POONAM SRIVASTAV,J. - (1.) THE instant appeal was preferred by five appellants namely Siddhu son of Ram Prasad aged 50 years, Karia son of Ram Prasad aged 52 years, Smt. Masadhi wife of Karia, Smt. Rani wife of Bhulai aged 75 years and Smt. Lachcho mother of appellant nos.1 and 2 aged 80 years against judgment and order dated 24.7.1982 passed by XIII Additional District & Sessions Judge, Kanpur, in S.T. No.485 of 1981 whereby appellant no.1 was convicted under Section 307 I.P.C. and sentenced to three years R.I. and appellant nos. 2 to 5 under Section 307/34 I.P.C. to three years R.I. Occurrence is alleged to have taken place on 22.4.1981 at 4:00 O'clock in the morning. First information report was lodged by Mohan PW-3 on 22.4.1981 at 19:30 Hours at Police Station Juhi, District Kanpur.
(2.) IT appears that injured and accused belong to one and same family. According to prosecution, on 22.4.1981 at about 4 O'clock in the morning, Smt. Balllo sister of informant Mohan was lying with her small child, accused persons caught hold of her. Accused Dhokar @ Siddhu and Karia placed a loop of rope around neck of Smt. Ballo. They started hanging her by neck. The end of rope was in the hands of accused Dhokar @ Siddhu and Karia whereas lady accused persons were holding and pushing Smt. Ballo up to complete their evil design of killing Smt. Ballo by hanging. When victim raised alarm, witnesses including informant Mohan rushed to the spot and saved her. Victim Smt. Ballo had placed her one hand in front of her neck and caught hold of front part of loop of rope while her other hand was trying to loose tension of rope. Seeing witnesses and informant, accused persons ran away. Informant Mohan with help of other witnesses brought Smt. Ballo down. She was taken to the house of the informant. The informant along with Smt. Ballo went to police station concerned for lodging first information report but she was not heard there. Therefore, a written report was given to S.S.P. Kanpur. On the order of police officer, a case was registered against accused persons at police station concerned. Police investigated the matter and after completion of investigation submitted charge sheet. Injured Smt. Ballo was medically examined as well. Prosecution to prove its case examined victim Smt. Ballo as PW-1, Surendra PW-2, Informant Mohan brother of victim PW-3, Dr. Nafisul Haq PW-4 who had medically examined Smt. Ballo, Sheo Pal PW-5 and I.O. Rajendra Dev Dixit PW-6. The accused persons denied allegations and attributed their false implication due to enmity. However, they examined none in their defence. Heard Sri O.P. Singh Senior Advocate assisted by Sri S.K. Rao learned counsel for appellants and learned A.G.A. for the State. First submission is that the entire story canvassed by prosecution stands belied as injuries do not show that it is a case of hanging. Dr. N. Hasan who examined injuries of injured on 22.4.1981 at 11:55 a.m. found four simple injuries on her body, which are detailed hereinbelow:- M.I.:- Rt. T.I. (2) Black mole two 1.5 cm..? just in front of below Rt. ear lobule. (1) Contusion 5 cm x 1 cm -1.5 cm below Rt. mandibular angle of..? in some parallel plan (Red in colour). (2) Contusion 4 cm x 1 cm - 1.5 cm below Lt. Mandibular angle of...? in some plan. (3) Abrasion 1/2 cm x 1/4 cm just below left..? (4) C/o Pain middle of Rt. axillary line. Injuries are simple, caused by hard and blunt object and about half day old.
(3.) SECOND submission is that all family members have been roped only on account of there being some family dispute. Today, family members are living together in the same house. They are quite happy. Next submission is that bare perusal of injury report do not constitute an offence under Section 307 I.P.C. It cannot be said that there was an attempt to kill the injured. The entire story of hanging also stands belied from injury report. Without going into detail of evidence, learned A.G.A. was called upon, though he has tried to support judgment of the learned Sessions Judge but it is evident that he has not been able to substantiate that injuries or circumstances go to establish a case under Section 307 I.P.C. Taking into consideration arguments advanced on behalf of respective parties, I am of the opinion that conviction under Sections 307 read with Section 34 I.P.C. is liable to be set at naught. Conviction under Section 324 I.P.C. will serve the ends of justice. Appellants have been in jail approximately three months. ;