Dismissed

Deo Nath Yadav and Others v. State of U.P.

Allahabad HC2 Sept 2019CRLA/1009/1986

Case brief

AI extract

What is this about?

The Supreme Court dismissed a criminal appeal against a conviction for murder and attempted murder. The Court upheld the trial court's finding that the prosecution successfully proved the killing was not an exercise of private defence. Rejection of claims regarding injuries on the accused.

What did the court decide?

The criminal appeal was dismissed. The appellants were directed to be taken into custody forthwith to serve the remaining sentence.

Deo Nath Yadav and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2019)

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(Judgement reserved on 7.8.2019) (Judgement delivered on 2.9.2019)

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Court No. - 43

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Case :- CRIMINAL APPEAL No. - 1009 of 1986

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Appellant :- Deo Nath Yadav And Others Respondent :- State Of U.P. Counsel for Appellant :- Krishan Ji Khare Counsel for Respondent :- A.G.A.

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Hon'ble Pankaj Naqvi,J. Hon'ble Suresh Kumar Gupta,J.

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(Delivered by Hon.Pankaj Naqvi,J)

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This criminal appeal is preferred against the judgment and order dated 17.3.1986 by the 1^st Additional Sessions Judge, Ghazipur in S.T. No.204 of 1984 convicting the appellants under Section 302/149 IPC and 307/149 IPC to life, under section 148 IPC to four years RI. All the sentences to run concurrently.

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The case of prosecution unfolds as under:A) Accused-appellant no.2 Sudarshan @ Mallu 6-7 months prior to the occurrence borrowed Rs.5 from the informant/P.W-1. P.W-1 made several demands for the return of the amount but the said accused kept on postponing the repayment on one pretext or the other.

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B) On 4.6.1984 at around noon while accused Sudarshan @ Mallu, Ram Balak, Ujigar and Munna were playing in the garden of one Ram Bachan Yadav, P.W-1 again demanded Rs.5 from Sudarshan @ Mallu but instead of returning the amount he started hurling abuses and also indulged in a scuffle.

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C) P.W-1 shared the details of the aforesaid incident with his brother Ramjee (deceased). P.W-1 alongwith the deceased went to the house of Sudarshan @ Mallu at around 5 same evening. The duo came across accused Deonath at the doors with whom they shared the details relating to the demand for return of the borrowed amount and the scuffle that ensued. Accused Deonath took an offence and while taunting at the duo about their money exhorted his son Sudarshan @ Mallu, Musafir, Ujagir, Ram Balak and Munna, already present in his house that they be eliminated.

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D) Accused Musafir armed with ballam and the others with lathi assaulted the deceased with their respective

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weapons, the deceased fell down infront of the platform abutting the house of one Govardhan but the assault continued. Surendra and Mangala of the same village arrived after hearing cries for help along with others who dissuaded the accused persons to spare the deceased. Accused Musafir, Ujagir and Ram Balak made an attempt to assault P.W-1 who ran for his life towards Harijan Toli but was eventually nabbed by the accused who again assaulted him with ballam and lathis, but with the arrival of co-villagers, the accused fled.

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E) P.W-1 came back to the scene to rescue his brother whose condition was critical and with the help of covillagers he was rushed to the Government Hospital, Reotipur but succumbed to the injuries enroute. P.W-1 alleged that he was getting himself treated in respect of his injuries.

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F) P.W-1 on above allegations got a written report (Ex. Ka-1) scribed by one Santosh Kumar Rai and sent it to the police station concerned which became the basis for registering an F.I.R (Ex. Ka-3) as Case Crime no.68 of

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1984 under sections 147,148,149,307 and 302 IPC at 8.15 P.M same day, against above named 6 accused persons.

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The prosecution examined P.W-1 and 2 as eyewitnesses, rest was formal.

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The accused alleged that it was the deceased armed with ballam and P.W-1 with lathi came at their doors and assaulted them wherein they exercised their right of private defence and in support thereof examined D.W-1/the doctor who examined the injuries of accused Sudarshan @ Mallu.

