STATE Vs. JAGDEO AND ORS.

JUDGEMENT

(1.) This is an appeal by the State from a judgment of the learned Sessions Judge of Fatehpur acquitting the Respondents of the charges under Ss. 147, 143 and 302/149, I.P.C. In all 14 persons were put on trial before the learned Sessions Judge on the charges mentioned above and he acquitted all of them. The State has preferred the appeal only against five of them and submitted to the order of acquittal against the others; the evidence against the Respondents is said to be stronger than that against the other acquitted men and hence the distinction made by the State. Eleven of the accused are residents of village Aurei; the remaining three accused with whom we are not concerned in this appeal and whose names are Phuni, Su -raj Prasad and Babu Lal, belong to other villages, though Phuni claims that he also is a resident of village Aurei. The victims of the occurrence are Hanuman Din and Sheo Prasad, both of whom were residents of the same village Aurei. Their connections with other persons, who would be referred to in the judgment, will appear from the following pedigree which has been proved and is not in dispute:

(2.) All the Respondents are residents of village Orei. Loknath and Bhagirath are brothers. Their sister Rampati was abducted or eloped away on 24th November, 1950, and on the following day Loknath made a report under Sec. 498 I.P.C. against Jagannath, Ram Manohar and Bhum Prasad, mentioned in the pedigree and others. On 19th August, 1950 a riot was committed. In village Orai and two reports were made about it. One was by Jagdeo Respondent against Hanuman Din, Pattidar, Ram Manohar, Ravi Charan, Bhum Prasad, Puttu Lal and Shiv Prasad mentioned in the pedigree and Triveni Dayal, Debi Dayal, Bans Go -pal etc., in all fifteen persons. The other report was made by Ram Manohar against all the five Respondents and sixteen others. The reports were investigated by the police. On 30th September, 1952, they prosecuted Hanuman Din and Shiv Prasad deceased, Bhum Prasad, Puttu Lal and Jagannath P.Ws. and twelve others under Ss. 147 and 323 I.P.C. The police also on the same day made two reports for proceedings under Sec. 107 Code of Criminal Procedure, one against the five Respondents and sixteen others and the other against Hanuman Din and Shiv Prasad deceased, Pattidar, Bhum Prasad, Puttu Lal and Jagannath P.Ws. and eleven others including Ram Manohar, Ravi Charan and Tribeni Dayal. The case under Ss. 147 and 323 against Hanuman Din etc. was pending in the court of a Judicial Magistrate in Fatehpur. Hanuman Din, Shiv Pd., Bhum Prasad, Suraj Prasad, Puttu Lai, Jagannath and Ravi Gharan appeared in the court and were released on bail. Some of the accused were not arrested and the case was adjourned to 29th December, 1950. So Hanuman Din, Shiv Prasad, Bhum Prasad, Puttu Lal and Jagannath, who had to attend the court, left their house in village Aurei on 29th December, 1950, at about 7.30 A.M. Sushila accompanied them because she required some treatment in Fatehpur for ulcers in her mouth. Ravi Charan also had to attend the court, but he was to reach there independently of Hanumandin etc. In the village Aurei itself they met Ram Autar who was going to his maternal uncle in village Asnagopal Pur via Fatehpur and he joined them. A little ahead they saw Bhagwat Bhat going towards railway station to receive his maternal uncle who was arriving by the train. In front of him were going Debi Dayal and 2 -3 other passangers who wanted to catch the train at Rasulabad. The train for Fatehpur was due to arrive at Rasulabad railway station at about 9 A.M. Rasulabad railway station, is two miles from Orei; the way is through fields. When Hanuman Din etc. reached the barley -gram field of Bunde, which is about six furlongs from village Aurei and one mile from the railway station Rasulabad, the accused suddenly came out from the juar field of Suraj Prasad on the east. All of them were armed with lathis except Jagdeo and Loknath Respondents who were armed with pistols. Jagdeo and Loknath threw the challenge that the lambardar (Hanuman Din was known as the lambardar, being zamindar of the village) would be killed that day and would not be allowed to escape. Hanuman Din at once told Bhum Prasad etc. to run away saying that he being old could not run. Bhum Prasad etc. ran in different directions while Hanuman Din and Shiv Prasad, who were 65 and 60 years old respectively and could not run, were surrounded by the accused and belaboured with lathis. The two Respondents fired two shots from the pistols but without wounding any one. Bhum Prasad, Puttu Lal and Bhagauti shouted for help after running for some distance. When they were threatened by the accused they ran away. Bhum Prasad ran towards Ghasipura in the west, Puttu Lal ran to Luniapurwa more than a mile to the south west, Jagannath and Bhagauti ran to the railway station while Ram Autar and Sushila ran towards the south and ultimately reached their homes. Hanuman Din and Shiv Prasad were knocked down on the ground and more blows with lathis were given to them subsequently. The accused then went away to Aurei. After their departure Bhum Prasad, who was seeing the occurrence from a distance returned to the spot to find Hanuman Din and Shiv Prasad lying wounded in the field of Bunde; Hanuman Din was unconscious while Shiv Prasad was conscious. None off his companions returned to the spot.

