Mukunda & Others vs State
2014 Latest Caselaw 4974 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

    									A.F.R.                                                                                     				                                                Reserved
 
Case :- CRIMINAL APPEAL No. - 1202 of 1994
 

 
Appellant :- Mukunda & Others
 
Respondent :- State
 
Counsel for Appellant :- Indra Kr. Chaturvedi,I.K. Chaturvedi
 
Counsel for Respondent :- Aga Shri Basharat Ali Khan, complainant Shri Shiv Babu Dubey
 

 
Hon'ble Arun Tandon,J.

Hon'ble Akhtar Husain Khan,J.

(Delivered by Hon'ble Akhtar Husain Khan,J)

Present appeal has been filed by accused appellants Mukunda, Munna, Lalu and Chhota under section 374(2) Cr.P.C. against judgement and order dated 2.8.1994 passed by Special Judge (E.C. Act), Banda in S.T. No.176 of 1992, State Vs. Mukunda and others, under sections 147, 148, 307, 307/149, 302/149 I.P.C., Police Station Kotwali Dehat, District Banda whereby learned Special Judge (E.C. Act), Banda has convicted accused-appellant Mukunda and Munna for offences punishable under section 302 I.P.C. read with section 149 I.P.C., section 307 I.P.C. and section 148 I.P.C. and accused-appellants Lalu and Chhota for offences punishable under section 302 I.P.C. read with section 149 I.P.C., section 307 I.P.C. read with section 149 I.P.C. and section 147 I.P.C. Learned Special Judge has sentenced accused-appellants Mukunda and Munna for offence punishable under section 302 I.P.C read with section 149 I.P.C. with imprisonment for life, for offence punishable under section 307 I.P.C. with rigorous imprisonment for a period of seven years and for offence punishable under section 148 I.P.C. with rigorous imprisonment for a period of two years. Learned Special Judge has sentenced accused-appellants Lalu and Chhota for offence punishable under section 302 I.P.C. read with section 149 I.P.C. with imprisonment for life for offence punishable under section 307 I.P.C. read with section 149 I.P.C. with rigorous imprisonment for a period of five years and for offence punishable under section 147 I.P.C. with rigorous imprisonment for a period of one year. Learned Special Judge has further directed that all sentences of all accused-appellants shall run concurrently.

Accused-appellants Mukunda and Chhota have expired during pendency of appeal. Appeal abated in respect of accused appellants Mukunda and Chhota.

We have heard Shri I.K. Chaturvedi, learned counsel for accused appellants, Shri Basharat Ali Khan, learned A.G.A. for State respondent and Shri Shiv Babu Dubey, learned counsel for complainant. We have perused records.

According to the first information report Exhibit Ka. 1 in short prosecution story is that on 23.7.1990 in the morning at about 7.00 A.M. Ram Manohar the nephew of informant Dallu had gone near pond to ease himself. Accused Mukunda abused him. He came to his house and narrated the occurrence to his uncle Dallu. In the meantime, accused Mukunda and his elder son Munna armed with barchhis and accused Chhota, Lalu and Raju all sons of accused Mukunda armed with lathies came at the door of the complainant. Munna gave a blow of barchhi to complainant Dallu at abdomen with intention to kill him. Bhauwan @ Ram Awtar and Ram Lal brothers of complainant Dallu came to rescue him. Thereafter accused Mukunda and Munna caused injuries with barchhis and accused Chhota, Lalu and Raju caused injuries with lathies to Bhauwan. After having received injuries, Bhuwan fell down on earth. Ram Piyari wife of Bhauwan and Ram Devi daughter of Bhauwan also came to rescue Bhauwan. They were also beaten by accused with lathies. On raising alarm many people of the village came there and challenged the accused. Thereafter all accused ranaway from spot. Bhauwan alias Ram Awtar brother of complainant succumbed to injuries on spot.

According to the first information report Exhibit Ka.1 complainant Dallu, his brother Ram Lal, his brother Bhuwan's wife Ram Pyari and daughter Ram Devi have also suffered injuries of barchhies and lathies.

According to the first information report Exhibit Ka. 1 accused Mukunda had beaten Gopal father of complainant much before this occurrence. There was old enmity with accused and because of this animosity accused had committed murder of complainant's brother Bhauwan alias Ram Awtar.

