NAND KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) D. S. Bajpai, J. In this criminal appeal against the judgment and order dated 30-11-1981 passed by the IV Additional Sessions Judge, Rai Bareli in Sessions Trial No. 291 of 1981 under Sections 302/323/324/325/149/147/148, I. F. C, holding appellants Prabha Shankar, Nand Kumar, Ramesh Kumar and Jagdish Narain guilty under Section 302 read with Section 34, I. P. C. , Section 324 read with Section 34, I. P. C. , Section 325 read with Section 34, I. P. C. and Section 323 read with Section 34, I. P. C. and sentencing them to life imprisonment under Section 302 read with Section 34, I. P. C. and further convicting them to undergo rigorous imprisonment for two years and a fine of Rs. 500 each and in default of payment of fine to further undergo rigorous imprisonment for six months each under Section 325 read with Section 34, I. P. C. They were further directed to undergo rigorous imprison ment for one year each for offence under Section 324 read with Section 34, I. P. C. and to undergo rigorous imprisonment for six months each under Section 323 read with Section 34, I. P. C. All the sentences were directed to run concurrently. The fifth co-accused, Ramesh war Prasad, who was similarly charged was held not guilty and acquitted of the charges.

(2.) THE prosecution story in nutshell was that one Din Dayal who was resident of village Bal Bhadrapur, Police Station, Dalmau, district Rae Bareli was murdered by five persons (four accused-appellants and fifth Rameshwar since acquitted) and in prosecution of the coaimoa object the accused-appellants and one Rameshwar Prasad, since acquitted, formed an unlawful assembly of common object of murdering Din Dayal on 5-6-1978 at about 6-30 a. m. accompanied by Babu Lal (P. W. 1) and Keshav Prasad (P. W. 4) the deceased Pin Dayal was going to Dalmau to have a holy dip in river Ganga and as soon as he reached the south east of the house of one Ram Naresh near the door of the house of Sukh Lal (P. W. 3) it is stated, the accused Rameshwar Frasad and Prabha Shankar armed with Kanta, accused Nand Lal, Ramesh Kumar and Jagdish Narain armed with lathis reached there and said that it was a good opportunity to kill them. Din Dayal, the deceased, is said to have been assaulted by them. When Babu Lal (P. W. I), the son of the deceased Din Dayal, and Keshav Prasad (P, W. 4), the cousin brother of the deceased Din Dayal, came to the rescue of Din Dayal they also were assaulted by the accused with lathis. On their raising alarm Sukh Lal (P. W. 3) along with his wife Rajwanti reached the spot and asked the accused not to do marpit at their door but they too were assaulted by the accused. THEreupon Ram Shankar (P. W. 2), Gulam Ali, Ishwar Din (both not examined) and some others are alleged to have reached there whereupon the accused ran away from the spot. Babu Lal (P. W. 1) and others are said to have used lathis in self-defence Babu Lal (P. W. 1), Keshav Prasad (P. W. 4) and Sukh Lal (P. W. 3) and his wife Rajwanti and deceased Din Dayal sustained injuries on their person. THE condition of Din Dayal was serious and as such he along with other injured persons was brought to Dalmau Dispensary and their injuries were examined by Dr. D. K. Shukla (P. W. 10) the same day between 8 30 a. m. and 10-15 a. m. on the person of deceased Din Dayal the following injuries were found : (1) Lacerated wound 6 cm x 1 cm X bone deep on the right side head 7 cm above the right ear. Oblique oozing of blood present. Injury kept under observation. Advised X-ray. (2) Lacerated wound 5 cmx1 cm X bone deep 1 cm above injury No. 1 oblique oozing of blood present. Injury kept under observation. Advised X-ray. (3) Lacerated wound 3-5 cm x 2 cm X through and through (Pinna of the right ear torn in the middle) in the middle of Pinna right side wound, going down wards and inwards, oozing of blood present. (4) Incised wound 2. 5 cm x. 5 cm x bona deep on the right side face just above the angle of jaw of right side, oozing of blood present. (5) Traumatic swelling right side front face starting from chin to out wards 6 cm x 6 cm suspected fracture of underneath. Injury kept under observation. Advised X-ray. THE injuries were reported to be fresh. Injuries No. 3 and 4 were found to be simple. Injury No. 4 was said to have been caused by some sharp edged weapon and others by blunt objects. Keshav Prasad (P. W. 4) only received a lacerated wound 3. 5 cm x 5 cm scalp deep on the right side of head, 8. 5 cm above the right eye-brow from which blood was said to be oozing at the time of examination, besides complaint of pain without any external injury. Rajwanti, wife of Sukh Lal (P. W. 3) who has not been examined as a witness in the case was noted to have received a lacerated wound 2 cm x 5 cm x muscle deep on the front of middle 1/3rd right fore arm 10 cm from wrist joint with traumatic swelling 6 cm and a contusion 3 cm X 1 cm on the upper side buttock oblique red in colour while on the person of Babu Lal (P. W. 1) the following injuries were noted : - (1) Lacerated wound. 3 cm X. 5 cm x scalp deep on the left side, head, 10 cm above the left ear, oblique, oozing of blood was present. (2) Lacerated wound 2. 5, cm x. 5 cm X scalp deep on the left side head, 6 cm from top of head and 7 cm before injury No. 1, oozing of blood present, oblique. (3) Contusion 3 cm X 1 cm on the back of middle 1/3rd left forearm, red in colour. (4) Abrasion 2 cm x 1 cm on the outer and upper 1/3rd left forearm. THE injuries were all simple in nature and were said to have been caused by some blunt object. THEy were fresh. On the person of Sukh Lal (P. W. 3) the under-noted four injuries were found : (1) Incised wound 3 cm x. 5 cm X scalp deep on the left side of head, 8 cm above the left ear, oozing of blood present. (2) Abrasion 2. 