Allahabad High Court
Shashi Kamal Rai vs State Of U.P. on 5 March, 2004
Equivalent citations: 2004CRILJ3536
Author: U.S. Tripathi
Bench: U.S. Tripathi, M. Chaudhary
JUDGMENT U.S. Tripathi, J.
1. The above three appeals have been preferred against the judgment and order dated 9-10-1980 passed by IInd Additional Sessions Judge, Ghazipur in Sessions Trial No. 153 of 1975 convicting Shashi Kamal Rai accused under Section 325, IPC and instead of sentencing him "to imprisonment directing him to be released on probation for a period of three years on his entering into a bond of Rs. 2,500/- and furnishing two sureties each in the like amount, for putting in appearance to receive sentence, if and when called upon during the said period and in the meantime for keeping peace and doing good behaviour.
2. The prosecution case briefly stated, was that Sudhir Kumar deceased (18) and accused Shashi Kamal Rai were students of Intermediate Ist year in Government City Inter College, Ghazipur. They were students of Science group with Biology IIIrd and IVth periods of their class from 1].20 a.m. to 12.40 p.m. on every Friday and Saturday were allotted for practical in. Biology subject. On 10-2-1973 (Saturday) the batch of students consisting of the deceased and the accused and other students were doing their Biology practical in the laboratory at different tables. Sri K.K. Misra (PW 9) was Biology teacher and was also supervising practical of the students. After supplying materials for practical Sri K.K. Misra (PW 9) left the laboratory. It is alleged that the accused and the deceased were doing their practical on same table. Some quarrel took place between them at the end of 4th period and the accused started fisting the deceased. The deceased defended the blows of fists, but some blows hit on his chest and abdomen with the result he sat down on the floor pressing his chest and abdomen with his hands. The accused, thereafter, left the laboratory and the other students also dispersed. Thereafter, when the deceased came on the road, the accused again started fisting him. However, the matter was intervened by passerby including Diwakar Srivastava (P.W. 3) and Jairam (P.W. 5). The deceased was brought to District Hospital, Ghazipur at 3.30 p.m. by Shaym Narain Tiwari and Chandra Prakash Sharma, where he was treated by Dr. Prem Shanker Lal. The deceased was also examined by Dr. K.P. Singh (PW 13) and Dr. Om Prakash (PW 8) who prescribed certain medicines, but ultimately the deceased expired at 4.30 pm.
3. After the death of deceased, Dr. Prem Shanker Lal sent a note to Station Officer, P.S. Kotwali, Ghazipur informing that Sudhir Kumar deceased was brought to the hospital at 3.30 pm. in unconscious condition by Shyam Narain Tiwari and others, and he expired on 4.30 p.m. The above information was entered at general diary report (Ext. Ka-16) and Sri Tilak Dhani Ram, Sub-Inspector (PW 11) was deputed to conduct inquest of the dead body of the deceased. He conducted inquest of the dead body of deceased on 11-2-1973 in the morning, sealed the dead body and sent the same for postmortem.
4. The information regarding death of deceased was given to his mother, who called Rajendra Singh (PW 1) and asked him to lodge report of the occurrence at the police station, as father of the deceased had gone to Agra in connection with meeting of Rajya Karmachari Sanyukta Parishad. Rajendra Singh (PW. 1) prepared written report (Ext. Ka-1) and lodged the same at the P.S. Kotwali on 11-2-1973 at 7.50 p.m. On the basis of above report, chick report (Ext. Ka17) was prepared and a case under Section 302, IPC was registered against the accused, vide G.D. report (Ext. Ka-18).
5. Autopsy on the dead body of the deceased was conducted on 11-2-1973 at 4.45 p.m. by Dr. Om Prakash (P.W.8), who found following facts :
No external injury was seen on the body of the deceased. The internal examination showed following injuries :--
1) Lacerated wound 21/4" x 1/2" on the right lobe of liver.
2) Lacerated wound 1" x 1/2" on the superior lobe of spleen.
3) Lacerated wound 1/2" x 1/2" on left side of spleen. Abdominal cavity contained about 2 liters of blood. Cause of death was shock and haemorrhage resulting from injuries of liver and spleen.
6. The investigation of the case was taken up by Sri Akchhaibar Nath Dubey (P.W. 16), who interrogated the witnesses, visited the place of occurrence, prepared site plan and on completion of investigation submitted charge-sheet against the appellant on 14-2-1973. Thereafter, the investigation of the case was taken up by C.B.C.I.D. on 25-2-1973. Sri Ram Bahadur Singh (P.W. 12) Inspector, C.B.C.I.D. was entrusted with the investigation, who on completion of investigation submitted charge-sheet against the accused on 5-2-1975.
7. Cognizance of the case was taken up by the Magistrate who committed the case to the Court of Sessions.
8. The accused was charged with the offence punishable under Section 302, IPC, which he pleaded not guilty and contended that he was not present in the College at the time of occurrence and was falsely implicated.
