Janardan Yadav And Others vs State Of U.P.
2023 Latest Caselaw 1859 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Case :- CRIMINAL APPEAL No. - 3143 of 2008
 
Appellant :- Janardan Yadav And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- P.C. Srivastava
 
Counsel for Respondent :- Govt Advocate
 

 
			And
 
Case :- CRIMINAL REVISION No. - 2233 of 2008
 
Revisionist :- Ram Briksha Yadav
 
Opposite Party :- State of U.P. and Others
 
Counsel for Revisionist :- Ravindra Prakash Srivasta,Govind Saran Hajela
 
Counsel for Opposite Party :- Govt. Advocate,Harish Kumar Shukla,Manoj Kumar Pandey
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Criminal Appeal No. 3143 of 2008 is directed against the judgment and order dated 30.04.2008/1.5.2008, whereby the accused appellants Janardan Yadav, Onkar Yadav, Jai Prakash Yadav, Rakesh Kumar Yadav and Amarjeet have been convicted in Sessions Trial No. 15 of 2007, under Section 147, 323/149 and 308/149 I.P.C. and sentenced to one year rigorous imprisonment under Section 147 IPC; six months rigorous imprisonment under Section 323/149 IPC and three years rigorous imprisonment under Section 308/149 IPC alongwith Rs. 1,000/- fine, failing which the accused appellants are to undergo further imprisonment of three months. All sentences are to run concurrently.

2. The prosecution version of the incident proceeds on the written report of informant Prem Singh (Ex.Ka.-1), who is a Constable posted in Reserve Police Lines at Sant Kabir Nagar. He was assigned duty with Samajwadi Party leader Ram Briksha Yadav of Village Gaighat. As per him, 25.8.2005 was the polling day for panchayat elections and Ram Briksha Yadav had gone to his polling centre at Gaighat, when Hanuman Yadav came and met Ram Briksha Yadav. Ram Briksha Yadav then left for Bahra Dandi in his Tavera vehicle alongwith informant. On their way they reached Jai Narain Inter College, Maur, where they noticed that some people were engaged in hot talks/altercations at the gate of the Centre. The informant side tried to pacify but accused Mahatam, Janardan, Onkar, Jai Prakash, Sarvesh, Rakesh and Amarjeet etc. armed with baton and sticks attacked the informant side. Ram Briksha Yadav then snatched informant's carbine and shot dead Mahatam Yadav and thereafter left for the treatment of injured at PHC Haisar Bazar. The injured were getting treated. On the basis of the aforesaid report FIR (Ex.Ka.-2) came to be lodged against the accused on 25.8.2005 at 21.05 hours. In this case investigation proceeded and on the basis of evidence collected a chargesheet was submitted by the police against accused Janardan Yadav, Onkar Yadav, Jai Prakash, Sarvesh, Rakesh and Amarjeet under Sections 147, 323, 308, 504 and 506 IPC. The magistrate took cognizance and committed the case to the court of Sessions, which framed charges against the accused appellants on 16.3.2007. The accused denied the charges and demanded trial.

3. The prosecution in order to prove its case has produced documentary evidence in the form of written report as Ex.Ka-1; FIR as Ex.Ka-2; injury report of Ram Briksha Yadav as Ex.Ka-4; injury report of Subhash Chandra Yadav as Ex.Ka-5; injury report of Prem Singh as Ex.Ka-6; injury report of Manoj Kumar as Ex.Ka-7; discharge summary as Ex.Ka-9; chargesheet as Ex.Ka-11 and site plan with index as Ex.Ka-12.

4. The injured Ram Briksha Yadav, Subhash Chandra Yadav, Prem Singh and Manoj Kumar were medically examined by Dr. Y.P. Singh (PW-10). As per the injury report Ram Briksha Yadav sustained lacerated wound 6 cm x 0.5 cm x bone deep x fresh bleeding over right side of head; lacerated wound 5 cm x 0.5 cm bone deep over front of top of head at midline; abraded contusion 1.5 cm x 1 cm on left ring finger; contusion 3 cm x 1.5 cm x red colour over back of left forearm below elbow. In the opinion of the doctor (PW-10), first and second injury was to be kept under watch and x-ray was advised. Reference was also made to surgeon. He has opined that injury no. 1 and 2 were on the vital part (head) and could be life threatening if the injury was deeper.

5. Solitary injury on Subhash Chandra Yadav was abraded contusion 4 cm x 3 cm in his left index and middle finger. As per the doctor he had referred the patient to an orthopedist and the injury could have been caused by a blunt or rough weapon. Injured Prem Singh complained of pain over back of right elbow, left thigh and his stomach and back. In the opinion of the doctor there was no apparent injury. Injured Manoj complained of pain on his right chest and stomach. This injury was simple in nature.

