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Brij Pal & 3 others v. State Of U.P. - CRIMINAL APPEAL No. 2507 of 1981  RD-AH 7018 (31 March 2006)
Criminal Appeal no. 2507 of 1981
State of U.P...............................................Respondent
Hon'ble M Chaudhary,J.
This is a criminal appeal filed on behalf of the accused appellants from judgment and order dated 24th of October 1981 passed by IV Additional Sessions Judge Budaun in Sessions trial no. 286 of 1979 State versus Brij Pal & others convicting accused Ram Chandra and Girish under section 393 read with section 398 IPC and sentencing each of them to seven years' rigorous imprisonment thereunder and accused Brij Pal and Lalman under section 393 IPC and sentencing each of them to five years' rigorous imprisonment thereunder.
Brief facts giving rise to this appeal are that due to flood in river Ganges Kewal and his family members residents of Vibha Nagla laid a chhappar on the dyke and started living therein. During the night between 21st and 22nd of August 1978 Kewal and his wife Jamuna were asleep inside the chhappar and their sons Ajuddhi and Room were sleeping outside the chhappar. A burning lantern was lighted inside the chhappar. At about 2- 2:30 a.m. during the night Girish armed with countrymade pistol alongwith Ram Chandra armed with SBBL gun and Brij Pal and Lalman with lathis entered the chhappar and Ram Chandra snatched hansuli from the neck of Jamuna. In the meanwhile on the shrieks of Jamuna her husband Kewal and both the sons awoke. On hearing the hue and cry raised by Kewal and his sons one Pothi Ram and Jauhari who were also living on the dyke taking lathi and torch rushed to the scene of occurrence. Ajuddhi also flashing torch went towards the chhappar. Thereon all the four miscreants went outside the chhappar and started running away. While coming out of the chhappar Girish and Ram Chandra opened fire but Ajuddhi and his family members with the help of other co-villagers encircled Brij Pal and after giving a beating to him apprehended him at a distance of some 60-70 paces therefrom. The remaining three succeeded in making their escape good. While they were chasing the miscreants Brij Pal and Lalman also hurled lathis thereby causing injury to Room at his right hand. The bandits could not take any of the articles from the house. Then Ajuddhi went to police station Usahait situate at a distance of six miles from Vibha Nagla and lodged an FIR of the occurrence with the police at 2:00 p.m. and also handed over Brij Pal to the police. The police registered a crime against the accused under section 393 read with section 398 IPC and made entry regarding registration of the crime in the GD. SI Mam Chand Tyagi to whom investigation of the crime was entrusted started investigation.
Injured Room was got medically examined by medical officer in-charge Usahait Dispensary at 2:45 p.m. the same day. His medical examination revealed a contusion 5 cm x 4 cm on and around right wrist joint. The doctor opined that the injury was caused by some blunt weapon and about 12 hours old in duration.
Accused Brij Pal was also got medically examined by Dr G D Bhaskar at Usahait Dispensary at 3:00 p.m. the same day. His medical examination revealed below noted injuries on his person:
1. Lacerated wound 4.5 cm x 0.5 cm x skin deep on occipit of skull 10 cm from right ear.
2. Bruise 7 cm x 6 cm on top of right shoulder joint.
3. Bruise 6 cm above right elbow joint and 5 cm below elbow joint x 6 cm. Advised x-ray right elbow joint.
4. Bruise 3 cm x 1 cm on dorsum of right index finger. Advised x-ray right index finger.
5. Bruise 13 cm x 10 cm on and around right knee joint. Advised x-ray right knee joint.
6. Bruise 4 cm x 5 cm on outer side of right ankle joint. Advised x-ray right ankle joint.
7. Lacerated wound 1 cm x 0.5 cm x skin deep on right cheek 1 cm below outer angle right eye.
8. Bruise 10 cm x 6 cm on posterior side of left shoulder joint.
9. Bruise 4 cm x 4 cm on back of left elbow joint.
10. Abrasion 1 cm x 1 cm on middle of left leg 5 cm below left ankle joint.
The doctor opined that all the injuries were caused by some hard object and all the injuries excepting injuries no. 3 to 6 were simple. Injuries no. 3 to 6 were kept under observation.
After completing investigation the police submitted charge sheet against the accused accordingly.
After framing of charge against the accused the prosecution examined Ajuddhi (PW 1) Pothi Ram (PW 2) and Jauhari (PW 3) as eye witnesses of the occurrence. PW 4 Dr G.D.Bhaskar who medically examined injured Room proved the injury report. PW 5 SI Mam Chand Tyagi who investigated the crime and after completing investigation submitted charge sheet against the accused proved the police papers.
The accused pleaded not guilty denying the alleged occurrence altogether and stating that they were got implicated in the case falsely at the instance of the police.
On an appraisal of evidence and other material on the record the learned trial judge believing the testimony of the eye witnesses found the accused guilty of the charge levelled against them and convicted and sentenced them as stated above.
Aggrieved by the impugned judgment the accused appellants preferred this appeal for redress.
