krishna Kumar had lost his life.
18. Relying upon the injury report of accused Hari Shanker Rai and the testimony of D.W.-1, who medically examined him, the trial court has recorded that it is possible that the accused Hari Shanker Rai might have received his injuries in the same occurrence. The eye-witnesses of the occurrence had seen the occurrence from the stage where the two knife blows had been given and not the earlier part of it which occasioned the use of knife. As such, the possibility could not be ruled out that the deceased Krishna Kumar attacked the accused Hari Shanker and caused injuries to him and thereafter, accused Hari Shanker whipped out a knife and committed murder. The theory of self-defence has been put forward before the trial court in that respect. Although the said theory was not placed in the same manner but as the facts are sufficiently eloquent, that benefit could not be withheld.
19. The trial court has further recorded that in the circumstances, when the deceased attacked accused Hari Shanker Rai, he had right to protect himself in the form of self-defence, but his attacking the deceased Krishna Kumar twice with a knife shows that he exceeded the right of self-defense. Relying upon the judgment of the Hon'ble Supreme Court in the case of Jai Deo Vs. State of Punjab reported in 1963 Cr.L.J. 493 wherein it was held that the accused must stop as soon as the apprehension to him disappeared, the trial court has opined that in the present case the accused Hari Shanker had done the same, once he stabbed the deceased and then followed him to a distance of two steps and gave another knife blow on the stomach of the deceased, which clearly shows that the accused had exceeded the right of self-defence. The trial court, in view of the judgment of the Hon'ble Supreme Court in the case of Tara Chand Vs. State of Haryana reported in 1972 SC Cr.R. 9, has held that the accused Hari Shanker was guilty of the offence punishable under the first part of Section 304 I.P.C. The trial court has, therefore, convicted him for that offence and sentenced him to undergo four years rigorous imprisonment, whereas the trial court has acquitted the accused Mahendra Rai for the alleged charge granting him benefit of doubt.
20. Being aggrieved with the impugned judgment and order of conviction passed by the trial court, the accused-appellant Hari Shanker Rai has preferred the present Criminal Appeal, whereas the State of U.P. has preferred the present Government Appeal against the impugned judgment of acquittal of accused Mahendra Rai by the trial court.
21. Assailing the impugned judgment and order of conviction, the learned counsel for the accused-appellant in present criminal appeal and learned counsel for the accused-respondent in the government appeal, has advanced following submissions:
(i) P.W.-2 Subhan and P.W. -3 Radha Kishun are not eye-witness but chance witnesses because, as per the prosecution case, they reached at the place of occurrence when the incident has already taken place. Even otherwise, P.W.-1 Shivji being the elder brother of the deceased is an interested witness.
(ii). There are major contradictions in the statements of the alleged prosecution witnesses i.e. P.W.-1, P.W.-2 and P.W.-3, therefore, the same are not reliable and trustworthy.
(iii) Crime weapon i.e. knife, which is alleged to have been used by the accused for stabbing the deceased Krishna Kumar, has not been recovered nor the same has been sent for its chemical examination to the Forensic Science Laboratory.
(iv) Blood stained earth has also not been collected by the Investigating Officer nor the same has been sent for chemical examination.
(v). No recovery memo has been prepared by the Investigating Officer either of the knife (Ala Katla) or the blood stained earth.
(vi). There was no motive for the accused to commit the alleged crime.
(vii). As per the prosecution specially the eye-witnesses i.e. P.W.-1, P.W.-2 and P.W.-3, the accused Hari Shanker caused injuries to the deceased Krishna Kumar by knife which does have one side edge, whereas in his testimoney, P.W.-5 Dr. C.B. Singh has opined that edges of both sides of injury nos. 1 and 2 were clean cut, meaning thereby that the injury nos. 1 and 2 can be caused by a weapon having edges on both sides. As such, the medical evidence does not support the prosecution version.
22. On the basis of the above submissions, learned counsel for the accused-appellant in Criminal Appeal has submitted that since the prosecution has completely failed to established its case beyond reasonable doubt against the accused-appellant and the evidence on record has not been examined in correct perspective by the trial Court, the impugned judgment and order passed by the trial court convicting and sentencing the accused-appellant under the first part of Section 304 I.P.C. to undergo four years rigorous imprisonment cannot be legally sustained and is liable to be quashed.
