State vs Jai Singh And Others
2023 Latest Caselaw 2742 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 47
 

 
Case :- GOVERNMENT APPEAL No. - 1813 of 1986
 

 
Appellant :- State
 
Respondent :- Jai Singh And Others
 
Counsel for Appellant :- A.G.A.
 
Counsel for Respondent :- B.D. Singh,Rajeev Kumar Sharma,Ma
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

1. Heard Sri Arunendra Kumar Singh, learned AGA for the appellant and Sri Rajeev Kumar Sharma for the accused respondents.

2. This appeal is by State challenging the judgment and order of acquittal dated 13.3.1986, passed by IVth Additional Sessions Judge, Hamirpur, in Sessions Trial No.153 of 1985 (State Vs. Jai Singh and others), under Section 307/34 IPC, Police Station Rath, District Hamirpur.

3. Prosecution case is that informant's elder brother Pratap was living with him in Village Bilrakh. He had taken certain loan and in exchange had given possession of a part of residential premises to Rajendra and Hemraj. About 20 days back when the informant returned from Delhi, he came to know that Hemraj had opened a door on the northern side without his permission. In the panchayat held with the intervention of elders, an assurance was extended that the matter would be resolved. On 11.1.1985 at about 2.00 PM when the informant was trying to close the door unauthorizedly opened on the northern side, the accused Jai Singh came and asked him not to close the door. On not agreeing to his request, the accused started hurling abuses and on hearing the commotion various persons came on the spot. In the meantime, Rajendra armed with a Rifle alongwith Hemraj and Brahmanand, who too were armed with gun were seen coming to the spot and on seeing them the accused exhorted that they be done to death. On hearing this, Rajendra, Hemraj and Brahmanand fired from their gun in which Vijay and Kishori sustained injuries. The accused fled. On the basis of report, FIR was lodged and on the basis of investigation concluded in the matter a chargesheet was submitted under sections 307/34 IPC against the accused.

4. The trial proceeded after the competent court framed charges in which 18 witnesses have been produced. PW-4 Dr. A.K. Nigam has proved the injury report, as per which following injuries were caused to Kishori Lal:-

"1. सिर के ऊपर मध्य लाइन से बांयी भौ के अन्दर व किनारे से 8 सेमी. ऊपर की तरफ एक फटा हुआ घाव 7 सेमी x 2.5 सेमी। घाव के आगे के भाग के किनारे अन्दर की ओर मडे हुए थे और चारों ओर 0.5 सेमी. के क्षेत्र में कालिमा व झुलसन मौजूद थी। पीछे की ओर का घाव के किनारे बाहर की ओर थे तथा खाल कई जगह से फटी थी। घाव हड्डी तक गहरा था घाव के क्षेत्र की खाल व मांसपेशियां गायब थी।(अग्नेय शस्त्र द्वारा प्रवेश घाव जो कि आगे से पीछे की ओर जा रहा था और उसके प्रवेश तथा निकास द्वार एक दूसरे से मिले हुए थे।)

2. कई अग्नेय शस्त्र के प्रवेश घाव जो कि 10 सेमी. x 5 सेमी के क्षेत्र में थे। माथे में नाक से 3 सेमी. ऊपर प्रत्येक घाव 0.2 सेमी x 0.2 सेमी के क्षेत्र में थे।

3. फटा हुआ घाव 3 सेमी. x 2 सेमी बाये अंगूठे के पीछे की तरफ तथा मांशपेशियों तक गहरा। घाव के अन्दर की तरफ के 1.5 सेमी के क्षेत्र में कालिमा मौजूद है व घाव के किनारे झुलसे हुए है। बाहर की तरफ के क्षेत्र में कोई कालिमा नहीं है।(अग्नेय शस्त्र द्ववारा प्रवेश घाव व निकास घाव एक साथ है जो अन्दर से बाहर की ओर जा रहे है।)

खोपडी के तथा दाहिने हाथ के एक्सरे की सलाह दी गयी। चोट नं० 1 व 3 बतौर निगरानी रखी गयी चोट नं० 2 साधारण थी। सभी चोटे किसी अग्नेय अस्त्र द्वारा पहुंचायी गयी थी व ताजी थी। "

5. The injured Vijay was also examined and following injuries have been found on him:-

"1-कटा हुआ घाव 0.5 सेमी x 0.5 सेमी. दाहिनी भुजा में बाहर की तरफ दाहिनी भुजा की हड्डी के ऊपरी हिस्से से 5.5 सेमी नीचे घाव 2 सेमी गहरा तथा उसकी दिशा अन्दर की तरफ किनारे अन्दर की तरफ मुडे हुए 0.5 सेमी के क्षेत्र में कालिमा मौजूद थी (आग्नेय अस्त्र का प्रवेश घाव) दाहिन कंधे के एक्सरे की सलाह दी गयी।"

6. The trial proceeded in the matter and various witnesses of fact have been produced.

7. Trial court has evaluated the evidence on record and has come to the conclusion that the motive for commission of offence as disclosed by the prosecution has not been established. For coming to such conclusion, the court below has observed that the two injured Vijay and Kishori were not the relatives of the informant and there was no motive for them to be assaulted by the accused. It has further been observed that the brother of the informant has already sold his portion in the house and in the event anybody was trying to encroach it and interfere with such land, then the injured cannot be the person aggrieved nor there was any occasion for them to be assaulted. A categorical finding has been returned that the prosecution has not been able to establish the motive for commissioning of the offence.

8. Though in the present appeal the judgment of acquittal is assailed, yet the factual foundation, which forms the basis for the conclusion by the court below about the injured not being related to the informant nor being aggrieved by the act of encroachment, is neither shown to be perverse nor is proved to be factually wrong. The finding in that regard is, therefore, sustained.

9. On the merits of the claim the court below has noticed that the injured have been examined on the basis of Chitthi Majroobi in which no case crime number is mentioned nor any details with regard to the case is recorded. A doubt with regard to lodging of the FIR is thus expressed on the premise that the FIR has been lodged later in consultation with the police and that it is an afterthought. It has also been noticed that though the accused Rajendra, Hemraj and Brahmanand are shown to be carrying firearms but none of the injuries caused to the two injured is a firearm injury. PW1 has otherwise stated in his testimony that after hearing the gunshot he arrived at the place of occurrence. The court below, therefore, has found that neither PW1 is an eye-witness nor the injuries have been caused in the manner suggested by the prosecution. A further finding is returned that on account of enmity between the parties the informant apparently has implicated the accused persons against whom no evidence is led to prove that any offence is committed by them.

10. PW-3 Kishori, who is injured witness, has turned hostile. PW-2 Vijay has also stated that he had not sustained any gunshot injury but only pellets had hit him but none of the pellets have been recovered. This witness otherwise has had a checkered criminal history and various cases have been lodged against him. Enmity has also been established between the accused with PW-6.

11. The observations and findings contained in the judgment of the court below, on the aforesaid aspects, although are assailed but neither any factual perversity is shown nor the State Counsel has been able to show that evidence available has been misread or misconstrued. It is otherwise the law settled that if the judgment of acquittal is based on a permissible view in the facts and circumstances of a particular case, this Court in exercise of appellate jurisdiction would not be justified in interfering with it only because a different view is taken. As the incident is of the year 1985 and the accused is more than 75 years old person, and in the absence of any cogent evidence led in the matter we find no good ground to interfere with the judgment of acquittal passed by the court below.

12. This government appeal, consequently, fails and is dismissed.

Order Date :- 27.1.2023

Anil

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