Allahabad High Court
Jaggu And Others vs State Of U.P. on 3 February, 2020
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 06.01.2020
Delivered On:- 03.02.2020
Case :- CRIMINAL APPEAL - 3224 of 2003
Appellant :- Jaggu And Others
Respondent :- State of U.P.
Counsel for Appellant :- Anurag Khanna,Prakash Chandra Srivastava
Counsel for Respondent :- Govt. Advocate
Hon'ble Siddharth, J.
1. Heard Sri Prakash Chandra Srivastava, learned counsel for the appellant and Sri S.S. Tripathi, learned Additional Government Advocate appearing on behalf of State and perused the trial court's record.
2. This criminal appeal has been preferred by Jaggu and Jagram, both sons of Lallu, Mahavir and Virendra, both sons of Munna, against the judgment and order dated 09.07.2003 passed by Additional Sessions Judge, Court No. 3, Bijnor in Sessions Trial No. 106 of 2002 (State vs. Jaggu & Others) convicting the appellants under Section 452 IPC and sentencing them to three years rigorous imprisonment along with fine of Rs. 1,000/- each and further convicting the the appellant no. 1 to seven years rigorous imprisonment under Section 307 IPC and appellant nos. 2, 3 and 4 to rigorous imprisonment of seven years under Section 307/34 IPC along with fine of Rs. 5,000/- each with default clauses.
3. As per office report dated 03.01.2000, and report of C.J.M., Bijnor dated 04.12.2019, appellant no. 1, Jaggu, has died on 16.07.2017. Consequently this appeal stands dismissed as abated against appellant no. 1, Jaggu.
4. The prosecution case is that on 10.09.2000 an application was given by the informant at Police Station- Himpur, District- Bijnor, stating that his nephew, Rajpal son of Om Prakash, was sleeping on the second floor roof of his house on 09/10.09.2000. At about 01:15 a.m Rajpal raised alarm and cried for help and on hearing the same the informant and co-villagers, Ashok, Hari Prakash, Johar Singh and Ram Avtar, reached on the spot and saw his nephew, Rajpal being dragged on the stairs by the accuseds, Jaggu, Jagram, Mahavir and Virendra. Jaggu had country made pistol in his hand. When the informant and his companions tried to save Rajpal, accused, Jaggu, said that Rajpal had enticed away lady of his house and caused them embarrassment and he will kill him. Saying this he fired on the chest of Rajpal and he became seriously injured. At the time of incident lamp was lit in the verandah of the house. Informant and the co-villagers had torches in their hands.
5. On the basis of the aforesaid applications a case was registered by the Police under Sections 307, 452 IPC and Investigating Officer was entrusted with the investigation of the case. He completed investigation and submitted charge sheet before this court.
6. Charges were framed by the trial court under Sections 452, 307/34 IPC against the accuseds. They denied the charges and sought trial.
7. P.W-1, Shishram, the informant, repeated the allegations made in the FIR. He further stated that Jaggu had a 12 bore country made pistol in his hand and all the four accuseds were saying that Rajpal had insulted them in the village and they will kill him. Accuseds, Jagram, Mahavir and Virendra, exhorted the accused, Jaggu, to take revenge of insult. Then Jaggu fired from his country made pistol on Rajpal in the verandah with intention to kill him. At that time a lamp was lit in the verandah and the informant had torch in his hand. The main door of Rajpal's house was broken. He had seen the incident clearly in the light of lamp and torch. He took Rajpal in serious condition to the hospital along with co-villagers.