9. The prosecution examined in all 17 witnesses namely Rajendra Singh (P.W. 1), Dr. Prem Shankar Lal (P.W. 2), Diwakar Srivastava (P.W. 3), Tej Bahadur Singh (P.W. 4), Jai Ram (P.W. 5), Virendra Singh Yadav (P.W. 6), Mohan Chandra Joshi (P.W. 7), Dr. Om Prakash (P.W. 8), Krishna Kumar Misra (P.W. 9), Ajai Prakash Srivastava (P.W. 10), Tilak Dhari Ram (P.W. 11), Ram Bahadur Singh (P.W. 12), Dr. K.P. Singh (P.W. 13), Dhani Shankar (P.W. 14), Udai Raj Singh (P.W. 15), Akchhaibar Nath Dubey (P.W. 16), and Jamshed Alam (P.W. 17). Diwakar Srivastava (P.W. 3), Jai Ram (P.W. 5), and Virendra Singh Yadav (P.W. 6), were the witnesses was formal in nature.
10. The accused examined Ramji Rai (D.W. 1) and Mata Deen Rai (D.W. 2), in his defence.
11. The learned Sessions Judge on considering the evidence of the prosecution as well as of the accused held that evidence of the Virendra Singh Yadav (P.W. 6), is worthy of reliance and the evidence of Diwakar Srivastava (P.W. 3) and Jai Ram (P.W. 5) was not worthy of reliance. He further held that evidence of Virendra Singh Yadav (P.W. 6), was corroborated by medical evidence and therefore it is proved that the deceased was dealt with fists blows by the accused resulting in the rupture of his liver and spleen, which resulted into his death. He further held that from the facts and circumstances of the case as revealed by Virendra Singh Yadav (P.W. 6), it was difficult to hold with any amount of reasonable certainty that intention of the accused was homicidal and there was no sufficient material to reason-ably infer that in dealing with the blow on the deceased, the accused intended to cause such injuries as would be likely to cause his death much-less such injuries might be sufficient in ordinary course of nature to cause his death. Therefore, the accused must be held liable for causing grievous hurt punishable under Section 325, IPC. With these findings, he convicted the accused under Section 325, IPC, but considering the age of the accused and facts and circumstances of the case, instead of sending him to prison released him on probation for a period of three years as mentioned above.
12. Aggrieved with his above conviction, the accused filed Criminal Appeal No. 2511 of 1980 and the State Government filed Government Appeal No. 81 of 1981 for enhancement of sentence under Section 325, IPC as well as Government Appeal No. 89 of 1981 for setting aside the acquittal of the accused under Section 302, IPC and convicting him under said section.
13. We have heard Sri Shashank Shekhar, learned counsel for the accused and Sri R.K. Singh, learned A.G.A. for the State of U.P. in all the appeals and have gone through evidence on record.
14. The learned counsel for the accused has not challenged the factum of occurrence. We have gone through the statement of Virendra Singh Yadav (P.W. 6), who is an eye-witness of the incident. He has categorically stated that he was monitor of the class, in which the accused and deceased were studying. That on the date of occurrence at 12.15 or 12.30 pm. Biology practical classes were going on and accused and deceased were also present along with other students. He was also busy in practical on another table. Near about at the end of practical period, he saw that Sudhir Kumar and Shashi Kamal Rai were quarrelling with each other and accused Shashi Kamal was beating Sudhir Kumar deceased and the later was saving himself. Thereafter, Sudhir Kumar sat on the floor pressing his chest and abdomen with his hands. Virendra Singh Yadav (P.W. 6) had no enmity, ill-will or grudge against the accused and it is not disputed that he was also present at the laboratory, where accused and deceased were doing practical. The evidence of Virendra Singh Yadav (P.W. 6), also finds corroboration from medical evidence. Therefore, the trial Court has rightly believed the evidence of Virendra Singh Yadav (P.W. 6) regarding causing fists blows on the deceased in the laboratory.
15. It was further alleged by the prosecution that after causing fists blows in the laboratory the accused again caused several fist blows on the deceased on the road. On this point, Diwakar Srivastava (P.W. 3) and Jai Ram (P.W. 5) were examined. Diwakar Srivastava (P.W. 3), claimed that on 10-2-1973 he had gone to District Hospital, Ghazipur in connection with illness of his wife and while he was returning to his house at about 2 pm. he saw that the accused Shashi Kamal Rai was fisting on the abdomen of the deceased in between the College gate and the road. He came to know on the spot that the deceased was Sudhir Kumar. Thereafter, he came to know that the deceased died in the hospital. Then he went to mortuary and narrated the incident to one Joshi Ji. He also admitted that he was named as witness in some other cases. On the date of occurrence he had not gone to the house of deceased to inform about the incident. He claimed that he again went to the hospital on next day. From perusal of cross-examination of the witness, it appears that he was subsequently prepared to become a witness and had not actually seen the occurrence and therefore he was rightly disbelieved by the trial Court.