23. On the other-hand, learned counsel for the first informant and the learned A.G.A. for the State in criminal appeal as well as in government appeal submit as under:
i. The submission of the learned counsel for the accused-appellant and the accused-respondent that the motive is not clear, is incorrect. From the version of the first information report as well as from the version of the first informant/P.W.-1, wherein it has been stated that due to students union election, there was altercation between the accused Hari Shanker Rai and the deceased Krishna Kumar and the deceased had beaten accused Hari Shanker Rai one or two months back and because of the same, the accused Hari Shanker Rai harboured grudge, it is established that the accused has motive or intention to commit the alleged crime. Even otherwise, in the statement recorded under Section 313 Cr.P.C., the accused Hari Shanker Rai has admitted that due to election of students union, the deceased had beaten him.
ii. Medical examination reports of the accused Hari Shanker Rai and his mother Awadhesh Kumari i.e. Exhibits-kha/1 and 2 are fabricated, as no such injuries were caused by the deceased nor the incident as alleged by accused Hari Shanker Rai has ever taken place. In order to establish a cross case and also for establishing theory of self-defence, such false incident has been built up by the defence.
iii. In the site plan (Exhibit-ka/5) dated 13th December, 1979 prepared by the Investigating Officer, Point "D" has been marked for indicating the presence of P.W.-2 Subhan at the time of occurrence, meaning thereby that P.W.-2 has seen the incident with his own eyes. As such the submission of the learned counsel for the accused-appellant and learned counsel for the accused-respondent that he is a chance witness is also incorrect. He is an eye witness to the incident.
iv. For establishing the theory of self-defence, the defence has shifted the place of occurrence by submitting that the verandah of the house of the accused was the exact place of occurrence, where the deceased came along with three persons and had beaten the accused Hari Shanker by stick and when his mother tried to save him, they had also beaten her. In response thereto his mother wielded the deceased with sickle due to which he sustained injuries. When as matter of fact, the incident took place in front the shop of Jugul from where the house of the accused Mahendra Rai is 15 to 16 steps away and the said place of occurrence has sufficiently been proved by the prosecution.
v. Though the first informant/P.W.-1 Shivji is the brother of the deceased but he is one of the eye-witness, who saw the entire incident with his open eyes. He is throughout consistent from the initial stage of lodging of the first information report and till the conclusion of his testimony before the trial court. Therefore, his testimony cannot be discarded on the ground of his being brother of the deceased.
vi. In the statement recorded under Section 313 Cr.P.C., the accused Hari Shanker Rai built up a cross case by stating that on the date of the incident i.e. 13.12.1979 at about 7:30 a.m. when he was sitting in his varandah deceased Krishna Kumar and three others came there and had beaten him, when his mother came to rescue him, she too was beaten. His mother in her defence saved her with sickle in which Krishna Kumar got injured. However, such cross case has not been fully established by the defence either by oral or by documentary evidence. From the statement of D.W.-1 Dr. Pawan Kumar Srivastava, which has heavily been relied upon by the defence as he has examined the accused-appellant Harishanker and found five injuries on his person, it crops up that injuries found by D.W.-1 on the body of the accused Hari Shanker Rai have been reported to be caused at around 9 to 12 O'clock at day time on 13.12.1979 but as per prosecution story the incident has taken place on 13.12.1979 at about 8:30 a.m. meaning thereby the incident dated 13.12.1979 at 8:30 a.m. occurred prior to the receiving of injuries on the person of accused-appellant Harishanker. It has not been established by the appellant/ defence that the injuries on the person of Harishanker has been inflicted by Krishna Kumar in the same incident as alleged by prosecution. It is also pertinent to mention here that with regard to the incident in which such injuries have been sustained by accused Hari Shanker, no complaint or first information was lodged by the accused at the police station concerned.
vii. The medical examinations of accused Hari Shanker Rai and his mother Awadhesh Kumari have not been been conducted through Majroobi Chiththi of police station concerned. Even otherwise, the medical examination reports of accused Hari Shanker Rai and his mother Awadhesh Kumari have been prepared in private capacity after two days of the actual incident occurred. Not only this Harishanker has given an application at police station concerned on 17.12.1979 as an afterthought wherein he has stated that his mother had caused injuries to Krishna Kumar with knife in her defence, whereas accused Harishanker has already stated in his statement under section 313 Cr.P.C. that his mother caused injuries to Krishna Kumar with sickle.
viii. It is also noteworthy that this application has not been proved by him in his defence nor the same is exhibited as defence document and it seems that this application has been prepared and given to the concerned Superintendent of Police as an afterthought with ulterior motive.
ix. There are no inconsistencies or contradictions in the testimonies of all the prosecution eye witnesses i.e. P.W.-1, P.W.-2 and P.W.-3 and the inconsistencies or contradictions pointed out by the learned counsel for the accused-appellant and accused-respondent are too minor.
