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JITENDRA versus STATE OF U.P.

High Court of Judicature at Allahabad

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Jitendra v. State Of U.P. - CRIMINAL APPEAL No. - 7115 of 2006 [2007] RD-AH 16110 (28 September 2007)

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 AT ALLAHABAD

Court No. 46

Criminal Appeal No 7115 of 2006

Jitendra ..............................................................................Appellant

Versus

State of U.P. ................................................................Opposite party

Connected with

Criminal Appeal No. 5991 of 2006

Gajendra............................................................................Appellant

Versus

State of U.P..................................................................Opposite party

********

Hon'ble Amar Saran, J.

Hon'ble S.K. Jain, J.

Heard Shri V.M. Zaidi, learned counsel for the appellants and learned Additional Government and perused the record of the case.

A prayer for bail has been made in these two criminal appeals preferred by Jitendra and Gajendra against the judgement and order dated 21.9.2006 passed by the Special Additional Sessions Judge, Muzaffarnagar in S.T. No.1145 of 2003 convicting and sentencing the appellants to imprisonment for life under Section 302 IPC and a fine of rupees ten thousand each.

In brief, the prosecution case was that there was a partition dispute between the deceased Rishiraj and his family members Kaviraj, his brother, the informant and Karm Singh, his father with the accused Brahma Singh and his two sons Jitendra and Gajendra over the property of Baburam, another brother of Karm Singh and Brahma Singh, who died earlier leaving behind his widow Usha. On 12.5.2002 at about 5.30 P.M., when the informant was working in the field, then the appellants Jitendra, Gajendra and their father Brahma Singh and another relation Vikas (who being a juvenile was tried by the juvenile court) arrived there and started ploughing the field of which the informant and other were in possession and which they had irrigated two days earlier. When the deceased Rishiraj approached the accused persons, then accused Brahma Singh exhorted the others to murder him, whereupon Gajendra, Jitendra and Vikas whipped out their pistols and fired at the deceased. Brahma attacked him by a Tabal. Thereafter, appellants Jitendra and Gajendra gave a beating to Devendra, another brother of the informant with the butt of a country made pistol. The report of this incident was lodged at police station Babri on the same day at 6.15 P.M.

It was urged by the learned counsel for the appellants that the versions contained in the FIR and in the eyewitness account are implausible and that the incident had taken place in some other manner. He has argued that it is not probable that within two days of the field being irrigated, it would be ploughed. The motive of the incident is not proved because as per the revenue record the appellants were in possession of the disputed land, which had come to their share after the partition following the death of Babu Ram, the brother of Karm and Brahma.

It is further argued that the objections to the partition have not been levelled by the accused, but by the prosecution side. P.W. 2, Devendra, had not received any injury at the time of incident because there was some delay in his medical examination, which was conducted at 11.30 P.M. when the FIR was lodged at 6.15 P.M.. Also the FIR has only mentioned one injury on the head of the injured Devendra, but there were also some other injuries on his person. The injury has not been noted in the general diary. Also as the medical examination was conducted in CHC, which did not fall under the jurisdiction of the police station, where the incident took place, but under some other police station and the same was not reliable.

It is also argued that in the post-mortem report of the deceased, the injury No. 1 was in downward direction, which is inconsistent with the prosecution case. The appellants have been acquitted under Sections 307 IPC and 25 Arms Act as there was no injury of Tabal and that is why the co-accused Brahma Singh has been bailed out in the connected appeal by an order dated 5.10.2006. The appellants were on bail during trial.

On the other hand, learned counsel for the complainant and learned Additional Government Advocate have urged that the FIR was lodged promptly within 45 minutes of the incident and there is an injured witness. The versions in the FIR and in the evidence is very natural and believable. There is nothing unlikely if the field was being ploughed two days after being irrigated if paddy was to be planted therein and there would be no reason for setting up such a story. The revenue records did not establish that the prosecution was not in possession of the land in dispute and the investigating officer has recorded that at the material time the informant and the deceased had irrigated the field and it was the accused who were trying to take possession of the same forcibly.

Moreover, there is no allegation that when the deceased went to register his protest with the accused, he was armed or he attempted to assault the accused, but only the accused were shown to arrive at the place of incident armed with country made pistols and that was obviously done for the purpose of taking possession of the land and as a sequel to that act, they have even fired at the deceased and thereafter caused injury to Devendra, another brother of the informant.

In any case, when there is an eyewitness account, motive looses significance. There is no good ground to disbelieve the receipt of injuries by the injured Devendra, who was examined within few hours at 11.30 P.M. on the same day, who even had lacerated wound on the head, which could not be fabricated. Moreover, as the other injuries were simple abrasions and contusions, it is not important that they be mentioned in the FIR. Also for a mere lapse on the part of the investigating agency in not noting the injuries in the GD or because the injured got himself examined at CHC, which fell in the jurisdiction of another police station, especially as required Mazrubi letter was given for medical examination, it cannot be inferred that the injured has not received any injury. Injury No. 1, which was on the head of the deceased was in the downward direction, if a man was sitting and working in the field, the injury can easily be in the downward direction, that alone provide no ground for disbelieving the case when there is an injured witness.

The acquittal of the accused under Sections 307 IPC and 25 Arms Act is also no ground for acquitting the appellants under Section 302 IPC. For the absence of Tabal injury caused by the co-accused Brahma Singh, who filed another criminal appeal, has already granted bail.