Complainant Dallu got first information report written by Ram Kishor and presented the same at the police station Kotwali Dehat, District Banda on 23.7.1990 at 11.30 A.M. whereupon Crime No.113 of 1990, under sections 147, 148, 307, 307/149 302/149 I.P.C. was registered against accused appellants Mukunda, Munna, Chhota, Lalu and Raju and investigation was started by police. Police prepared inquest report of the deceased Bhauwan alias Ram Awtar and dead-body was sent for post-mortem in a sealed cover after having completed necessary formalities. Injured complainant Dallu and Ram Lal were also sent for medical examination and their injury reports Exhibits Ka.16 and Ka.15 were prepared by P.W. 7 Dr. K.C. Gupta and P.W.6 Dr. S. Alam respectively. Investigation was completed by police in accordance with law and after having completed investigation police submitted charge sheet against accused Mukunda, Munna, Lalu, Chhota and Raju under sections 147, 148, 302, 307, 504 I.P.C. whereupon concerned Magistrate took cognizance. Accused Raju was juvenile. Therefore after compliance of section 207 Cr.P.C. Magistrate committed the case to the court of session for trial of accused Mukunda, Munna, Lalu and Chhota. Thereafter S.T., No. 176 of 1992, State vs. Mukunda and others was registered in session court of district Banda. Later on said session trial was transferred to the court of Special Judge (E.C. Act), Banda, who framed charges against accused Mukunda and Munna for offences purchasable under sections 148, 307 and 302 read with section 149 I.P.C. and against accused Lallu and Chhota for offences punishable under sections 147, 307 read with section 149 and 302 read with section 149 I.P.C.

All the accused pleaded not guilty and claimed to be tried.

Prosecution examined P.W.1 complainant Dallu, P.W.2 Ram Lal, P.W.3 Dr.B.K. Saxena, P.W.4 Constable 140 C.P. Shiv Pal Singh, P.W.5 S.I. Abad Ullah, P.W.6 Dr. S. Alam and P.W.7 Dr. K.C.Gupta and closed his evidence.

After prosecution evidence, statements of accused were recorded under section 313 Cr.P.C. All the accused stated that they have been falsely implicated due to animosity. Accused Mukunda has stated in his statement under section 313 Cr.P.C. that he and his son are innocent. He has further stated that there was gaon samaj land in north of pond which had been allotted to Khumhars on patta. Complainant Dallu and others were saying that the said land belongs to him and they shall not permit Kumhars to take possession of the land. Accused Mukunda has stated in his statement under section 313 Cr.P.C. that Khumhars of the village went to take possession of land. Complainant Dallu and others obstructed them which resulted in fighting.

Accused adduced no evidence in defence.

Learned trial court heard arguments of both parties and passed impugned judgement and order dated 2.8.1994 whereby he convicted and sentenced accused appellants as mentioned above.

Learned counsel for the accused-appellants contended that judgement and order passed by trial court is against law as well as against evidence on record.

Learned counsel for the accused-appellants contended that out of seven witnesses examined by prosecution only P.W.1 complainant Dallu and P.W.2 Ram Lal are witnesses of fact and occurrence and both are brothers.

Learned counsel for the accused-appellants contended that both P.W.1 complainant Dallu and P.W. 2 Ram Lal had old enmity with accused Balmukunda and his sons. Therefore statements of these two witnesses cannot be relied.

Learned counsel for the accused-appellants contended that statements of P.W.1 complainant Dallu and P.W.2 Ram Lal are full of contradictions. On this score also statements of these witnesses are not reliable.

Learned counsel for the accused-appellants further contended that Investigating Officer did not find blood stains on the alleged place of occurrence. Therefore, the place of occurrence alleged by prosecution is highly doubtful and prosecution story may not be relied upon.

Learned counsel for the accused-appellants prayed that appeal should be allowed and all accused appellants should be acquitted.

Learned A.G.A. contended that evidence adduced by prosecution is sufficient to prove accused appellants guilty of offences levelled against them.

Learned A.G.A. further contended that conviction recorded by trial court is based on evidence and there is no sufficient ground to justify interference in conviction recorded by trial court. He has further contended that sentence awarded by trial court is not excessive. Therefore, no interference is required on this score also.

Learned A.G.A. prayed that appeal should be dismissed.

