BAUD Vs. STATE OF U P

JUDGEMENT

(1.) Sri Tej Shanker, the then VI Additional Sessions Judge of Farrukhabad at Fatehgarh, while disposing of Sessions Trial No. 532 of 1976 convicted appellant Baiju on a charge under Section 302 read with 34 I. P. C. and under Sec. 325 of the Indian Penal Code and sentenced him to imprisonment for life on the first ' count and imprisonment for three years on the second count and made the two impri sonments concurrent. The other two appellants Ram Bux and Jangi who were also convicted under Section 302 read with 34 I. P. C. , were sentenced to imprisonment for life. Baiju alias Baijnath, Ram Bux and Jangi are three real brothers, all sons of Bahadur and are kahars by caste. The first informant Hari Charan son of Samley is also kahar by caste and the parties belong to the same village of Nagla Bagh Rathore, which lies within the area of police station Mohammadabad of district Farrukhabad. The occurrence took place on 7. 1. 74 at 7. 30 a. m. and the thana is at a distance of five miles from the scene of occurrence. The first informa tion report was lodged by Hari Charan at 10. 45 a. m. the same day. Hari Charan is also one of the victims and he was examined for his injuries by Dr. S. D. Mishra, in the district hospital at Fatehgarh on 7. 1. 74 at 10. 30 p. m. His real brother Ram Saran and his cousin b'rother Ram Lariatey died as a result of this occurrence. Ram Laraitey was subjected to post-mortem examination on 8. 1. 74 at 1. 30 p. m. Dr. V. B. Bansal (P. W. 3) conducted the post-mortem examination and his report is Ext. Ka 21. Similarly the post-mortem examination on the dead body of Ram Saran was made on 8. 1. 74 at 3. 30 p. m. the same day by Dr. S. D. Mishra in the District Hospital at Fatehgarh vide Ext. ka 23. The undisputed case of the parties is that Baiju, Ram Bux and Jangi had a fourth brother namely Parasram, who was murdered about 1 1/4 years before this occurrence. In connection with that murder case, Ram Saran and Ram Laraitey and their other cousin brothers Vaid Ram and Jagannath were prosecuted. About four months before this occurrence, the case was decided and ended in the acquittal of all the four persons. This was the immediate cause of Ranjish between Ram Saran and Ram Laraite on the one hand and Baiju, Ram Bux and Jangi on the other. Prosecution has come with the allegation that it was on account o,f this Ranjish that the three appellants committed the murders of Ram Saran and Ram Larai-A tey and caused grievous hurt to Hari Charan on 7. 1. 74 at 7. 30 a. m. in the agricultural area of the village on a very minor matter. It so happened that Hari Charan as well as Ram Sarah and Ram Laraitey were irriga ting their fields at 7. 00 a. m. in the agricultural area of Nagla Bagh Rathore. Ram Laraitey and Ram Saran were lifting water with the help of a basket from the Tube-well because the agricultural field was at some higher levela and Har Charan was using a spade to make a way for the water into the field. Suddenly Baijnath alias Baiju armed with a lathi came on the spot and said "our field in lying partially irrigated and therefore we will take the water. The three brothers who are victims of this outrage did not agree. Upon this Baiju flung abuses at them. At that moment Ram Bux and Jangi also armed with lathis arrived and joined Baijnath alias Baiju in abusing the informant and his brothers. Baijnath did not stop short but further took away the basket with which the water was being lifted and threw it away. Hari Charan went to pick it up again. Upon this Baiju gave him a lathi blow on his right arm with such force that the bone was fractured. Meanwhile Ram Bux and Jangi started giving lathi blows to Ram Saran and Ram Laraitey. These two persons also picked up their lathis which were lying nearby and used them just to defend themselves. Hari Charan, whose hand had been broken, ran away from the spot. Meanwhile Baijnath also joined his other two brothers in giving lathi blows to Ram Saran and Ram Laraitey, who fell down mortally injured. Ram Charan (P. W. 4) Basantlal, Jasram (P. W. 6) and Jai Prakash came on the spot and saw the occurrence. Hari Charan went to the village from where he collected some people and returned to the scene of occurrence, with the women folk of his. family and villagers after about ten minutes. By that time, the accused appellants had already run away from the spot, and Ram Saran and Ram Laraitey were lying dead on two different places near the scene of occurrence. Siya Ram came on the spot and Hari Charan got the first information report Ext. Ka. 1 scribed by Siya Ram and took it to the thana and lodged it there. He was sent for medical examina tion which was conducted late in the night at about 10. 