State of U.P. vs Baiju Tewari

Rakesh Tiwari, J.—Heard Sri D.I. Faridi, learned A.G.A. for the appellant, Sri G.S. Chaturvedi, Senior Counsel assisted by Sri Samit Gopal appearing for the accused respondents and perused the record. In session trial No. 261 of 1980, Baiju Tewari, Kishun Tewari, Vijayee Tewari and Ram Janam Tiwari, were charged and tried for the offence punishable u/s 302 read with section 34 IPC and 323/34 IPC. Accused Ram Janam Tiwari was further charged u/s 302 IPC, for committing murder of Guddar Chaubey and causing injuries to Duryodhan and Bharat Chaubey on 25.5.1980 at 2 P.M. in village Ori, Police Station Adalhat, district Mirzapur.

By the impugned judgment and order dated 7.10.1982, the Trial Court has acquitted accused Ram Janam Tewari and Baiju Tewari of the charge punishable u/s 302 and 302/34 IPC whereas accused Vijayee Tewari and Kishun Tewari have been convicted u/s 323/34 IPC and sentenced to undergo six months'' RI thereunder.

Aggrieved by the acquittal of the accused respondents u/s 302 and 302/34 IPC, the State of U.P. has filed Government Appeal No. 387 of 1983 while accused Vijayee Tewari and Kishun Tewari have filed criminal appeal No. 2722 of 1982 challenging their conviction and sentence u/s 323/34 IPC.

Since accused respondent No. 1 and 4 namely Baiju Tewari and Kishun Tewari are reported to have died in the meantime, the appeal stands abated as against them by order of the Court dated 17.2.2014 and the appeal of surviving accused persons is being heard.

As both the appeals arise out of the same judgment and are entwined by same set of facts, they have been heard and are being disposed of together.

Briefly stated the prosecution case is that on 25.5.1980, at about 2 P.M. when Duryodhan, younger brother of complainant Bharat Chaubey, was looking after the mango grove, accused Vijayee Tewari and Kishun Tewari, armed with lathi and danda came there and started to pluck mangoes, On raising objections, they began to beat Duryodhan with fists, kicks and danda. On receiving information about the incident, complainant Bharat Chaubey and his brother Guddar, rushed to save Duryodhan. In the meantime, accused Baiju Tewari armed with Gandasa and accused Ram Janam Tewari armed with ballam, also arrived in the said mango grove and enquired from Duryodhan about the matter. Nand Lal, Moti, Dhani and many others also are said to have arrived at the mango grove and asked Baiju Tiwari to refrain from such activity. On this, accused Baiju Tiwari exhorted to beat them, whereupon accused Vijayee Tewari and Kishun Tewari began to beat Duryodhan with lathis. When Guddar rushed to save Duryodhan, he was struck by ballam in the stomach by accused Ram Janam Tewari whereas accused Baiju Tewari gave a blow of gandasa to the complainant Bharat Chaubey who saved himself but received injury on the thumb of his right hand by wooden handle (lathi) of gandasa. On the intervention of the witnesses and other persons, the accused respondents ran away from the spot. Guddar died on the spot as a result of the ballam injury.

Complainant Bharat Chaubey got a report of the incident scribed by Nand Lal Chaubey and submitted it at police station Adalhat. On its basis check report was prepared and case crime No. 85 of 1980, u/s 302/323, was registered against the accused respondents on 25.5.1980 at 6.10 P.M. Investigation of the case was taken over by Sri R.N. Pandey, S.H.O., Police station Adalhat. The investigating Officer prepared inquest report of deceased Guddar. His body was sealed and sent for post-mortem examination through constables Dal Singar Yadav and Ram Nath. He also prepared site plan of the place of the occurrence and recovery memo of Ballam and lathi as well as blood stained and simple earth from the place of occurrence.

Injured persons, Bharat Chaubey and Duryodhan were subject of medical examination conducted by Dr. C.K. Gupta, on 11.45 A.M. and 12 O''clock in the noon respectively on 26.5.1980 and the following injuries were found on their person:

Injuries of Bharat Chaubey

Abraded contusion with swelling on the left thumb--dorsal aspect 6 cm. x 6 cm.

Contusion bluish in colour 4 cm. x 2 cm. on the right scapular region.

Injuries of Duryodhan

Lacerated wound 4 cm. x 0.5 cm. x 0.5 cm. on the right side forehead 6 cm. above the right eye brow.

Complained of pain all over body. But no mark of external injury seen.

Post-mortem examination was conducted by Dr. C.K. Gupta on 26.5.1980 on the body of deceased Guddar, who found the deceased to be aged about 30 years having average muscularity. Rigor mortis was present in lower limb and passed off in upper limb, eyes and mouth were open. The following ante mortem injuries were found on the body of deceased Guddar:

Incised wound 1. cm. x 0.5 cm. x muscle deep on the left arm upper part.

