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Baldeo & Others v. State Of U.P. - CRIMINAL APPEAL No. 1029 of 1982  RD-AH 5 (1 January 2007)
Criminal Appeal No. 1029 of 1982
Baldeo and two others Vs. State of U.P.
Hon'ble K.S. Rakhra, J.
Hon'ble S.K. Jain, J.
(Delivered by Hon'ble S.K. Jain, J)
This criminal appeal has been filed against the judgement and order dated April 3, 1982, passed by the learned Sessions Judge, Mathura in S.T. No. 155 of 1981, State Vs. Baldeo and two others, whereby the learned Sessions Judge convicted appellant Tikam Singh under section 302 I.P.C. and sentenced him to imprisonment for life and the remaining two appellants namely, Baldeo and Jagdish convicting under section 326 read with section 34 I.P.C. and sentenced them to R.I. for five years.
The prosecution story in brief is that informant Girish Kumar had a shop in Kosi on Shergarh Road. The mobil oil and tractor parts are sold on the said shop. The first informant Girish Kumar and Pappu used to sit at the shop. Appellant Baldeo is resident of same village where the first informant resides. Appellant Tikam is brother in law of Baldeo and resides in village Kamar situated at some distance from the village of the first informant. Appellant Jagdish also resides in village Kamar. He is a friend of appellant Tikam. It is further case of prosecution that about a month before this occurrence the three appellants came to the shop of first informant in the noon and wanted to purchase a tin of mobil oil on credit. The first informant refused to sell the mobil oil on credit. The three appellants took away the tin forcibly and when Pappu tried to snatch the tin a "Marpeet" took place between the appellant Tikam and Pappu. Pappu, however, succeeded in snatching the tin. The three appellants went away saying that 'Dekhege'.
On 17.2.1981 informant Girish Kumar asked his brother deceased Pappu to reach the village after purchasing the vegetables and diesel oil for their "Atta Chakki." He also told the victim that he would follow him soon after the closing of the shop. Deceased Pappu left the shop and after half an hour the first informant Girish Kumar along with Narendra Kumar resident of his village started for home at about 6.45 p.m. When they reached near the well situated in village Subana, they found Pappu going a-head of them at a distance of about 100 steps. When deceased Pappu reached near the culvert the three appellants pounced upon him. Appellant Jagdish and Baldeo caught hold of Pappu and pulled him down from the cycle and appellant Tikam attacked Pappu with cutting knife. Seeing all this the first informant and his companions raised alarm and advanced towards the place of occurrence but the appellants succeeded in running away towards the west. This was witnessed by Kishan Chand and Shiv Ram. Deceased Pappu was alive at that time. The first informant sent for a tractor and proceeded with victim Pappu to Kosi Kala Hospital on a trolley, but before they could reach the Hospital Pappu succumbed to his injuries. On reaching the Hospital Pappu was declared brought dead.
First informant, PW2, Girish Kumar brother of deceased Pappu prepared a written report Ext. Ka-2 and lodged the same at the police station Kosi Kalan, District Mathura on 17.2.81 at 10.00 a.m. As per this report they saw Pappu going ahead of them at distance of about 100 steps and when Pappu reached near the culvert, they also saw three appellants were sitting on the culvert. Appellants Jagdish and Baldeo caught Pappu and pulled him down. The first informant and his companions raising alarm reached near Pappu. Appellant, Tikam caused knife injury on the neck of Pappu. Hearing the alarm, Krishanchand and Shiv Ram of the village and first informant who were coming behind also reached there. Appellant went away towards west. They were not chased because of fear. After arranging tractor trolley, Pappu was taken to hospital but he succumbed to injuries on way to hospital.
