Ajab Narain Baranwal And 6 Ors. vs State Of U.P.
2022 Latest Caselaw 22171 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

										A.F.R.
 
Reserved on 13.10.2022
 
Delivered on 21.12.2022
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 1318 of 2007
 

 
Appellant :- Ajab Narain Baranwal And 6 Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sheo Prakash Singh,Aditya Narayan,Anurag Tilahari,Brij Mohan Sahai,Dashrath Singh,Kapil Misra,Nagendra Mohan,R P Misra,R.B.S. Rathaur,Rajendra Prasad Mishra,S.S. Mishra,Shiv Shankar Mishra
 
Counsel for Respondent :- Govt.Advocate,Amarjeet Singh Rakhra,S.P. Pandey,Santosh Bhatt
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Renu Agarwal,J.

(Per: Mrs. Renu Agarwal,J. for the Bench)

1. The Present Criminal Appeal under section 374(2) Cr.P.C. has been filed by the convicted appellants against the Judgment and Order dated 29.05.2007 passed by Sri S.P. Nayak, the then Additional Sessions Judge, Court No.4, District Sultanpur in Sessions Trial No.428 of 1999 (State Vs. Ajab Narain And Ors.) arising out of Case Crime No.177 of 1999, under Sections 147, 302, 325, 323, 307, 504, 506 I.P.C., Police Station Peeparpur, District Sultanpur whereby convicting and sentencing all the appellants under Section 147 I.P.C. to undergo one year R.I. Further convicting and sentencing them under Section 302/149 I.P.C. to undergo imprisonment for life and a fine of Rs.10,000/- each. Further convicting and sentencing them under Section 307/149 I.P.C. to undergo five years R.I. and fine of Rs.3,000/- each. Further convicting and sentencing them under Section 325/149 I.P.C. to undergo three years R.I. and a fine of Rs.1,000/- each. Further convicting and sentencing them under Section 323/149 I.P.C. to undergo six months R.I. Further convicting and sentencing them under Section 504/149 I.P.C. to undergo six months R.I. and also convicting and sentencing them under Section 506/149 I.P.C. to undergo one year R.I. and all the sentences were run concurrently and in default of payment of fine all the appellants have to undergo two years' additional rigorous imprisonment.

2. Wrapping the facts of the case in brief that on 16.05.1999 at about 9:00 p.m., the father of the complainant Ramashankar Baranwal (Deceased) was returning after meeting his counsel Shri Kamta Prasad Sharma when he reached in front of the house of accused Shivbahadur Yadav and Ramkaran Yadav, all the eight accused obstructed his way by standing cot and motorcycle in front of him and started beating his father by lathi and danda. When his father raised alarm, complainant Arvind Kumar Baranwal and his brother Sunil Kumar Baranwal, his uncles Ram Anuj and Ram Nayak rushed towards the place of occurrence, then accused started beating them too and after hearing the chaos, witnesses Ram Nayan and Ramesh reached to the place of occurrence and witnessed the incident and rescued them. They saw the incident in the light of pole and the light which was coming from the house of accused. Accused were threatening to life and abusing the injured and deceased. Scriber of F.I.R., Hargovind scribed the F.I.R. on the dictation of complainant at the shop of Ramroop and went to lodge the F.I.R. along with injured by Jeep.

3. On the basis of written report Ext. Ka-3, the case was registered by Constable Ramesh Kumar Yadav on 16.05.1999 at about 23:15 p.m. as Case Crime No.177 of 1999,under Sections 147, 323, 307, 504, 506 I.P.C., Police Station Peeparpur, District Sultanpur. Chik report Ext. Ka-13 was prepared and case was entered in G.D. No.39 at the same time and date on 16.05.1999 at about 23:15 p.m. All the injured were referred for medical examination at P.H.C., Ramganj, Sultanpur. The case was entrusted for investigation to S.I. Shri K.P. Tiwari, who prepared the copy of written report and prepared site plan Ext. Ka-15 on the pointing of the witnesses and recorded the statements of witnesses Arvind Kumar Baranwal and Sunil Kumar Baranwal under Section 161 Cr.P.C. and prepared the recovery memo of blood-stained and plain earth recovered from the place of occurrence Ext. Ka-16 and on the basis of amended G.D. No.10 Ext.-9, recorded in the case diary the medical examination of all the injured and the injuries of Ramashankar Baranwal who died while taking to hospital and after preparing recovery memo Ext. Nos.16-21 submitted the charge-sheet in the court concerned. Subsequently, on the basis of above, Investigating Officer has submitted the Charge-sheet No.42 in Case Crime No.177 of 1999, under Sections 147, 323, 307, 504, 506 I.P.C., Police Station Peeparpur, District Sultanpur.

4. After taking cognizance of the case, the C.J.M. concerned committed the case to the Court of Sessions. Learned Sessions Court on the basis of case diary and other documentary evidence, framed charges and read over against all the accused under Sections 147, 323, 302, 504, 506, 149 I.P.C., Police Station Peeparpur, District Sultanpur. Accused appellants denied all the charges and claimed to be tried.

