Neksey and Others vs State of U.P.

Poonam Srivastav, J.—Heard Sri. S.K. Mishra, learned Counsel for the Appellants and learned A.G.A. for the State.

Five persons have filed this appeal out of them one Appellant namely Hari Das is dead. The appeal was abated against him vide order dated 4.11.2009. The present appeal is being heard in respect of Appellants Neksey, Balveer Singh, Chandra Pal and Shishupal.

The occurrence is alleged to have taken place in the intervening night of 2/3.4.1981 at about 12.30 mid night and first information report was registered on 3.4.1981 at 3.10 a.m. at police station Jasrana, district Mainpuri by Faujdar P.W. 1.

The facts of the prosecution case briefly stated are that complainant Faujdar Singh is resident of Nagla Hari Singh H/o Jhapara, police station Jasrana. The accused are resident of Jhapara, except Haridas, who is resident of Singhpura P.S. Sakit, district Etah. Nagla Hari Singh is inhabited by the Members of Banjara community whereas the accused belong to Yadav community. Shyam Pal, Shishupal, Maidayal, Ram Khilari and 2-3 others used to visit Nagla Hari Singh and tease the female members of the Banjara. Faujdar Singh objected which led to an assault by Shyam Pal, Maidayal, Ram Khilari, Shishupal and 2-3 unknown persons about a fortnight before the incident. The motive attributed by prosecution regarding the aforesaid incident is, Faujdar Singh was injured and his bone was fractured in an incident a fortnight before the present occurrence. An F.I.R. of the said incident was lodged at P.S. Jasrana.

According to the allegations in the F.I.R. relating to the instant incident is that in the intervening night of 2/3.4.1981 at about 12.30 Shyam Pal, Chandra Pal, Ram Khilari, Maidayal, Neksey, Shishupal, Balveer and Hari Das armed with guns and tamanchas came at the house of Faujdar and challenged that he will see all the Banjaras of the village and ruin their hamlet within three days, in the event they did not withdraw the case against them. On hearing the above threats by the accused, witnesses Shyam Lal s/o Sukh Ram Banjara, Sholu alias Chhotey, Suraj Singh, Kishan Lal and others went on the roof of their houses and raised alarm on which the accused persons fired shots at Faujdar Singh with an intention to kill him due to which Kishan Lal s/o Babu Ram was injured. The Banjaras also threw brick bats in their self defence on which Shyam Lal and Chandra Pal entered in the house of Faujdar Singh and set the chappar of the houses of Faujdar and Kartar on fire. This resulted in burning his cot, quilt and a kambal. The above named accused persons were seen and identified by the witnesses and complainant in the light of torch and burning fire of chappars. Faujdar Singh got the F.I.R. of the incident prepared by Gopal Singh and lodged the same at police station Jasrana on 3.4.1981. C/c Shri Niwas prepared chick report of the incident and made entry of the crime in the G.D. The injuries of Kishan Lal was examined by Dr. D.S. Shukla, M.O.P. H.C. Jasrana on 3.4.1981 at 12.30 noon.

The case was investigated by S.I. D.V. Singh, who submitted charge-sheet against the above named accused persons after completing the investigation.

The accused denied the allegations of the prosecution and alleged that they have falsely been implicated in this case due to enmity.

The prosecution has examined P.W. 1 Faujdar, P.W. 2 Kishan Lal, P.W. 3 Shyam Lal, P.W. 4 Dr. D.S. Shukla, P.W.5 Shri Niwas and P.W.6 S.I. D.V. Singh. No witness has been examined on behalf of the accused in defence. Accused Neksey has, however, filed copy of charge-sheet of crime No. 138, under Sections 147, 148, 149, 307 and 302, I.P.C. to prove that father and uncle namely Quaim Singh and Shaitan Singh of accused Shishupal were witnesses in that case against Chandra Pal.

P.W. 4 Dr. D.S. Shukla examined the injuries of Kishan Lal at 12.30 noon on 3.4.1981 and found an abrasion 4 cm. x 2 cm. below the right eye-brow. The injury was simple and caused by friction. It was half day old at the time of his examination. The injury report is Ex. Ka-3.

Learned Counsel for the Appellant has argued that it is a mid night occurrence and except Faujdar P.W. 1 who has lodged the report, no one had seen the occurrence. Accused-Appellants had not participated in the crime. The factum of setting the house and articles on fire has already been disputed on the ground that articles alleged to have been burnt, were not produced and it is only ashes in respect of which recovery memo was prepared and exhibited during the trial. There is nothing to substantiate burning of household articles as alleged.

The next argument is that injuries are simple and conviction u/s 307, I.P.C. is uncalled for and without any substance. The suggestion and conclusion of learned Additional Session Judge that there was an intention to kill, is without any evidence. The medical evidence does not corroborate and substantiate this fact at all. It was not a fire arm injury.

Learned A.G.A. has disputed each and every argument of the learned Counsel for the Appellants.

However, after giving a careful consideration, I am in agreement with the submission of learned Counsel for the Appellants and I am of the view that it is not a case u/s 307, I.P.C. and conviction for attempt to murder is without any corroborative evidence. The injuries are not such to arrive on a presumption that there was any intention to kill. Conviction u/s 307, I.P.C. is set at naught. However, the injury was simple as reported by the doctor and calls for conviction only u/s 324, I.P.C. Besides, the finding that offence u/s 436/149, I.P.C. is clearly established and therefore, the conviction is maintained. However, the sentence is too excessive. Besides, long period of 30 years have elapsed and I do not think it proper that the Appellants should go to jail again.

In view of this consideration, the sentence is reduced to already undergone and fine of Rs. 2,000 each u/s 436/149, I.P.C. is imposed against the Appellant. Sentence u/s 323, I.P.C. is already undergone. The Appellants need not surrender. The appeal stands partly allowed.