- (1.) STATE of U. P. has filed this appeal against judgment and order dated 13-8-1981 passed in Sessions Trial No. 311 of 1979 by the then IV Addl. Sessions Judge, Shahjahanpur. The accused-respondents were tried and acquitted under Section 307 read with Section 34 I. P. C.
(2.) WE have heard Sri S. K. Paul, learned A. G. A. for the State and Sri Amar Saran, learned counsel for the accused-respondents, and have perused the record. Jagdish Prasad Khanna, P. W. 1, and his brother, Prayag Narain, P. W. 2, are the sons of Salig Ram and they reside in Mohalla Ghuran Talaiya Police Station Kotwali District Shahjahanpur. Salig Ram's father was Nanak Chand. Nanak Chand had one brother, Kalyan Mal whose son is Onkar Nath. Rakesh Kumar is the son of Onkar Nath. Onkar Nath and Rakesh Kumar are accused in this case. The house of the accused is also in the same Mohalla towards north of the house of Jagdish Prasad Khanna, P. W. 1. Thus, the parties are related to each other. According to prosecution case on 9-10-1978 at about 8. 30 a. m. the incident in question took place on the issue of reconstruction of latrine. It is alleged that verbal altercation and grappling took place whereafter accused, Onkar Nath assaulted Prayag Narain, P. W. 2, with knife and accused Rakesh Kumar assaulted Jagdish Prasad Khanna, P. W. 1, by knife. The wife of Jagdish Prasad intervened and she was also assaulted by knife. However, she retraced her step and knife blow hit her very lightly. The First Information Report of the case was lodged by Sanjai Khanna, P. W. 3, who is the son of Jagdish Prasad Khanna, P. W. 1, at 8. 45 a. m. on 9-10-1978. The defence case was that on the date of occurrence at about 7 a. m. labourers of the accused, Rakesh Kumar came and the he told them to break the wall of the latrine because it was in dilapidated condition. On hearing the direction of the accused, Rakesh Kumar to the labourers, Jagdish Prasad Khanna, P. W. 1, and Prayag Narain, P. W. 2, came and told him that he could not reconstruct the latrine. Accused, Rakesh Kumar claimed that since the latrine was in his possession, he had every right to reconstruct it. Verbal talks were going on when in the meantime Jagdish Prasad Khanna took out a knife and assaulted accused, Rakesh Kumar. In warding off the knife below, accused Rakesh Kumar sustained injuries on his finger. Thereupon accused, Rakesh Kumar pushed Jagdish Prasad Khanna who fell down on the floor where spade, Tasla and bricks were lying. When Jagdish Prasad Khanna fell down, Prayag Narain pounced upon the accused, Rakesh Kumar. Rakesh Kumar also pushed Prayag Narain and he also fell down. In the meantime, Jagdish Prasad Khanna got up and tried to assault accused, Rakesh Kumar again by knife. Thereupon Rakesh Kumar picked up a Belcha and in order to save himself struck Jagdish Prasad Khanna which hit him in his stomach. D. W. 1, Triloki Nath Khanna, who is the brother of accused, Onkar nath, has stated about the defence case. Onkar Nath has denied his presence at the time of occurrence.
(3.) P. W. 1, Jagdish Prasad Khanna and P. W. 2, Prayag Narain are the two injured. P. W. 3, Sanjay Khanna is scribe of the written report and he also claims to be an eye witness. Apart from them, Hakim Singh, P. W. 4, Dr. Satya Pal, P. W. 5 and the Investigating Officer, Chhutanna Singh, P. W. 6, have been examined by the prosecution. The trial Court found that there is difference regarding the place of occurrence. The First Information Report has been anti timed. The prosecution witnesses are interested witnesses. There is no independent corroboration by any witness although the witnesses were available. The trial Court held that the defence version is more probable. On these findings, accused respondents have been acquitted. Feeling aggrieved, the State of U. P. has come up in appeal. The grand-father of Jagdish Prasad Khanna and Prayag Narain was Nanak Chand. Mukund Ram was the brother of Nanak Chand. Durga Devi and Sharda Devi were daughter-in-laws of Mukund Ram. On 17- 8- 1979 Sharda Devi and heirs of Durga Devi executed a sale deed of the latrine (over which the incident had taken place) and land towards east of the latrine in favour of Munni Devi, wife of Jagdish Prasad Khanna, P. W. 1. Thereafter, a civil suit was filed by Sharda Devi regarding the said latrine against Jagdish Prasad Khanna, P. W. 1, Prayag Narain, P. W. 2, and accused, Onkar Nath and one Shambhu Nath. In that suit Jagdish Prasad Khanna, P. W. 1, and accused, Onkar Nath had filed joint written statement. In the written statement it was pleaded that accused, Onkar Nath and his brother had been using the latrine and had been in possession over the same from the time of their ancestors. It was further pleaded that they acquired title by adverse possession and in the alternative they had acquired right of easement. As such they had right to reconstruct and make repairs. Jagdish Prasad Khanna, P. W. 1, admitted that in the suit there was an order whereby accused, Onkar Nath was permitted to build the walls of the latrine. A perusal of the joint written statement shows that Jagdish Prasad Khanna, P. W. 1, and accused Onkar Nath claimed joint use of the latrine. During investigation it was not the case of Jagdish Prasad Khanna that after the sale deed was executed in favour of Munni Devi, wife of Jagdish Prasad Khanna, their possession became exclusive. It has come in evidence that brother of accused, Onkar Nath, namely, Nathu Lal and his tenant, namely, V. K. Kohali, had been using this latrine for several years. The finding of the trial Court that Jagdish Prasad Khanna and his wife had no exclusive possession over the latrine is based on the totality of the evidence adduced in this case.;