Baij Nath vs State Of U.P

CRIMINAL APEAL NO. OF 2008 (Arising out of SLP (Crl.) No. 3273 of 2006)

Baij Nath ...Appellant

Versus

State of Uttar Pradesh ...Respondent

JUDGMENT

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

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.

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

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.

8. The appeal is dismissed.

..............................J. (Dr. ARIJIT PASAYAT)

..............................J. (P. SATHASIVAM) New Delhi July 10, 2008

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