MATIBAR SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) This appeal by special leave arises out of a judgment and order dated 26th September, 2001 passed by the High Court of Judicature at Allahabad whereby State Appeal No. 902 of 1979 against Indra Sen alias Male and Matibar Singh was allowed, judgment and order dated 20th November, 1978 passed by the Addl. Sessions Judge, Jaunpur acquitting them for offences punishable Under Section 307 read with Section 34 of the Indian Penal Code, 1860 (IPC) set aside and both Indra Sen and Matibar Singh convicted and sentenced to undergo rigorous imprisonment for a period of five years on the said count. The facts in the background whereof both Indra Sen and Matibar Singh came to be arrested and prosecuted for the commission of an offence punishable Under Section 307 read with Section 34 of the IPC have been set out at considerable length by the learned Trial Judge as also by the High Court in the judgments impugned before us. It will, in our view, serve no purpose to repeat the same over again at length. All that we need say is that the incident in question appears to have taken place on 20th April, 1976 at about 7.00 a.m. when the complainant and victim of the assault was going from his house situated in village Samodhpur, Police Station Sarpataha, District Jaunpur to Surpur Inter College on his bicycle to attend a function said to have been organized in the honour of the Governor of Uttar Pradesh. The prosecution version is that when the victim reached the crossing near Samodhpur Primary Pathshala, Indra Sen, Matibar Singh and Awadh Bihari, who has since died, appeared on the spot and assaulted him with a knife and a country made pistol. While the pistol was held by Indra Sen, the knife was wielded by Matibar Singh and Awadh Bihari. The gun shot fired from the pistol by Indra Sen is said to have missed the target, but Matibar Singh was successful in inflicting a knife blow on the right side of the back of the complainant. The complainant is said to have fallen from the cycle whereupon Indra Sen is alleged to have inflicted a knife blow on the left side of the back of the complainant while Awadh Bihari assaulted him on the head. The complainant raised an alarm which brought Ram Bahadur, Ram Jeet Kahar and Tilakdhari Singh to the spot, who saw Indra Sen, Matibar Singh and Awadh Bihari and saved the complainant from the clutches of the accused. The complainant was moved to the hospital where he remained admitted for nearly a month before his discharge.

(2.) A case was on the basis of a complaint filed by the complainant registered against Indra Sen, Matibar Singh and Awadh Bihari in Police Station Sarpataha and investigation started. A charge sheet was in due course filed before the jurisdictional court who committed Indra Sen, Matibar Singh and Awadh Bihari, to face trial before the Addl. Sessions Judge, Jaunpur. At the trial, the prosecution examined the complainant and victim of the assault, Thakur Prasad Singh as PW-1, Ram Jit as PW-3 and Tilakdhari Singh as PW-2 apart from other witnesses, including the investigating officers. In defence, the accused persons examined defence witnesses, Kamta Singh (DW-1), Vijay Bahadur Singh (DW-2) and Paras Nath Tripathi (DW-3) in an attempt to prove the plea of alibi set up by Matibar Singh, Appellant herein.

(3.) An appraisal of the evidence adduced before it led the Trial Court to eventually hold that the prosecution had not been able to bring home the charges framed against the accused persons and, accordingly, acquitted them in terms of its judgment and order dated 20th November, 1978. The Trial Court gave three main reasons in support of that conclusion. Firstly, the Trial Court held that there was a longstanding enmity between the complainant, on the one hand, and the accused party, on the other, regarding management of certain educational institutions, because of which enmity, certain other criminal offences had also been committed by some of them. Secondly, the Trial Court held that the witnesses examined by the prosecution at the trial were all interested witnesses closely associated with the complainant's party and that the prosecution had left out some independent witnesses, which made the entire prosecution case suspect. The third and the only other reason given by the Trial Court disbelieving the prosecution version was that the prosecution case relied heavily upon a supplementary injury report obtained from Dr. Uday Singh (PW-5), which report suggested that Injury No. 2 sustained by the complainant was dangerous to life. This report, according to the Trial Court, has been brought in to existence due to the influence which the complainant's son who was himself a doctor wielded with Dr. Uday Singh (PW-5), surgeon under whose treatment and care victim had remained hospitalized.