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2012 DIGILAW 2865 (ALL)

KRISHNA v. STATE OF U. P.

2012-12-11

RAMESH SINHA

body2012
Heard Sri R.K. Tripathi, learned counsel for the appellant, learned AGA and perused the record. This appeal has been filed against the judgment and order dated 12.4.1984 passed by Additional District and Sessions Judge, Kanpur in Sessions Trial No.518 of 1982 convicting the appellants under Section 148 , 324 read with Section 149 IPC and appellant Shri Kishan and Kamlesh convicting u/s 147 read with Section 149 IPC and sentencing to appellant no.3 Brijesh and appellant no.4 Awadesh to undergo rigorous imprisonment for six months for offence punishable u/s 148 IPC. They are further sentenced to undergo rigorous imprisonment for one year for the offence punishable u/s 324 read with Section 149 IPC. Accused Sri Krishna and Kamlesh each is sentenced to undergo three months rigorous imprisonment for offence u/s 147 IPC and further sentenced to undergo R.I for one year u/s 324 read with Section 149 IPC. All the sentences of all the accused shall run concurrently. The prosecution case in brief is that complainant Ram Asrey and all the accused are neighbourers and are residents of Nawabganj, P.S. Nawabganj. The incident took place on 5.4.1981 at about 6.15 p.m. Ram Asrey complainant along with his son was going to vegetable market to purchase vegetables. When he reached near the house of Chunni Lal in Sunhari Gali, all the accused persons and Manoj met him. Manoj and accused Suresh were having country-made pistols, while accused Awdesh and Brijesh were having knives and the remaining two accused were having lathis. They all surrounded Ram Asrey and asked him as to why he interfered with in their dispute with one Kali Nigam yeterday. At this Ram Asrey replied that he will not permit them to do Gundagardi in the mohalla. All the accused persons got enraged and exhorted to murder Ram Asrey. In the meantime Munna Lal, Prem Narain, P.W.3 and P.W.4 and others also reached there. Manoj who is absconding, fired a shot by his pistol towards Ram Asrey which injured him. Therefore, all the accused persons ran away towards vegetable market. After the incident, Ram Asrey got written FIR, Ex. Ka.2 of this incident from Puttan Lal and went to Police Station Nawabganj. He got it there. Chik Report Ex. Ka.3 was prepared by Sri Krishna Mohan Sharma, Head Moharir on 5.4.1981 at 7.05 p.m. He registered the case on the G.D. Ex. After the incident, Ram Asrey got written FIR, Ex. Ka.2 of this incident from Puttan Lal and went to Police Station Nawabganj. He got it there. Chik Report Ex. Ka.3 was prepared by Sri Krishna Mohan Sharma, Head Moharir on 5.4.1981 at 7.05 p.m. He registered the case on the G.D. Ex. Ka.4 immediately and Ram Asrey was sent for medical examination. The investigation of the case was taken up by Sri Ram Behari Yadav, S.I. P.W.5. He on that very day recorded statements of Prem Narain, Munna Lal witnesses. On 6.4.1981, he recorded statements of Ram Asrey, complainant and other witnesses. On that very day, he inspected the spot and prepared site plan Ext. Ka.5. He also took blood stained clothes of the injured and put them in sealed cover vide memo Ext. Ka.6. These clothes are baniyan Ext. 1 and Kurta Ext.2. After completing the investigation, he submitted charge shet Ext. Ka.7 against the accused. The medical examination of Ram Asrey, complainant was done by Dr. G.B. Saxena, P.W.1, Medical Officer L.L.R. Hospital, Kanpur on 5.4.1981 at 7.50 p.m. and he prepared injury report Ext. Ka.1 and found the following injury. 1.Fire-arm wound 2 m. x 2 cm. on the right supera curicular region 4 cm. below right collar bone. Blackening was present around the brow. Bleeding present. Probing could not be done. 2.Injury was kept under observation and X-Ray was advised. It was caused by fire arm and was fresh. The prosecution in respect to this case has examined five prosecution witnesses, P.W.1. Sri G.B. Saxena was examined as Medical Officer, L.L.R. Hospital, Kanpur, P.W.2 Sri Ram Asrey complainant/injured and P.W.3 Munna Lal and P.W.4 Prem Narayan, the two eye-witnesses of the incident and P.W.5 Ram Bihari Yadav Sub-Inspector who was the Investigating Officer of the case. Accused persons have pleaded not guilty and stated that they have been falsely implicated in the case due to enmity. Accused Shiv Kishan has stated he was selling milk and used to supply milk to Ram Asrey, complainant and therefore, he was falsely implicated. However, accused Suresh has not denied the guilt. He stated that there was no dispute between him and one Kali Nigam, there was dispute with the complainant. Accused Shiv Kishan has stated he was selling milk and used to supply milk to Ram Asrey, complainant and therefore, he was falsely implicated. However, accused Suresh has not denied the guilt. He stated that there was no dispute between him and one Kali Nigam, there was dispute with the complainant. He further stated that he was armed with a country-made pistol but stated that a shot was fired by the complainant Ram Asrey himself as Ram Asrey is the person of bad character. He also stated that Manoj fired a shot with country made pistol. It has been argued on behalf of the appellants that out of the six accused persons, two accused namely Manoj and Suresh are said to have fired at the injured Ram Asrey and the appellants Shri Krishna and Kamlesh were armed with lathis whereas Awadesh and Brijesh were armed with knifes and as per the statement of P.W.2 Ram Asrey injured and P.W.3 Munna Lal, it was the shot of accused Manoj which hit the injured and accused Manoj after the incident had absconded hence was not put to trial. So far as accused Suresh is concerned, he was convicted by the trial court for the offences charged and he served out the sentence as awarded by the trial court and did not file any appeal before this Court against his conviction and sentence. The present appellants i.e. Shri Krishna, Kamlesh, Brijesh and Awadesh who are said