8. P.W-2, Rajpal, the injured witness, stated in his statement that Jaggu and Jagram both are real brothers. Mahavir and Virendra are also real brothers. Balveer is brother of Jaggu. The case regarding elopement of wife of Balveer was lodged against him. Thereafter they are having enmity with him. On the fateful day, he was sleeping on the second floor of his house which has no door. In the night at about 01:15 a.m the accuseds, Jaggu, Jagram, Mahavir and Virendra, picked him up. Jaggu had country made pistol in his hand. The accuseds dragged him from the stairs on the second floor to verandah. They were saying that he has brought much disrepute to them and they will not spare them alive. When he was being dragged he raised an alarm and cried for help. In the verandah, Jaggu fired on him with intention to kill by saying that he has tarnished their reputation in the village. At the time of incident Hari Prakash, Johar Singh, Ashok, Ram Avtar and also informant, Shish Ram came. They had torches in their hands and lamp was lit in the verandah. He suffered gun shot injury and was taken to hospital by informant, Shishram and other villagers. He was medically examined and admitted in the hospital.
9. P.W-3, Dr. Rajesh Kumar Maheshwari, stated that on 11.09.2000 he got the x-ray of the injuries of Rajpal conducted. On that day x-ray report was not clear and the injured was directed to get fresh x-ray conducted but he did not came. On 09.10.2000 the injured was x-rayed again. Second time the findings were-
" 3 small radio opaque metallic bony lesion seen. Left lung field is clear. Opinion- x-ray report confirms fire arm wound on the basis of x-ray report.
10. P.W-4, Dr. A.K. Gupta, found the following injuries on the body of the injured-
1- Fire arm lacerated wound 7cm x 1.5cm into deep (probing not done on front right side of chest) 8 cm away from left nipple at 1o'clock position, blackening tattooing present in an area of 5cm x 3cm around wound in upper ¾.
2. Lacerated wound 1cm x 0.2 cm x deep on back of chest, left side near posterior auxiliary line, communicating c` injury no. 1. Injuries kept under observations, advised x-rays, injuries are caused by firearm , duration fresh.
P.W.-4 opined that injuries could have been caused on 10.09.2000 at 1:00 a.m - 1:15 a.m. The injuries could have proved fatal for life. He further proved that on the basis of the x-ray report he found the injury to be simple and accordingly submitted the supplementary medical report.
11. P.W-5, Sub-Inspector, Bhudev Singh, proved the part of the investigation record and submitted the charge sheet report.
12. P.W-6, Constable, Yatendra Singh, stated that on the basis of the application given on 10.09.2000 by the informant he lodged the FIR and proved the G.D Entry in this regard.
13. P.W-7, Sub-Inspector, Rampal Singh, proved that he prepared the site plan and recorded the statement of informant and the injured. Thereafter the investigation was transferred to P.W-5.
14. P.W-8, Dr. Rajkumar, proved that on 10.09.2000 at 4:45 a.m he admitted Rampal in the district hospital and he was operated on 11.09.2000. From his chest wall four ticklees and 58 pellets embedded in lateral chest wall underneath the injury were recovered and sealed and sent to S.P. Office. The patient was discharged on 20.09.2000 in a stable condition. In his cross-examination he stated that all the pellets were below the skin of the injured and the injury was simple.
15. The statement of the accuseds were recorded by the trial court wherein they denied the incident and stated that they have been falsely implicated. They did not produced any oral or documentary evidence in support of their defense before the trial court.
16. The trial court has found that the cause of incident was the disrepute brought by the injured to the accuseds by enticing away wife of Balveer who was brother of accuseds, Jaggu and Jagram. This has not been denied by the accuseds in their statements under Section 313 Cr.P.C., therefore the motive of the crime stands proved. It has further found that the injuries were caused on the vital part of the injured and therefore there was intention to kill on the part of the accuseds.
17. Counsel for the appellant has submitted that the appellant nos. 2, 3 and 4, have been falsely implicated in this case. The injuries were caused by only appellant no. 1 on the body of the injured. The allegation of dragging the injured from the stairs down to the verandah is not proved since there is no such injury on the back of the injured which may proved that he was dragged from the roof and verandah downstairs. He has also disputed that the informant was present on the scene of occurrence and he saw the incident. The doctor has not found any internal damage in the chest of the injured. Only one fire arm injury was caused from the close range and this has been assigned to appellant no. 1, Jaggu and not to the appellant nos. 2, 3 and 4 who have been falsely implicated in this case. The conviction and sentence of the appellant nos. 2, 3 and 4 is without any reliable evidence and they deserve to be acquitted of all charges.
