CHOKHA Vs. STATE OF U P

JUDGEMENT

(1.) -Chokha and his real brother Mittha were tried in S.T. No. 331 of 1979 before IVth Additional Sessions Judge, Aligarh. The charge against the former was under Section 307, I.P.C. and under Section 307, I.P.C. read with Section 34, I.P.C. against the latter. By the impugned judgment dated 14.1.1981, the trial Judge acquitted Mittha, but convicted Chokha under Section 324, I.P.C. instead of Section 307, I.P.C. and sentenced him to two years rigorous imprisonment. Consequently, Chokha has preferred Criminal Appeal No. 128 of 1981 whereas the State has come up in appeal as regards the acquittal of Mittha and challenging the conviction of Chokha under Section 324, I.P.C. instead of Section 307, I.P.C.

(2.) THE incident took place on 7.4.1979 at about 6.30 p.m. within the territory of village Aurangabad, police station Harduaganj, district Aligarh. THE F.I.R. was lodged at 7.40 p.m. the same day by Surya Dev Singh P.W. 3, father of the injured Pradeep Kumar P.W. 1. He himself was not an eye-witness of the incident. THE prosecution case was that Chokha of his village was a bad character and had recently been released from jail. He suspected that informant's son Pradeep Kumar P.W. 1 was instrumental in sending him to jail. THErefore, he was harbouring grudge against him. Pradeep Kumar P.W. 1 was a practising advocate at Aligarh and used to go and come back daily in connection with his practice. On the fateful date and time, he was returning back to his village on cycle. Jai Chand and Raj Pal were coming behind him on their cycles. When he was on his way, Chokha and Mittha with one unknown person met him near the village. Chokha stopped his cycle and held out that he had been released from jail and he would finish him on that day. Mittha and unknown person exhorted and Chokha and latter opened fire on him from country-made pistols to murder him. THE bullet struck in his left arm and below the armpit causing injuries to him. Assailants ran away. Jai Chand and Raj Pal had also reached from back side. Ram Swaroop son of Rewa Ram also saw the assailants running and recognised them. On lodging of F.I.R. a case was registered and investigation was taken up by Investigating Officer B. L. Katheria P.W. 5. THE injuries of the injured were examined by Dr. Pradip Kumar P.W. 4 on 17.4.1979 at 9.15 p.m. Suffice it to say that gun shot injuries were found on his person and as per the medical evidence, the same could have been caused on 7.4.1979 at 6.30 p.m.

(3.) WE have heard Sri S. K. Pal learned A.G.A. from the side of State and Sri B. Sahai from the other side. Record of the lower court has been summoned before us which we have perused. WE find that despite searching cross-examination, the testimony of Pradeep Kumar P.W. 1 could not be displaced as regards the actual assailant that it was Chokha and none-else who had shot him on the given date, time and place causing injuries to him.