Allahabad High Court
Rajesh Alias Bachchan Yadav vs State Of U.P. on 14 December, 2021
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment Reserved On: 23.10.2021
Judgment Delivered On: 14.12.2021
Court No. -48
Case :- CRIMINAL APPEAL No. - 820 of 2007
Appellant :- Rajesh Alias Bachchan Yadav
Respondent :- State of U.P.
Counsel for Appellant :- Lav Srivastava,Rajiv Gupta,Ranjay Kumar,Shivam Yadav,V.P. Srivastava
Counsel for Respondent :- Govt. Advocate,Subhash Yadav
Connected with
Case :- CRIMINAL APPEAL No. - 831 of 2007
Appellant :- Jawahir Chauhan And Others
Respondent :- State of U.P.
Counsel for Appellant :- Umesh Vats,B.N. Singh,Dilip Kumar,Sanjay Singh,Sudisht
Counsel for Respondent :- Govt. Advocate,B.K. Mishra,Kamlesh Kumar Tiwari,Subhash Yadav
And
Case :- CRIMINAL APPEAL No. - 1355 of 2007
Appellant :- Bashdev Rajbhar And Others
Respondent :- State of U.P.
Counsel for Appellant :- Vivek Prakash Mishra,Dilip Kumar,Kameshwar Singh
Counsel for Respondent :- Govt. Advocate,B.K. Mishra,Kamlesh Kumar Tiwari,Subhash Yadav
And
Case :- CRIMINAL APPEAL No. - 1356 of 2007
Appellant :- Arvind Gour
Respondent :- State of U.P.
Counsel for Appellant :- Vivek Prakash Mishra,Dilip Kumar,Jitendra Singh
Counsel for Respondent :- Govt. Advocate,B.K. Mishra,Subhash Yadav
And
Case :- CRIMINAL REVISION No. - 188 of 2007
Revisionist :- Rajani Kant Yadav
Opposite Party :- State of U.P. and Others
Counsel for Revisionist :- Subhash Yadav,B.K. Mishra,Kamlesh Kumar Tiwari
Counsel for Opposite Party :- Govt. Advocate,Kameshwar Singh,Rajiv Gupta
Hon'ble Anjani Kumar Mishra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
Per: Hon'ble Syed Aftab Husain Rizvi,J.
1. Heard Sri V.P. Srivastava, and Sri Dilip Kumar, learned Senior Counsels assisted by Sri Ranjay Kumar, learned counsel appearing for the appellants and learned A.G.A. for the State respondent in criminal appeals and Sri Kamlesh Kumar Tiwari, learned counsel for the Revisionist and Sri Ranjay Kumar, learned counsel for opposite party and learned AGA for the State-respondent.
2. All the aforesaid criminal appeals and Revision have been filed against the judgment and order dated 22.12.2006 passed by the Additional Sessions Judge, court no.7 Ballia in S.T. No. 167 of 2006 (State vs. Basdeo &others) in case crime no.1 of 2006 under Sections 147, 148, 302, 307, 436, 435, 336, 342, 353, 323, 504, 506, 427 IPC and Section 7 of Criminal Law Amendment Act, P.S. Pakari, District- Ballia.
By the impugned judgment and order dated 22.12.2006, the learned trial court has convicted the accused-appellants namely- Brahmdeo Chauhan, Ravindra Chauhan, Rajesh alias Babban Yadav, Arvind Gaur, Kamla Rajbhar, Guddu Rajbhar, Rambhawan Rajbhar, Gama Rajbhar, Jawahir Chauhan, Harish Chand Rajbhar, Ramashankar Rajbhar, Basudeo Rajbhar under Section 147 IPC and sentenced each of them to undergo one year rigorous imprisonment, under Section 436 IPC to undergo life imprisonment and fine of Rs. 1,000/- each, under Section 323 IPC to undergo six months rigorous imprisonment, under Section 307 IPC to undergo seven years rigorous imprisonment and fine of Rs.2000/- each, under Section 302 IPC to undergo life imprisonment and fine of Rs.5000/- each and under Section 506 IPC to undergo five years rigorous imprisonment. In default of payment of fine, each accused will have to serve eight months imprisonment. All the sentences to run concurrently. All the four criminal appeals have been filed by the accused/ appellants against the aforesaid judgment and order of conviction and sentences.
By the impugned judgment and order the learned trial court has also acquitted accused namely Suman Rajbhar, Santosh Yadav, Hansnath Gaur, Ranjit Gaur, Sunil Rajbhar, Devendra Rajbhar, Harendra Rajbhar, Bechu Rajhbhar and Mohan Rajbhar from all the charges. Aggrieved by this complainant Rajnikant Yadav has filed the Criminal Revision against the judgment and order of acquittal.
3. During the pendency of the criminal appeal, appellant-accused Kamla Rajbhar has died, consequently, appeal stands abated for him.
4. In brief the prosecution case is that complainant- Rajnikant Yadav gave an application dated 01.01.2006 written by Uma Shankar Yadav at P.S. Pakari District Ballia. In the application, it was alleged that "Applicant- Rajnikant Yadav is original resident of Hathauj, P.S. Khejuri, District Ballia. At present his father after constructing a house in village Ussa P.S.- Pakari, District- Ballia is living there with his family since last 30 years. One Brahm Dev Chauhan resident of Ussa tries to take illegal possession of the house property alleging it the land of Gram-Sabha. Because of this enmity, previously he has made several attempts to dispossess the complainant by inciting the villagers. Due to this reason today on 01.01.2006 at about 6:30 pm, Basudeo Rajbhar, Kamla Rajbhar, Guddu Rajbhar, Panch Ratan Rajbhar, Raj Kapoor Gond, Ram Bhawan Rajbhar, Harish Chand Rajbhar, Gama Rajbhar, Kavindra Nath, Ravindra Nath, Shravan Kumar, Ajay Chauhan, Rajesh alias Babban, Santosh, Arbind Gaur, Raju, Rajesh, Jawahir Chauhan, Brahmdev Chauhan and Ramashankar Rajbhar and others of the same village, and several other persons holding lathi-danda, Ballam and bricks/ stones in their hands with common object suddenly came at my house abusing and threatening with death. Seeing them I and my uncle Rajesh Yadav ran to save our lives, then they chased and assaulted us. My father Chandra Dev Yadav and younger brothers ran inside the house, then accused- persons shut the door from outside and put straw (puwal) etc. at the door and set it on fire and sat outside holding lathi-danda and spear in their hands. But anyhow my father came outside the room, then the accused-persons chased him and assaulted him severely. He fell down and became unconscious. On our cries and seeing the flames of fire, Hansnath Yadav, Adalat Yadav, Lalbachan Yadav and other villagers/ neighbourers and passers by came there and exhorted the accused-persons then they came on the road abusing and threatening with death. With the help of those persons we pulled out both from flames and saved their lives. The condition of my father, uncle and two brothers are serious and they have been taken to the Sadar Hospital to save their lives. The accused-persons also set on fire my kutcha house situated at some distance. Meanwhile a police vehicle came there then accused pelted bricks/ stones on police vehicle."
On the aforesaid written application, case crime no.1 of 2006 under Sections 147, 148, 149, 307, 308, 336, 342, 353, 436, 324, 323, 504 & 506 IPC and Section 7 of Criminal Law Amendment Act was registered on 01.01.2006 at 20:30 p.m. at P.S. Pakari. The investigation was taken over by S.O. Pakari, C.P. Yadav. The Investigating Officer recorded the statements of some witnesses and also arrested some of the accused and, thereafter, visited the place of occurrence and prepared the site plan. He also collected ashes from the two burnt houses, one pucca house and one kutcha house and pieces of bricks sealed it and prepared a memo.
