Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Prosecution Has Failed To Prove Its Case Beyond Reasonable Doubt, Instant Appeal Allowed And Set Aside Judgment.
JUDGEMENT TITLE : Jai Ram And Others Vs. State Of U.P. On 11/05/2009 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 1617 OF 1986
CORAM : Hon'ble Poonam Srivastava,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED
A.F.R,

CRIMINAL APPEAL NO. 1617 OF 1986
Jairam And Others..................................................Appellants.
Vs.
State Of U.P.........................................................Respondent.

Hon'ble Mrs. Poonam Srivastav, J.
Hon'ble S.C. Agarwal, J.
(Delivered By Hon'ble Mrs. Poonam Srivastav, J.)
We Have Heard Sri Dilip Kumar, Learned Counsel Appearing On Behalf Of The Appellants, Sri Vijay Shankar Mishra, Advocate, On Behalf Of The Complainant, Hunder Prasad, And Learned A.G.A. For The State.
In This Appeal, Judgment And Order Dated 4.6.1986 Passed By III Additional Sessions Judge, Jaunpur, In S.T. No. 100 Of 1983, State Vs. Jairam And Eight Others, Is Impugned. Appellants Jairam, Shiv Murat, Shanker, Jagdeo, Ram Narain, Ram Kumar, Ram Ashish, Have Been Awarded Life Imprisonment Under Sections 302/149 I.P.C., Three Years R.I. Under Section 307/149 I.P.C., Two Years R.I. Under Section 325/149 I.P.C. And One Year R.I. Under Section 147 I.P.C. Appellant Ramjeet Has Also Been Awarded Life Imprisonment Under Section 302/149 I.P.C., Three Years R.I. Under Sections 307/149 I.P.C. And One Year R.I. Under Section 148 I.P.C. All The Sentences Have Been Directed To Run Concurrently.
Before Charge Was Framed, Accused Mahavir, Who Was Named In The First Information Report, Died And, Therefore, The Trial Proceeded Against Eight Accused. It Is Reported That Accused/appellant No.1 Jairam Son Of Algoo And Accused/appellant No.4 Jagdeo Son Of Jaipal Have Also Died During Pendency Of The Appeal. Arguments Are, Therefore, Being Advanced On Behalf Of Appellants Shiv Murat, Shanker, Ram Narain, Ram Kumar, Ram Ashish And Ramjeet.
The Prosecution Story Unfolded In The First Information Report Exhibit Ka-1, Is That There Was A Land Having An Area Of 0.18 Decimal Which Was Made Chak Out During Consolidation Proceedings. The Deceased Teju Ram, Complainant Hunder Prasad, Jai Ram, Jagdeo, Kariya, Awadhu Ram, Vishwanath, Somaru, Jiyalal, Munnar, Naur And Also The Accused Were Co-owners. There Was One Well And Three Mango Trees On The Land.
On 2.7.1982 At About 1:00 P.m., The Accused Persons Armed With Lathis And Ballam, Arrived At The Place Of Occurrence To Fix Naad And Charni. Allegation In The First Information Report Is That They Came With An Intention To Occupy Certain Area Of The Land Extending Their Share. The Deceased Tejuram Along With The Complainant Objected To This. On Instigation Of The Accused Jai Ram, The Accused Wielded Lathis And Ballam Blows On Them. Hearing Shrieks Of The Complainant And Deceased, Mithai Lal And Jiya Lal, Nephew Of The Complainant, His Wife Mahdei, Arrived At The Scene Of Occurrence And Other Witnesses From The Village, Baiju Ram Son Of Kariya, Masardeo Son Of Khurbhur And Awadhu Son Of Manki And Others, Reached The Place Of Occurrence Where Marpit Was Going On. They Tried To Stop The Accused But The Accused Did Not Pay Any Heed, After Giving Severe Beating To Them, They Ran Away. Tejuram, Brother Of The Complainant Died On The Spot And His Family Members Received Injuries.
First Information Report Was Registered On 2.7.1982 At 19:30 Hours, At Case Crime No. 84 Of 1982 Under Sections 147, 148, 149, 302, 307 I.P.C., Police Station Khuthan, District Jaunpur. First Information Report Was Dictated By Hunder Prasad, And Scribe Of F.I.R. Is Mithai Lal Son Of Teju Ram. Nine Accused Mentioned Above, Were Named In F.I.R. It Is Specifically Mentioned In The First Information Report That Accused Ramjeet Son Of Jagdeo Was Armed With Ballam And Other Accused Were Armed With Lathis.