30 p. m. in Fatehgarh. The first information report was obtained in the than a by Head Moharrir Satya Narain (P. W. 9), who prepared the chik report and made general diary entries and issued the injury letter Ext. Ka -14. Mr. Vishwanath Sharma (P. W. 7) was the Station officer at Mohammadabad and he was present when the first information report was lodged. He proceeded to the scene of occurrence along with S. I. J. N. Tyagi (P. W. 2 ). The inquest memos and other papers were pre pared by J. N. Tyagi. Mr. Vishwanath Sharma interrogated the witnesses and prepared other documents. Before he could submit the charge sheet, he was transferred on 9. 4. 1974. It was Mr. R. D. Tyagi, who sub mitted the charge sheet after taking over as the Station Officer, of the thana. Dr. V. B. Bansal (P. W. 8) conducted the post mortem on the dead body of Ram Laraitey Dr. S. D. Mishra has not been examined because the post-mortem examination report Ext. K-23 regarding the. dead body of Ram Saran and the, injury report dated 7. 1. 74 (Ext. ka-4) of Hari Charan were admitted by the defence and the genuineness there fore was not disputed. The prosecution examined eight witnesses in all. Eye witnesses are Har Charan (P. W. 1) Ram Charan (P. W. 4) and Jasram (P. W. 6 ). All others are formal witnesses; and about them a mention has been made by us. Three witnesses were examined as Court witnesses. Siyaram the scribe of the first information report is C*w. 1. He simply came to prove that he had scribed the first information report at 7 or 7. 30 a. m. the same day. He has admitted that his father-in-law and Hari Charan's father-in-law are real brothers. Court witness (C. W. 2) was Munnalal operator of the Tube well No. 41. He did not prove any thing except that he makes entries in his register regarding irrigation of plots one day after irrigation takes place, on the basis of the report of village Pradhan i. e. Kaushal Kishore Singh (C. W. 3 ). According to his statement, his register does not show any irrigation having been made on 7. 1. 74 by either the deceased or the appellants. On 6. 1. 1974, however, the last entry in his register is of irrigation by Hari Charan. Kaushal Kishore Singh also could not help either of the parties because whatever he has said, is on the basis of his memory and he does hot prove anything. The defence, as will be clear from the state ment of appellants, recorded, under Section 313 Cr. P. C. is an admission of certain facts. It is admitted that a criminal sessions trial proceeded against Ram Saran, Ram Laraitey, Ved Ram and Jagannath in respect of the murder of Parasram brother of the present appellants and about four months prior to this occurrence it resulted in the acquittal of all. It is not disputed that this occurrence took place near about 7. 30 a. m. on 7. 1. 74 in the agricultural area adjoining the field of Hari Charan and his brothers while these persons had diverted the flow of water to their fields. It is admitted that Baiju went to lay protest and Ram Bux also reached there. It is contended that Jangi was not there and he has been falsely implicated. The defence suggestion is that when Baij-nath laid a protest, Ram Saran, Ram Laraitey and Har Charan attacked him, the first two with lathis and the third with a bhala. Baiju used his lathi in self defence. Ram Bux also tried to save the situation and the bhala which Hari Charan was wielding fell down and was picked up by Ram Bux, which he used during the occurrence. In this manner, the defence has put forth a plea of self de fence. The medical examination of Har Charan, vide Ext. ka-4 shows that he had a lacerated wound in an area of 3/4" x 2/10" x mucous membrane deep on the middle of the inner aspect of the lower lip. The upper left incisor was loose. He had also a contusion 1 1/2" x 1" on the back of the right fore arm placed horizontally with clinical fracture of the right radius upper part. Ram Laraitey had as many as eleven ante-mortem visible injuries on his person. Six of them were lacerated wounds on or around the left ear which had been badly lacerated. One was an abrasion on the middle