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2011 DIGILAW 2834 (ALL)

YOGENDRA v. STATE OF U. P.

2011-12-14

VINOD PRASAD

body2011
JUDGMENT Hon’ble Vinod Prasad, J.—Sole appellant Yogendra was convicted by IIND Additional Session’s Judge, Muzaffarnagar, for offences under Section 412 I.P.C. and 25 Arm’s Act in S.T. No. 356 of 1976, State v. Bal Ram Singh and others, but instead of sentencing him with substantive sentence of imprisonment or fine, for both the offences, he was released on probation of good conduct under The Probation of Offender Act 1958, for a period of two years, on his furnishing a personal bond of Rs. 1000/- with two sureties each for the like amount to the satisfaction of trial judge concerned, with further direction that whenever he will be called upon, during a period of two years, to serve out the sentence, he will appear. During this period appellant was to maintain peace and good behavior. It is this conviction and sentence which is under challenge in the instant appeal. 2. According to prosecution allegations leveled against the appellant, it was alleged that Dalel Singh, an advocate of District Court, Bijnor, P.W.3, was a co-villager as that of accused Balram Singh, Chander Pal, Virendra and Rajendra Singh. On the date of the incident, 23.8.1976 at about 7.30 or 8 a.m., Dalel Singh, PW3, and Budh Singh were going to attend the Court on a cycle and when both of them reached near the main road in front of an electric transformer, then all of a sudden accused Balram Singh, Rajendra, Chander Pal, Ramesh and Virendra blocked their way. Balram Singh assaulted P.W.3 with lathi and to ward of the assault P.W.3, whisked out his licensed pistol but Rajendra and Chandra Pal both snatched it with it’s bandolier with five live cartridges. Balram Singh, thereafter, gave another lathi blow to P.W.3, who sustained a finger fracture. On shrikes by PW3, Babu Singh, Nobhar, Kripal Singh and other persons rushed to the scene of the incident and had witnessed the incident. While Rajrendra escaped from the spot alongwith pistol, rest of the assailants entered into their adjacent pens(Gher).Chandra Pal has the bandolier and the cartridges. Dalel Singh initially searched for Rajendra, failing which he got FIR Ext. Ka3, scribed by Nobhahar and the same was lodged at police station Chandpur. P.W.4 Uma Shanker registered the FIR, prepared chik F.I.R. Ext. K.19 and G.D.entry Ex.Ka.20. Medical examination of injured was conducted byDr. Dalel Singh initially searched for Rajendra, failing which he got FIR Ext. Ka3, scribed by Nobhahar and the same was lodged at police station Chandpur. P.W.4 Uma Shanker registered the FIR, prepared chik F.I.R. Ext. K.19 and G.D.entry Ex.Ka.20. Medical examination of injured was conducted byDr. B.R. Horra, Medical Officer Officer, Civil Hospital, Chandpur, District Bijnor, P.W.1, same day at 8.15 p.m. vide Ext.Ka.1. Doctor had noticed following injuries on the body of the injured : 1. Contused wound in between web of right and middle finger 8/10" x skin deep clotted blood was present. 2. Diffused swelling ¾’ x 2/10" on the elorsum of middle phalanx of right indel finger, There was deformity. X-ray was advised. Above injuries could have been caused by lathi and could have been inflicted at or about the time of the incident and were half a day old. Dr. N.N. Pandey,P.W.2 had X-rayed the injured vide X-ray plate Ext.1 and X-ray report Ext. Ka.2,according to which injury No. 2 of the injured was grievous in nature as inter phalangeal joint of distal phalanx of right index finger had dislocated. 3. S.I. Ramvir Singh, P.W.9 and V.K. Chandra, PW10 both the investigated the crime and it was PW10 who had submitted charge-sheet against the accused. 