Injuries Of Mithai Lal Son Of The Deceased, Were Examined On The Same Day At 4:15 P.m. At Primary Heath Centre, Sondhi, Jaunpur. Following Injuries Found By Dr. R.S. Lal, On His Body Are;
1. Lacerated-2.5 Cm. X 0.4 Cm. X 0.2 Cm. On The Lt. Side Of The Head 8 Cm. Above The Medial End Of Eye Blow.
2. Lacerated 2 Cm. X 0.3 Cm. X 0.2 Cm. On The Lt. Side Of The Head 13.5 Cm. Above The Lt. Ear.
3. Lacerated Wound 2.3 Cm. X 0.4 Cm. X 0.1 Cm. On The Rt. Side Of The Head 7 Cm. Above & Posterior To The Lt. Ear.
4. Bruise 7 Cm. 2.5 Cm. On The Lateral Surface Of Rt. Upper Arm Over Upper 1/3 Portion.
5. Bruise 6 Cm. X 2cm. On The Lateral Surface Of Lt. Upper Arm Over Upper 1/3 Portion.
6. Bruise 4.5 Cm. X 2.5 Cm. On The Lateral Surface Of Lt. Upper Arm Over Lower 1/3 Portion.
7. Bruise 5 Cm. X 2 Cm. On The Lateral Surface Of Lt Leg Over Middle 1/3 Portion.
All The Injuries Were Found To Be Caused By Hard And Blunt Object And Are Simple In Nature. Duration Was Fresh.
Injuries Of Jiya Lal, Were Examined On The Same Day At 4:50 Pm. At Primary Health Centre, Sondhi, Jaunpur. Following Injuries Found By Dr. R.S. Lal, On His Body Are;
1. Lacerated 3 Cm. X 0.5 Cm. X 0.3 Cm. On The Lt. Side Of The Forehead 5 Cm. Above The Mid Point Of The Eyebrow.
2. Lacerated 3.5 Cm. X 0.3 Cm. X 0.2 Cm. On The Lt. Side Of Head 6 Cm. Above The Medial End Of The Eyebrow.
3. Bruise 5 Cm. X 2 Cm. On The Lateral Surface Of The Rt. Upper Arm Over Upper 1/3 Portion.
4. Bruise 5.5 Cm. X 3 Cm. On The Lateral Surface Of The Lt. Upper Arm Over Upper 1/3 Portion.
5. Bruise 6 Cm. X 2.5 Cm. On The Lt. Side Of The Back Over Upper 1/3 Portion.
6. Bruise 7 Cm. X 3 Cm. On The Lt. Side Of The Back Over Middle 1/3 Portion.
7. Lacerated Wound 3 Cm. X 0.5 Cm. X Bone Deep On The Posterior Surface Of Lt Index Finger Over The Middle Phalynx.
All The Injuries Were Found To Be Caused By Hard And Blunt Object And Are Simple In Nature. Duration Was Fresh.
Injuries Of Smt. Mahadei, Were Examined On The Same Day At 3:45 Pm. At Primary Health Centre, Sondhi, Jaunpur. Following Injuries Found By Dr. R.S. Lal, On Her Body Are;
1. Lacerated Wound 7 Cm. X 0.7 Cm. X Bone Deep On The Lt. Side Of The Head 11.5 Cm. Above The Lt. Ear.
2. Bruise 2 Cm. X 1 Cm. On The Posterior Surface Of Lt. Forearm 1 Cm. Above The Wrist Joint.
3. Bruise 8 Cm. X 3 Cm. Over The Rt. Glutial Region On Upper Portion.
All The Injuries Were Found To Be Caused By Hard And Blunt Object And Are Simple In Nature. Duration Was Fresh.
Injuries Of Hunder Prasad, Complainant, Were Examined On The Same Day At 3:00 Pm. At Primary Health Centre, Sondhi, Jaunpur. Following Injuries Found By Dr. R.S. Lal, On His Body Are;
1. Lacerated Wound 1 Cm. X 0.3 Cm. X 0.2 Cm. On The Rt. Side Of The Head 8 Cm. Above The Medial End Of The Rt. Eye Brow.
2. Bruise 2.5 Cm. X 2 Cm. On The Lt. Side Of The Head 6 Cm. Above The Mid Point Of Lt. Eye Brow.
3. Bruise With Marked Swelling And Tenderness 8 Cm. X 1.5 Cm. On The Lt. Side Of The Face, 4 Cm. Below The Outer End Of The Eye.
