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2002 DIGILAW 1433 (ALL)

Bal Govind v. State Of U. P.

2002-10-04

B.K.ROY, R.C.DEEPAK

body2002
JUDGMENT : - R. C. Deepak, J. 1. THIS is a criminal appeal against the judgment and order dated 30th April, 1981 of the then IVth Additional Sessions Judge, Mirzapur in Sessions Trial No. 259 of 1979 convicting the accused-appellant Bal Govind and sentencing him to undergo two years R.I. under Section 148, I.P.C., imprisonment for life under Section 302/149, I.P.C., three years R.I. under Section 325/149, I.P.C. and one year R.I. under Section 323/149, I.P.C., while convicting and sentencing the accused-appellant Kewal, Arjun Prasad, Ram Autar, Sarju, Ram Narain, Ramdhani, Ram Adhin, Tulasi, Shiv Prasad, Bachau, Daya Ram and Bahadur to undergo two years R.I. under Section 147, I.P.C., imprisonment for life under Section 302/149, I.P.C., three years R.I. under Section 325/149, I.P.C. and one year R.I. under Section 323/149, I.P.C. and directing all the sentences to run concurrently. 2. THE prosecution story briefly stated is that there had been a partition suit pending in the Court of Robertsganj between Ram Prasad and others on the one side and Ram Autar and others on the other in respect of 33 bighas of agricultural land ; there took a simple marpit among them two days before the incident ; subsequently Ram Prasad and others along with the members of their respective families shifted to their pahi village Raghunathpur. It is alleged that on 11.7.1979 at 1 p.m. Bal Govind, Kewal, Ram Autar, Arjun, Sarju, Ram Narain, Ram Dhani, Ram Adhin, Tulasi, Shiv Prasad, Daya Ram, Bachau and Bahadur reached the door of the house of Ram Prasad. Bal Govind allegedly armed with a kulhari whereas others were holding lathis in their respective hands. They started beating Ram Prasad, consequently he raised alarm hearing which Bishun Dhari, Ram Kishun, Daddhi, Ram Bali, Hari Nath, Tulasi, his mother, wife and aunt reached for his rescue ; Bal Govind is alleged to have struck Bishundhari with kulhari ; Ram Autar incited, excited and exhorted to kill them all. They wielded lathis on them, ladies ran inside the house to save themselves but they all chased them, entered the house and assaulted them. Kayar son of Sakal Yadav and Raghunandan son of Budhai rushed up and challenged them with the result that they went back to the village Bahuar ; receiving injuries Bishundhari fell down unconscious on the spot and became speechless. One hand of the wife of Ram Prasad allegedly got fractured. Kayar son of Sakal Yadav and Raghunandan son of Budhai rushed up and challenged them with the result that they went back to the village Bahuar ; receiving injuries Bishundhari fell down unconscious on the spot and became speechless. One hand of the wife of Ram Prasad allegedly got fractured. All the injured persons went on foot to the police station Robertsganj, district Mirzapur. Bishundhari was taken there on a cot in unconscious stage. Ram Prasad lodged an oral report with the police station. Consequently, a case was registered there. All the injured persons were sent to the Primary Health Centre, Robertsganj, district Mirzapur. Dr. R. A. Mishra, the then Medical Officer, Robertsganj, examined. Bishundhari, Smt. Sugia, Ram Prasad, Daddhi, Ram Bali, Smt. Punwasi, Harnam, Smt. Sumitri, Ram Kishun and Tulasi and found on their persons such injuries which have been noted under their names in the injury reports vide Ext. Ka-2, Ka-3, Ka-4, Ka-5, Ka-6, Ka-7, Ka-8, Ka-9, Ka-10 and Ka-11, respectively. Bishundahri died in the hospital itself. His dead body was sent to the mortuary where Dr. B. J. Khanna conducted the post-mortem and found such ante-mortem injuries on his dead body as have been noted by him in the post-mortem examination report vide Ext. Ka-20. The then Sub-Inspector Banshu Ram (P.W. 6) of police station, Robertsganj started investigation with the case w.e.f. 11.7.1979 itself and took down the statements of Ram Prasad and others. On 12.7.1979, he inspected the place of occurrence and prepared the site plan vide Ext. Ka-12. He took into his possession the blood stained and simple earth from inside the house of Harnam. He continued investigating with the case till 15.11.1979 and thereafter it was investigated by Satya Narain Singh (P.W. 10) who after completing the investigation, submitted the charge-sheet Ext. Ka-30 against the accused. 