24. On the basis of the aforesaid submissions, learned A.G.A. submits that as this is a case of direct and clinching evidence, the testimonies of eye witnesses, namely, P.W.-1, P.W.-2 and P.W.-3, namely, Shivji, Subhan and Radha Kishun who are consistent throughout in their examination-in-chief and the cross-examinations inspire confidence in the facts and circumstances of the case and they have disclosed about the commissioning of the offence of murder of the deceased Krishna Kumar and the same has also been supported by the medical evidence in all material particulars, therefore, trial court has committed gross error in convicting the accused-appellant Hari Shanker Rai under first part of Section 304 I.P.C. Despite the defence having been failed to establish its case of self-defence and the trial court has recorded its finding that the accused Hari Shanker had exceeded his right of self-defence, the trial court while ignoring the entire evidence produced by the prosecution, has passed the impugned judgment. The accused Hari Shanker Rai is liable to be convicted for the offence punishable under Section 302 I.P.C. instead of Section 304 Part-I I.P.C. As such the appeal filed by the accused-appellants, who committed heinous crime of murdering the deceased Krishna Kumar is liable to be dismissed.
25. In reply to the submissions made by the learned counsel for the accused-respondent in Government Appeal, learned A.G.A. and the learned counsel for the first informant submit that the prosecution has fully established its case beyond reasonable doubt against the accused-respondents by oral as well as documentary evidence but the trial court has not examined the same and passed the impugned judgment of acquittal of accused Mahendra Rai only on the argument raised by the defence counsel before the trial court, which is per-se illegal and is liable to be quashed. The learned A.G.A. and learned counsel for the first informant further submit that in support of the above argument, learned counsel for the accused-respondent has failed to produce any documentary as well as oral evidence before this Court as well as trial court. There exist direct evidence against the accused Hari Shanker Rai by way of testimonies of P.W.-1, P.W.-2 and P.W.-3. As such, the Government Appeal filed by the State is liable to be allowed by reversing the impugned judgment of the trial court and convicting and sentencing him for the offence under Section 302 I.P.C. The learned A.G.A. also submits that since the Government Appeal qua the accused-respondent Mahendra Rai has already been dismissed as abated, nothing is required to be said in his case.
26. We have examined the respective contentions urged by the learned counsel for the parties and have perused the records of the present appeal including the trial court records.
27. The only question requires to be addressed and determined in this appeal is whether the conclusion of guilt arrived at by the learned trial court and the sentence awarded is legal and sustainable in law or it suffers from infirmity and perversity.
28. Before entering into the merits of the case set up by the learned counsel for the accused-appellant in criminal appeal, learned counsel for the accused-respondent in government appeal and the learned A.G.A. as also the learned counsel for the first informant in both the appeals qua impugned judgment and order of conviction passed by the trial court, it is desirable for us to briefly refer to the statements of the prosecution witnesses as well as the defence witnesses.
29. P.W.-1 Shivji in examination-in-chief stated that the accused Harishankar is the son of accused Mahendra Rai. Both of them are residents of Tamkuhi Road. House of both the accused is 100 steps away from his house to the west. He further stated that he is elder brother of the deceased Krishna Kumar He was murdered 2 years and 8 months ago at 08:30 a.m. (morning) in front of Jugul's shop. House of accused Mahendra Rai is 15-16 steps away from Jugul's shop.
30. This witness further stated that when the deceased Krishna Kumar was proceeding towards the station to have tea while he himself was coming from the sugar mill after collecting tax, the accused Harishankar and Mahendra Rai stopped Krishna Kumar and the accused Harishankar stabbed Krishna Kumar. Mahendra had exhorted the accused Hari Shanker Rai to kill Krishna Kumar. The knife blow was sustained by his brother in his chest, then Mahendra caught hold the hand of Krishna Kumar from behind and then accused Harishankar gave the second blow of the knife in the stomach of Krishna Kumar. Krishna Kumar screamed and fell there. This witness, Naurang, Subhan, Radha Kishun, Ramji and Rama Kant while making alarm reached there and then both the accused ran away to their house. P.W.-1 picked up Krishna Kumar and took him to Tamkuhi Road Hospital. When he went to take medicine on the advise of Doctor, his father Jamuna Rai reached there. Two hours later, Krishna Kumar died in the said hospital.
31. This witness again stated that the accused Hari Shanker Rai and his brother Krishna Kumar studied in Lokmanya Inter College, Tamkuhi Road. The accused Hari Shanker Rai was contesting election for the post of General Secretary of Student Union in which his brother was campaigning for his opponent. A month or two, prior to the incident, there was a fight between the accused Hari Shanker Rai and the deceased Krishna Kumar on the same issue and the deceased Krishna Kumar hit the accused Harishankar. Krishna Kumar was not contesting the election for the post of General Secretary of Student Union. In the first information report, he did not mention that the deceased Krishna Kumar hit the accused Hari Shanker Rai. Later that quarrel was resolved amongst them.
