High Court · 2025

1. Heard Shri Muqeem Ahmad, learned counsel for the appellant and Shri S.K. Singh, learned A.G.A. for the State.

2. Challenge in this appeal to the judgment and order dated 28.11.1984 passed by the Additional Sessions Judge, Azamgarh in Sessions Trial No. 69 of 1983 (State Vs. Phulchand and 3 others), whereby, appellants herein have been convicted under Section 323/34 I.P.C. and sentenced them to pay a fine of Rs. 500/- and in default of payment to undergo rigorous imprisonment for six months and in case, the accused do not pay the fine they shall be taken into custody to serve out the sentence awarded to them. On realization of fine Rs.1000/- the same shall be paid to Smt.Lachi Devi as compensation.

3. There is an office report dated 06.08.2025 referring to CJM, Azamgarh vide letter dated 01.08.2025 that appellant Phulchand has died in the year 2016 and the appellant Rampreet has died on 09.08.2023. Thus, the appellant against both the appellants Phulchand and Rampreet stood abated.

4. The case of the prosecution in brief is that the residential house of the accused Ram Priti (since deceased) and complainant Hariram is situate at village Karchha Police Station Saraymir District Azamgarh. There are two houses of Hariram one faces towards east and the other towards west. They are situate in front of each other. The north-south village path way lies in between the houses. The house of accused Smt. Saraswati lies to the north of the house of Hariram. Hariram is father-in-law of Smt. Lachi Devi and Smt. Gun Devi is another daughter-in-law of Hariram. As per the allegation litigation is going on between Hariram and the other accused prior to the occurrence of the incident dated 28.04.1982, when Hariram went to some another village inconnection with the agricultural work, Smt. Lachi Devi and Gun Devi were present in their house at about 03:00 p.m., accused herein started hurling abuses on Smt. Lachi Devi and Smt. Gun Devi and Smt. Lachi Devi resisted to the same thereupon appellant herein caught hold of her and the accused Phulchand (since deceased) and Ram Preet hit her with fists and kicks and the appellants herein in caught hold her. She was also dashed on the ground. At that time, Smt. Lachi Devi was pregnant for about four months and she also sustained some injuries in her stomach and Smt. Lachi Devi got herself medically examined at P.H.C. Phulpur by Dr. Abdul Moid, the then Medical Officer of Phulpur , Dr. Abdul Moid (PW-5) who examined the Smt. Lachi Devi on 29.04.1982 at about 06:10 p.m. and found the following injuries.

1. 3 cm linear abrasion front of lower part of right fore arm 5 cm above wrist joint.

2. 3 cm linear abrasion on the joint of lower part of right fore arm. 1 cm above and parallel to injury no.1.

3. 3 cm linear abrasion on the joint of lower part of right fore arm 2 cm distal to injury no.1.

4. Multiple linear abrasion in an area of 3 cm. x 3 cm on the front of linear part of left fore arm x 5cm. above the wrist joint x scarb was present.

5. In the opinion of the PW-5 Dr. Abdul Moid, injuries were simple in nature and were caused by some blunt object and duration was about one-two days old. Thereafter, the oral report vide Ext Ka-1 at Police Station Saraymir on 29.04.1982 about about 07:30 p.m., it was registered as non-cognizable report. Thereafter, the condition of Smt. Lachi Devi was deteriorated and she was taken to district Women Hospital, Azamgarh and she was medically examined by Dr. Madhubala Sinha, then Superintendent of Women's Hospital Azamgarh on 01.05.1982 at about 2:30 p.m. Thereafter Lachi Devi was discharged from the hospital on 02.05.1982 vide Ex.Ka-3, alleging that abortion took as a result of the injuries sustained on 28.04.1982 at about 7:30 p.m. and the report was entered at check F.I.R. No. 36 on 02.05.1982 at 07:30 p.m., a case under Section 316 Cr.P.C. was registered and the investigation was entrusted to S.I. Mata Prasad Shukla. The prosecution in order to bring home the charges examined Smt. Lachi Devi (PW-1) Swarath (PW-2), Hariram (PW-3) and posted Head Constable(PW-4) who recorded the non-cognizable report. Shri Keshav Prasad Dubey who proved the non-cognizable report.

