VINOD KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) Appellant Vinod Kumar has filed this appeal against his conviction under Section 302 I.P.C. and sentence of life imprisonment recorded by Sri N.S. Gupta, IV Additional District and Sessions Judge, Bulandshahr by his judgment and order dated 1.4. 1976. Jai Prakash and Divendra Prakash, father and uncle of appellant Vinod Kumar were also prosecuted alongwith Vinod Kumar on the charge under Section 302 read with Section 34 I.P.C. but they were acquitted by the Trial Court. In this case the accused were charged for the murder of Arvind Kumar sb Shyam Lal which took place at about 8 P.M. on 12.9. 1976 at the Tiraha of Bara Bazar at Sikandrabad, in the District of Bulandshahar.

(2.) The accused Vinod Kumar, Jai Prakash and Divendra Prakash and the deceased Arvind Kumar are collaterals having common ancestor, their pedigree is given below, Faqir Chand Karak Singh Shyam Lal Jai- Divendra Prakash Arvind- Sushil Prakash (accused) (accused) Kumar Kumar (deceased) (PW 2) Vinod Kumar Pradeep Kumar (Appellant)

(3.) It may further be noted that Jai Prakash and Divendra Prakash accused were Seven brothers viz., Ram Kumar, Krishna Kumar, Rajendra, Surendra and Ram Autar and the aforesaid co-accused Jai Prakash and Davindra Prakash. Like-wise Arvlnd Kumar were eight brothers, viz. Mahendra Kumar, Prem Kumar, Prakash, Bipin, Sunil and Sudhir including the deceased Arvind Kumar and Sushil Kumar the first informant of this case. The prosecution case is that Shyam Lal, the father of the deceased Arvind Kumar and accused Jai Prakash and his brother Ram Kumar were litigating in connection with their landed property. Several civil and Criminal cases were fought between them, and some of them were also pending between the parties at the time of occurrence. It is also alleged that in the afternoon of 11.9.1976. Arvind Kumar deceased had quarreled with Pradeep Kumar, the son of the accused Jai Prakash and also the younger brother of the appellant Vinod Kumar and the deceased Arvind Kumar had slapped Pradeep Kumar. On account of this beating, the appellant and his father Jai Prakash were very much aggrieved. It is also alleged that on the date of occurrence at about 7-30 P.M. on 12-9- 76, Arvind Kumar was returning to his house from Devi Mandir and when he reached the Tiraha of Bara Bazar near water-hut (Piau) at about 8 P.M., the accused Jai Prakash and Divendra Prakash also reached there and they caught hold of the hands of the deceased Arvind Kumar and shouted that he should be given a lesson for slapping Pradeep Kumar. Thereupon, Vinod Kumar appellant who was then took out a knife from his Anti and stabbed on the chest of the deceased Arvind Kumar. The deceased Arvind Kumar fell down on the ground at the Tiraha on receiving the injury and succumbed to his injuries on the spot P.W. 2 Sushil Kumar, the brother of the deceased Arvind Kumar was at that time at the shop of Kallu betel Seller where he had come to take betels and Sushil Kumar had witnessed the entire occurrence from the shop of Kallu in the light of the electric rods, torches and bulbs near the water hut (Piau) where the deceased was stabbed. P.W. 2 Sushil Kumar cried out and rushed to save the deceased on seeing the assault and alongwith him. Han Paliwal, Babu and other persons also rushed to the spot and on seeing the witnesses, the accused had fled towards the Halwai Wali Gali and after running for about 10 to 15 paces, the appellant Vinod Kumar sustained a Thokar and he fell down on the ground and the knife with which the appellant had stabbed the deceased, also slipped from his hand and dropped on the ground and the said knife was picked up by the accused Jai Prakash and the accused Jai Prakash and Davindra Prakash managed to escape but appellant Vinod Kumar was apprehended by Sushil Kumar and others on the spot. Sushil Kumar, sent the injured Arvind Kumar to the Hospital through his brother Rakesh Kumar and other persons on a Rickshaw, Sushil Kumar then scribed F.I.R. Ex. Ka. 1 at the place of occurrence and reached police station Sikandrabad at about 8.30 P. M. alongwith appellant Arvind Kumar and others and he handed over the appellant in the custody of Head constable Sukh Pal Singh P. W. 3. He also gave his written report to the Head constable who prepared the Chik Report Ex. Ka. 2 on the basis of the aforesaid Written report. He also registered a case under section 307 I.P.C. in the General Diary of the Police Station Copy of the said General Diary entry is Ex. Ka.3. He made entries in various registers maintained at the Police station. The Head constable also put the accused/appellant behind the Lock-up of the Police Station and noted this fact in the General Dairy Ex. Ka.3. It was mentioned in the General Dairy report Ex. Ka.3 that when the said entry was being written the Station Officer of Police Station, Sikandrabad received a memo from the Superintendent Mens Hospital Sikandarabad for taking necessary action, intimating him that the dead body of Arvind Kumar had been brought to the Hospital by his elder brother Rajesh Kumar. The said memo was written by the Doctor at 8.25 P.M. The Head Constable also copied out the aforesaid memo in the end of the General Dairy entry Ex. Ka. 3 and, thereafter, the Head constable converted the case under Section 301 to one 302 I.P.C. in the G.D. vide the entry Ex. Ka.3. P.W. 7 B.N. Chaturvedi was present at the Police Station and he took up the Investigation of the case. He recorded the statement of P.W. 2 Sushil Kumar at the Police Station and reached the Hospital at about 10 P.M. alongwith S.I. Harish Chandra P.W. 4 and on the direction of the aforesaid Investigating Officer, Harish Chandra P.W. 4 prepared the inquest report Ex. Ka. 4 on the dead body of the deceased and sent the same in sealed cover to the District Mortuary Bulandshahar on 13.9.1976 through constables P.W. 5 Banwari Lal and Kishan Chand for post mortem examination. P.W. 7 R.N. Chaturvedi, Investigating Officer inspected the place of occurrence and prepared the site plan Ex. Ka. 10. He also collected the blood stained and plain earth from the place of occurrence and prepared memo Ex. Ka. 11.