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State Of U.P. v. Brij Bihari And Another - GOVERNMENT APPEAL No. 1475 of 1998 [2005] RD-AH 1603 (8 July 2005)


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Government Appeal No.1475 of 1998

State of U.P...............................................................Appellant


1.Brij Bihari



Hon'ble M.C. Jain, J.

Hon'ble ( Mrs. ) M. Chaudhary, J.

(Delivered by Hon'ble M. Chaudhary, J.)

This is a Government Appeal  filed on behalf of the State of U.P. from judgment and order dated 22nd of October, 1997 passed by III Additional Sessions Judge, Jalaun at Orai in Sessions Trial No. 61 of 1992 State vs. Bhoora & another acquitting both the accused of the charge levelled against them under section 307  read with 34 IPC.

Brief facts giving rise to this appeal are that  at 9:25 p.m. on 20th of June, 1991 Uma Shanker lodged an FIR at police station Kalpi situate at a distance of  3 kms.   from village Deokali  alleging that his cousin brother  Durga Prasad  @ Dularey  was married with Lalita  sister of Ram Sewak Pradhan, village Shekhpur Gurha and came to his matrimonial house yesterday after ''Gauna' ceremony.  One Bhoora resident  of village Dadhen situate  adjacent to village  Shekhpur Gurha across  the river was  inimical with Ram Sewak and had asked Uma Shanker  not to  marry  his  cousin  brother  with Lalita  but their marriage  was settled and solemnized.  At about 7:00 p.m. on 20th of June, 1991 Smt Lalita  was sitting  on the roof of her  matrimonial home that Bhoora went on the roof of the house of Ram Narain and fired at her with countrymade  pistol hitting  at her forehead and  thereafter  went towards  the house of  Brij Bihari; that as Uma Shanker  and Om Prakash chased Bhoora  he  entered  the house of Brij Bihari and that immediately Brij Bihari caught hold of Uma Shanker and in the meanwhile Bhoora  succeeded in making his  escape good.  The said  occurrence was witnessed by one Hari  Shanker, Ram Ratan and  Bhavanidin.  Uma Shanker  also alleged that  Bhoora  in collusion with Brij Bihari fired at Smt  Lalita  hitting at her  forehead.    The police registered  a crime  against both the accused under section 307 IPC and made entry regarding  registration of the crime in the general diary.  Injured Lalita was medically examined by Dr Mumtaz Ali Siddiqi, Medical Officer, Government Male Hospital Kalpi at  10:00 p.m. the same night.  Her medical examination revealed a small circular lacerated  wound measuring 1/5  cm in diameter  with inverted margins on  right side of forehead 5 cm above medial end of  right eyebrow and hairs around the  wound were burnt. Swelling  was present  around the wound in the area  of 4 cm x 4 cm.  On probing  the wound was found about 1 cm deep. The doctor opined that the injury was  caused by firearm and  fresh in duration.  The doctor  advised  x-ray  of the skull and  the injury was  kept under observation.  SI  Nihal Singh to whom investigation  of the crime  was entrusted  visited the scene of occurrence, inspected the   site  and  prepared its  site plan map ( Ext Ka 4).  He also  picked up pellets  lying at the scene of occurrence and also  collected  blood stained  and simple  grit  therefrom and prepared their memos ( Exts Ka 2 & ka 3).  He also recorded  statements of the witnesses and  did other necessary things.  After completing the  investigation he submitted  charge sheet   against the accused  accordingly ( Exts ka 5 & ka 6).  

After framing of  charge against  the accused  the prosecution examined  Smt. Lalita (PW1), Uma Shanker (PW 2 ), Ram Ratan (PW3) and Om Prakash ( PW 4) as eye witnesses of the  occurrence.   PW6 Dr Mumtaz Ali Siddiqi who medically examined  Smt. Lalita, the injured  has proved the injury report (Ext ka 9).  PW5 SI Nihal Singh who investigated the crime  has proved  the police papers.

Both the accused denied the alleged occurrence  altogether  stating  that  they were  got implicated  in the case falsely on account of enmity.

On an appraisal of evidence and material on the record the learned trial judge disbelieved the prosecution case and  evidence and  acquitted the  accused of the charge  levelled  against them.

Feeling aggrieved  by the impugned  judgment and order  the State preferred this appeal assailing  acquittal of the accused  respondents.  

We have heard learned AGA for the  appellant  and the learned counsel for the accused respondents and  gone through the record.  

Out of four eye witnesses examined by the prosecution  PW3 Ram Ratan and PW4 Om Prakash have not supported the prosecution case against the accused.  PW3  Ram Ratan deposed that the alleged evening he saw that wife of Durga Prasad @ Dularey was  being taken in the tractor to Kalpi but he could not  say as to  who fired at her.  PW4 Om Prakash, father-in-law of Lalita stated that at about 7:00 p.m. the alleged evening  his daughter-in-law  Lalita was  sitting at the roof of his house when  she received  the firearm injury but he could not say as to who fired at her.  However  he stated  that  that evening Bhoora  had   come to the house of Brij Bihari  to attend some marriage.   Both the witnesses were declared  hostile and  cross-examined by the prosecution  with the permission of the court but to no use.  PW1  Lalita, the injured  deposed that at about  6:00 p.m. the alleged evening   she was sitting  at the roof of her matrimonial home  that Bhoora came  at the roof of  Ram Narain and fired at her  with countrymade pistol hitting at her forehead and  ran away.  She also deposed that her brother Ram Sewak was Village Pradhan of village Shekhpur Gurha and Bhoora got  inimical  with Ram Sewak as he used to ask him not to marry her  with Durga Prasad but  their marriage was settled and solemnized.  PW2  Uma Shanker, cousin of Durga Prasad  and the  first informant  deposed that  at about 7:00 p.m.  the alleged evening Smt. Lalita, wife of his cousin Durga Prasad was sitting on the roof of her  matrimonial home that he heard the sound of a fire and saw  Bhoora  jumping from the roof of the house of Ram Narain  adjoining to his house; that immediately he went at the roof of his house and  saw Lalita lying injured there; that  then he chased Bhoora going towards the  house of  Brij Bihari and as he alongwith  others chased him  Brij Bihari   caught hold of  him  saying not to  apprehend him otherwise he would also fire at  him and that in the meanwhile Bhoora  succeeded in making him escape good.