Injured-Chandra Dev Yadav was admitted in the hospital for treatment. He died on 08.01.2006 at 5:35 am, in S.S.L Hospital, B.H.U, Varanasi. On his death Section 302 IPC was added. On 11.01.2006, Investigating Officer took into possession the blood stained clothes of injured/ deceased Chandra Dev Yadav, sealed it and prepared a memo. He recorded the statements of other witnesses. On 20.01.2006, during police custody remand of accused Brahm Dev Chauhan at his instance recovered a blood stained lathi and a plastic container of kerosene oil from the thatched room (Madai) in front of the house of the accused, and prepared its memo. The lathi was sent for forensic examination. During investigation, on the basis of evidence the role of Jainendra Rajbhar, Hansanth Gaur, Ranjit Gaur, Sunil Rajbhar, Devendra Rajbhar, Harendra Rajbhar, Bechu Rajbhar, Mohan Rajbhar and Suman Rajbhar also came in the light and they were also roped as accused. After completion of the investigation, charge-sheet was submitted.
5. The trial court framed charges against 23 accused namely-Basdev Rajbar, Kamla Rajbhar, Guddu Rajbhar, Ram Bhawan Rajbhar, Harish Chand Rajbhar, Gama Rajbhar, Suman Rajbhar, Santosh Yadav, Jawhir Chauhan, Ramashankar Rajbhar, Ravinder Chauhan, Shrawan Kumar Chauhan, Jainendra Rajbhar, Brhamdev Chauhan, Arvind Gond, Rajesh@ Babban Yadav, Hans Nath Gond, Ranjeet Gond, Sunil Gond, Devendra Rajbhar, Harendra Rajbhar, Bechu Rajbhar and Mohan Rajbhar under Sections 147, 436, 504, 323, 342, 307, 302, 336, 506, 435 and 308 IPC.
The prosecution produced 14 witnesses who have proved 30 prosecution papers marked as Ex.Ka-1 to Ex.Ka-30. The statements of accused were recorded under Section 313 Cr.P.C. in which they have denied the prosecution case and stated that they are innocent and have been falsely implicated. No evidence in defence was produced.
The learned trial court by the impugned judgment/ order has convicted the accused-appellants as described above while acquitted them from charges under Section 504, 342, 336, 435, 308 IPC and acquitted accused Suman Rajbhar, Hansnath Gaur, Ranjit Gaur, Mohan Rajbhar, Devendra Rajbhar, Sunil, Harendra Rajbhar, Santosh Yadav and Bechu Rajbhar from all the charges.
Accused- Panchratan Rajbhar, Kavindra Rajbhar, Ajay Chauhan, Rajesh Yadav, Shrawan, Raj Kapoor Gond and Jainendra Rajbhar were declared juvenile.
6(i) Injured-Chandra Dev Yadav was medically examined on 01.01.2006 at District Hospital Ballia by Dr. H.P. Rai, Senior Surgeon at 8:20 p.m., following injuries were found on his body at the time of examination:-
1. Lacerated wound 6.5cm x 1cm x bone deep at right forehead, 2.5 cm above the right orbit, full of soft clots, bleeding on touch.
2. Superficial burn in the whole of right palm, epidermis was peeled off at places.
3. Superficial burn on left palm, epidermis was peeled off at places, red in colour.
4. Lacerated wound 3cm x 1cm x bone deep at the right skull, 8 cm above the injury no.1. Soft clots, bleeding on touch.
5. Lacerated wound 3.5cm x 0.5cm x bone deep at the right skull 3cm above the right pinna, full of soft clot, bleeding on touch.
6. Contused swelling 17cm x 9.5cm at left scapular region, red in colour.
7. Contusion 10cm x 2.5cm on right scapular region.
The doctor has opined that injury nos.1, 4 and 5 were kept under observation and advised X-Ray, rest of the injuries were simple. All injuries caused by hard and blunt object, injury no.3 and 4 caused by heat. All injuries are fresh.
(ii) Injured-Rajesh was medically examined on the same day at 8:40 pm and the following injuries were found on his body:-
1. Lacerated wound 7cmx 1cm x bone deep at right skull, 7 cm above right pinna full of soft clot. Bleeding on touch.
2. Lacerated wound 6.5cm x 1cm x bone deep at the left skull, 6cm above the left pinna full of soft clot, bleeding on touch.
3. Lacerated wound 4cm x 1cm x bone deep at the left forehead, 4.5cm above left pinna, full of soft clots.
4. Lacerated wound 3 cm x 0.25 cm x scalp deep at the upper part of the head bleeding on touch.
5. Lacerated wound 2.5cm x 3/10 cm x scalp deep just right to injury no.4.
6. Lacerated wound 1.5cm x 3/10 x muscle deep at the right first toe.
7. Contusion 6cm x 2cm on the right lower back, red in colour.
Injury no.1 to 5 were kept under observation and advised X-Ray. Rest of the injuries were simple, all the injuries caused by hard and blunt object and fresh.
(iii) Injured-Ghanshyam was also medically examined on the same day at 9:00 pm and according to injury report, following injuries were present on his body:-
1. Superficial burn and redness at the nostrils and nasal Mucosa.
2. The whole oral mucosa was congested and swollen and saliva discharge from the mouth.
The child was taking laboured breathing.
In the opinion of the doctor, the patient seems to have fume poisoning, restless and kept under observation. The nasal burn was due to heated fumes.
(iv) On the same day at 9:20 p.m. the injured- Ashutosh was medically examined and following injury was found on his body:
1. Breathing of the injured was abnormal, saliva was discharging from the mouth, and oral mucosa was congested and swollen, patient was admitted and kept under observation.
In the opinion of the doctor, cause was fume poisoning.
Dr. H.P. Rai has been examined as P.W.-9 and he has proved all the aforesaid four medical examination reports as Ex.Ka-16 to Ex.Ka-19. The doctor has further stated that injures of all the injured persons may be caused on 01.01.2006 at 6:00 pm, the injuries no.1, 4, 5 and 7 of Chandra Dev Yadav may come from lathi-danda while injury no.6 may come by pressing with wooden plank, injuries no.2 and 3 may come from fire burn. All the injuries of Rajesh may come from lathi-danda while injuries of Ghanshyam and Ashutosh may come from fire and its fume.
(v) Injured Km. Nisha was medically examined on 04.01.2006 at 2:50 p.m. by Dr. Ashwani Kumar Singh at PHC- Sukhpura, District-Ballia, following injuries were found on her body.
1. Contused abrasion 5cm x 1.5cm on anterior part of right elbow joint, bluish in colour.
2. Contusion 8 cm x 2cm on anterior part of right thigh 8cm above left knee joint, bluish in colour.
Complaint of pain on skull, no visible injury.
Complaint of pain at back side, no visible injury.
In the opinion of doctor all injuries were caused by hard and blunt object and were simple in nature, duration about three days.
(vi) Injured Rajvanshi Devi was medically examined on the same day at 3:00 pm and following injuries were found on her body.
1. Contusion 8cm x 3cm on lateral side of right elbow joint, bluish in colour.
2. Contusion 10cm x 3.5cm on an anterior part of left thigh, 7cm above left knee joint, bluish in colour.
3. Contusion 7cm x 3cm on anterior aspect of left leg, 8cm below left knee joint, bluish in colour.
4. Contusion 10 cm x 3cm on posterior aspect of left knee joint, bluish in colour.
5. Contusion 5cm x 3.5cm on anterior aspect of right knee joint, bluish in colour.
6. Contusion 8cm x 3.5cm on posterior aspect of right thigh, 8cm above right knee joint, bluish in colour,
7. Contusion 5cm x 3cm on left hip, bluish in colour.
complaint of pain on right leg. No visible injuiry.
In the opinion of doctor, all injuries were caused by hard and blunt object, simple in nature, duration about 3 days.
(vii) Injured- Geeta Devi was also medically examined on the same day at 3:30 pm and following injuries were found on her body.
