Ajai Kumar And Another vs State Of U.P.
2019 Latest Caselaw 1325 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 20.02.2019
 
Delivered on 15.03.2019
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 2450 of 1983
 

 
Appellant :- Ajai Kumar And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Amrendra Pal,R.C. Chaturvedi,S Islam Siddhqi,S.M.A.Kazmi,S.Safdar Ali Kazmi,Satendra Kumar-I,Sharique Ahmad,Sukendra Pal Singh,Tahira Kazmi,Tejpal,V.C. Chaturvedi
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present criminal appeal has been preferred by the two appellants Ajai Kumar and Vijay Kumar sons of Kalicharan against their conviction and sentence by the trial court in S.T. No. 373 of 1982 by which they have been convicted under Section 302 I.P.C. read with Section 34 I.P.C. to undergo imprisonment for life by the impugned judgment and order dated 14.10.1983.

2. The prosecution case in brief is that a first information report was lodged by Ramesh Chandra Vashistha against the 3 accused namely Kalicharan, Ajai Kumar and Vijay Kumar with an allegation that on 03.11.1981, the informant along with his brother Naresh Chandra and one Brij Mohan had gone to Mohalla Chhapeti to the house of Kalicharan Gupta at about 6.30 p.m. and in the presence of the informant, Naresh Chandra had demanded his money back from Kalicharan, due to which Kalicharan started quarreling and abusing and at that moment his two sons Ajai Kumar and Vijay Kumar along with 2-3 companions came there. The brother of the informant Naresh Chandra objected Kalicharan from abusing him and talked about money on which the two sons of Kalicharan and their companions made an assault with lathi-danda on Naresh Chandra. Brij Mohan tried to interfere and reconcile the matter who was also assaulted. Ajai Kumar and Vijay Kumar in order to kill Naresh Chandra started assaulting him who received serious injuries and at that moment Maharaj Singh S/o Paatiram, Haribabu Gupta, Keshav Gupta and other persons reached at the place of occurrence and on seeing them, Ajai Kumar and Vijay Kumar and his companions fled away leaving behind Naresh Chandra in a dying state. A written report was submitted by Ramesh Chandra Vashistha at the concerned police station for taking necessary action against the accused. He further stated in his report that as the condition of Naresh Chandra was serious hence he was admitted in the hospital. The said written report was got written by Ramesh Chandra Vashistha by one Iqbal Ahmad on 03.11.1981. On the basis of the report lodged by Ramesh Chandra Vashistha, a case was registered under Section 308 I.P.C. and subsequently on the death of the injured Naresh Chandra, the case was converted under Section 304 I.P.C. PW-11 Vijay Pal Singh, S.I. conducted the inquest on the dead body of the deceased and prepared inquest report Naksha Naas, Challan Naas and proved the same as Ex. Ka-10 to 12 and he also prepared a site plan which was Ex. Ka-13. Thereafter, the case was investigated by Sri R.P. Sharma, S.I. PW-9 who took up the investigation on 06.11.1981. The case was converted on 04.11.1981 under Section 304 I.P.C. on the basis of the report Ex. Ka-8, sent by Dr. V.K. Kakde about the death of Naresh Chandra. The Investigating Officer has submitted charge-sheet against the accused under Section 302 I.P.C. before the competent Court and the case was committed to the Court of Sessions by the Magistrate and the trial Court framed charges against the accused Ajai Kumar and Vijay Kumar under Section 302 I.P.C. whereby accused Kalicharan has been charged with Section 302 read with Section 34 I.P.C. who all denied charges and sought their trial.

3. The prosecution in support of its case has examined 12 prosecution witnesses to bring home the guilt of the accused i.e. PW-1 Dr. P.D. Naswani, PW-2 Dr. R.B. Sharma, PW-3 Brij Mohan Gupta, PW-4 Ram Kishore, PW-5 Maharaj Singh, PW-6 Ikbal Ahmad, PW-7 Radhey Shyam, PW-8 Dr. V.K. Khare, PW-9 R.P. Sharma, P.W.-10 Roop Singh, PW-11 Vijay Pal Singh and P.W.-12 Ramesh Chandra Vashistha.

