NAGAR PRASAD Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Accused appellant Nagar Prasad was convicted under S. 352, IPC and was sentenced to undergo R.I. for a period of three months and accused appellant Bhagirath was convicted under S. 352, IPC read with S. 34, IPC as well as under S. 304(I) IPC and was sentenced to undergo R.I. for a period of two months under the first count and for a period of ten years R.I. under the second count, namely, under S. 304(I), IPC by Sri M. G. Godbole, the then District and Sessions Judge, Kanpur vide judgment and order dated 28-7-1983. Feeling aggrieved by the said order of conviction and sentence, the accused appellants have come up in appeal before this Court.

(2.) The prosecution story, briefly stated, is as follows :The complainant Baleswar Tiwari was working as Chief Train Examiner of N.E.R. Railways, Anwarganj Kanpur while accused appellants Nagar Prasad and Bhagirathi were working as Khalasi under Sri Baleshwar Tiwari. Doodh Nath, brother of the accused appellant Nagar Prasad was also working as Khalasi under Sri Baleshwar Tiwari P.W. 1. Doodh Nath was transferred to Sitapur a few days prior to the occurrence of this case. On 29-5-1992, at about 7-30 a.m. Doodh Nath brought a suspension order of his transfer order from the office of D.R.M. Lucknow. He came to the office of Sri Baleshwar Tiwari P.W. 1 for resuming the duties. Sri Baleshwar Tiwari P.W. 1 did not permit Doodh Nath to resume the duties immediately on the ground that the order, which was produced by Doodhnath before him did not bear the seal of the office of the D.R.M. He asked him to resume the duties after verification of the said order. When Doodhnath insisted that the order of suspension of his order was correct, Sri Baleshwar Tiwari asked him to come after two hours. When Doodh Nath went to Sri Baleshwar Tiwari after about two hours at about 9 a.m. along with his brother Nagar Prasad and accused appellant Bhagirathi, Nagar Prasad threatened Sri Baleshwar Tiwari with dire consequences and went away. Sri Baleshwar Tiwari allowed Doodh Nath to resume his duties after getting a writing from him that the order which was produced by him was a genuine one. It appears that on 26/27-5-1982, the accused appellants Nagar Prasad and Bhagirathi demanded leave from Sri Baleshwar Tiwari which was refused by him on the ground that on 28/05/1982, a superior officer was coming on inspection. The accused appellants Nagar Prasad and Bhagirathi were closely related to each other. They belonged to one and the same village. They had a feeling of hostility towards Sri Baleshwar Tiwari on the background that he was responsible for getting the brother of Nagar Prasad, namely, Doodh Nath, transferred.

(3.) The occurrence of this case took place on 30-5-1982 at about 7-20 p.m. At that time Sri Baleshwar Tiwari P.W. 1 along with Ram Awadh, deceased, who was working as Carriage Fitter under Sri Baleshwar Tiwari and Shiv Shankar P.W. 2, who was related to the deceased Ram Awadh as his brother in law, were going to market of Gomati No. 5 via plat-form No. 2 of Anwarganj, Kanpur. When they reached near the quarter of Arjun Prasad TRX, the accused appellant Nagar Prasad and Bhagirathi appeared there on platform No. 2. Nagar Prasad was armed with a Danda. He exhorted to assault Sri Baleshwar Tiwari, Chief Trains Examiner and wielded his Danda. The deceased Ram Awadh went ahead and asked the accused appellants as to why they were out to assault Sri Baleshwar Tiwari. The prosecution further claimed that the accused Bhagirathi then exhorted that they would first of all do away with Ram awadh and thereupon assaulted Ram Awadh by means of knife, and caused an incised punctured wound of left side chest of the deceased. Nagar Prasad again tried to wield his Danda which was snatched away by shiv Shankar, brother in law of the deceased Ram Awadh. The accused appellant Bhagirathi tried to assault Baleshwar Tiwari by means of knife. He cried and attracted a number of persons. Thereafter the accused appellants ran away towards south. Ram awadh after sustaining knife injuries at the hands of the accused appellants Bhagirathi fell down towards railway line from the platform. He was thereafter, taken to Railway Hospital but before reaching the railway hospital, he succumbed to his injuries, Sri Baleshwar Tiwari leaving the dead body of the deceased Ram Awadh with his brother in law Shiv Shankar P.W. 2 went to police station G.R.P. Anwarganj Kanpur and there he lodged written report Ex. Ka-4 about this occurrence. After registration of the case by H.C. Raghunath Prasad P.W. 5, S. I. M. C. Dubey P.W. 6 who was then working at P.S. Anwarganj took up the investigation of the case. He prepared inquest report in respect of the deceased and sent the dead body for post mortem examination. He thereafter recorded the statement of Baleshwar Tiwari P.W. 1, Shiv Shankar P.W. 2. He prepared site plan of the place of occurrence Ex. Ka-11, recovered simple and blood stained earth from the scene of occurrence and prepared recovery memoes about the same.