Allahabad High Court
Babban Yadav vs State Of U.P. And 2 Others on 6 March, 2017
Bench: Shashi Kant Gupta, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 45 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 2226 of 2016 Appellant :- Babban Yadav Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Rakesh Dubey,M.R. Maurya Counsel for Respondent :- G.A.,Mahendra Ram Maurya Hon'ble Shashi Kant Gupta,J.
Hon'ble Mrs. Rekha Dikshit,J.
Heard learned A.G.A. for the appellant/applicant and perused the material on record.
This application has been filed by the appellant/applicant with the prayer that leave to appeal may be granted against the judgement and order dated 1.02.2016, in Sessions Trial No.172 of 2007 (State Vs. Raj Kumar Yadav and others) arising out of case Crime No.81 of 2006, under Sections 302,307,147,148,149 I.P.C, Police Station Dubhad, District Ballia, whereby the accused respondents have been acquitted for the offence punishable under the sections referred to above.
Co-accused Rej Kumar Yadav has been convicted under section 302 I.P.C read along with other sections whereas co-accused Ramesh Yadav has been convicted under sections 307/147/148 I.P.C.
According to the prosecution version, the F.I.R was lodged on 21.11.2006 at 6.30 p.m. in the evening alleging that when the informant and the other persons were sitting warming up themselves near the fire in front of the door, suddenly the accused persons who were carrying weapons appeared at the scene and fired upon Veer Bahadur and other persons present there, on account of which Veer Bahadur and other persons allegedly sustained injuries. Injured Veer Bahadure was rushed to the hospital but he succumbed to his injuries. Both injured Vijay Kumar and Lal Manager were examined by Dr. S.P. Rai who opined that both the injured sustained injuries by blunt object. Vijay Kumar and Lal Manager are said to have received contusions.
Vijay Kumar was medically treated at Military Hospital. According to P.W-8, Dr. Ramashrey Mishra who treated the victim Vijay Kumar has opined that the injures caused to the victim Vijay Kumar were that of firearm and accordingly treated him. According to the prosecution the said injury was caused by Ramesh and on that basis the trial court has convicted him for the offence punishable under section 307 I.P.C instead of 302 I.P.C. The doctor had also identified the writing and signature of Dr. B.K. Singh who had examined Vijay Kumar and had opined that Vijay Kumar had received gun shot injury. In paragraph 31 of the judgement, it has been observed by the court below that P.W-2 Vijay Kumar has stated that he does not know as to where the X-ray was conducted. He fell asleep immediately after taking the medicines. He further submitted that he is not aware whether the X-ray was done in the military hospital or not. He also stated that his brother was treated at Sadar Hospital, Ballia. He also stated that he suffered gunshot injuries fired by Ramesh and his brother Veer Bahadur suffered gunshot injuries fired by Ram Kumar. He further stated that Lal Manager sustained injuries shot by Jawahar. Perusal of the record shows that according to the injury report Jawahar had received multiple contusion caused by hard blunt object.The injury is alleged to have been caused by fire arm. It has been further observed that earlier the brother of Raj Kumar was allegedly murdered and Ramji and Jawahar were the witnesses. He had no direct enmity with the informant side.
Thus, according to the medical report, none of the injured Jawahar and Lal Manager had suffered any fire arm injury but had suffered injury from the hard blunt object. It has been alleged that the accused-respondents were carrying lathi and danda and it has also not been alleged that they had opened fire on any of the victim. From perusal of the record, it is apparently clear that the accused-respondents have not been assigned the role of firing. From the medical report it is evident that Lal Manager had not suffered any gunshot injury.
Learned counsel for the appellant-applicant has drawn my attention to the testimonies of P.W-1 Babban Yadav. It has mentioned in paragraph No.9 of the judgement wherein it has been alleged inter alia that Jawahar had opened fire on Lal Manager. It is notable that Lal Manager had not suffered any gunshot injury as stated by Doctor S.P. Ray, PW-5.
We do not find any factual or legal error in the assessment of evidence by the court below while acquitting the accused respondents. Moreover, the view taken by the court below is a possible view. The court below has given cogent, convincing and satisfactory reasons while passing the order of acquittal.
Upon specific query by the Court, learned AGA appearing on behalf of the State failed to demonstrate any illegality or infirmity in the findings recorded by the court below.
We, therefore, do not consider it to be a fit case for grant of leave to appeal to the applicant. The application seeking leave to appeal is, accordingly, rejected and, consequently the appeal is also dismissed.
It is made clear that this Court has not expressed any opinion with regard to culpability of the other co-accused who has been convicted.
Order Date :- 6.3.2017.
G.S