4. PW-1 Dr. P.D. Naswani had deposed before the trial Court that he was posted as Medical Officer in Firozabad Hospital on 04.11.1981 and he had conducted the post-mortem examination of the dead body of the deceased Naresh Chandra Vashistha and has found following ante-mortem injuries on his persons-:

1. Lacerated wound 5cm x1cm x skull deep on the top of middle of head 13cm above from the right ear.

2. Lacerated wound 5cm x 1cm x skull deep along with traumatic swelling 6 cm in an area of parietal bone 7 cm above the RT ear.

3. Traumatic swelling on parietal bone area on the left forehead along with left eye.

As per the opinion of the doctor, the cause of death was due to shock and hemorrhage as a result of ante-mortem injuries. On internal examination of the body of the deceased, he found following injuries-:

1. Fracture of parietal and right parietal bones.

2. Brain congested, clotted blood present.

He has proved the post-mortem report as Ex. Ka-1.

5. PW-2 Dr. R.B. Sharma has deposed before the trial Court that he was posted on 03.11.1981 at Sarojini Naidu Hospital as Medical Officer and in the evening at about 7.25 p.m. Inspector Amar Singh of Control Room, Firozabad had admitted the injured aged about 25 years in the hospital and on his person he found the following injuries-:

1. Lacerated wound 5cm x 1cm x skull deep on the head near middle line 15cm above from bridge of nose kept under observation. Advised X-ray.

2. Lacerated wound 4cm x 1cm x skull deep along with contused swelling 6cm x 5cm on the (R) parietal bone 7cm above the right ear kept under observation, Ad. X-ray.

3. Contused swelling 10cm x 8cm on the (L) forehead along with block eye. Kept under observation. Advised X-ray. Resperated swallow.

6. He proved the injury report as Ex. Ka-2 and in his opinion the injuries could be caused by blunt object such as hockey and stick. He deposed in his cross-examination that he made a query from the Sub Inspector whether it is a case of medico legal or accidental then he stated that he did not know about it.

7. PW-3 Brij Mohan who is an injured witness has deposed before the trial Court on 03.11.1981 at about 3.00 p.m. when he was coming out after seeing a movie from Urvashi Theater and while passing through Mohalla Badi Chhapeti where he was residing he met Ram Chandra Vashistha and Naresh Chandra Vashistha near the house of Radharaman which is in the same mohalla, both of them were going to Kalicharan and they have also taken him along with them. All the three persons at about 6.30 in the evening reached at the house of Kalicharan. Naresh Chandra gave a call to Vijay who was on his roof who moved backward and the father of Vijay came down with a danda in his hand. Naresh Chandra demanded his money from Kalicharan who started abusing him on which Naresh Chandra asked him to stop abusing. Thereafter, Ajai and Vijay came down with a hockey stick from the roof. Kalicharan uttered that Naresh Chandra used to demand his money daily and wherever they meet they started demanding the money there only "Jahan mil jaaten hai, wahi takaja karne lagte hai", and he exhorted his two sons and Ajai and Vijay assaulted Naresh Chandra with hockey and Kalicharan assaulted him with a stick (बेंत का डंडा). When they were assaulting Naresh Chandra with hockey and stick, Maharaj Singh, Keshav Gupta, Kishan Lal and one more person arrived there. On account of assault made by accused, Naresh Chandra received injuries on his head and started screaming and could not breathe. Brother of Naresh Chandra had sent him to the house and all the three accused fled towards East along with their weapons. Ramesh Chandra Vashistha told him to inform about the incident at his house and he had informed about the incident at the house of Ramesh Chandra Vashistha and when he tried to interfere and reconcile the dispute, he was also assaulted by Ajai, Vijay and Kalicharan with hockey and stick. He went to the house of PW-12 Ramesh Chandra Vashistha where he met Ram Kishore Vashistha and told him about the entire incident. Both he and Ram Kishore Vashistha went to the hospital and they remained there till 9.30p.m. and thereafter he along with Ramesh Chandra Vashistha had gone to the police station where Ramesh Chandra Vashistha had lodged the report. The police had arrested him and got him medically examined in the hospital after preparing the 'chitthi majroobi'.

