JAGANNATH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the appeal preferred by the three appellants herein and one Badri Narain (since dead) challenging the conviction and sentence recorded against them under Sections 302/34 and 323/34 of the Indian Penal Code (hereinafter referred to as the 'IPC') by the Additional Sessions Judge, Gonda.

(2.) The story as put forth by the prosecution was that on June 7, 1978 at or about 9.00 A.M. a heated altercation took place between Shyam Narain (the deceased) and his brother Narain Dutt on the one hand Badri, Narain and his son (sic) (since acquitted) on the other, over dismantling of the mend which divided their respective agricultural plots. At that time Badri Narain was holding a spear and Swami Nath a Kudal with him. While the altercation was going on, the three appellants reached there armed with lathis. In course of the altercation when Swami Nath attempted to attack Shyam Narain with the Kudal the latter and Narain Dutt tried to run towards the village but could not succeed as the five accused persons including the appellants, surrounded them and started assaulting Shyam Narain with their respective weapons. On hearing the shouts of Shyam Narain and Narain Dutt when their brother Swami Dayal and his son Ramashish reached there, the three appellants also assaulted them with lathis. As a result of the beating when Shyam Narain dropped down dead, the accused persons ran away. Swamy Dayal then went to the police station and lodged an FIR whereupon a case was registered, which ended in a charge sheet against all the five accused persons.

(3.) To bring home the charges levelled against them the prosecution rested its case primarily upon the ocular version of the incident as given out by Swami Dayal (P.W. 1), Jamil Khan (P.W.2) and Narain Dutt (P.W.3). The learned trial Judge, found that the claim of Jamil Khan and Narain Dutt that they were present at the time of the incident and, for that matter had witnessed the same was wholly untenable and, therefore, left their evidence out of consideration. As regards, Swamy Dayal (P.W. 1), the learned Judge observed that finding of injury on his person, as testified by the doctor (P.W.5) and his prompt lodging of the F.I.R. lent sufficient corroboration to his testimony to form the basis of conviction. It having, however, appeared to the learned Judge that Swami Nath was pressed in because he was the son of Badri Narain though he did not participate in the assault he acquitted Swami Nath, while recording the order of conviction and 'sentence against the appellants and Badri Narain. The High Court concurred with all the findings recorded by the learned trial Judge and dismissed the appeal.