- (1.) SURYA Prasad, J. This is a criminal appeal against the judgment and order, dated 23rd July, 1979 passed by the then learned Vth Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 268 of 1977 (State v. Bulaqi Ram and others), convicting the appellants under Sections 452, 148, 324/149, I. P. C. and sentencing each of the appellants to one year's rigorous imprisonment and a fine of Rs. 50 and in default of payment, 4 months rigorous imprisonment, under Section 452, I. P. C. , a fine of Rs. 50 and in default of payment, 4 months rigorous imprisonment, under Section 148 I. P. C. and a fine of Rs. 250 and in default of payment of fine to undergo one year's rigorous imprisonment under Section 324/149 I. P. C. respectively.
(2.) THE prosecution case briefly is that Gailoo, son of Ram Charan Kisan is a resident of village Dharmapur Bazar, Police Station, Banda, district Shahjahanpur. It is alleged that there had been some altercation 3-4 days back between Gailoo on the one side and Gokul, son of Baldeo and Ganesh, son of LJla, on the other, on the demolition of the Mend of his/gailoo's/field. THE Village Pradhan Bulaqi settled that matter. Gailoo did not agree to the decision given by Bulaqi. Consequently Bulaqi threatened him to face dire conse quences. It is further alleged that Gailoo, his step brother Piarey and his mother Smt. Bijnee were lying in their house in the night intervening 8/9 September, 1976. THEre was a 'dibia, light in their house. It is further alleged that Gailoo had a feel of feet of certain persons entering his house through its southern broken wall. Consequently he woke up and awakened his step borther Piarey and told him that certain persons had entered his house. It is further alleged that he and his brother saw and identified in the 'dibia' light as well as in the moonlight Gokul armed with spear, Bulaqi Pradhan armed with gun, Janki, Tirmal, Bhuman, Dhakan, (all armed with spears) and Bulaqi's son Ram Pal was armed with a sword. Gokul exhorted the other accused to kill him and his brother. Consequently Bulaqi fired his gun at Piarey who received injuries. He and his brother raised an alarm hearing which Balla, Sita Ram, Sadhu Nathu, Tara and Chotey Lal reached the place of occurrence while flashing their torches. THEy threw challenge to the accused and consequently they filed away towards the south. It is further alleged that Gailoo tried to snatch away the gun of Bulaqi and in that process he cought hold of the 'chap' of the gun. After the incident was over. Gailoo went to Police Station Banda and lodged an oral report and handed the 'chap' of the gun over there to the official concerned. On that basis a case was registered against the accused. THE investigation ensued. Gailoo and Piarey were medically examined. On the receipt of the injury reports and after the completion of the investigation into the case, a charge sheet was submitted against the accused. The prosecution examined Gailoo (P. W. 1), Head Moharrir Ram Nath Gaur (P. W. 3) and Sub- Inspector Shiv Nath Singh (P. W. 4) tad relied upon certain documents in support of its case. The accused pleaded not guilty. They have displayed their ignorance regarding many of the facts relating to the case. They have stated that all the allegations levelled against them are wholly wrong and incorrect. They have also stated that they have been falsely implicated in this case on account of enmity. 3. The accused have examined Balak Ram alias Balla as D. W. 1 and relied upon certain documents in support of their contentions. 6. Having heard the learned counsel for the parties and having perused the evidence on the record, the learned Sessions Judge convicted and sentenced the accused-appellants vide his impugned judgment and order, dated 23rd July, 1979, referred to above. Aggrieved, the accused-appellants preferred this appeal against the same. 7. Heard the learned counsel for the parties and perused the record. The accused-appellant Dhakan died during the pendency of this appeal. There fore, the appeal stands abated against him. 8. The Medical officer, Primary Health Centre, Banda examined Piarey Lal injured and found the following injuries on his body: (1) Incised wound 3 cm, x 2. 