We have considered the submissions made by the parties.

Out of above seven witnesses examined by prosecution before trial court P.W.1 complainant Dallu and P.W.2 Ram Lal are the witnesses of fact and occurrence and they have fully supported prosecution version narrated in the first information report.

P.W.1 complainant Dallu has proved first information report Exhibit Ka.1 also in his statement. He has stated in his statement that he got written this report Exhibit Ka.1 by Ram Kishore and presented the same to Police Station Kotwali Dehat, District Banda.

P.W.3 Dr. B.K. Saxena has stated in his statement that on 24.7.1990 he was posted as Medical Officer in district Hospital, Banda and on that day at 2.15 P.M. he conducted post-mortem of deceased Bhauwan alias Ram Awtar son of Gopal. He has stated in his statement that dead-body was identified by Constable C.P. 140 Shivpal Singh and Constable C.P. 456 Virendra Kumar Police Station Kotwali Dehat. He has proved post-mortem report of deceased Bhauwan alias Ram Awtar Exhibit Ka.2. He has stated in his statement that he had handed over blood stained clothes of deceased in sealed cover to above constables after post-mortem.

P.W.4 Constable Shiv Pal Singh has stated in his statement that on 23.7.1990 he was posted in Police Station Kotwali Dehat, District Banda as constable. On that day he was handed over dead-body of deceased Bhauwan alias Ram Awtar in sealed cover alognwith constable Virender Kumar. They brought the dead-body to post-mortem house. He has stated that dead-body remained in sealed cover till it was in his custody.

P.W.5 S.I. Abad Ullah has stated in his statement that on 23.7.1990 he was posted in Police Station Kotwali Dehat, District Banda as S.I. He has proved chick F.I.R. Exhibit Ka.3 and copy of G.D. relating to registration of crime Exhibit Ka.4 as secondary witness. He has stated that injured Dallu complainant P.W. 1 was sent through Homeguard Hari Om with chitthi majrubi for medical examination. He has proved chitthi majrubi Exhibit Ka.5.

P.W. 5 S.I. Abad Ullah has proved inquest report of deceased Bhauwan alias Ram Awtar Exhibit Ka.6, Photo Nash Exhibit Ka.7, Chalan Nash Exhibit Ka.7, report to C.M.O. Exhibit Ka.8 and report to R.I. Exhibit Ka.10. He has stated in his statement that he kept the dead-body of deceased Bhauwan alias Ram Awtar in sealed cover and prepared specimen of seal Exhibit Ka.11. He has stated that he handed over dead-body of deceased Bhauwan alias Ram Awtar to constables Shiv Pal Singh and Virendra Kumar for post-mortem.

P.W.5 S.I. Abad Ullah has stated that he made inspection of place of occurrence at the instance of injured Ram Lal and prepared site plan of occurrence Exhibit Ka.12 in his handwriting and with his signature. He has proved chitthi majrubi of Ram Lal Exhibit Ka.13. He has further stated in his statement that there was raining. Therefore, no blood was found on the place of occurrence. He has further stated that later on investigation was taken over by Station Officer, who completed investigation and submitted charge sheet. He has proved charge sheet Exhibit Ka.14 by identifying handwriting and signature of then Station Officer.

P.W.6 Dr. S. Alam has stated in his statement that on 24.7.1990 he was posted as Medical Officer in District Hospital, Banda. On that day at 10.05 A.M. he conducted medical examination of P.W.2 Ram Lal. He has proved injuries of injured P.W.2 Ram Lal as well as his injury report Exhibit Ka.15.

P.W.7 Dr. K.C. Gupta has stated in his statement that on 23.7.1990 he was posted as Medical Officer in District Hospital, Banda. On that day at 3.00 P.M. he conducted medical examination of P.W.1 complainant Dallu. He has proved injuries of P.W.1 Dallu as well as his injury report Exhibit Ka.16.

In the case of Brahm Swaroop and another Vs. State of U.P. A.I.R. 2011 S.C. 280, Hon'ble Apex Court held that "merely because the witnesses were closed relatives to the deceased that cannot be ground to discard their evidence".

In the case of Vithal vs. State of Maharastra (2008) 1 SCC (Crl.) 91, Hon'ble Apex Court held that "testimony of mother of deceased should not be be discarded on the ground that she is an interested witness."

