STATE OF U P Vs. SATISH DUBEY

JUDGEMENT

(1.) This appeal against acquittal is directed against the judgment and order dated 30th November, 1978 of Shri Ramanand Rai, lind Additional District & Sessions Judge, Gorakhpur, in Sessions Trial No. A-215 of 1976. The case was registered under Sections 147/148/149/307 IPC against certain persons but only three persons, namely, Satish Dubey, Jhinkan and Suraj Sharma, had faced the trial. The learned lower Court acquitted all of them and the State filed this appeal against them. This Court, however, granted leave in regard to. Satish Dubey only and refused the same in regard to Jhinkan and Suraj Sharma vide order dated 23-7-1979. Satish Dubey alias Satish Chandra Dubey, the sale respondent now, was named in the F.I.R. Ext. Ka-3 alongwith Jhinkan and Suraj Sharma and two or three unknown persons but of whom only the above named three persons had faced the trial before the learned lower Court. The incident in which Abdul Karim, the father of complainant Mohd. Nazir, complainants mother Smt. Nabihan Nisa, his brother Mohd. Naim alias Naim, Awadhu Ram and Ramdhari had received injuries had taken place on 25-11-1973 at about 1.00 or 1.30 p.m. at the fruit shop o the complainant. The F.I.R. was handed over by the complainant Mohd. Nazir to the Police at the Police Station Cantt. Gorakhpur the same day at 3.35 p.m. it is said that Satish Dubey alias Satish Chandra Dubey also had received injuries and had became unconscious. The above named injured persons including Abdul Karim were rushed immediately to district hospital, Gorakhpur an Rickshaws. Abdul Karim, however, succumbed to his injuries before the F.I.R. of the incident was handed aver by the complainant. He died in the hospital soon after the incident had taken place. The prosecution story was as follows: The complainant, his father and other family members used to sell fruits at their shop which was situate near their house within Police Station, Cantt. Gorakhpur. Satish Dubey alias Satish Chandra Dubey, two days prior to this incident, had gone to the shop of Mahboob who used to sell eggs and had purchased eggs from him. He, however, refused to pay the price of the eggs due to which a dispute had taken place between Mahboob and Satish Dubey alias Satish Chandra Dubey, who by then was not known by name. He had disclosed his name as Satish Dubey alias Satish Chandra Dubey after his arrest at the spat on 25-11-1973. The complainants brother Naim also had gone to Mahboobs shop far purchasing eggs. He intervened and asked Satish Dubey alias Satish Chandra Dubey to pay the price of the eggs to. Mahboob, but he paid no need and during the altercations Naim pushed Satish Dubey alias Satish Chandra Dubey, who was accompanied by his companions. Satish Dubey and his companions then assaulted Naim and gave a few slaps to him. Naim raised alarm upon which complainant Mohd. Nazir and a few other persons rushed towards the shop of Mahboob and saved Naim. Satish Dubey and his companions, thereafter, wielded threats of serious consequences and left the shop of Mahboob. The incident, however, was taken lightly by the complainant and others and, therefore, no F.I.R. was lodged with the Police. The story further goes that on the date of this incident i.e. 25-11-1973 complainant Mohd. Nazir was sitting at his fruit shop when at about 1 or 1.30 P.M. Satish Dubey alias Satish Chandra Dubey alongwith his five or six companions reached there and tried to assault the complainant. The complainant in order to save himself threw a wooden case containing apples towards Satish Dubey. His father Abdul Karim, younger brother Mohd. Naim and mother Smt. Nabihan Nisa, who were present there, tried to save the complainant from the assailants. Satish Dubey exhorted his companions to open fire. One of his companions took out a country made pistol and fired towards them resulting in injuries to Mohd. Naim, mother of the complainant, Awadhu Ram and Ramdhari, Satish Dubey took out Chhura (big knife) and inflicted a blow from the same on the back of complainants father Abdul Karim. A number of persons including Sita Ram, Shanker, Mehboob, Shaukat and Jhinkan had in the meantime arrived at the shop of the complainant and had witnessed the incident. All of them apprehended accused Satish Dubey on the spot. Satish Dubey also, while he was being apprehended, had received a few injuries. Satish Dubey threw away the knife which was picked up by one of his companions and excepting him, the companions managed to make good their escape. The accused respondent, after he had been apprehended, disclosed his name as Satish Dubey alias Satish Chandra Dubey and also gave his address. He also named two of his companions as Jhinkan and Suraj Sharma but did not disclose the names of other companions. What had happened, thereafter, has already been mentioned above. The case was registered at the Police Station Cantt. and the investigation followed as usual. The case of the prosecution further was that a Police party including S.I. Gupteshwar Rai, PW. 7, reached the place of occurrence and, thereafter sent, accused Satish Dubey in unconscious state on a Rickshaw to the district hospital alongwith the constable. The injured persons also were taken to the district hospital where their injuries were examined by the Doctor. Abdul Karim had died soon after he had reached the hospital due to which his injuries could not be examined while he was alive and the postmortem examination on his dead body was conducted by the Doctor next day i.e. 26-11-1973 at 2.30 P.M. The Doctor had found the following ante mortem injuries on the dead body: I Incised wound(stabbed)-l"x 1/2 x 1/2 deep, on the sixth intercostal space of the back of left side chest, directed medially upwards, 4/1/2TI from the midline.

(2.) Abrasion 3 x 2 on the front of right knee.

(3.) Abrasion i" x 1/ 2"on medial aspect of the front of right leg, middle third.