P.W.7, Constable Ramvir Singh, on the basis of his written report prepared chick F.I.R. Ex. Ka-7 and registered the case in G.D. as per Ex. Ka-2. The Station Officer, Shri R.K. Tyagi, P.W.10 took up the investigation, recorded the statement of first informant, went to the hospital and recorded the statement of Narendra Kumar, Krishnchand and Shiv Ram. On 18.2.81 at 6.00 a.m., he held inquest of the dead body of Pappu after appointing Panch.He prepared necessary papers for post-mortem, sealed dead body and sent the same for post-mortem. Thereafter at about 8.35 a.m., he reached at the place of occurrence and prepared the site plan and also took into possession blood stained and ordinary earth and prepared its memo on the same day at about 9.30 a.m.. He went to the village Kharot, where he was informed by the informant that three appellants were present in the hut of appellant Baldeo. He arrested them after using necessary force. Clothes of the appellant Tikam and Jagdish were blood stained. He took the blood stained shirt of the appellant Tikam, Ex. Ka-8 and blood stained Jarsi of appellant Jagdish and prepared recovery memo. Cloths of the appellants were taken into possession by the Investigation Officer in the presence of the witnesses, Hukum Singh and Birji. Appellant, Tikam also disclosed to Investigating Officer that he had hidden "Katar" in the hut and on pointing out of the appellant, Tikam, blood stained "Katari" Ex - 1 was recovered which the investigating officer sealed on the spot, prepared its recovery memo and also prepared site plan of place from where the "Katari" was recovered and after recording the statements of other witnesses, he concluded the investigation o n 19.3.1981 and remitted charge sheet against the accused appellants Ex. Ka-19.
P.W.1, Doctor N.C. Chaturvedi on 18.2.1981 at 3.00 p.m. conducted the post-mortem on the dead body of Pappu and following ante mortem injures on the person of the deceased:
1.Punctured wound 2.5 cm X 1 cm X chest cavity deep on the right side front of chest upper part. Just below mid clavicle point and 12 c.m. above the right nipple directed downwards and laterally.
2.Abrasion 1 cm. X 0.5 c.m. on the left side chest
On internal examination the pleura and the upper lobe of right lung were found punctured.
In the opinion of doctor, the death was caused due to syncope as a result of shock and haemorrhage due to injuries found on the person of the deceased.
The case of the appellant was one of denial and in their statements under section 313 Cr.P.C. , they stated that they have been falsely implicated out of village partibandi and enmity. From the side of the appellant, Gopal Prasad has been examined as D.W.1 who has deposed that he was Pradhan of the village of Perkhu. He has a shop at Kosi. Appellant Tikam was arrested from his shop and at that time the appellant, Tikam was wearing Pajama and Bush-shirt. He further stated that the appellant, Jagdish was also arrested from his shop and at that time he was wearing trouser and Bush-shirt.
Prosecution examined ten witnesses to substantiate its allegation. P.W.2 is Girish Kumar is informant and one of the eye witnesses. P.W.3, Narendra Kumar and P.W.4 Shiv Ram are other two eye witnesses. P.W.1, Dr. N.C. Chaturvedi conducted the post mortem examination on the dead body of Pappu. P.W.5, Hukum Singh is the witness of the recovery of blood stained clothes of appellants Tikam and Jagdish and knife on pointing out of the appellant, Tikam. P.W.9, Anil Kumar Jain is witness of the incident of "Marpit" which had taken place one month before this occurrence between Pappu and appellants at the shop of Pappu. P.W.6, Bhajan and P.W.8, Dal Chand have been examined to say that the deceased Pappu had purchased diesel oil before going to village. P.W.7 is the clerk, Constable Ramvir who had prepared chick report and made entry in G.D. regarding registration of case . P.W.10, R.K. Tyagi is investigating officer of the case.
Doctor J.R. Jain, Medical Officer, Civil Hospital, Kosi Kalan, District Mathura was examined as C.W.1 who had deposed that on 17.10.81 at 9.00 p.m. Pappu was brought dead at Kosi Kalan Hospital. He had sent Memo of his death to S.O. Kosi Kalan.
During the pendency of appeal, appellant, Tikam died and his appeal abated as per order dated 12.7.2007.
We have heard Sri A.C. Nigam, Sr. Advocate assisted by Shri Pankaj Shukla, learned counsel for the appellants and Shri Danish Ikbal Faridi, learned A.G.A and perused the record.