32. In the cross examination-this witness denied that the deceased Krishna Kumar was not going to take tea. He stated that he did not lodge the first information report under influence of anyone. The deceased Krishna Kumar became unconscious after getting injured. The deceased Krishna Kumar used to go to take tea every day, therefore, he mentioned in the first information report that he was going to take tea. In normal course, he used to go daily to collect tax.
33. This witness further stated that at the time of incident, no one came from the nearby shops because the shops were closed. He saw the incident from a distance of 30-35 steps away while the accused Hari Shanker was stabbing the deceased with knife. The accused Mahendra Rai did not stab the deceased. In the first information report he has not disclosed that the accused Hari Shanker Rai was holding a knife at the time of incident, as he was nervous. Then, this witness stated that the first knife blow was given on the chest of the deceased and the second knife blow was given in his stomach. Blood oozed from both the places. This incident took place at 2-3 steps beside the road. This witness stated that he took the deceased Krishna Kumar to the hospital by rickshaw. The doctor met him in the hospital and admitted his brother there and examined the injuries. His father reached the hospital within 10-15 minutes. He denied the fact that his father had taken the deceased Krishna Kumar to the hospital.
34. This witness again stated that he did not see mother of the accused Hari Shanker on the spot. He also did not see any injuries on the person of accused Hari Shanker Rai. He denied that the fact that the deceased Krishna Kumar went at the house of Harishankar and assaulted him and his mother. He further denied the suggestion that the mother of accused Hari Shanker Rai used sickle in defence. He further denied the suggestion that the Investigating Officer came to the spot and on his advice, they changed the place of the incident. He further denied that there were no witnesses at the spot and the accused Mahendra Rai was not at home on the day of the incident.
35. P.W.-2 Subhan, alleged star eye witness stated in his examination-in-chief that about 2 years and 8 months back, the deceased Krishna Kumar was murdered at 08:30 a.m. in the morning. He was getting a shave at the barber shop and was sitting inside the shop. When the deceased Krishna Kumar was going from the south, accused Harishankar abused him and then Harishankar stabbed the deceased Krishna Kumar. One knife blow was given on his chest and the other one was given on the stomach of the deceased due to which the deceased Krishna Kumar fell down. The accused Mahendra was standing behind him. On the alarm being raised, the accused ran away. The incident was witnessed by P.W.-3 Radha Kishun, Naurang, Ramji and P.W.-1 Shivji. The deceased Krishna Kumar was taken to the hospital, where he died.
36. In the cross-examination, this witness stated that when Krishna Kumar fell and screamed, he came out of the shop. The deceased Krishna Kumar had fallen towards his south on the unpaved track. He had fallen 2 to 4 steps away from him. He further stated that at the time of incident he did not see the wife of accused Mahendra Rai i.e. mother of accused Harishanker Rai. He denied not to have seen the incident and since he is a servant of Jamnadas, he is giving false deposition. He did not see any injury on the person of accused Harishanker.
37. P.W.-3 Radha Kishun, other prosecution star eye witness stated in his examination-in-chief that the murder of Krishna, son of Jamuna took place two and half years back at 7:00 a.m. or 7:30 a.m. in the morning. The murder took place near the barber's shop on the other side of the road in front of Mahendra's house. He was going from the bank to the station. He saw the incident from a distance of 20-25 paces. The accused Harishankar assaulted the deceased Krishna Kumar by a knife. He sustained injuries in his chest and stomach. This witness again stated that the incident was witnessed by several people but the accused ran away.
38. In the cross-examination, this witness stated that there is a transformer at the intersection and there is a bank 5-6 shops away from it on the east side. On the date of incident he was present on the west road in front of transformer. When he saw, the deceased Krishna Kumar had fallen. A crowd of 50-60 people assembled there. He also ran and reached there. The deceased Krishna Kumar had fallen 10 steps west of the house of accused Mahendra Rai. At the relevant time, only the barber shop was open, whereas the rest of the shops were closed. This witness further stated that the deceased Krishna Kumar was not stabbed after he fell down. He disclosed to the Investigating Officer that knife blows were given on the stomach and chest of the deceased. He then stated that Jamuna is his neighbour. He did not notice, if blood spilled out on the spot. The deceased Krishna Kumar had fallen in supine position.
39. Lastly, this witness stated that large number of persons assembled at the doorstep of Mahendra as well as on the terrace. He did not notice any injury either on the person of wife of Mahendra (mother of accused Harishanker) or on the person of accused Harishanker. He denied to give false statement being the neighbour of Jamuna and he did not see the accused Mahendra Rai on the date of incident.