3. THE trial court framed the charges against Bal Govind under Section 148, I.P.C. and against the remaining accused under Section 147, I.P.C. and against all under Sections 302/149, I.P.C., 325/149, I.P.C., 323/149, I.P.C. and 452/149, I.P.C. 4. THE prosecution examined Ram Prasad (P.W. 1), Ram Bali (P.W. 2), Dr. R. A. Mishra (P.W. 3), Raghunandan (P.W. 4), Kayar (P.W. 5), Banshu Ram S.I. (P.W. 6), Dr. B. J. Khanna (P.W. 7), Abdul Zabbar Khan S.I. (P.W. 8), Deo Das (P.W. 9), Satya Narain Singh (P.W. 10), Shyam Narain Pandey (P.W. 11), Dr. THE prosecution examined Ram Prasad (P.W. 1), Ram Bali (P.W. 2), Dr. R. A. Mishra (P.W. 3), Raghunandan (P.W. 4), Kayar (P.W. 5), Banshu Ram S.I. (P.W. 6), Dr. B. J. Khanna (P.W. 7), Abdul Zabbar Khan S.I. (P.W. 8), Deo Das (P.W. 9), Satya Narain Singh (P.W. 10), Shyam Narain Pandey (P.W. 11), Dr. G. C. Baranwal (P.W. 12), Parmatma Pandey (P.W. 13), Jai Shankar (P.W. 14) and Mohammad Siddique (P.W. 15) and produced certain documents to prove its case against the accused-appellants. Ram Prasad (P.W. 1), Ram Bali (P.W. 2), Raghunandan (P.W. 4) and Kayar (P.W. 5) are eye-witnesses, whereas others are formal ones. Kayar (P.W. 5) turned hostile. 5. ALL the accused have stated under Section 313, Cr. P.C., that all the allegations and charges levelled against them are false and baseless. They have, however, taken the plea of self defence. They have examined Dr. N. C. Verma (D.W. 1), Medical Officer, 1/C District Jail, Mirzapur and Bechan (D.W. 2) and filed certain documents in support of their case. 6. WE have heard Sri Amar Saran and Sri Surendra Nath Singh, learned counsel for the appellants and Sri Amarjeet Singh, learned A.G.A. for the State and have perused the evidence on record. It may be mentioned at this very stage that the learned counsel for the accused-appellants have brought to our notice that the accused-appellants Kewal and Ram Autar died during the pendency of their appeal. Therefore, the appeal stands abated against these two appellants. 7. THE evidence on record establishes the relationship between the parties as follows : "Lalai was father of Borai, Deo Nath, Jai Mangal, Harnam and Rikku are sons of Borai. THE informant Ram Prasad (P.W. 1), Bishundhari (deceased) and Baboli are sons of Deo Narain. Ram Bali (P.W. 2) is son of Bishundhari (deceased). Tulasi is the son of Ram Prasad and Chotak is the son of Deo Nath. THE marriage of the daughter of Chotak was settled with the son of Raghunandan (P.W. 4), a year before his statement in the trial court. THE accused Ram Autar and Sobh Nath (dead) are sons of Jai Mangal. THE accused Kewal and Arjun are sons of accused Ram Autar. One Ram Lakhan is son-in-law of the accused Ram Autar. Tulasi and Sheo Prasad are real brothers and sons of one Shahdeo. THE accused Ram Autar and Sobh Nath (dead) are sons of Jai Mangal. THE accused Kewal and Arjun are sons of accused Ram Autar. One Ram Lakhan is son-in-law of the accused Ram Autar. Tulasi and Sheo Prasad are real brothers and sons of one Shahdeo. THE accused Bal Govind is son of Sobh Nath, who is the real brother of the accused Ram Autar. Accused Bal Govind is son-in-law of the accused Sarju whose sons are the accused Ram Narain and Ram Dhani. THE accused Daya Ram is brother-in-law of the accused Bal Govind. THE accused Bachau is brother of Rajman whose son is accused Bahadur. Accused Bachau and Rajman are real maternal uncles of accused Bal Govind. Smt. Punwasi (injured) is the wife of Ram Prasad (P.W. 1),. whereas Smt. Sugia (injured) is wife of Harnam. Daddhi (injured) and Ram Kishun are the sons of Richakoo who is uncle of Ram Prasad (P.W. 1). Tulasi (injured) is his (Ram Prasad's) son. From the above facts, it is evidently clear that the members of the informant party and those of the accused party are all kiths and kins. This cannot be disputed." 8. A partition suit had been pending in a Court between the informant Ram Prasad (P.W. 1) and certain other on the one side and the accused Ram Autar and certain others on the other in respect of 33 bighas of agricultural land situate in village Bahuar for about 3-4 years since before the present incident. They have also their respective houses and agricultural land in other village Raghunathpur which is at a distance of nearly one mile from the village Bahuar towards the west. The above facts are not disputed. The first question which arises for the consideration is whether there had been any such marpit two days before the incident as alleged by the prosecution. The First Information Report (Ext. Ka-1) shows that there had been marpit of a simple nature between the informant Ram Prasad (P.W. 1) and others on one side and the accused Ram Autar and others on the other in connection with the cultivation, etc. of 33 bighas of agricultural land situate in village Bahuar in respect of which the abovementioned partition suit has been pending. Ka-1) shows that there had been marpit of a simple nature between the informant Ram Prasad (P.W. 1) and others on one side and the accused Ram Autar and others on the other in connection with the cultivation, etc. of 33 bighas of agricultural land situate in village Bahuar in respect of which the abovementioned partition suit has been pending. The first information report further shows that