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Ishwari And Another (In Jail) v. State Of U.P Opposite Party.
Judgment Summary — Criminal Appeal by Ishwari & Manglee
Factual and Procedural Background
This criminal appeal was filed by accused Ishwari and Manglee against the judgment and order dated 5.12.1981 passed by the Additional Sessions Judge, Orai in S.T. No. 112 of 1981. The trial court had convicted Manglee under section 304 (Part II) IPC and sentenced him to rigorous imprisonment for five years and a fine of Rs. 1,000 (with six months further R.I. in default). Ishwari was convicted under section 304 (Part II) read with section 34 IPC and sentenced similarly.
Briefly, the prosecution case (as narrated in the FIR and evidence) is that on 18.7.1980 at about 5.00 P.M. a dispute arose between the deceased Dhanpat and accused Manglee regarding flowing dirty water through a narrow lane. Dhanpat allegedly filled earth in the drain to stop the flow; accused removed it and, with others, fetched lathis. On that occasion Manglee gave a lathi blow to the head of Dhanpat which proved fatal. The informant lodged the FIR on 19.7.1980 at 4:45 P.M. (registration as crime No. 90). The deceased succumbed to his injuries on the morning of 19.7.1980. Investigation was carried out by S.I. Raisul Haque and later by S.I. B.S. Chauhan; post-mortem was conducted by Dr. R.C. Singh on 20.7.1980.
At trial, three accused (Manglee, Ishwari and Jagdish) were charged under section 304 (Part II) read with section 34 IPC; Jagdish was acquitted, while Manglee and Ishwari were convicted by the trial court. Seven prosecution witnesses were examined. The appellants appealed the convictions; this judgment records the appellate court's decision.
Legal Issues Presented
- Whether the inordinate delay in lodging the FIR (about 25 hours after the incident) undermines the prosecution case and raises reasonable doubt of false implication.
- Whether Ishwari participated in the assault and shared a common intention with Manglee so as to be convicted under section 304 (Part II) read with section 34 IPC.
- Whether the medical evidence (post-mortem) is consistent with multiple assailants or supports only a single lethal blow, affecting attribution of criminal liability.
Arguments of the Parties
Appellants' Arguments
- There was an inordinate delay in lodging the FIR, which could indicate a possibility of false implication of the appellants.
- Ishwari did not participate in the offence and did not give any lathi blow to the deceased; conviction of Ishwari with the aid of section 34 IPC was unjustified.
- P.W.3 (Dhani Ram), an eye-witness, stated that Ishwari did not strike the deceased; P.W.2 (Ram Singh) also did not implicate Ishwari in striking the fatal blow.
- Medical evidence (Dr. R.C. Singh) showed only one lacerated wound on the head, indicating a single blow; therefore both appellants should get the benefit of doubt.
State's Arguments
- The State supported the trial court's findings and contended that both appellants were rightly convicted; the appeal should be dismissed.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The appellate court examined the record, witness testimony, medical evidence and submissions of counsel and reached the following conclusions based solely on the material in the judgment:
- Delay in lodging FIR:
The FIR was lodged approximately 25 hours after the incident. The court considered the informant's explanation that heavy rains and lack of conveyance delayed reporting and that the deceased died only the next morning, causing further disturbance to the family. On this basis the court held the delay was satisfactorily explained by the prosecution and did not warrant rejection of the prosecution case.
- Reliability and content of eyewitness testimony:
The court reviewed testimony from P.W.1 (Kadore, informant and claimed eyewitness), P.W.2 (Ram Singh, son of the deceased and eyewitness) and P.W.3 (Dhani Ram, named in the FIR as an eyewitness). P.W.1 stated both Manglee and Ishwari wielded lathis and struck; P.W.2 and P.W.3 consistently stated that Manglee struck the fatal blow and that they did not see Ishwari assaulting the deceased. P.W.3 was not declared hostile and reiterated his account in cross-examination. The court found the testimony of P.W.2 and P.W.3 to be clear and consistent that Ishwari did not assault the deceased.