4. Lacerated Wound 1 Cm. X 0.4 Cm. X 0.2 Cm. On The Rt. Side Of The Face 3cm. Posterior And Below To The Outer Angle Of Mouth.
5. Lacerated Wound 0.5. Cm. X 0.3 Cm. X 0.2 Cm. On The Lt. Side Of The Face 3 Cm Below The Outer End Of The Eye.
6. Bruise 5 Cm. X 2 Cm. On The Lateral Surface Of Lt. Upper Arm Over Upper 1/3 Portion.
7. Bruise 5 Cm. X 3 Cm. On The Lateral Surface Of Rt. Upper Arm Over Upper 1/3 Portion.
8. Bruise 8 Cm. X 2.5 Cm. On The Lateral Surface Of Left Thigh Over Upper 1/3 Portion.
9. Bruise 10 Cm. X 3 Cm. On The Lateral Surface Of Lt. Thigh Over Middle 1/3 Portion.
10. Bruise 8 Cm. X 3 Cm. On The Anterior Surface Of Lt. Thigh Over Lower 1/3 Portion.
11. Bruise 4 Cm. X 2 Cm. On The Anterior Surface Of Rt. Knee Joint Region.
12. Bruise 8 Cm. X 2.5 Cm. On The Rt. Side Of The Back Over Upper 1/3 Portion.
Bruise Are Bright Red In The Colour.
All The Injuries Were Found To Be Caused By Hard And Blunt Object And Are Simple In Nature Except Injury Nos.3 And 11. X-ray Was Advised Regarding Injury Nos. 3 And 11. Duration Was Fresh. On X-ray, Injury No.11 Was Found To Be Grievous As There Was Fracture Of Patella In Rt. Knee Joint.
All The Injured Were Brought By Baiju Ram Son Of Kariya To The Primary Health Centre.
The Post Mortem Was Performed By Dr. A.K. Singh, On The Body Of Deceased Teju Ram, On 3.7.1982 At 3:30 Pm. Following Ante Mortem Injuries Were Found On His Body;
1. Lac. Wd. 1 Cm. X 1 Cm. On Rt. Side Head X Scalp Deep 7 Cm. Above Rt. Ear.
2. Contusion 1 Cm. X 1 Cm. On Left Side Head 11 Cm. Above Left Ear.
3. Contusion 2 Cm. X 1 Cm. On Back Of Left Hand. 4 Cm. Below Left Wrist Joint.
4. Contusion 4 Cm. X 2 Cm. On Front Of Left Leg. 12 Cm. Above Left Ankle Joint.
On The Internal Examination, The Doctor Found That 7th, 8th And 9th Ribs Of The Right Side Of Posterior Medial Surface Were Fractured. Rt. Pleura Ruptured, Middle And Lower Lobe Of Right Lung Was Ruptured. Both Chambers Of Heart Were Empty. Stomach And Small Intestine Were Empty. Large Intestine Was Half Full. According To The Doctor, Death Of The Deceased Had Occurred On Account Of Shock And Haemorrhage. Post Mortem Report Is Marked As Exhibit Ka-2.
A Cross Case Was Also Registered At The Instance Of The Accused. Initially, Non-cognizable Report Was Registered Under Sections 323, 504, 506, 427 I.P.C. Which Was Recorded At G.D. No. 25 At 15:10 Hours By Jagdeo. However, Subsequently, First Information Report Was Registered, Which Is Exhibit Kha-1. A Certified Copy Of G.D. Of Cross Case Exhibit Kha-3 Is Also Brought On Record. Four Persons Are Said To Have Received Injuries On The Side Of The Accused, Namely Smt. Dhanji, Jagdeo, Ramjeet And Mahabir. Injuries Of Smt. Dhanji Were Examined At 2:10 Pm. By Dr. V.P. Singh, Injuries Of Mahabir At 2:20 Pm. Injuries Of Jagdeo At 2:30 Pm. And Injuries Of Ramjeet At 2:40 Pm. At P.H.C. Khuthan, District Jaunpur.