5. In order to prove the case, prosecution adduced following witnesses:-

- P.W.-1 Dr. S.N. Rai

- P.W.-2 Arbind Kumar

- P.W.-3 Ram Anuj

- P.W.-4 Dr. A.K. Singh

- P.W.-5 Dr. Subodh Kumar

- P.W.-6 Head Moharrir Ranjit Kumar Pandey

- P.W.-7 Dr. Anil Kumar Gupta

- P.W.-8 Constable Ramesh Kumar Yadav

- P.W.-9 Shri K.P. Tiwari

- P.W.-10 S.O. J.N. Shukla

6. After conclusion of prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. Accused were provided the opportunity to adduce defence witness. The defence witnesses were produced, which are as follows:-

- D.W.-1 Dayaram Yadav

- D.W.-2 Paras Nath

- D.W.-3 Mohan Kumar (Record Keeper)

- D.W.-4 Retd. C.O. Paras Nath Dwivedi and

- C.W.-1 Ramesh Chandra. witnesses.

7. Learned trial court perusing all the documentary and ocular evidence in Court and after hearing the submission of learned counsel for accused and Prosecuting Officer reached to the conclusion that P.W.-2 Arvind Kumar Baranwal complainant of the case, P.W.-3 Ram Anuj Baranwal proved the prosecution story very well and formal witnesses proved the police papers as well. P.W.-2 and P.W.-3 were injured, who appeared in Court and their injuries were corroborated by the evidence of P.W.-1 Dr. S.N. Rai, P.W.-5 Radiologist Dr. Subodh Kumar and P.W.-7 Dr. Anil Kumar Gupta and Court convicted and punished all the seven accused by the impugned judgment and order dated 29.05.2007.

8. Being aggrieved with the judgment and order dated 29.05.2007, convicted appellants have approached this Court by way of filing the present appeal on the ground; that the judgment is bad on the eyes of law and facts. The F.I.R. is ante-timed and has been lodged after due deliberations and consultations. The prosecution had failed to fix the place of incident as alleged by the prosecution. The learned trial court erred in disbelieving the defence version. There were eight accused persons alleged to have assaulted the deceased with lathis but the deceased have received only one fatal injury resulting in death and it is not known that out of eight accused persons, who had caused the said injury. There is no evidence on record to indicate that there was prior meeting of mind among the accused persons and the object of the accused persons was to cause death, hence, the accused persons could not be convicted u/s 302 I.P.C. with the aid of Section 149 I.P.C. The accused persons were alleged to have been armed with the lathis and the injuries to the injured are not of such nature which warrants their conviction u/s 307 I.P.C. At the most, the case would not travel beyond offence u/s 325/149 I.P.C. from the evidence on record. No independent witness mentioned in the F.I.R. has been examined by the prosecution and only one witness of the F.I.R. has been examined. Court Witness had also not supported the prosecution case. The sentences passed by the learned trial court are too severe and is liable to be dismissed.

9. We have heard, Shri Jyotindra Mishra, Senior Advocate assisted by Shri Anurag Tilahari, learned Counsel for appellant nos.1 and 2, Shri Shiv Shankar Mishra, learned Counsel for appellant nos.3 and 5, Shri R.B.S. Rathaur, learned Counsel for appellant nos.4 and 7, Shri Amarjeet Singh Rakhra and Shri Vashisth Muni Mishra, learned Counsel for the complainant and Shri Umesh Chandra Verma, learned A.G.A. for the State-respondent and perused the record of this Court as well as the record of trial Court.

10. Learned counsel for the appellants argued before this Court that the F.I.R. is lodged ante-timed and after due deliberations and consultations, no independent witness was adduced in trial court, trial court without applying its mind and without discussing the injuries of appellants passed the order, which is perverse and bad in the eyes of law and is liable to be set-aside, therefore, it is requested to set-aside the judgment and order passed by the trial court dated 29.05.2007.

11. On the contrary, learned A.G.A. argued that learned trial court discussed each and every evidence in the judgment and order and the prosecution has proved its case beyond reasonable doubt. F.I.R. is lodged without delay and there are five injured in this case. The place of occurrence is not doubtful. The animosity between the parties is admitted and injured Ramashankar Baranwal died due to the injuries sustained during the incident. The judgment and order passed by the trial court is in consonance with the law and facts, hence, the appeal is liable to be rejected.

12. Before analyzing the evidence on record, it is desirable to mention the statements of witnesses in brief:-

P.W.-1 Dr. S. N. Rai, Medical Officer, Primary Health Centre, Ramganj, District Sultanpur stated on oath that he examined injured P.W.-2 Arvind Kumar, who was brought by C.P. 537, Mahesh Narayan Dubey and following injuries were found on his person:-

Injury No.1- Lacerated wound 6 x 0.1 c.m. x scalp deep on the upper side of head. Above 9 c.m. from the ridge of nose. Advised for X-ray.

Injury No.2- Lacerated wound 3 x 0.8 c.m. x scalp deep on the left side of head above 5 c.m. from left ear.