In the case of Ranjit Singh and others Vs. State of Madhya Pradesh A.I.R. 2011 S.C. 255, Hon'ble Apex Court held that "undoubtedly, all the eye witnesses including injured witnesses are closely related to the deceased. Thus, in such a fact situation, the law requires the court to examine their evidence with care and caution. Such close relatives and injured witnesses would definitely not shield the real culprits of the crime and name somebody else because of enmity."

In the case of Dharmaveer and others Vs. State of U.P., A.I.R. 2010 S.C. 1378, Honourable Apex Court held that "in view of extreme strained relations between the two sides no independent witness could dare to depose in favour of prosecution risking his own life. Two eye witnesses P.W.1 Jaipal Singh and P.W.2 Shio Charan cannot be disbelieved merely because of being related with deceased especially in the circumstances narrated above."

In view of above pronouncement of Hon'ble Apex Court, it is apparent that testimony of witnesses may not be discarded only on the ground of relationship or enmity with accused.

Perusal of chick F.I.R. Exhibit Ka.3 as well as copy of G.D. relating to registration of crime Exhibit Ka.4 shows that complainant Dallu presented written first information report Exhibit Ka.1 at police station Kotwali Dehat, District Banda at 11.30 A.M. On the basis of which chick F.I.R. Exhibit Ka.3 has been written by Constable C.P.338 Harbansh Lal. Time of occurrence is 7.00 A.M. The distance from place of occurrence is 5 kilometre. Thus it is apparent that F.I.R. has been lodged promptly on the same day without unnecessarily delay.

Perusal of statements of P.W.7 Dr. K.C. Gupta as well as injury report of P.W.1 complainant Dallu Exhibit Ka.16 shows that medical examination of injuries of complainant P.W.1 Dallu has been done by P.W.7 Dr. K.C. Gupta on 23.7.1990 at 3.00 P.M. on the date of occurrence. The following injuries have been found on his body.

"1. Lacerated wound 2 ½ cm X ¼ cm X scalp deep on the right side skull, 7 cms above the right ear, margins lacerated. Dark coloured clotted blood was present.

2. Penetrating wound ½ cm X 0.2 cm X probing is not done on his right side abdomen, 8 ½ cms lateral to the umbilicus at 10 'O' clock position, Margins clean out averted, Dark coloured clotted blood and oozing were present."

According to P.W.7 Dr. K.C. Gupta as well as injury report Exhibit Ka.16 injuries found on the body of P.W.1 complainant Dallu were 1/4th day old. It means injuries found on the body of P.W.1 complaint Dallu may be caused at the time of occurrence alleged by prosecution.

Perusal of statement of P.W.6 Dr. S.Alam as well as injury report of P.W.2 Ram Lal Exhibit Ka. 15 shows that medical examination of P.W.2 Ram Lal was conducted on 24.7.1990 at 10.05 A.M. by P.W.6 Dr. S. Alam and following injuries have been found on his body.

"1. Penetrating wound 1 cm X 0.3 cm X muscle deep on anterior aspect of middle of right arm 7 cms above the elbow joint. Margins inverted irregular surrounded by indurated are 1 cm X 1 cm around wound.

2. Penetrating wound 0.2 cm X 0.2 cm X 0.5 cm on medial side of right arm, 8 cms above the medial eptcendyle of humerous. Margins inverted and surrounded by indurated area 0.5 cm X 0.5 cm around wound.

3. Linear abrasion 1 cm X 0.2 cm on lateral side of middle of right arm, 2 cms lateral to injury no.1.

4. Abrasion 8 cms X 2 cms on dorsal aspect of right forearm extending on its medial side situated 4 cms above the wrist joint".

According to P.W.6 Dr.S. Alam as well as injury report of P.W.2 Ram Lal Exhibit Ka.15 injuries of P. W. 2 Ram Lal were found about one day old at the time of examination. Thus, it is apparent from the statement of P.W.6 Dr. S.Alam as well as injury report Exhibit Ka.15 that injuries found on the body of P.W.2 Ram Lal may be caused at the time of occurrence alleged by prosecution.