finger of the right hand. There was a lacer ated wound on the back of the right fore arm and another lacerated wound 1" below it. Two abrasions had been caused one on the back of right forearm and the other on the back of the left hand. On internal examination, multiple fracture of the skull bones and the base of the skull on the left side and rupture of the membranes was noted. The brain was also lacerated and the base of the skull had been fractured. The death was due to shock and haemorrhage as a result of the ante mortem injuries. Ram Saran had six ante mortem injuries on his person. He had a lacerated wound brain matter deep on the right side of the scalp 1" behind and 1 1/2" above the right ear and out of this wound brain matter and bone pieces were coming out. There was another lacerated wound brain matter deep, 1" below injury No. 1 from which also brain matter and pieces of bones were protruding out. There was multiple contusion in an area of 6" x 5" on the right side of the neck and skull, under which bones had been fractured. He had a punctured wound on the right temple placed horizontally up to the depth of the brain matter with sharp cut margins and direction backwards and down-wards. He had also an abrasion on the right shoulder and a contusion on the right side of the chest. Internal examination revealed that the right side of the skull had fractured into multiple pieces. The membranes' were lacerated and in the opinion of the doctor, his death was due to shock and haemorrhage as a result of injuries received. There can be no dispute as regards the fact that between the appellants on the one side and Ram Saran and Ram Laraitey and Har Charan on the other, there was serious enmity. Ram Saran and Ram Laraitey along with others were accused of having committed the murder of Parasram - brother of the appellants and they had to face a trial. It ended in their acquittal about four months prior to the present occurrence. Hence so much is established that there was a potent motive for Baiju, Ram Bux and Jangi to have tried to wreck vengeance upon Ram Saran and Ram Laraitey, whom they alleged to have committed their brother's murder. It is absolutely immaterial for the purposes of this case as to whose turn it was to take water for irrigation on that fateful day, and in our opinion there was no need to examine Munnalal and Kaushal Kishore Singh (C. Ws. 2 and 3) at all nor Smt. Ganga Devi D. W. 1. ' The prorecution witnesses admit that Ganga Devi is the wife of Brij Lal who is insane and her cultivation was being looked after by Baiju. Whatever may be the situation it is admitted that on 7. 1. 74 at 7. 30 a. m. water was going in the field of Ram Saran and Har Charan and these two brothers as well as Ram Laraitey were present in their agricultural field lifting water from the pit by a basket in order to let it go to their field which is at a higher level. The M testimony of D. W. 1 Ganga Devi/shows that there is a distance of about two agricultural fields between her field and the field of the first informant. Kaushal Kishore Singh (C. W. 3) says that the distance between the two fields namely of Smt. Ganga Devi and Har Charan is of 1 1/2 furlongs. In the site plan the Tube-well No. 41 has been shown. Undoubtedly from this Tube-well the agricul tural field of Har Charan and Ram Saran is towards the East, while the agricultural field of Ganga Dei, which was being cultivated by Baiju is towards the West and the minimum ' distance between the two is of a few furlongs. This being so, it assumes importance when it is admitted that the accused appellant Baiju came to the field of Ram Saran and Har Charan to protest against their irrigating their field, while the field in which he was working had remained partially unirrigated. The occurrence did not take place at the field of Ganga Dei. It took place at and near the field of Ram Saran and Har Charan. The prosecution story put forth by Har Charan (P. W. 1) and supported by Ram Charan (P. W. A) and Jasram (P. W. 6) clearly makes out that the aggression was started by Baiju alias Baijnath and simultaneously his two brothers who were also armed with lathis, started giving blows to Ram Saran and Ram Laraitey. Baiju gave a determined blow on the arm of Har Charan and fractured it. This incapacitated Har Charan completely, who out of fear ran away from the spot, and then Baiju joined his brothers Ram But and Jangi in assaulting