- Medical evidence and its concordance with witness statements:
Dr. R.C. Singh's post-mortem revealed one lacerated wound on the left side of the head and one abrasion below the right nipple; brain membranes were congested with blood in cranial cavity; cause of death was coma, shock and hemorrhage resulting from head injury. The court observed that medical evidence showed only one lacerated wound on the head — consistent with a single blow — and therefore did not support P.W.1's assertion that both accused struck the deceased on the head.
- Common intention and application of section 34:
On the basis of the eyewitness accounts and medical evidence, the court concluded that Ishwari did not share the common intention with Manglee and there was no prior meeting to constitute common intention leading to liability under section 34. Because the evidence did not show Ishwari inflicted any injury, conviction under section 304 (Part II) read with section 34 against him was not justified.
- Conclusion as to convictions and sentences:
Applying the above analysis, the court held that Manglee's conviction under section 304 (Part II) IPC was supported by the evidence and was sustainable; there was no valid ground to reduce his sentence. By contrast, Ishwari's conviction under section 304 (Part II) read with section 34 was overturned and he deserved acquittal.
Holding and Implications
APPEAL PARTLY SUCCEEDS:
Holding:
- Ishwari: Conviction under section 304 (Part II) read with section 34 IPC set aside; Ishwari is acquitted. He was on bail and was directed not to surrender.
- Manglee: Conviction and sentence under section 304 (Part II) IPC affirmed. His bail bonds were cancelled and he was ordered to be taken into custody forthwith to serve the sentence; he was allowed two months to deposit the fine in the trial court.
Implications / Consequences:
- The direct legal effect is the acquittal of Ishwari and the maintenance of Manglee's conviction and sentence as recorded by the trial court.
- No reduction of sentence for Manglee was ordered; his bail bonds were cancelled and immediate custody was directed subject to two months' time to deposit the fine.
- The appellate court ordered a copy of this judgment to be sent to the concerned trial court for compliance within six weeks and a compliance report to be sent within two months.
- The judgment does not purport to lay down any new legal precedent; it decides the appeal on the facts, witness credibility and medical evidence in this case.
Orders as stated in the opinion (verbatim effect): Ishwari acquitted and need not surrender; Manglee to be taken into custody forthwith, bail bonds cancelled, two months allowed to deposit fine; copy of judgment to trial court for compliance within six weeks; compliance report within two months.
Mukteshwar Prasad, J.:— This criminal appeal by accused Ishwari and Manglee has been filed against the judgment and order dated 5.12.1981 passed by Sri K.S Rakhra, the then Additional Sessions Judge, Orai in S.T No. 112 of 1981 whereby he convicted Manglee under section 304 (Part II) IPC and sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/-. Accused Ishwari was convicted under section 304 (Part II) read with section 34 IPC and sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/-. In default of payment of fine they were ordered to undergo further rigorous imprisonment for a period of six months.
2. Briefly stated, the prosecution story is as under.
3. P.W 1 Kadore, son of Baljoo, a resident of village Damras, police station Churkhi, lodged a FIR at police station Chukhi on 19.7.1980 at 4.45 P.M under section 304 IPC against Manglee, Ishwari and Jagdish. The informant alleged that there is a narrow lane between houses of Dhanpat and accused Manglee through which Manglee and Ishwari were trying to flow water forcibly. The drain was being dug by the accused adjacent to the wall of the house of Dhanpat. The informant's brother Dhanpat stopped the flow of water by filling earth. Accused Manglee and Ishwari removed the earth forcibly and with a view to teach a lesson to Dhanpat, they rushed home to bring lathies. In the meantime, Ram Singh, son of Dhanpat, arrived there and he was thrown out in the same drain by Jagdish. On the exhortation of Jagdish, Manglee and Ishwari gave lathi blows on the head of Dhanpat. The informant his nephew Ram Singh and brother Chaturi, Dhani Ram and Santosh who had arrived there saw the incident and challenged the assailants and then they took to their heels. This incident took place on 18.7.1980 at about 5.00 P.M
4. The informant got a report written by one Gajendra Singh and reached the police station on 19.7.1980 On account of heavy rains and non-availability of the conveyance, the informant arranged a tractor alongwith trolley in the morning of 19.7.1980 On the way near bus station Damras, Dhanpat succumbed to his injuries at about 9.00 A.M The informant left the dad body in the supervision of members of the family and village Chaukidar.
