Patna High Court
Daya Shankar Shukla & Anr vs State Of Bihar on 6 July, 2012
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.832 of 2006
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Jay Shankar Shukla son of Babli Shukla, resident of village-Chhotka Jhankaich,
P.S.-Krishna Barhon (Simri), District- Buxar.
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 748 of 2006
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1.Daya Shankar Shukla son of Babuli Shukla @ Babli Shukla
2.Babuli Shukla @ Babli Shukla son of late Ramchij Sukla
Both are resident of village-Chhotka Jhankaich, P.S.-Krishna Barhon
(Simri), District-Buxar.
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
==========================================================
Both the above appeals are against the judgment of conviction and order
of sentence dated 18.8.2006 passed by Sri Shatrughan Sharma, Additional
District and Sessions Judge, F.T.C.-IV, Buxar in Sessions Trial No.30 of 1997.
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Appearance :
(In CR. APP (SJ) No. 832 of 2006)
For the Appellant/s : M/s Jagdish Prasad, Anirudh Mishra, Ashok
Kumar Verma, Advocates
(In CR. APP (SJ) No. 748 of 2006)
For the Appellant/s : Mr. Rakesh Kumar Sinha
For the Respondent/s :
(in both the appeals) Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
C.A.V.Judgment
Date: 06-07-2012
1. Heard Mr. Jagdish Prasad, learned counsel appearing on
behalf of the sole appellant in Cr.Appeal (SJ) No. 832 of 2006, Mr. Rakesh
Kumar Sinha, learned counsel appearing on behalf of the appellants in Cr.
Appeal (SJ) No.748 of 2006 and Mr. Ajay Mishra, learned Additional Public
Patna High Court CR. APP (SJ) No.832 of 2006 2
Prosecutor on behalf of the State.
2. Cr. Appeal (SJ) No.748 of 2006 has been filed by Daya
Shankar Shukla and Babuli Shukla @ Babli Shukla whereas Cr. Appeal (SJ)
No.832 of 2006 has been filed by Jay Shankar Shukla. Both the appeals have
been preferred against the judgment and order dated 18.8.2006 passed by the
learned Additional District and Sessions Judge, F.T.C.-IV, Buxar in Sessions
Trial No. 30 of 1997. The appellants of Cr. Appeal (SJ) No.748 of 2006,
namely, Daya Shankar Shukla and Babuli Shukla @ Babli Shukla have been
convicted under section 304 part II/34 of the Indian Penal Code and sentenced
to undergo rigorous imprisonment for ten years, whereas, the sole appellant of
Cr. Appeal (SJ) No.832 of 2006, Jay Shankar Shukla, has been convicted
under section 304 part II of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for ten years. Appellants of both the appeals have
further been convicted under section 323 of the Indian Penal Code and
sentenced to undergo simple imprisonment for six months. The sentences
have been ordered to run concurrently.
3. Initially, in the first information report, apart from the
three appellants, named above, one Yadu Shukla was also made accused.
However, in course of trial, Yadu Shukla died and, thus, the trial against him
abated.
4. The appellants, together with co-accused Yadu Shukla,
Patna High Court CR. APP (SJ) No.832 of 2006 3
who died in course of trial, were charged under Section 302/34 of the Indian
Penal Code for intentionally and knowingly causing the death of Bipin Bihari
Shukla in furtherance of common intention. They all were further charged
under Section 307/34 of the Indian Penal Code for causing injury to the
informant Sanjay Shukla in furtherance of common intention. The deceased
accused Jadu Shukla was separately charged under Section 307 of the Indian
Penal Code for causing murderous attack on Sanjay Shukla. The appellant Jay
Shankar Shukla was separately charged under Section 302 of the Indian Penal
Code for causing death of Bipin Bihari Shukla. The appellant Babuli Shukla
has further been separately charged under Section 323 of the Indian Penal
Code for causing voluntary hurt to Asha Kumari.