After considering the rival submissions of the parties, we are of the opinion that no good ground for bail is made out. The prayer for bail to Jitendra and Gajendra is refused.

Dated: 28.9.2007

Ishrat

Court No. 46

Criminal Appeal No 7115 of 2006

Jitendra ..............................................................................Appellant

Versus

State of U.P. ................................................................Opposite party

Connected with

Criminal Appeal No. 5991 of 2006

Gajendra............................................................................Appellant

Versus

State of U.P..................................................................Opposite party

********

Hon'ble Amar Saran, J.

Hon'ble S.K. Jain, J.

Heard Shri V.M. Zaidi, learned counsel for the appellants and learned Additional Government and perused the record of the case.

A prayer for bail has been made in these two criminal appeals preferred by Jitendra and Gajendra against the judgement and order dated 21.9.2006 passed by the Special Additional Sessions Judge, Muzaffarnagar in S.T. No.1145 of 2003 convicting and sentencing the appellants to imprisonment for life under Section 302 IPC and a fine of rupees ten thousand each.

In brief, the prosecution case was that there was a partition dispute between the deceased Rishiraj and his family members Kaviraj, his brother, the informant and Karm Singh, his father with the accused Brahma Singh and his two sons Jitendra and Gajendra over the property of Baburam, another brother of Karm Singh and Brahma Singh, who died earlier leaving behind his widow Usha. On 12.5.2002 at about 5.30 P.M., when the informant was working in the field, then the appellants Jitendra, Gajendra and their father Brahma Singh and another relation Vikas (who being a juvenile was tried by the juvenile court) arrived there and started ploughing the field of which the informant and other were in possession and which they had irrigated two days earlier. When the deceased Rishiraj approached the accused persons, then accused Brahma Singh exhorted the others to murder him, whereupon Gajendra, Jitendra and Vikas whipped out their pistols and fired at the deceased. Brahma attacked him by a Tabal. Thereafter, appellants Jitendra and Gajendra gave a beating to Devendra, another brother of the informant with the butt of a country made pistol. The report of this incident was lodged at police station Babri on the same day at 6.15 P.M.

It was urged by the learned counsel for the appellants that the versions contained in the FIR and in the eyewitness account are implausible and that the incident had taken place in some other manner. He has argued that it is not probable that within two days of the field being irrigated, it would be ploughed. The motive of the incident is not proved because as per the revenue record the appellants were in possession of the disputed land, which had come to their share after the partition following the death of Babu Ram, the brother of Karm and Brahma.

It is further argued that the objections to the partition have not been levelled by the accused, but by the prosecution side. P.W. 2, Devendra, had not received any injury at the time of incident because there was some delay in his medical examination, which was conducted at 11.30 P.M. when the FIR was lodged at 6.15 P.M.. Also the FIR has only mentioned one injury on the head of the injured Devendra, but there were also some other injuries on his person. The injury has not been noted in the general diary. Also as the medical examination was conducted in CHC, which did not fall under the jurisdiction of the police station, where the incident took place, but under some other police station and the same was not reliable.

It is also argued that in the post-mortem report of the deceased, the injury No. 1 was in downward direction, which is inconsistent with the prosecution case. The appellants have been acquitted under Sections 307 IPC and 25 Arms Act as there was no injury of Tabal and that is why the co-accused Brahma Singh has been bailed out in the connected appeal by an order dated 5.10.2006. The appellants were on bail during trial.

On the other hand, learned counsel for the complainant and learned Additional Government Advocate have urged that the FIR was lodged promptly within 45 minutes of the incident and there is an injured witness. The versions in the FIR and in the evidence is very natural and believable. There is nothing unlikely if the field was being ploughed two days after being irrigated if paddy was to be planted therein and there would be no reason for setting up such a story. The revenue records did not establish that the prosecution was not in possession of the land in dispute and the investigating officer has recorded that at the material time the informant and the deceased had irrigated the field and it was the accused who were trying to take possession of the same forcibly.

Moreover, there is no allegation that when the deceased went to register his protest with the accused, he was armed or he attempted to assault the accused, but only the accused were shown to arrive at the place of incident armed with country made pistols and that was obviously done for the purpose of taking possession of the land and as a sequel to that act, they have even fired at the deceased and thereafter caused injury to Devendra, another brother of the informant.

In any case, when there is an eyewitness account, motive looses significance. There is no good ground to disbelieve the receipt of injuries by the injured Devendra, who was examined within few hours at 11.30 P.M. on the same day, who even had lacerated wound on the head, which could not be fabricated. Moreover, as the other injuries were simple abrasions and contusions, it is not important that they be mentioned in the FIR. Also for a mere lapse on the part of the investigating agency in not noting the injuries in the GD or because the injured got himself examined at CHC, which fell in the jurisdiction of another police station, especially as required Mazrubi letter was given for medical examination, it cannot be inferred that the injured has not received any injury. Injury No. 1, which was on the head of the deceased was in the downward direction, if a man was sitting and working in the field, the injury can easily be in the downward direction, that alone provide no ground for disbelieving the case when there is an injured witness.

The acquittal of the accused under Sections 307 IPC and 25 Arms Act is also no ground for acquitting the appellants under Section 302 IPC. For the absence of Tabal injury caused by the co-accused Brahma Singh, who filed another criminal appeal, has already granted bail.

After considering the rival submissions of the parties, we are of the opinion that no good ground for bail is made out. The prayer for bail to Jitendra and Gajendra is refused.

Dated: 28.9.2007

Ishrat


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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