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PETITIONER: ANOKHEY & ANR.

       Vs.

RESPONDENT: STATE OF U.P.WITH CRI A.NO. 531-32/93. 609-610/93. CRL.M.P.

DATE OF JUDGMENT14/11/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) PARIPOORNAN, K.S.(J)

CITATION:  1995 SCALE  (6)368

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE. J.      The seven  appellants in  these appeals and one Mahadev Prasad Pandey  were  placed  on  trial  before  the  learned Additional Sossions  Judge, Mathura.  Against the appellants common charges  under Sections  120-B. 148, 302/149. and 454 I.P.C. and  against  Mahadev  Prasad  Pandey  charges  under Sections 302/109  and 307/109  IPC were  framed. A  separate charge under  Section 302  IPC was  also framed  against the appellant Anokhey  Lal.  On  conclusion  of  the  trial  the learned Judge.  while acouitting  Mahadev Prasad,  convicted all the  appellants under  Sections 148  and 324/149 IPC and further convicted  Anokhey Lal  under Section  302 IPC.  For each of  their convictions  the appellants were sentenced to suffer rigorous  imprisonment for  two years and Anokhey Lal was sentenced  to imprisonment  for life  for his conviction under Section  302 IPC.  The sentences  were directed to run concurrently. Against  the above  judgment two  appeals were filed; one by the appellants assailing their convictions and the other  by the State against their acquittal of the other charges. The  High Court  dismissed  both  the  appeals  and affirmed  the  judgment  of  the  High  Court.  Hence  these appeals.      According to  the prosecution case on March 27, 1975 at or  about  6.30  A.M.  the  appellants.  armed  with  deadly weapons, raided the house of Gopal and appellant Anokhey Lal thrust a  spear on  the chest  of Makhan,  brother of Gopal, felling him  down. On  hearing the  hue and  cry  raised  by Makhan, Ram Dayal, Gopal and Ram Krishan came there and they were also  attacked by  the appellants  by their  respective weapons. Finding  no other  alternative. when  Gopal started thowing brick-bats  towards the appellants and Ram Dayal and Ram Krishan started beating them with small dandas they fled away.      Makhan, who  was seriously injured, was taken to police station along  with the  other injured by Giriraj. his elder

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brother. and there he (Giriraj) gave a written report of the incident, on  the basis  of  which  a  case  was  registered against the  appellants. Since  the condition  of Makhan was grave he  was immediately sent to Mathura Hospital while the other injured  were sent  to  local  Government  dispensary. Makhan, however,  did not  respond to  the medical treatment given to  him at  the hospital and succumbed to his injuries within an hour.      The  appellants  pleaded  not  guilty  to  the  charges levelled against  them and  took up  the plea  of  right  of private defence of their persons.      To prove  its case  the prosecution  examined a host of witnesses of  whom Giriraj  (P.W.1).  Ram  Krishan  (P.W.2), Rameshwar Prasad  (P.W.3), Puran  Devi (P.W.4) and Ram Dayal (P.W.5)  gave  the  ocular  version  of  the  incident.  The appellants also examined a number of witnesses in support of their defence.      On consideration  of evidence  adduced during trial the trial  Court   accepted  the  case  of  the  prosecution  in preference to  that of  the defence  and held the appellants guilty. The  High Court  also in  its turn.  reappraised the evidence and upheld the order of the trial Court.      Having heard  the learned  counsel  appearing  for  the parties and  considered the  judgments of the learned Courts below in  the light  of the evidence adduced during trial we do not  find any reason whatsoever to disturb the concurrent findings of  fact recorded  by them,  more so,  as they  are based on  detailed  and  proper  discussion  of  the  entire evidence and supported by cogent reasons.      It was,  however,  strongly  urged  on  behalf  of  the appellants that  even if  the entire  prosecution  case  was accepted as  true Anokhey Lal could only be, in view of fact that Makhan  sustained only one injury, guilty of an offence under Section  304 (Part  II) IPC  and not under Section 302 IPC.      As already  noticed the  prosecution case  was that the appellant Anokhey  lal had  thrust a  spear on  the chest of Makhan. Dr.  Jagdish Lal  (P.W.  13)  who  held  post-mortem examination on  the dead  body of Makhan found the following injury on his person:      "Incised would  1 1/2"  x 1/2"  x  chest      cavity deep  of linear  nature near  the      sternum bone on the front side below the      chest."      He further stated that on internal examination he found the pericardium  damaged and  one ounce  of  blood  present. According  to  P.W.13  the  injury  was  sufficient  in  the ordinary course  of nature to cause death of Makhan and that the same could be caused by a spear.      When considered in the context of the proved facts that the appellants had gone armed with deadly weapons, to attack the members of Gopal’s family and after trespassing into the house Anokhey  Lal caused  a penetrating  injury on  a vital part of the body of Makhan with a spear which was sufficient in the  ordinary  course  of  nature  to  cause  death,  the conclusion is  inevitable  that  the  offence  committed  by Anokhey Lal comes within clause III of Section 300 IPC so as to make  Anokhey Lal liable for conviction under Section 302 IPC. As  regards the other six appellants, whose convictions are to  be upheld,  we do  not feel  inclined to  send  them behind the  bars again as more than twenty years have elapsd since the  offences were  committed by them and each of them has served a substantial part of their sentence of two years rigorous imprisonment.      For the  foregoing discussion we uphold the convictions

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and sentence  recorded against the appellant Anokhey lal and the convictions  of the  other six  appellants put we reduce their sentence  to the  period already undergone. As all the appellants are  on bail.  Anokhey Lal  will now surrender to his bail  bond to  serve out  the sentence imposed upon him, while the  other six  appellants will  stand discharged from their respective  bail bonds.  The appeals are thus disposed of.      Since the  appeals have  been disposed of Special Leave Petition filed  by the complainant and the other injured and the Crl. M.P. No. 2949 of 1994 filed in connection therewith are dismissed.