to have armed with lathis and knifes, though as per the evidence of P.W.2 are said to have participated in the incident but no overt act was assigned to them as per the evidence of the prosecution witnesses including the evidence of P.W.2 Ram Asrey hence their participation in the incident appears to be doubtful as the prosecution has failed to establish beyond reasonable doubt their participation in the incident along with co-accused Manoj and Suresh. It is further submitted that the co-accused Manoj who is said to have fired at the injured with country-made pistol whose shot also hit the injured as is evident from the statement of P.W.2 Ram Asrey has absconded and was also not arrested by the Police and produced for trial. It is further submitted that the co-accused Manoj who is said to have fired at the injured with country-made pistol whose shot also hit the injured as is evident from the statement of P.W.2 Ram Asrey has absconded and was also not arrested by the Police and produced for trial. The FIR of the incident though is said to have lodged by P.W.2 Ram Asrey who is the complainant as well as the injured of the present case at 7.05 p.m. at the concerned police station, appears to be also doubtful as P.W.4 Prem Narayan the eye-witness has given a contradictory version in his statement before the trial court that when the incident had taken place, the injured Ram Asrey had fallen down and remained lying on the ground for 10-20 minutes and thereafter he was taken to his house. It was also stated that the Investigating Officer prepared some memo on the dictation of the wife of Ram Asrey as Ram Asrey was unconscious. Later on the said witness has stated that Puttan wrote what the wife of Ram Asrey told him and then the Ram Asrey injured was taken from his house to the hospital. Under these circumstances, it was argued that the participation of the appellants in the present case appears to be suspicious and they were roped in the present case only on account of the fact they were the neighbourers of the complainant. Moreover it was argued that that Kali Nigam with whom earlier there was a quarrel with the accused. Manoj in which the complainant/injured Ram Asrey had intervened between the two parties no FIR of the said incident was lodged by Kali Nigam against the accused persons nor any complaint was made by him. It was further argued that Kali Nigam was also not produced by the prosecution before the trial court with respect to the motive for which the present incident taken place. Munna Lal, P.W.3 also turned hostile and denied that the appellants had participated in the said incident. The trial court without there being any sufficient evidence against the appellants have convicted and sentenced the appellants taken into account that they were members of unlawful assembly along with co-accused Manoj and Suresh who had fired at the injured with country-made pistol due to which, the injured received one fire-arm injury on his person. The trial court without there being any sufficient evidence against the appellants have convicted and sentenced the appellants taken into account that they were members of unlawful assembly along with co-accused Manoj and Suresh who had fired at the injured with country-made pistol due to which, the injured received one fire-arm injury on his person. Learned AGA on the other hand submitted that from the evidence of P.W.2 and P.W.4, it is established that the appellants have also participated in the incident and hence the trial court has rightly convicted them and sentenced them for the offences charged with. Hence no interference is called for by this Court in the judgment and order passed by the trial court. Considered the submissions advanced by learned counsel for the parties. From the perusal of the record, it is evident that admittedly P.W.2 Ram Asrey, injured and the other prosecution witnesses have specifically stated that the co-accused Manoj and Suresh had fired at the injured Ram Asrey with country-made pistol and it was the shot of co-accused Manoj which hit the injured and he received one fire-arm injury on his person. So far as the participation of the appellants are concerned, though it has been stated that they were armed with lathis and knives but no injuries of the said weapons were found on the person of the injured Ram Asrey which is evident from his medical examination report and only a vague averment that they participated in the incident with other co-accused persons who were armed with fire-arm weapons raises doubt about their participation in the incident without there being further evidence on record regarding their involvement in the incident. The finding recorded by the trial court that the co-accused were having knives and lathis but did not use them were sufficient enough for the conviction as they had participated in the incident being member of unlawful assembly in furtherance of common object of co-accused Manoj and Suresh who fired at the injured Ram Asrey makes them also liable for conviction for the offence u/s 149 read with Section 324 IPC appears to be not sustainable as it is against the evidence on record. Moreover, the statement of other prosecution witnesses which also creates doubt about the participation of the appellants in the present case shows that the prosecution has failed to prove it's case beyond reasonable doubt against the appellants. Moreover, the statement of other prosecution witnesses which also creates doubt about the participation of the appellants in the present case shows that the prosecution has failed to prove it's case beyond reasonable doubt against the appellants. Hence the participation of the appellants in the present case appears to be doubtful. Hence they are given benefit of doubt. Thus the conviction and sentence of the appellants by the judgment and order passed by the trial court are hereby set-aside. The appellants are on bail. They need not surrender, their bail bonds and sureties stands discharged. The appeal is allowed.