RAM ANOOP Vs. STATE OF U P

JUDGEMENT

(1.) Shri B. N. Srivastava, Additional Sessions 3udge, Allahabad by his judgment and order dated 10. 8. 77 had convicted Ram Anoop, Shyam Lal, Bansi Lal, Brij Biian and Munni Lal under Section 302 read with Section 149 I. P. C. and sentenced them to imprisonment, for life. He further convicted Ram Anoop under Section 148 I. P. C. and sentenced him to rigorous imprison ment for three years and a fine of Rs. 100. 00 and in default of payment of fine to undergo rigorous imprisonment for three months. So far Sir/am Lal, Bansi Lal, Brij Bhan and Munni Lal were concerned, they had additionally been convicted under Section 147 I. P. C. and sentenced to undergo two years rigorous imprisonment and a fine of Rs. 100. 00 and in default of payment of fine to serve three months rigorous impri sonment. The Additional Sessions Judge had not found Mithal Lal guilty of the charges under Section 302 read with Section 149 I. P. C. and Section 148 I. P. C. and acquitted him. Aggrieved by 'the judgment and order of the Additional Sessions Judge, Allahabad aforesaid, Ram Anoop, Shyam Lal, Brij Bhan, Munni Lal and Bansi Lal filed criminal appeal No. 1810 of 1977 against their conviction and the sentence awarded to them and the State filed the Appeal No. 2731 of 1977 against the acquittal of Mithai Lal. 2. The autopsy on the dead body of Sheo Nandan had been done at 2. 45 P. M. on 24. 4. 76 and the following ante-mortem injuries were noted by Dr. L. K. Bhargava, P. W. 11 to have been present on his body. 1. Incised wound 2" x 1/2" x bone deep on the left side of fore-head, 2" above the left eye brow. 2. Incised wound 2" x 1/2" x bone deep, on the left side of head in the middle. 3. Incised wound 1. 1/2" x 1/2" x bone deep on the middle of the head, 1/2" above injury No. 2. 4. Contusion multiple 6" x 3-1/2" on the left upper arm. 5. Contusion multiple in an area of 12" all around left fore-arm. Both bones fractured. 6. Contusions multiple 9" x 5" on the left leg. Both bones fractured. 7. Contusions multiple 4" all around ankle joint bone fracture. 8. Contusions 6" x 4" on the lower end of right leg, both bones fractured. 9. Multiple contusions in an area of 8" x 4" on the right upper arm. 10. Contusion 5" x 3" on the left shoulder. 11. Contusions 8" x 5" on the back of right side. The body of the deceased was found to be of average built at the time of examination. Rigor mortis had passed of its upper limbs but was present in the lower ones. Putre faction had started and bleeding had been found from the nose. The internal examination did not show any injury in the head or thorax region or on any vital part. The stomach and the small intestines were empty. The Medical Officer opined that the death of Sheo Nandan had been on account of shock and haemorrhage as a result of the multiple injuries inflicted on his person. 3. The accused did not challenge that Sheo Nandan had died as a result of the injuries inflicted on him. According to them, however, Sheo Nandan had been assaulted by some unknown enemies of his, on 22. 4. 76 at about 10. 00 p. m. and not by them about 5. 30 a. m. in the grove of Bachchoo Gareria due to quarrel with regard to a portion of Plot No. 179 which lay in between the house of the deceased and theirs. 4. The prosecution had examined Ramdhan informant P. W. 1, Shyam Shanker Yadav P. W. 2 and Gayadin Yadav P. W. 3 as the witnesses of the occurrence. Ramdhan P. W. 1, Anandi Prasad, S. I. P. W. 6 and Rama Nand Tewari, Naib Tahsildar C. W. 1 in their statement indicated that the accused could have motive for the crime. Dashrath Lal P. W. 4 who is a recovery witness of the blood stained and plain earth and certain articles of the deceased, Jamuna Prasad, Constable P. W. 5 who had accompanied the dead body from the field of Purshottati Misra to the mortuary and Anandi Prasad, S. I. P. W. 6 who had prepared the inquest report and made recovery of the blood stained and plain earth and the garments etc. on the person of the deceased lend support to the testimony of the witnesses of the occurrence regarding its scene. The statements of Shambhoo Nath P. W. 7 and Lalmani P. W. 8 reveal that the deceased Sheo Nandan and Shy am Shanker Yadav P. W. 1 were daily commuters as they had got railway monthly tickets prepared. It further follows from their testimony on the basis of railway records that, Shyam Shanker Yadav P. W. 2 had gone to Allahabad on the date of the incident and as such was not a chance but a natural witness. 