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The trial court while granting benefit of doubt to accused Ram Balak and Munna as they were not identified by P.W-2, convicted/sentenced the appellants as above.

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During the pendency of appeal with the death of appellant no.1/Deonath Yadav his appeal stood abated.

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We have heard Shri Mrityunjay Khare holding brief of Shri Krishna Ji Khare for appellants nos. 2,3 and 4 and Shri A.N.Mulla, the learned A.G.A for the State.

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Learned counsel for the appellants submitted that as the prosecution failed to prove the injuries of accused Sudarshan @ Mallu, the prosecution is not coming with true and correct version rather is guilty of suppressing material fact as regards the author of injuries caused to accused Sudarshan @ Mallu which belies the prosecution story. He further submitted that defence had established through D.W-1/the doctor that injuries on accused Sudarshan @ Mallu were caused while P.W-1 and his brother (deceased) came armed at his doors, attacked him and in exercise of right of private defence accused inflicted injuries on the prosecution side.

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The learned A.G.A, opposed the submission.

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P.W-1 alleged that accused Musafir was armed with a

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ballam and rest with lathis, accused Deonath exhorted that Ramjee (deceased) be not spared whereupon Musafir and the remaining accused assaulted the deceased. The deceased with a view to rescue himself ran towards the house of one Govardhan when accused Musafir inflicted a ballam blow on the chest of the deceased who fell down. P.W-1 dissuaded the accused person not to assault the deceased after he fell down and attempted to rescue the victim to be eventually chased by accused Musafir, Ram Balak and Ujagir who nabbed him near the alley abutting the house of Ramnath and assaulted him while Sudarshan @ Mallu and Munna were inflicting lathi blows at the deceased. On cries for help made by P.W-1, Surendra, Mangal, Ram Balak and P.W-2 arrived who warded off the accused.

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The appellants challenged the above sequence of occurrence on the premise that it were the deceased and the informant (PW-1) who came armed with ballam and lathi at the doors of appellant-Sudarshan @ Mallu, started inflicting indiscriminate blows with ballam and lathi at him, who in turn alongwith others exercised his right of private defence by

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assaulting P.W-1 and his brother (deceased). The defence also alleged that the prosecution had deliberately suppresed the injuries on the person of appellant- Sudarshan @ Mallu.

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The defence examined D.W-1, the jail doctor who examined accused Sudarshan @ Mallu on 6.6.1984 at 8.40 AM. He reported the following injuries:-

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(a) Contusion 3 Cm x 1 Cm on the back of left upper arm.

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(b) Abraded contused swelling 4 Cm x 2 Cm on the back of left elbow joint.

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(c) Contusion 1.15 Cm on the outer aspect and upper part of right arm.

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(d) Contusion 3 Cm x 0.5 Cm on the right upper area, 3 Cm below the injury no.3.

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(e) Abraded contused swelling 2.5 Cm x 2 Cm on the back of right elbow joint.

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(f) Contusion 2 Cm x 0.5 Cm on the back and middle of right fore arm.

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During cross-examination D.W-1, the doctor was not ruling out the probability of above injuries having been inflicted on 5.6.1984 at about 4-5 AM while the said accused was on the run. The testimony of D.W-1 as regards the timing of the

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above injuries and the manner in which it appears to have been caused while accused Sudarshan @ Mallu was being chased gets corroborated with P.W-5, the I.O, who was stating that on the wee hours of 5.6.1984, he received an input that 2 of the accused involved in this case are planning to run away from the road leading to Madaura. P.W-5 alongwith other constables soon left for the probable place and caught hold of accused Sudarshan @ Mallu and Munna near a particular culvert, P.W-5 was also stating that in the scuffle Sudarshan @ Mallu sustained injuries. P.W-5 categorically denied the suggestion that injuries on the person of accused Sudarshan @ Mallu were caused at the time of incident as also denied the suggestion that injuries of accused did not arose while he was being chased by the police and the scuffle that ensued.

