REPORTABLE

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

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. 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.  

3. 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

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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

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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.  

4. 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.  

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5. Learned counsel for the respondent-State supported the

order passed by the trial Court as affirmed by the High Court.  

6. 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.”

7. 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

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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.  

8. The appeal is dismissed.  

…………….…………..J. (Dr. ARIJIT PASAYAT)

………………….……..J. (P. SATHASIVAM)

New Delhi July 10, 2008

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