STATE OF U P Vs. LAXMI

JUDGEMENT

(1.) THE State of U. P. has filed this appeal against the judgment dated September 29, 1973 of the 1st Temporary Sessions Judge, Hamirpur acquitting Laxmi, Biranchi, Thakurdin, Raghunath, Sewa Ram, Dina alias Din Dayal, Ashaiyan alias Ashadin, Achey Lai, Ganesh, Bhagona alias Bhaggu, Uttam, Pratap, Kandhilal, Bassu alias Jagmohan, Narain and Hardayal in Sessions Trial No. 58 of 1973 in which they were variously charged for having committed offences punishable under Sections 147, 148, 302/149, 323/149 325/149 or the alternative under Sections 324/149 IPC.

(2.) BEREFT of unnecessary details, the prosecution case was that two days before the date of the incident, namely, March 21, 1972, Smt. Saroj, sister of deceased Hari Das, had gone to a pond far taking bath where she had altercation with the wife of accused-opposite party, Ganesh. Later, sometime before the incident giving rise to the present case on March 21, 1972 Smt. Saroj forbade the wife of Ganesh from passing through, the field of deceased Hari Das, upon which she said that she would pass over the head of Smt. Saroj. Sometimes thereafter, deceased Hari Das and his wife Smt. Lilawati as well as his sisters Smt. Saroj and Smt. Ram Murti together with one Wafatan and Ratib Behna went to cut the wheat crop of their field known as 'Mahwa wala Khet'. In the after-noon at about 4 or 5 P. M., accused-opposite party, Laxmi, who was armed with a lathi, came in a tractor over which were seated accused- opposite parties Biranchi (armed with a gun), Thakurdin and Raghunath (both armed with lathis) and the remaining accused-opposite parties were seated in a trolley which was attached to that tractor. Of them, Narain Das was armed With a gun, Pratap with a country-made pistol, Kandhi and Uttam with axes, Bhaggu alias Bhagauna was armed with a pharsa, Bassu and Ganesh were armed with Bhala and Ballam, Sewa, Dina, Ashaiyan, Achchey Lal and Har Dayal were armed with lathis. Since these persons wanted to take their tractor over the KIRPAS of the cut crop of the deceased which was lying in the field of Hari Das (deceased) and Smt. Saroj asked them not to do so, Biranchi got down from, the tractor and fired the gun at Hari Das who received injuries. The remaining accused-opposite parties also came down and started beating Hari Das. Pratap also fired at Hari Das with a pistol. Smt. Saroj, Smt. Ram Murti and Smt. Lilawati sustained injuries as they were assaulted by the accused persons when they went to rescue Hari Das. Thereafter, the accused opposite parties went back towards the village on the tractor. Hari Das, who had been seriously injured, was taken to the Rath Hospital by his father Baiju as well as his sisters Smt. Saroj and Smt. Ram Murti and his wife Smt. Lilawati. Early in the morning between 10.12 A.M. a4d 2.00 A. M. on March 22, 1972, the injured persons were examined by Dr. R. N. Jaidka Medical Officer of the Rath Hospital and large number of injuries were found on their person. The injury reports prepared by the doctor were proved during the trial as Exhibits Ka 2 to Ka 4. On return from the hospital, Smt. Saroj went to P. S. Majhgavan accompanied by her father, Baiju as well as Shanker Pradhan and Chunnoo Chowkidar and lodged a first information report at about 1.10 P. M. on March 22, 1972. In this report, the names of opposite parties, Narain Das and Har Dayal were not included amongst the accused- appellants nor was that of opposite party Kandhi so included.

(3.) AMONGST the witnesses produced by the prosecution in support of its case, at the trial were P. W. 1, Smt. Saroj, P. W. 2 Smt. Ram Murti, both sisters of the deceased and P. W. 3 Smt. Lilawati, his widow, as eye witnesses of the incident who had also sustained injuries; during it. Smt. Saroj who had lodged the first information report gave out the details of the incident and was corroborated by her sister, Smt. Ram Murti and Smt. Lilawati, the widow of the deceased. Besides, the other witnesses whose testimony may be said to be of importance to the prosecution are P. W. 4, Dr. R. N. Jaidka who had examined the injured persons and had conducted the postmortem examination on the dead body of Hari Das after his death and who was the Medical Officer of Rath Hospital who has recorded a certificate on the dying declaration of deceased, Hari Das. P. W. 8, Ram Narain Srivastava is the Tahsildar Magistrate who has recorded the dying declaration at Rath Hospital. The testimony of the other witnesses is of a formal character. The Trial Judge did not find the testimony of the three eye-witnesses such on which implicit reliance could be placed and noticed in his judgment the infirmity with which the testimony of each of these witnesses suffered. He also came to the conclusion that it was difficult to place reliance on the dying declaration of Hari Das. Consequently, he acquitted the accused-opposite parties by the judgment under appeal.