6. PW-5 Madhubala Singh, was also enlisted one of the prosecution witness. However, S.I. Mata Prasad Shukla did not turn up. The appellant pleaded non guilty and claim to be tried. According to them no injury was sustained by the injured so as to create a circumstance for aboration.

7. Court of III Additional Sessions Judge, Azamgarh on 28.11.1984 convicted the appellant under Section 323 read with Section 34 I.P.C. with fine of Rs.500/- and in default of payment of fine to under rigorous imprisonment for six months and in case, the accused did not fine it shall be taken into custody to serve out the sentence awarded to them. On realisation of fine Rs. 1000/- the same shall be paid to Smt.Lachi Devi as compensation.

8. Learned counsel for the appellant submits that appellant has been falsely implicated in the case as they did not commit any offence as alleged by the prosecution. No such incident took place on 28.04.1982 at 03:00 p.m. and the appellants herein had not caught hold of Smt. Lachi Devi and the nature of the injury which are said to have been extended cannot be said to be on account of any act of the omission of the appellant. Further, according to him no such incident occurred and there is no question of any abortion as the abortion was not on account of any injury which had been extended by the appellant, He submits that even the crucial witness doctor Madhubala Sinha who was posted in Khalilabad and she did not turn up. Similarly, S.I. Mata Prasad Shukla also did not turn up whose testimony would have been on paramount importance in order to surface the truth.

9. Shri S.K. Singh, the learned A.G.A. for the State on the other hand submits that a bare perusal of the testimony of the prosecution witness as well as allegation contained in the FIR vis- a-vis and the nature of the injury it shall show the offences under Section 324 read with Section 34 I.P.C. stood committed particularly when it was on account of act and the omission of the appellant herein while catching hold of the injury Lachi Devi she fell down and the abortion was done. He submits that merely because the statement of S.I. Mata Prasad Shukla or doctor Madhubala Sinha were not recorded would not be a ground to thoroughly overrule the commission of the offence particularly when the other prosecution witnesses testimony is intact and the injury report would support the same.

10. I have heard the submissions so made across the bar and perused the record carefully.

11. A perusal of the allegations in the FIR is with respect to the incident dated 28.04.1982 at 03:00 p.m. the appellant herein by joining together committed offence as the appellants herein caught hold Lachi Devi and other co-accused (deceased appellant- Phulchand and Rampriti) hit her with fists and kicks and Smt. Lachi Devi fell down on the floor and she sustained injuries which culminated into abortion. No doubt, there are four assailants but it cannot be ruled out then the appellants were themselves there and had given blow to the injures Smt. Lachi Devi pursuant there to she fell down and sustained injuries. The statements of the prosecution witnesses and the nature of the injuries which are 3 cm linear abrasion front of lower part of right fore arm 5 cm above wrist joint, 3 cm linear abrasion on the joint of lower part of right fore arm. 1 cm above and parallel to injury no.1, 3 cm linear abrasion on the joint of lower part of right fore arm 2 cm distal to injury no.1, multiple linear abrasion in an area of 3 cm. x 3 cm on the front of linear part of left fore arm x 5cm. above the wrist joint x scarb was present which resulted in a injury by being dashing to the floor resulting to abortion.

12. As a matter of fact, the testimony itself shows that testimony of the witnesses are intact and merely because of two witnesses S.I. Mata Prasad Shukla and Madhubala Sinha had not stepped into witness box would not dilute the rigour of the statements of the other witness.

13. In view of the said discussion, no case is made out for interference. Accordingly, the appeal stands dismissed. The conviction of the appellant under Section 323/34 I.P.C. is upheld. However, three months further time is accorded to the appellant to pay the fine Rs.500/- each and in default of the payment to undergo rigorous imprisonment for six months.

14. Let a copy of the judgment along with trial court record be sent to the III Additional Sessions Judge Azamgarh for compliance.