5. After registration of the case at the police station at crime No. 90, investigation was taken up by P.W 4 S.I Raisul Haque. He took up investigation, interrogated the informant and left the police station for the place of occurrence. He prepared inquest report and other papers and sent the dead body to Orai for post-mortem examination. Next morning, he inspected the scene of incident and prepared site-plan.
6. P.W-7 Dr. R.C Singh, the then Medical Officer District Jail, Orai conducted autopsy on the dead body of Dhan-pat on 20.7.1980 at 4.00 P.M According to the doctor, the deceased was about 50 years old and had died about two days prior to examination. Dr. Singh found following ante-mortem injuries:—
1. Lacerated wound size 5 cm. × 1 cm. × scalp deep, 7 cm. above over left side head from medial end left eyebrow. Vertical.
2. Abrasion size 1 cm. × 5 cm. × 7 cm. below right nipple.
7. The membranes of the brain were congested and blood was present between cranial cavity and membrane. In the opinion of the doctor, death was caused due to coma, shock and haemorrhage resulting from head injury.
8. After transfer of S.I Raisul Haque, P.W 6 S.I.B.S Chauhan took up investigation and interrogated Ram Singh, Dhani Ram and others. He interrogated accused also and after completing investigation submitted charge-sheet.
9. After committal of the case, all the three accused were charged under section 304 (Part II) read with section 34 IPC. They pleaded not guilty and claimed to be tried.
10. During trial, the prosecution examined seven witnesses in all. They are P.W 1 Kadore, who is the informant and brother of the deceased. He claimed himself to be an eye-witness, P.W 2 Ram Singh, son of the deceased is also said to be an eye-witness, P.W 3 Dhani Ram, who is named in the FIR as an eye-witness, P.W 4 SI Raisul Haque is the IO of the case, P.W 5 HC Baladin, who prepared chik report and made entry in the GD, P.W 6 S.I.B.S Chauhan is the second IO of the case, P.W 7 Dr. R.C Singh is the Medical Officer, who had conducted post-mortem examination on the dead body of Dhanpat on 20.7.80
11. Accused Manglee and Ishwari totally denied the accusation levelled by the proseoition and pleaded their false implication on account of enmity. According to Manglee, Dhanpat and others did not allow him to flow the dirty water. Ultimately members of the Panchayat settled the dispute and got a drain constructed by Dhanpat adjacent to the wall of the house of accused. Ram Singh was assaulting wife of the accused. Manglee, when Manglee tried to intervene and protect her. Ram Singh gave a blow to his father Dhanpat.
12. Accused Ishwari pleaded alibi and stated that he had sold his land (Ghera) to Manglee. The informant was interested in purchasing the land (Ghera) and as such, he was annoyed with him.
13. After appraisal and close scrutiny of the entire evidence on record, learned Trial Judge concluded that Manglee and Ishwari committed culpable homicide not amounting to murder and accordingly, they were convicted under section 304 (Part II) IPC and sentenced, as mentioned above. Accused Jagdish was not found guilty and acquitted of the charge. Hence, this appeal.
14. I have heard learned Counsel for the appellants, learned A.G.A and perused the record carefully.
15. Learned Counsel for the appellants has urged vehemently that inordinate delay took place in lodging the FIR at police station Churkhi by the informant and as such the possibility of false implication of the appellants cannot be ruled out. The judgment under appeal was further assailed on the ground that Ishwari did not participate in the offence and gave no lathi blow to the deceased and as such, the Court below erred in convicting him. It was also urged that P.W 3 Dhani Ram, who is said to be an eye-witness, was not declared hostile by the prosecution and he gave out in very clear words that Ishwari gave no lathi blow to the deceased. Therefore, there was no justification at all to convict Ishwari also with the aid of section 34 IPC. it was also contended that Dr. R.C Singh, who conducted autopsy found only one lacerated wound over left side of the head and one abrasion below right nipple. It means that deceased was given a single lathi blow on the head. Consequently, the appeal is liable to be allowed and both the appellants are entitled to get benefit of doubt.
16. On the other hand, learned State Counsel supported the judgment of the Court below and contended that learned Judge rightly found both the appellants guilty and appeal is liable to be dismissed.
