KUBER Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an appeal directed against the judgment and order dated 5/3/1979, passed by lind Additional Sessions Judge, Azamgarh finding the appellants Kuber aged 60 years and his son Balbir aged 40 years, both residents of village Dhansinghpur, P.S. Atrauliya, district Azamgarh, guilty of the offence under Section 325 I.P.C. convicted and sentenced each of them to one years rigorous imprisonment.

(2.) Kumar (P.W. 1) is the first cousin of Kuber, appellant. To the east of the village Dhansinghpur, there are agricultural plots and one of the plots jointly owned by Kumar, Kuber, Jangi and Mahadeo, was left out of the consolidation proceedings. This plot had been divided into four portions, each co-sharer being in possession of the separate position. It is alleged that on 25-11-72 at about 5 P.M. Kumar (P.W. 1) found that Kuber was storing puwal in a portion of the field which was in his possession and when he objected Kuber and Balbir had assaulted him with lathis. The occurrence was witnessed by Smt. Ramkali, Adalati, Shiv Darshan and others. Kumar had become unconscious. He was taken to the village and thereafter to the hospital.

(3.) Dr. Nath Singh Shukla (P.W. 5) examined Sri Kumar on 26/11/1972 at 10.30 A.M. Two contusions, one on the back of root of left little finger and second on the back of neck about middle, were found on the person of Kumar. On X-ray a fracture was also found on the left little finger. According to the prosecution Smt. Ramkali was also injured in the occurrence and she was examined on 29/11/1977 at 1 P.M. She had three contusions and one abrasion all caused by blunt weapon. S.I. Rajeshwar Singh (P.W. 4) investigated the case, interrogated the witnesses prepared site plan and then submitted a charge-sheet. In Support of the case the prosecution examined Kumar (P.W. 1) Sadhu (P.W. 2) and Smt. Ramkali (P.W. 3). The learned Additional Sessions Judge believed their testimony and convicted and sentenced the appellants as mentioned above. Aggrieved, the present appeal has been filed. Sadhu (P.W. 2) who lodged the report was not present at the time of the occurrence. He was studying in class Xth and when be returned he found that his father had been injured he was informed about the incident by the witness Ramkali and other witnesses. Thereafter he lodged the report and took the injured for examination to the hospital. The testimony of Ramkali wife of Surat also should be discarded because her presence has not been mentioned in the F.I.R. and the prosecution case that she received Injuries at the time of occurrence when she tried to save Kumar cannot be believed. It is significant that though Kumar was examined the next day Smt. Ramkali was not taken to the hospital alongwith Kumar. She was examined on 29.11.72 that is, four days after the occurrence. No valid reason has been given as to why the injuries suffered by Smt. Ramkali were not attended to. Even if Kumar was unconscious and needed prompt attention there is no justification for not getting, Smt. Ramkali examined soon after the injuries of Sri Kumar had been attend to. Therefore, the presence of Smt. Ramkali is highly doubtful. There is solitary testimony of Sri Kumar (P.W. 1). He has stated that when he protested about the putting of puwal in his portion of the plot, both the appellants started abusing him and Kuber asked his son Balbir to hold Kumar whereupon Balbir had caught him and Kuher gave him a lathi blow. When Kumar fell down Balbir himself gave a lathi blow and then Kumar became unconscious. This statement is supported by medical evidence on record. Kumar had one contusion on the back of root of left little finger and the other on the back of neck about middle. Both these injuries could not be caused by one blow. Secondly, Kumar being a first cousin would hardly falsely implicate Kuber. In his cross- examination no motive has been attributed for false implication. The learned counsel for the appellants however, tried to find out that the testimony of Kumar should not be believed, because he had stated to the Investigating Officer that Balbir has also armed with lathi and now he has started saying that he was armed with a wooden handle of the Kudar. There is hardly any discrepancy and the testimony of Kumar cannot be disbelieved on this ground. The occurrence had taken place at the field near to abadi where the presence of Kumar is highly probable. For these reasons the solitary testimony of Kumar is sufficient to base a conviction. The Additional Sessions Judge was therefore justified in convicting the appellants under Section 325 I.P.C. as they had caused a grievous injury to Kumar.