SHIV MURAT UPADHAYA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal has been directed against the judgment and order dated 10/02/1981 passed by Sri N. S. Shamshery, the then Vth Additional Sessions Judge, Varanasi convicting thereby Shiv Murat Upadhaya, Ram Dhani Upadhaya and Dashmi under S. 304, Part I of I.P.C. read with S. 34, I.P.C. sentencing each of them to undergo imprisonment for life.

(2.) The facts leading to this appeal are that the deceased Hardeo was resident of village Vishunpura Khurd which lies within police circle Dhanapur of District Varanasi. He and some ladies of his family including his wife Barethi, daughter Dharmawati, Smt. Lakhaniya and Smt. Ramraji respectively, wives of his two real brothers Charan Deo and Indra Deo, and Smt. Parvati daughter-in-law of Indra Deo, used to do plantation of paddy seedling known as Ropani during the period, the incident took place. It is said that on the evening of 22-8-1978, a day prior to the incident when Hardeo along with aforesaid women of his family was returning home from village Kamharia, appellant Sheo Murat of village Tambagarh met him on the way and asked him to do Ropani in his field on the next day. Hardeo told him that he had already accepted advance wages from one Vikarma Singh of Village Kamharia for doing his Ropani and that he would do his Ropani after the Ropani of said Vikrama Singh. It is alleged that on 23-8-1978 around 7.00 a.m. when Hardeo along with 4-5 aforesaid inmates of his family was going to village Kamharia to do Ropani of Vikrama Singh, the appellants out of whom Sheo Murat Upadhyaya and Ram Murat Upadhaya are inter se real brothers and Dashami was then their ploughman, intercepted him near the peepal tree situated by the side of the field of one Gajadhar Teli of village Pipardaha and insisted them for doing their Ropani, but Hardeo refused to oblige them whereupon all the three appellants fell upon Hardeo and started belabouring him by means of lathis with which they were then armed saying that they would not leave him fit to do the Ropani. On the alarm of Hardeo, Ram Charan P.W.-2 and Ram Naresh P.W.-3 who were going to village Pipardaha to do the Ropani of one Sunder Singh of that village and were a few paces behind him, rushed to his rescue. The women accompanying Hardeo also started weeping and crying whereupon the appellants took to their heels. Hardeo after sustaining injuries had fallen down on the ground. After the incident, Dharmawati, the daughter of Hardeo, went to her village Vishunpura and informed her uncle Dharamdeo and others of the incident whereupon Dharamdeo and others came to the scene of the incident. On enquiry made by P.W.-1 Dharamdeo, Hardeo narrated to him the entire incident. Dharamdeo thereupon with the help of other persons took his injured brother on a cot to his village and from thereafter scribing a report Ext. Ka-1 on the dictation of Hardeo went to P.S. Dhanapur which lies at a distance of about 12 kms. to the West of his village and made over the written report there to constable Kawal Deep Singh (not produced) who on the basis of that report drew the F.I.R. Ex. Ka-3 and registered a case vide G. D. Ext.-3 at 2.30 p.m. on that very day. The police of P. S. Dhanapur referred Hardeo to P.H.C. Dhanapur where Dr. L. S. Yadav P.W. 5, then posted as Medical Officer conducted his medical examination at 4.15 p.m. on the same day. Dr. Yadav found the following injuries on the person of Hardeo :- 1. Contusion with swelling 16 cm x 13 cm on Lt. side of back 20 cm below from Lt shoulder joint. 2. Contusion 18 cm x 3 cm on the back oblique both side from mid line 27 cm below from 7 cervical vertebra. 3. Contusion with swelling - 8 cm x 21/2 cm on the lateral side elbow joint of Lt. hand. 4. Fracture of Lt. fore arm about 5 cm above from wrist joint (Lt.) (under observation) 5. Contusion with swelling - 10 cm x 2 cm on the lateral side of thigh (Lt) 21 cm above from knee joint (Lt) 6. Contusion 6 cm x 3 cm on the lateral side of the leg 10 cm below from knew joint (Lt) 7. Laceration - 11/2 x 1/4 cm x skin deep, 1 cm forward from Ear (Rt). 8. Contusion with swelling - 8 cm x 2 cm. on Rt arm (lateral side) just above the Elbow joint (Rt.) 9. Contusion with swelling 9 cm. x 31/2 cm dorsal surface of the fore arm (Rt.) just below the Elbow joint (Rt.) 10. Contusion with swelling 6 cm x 3 cm on the palm of the Rt hand. 11. Contusion with swelling - 8 cm x 2 cm on the antero-medial side of thigh - 8 cm above from knee joint (Rt.) 12. Contusion with swelling - 15 cm x 3 cm on the lateral side of the thigh (Rt.) middle part. 13. Compound fracture of Rt. leg 4 cm above from Rt ankle joint, outside opening 3 cm x 11/2 cm x not correct measurable deep on the medial side of the leg 4 cm above from ankle joint (Rt.) under observation.