8. The Investigating Officer has taken his statement under Section 161 Cr.P.C. only once and he denied the suggestion that the Investigating Officer who had recorded his statement earlier and in the second statement he had stated that the earlier statement which he had given was because of fear and the second statement is the correct one. He denied the suggestion that the Investigating Officer had taken his statement under Section 161 Cr.P.C. twice. The Investigating Officer has taken his statement after 1 month and 12 days of the incident.

9. He further deposed that against him a case under Section 324 I.P.C. was registered. He denied the suggestion that he along with Naresh Chandra had gone to the house of Ajai Gupta and assaulted him and his mother with knife. He deposed that Naresh Chandra was assaulted 4-5 blows of danda and hockey. He denied the suggestion that he along with Ramesh Chandra Vashistha and Naresh Chandra had gone to the house of Kalicharan and have assaulted his two sons and wife with knife and further when he was trying to flee from the place of occurrence, Naresh Chandra slipped and he had a fall from staircase on account of which he received injuries on his head and died.

10. PW-4 Ram Kishore Vashistha who has deposed that on the date of incident at about 7.15p.m., Brij Mohan Gupta had come to him and had informed that there has been a quarrel between Ajai and Vijay with Ramesh Chandra Vashistha and Naresh Chandra and condition of Naresh Chandra was serious. Brij Mohan had also received injuries. On receiving the said information, he along with Brij Mohan went to the hospital and the condition of Naresh Chandra was very serious and he was not able to breathe as he was facing difficulty and after 4 and ½ hours, Naresh Chandra died in the hospital. Ramesh Chandra Vashistha and Brij Mohan had gone to the police station for lodging a report.

11. He has further deposed that the Investigating Officer has recorded a statement under Section 161 Cr.P.C. after a month at his house and he has denied the suggestion that he was deposing against accused only on account of the fact that his brother has been murdered.

12. PW-5 Maharaj Singh who was examined by the trial Court has stated that on the date of the incident at about 6.30 p.m. in the evening, he was returning from Mandi after taking some instruments such as rinch and bolt through Badi Chhapeti to his house. When he reached near the house of Kalicharan, there he saw Naresh Chandra, Ramesh Chandra Vashistha, Brij Mohan and Kalicharan who was having the stick was seen standing and at that time, besides the said witness Haribabu, and Keshav also arrived there. Naresh Chandra had demanded his money back from Kalicharan on which Kalicharan started abusing Naresh Chandra. At that moment, Ajai and Vijay both of them came with hockey stick and Kalicharan uttered that 'Roj roj ka ye ratta hai, aaj ise khatam kar do.''On this, Ajai and Vijay and Kalicharan started assaulting and Kalicharan assaulted deceased Naresh Chandra also with a stick. When Naresh Chandra has sustained many injuries then Brij Mohan had intervened in between who also sustained injuries. When Naresh Chandra had fallen then he was assaulted by Ajai, Vijay and Kalicharan with hockey and stick and thereafter the accused have fled away towards East and the witness went to his house. The condition of Naresh Chandra was very serious as he was not able to breathe.

13. In his cross-examination, the said witness has stated that he used to do work of flour mill and his flour mill is in mohalla Chauki Gate. Mohalla Mandi is one furlong from his shop and he had closed his flour mill and then gone to Loha Mandi and he had purchased rinch, etc. from the shop of some Gupta. His house is at a distance of one kilometer away from the place of occurrence and the flour mill is at a distance of 1.25 kilometers. He came to know about the house of Kalicharan on the said date only. Kalicharan and his two sons never visited his house and he has also not studied with Kalicharan or his sons. He had not gone to the hospital to see Naresh Chandra. At the place of occurrence, 20-25 people have arrived, when he had left the place of occurrence, there was no constable when he had left the site. The Investigating Officer has taken his statement under Section 161 Cr.P.C. After one month he had come to his flour mill and he has recorded his statement between 10 to 11 AM in the morning. Naresh Chandra and Brij Mohan had received injuries. He had not seen the accused Ajai and Vijay receiving any injury and no one has assaulted them in his presence. He had also not seen any knife in the hands of any person. Ramesh Chandra Vashistha, Naresh Chandra and Brij Mohan and others did not have any lathi-danda or knife as he had not seen them with it. Kalicharan was armed with stick (बेंत का डंडा). He denied the suggestion that he used to work with a relative of Naresh Chandra, namely, Ram Kishore where he used to load items on truck. He further denied the suggestion that he is not having flour mill in his name nor any power has been supplied to him nor he has any license of it. On a query made by the Court, he has stated that electricity bill is in his name for the last 10 years. The shop is in the name of Ram Singh and the flour mill is in his name and has license of the same.