40. P.W.-4 Sub-Inspector Ausaf Ahmad Khan in his examation-in-chief stated that he went to the hospital the same day and recorded the statement of first informant Shivji. He found the dead body of the deceased Krishna Kumar in the hospital. He prepared the inquest report, photo of the dead body etc. He further stated that at the spot, he found ground scratched but he did not found any blood. The accused was searched but was not found. On the same day, the accused Mahendra was arrested from Tamkuhi Road. This witness further stated that he recorded the statement of witness Radha Kishun.
41. In the cross-examination, this witness stated that he did not found the wife of accused Mahendra to be injured. He denied that wife of accused Mahendra had injuries and he was concealing the same. He further denied that the incident took place inside the house of accused Mahendra Rai and the ground was not scratched.
42. P.W.- 5 Dr. C.B. Singh who was conducted the post mortem examination of the body of the deceased Krishna Kumar, stated in his examination- in-chief that the cause of death of the deceased was excessive bleeding and shock due to ante-mortem injuries noted in the post-mortem report. In his testimony, this witness opined that injury nos. 1 and 2 can be caused by a sharp knife, injury no. 3 could have been caused by rubbing of the knife. Death of the deceased was likely to occur at 10:00 a.m. on 13th December, 1979. After getting injured, death may instantaneously be caused or the victim may remain alive for some time.
43. This witness further opined that injury number 3 could also have been caused by a rough stick. The edges of injury nos. 1 and 2 on both sides were clean cut. Such injuries could also have been caused by a knife that have an edge on both sides and could also be caused by a knife that had an edge on only "one side". He further states that the head of the wound was noted by him, as such he cannot state if the knife was single edged or double edged. If the knife has only one edge, the head of the wound will not make a clean cut.
44. D.W.-1 Dr. Pavan Kumar Srivastava, who conducted the medical examination of accused Hari Shanker Rai, stated that he found five injuries on his body. He further stated that injury Nos. 1, 2, 3 were caused by some blunt weapon and were about two days old. Injury number nos. 1 and 2 were normal and injury no.3 was kept under observation till the X-ray report was received. He further stated that all injuries sustained by accused Harishanker Rai may have occurred on 13th December, 1979 at 09:00 to 10:00 a.m.
45. In the cross examination, this witness stated that neither the accused Harishanker nor any other person did produce any X-ray report before him. There is a government hospital in Sevarhi also.
46. D.W.-2 Dr. Satya Prakash Tripathi, who conducted the medical examination of mother of accused Hari Shanker Rai (wife of accused Mahendra Rai), namely, Awadhesh Kumari, stated that he found as many as 9 injuries on her body. He further stated that all injuries are simple except injury no.9, which could be commented after receiving the X-ray report. Injury nos. 4, 6 and 7 were caused by friction with some hard object and the remaining injuries were caused by some hard object. All the injuries found on the body of Awadhesh Kumari were about two days old and the same could have been caused even on 13th December, 1979 at 09:00 a.m. to 10:00 a.m.
47. Before proceeding to discuss the issues raised in these appeals we may note some background facts.
48. There are two incidents, which are alleged to have occurred at different times and places, first is as per the version given by the prosecution and second is as per the defence version particularly that of the accused Hari Shanker Rai.
49. The incident, as per the version of the prosecution, is alleged to have occurred on 13th December 1979 at 08:30 a.m. (morning) in front of the shop of Jugul from which the house of accused Mahendra Rai is 15 to 16 steps away. This incident has been supported by all the prosecution eye witnesses i.e. P.W.-1, P.W.-2, P.W.-3 as well as by the formal witnesses i.e. P.W.-4 and P.W.-5 in their testimonies. As per the prosecution/first informant, the incident is as follows:
"कृष्ण कुमार मेरा छोटा भाई था। उसका कत्ल 2 साल 8 महीना हुआ सुबह 8-1/2 बजे जुगुल की दुकान के सामने हुआ। जुगुल की दुकान से 15-16 कदम दूर महेन्दर राय का मकान है। कृष्ण कुमार चाय पीने स्टेशन तरफ जा रहा था। मैं तकाजा। वसूल करके सूगर मिल की तरफ से आ रहा था। मुजरिमान हरीशंकर और महेन्दर राय ने कृष्ण कुमार को रोक लिया। हरीशंकर ने कृष्ण कुमार को चाकू मारा। महेन्दर ने कहा था कि इसे जान से मार दो। चाकू मेरे भाई के सीने में लगा तब महेन्दर ने पीछे से कृष्ण कुमार का हाथ पकड़ लिया फिर हरीशंकर ने चाकू का दूसरा वार पेट पर किया। कृष्ण कुमार चिल्ला कर वही गिर गया। मैं, नौरंग, सुभान, राधा कीशुन, रामजी व रामकक्कन चिल्लाते हुए वहा पहुॅचेतंब दोनों मुजरिमान अपने घर भाग गये। मैं कृष्ण कुमार को उठाकर तमकूही रोड अस्पताल में ले गया। डाक्टर ने मुझे दवा लेने के लिये भेजा तब तक मेरे पिता जमुना राय वहाँ पहुँच गये।"
50. The incident, as per the version of accused Hari Shanker (defence), is alleged to have occurred on 13th December, 1979 at 07:30 a.m. (morning) in Varandah of the house of accused Hari Shanker Rai. Except the accused Hari Shanker in his statement recorded under Section 313 Cr.P.C., nobody has supported the said incident.
