Satya Dev and Another vs State of U.P.

Satya Deo and Aril Kumar, father and son respectively have filed this appeal against the Judgment and order dated 7-11-79 passed by the VII Additional Sessions Judge, Etah in Session Trial No 284 of 1979 whereby both of them stood convicted u/s 302/34 IPC for which Imprisonment for life was awarded to both of them, Anil Kumar and Satya Deo were convicted u/s 324 IPC for which of Year''s R.I., was awarded to both of them and they were also convicted u/s 324/34 IPC for which fine months R.I. was awarded to them. Aggrieved, the Appellants have challenged the conviction and sentence in this appeal.

The learned Counsel Sri I.H. Khan and Sri A.A Khan have been heard at length in support of this appeal, which has been opposed by Sri Vidbu Bhushan Singh A.G.A. and the entire record has been examined.

The charges against the Appellants were that on 5-9-78 at about 6 CO A.M. they committed the under of Ajai Kumar by intentionally causing his death and In that process caused injuries to the informant PW 1 Inder Eeo, his wife Smt. Gyan Devi, their daughter Veena and son-in-law Lala Ram.

The prosecution case is as follows:

Inder Deo PW 1 and Satya Deo Appellant are brothers. PW 2 Smt. Gyan Devi is the wife of Inder Deo and the deceased Ajai Kumar is the son of Inder Deo. Km. Veena is the daughter and Lala Ram is the son-in-law of Inder Deo being married to his ether daughter Kusum. All were living in a common house in Molalla Nathuram Geli Chhappatti in Kasganj within district Etah. In their ancestral house Satya Deo and his family members were living in the ground floor, while the informant Inder Deo and his family IT embers were occupying the first floor, where however one room was in occupation of Satya Deo. The location of the first floor was such that from the house of Raghubar Dayal, which was adjacent In which PW 4 Ram Kishan living, complete visibility was available regarding what had been happening in the informant''s house. On 5-9-78 PW 2 Smt. Gyan Devi was clearing the utensils on the floor just by the side of Kitchen, which was close to the room of Satya Deo in the first floor, which was objected too. Smt. Gyan Dvi replied Satya Deo and Anil Kumar Appellants that as it was raining and that is why she was cleaning the utensils there and she would remove them soon. At this stage unfortunately the young lad deceased Ajai Kumar (15) came out of the room and said to the Appellants that his mother was cleaning utensils in her portion and why she should remove the utensils. At the altercation Satya Deo and Anil Kumar rushed to their room and both to them came out with knives in their hands. Satya Deo said War Saley Ko". On this Appellant Anil Kumar inflicted knife blows on the person of Ajai Kumar, who made separate attempt to run away, but he fell down His mother Gyan Devi, sister Km. Veena brother-in-law Lala Ram and his father Inder Deo rushed to the site and tried to save their son Ajai Kumar, then satya Deo inflicted knife blows on Km. Veena and Lala Ram, while Anil Kumar and Satya Deo caused injuries to the others. It is also said that Smt. Gyan Devi was also dragged en the ground by both the Appellants. At the hue and cry the aforesaid eye witness namely Bern Kishan PW 4, who was living in the immediate neighbourhood, rushed to the site and saw the incident. The witness could not apprehend the Appellants, who made good their escape.

Inder Deo took his wife end Ajai Kumar immediately to the hospital, where the doctor, who attended Ajai Kumar declared him dead. IW 7 Dr. Ramesh Chandra Bajpal examined Sat. Gyan Devi et 7.30 A.M. Inder-Deo informant was examined at 9.00 A.B., Km. Veena was examined at 10.30 AM. and Lala Bam was examined at 11.00 A.M. and prepared the medical reports, which were marked in the trial-court as Exka-19, Ex. ka-20, Ex. ka-21 and Ex. ka-22. Incidetly it may be mentioned here that since Ajal Kumar had died by the time when he had reached to the hospital, the doctor had forwarded a note (o the Senior Medical Officer intimating him about the said death, which later on has been proved and marked as Exka-23 by Dr. Ramesh Chandra Bajpai.

