MISRI Vs. STATE OF U P

JUDGEMENT

(1.) This appeal has been filed against the judgment and order dated 30/7/1979 passed by Sri K.C. Sinha the then Vth Additional Sessions Judge Gorakhpur, convicting the appellant under sec. 324. I.P.C. and sentencing him to undergo rigorous imprisonment for two years.

(2.) The brief facts of the case are as follows:Srikant was living at the house of his Mundra Gangadeen in vallage Mundera Thakurai within the police station Jhangaha, District Gorakhpur, As Gangadeen had no issue, Srikant was adopted and he was living at his house from his early age. The relations of Srikant accused Kripal alias Ramkripal were not good. About 10-15 days prior to the incident some hot words exchanged between them and the accused threatened to kill Srikant. In the present case the incident is said to have taken place at 10.00 p.m. on 28/6/1975 in front of the house of Srikant in village Mundera Thakurai. Srikant and his Mausa Gangadeen were lying on a cot in front of the house and it is said that appellant Misri with Kripal and a stranger reached there. At that time the appellant was armed with a gun. Gangadeen asked the accused as to why they had come. The appellant is aid to have fired a shot at Srikant, the injured. Gangadeen raised hue and cry which attracted the witnesses, who came at the place of occurrence with their torches, flashing light. Kripal and the stranger were armed WIth lathis while the appellant was armed with a gun at that time. All the three persons fled away from the place of incident. The appellant and Kripal were recognized by the witnesses. Due to fear the complainant party could not go to the police station in night for lodging the First Information Report However, next day the complainant lodged the First Information Report at the police station Jhangaha at 11.30 a.m. The distance of the police station from the place occurrence was 10 miles. The complainant Sri)cant was medically examined at the District Hospital, Gorakhpur, on 29/7/1975 at 3.45 p.m. by Dr. M.S. Husain (p.W. 6), who found multiple gun shot injuries in an area of 6 x 31/4, each wound 1/10 x 1/10' 1 x 1/10 on outer and upper part of right thigh was found. Tatooing was also present. The injured was kept under observation and advised X-ray. The duration was half day old. The injury of the complainant was x-ray and radio opaque shadows were seen in the X-ray. Initially the investigation was not started. However, after X-ray and on the application moved by the complainant the case was converted into one under Sic and the investigation was entrusted to Sri Rajdeo Singh Station Officer (P.W.5), who started investigation from 3/7/1975. He recorded the statements of the witnesses, inspected the place of occurrence, prepared site plan and submitted charge sheet against the appellant and co-accused Kripal.

(3.) The accused pleaded not guilty to the charges levelled against him and claimed to be tried. The prosecution examined Srikant (p.W. 1) and Gangadeen (p.W. 2) as witnesses about the factum of incident. Ram Autar (p.W. 3) stated that after hearing the hue and cry of Ganga de en he reached the place of incident flashing his torch and saw the appellant and co-accused Kripal and one stranger running away from the scene of occurrence. At that time Misri appellant was armed with a gun and Kirpal and the stranger were armed with lathis. The prosecution also examined Dr. M.S. Husain as P.W. 6, who examined the injuries of Srikant and Dr. S.K. Gupta as P.W. 7 who x-ray the injuries of the complainant. Rajdeo, Singh, Station Officer, was examined as P.W.5 in order to prove the investigation. Besides these witnesses Chandra Bhushan Yadav, Head Moharrir was examined as P.W. 4 in order to prove the chick report etc. The accused persons did not produce any defence evidence and they denied the prosecution version. Kripal alias Ram Kripal co-accused further stated in his statement under sec. 313, Cr. P.C. that some quarrel had taken place in which he was assaulted and Gangadeen had abused him and he also started litigation in that respect