ROSHAN LAL Vs. STATE OF U P

JUDGEMENT

(1.) This Criminal Appeal is directed against the judgment and order, dated 29th January, 1979, passed by the then Fifth Additional Sessions Judge, Aligarh, convicting and sentencing the appellants under section 323, I.P.C., read with section 34, I.P.C., to undergo R.I. for one year.

(2.) The prosecution case, briefly stated, is that on 8.5-1976, when Sri Doonger Ram had gone, on his field, his two sons namely, Mohar Singh aged about eleven years any Budh Sen aged about nine years along with Kamal Singh another boy of the village aged about eight years went to fields. Budh Sen entered into the plot of the appellants and picked up a melon. Appellant Gokul Chand caught hold of Budh Sen while the other two children ran away. The other appellant Roshan Lal, who had also arrived, instigated Gokul Chand to beat Budh Sen. Both the appellants beat Budh Sen, Kamal Singh and Mohar Singh were hiding at some distance. Budh Sen fell down and then got up holding his stomach and walked up to Mohar Singh and Kamal Singh who supported him and took him to his house. Doongar Ram returned at about 7.00 p.m. and found his son Budh Sen lying. The boy complained to his father Doongar Ram that he had severe pain in his abdomen and was vomitting. Doongar Ram took the boy to I Dr. S. K. Sharma, an Ayurvedic Medical Practitioner. The doctor suspected abdominal injury and gave him medicine. The vomitting I stopped, but the pain continued. Budh Sen I was again taken to Dr. Sharma on 9.5.1976 at 11.00 a.m. On 9.5.1976 at 6.00 p.m. in the evening, the condition of Budh Sen deteriorated and he was again taken to Dr. Sharma and on his advice to Dr. Laxman Swarup. Dr. Laxman Swarup gave him medicine. While Budh Sen was being brought back to his house, he began to feel severe pain and was taken to Dr. Laxman Swarup. Dr. Laxman Swarup was of the opinion that Budh Sen could not be cured. When the boy was being taken back from the dispensary of Dr. Laxman Swarup, he breathed his last on the way and was taken home and the dead body was buried near a pond in Kishanpur.

(3.) On 10.5.1976 at about 6.00 p.m., Sri Doongar Ram, Ramji Lal, Sita Ram. Nathu Ram and Radhey Shyam had assembled at the door of Doonger Ram to condole the death of Budh Sen. It is then that Mohar Singh and Kamal Singh informed them that the pain in the stomach of Budh Sen was the result of injury caused by Gokul Chand and Roshan Lal appellants on 8.5.1976 and due to fear the children did not tell about this incident earlier. Thereafter Doongar Ram lodged the report (Ext. Ka-1) on 11.5.1976 at 0.30 a.m. The dead body of Budh Sen was exhumated under the supervision of Sri A.Z. Khan, the then Executive Magistrate (P.W. 7). The body was washed and inquest report was prepared by Sri Khan. The dead body was sealed and sent for post mortem examination in the custody of Constable Kailash Chand Pandey (P.W. 8) and another. Dr. J.S. Pawar (P.W. 10) conducted the post-mortem examination at 11.45 a.m. on 12.5.1976. No external mark of injury was found by the doctor. On internal examination, the liver of Budh Sen was found ruptured and right para-colic gutter cavity contained about six ounces of liquified blood. In the opinion of the doctor, the death of the boy was caused due to rupture of liver and consequent leaking of blood in peritonial cavity. The Investigation of the case was taken up by Sub-Inspectos Babu Ram Singh Yadav who submitted the charge sheet (Ext. Ka-12). The case was committed to the Court of Sessions.