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2017 DIGILAW 2827 (ALL)

KISHAN v. STATE OF U. P.

2017-12-05

RAJUL BHARGAVA

body2017
JUDGMENT : Hon'ble Rajul Bhargava,J. The instant criminal appeal has been filed against the judgment and order dated 31.3.1983 passed by IV Additional Sessions Judge District Ballia convicted and sentenced the appellants nos.1,2 & 3-Shri Kishan, Mahabir and Shanker (son of Piyari) as follows :- (i) Under Section 148 IPC 15 days rigorous imprisonment, (ii) Under Section 324 IPC 15 days rigorous imprisonment and with a fine of Rs.1000/- each and in default of payment of fine each of them were ordered to undergo rigorous imprisonment for six months. (iii) Under Section 323 IPC read with Section 149 IPC each of them was ordered to pay a fine of Rs.50/- and in-default of payment of fine each of them was ordered to undergo rigorous imprisonment for one week. (iv) Under Section 325/149 IPC to undergo rigorous imprisonment for one month. All the sentences were ordered to run concurrently. 2. The appellants-accused nos.4 to 18 viz. Radha, Shyam Lal, Dashrath, Ramashrya, Sheo Karan, Shiv Bachan, Sobaran, Shanker son of Bhajan, Lallan, Bhagwan, Mangru, Salab, Jawahir, Parma and Pothiraj were also convicted under Sections 147, 323/149, 324/149 and 325/149 IPC but having regard to their age and the antecedents and the circumstances in which the offence was committed, the learned IV Additional Sessions Judge, Ballia released them on probation of good conduct. Instead of sentencing each of the appellants nos. 4 to 18 to any punishment, learned IV Additional Sessions Judge, Ballia, directed them (appellants nos.4 to 18) to be released on their entering into a bond of Rs.500/- with two sureties for keeping peace and being a good behaviour for a period of one year and to appear and receive sentence when called upon during this one year. 3. During the pendency of the appeal it was brought to the notice of the Court that appellant no.13-Bhagwan, appellant no.15-Salab and appellant no.18-Pothiraj have expired and the appeal on their behalf stands abated vide order dated 16.9.2016. 4. Heard Shri Kameshwar Singh, learned counsel for the applicants-appellants, learned A.G.A. for the State and perused the record. 5. At the very outset it is pointed out that though the appeal was not triable by the Court of sessions but since the present case was a cross case of Sessions Trial No.126 of 1082 State Vs. 4. Heard Shri Kameshwar Singh, learned counsel for the applicants-appellants, learned A.G.A. for the State and perused the record. 5. At the very outset it is pointed out that though the appeal was not triable by the Court of sessions but since the present case was a cross case of Sessions Trial No.126 of 1082 State Vs. Arjun and others under Sections 147, 148, 304 & 302 IPC, Police Station Nagra District Ballia the present case was also committed and tried by the same Court along with cross case. 6. Learned counsel for the appellants states that he has no knowledge about fate of the cross case, State Vs. Arjun and others. Accused Arjun in the cross case is the informant. In the present case and other injured of this case were also accused in the cross case. 7. Prosecution case, in brief, is that a first information report was lodged by informant Arjun at Police Station Nagra on 28.9.1981 at 2.25 P.M. regarding the alleged incident which is said to have taken place at 10 A.M. It is averred that on the aforesaid date the informant along with his wife Muneshwari, son Jainath and nephew Hansnath were harvesting the paddy crop in their field, in the meantime the accused named in the first information report i.e. the present appellants arrived at the field armed with Lathi and rest with spear then the accused started beating the complainant and the family members on account of which four persons namely Arjun, Jainath, Muneshwari and Hansnath sustained injuries by sharp edged weapon and injuries by blunt object. The injured was medically examined on the same day from 1 to 2.25 P.M. at P.H.C. Nagra. After investigation, charge sheet was laid against the appellants and accused Shri Kishun, Mahabiran and Shanker were charged for the offence under Section 148, 324, 323/149 and 325/149 IPC. 8. Prosecution has examined nine witnesses in all, out of which P.W.1 Arjun, P.W.3 Hansnath, P.W.4 Dasa, P.W.6 Jainath Chouhan were eye-witnesses out of which Arjun and Hansnath are injured witnesses. Rest of the witnesses are formal in nature. P.W.8 Dr. C. Rai has proved injuries of all the four injured persons. 9. 8. Prosecution has examined nine witnesses in all, out of which P.W.1 Arjun, P.W.3 Hansnath, P.W.4 Dasa, P.W.6 Jainath Chouhan were eye-witnesses out of which Arjun and Hansnath are injured witnesses. Rest of the witnesses are formal in nature. P.W.8 Dr. C. Rai has proved injuries of all the four injured persons. 9. The statements of accused were recorded under Section 313 Cr.P.C. in which they denied the charges and also stated that on the date of incident the informant's side had come to cut their crop and were armed with Lathi and spear etc. and Arjun is stated to have given a spear blow to the father-in-law of accused Shri Kishun received grievous injuries and apprehending danger to their lives and that no further damage is caused to them, they in the exercise of their right of self defence wielded Lathis on account of which some persons on the prosecution side also sustained injuries. 10. Learned counsel for the appellant has assailed the testimony of the witnesses on several material inconsistency which went to the root of the matter on which no reliance can be placed. The main arguments of learned counsel for the appellants is that the finding recorded by the trial Court has failed to perform his legal obligation by not considering the defence version in which one of the person on the defence side lost life on account of spear injury caused to him which was specifically attributed to informant Arjun. The trial Court has not recorded a finding as to which party was aggressor. The trial Court has not considered the defence version at all and had recorded a perverse finding in the judgment, "I see no cause as to how they were engaged in causing so many number of injuries when they themselves did not receive such injuries and only injured of the side of the accused had died." 11. Judgment of the trial court is so scanty and perfunctory, the same does not contain any cogent reasons for discarding the cross case in which one person from the defence side had lost life and whose injury has not even been explained satisfactorily by the prosecution. Judgment of the trial court is so scanty and perfunctory, the same does not contain any cogent reasons for discarding the cross case in which one person from the defence side had lost life and whose injury has not even been explained satisfactorily by the prosecution. He has further recorded a finding not supported by any cogent material while recording that the charges levelled against the accused persons are established beyond reasonable doubt as they caused injury to the other side in a free fight. Hence, they are guilty of the offences charged with. 12. It is well settled that when the trial Court convicts the accused for a free fight, it has to record reasons as to how the presence of the accused is established by some cogent material and evidence. 13. In my opinion, it is merely an ipse dixit of the trial Court to hold that it is a case of free fight. Without examining the cross case and also analyzing and scrutinizing the evidence about participation and presence of all the accused they have been convicted by the impugned judgment and order. 14. After giving my anxious consideration to the facts and circumstances of the case, in my opinion, the impugned judgment and order is not sustainable in the eyes of law. It is based on misreading of evidence and also misconception regarding the settled law on free fight. 15. In my considered opinion, prosecution has failed to prove its case against the appellants beyond shadow of reasonable doubt. 16. In view of it, the appeal stands allowed. Impugned judgment and order dated 31.3.1983 passed by IV Additional Sessions Judge, Ballia is set aside. 17. Let a copy of this order be sent to the concerned Court for information.