Lacerated wound 4 cm. x 1.5 cm. x 1 cm. on the left side face, 2 cm. below the left ear.

Incised wound of entry 3 cm. x 2 cm. x cavity deep directed back ward and outward, margins were clean cut and inverted, on the front of abdomen (infra sternal region) in the middle.

Incised wound of exit 2 cm. x 1 cm. x cavity deep(connecting with injury No. 3 on probe) on 14 cm. back right side 10 cm. above the right waist.

In the opinion of the doctor, death was due to shock and haemorrhage as a result of ante mortem injuries.

After completion of investigation, charge sheet was submitted against the accused respondents and the case was committed to the Court of Session. They pleaded not guilty to the charges levelled against them and claimed to be tried.

In order to prove its case, the prosecution examined P.W. 1-Nand Lal, P.W. 2-Bharat Chaubey, P.W. 3-Moti, P.W. 4-Duryodhan, P.W. 5-Dr. C.K. Gupta, P.W. 6-constable Dal Singar Yadav, P.W. 7-Somaru, P.W. 8-SI Shiv Das Yadav, P.W. 9-Head constable Surya Nath Singh, P.W. 10 Net Ram, P.W. 11-IO R.N. Pandey. Whereas the accused respondent in their defence examined D.W. 1-Rajendra Prasad Vaishya and D.W. 2-Dr. Janardan Narain Prasad.

After considering the evidence produced in the case and hearing respective submissions of the parties, the Trial Court acquitted all accused respondents of the charge u/s 302 and 302/34 IPC but convicted and sentenced accused Vijayee Tewari and Kishun Tewari u/s 323/34 IPC as stated above.

The present appeal has been filed by the State of U.P. on the ground that alibi of Ram Janam Tewari has wrongly been believed by the Trial Court when it had accepted the prosecution evidence with regard to the happening of the events, on the basis of which the two accused namely Vijayee Tewari and Kishun Tewari have been convicted u/s 323/34 IPC; that learned Trial Court has not weighed and assessed the prosecution evidence properly and in any case verdict of acquittal is contrary to the weight of evidence on record. It is submitted that on the aforesaid grounds, facts and circumstances of the case as well as the material on record, the impugned judgment and order passed by the Trial Court is not justified.

Learned A.G.A. appearing for the appellant submits that F.I.R. is prompt, there is no contradiction in the prosecution story and small contradictions, if any, are irrelevant and insignificant for the purpose of conviction of the accused persons. The Ballam used in the incident was recovered which was sent for chemical examination to F.S.L. and its report shows that it contained blood but the same has not been classified as to whether it is human blood or otherwise. The prosecution in support of its case has produced P.W. 2 Bharat Chaubey and P.W. 4 Duryodhan, who are injured witnesses. It is argued by the A.G.A. that accused were the aggressors in the case who have caused death of Guddar and have also injured others as stated in the F.I.R. with their respective weapons used by them. According to him, it is not a case of no evidence as both the sides have received injuries in the incident of marpeet which took place in two stages. He argues that prosecution version is supported by the medical evidence on record, therefore, the Trial Court has committed an illegality in not properly appreciating the medical evidence as well as depositions of the witnesses which has resulted in miscarriage of justice.

Per contra, Sri G.S. Chaturvedi, learned Senior Counsel has submitted that it is clear from perusal of the impugned judgment that accused Baijoo Tewari; Kishun Tewari, Vijayee Tewari and Ram Janam, have been acquitted of the charge u/s 302/34 IPC and accused Baijoo Tewari and Ram Janam have also been acquitted of the charge u/s 323/34 IPC whereas accused Kishun Tewari and Vijayee Tewari have been convicted and sentenced to six months'' RI u/s 323/34 IPC on well considered grounds. Accused Baijoo Tewari armed with a gandasa, Vijayee Tewari with lathi, Ram Janam Tewari with ballam and Kishun Tewari with lathi, are said to have participated in the incident with their respective weapons. The incident is said to have taken place on 25.5.1980 at 2 P.M. in a mango grove; that F.I.R. was lodged at 6.10 P.M. on the same day at police station Adalhat by Bharat Chaubey; that in the said incident Guddar Chaubey received injuries and died. His post mortem examination was conducted on 26.5.1980 at 4 P.M. by doctor C.K. Gupta (P.W. 5). From the facts and evidence on record, it appears that injuries particularly injury No. 1 and 2 of the deceased are unexplained whereas specific case of the prosecution is that one ballam blow was given to the deceased by Ram Janam Tewari, as a result of which he died. The prosecution has totally failed to explain injury No. 1 and 2 found on the body of the deceased as to how they were received as cause of death of Guddar (deceased) was the result of single blow of Ballam. It is reasonably deduced from the record of the case that in the present case two incidents had taken place. As per the prosecution version itself as specifically stated by P.W.-4 Duryodhan that the first incident had taken place 30 minutes before the second incident. The first incident which took place at around 2 P.M. related to plucking of mangos from the grove of Bharat Chaubey by Vijayee Tewari and Kishun Tewari and as per prosecution case, Duryodhan was beaten in the first incident by Vijayee Tewari and Kishun Tewari and the quarrel had ended there. The second incident is then stated to have taken place 30 minutes after the first incident wherein it has been specifically stated by P.W. 4 Duryodhan that Bharat Chaubey, Guddar, Ram Dhani and Moti ran with their lathies towards the said mango grove. On seeing this Baijoo Tewari and Ram Janam Tewari then reached the place of occurrence with gandasa and ballam respectively. The specific case of the prosecution is that when Guddar tried to assault Ram Janam Tewari with his lathi for which he had raised his lathi, then Ram Janam Tewari gave one ballam blow to him which pierced in his abdomen. Ram Janam Tewari while exercising his private defence gave one ballam blow to Guddar which resulted in his death. Even as per the prosecution case the accused persons of the present case have also received injuries.