1. Contused abrasion 5cm x 2cm on posterior aspect of left arm, 7cm above left elbow joint, bluish in colour.
In the opinion of the doctor, injury was cause by hard, blunt and rough object and was simple in nature, duration was about three days.
Dr. Ashwani Kumar Singh has appeared as P.W.-7 and had proved all above three injuries reports as Ex.Ka-13 to Ex.Ka-15.
(viii) The medical examination of three injured persons have been conducted by Mr. R.P. Gupta on 01.01.2006 in District Hospital, Ballia. Dr. R.P. Gupta (P.W.-12) in his statement has said that on 01.01.2006 at 9.30 pm, as Emergency Medical Officer, he has conducted the medical examination of Hansnath Yadav and following injuries was found on his body:
1. Lacerated wound 1cm x 0.5 cm x scalp deep over anterior head 10cm above bridge of nose, X-Ray of Skull, Bleeding present.
2. Complaint of pain on right shoulder.
Doctor has opined that injury was caused by some hard and blunt object and duration was fresh.
(ix) The witnesses has further stated that on the same day at 9:35 pm, he conducted medical examination of Chandrakala Devi and found following injuries on her body:
1. Abrasion 1cm x 0.5cm on lateral aspect of left knee joint, oozing present.
2. Abrasion 0.5cm x 0.4cm on right medial malleolus.
3. Complaint of pain right thigh.
4. Complaint of pain right arm.
5. Complaint of pain over skull.
Doctor has opined that injury no.1 & 2 was simple and caused by friction, duration was fresh.
(x) The witness has further stated that on the same day on 9:55 pm, he examined Adalat and found following injuries on his person:
1. Abrasion 1cm x 0.5cm over right medial knee joint, oozing present
2. Abrasion 1cm x 0.5cm on right leg, 12cm below right knee, medially.
3. Lacerated wound 1cm x 0.5cm over right leg medially aspect 6cm above medial malleolus, bleeding present.
4. Complaint of pain right forearm
5. Complaint of pain right hand.
In the opinion of the doctor injury no.1 and 2 are simple and was caused by friction while injury no.3 was simple and caused by some hard and blunt object, duration was fresh.
(xi) Doctor has further stated that on 02.01.2006 at 12:25 am, he medically examined Rajni Kant Yadav and found following injuries on his person:
1. Lacerated wound 2.5cm x 0.5cm on right side face, 1.5cm below right eye.
2. Abrasion 1cm x 0.5cm right side of forehead, 4cm above right mid eyebrow.
3. Abrasion 1cm x 0.5cm on right shoulder anteriorly.
In the opinion of the doctor injury no.1 was caused by some hard and blunt object and X-Ray advised, injury no.2 and 3 was simple and caused by friction, duration was fresh.
(7) The postmortem of the deceased Chandra Dev Yadav was conducted on 08.01.2006 at 4:30 pm by Dr. Puneet Kumar Singh who has appeared as P.W.-13 and has proved the postmortem report as Ex.Ka-29. According to the postmortem report, the age of the deceased was about 45 years, average built body, rigor mortis present all over the body, eyes closed, mouth partially open. Following ante-mortem injuries were found:
1. Stitch wound 4cm on right side of forehead above 3cm on mid-line & 2cm below right eyebrow on opening scalp, full thickening contusion found in scalp 6cm x 3 cm.
2. Stitch wound 3cm above mid-line of forehead on opening scalp found contused in 3cm x 8cm Andro- posterior in full thickness.
3. Contusion 12cm x 10 cm right on upper arm, 11cm from right front arm, 11cm below tip of shoulder.
4. Abraded contusion 13cm x 9cm right tip of shoulder.
5. Contused swelling 21cm x 20cm on front of both chest.
6. Multiple abraded contusion 6cm x 3cm on left ear.
7. Abraded contusion 1cm x 0.5cm on front of left and right side of thigh above 13cm knee joint scorb on cut contusion found in fat and muscles 8cm x 3cm.
8. Dormet epidermal burn all over both hands, wrist & adjacent forearm.
In the internal examination, membranes were congested, extradural, subdural & subarchmid Haemorrhage. Brain was congested, odematous due to effect of injury no.1 & 2. Pleura, both lungs, Pericardium were congested, chambers of the heart were half-full, clotted blood was present. 100 ml watery fluid was in stomach. In small intestine- mucus and gases and in large intestine faecal matter and gases were present. Gall bladder was full, liver, pancreas, spleen and kidneys were congested. Urinary bladder was empty.
In the opinion of the doctor, cause of death was coma, as a result of head injury and intracranial haemorrhage due to blunt trauma effect. Evidence of blunt trauma over various parts of body, also burn effect over both hands. The deceased has died in SSL, Hospital BHU, Varanasi on 08.01.2006 at 5:35 am.
8 (a) In all 14 witnesses have been examined by the prosecution out of which 3 witnesses are public witnesses of facts. Rajnikant Yadav (P.W.-1) is the complainant and also an eye witness. In his examination in chief, the witness has narrated the allegations made in the written information and has proved it as Ex.Ka-1. The witness has further said that he was sent with constable Arjun Singh to the District Hospital, Ballia where he was medically examined and admitted in the hospital. He remained in the hospital for three days. After discharge from the hospital he went to BHU where his father Chandra Dev Yadav was admitted and under treatment. His father died on 08.01.2007 at BHU Hospital.
(b) Rajesh Kumar Yadav (P.W.-2 ) is also an eye witness. In his examination in chief, he has said that the village- Hathauj is his ancestral village. Chandra Dev Yadav was his brother. His brother Chandra Dev Yadav lived in village-Ussa, after purchasing land and constructing a house. Brahmdev Chauhan of Mohalla-Theka, village-Ussa claims the land on which the house of his brother was constructed to be Gram-Samaj Land and wanted to grab it. He had also made an attempt to dispossess Chandra Dev Yadav with the aid of other villagers. Due to aforesaid enmity on 01.01.2006 at 6-6:30 pm when he, his nephew- Rajnikant, his brother Chandra Dev Yadav (deceased) and other nephew Ashutosh and Ghyanshyam were sitting in front of Pakka house on chairs accused persons (all named) holding lathi-danda, spear, puwal, bricks, container of kerosene oil and match stick with common object came in front of his house and started to abuse, and threatened with death. Seeing them, we tried to flee then Ajay, Ravindra, Sravan, Brahmdev and Arvind beat him with lathi-danda. Ravindra and Shrawan inflicted lathi blows on the legs of his brother Chandra Dev Yadav. His brother Chandra Dev Yadav with nephew Ashutosh and Ghanshyam ran inside the room. Hansnath and Brahmdev shut the door of the room from outside and Basdeo, Kamla, Guddu and Panchratan put the straw (puwal) in front of the room and Hansnath & Brahmdev poured kerosene oil on it and lit the fire with match stick. The remaining accused set on fire three thatched roof room (madhai) with puwal. His brother Chandra Dev Yadav pushing the door, came outside the room then Ajay Chauhan, Arvind Gaur, Brahmdev Chauhan, Hansnath Gaur and Rajesh Yadav alias Babban Yadav started to beat him with lathi. His brother fell down. Hansnath Gaur pressed his chest by a wooden plank. On the noise and the sound of firing, Hansnath Yadav and Adalat Yadav holding torch and Lal Chand, Satyadev, Geeta Devi, Nisha Devi, Ram Banshi Devi, Babban Chaudhary, Chandrama Yadav, Hridaya Narayan Yadav, Veer Bahadur Yadav and Ram Asray Yadav begged for mercy but the accused severely beaten Hansnath Yadav, Adalat Yadav, Rajvanshi Devi, Chandrakala Devi and Geeta Devi with lathi. The incident was seen in the light of torch, flames of fire and the headlights of the vehicles passing through the road. Meanwhile, vehicle of police station- Khejuri reached there. Then accused started to throw bricks on it. Then extra police force reached there. Before arrival of the extra police force, accused Mohan, Suman, Harendra, Santosh and others set on fire his old house with Khaprail roof pouring kerosene oil and with puwal. The household articles, straw, cot, beddings etc. burnt in the fire. This house was used to tether cattle. The accused persons ran away when extra force was called. Ashutosh and Ghyanshyam were taken out from the burning room with the help of witnesses. They were also beaten with lathi-danda and they also received burn injuries. Their face and hands were burnt. Thereafter he his brother Chandradev, Ashutosh, Ghanshyam, Adalat, Hansnath and Chandrakala came to district hospital Ballia where their medical examination was conducted and were admitted for treatment. He was hospitalized in District Hospital, Ballia for five to six days. Chandra Dev Yadav was referred to BHU, Hospital, Varanasi where he died during treatment due to injuries suffered.