51. As per the accused Hari Shanker Rai, the incident is extracted hereunder:
"कतल से एक दिन पहले मेरी गाली गलौज कृष्ण कुमार से हुई। फिर कृष्ण कुमार धमकी देकर चला गया । 13-12-79 को सुबह 7-1/2 बजे मैं अपने बरामदे में बैठा था तब लाठी डण्डा लेकर कृष्ण कुमार और तीन अन्य आदमी आए। उन्होंने मुझे मारा। मेरी मां बचाने आई तो उसे भी मारा। मेरी मां ने बचाव में हासिया चलाया जिससे कृष्ण कुमार को चोट आई । हम डर से रिश्तेदारी में चले गये। मैंने डाक्टरी मुआयना भी कराया और रिपोर्ट भी लिखवाई। मैंने मॉ का भी मुआयना कराया।"
52. It is surprising to note that the accused Mahendra Rai (father of the accused Hari Shanker Rai) in his statement recorded under Section 313 Cr.P.C. did not say anything about the incident disclosed by the accused Hari Shanker Rai. It is also pertinent to mention here that Awadhesh Kumari mother of the accused Hari Shanker Rai (wife of accused Mahendra Rai), who, as per the version of the accused Hari Shanker Rai, has not been produced by the defence during the course of trial to testify the said incident in which she wielded the deceased Krishna Kumar with sickle in her self-defence when the deceased Krishna Kumar along with three others on account of dispute over student Union election, came in Varandah of the house of accused Hari Shanker Rai and had beaten him and when she tried to rescue him, she was also beaten by them.
53. It is also important to note that while recording the statement of accused Hari Shanker Rai under Section 313 Cr.P.C., when a question has been put to the accused Hari Shanker Rai that he and the deceased Krishna Kumar studied in Lokmanya Inter College and in connection with the election of student union, there was scuffle between them and the deceased Krishna Kumar had beaten him?, the accused Hari Shanker Rai answered that all facts are true. When as a matter of fact, when the same question was put to the accused Mahendra Rai while recording his statement under Section 313 Cr.P.C., he answered that the same is incorrect.
54. We may also record that qua the incident in which injuries have been sustained by accused Hari Shanker and his mother Aadhesh Kumari, no complaint or first information was lodged by the accused before the police station concerned.
55. The medical examinations of accused Hari Shanker Rai and his mother Awadhesh Kumari have not been conducted through Majroobi Chiththi of police station concerned inasmuch as their medical examinations have been conducted by the Doctors i.e. D.W.-1 and D.W.-2 in their private capacity after two days of the actual incident occurred. Even otherwise, the accused Harishanker has submitted an application to police station concerned on 17.12.1979 as an afterthought wherein he has stated that his mother has caused injuries to Krishna Kumar with knife in her defence. Even otherwise, the prosecution witnesses i.e. P.W.-1, P.W.-2, P.W.-3 and P.W.-4 have specifically stated in their testimonies that at the time of incident they have not seen any injury on the person of accused Hari Shanker Rai nor on the person of Awadhesh Kumari.
56. On the deeper scrutiny of the facts as discussed herein above, it is apparently clear that the incident as alleged by the accused Hari Shanker Rai is a separate incident in which he and his mother have sustained injuries of which the medical examinations have been conducted by D.W.-1 and D.W.-2, who prepared their medical examination reports (Exhibits-kha/1 and 2) respectively. It appears that there is an unsuccessful attempt by the defense specially the accused Hari Shanker Rai to prove that the murder of the deceased Krishna Kumar occurred in self-defence of his mother Awadhesh Kumari and also an attempt to protect his father i.e. another accused Mahendra Rai from this murder case.
