BAIJ NATH Vs. STAT OF U P

JUDGEMENT

(1.) Both the above mentioned criminal appeals are directed against the judgment and order dt. 22-2-79 passed by the Sessions Judge, Rae Bareli, convicting Kailash appellant u/S.452, IPC and S. 302, IPC and sentencing him to one year's R.I. and imprisonment for life, respectively. Baij Nath appellant was convicted under Ss. 452 and 323, IPC and sentenced to one year's R.I. and six months R.I., respectively. The sentences of both the appellants were directed to run concurrently. Baij Nath filed Criminal Appeal No.191 of 1979 and Kailash appellant filed Criminal Appeal No. 206 of 1979. Both these appeals were consolidated and are being decided by this judgment.

(2.) The prosecution case in brief is that Satya Narain deceased was brother of Baij Nath appellant and Kailash appellant is son of Baij Nath. It is said that there had been consolidation operations in the village in which lands of both the parties were recorded jointly in the names of Baij Nath appellant and Satya Narain deceased. According to the prosecution case there had been a partition of the residential house as well as agricultural fields except 7 or 8 Biswa field in which sugarcane crop was standing. According to the prosecution case this sugarcane crop jointly belonged to both the brothers, namely, Baij Nath appellant as well as Satya Narain deceased. It is further alleged that on the date of occurrence Baij Nath had cut some sugarcane from this 7 Biswa land and prepared Gur out of the said sugarcane. In the night at about 8 or 9 p.m. Satya Narain deceased asked Baij Nath to give half share in the Gur as the sugarcane belonged to him also. Baij Nath appellant refused to give the share in the Gur on the pretext that sugarcane crop was not joint and in fact belonged to him. On this deceased Satya Narain said that he would cut sugarcane and prepare Gur the next day. On this Baij Nath abused Satya Narain on which Satya Narain raised an objection. Thereafter he sat in the Chhapper of his house near the kitchen. It is said that Smt. Ram Rati P.W. 6 wife of deceased Satya Narain was cooking food, Ram Kumar son of Satya Narain and Hori Lal brother-in-law of Ram Kumar were also sitting in the said house. Salik Ram P.W. 2 was also in the house talking to Hori Lal. According to the prosecution case at about 10-30 p.m. Baij Nath appellant armed with a lathi and Kailash armed with a Musal entered into the house and caught hold of Satya Narain and brought him to the Courtyard and thereafter both the appellants gave lathi and Musal blows to Satya Narain. Satya Narain after receiving the blows fell down. The witnesses snatched Musal as well as lathi from the hands of the accused-appellants and pushed them in their own house. It may be pointed out here that admittedly both the brothers were living in separate portion of one house adjoining to each other and there is one door inside the house which connects both the houses from inside. According to the prosecution case Satya Narain died after some time. Ram Kumar P.W.1 prepared a report Ext. Ka.1 at about 4 a.m. and thereafter left for P.S. Bhadhokar reaching there at about 7- 15 a.m. The distance of the Police Station from the place of occurrence is about 4 Miles. 'The report was lodged at about 7-15 a.m. Head Constable Ishwar Deo Singh P.W. 5 after receipt of the written report prepared a Chik report Ext. Ka 2 and made an entry in the General Diary. P.W.7 Rajendra Bahadur Singh Chauhan,Station Officer of P. S. Bhadokar was at the police station at the time of of the report therefore he took up investigation of the case. He immediately left for the place of occurrence .reaching there at about 9 a.m. he prepared the inquest report Ext.Ka 9 as well as other papers and handed over the dead body to Constable Jai Ram Yadav as well as Budhai Chaukidar for post mortem examination. The Investigating Officer after sending the dead body for post mortem. examination recorded the statements of complainant Ram Kumar as well as other witnesses and prepared recovery memos of lathi as well as Musal. Thereafter the Investigating Officer prepared site plan Ext. Ka10 and took Samples of blood stained as well as plain earth from the place of incident. A lantern, was alleged to be burning at the time of the incident. it was inspected by the Investigating Officer. On 29-1-78 the accused persons were arrested from a grove at 5-30 p.m. They were interrogated and sent to jail. On the next day the Investigating Officer further recorded the Statements of other witnesses and after completing investigation submitted charge sheet against the accused persons.

(3.) The autopsy on the dead body of Satya Narain was conducted by Dr. J.P. Sharma P.W.3 on 30-1-78 at about 2 p.m. The autopsy report is Ext. Ka 7. The doctor found the following ante mortem injuries on the dead body of the deceased Satya Narain :-