Injury No.3- Complain of swelling and pain 6 x 3 c.m. in the back side of forearm and 20 c.m. below right elbow. Advised for X-ray.

Injury No.4- Contusion 12 x 1.5 c.m. on the back of ribs below 7 c.m. from left scapula red in colour.

Injury No.5- Complain of pain in left forearm.

Injury No.6- Complain of pain in left leg.

Injury No.7- Contusion 7 x 1.05 c.m. on right thigh, 8 c.m. above in patella bone red in colour.

Injury No.8- Complain of pain in right leg.

Injury No.9- Complain of pain in left toe.

All the injuries were opined simple in nature, except injury nos.1 and 3, which were advised for X-ray and all the injuries were caused by hard and blunt object and fresh.

On the same day, Dr. S. N. Rai, has examined injured Sunil Kumar Baranwal, who was brought by C.P. 537, Mahesh Narayan Dubey and following injuries were found on his person:-

Injury No.1- Lacerated wound 1 x 0.5 c.m. x scalp deep on the right side of head. Above 5 c.m. right ear.

Injury No.2- Abrasion 2.5 x 0.8 c.m. below mastoid process in the right part of neck.

Injury No.3- Complain of swelling and pain 7 x 4 c.m. on the back of left palm 10 c.m. above the left ring finger. Advised for X-ray.

Injury No.-4 Contusion 7 x 1.5 c.m. 10 c.m. below on the left scapula bone red in colour.

All the injuries were opined simple in nature, except injury no.3, which was advised for X-ray and all the injuries were caused by blunt object and fresh.

P.W.-1 admitted in his cross-examination by the accused counsel, Shri Vijay Bahadur Singh that he also examined the injured accused Umesh and Ram Karan on 17.05.1999 at about 8:40 p.m. and 8:30 p.m., respectively. Injured accused Umesh has sustained following injuries on his person:-

Injury No.1- Lacerated wound 3 x .5 c.m. x scalp deep in the right side of head 9 c.m. above right ear.

Injury No.2- Contusion 8 x 01.5 c.m. on the right shoulder 9 c.m. inside the right shoulder joint, which was red in colour.

Injury No.3- Complain of pain in left hand.

All the injuries were simple in nature and were caused by blunt object within 24 hours.

Injured accused Ram Karan has sustained following injuries on his person:-

Injury No.1- Abrasion 2 x 1.05 c.m. into outer part of left hand 9 c.m. above humerus bone of lateral condyle, which was red in colour.

Injury No.2- Complain of pain in back of ribs.

All the injuries were simple in nature and were caused by blunt object within 24 hours.

13. P.W.-2 Arvind Kumar complainant/injured witness of the case stated on oath that his father was returning from Bhat Ke Purwa after meeting his counsel in connection with the case of consolidation, which was going on with Ajab Narain, Suresh and others and when he reached before the house of Shivbahadur and Ramkaran, accused Ajab Narain, Suresh Chandra, Umesh Chandra, Girish, Ramkaran, Shivbahadur, Rambali and Rampal obstructed his way by standing cot and motorcycle, started beating his father with lathi and danda when he, his brother Sunil, uncles Ram Anuj and Ram Nayak reached to save his father the accused started beating them also and when they made hue and cry, the villagers Ram Nayan and Ramesh reached at the place of occurrence and rescued them. He further stated that he recognized the accused in the light of bulb. He along with his brother Sunil, uncles Ram Anuj, Ram Nayak and his father Ramashankar went to the police station by Jeep and lodged F.I.R. on the basis of written report scribed by Hargovind on his dictation (Ext. Ka-3). He further stated that he and his brother Sunil were medically examined in P.H.C, Ramganj and his father and both uncles Ram Anuj and Ram Nayak were referred to District Hospital, Sultanpur for medical examination.

14. P.W.-3 Ram Anuj who is also an injured witness of the incident corroborated the statement of P.W.-2 and stated that on the noise of Arvind Kumar and Sunil Kumar, he along with his brother Ram Nayak reached at the place of occurrence and they too were inflicted injuries on their person by the accused persons. The witnesses, Ramesh, Parshuram, Ram Nayan reached and rescued them and they recognized the accused in the light of bulb. He also stated that a civil case was pending between his brother Ramashankar and Suresh Chandra and accused persons were trying to get illegal possession over the grove land of Babool on which, his brother wanted to get stay from the Court. This witness accompanied P.W.-2 while F.I.R. was lodged by him. He was medically examined in District Hospital, Sultanpur.

15. P.W.-4 Dr. A. K. Singh, Medical Officer, District Hospital, Sultanpur has conducted the autopsy of the dead-body of the deceased Ramashankar and following injuries were found on his corpse:-

Injury No.1- Both eyes were out and corners of eyes were black.

Injury No.2- Blood was oozed from both the nostrils and ears.

Injury No.3- Lacerated wound 2 x 1 c.m. on the back side of left ear.

Injury No.4- Abrasion 3 x 3 c.m. on left knee.

Internal Examination.