5. The prosecution case is based on the fardbeyan of Sanjay
Shukla which was recorded on 17.4.1996 at 6 p.m. at Krishna Brahm Police
Station by the Sub.Inspector-cum-Officer Incharge of the said police station
relating to an incident which took place on the same day at 5 p.m. It has been
alleged that on the date and time of occurrence, while the informant was busy
in collecting wheat at the roof of his house, his agnates Babli Shukla and
Yadu Shukla started abusing him. The informant protested and came down
from his roof. When he came near his door he found the appellants Jai
Shankar Shukla and Daya Shankar Shukla, both sons of Babli Shukla, being
armed with Lathi, present there. It has further been alleged that at the instance
of Babli Shukla, his son Daya Shankar Shukla, assaulted the informant with
Patna High Court CR. APP (SJ) No.832 of 2006 4
Lathi aiming at his head, but, the informant while trying to protect himself,
raised his right hand and the Lathi hurled by Daya Shankar Shukla hit him on
his fingers causing bleeding injury. Thereafter, the accused Yadu Shukla
assaulted him with Lathi which hit him on his head as a result of which he fell
down. Accused Daya Shankar Shukla and Jay Shankar Shukla then caught
hold of the informant. The informant, thereafter, started crying. At this point
of time, the informant's father Bipin Bihari Shukla came out and enquired as
to why his son was being assaulted.
6. It has further been alleged by the informant that the
accused Babli Shukla exhorted and at the instance of Babli Shukla his son Jai
Shankar Shukla assaulted Bipin Bihari Shukla with Lathi on his head which
caused fracture injury as a result of which he became unconscious and fell
down and thereafter, the accused Daya Shankar Shukla and Babli Shukla,
repeatedly assaulted him with Lathi causing injury upon his legs and back.
7. The informant has further alleged that in the meantime
his younger sister Asha Kumari came crying at the place of occurrence. The
accused Babli Shukla assaulted her also by Lathi causing injury on her head.
Thereafter, the informant's mother Sita Devi, brother Binod Kumar Shukla
and others started crying for help. Several villagers came running towards the
place of occurrence, and seeing them, the accused persons fled away. The
informant then states that his brother was beaten one year back by the accused
Patna High Court CR. APP (SJ) No.832 of 2006 5
persons. The motive for the occurrence is alleged to be an ongoing land
dispute in court between the parties. It has also been stated in the first
information report that the accused persons are close relatives of the
informant.
8. On the basis of the aforesaid fardbeyan, the police
registered Simari P.S. Case No.44 of 1996 on 18.4.1996 under sections 341,
323, 325, 307, 447, 337 and 504/34 of the Indian Penal Code against the
appellants and one Yadu Shukla. While registering the first information
report, one Suresh Baitha (P.W.13) was appointed investigating officer of the
case. The fardbeyan has been proved and marked as Ext.1, whereas, the
formal first information report of the case has been proved and marked as
Ext.6 by the prosecution in course of trial. The investigating officer of the
case, immediately after the farbdeyan was recorded, sent three requisitions on
the date of occurrence itself to the Medical Officer, Dumraon for treating the
injured Bipin Bihari Shukla, Asha Kumari and Sanjay Shukla and issuing their
respective injury reports. The requisitions sent by the investigating officer to
the Medical Officer, Dumraon have been proved by the prosecution and
marked as Exts.7, 7/1 and 7/2 respectively. The doctor, B.K.Singh (P.W.11),
who was posted at Dumraon in Primary Health Centre on receipt of police
requisitions examined the injured Bipin Bihari Shukla, Asha Kumari and
Sanjay Shukla on 17.4.1996 and issued respective injury reports which have
been proved and marked as Exts,4, 4/1 and 4/2 respectively by the
Patna High Court CR. APP (SJ) No.832 of 2006 6
prosecution in course of trial.
9. The injured, Bipin Behari Shukla, was taken to
P.M.C.H., Patna for better and spcialised treatment as per advise of the doctor,
who treated him, initially at Dumraon Primary Health Centre. While
undergoing treatment at P.M.C.H., Patna, Bipin Behari Shukla, died on
1.5.1996. On the same day at 8.15 p.m. his inquest report was prepared by A.S.I., of Pirbahore Police Station on bed no.33 of Neurology ward of P.M.C.H., Patna. The inquest was witnessed by the informant and Arun Shukla, cousin brother of the informant. In the inquest report in column (vi) it has been noted that as per the statement of the informant the appellant Jay Shankar Shukla assaulted the deceased by Lathi on his head and thereafter the appellant Daya Shankar Shukla assaulted him at his head, waist, legs and back as a result of which he became unconscious and in course of treatment he died. The inquest has been brought on record and marked as Ext.2 on behalf of the prosecution.