(Injuries Of The Accused)
The Injuries Of Accused Jag Deo, Were Examined On The Same Day At 2:30 Pm. Following Injuries Found By Dr. V.P. Singh, On His Body Are;
1. Abrasion 1 Cm. X 0.5 Cm. On Right Shoulder Joint.
2. Contusion 10 Cm. X 2.0 Cm. On Left Scapula Starting From Middle Of Left Scapula To Upper Border Above And Outwards Colour Red.
3. Pain On Left Palm But No External Injury.
All The Injuries Were Found To Be Caused By Hard And Blunt Object And Were Simple In Nature. Duration Was About 1/4 Of A Day As Per Local Condition.
Injuries Of Accused Ramjit, Were Examined On The Same Day At 2:40 Pm. Following Injuries Found By Dr. V.P. Singh, On His Body Are;
1. Contusion 3 Cm. X 3 Cm. On Front & Upper Part Of Left Upper Arm Colour Red, 2 Cm. Below The Left Axilary Front.
2. Abrasion 6 Cm. X 2 Cm. In Front Of Abdomen About 3 Cm. Above The Waist Obliquely & Outer.
3. Traumatic Swelling 3 Cm. X 2 Cm. On Middle Of Forehead Injury Is Kept Under Observation.
All The Injuries Were Found To Be Caused By Hard And Blunt Object And Were Simple In Nature. Duration Was About 1/4 Of A Day As Per Local Condition.
Injuries Of Smt. Dhanji, Were Examined On The Same Day At 2:10 Pm. Following Injuries Found By Dr. V.P. Singh, On Her Body Are;
1. Lacerated Wound 1.5 Cm. X 0.5 Cm. X Scalp Deep On Middle Of Skull Rt. Side 7 Cm. Above The Rt. Ear Injury Is Kept Under Observation.
2. Contusion 6 Cm. X 3 Cm. Outer Side Of Lower 1/3 Of Rt. Upper Arm Colour Red. Inj. Is Kept Under Observation.
3. Lacerated Wound 1.5 Cm. X 0.5 Cm. Outer Boundry Area Traumatic And Swelling 4 Cm. X 5 Cm. Injury Is Kept Under Observation. Inj. Is Entrance And Middle Of Left Forearm 6 Cm. Below The Elbow Joint.
4. Contusion 10 Cm. X 2 Cm. On Front & Inner Side Of Left Thigh 3 Cm. Below The Gluteal Part. Colour Red.
C/o Pain In Palm Left But No External Injury.
All The Injuries Were Found To Be Caused By Hard And Blunt Object. Injuries Nos. 1 To 3 Were Kept Under Observation But The Rest Were Simple In Nature. Duration Was About 1/4 Of A Day As Per Local Condition.
Injuries Of Mahabir, Were Examined On The Same Day At 2:20 Pm. Following Injuries Found By Dr. V.P. Singh, On His Body Are;
1. Lacerated Wound 1 Cm. X 0.5 Cm. On Scalp Deep On Middle Of Skull 3 Cm. About The Forehead. Injury Is Kept Under Observation. Advised X-ray.
2. Abraded In The Area Of 3 Cm. X 4 Cm. On Front And Lower 1/3 And Rt. Upper Arm 2 Cm. Above The Rt. Elbow Joint.
3. Lacerated Wound On Inner Side And Left Thumb In The Area Of 2 Cm. X 0.5 Cm. Bone Deep And Below The Tip Of Thumb And Injury Is Kept Under Observation. Advised X-ray.
4. Abrasion 1 Cm. X 0.5 On Back And Inner Side Of Middle Finger 1 Cm. Below The Tip.
All The Injuries Were Found To Be Caused By Hard And Blunt Object And Were Simple In Nature Except Injury No.1. Duration Was About 1/4 Of A Day As Per Local Condition.