Coming to the chronology, after the wife was examined and the eon was declared dead, the informant wrote out the First Information Report and took it to the police station Kotwali, where it was registered as case crime No. 567 under Sections 302 and 307 IPC at 8 15 A.M. on 5-9-78. PW 6 Remji Lal Shaima S.I. was present at the police station, who had proved the registration of the case by bead mobarrir Kailash Chandra vide check entry No. 476, a copy of which has been proved and marked as Exka-3. The General Diary entry No. 66 has also been proved and marled as Ex. ka-4 by which a case was registered. PW 6 Ramji Lal Sharma was entrusted with the in estimation of the case, who recorded the statements of Inder Deo and that of the head moharrir then and there. He prepared the necessary memorandum for getting the other injured examined at the hospital. He also recorded the statements of other injured namely Lala Ram and km. Veena and went to the spot where he was shown the place of the incident by Kusum Kumar, the other daughter of the informant Inder Deo. A site plan Ex. ka-5 was drawn up, which has been proved on the record, he also recovered the blood stained bricks and plain bricks etc. from the spot end prepared the memorandum Ex. ka-5 and Ex. ka-6. Another memorandum showing that the Appellants were not present at their house, was drawn up and proved and marked as Ex. ka-7. He had also completed the inquest and then deputed constable Sita Ram PW 3 for getting the post-mortem done as a result of which the dead body of Ajai Kumar was taken to the (sic) where post-modem examination was conducted on the dead body of Ajai Kumar by PW 5 Dr. Daya Shanker He found the following two injuries on the body of the deceased:

Incised wound left inter scapular region 4 Cm x 2 Cm x chest cavity deep.

2, Incised wound left supra scapular region 5.5 Cm x 2.5 Cm x chest cavity deep.

On the Internal examination hematoma was found in layers of left chest wall. Left pleura was found cut at two places and about 10 on of blood was found in the cavity. The left lung was lacerated and collapsed. The stomach and small intestines were found empty. The large intestines contained scare federal roster. The opinion given by Dr. Daya Shanker is that the deceased had died as a result of shock and haemorrhage on account of ante-mortem injuries found by the deceased.

After completing the investigation, the Investigating Officer filed a charge-sheet and this Is hew two Appellants were put on trial.

Both the Appellants have denied their participation in the incident and attributed their false Implication. Appellant Satya Deo had further pleaded before the trial Judge that on the date and time of occurrence he was present in District Mardoi where he had gone to meet a prisoner along with this brother-in-Jaw DW 2 Kedar Nath Katiyar. In order to lend support to the said defence version DW 1 Shyam Dularey Awasthi, Deputy Jailor, District Jail, Hardoi has been examined en 5-10-79.

To prove the charges against the Appellants, the prosecution examined three eye witnesses. PW 1 is the informant. PW 2 Smt, Gyan Devi Is the wife of informant. Both these witnesses are injured witnesses. The third eye witness is PW 4 Ram Kishan, who was the next door neighbour.

From the cross-examination of all the three eye witnesses, it appears that no consistent plea has been suggested in the cross-examination In fact nothing has been elicited in the cross-examination of these witnesses, which would go to discredit their testimony. Much emphasis has been given by the learned Counsel for the Appellants on the fact HS mentioned in the cross-examination of PW 1 and PW 2 about presence of their elder son Raj Kumar at the time of incident and much capital was sought to be made out from the statements in the cross-examination that the said Raj Kumar did not go to the hospital along with his injured parents or seriously injured younger brother Ajai Kumar. The defence suggestion made during the cross-examination was emphasised in this appeal that Raj Kumar may have assaulted his mother and father and in that process might have caused injuries even to Ajai Kumar because his parents might have refused to hand over the meney to Raj Kumar. It was suggested that Raj Kumar was a habitual gambler. This argument is as baseless as the suggestion itself. Nothing has been brought out in the cross-exam nation or by any other evidence Indicating that Raj Kumar was a gambler and that be had demanded money from his parents. The said suggestion and the argument Is devoid of any substance whatsoever. It may be noted that the evidence disclosed that even his father Inder Deo, who was aged about 70 years, was present at tie shop, was also to be informed of this incident. It has come in the statement of PW 1 that he had informed his father about this incident while going so the hospital. Consequently some persons should have been left at the place where such ghastly incident had happened. The fact that his father and mother who had boarded along with their seriously Injured son, might have persuaded his elder son namely Raj Kumar to be at home to attend the other persons'' present who also must have become over awed. This argument is, therefore, rejected without any hesitation what-no-ever.