6. Injuries were also caused to accused Janardan Yadav, Jai Prakash and Rakesh Kumar Yadav. The injury reports are on record as Ex.-Kha-1, Kha-2 and Kha-3 which are extracted hereinafter.

"Injuries of Janardan Yadav

"(1) Contusion 4cm x 3cm x red colour over left side of head above ear.

(2) Contusion 10cm x 2cm x red colour over back of left side chest on upper ear.

(3) Contusion 5cm x 0.5 cm x red colour over left lateral side of chest below left axilla.

(4) Contusion 10cm x 4cm x red colour over outer side of dorsum of right hand and wrist."

Injuries of Jai Prakash Yadav

"(1) Abrasion 1cm x 0.5 cm x oozing fresh blood over right side of face near nose.

(2) Abrasion 1.5cm x 0.5 cm x oozing fresh blood over left side of face near nose.

(3) C/o pain right side chest and both thighs."

Injuries of Rakesh Kumar Yadav

"(1) L.W. 3cm x 0.5cm x bone deep over left side of head above ear. Fresh bleeding.

(2) L.W. 4 cm x 0.5 cm x bone deep over back of head. Fresh bleeding.

(3) L.W. 5cm x 0.5 cm x bone deep x fresh bleeding over front of head at midline.

(4) Linear abrasion 5cm long, oozing fresh blood over left malar area of face.

(5) Abrasion 3cm x 1cm x oozing fresh blood over right side face near outer canthus of right eye.

(6) Contusion 7cm x 1cm x red colour over left side front of lower neck and upper chest.

(7) Contusion 6 cm x 2cm x red colour over front of right shoulder.

(8) Contusion 5cm x 3cm x red colour over front of left arm middle part.

(9) Abraded contusion 6cm x 2cm x red colour over back of middle of right arm.""

7. In addition to the documentary evidence the prosecution led oral evidence of Constable Prem Singh as PW-1, who has supported the prosecution case in his examination-in-chief. In his cross-examination he has stated before the court below that there are 27 live bullets in his Carbine and that on the day of incident he had loaded 28 bullets. He has clearly stated that the bullet which hit deceased Mahatam Yadav was the 28th bullet from his Carbine. He has also stated that Carbine was snatched by Ram Briksha Yadav from him. This witness has averred that Ram Briksha Yadav did not allow him to take necessary measures for his protection and even if he was compelled to fire, he would have fired on the non-vital parts of the body and not on the chest of the deceased. As per him also the incident occurred suddenly.

8. Ram Briksha Yadav has been produced as PW-2 in this case, who has stated that polling booth of his village was at Jai Narain Inter College, Maur, of which he is a voter and he came to the booth to cast his vote at about 2.00 O'clock. When he tried to enter the gate alongwith his brother Ram Poojan and nephew Subhash Yadav, the accused Mahatam Yadav, Janardan Yadav, Onkar Yadav, Rajesh, Rakesh, Jai Prakash and Amarjeet suddenly started assaulting him with baton, sticks and Axe, due to which he sustained serious injuries including bone deep injuries on his head. Injuries were also caused to Subhash Yadav and Manoj. PW-2 claims to have fainted after sustaining injuries. He claims that informant Prem Singh fired in his defence or else he would have been killed. This witness was referred to district hospital by the Primary Health Centre and thereafter to Lucknow where he remained hospitalized for about 18-19 days. He has also stated that Prem Singh was pressurized to give an incorrect report in order to implicate him. He has denied that Carbine was snatched by him from Prem Singh. The report of PW-2 has also been registered as Case Crime No.498-B but no chargesheet appears to have been submitted pursuant to it. This witness has specifically assigned the role of causing injury on his head to accused Rakesh and Janardan.

9. PW-3, PW-4 and PW-5 are Subhash Chand Yadav, Manoj Gupta and Ashok Kumar Singh, respectively, who are the members of the group of Ram Briksha Yadav and have supported the version of PW-2, as per which gunshot injury to Mahatam was caused by informant Prem Singh and not by PW-2. These witnesses (PW-3 to PW-5) have levelled general allegations against the accused and no specific role is assigned to anyone for causing specific injury nor any weapon of assault is attributed to the accused.