The Prosecution Examined As Many As Eight Witnesses To Prove Its Case. Sri Hunder Prasad, Complainant, Was Examined As P.W.1 And Two Others Eyewitnesses Mithai Lal And Awadhu Were Examined As P.W. 2 And P.W. 3. The Other Injured Witnesses, Jiyalal And Smt. Mahdei, Were Not Produced By The Prosecution. Dr. A.K. Singh Was Examined As P.W.4, Who Performed Post Mortem Of The Deceased Teju Ram And Dr. R.A.L. Gupta As P.W.5, Radiologist To Prove X-ray Report Of Complainant, Hunder Prasad And C.P. 148 Sri Rais Ahmed As P.W.6. Who Has Given His Affidavit To Prove That He Had Taken Dead Body Of The Deceased To The Mortuary For Post Mortem And Identified The Dead Body. Necessary Papers Were Handed Over To Him. Dr. R.S. Lal Was Examined As P.W.7 To Prove Injury Reports Exts Ka-4 To Ka-7 And Shri Ram Mishra, S.O. Investigating Officer As P.W.8.
Learned Counsel For The Appellants Has Advanced His Argument Manifolds. First Argument Is That The First Information Report Is Belated One After Considerable Deliberation. The Occurrence Has Taken Place At 1:00 P.m. At Baranpur, District Jaunpur. Police Station Was Situated Only At The Distance Of 5 Kilometres East Whereas Information Given By The Accused At The Police Station Was At 15:10 Hours And The Accused Were Hunder, Mithai Lal, Mewa Lal And Jiyalal. Their Injuries Were Also Examined Prior In Time. Teju Ram Did Not Die As A Result Of The Alleged Occurrence. He Died A Natural Death. He Was 70 Years Of Age. Injuries Found On His Body Were Not Such, Which Could Cause His Death. In Fact, His 7th, 8th And 9th Ribs Were Found To Be Fractured, Which Resulted In Rupture Of Pleura At Middle And Lower Lobe Of The Right Lung.
It Is Argued By The Counsel For The Appellants That Only One Lacerated Injury Was Found On The Head, Which Was 1 Cm. X 1 Cm. On Right Side Of Head X Scalp Deep 7 Cm. Above Right Ear. There Was Another Contusion 1 Cm. X 1 Cm. On The Left Side Head 11 Cm. Above Left Ear Whereas In The Post Mortem Report No Abnormality Was Detected (N.A.D.) In Skull Bones, Membranes, Base Of Skull And Vertebrae.
Next Argument Is That Dead Body Of The Deceased Was Removed From The Alleged Place Of Occurrence And Kept On The Cot In Front Of His House. It Appears That Ribs Were Broken In Some Other Incident, Which Is Unexplained By The Prosecution And His Death Has No Connection With The Occurrence Whatsoever.
Learned Counsel For The Appellants Has Laid Emphasis On The Fact That Though Use Of Ballam Has Specifically Been Mentioned In The First Information Report But There Is No Ballam Injury Either On The Body Of The Deceased Or Body Of Any Of The Injured Witness. Heavy Emphasis Has Been Laid On The Fact That There Is Not Even A Whisper In The First Information Report Regarding The Accused, Who Have Received Injuries But Eyewitnesses Such As P.W. 1 And P.W. 2 Have Admitted In Their Statement In Chief That They Had Also Caused Injuries On The Side Of The Accused, Though P.W.3 Awadhu Has Denied This Fact.
It Is Also Argued That The Prosecution Failed To Prove Injuries Caused On The Side Of The Accused And Non-explanation Of Injuries To The Accused/appellants, Coupled With Admission By Two Witnesses, As Well As Concealment Of This Fact At The First Instance Renders The Entire Prosecution Story Doubtful. The Counsel For The Appellants Has Tried To Draw Our Attention To The Statement Of The Accused Jagdeo Recorded Under Section 313 Cr.P.C. Where He Has Specifically Given His Reply Disclosing The Manner Of Actual Occurrence. The Accused Has Stated That Charni And Khuta Etc. Were Being Uprooted By Hunder, Which Was Objected By The Accused, And The Same Led To Marpit Between Both Sides. Presence Of The Deceased, Teju Ram, Is Specifically Denied By Each Of Them. No Oral Evidence Has Been Adduced By The Defence But Documentary Evidence Have Been Exhibited, Which Are The Certified Copies Of First Information Report, Injury Reports, Site Plan Etc. From The Record Of S.T.No. 146 Of 1984 State Vs. Hunder Prasad Arising Out Of Cross Case Registered At The Instance Of The Accused. The Statement Of Dr. V.P. Singh, Who Had Examined Injuries Caused To The Four Persons On The Side Of The Accused, Has Also Been Brought On Record And Exhibited In The Trial.