(C) Hansnath Yadav (P.W.-4) has also given the eye witness account and has said in his examination in chief that the incident is of 01.01.2006. He and his uncle Adalat Yadav, after getting the torch repaired came to the room of Chandra Dev Yadav at 06:20 p.m. Chandra Dev Yadav, Ramesh Yadav, Rajnikant, Ashutosh, Ghanshyam and Chandrakali were talking there, sitting on the chairs. At 06:30 pm, accused persons (all named) forming an unlawful assembly and holding lathi, puwal, bricks, spear, kerosene oil, and match sticks came there and started to abuse Chandra Dev Yadav, Rajni Kant and their family members. Ravindra Chauhan, Shrawan Chauhan, Ajay Chauhan, Arvind Gaur and Brahmdev Chauhan assaulted Rajnikant and Rajesh Yadav with lathi. Chandra Dev Yadav was assaulted in legs with lathi by Ravindra Nath and Shrawan Chauhan. Chandradeo Yadav with Ashutosh and Ghanshyam entered into the pucca house and shut the door from inside. Accused asked them to open the door, otherwise they will burn the house and kill all of them. Then Brahmdev and Hansnath Gaur taking puwal set on fire the madai. They also set on fire the two other thatched rooms by pouring kerosene on it. This incident was seen by Rajwanshi Devi, Nisha Devi, Geeta Devi, Ram Dev Yadav, Lal Bachan Yadav, Chandrama Yadav, Hridaynarayan, Veer Bahadur and Ram Asray. We were begging for our lives then the accused assaulted us with lathi-danda causing injuries to Adalat Yadav, Rajvanshi Devi, Geeta Devi, Nisha and the witness himself. When door was partly burnt, Chandra Dev Yadav pushing the door came outside. Then Ajay Chauhan, Rajesh alias Babban Yadav, Arvind Gaur, Brahmdev Chauhan and Hansnath Gaur assaulted him with lathi. Chandra Dev Yadav fell down then Hansnath Gaur pressed his chest by putting a wooden plank. Meanwhile, police force of thana- Khejuri came there. Accused persons threw stones on it and also set on fire the old house of Chandradev with kerosene oil. We took out, Ashustosh and Ghanshyam in unconscious condition. Thereafter we took the injured persons to the hospital on a vehicle where their medical examinations were conducted and they were admitted in the hospital for treatment. Chandra Dev Yadav was referred to Varanasi- Hospital where he died on 08.01.2006. We saw the incident in the light of torch, flames of fire and head lights of the vehicles passing through. The straw, cot, beddings, motorcycle, engine and other household articles were burnt in the fire. The witness has further said that he has shown his torch to the Investigating Officer in presence of Susheel Yadav and Sadanand. The witness has produced the torch before the court. The witness has further said that in all there are 29 accused. He forget the name of accused- Raju.
(d) S.I. Chedi Prasad Yadav (P.W.-6) the then S.O. of P.S.- Pakari is the Investigating Officer. The witness has said that the aforesaid case crime no.01 of 2006 was registered in his absence on 01.01.2006. Constable Vinay Prakash, Constable Arjun Singh, Constable Braghu Nath and Constable Indra Dev Singh reached the place of occurrence with the relevant papers and handed over to him at the house of the complainant. He started the investigation and recorded the statements of witness- Babban Chaudhary and Tarkeshwar Tiwari. On 02.01.2006 arrested accused namely Basdev Rajbhar, Kamala Rajbhar, Guddu Rajbhar, Panchratan Rajbhar, Rajkapoor Gaur, Ram Bhawan, Harish Chand Rajbhar, Gama Rajbhar, Kavindra Rajbhar, Ravindra Nath Chauhan and Shrawan Chauhan and recorded their statements. He also recorded the statement of Satya Dev Yadav and visited the place of occurrence and prepared the site plan at his instance. He also collected the burnt ashes from both the houses kuttcha and pucca and pieces of bricks in front of pucca house, sealed it and prepared its memo. The witness has proved, site plan as Ex.Ka-5 and memo as Ex.Ka-6. The witness has further said that he recorded the statements of other witnesses and then reached the district hospital Ballia collected the injury reports. On subsequent dates, he arrested the other accused persons and recorded the statements of remaining injured and also took in possession the blood stained cloths of Chandra Dev Yadav (deceased) and torch and prepared its memo. The witness has proved it as Ex.Ka-7. On receiving the postmortem report and panchayatnama of the deceased, Section 302 was added. On 20.01.2006 at 20:10 O'clock during the police custody remand of accused- Brahmdev Chauhan at his instance, recovered blood stained lathi/ bamboo, one plastic container of the kerosene oil used in the incident, from his thatched room, sealed it and prepared its memo. The witness has proved the recovery memo Ex.Ka-8. Witness has further said that he also prepared the site plan of place of recovery as Ex.Ka-9. He also collected other relevant papers like X-Ray report, X-Ray plate, medical reports and recorded the statements of other witnesses and sent the materials for forensic examination and after completing the investigation, submitted the charge-sheet Ex.Ka-10. The witness has also proved the GD No.2 of 02.01.2006 at 2:30 am regarding the entry of arrested accused at Police Station and also GD No.7 on 03.01.2006 at 6:30 am regarding the entry of three accused persons and two containers of burnt ashes as Ex.Ka-11 & Ex.Ka-12.
(e) The constable Gopal Rai (P.W.-8) in his examination in chief has said that on 01.01.2006 he was posted as constable at P.S. Khejuri. S.O. Rajnikant Verma received the information from control room to reach village-Ussa to maintain peace. He with S.O. and constable Akhilesh and constable driver Ataul Haque by Govt. Jeep No.UP60/ 9140 were going to village Ussa and reached in front of Katra Veer Bahadur Singh (small market) then 29 to 30 persons holding lathi-danda, bricks/ stones, threw it on their vehicle damaging its head lights, indicator and wire of wireless. Brahmdev Chauhan exhorted the others to attack the police personnels. We moved back the jeep. When more police force came there we reached the place of occurrence. It was 07:00 pm. Witness has identified accused-Brahmdev Chauhan in the court room.
(f) S.I.- Rajesh Kumar Verma (P.W.-14) in his statement has said that on 01.01.2006 he was posted as S.O., P.S. Khejuri and on that day at about 6:30 p.m. he received information from the control room through R.T. Set that some incident is happening in village Ussa. On the aforesaid information he with constable Gopal Rai, constable Akhilesh Kumar and Constable driver- Ataul Haque by Govt. Jeep No.UP60/ 9140 reached village Ussa. When his jeep reached near the Katra Veer Bahadur Singh then 29 to 30 persons including Brahmdev Chauhan holding bricks/ stones and lathi-danda in their hands came in front of his jeep and stopped it. Brahmdev Chauhan exhorted them to beat the policemen and they damaged the jeep with bricks/ stones and danda. The head lights, indicator and the wire of wireless of the vehicle got damaged. This incident happened at 19:20 pm. He identified the accused in the light of jeep and torch.
