KALYAN KALKA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) Appellant Kalyan Kalka Prasad was convicted under Sections 148, 323/49, 452 and 366/149, I.P.C. and sentenced to suffer R.I. for a period of two years, one year, one year and four years respectively.

(2.) The prosecution case is that the appellant used to visit the house of the complainant. One Ram Niwas a Kinsman of accused took responsibility for the delivery of 10 mounds of Laha and two bullocks to the accused by the complainant. When the complainant went to take re-delivery of the bullocks and price of the Laha he came to know that the said Ram Niwas settled the marriage of Smt. Munni sister of the complainant with the younger brother of the accused without any knowledge to the complainant. When the complainant expressed that he was not aware of any marriage negotiation with his sister, thereupon the accused refused to give him the price of Laha and delivery of bullocks. The marriage of Smt. Munni was settled with the son of Hoob Lal and it was solemnised on 3.4.1978. On the next day in between the night of 4/Sth day of April, 1978 at about 11 p.m. accused-appellant alongwith some other persons being armed with catta, gun, sword etc., entered into the house of the complainant and asked them to keep silent otherwise they would kill him. Accused Kalka caught hold the hand of Smt. Munni while Ram Babu and Ram Niwas (not in trial) pushed her from back. The complainant resisted when Ram Niwas hit with sword. Kalka accused fired from his gun. Alarm raised by the complainant attracted some of the villagers there. Witness Baboo Lal Pradhan opened fire towards the miscreants to terrorise them. By this time the miscreants also assaulted Ganga Devi, mother of the complainant, Smt. Mithlesh, Bhabhi of the complainant and grand father Liladhar. Witness Shobha Ram also received injuries. The villagers succeeded in rescuing Smt. Munni from the custody of the accused Kalka but Smt. Munni suffered injuries on her person. They identified the accused person in the torch light. A report was lodged and a case started and after investigation charge-sheet was submitted and accordingly charge was framed. During evidence Din Dayal PW 1 the complainant narrated the story as depicted in the First Information Report. PW 2 is the Medical Officer who examined the injuries of Smt. Ganga Devi, Smt. Mithlesh, Liladhar, Shobha Ram and Smt. Munni, who suffered lacerated/contusions with swelling in different parts of the body. All the injuries were fresh, simple and caused by blunt weapon. The learned Sessions Judge convicted the accused appellant in the aforesaid manner, the accused continued to remain in jail custody from the date of his arrest so remanded to serve out the jail sentence.

(3.) It appear from the injury report that none of the persons received gun shot injuries. The fire was made to terrorise the witnesses. Their sole purpose was not to inflict injuries more than that was necessary but it was to abduct Smt Munni due to vengeance by not allowing Smt. Munni to get married with the brother of the accused-appellant. It is not known whether the purpose was immoral. The learned Sessions Judge convicted the accused appellant Kalka under Section 366, I.P.C. But from the evidence it appears that attempt was made but she could not be abducted. So it was not proper to convict the accused-appellant under Section 366, I.P.C. rather it appears that the prosecution was able to establish a case under Section 366/5 11, I.P.C.