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2018 DIGILAW 1924 (ALL)

Rajendra Prasad v. State of U. P.

2018-09-05

HARSH KUMAR

body2018
JUDGMENT : Harsh Kumar, J. 1. The present criminal appeal has been filed against the impugned judgment and order dated 7.6.1984 passed by IXth Additional Sessions Judge, Allahabad in S.T. No.361 of 1983, convicting the accused-appellant Rajendra Prasad under Section 307 I.P.C. and accused-appellant Balram under Section 307/34 I.P.C. and sentencing each of them with rigorous imprisonment for a period of 5 years. 2. Heard Sri A.P. Mishra and Sri Virendra Kumar Singh, learned counsel for the appellant and Sri L.D. Rajbhar, learned A.G.A. for the State and perused the record as well as the lower court record summoned in appeal. 3. Learned counsel for the appellants submitted that appellant no.2 Balram is about 63 years old and in furtherance of order of NBW issued in this appeal he has been taken into custody on 13.8.2018. 4. Upon hearing the learned counsel for the appellants and perusal of record, I find that the appellants were tried for the offence under Section 307 I.P.C. under allegations that “Head Constable Ram Raj Singh Rathore along with Constable Virendranath Tiwari and Behari Lal were on patrol duty on 6.2.1982 and at about 11:30 p.m. during patrolling in Mahajani Tola, G.T. Road and Meerganj when they reached Bhopa Hotel in Mohammed Ali Park two accused-appellants namely Balram and Rajendra Prasad came out in suspicious circumstances and when asked to stop Rajendra Prasad threw a bomb at police party which exploded on road at some distance from police party and when the police party taking the shelter on footpath behind the pillars again challenged, upon exhortation by appellant Balram, Rajendra Prasad threw another bomb to kill police party which also fell at some distance and police party escaped unhurt.” In the above incident accused-appellant no.1 Rajendra Prasad was allegedly arrested on spot and the appellant allegedly fled away from the spot. Learned trial court has convicted the accused-appellant no.1 Rajendra Prasad for the offence under Section 307 I.P.C. and convicted the accused-appellant no.2 Balram under Section 307/34 I.P.C. and sentenced each of them with rigorous imprisonment for a period of 5 years. 5. Appellant no.1 Rajendra Prasad has died during pendency of appeal and appeal against him stands abated vide order dated 24.7.2018. 6. Admittedly, the appellant no.2 Balram was not arrested on the spot and allegedly fled away. 5. Appellant no.1 Rajendra Prasad has died during pendency of appeal and appeal against him stands abated vide order dated 24.7.2018. 6. Admittedly, the appellant no.2 Balram was not arrested on the spot and allegedly fled away. The accused-appellant no.2 Balram in his statement under Section 313 Cr.P.C. has stated that his brother Ajit Singh was president of Kesarwani Vidyapeeth Inter College Student Association which college is situated in Meerganj and since the police personnel were involved in running of brothels, his brother had threatened of protest against such practice upon which he was murdered in connivance with policeman and since he was doing pairavi in the murder case of his brother he has been falsely implicated. The appellant no.2 Balram has surrendered before the court on 15.3.1982 and no overt-act has been assigned to him except the role of exhortation at the time when bomb was thrown by Rajendra Prasad on police party for the second time. The prosecution has failed to produce any independent witness of the incident while according to the F.I.R. itself the place of incident is main road. 7. It is pertinent to mention that the evidence of exhortation is in the very nature of things, a weak piece of evidence and may not be safely relied. There is a tendency to implicate some more persons in addition to real assailants by attributing them the role of exhortation. 8. Perusal of record shows that in the alleged patrolling by police party, there was no Sub-Inspector and the alleged patrolling by constables itself is doubtful. The I.O. i.e. P.W-4 in his cross-examination has stated at page 3 that prostitutes live in Meerganj, P.S. Kotwali and he has no knowledge that about police getting Rs.8/-per month per prostitute. 9. Upon careful consideration of evidence on record, I find that there is no cogent, reliable and independent witness worth reliance to show the presence of appellant no.2 Balram at the place of occurrence or of any exhortation by him to Rajendra Prasad for throwing bomb for attempting on the life of police personnel. Learned trial court has acted wrongly and illegally in convicting the appellant Balram merely on the whisper about exhortation by him under Section 307/34 I.P.C. in this police party no injury encounter case. Learned trial court has acted wrongly and illegally in convicting the appellant Balram merely on the whisper about exhortation by him under Section 307/34 I.P.C. in this police party no injury encounter case. The impugned judgment and order of conviction convicting the appellant no.2 Balram under Section 307/34 I.P.C. is wrong and illegal and is liable to be set-aside. 10. The appeal is allowed. The impugned judgment and order dated 7.6.1984 convicting and sentencing the sole surviving appellant no.2 Balram under Section 307/34 I.P.C. is set-aside. He is acquitted of the charges framed against him. 11. The accused-appellant is in custody. He will be released forthwith unless wanted in some other case. 12. The material exhibits, if any, will be disposed off after statutory period in accordance with rules. 13. Let lower court record be sent back to court below along with a copy of this order for necessary compliance, if any.