RAJU Vs. STATE

JUDGEMENT

(1.) The appellant has been convicted of offences under Section 304 Part-1 and 324 of the Indian Penal Code (for short 'IPC') by an Additional Sessions Judge vide his judgment dated 30th July 1984. He has also been convicted of offence under Section 27 of the Arms Act. He has been awarded rigorous imprisonment for five years on the first count, rigorous imprisonment for one year on the second count and rigorous imprisonment for two years on the third count. However, all the sentences have been made to run concurrently. Feeling aggrieved he has preferred this appeal against his conviction and sentence.

(2.) . Succintly the prosecution case is that the appellant and his elder brother Vinod Kumar were sent up for trial on charges under Sections 302/307/34 IPC. The appellant was further prosecuted for an offence under Section 27 of the Arms Act. The prosection version as embodied in the FIR lodged by Smt. Bimla (PW4) was that on 20th July 1982 at about 10 P.M. Vinod Kumar elder brother of the appellant was dragging his wife Smt. Parveen (PW5) out of his house bearing quarter No. B-280, D.D.A. Quarters, New Ranjit Nagar and was beating her with fists and slaps. The reason for the beating was that earlier in the day an altercation had taken place between her and her mother-in-law Smt. Tara which was resented by both Vinod Kumar and the appellant, Ashok Kumar (deceased), who was real brother of Smt. Parveen, was residing in house bearing No. B-271, D.D.A. Quarters, New Ranjit Nagar, which was nearby the house of Vinod Kumar. Smt. Bimla Devi, who is also sister of the deceased, too was living with him at the relevant time. On hearing the noise coming from the street, both Ashok Kumar and Smt. Bimla went towards the house of Vinod Kumar. The latter used filthy language for all the family members of Parveen. Ashok Kumar took it ill and protested to Vinod Kumar saying that he should not abuse the entire family. Thereupon, Vinod Kumar caught hold of Ashok Kumar (deceased) and shouted that he was unduly interfering in his family affairs and spoiling the whole atmosphere of their family. He also exhorted the appellant to finish him then and there, (he actual words being "Aaj Iska Kissa Hi Khatam Kar Do". Thereupon, the appellant brought out a dagger. Vinod Kumar caught hold Ashok Kumar while appellant dealt a blow with dagger to him. Smt. Bimla tried to intervene and she sustained an injury with dagger. The appellant dealt another blow with the dagger which landed just on the left side of his chest and he fell down crying "I am dying". She tried to give support to her brother but he fell down. He was removed to the hospital but he was declared dead. Smt. Bimla too was taken to the hospital and was medically examined.

(3.) . At the trial all the three eye witnesses, namely, Smt. Bimla (PW4). Smt. Parveen (PW5) and Misri Lal (PW11) turned hostile. Smt. Parveen deposed that she never had any quarrel or differences with her mother-in- law, Smt. Tara and she did not know anything about this occurrence. She feigned complete ignorance as to how her brother Ashok sustained injuries. She was confronted with her police statement Ex. PW5/A but she totally denied the same. Similarly, Misri Lal denied having seen the occurrence. He too was confronted with his police statement Ex. PW1 I/A which was on the lines similar to the FIR lodged by Smt. Bimla but he too stood his ground saying that he never made any such statement to the police. As for Smt. Bimla Devi, she deposed that on 20.7.82 at about 10/10.30 P.M. she heard the shouts of her brother Ashok coming from the lane. Thereupon, she came down stairs and separated Raju i.e. the appellant and her brother. Vinod was not present at that time. However she sustained a knife injury which was dealt by the appellant. She wrapped up the injury with her dhoti and told Raju that she had been injured. When she gathered herself she found her brother Ashok also lying in injured condition. He had sustained a knife injury on the side of his chest. He was having both his hands on the back. Ashok Kumar told her that he had received a knife injury and was dying. He named Raju as the assailant who had inflicted knife injuries on him. Both Ashok and she were taken to the hospital and were medically examined but Ashok was declared dead, having died at the spot. She too was declared hostile and confronted with her police statement Ex. PW4/A i.e. FIR in this case. However, she denied the same in toto. In her cross-examination by the appellant, she affirmed having told the police about the dying declaration made by her deceased brother.