NAMO NARAYAN UPADHYAYA Vs. STATE OF U.P.

JUDGEMENT

(1.) Both the above appeals have been preferred against the judgement and order dated 3.7.2003 passed by Special Judge/Addl. Sessions Judge Court No. 7 Ballia in S.T. No. 269 of 2001 whereby the appellants have been convicted under sections 147, 148, 323 I.P.C. read with 147, 324 read with 149 I.P.C. and sentenced to undergo imprisonment for one year each and under section 325 I.P.C. read with 149 I.P.C. and sentenced to suffer imprisonment for two years attended with fine of Rs. 200/- with default stipulation ie to suffer further simple imprisonment for one year each. The appellants have been further convicted under section 302/149 I.P.C and sentenced to undergo imprisonment for life attended with fine of Rs. 500/- and in default of payment of fine, to suffer simple imprisonment for one year. All the sentences were ordered to run concurrently.

(2.) The author of the FIR is one Dadan Ji Tiwari. The deceased is one Kalka Tiwari, father of the complainant. The occurrence took place in the disputed field situated in village Bighi PS Bansdeeh Road District Ballia over which, it is stated, both the parties were horn-locked in litigation. According to the prosecution case, on the day of occurrence i.e. 6.5.2001 at about 11 a.m, the appellant Namonarayan Upadhyaya alongwith others came at the the disputed field atop a tractor and started uprooting onion crop sown on side of the field with the avowed intention of ploughing the field and when the acts of the appellants were resisted by the complainant and the persons present with him, the appellants initially used filthy language and thereafter mounted assault using Lathi and Ballam on the complainant. In the meantime, appellant Namo Narayan came forward and exhorted Santosh to run the tractor over the complainant and others and upon being exhorted, the aforesaid Santosh started the tractor which was painted red and ran the same over the deceased, father of the complainant who died instantaneously. The occurrence it is further alleged, was witnessed by many people of the village including Rajnath Tiwari, and Vijai Narayan Tiwari. After committing occurrence, it is further alleged, the accused persons ran off on tractor towards their village Kripalpur.

(3.) The report was lodged at police station on 6.5.2001 at 12.45 p.m. After the registration of the F.I.R. S.I. Mohd. Saeed, S.H.O. Police Station Bansdeeh Road commenced investigation. To begin with, he recorded the statement of first informant Daddan Ji Tiwari and his brother Madan Ji Tiwari and also visited the place of occurrence alongwith S.I. Jagdish Yadav, constable subhash, constable Ram Awadh Prajapati, Constable Dinesh Kumar. On his direction, inquest was prepared by S.I. Jagdish Ydava, which is Ext. Ka-2. The dead body was sealed and handed over to constable Lallan Sonkar and constable Awadhesh Behari Rai for autopsy. He also referred injured persons to District Hospital for medical treatment. He collected blood stained and plain earth from the place of occurrence and prepared its recovery memo which is Ext. Ka 14. In the presence of the first informant and his brother Madan Ji Tiwari site plan, (Ext. Ka-15) was prepared. He recovered the Mahindra Tractor which was parked inside the house of Surya Deo Tiwari of which front right wheel was missing and the recovery memo was prepared (Ext. Ka-3). He also prepared the site plan of the place where from Tractor was recovered (Ext. Ka-16). On 7.5.2001 Shiv Nand Yadav was arrested. One of the accused namely Anand who was deaf and dumb, was apprehended by the people and handed over to the police vide report no. 21 at 7.05 p.m. (Ext. Ka- 17). He arrested accused vide memo Ext. Ka-18 and sent him for medical examination. The statement of injured Dharmendra Tiwari was recorded in District Hospital Ballia. On 8.3.2001, statement of witnesses Ram Nath Tiwari and Vijay Narayan Tiwari was recorded. After receipt of X-ray examination report of Daddan Ji Tiwari and Dharmendra Tiwari on 10.5.2001, section 325 I.P.C. was added. The relevant papers for the post mortem examination, letter to R.I., sample seal, photo lash and letter to C.M.O. were prepared, which are Ext. Ka 19 to 22. After concluding the investigation, the police submitted the charge sheet which is Ext. Ka-23. After submission of charge sheet, the case was committed to the court of Sessions. The Sessions Judge had framed charges under section 147, 148, 323/147, 325/147, 324/149, 307/149, 504, 506 and 302/149 I.P.C.