5 cm x 2 cm in the outer side right region. (3) Traumatic swelling 4 cm x 4 cm on the back of right wrist joint. (4) Traumatic swelling 6 cm X 6 cm on the back of left wrist joint. Injury kept under observation. Advised X-ray to exclude fracture. Besides complaint of pain in the back of abdomen without any external mark of injury No. 1 was said to have been caused by some sharp edged weapon and others were said to have been caused by some blunt object except injury No. 4 which was kept under observation 4and X-ray advised. On X-ray examination lower portion of radius and ulna bones was found fracture. After examination of injuries injury reports which have been duly exhibited and proved by Dr. D. K. Shukla (P. W, 10) and Dr. M. P. Pratap (P. W. 7) who performed the X-ray and proved the X-ray report the complainant Babu Lal (P. W. 1) prepared a written report (Ex. Ka-1) and proceeded to police station, Dalraau to lodge teleport where constable Moharrir Ram Barau Shukla (P. W. 9) prepared Give Report (Ex. Ka-10) at about 3. 25 p. m. A case was registered against the accused under Section 147/148/307/324/323, I. P. C. at 3. 25 p. m. and its investigation was entrusted to Sri Ram Lakhan Singh Station Officer (P. W. 8 ). THE condition of Din Dayal was since fast deteriorating he was rushed to Civil Hospital, Rae Bareli for better medical treatment where he succumbed to his injuries the sama day at about 10. 30 in the night. R. D. Pandey, S. I. Police Station Kotvvali. Rae Bareli (P. W. 12) prepared an inquest report and Panchayatnama (Ex, Ka-2) in the presence of Rajendra Prasad (P. W. 8 ). After necessary formalities the post-mortem of the deceased Din Dayal was performed by Dr. T. N. Melhrotra (P. W. 6) at 3. 25 p. m. on 6-6-1978 and he noted the following six ante mortem injuries on the body of the deceased : (1) Lacerated wound right side skull of the right parietal region, 3 cm X 5 cm x scalp deep, 6 cm above right ear. Margins were lacerated. (2) Lacerated wound right side scalp on the partial region 2 cm x. 5 cm x scalp deep 3 cm below from injury No. 1. (3) Lacerated wound right pinna 3 cm x 2 cm x through and through skin and cartridges were visible. (4) Lacerated wound 3 cm x. 5 cm x oral cavity deep over right side face, 4 cm below from injury No. 3. (5) Multiple abraded contusion on lateral aspect of right fore-arm close to elbow joint 6 cm X 4 cm. (6) Contusion right side of the face 6 cm x 5 cm, 3 cm below lower eyebrow. On internal examination the doctor found fracture of right partial bone. Membranes were lacer cud. Subdural haetoma on right side extending towards half of the left side wan present. Fracture of right mendable and naxille bones and fracture of second of the upper teeth and four of the lower teeth under injury No. 6 were found. Heart was empty and in small and large intestines fluid gases and facial matter were present. Gall bladder was empty. According to the opinion of Dr. Mehrotra the death was caused as a result of coma due to the injuries sustained by him. Exhibit Ka-3 is the post-mortem report duly proved. THE investigating officer started investigation from 6-6-1978. lie recorded statements of Gulam Ali, Ram Shankar (P. W. 2), Ishwar Din, Sukh Lal (P. W. 3) and Smt. Rajwanti under Section 161 of the Code of Criminal Procedure. He inspected the place of occurrence and prepared a site-plan (Ext. Ka-5) from where he took into custody some blood stained as well as unstained earth and prepared its memo (Ext, Ka-6 ). He also conducted search of the houses of the accused and prepared search memo (Ext. Ka-7 and 8) on 9-6-1978 and recorded the statements of Babu Lal (P. W. i) and Keshav Prasad (P. W. 4 ). THE accused persons were not found on search. On receiving the post-mortem report, statements of Rajendra Prasad, Banshi Lal and others were recorded and the case was converted into one under Section 302 and Section 149, I. P. C. was also added.

(3.) THE accused pleaded not guilty and denied having committed or participated in the alleged crime. THE accused Rameshwai Prasad pleaded alibi and said that on the day of occurrence he had gone to Rao Bareli Court to do of his case under the Arms Act and attended the court alongwith three witnesses. THE court hours were in the morning in that period. Accused Nand Kumar stated that on the date and time of the incident lie was on duty in the Central Bank of India at Lucknow. Accused Prabha Shankar, Ramesh Kumar and Jagdish Narain on the other hand pleaded having beaten with lathis in self-defence and set up a case that Prabha Shankar was returning from his thrashing floor and while he was on way to his home Keshav Prasad (P. W. 4), deceased Din Dayal. Babu Lal (P. W. I), Subh Lal (P. W. 3) and his son Bishambhar started assaulted him with lathis. On raising alarm his father Jagdish Narain and Ramesh Kumar were attracted to the spot and they too were assaulted by these persons which led them to make use of lathis in exercise of right of self-defence. In support of their case the defence examined Nau's Ahmad Khan (D. W. 1) who stated that on 6-19/8 on the basis of written report of Suresh Kumar a F. I. R. was entered and an entry in the G. D. (Ext. Kha-1) was made by Constable Moharrir Ram Baran Shukla, Dr. Vijai Kumar Goel (D. W. 2) was also examined to prove injuries on the person of Jagdish Narain, Prabha Shankar and Ramesh Kumar. THE injury reports are Ext. Kha-2 to Kha 4. Some documentary evidence in the form of order-sheet dated 5-6-1978 in the case State v. Rameshwar, etc. , copies of sworn affidavits of witnesses Bhital Din, Devi Din and Shiv Kumar of the same day have also been brought on record.