Ram Saran and Ram Laraitey and making them fall mortally wound-W. Har Charan is of course an interested witness being the brother of Ram Saran and a cousin of Ram Laraitey and also in-imically disposed against Baiju, Ram Bux and Jangi who had implicated his two brothers and some cousin brothers in the murder case of Paras Ram from which they were ultimately acquitted, but that will not make his evidence unreliable. The only thing which the Court will have to look into, will be whe ther his testimony stands the test of reli ability, even if it is looked into with greater care -and caution. It is not disputed that Har Charan did receive an injury on the spot. HE was medically examined and his injury report proves that he did receive grievous hurt, as a result of lathi blow given to him. The medical report supports the prosecution version of this case. The occurrence started when Baiju protested against the irrigating of the fields from the tube well water by Ram Saran and Ram Laraitey and Har Charan and when they did not pay any attention,, he started fling ing abuses at them. His two brothers Ram Bux and Jangi then also came and they also joined their brother Baiju in abusing Har Charan etc. Baiju threw away the basket which was being used for lifting water and when Har Charan tried to pick it up he was assaulted by Baiju and his right arm was fractured. Mean while Ram Bux and Jangi had already fallen upon Ram Saran and Ram Laraitey who were earlier lifting water from the pit in which the Tube-well water had been collected. After causing grievous hurt to Har Charan and making him to run away for his>. life, Baiju joined his other two brothers in assaulting Ram Saran and Ram Laraitey and this assault continued till they fell down dead. It is of significance to note that during all this period although admittedly Ram Saran and Ram Laraitey used lathis to defend themselves not a single injury is alleged to have been caused. either to, Baiju or to Ram Bux or to Jangi. This is a very strange plea of self defence when we know that those who claim the right of self defence had not received a single injury on their person. They did not even try to go to the thana to lodge a report regard ing their own version. All the injuries were caused to Ram Saran, Ram Laraitey and Har Charari. It was clearly one sided fight. Of course Ram Saran and Ram Laraitey naturally would not be having any lathi at the time when they were irrigating their field, but allegedly they picked up the lathis which were lying nearby, but they could not wield the same to cause injuries to the' assailants because it is not said that any of the appellants received any injury. What they did was to try to save themselves with their lathis, but a determined attack by three armed persons could not help them much and they ultimately died. The presence of Jangi is established. It is impossible to believe that while Baiju was causing grievous hurt to Har Charan, Ram Bux alone would have been sufficient to cause injuries to Ram Saran and Ram Laraitey without receiving injury in return. It appears that Ram Bux was accompanied by Jangi and before Ram Saran and Ram Laraitey could pick up the lathis they had already been assaulted by them and subsequently when they some how managed to pick up the lathis, they could not do much in saving themselves or in causing injuries to Ram Bux and Jangi, because within a few minutes Baiju had also joined his brothers and the assault con tinued till Ram Saran and Ram Laraitey fell down dead. The learned Sessions Judge has very rightly accepted the testimony of Har Charan and we also consider that he is a completely reliable witness. Ram Charan (P. W. 4) is an independent witness. The occurrence took place in the month of January at about 7. 