State of U.P. vs Battu alias Jaishri Ram and Others

Onkareshwar Bhatt, J.—State of U.P. has preferred this appeal against judgment and order of acquittal dated 25.9.1990 passed by the then I Ind Additional Sessions Judge, Jalaun at Orai in Sessions Trial No. 137 of 1998. Accused Respondents were tried for the charges under Sections 147, 148 and 307 read with Section 149, I.P.C. and acquitted.

Initially leave to appeal was declined by order dated 14.7.1992. The above order was set aside in appeal by Special Leave by the Supreme Court by order dated 4.9.2002 and the matter was remitted back for being dealt with on merits. Thereafter by order dated 24.3.2003 the appeal was admitted.

During pendency of the appeal accused-Respondents, Battu alias Jaishri Ram and Teeka Ram died. By order dated 20.5.2003 the appeal was ordered to abate against them.

Sri R. S. Maurya, learned A.G.A. for the Appellant and Dr. R. Dwivedi and Sri R. P. N. L. Srivastava, learned Counsel for the Respondents have been heard.

According to the prosecution case informant, Virendra Kumar, P.W. 1, along with Raghav Ram, P.W. 2, was sitting on a cot on chabutra of Panna Lal in village Nawar Police Station Gohan district Jalaun at 8.30 p.m. on 7.10.1987 and an electric bulb was emitting light. On the other chabutra Shiv Balak, Shiv Kumar, Anjani Kumar and Virendra Kumar were also sitting and were talking. At that time, Battu alias Jaishri Ram (since dead) armed with axe, Ram Adhar armed with a single barrel gun, Bhikhari armed with lathi, Ramji armed with a single barrel gun, Suresh armed with lathi, Teeka Ram (since dead) armed with lathi, Pramod armed with iron rod and Prem Narain armed with a single barrel gun arrived. A case of theft was going on against six persons including Battu alias Jaishri Ram, Suresh and Ram Adhar. In that theft case, informant, Virendra Kumar and injured, Raghav Ram were witnesses. Battu alias Jaishri Ram and others persuaded the informant several times not to appear as to witness in the above theft case. The informant told them that he would depose the truth in the Court. Due to the said enmity accused-Respondents forming an unlawful assembly variously armed came to the chabutra of Panna Lal. Accused, Battu alias Jaishri Ram and Ram Adhar again enquired from the informant about his appearing as witness. However, the informant maintained that he would depose what he had seen. Thereupon accused, Battu alias Jaishri Ram wielded axe which hit on the hand of the informant. Second axe blow hit the informant in his leg. The informant had a danda in his hand which he wielded in self-defence on Battu. In the meantime, accused, Ram Adhar fired on them but since informant sat down the fire hit the door. In order to save himself the informant ran towards the house of Panna Lal and entered the house and bolted the door. Accused, Ramji and Prem Narain also fired which hit the door. On their alarm witnesses and villagers arrived and the accused made good their escape F.I.R. was lodged by informant, Virendra Kumar at the police station on the same night at 11.10 p.m.

The accused-Respondents have denied the prosecution case. Accused, Battu alias Jaishri Ram has stated that he along with his brother, wife, Smt. Jasman, and son was returning after witnessing T.V. from the house of Babu Ram. When they reached near the door of Laxmi, the informant, Virendra Kumar, Raghav Ram and others asked them not to plough the field of Pramod and assaulted them by lathis due to which they sustained injuries. Sub-Inspector, Ram Gopal Pandey, Investigating Officer of the case, has stated that wife of Battu had lodged the report on 8.10.1987 u/s 323, I.P.C. wherein she has alleged that she and her husband, Battu had sustained injuries. He has stated that since it was a non-cognizable report he did not investigate the same and did not think it necessary to obtain permission for investigation. D.W. 1, Dr. S. K. Upadhyay has stated that the injuries of Smt. Jasman, wife of Jaishri Ram were examined on 11.10.1987 by Dr. H. K. Vadil in district hospital Orai. He has proved the injury report, Ext. Kha-1. Following injuries were found by the doctor on the person of Smt. Jasman:

(1) Abrasion 4 cm. x 3 cm. on the right side of face just outside right eye scab present.

(2) Diffused skin colour swelling present all over the right dorsum of hand tender on touch movement of finger of right stitched. X-ray advised.

(3) Contusion mark 10 cm. x 6 cm. on the front of right side abdomen reddish black in colour.

(4) Contusion mark 11 cm. x 5 cm. on front on outer margin right thigh reddish black in colour.

(5) Pain on anterior aspect of left side chest. No injury mark seen.

The doctor has stated that above injuries could have been caused on 7.10.1987 at 10.30 p.m.

