SHIVE CHAND BRAJRAJ Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This criminal appeal is directed against the judgment of conviction and order of sentence both dated 9-7-1987, passed by Sri R.C. Agarwal, IInd Additional Sessions Judge, Deoria, whereby the appellants Shiv Chand and Prabhu Dayal were convicted and sentenced as under and Brij Raj and Sahebzada were acquitted : Accused Conviction Sentence 1. Shiv Chand, son of Brij Raj, aged 52 years, resident of Aurawa, P. S. Hata, District Deoria. U/S. 302, I. P.C. Life Imprisonment 2. Prabhu Dayal, son of Sahabzada, r/o village Aurawa,P. S. Hata, Distt. Deoria. U/S. 302 read with Section 34, I.P.C. Life Imprisonment.

(2.) The facts of this case as revealed in the testimony of there eye-witnesses, namely, Dagroo, P.W. 1, Smt. Barfi, P.W. 3 and Billar, P.W. 4 are that that the accused Brij Raj and Sahebzada were cousins. Sheo Chand accused is the son of Brijraj accused, Whereas Prabhu Dayal accused is the son of Sahebzada accused. During rainy reason the Garhi situated in the path on the eastern side of the house of Prabhu Dayal is flooded. The said path is also flooded. Therefore the residents of the village use the narrow path which passes in front of the house of ' Brijraj accused. A wordy duel took place between the parties five or six months prior to the occurrence. During the course of that duel the accused had threatened that they will break of their hands and feet if they passed through the path in front of their house. For this reason members of the complainant's party had stopped using the party running in front of the house of the accused. On 16-10-1975 at about 11 A.M. Kamlesh, the grand-son of Sukhram deceased and son of the brother of Dagroo, P.W. 1 had passed through the passage in front of the house of the accused Brijraj. Shiv Chand accused gave him 2-3 slaps. Kamlesh went to his mother while crying. His mother while standing on the corner of the house of Billar lodged a protest with Shiv Chand. Thereupon all the four accused persons namely, Shiv Chand, Brijraj, Prabhu Dayal and Sahebzada abused her. On hearing the noise Dagroo, his father Sukhram (since deceased), Manger, son of Phagoo, Ram Lachan and Gabbu reached there and scolded the accused. Sukhram protested that it was they who had beaten up Kamlesh and now they were abusing them. Thereupon Prabhu Dayal Accused brought a Ballam from his house and handed it over to Shiv Chand. Then all the accused opened an attack on the complainant party while they were retreating. Shiv Chand dealt Ballam blow on the person of Sukhram. P.W. 1 Dagroo, one of the members of the com plainant party had wielded a Danda which he had lifted from the house of Billar. The Ballam blow had hit Sukhram on his chest as a result whereof he fell down and died at the spot. After the occurrence the accused had made good their escape. The dead body of Sukhram was removed to Police Station Hata. Dagroo, P.W. 1 lodged the F.I.R. Ext. Ka-1 in the Police Station.

(3.) P.W. 5 Head Moharrir Balmiki Singh recorded the F.I.R. at 3.10 P.M. in the Police Station. At 4.30 P.M. on 16-10-1975 the Station House Officer Arvind Misra received the information of lodging of the F.I.R. At that time he was in Hata Bazar. Hurriedly he reached the police station and found the dead body of Sukhram there. He prepared the inquest report Ext. Ka-5 and caused the dead body to be sent for post mortem examination under the guard of constable Muslim. P.W. 7 Gaya accompanied the dead body for identification.