DEO NATH SINGH Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Agarwal, J The criminal ap peal has been filed by Deonath Singh, Kamla Singh, Ganga Sagar and Kundan Singh against the order of conviction dated 15-7-1980 passed by the II Additional Ses sions Judge, Ballia, in S. T No. 96 of 1979. By the aforesaid order each of the accused-appellants have been sentenced under Section 302/34, I. P. C. to undergo im prisonment for life. Appellant Kundan Singh has been further convicted under Section 307, I. P. C. and sentenced to under go rigorous imprisonment for two years. Both the sentences of Kundan Singh have been directed to run concurrently.

(2.) THE brief facts giving rise to this case are that appellants Deonath Singh and Kundan Singh were armed with guns and appellants Kamla Singh and Ganga Sagar along with acquitted accused Babujan were armed with Ballam. Babujan was acquitted by the aforesaid order. THE incident has arisen as a sequel to some land dispute between P. W. 1 Sagar and appellant Ganga Sagar. Ganga Sagar was allotted 3 decimals land by the Gaon Samaj in plot No. 453, which P. W. 1 claims to be his and in his exclusive possession. THE bone of contention was erection of walls around the piece of land. Litigation between the parties was going on. In their zeal to settle the dispute amicably, a Panchayat was called a few days earlier, but on account of some quarrel between Deonath Singh, appellant, and deceased, Shivnath Singh, it did not materialise. It is alleged that on that very day the next date for the Panchayat was fixed and it was also settled between the parties that they will come in the next Panchayat with their own Panchas. P. W. 1 Sagar called Shivnath Singh, Gram Pradhan of village Chhitona, Banwari Choudhary, Pradhan of village Bhojaupur, and Basawan Singh on h is side, whereas from the side of Ganga Sagar, appellant, Deonath Singh, Babujan and Kamla Singh were called as Panch. THE Pinchayat was to be held on the date of occurrence at 8. 00 a. m. A few hours before this appointed time of Panchayat, Sagar set out to call his Panchas. He was coming back along with three aforesaid Panchas at about 7. 00 a. m. When all these persons reached I he field of Ram Garib, they saw Deonath Singh, Kundan Singh, Kamla Singh, Babujan and Ganga Sagar all armed with lethal weapons standing of the corner of Bajli Courtyard. Seeing these persons coming, Ganga Sagar is said to have ex horted other accused persons that no one should be allowed to escape. Deonath Singh opened fire upon Shivnath Singh from his gun. Shivnath Singh fell down a few steps from to" place where he had received the injury near a heap of' Puaal. Jagat Mishra, the injured witness P. W. 3. was coming from the side of tube-well of Ramagya, in the meantime Kundan Singh opened fire which hit Jagat Mishra. After wards, all the assailants had gone to Shivnath Singh and Kamla Singh, Babujan & Ganga Sagar assaulted him with Ballms alter he fell down. THE witnesses lied to the village and came back ins length alter sometime to the spot of incident. H was then learnt by them That the accused-appellants had taken away injured Shivnath Singh to the house of Chhunni Lal and locked him in the Baithka there. Chhunni Lal happens 10 be the brother of appellant Ganga Sagar.

(3.) THE autopsy on the body of Shivnath Singh was conducted on 13-1-1979 at 11. 00a. m. by Dr. Laxmi Narain Singh, RW. 8. A perusal of the post-mortem examination report and the evidence of P. W. 8 will reveal that the deceased had sustained six punc tured wounds, one clear-cut incised wound, and two lacerated injuries out of which surrounding skin was found blackened in injury No. 5. THEre is a gunshot injury on the lateral side of the chest margins are blackened, i. e. injury No. 7. Underneath injury No. 1, there is fracture of the 'scalp', as noted in the internal examination caption 'head and Neck'. It appears that the Doctor, who con ducted the post-mortem examination on the person of the victim, Shivnath Singh, was not aware of the distinction between 'scalp' and 'skull'. According to THE New Lexicon Webster's Dictionary', 'scalp' means the skin on the top and back of the head, whereas 'skull' means the bony covering of the head of a vertebrate that encloses the brain and the principal sense organs and consists of the cranium, jaws, and sockets for eyes, ears and nose. Thus, it is apparent that Dr. Laxmi Narain Singh did not know the distinction between the 'skull' and the 'scalp' and has wrongly shown 'scalp' in place of 'skull'. THEre cannot be any fracture of the 'scalp', and, therefore, it ought to be 'skull'. Injury No. 1 is 1" x 1/2" x bone deep on the crown of the head. Other two injuries on the head are also of the same dimension, but the Doctor has clearly noted them as 'muscle deep'. What causes concern to us is that even the learned Sessions Judge has failed to note the distinction and elicit any explanation for the same from the Medical Officer, P. W. 8.