Jasveer And 3 Others vs State Of U.P.
2021 Latest Caselaw 11198 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                    
 
                                                                                                A.F.R.         
 
							       Reserved on :-  15.09.2021					                           Delivered on :- 06.10.2021
 

 
Court No. - 76
 

 
Case :- CRIMINAL APPEAL No. - 4138 of 2018
 

 
Appellant :- Jasveer And 3 Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Santosh Tripathi,Adesh Kumar,Mandvi Tripathi,Pradeep Kumar,Ram Suphal Shukla,Vindeshwari Prasad
 
Counsel for Respondent :- G.A.,Narendra Singh Chahar
 

 
Hon'ble Ajai Tyagi,J.

This appeal has been preferred by appellants Jasveer, Rajan, Raju and Amit @ Guddu against the judgment and order passed by Learned Additional Sessions Judge [Fast Track Court No. 2] Muzaffar Nagar dated 20.07.2018 in Session Trial No. 735 of 2013 (State of U.P. Vs. Jasveer and others) arising out of Case Crime No. 240 of 2012, under Sections 452, 307/34, 323/34, 504 and 506 I.P.C., Police Station- Mansoorpur, District- Muzaffar Nagar by which learned trial court convicted and sentenced the appellants for 10 years rigorous imprisonment under Section 307/34 I.P.C., for seven years under Section 452 I.P.C., one year R.I. under Section 323/34 I.P.C., two years R.I. under Section 504 I.P.C. and seven years R.I. under Section 506 I.P.C. along with fine and imprisonment in default of fine. All the sentences were directed to run concurrently.

2. The brief facts giving rise to this appeal are that informant of this case Smt. Prakashwati W/o Late Peetam Singh submitted a written report Ex. KA-1 in P.S.-Mansoorpur, District- Muzaffar Nagar on 13.06.2012 with the averments that on that day she was sitting inside her house with her son Pradeep and daughter-in-law Sudha. At about 8:30 in the morning Jasveer, Amit @ Guddu, Rajan and Raju of her village entered her house with country made pistol [''Tamancha'], ''Balkati' [Sharp edged instrument] and ''Lathi-danda' and started abusing. When her son Pradeep stopped them from abusing, all the accused persons/appellants fired with intention to kill and attacked on Pradeep with ''Balkati' and ''Lathi-danda' and beating him badly. When she tried to intervene, she was also attacked and her daughter-in-law Sudha was also attacked by appellants. Her son Pradeep and she herself sustained serious injuries. On her hue and cry Ashok, Vinod and other villagers came on the spot who saw the occurrence and saved them. While going back, the accused persons threatened them to kill him in the future.

3. Case Crime No. 240/2012 under Section 452, 307, 504, 506 I.P.C. was registered against all the appellants. After investigation, charge sheet against all the appellants was submitted by Investigating Officer. Learned trial court framed charges against all the appellants under Section 452, 307/34, 323/34, 504 and 506 I.P.C. After trial learned court convicted and sentenced all the appellants as aforesaid. Hence this appeal.

4. Heard Shri Vindeshwari Prasad, learned counsel for appellants, Shri Ashutosh Singh, learned counsel for the opposite party and Shri B.A. Khan, learned A.G.A. for State.

5. Learned counsel for appellants submitted that there are two injured in this case, one is informant Prakashwati and other her son Pradeep. All injuries of Pradeep are simple in nature except injury no. 8 which is fracture in his right arm. It is further submitted that there is no injury of fire arm and no fire arm was even used in entire incident as per prosecution witnesses themselves. Hence no case under Section 307 I.P.C. is made out and learned trial court wrongly convicted the appellants under this section. It is argued that the case maximum goes to the extent of offence under Section 325 I.P.C. although it is not clear from the prosecution evidence as to who had caused the injury no. 8, i.e. fracture to the injured Pradeep.

6. Learned counsel for appellant further argued that learned trial court wrongly framed the charge against the appellants under Section 307 I.P.C. because no intention to kill is emerged from entire prosecution story and injuries nor there was any firing by any appellants. Injured witnesses themselves and Investigating officer have said that no firearm was used and injury reports also suggest it. In this way there is no evidence for the offence under Section 307 I.P.C. In her statement informant/injured PW-1 Prakashwati has made so many improvements. She has stated in her statement that no fire was made by Jasveer although she has stated that Jasveer tried to make fire but it was missed but no such averment is made in first information report, hence her testimony should not be believed. Hence appeal be allowed.