The time of medical examination of Smt. Gyan Devi Is noted as 730 A.M.- as It appears from the statement of PW 7 Dr. Ramesh Chandra Bajpai. He had found eight Incised wounds and three abrasions/lacerated wounds. Similarly the informant Inder Deo was medically examined at 9 00 A M. The other two victims namely Km Veena and Lala Ram were medically examined at 10.30 A.M. and 11.08 A.M. respectively, but they have not been examined as eye witnesses. It Is, therefore proved beyond ell shadow of doubt that these two eye witnesses had sustained injuries at the incident as deposed by them The mention of the injuries of the aforesaid two eye witnesses is also to be found In the First Information Report. Consequently the presence of these two injured witnesses at the place of incident is overwhelmingly established.

The trial-court has, therefore, rightly placed reliance on the testimony of these three eye witnesses and recorded the findings that the prosecution case stands proved.

Now coming to the question of "alibi" as furnished through the testimony of DW 1 Sri Shyam Dularey Awasthi, who was the Deputy Jailor on 5-9-78 in District Jail, Hardoi and DW 2 Kedar Nath Katiyar, who is a resident of Hardoi and happened to be the brother-in-law (Bahnot) of Appellant Satya Deo, the same stands not proved at all.

All that emerges from the testimony of DW 1 is that there was en application moved before the Jailor seeking permission to meet a prisoner, which purports to have been signed by Kedar Nath Katiyar, Satva Deo and one Maya Parkash, but he has cot even identified the signature of Appellant Satja Deo much less his physical presence. The Jailor has also proved the entries made in the register, which do not indicate any signature of Satya Deo to the said register. The trial Judge has discarded the testimony of DW 1 on the ground that it does cot establish at all the fact that Satja Deo Appellant was actually present in District Hardoi on 5-9-78 at 10.03 A.M. as is sought to be made out by the Appellant. It has come in the statement of these witnesses that it was a holiday on account of �Id" and therefore normally no ore was permitted to meet a prisoner on holiday. He has said that in the application there was some endorsement by some alleged member of the Legislative Assembly, but nothing has been brought on record to indicate that infact as special case any of these persons mentioned in that application was really in the Jail at 10.03 A.M. for meeting a prisoner as confined therein. The trial-court has discarded the testimony of DW 2 on the ground that be is the brother-in-law of the Appellant and he bas not testified any reason why the Appellant should have accompanied his brother-in-law to the jail for meeting a prisoner, who was cot related muchless, friendly to him.

Apart from all those, it may be noted here that it is admitted to the witnesses that one can teach Hardoi within about five or six hours from the place of incident. It is further admitted to these two witnesses that from Shabbad, Hardoi is only 35 miles and it is common knowledge that from Shabbad one might reach Kasganj within about two hours for so.

In view of the aforesaid reasons the trial Judge has rightly discarded the testimony of these two witnesses and the ending that the Appellants Satya Deo bas miserably failed to prove the plea of alibi taken by him, bas to be upheld.

In view of the aforesaid discussion the prosecution case as against the Appellants, stands conclusively proved and established.