Learned Counsel For The Appellants Has Submitted That In Fact, It Is The Prosecution, Who Was Responsible For Prompting The Scuffle That Took Place Between Two Sides, Who Happens To Be Of The Same Family And Co-owners Of The Land In Question. It Is Thus Evident That The Prosecution Deliberately Suppressed To Reveal The Genesis And Origin Of The Occurrence. Injuries Of Smt. Dhanja, Which Is Still Not Explained By The Prosecution, Though Injuries Caused To The Other Accused Have Been Admitted By The Prosecution Witnesses Half-heartedly. It Is Evident That An Unsuccessful Attempt Was Made By The Prosecution All Through To Conceal The Correct Facts. Therefore, The Accused Are Entitled To Be Acquitted And Given Benefit Of Doubt.
Sri Vijay Shankar Mishra, Advocate, Appearing For The Complainant, Has Disputed Each And Every Arguments Advanced On Behalf Of The Appellants. He Has Argued And Placed Reliance On Statements Of Hunder Prasad And Mithai Lal Where They Have Admitted In Their Examination In Chief That They Had To Retaliate The Assailants At The Hands Of The Accused, Which Resulted In Some Minor Injuries On Their Side. Besides, Session Trial No. 146 Of 1984, State Vs. Hunder Prasad And Three Others, Has Resulted In A Clear Acquittal. The Sessions Judge Has Also Given A Clear Finding That It Was The Accused, Who Were Aggressors And, Therefore, They Were Held Not Guilty And Given Judgment Of Clear Acquittal.
We Have Taken Into Consideration Arguments Advanced By The Counsels For The Respective Parties And Examined The Entire Record, First Question That Has To Be Taken Into Consideration Whether An Offence Under Section 302 I.P.C. Is Made Out Against The Accused Or Not. On A Detailed Scrutiny Of The First Information Report, The Prosecution Evidence Given By Eyewitnesses And Post Mortem Report, It Is True That The Deceased Did Not Die A Natural Death As Suggested By The Defence But It Also Does Not Appear To Us That The Accused Had Caused Injuries To The Deceased With An Intention To Kill Him. Besides, Ante Mortem Injuries Do Not Appear To Be Sufficient To Cause Death Even To A Man Aged About 70 Years. Two Injuries Were Found On The Head And The Same Have Not Resulted In Any Internal Haemorrhage Or Concoction Of Brain. The Doctor Has Also Given Cause Of Death As A Result Of Shock And Haemorrhage But Did Not Say "as A Result Of Ante Mortem Injuries." It Is Evident That The Death Occurred Due To Fracture Of 7th, 8th, And 9th Ribs Of The Deceased, Which Resulted In Puncturing Delicate Organs Such As The Lungs In The Instant Case.
We Have Also Examined Statement Of Dr. A.K. Singh, P.W. 4. He Has Admitted In His Cross Examination That There Are No Corresponding Internal Or External Injuries On The Body Of The Deceased, Which Could Result In Fracture Of Three Ribs And He Was Not Able To Give His Opinion That Which Weapon Can Cause Such Injuries But He Has Also Admitted That Fracture Can Take Place If Injuries Are Caused By Some Soft Weapon. We Have Tried To Analyse What Kind Of 'soft Weapon' Could Cause Fracture Of Ribs Especially When There Was No Bleeding From Any Ante Mortem Injury Whatsoever. The Doctor Was Not Able To Mention That Whether He Had Noticed Blood On Any Clothes Of The Deceased Or Not. We Cannot Overlook The Specific Case Of The Prosecution That One Of The Accused Was Armed With Ballam And, Therefore, If There Was Any Intention To Commit Murder, There Was No Reason Why The Accused Did Not Use Ballam, Which Was Good Enough To Carry Out The Plan Of Murder.
