- (1.) NASEEM Uddin, J. This appeal has been filed by Ram Bharosey and Hari Ram against the judgment and order dated 7-10- 1980 passed in S. T No. 344 of 1979 by IV Addl. Sessions Judge, Shahjahanpur where by Ram Bharosey was convicted for an offence punishable under Section 324, I. P. C. and Hari Ram was convicted for an offence punishable under Section 324/34, I. P. C. and were respectively sentenced to undergo R. I. for a period of two years and six months. These appellants were charged with offences punishable under Sections 307 and 307/34, I. P. C. but were acquitted as they were not found guilty of those char ges and were instead convicted under Sec tions 324 and 324/34, I. P. C. being minor offence.
(2.) RAM Bharosey died during the pen dency of the appeal vide report of Chief Judicial Magistrate, Shahjahanpur dated 23-3-1998 and the appeal abated as regards RAM Bharosey, appellant. Appeal was ar gued on behalf of Hari RAM. Both the parties were heard. On 11-2-1978 at 8. 55 p. m. an F. I. R. was lodged by Jagdhar at police Station Puwayan, district Shahjahanpur against the two appellants and one unnamed person. It was alleged in the F. I. R. that the informant and his uncle appellant, Ram Bharosey, had fought each other regarding which Ram Bharosey had started a criminal case against the informant and the informant had been released on bail. That at the time of occurrence at about 8. 55 p. m. on that evening while the inform ant was going to the house of Virendra Bajpai and came out of the house, he saw the appellant, Ram Bharosey armed with a tamancha and Hari Ram along with one another, strongly built unnamed man, armed with lathis. That Hari Ram ex horted Ram Bharosey to kill the informant as it was an opportunity to kill him. That hearing this the informant turned back. That Ram Bharosey opened fire by means of tamancha, which hit the backside of the body of the informant. That the occur rence was witnessed by Radhey Shyam and Anita Kumari, the niece of the informant and Jai Prakash. That there was light of electricity bulb, which was hanging out side the door of the informant. That the appellants abused the informant and went away. On the basis of this F. I. R. a case was registered and investigated and charge-sheet was submitted. The informant was medically examined at the hospital at 9. 35 p. m. on that very evening. The appellants were charged with an offence punishable under Section 307 and 307/34, I. P. C. to which the appellants pleaded not guilty. The appellants alleged that they have been falsely implicated due to enmity. To prove the case the prosecution examined PW-2 Jagdhar Bajpai injured and his wife's daughter, Anita Kumari, P W-3 on the factum of occurrence. The prosecution also examined PW-1, Dr. R. K. Awasthi and P W-4 Bhagwati Prasad Verma to prove the injuries; and PW-5 Balram Singh, Inves tigating Officer. The learned trial Court found the case proved. The offence under Sections 307 and 307/34, I. P. C. was not found proved and minor offence punish able under Section 324 and 324/34, I. P. C was found proved. The appellants were thus acquitted under Sections 307 and 307/34 I. P. C. but were convicted and sen tenced under Sections 324 and 324/34, I. P. C. respectively. Feeling aggrieved the present ap peal has been filed.
(3.) THE counsel for the appellants ar gued that the case against Ram Bharosey has abated and the case of Hari Ram has to be looked in the light of the facts that although he was alleged to have been armed with lathi, but he is alleged to have not used it and there has been no overt act on his part except simple exhortation to Ram Bharosey to kill. It was alleged that there is general tendency in the villages to name also those persons who were not actually concerned with the crime. It is the case of the informant that Hari Ram had his leanings towards Ram Bharosey, THEre were no allegations that informant and Hari Ram were inimical to each other. Enmity was alleged against Ram Bharosey only. In this connection the learned coun sel referred to the evidence of PW-1 stated on oath that he came out of the house and had walked out only 3-4 paces forward when he found the appellant Ram Bharosey armed with a tamancha and Hari Ram and another armed with lathis; and that he saw the appellants only when the fire had already been opened. He was confronted with the F. I. R. in this respect in which he had stated that he had seen the appellants immediately when he had come out of the house. In his statement on oath P W 2, Jagdhar Bajpai says that he had seen the accused-persons when he had come out. He denied to have mentioned in the F. I. R. that he had seen the appellants when he had come out of the house. THE injury report shows that there was one gun shot wound only on the vertebral column. This wound was found to be simple by the learned trial Court. THEre was no injury of lathi and there was also no allegation that lathis were used by Hari Ram and another. It is the case of the informant that Hari Ram was sympathetic towards Ram. Bharosey and was sympathizing him in the dispute in between Ram Bharosey and in formant. It was argued that this impression of injured was sufficient for implicating Hari Ram falsely in the case. THE evidence of exhortation is a weak type of evidence. THE persons, who are having lathis did not admittedly participate as such in causing hurt. THE occurrence took place in the evening at 8. 30 p. m. on 11-2-1978 when it was dark. THE presence of an electricity bulb has been stated by the two witnesses. No reason except leanings of the appel lants Hari Ram towards Ram Bharosey has been given for exhortation. THE possibility of Hari Ram being implicated falsely, therefore, can not be ruled out. Moreover the entire case appears to be doubtful. The independent witnesses Radhey Shyam and Jai Prakash were not produced in evidence on the ground that they had been won over by the appellants. Anita Kumari was produced to cor roborate the informant but she is the daughter of the wife of the informant from her former deceased husband, who was the brother of the informant. The evidence of PW-2, Jagdhar Bajpai shows that the in formant was having enmity with very many persons. Ram Bharosey, appellant had prosecuted injured under Section 452 I. P. C The dispute between them was that Gayatri Devi had remarried the informant after the death of the informant's brother and Gayatri Devi had been sent by the father of the informant to the house of the informant. Ram Bharosey, according to him, wanted to divest her from that place. The other admitted facts about the credentials of the informant are that the informant was convicted for the murder of 'kashmir Ki Kali', but was acquitted from the appellate Court and had remained in jail for two years. The informant was also convicted for offence of theft and murder of Ahibaran constable and in that case the informant was sentenced to life imprison ment and was on bail in those days during the pendency of the appeal. The appellant was also prosecuted in the year 1976 for offence punishable under Sections 342/364, I. P. C The informant was also prosecuted under Section 394 I. P. C. separately and was released on the sen tence already undergone. The appeal in that case was pending at the time of occur rence. A case under Section 352, I. P. C. was also pending. There was another case under the Arms Act against him. Present occurrence took place during the night. The argument that the present occurrence could be the result of that enmity cannot be lightly brushed aside. Under these cir cumstances the question of light becomes important. A reading of the injury report shows that there was no blackening or tattooing present in the wound. The injury report is as follows.;