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STATE OF U.P. versus UJIYAREY LAL( DIED), SURENDRA & KRIPAL SINGH

High Court of Judicature at Allahabad

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State of U.P. v. Ujiyarey Lal( Died), Surendra & Kripal Singh - GOVERNMENT APPEAL No. 88 of 1982 [2005] RD-AH 3470 (23 September 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Government Appeal No.88 of 1982

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

Versus

1. Ujiyarey Lal (Died)

2. Surendra

3.  Kripal Singh............................................Accused

          Respondents.

Hon'ble M.C. Jain, J.

Hon'ble M. Chaudhary, J.

(Delivered by  Hon'ble Justice M. Chaudhary )

This is an appeal filed on behalf of the State  from judgment and order dated 15th of September, 1981 passed by VIII  Additional Sessions Judge, Etawah in Sessions Trial No. 142 of 1981 State vs. Ujiyarey  Lal  & others  acquitting them of the charge levelled against them under section 307 IPC.  

During pendency of the appeal  accused Ujiyarey Lal was reported  having died and hence the appeal with regard to him stood  abated vide order dated 7.1.2004.

Brief facts giving rise to this appeal are that at 6:15 p.m. on 26th of January, 1981  Tej Singh, brother of the  injured  Barmadin lodged an FIR  at police station Phaphund,  District Etawah  alleging that  he and his brother  Barmadin were on inimical terms with Ujiyarey Lal since long.  At about 5:00 p.m. on 6th of January, 1981  Barmadin was  returning back to his house at Kesampur after taking  permit of sugar  from the  side of  Devarpur and as he reached at the water channel in between the two places, Ujiyarey Lal  taking spud alongwith his sons Surendra Singh and Kripal Singh armed with knives and Chotey Lal with sickle  met him and  Ujiyarey Lal  shouted that Barmadin  should  be killed  and  they would not  let him  go alive. Immediately  all the four smote Barmadin giving him blows with their respective weapons and on hearing the shrieks of Barmadin one Chandra Kumar  who was  going to Devarpur for  giving  cloth for  stitching  raised hue and cry  attracting thereby  Tej Singh and Vishambhar Singh to  the scene of occurrence. Believing that  Barmadin  was done to  death all the four  miscreants   bolted away.  The police registered  a crime  on the basis of   written report  handed over    to them at the police station and made entry regarding  registration of the crime in the GD accordingly.

  Injured Barmadin was got medically examined by Dr. Shiv Kripal Singh, Medical Officer in-charge, Male  Dispensary, Phaphund at  6:45 p.m. the same day.  His medical examination revealed belownoted injuries  on his person:

1) Lacerated  wound in zig-zag shape  on forehead from left eyebrow towards right side  6cm x ½ cm x bone deep,  bleeding profusely. Frontal bone suspected to be fractured. Advised x-ray of front of skull.

2) Lacerated  cum incised wound on upper  lip on right side placed vertically measuring 2 ½ cm x ½  cm x  bone  deep  upto maxilla  on right side. Lip divided in two parts.Right side maxilla also cut and hanging  teeth were loose.  Bleeding  profusely.  Advised  x ray  of face.

3) Tongue crushed in center and on tip lacerated wound.  Bleeding profusely. Three teeth lying down in tongue wound extracted and sealed. One was lower incisor, two not identified.  

4) Incised wound  on right cheek measuring 1½ cm x 1/6 cm x skin deep, bleeding.

5) Incised wound at lower end of nose measuring 1½  cm x 1/6 cm x skin deep extending both the nostrils, bleeding  profusely.

6) Bleeding from nose, whole of nose is suspected to be fractured.  Advised  x-ray of face.

7) Small  incised wound at right eyebrow 1½ cm x ¼  cm x skin deep. Black eye formation in both the eyes. Swelling of face present.  

                            Complained  of pain in whole of chest.

            The doctor opined that injuries no. 1,2,3,4 and 6 were grievous and kept under observation.  Rest of the injuries were simple in nature.  Injury no. 1 was caused  by  blunt object and  rest by some sharp object.  All the injuries were fresh.  The  doctor  advised  x-ray of  whole  face and  the skull.  He also observed that the patient was unconscious and  his pulse was  feeble.  

X-ray of  whole face  and the skull of the injured  done  under supervision of Dr. R.C. Sharma,  Radiologist, District Hospital, Etawah revealed  fracture  of right  maxilla bone.

SI Raja Singh to whom investigation of the crime was entrusted  went to Male Dispensary, Phaphund  next morning   and recorded statement of Tej Singh, brother of the injured and the  first informant.  Then he alongwith  Tej Singh went to the scene of occurrence and inspected the site. He collected  blood stained  and simple earth from the scene of occurrence and picked up two teeth of the injured  lying on the spot and  sealed  them in  separate  packets and prepared  their memo         ( Ext Ka 2).  He also prepared site plan map of the place of occurrence (Ext Ka 3) and recorded statements of  the witnesses. Then he searched for the criminals.  