10. The informant of the case has also made his statement before the A.S.I., R.P.Singh of Pirbahore Police Station, Patna on 1.5.1996 in P.M.C.H., Patna, at 8 p.m. after the death of his father which was duly recorded by him and forwarded to the officer-in-charge, Krishna Brahm Police Station, Buxar for necessary action. In the subsequent statement which has been brought on record and marked as Ext.1/1, the allegation of assault upon the deceased is confined to the appellants Jay Shankar Shukla and Daya Patna High Court CR. APP (SJ) No.832 of 2006 7 Shankar Shukla only. The informant has not alleged that the appellant Babli Shukla in any manner participated in the assault upon the deceased. In the second statement recorded on 1.5.1996 the informant alleged that his father, who was brought to P.M.C.H. on 17.4.1996, died at 5 p.m. on 1.5.1996, while undergoing treatment.
11. In course of investigation, the investigation officer had inspected the place of occurrence on 18.4.1996 and had prepared a seizure list with respect to blood stained earth. The seizure list was witnessed by Radhe Shyam Pandey (P.W.9) and Harikesh Mahto (P.W.10). The signature of P.W.9 on the carbon copy of the seizure list has been proved and marked as Ext.3 by the prosecution in course of trial.
12. The police after completing investigation submitted charge-sheet against the appellants under sections 341, 447, 504, 337 and 302/34 of the Indian Penal Code. The learned Chief Judicial Magistrate, Buxar took cognizance of the offence and committed the case to the court of sessions for trial. As noted above, the charges were read over and explained to the appellants to which they did not plead guilty and claimed to be tried.
13. In course of trial on behalf of the prosecution 14 witnesses were examined in order to prove the charges. They are
(i)Chandrawati Devi (P.W.1), aunt of the informant, (ii) Suman Dubey (P.W.2), cousin sister of the informant, (iii) Parmila Pathak (P.W.3), sister of the informant, (iv) Sita Shukla (P.W.4), mother of the informant and wife of Patna High Court CR. APP (SJ) No.832 of 2006 8 the deceased, (v) Lal Bihari Shukla (P.W.5), uncle of the informant and brother of the deceased, (vi) Binod Kumar Shukla (P.W.6), brother of the informant, (vii) Ruman Devi (P.W.7), cousin sister of the informant, (viii) Sanjay Shukla (P.W.8), the informant, (ix) Radhey Shyam Pandey (P.W.9), a formal witness, who has proved his signature on the carbon copy of the seizure list, (x) Harikesh Mahto (P.W.10), a witness to the seizure list, who was declared hostile by the prosecution, (xi) Dr.Bijay Kumar Singh (P.W.11), the doctor posted at Dumraon in Primary Health Centre who examined the injured and issued injury reports, (xii) Dr. Arun Kumar Singh, the doctor who conducted postmortem examination on the dead body of the deceased, (xiii) Suresh Baitha, the investigating officer of the case and (xiv) Ram Dayal Dubey (P.W.14), a formal witness.
14. The informant Sanjay Shukla was examined as P.W.8 in the case. While deposing in court, he has stated that due to the inclement weather condition, on 17.4.1996 at about 5 p.m., he together with other children of the family went to the roof of the house and started collecting wheat and rolling the bed kept there. The children were making noise. In the meantime, appellant Babli Shukla and the co-accused Yadu Shukla came on their roof and started hurling abuses. The informant protested. He came down but was caught hold of by the accused persons. They dragged him towards the public lane. The appellant Babli Shukla ordered to kill him upon which the appellant Daya Shankar Shukla assaulted him by Lathi aiming his head but the Patna High Court CR. APP (SJ) No.832 of 2006 9 informant in order to rescue himself put his hand above his head and as a result, thereof, he sustained Lathi injury on his fingers. Thereafter, accused Yadu Shukla assaulted by Lathi on his head. In the meantime, his father Bipin Bihari Shukla, came there and requested them not to assault the informant. The appellant Babli Shukla exhorted others to kill his father. The appellant, Jay Shankar Shukla, then assaulted by Lathi on the head of Bipin Bihari Shukla which caused fracture injury and he fell down. When Bipin Bihari Shukla fell down, the other accused persons also assaulted him by Lathi. In the meantime, the informant's sister Asha Kumari came there and enquired as to why they were assaulting them, upon which the appellant Babli Shukla assaulted her also, by Lathi, on her head. On hue and cry being raised by the family members including the informant's mother Sita Shukla (P.W.4) and brother Binod Kumar Shukla (P.W.6) several villagers came and witnessed the occurrence. The accused persons seeing them fled away from the place of occurrence. The informant, his father and the injured sister were brought to Krishna Brahma police station where his fardbeyan was recorded. The fardbeyan has been proved by the informant and marked as Ext.1. He states in his deposition that the police then referred the injured to Primary Health Centre, Dumraon. for treatment. The doctor at Dumraon Primary Health Centre examined them and referred his father to P.M.C.H., Patna for further treatment. In course of treatment his father died at P.M.C.H., Patna on 1.5.1996. He has stated that his fardbeyan was again recorded at P.M.C.H., Patna High Court CR. APP (SJ) No.832 of 2006 10 Patna. He identified and proved his subsequent fardbeyan which has been marked as Ext.1/1. He also proved the inquest report which was prepared in his presence and has been marked as Ext.2. He was cross-examined at length but the witness stood to the test of cross-examination. However, in cross- examination, he admits that the appellant Babli Shukla had also instituted a false case against him for the same occurrence.
