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Ram Bux v. State Of U.P. - CRIMINAL APPEAL No. 2126 of 1981  RD-AH 18252 (28 October 2006)
Criminal Appeal No. 2126 of 1981
State of U.P............................................................Respondent
Hon'ble M. Chaudhary, J.
This is a criminal appeal filed on behalf of the accused appellant from judgment and order dated 11th of September, 1981 passed by III Additional Sessions Judge, Etah in Sessions Trial No. 757 of 1979 State vs. Ram Bux convicting the accused under section 307 IPC and sentencing him to three years' rigorous imprisonment thereunder.
Brief facts giving rise to this appeal are that during the night between 6th and 7th of July, 1979 Jaswant and his wife Ganga Kunwar were sleeping in the angan of their house situate at village Bulaki Nagar that at about 2:00 a.m. after easing herself as Ganga Kunwar laid on her cot she saw Ram Bux coming with gandasa. Immediately he assaulted Jaswant giving gandasa blow hitting him at his neck. On the hue and cry raised by Ganga Kunwar her jeth Ram Chandra rushed to the scene of occurrence and sighting him Ram Bux fled away. Immediately Ganga Kunwar and others taking injured Jaswant went to the police station Aliganj situate at a distance of one mile from the village and lodged an FIR of the said incident with the police there at 4:30 a.m. The police registered a crime under section 307 IPC and made entry regarding registration of the crime in the GD.
Injured Jaswant was got medically examined by Dr Chhotey Singh, medical officer in-charge Primary Health Centre Aliganj at 5:00 a.m. the following morning i.e. on 7.7.79.. His medical examination revealed below noted injury on his person:
Incised wound 3 ½ " x 1 ½" (in center and periphery) x muscle deep spindle shaped on right side of neck placed a bit oblique with margins clean cut. Two underlying blood vessels cut across.
The doctor opined that injury was caused by sharp edged weapon, fresh in duration and dangerous to life.
The injured was admitted in the Hospital.
SI Prem Singh to whom investigation of the case was entrusted recorded statements of the witnesses. He also inspected the site and prepared its site plan map. After completing investigation he submitted charge sheet against the accused.
After framing of charge against the accused the prosecution examined Jaswant ( PW 1) and Ganga Kunwar ( PW 2) as eye witnesses of the occurrence. PW 3 HC Balbir Singh who recorded FIR of the occurrence and made entry regarding registration of the crime in GD proved these papers (Exts ka 1 & ka 2). PW 4 Dr Chhotey Singh who medically examined injured Jaswant proved the injury report.
The accused pleaded not guilty denying the alleged occurrence altogether. He attributed his false implication in the case to animosity.
On an appraisal of evidence on the record the learned trial judge held the accused guilty of the charge levelled against him and convicted and sentenced him as stated above.
Feeling aggrieved by the impugned judgment and order the accused appellant preferred this appeal for redress.
Heard Sri Udai Chandani, learned counsel for the appellant and Sri A.K. Jain, learned AGA for the State respondent.
After hearing the parties' learned counsel and going through the record the Court is of the view that the trail judge has rightly convicted the accused appellant under section 307 IPC. PW 2 Ganga Kunwar, wife of the injured narrated all the facts of the occurrence from the beginning to the end as stated above and proved FIR of the occurrence lodged by her with the police ( Ext ka 1). She deposed that at about 2:00 a.m. the alleged night as she came after easing herself she saw Ram Bux coming inside her house holding gandasa in his hand; that immediately he gave gandasa blows to Jaswant hitting him at his neck and as she cried her jeth and nanad rushed to the scene of occurrence and that in the meanwhile Ram Bux fled away. She also stated that she saw the incident and recognized assailant Ram Bux in the electric light in her angan. PW 2 Jaswant, the injured corroborated her stating likewise. Testimony of both the eye witnesses stands corroborated by the FIR lodged promptly by PW 2 Ganga Kunwar, wife of the injured as the incident took place at 2:00 a.m. in the night and the FIR was lodged at police station Aliganj at 4:30 a.m. the same night. Injured Jaswant was taken on a cot from his house to the police station and that must have taken time. Further, medical evidence leaves no room for doubt as to the factum of the occurrence, and the prosecution case with regard to its time and the weapon used in the assault also receives corroboration from it. Nature and location of the injury clinchingly goes to show that it could be caused while the injured was sleeping or laying down. Both the eye witnesses were subjected to gruelling and rambling cross-examination but nothing tangible could be elicited therefrom to shake the credibility of the core of substratum of the prosecution version. Thus both the witnesses are honest and reliable witnesses, and implicit reliance can well be placed on their testimony. However the appellant's learned counsel has advanced the following arguments and now it has to be seen if any of them has got any force:
First, the appellant's learned counsel vehemently argued that there was no light so that the assailant could be recognized. No doubt, there is no mention of light in the FIR of the occurrence lodged by PW2 Ganga Kunwar, wife of the injured. Since Jaswant had received incised wound at his neck which was bleeding naturally due to anxiety and bewilderment it might have slipped her mind that the fact of light should be mentioned in the FIR. Moreover she might have lodged an FIR for the first time in her life and might not have grasped its delicacy. She simply stated facts of the occurrence which she could narrate at that tragic hour at the police station. However both the eye witnesses categorically stated in their examination-in-chief that an electric bulb was lighted in the angan where they were asleep that night and there was sufficient light and that in that light they recognized assailant Ram Bux well. However, even if it is presumed for a moment for the sake of arguments ( though in the court's opinion it is not so) that there was no electric light at the time of occurrence it was summer season and in the open in the light of gleaming stars a known person residing in close neighbourhood could well be recognized if he was in close proximity. Accused Ram Bux assaulted Jaswasnt with gandasa hitting him at his neck. Thus both the witnesses must have seen him from a distance of 2-4 paces. For the above, the said argument that there was no light has got no merit and is repelled.