Since the condition of Barmadin injured was serious and he  remained hospitalized for more than one month the investigating officer recorded  his statement on 5th of March, 1981.  

After   completing  the investigation the police submitted charge sheet against the accused excepting Chhotey Lal accordingly (Ext. Ka 4).

After framing of charge against the accused the prosecution examined  Tej Singh (PW 1), Chandra Kumar (PW2) and  Barmadin    (PW 3) as  eye witnesses of the occurrence. PW5 Shiv Kripal Singh, Medical Officer in-charge Male Dispensary, Phaphund who medically examined the injured has proved the injury report.  PW6  R C Sharma , Radiologist, District Hospital, Etawah  under whose supervision  face and skull of the injured were x-rayed has proved the x-ray report.  PW4  SI Raja Singh who investigated  the crime has proved the police papers.

Since  co-accused Chhotey Lal was  absconding his charge sheet  was not  submitted  alongwith the accused  abovenamed.

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

           No evidence was adduced  by the accused in their defence.

           On an appraisal of the evidence and  other material on the record the learned Additional  Sessions  Judge disbelieved  the prosecution case and acquitted the accused   giving them benefit of doubt.

Feeling dissatisfied with the impugned judgment and  order the State has preferred  this  appeal assailing  acquittal  of the accused respondents.

We have heard learned AGA Shri K.P. Shukla for the  State appellant and Shri Akash Mishra, learned counsel for the accused respondents.

        After going through the evidence  and other material on  record we  do not find   ourselves in agreement   with the findings  recorded by the  court below. A perusal of the record  goes to show that PW1 Tej Singh, brother of the injured and   the first informant narrated  all the  facts of the occurrence from the beginning  to the end as stated above deposing that  the alleged  evening  at about 5:00 p.m. he was going  to Devarpur  for taking  manure and  as he was proceeding towards the water channel falling in between the  villages Kesampur and Devarpur he heard some hue and cry and that  then he rushed towards  the water  channel and saw  that Ujiyarey Lal  taking the spud alongwith Surendra  Singh and Kripal Singh with  knives and Chhotey Lal with  sickle  were  giving blows  to his brother  Barmadin with their respective weapons and thereafter thinking  that  Barmadin died the miscreants bolted away.  PW 2 Chandra Kumar  corroborated him stating likewise deposing that at about  5:00 p.m. the alleged evening he was going to  Devarpur to give  cloth for  stitching and as he reached near the channel he heard  the shrieks of   Barmadin and  on reaching he saw  that Kripal Singh and Surendra Singh with knives alongwith  Ujiyarey Lal  with spud  and Chhotey Lal with sickle  were giving blows to Barmadin with their respective  weapons and that after smiting  Barmadin with  their respective  weapons and taking  him to be  dead  the miscreants  fled away.  PW3  Barmadin, injured himself deposed that some three years ago  Ujiyarey Lal had  beaten him and in that case he was   convicted and sentenced; that subsequently Ujiyarey Lal alongwith  his sons Surendra  Singh and Kripal Singh beat  one Munshilal and in that case  his nephew  Ram Prakash  stood as a witness against  Ujiyarey Lal and his sons and  that case also ended in their conviction; that the alleged evening at about 5:00 p.m. he  was returning  back from  Auraiya to his village  Keshampur and  as he  was crossing the channel Ujiyarey Lal  holding  a spud  and his sons  Kripal Singh and Surendra Singh  armed with knives and Chhotey Lal  with  sickle emerged from ''lahi' crop and   on the exhortation  of Ujiyarey Lal that they would not  let  him go alive assaulted him with  their respective weapons and as they were giving blows to him Chandra Kumar, Tej Singh and  Vishambhar Lal rushed   to the scene of occurrence and then  the miscreants bolted away.