In F.I.R. Exhibit Ka.1 complainant P.W.1 Dallu has specifically stated that he has suffered injuries of barchhis in his head and abdomen. In F.I.R. Exhibit Ka.1 he has also stated that accused caused injuries to his brother Ram Lal, brother's wife Smt. Piyari and brother's daughter Ram Devi with lathies and barchhis. P.W.1 complainant Dallu has stated in his statement that accused Munna gave a blow of barchhi in his abdomen and accused Mukunda gave a blow of barchhi on his skull. He has further stated that accused Munna and Mukunda caused injuries to P.W.2 Ram Lal with barchhis. P.W.2 Ram Lal has stated in cross examination on page 2-3 (page 44-45 of paper book) that P.W.1 complainant Dallu suffered injuries of barchhis on head and abdomen. He has further stated that Munna caused injuries with barchhis to P.W.1 complainant Dallu in abdomen and Mukunda caused injuries to him with barchhi on forehead. He has stated in examination in chief that accused Mukunda and Munna caused injuries to him with barchhis. Thus it is apparent from the statements of P.W.1 complainant Dallu, P.W.2 Ram Lal, P.W.6 Dr. S. Alam and P.W.7 Dr. K.C. Gupta as well as F.I.R. Exhibit Ka.1 and injury reports of P.W.1 complainant Dallu and P.W.2 Ram Lal Exhibits Ka. 16 and Exhibit Ka.15 respectively that P.W.1 complainant Dallu and P.W.2 Ram Lal both have suffered injuries in occurrence alleged by prosecution.

As mentioned above P.W.1 complainant Dallu had one lacerated wound and one penetrating wound while P.W.2 Ram Lal had two penetrating wounds, one linear abrasion and one abrasion. Penetrating wounds may be caused by pointed weapon like barchhi. Pointed weapon may also cause lacerated wound and abrasion if penetration is not done and weapon passes over touching part of body. Therefore, lacerated wound or abrasion found on the body of P.W.1 complainant Dallu and P.W.2 Ram Lal may be caused by barchhis.

In view of above medical reports of P.W.1 complainant Dallu and P.W.2 Ram Lal may not be inconsistent with prosecution version.

We have examined statement of P.W.1 complainant Dallu and P.W.2 Ram Lal carefully.

We are unable to find out any material contradictions in their statements to disbelieve them.

In the case of State of U.P. Vs. Krishna Master and others; 2010 Cri. L.J. 3889 (SC) Hon'ble Apex Court held that "the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof."

In the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri 2012 (IV) SCC 124, Hon'ble Apex Court held that "minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person."

In the case of State of U.P. Vs. Krishna Master and others; 2010 Cri. L.J. 3889 (SC) (supra) Hon'ble Apex court held that "the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole."

Perusal of statements of P.W.1 complainant Dallu and P.W.2 Ram Lal shows that they are illiterate persons and have put their thumb impressions in their statements. Therefore, it is apparent that these witnesses are illiterate rustic witnesses. Therefore, it could not be proper to disbelieve their testimonies only on the ground of minor contradictions.

In F.I.R. Exhibit Ka.1 complainant P.W.1 Dallu has mentioned that accused Mukunda and Laxman had beaten his father Gopal. Therefore, they had an old enmity with him. In cross examination P.W.1 complainant Dallu has stated at page 13 (page 28 of the paper book) when zamindari was abolished at that time Mukunda and his father had beaten his father Gopal. More than 40 years have passed since this occurrence. P.W.1 complainant Dallu had admitted in cross examination that Kumhars of the village had got patta of his abadi land for which litigation was going on between him and Kumhars. Thus statements made by P.W.1 complainant Dallu in cross examination shows that there was dispute of land between him and Kumhars of the village. But P.W.1 complainant Dallu and P.W.2 Ram Lal both have denied suggestion of defence regarding Marpit with Kumhars and there is no evidence on record to show that at the time of occurrence Kumhars of the village tried to take possession of land from complainant and his brother which resulted in marpeet in which complainant P.W.1 Dallu, P.W.2 Ram Lal and deceased Bhauwan @ Ram Awtar suffered injuries. The story put by defence is quite unnatural and not acceptable.

Perusal of statement of P.W. 5 S.I. Abad Ullah as well as inquest report Exhibit Ka.6 shows that inquest report Exhibit Ka.6 has been prepared by P.W.6 Dr. S. Alam on 23.7.1990 at 6.00 P.M.