We Have Also Examined Site Plan Prepared By The Investigating Officer. The Altercation Between Two Warring Parties Took Place At Place 'B' , Which Is On The Other Side Of Chak Road. P.W.1 Has Stated In His Cross Examination That Teju Ram Arrived At The Place Where Altercation Was Going On And He Was The One Who Fell Down First, Thereafter The Complainant Fell Down After Receiving Injuries. According To The Witness And After Examining The Site Plan, It Is Evident That Teju Ram Died In 'Jarai Ke Khet Mein', Which Is On The West Side To The Field Of Parti Khet Of Nand Lal. This Is Admitted By Mithai Lal, P.W.2 In His Cross Examination. Apparently, This Completely Contradicts The Version Given Out By Hunder Prasad. He Has Also Admitted In Cross Examination That He Had Seen Blood Oozing Out From Wound Of Mahabir But Has Denied Presence Of Mst. Dhanji. It Is Noteworthy That Dead Body Of Teju Ram Was Removed From The Field And Taken To His House Before Police Was Informed And, Therefore, We Are Not Able To Accept And Place Implicit Faith In Prosecution Version That Teju Ram Died At The Place Where Marpit Was Going On, Which Was A Joint Holding Of The Accused As Well As Complainant.
Considering All Aspects Of The Case And Evidence On Record, We Are Of The Opinion That Death Of The Deceased Was Not Caused On Account Of Any Assault By The Accused And The Prosecution Has Not Been Able To Establish A Definite And Fool Proof Case Beyond Doubt To Hold That Death Of Teju Ram Was As A Result Of Well Intentioned Assault To Murder Him And A Result Of Ante Mortem Injuries.
There Are A Number Of Other Aspects Of The Prosecution Case, Which Strikes A Note Of Discord Between The Story Set Up In The First Information Report And Subsequent Chain Of Events As Well As Evidence On Record And Deposition Of Witnesses During The Trial. It Is Evident That The Prosecution Has Deliberately Suppressed Genesis And Origin Of The Occurrence Merely By Accepting The Conclusion Of Session Trial No. 146 Of 1984, State Vs. Hunder Prasad And Three Others. The Prosecution Has Failed To Explain Injuries On The Side Of The Accused. Perusal Of Injury Report Of Smt. Dhanji And Mahabir Show That They Received Injuries On Head, A Vital Part Of The Body, And Were Not Self Inflicted And Were Caused In The Scuffle Between Complainant Side And The Accused. These Injures Are On Vital Parts And The Admission By Witnesses That They Had Also Indulged In Marpit And Also That They Had Seen Blood Oozing Out From Injuries Of Mahabir Cannot Be Waived Lightly.
The Apex Court In The Case Of Mohar Rai Vs. State Of Bihar A.I.R. 1968 S.C. Page 1281, Held That The Trial Court As Well As High Court Wholly Ignored The Significance Of Injuries Found On The Accused Mohar Rai. In The Said Case, The Apex Court Was Of The View That Since Injuries Caused To The Accused Could Not Have Been Self Inflicted And It Was Most Unlikely That They Would Have Been Caused At The Instance Of The Appellants Themselves. It Was Further Held That The Prosecution Had A Duty To Offer Explanation And Failure To Do So, Shows That Evidence Of The Prosecution Witnesses Relating To The Incident Is Not True Or At Any Rate Not Wholly True. Further Those Injuries Probabilise The Plea Taken By The Appellants.
In The Instant Case, Nature Of Injuries Are Such That They Cannot Be Self Inflicted And Admission On The Part Of The Prosecution Witnesses That Injuries Were Caused By The Side Of The Complainant In The Scuffle Which Had Ensued, Is Sufficient To Negate Theory And Conclusion Of The Sessions Judge.
The Apex Court In The Case Of Babu Ram And Others Vs. State Of Punjab J.T. 2008 (2) SC 384, Held That Omission On The Part Of The Prosecution To Explain Injuries On The Person Of The Accused Assumes Much Greater Importance Where Evidence Consists Of Interested Or Inimical Witnesses Or Where Defence Gives A Version Which Competes In Probability With That Of Prosecution One.
In The Instant Case, Admittedly, Witnesses Are All Interested And Inimical. Besides, Own Admission During The Trial That They Had Inflicted Injuries On The Accused, Is Good Enough Reason To Come To A Conclusion That The Prosecution Has Failed To Analyse As To Who Was Responsible For Prompting The Scuffle. The Admitted Case Is That Marpit Took Place On A Joint Holding, Which Was In The Use By Both Parties. The Fact Is That One Party Alleged That Naad And Charni Were Being Installed With A View To Grab Some Area Of The Land And Stand Taken By Opposite Party That Naan And Charni Already In Existence Were Being Uprooted By The Prosecution, Which Led In An Altercation Between The Two Parties And Injuries Were Caused On Both Sides. So Far The Deceased Teju Ram Is Concerned, No Doubt He Died On The Same Day But Once Again At The Cost Of Repeatition, We Cannot Give Good-bye To The Fact That Injuries Alleged To Be Caused By The Accused, Have No Correlation With Internal Damage Of Ribs, Which Resulted In His Death On Account Of Rapture Of Lungs As Well As The Fact That Site Plan Shows The Place Of Scuffle On One Side Of Chak Road Whereas The Deceased Was Shown To Have Received Injuries In 'Parti Khet Of Nand Lal'.