10. PW-6 Riyasat Ali too was a Gunner with PW-2 and has supported PW-2, as per which it was the informant Prem Singh, who had fired from his Carbine. PW-7 Jameel Ahmad claims to be an independent witness, who has supported PW-2. PW-8 Panchu Lal Gautam was posted as Constable and has proved the chik FIR of Case Crime No.498-A of 2005. PW-9 Ram Sunder is the Pharmacist in Primary Health Centre, who has proved the injury report. PW-10 is Dr. Yogendra Pratap Singh, Medical Officer posted at Primary Health Centre, Haisar Bazar, who has proved the injuries of PW-2, PW-3 and PW-4.

11. PW-11 is Dr. Dipendra Narain Singh, who was posted at Medical College, Lucknow. He has proved the injuries of PW-2 and has denied the suggestion that due to political influence PW-2 was kept in Medical College. PW-12 Arun Kumar Singh is the Investigating Officer, who has denied that injuries were caused to PW-2 by the public present at the polling booth. PW-13 is Suresh Chandra Pandey, who has verified that PW-2 was admitted at the district hospital and was referred to KGMC, Lucknow. PW-14 is Dr. D.K. Srivastava, who had treated PW-2 in the emergency department of District Hospital at Sant Kabir Nagar. PW-15 is Dr. Umrao Singh, who had treated PW-2 at Basti and referred him to Medical College at Lucknow.

12. On the basis of evidence so led by the prosecution, the incriminating material produced during the trial was confronted to the accused for recording their statement under Section 313 Cr.P.C.. The accused appellants have denied the charges levelled against them. As per the accused it was PW-2, who snatched the Carbine and shot dead Mahatam Yadav, whereafter the members of public in retaliation threw stones and bricks at PW-2, PW-3 and PW-4 and chased them with baton and sticks, on account of which injuries were caused to them. The defence also produced its documentary evidence in the form of injury report of Janardan Yadav as Ex.Kha-1; injury report of Jai Prakash as Ex.Kha-2 and injury report of Rakesh Kumar Yadav as Ex.Kha-3.

13. The trial court, on the basis of evidence so led by the prosecution, has found the charges to be proved against the accused appellants and convicted them vide judgment and order dated 30.4.2008/1.5.2008 in Sessions Trial No.15 of 2007 arising out of Case Crime No.498A of 2005, under Section 147, 323/149, 308/149 IPC and acquitted them of charges under Section 504 and 506 IPC. The accused appellants have been sentenced to three years rigorous imprisonment alongwith fine of Rs.1,000/- each and lesser punishment. Aggrieved by the judgment of conviction and sentence the accused appellants have filed Criminal Appeal No. 3143 of 2008.

14. A criminal revision has also been filed by PW-2 against the aforesaid judgment contending that punishment imposed upon the accused is insufficient, inasmuch as life threatening injuries were caused to PW-2 and others, and therefore the sentence of the accused be enhanced. Criminal Appeal No.3143 of 2008 and Criminal Revision No.2233 of 2008 have thus been connected and heard together.

15. On behalf of the appellants Sri P.C. Srivastava Advocate submitted that accused appellants have been falsely implicated on the basis of manipulated injury reports procured by PW-2, who himself was the aggressor and had shot dead Mahatam Yadav by snatching Carbine of his gunner Prem Singh (PW-1). Elaborate arguments have been made regarding political connections of PW-2 on account of which he was given facility of gunner etc. He further submits that testimony of PW-2 is not credible and reliable in the facts of the present case. He then contended that after PW-2 shot dead Mahatam Yadav the members of public present on the spot retaliated and chased his party with baton and sticks and also threw stones, etc., which may have caused simple injuries, but due to manipulation the gravity of injuries have been enhanced. He further argues that no specific role of causing injury has been assigned to any of the accused by the prosecution witnesses, except PW-2, who is not reliable. Submission is that finding of conviction and sentence against the accused appellants is wholly unsustainable and the appeal is liable to be allowed.

16. Per contra, Sri Vikrant Pandey appearing for PW-2 states that injuries caused to PW-2 was serious and life threatening and, therefore, the punishment accorded to the accused appellants be enhanced. Sri Arunendra Singh, learned AGA submits that conviction and sentence of accused appellants is liable to be sustained.

17. We have heard learned counsel for the parties and have carefully perused the material on record including the trial court record.