it was on account of that marpit that the informant Ram Prasad and others along with all the members of their respective families shifted to the other village Raghunathpur. It may be mentioned at the very outset that the first information report does not specifically name who were actually involved in the alleged marpit. What it indicates is that the informant Ram Prasad (P.W.1) and others on one side and the accused Ram Autar and others on the other, were involved in the alleged marpit. The first information report is, therefore, vague and ambiguous in respect of number and names of the persons of both the sides who were actually involved in the alleged marpit. It is for the first time in his examination-in-chief that Ram Prasad (P.W. 1) has disclosed that the alleged marpit had taken place between his younger brother Baboli and the accused Bal Govind but in his cross-examination, he has stated that the accused Ram Autar and Bal Govind had beaten Baboli. He has further stated that Ram Subhag, Vishwanath and he himself had not received any injury in the alleged marpit. He has also stated that the accused Ram Autar, Bal Govind, Kewal and Arjun have beaten Baboli and that the other accused had not at all beaten him. His statements on the point in question are inconsistent, conflicting and contradictory. This is what evidently clear from the careful scrutiny of his entire statements on the point. Therefore, his statement in this regard does not inspire confidence and is not legally acceptable to us. 9. RAM Bali (P.W. 2) has totally denied his presence in the marpit, alleged to have taken place two days before the incident. He has further denied having been beaten in any such marpit. Therefore, his statement in this regard does not inspire confidence and is not legally acceptable to us. 9. RAM Bali (P.W. 2) has totally denied his presence in the marpit, alleged to have taken place two days before the incident. He has further denied having been beaten in any such marpit. He has also denied having given any statement before the Investigating Officer to the effect that there had been any marpit of a simple nature between him and others on the one side and the accused RAM Autar and others on the other two days before the incident. His statement, therefore, stands nowhere on the point in question. The argument of the learned counsel for the accused-appellants to this effect has substance. 10. IN view of what has been observed above, it is held that the prosecution has not been able to prove that there had been any marpit of a simple nature between the informant Ram Prasad (P.W. 1) and others on the one side and the accused Ram Autar and others on the other two days before the incident. The incident in question is alleged to have occurred on 11.7.1979 at about 1 p.m. All the accused are residents of village Bahuar which is at a distance of about a mile from the village Raghunathpur towards the west. There is no dispute about all this, what is, however, in dispute is the place of occurrence. The first information report shows that the occurrence has taken place at the door of the house of the informant Ram Prasad (P.W. 1) and inside the house where the ladies had run away and where the accused entered and caused injuries to them. Ram Prasad (P.W. 1) has stated in his cross-examination that there is a kutcha well towards north-west from the door of his house at a distance of 7-8 steps and that he was assaulted between the door and the well. He has further stated that Bishundhari (deceased) was assaulted at a distance of 5-10 steps towards north from his house and that Smt. Punwasi, Smt. Sugia and Smt. Sumitra were beaten in the house of Harnam. Similar is the statement of Ram Bali (P.W. 2). The statement of Raghunandan (P.W. 4) shows that the entire incident took place at a distance of 10-12 steps from the house of Ram Prasad towards north. Similar is the statement of Ram Bali (P.W. 2). The statement of Raghunandan (P.W. 4) shows that the entire incident took place at a distance of 10-12 steps from the house of Ram Prasad towards north. He had not seen any sign/stains of blood there. There was a large crowd. It is quite likely that he might not have seen any stains of blood at the place of occurrence. The Investigating Officer, Banshu Ram (P.W. 6) had visited the alleged place of occurrence. He had not found any blood at the place of occurrence because the same was washed out due to rains. He had, however, allegedly taken the blood from inside the house of Harnam but he had not sent the blood alleged to have been taken from the said place for chemical examination. Not only this but he has also not shown the specific place in the site plan from where he had actually taken the clean and blood stained earth. Therefore, his statement has no substance in so far as it relates to the place of occurrence. Kayar (P.W. 5) has turned hostile. It may be mentioned that there was a large crowd. The members of both the sides must not have become static and stationary at the door of the house of Ram Prasad in the course of the incident. On the other hand, they must have been moving for one purpose or the other at the door of the house of Ram Prasad either towards its north or west. Therefore, it is held that the prosecution has proved that the incident had taken place at the door of the house of Ram Prasad. 