Learned Senior Counsel Sri G.S. Chaturvedi has argued that from the perusal of statement of P.W. 4 Duryodhan, it is apparent that duration between the first incident and second incident was of more than half an hour. The second incident had started after lapse of the aforesaid time when first incident had already subsided. In this regard, he has placed reliance upon following excerpt of the deposition of P.W. 4 in which he has given the manner in which two incidents took place:

He then submits that motive can be gathered from the cross examination of P.W. 3 Moti as well as the manner in which the incident had taken place and who had assaulted whom. In this regard he has relied upon following part of the cross examination of P.W. 3-Moti:

It is submitted that from the aforesaid cross examination it is clear that prosecution side had arrived after some time which is also supported by the version given in the F.I.R. but this story has been substantially changed by the prosecution as appears from the following statement of P.W. 2 Bharat Chaubey:

According to the learned Senior Counsel for the accused, from perusal of the aforesaid, it is clear that parties had received injuries in the process of assault and that the prosecution side was the aggressor. He argues that Guddar had raised his lathi to strike on the head of Ram Janam Tewari, who apprehended imminent danger to his life and body and in self defence, he struck Ballam in the stomach of Guddar who died. This is clear from the following statement of P.W. 2 Bharat Chaubey:

Eye witness Mussey and other children who were said to be present on the place of occurrence, were not produced before the Court by the prosecution. This is also apparent from the statement of P.W. 4 Duryodhan and is supported by P.W. 1 Nand Lal, which read thus:

It is also apparent from the statement of P.W. 1 Nand Lal that he was not available after the incident till his statement was taken after about 12 days by the I.O.

Learned Counsel for the accused respondents then relied upon the decisions rendered in Krishnan Vs. State of Tamil Nadu, . Deo Narain Vs. The State of U.P., and State of U.P. Vs. Ram Niranjan Singh, in regard to the plea of private defence.

No other point has been argued by the parties'' Counsel.

Upon hearing learned Counsel for the parties and on perusal of record, we find that Trial Court has rightly come to the conclusion that the incident had taken after interval of more than half an hour of the first incident. Initially, accused Ram Janam Tewari was not there at the place of incident and it is upon information that some marpeet had taken place in the mango grove, that persons from both the sides arrived who belonged to different villages as appears from the site plan. The mango grove is situated almost at a mid distance from the two villages. It also appears from the evidence and the site plan that the first incident had taken place at mango grove whereas the second incident took place when the accused were returning to their village towards Ghuspaithi at a distance of about 90 steps from the place where the first incident had taken place. There were no finger prints found on the handle of stick of ballam and it appears from the statements extracted above that Guddar (since deceased) had raised his lathi for giving a blow on the head of Ram Janam Tewari who on apprehending danger to his life, had immediately struck a blow by ballam in the stomach of Guddar who died. The injuries have been found on both sides as is evident from the medical and ocular version of the witnesses.

The fact that injuries are received by both sides, is also admitted to the prosecution. Therefore, the question would be as to whether the second incident could be said to be a part or continuation of the first incident or a separate incident? Admittedly, from the record it is apparent that second incident had taken place after about half an hour when the first incident had subsided and the accused party was returning towards their village and were about 90 steps from the mango grove where the first incident had earlier taken place. It is then that second incident had taken place. Therefore, both the incidents are separate and not part of the same transaction. The Trial Court has in the facts and circumstances rightly found that the accused persons had acted in self defence at the time of second incident in which Guddar died. From the appreciation of record and arguments advanced, the conclusion of the Court is a probable one. Accordingly we too conform to the same view and uphold the judgment of the Trial Court which in our opinion does not suffer from any illegality or infirmity and therefore requires no interference. For all the reasons stated above, both the appeals fail and are accordingly dismissed.