DHARAMPAL Vs. STATE OF U P

JUDGEMENT

(1.) These two criminal revisions, being directed against a common judgment, can be conveniently ' disposed of by a common judgment. 2. Two revisions were admitted on the point of sentence only. But when they came before this court for consideration of sentence and this court went through the judgments of the lower appellate court. It became necessary to dispose of the two revisions on merit. Generally this court does not re-appreciate evidence in revision. But what appears in this case is that the two lower courts arrived at a perverse conclusion and convicted the revisionists with offence under Section 324/34 I. P. C and sentenced each of them to rigorous imprisonment for one year and fine of Rs. 300. 00 each. 3. Parties figuring in this case belong to village Bhitaura, Police Circle Husainganj, District Fatehpur. It is now not disputed that on the night between 20th and 21st Sept. 1981 Gopi C. W. 1 was sleeping in the Chaupal of his house. That Chaupal was open and approachable. His son Ram Sajiwan was sleeping inside his house. In the small hour of the morning about 4. 00 A. M. Gopi was attacked by a sharp weapon. At 8. 15 a. m. on 21. 9. 81 written report Ext. Ka 1 scribed by Ram Sajiwan, was lodged at police Station Husainganj situate at a distance of 7 miles from the spot of occurrence. Story given in the F. I. R. was that revisionists Dharampal and others killed the wife of Gopi three years ago. They were prosecuted and convic ted. But they filed appeal and secured bail. At 4 a. m. Dharampal armed with Chopper (Gandasa ). Rajen and Vijai armed with Lathies and Ram Prasad armed with an axe entered the Chaupal of Gopi. Soon after Dharampal inflicted chopper blow on the neck of Gopi. Ram Prasad pressed Gopi and said that he had to be killed. Gopi raised alarm attracting witnesses Mahabir, and Gaya Prasad. Formal Chik report in terms of written report was prepared. Gopi was sent for medical examina tion to District Hospital, Fatehpur. At 10. 30 a. m. on the same. day doctor round single injury on his person which was as under: "incise wound 12 1/2 cm x 3 cm x muscle deep on the left side face and neck margin clean out. " Doctor was of the opinion that injury was caused by sharp weapon and was about half day old. Doctor kept the injury under observation. 4. The case was investigated and ultimately charge sheet Ext. Ka '3 was submitted against all the four persons named in the F. I. R. 5. It appears that Ram Prasad died and only Dharampal Vijai and Rajan faced trial. They were charged with offence under Section 328/34 I. P. C. They pleaded not guilty and claimed trial. 6. Although Gopi, Ramsajiwan, Mahabir and Gaya Prasad were cited as witnesses of the incident yet Ramsajiwan P. W. 1 alone was examined as prosecution witness of fact. He proved his written report and said that he recorded the written report on the dictation of Gopi. It became obvious that he himself had not seen the incident. Investigating Officer was examined to prove the F. I. R. papers prepared by him and proceedings held by him. The doctor who examined the injured was not examined but the defence admitted genuineness of the injury report. 7. Gopi was summoned by the court under Section 311 Cr. P. C. and was examined as court witness. He narrated the incident and deposed that he detected written report Ext. Ka 1. In his cross examination he admitted that the incident took place before the morning. But it was time for easing and so he had woke up. He further admitted in his cross examination that the written report was written in the police station. He did not remember whether the written report was scribed by Ramsajiwan. He also did not remember that he dictated written report. He conceded that after being injured he was unable to speak. Then he admitted that he had a case with one Devi Prasad of his village about possession of Ghoor land. It is significant to note that in his testimony throughout he did not say anything specific about light. 8. Both the lower courts relied upon the testimony of Gopi and convicted and sentenced the revisionists as stated earlier. 9. First of all motive of the crime may be considered. Undisputedly the revisionists were prosecuted for killing the wife of Gopi and were convicted and sentenced. They filed appeal and secured bail. When they killed the wife of Gopi and still were enlarged on bail, the aggrieved party would have been Gopi and his son Ramsajiwan. Thus Gopi and Ramsajiwan could have stronger motive for falsely implicating the revisionists. 10. Then coming to the medical evidence, it may be noted that Gopi was examined at 10. 30 a. m. and the doctor estimated duration of. injury as half day. This means that the injury could have been caused even at mid night or sometime before small hours of the morning. Even if the injury was caused at small hours of the morning, light in the Chaupal would become important. Secondly the medical evidence clearly shows that the injured received a single injury. This injury was caused at time and place when the assailant could not have been seen and recognized. The single injury further indicates that the injured was assaulted in a hit and run incident during darkness. 11. Evidently independent persons Mahabir and Gsya Prasad cited as witnesses in the written report, were not examined by the prosecution. The only inference possible is that they were not prepared to support the incident. Ramsajiwan was not eye wit ness of the incident. Gopi did not depose anything about light at the time of incident. On the other hand he overthrew the written report by saying that he was unable to speak. This means that Ramsajiwan recorded written report naming the revisionists and Sri Ram Prasad with whom he could be aqqrieved. This blows over the very edifice of the prosecution story, namely, the F. l. R. As a matter of fact, once the revisionists and Ram Prasad were named in the written report, Gopi being aggrieved with them, was bound to name them. Thus there was no legal evidence for convicting the revisionists for assault on Gopi. Yet learned appellate court was carried away by the fact that after the revisionists and Ram Prasad were named in the F. I. R. , Dharampal and fifty residents of the village moved application to the District Magistrate alleging that the revisionists and Ram Prasad were falsely roped in. I am afraid that assertion of Dharam pal and fifty other villagers could not be incriminating circumstances at all and the learned lower appellate court should not have relied upon that fact. 12. Conviction and sentences of the revisionists are based on perverse apprecia tion of evidence and liable to be set aside. 13. Revisions are allowed on merits. Conviction and sentences of the revisionists are set aside. They are on bail. Their bail bonds are cancelled and sureties are dis charged. They need not surrender. Revisions Allowed .