Pyare v. State of U. P — 1991 DIGILAW 1226 (ALL)

JUDGMENT Surya Prasad, J. - This is a criminal appeal against the judgment and order dated 6.9.79 passed by the VI Additional Sessions Judge, Saharanpur in Session Trial No. 354 of 1978 State v. Pyare and others, convicting the appellants under Section 304 (Part First) read with Section 149, I.P.C. and sentencing them to four years rigorous imprisonment each and imposing a fine of Rs. 500/- and in default of payment of fine further sentencing them to three months rigorous imprisonment each and further convicting them under Section 324 read with Section 149, I.P.C. and sentencing them to one year's rigorous imprisonment each there under and also convicting the appellants Kamta and Mahendra under Section 148, I.P.C. and sentencing them to one year's rigorous imprisonment each there under and also convicting the appellants Pyara, Sewa Ram, Prakash, Ram Kishan, Ashok, Shambhu and Manga under Section 147, I.P.C. and sentencing them to one year's rigorous imprisonment each. 2. The facts of the prosecution case as set out in the First Information Report, briefly stated are that on 14.11.77 at about 1.00 p.m. Magru son of Dhummu and Madan son of Magru were going to their filed by their bullock-cart. As soon as they reached the turn of the village Mohar, Pyara, Mahendra, Prakash, Mange Ram, Ashok, Kamta, Ram Kishan, Shambhu and Sewaram, armed with Ballam, Pharsa, Bhala and Lathi, happened to come there, surrounded Madan and Magru and started asking then why they were taking their bullock-cart through their gram field. Magru denied having taken the bullockcart through their gram field. In the mean time Kamta and Mahendra armed with Ballam and Pharsa respectively and the remaining accused armed with lathies, started assaulting them with their respective weapons. Puran, Phulla, Jittoo, Brahma Nand and Rangveer rushed to the place of occurrence and tried to intervene. They were also belaboured by the accused with lathis, Ballam, Pharsa, Axe etc. In the mean time Shambhu son of Ghasi, Phulloo, Phagun, Paltoo and Shamsha reached the place of occurrence and intervened. Magru had received grievous and serious injuries on his head. One Tejpal Singh got the report written by one Kunwar Pal Singh about the incident. The injured were taken to the Police Station Badgaon, District Saharanpur the report was handed over to the Head Moharrir, who on its basis prepared chik report and registered a case against the accused. 3. Magru had received grievous and serious injuries on his head. One Tejpal Singh got the report written by one Kunwar Pal Singh about the incident. The injured were taken to the Police Station Badgaon, District Saharanpur the report was handed over to the Head Moharrir, who on its basis prepared chik report and registered a case against the accused. 3. All the injured were taken by the police to the hospital, Magru succumbed to his injuries on the way. The remaining injured namely Pooran Singh, Raghubir, Madan, Jittu, Brahma Nand and Phulloo were medically examined by Dr. A.P. Gupta, Medical Officer, Primary Health Centre, Manauta. He had found such injuries on their persons as are noted in the injury reports vide Ex. Ka 3 to Ex. Ka B. Dr. D.V. Batra conducted the Post-mortem examination on the dead body of Magru and found such ante-mortem injuries thereon as are noted in the postmortem report EX. Ka. 10. 4. The case wad investigated and after completion of the investigation, charge-sheet was submitted against the accused. 5. The prosecution examined,Madan P.W. 2 and Brahma Nand P.W. 3, who are injured, P.W. 5 as eye witnesses besides certain other persons who are more or less formal ones and relied upon certain documents in support of its case. 6. The accused admitted the Marpeet on the alleged date, time and place. Many others from the side of the accused received injuries. The accused Mahendra has stated that he was not present on the spot and that he has been falsely implicated on account of enmity. Shambhu and Ashok have also stated the same thing. Ram Kishan has stated that he had intervened, but that he is a witness in the cross case and therefore, he has been falsely implicated. It is contended that Shambhu gave a Bhala blow on the chest of Sewa Ram due to which he fell unconscious on the spot. What was done by some of the accused, was done in self defence. 7. Having heard the learned counsel for the parties and having considered the evidence on record, the learned VI Additional Sessions Judge convicted and sentenced the accused-appellants vide his impugned judgment and order referred to above. Aggrieved, they preferred this appeal against the same. 8. Heard the learned counsel for the parties and perused the record. 9. 7. Having heard the learned counsel for the parties and having considered the evidence on record, the learned VI Additional Sessions Judge convicted and sentenced the accused-appellants vide his impugned judgment and order referred to above. Aggrieved, they preferred this appeal against the same. 8. Heard the learned counsel for the parties and perused the record. 9. There are two cross versions in respect of one and the same episode. Certain members of both the parties received injuries in the course of the incident. Magru, who was also injured, succumbed to his injuries subsequently. All these facts do not stand disputed on the basis of the evidence on record. 