14. PW-6 Iqbal Ahmad has stated before the trial Court that on the date of incident at about 10 p.m. in the night he was going to his house passing through the police station and outside the police station Ramesh Chandra Vashistha and Brij Mohan met him and they were a little bit disturbed. Ramesh Chandra Vashistha had informed about the entire incident to him and he had written a report which was dictated to him by Ramesh Chandra Vashistha and he has proved the written report as Ex. Ka-3.

15. In his cross-examination, he has stated that wherever there was over-writing in the report (Ex. Ka-3), he has made his initials. He further stated that Ramesh Chandra Vashistha was not unconscious nor there was any fracture on his hand. Brij Mohan was also conscious. The witness does the work of bangles. He had taken the paper for writing the report from a beetle shop outside the police station and wrote the same on the said shop while sitting on a bench and after writing the report, he had gone away and had not gone to police station. He had no conversation with any police personnel nor his statement was recorded by anyone. He denied the suggestion that in the night at about 1.00 a.m., the Station House Officer of the police station had got the report written by him.

16. PW-7 Constable 1368 Radhey Shyam has stated that on 03.11.1981, he along with constable Vijay Singh who was on a picket duty for mohalla Chhapeti had come to the police station for taking ammunition at about 6.30 p.m.. When he got ready to proceed, then Sugarh Singh, Constable Moharrir had detained him and stated that as some quarrel had taken place in mohalla Chhapeti in the lane of Mata Prasad Kanwaria, he was instructed to go there to maintain law and order on which he along with constable Vijay Singh went to mohalla Chhapeti from the police station on foot to inquire about the matter. There they found a boy who was lying in an unconscious state in the lane and they brought a rickshaw on which the injured was taken and he was about to move along with the injured then the Sub Inspector Amar Singh along with staff arrived and taken the injured on the patrol car along with them to S.N. Hospital, Firozabad, where the injured was admitted in an unconscious state and on the next day, he along with constable Ajai Kumar had got the post-mortem done of the said injured who had died.

17. In his cross-examination he has deposed that the Sub Inspector had recorded his statement under Section 161 Cr.P.C. On 29.11.1981, when he was posted at police station South, Firozabad. He stated that when he reached the place where the injured was lying, there were large number of persons and in the crowd no one had told about the name of the injured and he had taken the injured to the hospital and thereafter returned to the police station and at the place of occurrence, no one had informed him about the manner in which the incident had taken place.

18. PW-8 Dr. V.K. Khare has stated before the trial Court that on 03.11.1981 when he was posted as Medical Officer in Firozabad Hospital at about 11.00 in the night, a constable of South police station namely Satya Prakash and Girdhari Singh had brought injured Brij Mohan S/o Kishan Lal for the medical examination and he found following injuries on his persons-:

1. Traumatic swelling with abrasion 4cm x 3 cm on the nose.

2. Traumatic swelling with abrasion on upper lip near the right angle of the mouth size 1cm x 5cm.

3. Abrasion 1cm x 0.5cm on the lower lip 1cm below the right angle of mouth.

4. Contusion 6cm x 2 cm on the outer aspect of left shoulder.

19. In his opinion, the injuries sustained by the said injured were simple in nature and were caused by hard blunt object and injury No. 3 could be caused by friction and all the injuries could be caused on 3.11.1981 at 6.30 p.m. and has further stated that the said injuries could be caused by hockey stick. He has proved his hand-writing and signatures as Ex. Ka-4.

20. In his cross-examination, he has deposed that on the same day, at about 10.00 p.m., accused Ajai Kumar was also medically examined by him and he found the following injuries on his person-:

1. Incised wound 1.5cm x 0.5cm x muscle deep at the anteriodioal aspect of the left upper arm 10cm above the elbow joint.

21. In his opinion, the said injuries to Ajai Kumar could have been caused by sharp edged object like knife and injury was found to be simple in nature. The duration of the injuries was fresh and could have been caused on the date of incident at about 7.00-7.30 p.m. He further stated that he also examined accused Vijay Kumar on the same day at about 10.15 p.m. in the night and found following injuries-:

1. Abrasion 2.5cm x 2.5cm on the outer aspect of the right shoulder.

2. contused abrasion 4cm x 0.5cm on the left clavicle bone medial end.