Thus we see that PW1  Smt  Lalita, the injured  has stated nothing against accused respondent Brij Bihari.  PW2 Uma Shanker too has stated  only this much that at about 7:00 p.m. the alleged evening  Smt.  Lalita  wife of  his cousin Durga Prasad  was sitting at the roof of  her matrimonial home; that he heard the sound of  a shot and saw accused Bhoora jumping  from the roof of  Ram Narain; that immediately he went  at the roof of  his house  and saw  Smt Lalita lying injured and  then he chased Bhoora running towards the  house of Brij Bihari and that in the meanwhile  Brij Bihari caught hold of him saying  not to chase him otherwise he would  also fire at him and Bhoora succeeded  in making his escape good.  Thus there is no evidence on the  record to connect accused Brij Bihari with the crime in question and we find no good reason to interfere with the  finding of acquittal so far he is concerned.

Learned AGA for State, the appellant vehemently argued  that the finding of  acquittal of  accused Bhoora  recorded by trial court  is manifestly erroneous and contrary to  evidence on the record.  He contended  that the trial court  wrongly laid much emphasis upon the statement of PW4 Om Prakash who stated that accused Bhoora did not fire at Lalita and he could not say as to who fired  at her.  He having not witnessed the incident  could not say at all that the accused did not fire at her.  More so this witness was declared hostile by the prosecution.  This argument  advanced by learned AGA is not devoid  of force.  Evidently if  a person did not  witness the  occurrence and he says  that he could not say as to  who  fired at the victim he can not say in the same  breath that a particular  person did not fire  at the victim unless he offers  any plausible and convincing explanation that at that time  that person was present  with him elsewhere.  Hence no value can be attached  to the said statement  of PW4 Om Prakash, and moreso because he was declared  hostile by the prosecution.  

PW1 Smt  Lalita,  the injured deposed  that accused Bhoora  used to visit  her parents' house when she was unmarried in order to impress upon her brother Ram Sewak who was the village pradhan that he  should not marry her with Durga Prasad  but her  brother did not agree thereto and married her with Durga Prasad.  Thus accused Bhoora was  well known to her since before.  In the month of June sunset  takes place  at about 7:30 p.m. or so.  Thus at about 6-7 p.m. when the incident took place there was enough sunlight and there could be no question of mistaken identity.  She was fired at  from the front hitting  at her forehead.  The incident must have taken a few seconds and since the shot was fired from the roof of the adjoining house and the assailant ran away after jumping  from the  roof  it is but  natural that in the meanwhile the victim must have recognized the assailant in the day light.  Her sworn testimony  stands corroborated by the testimony of PW2 Uma Shanker who  on hearing the sound  of a shot  and  seeing Bhoora  jumping from the roof after causing firearm injury to his younger cousin's wife Lalita chased him in order to apprehend him.  PW2 Uma Shanker has deposed corroborating her on all material aspects.  Both these witnesses were  subjected to  searching and gruelling cross-  examination  but nothing  useful to the accused could  be elicited therefrom.  Both the witnesses appear to be truthful and straightforward witnesses who have given an  honest account of the occurrence  witnessed by them.

For the foregoing discussion, we are of the view that the finding of acquittal of accused Bhoora  recorded by the  court below cannot  be sustained in law as it is based on  faulty and erroneous  appreciation of evidence resulting in miscarriage of justice. Hence the judgment and the order of the trial court is liable to be set aside to that extent.  As to the offence made out,  since accused Bhoora fired at Lalita  from a considerable distance  intention  to cause her death cannot be imputed to him.  Since the firearm injury caused to Lalita  was simple accused Bhoora is held guilty for an offence punishable under section 324 IPC.  Learned counsel for the accused respondent contended that since accused Bhoora has already been in jail for  quite a long period  he may be sentenced to  imprisonment  already undergone.  A perusal of the record of the lower court goes to show that on the request of accused Bhoora  who stated  that since  his father  had not come forward to support him in the case and he had no independent means of livelihood some counsel may be appointed  to defend him at the State expense, amicus curiae was appointed to defend him in the case by the trial judge.  A perusal of the record   goes to show  that he has been in jail in this crime  for more than six months.  A period of more than fourteen  years  has elapsed  from the date the crime was committed.  Considering all the facts we are of the view that  ends of justice  would be served if accused respondent Bhoora  convicted under section 324 IPC is sentenced  to imprisonment for the period already undergone.

The Government Appeal is allowed in part to the extent that acquittal of accused Bhoora is hereby set aside and he is convicted under section 324 IPC and sentenced to imprisonment for the period already undergone thereunder.

Office is directed to  send  certified copy of the judgment  and transmit   record of the case  to the lower court immediately for necessary compliance under intimation to this court within two months from the date of  receipt of copy of  the judgment.

Dt: 8th of July, 2005



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