15. A compliance report be sent to this Court.

16. A copy of the order be provided to the counsel for the appellant as well as learned AGA as per rule. Order Date :- 13.8.2025 Imtiyaz IMTIYAZ AHMAD High Court of Judicature at Allahabad

1. Heard Shri Muqeem Ahmad, learned counsel for the appellant and Shri S.K. Singh, learned A.G.A. for the State.

2. Challenge in this appeal to the judgment and order dated 28.11.1984 passed by the Additional Sessions Judge, Azamgarh in Sessions Trial No. 69 of 1983 (State Vs. Phulchand and 3 others), whereby, appellants herein have been convicted under Section 323/34 I.P.C. and sentenced them to pay a fine of Rs. 500/- and in default of payment to undergo rigorous imprisonment for six months and in case, the accused do not pay the fine they shall be taken into custody to serve out the sentence awarded to them. On realization of fine Rs.1000/- the same shall be paid to Smt.Lachi Devi as compensation.

3. There is an office report dated 06.08.2025 referring to CJM, Azamgarh vide letter dated 01.08.2025 that appellant Phulchand has died in the year 2016 and the appellant Rampreet has died on 09.08.2023. Thus, the appellant against both the appellants Phulchand and Rampreet stood abated.

4. The case of the prosecution in brief is that the residential house of the accused Ram Priti (since deceased) and complainant Hariram is situate at village Karchha Police Station Saraymir District Azamgarh. There are two houses of Hariram one faces towards east and the other towards west. They are situate in front of each other. The north-south village path way lies in between the houses. The house of accused Smt. Saraswati lies to the north of the house of Hariram. Hariram is father-in-law of Smt. Lachi Devi and Smt. Gun Devi is another daughter-in-law of Hariram. As per the allegation litigation is going on between Hariram and the other accused prior to the occurrence of the incident dated 28.04.1982, when Hariram went to some another village inconnection with the agricultural work, Smt. Lachi Devi and Gun Devi were present in their house at about 03:00 p.m., accused herein started hurling abuses on Smt. Lachi Devi and Smt. Gun Devi and Smt. Lachi Devi resisted to the same thereupon appellant herein caught hold of her and the accused Phulchand (since deceased) and Ram Preet hit her with fists and kicks and the appellants herein in caught hold her. She was also dashed on the ground. At that time, Smt. Lachi Devi was pregnant for about four months and she also sustained some injuries in her stomach and Smt. Lachi Devi got herself medically examined at P.H.C. Phulpur by Dr. Abdul Moid, the then Medical Officer of Phulpur , Dr. Abdul Moid (PW-5) who examined the Smt. Lachi Devi on 29.04.1982 at about 06:10 p.m. and found the following injuries.

1. 3 cm linear abrasion front of lower part of right fore arm 5 cm above wrist joint.

2. 3 cm linear abrasion on the joint of lower part of right fore arm. 1 cm above and parallel to injury no.1.

3. 3 cm linear abrasion on the joint of lower part of right fore arm 2 cm distal to injury no.1.

4. Multiple linear abrasion in an area of 3 cm. x 3 cm on the front of linear part of left fore arm x 5cm. above the wrist joint x scarb was present.

5. In the opinion of the PW-5 Dr. Abdul Moid, injuries were simple in nature and were caused by some blunt object and duration was about one-two days old. Thereafter, the oral report vide Ext Ka-1 at Police Station Saraymir on 29.04.1982 about about 07:30 p.m., it was registered as non-cognizable report. Thereafter, the condition of Smt. Lachi Devi was deteriorated and she was taken to district Women Hospital, Azamgarh and she was medically examined by Dr. Madhubala Sinha, then Superintendent of Women's Hospital Azamgarh on 01.05.1982 at about 2:30 p.m. Thereafter Lachi Devi was discharged from the hospital on 02.05.1982 vide Ex.Ka-3, alleging that abortion took as a result of the injuries sustained on 28.04.1982 at about 7:30 p.m. and the report was entered at check F.I.R. No. 36 on 02.05.1982 at 07:30 p.m., a case under Section 316 Cr.P.C. was registered and the investigation was entrusted to S.I. Mata Prasad Shukla. The prosecution in order to bring home the charges examined Smt. Lachi Devi (PW-1) Swarath (PW-2), Hariram (PW-3) and posted Head Constable(PW-4) who recorded the non-cognizable report. Shri Keshav Prasad Dubey who proved the non-cognizable report.