3. Contused swelling 2cm x 2cm on the back of left elbow.

22. In his opinion, the said injuries caused to Vijay Kumar were found to be simple in nature and could have been caused by hard blunt object on 03.11.1981 at about 7.00-7.30 p.m. and he has proved the same as Ex. Kha-1 and 2 respectively and both the injured persons were brought by constable Girvar Singh, and Ramphal. He has further proved Ex. Ka-8 information about the death of deceased Naresh Chandra which was in his hand-writing which was sent by him in the name of Station Officer, Firozabad Police Station South. He stated that Naresh Chandra Chandra Vashistha was brought in the hospital on 03.11.1981 at about 7.45 p.m. and was admitted in emergency ward as unknown and he died on 04.11.1981 at 12.05 AM. He further stated that the accused Ajai and Vijay who had received injuries on 03.11.1981 at about 7.30 p.m., their injuries could be caused by fall also.

23. In his cross-examination, he has further stated that while Naresh Chandra was alive, his identity had been fixed before 12.00 AM. He denied the suggestion that from 12.05 - 12.40 AM it took time as the name and parentage of the deceased could not be ascertained.

24. PW-9 R.P. Sharma who was the Station Officer of police station North, Firozabad has stated that on 06.11.1981, he was entrusted with the investigation of the present case by the orders of the Circle Officer. The F.I.R. of the present case was registered by Constable Sugarh Singh and proved the same as Ex. Ka-3 as he was familiar with the writing and signatures of Sugarh Singh. He has further proved the chik F.I.R. as Ex. Ka-5. He has recorded the statement of all the witnesses and submitted charge-sheet against the accused and proved the same as Ex. Ka-6 to the competent Court.

25. Constable Sugarh Singh has endorsed the registration of the F.I.R. in the G.D., rapat No. 65 and which was registered under Section 147/308 I.P.C. and the original G.D. was present in the Court which was in the writing of Sugarh Singh and proved the same as Ex. Ka-7. A copy of Ex. Ka-7 is available on record. He stated that a report was sent by Dr. V.K. Khare at the police station which was regarding the death of the injured Naresh Chandra of Case Crime No. 425-A for offences under Sections 147, 308 I.P.C. which was received by him and endorsed in rapat No. 2 dated 04.11.1981. The original report was in front of him and is available in the G.D. He is familiar with the signatures of Dr. V.K. Khare and proved the same as Ex. Ka-9.

26. The case was converted after the death of the injured under Section 304 I.P.C. which was endorsed in the G.D. and proved the same as Ex. Ka-8 on 04.11.1981. He further stated that on 03.11.1981, the medical report of accused Ajai Kumar and Vijay Kumar was submitted by constable Ramphal and Girvar Singh which was endorsed in the G.D. rapat NO. 67 dated 03.11.1981 at about 11.00 p.m. and against them an F.I.R. was registered under Sections 147, 308 I.P.C. and they were arrested by him and after the investigation he has submitted charge-sheet against the accused under Section 302 I.P.C. On the same day, accused Ajai Kumar had also lodged an F.I.R. against Naresh Chandra, Brij Mohan and 2 other persons under Section 324, 323 I.P.C. The original chik as well as a copy of the same is on the record which is Ex. Kha-3 and endorsement of the same has also been made in G.D. rapat No. 59 by Sugarh Singh and proved the same as Ex. Kha-4. The witness has denied the suggestion that Ramesh Chandra Vashistha was not produced in the Court as he had got one more report lodged. He further denied the suggestion that Ramesh Chandra Vashistha had submitted a report at the police station which was changed on the next day which is Ex. Ka-5.

