Rakesh Tiwari, J.
1. Since, Government Appeal No. 570 of 1982 and both the connected Criminal Appeal Nos. 2920 of 1981 and 3021 of 1981 arise out of the impugned judgment and order dated 27.11.1981 passed by the IVth Additional Sessions Judge. Gorakhpur in S.T. No. 614 of 1980, State v. Harbansh and others, by which respondent-accused Ram Chandra was acquitted of the offence under Sections 302/34 and 307/34, I.P.C. but the learned trial court convicted appellants Harbans. Raimal and Rajendra for the offence under Sections 302/34 and 307/34, I.P.C. and sentenced each of them to undergo rigorous imprisonment for life and 5 years' rigorous imprisonment under each count respectively, therefore they are being heard and decided by a common judgment.
2. It is apparent from the report of C.J.M., Gorakhpur dated 20th March, 2007 that appellant Harbans died during the pendency of Criminal Appeal No. 3021 of 1981, therefore, the appeal against him was abated vide order dated 14.2.2008.
3. It further appears from the report of C.J.M., Gorakhpur dated 28.2.2006 that appellant Raimal died during the pendency of Criminal Appeal No. 2920 of 1981, hence the appeal against him was abated vide order dated 13.3.2007.
4. Heard Sri D.I. Faridi, learned A.G.A. appearing for the State of U.P.-appellant in Government Appeal No. 570 of 1982 and in Criminal Appeal No. 2930 of 1981 for the State of U.P.-respondent. Sri M.D. Mishra, learned counsel for the respondent-accused in the aforesaid Government Appeal and for appellants in Criminal Appeal No. 2930 of 1981 and perused the record.
5. In order to appreciate the facts of the case it is necessary to reproduce a pedigree of the accused in order to show relationship of the accused and one Smt. Sharda.
6. Briefly stated the prosecution case is that first informant Mahendra son of Ram Bilas and the accused persons are the resident o
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f village Chilbilia Tola Padrahia P.S. Gulariha Bazar, District Gorakhpur. His uncle Santraj got an agreement to sell executed by Smt. Sharda widow of Ram Awadh in respect of land measuring an area of 1-1/2 bigha in his favour. Being felt aggrieved, accused Haribans moved an application for mutation proceedings in the Court of Tehsildar which was decreed in his favour on 7.3.1980, on account of which accused Harbans started nursing grudge against him.
7. It was averred in the F.I.R. that on 26.3.1980 at about 4.45 a.m. Mahendra and his uncle Santraj were going from village at their cloth shop situate in Bhathat Bazar. When they reached near the wheat field of Ramjan alias Bannar and east of their house, accused, namely, Harbans son of Jokhan Bhar, Rajendra son of Harbans armed with 'pusi' Ram Chandra son of Jokhan Bhar armed with 'bhala' (spear) and Raimal son of Jokhan armed with lathi, who were lying in ambush in their arhar fields suddenly came out and assaulted them, as a result of injuries Santraj and Mahendra fell down on the ground. On their hue and cry. Ram Chandra son of Santraj rushed to their help from his house. On seeing him the accused also assaulted him from their respective weapons as a result of which he also fell down in the field of Ramjan. On his raising alarm, Sadik Ali, Saifullah, Ram Shankar Singh, Ram Niwas and others came at the spot and saw the occurrence. On their challenging, the accused persons with their respective weapons ran away towards north. Thereafter, the first informant with the help of the villagers brought his uncle Santraj Singh and brother Ram Chandra Singh to Bhathat hospital where Ram Chandra succumbed to his injuries. Dr. Ram Iqbal Singh (P.W. 4), Medical Officer, at P.H.C., Bhathat, Gorakhpur conducted the medical examination of injured Santraj Singh and Mahendra on 26.3.1980 at 5.30 a.m. and 5.45 a.m. respectively. The S.O. P.S. Gulariha was informed for taking necessary action about the dead body of Ram Chandra Singh. A report (Ex. Ka-1) written by Mewa Lal on the dictation of Mahendra Singh, the first informant was handed over at P.S. Gulariha Bazar, District Gorakhpur on the same day, i.e., 26.3.1980 at 8.15 a.m.
8. On the basis of written report, the check report was scribed by Head Constable, Sri Kali Charan Sharma. After making entry in the G.D. the F.I.R. of the incident was registered at Case Crime No. 72 of 1980 under Sections 323, 324, 307 and 302, I.P.C. against accused persons Haribans, Rajendra, Ram Chandra and Raimal.
9. Dr. Ram Ikbal Singh (P.W. 4) examined the injuries of injured Sant Raj Singh son of Sri Mahatam Singh on 26.3.1980 at 5.30 a.m. and found following injuries on his person:
1. Incised injury on left side of skull 7 cm. x 1 cm. scalp deep on the left side of scalp 12 cm. above from the left ear margin sharp fresh bleeding.