18. At the very outset we may observe that it was during polling day of panchayat elections i.e. 25.8.2005 in District Sant Kabir Nagar that an incident occurred at about 2.15 pm at one of the polling centers namely Jai Narain Inter College, Maur, wherein one Mahatam Yadav was shot dead and several others sustained injuries. Two versions of the incident have surfaced on record. Apart from the version of Prem Singh (PW-1), the other version of the incident was based upon a written report of Rakesh Kumar Yadav son of late Mahatam Yadav (deceased) on the basis of which FIR was registered as Case Crime No. 498 of 2005. The prosecution witnesses in the present case namely Prem Singh, Ram Briksha Yadav, Subhash Chandra Yadav were implicated as accused therein. Ram Briksha Yadav, Prem Singh, Manoj Gupta, Hanuman, Subhash Chandra Yadav, Ram Poojan Yadav and Virendra have been convicted in Sessions Trial 257 of 2006. Bunch of criminal appeals have been filed by the convicted accused which are being disposed of by a separate order of the date, passed in leading Criminal Appeal No. 4062 of 2008.

19. All prosecution witnesses of fact have asserted that accused persons assaulted them when they arrived to cast their vote at Jai Narain Inter College, Maur. These witnesses (except PW-1 Prem Singh) have further asserted that in this very incident PW-1 fired from his carbine which caused the death of one Mahatam Yadav. Admittedly the incident is same in which Mahatam Yadav has been shot dead and injuries have been caused to others, including the injured herein as well as members of the accused party.

20. So far as murder of deceased Mahatam Yadav in the incident is concerned, the same was subject matter of other set of appeals which have been decided by the separate judgment of the date, passed in leading appeal no. 4062 of 2008. The statement of prosecution witnesses in the present appeal/revision about the murder of Mahatam Yadav is, therefore, of no avail.

21. In Criminal Appeal No. 4062 of 2008 this Court has elaborately examined the evidence led in Sessions Trial No. 257 of 2006 to hold as under:-

"28. It is a matter of common knowledge that atmosphere in villages remain usually charged during elections to the post of Pradhan and differences often arise due to varying perception about the manner of polls. The apprehension that the polls were being rigged could have been generated by one faction even without there being any actual basis for such apprehension. Usual altercations or differences is very common in such circumstances.

29. The differences in perception regarding fairness in holding of polls leading to heated arguments; hurling abuses; scuffle etc. are not very unusual. We may also note that about 400 persons were actually present at the polling booth. In response to a query, PW-1 in his cross-examination has stated that about 400 persons were present at the polling booth. He also stated that about 25 persons had assaulted them alongwith Ram Briksha Yadav but he recognized only 3-4 of them.

30. The evidence on record suggests that it is in the above charged atmosphere that a fight erupted, at the spur of moment, on spot, between the two factions on account of perceived attempt by the faction of Hanuman Yadav to rig the polls and its countering by the side of informant. In this fight members of both sides have sustained injuries in addition to Mahatam Yadav getting killed.

31. Counter versions have surfaced about which side was the aggressor. Evidence is not very specific on this aspect except the manner in which Mahatam Yadav got killed.

32. It transpires from the evidence available on record that in the presence of about 400 persons at the polling booth the supporters of two contestants to the office of Pradhan fought with each other resulting in injuries being caused to both the sides. It is in this charged atmosphere and at the spur of moment that the accused Ram Briksha Yadav apparently snatched the Carbine of his gunner and fired at the deceased."

22. In view of the above conclusions drawn in the connected appeals the statement of prosecution witnesses that PW-1 fired in defence of PW-2 which led to the death of Mahatam Yadav cannot be accepted. This is particularly so as the issue relating to murder of Mahatam Yadav was the subject matter of Criminal Appeal No. 4062 of 2008. The evidence led in the present case with regard to murder of Mahatam Yadav is not decisive nor can be looked into.

23. The issue involved in the present appeal thus is with regard to legality of the judgment and order of the court below convicting and sentencing the accused in Sessions Trial No. 15 of 2007, arising out of Case Crime No. 498A of 2005, Police Station Ghanghata. The offence alleged herein is limited to the injuries caused to PW-1 to PW-5 for which accused appellants have been convicted.

24. It is to be noticed at the outset that large number of persons had gathered at Jai Narain Inter College, Maur in connection with cast of votes in panchayat elections. The atmosphere at the polling centre was charged on account of perceived rigging of polls by one of the contestants. Supporters of two factions fought with each other wherein PW-2 snatched the carbine of his Gunner Prem Singh (PW-1) and shot dead Mahatam Yadav. Injuries have also been caused to both sides as is apparent from injury reports (Ex.Ka.4 to Ka.7 and Kha-1 to Kha-3).

25. So far as injuries caused to the informant side is concerned, it transpires that except the injured Ram Briksha Yadav (PW-2), injuries caused to other persons is simple in nature. The injured Subhash Chandra Yadav sustained an abraded contusion on his index and middle finger of his left hand. No x-ray report is produced. As per the doctor, this injury could have been caused by a hard and rough object. None of the prosecution witnesses have specified as to who exactly caused the injury, nor the weapon of assault is specified to any of the accused. The allegations remains general and omnibus and it would be difficult on the basis of such evidence to fix any individual liable for the offence.