7. Learned counsel for respondent and learned A.G.A. made rival submissions and argued that there are 12 injuries to Pradeep and four injuries to Prakashwati and maximum injuries of Pradeep have been inflicted on vital parts of the body. Pradeep has fracture in his right forearm also. No injury is superficial and injury report as well as supplementary medical report say that injuries were inflicted to the injured persons by hard and blunt object and by sharp edged weapon. As per prosecution version and evidence of injured witnesses, appellants were having ''Balkati' and ''Lathi-danda' in their hands, so in this way the evidence of injured witnesses is corroborated by medical evidence also.

8. It is next submitted by respondents that appellants entered the house of informant with intention to kill as is evident from injuries inflicted to Pradeep and informant also. Hence offence under Section 307 I.P.C. is made out. It is day light incident and F.I.R. was lodged promptly. It is also submitted that every appellant had active participation in crime. Hence learned trial court has rightly convicted and sentenced to the appellants. Appeal be dismissed.

9. Prosecution has brought the case that on 13.06.2012 at about 8:30 in the morning all the appellants entered the house of informant and had beaten the informant, her son and her daughter-in-law with ''Balkati' and ''Lathi-danda' and also made fire. In this occurrence informant Prakashwati and her son sustained injuries.

10. Prosecution has produced both injured persons as PW-1 Prakashwati and PW-2 Pradeep, no other witness of fact is produced. Injured witnesses are best witness to depose before the court. As per prosecution case, at the time of occurrence appellant Jasveer was having country made pistol [''Tamancha'] in his hand, Rajan and Raju were having ''Balkati' and Amit @ Guddu was having ''Lathi' but evidence of PW-1 and PW-2 shows that no firearm was used in the incident. In this regard PW-1 Prakashwati has stated in her statement that all the accused persons entered her house and made fire. Further it is said by her that fire was missed. This witness has admitted in her statement that it was correctly mentioned in F.I.R. by her that accused persons opened fire with intention to kill and also admitted that she did not mention in F.I.R. that Jasveer fired from ''Tamancha' and it was missed. This statement of missing the fire was not given by the witness to Investigating Officer. Later on before trial court PW-1 distracted from her statement that Jasveer fired and it was missed rather she has specifically stated in cross examination that no fire was made by Jasveer in entire occurrence and it is also correct to say that no accused person made any fire. PW-2 Pradeep, another injured witness has stated in his examination-in-chief that Jasveer fired from ''Tamancha' but bullet was not discharged. Both the witnesses PW-1 and PW-2 have accepted in their statements that Jasveer did not try to make second fire. Hence the evidence of PW-1 and PW-2 is not at all reliable on the point of making fire by any of the appellants. This fact is corroborated by injury reports also. Medical examination of both the injured persons were conducted by Dr. Azadveer Singh who produced by prosecution as PW-3. He has proved the injury report of injured Pradeep as Ex. KA-2. In Ex. KA-2 following injuries are shown to be sustained by inured Pradeep:-

(i) Incised would size 5cm x 0.5 cm x Bone Deep, right side forehead, 4cm above right eyebrow.

(ii) Incised would 2cm x 0.5 cm x Scalp Deep right side forehead, 3 cm. above left eyebrow.

(iii) I.W. size 2cm x 0.5 cm x Muscle Deep outer end of right eyebrow.

(iv) L.W. size 3cm x 0.5 cm into Scalp Deep, left side of head, 13 cm. above left ear.

(v)L.W. sized 4.5cm x 0.5 cm x Bone Deep, right side of head, 4 cm. Away from injury no. 4.

(vi) L.W. size 2.5 cm x 0.5 cm x Bone Deep, right side of head, 8 cm. above right ear.

(vii) L.W. size 3.5 cm x 0.5 cm into Bone Deep, right side head, 6 cm. above right ear.

(viii) L.W. size 2cm x 0.5 cm x Bone Deep, T.S. 15 cm x 8 cm of right elbow forearm.

(ix) Multiple contusion in front part of chest and abdomen, bigger is 22cm x 2cm. and smaller is 3cm x 1cm.

(x) Contusion size 24cm x 2cm left side back and abdomen.

(xi) Multiple contusion in front of right side in an area 24cm x 15cm, larger is 12cm x 5cm and smaller is 5cm. x 4cm.

(xii) Contusion 5cm. X 4cm. middle part of left thigh.

11. Injuries no. 1, 2 and 8 were kept under observation and X-ray was advised.

12. After X-ray, supplementary report of medico legal examination of injured Pradeep was submitted which is also by the doctor PW-3 as Ex. KA-4. According to this report no bony injury was seen in injure no. 1 and fracture of ulna bone was found in X-ray. All the injuries of Pradeep were found simple except injury no. 8 which was found grievous in nature.