5. We shall first examine whether there was motive for the accused to assault Sheo Nandan, Ramdhan P. W. 1 pointed that the accused had got plot No. 179 of village Baldiha allotted by the Tahsildar in their favour although during the consolidation operations it had been left for Harijan Abadi. Sheo Nandan approached the Pradhan in respect of its allotment. He brought about an adjustment giving half of the land to the accused and half to Sheo Nandan. The accused did not stick to the settlement. They constructed wall enclosing the land of Sheo Nandan who in his turn demolished the same. Anandi Prasad P. W. 6, S. I. in his statement pointed that when he visited the village Baldiha he noticed signs of the demolished wall. Rama Nand Tewari C. W. 1 pointed that Sheo Nandan and others had fixed cattle pegs etc. on the plot No. 179 and occupied it but he put the accused in occupation of the same. The accused Ram Anoop in his statement suggested that this case had been started against the accused with a view to grab Plot No. 179 of Village Baldiha. Th3 evidence adduced by the prosecution coupled with the testimony of Rama Nand Tewari C. W. 1 leaves no room for doubt that there was guarrel going on between Sheo Nandan deceased and the accused with regard to a portion of Plot No. 179. The accused as such were likely to be bitter towards him for he had been unjustifiably dispossessing them re peatedly as is clear from the evidence dis cussed above. 6. It next is to be seen whether the appel lants could be held to have assaulted Sheo Nandan deceased. Ramdhan P. W. 1 and Shyam Shanker P. W. 2 deposed that they had been going from Baldiha to Saidabad to catch the V-UP, Gorakhpur Express for Allahabad when the incident took place on way in the grove of Bachchoo Gareria. The fact that Sheo Nandan was a kitchen clerk in the Army Workshop No. 508 could not be doubted as the statement of Ramdhan P. W. 1 and Shyam Shanker Yadav P. W. 2, on this point had not been challenged. Shyam Shanker Yadav P. W. 2 further pointed that his father was also co- worker in the Army Unit. Shyam Shanker Yadav who lived in village Baldiha could safely be taken to be in the know of the place where Sheo Nandan was employed. We then have the railway monthly ticket of Sheo Nandan on record. It also lends support to the fact that Sheo Nandan must be going on duty almost daily as is the testimony of Ramdhan P. W. 1 and Shyaiji Shankr Yadav P. W. 2. The prosecution led evidence that Shyam Shanker Yadav P. W. 2 was studying in the Allahabad University. He had been subjected to severe cross examination but he remained unshaken on the point that he had gone to attend classes in the University on the date of the incident. He disclosed as to who had taken his M. A. Previous Hindi classes. The incident had taken place in the month of April. With the examination being near, Shyam Shanker Yadav P. W. 2 was expected to be regular in his studies. At any rate on the bare suggestion on behalf of the accused, it would be unjustifiable to hold that Shyam Shanker Yadav was a got up witness more so when there is clinching evidence to establish that he had 'been to Allahabad on the date of the incident for his monthly railway ticket had been prepared on that very day at Rambagh Railway Station within the city of Allahabad as vouchsafed by Shambhoo Nath P. W. 7 and Lal Mani Lal P. W. 8 Ramdhan P. W. 1 pointed that he had been going to Allahabad to deposit electric dues in connection with the tube well and Gayadin Yadav P. W. 3 pointed that he had been going to the shop of Cheddi in Saidabad for ourchasing materials needed in the preparation ' of bidies. There is a ring of truth in the testimony of Ramdhan P. W. 1 and Gayadin Yadav P. W. 3 for the electrical line of Ramdhan had been disconnected due to non-payment of dues and Gayadin Yada could certainly go to Cheddi's shop so that he could usefully engage himself in the preparation of bidies during the day. Besides at the time of the arrival of the train in the mornino in April at 5. 