(g) Remaining witnesses are formal in nature. Constable Mahaveer (P.W.-3) is the chik writer who has said that on 01.01.2006 on the written information of complainant Rajnikant, he registered the case crime no.01/2006 and has proved chik FIR as Ex.Ka-2. Constable Amar Nath Tiwari (P.W.-5) is the GD writer and has proved G.D entry of FIR dated 01.01.2006 as Ex.Ka-3. The witness has also proved the entry of GD no.22 at 15.25 pm of 11.01.2006 by which Section 302 IPC was added as Ex.Ka-4.
(h) Arun Prakash Chaubey (P.W.-10) has said that on 12.01.2006 he was posted as Traffic Inspector, ARTO, Ballia and on request of Traffic Inspector, Police Line inspected the vehicle Jeep No.UP 60/9140 of Police Station-Khejuri and submitted a report dated 13.01.2006. The left head light, left indicator and the antenna of wireless machine of the jeep was damaged. The witness has proved the inspection report as Ex.Ka-20.
(i) S.I. Buddhi Ram Sharma has conducted the inquest proceedings of deceased Chandra Dev Yadav and has proved the inquest report and related papers as Ex.Ka21 to Ex.Ka-24.
9. All the three eye witnesses produced by the prosecution namely Rajnikant Yadav (P.W.-1), Rajesh (P.W.-2) and P.W.-4 Hansnath Yadav have corroborated the prosecution case that Chandra Dev Yadav (deceased) original resident of village Hathauj was living in village Ussa where accused Brahmdeo Chauhan wanted to grab his land alleging it as the land of Gram Sabha. On 01.01.2006 at 6:00 pm all accused persons holding with lathi-danda, bricks/ stones, spears and kerosene container and straw in their hands with common object came at the house of Chandra Dev Yadav and started to abuse Chandradeo Yadav and his family members. They also threatened them with death. Accused Ravindra, Shrawan, Ajay, Brahmdev started to beat Rajnikant, Rajesh and Chandradeo Yadav. Chandradeo Yadav with Ashutosh and Ghanshyam ran inside the room then Brahmdeo Chauhan and Hansnath Gaur shut the door from outside and putting straw, pouring kerosene, lit the match-stick and set it on fire. When Chandradeo Yadav came outside then Ravindra, Shrawan, Ajay, Brahmdeo beat him with lathi. Hansnath pressed his chest by a wooden plank. Rajesh alias Babban Yadav beat Chandradev with lathi. Ashutosh and Ghanshyam received burn injuries. They also set on fire the other kutchha house. The police force of police station- Khejuri came there then accused pelted stones/ bricks on their vehicle and damaged it.
The aforesaid eye witneseses are also the injured. They have received injuries in the incident. Rajesh Yadav (P.W.-2) and Hansnath Yadav (P.W.-4) both have been medically examined just after the incident on 01.01.2006 at 8:40 pm and 9:30 pm respectively. According to medical evidence seven visible injuries including six lacerated wounds and one contusion were found on the body of injured- Rajesh. Five of them were on the head, one on the right thumb and one on the back. Hansnath Yadav P.W.-4 has received one injury- lacerated wound on the head. Rajnikant Yadav (P.W.-1) was medically examined in the night on 01.01.2006 at 12:25 O'Clock at the District Hospital Ballia. According to medical evidence, three visible injuries were found on his body, one lacerated wound at the face, two abrasions, one at face and other on the right shoulder. Dr. H.P. Rai and Dr. R.P. Gupta have also corroborated the prosecution case that the injuries of the injured, eye witnesses may come at the time of occurrence with lathi-danda. Chandra Dev Yadav has also received seven visible injuries, three lacerated wound on head/ skull, two contusions on scapular region and two burn injuries on both palms/ hands. The doctor has corroborated the prosecution case that these injuries may come at the time of occurrence by hard and blunt object and fumes of fire. Chandra Dev Yadav was admitted in the district hospital from where he was referred to BHU. He was admitted there for treatment but could not survive and succumbed to his injuries during treatment on 08.01.2006 at 5:35 am. His postmortem report (Ex.ka-29) further proves that injured has died due to ante-mortem injuries. Kumari Nisha, Smt. Rajwanshi Devi, Geeta Devi, Ghanshyam, Ashutosh, Chandra Kala Devi and Adalat have also received visible injuries in this incident, their injury reports have also been duly proved by the concerned doctors who have also corroborated the prosecution case and have opined that these injuries may come at the time of occurrence with lathi-danda. Doctor has also opined that injuries of Ghanshyam and Ashutosh may come from smokes/ fumes of fire. So Ocular testimony of the witnesses stands fully corroborated with medical evidence on record.
10. During site inspection, Investigating Officer has collected burnt ashes and pieces of bricks. The witness Chedi Prasad Yadav (P.W.-6) has proved the memo and the material exhibits. This evidence also corroborates the ocular testimony. Motive of the incident as alleged in the FIR also got corroboration from the oral statement of the witnesses.
11. Rajesh Kumar Verma P.W.-14 then SO Khejuri and constable Gopal Rai have said that on 1-01-2006 they were posted at PS Khejuri. On receiving information from control room that some incident is happening in village Ussa they proceeded for village Ussa. When their jeep reached near the market of Veer Bhadur Singh 29-30 persons came in front of the jeep and stopped it. They were holding bricks/stones and danda. They attacked the vehicle and damaged its headlight; indicator and wire of wireless. SI Rajesh Kumar Verma has also named Brhamdev Chauhan, Rajesh Yadav alias Babban and Manoj Gond in his statement and has also said that he received the information at 6:30 p.m. and the incident with him has occurred at 7:20 p.m. Constable Gopal Rai PW8 has named only Brhamdev Chauhan and has also identified him in the court. Arun Prakash Chaubey assistant regional transport inspector has said that on 13-01-06 he make inspection of jeep no. UP60/9140. Its left headlight, left indicator and antennae of wireless were damaged. The witness has proved the technical examination report ext.ka 20. From statement of SI Chedi Prasad Yadav it is established that when he reached village Ussa the police force of PS Khejuri was there. So the above prosecution evidence further corroborates the allegations of the F.I.R. and oral testimony of the eye witnesses.
12. The prosecution has also produced the evidence of recovery of lathi and kerosene container used in the alleged incident at the instance of accused Brahmdev Chauhan. S.I.- Chedi Prasad Yadav (P.W.-6), the Investigating Officer has proved the recovery memo and material exhibits connected with.
13. Learned counsel for the appellants contended that the witnesses have said that Chandra Dev Yadav was beaten on legs by lathi-danda but no injury was found on his legs so oral testimony is not corroborated with medical evidence.
Learned AGA contended that the oral evidence fully corroborates the medical evidence, there is no major discrepancy or contradiction. Some minor contradiction are natural.
Considering the nature of the occurrence, it is not expected that the eye witnesses should give thread bare description of each and every happening, some minor contradiction are natural. The testimony of injured witnesses are consistent and it stands corroborated by the medical evidence. The contradiction or discrepancy pointed out by the learned counsel for the appellants is not of such a nature which affects the reliability of the witnesses. Their presence on the spot is duly proved as they themselves had received injuries in the incident. The Hon'ble Supreme Court in the case of Maqsoodan vs. State of U.P., (1983) 1 SCC 218, has held that minor inconsistencies in the statement of witnesses and FIR regarding the number of blows inflicted and regarding the fact who assaulted whom, would not, by itself, make the testimony of such witnesses unreliable. On the contrary, it would show that the witnesses were not tutored.
It is established law that the testimony of an injured witness is more reliable because his presence on the place of occurrence stands established and it is proved that he suffered injuries in the course of the incident and due weightage should be given to the testimony of an injured witness because the injured witness is a person who has received injuries during the course of incident which is in-built guarantee of his presence on the spot.
