STATE OF DELHI Vs. NATHU

JUDGEMENT

(1.) In a fight between two factions on 16th April, 1972 in village Wajirpur, Delhi, one Surja received a grievous blow on his head. He was taken to the Irvin Hospital (now called Lok Nayak Jai Parkash Narain Hospital), where he expired on the next day. The prosecution allegation was that the fatal blow given to Surja was with the blunt side of the axe. The prosecution case further was that Nathu, respondent herein had given that blow. Nathu and seven others were tried for offences under sections 147/148/149 and 302 of the Indian Penal Code and 325 and 326 read with section 149 I.P.C. The learned AddI. Sessions Judge found that there was no unlawful assembly. On merits of the case, he acquitted all of them, including the respondent herein of the offence of murder. The State has chosen to file appeal against the acquittal of Nathu only. In passing we might mention that one of the co-accused namely Ishwar was convicted for an offence under section 324 of the Indian Penal Code and sentenced to undergo 3 years RI. His appeal bearing No. 192 of 1976 is being dealt with separately. To appreciate the rival contentions it is necessary to note certain facts. The deceased Surja belonged to the faction of Ramji Lal. In fact he is his cousin. They had filed a suit for possession against Bhagwana in respect of a plot of land bearing No, 533 in that village i.e. Wazirpur. Another suit had been filed against Bhagwana by Dalip Singh and Zile Singh who it appears, are also members of the Ramji Lals faction, in respect of the same plot and for the same relief. On an application made by Zile Singh, the Sub Judge in whose court these cases were pending appointed a local commissioner to inspect the spot and to take measurements of the plot in question. Shri S.K. Taneja. Advocate, who had been appointed the Commissioner, visited the plot at about 4 p.m. on 16th April, 1972. At the time when the local commissioners proceeding were going on, it is stated that Bhagwana, his son Ishwar. Har Lal said to be his brother; Bhoop Singh said to be his uncle. Bhagwana's other son Surinder, his son-in-law Satpal, his nephews Jaswant Singh and Chander Singh, were present. On the complainant's side, Dalip Singh, Ramji Lal, Surja, and Zile Singh were present. Apart from the members of the two factions, the prosecution case is that Nathu who is referred to in the evidence as Nathu Pandit was also present being a friend of Ishwar who is son of Bhagwana. The prosecution case further was that after the Local Commissioner had left, Ishwar told Ramji Lal that he (Ramji Lal) had taken lot of interest in the proceeding of the Commissioner, a quarrel ensued, and thereupon Ishwar, who, it is stated, runs a drycleaners shop nearby, went to his shop and brought an open knife with which he inflicted an injury on Ramji Lal. It is stated that the complainant party to save themselves from further assault tried to take refuge in a tal (firewood stall), which was also situated nearby the plot in question, of Ramji Lal. Accused however, followed them.

(2.) At the outset, we may notice that it is the admitted case of the parties that prior to Ishwars going to his shop, none of the participants were armed. Nowhere has the prosecution alleged that any of the accused had armed themselves earlier to the incident. This fact is necessarily to be borne in mind while assessing the prosecution case. It is stated that it was in that tal that Nathu picked up a kulhara (axe) and gave a blow on the head of Surja by its blunt side that is to say by reversing the blade side of the axe.

(3.) Dr. Vishnu Kumar conducted the postmortem on the body of Surja on 17th April, 1972. He found the following injuries: -