RAM BHAROSEY Vs. STATE

JUDGEMENT

(1.) NASEEM Uddin, J. This appeal has been filed by Ram Bharosey and Hari Ram against the judgment and order dated 7-10- 1980 passed in S. T No. 344 of 1979 by IV Addl. Sessions Judge, Shahjahanpur where by Ram Bharosey was convicted for an offence punishable under Section 324, I. P. C. and Hari Ram was convicted for an offence punishable under Section 324/34, I. P. C. and were respectively sentenced to undergo R. I. for a period of two years and six months. These appellants were charged with offences punishable under Sections 307 and 307/34, I. P. C. but were acquitted as they were not found guilty of those char ges and were instead convicted under Sec tions 324 and 324/34, I. P. C. being minor offence.

(2.) RAM Bharosey died during the pen dency of the appeal vide report of Chief Judicial Magistrate, Shahjahanpur dated 23-3-1998 and the appeal abated as regards RAM Bharosey, appellant. Appeal was ar gued on behalf of Hari RAM. Both the parties were heard.

(3.) THE counsel for the appellants ar gued that the case against Ram Bharosey has abated and the case of Hari Ram has to be looked in the light of the facts that although he was alleged to have been armed with lathi, but he is alleged to have not used it and there has been no overt act on his part except simple exhortation to Ram Bharosey to kill. It was alleged that there is general tendency in the villages to name also those persons who were not actually concerned with the crime. It is the case of the informant that Hari Ram had his leanings towards Ram Bharosey, THEre were no allegations that informant and Hari Ram were inimical to each other. Enmity was alleged against Ram Bharosey only. In this connection the learned coun sel referred to the evidence of PW-1 stated on oath that he came out of the house and had walked out only 3-4 paces forward when he found the appellant Ram Bharosey armed with a tamancha and Hari Ram and another armed with lathis; and that he saw the appellants only when the fire had already been opened. He was confronted with the F. I. R. in this respect in which he had stated that he had seen the appellants immediately when he had come out of the house. In his statement on oath P W 2, Jagdhar Bajpai says that he had seen the accused-persons when he had come out. He denied to have mentioned in the F. I. R. that he had seen the appellants when he had come out of the house. THE injury report shows that there was one gun shot wound only on the vertebral column. This wound was found to be simple by the learned trial Court. THEre was no injury of lathi and there was also no allegation that lathis were used by Hari Ram and another. It is the case of the informant that Hari Ram was sympathetic towards Ram. Bharosey and was sympathizing him in the dispute in between Ram Bharosey and in formant. It was argued that this impression of injured was sufficient for implicating Hari Ram falsely in the case. THE evidence of exhortation is a weak type of evidence. THE persons, who are having lathis did not admittedly participate as such in causing hurt. THE occurrence took place in the evening at 8. 30 p. m. on 11-2-1978 when it was dark. THE presence of an electricity bulb has been stated by the two witnesses. No reason except leanings of the appel lants Hari Ram towards Ram Bharosey has been given for exhortation. THE possibility of Hari Ram being implicated falsely, therefore, can not be ruled out.