6. PW-5 Madhubala Singh, was also enlisted one of the prosecution witness. However, S.I. Mata Prasad Shukla did not turn up. The appellant pleaded non guilty and claim to be tried. According to them no injury was sustained by the injured so as to create a circumstance for aboration.

7. Court of III Additional Sessions Judge, Azamgarh on 28.11.1984 convicted the appellant under Section 323 read with Section 34 I.P.C. with fine of Rs.500/- and in default of payment of fine to under rigorous imprisonment for six months and in case, the accused did not fine it shall be taken into custody to serve out the sentence awarded to them. On realisation of fine Rs. 1000/- the same shall be paid to Smt.Lachi Devi as compensation.

8. Learned counsel for the appellant submits that appellant has been falsely implicated in the case as they did not commit any offence as alleged by the prosecution. No such incident took place on 28.04.1982 at 03:00 p.m. and the appellants herein had not caught hold of Smt. Lachi Devi and the nature of the injury which are said to have been extended cannot be said to be on account of any act of the omission of the appellant. Further, according to him no such incident occurred and there is no question of any abortion as the abortion was not on account of any injury which had been extended by the appellant, He submits that even the crucial witness doctor Madhubala Sinha who was posted in Khalilabad and she did not turn up. Similarly, S.I. Mata Prasad Shukla also did not turn up whose testimony would have been on paramount importance in order to surface the truth.

9. Shri S.K. Singh, the learned A.G.A. for the State on the other hand submits that a bare perusal of the testimony of the prosecution witness as well as allegation contained in the FIR vis- a-vis and the nature of the injury it shall show the offences under Section 324 read with Section 34 I.P.C. stood committed particularly when it was on account of act and the omission of the appellant herein while catching hold of the injury Lachi Devi she fell down and the abortion was done. He submits that merely because the statement of S.I. Mata Prasad Shukla or doctor Madhubala Sinha were not recorded would not be a ground to thoroughly overrule the commission of the offence particularly when the other prosecution witnesses testimony is intact and the injury report would support the same.

10. I have heard the submissions so made across the bar and perused the record carefully.

11. A perusal of the allegations in the FIR is with respect to the incident dated 28.04.1982 at 03:00 p.m. the appellant herein by joining together committed offence as the appellants herein caught hold Lachi Devi and other co-accused (deceased appellant- Phulchand and Rampriti) hit her with fists and kicks and Smt. Lachi Devi fell down on the floor and she sustained injuries which culminated into abortion. No doubt, there are four assailants but it cannot be ruled out then the appellants were themselves there and had given blow to the injures Smt. Lachi Devi pursuant there to she fell down and sustained injuries. The statements of the prosecution witnesses and the nature of the injuries which are 3 cm linear abrasion front of lower part of right fore arm 5 cm above wrist joint, 3 cm linear abrasion on the joint of lower part of right fore arm. 1 cm above and parallel to injury no.1, 3 cm linear abrasion on the joint of lower part of right fore arm 2 cm distal to injury no.1, multiple linear abrasion in an area of 3 cm. x 3 cm on the front of linear part of left fore arm x 5cm. above the wrist joint x scarb was present which resulted in a injury by being dashing to the floor resulting to abortion.

12. As a matter of fact, the testimony itself shows that testimony of the witnesses are intact and merely because of two witnesses S.I. Mata Prasad Shukla and Madhubala Sinha had not stepped into witness box would not dilute the rigour of the statements of the other witness.

13. In view of the said discussion, no case is made out for interference. Accordingly, the appeal stands dismissed. The conviction of the appellant under Section 323/34 I.P.C. is upheld. However, three months further time is accorded to the appellant to pay the fine Rs.500/- each and in default of the payment to undergo rigorous imprisonment for six months.

14. Let a copy of the judgment along with trial court record be sent to the III Additional Sessions Judge Azamgarh for compliance.

15. A compliance report be sent to this Court.

16. A copy of the order be provided to the counsel for the appellant as well as learned AGA as per rule. Order Date :- 13.8.2025 Imtiyaz IMTIYAZ AHMAD High Court of Judicature at Allahabad