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Ram Bux v. State Of U.P. - CRIMINAL APPEAL No. 2126 of 1981 [2006] RD-AH 18252 (28 October 2006)


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Criminal Appeal No. 2126 of 1981

Ram Bux...............................................................Accused



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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