RAJPAL Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) This judgment will dispose of both the above-titled appeals as the same have arisen out of a common judgment and order dated 9.12.2002 rendered by learned Additional Sessions Judge, Haridwar in Sessions Trial No.129 of 1998. In the said trial, Rajpal (A1), Bijendra @ Naval (A2), Sahendra Giri (A3) and Kunwar Pal @ Kukkan (A4) [all real brothers] were tried for the offences u/s 308/34 and 506 IPC. The trial resulted into the conviction of A1 and A3 for the offences of section 308/34 IPC, wherefor each of them has been sentenced to five years' rigorous imprisonment. At the same time, A2 and A4 were acquitted from all the charges levelled against them.

(2.) Having heard the arguments for and against, it transpires that on the relevant date and time, a quarrel erupted between PW4 Ishtiyaq (injured) and A1 while the latter was cutting boundary wall, separating his agricultural field from that of PW4. PW4, feeling aggrieved by the said action on the part of A1, resisted and asked him not to cut the boundary wall making it narrow. A1 then exhorted his brother A3, present nearby, to kill PW4. On such exhortation, A3 as well as A1 gave blows of Lathi on the head of PW4. It has further been deposed by the injured that meanwhile A2 and A4 also arrived at the spot having Lathis in their hands and they assaulted him too. The incident was witnessed by all the persons who were working in their agricultural fields including PW5 Yasin, PW6 Mursaleem and one other Sageer. Injured was then shifted to Roorkee hospital by his brother Ashfaq (PW1) where he was treated for quite sometime. The first information report could be lodged next day on 12.7.1996 at 4:30 PM. Chargesheet was submitted as a result of investigation against A1 to A4 for the offences of section 308/504 IPC. However, the Charge was levelled for the offences of section 308/34 and 506 IPC, which resulted into the findings of the lower court, as afore-stated.

(3.) Learned counsel has pointed out that in fact PW1 is not the eyewitness of the incident. He is the informant and real brother of PW4 (injured). In paragraph no.2 of chief-examination, PW1 has deposed that his injured brother Ishtiyaq was brought in the village by Sageer, Mursaleem and Yaseen. PW1 then carried his brother to the hospital from the village. He was apprised about the incident by all these three witnesses and also by his brother. So, this is enough to show that PW1 was not present at the spot. Eyewitness Sageer has not been produced by the prosecution during the course of trial whereas another eyewitness Yaseen (PW5) has become hostile. The conviction of the appellants has been based by the court below on the testimony of PW4 and PW6.