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2017 DIGILAW 1610 (ALL)

Ramesh v. State of U. P.

2017-07-05

PRASHANT KUMAR

body2017
JUDGMENT Prashant Kumar, J. 1. This appeal has been jointly filed by the appellant No. 1, Ramesh, appellant No. 2, Jagdish (since dead) and appellant No. 3, Shiv Shankar, against the judgment of conviction dated 22.08.1996 and order of sentence dated 23.08.1996 passed by IIIrd Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No. 483 of 1992, whereby and whereunder appellant No. 1 had been convicted under Sections 307 & 323/34 of the I.P.C. whereas, appellant No. 2 convicted under Section 323 & 307/34 of the I.P.C. and appellant No. 3 convicted under Section 323/34 & 307/34 of the I.P.C. It appears that thereafter appellant No. 1 was sentenced to undergo rigorous imprisonment for seven years and directed to pay fine of Rs. 3000/- for the offence under Section 307 of the I.P.C. and on default he was directed to undergo rigorous imprisonment for six months. It further appears that appellant No. 1 was sentenced to undergo rigorous imprisonment for one month for the offence under Section 323/34 of the I.P.C. It then appears that appellant No. 3, Shiv Shankar was sentenced to undergo rigorous imprisonment for three months under Section 323 of the I.P.C. and he was sentenced to undergo rigorous imprisonment for three years for the offence under Section 307/34 of the I.P.C. and directed to pay fine of Rs. 1000/- and on default he was directed to undergo rigorous imprisonment for two months. Appellant No. 2, Jagdish was sentenced to undergo rigorous imprisonment for three years for the offence under section 307/34 of the I.P.C. and directed to pay fine of Rs. 1000/- and on default was directed to undergo rigorous imprisonment for two months. He was further sentenced to undergo rigorous imprisonment for one month for the offence under Section 323/34 of the I.P.C. 2. The case of the prosecution in short is that in the night of 25.06.1992 in between 12: 00 to 1 o’clock, the informant (PW-1) his brother, namely, Khushiram (PW-2) and his mother, Laxmi (PW-3) were sleeping in the Aangan on different cots. At that time appellants alongwith one unknown person entered in the Aangan of informant. Appellant No. 1 was armed with gun, whereas, appellant Nos. 2 & 3 were armed with Lathi. At that time appellants alongwith one unknown person entered in the Aangan of informant. Appellant No. 1 was armed with gun, whereas, appellant Nos. 2 & 3 were armed with Lathi. It is alleged that appellant No. 3, Shiv Shankar and unknown person caught hold informant’s brother, namely, Khushiram and then appellant No. 1, Ramesh fired on him, due to that Khushiram received injuries on his left abdomen and fell down. It is then alleged that Khushiram caught hold Ramesh, thereafter, appellant No. 3, Shiv Shankar twice assaulted him with lathi which caused injuries on his head and left thigh. It is alleged that when informant’s mother came in rescue of Khushiram, she was also assaulted by legs and fists and her neck was also pressed. It is also alleged that thereafter accused persons fled away after giving threatening to the informant. 3. On the basis of aforesaid allegation police registered a First Information Report vide case crime No. 89 of 1992 under Section 307 of the I.P.C. and took up investigation. It appears that after investigation chargesheet submitted against the appellants under Sections 323, 307/34 of the I.P.C.. It appears that the cognizance was taken and ultimately case committed to the court of sessions as the offence under section 307 of the I.P.C. is exclusively triable by a court of session. It appears that that the learned sessions judge framed charges against the appellants under Section 307/34 of the I.P.C. and also under Section 323/34 of the I.P.C.. Appellant-Ramesh was also charged exclusively under Section 307 of the I.P.C., whereas, appellant No. 3, Shiv Shankar was also exclusively charged under Section 323 of the I.P.C. Thereafter, the above charges read over and explained to the appellants in Hindi to which they pleaded not guilty and claimed to be tried. Then the prosecution examined altogether five witnesses in support of its case. After close of the case of prosecution, appellants were examined under Section 313 of the Cr.P.C., in which their defence is of total denial and false implication due to previous enmity. Thereafter, by the impugned judgment the appellants were convicted and sentenced, as stated above, against that the present appeal filed. 4. At the outset, it is stated that during the pendency of this appeal, appellant No. 2, namely, Jagdish died in the year 2012, thus, the appeal filed on his behalf, has been abated. Thereafter, by the impugned judgment the appellants were convicted and sentenced, as stated above, against that the present appeal filed. 4. At the outset, it is stated that during the pendency of this appeal, appellant No. 2, namely, Jagdish died in the year 2012, thus, the appeal filed on his behalf, has been abated. Therefore, at present, this appeal remain alive only with respect to appellant No. 1, Ramesh & appellant No. 3, Shiv Shankar. 