26. Similarly, injured Prem Singh has only complained of pain; whereas Manoj Kumar had an abrasion and complained of pain. These injured witnesses have neither specified in their deposition as to who assaulted them nor have disclosed about the weapon of assault. No x-ray report is adduced. The allegations remains general and omnibus and it would be difficult on the basis of such evidence in this case also to fix any individual liable for the offence.

27. This takes us to the case of main injured Ram Briksha Yadav (PW-2) who has sustained two bone deep lacerated wounds on his head apart from abraded contusions. This witness in his testimony has disclosed that as soon as he entered the polling centre he was attacked by the accused with lathi, danda and farsa (baton, stick and battleaxe). He has alleged that his associates also sustained injuries and had his Gunner Prem Singh not fired he would have been killed. He has also stated that he was hit on his head with a baton by deceased Mahatam and his son Rakesh Kumar Yadav. He further stated that lathi blow by Rakesh hit on his head and that of Janardan on his hand and shoulders.

28. PW-2 in his cross examination has admitted that it was for the first time in Court that he has specified that lathi blow was caused by Rakesh and Janardan.

29. The testimony of PW-2 needs careful scrutiny inasmuch as the witness himself is an accused in the murder case of Mahatam Yadav which occurred in the same incident. This Court in Criminal Appeal No. 4062 of 2008 has convicted him under Section 304(1) IPC for causing gunshot injury from his Gunner's Carbine.

30. We have already held in Criminal Appeal No. 4062 of 2008 that PW-2 snatched his Gunner's Carbine to shoot Mahatam Yadav. It is not clear as to whether head injuries were caused to PW-2 after Mahatam Yadav was shot dead or before it. His version that PW-1 had fired from his Carbine has not been accepted. He is an interested witness and his version has not been believed in Criminal Appeal No. 4062 of 2008 with regard to the manner in which Mahatam Yadav was done to death. Specific role of causing injuries have been assigned by him to the informant Rakesh and Jawahar for the first time in court who were the injured witnesses in Criminal Appeal No. 4062 of 2008. PW-2 is the main accused in Criminal Appeal No. 4062 of 2008. This witness has therefore much to gain by implicating Rakesh and Jawahar. Since testimony of PW-2 has not been accepted for elaborate reasons in Criminal Appeal No. 4062 of 2008 and he otherwise being an interested witness does not inspire the confidence of court, as such we are not inclined to accept his testimony with regard to the manner in which injuries have been caused to him.

31. The court below while convicting and sentencing the accused has failed to notice the manner in which the incident occurred leading to the supporters of two candidates fighting amongst themselves and causing injuries to supporters of both sides. The trial court has erred in relying upon the testimony of PW-2 to convict the accused ignoring the fact that he is not a reliable witness. The fact that injuries were caused to both sides where hundreds of persons were present and specific role has not been assigned to any of the accused is clearly overlooked. No recovery of any weapon is otherwise made from any of the accused. In such circumstances, the judgment and order of court below convicting the accused appellants in this case and sentencing them cannot be sustained.

32. In a charged atmosphere at the polling booth where 400 persons were present and sudden fight erupted between two rival factions and their supporters, the causing of injuries to either sides cannot be pin pointedly attributed to any individual when there is no evidence of any of these individual either carrying any weapon of assault or specific role of assault assigned to them. The testimony of PW-2 is otherwise not found reliable.

33. Once we hold the conviction of accused appellants and their consequential sentence to be unsustainable, the question of enhancing their punishment does not arise. The Criminal Revision filed by Ram Briksha Yadav No. 2233 of 2008 fails and is dismissed.

34. In view of the discussions held above, the appeal filed by Janardan Yadav, Onkar Yadav, Jai Prakash Yadav, Rakesh Kumar Yadav and Amarjeet succeeds and their conviction and sentence is reversed. The judgement and order of conviction and sentence dated 30.4.2008/01.05.2008 is consequently set aside. If the above accused appellants are in jail, they shall be released, forthwith or if they are on bail, their bail bonds and sureties shall stand discharged and they shall be set free, unless wanted in any other case, subject to compliance of section 437A Cr.P.C.

35. No order is passed as to costs.

Order Date :- 18.1.2023

Anil/Ashok Kr./Ranjeet Sahu

(Shiv Shanker Prasad,J.) (Ashwani Kumar Mishra,J.)