State Of U.P. vs Hitendra Rai And 13 Others
2014 Latest Caselaw 8852 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 
A.F.R.
 

 
Case :- GOVERNMENT APPEAL No. - 4180 of 2014
 

 
Appellant :- State Of U.P.
 
Respondent :- Hitendra Rai And 13 Others
 
Counsel for Appellant :- Govt.Advocate
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(By Hon'ble Mrs. Vijay Lakshmi, J.)

This government appeal under Section 378 Cr.P.C., has been preferred against the judgment and order dated 3.7.2014 passed by Sessions Judge, Siddharth Nagar in S.T. No. 143 of 2009 ( State Vs. Hitendra Rai and others) whereby the learned Sessions Judge has convicted the accused persons under Sections 148, 323/149 and 427 I.P.C. but has acquitted all of them from the charges under Sections 452, 307/149, 504 and 506 I.P.C. Being aggrieved by the acquittal of accused persons under Sections 452, 307/149, 504 and 506 I.P.C. the State has approached this Court praying that the judgment impugned be set aside.

It is worth mentioning that a perusal of the memo of appeal shows that it has been drafted on the assumption that the entire case has been ended in acquittal of the accused-respondents because every where in the memo of appeal it has been mentioned that the appeal on behalf of the State of U.P. is being preferred against the judgment and order of acquittal. In paragraphs 2 to 6 of the grounds of appeal it is clearly stated that the judgment and order of acquittal of accused-respondents is illegal and erroneous and the court below has committed gross illegality in acquitting the accused respondents. In the prayer column also it has been prayed that the appeal be allowed and the impugned judgment of acquittal be set aside, whereas the impugned judgment shows that the court below has not acquitted the accused persons from all the charges. The trial court has convicted them under Section 148, 232/149 and 427 of I.P.C. as these charges have been found proved against them. However, as the charges under Section 307/149, 452, 504 and 506 of I.P.C. were not found proved against any of them, they were acquitted from the charges under such sections.

We have heard learned .A.G.A. appearing for the appellant- State of U.P. and have gone through the impugned judgment.

The prosecution case in brief is that an F.I.R. was lodged by the informant Varunendra Rai against 14 accused persons alleging that on 16.7.2006 at about 7.30 A.M. when the complainant was returning to his home from the barber shop after having a shave, the accused persons all armed with deadly weapons, surrounded him from all sides and started to assault him by Danda, hurling filthy abuses at the same time. When the father and son of the complainant came to rescue him, the accused persons inflicted injuries on them by Lathi and Danda. The son of complainant, Vijay Kumar Mishra sustained grievous injuries. The accused Rudra Nath Rai had a licensed firearm with him who opened fire in the air. The accused persons came to the door of the complainant and cut down the trees of mango, lemon, sheesham, Katahal, banana, guava and Amla etc.

On the basis of this written report, a criminal case was registered against all the fourteen accused persons named in the F.I.R. at Crime No. 719 of 2006 and the matter was investigated. However, on conclusion of the investigation, the police submitted charge-sheet only against 5 accused persons and exonerated rest of the accused persons, finding that they were not involved in the occurrence. Rest of the accused persons, who were not charge-sheeted, were summoned in court by means of an application under Section 319 Cr.P.C. filed by the prosecution.

Charges were framed against all the accused persons under Sections 148, 452, 307/149, 323/149, 427, 504 and 506 I.P.C. who denied from the charges and claimed their trial.

The prosecution in order to prove its case produced oral and documentary evidence. After conclusion of the prosecution evidence, the statement of accused persons under Section 313 Cr.P.C. was recorded in which accused Virendra Rai stated that in the early morning when he had gone to ease himself, Varurendra Kumar Rai (informant in the present case) and Vijay Kumar Mishra (injured witness in the present case) committed 'Marpeet' with him regarding which occurrence, he had also lodged an F.I.R. against them which has been registered at Case Crime No. 719-A of 2006 under Sections 324 and 506 I.P.C., which is the cross case of the present case.

In support of his statement, the defence filed the charge-sheet submitted in the cross case against Varurendra Rai and Vijay Kumar Mishra under Section 324 and 506 I.P.C. The defence also alleged that Varurendra Kumar Rai is a history-sheeter having history of several criminal cases. In support of this contention the defence also adduced documentary evidence.

It is worth mentioning that Varurendra Kumar Rai and Vijay Kumar Mishra are the only two injured witnesses in this case although it has been alleged that fourteen accused persons jointly committed Marpeet with the informant and his family members and there are four injury reports on the record.

The learned trial court, after a close scrutiny of the evidence, expressed its view that from the evidence available on record, it cannot be held that there was any intention to kill some one on the part of accused persons. Only four persons have sustained injuries, although it is alleged that 15 accused persons have jointly assaulted the family members of the complainant. Had their been any such intention, the accused Rudra Nath Rai, who was armed with licensed firearm, would not have fired in the air. Moreover, the injury reports of both the injured witnesses disclosed that all the injuries are simple in nature and have been caused by hard and blunt object.

The above mentioned finding recorded by learned trial court, appears just and proper keeping in view the evidence led by the parties. The record shows that except injury no. 1, of injured Vijay Kumar Mishra, which was a hair line fracture on the right side of his head, the rest injuries of all the injured persons are simple in nature. Hence it cannot be assumed that the accused persons had committed Marpeet with intention to kill anybody. In the F.I.R. itself, the first informant has clearly stated about the use of only 'Danda" by the accused persons while committing Marpeet with him. Moreover the facts of the case clearly show that there is also a cross version of the occurrence, which has been registered at Case Crime No. 719A of 2006 under Sections 324 and 506 I.P.C. According to the cross version, the 'Marpeet' was initiated by Varurendra Kumar Rai (informant in the present case) and Vijay Kumar Mishra with accused Virendra Rai. In the cross case, Varurendra Kumar Rai and Vijay Kumar Mishra have been found guilty by the court below. The personal enmity between both the parties due to land dispute is admitted to both of them.

Although, all the accused persons have been charged for the offence under Section 307 I.P.C. with the help of Section 149 I.P.C. but from the facts of the case, it cannot be inferred that all of them had an intention to kill complainant or any of his family members. Had there been any intention to kill any of the members of the complainant party they would not have received simple injuries of blunt object only as in this case especially when one of the accused person had licensed firearm with him at the time of occurrence, who is alleged to have fired in the air.

The Criminal Misc. Application U/s 372 Cr.P.C. (Leave to Appeal) No. 361 of 2014 filed by the informant Varurendra Rai, has already been earlier dismissed by us vide order dated 8.10.2014.

Keeping in view all these facts and circumstances, the government appeal is liable to be dismissed and is accordingly dismissed.

The connected Criminal Appeal Nos. 3058 of 2014 and 3357 of 2014, filed by the accused persons against their conviction, be disconnected with this appeal. Those two appeals filed against conviction by the accused persons shall remain be connected with each other and be listed in due course.

Order Date :- 20.11.2014

S.B.