Perusal of statement of P.W.3 Dr. B.K. Saxena as well as post-mortem report of deceased Bhauwan @ Ram Awtar Exhibit Ka.2 shows that post-mortem of deceased Bhauwan @ Ram Awtar was conducted by P.W.3 Dr. B.K. Saxena on 24.7.1990 at 2.15 P.M. and five ante mortem injuries were found on his body, out of which injuries no.1 and 4 were penetrating wound while injuries no.2 and 5 were contusions and injury no.3 was lacerated wound. The injuries found on the dead-body of deceased Bhauwan @ Ram Awtar shows that these injuries may be caused by lathies and barchhis. In post-mortem report Exhibit Ka.2 time of death has been mentioned 1 1/4 day old and P.W.3 Dr. B.K. Saxena has stated in his statement that death of deceased Bhauwan @ Ram Awtar may have occurred on 23.7.1990 at 7.00 P.M.

In F.I.R. Exhibit Ka.1 it has been specifically mentioned that "eqqdqUnk o eqUuk cjNh ls o rhuksa yM+ds NksVk] ykyw o jktw esjs HkkbZ Hkmou dks ekjus yxs fd esjk HkkbZ Hkmou pksV [kkdj tehu ij fxj x;kA" In F.I.R. Exhibit Ka.1 it has also been specifically mentioned that Chhota, Lalu and Raju had lathies version of F.I.R. Exhibit Ka.1 has been fully supported by P.W.1 complainant Dallu and P.W.2 Ram Lal in their statements on oath. According to F.I.R. date of occurrence is 23.7.1990 and time of occurrence is 7.00 A.M. Time of occurrence has been supported by P.W.1 complainant Dallu and P.W.2 Ram Lal in statements on oath.

In view of above, it is apparent that version of F.I.R. Exhibit Ka.1 as well as statements of P.W. 1 complainant Dallu and P.W.2 Ram Lal are fully corroborated by post-mortem report Exhibit Ka.2. As discussed above, version of F.I.R. Exhibit Ka.1 as well as statement of P.W.1 complainant and P.W.2 Ram Lal regarding their injuries are fully supported by statements of P.W.6 Dr. S. Alam and P.W.7 Dr. K.C. Gupta as well as their injury reports Exhibit Ka.16 and Exhibit Ka.15.

P.W.1 complainant Dallu and P.W.2 Ram Lal are injured witnesses and their testimonies are corroborated by medical evidence.

In F.I.R. Exhibit Ka.1 it has been alleged that accused caused injuries to Smt. Piyari wife of complainant's brother and daughter of complainant's brother but neither Smt. Piyari nor daughter of complainant's brother was medically examined. The reason for non-examination of these two injured alleged by prosecution is that they have superficial injuries. The reason for non-examination of injuries of these two injured appears reasonable. Therefore we are of the view that no adverse inference should be drawn for non-examination of injuries of these two injured.

P.W.5 S.I. Abad Ullah has stated in his statement that at the time of occurrence there was raining. Therefore, no blood was found on the place of occurrence.

P.W. 5 S.I. Abad Ullah Investigating Officer has shown in site plan Exhibit Ka.12 place with letter 'A' where body was found and this place is the house of deceased Bhauwan @ Ram Awtar. It appears natural to keep the dead-body in the house due to rain.

In view of statement of accused Mukunda fighting (Marpeet) took place between Kumhars and complainant as well as his brothers regarding possession of land situated in north of pond (talab). Thus according to defence the place of occurrence is talab. In site plan Exhibit Ka.12 Investigating Officer S.I. Abad Ullah has shown talab. Talab is situated near the house of complainant P.W.1 Dallu and deceased Bhauwan @ Ram Awtar. As mentioned above the story put forward by defence regarding marpeet with Kumhars is not acceptable. According to the prosecution on 23.7.1990 in the morning at about 7.00 A.M. Ram Manohar the nephew of complainant went to pond (talab) to ease himself where accused Mukunda abused him. Thereafter Ram Manohar came to his house and narrated the occurrence to his uncle Dallu. In the meantime, accused Mukunda and his elder son Munna armed with barchhis and accused Chhota, Lalu and Raju armed with lathies came at the door of the complainant and they caused injuries to complainant Dallu and his brothers Bhauwan @ Ram Awtar and Ram Lal. The place of occurrence alleged in F.I.R. has been supported by P.W.1 complainant Dallu and P.W.2 Ram Lal in their statements on oath and according to site plan Exhibit Ka.12 Talab is adjacent to house of Bhauwan @ Ram Awtar and complainant P.W.1 Dallu. There is nothing on record to deny the place of occurrence alleged by prosecution. Therefore, we are of view that place of occurrence alleged by prosecution is proved.