In Bhagwan Jagannath Markad and State of Haryana vs. Krishnan, it has been laid down that the testimony of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies. The reason for attaching such reliability for evidence of an injured witness is that his presence on the scene stands established and it is proved that in the said incident he got injured.
14. The learned counsel for the appellants further contended that the motive has been attributed to Brahmdev Chauhan and it is alleged that he was trying to forcibly occupy the land of Chandradeo Yadav alleging it as Gram-Sabha land. There is no motive for remaining accused. It is further contended that the accused Brahmdeo Chauhan in defence has produced the documents related to litigation between him and the deceased. So accused Brahmdeo Chauhan was taking legal recourse and there was no occasion to indulge in the criminal act. Learned counsel also contended that informant Rajnikant (complainant) Chandra Dev Yadav (deceased) and some of his family members have previously committed maar-peet with Brahmdeo Chauhan and a criminal case was registered against them which was pending at the time of the incident. Accused-appellant Rajesh alias Babban was also an accused in that case which shows that he was on the side of informant and so it is improbable that he will involve himself with his rivals and will take the sides of Brahmdeo Chauhan. On the aforesaid grounds, the learned counsel contended that motive as alleged is not proved.
The aforesaid arguments of the learned counsel are not appealing. All the three eye witnesses have consistently said that Chandra Dev Yadav has settled in Village- Ussa after acquiring some land and making construction there. Accused-appellant Brahmdeo Chauhan who is the resident of Village-Ussa did not like this and he wanted to forcibly dispossess Chandra Dev Yadav alleging that the land belongs to Gram-Sabha. He has also instigated the other co-villagers against Chandra Dev Yadav which culminated in the present incident. The circumstances may change, so it is not improbable that accused-appellant Rajesh alias Babban who was previously with Chandra Dev Yadav has turned against him and has joined the opposite party. There is nothing improbable in it and this cannot be a ground to disbelieve either the motive alleged by the prosecution or the involvement of accused-appellant Rajesh alias Babbhan in the incident which is established from consistent evidence on record.
15. Learned counsel also contended that the incident is alleged to be of 6:30 pm on first January, in District Ballia the eastern district where in the month of January, sunset occurs at 5:00 pm and it becomes totally dark after 6:00 pm. Regarding the source of light there are different and contradictory statements. Some of the witnesses have said that lantern and torch was the source of light while the others have said that torch and head lights of vehicles was the source of light. So the source of light is also not established. Incident being of darkness, the identity of the accused could not be established.
It is undisputed that the incident is of 6:30 pm of the first of January, so it is established that at the time of occurrence, it was darkness. From the site plan it is also established that the place of occurrence is inside the village and there are other houses near the place of occurrence. The site plan also shows public way in the south. It is also proved from the evidence that two house, one pucca house and one kuttcha house of the complainant was set on fire and when police party reached at the place of occurrence, the fire was flaring up. There is specific statement of P.W.-4 Hansnath Yadav that he came at the house of Chandradeo Yadav after getting his torch repaired. The torch has been taken into possession by the Investigating Officer and has been produced in the court. So the statements of witnesses that they have seen the incident in the head light of the vehicles passing through the road and the flames of fire, torch and lantern are natural and probable. Further, in the circumstances of the present case, the source of light in insignificant. It is proved from the oral evidence that accused persons holding lathi-danda, bricks, stones came at the house of Chandra Dev Yadav, beat them with weapons in their hands, set on fire the pucca house and one kutchha house. In the incident 11 persons including three eye witnesses have received visible injureies. The incident has occurred over a considerable duration. It was not momentary. According to statement of Rajnikant Yadav (P.W.-1), the incident has occurred for nearly 45 minutes. The incident was of such a magnitude that police control room conveyed a message to nearby police stations and police team of three police stations, P.S.- Khejuri, P.S.- Pakari and P.S.-Sikandarpur reached there to restore peace and maintain order. So the manner in which the incident has occurred there was ample time and opportunity to look and identify the accused persons. There is no occasion to doubt that witnesses were not in a position to identify the culprits.
16. Learned counsel for the appellants also contended that it is a case of mob violence and all the eye witnesses in their statements have admitted that woman were also part of the mob which attacked the house of victim. They have also said that police had also resorted to lathi charge to control the situation, so there is probability that injured persons may have received injuries in the lathi-charge. It has also been contended that there is also contradiction between the statement of Rajanikant (P.W.1) and Rajesh (P.W.-2) regarding the role of women in the incident while Rajnikant has said that women were holding bricks/ stones and they pelted stones but Rajesh has said that women have not pelted stones.
These arguments also have no force. In the FIR 20 accused persons have been named and it is also alleged that some other unknown persons are also involved in the incident and during investigation some of the accused not named in the FIR were also found to have taken part in the incident and have been arrayed as an accused and charge-sheet have been submitted against them. As stated above, the incident has occurred for a long duration, so the presence of women at the place of occurrence cannot be improbable. Every person present at the place of occurrence cannot be made accused. The person who have actually participated and have prominent roles are to be implicated. Considering the nature and magnitude of the incident, the presence of public at large at place of occurrence is natural. To maintain order and restore peace, the police may have used mild force. The witnesses being rustic villagers have termed it as lathi charge. So on this ground, the prosecution version cannot be disbelieved or testimony of the witnesses cannot be discarded.
17. Learned counsel for the appellants also contended that name with parentage of accused are mentioned in the FIR but the informant Rajnikant (P.W.-1) in his statement has said that he does not know the parentage of the accused persons. It shows that the report has been written with consultation and deliberation. Learned counsel further contended that FIR is ante-timed. The Investigating Officer has not recorded the statements of injured in the night while in his statement he has said that in the night, he reached the hospital. Constable Mahaveer Prasad (P.W.-3) in his cross examination has said that he has prepared Chitthi Majroobi of informant Rajnikant and sent him for medical examination, he has also said that he has not mentioned crime number and sections in the Chitthi Majroobi while Constable Amarnath Tiwari (P.W.-5) in his cross-examination has said that he has prepared Majroobi Chitthi of informant Rajnikant Yadav and has mentioned crime number on it. It is also contended that there is over writing on the number of GD and number 2 has been made 1 by over writing. Learned counsel also contended that the witness has admitted that there was no prior entry of any other crime in the GD of concerned date. All these discrepancies reflects that FIR has been lodged later on, mentioning time of 8:30 pm. Learned AGA on the other hand contended that the FIR has been lodged on the application of Rajnikant Yadav and from the evidence on record it is proved that after sending his father Chandra Dev Yadav and other injured to the district hospital, the informant went to the police station and on his written application the FIR was lodged. At that time the Investigating Officer was not present on the police station. He got the papers at the place of occurrence itself sent by the head Moharrir through constables. After lodging of the FIR, Rajnikant was sent to the District hospital for medical examination and he was examined in the night at 12:30 pm. So there is no circumstance which indicates that the FIR is ante timed.
From the evidence on record, it is proved that in the incident, Chandra Dev Yadav, father of the informant has received serious injuries and other members of his family were also injured. The witness has said that he sent his father and other injured in a Jeep to the district hospital and then he proceeded to police station to lodge the report. He got the report written by Uma Shankar. It is also proved from the evidence that informant Rajnikant Yadav was medically examined at district hospital at 12:25 pm in the night of the incident. The original injury report of the injured Rajnikant Yadav is not on record. The photo-copy of the report has been proved by producing medico legal register, so it cannot be judged whether crime number and sections were mentioned in it or not. It is true that there is contradiction between the statement of Constable- Mahaveer (P.W.-3) and Constable Amarnath Tiwari (P.W.-5), on the fact of preparation majroobi chitti of informant Rajnikant Yadav. They are formal witnesses and have given the statement, on the basis of their memory. It is pertinent to mention that three of the injured namely Kumari Nisha, Smt. Rajwanshi Devi and Geeta Devi have been medically examined on 04.01.2006 on a Majroobi Chitthi but the crime number and sections are missing in their chitthi majroobi also which have been prepared on 04.01.2006 after three days of lodging of the FIR, so mere omission of crime number or sections in the chitthi majroobi does not indicate that the FIR was not in existence at that time. The fact that no other crime was registered prior to this one also does not establish that the FIR is ante-timed. The witness Rajnikant (P.W.-1) has explained in his statement that he has written the parentage of the accused after enquiring from other persons. So there is no material on record on the basis of which in can be presumed that FIR is ante-timed or written information is a result of consultation or deliberation.