11. THE next question which crops up for consideration is the weapon with which they were actually armed at the time of the incident. THE first information report shows that all the accused other than the accused Bal Govind who was armed with an axe (kulhari) were armed with lathis. Ram Prasad (P.W. 1) and Ram Bali (P.W. 2) have also stated the same fact but Raghunandan (P.W. 4) has stated even in the examination-in-chief that all the accused were holding lathis. He has specifically stated that the accused Bal Govind was holding lathi (Gozi) in his hand. He has stated in his examination that the accused Bal Govind and others were wielding lathis in the course of the incident. 12. He has specifically stated that the accused Bal Govind was holding lathi (Gozi) in his hand. He has stated in his examination that the accused Bal Govind and others were wielding lathis in the course of the incident. 12. THE prosecution did not get this witness declared hostile in the course of his examination-in-chief or at its end, for the reasons best known to it, not only this but the prosecution did not also seek permission in the trial court to re-examine him in order to ultimately remove the ambiguity, confusion or misunderstanding, alleged to have crept into his mind specially in regard to his statement to the effect that all the accused including the accused Bal Govind were holding lathis in their hands and that they wielded their lathis in the course of the incident. It may be mentioned in this connection that life is weaker than death and death is weaker than the truth. THE truth danced upon the lips of Raghunandan (P.W. 4) and impelled, inspired and propelled him to tell nothing but truth. This is the reason why the prosecution could not have mustered courage to get Raghunandan (P.W. 4) declared hostile or obtained permission in the trial court to re-examine him. THE argument of the learned counsel for the accused-appellants to this effect carries weight. THE arguments of the learned Government Advocate for the State to the contrary is not acceptable to us. It will not be out of place to consider the medical evidence in connection with the weapon used in the course of the incident. Dr. R. A. Mishra (P.W. 3) examined Bishundhari, Smt. Sugia, Ram Prasad, Daddhi, Ram Bali, Smt. Punwasi, Harnam, Smt. Sumitri, Ram Kishun and Tulasi and found such injuries on their bodies, as mentioned by him in their injury reports vide Exts. Ka-2, Ka-3, Ka-4, Ka-5, Ka-6, Ka-7, Ka-8, Ka-9, Ka-10 and Ka-11 respectively. Already referred to elsewhere Dr. R. A. Mishra (P.W. 3) has stated in his cross-examination-in-chief that the injury No. 1 on the body of Bishundhari could be caused with a kulhari. In cross-examination, he has categorically stated that a tail is a must in an incised wound and that he has not noted in the injury report (Ext. Ka-2), the direction of the tail. The injury report (Ext. Ka-2) is conspicuously silent on the point of tail. In cross-examination, he has categorically stated that a tail is a must in an incised wound and that he has not noted in the injury report (Ext. Ka-2), the direction of the tail. The injury report (Ext. Ka-2) is conspicuously silent on the point of tail. It is on this basis, the learned counsel for the accused-appellants have vehemently argued that Dr. R. A. Mishra (P.W. 3) has committed mistake in examining the injury No. 1 of Bishundhari who subsequently died and his denial to the suggestion made to him to this effect is baseless. His argument is not untenable. Dr. B. J. Khanna (P.W. 7) prepared the post-mortem on the dead body of Bishundhari. The post-mortem report is Ext. Ka-20. He has stated in his examination which is that the injury No. 1 can bee caused with a kulhari. In his cross-examination, he has stated that the temporal bone was broken due to the effect of the injuries Nos. 1 and 2. He cannot, however, say whether it was broken due to the effect of only one injury or not. He has further stated that the temporal bone can be cut as well as broken due to the effect of the injury No. 1. The bone underlying the injury No. 1 as according to him broken. He did not, however, count the pieces into what bone was broken. He had already received the injury report Ext. Ka-2 regarding Bishundhari from Robertsganj. 