2. Incised wound 7 cm. x 1 cm. bone deep on middle of scalp 10 cm. behind the forehead, margin sharp bone seen divided x-ray advised.
3. Incised wound 6 cm. x 1 cm. scalp deep just behind the injury No. 2, margin sharp clean cut. Fresh bleeding found.
4. Incised wound 4 cm. x 1 cm. on middle of scalp deep in back part adjacent to injury No. 3, margin clean cut and sharp, fresh bleeding found.
5. Incised wound on head backside 5 cm. x 1 cm. scalp deep, margins sharp 6 cm. above the occipital protuberance. Fresh bleeding found.
6. Incised wound 7 cm. x 1 cm. bone deep, bone has been seen divided on Rt. side of scalp 11 cm. above from Rt. ear, margin sharp advised x-ray. Fresh bleeding.
7. Incised wound 5 cm. x 1 cm. scalp deep on Rt. side of scalp 4 cm. above the Rt. ear, margin clean cut and fresh bleeding found.
8. Incised wound 4 cm. x 1 cm. scalp deep on Rt. side of scalp just in front of injury No. 6 sharp margin, fresh bleeding.
9. Incised wound 5 cm. x 1/2 cm. muscle deep on Rt. side of the scalp 8 cm. above the pterier.
10. Incised wound 8 cm. x 1 cm. scalp deep on the back of skull margin sharp...... behind and above the Rt. ear. Fresh bleeding found.
11. Incised wound 10 cm. x 1 cm. scalp deep on the back of skull below the occipital region on Rt. side 7 cm. above the shoulder. Fresh bleeding, margin sharp.
12. Incised wound 10 cm. x 1 cm. on the left side of skull on the back part 5 cm. behind the left ear scalp deep, margin sharp and fresh bleeding.
13. Incised wound 3 cm. x 1 cm. bone deep on the back part of Rt. ear, margin clean cut, fresh bleeding.
14. Incised wound 4 cm. x 1 cm. on the Rt. side of the neck just behind the injury No. 13 on the back of Rt. ear. Margin clean cut. Fresh bleeding found.
15. Incised wound 3 cm. x 1/2 cm. on the front of Rt. ear of Rt. side of face, margin clean cut, fresh bleeding found.
16. Incised wound 4 cm. x 1/2 cm. on the front of Rt. ear on Rt. side of face 1 cm. below the injury No. 15. Margin sharp and fresh bleeding.
17. Incised wound 8 cm. x 1 cm. on the dorsum Rt. hand at metatarso fallagial joint bone deep 4th metacarpal bone seen cut. Advised x-ray, margin clean cut. Fresh bleeding found.
18. Incised wound 3 cm. x 1 cm. on the Rt. index finger on the outer part 4 cm. behind the tip of finger, margin clean cut. Fresh bleeding found.
19. Incised wound 6 cm. x 1/2 cm. on the outer and upper part of left arm 5 cm. below the elbow joint, margin clean cut. Fresh bleeding found.
20. Incised wound 8 cm. x 1/2 cm. skin deep on middle and front part of Rt. thigh 20 cm. above the Rt. knee joint.
21. Incised wound 7 cm. x 1/2 cm. skin deep on the Rt. leg outer part 10 cm. above the Rt. ankle joint, margin clean cut. Fresh bleeding found.
All the injuries were bleeding and B.P. not recordable, he has been put in I.V. drop life shaving drugs. All the injuries are simple except injuries Nos. 2, 6 and 17, which are grievous. Confirmation subject to x-ray report caused by sharp cutting heavy weapon as gandasa. Duration-fresh injury.
10. He also examined the injuries of injured Mahendra Singh son of Ram Bilas Singh on 26.3.1980 at 5.45 a.m. and found the following injuries on his person.
1. Incised and cut wound on left side occipital region 3 cm. x 1/2 cm. scalp deep, margin sharp, fresh bleeding.
2. Incised and cut wound on left hand 4 cm. x 1 cm. skin deep, margin clean cut. Fresh bleeding found.
All the injuries are simple caused by sharp object as grasa. Duration-fresh injury.
11. The investigation of the case was handed over to S.O. Sri Harinath Yadav (P.W. 6), who recorded the statements of Mahendra Singh and Chaukidar Kailash Yadav immediately at Police Station, took in his custody, the blood stained clothes of Mahendra and prepared its memo (Ex. Ka-9). Thereafter, he visited the P.H.C. Bhathat and took into custody the dead body of Ram Chandra Singh (deceased) and prepared its inquest report, photo nash and challan nash (Exts. Ka-10 to 12). The dead body was sealed in his presence and handed over to constable Ramakant Pandey and Village Chaukidar Kailash Yadav for taking it to the Mortuary for post-mortem examination. The Investigating Officer then collected the blood stained and simple earth from the place of occurrence and also prepared its recovery memos (Exts. Ka-16 and 17).