In The Instant Case, When We Consider The Story Set Up By The Prosecution And The Defence, Where Defence Appears To Be More Probable And Existence Of Injuries On The Person Of The Accused, Definitely Throw A Doubt On The Prosecution Case. This Principle Has Been Laid Down By The Apex Court, In The Case Of Lakshmi Singh Vs. State Of Bihar AIR 1976 SC 2263.
Learned Counsel For The Appellants Has Also Cited Two Decisions Of The Apex Court; State Of U.P. Vs. Atar Singh And Others J.T. 2007 (12) SC Page 445 And Satya Narain Yadav Vs. Gajanand And Another J.T. 2008 (8) SC Page 432. Both These Cases Are Based On The Right Of Private Defence. No Doubt, The Complainant And His Associates Were Accused In The Cross Case, Which Resulted In Acquittal In Session Trial No. 146 Of 1984, State Vs. Hunder Prasad And Three Others. The Plea Of Private Defence Was Taken And The Learned Sessions Judge Was Of The View That It Was The Appellants Who Were Aggressors. Emphasis From The Side Of The Prosecution On The Judgment Delivered By III Additional Sessions Judge, Jaunpur, In Session Trial No. 146 Of 1984, Has No Relevance In The Present Case For The Reason That Neither The Learned Trial Judge Proceeded To Examine The Evidence Nor Any Plea Of Private Defence Was Taken By The Appellants But It Was An Admitted Fact That The Place Of Occurrence Is A Joint Holding Of The Parties Where Quarrel Ensued Because Of Uprooting Of Naad And Charni And Injuries Were Received On Both Sides. The Death Of Teju Ram At The Time Of Altercation Has Been Denied By Each Of The Accused. They Did Not See His Presence And Participation In The Scuffle. A Non-cognizable Report Was Registered Against Hunder Prasad, Mithai Lal, Mewa Lal And Jiya Lal, At 15:10 Hours, Which Is Prior In Time Whereas The First Information Report Was Registered Against The Appellants At 7:30 Pm. Name Of Deceased Teju Ram Does Not Find Place In The N.C.R., Presence Of Teju Ram Is Apparently Doubtful. Besides, Cause Of His Death As Admitted By The Doctor In His Cross Examination That There Is No Corresponding Ante Mortem Injuries To The Cause Of Death, Which Is Broken Ribs Resulting In Puncturing Lungs And Pleura. There Was No Internal Or External Haemorrhage Corresponding With The Injuries Alleged To Be Caused By The Accused. In The Circumstances, We Are Unable To Accept The Prosecution Version. The Prosecution Has Failed To Establish Its Case Beyond Doubt. The Evidence Is Not Credit Worthy And Its Way Out Of Fact And Omission On The Part Of The Prosecution To Explain Injuries On The Side Of The Accused As Well As Manner In Which Occurrence Is Said To Have Taken Place Which Could Have Caused Death Of Teju Ram. The Obligation Is On The Prosecution To Explain A Number Of Circumstances Especially When Occurrence And Scuffle Between The Two Parties, Is Admitted. We Are Unable To Accept The Prosecution Case After Giving A Careful Consideration To The Submission Made By Sri Vijai Shankar Mishra, Counsel Appearing For The Complainant And Learned A.G.A. For The State Especially In The Background Of Well Settled Proposition Of Law, And In View Of Improbabilities, Serious Omission And Infirmity, Interested Nature Of Evidence And Other Circumstances, It Is Evident That The Prosecution Has Failed To Prove Its Case Beyond Reasonable Doubt.
For The Reasons Given Hereinabove, We Allow The Instant Appeal And Set Aside Judgment And Order Dated 4.6.1986 Passed By III Additional Sessions Judge, Jaunpur, In S.T. No. 100 Of 1983, State Vs. Jairam And Eight Others, Convicting The Appellants.

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