Allahabad High Court
Prakash Alias Abhai Krishna vs State on 16 December, 2022
Bench: Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 81
Case :- CRIMINAL APPEAL No. - 964 of 1982
Appellant :- Prakash Alias Abhai Krishna
Respondent :- State
Counsel for Appellant :- T.Rathore,Akhilesh Srivastava,Avinash Jaiswal(A.C),S.C.Srivastav
Counsel for Respondent :- A.G.A.
Hon'ble Rajendra Kumar-IV,J.
The instant criminal appeal has been directed against the judgment and order dated 30.03.1982 passed by 3rd Additional Sessions Judge, Aligarh in S.T. No.210 of 1980, Police Station Kotwali, District Aligarh whereby convicting the appellant under Section 304(II) IPC directed him to furnish a personal bond of Rs.3,000/- and two sureties in the like amount to appear and receive sentence when called upon during a period of two years, as and when the Court may direct and in the meantime to keep peace and be of good behaviour.
Prosecution briefly stated that on 28.03.1978 at about 08:00 AM accused Sri Parmanand caused a fist blow on the chest of Ram Chandra and Sri Prakash kicked with his shoe to Ram Chandra at his testicles, he fell down and urinated. After a short time, Sri Ram Chandra died. Occurrence was witnessed by Lekhraj, Ram Singh, Bhootani, Mani Shanker, Chet Ram and others. Villagers caught hold of Sri Prakash, while the accused Sri Parmanand ran away from the spot.
Hari Shanker got scribed the tehreer Ex.Ka-1 by Mahavir Singh and presented it before police station where case was registered. S.O. Jagveer Singh took investigation, recorded statement of witnesses and visited the spot. Investigating Officer conducted inquest over the dead body and prepared papers thereof and sent the dead body for postmortem. Investigating Officer prepared site plan, recorded statements of other witnesses.
Dr. M.M. Sharma conducted postmortem over the dead body of deceased and prepared postmortem report. Investigating Officer, after completing the entire formalities of investigation submitted charge sheet against the accused appellant and one another. Accused pleaded not guilty and claimed to be tried.
In support of its case, prosecution examined PW-1 Sri Hari Shanker-informant, PW-2 Ram Singh, PW-3 Sonpal as witnesses of facts and PW-4 Dr. M.M. Sharma, PW-5 S.C. Maha Ram, PW-6 Jagveer Singh, PW-7 S.I. Sri Ajay Pal Singh as formal witnesses.
Trial Court after appreciating entire evidence on record found the accused-appellant guilt under Clause II of Section 304 IPC and sentenced him directing to be released on his personal bond of Rs.3,000/- with two sureties in the like amount on probation of good conduct for a period of two years.
Being aggrieved with the impugned judgment and order, accused-appellant filed the present criminal appeal.
I have heard Sri Avinash Jaiswal, learned Amicus Curiae for the appellant, learned AGA for the State and perused the material available on record.
Learned Amicus Curiae for the appellant submits that appellant is innocent although he is named in the FIR but he has no concern with the present crime. There was no motive to commit the present crime. There is no public witness from the side of prosecution. There is no specific role assigned by the prosecution to the credit of accused-appellant. There are major contradictions in the statements of prosecution witnesses. Learned Counsel further submits that incident is said to have been taken place on 29.03.1978 and more than 44 years is going to be passed. Trial Court did not appreciate the entire evidence in right perspective and wrongly convicted the accused-appellant in the aforesaid sections.
On the other hand learned AGA for the State refuted the submissions made by learned Counsel for the accused-appellant and submitted that accused-appellant is named in the FIR and incident was witnessed by the villagers and due to the blow given by the accused-appellant, victim died and trial Court, after appreciating the entire evidence on record in right perspective passed the impugned order. Learned AGA supported the impugned order.
Now I may examine the evidence on record.
PW-1 Hari Shanker stated on oath that there was a civil dispute between Parmanand and Pitamber, Parsadi, Mehilal, Chetram, Bhagwan Das and Hari Shanker, the suit was filed by Parmanand. At the time of occurrence i.e. 08:00 AM, accused Parmanand gave a fist blow on the chest of Ram Chander and accused-appellant Prakash kicked on the testicles of Ram Chander due to which Ram Chander fell down on earth and has been unconscious. The incident was witnessed by Chitarmal, Chetram, Lekhraj, Ram Singh, Bootani and Mani Shanker. Badri Prasad, Chitarmal and Ramji who apprehended the accused Prakash. After some time, Ram Chander died. He got the tehreer scribed by one Mahaveer Singh on his dictation, put his signature on tehreer, went to police station and filed tehreer in police station.
PW-2 Ram Singh stated on oath that on the fateful day about 07:00 AM accused Parmanand gave a fist blow on the chest of Ram Chander, accused Prakash kicked in the testicles of Ram Chander due to which Ram Chander fell down and got unconscious and after some time he died. In his examination witness stated that Chetram was also present at the time of incident. Both the witnesses Pws 1 and 2 withstood lengthy cross examination by the accused-appellant but nothing could be brought on record so as to disbelieve their testimonial statement.
PW-3 Sonpal has been produced from the side of prosecution as eye witness. He supported the statement of Pws 1 and 2 in his examination-in-chief. Witness was also cross examined from the side of defence but there is nothing in cross-examination so as to disbelieve his statement.
PWs 4, 5, 6 and 7 are the formal witnesses which may not need thorough scrutiny.
After giving all annexes consideration, it cannot be said that trial Court did not appreciate the evidence on record in right manner and in passing the judgment of conviction, trial Court has not committed any error of law and fact. Impugned order has been passed by the trial Court after correct appreciation of evidence which requires no interference.
It is also pertinent to mention here that trial Court, instead of sentencing the accused-appellant, released him on probation of good conduct for a period of two years which has also been passed, thus, criminal appeal has become infructuous.
In view of the aforesaid discussion, criminal appeal fails and is accordingly dismissed.
Certify this judgment to the trial Court concerned for information and complaints.
Before parting, we provide that Sri Avinash Jaiswal, learned Amicus Curiae for the appellant who assisted the Court very diligently, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to him without any delay and, in any case, within one month from the date of receipt of copy of this judgement.
Order Date :- 16.12.2022
I.A.Siddiqui
