INDRAMATI DEVI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the appellants, learned A.G.A. for the State of U.P. and perused the lower court record.

(2.) THE appellant Indramati Devi and Jhinkan Giri have moved this bail application in criminal appeal with a prayer that they may be release on bail during the pendency of this appeal. The appellants have been convicted for the offence punishable under section 302/34 IPC and have been sentenced to undergo life imprisonment with a fine of Rs. 5,000/ - each and have been further convicted under section 323/34 IPC and sentenced to undergo imprisonment of one year with a fine of Rs. 5,000/ - each.

(3.) IT is contended by learned counsel for the appellants that NCR of this case has been lodged by Brijesh Giri (P.W. 2) on 29.07.2012 at 0.15 A.M. under sections 323, 504, 506 IPC alleging therein that his father Laksham Giri was sitting at his door, at about 6.30 P.M. the appellants and co -accused Pintu @ Madho Giri and Rangi Lal assaulted the deceased, consequently he had sustained serious injuries on his head, there had been profuse blooding, after sustaining the injuries he fell down. On hue and cry the neighbour Devendra, Ram Lal and others came there, on account of their intervention the accused persons left the place of the incident by hurling the abuses and extending the threats. The deceased in an injured condition taken to the Government hospital, Etwah from where he was referred to District Hospital, Basti. The deceased was brought to the district hospital, Basti but during the treatment he succumbed to his injuries. In support of the prosecution version 9 witnesses have been examined in which P.W. 2 informant Brijesh Giri, P.W. 3 Devendra Giri and P.W. 4 Ram Lal have been examined as witnesses of the fact. In FIR no weapon has been shown in the hands of the accused person, but thereafter it is alleged that the accused persons were armed with lathi and danda. According to the medical examination report the deceased has sustained only three injuries in which injury No. 1 was lacerated wound on right side of the head 3 cm. above the eye brow, injury No. 2 was lacerated wound in between the eye brow, the injury No. 3 was lacerated wound on the back side of the head. But according to the post mortem examination report the deceased had sustained four anti mortem injuries in which injury No. 1 was stitched wound on the right side of the forehead, injury No. 2 was also stitched wound on the middle of the forehead, injury No. 3 was contusion around the right eye and injury No. 4 was lacerated wound on the back of the head. The dimension of the injuries shows that each injury was as a result of separate blow. According to the prosecution version the accused persons caused injuries on the person of the deceased but according to the injury report the deceased had sustained only three injuries. No specific motive has been attributed for committing the alleged offence. The trial court has committed error in convicting the appellants under section 302/34 IPC whereas they have been convicted only under section 304/34, 504, 506 IPC. In the present case charge were framed under sections, 304, 323, 504, 506 IPC but without following the procedure as prescribed under section 216, 217 Cr.P.C. the appellants have been convicted for the offence punishable under section 302/34 IPC. The appellants are not having the criminal antecedents. They shall not mis -use the liberty of bail in case they are released on bail.