A perusal  of the  impugned  judgment and  record  goes to show  that the learned Trial Judge has rejected  the sworn testimony of the  three eye witnesses including  the injured  and relied upon some  trifling  and insignificant  circumstances  to discard the prosecution case.  He observed that since the statements  of  three  eye witnesses regarding place of occurrence are contradictory  implicit reliance can not be placed  on their testimony.  This observation made by the learned trial judge is fallacious. PW3 Barmadin, the injured  stated that  about 5:00 p.m. the alleged evening he returned from Auraiya and  as he was crossing the water channel having no water at that time and   climbed  20-25 paces on the slope of the channel in order to go to his village Keshampur all the  four miscreants emerged from ''lahi' crop and Ujiyarey Lal  taking a spud alongwith his sons Surendra  Singh and Kripal Singh with knives and  Chhotey Lal with  sickle  caught hold of him and made him fall in the ''Bejhar' field of Dalip and smote him with their respective  weapons  hitting him on his face, forehead, tongue, nose etc.  It appears that while  climbing on the slope from the channel sighting  the miscreants  Barmadin apprehended  danger to his life, and then he might have tried  to run towards  the village and hence  there is nothing strange   if the miscreants  encircled  him on the channel and  made him fall down  in the ''Bejhar' field abutting  the channel. It is  a matter of  common experience that  in  rainy season  fields abutting  main streams, water channels, rivers etc.  come under water and hence if  PW2   Chandra Kumar stated that  the victim was  assaulted by the accused at the  channel that cannot be    termed to be a material contradiction regarding place of occurrence inviting consequence of jettisoning  his testimony.   A perusal of the record goes to show that the statement of  the witnesses were recorded  in the month of  July and at that time  due to  heavy rains,  the  fields  abutting  the water channel might   have come under water; and therefore this witness might have stated  that  the victim was assaulted and  given blows  with knives, spud and sickle by the accused at the water channel. It has also been observed that PW 1 Tej Singh, brother of the injured who  lodged FIR of the occurrence  at the police station mentioned in the FIR  that his brother Barmadin was assaulted by the miscreants at the channel.   ''Bejhar' field in which Barmadin  was given blows  by  lethal weapons by the accused is  abutting the  main stream.  However, he stated in his deposition that his brother  Barmadin was given  blows by the accused with  their respective weapons in the ''Bejhar'  field abutting the water channel.  However this witness  Tej  Singh  was not contradicted  in  his cross-examination by the defence counsel regarding the place of occurrence  mentioned in the FIR lodged by him.  Moreover it is a matter of  common knowledge  that apprehending   danger  to one's life one can not  remain static  or stationary like  a log of wood and  he would certainly  try to run away for his life and  in that case  in order to   save himself  when Barmadin  was  climbing on the slope of the channel the assailants would have  chased him and  while  he was running  for his life was pulled and fallen  down by the  miscreants in the ''Bejhar' field abutting the channel and the pathway going to his village.  Thus in fact there is no material contradiction  in the  statements of the witnesses regarding the place of occurrence.  PW4  SI  Raja Singh, the investigating officer  also collected blood stained  earth and two teeth  of injured Barmadin from ''Bejhar' field of Dalip.  It has come in the evidence that the injuries  sustained by  Barmadin  must have  bled profusely.  Thus the  said observation made by the   trial court regarding place of  occurrence is  erroneous  based on  faulty  appreciation of evidence.

The Trial Judge also observed that  26th of January, 1981 the  day the injured  was  assaulted was a public holiday and hence  the statement of  PW3 Barmadin, the injured  that  at about 5: 00 p.m. the alleged evening he was returning back from Auraiya after taking permit of sugar for   fair price shop  run by him cannot be relied upon.  The said observation made by the learned trial judge is also erroneous.  PW3 Barmadin, the injured  stated that one day prior to the day of occurrence  he had   gone to Auraiya for taking  permit and he was told  in the office that he may collect his permit the next day and then  he retuned back to  his home that day and next day he   again went to  Auraiya for collecting permit and after taking permit of sugar he was returning  back to his home  holding a wallet containing register and permit. PW 1 Tej Singh, brother of the injured  deposed that he had  taken up the wallet containing papers lying  near  the place of occurrence when he  brought   his injured brother  on a cot  from the scene of occurrence  to his house.  No doubt  PW2  Chandra Kumar has stated that   as miscreants fled away  he went to   see Barmadin lying  on the spot and  at that time he was  empty handed and he  did  not  see anything lying near the place of occurrence.  This statement  of PW 2 Chandra Kumar cannot be   treated to be material one because due to his  power of observance and perception he  witnessed the assailants and the victim and might have not perceived the  minute details such as  he was holding a wallet or it was lying near the place of occurrence.

Further the learned Trial Judge  observed that the injured  received  a lacerated wound in zig zag shape  on his forehead  which could not be caused  with the weapons  held by the miscreants.  No doubt  Dr. Shiv Pal Singh (PW5) who medically examined injured Barmadin stated that injury no.1 could not be  caused with sickle.  In our opinion  injury no.1 lacerated wound in  zig zag shape  on the forehead  measuring  6 cm x ½ cm x  bone deep  could be caused  with the  spud  if blade of the spud had gone blunt and  was not sharp.   Injuries no.2 and 3 could be  caused by the  blow given with sickle over maxilla,  upper lip and tongue.  Rest of the incised wounds   could  very well be  caused with knife.