In the left side of head demporo parital bone found fractured. Membrane of brain found contracted. Sub dural Haemotoma was present all over the brain. 100 m.l. liquid was present in stomach and gases were found in intestine and the cause of death of the deceased was opined due to shock of the head injury and unconsciousness.

16. P.W.-5 Dr. Subodh Kumar, Radiologist, District Hospital, Sultanpur appeared and deposed that on 17.05.1999, he conducted the X-ray of the left hand paw of injured Sunil Kumar Baranwal, whose fifth metacarpal bone was found fractured. No callus was present.

On the same day i.e. on 17.05.1999, he conducted the X-ray of the right shoulder, right forearm and chest of injured Ram Anuj, whose scapula bone was found fractured and no callus was present. Ulna bone of forearm was found fractured and no callus was present. Sixth and seventh ribs were found fractured and no callus was present.

On the same day i.e 17.05.1999, he conducted the X-ray of injured Ram Nayak, whose no bone was found fractured.

All the X-ray films and their reports were proved by P.W.-5.

17. P.W.-6 Head Moharrir Ranjeet Kumar Pandey appeared and proved G.D. No.10 Ext. Ka-9 dated 17.05.1999 at about 7:45 a.m. and the case of Case Crime No.177 of 1999 was converted under Sections 147, 323, 307, 302, 504, 506 I.P.C. on the basis of medical report.

18. P.W.-7 Dr. Anil Kumar Gupta, District Hospital, Sultanpur has stated on oath that he examined injured Ram Anuj on 17.05.1999 at about 2:45 a.m., who was brought by C.P. 537, Mahesh Narayan Dubey and following injuries were found on his person:-

Injury No.1- Lacerated wound 6 x .4 c.m. bone deep 9 c.m. above right and blood was oozing.

Injury No.(1B)- Lacerated wound 3 x .3 c.m. bone deep 7 c.m. above left ear upto scalp.

Injury No.2- Lacerated wound 2.5 x .7 c.m. on the right forehead 1 c.m. above right eye-brow bone deep.

Injury No.3- Lacerated wound 3.5 x .4 c.m. bone deep 9 c.m. above left ear upto scalp.

Injury No.4- Surgical Emphysema on the back of right scapula and advised for X-ray.

Injury No.5- Complaint of swelling 19 c.m. above left elbow and advised for X-ray.

Injury No.6- Complaint of swelling 15 c.m. below left elbow.

Injury No.7- Multiple contusion 45 x 23 c.m. on back area, which was 4 x 3 c.m. in the starting and 10 x 3 c.m. to the end.

Injury No.8- Complain of hardness in left part of the chest and advised for X-ray.

Injury No.9- Abrasion 3 x 0.5 c.m., 7 c.m. below on the patella bone of the left leg.

Injury No.10- Abrasion 9 x .5 c.m. on the right thigh 9 c.m. above right knee joint.

Injury No.11- Abrasion .5 x .5 c.m. below 10 c.m. on right foot.

Injury Nos.4, 5, 6 and 8 were kept under observation and advised for X-ray and referred to general surgeon for examination of Injury No.8. All the rest injuries were simple in nature and caused by blunt object and six hours old.

P.W.-7 examined injured Ram Nayak also on the same day i.e. on 17.05.1999 at about 3:20 a.m. brought by C.P. 537, Mahesh Narayan Dubey and following injuries were found on his personon:-

Injury No.1- Lacerated wound 2.5 x 4 c.m. bone deep 6 c.m. above right ear in the shape of english capital ''H'.

Injury No.2- Lacerated wound 3.5 x .2 c.m., 2.5 c.m. above nose bone deep. Blood was oozing and advised for X-ray.

Injury No.3- Complaint of blackening and swelling on the right eyelid.

Injury No.4- Complaint of blood oozing from right ear.

Injury No.5- Contusion 5 x .3 c.m. on the right side of neck, 1.5 c.m. below right ear.

Injury No.6- Contusion 12 x 10 c.m. on the right shoulder, containing two abrasions measuring 5 x 2.5 c.m. and 2.5 x 1 c.m. and advised for X-ray.

Injury No.7- Contusion 2 x 1 c.m. on the hand 2.5 c.m. below right elbow.

Injury No.8- Abrasion 4 x .3 c.m. inner right thigh 12 c.m. above left knee.

Injury No.9- Contusion 6 x 2 c.m. on the right thigh, which was written twice by doctor at serial no.7.

Injury No.10- Contusion 2.5 x 2.5 c.m. on left knee, which was written twice by doctor at serial no.8.

Injury No.11- Contusion 6 x 2.5 c.m. X 10 x 2.5 c.m. on the back including abrasion 8 x 5 c.m. below left lungs. All these injuries are in area of 35 x 40 c.m. on the back, which was written by doctor at serial no.9.

Injury Nos.2 to 6 were kept under observation and advised for X-ray and referred to Orthopedic. All the remaining injuries were simple in nature and were caused by blunt object and six hours old.

Doctor proved the injuries of both the injured as Ext. Ka-10 and Ext. Ka-11.