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Thus the plea of defence that prosecution failed to explain the injuries of defence is liable to be repelled as P.W5, the I.O, established that the alleged injuries on the person of accused Sudarshan @ Mallu were not caused at the time of occurrence, rather next day on 5.6.1984 when accused Sudarshan @ Mallu was chased by him and in the scuffle

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which followed, also gets corroborated with the testimony of D.W-1, the jail doctor. Thus non-disclosure on the part of P.W1 as regards the injuries on the person of accused Sudarshan would not dent the case of prosecution as P.W-1 clearly stated that accused Sudarshan @ Mallu was not inflicted with any injuries at the time of occurrence.

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P.W-1 is an injured witness, brother of the deceased, was medically examined by P.W-6/the doctor on 4.6.1984 at 7 in the evening with the following injuries:-

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1. Incised wound 1” x 1/2” x muscle deep obliquely on the body of left angle of mandible.

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2. Abrasion 1” x 1/2” on right side hand about 3” above the right ear.

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3. Contusion 3” x 1/2” on left back about 3” above the wrist vertically present.

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4. Contusion 4” x 1/2” horizontally on right shoulder blade, 2” below the upper margins of shoulder.

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5. Contusion 2/2” x 1/2” on right arm 2” below the elbow joint.

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The injury report is marked as Ex Ka-17. The doctor was stating that all the above injuries were simple and fresh,

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injury no.1 was caused by a sharp weapon, rest by blunt object, compatible with the use of ballam and lathi. To a specific query from the court P.W-6 was deposing that injury no.1 was an outcome of use of a ballam. He was probablising the timing of the injuries around 5.15 AM, same day, within the permissible margin.

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P.W-4 was the medico at the District Hospital, Ghazipur who on 5.6.1984 at about 8 PM carried out the autopsy (Ex Ka.2) on the body of the deceased brought by 2 named constables. He reported the following ante-mortem injuries:-

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1. Punctured wound 6 cm x 2 cm, 9 cm away from the nipple right at 1'O clock position on the right side chest,.

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2. Incised wound 3cm x 1cm on the back of left forearm about 3cm below the elbow joint.

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3. Incised wound 2cm x ½ cm on the back of left forearm about 1cm below the injury no.2.

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4. Traumatic swelling 6cm x 4cm on the right wrist joint.

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5. Contusion 10 cm x 2cm on the left scapular region.

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6. Contusion 7cm x 2 cm on the back of lower 1/3^rd of left arm.

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7. Contused abrasion 6cm x 2cm on the left thigh 1cm x 1/2cm on the contusion.

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8. Contusion 10cm x 2cm on the back of left knee joint and thigh.

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9. Abrasion 1cm x ½ cm, on the right fore-heat, 3cm above eye brow right.

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10. Abrasion 1cm x ½ cm, 1cm above injury no.9.

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11. Abrasion 3cm x ½cm on the left buttock.

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P.W-4 stated that injury nos. 1,2 and 3 were on account of use of ballam while others due to a lathi. He was also fixing the time of death between 5.30 PM to 6 PM on 4.6.1984.

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P.W-2 turned hostile for accused Ram balak and Munna (the 2 acquitted accused) as he could not identify them but he did support the prosecution in relation to the role and identify of the other accused. It is well settled that the testimony of a hostile witness can be considered along with other evidence to the extent it supports the prosecution. Thus P.W-2 has also established the occurrence as also the identity of assailants.

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We after going through the entire evidence and the arguments advanced, are of the view that prosecution has successfully established it's case beyond a reasonable doubt and the plea of defence that the death and injuries to P.W-1

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were in exercise of their right of private defence is not established. The appeal is bereft of merit and is liable to be dismissed.

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The appeal is dismissed. Appellants are on bail. Their bail bonds are cancelled, they be taken into custody forthwith to serve out the remaining sentence.

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The office is directed to transmit back lower court records with a copy of judgment and order of this Court for immediate compliance under the intimation to this court within 2 months.

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Order Date :- . 2.9.2019 RS

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(Suresh Kumar Gupta,J) (Pankaj Naqvi,J)

Deo Nath Yadav and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

Deo Nath Yadav and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

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