27. PW-10 Roop Singh who was produced before the trial Court has stated that on 03.11.1981 he was posted as Wireless Operator in the control room, police station South, Firozabad and he was on patrol car (PCR No.-2) on duty from 4 p.m. in the evening till 12 AM in the midnight. He stated that Sant Singh, Wireless Operator has told him from the police control room that in mohalla Badi Chhapeti near Mata Prasad Kanwaria lane, a quarrel had taken place. Amar Singh Bhadauria, Sub Inspector along with him on the said information went there and leaving the vehicle at Urvashi Cinema and the Sub Inspector went in the lane with some police personnel and brought an injured from there. The injured was brought on the rickshaw who was seriously injured and along with the injured there were two constables of the police outpost, namely, Radhey Shyam and Vijay Singh and the injured was taken to S.N. Hospital, Firozabad where he was admitted.

28. PW-11 S.I. Vijay Pal Singh has stated that on 03.11.1981 he was entrusted with the investigation of the case and he had conducted the inquest proceedings on the dead body of the deceased Naresh Chandra and prepared Naksha Naas, Challan Naas in his hand-writing and signatures which is marked as Ex. Ka-10 to 12 and he has proved the same. He was given the dead-body which was inside the mortuary and during the investigation he was present in the hospital and conducted the panchayatnama of the deceased at 10.00 AM and the witnesses of Panchayat Ambika Prasad, Sri Krishna Sharma and others have signed the inquest report. He had made the spot inspection and prepared the site plan which is Ex. Ka-13. At the place of occurrence, there was water and mud, hence, blood was not found there. He further stated that after some investigation, S.I. Ram Prakash had done rest of the investigation whose writing he is familiar with. He denied the suggestion that Ramesh Chandra Vashistha had given Material Ex. A at the police station initially and after due elaboration the same was changed and Ex. Ka-3 was got written by Ramesh Chandra Vashistha and he has not seen Ramesh Chandra Vashistha in the Court today. He further denied the suggestion that he had stopped Ramesh Chandra Vashistha from giving statement under Section 161 Cr.P.C.

29. PW-12 Ramesh Chandra Vashistha, informant of the case, has stated before the trial Court that he along with Naresh Chandra and Brij Mohan had gone to the house of accused Ajai and Vijay and Naresh Chandra had called accused Vijay by raising a voice who peeped from the roof and thereafter had gone back. Thereafter, Kalicharan had come out of the house who was having stick and when Naresh Chandra demanded money from him, then he started abusing him on which Naresh Chandra asked him not to abuse and Kalicharan uttered that the issue may be finished as daily the demand is being made by him on which accused Ajai and Vijay and 2-3 other persons came out of the house. Ajai and Vijay were armed with hockey whereas 2-3 persons were armed with stick and when Naresh Chandra had demanded money then Ajai and Vijay started assaulting Naresh Chandra with hockey sticks. Brij Mohan raised alarm on which he was also assaulted and when the maar-peet was going on, then Maharaj Singh, Haribabu and Keshav also arrived after sustaining the injuries on his head by hockey. Naresh Chandra had fallen in the lane and Brij Mohan also received injuries and on seeing the witnesses, the accused Ajai and Vijay fled towards East. Thereafter, he went to take a rickshaw for taking Naresh Chandra to the hospital and he sent Brij Mohan to inform about the incident to his house and when he had come with a rickshaw to the place of occurrence then he came to know that the police had taken Naresh Chandra to the hospital. Thereafter, he with the same rickshaw had gone to the hospital. There the condition of Naresh Chandra was serious. He remained in the hospital till 9.30 p.m. and there Brij Mohan and Ram Kishore also arrived and he left Ram Kishore with his brother at the hospital and went with Brij Mohan to lodge the F.I.R. to the police station where he submitted a report Ex. Ka-3 which was written by Iqbal Ahmad and he has proved the same after identifying the signatures on the same.