This witness mentioned that the injured Ramashankar had died before reached to the hospital. He arranged to keep the dead-body in the mortuary and informed Police Station Kotwali Nagar by a letter, which is marked as Ext. Ka-12.

19. P.W.-8 Constable Ramesh Kumar Yadav, G.R.P. Kanpur Central, who proved Chik Report as Ext. Ka-13 and G.D. as Ext. Ka-14.

20. P.W.-9 S.I. Shri K. P. Tiwari, Incharge D.C.R.B., Siddharth Nagar conducted the entire investigation of the case and proved Site Plan as Ext. Ka-15, G.D. No.10 as Ext. Ka-16, Recovery Memo as Ext. Ka-17, Memo of Information as Ext. Ka-18 & Ka-19 and recovery of blood stained clothes of injured as Ext. Ka-20. This witness proved N.C.R. No.77 of 1999 on 24.05.1999, its G.D. and the description of order to send the report in the Court and the statements of Constable Moharrir Ramesh Kumar Yadav and Head Moharrir Ranjeet. This witness noted the information of surrender of accused Rampal, Girish @ Arunkant and on that day noted the description of X-ray report and X-ray plate of injured Ram Nayak, Arvind Kumar and Sunil Kumar and recorded the statements of witnesses S.I. Jai Narayan Shukla and Constable Ram Saran Singh and recorded the statements of accused Girish @ Arunkant, Suresh Chandra, Ajab Narain, Shivbahadur and Rambali and after collecting evidence against them, submitted the Charge-sheet No.42 Ext. Ka-22. This witness proved the case property recovered from the place of occurrence and the body of the deceased and sent those to F.S.L. for examination.

21. P.W.-10 Station Officer, Shri J. N. Shukla has stated on oath that on the date of incident, he was posted as a Chowki Incharge and the inquest of the dead-body of the deceased was prepared in his presence and in the presence of Constable Ram Saran Singh and handed over the dead-body of the deceased in the sealed condition to the above-mentioned constable and prepared Inquest Ext. Ka-23, Photo Nash Ext. Ka-24, Sample Seal Stamp Ext. Ka-25, Letter to R.I. for post-mortem Ext. Ka-26, Letter to C.M.O. Ext. Ka-27 and Challan Nash Ext. Ka-28.

22. After the conclusion of prosecution witnesses, statements of accused were recorded u/s 313 Cr.P.C.. Accused denied from all the allegations and evidences produced against them and stated that they have been falsely implicated in the case due to previous animosity. It is also stated in the statements recorded u/s 313 Cr.P.C. that Ram Aadhar Yadav organized dinner in his house and Ram Karan and Umesh Chandra were also invited. The deceased Rama Shankar and injured Sunil Kumar, Arvind Kumar, Ram Anuj and Ram Nayak were also present there and suddenly hot exchanges started between both the parties and the deceased and other injured started beating Ram Karan and Umesh Chandra. The crowd assaulted the deceased Ramashankar and injured Sunil Kumar, Arvind Kumar, Ram Anuj and Ram Nayak. The accused were also medically examined. No incident occurred on the door of the accused Shivbahadur Yadav. The police lost his non-cognizable report and falsely implicated them.

23. Accused were given opportunity to adduce defence witness. D.W.-1 Daya Ram and D.W.-2 Paras Nath corroborated the statements of accused recorded u/s 313 Cr.P.C.

24. D.W.-3 Mohan Ram deposed that he was Record Keeper in the Office of Superintendent of Police, Sultanpur and the application (N.C.R.) of Jagesar dated 15.05.1999 has been destroyed, as the limitation period to retain it in the record room is only two years, which is recorded in the Weeding Register at Serial No.11 of 1992-99.

25. D.W.-4 Paras Nath Dwivedi, who was C.O. of the Case Crime No.165 of 1999, under Sections 323, 504, 506 I.P.C. & Sections 3(1)(10) S.C./S.T. Act, Police Station Peeprpur, District Sultanpur and stated on oath that after investigation, he submitted final report in Case No.133 of 2004 (Jagesar Vs. Ram Nayak), under Sections 323, 504, 506 I.P.C. & Sections 3(1)(10) S.C./S.T. Act, Police Station Peeprpur, District Sultanpur in Court No.18 of the A.C.J.M. Court.

26. After defence evidence, Court summoned Ramesh Chandra S/o Parshuram as a Court witness, who denied the entire occurrence.

27. After perusing the evidence on record and hearing the arguments of the D.G.C. and the accused, learned trial court convicted accused Ajab Narain, Suresh Chandra, Umesh Chandra, Ram Karan, Shivbahadur Yadav, Rampal Yadav and Rambali Yadav. Accused Girish Chandra @ Arunkant has been declared juvenile and he is facing trial separately. Accused-appellant no.5 Shivbahadur Yadav has expired during the pendency of the appeal and the appeal has been dismissed as abated against him.