13. THE learned counsel for the accused-appellants has argued that Dr. B. J. Khanna (P.W.7) has copied the injury report. His argument appears to have substance as the result of the comparison of the injury report (Ext. Ka-2) and the post-mortem examination report (Ext. Ka-20) with each other, besides his inconsistent, oscillating and vacillating statements in his cross-examination. Therefore, the medical evidence cannot be implicitly relied upon in the present case. 14. IN view of what has been discussed and observed hitherto above, we arrive at the conclusion that the prosecution has not been able to prove beyond all reasonable doubts that the accused-appellant Bal Govind was armed with kulhari in the course of the incident and that the injury No. 1 was caused to Bishundhari with kulhari and also that the injury No. 1 having been caused to Bishundhari with lathis, cannot altogether be ruled out. The next question which arises for consideration is whether the accused-appellants were aggressors. There is a distance of one mile between the two villages Bahuar and Raghunathpur, none of the accused was residing in the village Raghunathpur, none of the women or the members of the accused-appellant was present in any manner, whatsoever, in the course of the incident. All the accused-appellants went back towards the village Bahuar immediately after the incident, having thus covered the distance of one mile from the village Bahuar, they reached the door of the house of Ram Prasad (P.W. 1) in the village Raghunathpur. They were holding lathis in their respective hands. They were certainly aggressors and are held accordingly. 15. THE accused-appellants formed an unlawful assembly. This cannot be doubted from the evidence on record. This is the reason why the learned counsel for the appellants has not expressed even a word in the course of his arguments indicating that they (accused-appellants) did not form an unlawful assembly. 16. THE question is what was the common object of the unlawful assembly. THE informant Ram Prasad (P.W. 1) had to admit in his cross-examination that he cannot say who was the accused-appellants assaulted whom with lathis. So is the statement of Raghunandan (P.W. 4). THE statement of Ram Bali (P.W. 2) is quite inconsistent and conflicting on the point of mode and manner of the incident. The accused-appellants composing an unlawful assembly, does not appear to have made any of the members of informant party a target to commit his murder their modus operandi in the course of the incident, ipso facto, establishes that their common object was not to commit murder of any of the injured including Bishundhari who subsequently died in the hospital but to cause grievous injuries to them at the most this is what they actually did. It was misfortune that Bishundhari died subsequently as a result of injuries caused to him. It was also the misfortune of the members of his family and all others who had concern and connection with him. It may be referred in this very connection that what death takes away, none can restore and that what eternity Wills, none can alter and also that what heaven has blessed, none can punish. It was also the misfortune of the members of his family and all others who had concern and connection with him. It may be referred in this very connection that what death takes away, none can restore and that what eternity Wills, none can alter and also that what heaven has blessed, none can punish. Bishundhari destined to die and he ultimately died as the result of injuries caused to him in the course of the incident, as mentioned above. 17. HAVING scrutinised the entire evidence on record and the pros and cons of the arguments advanced by the learned counsel for the parties, we arrive at the irresistible conclusion that the accused-appellants are not guilty of the offence punishable under Section 302/149, I.P.C. their convictions and sentences are set aside and they are acquitted of the charge thereunder. The accused-appellant Bal Govind is not found guilty of the offence punishable under Section 148, I.P.C. and his conviction and sentence are set aside and he is acquitted of the charge thereunder. 18. THE accused-appellant Bal Govind is guilty of the offence punishable under Section 147, I.P.C. He is convicted and sentenced to two years R.I. thereunder. THE conviction and sentence awarded by the trial court to all other accused-appellants under Section 147, I.P.C. are confirmed. The convictions and sentences awarded by the trial court to all the accused-appellants under Sections 325/149, I.P.C. and 323/149, I.P.C. are confirmed. The accused-appellants are on bail. Their bail bonds are cancelled and sureties stands discharged forthwith. They shall be taken into custody to serve out the sentences awarded to them. All the sentences shall run concurrently. 19. THE appeal is partly allowed to the extent indicated.