Enmity is two edged weapon where it may be cause of false implication it shall also be cause of occurrence.

After having considered whole facts and circumstances of the case as well as whole evidence on record, we are of the view that P.W.1 complainant Dallu and P.W.2 Ram Lal are trustworthy witnesses and there is no sufficient ground to disbelieve them.

We have perused impugned judgement and order of learned trial court.

Learned trial court has gone through all aspects of the case and has discussed evidence on record in detail. In view of conclusion drawn above, we are of the view that learned trial court has rightly placed reliance upon evidence adduced by prosecution to convict accused-appellants.

It is apparent from F.I.R. Exhibit Ka.1 as well as statements of P.W.1 complainant Dallu and P.W.2 Ram Lal that accused appellants Munna and Lalu were members of unlawful assembly alongwith two deceased accused appellants Mukunda and Chhota and juvenile accused Raju. It is also apparent from version of the F.I.R. Exhibit Ka.1 as well as statements of P.W.1 complainant Dallu and P.W.2 Ram Lal that accused appellant no.1 Mukunda (dead) and accused appellant Munna were armed with barchhis and rest accused were armed with lathies. It is also apparent from version of the F.I.R. Exhibit Ka.1 as well as statements of P.W.1 complainant Dallu and P.W.2 Ram Lal that all the five accused came at the door of complainant and caused injures to complainant P.W.1 Dallu and his brothers Bhauwan @ Ram Awtar (now dead) and P.W.2 Ram Lal. Therefore, considering whole facts and circumstances of the case as well as evidence on record, we are of the view that it is apparent that all five persons formed an unlawful assembly with common object of causing injuries to complainant Dallu P.W.1 and his brothers Bhauwan @ Ram Awtar (now dead) and P.W.2 Ram Lal.

Perusal of post-mortem report Exhibit Ka.2 as well as statement of P.W.3 DR. B.K. Saxena shows that ante mortem injuries found on the body of deceased Bhauwan @ Ram Awtar were sufficient to cause death in ordinary course.

Perusal of injury reports Exhibits Ka.15 and Ka.16 as well as statements of P.W.6 Dr. S.Alam and P.W.7 Dr. K.C. Gupta shows that two penetrating wounds have been found on the body of P.W.2 Ram Lal, while one penetrating wound has been found on the body of complainant P.W.1 Dallu. Penetrating wound of complainant P.W.1 Dallu was on the abdomen. P.W.1 complainant Dallu had also a lacerated wound on head. Abdomen and head both are vital parts of body.

Therefore, considering whole facts and circumstances of the case as well as evidence on record, we are of the view that trial court has rightly held accused appellant Munna guilty for offences punishable under section 148 I.P.C., section 302 I.P.C. read with section 149 I.P.C. and section 307 I.P.C. Considering whole facts and circumstances of the case as well as evidence on record, we are of the view that trial court has rightly held accused appellant Lalu guilty for offences punishable under section 302 I.P.C. read with section 149 I.P.C., section 307 I.P.C. read with section 149 I.P.C. and section 147 I.P.C.

Sentence awarded by trial court does not appear excessive and no appeal has been filed by State for enhancement of sentence.

In view of discussion made above as well as conclusion drawn above, we are of the view that there is no sufficient ground to justify interference in the impugned judgement and order passed by trial court. We are of the view that appeal has no merit and is liable to be dismissed.

The appeal is is dismissed accordingly.

Accused appellants Munna and Lalu are on bail. They shall surrender before the trial court for serving sentences within 30 days from the date of judgement of this Court, failing which trial court shall ensure their arrest and shall send them to jail for serving sentence in accordance with law.

Office is directed to send copy of judgement to trial court for securing compliance.

Lower court record shall be returned to the concerned court immediately.

 
Order Date :-26.8.2014 
 
RU
 
         (Hon. Akhtar Husain Khan,J)               (Hon. Arun Tandon,J)