4. Accused persons were summoned and were charged for offences under Sections 147, 395, 325/149 I.P.C. Appellant was additionally charged under Section 25 Arm’s Act, on the basis of charge-sheet submitted against him by P.W.10 vide Ext. Ka.12. Accused denied the charges and claimed to be tried. During trial, prosecution examined informant injured Dalel Singh (PW3), Budh Singh (P.W. 4), Babu Singh (P.W.5), and Nobahar (P.W. 6) as fact witnesses. Dr. B.R. Horra P.W. 1, Dr. N.N. Pandey P.W.2, Lallu Singh P.W.7, Suraj Singh P.W. 8, Ramvir Singh I.O. P.W. 9, V.K. Chandra S.I. P.W. 10 and Head Constable Uma Shanker P.W. 11 were the formal witnesses. 5. In their statements under Section 313 Cr.P.C. all the accused persons denied incriminating circumstances put to them and pleaded of their false implication. B.R. Horra P.W. 1, Dr. N.N. Pandey P.W.2, Lallu Singh P.W.7, Suraj Singh P.W. 8, Ramvir Singh I.O. P.W. 9, V.K. Chandra S.I. P.W. 10 and Head Constable Uma Shanker P.W. 11 were the formal witnesses. 5. In their statements under Section 313 Cr.P.C. all the accused persons denied incriminating circumstances put to them and pleaded of their false implication. Vide impugned judgment and order, trial judge found case of the prosecution disproved against Balram, Ramesh Singh, Chander Pal, Yogendra and Virendra for offences under Sections 147, 395 and 325/149 I.P.C. and therefore, acquitted them of all those charges, it however, concluded that appellant Yogendra was guilty under Sections 412 I.P.C. and 25 Arms Act and therefore convicted him for those offences but instead of sentencing him as is already mentioned herein above, released him on probation of good conduct for two years on his furnishing of personal bonds of Rs. 1000/- with two sureties each to his satisfaction. It is this conviction and sentence which is under challenge instant appeal. 6. Appeal was called out for hearing after a gap of three decades but nobody appeared to press this appeal and hence Shri Raghuraj Kishore, advocate, was appointed as amicus curiae to assist the Court. I have heard learned amicus curiae and learned A.G.A. Sri Patanjali Mishra for the State for and against this appeal. Amicus Curie as well as learned AGA Sri Patanjali Mihsra at the very out set submitted that in this appeal, there is a report that the trial Court record has been weeded out and reconstruction of the same is impossible and therefore, appeal cannot be heard on merits. In this respect, learned Amicus curiae invited my attention to a report submitted by the then District Judge, Muzaffarnagar dated 19.11.1993. He further pointed out to a report regarding reconstruction of the record submitted by IVth Additional Session’s Judge, Muzaffarnagar. Learned counsel further referred to a report dated 27.1.1993 by Session’s Judge, Muzaffarnagar as well as report dated 23.1.1993 by Incharge Record Room Officer,Vth Additional Sessions Judge, Muzaffarnagar. 7. In view of aforesaid, it was submitted that hearing of the appeal on merits is not possible. Otherwise also appellant was released on probation of good conduct for two years way back in 1980, more than three decades ago and therefore, for all the practical purposes, this appeal has lost it’s efficacy. 7. In view of aforesaid, it was submitted that hearing of the appeal on merits is not possible. Otherwise also appellant was released on probation of good conduct for two years way back in 1980, more than three decades ago and therefore, for all the practical purposes, this appeal has lost it’s efficacy. Learned A.G.A. could not dispute either of two contentions. 8. In view of above, since reconstruction of the record is not possible, applying the decision of the Apex Court in State of U.P. v. Abhai Raj Singh, AIR 2004 SC 3235 , there is no option left for this Court but to allow the appeal especially in view of above. This appeal is allowed. Appellant is acquitted of both the charges. He is on bail, he need not surrender, his bail bonds and surety bonds are discharged. Let copy of the judgement be certified to the trial Court for it’s intimation. ——————