18. Learned counsel for the accused-appellant also contended that prosecution has failed to produce any GD entry of Investigating Officer proceeding to the hospital. It is also contended that in the entire case diary no time of commencement of the investigation, and the time of its conclusion has been mentioned. The statement of injured witnesses have been recorded with much delay after several days of the incident.
Learned AGA contended that the Investigating Officer received the papers at the place of occurrence and commenced the investigation. He recorded the statement of some of the witnesses and then ensured the arrest of some of the accused-persons. Thereafter he came back at police station and then went to the hospital from where he collected medical examination report of the injured. Considering the nature of the incident, there was a panic situation and to restore law and order, it was necessary to ensure the arrest of the accused persons, so he gave priority to it and due to this the statement of injured could not be recorded in the night. Under the circumstances of the case, the act of the I.O. cannot be said to be improper.
From the evidence on record it is clear that the Investigating Officer who was the the S.O. of Police Station- Pakari reached the village Ussa before registration of FIR, on receiving the information from the control room. The police party of the other police stations also reached there. Firstly police Jeep of Khejuri police station reached the village, the culprits pelted stones on it and did not allow it to reach near the place of occurrence and at that time the flames were flaring up. S.O. Pakari reached at place of occurrence, thereafter. The police force firstly tried to maintain order and restore peace and put off the fire with the aid of villagers. The Investigating Officer has said that he reached the place of occurrence between 7:00 to 7:15 pm, meanwhile, FIR was lodged at the police station and papers were sent to him at the place of occurrence. On receiving the papers and after maintaining peace and order he commenced the investigation. At that time the injured had gone to the district hospital, so he recorded the statements of other witnesses available on the spot and prepared the site plan and thereafter he engaged himself to ensure the arrest of the accused persons. He arrested some of the accused persons and thereafter came at the police station and then he proceeded to the hospital. It is true that statements of injured witnesses have been recorded with some delay but it is well settled principle of law that latches on part of the Investigating Officer, cannot benefit the accused. There may be some latches on part of the Investigating Officer but it does not adversely affect the prosecution.
19. Learned counsel for the appellants contended that there is no independent witness of recovery of lathi and kerosene container at the instance of Brahmdeo Yadav, the alleged recovery is planted and fabricated. Accused- Brahmdeo Chauhan was taken on police remand and he was tortured and his signature was obtained on a blank paper and he made a complaint in this regard to the concerned Magistrate who summoned the Police Officer in the court and S.I. Chedi Prasad (P.W.-6) in his cross examination has admitted these facts.
Learned AGA contended that recovery has been proved by S.I. Chedi Prasad Yadav (P.W.-6) who is also the Investigating Officer and lathi and kerosene container has been produced in the court and proved as material exhibits. The testimony of S.I. Chedi Prasad Yadav cannot be discarded merely because there is no other independent witness of alleged recovery.
From the statement of S.I. Chedi Prasad Yadav, it is proved that Investigating Officer after taking Bhramdeo Chauhan on police remand, at his instance, recovered one lathi and one plastic container of kerosene from thatched room near the house of the accused. The witness has also proved the recovery memo as Ex.Ka-8 and lathi and plastic container of kerosene oil as material exhibits Ka.1 and Ka.2. S.I.- Chedi Prasad Yadav in his cross examination has denied the suggestion of the defence that during police custody remand, accused Brahmdeo Chauhan was beaten after disrobing him and his signature was obtained on a blank paper. The witness has only admitted that accused Brahmdeo Chauhan has made a complaint in the court of CJM on which he was summoned by the court. It is true that no other witness has been produced by the prosecution to corroborate the statement of P.W.-6 of this recovery but only on this ground it will not be proper to disbelieve it. Even if this evidence is ignored, there is still sufficient evidence in form of ocular testimony which proves the prosecution version about the involvement of accused-appellants in the incident.
20. From the appreciation of evidence it is clear that the ocular testimony of injured witnesses are consistent. It also stands corroborated from medical evidence and other supporting evidence. There is no major contradiction or discrepancy which create any suspicion or doubt. The prosecution evidence is wholly reliable and there is no ground to disbelieve it. From the evidence of record it stands proved that the accused persons at the behest of Brhamdev Chauhan in a pre- planned manner and with a common object holding lathi, danda, bricks/stones and kerosene container came at the house of Chandra Dev Yadav (deceased) abused and beaten Chandra Dev Yadav and other members of his family. Chandra Dev Yadav with Ashutosh and Ghanshyam went inside the room. The accused shut the door and set it on fire. They also beat them when they came out to save their lives. Accused person also set on fire, the other kutcha house (thatched roof rooms). They attacked the police vehicle and damaged it. They also threatened with death Chandra Dev Yadav and his family members. In this incident 11 persons suffered visible injuries and Chandra Dev Yadav who was seriously injured and was admitted in the hospital, succumbed to his injuries one week after the incident.
21. Learned counsels for the appellants vehemently contended that neither any charge under Section 149 IPC has been framed against the appellants-accused nor their conviction have been recorded with the aid of Section 149 IPC. It is not proved as to which of the accused has caused the fatal injury to the deceased. So none of the appellants could be convicted for charge under Section 302 IPC. Learned counsel further contended that all of the appellants-accused also cannot be convicted for simplicitor charges under Section 307, and 436 IPC. Individual role of each accused will have to be judged. It is also contended that according to prosecution evidence Ravindra, Shrawan, Ajay, Brahmdeo Chauhan and Arvind assaulted Rajesh with lathi-danda and further Ravindra and Shrawan assaulted Chandra Dev Yadav with lathi. The role of setting on fire the room in which Chandra Dev Yadav, Ashutosh and Ghanshyam had taken refuge is assigned to Brahmdeo Chauhan and Hansnath Gaur (since acquitted). Rajesh alias Babban has been assigned the role of assaulting Chandra Dev Yadav with lathi. Chandra Dev Yadav has suffered 13 injuries and it is not clear that which of the accused caused which of the injury. Learned counsel for the appellants has relied on following citations:
(i) Rudal Singh & ors vs. State, 2016 (3)ACR 2823
(ii) State of U.P. vs. Kallu Lal and ors, 1985 Law Suit (All) 475
(iii) Sri Kishan and ors vs. State of U.P., 1972 (2) SCC 537.
The learned AGA conceded that as trial court has not framed charge of section 149 IPC the individual role of the each accused will be scrutinised. He submitted that accused-appellants could not be convicted for charge under section302 IPC but the may be convicted for charges under section 307 and 436 IPC according to their roles explicit from the evidence.
From the perusal of the charges framed by the trial court, it is clear that unfortunately the trial court has framed charges without aid of Section 149 IPC and has framed simplicitor charges under Section 302, 307, 308 and 436 IPC. It is settled principle of law on the point that mere omission to mention Section 149 IPC may be considered an irregularity but failure to mention the nature of the offence committed by the accused-persons cannot said to be a mere irregularity. The charges framed under Section 302 & 307 IPC are without the aid of Section 149 IPC and further there are no words in these charges which give any indication of existence of the ingredients of Section 149 IPC. So the conviction of the accused-appellants for charge under Section 302 IPC will not sustain. From the evidence on record it is also clear that there is no specific evidence which implicates the accused-appellants punishable for charges under Section 307 IPC and conviction for the aforesaid charge will also not sustain.
