RAM EKBAL UPADHYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the 'Code'). It is directed against the judgment and order dated 30.4.1990 passed in Cr. Appeal No. 42 of 1985 by Shri D.P.S. Chaudhary, 7th Additional Sessions Judge, Arrah by which the learned Judge had confirmed the judgment and order passed by Shri Subash Chandra Jha, 1st Assistant Sessions Judge, Buxar in S.T. Case No. 517 of 1978.

(2.) In the aforesaid Sessions Trial, the learned Assistant Sessions Judge had convicted the petitioners, Ram Ekbal Upadhya and Jitendra Upadhya under Section 307 of the Indian Penal Code and had sentenced them to undergo rigorous imprisonment for a period of 5 years each and to pay a fine of Rs. 1,000/- each. They were also convicted under Section 148 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for one year each. The test of the petitioners were convicted under Sections 307/149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs. 200/- each in default to undergo simple imprisonment for one month each. They were also convicted under Section 147 of the Indian Penal Code and Section 323 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for two months each under each count. The petitioner Rama Shankar Upadhya was further convicted under Section 426 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one month. All the aforesaid sentences were ordered to run concurrently. 2-A. The prosecution case, in short is that at about 6 a.m. on 6.9.1977 while the informant Lalan Upadhya (PW 3) was returning back after attending the call of nature he found petitioner, Rama Shankar Upadhya digging earth from his land. The other petitioner variously armed, were also present. When PW 3 raised objection petitioners, Rama Shankar Upadhya and Parasnath Upadhya ordered to kill the informant (PW 3) on which petitioner Ram Ekbal Upadhya, directed a farsa blow on his neck which he resisted by his hand resulting in a cut injury in his index finger. Petitioner, Jitendra Upadhya, also assaulted him with garasa on his head causing injuries. On hulla raised by PW 3 other PWs came and removed PW 3 to Dumraon State Dispensary. The fardbeyan of PW 3 was lodged on the following day at 4 p.m. On the basis of which formal FIR was drawn up. The Police after the completion of investigation submitted charge-sheet. On trial the appellants were convicted in the manner indicated above and their conviction was upheld by the lower appellate Court also.

(3.) The petitioners have taken the defence that they have been falsely implicated in this case and no occurrence as alleged had taken place. The present case was lodged against them as a counterblast to the case instituted against the informant and others in which petitioners, Ram Ekbal Upadhya and Sheo Prasad has sustained injuries on their persons. Independent and competent witnesses have not been examined in his case and two of the witnesses who are said to be present at the time of occurrence were not examined. DWs examined in this case have proved the defence version. The evidence of PWs suffers from material contradictions. The prosecution case is not consistent. There has been inordinate delay in lodging the FIR. There was no common object alleged for the unlawful assembly. It was certainly not to kill PW 3. The petitioners had a right to self-defence of their persons and properties which they never exceeded, since PW 3 was taking away earth from their land. No case under Section 307 of the Indian Penal Code has been made out against the petitioners.