10. Tejpal P.W. 1 has stated that he got the report Ex. Ka 1 written by Kunwar Pal Singh on the basis of what was told to him by Madan, Raghubir and Puran sons of Magru and Brahma Nand about the incident. In his cross-examination - collapse. The contention of the learned he has stated that they had told him together all about the incident. But this does not appear to be their natural act and conduct. Therefore, his statement to the above effect does not inspire confidence. He has further stated that the injured were not sent to the Police Station until the report had been written in the village. The question which incidently crops up is whether the report was written in the village or at the Police Station itself. The sentence. "Ham In Cot Lage Nyktiyo Ko Buggi Me Delkar Thane Laya Hai", occurring in the report Ex. Ka 1 noes to out that the report was written not in the village, but at the police station itself. Therefore, his statement to the contrary cannot be relied upon. 11. The First Information Report dies not contain anything about the incident which had taken place between Brahma Nand on the one side and Mahendra and others on the other, prior to the present incident. But the eye witnesses Madan P.W. 2 and Brahma Nand P.W. 3 have introduced the previous incident in their statements on oath in the court. However, the First Information Report as it is, can be treated as incomplete. 12. The First Information Report shows that the accused Kamta and Mahendra were armed with Ballam and Pharsa respectively and that the remaining accused-appellants were armed with Lathies. However, the First Information Report as it is, can be treated as incomplete. 12. The First Information Report shows that the accused Kamta and Mahendra were armed with Ballam and Pharsa respectively and that the remaining accused-appellants were armed with Lathies. But Madan P.W. 2 has stated in his examination-in-chef that Pyara, Mahendra, Prakash and Ashok were armed with Pharsa, Ballam, Bhala and Axe and the remaining accused were armed with Lathies. There is nothing in the First Information Report that he (Madan) was holding Panny and that he caused injury on the chest of Sewa Ram with that Panny in his self defence. But he (Madan P.W. 2) has introduced all this in his statement. 13. Therefore, the First Information Report cannot be implicitly relied upon. The First Information Report is the foundation on which the entire edifice of the prosecution case is built. If the foundation is Shakey, the edifice is bound to counsel for the appellants to this effect is perfectly correct. 14. Madan P.W. 2 has stated that he had gone only once with a bundle of sugar-cane through the gram field of Mahendra. The question is why he had done so. There is no reply to this posed question. He has further stated that he had taken the bullock-cart through the field despite the fact that Mahendra and others had raised objection to that effect. Madan P.W. 2 had no right to do so. Mahendra, and others had, on the. other hand, every right to prevent him from taking his bullock-cart , through their field. 15. Brahma Nand P.W. 3 has stated that he did not know the accused by name or by face from before. Therefore, his statement leads no where particularly with regard to the incident of Marpeet and to the mode and manner in which the incident is alleged to have taken place. So is the case with Shamsha P.W.5, who had reached the scene of occurrence when the members of one party were beating those of the other party were saving themselves. He has stated that none had assaulted the accused before him. In view of all this, the very presence of his on the spot appears to be doubtful. 16. Madan P.W. 2 has stated that he had caused injury on the chest of Sewa Ram in self defence. But there is nothing as such in the First Information Report. He has stated that none had assaulted the accused before him. In view of all this, the very presence of his on the spot appears to be doubtful. 16. Madan P.W. 2 has stated that he had caused injury on the chest of Sewa Ram in self defence. But there is nothing as such in the First Information Report. Had there been even a thing of truth in his statement, the same must have been mentioned in the First Information Report itself. If Madan P.W. 2 can get an incomplete report written, if he can make embellishments and material improvements over what has been written in the First Information Report and if he can act illegally, unlawfully. and unauthorisedly, he can very well. take an after thought plea of his self defence in his statement in the court. His statement, if considered carefully, does not inspire confidence. 17. Taking into consideration all the facts and circumstances of the case and in view of the discussions and observations made above, I arrive at the conclusion that the possibility of the accused having caused injuries to Madan and others following the injury being caused to Sewa Ram on his chest by Madan cannot altogether be ruled out. 18. In the result the appeal is allowed. The impugned judgment and order are set aside. The appellants are acquitted of the charges levelled against them. They are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender.