Rajendra Singh vs State Of U.P.
2022 Latest Caselaw 3240 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 21.4.2022
 
Delivered on 18.5.2022
 
Court No. - 46
 
Case :- CRIMINAL APPEAL No. - 6100 of 2003
 
Appellant :- Rajendra Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R.B. Gaur,A.P. Pandey,Gayatri Kumari A. C.,Manphool Singh
 
Counsel for Respondent :- A.G.A.,Ashutosh Sharma (A.C.)
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

[By Mrs. Justice Sadhna Rani (Thakur)]

Law was set into motion with the lodging of the first information report on 15.5.2000 at about 17.30 hours, on the basis of a written report submitted by the first informant Ghurai son of Puttu with the allegation that a villager Rajendra etc. had committed murder of the nephew of the first informant about six years back and due to that enmity on 15.5.2000, on a dispute among the children, Rajendra son of Ramnath armed with banka, Chhutkai son of Ramnath, Sunil son of Ramnath and Ramnath all armed with lathies, entered into the house of the first informant at about 4.00 ''O' Clock in the evening and started hurling filthy abuses. When the father of the first informant resisted then, Ramnath exhorted other accused persons to kill the complainant and his father. All the four accused persons started thrashing his father with banka and lathi and committed the murder of his father. On their hue and cry, Collector son of Butram Yadav and Lalaram son of Nokhey Lal reached at the spot and challenged the accused persons. At this, all the accused persons fled away. While defending his father, the first informant also sustained injuries on his head and hand.

After lodging the first information report as case crime no. 45 of 2000 under sections 302, 452, 323, 504 I.P.C. against Rajendra, Chhutkai, Sunil and Ramnath, the investigation was conducted by Sub Inspector H.S. Chima and after his suspension by A.S.I. Ram Kailash Singh,

Sub Inspector H.S. Chima conducted the inquest, prepared inquest report and its related documents, collected blood stained and plain earth, prepared memos in that regard, prepared the siteplan of the place of incident, sent the blood stained and plain earth for examination to the Forensic Science Laboratory. A.S.I. Ram Kailash Singh recovered the murder weapon, Banka at the pointing out of appellant Rajendra on 22.5.2000 from his house and prepared memo in that regard. He also prepared siteplan of the place of recovery, arrested four accused persons on the same day, i.e. on 22.5.2000, recorded statements of witnesses and also copied documents in the C.D. After due investigation, he filed chargesheet against all the four accused persons. After receiving chargesheet, learned trial court summoned the accused persons, took cognizance of the offence, supplied necessary copies to the accused persons and committed the case to the Court of Sessions.

Learned Additional Sessions Judge, Court No. 1, Shahjahanpur charged all the four accused persons under Sections 452, 302/34, 323/34 I.P.C. on 19.2.2000. All the accused persons pleaded not guilty and demanded trial.

The prosecution produced as many as six witnesses in support of the charges.

P.W.-1 Ghurai Lal son of the deceased and the first informant proved his written report, P.W.-2 Collector son of Butram was produced as the independent witness who described the incident, P.W.-3 Dr. A.K.Nigam proved the post mortem report of the deceased Puttu Lal, P.W.-4 Dr. A.K.Singh proved the injury report of the first informant Ghurai. P.W.-5 the second I.O. Ram Kailash Singh proved the recovery of the murder weapon, memo of recovery, site plan of the place of recovery and the chargesheet, P.W.-6 S.I. Triveni Prasad Shukla proved the chik F.I.R. and copy of GD. He also proved the inquest report, documents prepared along with the inquest report, memo of recovery regarding blood stained and plain earth and the site plan of the place of the incident.

As documentary evidence, the prosecution produced the written report given by the first informant as Exhibit K-1, post mortem report of deceased Puttu as Exhibit K-2, injury report of Ghurai Lal as Exhibit K- 3, recovery memo of Banka as Exhibit K- 4, siteplan of the place of recovery as Exhibit K-5, Chik FIR as Exhibit K-6, copy of G.D. as Exhibit K-7, Inquest report as Exhibit K-8, memo regarding blood stained and normal earth as Exhibit K-9, siteplan of the murder place as Exhibit K-10, recovery memo of blood stained and plain earth, blood stained grass, Tobacco and a note of Rs. 20/- as Exhibit K-11 and Chargesheet as Exhibit K-12. FSL report dated 12.4.2001 had also been produced by the prosecution.

As material exhibit, the prosecution produced the murder weapon Banka.

After the prosecution evidence, the statements of all the accused persons were recorded under section 313 Cr.P.C., wherein all of them denied the prosecution evidence and pleaded to have been falsely implicated due to enmity.

The accused persons, however, did not enter into the defence.

On the basis of the above evidence, after hearing the rival arguments, the learned trial court passed the judgment dated 20.11.2003 and acquitted the accused Ramnath, Chhutkai and Sunil of all the charges levelled against them. By the same judgment, the present appellant accused Rajendra Singh was convicted and sentenced under section 302 I.P.C. for life imprisonment, under section 452 I.P.C. for 5 years rigorous Imprisonment and under section 323 I.P.C. for three months rigorous Imprisonment. All the sentences are to run concurrently.

This judgment of the Trial Court dated 20.11.2003 has been assailed by the present appellant Rajendra Singh by way of the present appeal on the grounds that the conviction and sentences are against the evidence on record. The trial court has erred in law, in passing the impugned judgment and order. The present judgment and order is, thus, wholly illegal, perverse and against the provisions of law and evidence. It is further argued that the motive of the incident is not proved. There is no eye witness of the recovery of the murder weapon. The statements of the witnesses of fact are contradictory. The first informant P.W. -1 is the son of the deceased hence an interested witness. The P.W.-2 is not an eye witness of the incident, hence the evidence of both these witnesses is unworthy to trust. Thus, prayer to set aside the judgment and order impugned is made.

The learned A.G.A. has refuted these arguments and supported the impugned judgment and order passed by the trial court. He has submitted that the prosecution has successfully proved its case against the appellant beyond all the reasonable doubts. P.W.-1 is the injured person and the P.W.-2 is an independent eye witness. Both of them have fully supported the prosecution case. Their evidence transpires full confidence and, thus, the learned trial court cannot be said to have erred in returning the conviction against the appellant. The appellant has been properly sentenced through the impugned judgment, which does not suffer from any infirmity and illegality.

Heard the arguments advanced by the learned Amicus Curiae appointed by the Court for the appellant and Sri Roopak Chaubey, the learned A.G.A. for the State and perused the record.

The charge against the present appellant is that he assaulted the deceased Puttu Lal with banka and committed his murder by entering into his house and also inflicted simple injuries on the person of the first informant Ghurai Lal, the son of the deceased Puttu. The medical report of injured Ghurai Lal son of Puttu had been proved by Doctor A.K. Singh as Exhibit K-3. The following injuries were found on the person of the injured Ghurai Lal, the first informant.

1. Abrasion, size 0.4 cm x 0.2 cm, on left side head 8 cm above the ear.

2. Abraded contusion, size 4 cm x 2 cm, on lateral side upper thigh, red in colour.

Both these injuries are found to be simple in nature, caused by some hard blunt object. The duration was found to be fresh. In his statement, the doctor had opined that these injuries could be inflicted within 6 hours of the examination. These injuries could be 24 hours old too.

The inquest report of the deceased Puttu Lal is available on record as Exhibit K-8. According to this report, the inquest proceedings were started at 18.55 hours on 15.5.2000 i.e. on the date of incident, ending at 20.45 hours on the same day.

The post mortem report Exhibit K-2 proved by Dr. A.K. Nigam, the P.W.-3 is also on record wherein the doctor had found following 3 injuries on the person of the deceased on 16.5.2000 at 3.30 p.m.

1. Incised wound of 7 cm x 3 cm x bone deep on right side of neck, 6 cm below from the right ear, margin clear cut, towards back of the neck.

2. Incised wound of 2 cm x 1 cm x skin deep, on the middle of right clavicle. Margins clean cut.

3. Incised wound of 3 cm x 105 cm x muscle deep on the back of left forearm, 6 cm above from the left wrist. Margins clean cut.

Cause of death is shown to be shock and haemorrhage as a result of ante mortem injuries. The death of the deceased Puttu Lal and the injuries of the first informant have not been denied by the learned counsel for the appellant rather it is suggested to P.W.-1, in his cross examination, that in the night, at some unknown time, some miscreants entered into his house and committed the incident. Thus, the place of the incident, the house of the first informant can also be said to be admitted by the learned counsel for the appellant.

Now the question arises as to who inflicted the injuries on the person of the first informant and who committed the murder of Puttu Lal, the father of the first informant. As per the first information report, the incident was committed by the present appellant and the co-accused persons. Though all the co -accused have been acquitted by the trial court and no appeal is said to have been filed against the acquittal judgment. As per the first information report, the role of indiscriminate assault on the deceased Puttu with Banka had been assigned to the present appellant.

It is mentioned in the first information report that the present appellant along with the other accused persons came into the house of the first informant and started hurling abuses and when resisted by the father of the first informant, on the exhortation of Ramnath all the four accused persons started beating the father of the first informant. The present appellant is said to be armed with Banka and with the blows of Banka and lathi the father of the first informant had been murdered and during an attempt to save his father, the first informant had also sustained minor injuries as mentioned above.

So far as motive of the incident is concerned, two motives have been indicated in the first information report; first, the murder of the nephew of the first informant by the present appellant about 5-6 years prior to the date of the incident. P.W.-1 in his statement explained the motive that Narvar, the son of his cousin, was murdered by the present appellant. The present appellant is the brother-in-law (Sarhoo) of the first informant. The first informant Ghurai was also named as a witness by the police in that case, who became ready not to depose against the present appellant in that case, but his father ( the deceased) was not ready to compromise and he insisted to appear in the case. Co-accused Ramnath then gave threat of life to the deceased. The immediate and the second motive of the incident is indicated to be the quarrel between the children of the first informant and the son of Ramnath. Both of them are said to be 8 years old. During the quarrel, the deceased Puttu Lal had slapped Lalla, the son of Ramnath which led to the accused persons to commit his murder.

Neither any document has been placed before the court regarding any of the above mentioned motives nor any of these motives had been supported by the P.W.-2 in his statement, but P.W.-1 has not been suggested in his cross examination regarding absence of any of these motives by the defence counsel, rather the enmity between the parties is confirmed with the statement of the present appellant under section 313 Cr.P.C., wherein he stated that he had been falsely implicated due to enmity. Though what was the enmity, had not been disclosed by the appellant but the statement of P.W.-1, disclosing two motives of the incident, had not been confronted by the defence by suggesting P.W.-1 against anything against the same.

Though it is argued by the learned counsel for the appellant and the it was suggested by the defence counsel to P.W.-1 Ghurai that the case of the murder of Narvir, the nephew of the first informant against the present appellant had resulted in his acquittal, but, in our opinion, the acquittal of the appellant in that case cannot be said to be the proof of the fact that the first informant was not a witness in the murder case of Narvir or the deceased was not adamant to proceed with the case against the present appellant or that there was no motive of the appellant to commit the crime.

Thus, the admission of the appellant makes it clear that there was enmity between the parties but it is a settled principle that enmity is a double edged weapon which may compel one party to commit the offence or the other party to implicate the accused falsely.

Thus, since the enmity between the parties is an admitted fact, the court has to asses the evidence very carefully as the weight of the evidence and the trustworthiness of the witnesses is a relevant factor for reaching any conclusion.

The prosecution has produced total six witnesses to prove the charges against the appellant including witnesses of fact as P.W.-1 and 2 and rest of witnesses proved the proceedings conducted and the documents prepared by them.

P.W.-1 is admittedly the son of the deceased, who was also injured in the incident. It is argued by the learned counsel for the appellant that P.W.-1 being a related witness cannot be relied upon. It is also argued that being injured it can be a proof of the presence of the injured on the spot at the time of incident, but mere proving of the presence of the witness on the spot is not a guarantee of the fact that the injured witness is speaking truth or his evidence is trustworthy.

The Apex Court in Vijendra Singh Vs. State of U.P., (2017) 11 SCC 129 has held that the relative witness as a natural witness and explained that close relative who is a natural witness cannot be regarded as interested witness. The term ''interested witness' postulate that the witness must have some interest in having the accused somehow or other convicted for some animus or some other reasons. It is reiterated that it cannot be laid down as an invariable rule that the evidence of interested witness can never form the basis of conviction unless corroborated to a material extent to any material particular by independent evidence. All that is necessary is that the evidence of interested witness should be subjected to a careful scrutiny and accepted with cautions. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, does it may, by itself, be sufficient in the circumstance of a particular case to base a conviction thereupon. It is also opined that there is no reason why a relative / interested witness would implicate the appellants for the murder of their relative leaving behind the real culprit.

The Apex Court in Rajesh Yadav and another Vs. State of U.P., (2022) Online SC 150 held that a relative witness cannot be termed as an interested witness per se, one has to see the place of occurrence along with other circumstance. A related witness can also be a natural witness. If an offence is committed within the precincts of the house of the deceased, the presence of his family members cannot be ruled out and they assume the position of a natural witness. A relative witness would become an interested witness only when he desires of implicating the accused in rendering conviction on purposes. When the court is convinced with the quality of the evidence produced notwithstanding the classification as related / interested witness it becomes the best evidence, such testimony being natural adding to the degree of probability, the court is to make reliance upon it in proving of fact.

In case of Rajesh Prasad Vs. State of Bihar and another, 2022 SCC Online SC 23, the Apex Court held that the testimony of an interested witness cannot be discarded on that ground alone. It would only require the court to be more cautious, scrutinize the evidence carefully, evidence otherwise, cogent and convincing cannot be rejected on the ground that there was no independent witness. Ultimately, therefore, it shall all depend on the facts and circumstance of the case. It is also to be kept in mind that it shall be those closed to the deceased who shall be most keen that the real culprit be booked. In the case in hand, P.W.-1 is the son of the deceased but his presence cannot be denied at the spot as the incident had taken place inside the residence of the first informant.

As per the version of the first informant, in an attempt to save his father, he also got injured and his injuries had been examined and proved by the doctor A.K. Singh, the P.W.-4 who has found his injuries to be simple, but P.W.-1 had not been confronted by the the defence in his cross examination that simple injuries shown on the person of the first informant were self inflected injuries.

So far as the arguments that being injured is not a proof that the injured witness is deposing truth, the Apex Court in State of M.P. Vs. Mansingh (2003) 10 SCC 414 has observed that the evidence of an injured witness has greater evidentiary value and unless compelling reasons exist, his statement cannot be discarded.

In the case in hand, the P.W.-1, the first informant is an injured witness, who in support of the version of the first information report stated that during quarrel among the children his father slapped Lalla son of Ramnath accused. When his father was in the house, the present appellant along with other co-accused persons came and started hurling abuses on his father. Rajendra Singh, the present appellant was armed with Banka and rest were armed with lathies. When the father of the first informant while coming out of the house forbade them not to do so, then all the three accused persons namely Ramnath, Chhutkai and Sunil assaulted him with lathies. The appellant Rajendra Singh wielded the blows of Banka on his father. When his father was about to enter the house, he was given two more blows of Banka by the present accused. On sustaining injuries, his father fell down there. This incident was witnessed by Collector and Lalaram etc.

Witness Collector appeared in the witness box as P.W.-2 and asserted that he was known to both the parties, both being residents of his village. About 14-15 months ago, it was about 3 or 4 p.m., he was present on the Chabutara of Ram Kumar, which was adjacent to the Chabutara of Puttu Lal from the western side. All the four accused persons were present on the Chabutara of Puttu Lal and after verbal altercation all the three accused persons started beating Ghurai with lathi and Rajendra Singh assaulted Puttu Lal with Banka. Puttu Lal and Ghurai both rushed inside their house. On the hue and cry of Ghurai and Puttu, they challenged the accused persons but the accused persons entered into the house of the first informant. The present appellant wielded two blows of Banka on Puttu inside the house. By that time, he himself, Lalaram and Rajkumar arrived at the spot and the accused persons made good their escape.

Thus, both the witnesses have supported the version of the first information report that the accused persons assaulted Ghurai and Puttu with lathi and banka and the role of inflicting blows of Banka is assigned to the present appellant. Though there is some contradiction regarding the fact that rest three accused persons assaulted only the first informant or they assaulted the deceased also. In the first information report, though it has been mentioned that all the four accused persons made indiscriminate blows of Banka and lathi on the deceased and committed his murder and the first informant also sustained some injuries in the attempt to save his father. But P.W.-1 in his statement clearly stated that all the three accused persons assaulted him with lathi and the present appellant assaulted his father thrice with Banka. P.W.-2 also stated the same thing that rest three accused persons assaulted the first informant with lathi and Rajendra Singh assaulted Puttu Lal with Banka. In the first information report and in the statements of P.W.-1 and 2, the core allegation, however, remains the same that the present appellant wielded blows of Banka on the person of the deceased. The role of inflicting injuries with Banka, thus, had been assigned only to the present appellant both in the FIR and in the statement of P.W-1 and P.W.-2. The rest of the accused persons have, thus, been acquitted by the trial court.

The oral testimony of blows of Banka on the person of the deceased is supported by the injuries found on the person of the deceased in the post mortem report, wherein P.W.-3 Dr. A.K. Nigam found three incised wounds on the person of the deceased and all these three injuries were said to be sufficient for causing death of a person in the natural course of business. Dr. A.K.Nigam also opined that the death of the deceased was possible at 4.00 p.m. on 15.5.2000. Though in the cross examination, it was suggested to the doctor and he had answered that death of the deceased was possible at 9.00 P.M. on 15.5.2000 also. On the basis of this opinion of the doctor, it is argued by the learned counsel for the appellant that the time of death of the deceased could not be ascertained, but in our opinion, as there is no version of the appellant's counsel that the deceased died at 9.00 P.M. on 15.5.2000, so the suggestion to the doctor and answer of the doctor to that effect would in no way help the appellant.

Thus, from the first information report and the statements of the witnesses, the weapon assigned to the present accused is Banka and all the injuries found on the person of the deceased are incised wound which corroborate with the version of the prosecution witnesses. The homicidal death of the deceased is not denied. Thus, the version of both the witnesses support the first information report and the same is further corroborated by the medical evidence. The presence of the witness P.W.-2 has been shown in the siteplan, prepared by the Investigating Officer on the same day. Thus the ocular evidence of P.W. 1 and 2 is found to be trustworthy.

So far as the contradiction that P.W.1 stated that two blows of Banka were wielded on Chabutara and one blow in side the house hit the deceased whereas P.W.-2 stated that two blows of banka were wielded inside the house and one blow was wielded on Chaburata. As far as this contradiction is concerned, this much is clear that the deceased was inflicted injuries with Banka both on the Chabutara and inside his house and in the site plan also the place of inflicting first blow of Banka is shown as the Chabutara and after that the dead body was found lying inside the house on the floor, which shows the continuation of act of inflicting injuries on the deceased. The post mortem report also shows three incised wounds on the person of the deceased, same as the version of both the witnesses. It is, thus, proved that the present appellant inflicted three blows of Banka on the person of the deceased. This above contradiction pointed out is neither important nor it was necessarily possible for the witness to count at the time of assault as to how many blows of Banka were inflicted on the Chabutara and how many inside the house. As the statement of both the witnesses in the core is same, that the assault with Banka was started from Chabutara and when the deceased ran inside his house to save himself, he was followed by the appellant inflicting the blows of Banka which resulted in the death of Puttu Lal.

In State of M.P. Vs. Mansingh, (2003) 10 SCC 414, it was observed by the Apex Court that " minor discrepancies do not corrode credibility of an otherwise acceptable evidence".

The Apex Court in the case of State Of Rajasthan vs Smt. Kalki & Anr. (1981) 2 SCC 752, has said that in the deposition of witnesses there are always normal discrepancies, however, honest and truthful they may be, those discrepancies are due to normal error of observations, normal error of memory due to lapse of time, due to mental deposition such as shock, horror at the time of occurrence and the like. In Laltu Ghose Vs.State of West Bengal (2019) 15 SCC 344, it has been held that if there is no major contradiction in the statement of witnesses minor variation cannot tilt the balance in favour of the defence. In A. Shankar Vs. State of Karnataka, (2011) SC 2302, the Apex Court has reiterated that in all the criminal cases normal discrepancies are bound to occur in deposition of witnesses due to lapse of time or due to mental deposition. It is the duty of the court to separate the chaff from the grain. Minor variations in the evidence which do not go to the root of the matter need not to be given undue importance as they do not materially alter the evidence / credibility of the eyes witnesses as a whole.

Considering the above legal position, in the facts of the instant case, we find that the discrepancies in the evidence of the witnesses are not material rather they are very minor in nature, which do not go to the root of the matter. Thus, the learned counsel for the appellants cannot take benefit out of these discrepancies.

Moreover, the Court should read the evidence as a whole, as Hon'ble Apex Court has held in State of U.P. Vs. Krishnamurthy and others (2010) 12 SCC 324 that upon reading of the evidence, if it appears to have a ring of truth then discrepancies, inconsistencies, infirmities or deficiencies of minor nature not touching the core of the case cannot be ground for rejecting the evidence. The Court should sift the evidence to separate the false-hood from the truth. When a witness is subjected to gruelling cross examination for several days, some inconsistencies or discrepancies may occur in his statement which if not significant cannot discredit his testimony. The witness is not expected to have exact sense of time or remember every detail of the incident and state with precision the entire chain of events after a lapse of time.

Thus, from the above discussion, it is clear that both the witnesses supporting the first information report have deposed that it was the present appellant who inflicted three blows of Banka on the person of the deceased, which resulted into the death of the deceased Puttu Lal, the father of the first informant.

It is also argued by the learned counsel for the appellant that as per the statement of P.W.-1, no one tried to take the injured to the hospital, which makes the presence of witnesses doubtful and this fact corroborates their arguments that some miscreants in the night committed the incident and due to enmity the appellant had been implicated falsely.

If we go through the first information report, in the first information report itself it is mentioned that with blows of banka and lathi the father of the first informant was put to death by the accused persons. P.W.-1 stated in his Examination-in-Chief that after sustaining the injuries of Banka his father died on the spot. P.W.-2 also corroborates the statement of P.W.-1 by deposing that Puttu died on the spot. If the person dies on the spot, there is always not necessary to take him to hospital to confirm his death. Thus, the argument advanced by the learned counsel for the appellant does not inspire confidence.

It is also argued by the learned counsel for the appellant that there is no witness of recovery of the murder weapon. It is true that P.W.-5 Ram Kailash Singh ASI is said to have recovered the murder weapon of banka on 25.5.2000 at the instance of the present appellant from his house. Recovery memo, siteplan of recovery place and the murder weapon have been proved by this witness in the Court.

If we go through the memo of recovery of this murder weapon, in the memo it is itself mentioned that the police tried to procure witnesses before the recovery, but no one came forward to become a witness. Thus, from the memo itself it is clear that the police tried to procure public witness but as nobody gave his consent, so the police was forced to make the recovery in the absence of the independent witness.