Heard Sri P.N. Misra, learned counsel for the appellants and Sri R.D.Yadav, learned AGA for the State respondent.
A perusal of the record goes to show that PW 1 Ajuddhi, PW 2 Pothi Ram and PW 3 Jauhari appeared as eye witnesses of the occurrence. PW 1 Ajuddhi stated that at about 2:30 a.m. the alleged night hearing the shrieks of his mother Jamuna he and his brother got awoke and as he flashed his torch he saw accused Brij Pal, Lalman, Ram Chandra and Girish inside his hut; that immediately all the four miscreants came out of the hut; that in the meanwhile Pothi Ram and Jauhari who were also living in huts situate adjacently rushed to the scene of occurrence flashing their torches and as they tried to encircle the miscreants in order to apprehend them Ram Chandra and Girish who were armed with SBBL gun and countrymade pistol respectively each fired but none received any injury and that as they chased the miscreants they apprehended Brij Pal at a distance of some 60 paces from the hut and the remaining miscreants succeeded in making their escape good. PW 3 Jauhari also tried to corroborate him stating likewise. However PW 2 Pothi Ram stated that after midnight the alleged night on hearing the shrieks of mother of Ajuddhi as he rushed to the scene of occurrence he saw Brij Pal and three others coming out of the hut and as they chased the miscreants they caught hold of Brij Pal but the remaining three fled away and that he could not recognize any of them.
It is alleged that two empty cartridges were found lying in front of the hut of Ajuddhi. Strangely enough four persons namely Ajuddhi, Room, Pothi Ram and Jauhari were in the effort of encircling the miscreants and two of the miscreants fired with SBBL gun and countrymade pistol but none of them received a pellet injury even. Further, according to the prosecution case, on the shrieks of Jamuna both of her sons got awoke and Pothi Ram and Jauhari residing in the huts situate nearby rushed to the scene of occurrence. If the miscreants had attempted to snatch hansuli from her neck Jamuna must have received some contusion or scratch on her neck but she was not got medically examined. For the reasons best known to the prosecution she was not produced before the court as a witness. Furthermore, Room who allegedly received injury at his right wrist joint in the said incident has not been examined by the prosecution for the reasons best known to them. Had he entered the witness box he would have cleared up as to at what point of time and how he received injury at his hand in the said incident.
FIR of the case is much delayed as the occurrence took place in the month of August at about 2:30 a.m. and the FIR of the incident was lodged at 2:00 p.m. at police station Usahait situate at a distance of six miles from the village. No doubt Ajuddhi stated that for going to the police station they had to cross the river by boat. However in the month of August sunrise takes place before 6:00 a.m. and hence Ajuddhi could have lodged the FIR at the police station by 9:00 a.m. well. Delay of about 5-6 hours in lodging FIR creates doubt about its genuineness. PW 1 Ajuddhi stated that he got report of the occurrence scribed by Master Pyarey Lal and affixed his thumb impression thereon with ink at his house whereas PW 2 Pothi Ram and PW 3 Jauhari both stated in their cross-examination that Master Pyarey Lal accompanied Ajuddhi to the police station and that Pyarey Lal had not written any paper in the village. PW 1 Ajuddhi himself stated that it took about two hours in lodging the report at the police station. PW3 Jauhari stated in his cross-examination that first Ajuddhi went alone to the police station and then came back with sub-inspector to the village and then police and Ajuddhi took Brij Pal to the police station and that they went to the police station at about 2:00 p.m. that day. A perusal of the written report goes to show that Ajuddhi affixed his thumb impression thereon with pad meaning thereby that in all probability it was prepared at the police station. All these facts create doubt in the genuineness of the FIR which was lodged at the police station with delay of some 5-6 hours. Since the delay has not been explained satisfactorily the prosecution case stands shattered as possibility of the facts stated therein to be tainted and fabricated cannot be ruled out altogether. On this score also the authenticity of the prosecution case falls to the ground.
Further, PW 1 Ajuddhi, the first informant mentioned in the FIR that the bandits could not take any of the articles belonging to the family from his hut in the said incident. However PW 3 Jauhari went to the extent of deposing that the bandits took away cash, clothes and ornaments from the hut of Kewal, father of Ajuddhi.
In view of above state of evidence and facts and circumstances attending the case, the court is reluctant to place implicit reliance on the testimony of eye witnesses examined by the prosecution. The Court, therefore, finds that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. Since the trail court failed to appreciate the evidence in its true perspective the conviction recorded by the trial judge against the accused can not be maintained in law, and the accused appellants are entitled to acquittal.
The appeal is allowed and the impugned judgment and order convicting the accused appellants Ram Chandra and Girish under section 393 read with section 398 IPC and Brij Pal and Lalman under section 393 IPC is hereby set aside. The accused appellants are hereby acquitted of the charge levelled against them. They are on bail. Their bail bonds are hereby discharged.
Copy of the judgment be certified to the court below.
Record of the case be transmitted to the court concerned immediately for necessary compliance under intimation to this court within two months from the date of receipt of copy of the judgment.
Dated March 31, 2006
Crl Appeal No.2507 of 1981/P.P.
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