The trial court has also framed charge under Section 436 IPC simplicitor without the aid of Section 149 IPC but the trial court has used the words "आप अभ्युक्त द्वारा एक राय होकर"which denotes the common object of the accused.
In Ram Krishna AIR 1997 SC 3997 the Honourable Apex Court has observed "where the complicity of the accused in the crime has established and no specific charge indicating the applicability of section 149 was framed but all the ingredients of section 149 were clearly indicated in the charge framed against the appellants, the court held that the omission to mention Section 149 specifically in the charge is only an irregularity and since no prejudice was shown to have been caused to the appellants by that omission it was not to effect their conviction."
Although section 149 IPC is not specifically mentioned in the charge framed under Section 436 IPC but the language of the charge clearly indicates the common object of the accused which is the essential ingredient of Section149 IPC. Applying the aforesaid principle of law as laid down by the Hon'ble Apex Court it is clear that the accused-appellants cannot get benefit of omission of Section 149 IPC in the charge of Section 436 IPC. They could not be acquitted on this ground from the aforesaid charge as the charge indicates that the act was done in furtherance of the common object and omission of Section 149 IPC is a mere irregularity. From the evidence it is proved that accused-appellants, forming an unlawful assembly with common object, set on fire the two houses of the complainant, so their conviction under Section 436 IPC is just and legal.
22. It also stands proved from the evidence that all accused persons holding lathi-danda, bricks/stones and kerosene container forming an unlawful assembly came at the door of Chandra Dev Yadav and threatened Chandra Dev Yadav and his family members will death and beat them with lathi-danda. So charges under Section 147, 323 & 506 IPC also stand proved.
23. By the impuned judgement, the trial court has acquitted accused Suman Rajbhar, Santosh Yadav, Hansnath Gaur , Ranjit Gond, Sunil Rajbhar, Devendra Rajbhar , Harendra Rajbhar, Bechu Rajhbhar and Mohan Rajbhar from all the charges. Complainant/injured has filed criminal revision no. 188 of 2007 against the said order of acquittal. The learned counsel of revisionist contended that prosecution has produced three eye witnesses who are also injured and by there testimony prosecution case is fully established and their testimony cannot be disbelieved. From the deposition of witnesses it is established that all the accused including the acquitted accused have actively participated in the crime. The learned counsel further contended that the trial court on the same evidence has convicted some of the accused but acquitted the nine accused (opposite party) without any cogent reasoning . When the trial court has believed the testimony of eye witnesses there was no reason to disbelieve it for acquitted accused. It is further contended that leaned trial court has acquitted other accused persons without considering the totality of the circumstances and material available on record which is not sustainable in the eyes of law. On the aforesaid grounds learned counsel prayed that criminal revision filed on behalf of the informant against the acquittal of those accused persons is liable to be allowed.
The learned counsel for the accused opposite party submitted that all the nine accused acquitted by the trial court except Santosh Yadav were not named in the FIR and there names have been added during the investigation without any just cause. They have not been put to identification. The learned trial court on appreciation of the evidence found that their involvement in the incident is doubtful. The learned trial court giving benefit of doubt have acquitted them. The findings of the learned trial court do not suffer from any illegality or infirmity and there is no sufficient ground to set aside the order of acquittal .
Section 401 of CrPC deals with power of High Court in Revision. Sub -section 1 and 3 the relevant provisions are as follows:-
"1. In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
3. Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction."
In a catena of decisions it has been held that the High Court cannot in revision convert finding of acquittal into one of conviction. In Bhogilal v. State of UP, 1984(3)crimes 37 this court has held even if there is an error on the point of law or in appreciation of evidence the higher court should not interfere in the finding of acquittal. The order of acquittal may be set aside if it is based on conjecture and surmises and there is mis-carriage of justice. In Yogendra Nath Jha Vs. Polai Lal, AIR 1951 SC 316 it has been held that by merely characterising the judgment of the trial court as perverse and lacking in perspective, the High Court cannot reverse pure findings of fact based on the trial courts appreciation of evidence . The power of the High Court is very limited and as a general rule the High Court will not interfere in revision against the order of acquittal unless there is a gross error of law.
In respect of the aforesaid acquitted accused the learned trial court has observed that except Santosh Yadav the seven other accused are not named in the FIR and their name have been added during investigation but it is not clear from the prosecution evidence that on what basis their names have been added. If they were not named in the FIR whether any identification parade was conducted. It has been further observed that this statement that as and when there names came into knowledge they were added. is not sufficient and satisfactory explanation. In respect of accused Hansnath Gaur it has been alleged that he pressed the chest of Chandra Dev Yadav with a wooden plank causing injury to him but omission of the name of the accused in the FIR attributed with such a prominent role and narrating it for the first time in the court creates doubt. The learned trial court on the aforesaid appreciation has held that the accused whose names have been added after the FIR, creates doubt about their participation in the incident and on the aforesaid grounds have given benefit of doubt to them. In respect of accused Santosh Yadav the learned trial court has observed that he is resident of village Sahaspura PS- Rasda while in the FIR it is alleged that all the accused are residents of village Ussa and there is no explanation about the fact that how he has been alleged to be resident of village Ussa in the FIR. The learned trial court has also observed that it has come in the evidence that many people were assembled at the place of occurrence and passers by were also there. Hence in such a circumstance, the presence of any outsider at the place of occurrence was possible and on its basis his name may have been mentioned in the FIR. On the aforesaid reasoning, the learned trial court has extended benefit of doubt to the accused Santosh Yadav, also. The findings of the learned trial court are based on appreciation of evidence and cannot be said to be perverse or purely conjecture and surmises. The view taken by the learned trial court cannot be said to be improbable also. It may be a possible view. Applying the proposition of law as discussed above it is clear that there is no sufficient ground to interfere in the aforesaid findings of the trial court and set aside the order of acquittal. The powers of revisional court being limited, the revisional court cannot re-appreciate the evidence in its own way to interfere in the finding of acquittal unless the said finding is either perverse or based on inadmissible evidence or admissible evidence has been ignored by the court. There is no such circumstance in this case. So there is no merit in the revision which is liable to be dismissed.
24. From the above discussion, it is clear that convictions of accused-appellants under Sections 302 & 307 IPC are not sustainable in the eye of law, the same is liable to be set aside and all the accused-appellants are liable to be acquitted of the charges under Sections 302 and 307 IPC.
Conviction of the accused-appellants for charges under Section 147, 323, 436 and 506 IPC are liable to be upheld. The sentences awarded by the trial court in respect of the aforesaid charges are also just and proper and need no interference.
25. All the aforesaid four criminal appeals are partly allowed and conviction and sentence of the appellants-accused under Section 302 and 307 IPC are hereby set aside. Appellants accused are acquitted of the charges under Section 302 & 307 IPC. The conviction and sentence of the appellants accused for charges under Sections 147, 323, 436 & 506 IPC are hereby upheld. Appellants- accused Ravindra Chauhan, Brahmdeo Chauhan, Arvind Gaur and Rajesh alias Babban are in jail. They will serve their remaining sentences. Remaining appellants accused Basdeo Rajbhar, Guddu Rajbhar, Ram Bhawan Rajbhar, Harish Chand Rajbhar, Gama Rajbhar, Jawahir Chauhan, Ram Shankar Rajbhar are on bail. Their bail bonds and suriety bonds are cancelled. They shall surrender before the trial court within 15 days and be taken into custody to serve their sentences, failing which the trial court shall proceed according to law.
26. Criminal Revision has no merits and is hereby dismissed.
27. Copy of this judgment along with lower court record be transmitted to the learned trial court immediately.
Order Date :- 14.12.2021 C. MANI