28. Learned counsel for the appellants has argued that the F.I.R. is ante-timed and has been lodged after due deliberations and consultations. In this context P.W.-2 Arvind Kumar stated that he along with his brother Sunil Kumar, his uncles Ram Anuj, Ram Nayak and his father Ramshankar went to the police station to lodge the F.I.R. It is suggested to this witness that the F.I.R. was lodged on the next day of the incident after consultation with Sub-Inspector C.P. Sharma and endorsed in G.D. ante-timed, to this witness clearly refused. P.W.-9 Shri K.P. Tiwari stated on oath that the case was registered in his presence on 16.05.1999 and the investigation was entrusted upon him. He started investigation immediately and reached to the place of occurrence at 12:00 a.m. in the mid night. P.W.-10 S.O. J.N. Shukla deposed in Court that he reached to the District Hospital, Sultanpur on 17.05.1999 at 12:00 a.m. and he conducted the inquest of the deceased from 12:00 a.m. to 13:30 a.m. The evidence of P.W.-9 and P.W.-10 proved that when the F.I.R. lodged in the police station on 16.05.1999 immediately after lodging the F.I.R., it was endorsed in G.D. and P.W.-9 S.I. Shri K.P. Tiwari along with P.W.-10 S.O. J.N. Shukla reached to the District Hospital, Sultanpur, therefore, it cannot be said that case was registered and entered ante-timed in the police record. In this context it is also pertinent to mention here that as per chik report, the date and time of occurrence was shown 16.05.1999 at about 9:00 p.m. and the case was registered on the same day at about 23:15. The distance of place of occurrence is 10 kms. from police station and it was stated by P.W.-2 that he reduced in writing the written report in village Bhadar by Ramroop and the fact is also proved by the letter written by Station Officer on the same day on 16.05.1999, which was written to Medical Officer (Incharge), P.H.C. by which the injured Ramashankar was sent for medical examination of the injuries inflicted upon his body. In this letter Case Crime No.177 of 1999, under Sections 147, 323, 307, 504, 506 I.P.C., Police Station Peeparpur, District Sultanpur was mentioned. The letter further revealed that the accused was referred to District Hospital, Sultanpur on 17.05.1999 and the injured Ramashankar was declared dead by the doctor at 2:45 a.m. on 17.05.1999. Further the injured Arvind Kumar Baranwal and Sunil Kumar Baranwal both sons of Ramashankar, Ram Anuj and Ram Nayak were sent for medical examination by police with two letters of Station Officer dated 16.05.1999 and in both the letters, case crime number was mentioned and the injured were examined in the hospital on 17.05.1999. Meaning thereby, when the injured were sent to the hospital on 16.05.1999, the case was already registered in police station, therefore, there is no strength in the arguments of learned counsel for the appellants that report was lodged ante-time. Learned counsel for the appellants also argued that I.O. had mentioned Section 302 I.P.C. at the same stroke of a pen when he inspected and prepared the site plan. In this context P.W.-9 stated in his statement that when he was preparing the site plan, he was informed about the death of injured Ramashankar and only because of this reason he mentioned Section 302 I.P.C. at the same stroke of a pen. He further stated that when he endorsed first parcha of case diary Section 302 I.P.C. was not mentioned therein, whereas when he received amended G.D. and injury report of injured, he mentioned Section 302 I.P.C. in continuation, therefore, argument of learned counsel for the appellants is not tenable that the F.I.R. was lodged in police station when the death of Ramashankar was confirmed by doctor. The investigation was conducted as per due procedure.

29. It has been argued by learned counsel for the appellants that prosecution could not fix the place of occurrence. Learned counsel for the appellants submitted that the witnesses have admitted in their cross-examination that the incident occurred in Purwa Majre Gokul in the village of Dharaura Mishra in the house of Ramadhar Yadav, who organized Jagganath Ji Ka Bhaat and invited both sides i.e. complainant and appellants. Complainant Arvind Kumar Baranwal, Sunil Kumar Baranwal, Ram Nayak, Ram Anuj and Ramashankar started beating appellants Ram Karan Yadav and Umesh Chandra and the crowd beated complainants during intervention. Appellants produced D.W.-1 Dayaram Yadav and D.W.-2 Paras Nath to prove this fact that complainant and his family members were assaulted by the crowd during the Jagganath Ji Ka Bhaat. In this context the statement of I.O. K.P. Tiwari is relevant, who inspected and prepared the site plan Ext. Ka-15 on the pointing out of Arvind Kumar Baranwal (complainant) and Sunil Kumar Baranwal. From the perusal of the site plan, it transpires that the place of occurrence is in the front of the house of Ramadhar Yadav. It is the case of prosecution and defence both that the incident occurred between the parties as they were invited by Ramadhar Yadav, who attend Jagganath Ji Ka Bhaat. I.O. collected bood-stained earth from the place of occurrence shown in map by letter A, B, and C and sent it to F.S.L. and in the report of F.S.L., human blood was found in the blood-stained earth, which further corroborates that the place of occurrence was in front of the house of Ramadhar.

