Baij Nath Vs. State of
U.P. [2008] INSC 1076 (10 July 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APEAL NO. OF 2008 (Arising
out of SLP (Crl.) No. 3273 of 2006) Baij Nath ...Appellant Versus State of
Uttar Pradesh ...Respondent
Dr. ARIJIT PASAYAT,
J.
- Leave
granted.
- Challenge
in this appeal is to the conviction of the appellant for offence
punishable under Section 304 Part I of the Indian Penal Code, 1860 (in
short the `IPC') and the sentence of imprisonment for 7 years as awarded
by the trial Court and confirmed by the Allahabad High Court, Lucknow
Bench, Lucknow.
- Background
facts in a nutshell are as follows:
Accused appellant
Baijnath and deceased Kalika Prasad were real cousin. The father of the accused
Beche Lal and Khargi father of Kalika (hereinafter referred to as the
`deceased') who was the informant, were real brothers and they lived separately
in two adjoining houses. There was some dispute in between the two families
regarding `nabdan' and fixing of `kuntas' (pegs), which were used for tying the
cattle.
On the date of the
occurrence that is 13.7.1993 at about 7.00 p.m., a Panchayat had been called to
settle the dispute in between the two families. The village Pradhan and many
others were also present in the Panchayat. Claims and counter claims were made
by accused and deceased. When accused Baij Nath declared that the disputed land
belonged to 2 him and will not be given to the deceased who made a
counter-claim. Accused-Baijnath gave a lathi blow on the head of the deceased
Kali Prasad, who sustained head injury, and on account of this Lathi blow, fell
down. Accused Baijnath ran inside his house. Khargi, the father of the deceased
along with other villagers took his injured son Kali Prasad to the police
station but on the way to the police station Kali Prasad succumbed to his
injuries. So the dead body was taken to the police station and a written F.I.R.
Ext. Ka-1 was lodged in the police station. One Ganga Prasad had scribed this
report. The occurrence was witnessed by Ganga Prasad, Thakur Prasad, Brijesh
and many others, who were present in the Panchayat.
On the basis of this
F.I.R. chick report, Ext. Ka-12 was prepared and a case was registered against
the accused, now the appellant. Investigation was entrusted to S.O. Rajinder
Singh (PW.5) S.I S.M. Tewari was directed to conduct the inquest of the dead
body. The inquest report is Ext. Ka. The dead body was sent for post mortem
examination, which was 3 conducted by Dr. Lalit Kumar (P.W.6.) The post mortem
report is Ext. Ka-10. The investigating officer prepared the site map Ext.Ka-6
and also recovered the lathi Ext.1 at the instance of the accused. Recovery
memo Ext. A-7 was also prepared. After completing the investigation, charge
sheet Ext. Ka-9 was submitted against the accused under Section 302 IPC.
Charge under Section
302 IPC was framed against the accused.
The trial Court on
consideration of the materials on record, more particularly, the evidence of
eye-witnesses came to hold that the proper conviction would be under Section
304 Part I, IPC. The conviction and the sentence were challenged before the
High Court which by the impugned order dismissed the appeal.
- Learned
counsel for the appellant took the stand that the proper conviction would
be in terms of Section 325 IPC and not under Section 304 Part I, IPC.
- Learned
counsel for the respondent-State supported the order passed by the trial
Court as affirmed by the High Court.
- We
find that Dr. Lalit Kumar (PW-6) who examined the dead body of the deceased
for the purpose of post mortem found the following anti mortem injury:
"Lacerated wound
1 cm x 0.5 cm front on interior part of right side scalp, 10cm. above middle
right eye-brow, wound in muscle deep."
- Doctor's
evidence clearly shows that there were fractures of both parital and
frontal bone. He opined that the cause of death was due to coma as a
result of head injury. According to the appellant doctor admitted that the
injury in question could have been sustained due to fall on the iron rod embedded
in the earth. The evidence clearly established that the accused had given
lathi blow on the head of the deceased which resulted in the death of the
deceased. As rightly noted by the High Court the case is clearly covered
under Section 304 Part 5
I, IPC. Considering
the nature of the injury and the weapon used clearly shows the guilt of the
accused. That being so, custodial sentence of 7 years as imposed does not
suffer from any infirmity.
- The
appeal is dismissed.
..............................J.
(Dr. ARIJIT PASAYAT)
..............................J.
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