15. The other witnesses such as Chandrawati Devi (P.W.1), sister-in-law (Bhabhi) of the deceased, Suman Kumari (P.W.2), daughter of P.W.1, Pramila Pathak (P.W.3), daughter of the deceased, Sita Shukla (P.W.4), wife of the deceased, Lal Behari Shukla (P.W.5), brother of the deceased, Binod Kumar Shukla (P.W.6), son of the deceased, Ruman Devi (P.W.7), daughter of P.Ws.1 and 5 are all family members of the deceased and the informant. They are eye witnesses to the occurrence. They have fully corroborated the informant's version. Nothing material could be taken out by the defence either in the cross-examination of the informant or in the cross- examination of other witnesses to the occurrence.
16. Radhey Shyam Pandey (P.W.9), is a formal witness. He has proved his signature on the seizure list of blood stained earth which has been marked as Ext.3.
17. Harikesh Mahto (P.W.10), is another seizure list witness, who has been declared hostile by the prosecution.
Patna High Court CR. APP (SJ) No.832 of 2006 11
18. Dr.Vijay Kumar Singh (P.W.11) is a medical officer who was posted at Dumraon Primary Health Centre on 17.4.1996. He had examined the three injured persons and issued their respective injury reports on the back of the requisition sent by the police on the date of occurrence itself. He has proved the injury reports of Bipin Behari Shukla, Asha Kumari and Sanjay Shukla which have been marked as Exts. 4, 4/1 and 4/2 respectively.
19. He examined Bipin Bihari Shukla at 6.30 p.m. on 17.4.1996 and found the following injuries upon his person:-
"(i)Haemotoma 2"x ½"x ¼" over right side of forehead.
(ii) Haemotoma 3 ½"x 3" x ¼" with lacerated wound ½" x ¼" scalp deep over parietal area".
The injured, Bipin Bihari Shukla, was advised for X-Ray of scalp. The opinion regarding nature of injury was kept reserved by him till receipt of X-Ray report. The injured was referred to P.M.C.H., Patna for better treatment. As per the doctor, the injury was caused within 24 hours.
20. Immediately after examining Bipin Bihari Shukla he examined the injured Asha Kumari aged about eight years at 6.55 p.m. and found abrasion ¼"x ¼" over middle of frontal part of her scalp caused by hard and blunt weapon. He opined the nature of injury to be simple, caused within 24 hours.
Patna High Court CR. APP (SJ) No.832 of 2006 12
21. On the same day at 7.10 p.m. he also examined the informant Sanjay Shukla and found the following injuries on his person.
"(i)Haemotoma 1 ½"x 1"x ¼" over wrist posteriority aspect.
(ii)Haemotoma with ecchymosis 1"x ½" x ¼" over
middle of scalp.
(iii) Haemotoma ½"x ½"x ¼" on right side of forehead.
(iv)Lacerated wound ¾"x ¼"x skin deep over middle
finger on right hand."
The time of injury was noted to be within 24 hours and in his opinion all the injuries were simple caused by hard and blunt weapon.
In cross-examination P.W.11 admits that he found only one lacerated wound on the person of the deceased Bipin Bihari Shukla.
22. Dr. Arun Kumar Singh (P.W.12), who conducted the postmortem examination on the dead body of the deceased Bipin Behari Shukla on 2.5.1996 at 11.40 a.m. and issued postmortem report, has proved the same which has been marked as Ext.5 in course of trial.
23. In the postmortem examination following anti mortem external and internal injuries were found on the person of the deceased:-
" one stitched wound 6" in length, one inch left to midline on scalp and 4" above left ear, in left parietal region and left side of frontal region."Patna High Court CR. APP (SJ) No.832 of 2006 13
On dissection (a)massive haemotoma was found under scalp in all the regions; (b) one comminuted fracture of the size 4"x2" on left parietal bone; (c) one linear fracture of 3"
extending anteriorly to the right side of frontal bone from comminuted fracture; (d) One linear fracture of 3" extending behind and below on left temporal bone, from the comminuted fracture; (e) Massive extra deural sub dural and intraceribral haemotoma was found in all the regions of the brain; (f) in general all viscera were found congested. Stomach contained about 100 ml watery fluid."
