PHULAI Vs. STATE OF U P

JUDGEMENT

(1.) AMAR Saran, J. This criminal appeal has been preferred by the appellants Phulai, Puranmasi and Lakhan, who have been convicted to life imprisonment under Section 304 read with Section 34 IPC and to six months R. I. Under Section 323 read with Section 34 IPC by a judgment and order of the IIIrd Additional District and Sessions Judge, Gorakhpur, dated 16-8-1982. The sentences were to run concurrently. As there is a report of the C. J. M. , Gorakhpur, dated 22-6-2007 that the appellant Lakhan has died about 10-12 years ago, about which Gram Pradhan has issued a certificate, hence the appeal preferred by the appellant Lakhan abates. One other accused person Vrishbhan had been acquitted by the trial Court by the aforesaid judgment. We have now only to consider the appeal preferred by the appellants Phulai and Puranmasi.

(2.) IN pursuance of an order dated 22-5-2007 passed by an earlier Division Bench, the appellant Puranmasi was produced in Court in custody, whereas Phulai had appeared in person. Puranmasi was sent back to jail and is presently in custody. An application was moved for releasing Puranmasi on bail, but on 27-7-2007 we decided to hear the appeal itself on merit and reserved our orders.

(3.) ON internal examination, the frontal bone on the left side of the head and parietal bone on the right side of the head below injuries No. 1 and 2 were found fractured. There was blood on the membranes. There was blood below both the injuries. Clotted blood was present in the brain tissues below the injuries. Both chambers of the heart were empty. Small intestine and stomach was empty. There was faecal matters in the large intestine. The bladder was empty. The death could have been caused as a result of shock and haemorrhage due to above injuries, which were sufficient in the ordinary course of nature to cause death. The injuries could have been caused due to lathies. The deceased could have died on 11-5-1980 at about 7 p. m. However, he admitted in his cross-examination that Sahadeo's injuries could have been caused in a scuffle (pataka pataki) by falling twice on the hard ground. There could have been variance of six hours in the estimate of time and deceased could have died on 11- 5- 1980 at about 3 p. m. ON 12-6-1980 the I. O. P. W. 6 received the post-mortem report and on 13-6-1980 he learnt that the other accused had surrendered in Court. He recorded their statements in jail after obtaining permission from the Judicial Magistrate, Maharajganj and after investigation, he submitted the charge- sheet on 19-6-1980 (Ext. Ka-11 ).