16. The other witness Jai Ram (P.W. 5) was peon with Takabi Amin. He claimed that on the date of occurrence, he was on leave and at about 2 p.m. he had gone to district hospital for purchasing fruits, where he saw that accused was fisting Sudhir Kumar. He and other passers by intervened. Sudhir Kumar sat on a rickshaw and went towards his house. He also admitted that he had gone to identify the accused in the Jail after about 2 years of the occurrence. The accused had moved application for his identification by the witness, but his identification was got conducted after long gap of two years. Jai Ram (P.W. 5) admitted that he was not knowing the deceased from before still he claimed that he went to mortuary and told that he had seen the incident of fisting in front of hospital gate. The witness had not given a plausible reason as to why he went to purchase fruits in front of hospital, while according to his evidence he was on leave , as he was suffering from fever. From the cross examination of the witness, it appears that his presence on the spot was doubtful.
17. In these circumstances, the case of the prosecution regarding second phase of incident in front of hospital was rightly disbelieved by the Trial Court.
18. Assuming that second phase of incident, which allegedly took place in front of gate of hospital is not believable, the evidence of Virendra Singh Yadav (P.W. 6) which is supported by medical evidence clearly established the first phase of incident in the laboratory and as such, It has been established by the prosecution that the accused caused fists blows on the abdomen of the deceased in the laboratory of the College. The prosecution had not alleged any motive. There is also nothing on record to show that any previous altercations had taken place between the accused and the deceased. Quarrel between accused and deceased took place suddenly without any previous motive or cause. No apparent injury was seen on the person of the deceased. In these circumstances, trial Court concluded that the offence comes within the purview of Section 325, IPC. The learned A.G.A. contended that there is no medical evidence to show that spleen and liver of the deceased were enlarged regarding which the accused had no knowledge, but he caused fists blows, which resulted into laceration of spleen and liver, therefore, the acts of accused come within the purview of Section 304, Part 2, IPC.
19. A Division Bench of this Court held in the case of Sir Prakash v. The State, 1989 All LJ 177 as below (Para 17) as below :--
"The fact remains that Bachu did not suffer any visible injury. This would have been possible only if he was not subjected to any severe beating by kicks and blows as alleged by the prosecution in our view when in absence of any such visible injury the spleen of Bachu was ruptured, the same shows that his spleen was enlarged as deposed by doctor.
It is not the case of the prosecution that the fact that the spleen of Bachu was enlarged was known o the appellant. When this is so the appellant could not be said guilty under Section 304, I.P.C. Therefore this is not a case in which enhancement of punishment of the appellant is warranted."
20. It was further held in the said decision as below :--
"The learned counsel for the appellant has urged before us that, even if the appellant had beaten Bachu and caused injuries to him then the case which was made out against him was not a case under Section 325, IPC, but was a case under Section 323, IPC. This argument has got substances. It may be observed that Bachu had not sustained any visible injury. From the internal injuries sustained by Bachu it is clear that he had not suffered any fracture etc. The injuries sustained by him were obviously simple. Therefore, the learned Sessions Judge has committed an error in holding that the appellant was guilty under Section 325, IPC. In our opinion the only offence which is made out against the appellant is the offence under Section 323, IPC."
21. The learned A.G.A. has contended that there is no evidence in this case that the spleen of the deceased was enlarged. I have gone through the evidence of Dr. Om Prakash (P.W. 8). He admitted in his cross examination that he had not noted down the size of liver and spleen. However, he stated that since size of spleen and liver were normal, he had not mentioned its size. He further stated that he treated the size of liver and spleen as normal, because he had not noted this fact in the post mortem report. Therefore, there is no definite medical evidence from the side of prosecution that spleen and liver of the deceased were not enlarged. The evidence of Virendra Singh Yadav clearly indicated that the accused caused fists blows on the abdomen of the deceased, while they were busy in doing practical. It is not the case of the prosecution that the deceased was made fall down and then heavy blows from legs or some other substance were caused on the abdomen. In these circumstances, the possibility that liver and spleen of the deceased were enlarged cannot be easily ruled out.
22. In view of facts and circumstances of the case, we find that the principles laid down in the decision of Sri Prakash (supra) are fully applicable to the facts of this case and therefore, the offence falls under Section 323, IPC and not under Section 325, IPC.
23. The learned A.G.A. further contended that the accused was not awarded any sentence but was released on probation and considering into the facts and circumstances of the case in which an innocent boy lost his life, sentence ought to have been awarded instead of releasing the accused on probation. The occurrence had taken place on as late as in the year 1973. The trial concluded before the Sessions Judge on 7-10-1980 and the appeal came for decision in the year 2003-04. At the time of his statement under Section 313, Cr.P.C. i.e., on 22-5-1980 the accused stated his age as 24 years. Therefore, at the time of occurrence, the accused was also aged about 16-17 years and in these circumstances after such a long time, it would not be appropriate to award sentence to the accused specially when it is not shown that accused was involved in any subsequent offence during the period of probation.
24. In view of our above discussions and observations, we find that Criminal Appeal No. 2511 of 1980 partly succeeds and Government Appeal No. 81 of 1981 and 89 of 1981 fail.
25. Criminal Appeal No. 2511 of 1980 is partly allowed and conviction of appellant under Section 325, IPC is altered under Section 323, IPC and his release on probation is confirmed. Government Appeals No. 81 of 1981 and 89 of 1981 are, accordingly, dismissed.