(3.) The station officer of S. Thariyao, within the limits of which the occurrence took place, was to go to Fatehpur on 29th December, 1950; he had to take the train at Rasulabad. Consequently, he accompanied by P.C. Raja Ram, went to the railway station reaching there at about 8 or 8.15 A.M. The train bound for Fatehpur reached Rasulabad railway station at 8.40 A.M. or 9 A.M. according to one witness and at 9.30 A.M., according to another witness. As soon as the train arrived at the railway station, the station officer heard from some people, whose names he and P.C. Raja Ram did not know, but who were subsequently discovered by P.C. Raja Ram to be residents of village Sathon, that a riot had taken place between villages Aurei and Tiksaria, that Hanuman Din had been assaulted and that shots were fired. Jagannath arriving at the station went to the Assistant Station Master on duty and handed over to him a telegram to be sent to the District Magistrate and the Superintendent of Police, Fatehpur. The telegram was to the effect that Hanuman was shot dead by Jagdeo, Loknath and Sukhnandan Respondents, that Shiv Prasad was belaboured by them and Shivbali Respondent, Ram Prasad, Babu Lal, Shiv Kumar and others and that a dacoity was being committed in the house of Triveni Dayal. The telegram was despatched at 10 -30. A.M. The station officer and the constable instead of going to Fatehpur as they originally intended to do, left at once for the spot. On the way, they learnt that the rioters had gone to village Aurei and entered the houses of Triveni Dayal and others. They reached the spot where Shiv Prasad and Hanuman Din were lying injured and Bhum Prasad was sitting in a grove at some distance. Hanuman Din was not in his senses and was growning with pain, while Shiv Prasad was conscious and was made by the station officer and the constable to sit up. The station officer had not learnt the names of the rioters either at the railway station or on his way to the spot. The station officer asked Shiv Prasad about the assailants, but he did not give him any reply. Bhum Prasad told him that he was an eyewitness of the assault but though questioned, did not tell him the names of the assailants. The station officer preceded by the constable went to village Aurei but they did not find any person in the village. The station officer examined the houses of Tribeni Dayal and Bans Gopal and found property lying scattered about and boxes broken open. He sent a cart from the village to the spot. The cart was taken by Majid and Gur Narain, who is brother -in -law of Ram Manohar. As Hanuman Din was being put on the cart he died. The station officer and the constable reached there. Shiv Prasad also was put on the cart and it was taken by Bhum Prasad to the village. The cart was sent from the village to the police station, while Bhum Prasad stopped in the village to tell people about the occurrence. He left for the police station half an hour later on foot. At the police station, there was no police officer present; as the deadbody of Hanuman Din had been sent to the police station and as inquest had to be performed, the station officer accompanied by the constable went from the spot to the police station on cycles. They reached the police station which is at a distance of four miles just when the cart was reaching there. They also met Ravi Charan there. At the police station at 12 noon, Shiv Prasad himself dictated the first information report against the five Respondents and 15 -20 unnamed persons. A case was registered and the station officer started investigation. He took down Shiv Prasad's statement under Sec. 161 Code of Criminal Procedure at 1 P.M.; in that statement, he corroborated the report lodged by him and added that he had been living with Hanuman Din since long, that he, Hanuman Din and others were going to Fatehpur to attend court, that he did not know what happened to Sushila, whom he was taking to her father for treatment and that the police should trace her out. Afterwards, he was sent to hospital for treatment, but he died at dusk before he could reach the hospital. Puttu Lal remained in Luniapurwa up to 4 or 4 -30 P.M. and then returned to Aurei which is less than a mile from there. Bhagwati Prasad returned home from the railway station at 11 A.M. Jagannath also returned home from the railway station in the afternoon.