30. One of the appellant, Ram Karan moved an application against complainant, which was submitted in P.S. as N.C.R. No.77 of 1999 dated 18.05.1999 at about 13:50 p.m. In this application, the place of occurrence was shown in front of house of Ram Karan. It transpires from the record that Station Officer moved an application before the A.C.J.M. concerned to the intent that cross F.I.R. was registered in police station as Case Crime No.177 of 1999, therefore, permission be granted to investigate this N.C.R. also but the same was rejected by A.C.J.M. concerned. Learned counsel for the appellants raised objection that this N.C.R. was not written by Ram Karan as it was not signed by him but the appellant cannot blow hot and cold at the same time. On the one hand, the N.C.R. was registered and on the other hand, it was denied by Ram Karan on the ground that the same was not signed by him. This N.C.R. has been destroyed, as the N.C.R. was kept in the police record only for two years. The N.C.R. Ext. Kha-3 is admissible as per confessional statement of Ram Karan that the place of occurrence was in front of his house, which was also corroborated by P.W.-9 by the deposition in Court and further proved by the site plan.

31. Learned counsel for the appellants submitted that one Jagesar S/o Vipath, R/o Village Parsoiya, P.S. Peeparpur, District Sultanpur lodged an F.I.R. bearing Case Crime No.165 of 1999, under Sections 323, 504, 506 I.P.C. & Sections 3(1)(10) S.C./S.T. Act, Police Station Peeprpur, District Sultanpur, which was investigated by Sub-Inspector Paras Nath Dwivedi who appears in Court and deposed that he investigated the Case Crime No.165 of 1999 and after investigation, he submitted final report in that case. This file was summoned from Court No.18 of A.C.J.M. Court during the course of trial by Sessions Judge. Learned counsel for the appellants submitted that they were doing pairavi of complainant Jagesar against accused of the case Ram Nayak, Ramashankar and Surendra Sharma, therefore, they are falsely implicated in the present case.

32. Learned A.G.A. argued that Investigating Officer, Paras Nath Dwivedi had already submitted final report in that case, therefore, there is no reason for animosity between the parties on account of the Case Crime No.165 of 1999, under Sections 323, 504, 506 I.P.C. & Sections 3(1)(10) S.C./S.T. Act, Police Station Peeprpur, District Sultanpur and falsely implicated the appellants.

33. It is also submitted by learned counsel for the appellants that P.W.-2 Arvind Kumar Baranwal admitted in his cross-examination that all the accused-appellants Ajab Narain Baranwal, Suresh Chandra Baranwal, Umesh Chandra Baranwal and Girish Chandra Baranwal (Juvenile) are his pattidar and the case was pending in Consolidation Court and on account of this case accused-appellants have inimical relationship with the complainant side. It transpires from the oral evidence that witness stated on oath that accused-appellant Ajab Narain wanted to grab grove of Junglee Babool and forest land through other Yadav accused persons, therefore, they lodged F.I.R. against the complainant's father Ramashankar through Jagesar under S.C./S.T. Act. All these incidents shows that there was inimical relationship exists between both the parties. However, N.C.R. resulted in final report but animosity was proved by the statements of the witnesses. The witness produced on behalf of the accused-appellants in defence themselves admitted that the incident arose when the persons of both the parties went in Jagganath Ji Ka Bhaat regarding the management of generator, therefore, place of occurrence, date, time and the manner of incident were not doubtful.

34. Learned counsel for the appellants stated that the injuries of Umesh Chandra and Ram Karan Yadav were not explained. If we go through the defence evidence produced by accused-appellants in the trial court, the defence witnesses themselves deposed that the dispute arose regarding the regulation of generator set and accused-appellants started abusing and complainant side started beating Umesh Chandra and Ram Karan Yadav. The injury report of Umesh Chandra and Ram Karan Yadav were proved in trial court, therefore, presence of accused-appellants was established. Moreover the accused-appellants stated in their bail application that these injuries were caused to them by Police Officers at the time of their arrest, therefore, when the injuries were admitted by accused-appellants in their bail applications being caused by the Police, then there is no need that these injuries should be explained by the prosecution.

35. It is also stated by learned counsel for the appellants that the incident occurred in public place but no independent witness was produced by the prosecution. P.W.-2 and P.W.-3 are interested witness. The veracity of these witnesses cannot be relied upon for proving prosecution case.

36. We have to go through the veracity of witness and further to the facts whether their evidence is liable to be thrown away at the very outset. There are various guidelines of Hon'ble Supreme Court on this point.

37. In Kartik Malhar Vs. State of Bihar (1996) 1 SCC 614, the Hon'ble Apex Court has held as under:-

"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh's case (supra) in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relative were not independent witnesses. Speaking through Vivian Bose, J., the Court observed :

We are unable to agree with the learned Judges of High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan [1952] SCR 377= AIR 1952 SC 54. We find, however, that it is unfortunately still persist, if not in the judgments of the Courts, at any rate in the arguments of counsel."

In this case, the Court further observed as under:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.

