JAMNA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an appeal under S. 379, Cr.P.C. read with S. 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act. There are eight appellants. They along with eight others were tried for offences punishable under Ss. 147, 148, 302/149, 324/149 and 323/149, I.P.C. The trial Court acquitted all of them. The State preferred an appeal and the High Court while confirming the acquittal of the other accused, convicted the appellants. Appellants Nos. 1 to 4 are convicted under Ss. 302 read with 34, I.P.C. and each of them is sentenced to undergo imprisonment for life. The remaining four appellants are convicted under Ss. 326/ 149. I.P.C. and each of them is sentenced to undergo two years' R.I. Ghanshyam, appellant No. 4 and Shyam Lal, appellant No. 5 are further convicted under S. 147, I.P.C. and sentenced to undergo six months' R. I. and the remaining six appellants are convicted under S. 148, I.P.C. and sentenced to undergo one year's R.I. All the eight appellants are further convicted under Ss. 324/149 and 323/ 149, I.P.C. and each of them is sentenced to undergo one year and six months' R.I. respectively. Appellant No. 1 Jamna is reported to be dead and a death certificate is filed. Parmanand, appellant No. 3 is also reported to be dead as per the Office Report dated 21-7-88. Therefore the appeal stands abated in respect of these two appellants.

(2.) The prosecution case is as follows: One Shakoor, a nephew of P.W. 6 is the deceased in the case. P.W. 6 is the wife of P.W. 4. Roshan Khan, P.W. 1 is the informant. These three witnesses and two other women, members of P.W. 6's family received injuries in the occurrence. 20 or 25 days prior to the present occurrence, Kallu, a member of P.W. 6's family attempted to outrage the modesty of the wife of Shyam Lal (appellant No. 5), who lodged a report to the police. Kallu was arrested and released on bail about one week prior to the present occurrence. On account of this incident, all the 16 accused bore grudge and were inimical towards Kallu and other members of the family. The feelings got further strained because of initiation of proceedings under S. 107, Cr.P.C. On 7-2-74, it is alleged that the 16 accused went to the house of P.W. 6 at about 1 p.m. armed with spears. Guptis, Sangs and lathis. Shyam Lal exhorted others and thereafter all the 16 accused started assaulting P.W. 4 who happened to be present outside his house at that time. Hearing the noise, the deceased, P.W. 6 and the other two ladies came out of the house. Thereupon they were also assaulted by the accused. Shakoor, the deceased, who had a lathi, started wielding it in defence of members of his family. Thereupon Kanhiya, appellant No. 2 said that Shakoor should be dead. Thereupon he himself, Jamna, appellant No. 1, Permanand, appellant No. 3 and Ghanshyam. appellant No. 4 attacked the deceased. Ghanshyam inflicted some blows with lathis and the others who were armed with guptis and spears attacked the deceased and inflicted a number of incised injuries and killed him on the spot. Thereafter they ran away. The occurrence was also witnessed by P.W. 9 and some others who arrived at the scene of occurrence on hearing the noise. P.W. 1 went to the police station, seven miles away, and lodged an FIR at 3.50 p.m. on the same day. The investigation commenced and S.I reached the scene of occurrence. He sent the injured for medical examination who were examined by Doctor, P.W. 2 on the same night. The dead body of the deceased was sent for post-mortem and P.W. 2 conducted the post-mortem. He found a number of incised and punctured wounds, four contusions and some abrasions. On internal examination he found that several ribs had been cut, occipital was cut and lungs were also injured. The Doctor opined that the deceased died due to shock and hemorrhage due to these punctured and incised wounds. All the accused pleaded not guilty. The learned Sessions Judge discarded the evidence of the eye-witnesses including the injured witnesses on the ground that the time and place of occurrence are in doubt. According to the learned Sessions Judge, in view of the medical evidence that there was semi-digested food in the stomach of the deceased, the occurrence must have taken place earlier sometime in the morning and not in the mid-day. The place of occurrence was doubted because the blood-stains were not found. Then the learned Sessions Judge proceeded to consider the omissions and discrepancies and ultimately held that the witnesses cannot be relied upon particularly when they are all interested. The High Court, on the other hand, held that the injured witnesses are reliable to the extent that specific overt acts were attributed to the accused. The High Court further held that the common object of the unlawful assembly was not to commit murder but was only to cause grievous hurt. But the first four appellants who attacked the deceased, could be held guilty under Ss. 302/34, I.P.C. The High Court also convicted all of them for causing injuries to the witnesses. Since no overt acts were attributed to the remaining eight accused, the High Court confirmed their acquittal.

(3.) Shri R. K. Garg, learned senior counsel appearing for the appellants submitted that the learned Sessions Judge has given a number of reasons for not relying upon the evidence of the injured witness and the view taken by him is quite reasonable and therefore the High Court erred in interfering with the findings of the trial Court. He also submitted that page No. W. 1, who is the author of the earlier report, was a highly interested witness and the version given by him was repeated by the other witnesses and having regard to many discrepancies and omissions, the evidence of all the witnesses has to be rejected. Learned counsel also pointed out that the High Court has not examined all the reasons given by the Sessions Court and therefore the judgment of the High Court is liable to be set aside.