(3.) According to Dr. Yadav, all the injuries of Hardeo had been caused by blunt object and his injury Nos. 4 to 13 were of grievous nature. Dr. Yadav referred Hardeo to S.S.P.C., Varanasi for his treatment and X-ray but as it appears for non-availability of conveyance Hardeo could not be rushed to Varanasi and around 6.00 P.M. on that very day succumbed to his injuries out side the PHC, Dhanapur while waiting for a Roadways bus. The information of his death was passed on at the police station Dhanapur where the case already registered was altered. S.I. Rama Shankar Mishra, P.W.-6 on 24-8-1978 took the inquest of the dead body and prepared, photo nash, Challan nash and other papers and after sealing the dead body handed it over to constables Zafar Ali P.W.-7 and Virendra Singh (not produced) for its being taken to the mortuary. The aforesaid constables in their turn took the dead body to mortuary at Varanasi where on their identification of the dead body, Dr. B. V. Subrahmanyam then posted in Forensic Department of Medical Science in B.H.U., conducted the post-mortem examination at 2.30 p.m. on 25-7-1978. According to Dr. B. V. Subrahmanyam the deceased was about 35 years of age and had died 30-36 hours before. He found that rigor mortis had passed off and post-mortem blisters peeled off at places, present. He noticed the following ante mortem injuries :- 1. Lacerated wound 1.5 cm. x 2.00 cm in front of right ear. 2. Abrasion 8 cm. x 2 cm. Over right face margin prominence. 3. Contusion 8 cm. x 1 cm. outer aspect of right arm above the elbow. 4. Contusion 9 cm. x 3.5 cm. on back of right fore-arm upper 1/3. 5. Contusion 6 cm. x 3 cm. right palm and dorsum of hand. 6. Abraded contusion 6.00 cm. x 1.5 cm. Over outer aspect of right thigh 6.00 cm. below right iliac crest. 7. Lacerated wound 3 cm. x 1.5 cm. x 2 cm. Inner aspect of lower 1/3 of right leg 5 cm. above the right ankle with compound commuted fracture of both bones of right leg underneath. 8. Contusion 35 cm. x 18 cm. over inner, outer and front aspect of left leg. 9. Contusion 10 cm. x 2 cm. outer aspect of left thigh at mid 1/3. 10. Contusion 8 cm. x 2.5 cm. on the outer aspect of left fore arm at its lower 1/3 with simple commuted fracture of both bones of left fore-arm underneath. 11. 0.1 cm diameter puncture wound with contusion 12.0 cm. x 10 cm. on the outer and back aspect of right fore arm upper 1/3 2.5 below elbow with underlying fracture of radius. 12. Contusion 18 cm. x 12 cm. outer and back aspect of left arm upper 1/3. 13. Contusion below the two shoulder blades in the middle of the back 25 cm. x 20 cm.