5 cm. x skin deep the flap of skin on the left side head 2. cm. above the top of left ear. (2) Incised wound 6 cms. x 0. 25 cm. x muscle deep on the left side head 4 cms. below to the injury No. 1st. (3) Incised wound 3. 5 cm. X 0. 25 cms. X death cannot be proved (with air bubbles coming out through the wound during breathing on the left side of lower 1/3 part of the chest 8 cms. below and lateral to the left nipple with masked surgical emphysema around the wound. (4) Incised wound 4 cms X 0. 52 cms. x muscle deep on the back of the left fore-arm Just near the wrist joint. (5) Punctured wound 0. 5 cm. X 3. 5 cm. X depth cannot be proved left side of abdomen 14 cms. below and medial to the left nipple. (6) Punctured wound 0. 5 cm. x 0. 5 cm. X muscle deep on the right upper arm in middle 1/3 part on lateral side. (7) Incised wound 3 cms. X 0,25 cm, muscle deep on the back of right elbow joint. (8) Three incised wounds the size of 1st 2 cms. x 0. 25 cms. x muscle deep, on, 2nd 0. 5 cm. x 0. 5 cm. x muscle deep, 3rd 1 cm. x 0. 25 cms. X muscle deep in the area of 4 cms. x 4 cms. on the dorsum of the right wrist joint. (9) Incised would 2 cms. x 0. 25 cms. X muscle deep on the anter-lateral aspect of upper 1/3 part of right thigh. (10) Punctured wound 0. 25 cms. x 0. 75 cms. x 0. 75 cms. X muscle deep on the lower part of left buttock. " 9. Piarey Lal has not been examined by the prosecution for the reasons best known to it. From the above injuries it appears that there is no gun shot injury on his person and, therefore, the prosecution case as well as the state ment of Gailoo to this effect is wholly wrong and incorrect. Therefore, occular account does not find support from the medical evidence. 10. Gailoo (P. W. 1) is alleged to have cought-hold of the chap (Ext-3 of D. B. B. L. gun of accused Bulaqi. This 'chap' does not fit in with this gun. This has been admitted by the Sub-Inspector Shiv Nath Singh (P. W. 4) in his cross-examination. The prosecution case on this point is, therefore, palpably false and baseless. 11. The witnesses are alleged to have seen the incident from the place shown by letter 'd' in the site plan (Ext. Ka-7 ). The place denoted by this letter 'd' is at a distance of 20 paces from the house of Gailoo. It is not probable for the witnesses to have seen the accused inside his house from that distance. Gailoo (P. W. 1) has stated that Chotey Lal, Nathu, Sita Ram, Balla and Tara reached the place of occurrence after the accused had fled away. It is, therefore, abtindantly clear that the witnesses had no opportunity to see the accused in the course of the incident. Therefore, the statement of Gailoo (P. W. 1) and Chotey Lal (P. W. 3) to the contrary do not inspire confidence. 12. There is no court-yard (Angan) shown in the site plan (Ext. Ka-7) it is not the prosecution case that the accused assembled in the course of the incident in the room in which there was 'dibia' light. There does not appear any source of light in which the accused can be held to have been seen and identified by the witnesses, the prosecution case to the contrary does not appear to be correct. 13. The place of the alleged scuffle is shown by letter 'b' in the site-plan. It is not the prosecution case that Gailoo came out of his house in the course of the incident and that the scuffle took place on that place. Therefore, the statement of Gailoo to this effect does not inspire confidence. 14. The prosecution has not examined any of the independent witnesses for reasons best known to it. There is enmity between the complainant Gailoo and Bulaqi Pradhan. This is clear from the first information report itself. The accused Ram Pal is son of Bulaqi. Four accused other than Gokul are his cousins. Therefore, the possibility of all these accused having been falsely implicated on account of enmity cannot altogether be ruled out. 15. In the result the appeal is allowed. The impugned judgment and order is set aside. The accused- appellants are acquitted of the offence with which they have been charged. They are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender. The appeal stands abated against accused Dhakan. Appeal allowed. .;