17. After considering the submissions made on behalf of the parties and the entire evidence on record also, I am of the opinion that this appeal has merit and it must succeed partly.
18. According to the informant, the incident in question took place at about 5.00 P.M on 18.7.1980 Dhanpat, brother of the informant, succumbed to the injuries next day at about 9.00 A.M The police station is situate at a distance of ten miles from the village in question. The FIR was lodged on 19.7.80 at 6.45 P.M Prima facie appears that F.I.R was lodged after about 25 hours of the incident and delay took place. However, after going through the evidence on record and written report also, I find and hold that no delay took place in reporting the incident to the police and the delay was satisfactorily explained by the prosecution. The incident took place in the month of July. Therefore, the statement of the informant that it was raining and he could not arrange any conveyance on 18.7.1980 cannot be disbelieved. The members of the family of the deceased, including the informant must have been disturbed in the morning of 19.7.1980 on account of death of Dhanpat. In this view of the matter, I hold that learned Judge rightly held that the delay was explained satisfactorily by the prosecution and on this score the prosecution case cannot be thrown out.
19. All the prosecution witnesses, deceased and the accused were well known to each other and they all lived in one and in the same village. There is sufficient and reliable evidence on record to the effect that Manglee was trying to flow water through a drain quite adjacent to the house of the deceased Dhanpat tried to prevent Manglee by Ming earth in the drain. This act of the deceased was not liked by Manglee and others. He brought a lathi and gave a lathi blow on the head of the deceased which proved fatal.
20. P.W 1 Kadore testified that Ishwari too brought a lathi from his house and 1 gave a lathi blow. In cross-examination also he gave out that first of all Manglee gave a lathi blow on the head and Ishwari wielded his lathi immediately thereafter. This statement of the witness does not find support from medical evidence on record. It is noteworthy that the deceased could not be taken to any hospital for medical examination of his injuries.
21. P.W 2 Ram Singh, who is son of the deceased and an eye-witness disclosed in very clear words that Manglee was digging a drain and his father objected and was filling earth in the drain. He was pushed out by Jagdish and Manglee, who arrived there with a lathi gave a blow on the head of his father. He further stated that Jagdish stopped others from assaulting. He stated in very clear words that he did not see Ishwari assaulting his father. He was not declared hostile. In cross-examination also, Ram Singh deposed that he sustained no injury during the course of incident. According to him, when Manglee assaulted his father with lathi, Ishwari was present there. The witnesses, including Chaturi, Santosh, Kadore and Ramayee arrived there and all forbade the assailants.
22. P.W 3 Dhani Ram further clarified that he too arrived on the spot after hearing altercation and saw that Jagdish was intervening and Ram Singh fell down. He disclosed in clear words that Manglee gave a lathi blow on the head of Dhanpat and he fell down. According to him, no second lathi blow was given to Dhanpat. In cross-examination also the witness reiterated his earlier statement.
23. In view of the foregoing discussion of the evidence on record it is crystal clear that Ishwari did not share common intention and there was no prior meeting between Manglee and Ishwari P.W 2 Ram Singh and P.W 3 Dhani Ram gave out in clear word that Ishwari caused no injury to Dhanpat. The testimony of Kadore does not find support from the statement of Dr. R.C Singh who found only one lacerated wound on the head, I therefore, hold that the learned Judge was not justified in convicting Ishwari also for committing the offence punishable under section 304 (Part II) read with section 34 of the Penal Code and he, in my opinion, deserves acquittal. So far as the conviction of Manglee is concerned, I find no illegality in the impugned judgment and his conviction is sustainable. Further, I find no valid ground to reduce the sentence imposed by the Court below.
24. In the result, the appeal partly succeeds. The conviction of appellant Ishwari under section 304 (Part II) read with section 34 IPC and the sentence thereunder are hereby set aside and he is acquitted. He is on bail. He need not surrender.
25. The conviction and sentence recorded against Manglee are hereby maintained. He is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the sentence. He is however allowed two months time to deposit the fine in the Court below.
26. A copy of the judgment shall be sent to the Court concerned for compliance within six weeks. Compliance report be sent within two months.
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