5. By assailing the impugned judgment of conviction and order of sentence, learned counsel for the appellants submitted that admittedly, parties have inimical relation with each other, therefore only on the basis of evidences of PW-1, PW-2 & PW-3, who are highly interested in the prosecution, the conviction of the appellants cannot be sustained. It is submitted that PW-1 has stated that after entering in the Aangan, appellant No. 3 (Shiv Shankar) and unknown person caught hold Khushiram, whereas, PW-2 (Khushiram), who is injured of this case, has stated that Jagdish and Shiv Shankar caught hold him. PW-3, who is the mother of PW-1 & PW-2 had stated that only Jagdish caught hold his son Khushiram. It is further submitted that PW-1 & PW-2 had stated that Shiv Shankar had inflicted two lathi blow on Khushiram, whereas, PW-3 had stated that Jagdish had assaulted Khushiram with lathi, whereas, Shiv Shankar had assaulted her (PW-3). It is further submitted that as per the version of PW-1 & PW-2, Khushiram had received only one lathi blow on his head whereas, the doctor (PW-5) had stated that he found altogether four injuries on the person Khushiram, out of which injuries No. 1, 2 & 3 are on his head caused by lathi. It is submitted that how Khushiram received other two injuries on his head, is a mystery. This shows that the witnesses are suppressing part of the occurrence. It is submitted that the aforesaid contradictions in the manner of occurrence, creates a serious doubt on the case of prosecution. It is submitted that since the parties have inimical relation from before, therefore, on the basis of aforesaid contradictory evidences the conviction and sentence of the appellants cannot be sustained. 6. It is submitted that the aforesaid contradictions in the manner of occurrence, creates a serious doubt on the case of prosecution. It is submitted that since the parties have inimical relation from before, therefore, on the basis of aforesaid contradictory evidences the conviction and sentence of the appellants cannot be sustained. 6. On the other hand, learned Additional Government Advocate submits that all the prosecution witnesses consistently stated that appellant No. 1 had fired on Khushiram, whereas, Shiv Shankar assaulted him with lathi, thus, the learned court below rightly convicted and sentenced both the appellants. Therefore, no interference require with the impugned judgment of conviction and order of sentence. 7. Having heard the submission, I have gone through the record of the case. It is admitted position that there was a land dispute in between the families of appellant No. 1 and informant. It is also not out of place to mention that the witnesses of fact i.e. PW-1, PW-2 & PW-3 are closely related to each other. PW-1, Tulsiram is the informant of this case, whereas, PW-2, Khushiram (injured) is his real brother and PW-3 is the mother of PW-1 & PW-2. 8. Under said circumstance, all the above three witnesses are highly interested in the case of prosecution. Thus, in view of the enmity between the parties, the evidences of the aforesaid three witnesses required to be scrutinized cautiously. 9. PW-1, informant had stated that the appellants alongwith Jagdish and one unknown had entered in his aangan at about 12: 00 o’clock in the night. He then deposed that thereafter Shiv Shankar and unknown person caught hold his brother and then Ramesh fired on him. Whereas, PW-2, who is the injured of this case, had stated that Jagdish and Shiv Shankar caught hold him and then Ramesh fired on him. PW-3 (mother of PW-1 & PW-2) had narrated a different story and stated that her son Khushiram was caught hold by Jagdish and then Ramesh fired on him. Not only this, PW-1 & PW-2 had stated that Shiv Shankar had twice assaulted Khushiram with lathi, which cause injury on his head and left thigh, whereas, PW-3 has stated that Jagdish had assaulted Khushiram with lathi. In this respect, it is also worth mentioning that doctor, who examined PW-2 had found altogether four injuries on the person Khushiram. Not only this, PW-1 & PW-2 had stated that Shiv Shankar had twice assaulted Khushiram with lathi, which cause injury on his head and left thigh, whereas, PW-3 has stated that Jagdish had assaulted Khushiram with lathi. In this respect, it is also worth mentioning that doctor, who examined PW-2 had found altogether four injuries on the person Khushiram. Out of said injuries, injury No. 1, 2 & 3 were caused by hard and blunt substance and the aforesaid three injuries are on the head of Khushiram. Thus, doctor also contradicts the statement of PW-1 & PW-2 that Shiv Shankar caused one injury on the head of Khushiram. It is also not out of place to mention that the doctor had not found any injury on the left thigh of PW-2. PW-1, PW-2 & PW-3 in their examination-in-chief had stated that PW-3 had also received injuries during the occurrence, but the said statement was contradicted by PW-1 himself, who, in his cross-examination at paragraph- 5, had stated that neither he nor his mother had received any injury. 10. Thus, on careful scrutinizing of the evidence available on record, I find material contradiction in the evidences of PW-1, PW-2 & PW-3 with respect to the manner of occurrence. In view of the fact that both the parties have enmity from before, I find that the aforesaid contradiction becomes vital and creates serious doubt on the truthfulness of the aforesaid witnesses of fact. Thus, on the basis of sole evidences of PW-1, PW-2 & PW-3, it is not safe to convict the appellants without seeking corroboration from independent sources. As noticed above the doctor also contradicts the version of PW-1, PW-2 & PW-3. Thus, I am of the view that the prosecution had not proved the charges levelled against the appellants beyond the shadow of all reasonable doubt. Therefore, I find that the impugned judgment of conviction and order of sentence suffers from material irregularities, thus cannot be sustained in this appeal. 11. In the result, the present appeal succeed and is accordingly allowed. The impugned judgment of conviction and order of sentence passed by the learned court below is hereby set-aside. Both the appellants are acquitted from the charges levelled against them. It appears that both the appellants, namely, Ramesh and Shiv Shankar are in custody, thus, they are directed to be released forthwith, if not wanted in any other case.