In another case of Mohd. Rojali Versus State of Assam: (2019) 19 SCC 567, the Hon'ble Apex Court in this regard has held as under:-

"As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well settled that a related witness cannot be said to be an ''interested' witnesses merely by virtue of being a relative of the victim. This court has elucidated the difference between ''interested' and '' related' witness in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 Scc 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three Judge bench decision in State of Rajasthan v. Kalki (supra): "14. "Related" is not equivalent to "interested". A witness may be called "interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of the case cannot be said to be "interested".."

11. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal case was made by this Court in Dalip Singh v. State of Panjab 1954 SCR 145, wherein this Court observed:

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person..."

12. In case of related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and conistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199;

"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witnesses cannot be ignored or shown out solely because it comes from the mouth of a person who is closely related to the victim."

38. From the entire evidence, it is clear that P.W.-2 Arvind Kumar Baranwal and P.W.-3 Ram Anuj were injured witness and it cannot be said that they deposed in Court only because they are interested in the case but as an injured witness, they proved the entire prosecution case, therefore, their evidence cannot be brushed aside on the ground that they are interested witness. Their presence at the place of occurrence is very natural and they inspire confidence in such a way that the accused-appellants can be convicted on the evidence of these witnesses.

39. Learned counsel for the appellants argued that there was no prior meeting of mind and prosecution did not prove that who caused the fatal blow, which resulted in the death of Ramashankar. Learned counsel for the appellants draw our attention to the statement of P.W.-4 that doctor himself admitted that injury no.4 can be sustained by falling and injury no.3 may be the result of injury nos.1 and 2 because injury nos.1 and 2 are not separate injury.

40. It is evident from the record that eight accused persons collectively assaulted the deceased with lathi and danda and the doctor opined in his statement that blow was so forceful due to which demporo and parital bone fractured and membrane of brain contracted and the injuries were caused by lathi. Doctor also stated that the injuries sustained to the deceased cannot be caused by bricks or stones. But P.W.-4 stated that accused hit on the head from back side and this blow was so forceful that his eyes came out and blood oozed out from nose and ears, therefore, the theory of falling down on earth and getting injured itself smashed. Moreover, no such suggestion was given to this witness of fact that these injuries were sustained to deceased by falling at hard and blunt object.

41. It is also stated by the learned counsel for the appellants that there was animosity between the parties, therefore, it is not natural for the deceased to pass in front of the house of the accused-appellants, as alternative way was available. P.W.-1 and P.W.-2 were not cross-examined on this point of issue. However, P.W.-3 stated at page 6 that there was no alternative way available at the time of occurrence, as this chakbandi road was established after chakbandi.

42. From the perusal of the the medical report, it transpires that the victim also sustained injuries on their heads and those were kept under observation. Arvind Kumar Baranwal sustained nine injuries, including two lacerated wounds on his head, which were duly proved and opined by the doctor that the injuries were grievous in nature and fatal to the life and one of the injured succumbed to death on account of the injuries sustained during this occurrence, hence, prosecution proved the case under Sections 147, 302, 325, 323, 307, 504, 506 I.P.C.

43. Prosecution proved the injuries of all the injured and the post-mortem by cogent evidence. The prosecution case is well corroborated by the medical evidence. Lathi and danda were recovered from the possession of the accused-appellants and recovery memo thereof is proved by P.W.-9.

44. Learned trial court has given very evince and valid reasons and elucidated all the evidence and left no stone unturned in analyzing the evidence. There is no infirmity or perversity in the judgment and order passed by the trial court, hence, we do not find any reason to interfere with the judgment and order of trial court passed by Additional Sessions Judge, Court No.4, District Sultanpur in Sessions Trial No.428 of 1999 (State Vs. Ajab Narain And Ors.) arising out of Case Crime No.177 of 1999, under Sections 147, 302, 325, 323, 307, 504, 506 I.P.C., Police Station Peeparpur, District Sultanpur whereby convicting and sentencing all the accused-appellants i.e. Ajab Narain Baranwal, Umesh Chandra Baranwal, Ramesh Chandra Baranwal S/o Ram Kripal, Ram Karan S/o Mangru, Ram Pal and Ram Bali S/o Ram Newaj.

45. In view of the above, the appeal is accordingly dismissed.

46. Accused-appellant no.3, 4 and 7 namely; Umesh Chandra Baranwal, Ram Karan Yadav and Rambali, respectively are in jail. They shall serve out the sentence awarded by trial court and confirmed by this Court.

47. Accused-appellant nos.1, 2 and 6 namely; Ajab Narain Baranwal, Suresh Chandra Baranwal and Ram Pal, respectively are on bail. Their bail bonds stand cancelled and sureties discharged. They shall surrender before trial Court concerned within 15 days from today, failing which, they shall be taken into custody by the trial court and be sent to jail to serve out the sentence awarded by trial court and confirmed by this Court.

48. Let a copy of this judgment and order as well as record of trial court be transmitted to the concerned trial court forthwith for necessary information and compliance of this order.

(Mrs. Renu Agarwal,J) (Ramesh Sinha,J.)

Order Date :- 21.12.2022

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