30 a. m. there was no improbability in some persons being near about the place of occur rence which took place close to the path leading to Saidabad Railway Station with abadi of the different villages in the vicinity as consistently stated by the P. Ws. The prosecution witnesses Ramdhan P. W. 1 Shyam Shanker Yadav P. W. 2 and Gayadin P. W. 3 thus had justifiably been heid by the Additional Sessions Judge to have wit nessed the occurrence. Ramdhan P. W. 1 had guen plausible explanation as to why the electric dues could not be deposited on the date of the incident. The post mortem report shows that Sheo Nandan had received multiple contusions on the whole of the left arm, left leg and right upper arm and contusions over the right leg, left shoulder and on the back. The very large number of contusions inflicted in such a short time indicates participation by many persons in the assault. If there would not have been so many persons, the assault could have been checked. Ramdhan P. W. 1 Shyam Shanker Yadav P. W. 2 and Gayadin Yadav P. W. 1) due to the break of dawn were in a position 'to clearly see the assailants. We have thus little hesitation in upholding the findings of the Additional Sessions Judge that Shyam Lal, Bansi Lal, Brij Bhan and Munni Lal had assaulted with lathi. So far as Ram Anoop is concerned he was said to have been armed with a gandasa, the blade of which was merely four angul wide as given by Gayadin P. W. 3 The post mortem report shows Sheo Nandari to have sustained three incised wounds two of them measured 2" x 1/2" bone deep and the third one measured 1-1/2" x 1/2" x bone deep. Ramdhan stated that Ram Anoop had assaulted Sheo Nandan with gandasa on his head and at no other place. The Additional Sessions Judge in our opinion justifiably arrived at the con clusion that the incised wounds of Sheo Nandan had been caused by the gandasa and not by barcha with which Mithai Lal was said to be armed. The suggestion on behalf of the appellants that Sheo Nandan had been inflicted injuries at about 10. 00 p. m. on 22. 4. 76 does not appear to be sound. Had it been so the stomach of Sheo Nandan and also his small intestines would rat have been found empty and there would not have been a bushirt'" and full pant on his person at the time when he was inflicted the injures which resulted in his death. The prosecution was not to gain by changing the site of the incident. The Investigating Officer had found blood at the place where Sheo Nandan was pointed to have been assaulted. The prosecution led evidence as to how Sheo Nandan while being taken to Saidabad Hospital on a cot had died. The Additional Sessions Judge was justified in arriving at the conclusion thai the appel lants had assaulted Sheo Nandan at the time and place alleged by the prosecution. 7. The point, however, remains to be determined as to what offence had been committed by Ram Anoop, Shyam Lal, Bansi Lal, Brij Bhan and Munni Lal. Dr. L. K. Bhargava P. W. 11 in his statement, did not point out that the injuries inflicted by the appellants were in the ordinary course, sufficient to cause the death of Sheo Nandan. The internal examination of the dead body Sheo Nandan did not disclose that any vital organ of his, had been cut; Dr. L. K. Bhargava had not detected anything abnormal in the head and neck or thorax or abdomen of Sheo Nandan. The lathi injures also were on non-vital parts. In the first information report, there is no such allegations that in the quarrel before the incident the accused had threatened to kill Sheo Nandan. The exhortation was only to assault and not to kill him. Ramdhan too stated that he did not expect that the appellants could kill Sheo Nandan. In Mohinder v. State Administration (Delhi) A. I. R. 1986 S. C. page 309 