30 a. m. In winter months, that is a proper time for the village people to go out to ease. Ram Charan says that' he had gone to the jungle to answer the call of nature and thereafter he had come to the Tube-well to wash his face. He was accompanying Basant and when he was on the Tube well he saw this occurre nce. He gives the entire description of the occurrence in detail. He is candid, enough to admit that Brij Lal's agricultural land was on batai with the appellants. He did not deny or conceal this fact. In our opinion this witness was completely reliable and has supported the prosecution version. Jasram (P. W. 6) has made some confusing statement. He says that only Ram Saran was armed with a lathi and he used it in self-defence while the other two victims were unarmed. He also says that the occur rence took place at 8 or 9 a. m. Way be, this witness has forgotten the detail after a lapse of sufficient time between the date of occurrence and the date of his statement,. We may ignore his statement completely. Even then from the testimony of Har Charan and Ram Charan and the circumstances of the case as well as the post mortem reports and the injury report of Har Charan, the prosecution story was satisfactorily made out without doubt. It appears to us that the story put forth by Baiju, that his fields were lying partially unirrigated, and that he would take the water, was just a smoke screen to conceal the real motive in this case. It appears to us that Baiju, Ram Bux and Jangi were out to take revenge for the murder of Paras Ram from Ram Saran and Ram Laraitey who had secured their acquittal in the sessions case and for that purpose he invented the story of partial irrigation of his field and these three persons came on the agricultural field of Ram Saran and Har Charan and started the marpit, with the determination to kill Ram Saran and Ram Laraitey. Injury No. 4 on the person of Ram Saran was found by the doctor to be a punctured wound on the right temple. It was brain matter deep and the margins were sharp cut. A belated effort has been made both by the prosecution and the defence to furnish an explanation about this injury. According to the prdsecution version, the lathis of the appellants were all fixed with iron rings and in one of the lathis, a nail was protruding, white caused this injury. According to the defence, Har Charan was armed with a bhala which he used, but it fell down when Baiju struck him the' lathi -blow and then the bhala was picked up by Ram Bux and was wielded by him and hence injury No. 4 on the person of Ram Saran. We have very carefully con sidered the evidence in this respect. Two lathis were recovered from the spot by the Investigating Officer after the occurrence and both of them are iron-shod Therefore, there appears to be a circumstance in the prosecution version that the lathis that were used, had iron rings fixed with nails. It appears very natural and probable that in one of the lathis used by the appellants the nail was protruding sufficiently to cause this injury. The contrary version is highly unrelia ble and unbelievable. If Har Charan had been armed with a ballam, the result would not have been, what it actually has been. He could have been sufficient to punish Baiju, Ram Bux and Jangi and his brother could not have been murdered. We are not in agreement with the learned Sessions Judge in this respect and we hold that injury No. 4 of Ram Saran was caused by a sharp pointed nail protruding put of one of the lathis used by the appellants and the story regarding use of ballam on the spot is not correct. The whole story regarding right of self defence is bogus and is not made out at -. all. We are of the view that Baiju, Ram Bux and Jangi did commit the cold blooded murder of Ram Saran and Ram Laraitey in broad day light in the presence of witnesses and they are all clearly guilty of an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. There is absolutely no mitigating circum stance in this case to alter the conviction to any other provision of law. We are also convinced that Baiju deliberately caused grievous hurt to Har Charan by giving him a lathi blow and he Will be guilty of a offence punishable under Section 325 l. P. C. Thus, we find that the appellants have been rightly convicted and sentenced. In the result, the appeal has no force and is hereby dismissed. The conviction of accused Baiju under Sec. 302/34 and under Section 325 of the Indian Penal Code and of accused appellants Ram Bux and Jangi under Section 302 read with Section 34 I. P. C. is affirmed and upheld. Appellant Baiju shall undergo imprisonment for life under Section 302 read with Section 34 I. P. C. and rigorous imprisonment for three years under Section 325 I. P. C. and the two sentences shall be concurrent. Appellants Ram- Bux and Jangi will also similarly undergo imprisonment for life under Section 302 read with Section 34 I. P. C. All the appellants are on bail. Their bail bonds and sureties shall be cancelled and they shall surrender and will be taken into custody to serve out their sentences. .