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BRIJ PAL & 3 OTHERS versus STATE OF U.P.

High Court of Judicature at Allahabad

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Brij Pal & 3 others v. State Of U.P. - CRIMINAL APPEAL No. 2507 of 1981 [2006] RD-AH 7018 (31 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

                Criminal Appeal no. 2507  of 1981

1.Brij Pal

2.Lalman

3.Ram Chandra

4.Girish....................................................Accused

                                 Appellants

Versus

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.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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