CHANDRIKA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) JAGDISH Bhalla, J. This appeal is directed against the judgment and order dated, 4-5-1984 passed by the Sessions Judge, Kheri in Sessions Trial No. 278 of 1983 convicting the appellant under Sec tion 304, Part (II) I. P. C. and sentencing him to four years 'rigorous imprisonment.

(2.) ON 22-3-1981 at about 10. 00 a. m. on F. I. R. was lodged at Police Station Maigalganj, district Kheri under Section 308, I. P. C. inter alia mentioning therein that on21-3-1981 at about 6. 00p. m. , which was the day of the Holi festival, the vil lagers were visiting at the house of Kamta P. W. 2 as it was the first Holi after the death of the father of Kamta. Roop Rani P. W. 1 was sitting at her entrance and Sobran P. W. 3, Ajodhi P. W. 4, Ummed and Pancham (deceased) were near the entrance of the house. The deceased Pancnam was embracing Ummed. Accused-appellant Chandrika armed with lathi reached there from a Galiyara towards east and said to Pancham "my enemy, the chance has come" and gave a lathi blow on the head of Pancham deceased who fell down. Kamta P. W. 2 scolded the accused Chandrika who ran away from the spot. Sobran P. W. 3, Jodhi P. W. 4 and others were the eye-wit nesses of this incident. Pancham deceased who had fallen down became unconscious although there was no bleeding. Roop Rani tried her level best to arrange for a bullock-cart to take Pancham to police station but she could get it the next morning when Pancham was escorted to the police station Maigalganj and an FI. R. of the incident was lodged by Roop Rani, as slated above. Pancham was, thereafter, taken to the hospital at Sitapur where he was examined on 22-3-1981 by Dr. K. K. Misra P. W. 6 who prepared the injury report (Ext. Ka-3 ). However, Pancham died on 28-3-1981. After the death of Pancham' the offence was converted in to Section 302, I. P. C.

(3.) UMMED the son of Basant, accord ing to the F. I. R. was embracing Pancham deceased when the deceased was chal lenged by the accused- appellant. Surpris ingly UMMED was neither produced before the trial Court nor his statement was ever recorded by the Investigating Officer. It has also been pointed out that there was no lathi injury on the person of UMMED. It has further been pointed out that at the time of the assault on Pancham deceased one Banwari Chowkidar, a Public servant, was having food at the house of Chandrika accused. Even the accused selected the time when Banwari Chowkidar was present at his residence. It has been con tended on behalf of the appellant that it is improbable that in a village where the Chowkidar has influence and exercises his powers as well, the accused will select a lime to attack the deceased when the Chowkidar is present at his (accused's) residence. As far as this contention is con cerned. I am of the considered opinion that it is difficult to read the mind of an accused that under what circumstances he will react and the facts and circumstances force into a particular act or omission. Non-production of Chowkidar Banwari leads to various question unanswered. Had it been so the P. W. 1 Smt. Roop Rani, would have easily mentioned this fact in the F. I. R. but for the reasons best known to her she did not disclose this fact in the F. I. R. nor in her statement before the Investigating Of ficer. Either side could have produced the Chowkidar, but it was not done.