12. Dr. I.P. Singh (P.W. 5), who was posted as Medical Officer at District Hospital, Gorakhpur conducted the autopsy on the body of deceased Ram Chandra Singh on 27.3.1980 at 3.30 p.m. On external examination he found the probable age of deceased to be about 30 years who had met his death about one and half days prior to the autopsy. His eyes were closed. The body of the deceased was muscular. Rigor mortis was passed off. Mouth was opened. Decomposition had started and skin from various parts of chest and abdomen pealing off. On internal examination it was found that lacerated membranes were ruptured. Blood clots were present on the face of the brain and.......Margins ruptured under above injury. Stomach, Gall Bladder, small and large intestines were empty.
13. The ante-mortem injuries found on the person of deceased Ram Chandra were:
1. Incised wound 4 cm. x 1 cm. x scalp deep on the head 11 cm. above the left ear.
2. Lacerated wound 3 cm. x 1 cm. x bone deep on the forehead 2-1/2 cm. above the right eye brow middle.
3. Multiple contusions in an area of 15 cm. x 8 cm. on left upper back (scapular region).
4. Abrasion 2 cm. x 1 cm. on the front of left leg upper 1/3rd.
Injuries are caused by No. (1) some sharp edged weapon. Injuries Nos. (2) and (3) by some hard and blunt object and No. (4) due to friction against a hard and rough surface.
14. In the opinion of the Doctor the death had occurred as a result of shock and haemorrhage due to ante-mortem injuries.
15. After conclusion of the investigation, the Investigating Officer submitted charge-sheet (Ex. Ka-18) in the Court of Munsif Magistrate, Gorakhpur under Sections 302/307/324 and 323, I.P.C. against all the accused persons. The Munsif Magistrate, Gorakhpur vide his order dated 15.12.1980 committed the case for trial to the Court of Session. Charges under Sections 302/34 and 307/34, I.P.C. were framed against all the accused persons. All the accused persons pleaded not guilty and claimed trial.
16. In order to prove its case, the prosecution examined seven witnesses, namely, Santraj Singh (P.W. 1), Mahendra Singh (P.W. 2), Sadik Ali (P.W. 3), Dr. Ram Ikbal Singh (P.W. 4), Dr. I.P. Singh (P.W. 5), Investigating Officer Sri Hari Nath Yadav (P.W. 6) and Constable Rama Kant Pandey (P.W. 7).
17. The respondent-accused in Government appeal and arrayed as appellants in criminal appeals, in their statements u/s 313, Cr. P.C. denied the charges and stated that they have been falsely implicated in this case due to enmity. Accused Raimal stated that prior to the occurrence he had undergone an eye operation and was having a green patti on his eyes. Accused Ram Chandra and Harbans further stated that they came to know in the village that the three injured while returning to the village from their shop were assaulted at about 9.00 p.m. by unknown persons near a pond. They did not examine any witness in their defence.
18. The Government appeal has been filed challenging the validity and correctness of the impugned judgment and order dated 27.11.1981 on the grounds that the acquittal of respondent-accused Ram Chandra is contrary to the weight of evidence on record as Sant Raj (P.W. 1), Mahendra (P.W. 2) and Sadiq Ali (P.W. 4) consistently stated that respondent-accused had participated in the incident in which Ram Chandra (deceased), Santraj (P.W. 1) and Mahendra (P.W. 2) received injuries. Therefore, the judgment impugned is bad in law and has resulted in miscarriage of justice as such is liable to be set aside.
19. Learned A.G.A. has placed reliance upon paragraph 3 of the statement of Dr. Ram Iqbal Singh (P.W. 4) which reads thus:
20. He submits that some time punctured wounds also appear like incised wounds, hence the learned trial Judge erred in holding that respondent-accused who was armed with spear, did not cause any injury to the victims.
21. Sri M.D. Mishra, learned counsel for respondent-accused Ram Chandra in Government Appeal has submitted that Santraj (P.W. 1), his nephew Mahendra (P.W. 2) and Sadiq Ali (P.W. 3) are interested and partisan witnesses, therefore, no reliance can be placed upon their testimonies and that there is no evidence on record to show that respondent-accused Ram Chandra has inflicted spear injuries to any of the victims, hence the learned trial court has rightly acquitted respondent-accused Ram Chandra and no interference in the finding of acquittal recorded in favour of respondent-accused is required by this Court. He has relied upon the following relevant excerpt of the statement of Dr. Ram Iqbal Singh (P.W. 4) in support of his case:
22. On the basis of the above statement of P.W. 4 Sri M.D. Mishra. learned counsel for the respondent-accused has strenuously argued that there is no injury of spear on the person of any of the victims, therefore, the respondent-accused could not said to have committed the offence. However, the nature of injuries noted in the post-mortem report of the deceased and the medical examination report of the injured conclusively shows that these injuries have been caused by Gandasa, therefore, we prefer to rely upon the medical evidence rather the question asked on the probability.