The learned Trial Judge  also observed that injured  Barmadin made few statements  before the court  which were not  possible  for  him to  observe  at the time of occurrence.  We have gone  through the statement of PW3 Barmadin, the injured  very carefully and  cautiously and found nothing of the sort. He has not stated  anything which he  would have not  observed at the time of occurrence.  He stated  that after receiving the injuries he was  conscious upto the  time he reached the police station and the Hospital but he was not  in a position to  speak as he had received injury on his tongue. He stated that  at the time of occurrence he had  seen Chandra Kumar (PW2) standing at a distance of some 14-15 paces from the place of occurrence and  he  was holding some  clothes but he could not tell whether  they were stitched  or not.  He also stated that after receiving the injuries he was   first taken in a bullock cart  to his house from the  scene of occurrence and  therefrom to the police station and  then to the Hospital.  Thus  the said observations made by   the learned trial judge  are based on conjectures and  surmises.

We are conscious of the fact that  an Appellate Court  entertaining  an appeal from the judgment of acquittal held by the trial court though entitled to  reappreciate the evidence and  come to an independent   conclusion  but in doing so the  appellate court should  consider  every matter on record and reasons given by the trial court  in support of the order of  acquittal and should interfere  only when the view taken by the trial court is perverse or unreasonable resulting in serious  miscarriage of justice.  No doubt if two views are possible  on a set of evidence  then the appellate court  need  not   substitute its own view  in preference to the view of the trial court  which has recorded acquittal.  If  the trial court  acquits an accused by giving  undue importance to minor  discrepancies and taking suspicious  view of the evidence  based on  conjectures and surmises then the appellate court would be justified  in interfering  with the  order of  acquittal and  while reversing  an order of acquittal  the appellate court  must  give sufficient  grounds for holding  the appreciation of evidence  of the trial court  as erroneous  and unsupportable.

In the instant case  findings recorded by the learned trial judge  are perverse based on erroneous  appreciation of evidence resulting  in serious  miscarriage  of  justice.

In the instant case   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 weapons used in the assault also receive corroboration from it.  The place  of occurrence is  also fixed up by the recovery of  blood and two teeth by the investigating officer  therefrom.  No doubt    PW 1 Tej Singh is real brother of the injured and PW2  Chandra Kumar is  closely associated with  him but the  sworn testimony of the witnesses   who are relatives to the victim  or closely associated with him cannot be  thrown  over board if the  witnesses withstood   the test of their  cross-examination firmly and their presence at the scene of occurrence  cannot be doubted.  Testimony of the injured witness Barmadin has its own efficacy and  relevancy. The  fact that the witness sustained  injuries on his body    would  show that he was present   at the place of occurrence and   saw the assailants with   close proximity.  On carefully scanning  the evidence of  these three  eye witnesses we find that shorn  of few  contradictions and inconsistencies which are of very  trivial  nature   and  insignificant  nothing  tangible could be elicited in  their  cross-examination.  All the three eye witnesses have  given truthful  and honest  account of  the occurrence witnessed by them.  Therefore sworn testimony  of the three eye witnesses including  the injured  being  otherwise  convincing  and  consistent  on all material aspects cannot be  discarded  simply on the ground that  Tej Singh is  blood relation of the victim or Chandra Kumar closely associated with him  or the witnesses are  inimical to the accused.

Benefit of doubt  rendered by the trial  court  in respect of all the accused namely Ujiyarey Lal, Surendra Singh and Kripal Singh goes straight in the teeth of  ocular evidence.  On a conspectus of  oral evidence of all the three eye witnesses and other material on the record  we are of the  view that the  prosecution has  proved participation of the  accused  in the said crime  beyond reasonable doubt. The trial  court  acquitted them giving benefit of doubt  on tenuous grounds.

Since the reasons assigned by the court below for recording  acquittal of the  accused  are manifestly erroneous and  contrary to evidence the  impugned  judgment cannot be sustained in law.

As  to the  offence made out, it has been  argued   by the learned counsel for the accused respondents that if the accused would have  intended to commit  the murder of Barmadin they would have  given blows to him with  lethal weapons on his neck, chest, abdomen etc.  Though some of the injuries received by the victim are on vital parts of the body still we  think it would be proper to convict the accused respondents under section 326  read with section 34 IPC as they acted  in concert  in furtherance of  their common  intention and caused several  grievous  injuries  to the  victim with dangerous weapons.

The appeal is allowed and the  impugned judgment  acquitting the accused  is  set aside. Since accused Ujiyarey Lal has been reported  having died, the  government appeal  against him stood abated as observed above.  Accused respondents Surendra and Kripal Singh are convicted under section 326  read with section 34 IPC and each of them is sentenced to  undergo five years' rigorous imprisonment thereunder.  The accused respondents are on bail.  Their bail bonds are hereby  cancelled.

Let  the judgment be certified  to the court  below.  CJM, Etawah  shall take steps to take accused respondents Surendra Singh and Kripal Singh   in custody and send them to jail to serve  the sentence imposed upon them.

Dt.23rd  of September, 2005

GA-88-1982/PP


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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