NANHEY SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) Two persons namely, Nanhey son of Kumber Singh and Jalim Singh son of Jai Singh were tried by VIth Additional Sessions Judge, Shahjahanpur in S. T. No. 41 of 1981 on charges under Sections 394/397, I.P.C. and found guilty by judgment and order dated 8-7-1981. The learned Sessions Judge has proceeded to record conviction under both the counts and awarded a sentence of 7 years, R.I. to Nanhey under Sec. 397 and 4 years, R.I. to Jalim Singh under Sec. 394, I.P.C. Aggrieved by both the conviction and sentence, they have come up in appeal.

(2.) I have heard learned counsel for the appellants and also gone through the record of the case. It appears that the prosecution case was that on the date of the incident in september, 1980, Champat Ram, informant, along with Rustam son of Jivan, Bhudhar son of Devi and Prahlad son of Hetram had come back to village from outside and since it was late in the evening, they were proceeding on foot with torches in their hands. When they all reached the Tube-well of Gajadhar Lal, three accused, two appellants and one more came from behind a bush and asked them to hand over whatever they had and make no alarm. According to the first information report, Nanhey was armed with a single barrel gun, Jalim Singh with a Lathi and the third person with a Banka. They all threatened and at the point of gun Nanhey Singh took out Rs. 500.00 from the pocket of Rustam, Jalim Singh took out Rs. 50/- from the pocket of Bhudhar and the third person took out some silver ornaments from the bag of Prahlad. After going some distance, they made fire from the gun also and left the place. The spent cartridge was left and the Banka of the third person was also left at the spot. The first information report of the incident was lodged at the police station Banda on the next day at 12.15 p. m. As usual investigation followed and lastly a charge-sheet was submitted. The charges were framed against the accused appellants and after evidence, the learned Sessions Judge recorded the above said conviction and sentences.

(3.) The findings recorded by the learned Sessions Judge have been challenged before me on more than one count. His contention has been that the Sessions Judge was not justified in ignoring the enmity between Prahlad and Jalim Singh. There is Ext. Kha-1 on record of the Sessions Judge's Court though of course it has been copied out in the paper book, showing that as back as 1975 Jalim Singh had made complaint to the district authorities against several persons including Prahlad. Ordinarily this stray complaint may not carry much weight but the cumulative effect of the entire evidence is to be seen. This was a case where there was virtually no injury on the person of any of the victim, though even a charge under Sec. 397, I.P.C. was framed. The only injury upon the person of Bhudhar was complaint of pain with no visible mark of injury as stated by the medical expert. The possibility of one person at least having been falsely implicated on account of enmity cannot be overlooked.