57. From bare evaluation and deliberation of the evidence led during the course of trial, we find that on one hand, the trial court itself has also recorded in paragraph 10 of its judgment that the deceased Krishna Kumar had died on account of injuries which have been caused by knife at around 08:00 a.m. on 13th December, 1979, whereas the trial court in paragraph-11, on the testimonies of D.W.1 and D.W.-2 who medically examined the accused Hari Shanker Rai and his mother Awadhesh Kumari respectively after two days of the incident i.e. on 15th December, 1979, has recorded that the accused Hari Shanker Rai and his mother Awadhesh Kumari could have sustained injuries at about 09:00 a.m. or 10:00 a.m. on 13th December, 1979, on the other-hand the trial court has opined that the deceased Krishna Kumar, the accused Hari Shanker Rai and his mother Awadhesh Kumari (wife of another accused Mahendra Rai) had sustained their injuries near or about the same time.
58. In paragraph-25 of the impugned judgment, the trial court has recorded different opinion while recording that the accused has come forward with a self defence theory, wherein it was alleged that the occurrence had taken place inside the house of the accused in which the deceased along with three other persons first assaulted the accused Hari Shanker Rai and thereafter his mother Awadhesh Kumari consequent to which they sustained injuries. In this respect it has been observed by the trial court judge that neither the sickle which has allegedly been used in causing injuries to the deceased, has been produced nor it was got chemically examined. Blood was also not found inside the house of accused Hari Shanker Rai. Even Awadhesh Kumari was not brought into the witness box to testify about that incident. Danda was allegedly used by deceased but that too was not recovered nor has been produced by the accused. The trial court has recorded that in view of the above, the defence story could not be accepted as correct.
59. Further, on one hand, the trial court in paragraph-26 has opined while recording that the testimony of Dr. Satya Prakash Tripathi (D.W.-2) could not be given much wieghtage, as he had not given out any data by which he had pointed out the time of the injuries sustained by Awadhesh Kumari i.e. mother of the accused Hari Shanker Rai. The trial court has further recorded that as per opinion of D.W.-2 himself, the injuries sustained by Awadhesh Kumari were about two days old, therefore, it is clear that they could have been caused even at 04:00 p.m. on 13th December, 1979, as such Awadhesh Kumar could have sustained the injuries much after the occurrence. Her injuries could not, therefore, be linked with the occurrence in which Krishna Kumar had lost his life.
60. On the other-hand, in paragraph-27 qua the injuries sustained by accused Hari Shanker Rai, the trial court has recorded that on the basis of opinion of D.W.-1 who medically examined the accused Hari Shanker Rai, that the injuries sustained by him could have been caused in the morning of 13th December, 1979, it is possible that the accused Hari Shanker might have sustained his injuries in the same occurrence. The trial court assumed that eye-witnesses of the occurrence had witnessed the incident from the stage where two knife blows had been given and not prior to it which occasioned the use of knife. Hence the possibility could not be ruled out that the deceased Krishna Kumar attacked the accused Hari Shanker and caused injuries to him and thereafter the accused Hari Shanker whipped out a knife and committed the murder of the deceased. On the basis of such possibility, the trial court has accepted the theory of self-defence taken by the defence. However, relying upon the judgment of the Hon'ble Supreme Court in the case of Jai Deo (Supra), the trial court has also opined that since the accused Hari Shanker Rai stabbed the deceased once and then followed him to a distance of two steps and gave another knife blow on his stomach, the accused Hari Shanker Rai exceeded the right of self-defence. On the basis of such possibility and assumption, the trial court has convicted the accused Hari Shanker under the First Part of Section 304 I.P.C. and sentenced him to undergo four years rigorous imprisonment.
61. On one hand, the trial court has discarded the incident set up by the defence, which is alleged to have occurred in Varandah of accused Hari Shanker Rai and also refused to accept the submission of the defence that injuries sustained by the accused Hari Shanker Rai and Awadhesh Kumari was caused in the aforesaid incident, whereas on the other-hand, the trial court has admitted the incident set up by the prosecution, which is alleged to have occurred in front of the shop of Jugul and the said incident has been witnessed by eye witnesses i.e. P.W.-1, P.W.-2 and P.W.-3, which has also been supported by PW.-4 Investigating Officer. However, while ignoring the direct evidence like testimonies of eye-witness in which P.W.-1 is elder brother of the deceased whereas P.W.-2 and P.W.-3 are independent witnesses as also the medical evidence and the relevant documents, only on assumption and presumption, the trial court convicted the accused Hari Shanker Rai under Section 304-I of I.P.C. under the impugned judgment which in our opinion is not only illegal, perverse, whimsical and infirm.