18. Per contra, learned A.G.A has submitted that there was enmity of injured, Rajpal, with the accuseds, Jaggu and Jagram, since wife of their brother, Balveer was enticed away by the injured, Rajpal. This fact has not been denied by any of the accuseds in the statement under Section 313 Cr.P.C. The injured was taken down to the verandah where all the accuseds persons were present and Jaggu opened fire on Rajpal to cause his death. Injuries suffered by him were grievous. As per section 34 IPC all the accuseds persons in furtherance of common intention caused the criminal act against the injured and as such all are liable in the same manner as if the act was done by each one of them alone. The trial court has rightly convicted and sentenced the accused persons and they are not entitled to any latitude.
19. After considering the rival submissions this court finds that from the statement of P.W1 and P.W-2 the appellant nos. 2, 3 and 4, have been assigned the role that they dragged P.W2 from second floor down to verandah through stairs and appellant no. 1, Jaggu, fired from his country made pistol on the chest of the injured. Apart from the fire arm injury on the chest of the injured there is another injury of 1cm x 0.2 cm on the back of the chest of the injured on left side near posterior auxiliary line found by the doctor. There is no other injury anywhere on the body of the injured. P.W-1 has stated in his statement that all the accuseds were forcibly dragging the injured but in the medical report there is no sign of dragging found on the body of the injured. The allegations in the FIR and the statement of P.W-1 are contrary to the medical report and it appears that the role of dragging assigned to appellants nos. 2, 3 and 4 does not stands proved. The role of exhortation has also been assigned to them but it has been found that it is a week type of evidence as held by the Apex Court in the case of Jainul Haque vs. State of Bihar, 1974 AIR SC 0-45. The Apex Court has held in the above noted case that eye-witnesses are prone to exaggerate thing and to involve as many accused as possible. The evidence exhortation is, in very nature of things, a week piece of evidence. There is quite often tendency to implicate some persons, in addition to the actual assailants, by attributing to that person role of exhortation to the assault the victim. Unless the evidence in this respect is clear, cogent and reliable no conviction for abetment can be recorded against the person assigned the role of exhortation.
20. Further the informant being eye-witness of the witness appears doubtful. He has admitted that his house is situated 100 feet away from the house of the injured. In the night at around 01:00 am it cannot be expected that the informant was awake. When the cry for help and alarm was raised by the injured he has stated to have gone to the house of injured and saw the appellant no. 1, Jaggu, firing on the injured and the other accused exhorting him to do so. In the statement of P.W-1 he has stated that the main door of the house of the injured, Rajpal, was broken by the accused while P.W-2, the injured, has stated that there are no doors on his second storey house. There are contradictions in the statements of P.W1 and P.W-2 as to how the accused persons entered the house of the injured, whether by breaking the door or there being no door in the house.
21. Regarding the motive of crime alleged against the appellants that the injured enticed away the wife of brother of appellant nos. 1 and 2, Balveer, no time and date of the aforesaid incident was mentioned by the witnesses in their statements. P.W-1 has admitted in his cross-examination that when he heard the cry of the injured for help he gathered people in the vicinity and went towards the house of injured, Rajpal. He saw him lying in the pool of blood. This clearly shows that the informant was not an eye-witness and he reached the spot on the hearing the cries of the informant after considerable time lost in gathering the people around. He has not stated that he saw the accused persons even running from the place of incident.
22. In view of the overall consideration of the facts and circumstances of this case this court is of the view that the offence of firing the only gun shot injury was rightly assigned to the appellant no. 1, Jaggu, who has died. The role of the appellant nos. 2, 3 and 4 of dragging the deceased from the stairs and exhortation is not proved from the material on record.
23. Accordingly, the appellant nos. 2, 3 and 4 are acquitted of all the charges. The judgment and order of the trial against the appellant nos. 2, 3 and 4 is set aside. Their bail bonds and sureties are discharged.
24. This criminal appeal is allowed.
Order Date:- 03.02.2020 Rohit