where blow given was not correlated to internal injury causing death. The conviction was altered under Section 325 I. P. C. The intention of the appellants thus, could only be presumed to be of causing hurt. Shyam Lal, Bansi Lal, Brij Bhan, Munni Lal and Ram Anoop on the evidence on record are only liable to be convicted under Sections 325/324 read with Section 149 and Ram Anoop is liable to be convicted additionally under Section 148 and the other appellants Shyam Lal, Bansi Lal, Brij Bhan and Munni Lal under Section 147 I. P. C. The incident had taken place in the year 1976. Ram Anoop was pointed to have been in jail for eight months whereas the other appellants were said to have been in jail for about four months. The counsel for the appellants urged that the appellants would feel relieved if instead of being sent to jail after a lapse of so many years when situation; have changed, were directed to pay fine instead, we too feel that it would meet the ends of justice if the appellants on each of the counts on which they have been convicted, were sentenced to imprisonment already undergone and in addition under Section 325 read with Section 149 I. P. C. were directed to pay a fine of Rs. 800. 00 each besides the fine of Rs. 100. 00 which Ram Anoop had been directed to pay under Section 148 I. P. C. and each of the other appellants under Section 147 I. P. C. So far as the respondent Mithai Lal is concerned the Additional Sessions Judge could not be said to be unjustified in acquitting him as Gayadin (P. W. 3) stated that he had not caused any injury and the post mortem report also shows that no barcha injury had been inflicted on Sheo Nandan deceased. Further the prosecution has not come forward with this case that the role of Mithai Lal was one of instigator. The role attributed to him is that of causing actual assault which cannot be accepted on the basis of the evidence on record. The finding of acquittal recorded in relation to Mithai Lal does not call for any inter ference. ORDEr 8. The State Appeal No. 2731 of 1977 is dismissed. Mithai Lal is on bail. He need not surrender to his bail bonds which are cancelled. 9. The appeal of Ram Anoop, Shyam Lal,bansi Lal, Brij Bhan and Munni Lal is partly allowed. They are acquitted the charge under Section 302 read with Section 149 I. P. C. but convicted under Sections 325/324 read with Section 149 I. P. C. the 3 conviction of Ram Anoop under section 148 I. P. C. and the conviction of the other appellants under Section 147 I. P. C. are also not interfered with. All the appellants of the Criminal Appeal. No. 1810 of 1977 under Section 325 read with Section 149 I. P. C. are sentenced to imprisonment already undergone and to pay a fine of Rs. 800. 00 each and in default of payment of fine to undergo one year rigorous imprison ment. The appellants or the Criminal Appeal No. 1810 of 1977 under Section 324 I. P. C. read with Sections 149 I. P. C. are sentenced to imprisonment already undergone. No sentence of fine is being awarded additionally under this Section as we have already sen tenced them to pay fine besides imprisonment undergone under Section 325 I. P. C. Ram Anoop under Section 148 I. P. C. is sentenced to imprisonment already undergone and to pay a fine of Rs. 100. 00 and in default of payment of fine to undergo three months rigorous imprisonment on this count. Shyam Lal, Bansi Lal, Brij Bhan and Munni Lal under Section 147 I. P. C. are sentenced to imprison ment already undergone and to pay a fine of Rs. 100. 00 each and in default of payment of fine to undergo rigorous imprisonment for three months. The appellants are allowed three months time from today to pay the fine, failing which they shall be taken into custody to serve the sentences awarded to them in default of payment- of fine as indicated above. The fine realised in respect of the offence under Section 325 read with Section 349 I. P. C. shall be given to the widow of Sheo Nandan deceased and if she is not alive, to his other heirs. 10. Let a copy of the judgment be placed on the record of the Criminal Appeal No. 2731 of 1977. .