l2008] 10 S.C.R. '63"6

BAlJ NATiH

STATE OF 'UTTAR PRADESH (Criminal Appeal No. 1050 of 2008)

JULY 10, 2008

IDR. ~RIJIT PASAYAT ANO '.P. 'SATHASIVAM, JJ.]

Penal Code, 1860 - s 304 (Patt ii) - 'Conviction vnder- 'Land dispute between real ccousins -' One cousin gave 1athi .IC lbJow on 'the head ofthe other resulting in his death - 'Convic-

,.tion Dis 304 (Patt I) with seven years imprisonment by courts

below - Held: Justified - Nature of the injury caused .and weapon used clearly shows the guilt of the accused - 'Doctor vriho conducted post mortem opined that the cause of dea'fh ,0 was due to coma as a result of head injury.

ccording to :the prosecution case, -there was 0a land 'disp-ule :between the families of two 'brothers-appellant ; and 'K. Panchayat was called to 'Settle the dispute . .Appel- 'lalit claimetl that :fhe 1cHsputed 'land 'belonged 1to 'him. !K fE mace a counler-claim. Appellant gave a 1athi blow on the

head of K who sustained head injury and fell down. Accused ran inside his house. 'K succumbed to his injuries.

The incident was witn-essed 'by lhe members of ; the 'Panc'hayat. F:l.(R. was lodged. 'Investigation was carried fF rout. The ao-ctor conducted lhe :post mortem examination.

The 1athi was recovered at 'the ; instance of 'the -accuseCI.

The trial court 'convicted the ppellant-u1s 304 '(Patt ii) 11pc , and 'Sentence-a 'him ; to limprisonment 'for 7 1years. if.ltigh rcoutt upheld the order. 'Hence :the ipreserit appeal.

rG Dismissing 'the appeal, :the 'Court

HELD: :ooctor's evidence 'Clearly shows ·.that there were 'fractures of both 1parital :and 'frontal 'bone. 'He •opine Cl 'that 'the cause :of tteath 'Was ittue 'to {coma 'as ; a .result rof

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head injury. According to the appellant. doctor admitted A that the injury in question could have been sustained due to fall on the iron rod embeCtded in the earth. The evidence clearly established that the accused had given lalhi blow on the head of the deceased which resulted in the death

~, ._."r: of the deceased. The High Court rightly noted that the 8 case is clearly covered u/s. 304 (Part I) IPC. Considering the nature of the injury and the weapon used clearly

shows the guilt of the accused. That beipg so, custodial sentence of 7 years as imposed does not suffer from any infirmity. [Para 7] [639-D, E, F] c CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1050 of 2008

From the final Judgment and Order dated 15.12.2005 of the High Court of Judicature at Allahabad, Lucknow Bench, D .., .

Lucknow in Criminal Appeal No. 385 of 1995

Pramod Kumar Yadav, Satya Prakash Sharma and Rameshw.ar Prasad Goyal for the Appellant.

atnakar Dash, Manoj Kumar Dwivedi and G Venkateswara E Rao for the Respondent.

The Judgment of the Court was elivered by

Dr. AijlJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the conviction of the ap- F ,).. pellant 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 H

SUPREME COURT REPORTS

[2008] 10 S.C.R.

f • A was the informant, were real brothers and they lived separately

in two adjoining h0uses .. There was some dispute in between the two families regarding 'nat>dan' and fixing of 'kuntas' {peg_s), 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

~ B been crtlled to settle the dispute in between .the two families. 1- °': The village Pradhan and many others were also present in the

Panchayat. Claims and cou11ter claims were made by accused tand deceased. When accused Baij Nath declared that the disputed land belonged to him and will not be given to the deceased c 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 vii- •. !

D lagers took his injured son Kali Prasad to the police station but r L on the way to the police station Kali Prasad succumbed to his injuries. So the dad body was taken to the police station and a written F.l.R. Ext. Ka-1 was lodged. in the police station. One

Ganga Prasad had scribed this report. The occurrence was E witnessed by Ganga Prasad, Thakur Prasad, Brijesh arid many others, who were present in the Panchayat. On the basis of this F. l.R chick report, Ext. Ka-12 was prepared and a case was registered against the accused, now the appellant. lnvestigation was entrusted to S.O. Rajinder Singh (PW.5) SJ S.M. lewari vyas directed to conduct the inquest of the dead body. The in- ....

F -'< ' quest report is Ext. Ka. The dead body was sent for post mortem '

examination, which was conqucted by Dr. Lalit Kumar (P.W.6.) I The post mortem report is Ext. Ka-10. The investigating officer • I prepared the site map Ext.Ka-6 and also recovered the lathi

G 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 Secr- ..... tion 302 IPC.

Charge under Section 302 IPC was framed against the H accused.

The trial Court on consideration of the materials on record, A 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 ap-

; peal.

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.

5. Learned counsel for the respondent-State supported the c 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 D

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 E 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 F

.I< in the death of the deceased. As rightly noted by the High Court the case is clearly covered under Section 304 Part I, IPC. Con .. sidering the nature of the injury and the weapon used clearly shows the guilt of the accused. That being so, custodial sen.., tence of 7 years as imposed does not suffer from any infirmity:. G

8. The appeal is dismissed .

...,

N.J.

Appeal dismissed.