23. Submission of Sri M.D. Mishra, learned counsel for appellant Rajendra in Criminal Appeal No. 2920 of 1981 is that the conviction of the appellant is against the weight of evidence on record, bad in law and the sentence awarded to him is too severe. It is stated that as there is no evidence on record to show that appellant Rajendra used 'pharsa' for causing injuries to the victims: that except Santraj (P.W. 1), his nephew Mahendra (P.W. 2) and Sadiq Ali (P.W. 3), no other independent witnesses have been examined by the prosecution, the conviction of the appellant is liable to be set aside in the facts and circumstances of the case.
24. Per contra, learned A.G.A. appearing for the respondent-State of U.P. in Criminal Appeal No. 2920 of 1981 has supported the conviction and sentence of the appellant and submits that from the evidence of the Doctor as well as statement of the witnesses it is clear that the appellant has inflicted 'pharsa' injuries to the victims, hence, no interference is required by this Court.
25. After hearing learned counsel for the parties and on perusal of the record we find that the learned trial court by the impugned judgment and order dated 27.11.1981 has acquitted respondent-accused Ram Chandra of the offence under Sections 302/34 and 307/34, I.P.C. but the learned trial court convicted appellants Harbans, Raimal and Rajendra for the offence under Sections 302/34 and 307/34, I.P.C. and sentenced each of them to undergo rigorous imprisonment for life and 5 years' rigorous imprisonment under each count respectively. We have carefully perused the findings of acquittal and conviction recorded by the learned trial court and its reasoning and have tallied the records with the findings recorded by the learned trial court.
26. From perusal of the F.I.R. it appears that respondent-accused Ram Chandra is said to have been armed with spear. From the statement of Dr. Ram Ikbal Singh (P.W. 4) it is apparent that 21 incised wounds were found on the person of injured Santraj; that except injuries Nos. 2, 4 and 17 which were grievous in nature remaining injuries were simple. He found two incised wounds on the person of injured Mahendra Singh, which were simple in nature. The injuries on the person of both the injured could have been caused by sharp edged weapon like pharsa and gandasa. Dr. I.P. Singh (P.W. 5) found one incised wound, one lacerated wound, one abrasion and multiple contusions on different parts of the body of deceased. He opined that incised wound appeared to have been caused by sharp edged weapon like pharsa and injuries Nos. 2 and 3 appeared to have been caused by lathi whereas injury No. 4 by friction.
27. From the medical evidence on record it is clear that Santraj and Mahendra Singh sustained injuries from sharp edged weapon like pharsa and gandasa and Ram Chandra Singh (deceased) received injuries by sharp edged weapon like pharsa, gandasa and lathi as a result of which he died. Thus, the medical evidence on record corroborates the oral testimony of the injured that they were assaulted by pharsa and lathi. From perusal of the medical evidence it appears that the use of a sharp edged weapon like spear has been excluded from the medical, evidence. A suggestion was given to witness Dr. Ram Iqbal Singh (P.W. 4) as to whether injuries could have probably been caused by a spear in the manner used as spear to which the witness has replied that it could come.
28. We find from the evidence and material available on record that the prosecution has successfully proved its case beyond all reasonable doubt regarding the place, manner and time of assault against appellants Harbans, Rajendra and Raimal. The participation of respondent-accused Ram Chandra appears to be doubtful in the absence of spear injury on the person of any of the victims, hence the learned trial court has rightly acquitted him. Reference made by the learned A.G.A. as well as Sri M.D. Mishra, Advocate to the relevant extract of evidence of P.W. 4 extracted in the body of the judgment shows that reliance has been placed on probability and conjectures but they would not have any credibility when the medical evidence shows that in fact there was no injury caused by the spear. We do not find any illegality or infirmity in the impugned judgment and order dated 27.11.1981, in so far as recording conviction and sentence against appellants Harbans, Rajendra and Raimal in aforesaid criminal appeal is concerned.
29. For the reasons stated above, Government Appeal No. 570 of 1982, State v. Ram Chandra and Criminal Appeal No. 2920 of 1981, Raimal and others v. State of U.P. are liable to be dismissed and are accordingly. dismissed.