24. P.W.12 in his deposition states that the cause of death was head injury. According to him, it was the impact of violence caused by hard and blunt object which caused death.
In cross-examination he admits that he could find only one external injury on the head of the deceased which was a stitched wound. He stated that haemotoma may be caused even without breach of skin. He further admitted that internal injuries could be detected only after dissection. According to him, the internal injuries noticed by him could not be caused due to surgical interference. The internal injuries found in head were resultant of external injury. He admits that in his report he had written to obtain report about external injury from surgeon. He also admits in cross-examination that he cannot say about the condition of external wound as the deceased had Patna High Court CR. APP (SJ) No.832 of 2006 14 already been examined first, by surgeon.
25. P.W.-13, Suresh Baitha is the investigating officer of the case. He has identified the writing of the officer-in-charge, Anil Hari Hazara on fardbeyan. He has also identified the writing and signature of A.S.I. Navmi Ram of Simari police station which has been marked as Ext.6. He has proved his writing and signature on the requisition made to the medical officer for examination of the injured, Bipin Behari Shukla, Asha Kumari and Sanjay Shukla. He states that he had inspected the place of occurrence, recorded the statement of the witnesses, prepared seizure list of blood stained earth, received Chalan, inquest report and postmortem report from P.M.C.H., Patna and after completing investigation submitted charge-sheet in the case.
26. P.W.-14, Ram Dayal Dubey is a formal witness.
27. On behalf of the defence, no witness was examined in course of trial. The defence is of false implication due to previous enmity.
28. The trial court on appreciation of evidence found the charge under section 307/34 of the Indian Penal Code to be not proved against the appellants. Since both the injured, namely, Sanjay Shukla and Asha Kumari had sustained simple injuries, the appellants were held guilty only under section 323 of the Indian Penal Code instead of section 307/34 of the Indian Penal Code. The trial court was also of the opinion that the prosecution had failed to establish that the accused persons assaulted the deceased with an Patna High Court CR. APP (SJ) No.832 of 2006 15 intention to cause his death. Only a single blow by Lathi was given on his head in course of sudden quarrel on a trivial issue. He was not even a target as he had intervened when the appellants were assaulting his son Sanjay Shukla. Thus, considering all these facts the trial court instead of convicting the appellants under section 302/34 of the Indian Penal Code and/or section 302 of the Indian Penal Code convicted the appellant Jay Shanker Shukla under section 304 part II of the Indian Penal Code and further convicted all the appellants under section 304 part II/34 of the Indian Penal Code.
29. Learned counsel for the appellants, in Cr. Appeal (SJ) No.748 of 2006, submits that their conviction under section 304 part II with aid of section 34 of the Indian Penal Code is erroneous in law. Though the informant alleges in his fardbeyan that it was Jay Shankar Shukla, who assaulted his father first by Lathi on his head and when he fell down the two appellants Daya Shankar Shukla and Babli Shukla also assaulted him by Lathi causing injury on his legs and back, but the doctor, who examined him first at Dumraon Primary Health Centre, could notice only one injury on the head of the deceased. No other injury was found either on back or on leg of Bipin Bihari Shukla. Thus, in the background of admitted enmity, it is submitted that it appears that the appellants Daya Shankar Shukla and Babli Shukla were falsely implicated by the prosecution.
30. Learned counsel further submits that even in the Patna High Court CR. APP (SJ) No.832 of 2006 16 postmortem report the doctor, who examined the deceased could find only one external injury on his head. The deceased died after 14 days of the occurrence in course of treatment. Though, it is alleged that large number of independent witnesses came and witnessed the occurrence, but not a single independent witness has been examined on behalf of the prosecution.
31. Learned counsel for the appellant in Cr.Appeal (SJ) No.832 of 2006 submits that the oral testimony of the witnesses examined on behalf of the prosecution is not consistent with the medical report. Though, the prosecution alleges that the deceased was repeatedly assaulted by Lathi by three persons, but only one injury could be found by the doctors, who examined him. The witnesses examined on behalf of the prosecution are all family members. They are admittedly on inimical term. There is also a counter case which fact has been admitted by the informant in cross-examination.
