RADHEY Vs. STATE

JUDGEMENT

(1.) APPELLANT Radhey and two others, Parsa and Ham Prasad, were tried together for offences under Section 302 read with Section 34 and Section 328 read with Section 34 of the Indian Penal Code. Parsa and Ram Prasad were acquitted but appellant Radhey was convicted of offences under Section 304. Part 2, read with Section 84 and Section 323 read with Section 84 of the Indian Penal Code and sentenced to undergo six years' rigorous imprisonment on the first count and three month's rigorous imprisonment on the second count, both the sentences to run concurrently.

(2.) THE case against the three accused was that they attacked Nazir on the Chabutra of his house at about sunset time on the 4th July, 1966, when he was sitting there in the company of Rafiq, Budhu, Babu (P. W. 8), Aziz (P. W. 2), Chhotey and Jumma (P. W. 1 ). Radhey's mother Kalawati was of loose character and was hence ex-communicated from the caste, whereupon Radhey drove her out of his house about eight days before the occurrence. Kalawati used to visit the house of Nazir arid Jumma (P. W. 1) and Badhey suspected that Nazir was concealing Kalawati in his house. This provided the motive for the attack on Nazir. On the evening in question when Nazir was sitting with his aforesaid companions, Radhey, Parsa and Bam Prasad are said to have come to his house and Radhey is said to have questioned Nazir about the concealment of Kalawati and when Nazir denied the charge, he was attecked by the trio with lathis. Jumma (P. W. 1) also received some blows and when Nazir's daughter, Km. Nanhi (P. W. 3), came out on hearing the noise and tried to intervene, she too sustained injuries. Jumma and Rafiq picked up latbia and plied them in defence of Nazir, while the other companions of Nazir also intervened. Nazir fell down on the chabutra as a result of the blows inflicted on him. Jumma and Rafiq were anle (sic) to apprehend Radhey on the spot while Parsa and Bam Prasad fled away. Police-constable Shafatullah Khan (P. W. 12) and Rukumpal, another constable, were on gasht duty and they heard the noise when they were about 150 paces away from the village. They rushed to the scene of occurrence but by then the marpit was over. Radhey was handed over to the constables and Nazir, who was lying unconscious, was taken to the Police Station at Thakurdwara, about two miles away. The Medical Officer of Thakurdwara Dispensary declined to give first aid to Nazir as his condition was serious and hence Nazir was sent to Kashipur Hospital with Police Constable Shafatullah Khan (P. W. 12 ). Nazir died on the way and Dr. Pandey (P. W. 4) of Kashipur Hospital declared him dead when Nazir was produced before him. The dead body of Nazir was taken to Kashipur Police Station where Sub-Inspector Premlal Singh (P. W. 6) prepared an inquest report and sent the dead body to Kashipur Hospital for post-mortem examination. The report of the occurrence was lodged by Jumma at Police Station Thakurdwara earlier and both Jumma and Km. Nanhi were sent to Moradabad District Hospital for medical treatment on the morning of 5th July, 1966. Investigation was made by Sub-Inspector Yogendra, Sharma (P. W. 17 ). In the course of the investigation he discovered bloodstains upon the chaupal of Nazir as well as on a cot; he did not, however, find any blood-marks on the chabutra itself.

(3.) WHILE Parsa and Bam Prasad denied knowledge of participation in the occurrence, Radhey, in pleading innocence, contended that Nazir and one Imrat Pandit were carrying on illicit intimacy with Kalawati and considered Radhey as a hurdle in their immoral activities. Accordingly, on the evening in question Imrat, Nazir and Munna waylaid Badhey when he was returning from his field and belaboured him. Radhey used his lathi in self, defence and caused injuries to Nazir. Some village people too arrived and stopped the marpit. He went to the Police Station with his brother to lodge a report but the police declined to take down the report and locked him up. Three witnesses have been examined on behalf of the defence.