Secondly, the appellant's learned counsel argued that no independent witness of the occurrence was examined by the prosecution. This argument advanced by the appellant's counsel has no substance and deserves outright rejection. The incident took place in the angan inside the house in the night and must have occurred within 1-2 minute or so. Under the circumstances, how any outsider can be a witness of such an incident. PW 2 Ram Kunwar mentioned in the FIR that on hearing the hue and cry her jeth Ram Chand rushed to the scene of occurrence . As stated by PW 1 Jaswant, his brother Ram Chand resided at a distance of 25-30 paces from his house. A perusal of the site plan map prepared by the investigating officer goes to show that accommodation of Ram Chand is towards west in the same angan. However, even if on hearing the hue and cry raised by Ganga Kunwar he would have rushed to the scene of occurrence he would have at the most seen the assailant running away from the scene of occurrence. Had he been examined by the prosecution in its support that would not have served any purpose as he was elder brother of the injured. No doubt, PW 2 Ganga Kunwar stated in her cross-examination that one Janki who was staying at the house of his jeth Ram Chand also reached the scene of occurrence and witnessed the incident. It is not known as to where that fellow Janki was asleep the alleged night because according to the site plan map Ram Chand and his sister Simra (widow) were sleeping outside their chhappar. It is not known if Janki could witness the incident because the incident would have hardly taken a minute or so and not being a resident of that place could recognize the assailant. Moreover, name of Janki does not find mention as a witness in the charge sheet. Under the circumstances, the said argument advanced by the appellant's learned counsel has got no life.
Lastly, the appellant's learned counsel argued that the appellant has been got implicated in the case on account of enmity . No doubt, PW 2 Ganga Kunwar admitted that accused Ram Bux had lodged one report of theft and one of dacoity against her husband Jaswant but with the qualification that false cases were foisted upon him. According to the prosecution version, accused Ram Bux and his wife used to quarrel with Jaswant and his wife now and then over flow of water and due to that Ram Bux made murderous assault at Jaswant. It goes without saying that enmity is a double edged weapon and it could be made use by either party. If the prosecution party could falsely implicate the accused on account of enmity it could constitute sufficient motive for the accused to assault the victim. Therefore the key question for consideration is if the prosecution has convincingly and satisfactorily established the guilt of the accused by reliable and cogent evidence.
For the foregoing reasons, the Court is of the opinion that testimony of both the eye witnesses which is of unimpeachable character can not be discarded on superficial grounds. The learned trial judge who had the opportunity of watching demeanour of the witnesses has not castigated their testimony in any manner. He has written an elaborate and well reasoned judgment, and this Court finds no good reason to differ therefrom. The appeal has no force and is liable to be dismissed.
The appeal is dismissed and the impugned judgment and order convicting accused appellant Ram Bux under section 307 IPC and sentencing him to three years' rigorous imprisonment thereunder is hereby affirmed. Accused appellant Ram Bux is on bail. His bail bonds are hereby cancelled. Chief Judicial Magistrate, Etah is directed to get accused appellant Ram Bux arrested and send him to jail to serve out the sentence imposed upon him.
Office is directed to send copy of the judgment alongwith record of the case to the court below to ensure compliance under intimation to this Court within two months from today.
Dated: 28th of October, 2006
Crl. Appeal No.2126 of 1981
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