The prosecution has examined Virendra Kumar, injured, and Raghav Ram, injured, as witnesses of fact. Eight persons have been arrayed as accused in the case. As stated above, three of them were armed with single barrel guns, three of them were armed with lathis, one with iron rod and one with axe. Informant, Virendra Kumar has sustained three incised injuries and one abrasion. No fire arm injury was caused to him although it is alleged that accused, Ram Adhar, Ramji and Prem Narain opened fire at him. P.W. 2, Raghav Ram has sustained only one injury on the corner of right eye brow, which according to Dr. P. K. Tripathi, P.W. 6 could have been caused by discharge of fire arm. According to the informant, fire arm injury of Raghav Ram was caused due to firing of accused Ramji. Admittedly, Shiv Balak, Shiv Kumar, Anjani Kumar and Virendra Kumar were sitting near the informant and Raghav Ram. None of these witnesses have been examined by the prosecution. According to Virendra Kumar first axe blow wielded by accused, Battu caused injury on the palm of his right hand when he was sitting. He has stated that he got up and in the meantime accused Battu wielded another blow which hit him on the right knee. He has further stated that prior to the injuries caused by the second blow of axe he ran towards the house of Panna Lal and hardly had he moved one step the firing started taking place. He has stated that he went inside the house and bolted the door. He has further stated that when axe was wielded on him Raghav Ram also stood up and accompanied him and both of them entered the house of Panna Lal and bolted the door from inside. Informant, Virendra Kumar has stated that when he bolted the door from inside, he was not aware what had happened. In this scenario the claim of the informant, Virendra Kumar that it was due to the firing of accused, Ramji that injury to his uncle, Raghav Ram, was caused is not credible. Raghav Ram himself does not say that fire arm injury on his eye was caused due to firing of accused, Ramji. What he stated is that accused, Ram Adhar, Ramji, Prem Narain started firing. P.W. 2, Raghav Ram has stated that first axe below caused injury on the leg of Virendra which is against the evidence given by Virendra himself. According to the prosecution evidence accused persons came very near to the cot where Virendra and Raghav Ram were sitting. When the injury by axe is alleged to have been caused to Virendra firing at the same time is alleged to have taken place. Dr. P. K. Tripathi has stated that fire arm injury of Raghav Ram was caused due to firing which had taken place from more than 150 feet. According to Virendra prior to second axe blow which was caused to him he and Raghav Ram ran towards the door of Panna Lal and went inside and bolted the door. In this situation, he could not have seen how fire arm injury was caused to Raghav Ram because he claims that Raghav Ram also stood up and went inside the house of Panna Lal along with him.

In the evidence adduced in the case, participation of three accused armed with lathis and one accused armed with iron rod is not at all established. The evidence is silent as to what overt act they had done in the alleged incident. It is also surprising that when three accused persons are alleged to have fired from their guns, no injury was sustained by Shiv Balak, Shiv Kumar, Anjani Kumar and Virendra Kumar who were also sitting at another chabutra at the place of occurrence. Virendra Kumar has stated that when he went inside the house of Panna Lal, blood had fallen on the ground upto the room. The Investigating Officer has not found trail of blood on chabutra to the house of Panna Lal. The informant, Virendra Kumar has stated that he remained inside the house of Panna Lal for about twenty minutes after which he came out. He waited at the door of Panna Lal for about fifteen minutes. He has stated that prior to preparation of the report, consultation had taken place.

In the F.I.R. informant, Virendra Kumar has stated that he had wielded a danda in self defence on accused, Battu. According to defence case, informant, Virendra Kumar, Raghav Ram and others had assaulted Battu, his brother, his wife and son by lathis at the door of Laxmi. Admittedly, wife of Battu, accused, had lodged a report on 8.10.1987 wherein she has stated that she and her husband had sustained injuries. That case was not investigated. Ext. Kha-2 is the complaint instituted by Battu alias Jaishri Ram against seven persons including the informant, Virendra Kumar, P.W. 1 and Raghav Ram, P.W. 2, which bears Case No. 4071 of 1988, in the Court of Chief Judicial Magistrate, Orai regarding the incident of 7.10.1987 at about 8 or 9 p.m. The complaint was under Sections 307, 323, 147, 148, 149, 504, 506 and 325, I.P.C. In the above complaint case statement of the doctor recorded u/s 202, Cr. P.C., Ext. Kha-3, has also been filed. This document shows that Jaishri Ram alias Battu and his brother, Teeka Ram had sustained injuries. The above document shows that defence has also put forward a version which runs parallel to the case of the prosecution. The mention of time of incident as 8.30 p.m. in the F.I.R. appears confusing because the scribe, Brij Kishore, P.W. 3, has stated that no body told him about the time of incident and he had put the time as 8.30 p.m. on his guess. The above fact shows that the time of incident as alleged by the prosecution is almost the same as has been stated by the defence.

P.W. 1, Virendra Kumar has stated that in theft case which was pending against him and others accused, Prem Narain, Bhikhari and Pramod were not accused. Thus, above three accused persons had no cause to join the other accused-Respondents. Virendra Kumar has also stated that accused, Ramji had lodged a report against him and others regarding which complaint case is going on before the special Judge, Orai. Thus, accused Ramji was inimical to the informant. It has come in evidence that enmity due to election of Pradhan also existed.

In view of the aforesaid facts and circumstances, which have come out in the evidence, the trial Judge was justified in arriving at the finding that the prosecution has failed to prove its case beyond all reasonable doubt against the accused-Respondents. The order of acquittal calls for no interference.

The appeal has got no force and is accordingly dismissed.

Respondents, Ram Adhar, Bhikhari, Ramji, Suresh, Pramod and Prem Narain are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.