30. In his cross-examination he has stated that when Ex. A was shown to him which is an N.C.R., then he stated that the said N.C.R. was not in his hand-writing. The signatures which was on Ex. A and Ka-3 was different and there was no signature of his on Ex. A. He deposed that in his report he had not written that on the date of incident in the evening at about 6.30 p.m., he had gone to Vipin Chandra for taking the money of advertisement. He had got written the fact that Vipin Chandra did not meet him at his house. He further deposed that he had not written in his report that when they were returning then Brij Mohan met him. He stated that he did not mention in his report that Brij Mohan had met in front of the house of Radharaman nor he has got written in his report that Naresh Chandra had told Brij Mohan that his money is outstanding with accused Ajai and Vijay and Brij Mohan who accompanied them for getting the same. He has further stated that he had not written in his F.I.R. that he had called Vijay by raising his voice to down on which he had peeped from the roof and thereafter went back as he did not think it necessary to mention. He stated that he was not in a good mental state hence he did not mention in his F.I.R. that Kalicharan who stated that dispute may be finished as the demand is being made frequently. He further stated that in his report he has also not written that accused Ajai and Vijay were armed with hockey stick. Soon after the lodging of F.I.R., his statement under Section 161 Cr.P.C. was not recorded by the Investigating Officer and also did not remember when the same was recorded and it was recorded once. He denied the fact that it was recorded in the night on 3/4-11.1981 at 10.55 p.m.. He further denied the suggestion that when Brij Mohan was arrested then his statement was recorded. He further denied the suggestion that the Investigating Officer has taken his statement under Section 161 Cr.P.C. twice as in the earlier statement he could not disclose all the facts which are being stated today.

31. The accused-appellant Ajai in his statement under Section 313 Cr.P.C. has stated that when on being called by Naresh Chandra, his brother Vijay came down and as they opened the door, Naresh Chandra, Brij Mohan and their companions forcibly entered the house and Naresh Chandra attacked him with knife and his brother was attacked with hockey and in order to save themselves accused Ajai Kumar and Vijay Kumar took firewood (चूल्हे जलाने की लकड़ी) and used it for self-defence and that Naresh Chandra thereafter fell down from the upstairs and Brij Mohan and others ran away. Similar is the statement of accused Vijay Kumar whereas accused Kalicharan has stated that he was not present at the place but Naresh Chandra and Brij Mohan had come to his house along with other persons and caused injuries to his sons and his wife.

32. The accused did not lead any evidence in defence.

33. Heard Sri Satendra Kumar, learned counsel for the appellants and Sri A.R. Chaurasia, learned A.G.A. for the State and perused the records.

34. It has been argued by the counsel for the appellants that the deceased along with his brother had come to the house of the accused and assaulted his mother and two brothers Ajai Kumar and Vijay Kumar with knife and blunt objects (hockey and stick) and while the accused appellants in their self-defence have assaulted the deceased. He further submitted that a first information report was lodged by the appellant Ajai Kumar against deceased Naresh Chandra and injured Brij Mohan and 2 unknown persons under Sections 324, 323 I.P.C. with respect to an incident on 03.11.1981 at 7.30 p.m. for which F.I.R. was lodged on the same day at 9.15 p.m. which was registered as Case Crime No. 435 of 1981 and a copy of the same has been marked as Ex. Kha-3 and he stated that some of the money i.e. Rs. 450/- of the nephew of Naresh Chandra was outstanding on his brother Vijay Kumar and earlier also there was some quarrel between the parties. Though the final report was submitted in the said case. It was submitted that the injuries which have been sustained by the appellants Ajai and Vijay and appellant Ajai has received injuries of an incised wound on his person whereas the other appellant Vijay Kumar received injuries by blunt object and there is no explanation about the injuries sustained by the accused-appellants from the prosecution side which shows that the origin of the incident has been concealed by the prosecution.

35. He next argued that even if the case be taken at its own face value, the case would not travel beyond offence under Section 304 Part-II I.P.C. as the two appellants have inflicted one blow each on the deceased who died on account of head injury and it was on his head and the other injuries was traumatic swelling also on the head and the conviction of the appellants under Section 302 I.P.C. appears to be against the evidence on record. He stated that the appellants have already remained in jail for about 1 and ½ years as under trial after their conviction. He further pointed out that the injured of the present case was taken to hospital by the S.I. Amar Singh, Control Room, Firozabad and was admitted there where his injuries were examined by PW-2 Dr. R.B. Sharma and his identity was not disclosed to the said doctor by the S.I. which shows that the injuries which were sustained by the injured Naresh Chandra who was admitted as an unknown person by the S.I. Amar Singh in the hospital, the victim had sustained injuries in some other manner as not stated by the prosecution. Thus, he argued that the conviction and sentence of the appellants by the trial Court is liable to be set aside by this Court.

