STATE OF U P Vs. MOTI LAL

JUDGEMENT

(1.) THIS is a Government Appeal against the order of the Civil and Sessions Judge, Deoria acquitting the accused-respondents Moti, Shyam Dutt, Kanhai and Bhardul of the offence under Section 302/34. I. P. C.

(2.) THE prosecution story as disclosed in the first information report lodged by Sukhari deceased was as follows: One Smt. Bilari, alleged that she was the sister of Sukhari's father and asserted her title to cultivator holdings inherited by Sukharil from his father. It was alleged that Shyam Dutt accused was doing pairvi in that suit on behalf of Smt. Bilari as against Sukhari. Shyam Dutt had also appeared as a witness for Smt. Bilari in that case. It was alleged that the remaining three accused Moti, Kanhai and Bhardul were helpers and supporters of Shyam Dutt who was the Pradhan of the village. Shyam Dutt had threatened Sukhari with dire consequences several times. On the night between the 25th and 26th September 1963 Sukhari was sleeping outside his house on a cot. At a short distance from him his son Mahatam P. W. 11 and Ghoor P. W. 2 were also sleeping on the ground. At about 2 a. m. Sukhari was suddenly attacked with spear on the abdomen and was instantaneously awakened from his sleep. On the alarm raised by him his son Mahatam and Ghoor got awakened. They were equipped with torches which they flashed and in that Hetit saw the three accused surrounding Sukhari, while Moti inflicted a spear blow on his abdomen. The alarm raised by the victim attracted three other persons who were returning from a dance in village Kanchanpur and they are said to have seen the accused persons running away from the spot. These witnesses are said to have chased the accused for some distance but were unable to apprehend them. After, about an hour and a half of the occurrence a report of the incident was got scribed by Sukhari deceased by Ram Bachan P. W. 4. Mahatam, in the company of his mother, took Sukhari in the rickshaw of Samtullah P. W. 7 to Police Station Tarkulwa and there lodged the report at 3. 30 a. m. on the morning of 26. 9. 63 the police station having been at a distance of 2 miles from the village of occurrence. The Station Officer was not present at the police station, he having gone to another village in connection with the investigation of some other case. After recording the report the Head Moharrir sent information to the Station Officer through a constable about the crime and it was on the basis of that information that the Station Officer repaired to the village of occurrence, and reached there on the morning of the 26th September 1963. Meanwhile the Head Moharrir "sent the injured to the Civil Hospital at Deoria for medical examination and treatment. Dr. A. R. Nagrath, Medical Officer, sub-charge Civil Hospital, Deoria examined the injured Sukhari on 26. 9. 63 and found the following injury on his person: Punctured wound 1" x " x abdominal cavity, towards the left side of abdomen 4" from the umbilicus and 3" above the anterior and superior iliac spine. Finding the condition of the patient deteriorating the doctor sent information to the magistrate for recording the dying declaration of Sukhari. Accordingly on the 27th September 1963 Sri S. K Srivastava, Magistrate, 1st Class recorded the dying declaration of the deceased at 1 p. m. Dr. B. K. Varma, attending the patient, appended a certificate to the dying declaration that the patient was in a fit mental state to give his statement. The version of the occurrence given by the deceased in the dying declaration made before the Magistrate is in all material respects consistent and in accord with the statement made by him in the first information report.

(3.) SUKHARI died in hospital on the morning of the 1st October 1963. The post-mortem examination on his dead body was conducted by Dr G. D. Agarwal. Civil Surgeon Deoria the same day at 4. 30 p. m. The Civil Surgeon found the following ante-mortem injury on the dead body: Stab wound 1" x 4" x abdominal cavity deep on the left side of the abdomen in the middle. The wound was spindle-shaped with clean cut margin. On internal examination he found the membrane of the peritoneum punctured and inflamed. The small intestines were punctured at two places and were inflamed. The large intestine were also punctured at one place. The cause of death, according to the doctor, was shock and excessive bleeding and toxemia as a result of injury caused by sharp pointed weapon. In cross-examination he Stated that the deceased had no injury marks on his palm and fingers. He however, added that he had not taken down healed up marks on the body of the deceased.