Even if for the sake of argument, the recovery is found to be defective, in the absence of recovery of the murder weapon also the prosecution has successfully proved its case to the tilt of conviction and the absence of the murder weapon will in no way affect the prosecution case adversely.

Thus, from the above discussions, it is clear that the first information report is a prompt report as the incident had taken place at 4 ''O' Clock in the evening, after that the first informant covered the distance of 14 km. from his house to the police station through bicycle and then by riding on boat to cross the river in between his house and the police station he reached and registered the first information report within 1 and ½ hours of the incident i.e. at 17.30 hours.

FSL report is on the record to show that the human blood was found on the blood stained and normal earth collected from Chabutara and from inside the house of the deceased and the first informant and also on the animal fodder collected from the house of the deceased and the first informant and the clothes of the deceased.

Murder weapon is also said to have been recovered at the instance of the present appellant. The place of incident was not disputed to the accused / appellant. Ocular evidence regarding murder is completely supported by the medical evidence.

Thus, after a careful scrutiny of the evidences, the statements of witnesses specifically P.W.-1 and 2 are found to be intrinsically reliable regarding the charge under section 302, 452 I.P.C. There is no flaw in the evidence on record in this regard which goes to root of the case. The arguments advanced by the learned counsel for the appellant against conviction under section 302/ 452 I.P.C. do not impress the Court. The judgement of the lower court is found to be justified with regard to the conviction under section 302 / 452 I.P.C.

So far as the conviction under section 323 I.P.C. is concerned, the simple injuries are shown on the person of first informant in the medical report dated 15.5.2000. P.W.-4 Dr. A.K.Singh, Medical Officer, District Hospital, Shahjahanpur proved this injury report. According to him, the injuries mentioned therein were found to be fresh and inflicted by some hard and blunt object. The doctor had not been confronted that these injuries might be self inflicted, injuries. As per the first information report, in saving his father, the first informant also sustained injuries. In the first information report, it is also not made clear as to who inflicted injuries on the person of the first informant. In the first information report, it is also not mentioned that the first informant was assaulted by any of the accused persons by lathies or any other weapon.

If we go through the statement of P.W.-1, the first informant, in the examination-in-chief he stated that when he resisted and asked the accused person not to hurl abuses then the accused Ramnath, Chhutkai and Sunil assaulted him with lathies and, thus, in his statement he has not supported the version of the FIR that he sustained injuries while saving his father.

If we go through the statement of P.W.-2, he has also supported the version of P.W.-1 the first informant that the rest three accused persons i.e. Sunil, Ramnath and Chhutkai started beating Ghurai with lathis. Thus, none of the witnesses of fact supported the version of the first information report that the simple injuries sustained by the first informant were inflicted when he tried to save his father from the accused persons. Both the witnesses P.W.-1 and 2 had taken a new stand in their statements that the first informant was assaulted by rest of three accused persons with lathis. There is nothing on record to prove that the injuries on the person of the first informant were inflicted by the present appellant. Other three accused namely, Ramnath, Chhutkai and Sunil have been acquitted of all the charges including charges under section 323/34 I.P.C. vide impugned judgment dated 20.11.2003, hence, in our opinion, the finding of the learned trial court holding the present appellant guilty of charges under section 323 I.P.C. is erroneous. The impugned judgment dated 20.11.2003 with regard to the conviction and sentence of the appellant under Section 323 I.P.C. deserves to be set aside.

Thus, the judgment and order of the trial court dated 20.11.2003 with regard to the conviction under section 323 I.P.C. is set aside. The appellant Rajendra Singh is acquitted of the charge under section 323 I.P.C.

The impugned judgment and order of the learned trial court dated 20.11.2003 is confirmed regarding conviction under section 302 and 452 I.P.C. and the sentence awarded by the trial court in that regard is wholly justified.

Thus, the appeal is partly allowed.

Certify this judgment to the court below.

Trial Court record shall be transmitted back forthwith.

Order Date:-18.5.2022

Gss