Jagatram and Others vs State of U.P.

K. Narayan, J.—This is an appeal against the judgment and order dated 29-8-1979 rendered by Vth Additional Sessions Judge, Hamirpur in S.T. No. 23 of 1978 of the district.

Briefly speaking, the Appellants were tried after their committal for the offences and charges u/s 307 read with Section 34 IPC. The learned Sessions Judge convicted accused Jagat Ram, and Bal Krishna u/s 324/34 IPC and Kunwar Lal u/s 324 IPC simplicitor and sentenced them to R.I. for two years. Aggrieved by the same, the Appellants have approached this Court.

I have heard the learned Counsel for the Appellant and also gone through the evidence. The A.G.A. could not be available despite repeated efforts and the judgment is being delivered.

According to the prosecution contention, the three accused Appellants had emerged from a concealing spot in ruins where Bal Krishna exhorted others to kill Bhagwan Dass. Jagat Ram thereupon fired upon the complainant Bhagwan Dass which was missed and thereupon Kunwar Lal opened another fire hitting the complainant in his leg in calf region.

The prosecution had examined PW 1 Bhagwan Das, PW 2 Devi Din, and PW 3 Gauri Shankar in support of its contention about the occurrence. For the purposes of the present appeal, the evidence on the two later witnesses does not seem to carry any value as the statement of PW 1 Bhagwan Dass itself does not inspire any confidence. According to him the incident had taken place at about 6 a.m. on 17-5-77. He was medically examined by Dr. H.C. Pandey PW 4 at 10.30 a.m., in the district Hospital. The report of the medical examination Ex. Ka-2 as well as the statement of PW 4 Dr. H.C. Pandey conveyed duration of injury at that time, to be 12 hours. This would mean that the injury was caused some where around 10 p.m. on 16-5-77. Though an effort was made by the prosecution to get the duration of injury stretched by Dr. Pandey to the morning 17-5-77, the effort was too halfhearted and in any event could not obtain the desired purpose. There can be a variation in the duration of injuries when it is examined by medical officer but that variation is also subject to certain ratio varying with the laps of time between the incident and the medical examination. When the injury was examined at 10.30 a.m. and the time was fixed by the medical officer, having a look upon the injury, it could have meant a variation of two or three hours either way, if it was done after 12 hours. No medical expert could have committed the mistake in working out duration of injury with a change of about 8 hours when according to the prosecution theory the lapse was only of 4 hours. Upto the time of 6 hours the medical officer generally records injury to be fresh one.

Ordinarily this aspect may have not carried much value but in the instant case, there was suggestion in the cross-examination of PW 1 Bhagwan Dass, which was also accepted by him, that there was a dacoity at the house of local Patwari that day. He attempted to do away with the effect of it by saying that it happened later on, but it appears from this context that he had received some injury in the dacoity and getting an opportunity he attempted to avenge himself by bringing a prosecution for the greatest offence that he could have think of that is, u/s 307 IPC against the Appellant.

In result, the conviction and sentence recorded by the learned Sessions Judge cannot be upheld.

The appeal is accordingly allowed. The conviction and sentence recorded by the Sessions Judge are hereby set aside. The Appellants are on bail. They need not surrender. Their bail and bonds are cancelled and sureties discharged.