32. Having heard the parties and perused the record, I am of the view that the conviction and sentence of the appellants recorded by the trial court in Cr. Appeal (SJ) No.748 of 2006, namely, Daya Shankar Shukla and Babuli Shukla @ Babli Shukla under section 304 part II with aid of section 34 of the Indian Penal Code cannot be sustained. The witnesses are consistent on the point that it was appellant Jay Shankar Shukla who assaulted the deceased with Lathi on his head first, and when he fell down, the two appellants, namely, Daya Shankar Shukla and Babli Shukla also assaulted him Patna High Court CR. APP (SJ) No.832 of 2006 17 with Lathi on his leg, waist and back but the later part of the story could not be corroborated by the doctors, who examined the deceased Bipin Bihari Shukla as they could find only one injury on his head which is clearly attributed to the appellant Jay Shankar Shukla. No other injury has been found on his person. The enmity is admitted in the first information report itself.
33. It is well settled that existence of common intention amongst the participants in the crime is the essential element for application of section 34 of the Indian Penal Code. It is not necessary that individual act of the accused persons has to be proved by the prosecution by direct evidence. Common intention has to be inferred from the facts and circumstances of the case. Common intention does not mean same or similar intention. It implies pre-arranged plan and acting in concert pursuant to said plan. Mere participation in the crime with others is not sufficient to attract common intention to one of others involved in the crime. The subjective element, therefore, should be proved by objective test. It is only then that one accused can be made vicariously liable for the acts and deeds of other accused.
34. In the present case, the prosecution has alleged that the appellants Daya Shankar Shukla and Babuli Shukla (appellants of Cr. Appeal (SJ) No.748 of 2006) assaulted the deceased with Lathi but the medical evidence totally belies the oral testimony of the witnesses. Under such circumstances, it would be unsafe to convict them under section 304 Part II of Patna High Court CR. APP (SJ) No.832 of 2006 18 the Indian Penal Code with aid of section 34 of the Indian Penal Code. I, therefore, set aside the conviction of appellants Daya Shankar Shukla and Babuli Shukla @ Babli Shukla of Cr. Appeal (SJ) No.748 of 2006 under section 304 Part II/34 of the Indian Penal Code. I further find that the injured Asha Kumari to whom it is alleged that appellant Babuli Shukla assaulted has not been examined in course of trial. There is no explanation, whatsoever, for her non-examination. The appellant Babuli Shukla is not alleged to have assaulted in any manner to the informant Sanjay Shukla. Under such circumstances, his conviction under Section 323 of the Indian Penal Code can also not be sustained. However, so far as the appellant Daya Shankar Shukla is concerned, he is alleged to have assaulted the informant Sanjay Shukla with lathi which fact has duly been supported by the informant in his evidence laid in court as also by the medical evidence but the deposition of the informant and other witnesses has to be tested in the background of admitted enmity and the fact that apparently there has been attempt by the prosecution to implicate him on false charges. In my view, under the circumstances discussed, hereinabove, it would be unsafe to uphold his conviction even under section 323 of the Indian Penal Code.
35. So far as the appellant Jay Shankar Shukla (appellant of Cr.Appeal (SJ) No.832 of 2006) is concerned, it is specifically alleged that he assaulted the deceased with Lathi on his head as a result of which he became unconscious. He was taken to hospital first at Dumraon, and from there Patna High Court CR. APP (SJ) No.832 of 2006 19 considering his condition to be serious, he was referred to P.M.C.H., Patna, where in course of treatment he succumbed to his injuries. The oral testimony and the medical evidence, so far as, Jay Shankar Shukla is concerned, is consistent. The court below held Jay Shankar Shukla guilty under section 304 Part II and 323 of the Indian Penal Code. I fully agree with this part of the finding of trial court. Thus, I find no merit in his appeal.
36. In the result, Cr. Appeal (SJ) No.748 of 2006 is allowed. The impugned judgment of the trial court so far as it relates to the appellants, Daya Shankar Shukla and Babuli Shukla @ Babli Shukla, are concerned, is set aside. They are discharged from the liabilities of bail bonds.
37. So far as the appellant Jay Shankar Shukla, in Cr.
Appeal (SJ) No.832 of 2006, is concerned, I find no merit in his case. His appeal is, accordingly, dismissed. The impugned judgment and order of the trial court, as far as the appellant Jay Shankar Shukla is concerned, are upheld.
(Ashwani Kumar Singh, J) Patna High Court, Patna The 6th of July, 2012 Md.S/ NAFR.