BAUL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellants are father and son. They were prosecuted with one Ramdeo who has been acquitted by the High Court. The prosecution case against them is that on the evening of June 7, 1962, about Sun-set they attacked one Ramdular causing him fatal injuries on his head with a lathi resulting in his death. The first appellant Baul is said to have instigated the assault and the original prosecution case was that the other appellant Sadhai and Ramdeo (the acquitted accused) assaulted Ramdular. Medical evidence established that the deceased died as a result of two fatal blows on the head, both of which appeared to have caused extensive fractures of the skull. There were two other blows on the head which seemed to be simple. The deceased never regained consciousness after he received the blows and died in the hospital about 11-30 the same night. The occurrence took place in this way. It appears that Baul, the first appellant, and Lurkhur (page No. W. 1) who are brothers-in-law at loggerheads over a right of way. On the day in question Lurkhur was preparing his food near his house and the deceased was at the well nearby. When Baul passed that way there was an exchange of abuses and Baul raised an alarm. Lurkhur's son, the deceased, came out of his house with his wife. On the other side came the appellant Sadhai and the acquitted accused Ramdeo. Baul instigated these two to beat the deceased who was probably very vociferous in his abuses in support of his old father. When this exhortation was made the deceased took to his heels chased by Sadhai and Ramdeo. According to the prosecution evidence both of them hit the deceased on the head with their lathies. The deceased attempted to run back to his house but fell down near the doorstep. The appellants and Ramdeo thereupon retreated.

(2.) The Police Station House is situated within a distance of a mile from the scene of occurrence. Report of the incident was made between 7 and 8 p. m. but was actually recorded at 8 p. m. Badshahpur Hospital is situated within 2-3 furlongs of the police station house and the deceased was sent in an unconscious condition to the hospital. He never regained consciousness before his death. The Sub-Inspector, after recording the first information report, went to the hospital, found the deceased unconscious and, therefore, went to the spot whether he found no witness except the wife of the deceased person. He went back to the hospital and then went in search of the appellant Sadhai and arrested him in the village after l0 p. m. The other two accused surrendered in court later on June 18, and June 20. The deceased was examined while he was still alive by Dr. N. D. Burman (page No. W. 3) and his report shows that he had "a mutilated" wound of 1/4" x 1/10" x l /4" on the left side and the head 2-1/4" above the left eye brow with swelling 4" x 4-1/2" in area. The wound was then bleeding. He also had a bluish swelling 2-1/4" x 2" on the right side of the scalp 2" above the right eyebrow. Both the injuries were said to have been caused with a blunt weapon such as a lathi. After the death of the deceased postmortem examination was done by Dr. M. L. Gouta (page No. W. 7) . He had the opportunity to examine the injuries more closely. According to him there were:

(3.) There are five eye-witnesses of the actual occurrence of whom only two have been believed. They are Lurkhur (P W. 1) and Smt. Mangani (P W 2) the wife of the deceased. Three other witnesses Ram Saran (page No. W. 4) , Ram Dular (P W 5) and Ram Swaroop (page No. W. 6) were else examined. They stated that they were passing that way and saw the assault. Dular and Ramswaroop were disbelieved as to the actual assault, because when they saw the deceased he had already fallen on the ground. Ram Saran was disbelieved because in the committing court he had deposed that he bad only seen Sadhai beating although in the court of Sessions he named both the youngmen as the assailants. Baul, of course, admitted his presence, but his son Sadhai pleaded alibi. His statement was that he had left with the corpse of the mother of one Marwari for Jhusi to attend the cremation and returned by train at 7-30 p. m. He came from the station on the 'hearse car' and alighted at the police station house when he was arrested. He examined one witness in support of this statement. This witness was his companion on this trip.