62. The submission of the learned counsel for the accused-appellant that the prosecution version that the accused Hari Shanker Rai stabbed the deceased Krishna Kumar by knife which has one side edge, whereas the P.W.-5 Dr. C.B. Singh, who conducted the post-mortem examination of the body of the deceased stated that injury nos. 1 and 2 found on the person of the deceased can be caused by a weapon having edges on both sides, makes the prosecution case doubtful is liable to be rejected on the ground that it is settled law that the ocular evidence always prevails over the medical evidence. The Hon'ble Supreme Court in the case of Darbara Singh Vs. State of Punjab reported in (2012) 10 SCC 476 has held that in case there is contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value. For ready reference, paragraph no.10 of the said judgment reads as follows:
"10. So far as the question of inconsistency between medical evidence and ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved. (Vide: State of U.P. Vs. Hari, (2009) 13 SCC 542; and Bhajan Singh @ Harbhajan Singh & Ors. Vs. State of Haryana, (2011) 7 SCC 421)."
63. To the submission made by the learned counsel for the accused-appellant that non recovery of crime weapon i.e. knife having been made from any of the accused creates a dent in the prosecution case, we may record that such minor discrepancy on the part of the Investigating Officer does not effect on the otherwise clinching evidence produced by the prosecution which have been discussed in detail herein above. The Hon'ble Supreme Court in the case of Mritunjoy Biswas Vs. Pranab Alias Kuti Biswas & Another reported in (2013) 12 SCC 796 has held that when there is ample unimpeachable ocular evidence and same has been corroborated by medical evidence, non-recovery of weapon does not affect the persecution case. The relevant paragraphs i.e. paragraph nos. 33 and 34 are being quoted herein below:
"33. The learned counsel for the respondent has urged before us that there has been no recovery of weapon from the accused and hence, the prosecution case deserves to be thrown overboard and, therefore, the judgment of acquittal does not warrant interference.
34. In Lakshmi and Others v. State of U.P. [(2002) 7 SCC 198 : (AIR 2002 SC 3119 : 2002 AIR SCW 3596)], this Court has ruled that "Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder"."
In Lakhan Sao v. State of Bihar and Another reported in [(2000) 9 SCC 82 : (AIR 2000 SC 2063 : 2000 AIR SCW 1955)], it has been opined by the Hon'ble Supreme Court that the non-recovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is acceptable.
In State of Rajasthan v. Arjun Singh and Others reported in [(2011) 9 SCC 115 : (AIR 2011 SC 3380 : 2011 AIR SCW 5295)], the Hon'ble Supreme Court has expressed that:
"18........ mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, bloodstained clothes, etc. cannot be taken or construed as no such occurrence had taken place".
64. In view of the aforesaid facts and the findings recorded by us herein above, we are of the firm opinion that the finding of the Court below with regard to accused-appellant Hari Shanker Rai is illegal and incorrect, as the guilt of the accused-appellant Hari Shanker Rai has been proved beyond reasonable doubt by the prosecution.
65. Consequently, in view of the deliberations held above, the judgment and order dated 19th January, 1983 passed in Sessions Trial No. 245 of 1981 (State Vs. Mahendra Rai & Another) arising out of Case Crime No. 215 of 1979, Police Station Tariya Sujan, District-Deoria convicting him under Section 304 Part-I of I.P.C. is set aside and instead, the accused-appellant Hari Shanker Rai is convicted for the offence under Section 302 I.P.C. and sentenced him to undergo life imprisonment with a fine of Rs. 50,000/-. In default of payment of fine within three months, he shall further undergo six months additional imprisonment.
66. Since the accused-appellant Hari Shanker Rai is reported to be on bail, the Chief Judicial Magistrate, Deoria shall ensure that the accused-appellant Hari Shanker Rai is arrested and sent to jail for serving his sentences awarded herein above.
67. Thus, in sum and substance, the criminal appeal filed by the accused-appellant Hari Shanker Rai is dismissed.
68. The Government Appeal filed on behalf of the State is, hereby, allowed by setting aside the acquittal of accused Hari Shanker Rai under Section 302 I.P.C. and confirming his conviction under Section 302 I.P.C. and awarding the sentence of life imprisonment with fine of Rs. 50,000/-, in default of payment of fine, he has to further undergo six months additional imprisonment. Since the instant Government Appeal qua accused-respondent Mahendra Rai has already been abated by this Court vide order dated 31st August, 2022, no further orders are required to be passed against him.
69. There shall be no order as to costs.
70. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Deoria, henceforth, for necessary compliance.
(Shiv Shanker Prasad, J.) (Rajiv Gupta, J.)
Order Date :- 17.05.2024
Sushil/-