KAILASH Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Atul Verma, learned counsel for the appellant and Sri Rajesh Kumar and Sri Devansh Pratap Singh, Brief Holder for the State and perused the record.

(2.) This criminal appeal has been preferred against the order of conviction and sentencing passed by Additional Sessions Judge, Court No. 6, Unnao on 27/1/2001 in S.T. No. 8779 of 1995, under Sec. 307 I.P.C, Police Station Aasiwan, District Unnao, by which the accused-appellant was convicted and sentenced for seven years rigorous imprisonment.

(3.) The accused-appellant has taken ground that the prosecution has been completely failed in proving the prosecution case against the accused-appellant beyond reasonable doubt and has also erred by not giving benefit of doubt to the appellant. The Additional Sessions Judge has committed substantial illegality and mistake in passing the impugned judgment. 5. The learned trial court has sentenced the appellant without perusing the evidence of the prosecution, which is unfair, and illegal, from the fundamental and legal point of view. The above alleged incident was shown at 11:30 p.m. on 8/9/1994, while the F.I.R of the alleged incident was lodged on 9/9/1994 at 5:30 p.m. despite the informant having sufficient time. It is also unfair and unjust from the judicial point of view that the above incident happened in the densely populated area, but none of the neighbour around the incident was the eye witness of the alleged incident. Even then the trial court punished the appellant relying on the statements of the informant and the alleged eye witnesses of his family. 6. Except the informant (the eye witnesses) P.W. 1 Ram Jeewan, and his nephew Ramesh (PW-2) and Mazroob Sushil Kumar (PW-3) injured, there are no other independent witness of the general public in support of the prosecution version. 7. According to the cross examination of P.W 1 and P.W 2, the accused-appellant had fired shot from a distance of 5 ' 6 steps, while P.W. 4 Dr. Rajeev Khare, has deposed that the said injury was possible only if the injurd was shot from within 6 feet. As per site plan, the appellant fired at the injured from place 'C", which is eight steps away from where it is not possible to cause the alleged injury to the victim by fire. 8. The presence of the informant and the eye witnesses of the scene of the alleged incident is doubtful. In this regard the trial court has committed an error by not giving the benefit of doubt to the appellant. There is no reference of existing enmity between the injured and the appellant. It is not said that the appellant had made second fire. Therefore, there was no justification for implication of the appellant for an offence to commit murder of the injured. When the injured was medically examined at about 1:45 p.m. in the emergency room by the emergency medical doctor, Unnao. On 9/9/1994, the medical officer had not described the nature of the injuries. The injuries were simple in nature, therefore prima-facie, it was a case of Sec. 324 I.P.C, but by converting the offence under Sec. 307 I.P.C, the learned trial court has committed error. The injured Sushil Kumar is a criminal, against whom cases regarding maar-peet and rape had been lodged, due to which some unknown persons had fired upon him. Since the assailants were not recognized, hence the appellant has been falsely implicated in the present case. Hence the appeal be allowed and the impugned order of conviction and sentencing be set aside. 9. In brief, facts of the case are that the informant P.W-1 (father of the injured), Ram Jeewan lodged an F.I.R on 9/9/1994 at 5:30 o"clock stating that on 8/9/1994 at about 11:30 p.m, when a worship was going on at Shiv Temple and his son Sushil Kumar injured (P.W-3) was also present there, Kailash S/o Ram Ashrey of his village demanded money from his son. His son refused to give the same and due to a heated argument, Kailash with an intention to kill his son Sushil Kumar, fired upon him, which hit on the upper part of his right chick. Ramesh, Raj Kishore and other co-villagers ran towards the place of occurrence and the injured was saved by them. The injured was admitted in the hospital, he has come from Hospital, hence the F.I.R be lodged and necessary action be taken. 10. On the basis of above information an F.I.R was lodged, investigation was initiated and after conclusion, a charge-sheet was submitted under Sec. 307 I.P.C. After hearing the accused a charge under Sec. 307 I.P.C was framed against the accused. The accused denied the charge and sought trial. 11. The following witnesses were examined by the prosecution case.