13. Medical examination of injuries sustained by informant Prakashwati was also conducted by Dr. Azadveer Singh. He has proved this report as Ex. KA-3 according to which following injuries were sustained by injured Prakashwati :-

(i) Abraded contusion size 3cm. x 2cm. Dorsiflexion of left hand.

(ii) Contusion 2.5cm. x 2cm. Dorsiflexion of right hand.

(iii) Abraded contusion 7cm. x 4cm. Back of left arm 5cm. above left elbow.

(iv) Contusion size 4cm. x 2cm. back of left forearm 9cm. above wrist joint.

(v) C/O pain in chest.

14. All the above injuries of injured Prakashwati were simple in nature.

15. Hence as per injury reports of both the injured persons, there was no injury of firearm. Hence from the evidence of PW-1, PW-2 and also from the perusal of injury reports, it is crystal clear that no injured sustained any firearm injury and prosecution has failed to prove that any firearm was used in the occurrence. Informant/injured Prakashwati has tried to make exaggeration in her statement and use of firearm is brought into the picture just to exaggerate the case and for bringing it within the ambit of offence under Section 307 I.P.C. Dr. Azadveer Singh PW-3 has also given opinion that no injury was dangerous to life. Injured Pradeep sustained 12 injuries in all and out of these 12 injuries, 11 injuries were found simple in nature and only one injury i.e. injury no. 8 was found grievous in nature due to fracture in forearm of the injured. Injured Prakashwati sustained five injuries and all the five injuries were found simple in nature. Hence with this analysis and scrutiny of evidence of witnesses on record, this court is of the considered view that no offence under Section 307 I.P.C. is made out against any of the appellants and learned trial court did not appreciate the evidence in this regard in right perspective and finding of trial court for convicting the appellants under Section 307 I.P.C. is perverse and liable to be set aside.

16. Injured Pradeep sustained three injuries of incised wound which are injury no. 1, 2 and 3, all these injuries were simple in nature but it is clear that these injuries were inflicted with sharp edged weapon and prosecution has proved that ''Balkati' was used in occurrence which is a sharp edged instrument and injury no. 1, 2, and 3 could be inflicted to him by ''Balkati.' Prosecution has proved that all the appellants entered the house of informant with common intention to commit offence. They entered the informant's house together with ''Balkati' and ''Lathi-danda' in their hands. So it can be definitely opined that they were having common intention to commit the crime.

17. Injured Pradeep sustained three injuries of incised wound as aforesaid, hence appellants are held guilty for offence under Section 324 I.P.C.

18. Injury no. 8 sustained by injured Pradeep, which is fracture in ulna bone, was grievous injury. It can be safely held that this injury was caused by appellant Amit @ Guddu because as per statement of injured PW-2 Pradeep Kumar in examination-in-chief Amit @ Guddu was having ''Lathi' in his hand. Further he has stated that Amit @ Guddu assaulted on his head by ''Lathi' 4 to 5 times but he was saving himself by his hands. So it is proved that the injury no. 8 was inflicted to Pradeep by the appellant Amit @ Guddu. Hence appellant Amit @ Guddu is held guilty under Section 325 I.P.C. also.

19. With the discussion as above I am of the considered opinion that no case under Section 307 I.P.C. is made out against any of the appellants. Hence conviction and sentence awarded to appellants under Section 307 r.w.s. 34 I.P.C. is hereby set aside.

20. Sentence under Sections 452 and 504 I.P.C. is very harsh keeping in view of the fact that no offence under Section 307 I.P.C. is made out. Hence sentence under Section 452 I.P.C. is reduced for two years from seven years. Sentence under Section 506 I.P.C. is reduced to two years from seven years. Imposition of fine and imprisonment in default of fine shall remain intact for the offences under Sections 452 and 506 I.P.C. Sentence under Section 323 r.w.s. 34 I.P.C. and under Section 504 I.P.C. shall remain intact.

21. Appellants Jasveer, Raju, Amit @ Guddu and Rajan are sentenced for three years rigorous imprisonment under Section 324 I.P.C.

22. Appellant Amit @ Guddu is sentenced for three years rigorous imprisonment and Rs.5,000/- fine. He shall undergo simple imprisonment for three months in case of default of fine.

23. All the sentences shall run concurrently.

24. In the result, appeal is partly allowed as modified aforesaid. Copy of this judgment and record be transmitted to concerned court below for ensuring compliance.

(Ajai Tyagi, J.)

Order Date :- 06.10.2021

Sharad/-