36. In support of his arguments, learned counsel for the appellants has placed reliance upon following judgments of the Apex Court-:

1. Shahid Khan Vs. State of Rajasthan, 2016 (4) Supreme Court Cases 96

2. Ram Laxman Vs. State of Rajasthan, 2016 (12) Supreme Court Cases 389

and

3. Lakshmi Singh and others Vs. State of Bihar, decided on 10th September, 1976

37. Learned A.G.A., on the other hand, has vehemently opposed the argument of the counsel for the appellants and has submitted that the presence of the appellants at the place of occurrence is admitted and as it appears from the defence version that the deceased and PW-3 Brij Mohan who are injured persons had gone along with PW-12 to demand money to the house of the accused and a quarrel took place between the parties and the deceased was assaulted by the two accused with hockey and stick on the exhortation given by his father Kalicharan. The ocular testimony fully corroborates the medical evidence hence the conviction of the appellants has been proved beyond reasonable doubt by the prosecution and their conviction and sentence by the trial Court is justified.

38. After having considered the submissions advanced by the learned counsel for the parties and perusing the impugned judgment and order of the trial Court as well as the lower Court record, it is an admitted case that the deceased along with the injured and his brother PW-12 Ramesh Chandra Vashistha had gone to the house of the accused for demanding the money which was outstanding on the accused and there a quarrel took place between them and on the exhortation of Kalicharan, the two accused who are sons of Kalicharan assaulted the deceased and also injured Brij Mohan who tried to intervene in the matter and both of them have received injuries by blunt object. The deceased though died due to ante-mortem injuries which were found on his head and he received 3 injuries out of which 2 are lacerated wound on the head and 1 is traumatic swelling in parietal bone was found to be fractured and the cause of death appears to be the head injury. The case which has been set out by the defence that it was Naresh Chandra Chandra and injured Brij Mohan who had gone at the house of the accused for demanding money and have assaulted them with knife and the deceased hit on account of which he suffered injuries on his head and died is not proved as per the defence version. Moreover, the injuries sustained by the 2 accused appellants on the face shows their presence at the place of occurrence and as per the arguments of learned counsel for the appellants that the accused assaulted the deceased and the injured in self-defence with hockey-stick further goes to show that they have admitted the incident and the case which was registered under Section 324 I.P.C. from the side of the accused by accused Ajai Kumar also goes to show that the incident is admitted by the accused persons. Thus to say that the deceased party has caused the injuries on the accused persons and the deceased slipped while he fled from the place of occurrence does not show that the defence version is correct and the counsel for the appellant has argued that in self-defence one stick each by the accused persons including Kalicharan was made on the deceased and further the injured had also suffered injuries at the end of accused persons which were found to be simple in nature goes to show that it can be hardly be said that all the accused could have any intention to kill the deceased as the deceased has received only 3 injuries on his person and the cause of death appears to be a head injury only. The trial Court has acquitted the accused Kalicharan on the ground that the role assigned to him as per the F.I.R. was of exhortation only and no role was assigned to him for assaulting the deceased but subsequently the same was improved by the prosecution before the trial Court showing that he also assaulted the deceased with a stick. The last argument of learned counsel for appellants is that even if the case is taken at its face value, the same would not travel beyond offences under Section 304 Part-II I.P.C. and a conviction under Section 302 I.P.C. is not sustainable in the eyes of law appears to have force as the accused were not armed with any deadly weapon and the two accused-appellants had only given one blow each on the deceased and no repeated blow was given by them and the third injury which is a contused swelling may have resulted by falling. Moreover, the injuries which have been sustained by the injured Brij Mohan was simple in nature and no internal damage was caused to him.

39. Thus, the conviction of the appellants under Section 302 read with Section 34 I.P.C. is not sustainable in the eyes of law, hence, their conviction under Section 302 is hereby set aside but they are convicted under Section 304 Part-II I.P.C. and sentenced to 10 years rigorous imprisonment and a fine of Rs. 1000/- each is imposed on them and in default of payment of fine, they shall further undergo one month rigorous imprisonment. The accused-appellants are on bail. Their bail bonds and sureties are cancelled. They shall be taken into custody forthwith to serve out the sentence as has been ordered by this Court under Section 304 Part-II I.P.C.

40. Appeal stands partly allowed.

 
Order Date-15.03.2019
 
Nirmal
 

 
(Dinesh Kumar Singh-I, J.)         (Ramesh Sinha, J.)