Learned counsel for the appellant submitted that more than twenty five years have elapsed when this occurrence took place. He further submitted that two appellants, namely, Baldeo and Jagdish as per the prosecution story were unarmed. They had no knowledge that the deceased appellant Tikam was carrying knife with him or he would cause injuries to the deceased. It has further been argued that the motive of the crime as stated by the prosecution is that three appellants, one month earlier to the present occurrence, forcibly tried to take away tin of mobil oil over which some "Marpit" had taken place between deceased Pappu and the appellant Tikam. No report of this occurrence was made at the police station. It has been further submitted by the learned counsel for the appellants that as per the prosecution story the deceased had left the shop of the first informant half an hour earlier than the first informant. Therefore, there was no possibility for any of the witnesses to have witnessed the occurrence.
Learned A.G.A. has submitted that there was common design for murdering Pappu and all the three appellants waited for him at the Culvert. Two appellants, Baldeo and Jagdish pulled the deceased down and he was attacked by the appellant Tikam.
PW2, Girish Kumar in his examination in chief repeating the prosecution story has deposed that he saw that the appellants Jagdish and Baldeo caught Pappu and pulled him down from his cycle and deceased appellant Tikam caused injuries to deceased Pappu by a knife. It has come in his cross examination that he had clearly seen that the knife injury was given to the deceased on his chest. He has further stated that there is no difference between the chest and neck, therefore, in his report he wrote that the injury was caused on the neck. The second eye witness PW3 Narendra Kumar in his examination in chief has corroborated the version given by P.W.1. PW4 Shiv Ram in his examination in chief says that deceased appellant Tikam caused injuries to deceased Pappu and in his cross examination he says that the injury to deceased Pappu was caused towards the right side of the neck, therefore, he gave this statement to Investigating Officer 'Gale Mai Chhuri Bhonk Di.' P.W.1 Dr. N.C. Chaturvedi in his cross examination states that if the medical aid could be available to the deceased in time his life could be saved.
In view of above, even if we accept the prosecution case in full and hold that the two appellants namely, Baldeo and Jagdish were present at the scene of occurrence, from the prosecution story it appears that it was the individual act of deceased appellant Tikam because of which the deceased Pappu had died. It can not be said that Tikam in furtherance of common intention of appellants Baldeo and Jagdish had caused injuries to deceased Pappu. Even if the appellants wanted to encounter the deceased it could have been only to take revenge of the earlier incident in which deceased Pappu had snatched the tin of mobil oil and "Marpeet" took place between the deceased and three appellants.
There is no evidence to show that the two appellants Baldeo and Jagdish had knowledge that the deceased appellant Tikam was carrying a knife. They could not even have remotely thought that appellant Tikam would be inflicting a stab injury on the deceased. If the intention of the two appellants Baldeo and Jagdish was that the deceased should be done to death it is inconceivable that they would have come without any weapon except for a knife brought by Tikam. It is also significant to note that only single stab wound was caused to the deceased. The overt act attributed to the two appellants is that they made the deceased fall from the cycle. There is no evidence that the two appellants had caught hold of the deceased, the role assigned to the two appellants is that they caught cycle of deceased and made him fall on the ground. Thus, it appears that the prosecution made embellishment in its story to make the two appellants namely, Baldeo and Jagdish liable for the offence alleged to have been committed by deceased appellant Tikam. It is true that in order to convict the persons vicariously under section 34 I.P.C. it is not necessary to prove that each and every one of them had indulged in overt acts but there must be material to show that every act done by the accused persons was in furtherance of the common intention of all the accused. In this case this evidence is lacking that the two appellants shared common intention of deceased appellant Tikam for causing stab wound to deceased Pappu.
From the statement of doctor PW1 it appears that if the deceased was given medical aid in time, then his life could be saved. Thus, the possibility that three alleged eye witnesses did not witness the occurrence of causing injury to the deceased can not be over ruled. The deceased was brought dead at the Hospital, therefore, it is also possible that when deceased suffered injury no body had witnessed the occurrence and the three appellants because of earlier quarrel were falsely implicated in this case.
For the reasons stated above, we allow the appeal. The conviction of appellants Baldeo and Jagdish under section 326 read with section 34 I.P.C. and sentence of rigorous imprisonment of five years awarded to each of them are hereby set aside. They are acquitted of the said charge.
The appeal against appellant Tikam stands abated.
Appellant Baldeo is in custody. He shall be released forthwith if not wanted in any other case.
Let this judgement be cited to the learned lower court within a weak for compliance and compliance report be submitted within one month.
Dt. July 2007.
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