There can be no doubt about the intention of Appellant Anil Kumar in causing two injuries on the person of deceased Ajai Kumar. The statement of the doctor is clear that two injuries were sufficient In the ordinary course of nature to cause death. The action of Anil Kumar Appellant would come within both the clauses i.e. whoever causes injuries with the intention of causing the death, and, or with the intention caused such bodily injuries is likely to cause death. Therefore, the charge u/s 302 IPC is made out from the evidence produced in the case. In so far as Anil Kumar is concerned, his conviction u/s 324 IPC for having caused injuries to Smt. Gyan Devi and Inder Deo informant or sharing the common intention with such injuries as were caused by Satya Deo, stands also fully proved. Therefore, his conviction u/s 324 and 324/34 IPC and the sentences awarded therein can cot be questioned. However, a thoughtful argument is available with regard to Satya Deo Appellant sharing the said common intention with Anil Kumar, in so far as two injuries caused to the deceased Ajai Kumar is concerned. In the First Information Report, no special words have been attributed to the Appellant Satya Deo, which however, during the tertimony of the witnesses, has been suggested to be "Mar Saley Ko." It was rightly pointed out that it is not even stated in the FIR that even the informant at that stage thought that both the Appellants were having intention to cause such injuries to Ajai Kumar as was likely to cause his death. It was rightly argued that even though the prosecution case is that two Appellants came oat with two knives, but only Anil Kumar gave blows on the back of Ajai Kumar and caused him two injuries, which were fatal From the injuries of other victims, ''namely Informant Iader Deo and the eye witness Smt. Gyan Davi and two other victims not examined, namely Km. Veeno and Lala Ram, who had suffered only minor injures. It was rightly painted out in this regard that both the Appellants have been convicted with regard to those injuries of the two victims examined as W 1 and PW 2 only u/s 324 IPC and no charge u/s 307 IPC with regard to those witnesses injuries has been found proved by the trial Judge, in this connection It may be noted that while the First Information Report was lodged under Sections 302 and 307 IPC but no charge u/s 307 IPC was even framed against either of the Appellants by the trial Judge with regard to the injuries sustained by the four victims. The other aspect of the matter in this regard is that the incident, which had happened, was perhaps not pre-meditated, The matter would go to such (sic) as Anil Kumar to become aggressive enough to give two repeated blows on the young lad AJai Kumar so as to extinguish his life, could not be known to Satya Deo. There Is nothing on record to indicate that even though Satya Deo had been trying to be in possession over the ancestral house exclusively, he could have thought of killing Ajai Kumar, an innocent child For all this action, which is the Individual act of Anil Kumar, the Intention of Satya Deo can be Inferred only to the exient of causing simple injuries even to Ajai Kumar. Section 34 IPC would not, therefore, be attracted to make Satya DEO guilty u/s 302 IPC for the death of Ajai Kumar for which Appellant Anil Kumar alone is responsible.

In view of the evidence aforesaid, the case of Appellant Satya Deo with regard to the Injuries of Ajai Kumar cannot make him vicariously liable for his murder which charge is not proved beyond reasonable doubt as against him and therefore, he is entitled to acquittal of the charge u/s 302/34, IPC. For the two sharp edged injuries on the person of Ajai Kumar, he is to be held guilty u/s 324/34 IPC.

The result of the entire discussion aforesaid is that the appeal is dismissed in so far as Anil Kumar Appellant Is concerned. His conviction u/s 302/34, 324 and 324, 34 IPC and the sentences of Life Imprisonment, one year''s R.I. and none months R.I. respectively as awarded by the trial-court, are upheld. He is on bail He will surrender to his bail bonds forthwith to serve out the sentences awarded to him which will run concurrently.

The appeal of Satya Deo is partly allowed. His conviction u/s 302/34 IPC and sentence of Imprisonment for Life is set aside, instead be is convicted in so far as causing the injuries to Ajai Kumar is concerned, u/s 323/34 IPC and sentenced to nine months R.I. His conviction under Sections 324 and 324/34 IPC with regard to the injuries of Smt Gyan Devi and Inder Deo and sentences of one year''s R.I. and nine months R.I. as awarded by the trial court, are upheld. All the three sentences will run concurrently. He is on ball. He will also surrender to his bail bonds forthwith to serve out the sentences awarded to him.