Court No. - 77
Judgment Reserved on 05.08.2021 Judgment Delivered on 19.08.2021.
Case :- JAIL APPEAL No. - 79 of 2019 Appellant :- Dinesh Kumar @ Bhaiyawa Respondent :- State of U.P.
Counsel for Appellant :- From Jail,Shyam Kumar Verma Counsel for Respondent :- A.G.A.
Hon'ble Anil Kumar Ojha,J.
Heard Sri Shyam Kumar Verma, learned counsel for the appellant, learned A.G.A. for the State and perused the records.
2. The present appeal is directed against the judgment and order dated 12.03.2019 passed by the then IIIrd Additional Sessions Judge, Kaushambi in S.T. No. 204 of 2016, (State v. Dinesh Kumar alias Bhaiyawa) arising out of Case Crime No. 143 of 2016, under Section 304 of I.P.C., P.S. Mahewa Ghat, District Kaushambi convicting and sentencing the Dinesh Kumar alias Bhaiyawa under Section 304 of I.P.C. to undergo ten years of rigorous imprisonment with fine of Rs. 20,000/-, in default of fine six months additional imprisonment.
3. Tersely put, the prosecution case is that the complainant Mohan Lal lodged an F.I.R. at Police Station Mahewa Ghat, District Kaushambi on 27.05.2016 at 11:00 hours, stating therein that on 27.05.2016 at 08:00 hours, in morning, appellant Dinesh Kumar @ Bhaiyawa on some trivial issues, assaulted the brother of the complainant Rajkaran @ Khissu by lathi. Rajkaran @ Khissu was rushed to hospital, Manjhanpur but he succumbed to injuries in the way to hospital.
4. On written report submitted by complainant Mohan Lal, a case was registered against the appellant Dinesh Kumar alias Bhaiyawa at P.S. Mahewa Ghat, District Kaushambi in Case Crime No. 143 of 2016, under Section 304 of I.P.C.
5. The investigation of case was entrusted to PW6 Ramjeet Gaur who recorded statements of witnesses under Section 161 Cr.P.C., visited the spot and prepared site plan; recovered weapon of assault one piece lathi and prepared recovery memo of the same. After completion of investigation, investigating officer submitted charge sheet against the appellant Dinesh Kumar alias Bhaiyawa in Case Crime No. 143 of 2016, under Section 304 I.P.C., P.S. Mahewa Ghat District Kaushambi.
6. The then Chief Judicial Magistrate, Kaushambi, on 29.07.2016 committed the case of appellant to the Sessions Court for trial. The then Additional Sessions Judge, Kaushambi on 09.11.2016 framed charges against the appellant Dinesh Kumar alias Bhaiyawa under Sections 304 of I.P.C. Appellant denied the charges and claimed trial.
7. Prosecution was called upon to adduce evidence to substantiate the prosecution case. Evidence of PW1 Mohan Lal complainant/informant, PW2 Bachi Lal, PW3 Bhagwan, PW4 Vijay Kumar were recorded as witnesses of fact.
8. PW5 Dr. Anil Kumar Autopsy Surgeon, conducted the post mortem examination over the dead body of the deceased Rajkaran @ Khissu and prepared the post mortem report Ex. Ka-3. PW5 Dr. Anil Kumar Yadav found following ante mortem injuries on the person of the deceased at the time of post-mortem:
(1) Lacerated wound size 4x1x1cm present upper mid biparital region;
(2) Linear # from mid upper forehead to posterior part of biparital region length of # approx 6 cm.
(3) Lacerated wound found extensor surface of left side of tars 5 toes.
PW5 Dr. Anil Kumar Yadav opined that cause of death of the deceased was shock and hemorrhage due to ante mortem head injury.
9. PW6 Ramjeet Gaur is the I.O. of the case and proved the panchayatnama Ex. Ka-2, site plan Ex. Ka-4, recovery memo of weapon of assault i.e. lathi Ex. Ka-5 and Charge sheet Ex. Ka-6.
10. After completion of evidence, statement of appellant Dinesh Kumar @ Bhaiyawa under Section 313 Cr.P.C. was recorded, he denied the evidence and said that witnesses have given false evidence. He further stated that he is innocent and has been falsely implicated in the present case.
11. After hearing learned counsel for the prosecution and defence, the then Additional Sessions Judge, Kaushambi convicted and sentenced the appellant as above.
12. Learned counsel for the appellant submitted that the evidence of the witnesses fact is unworthy of credence. The recovery of weapon of assault i.e. lathi is highly doubtful. There is contradiction between medical and oral evidence. He further submitted that prosecution has not been able to prove its case beyond reasonable doubt. Appeallant deserves benefit of doubt and consequently acquittal.
13. Per contra, learned A.G.A. opposed the above submissions put forward by learned counsel for the appellant and submitted that the F.I.R. has been lodged with promptitude. The evidence of eye witnesses of fact is reliable and trustworthy. There is no contradiction between oral and medical evidence rather medical evidence corroborates the prosecution case. There is no motive of false implication. The prosecution has proved its case beyond reasonable doubt against the appellant. There is no merit in the appeal and hence, it should be dismissed.
14. Incident took place on 27.05.2016 at 08:00 hours. Distance of P.S. Mahewa Ghat is 15 Kms North-East from the place of occurrence.
F.I.R. was lodged on the same day of the incident i.e. on 27.05.2016 at 11:00 hours, thus, F.I.R. was lodged just after three hours of the alleged incident. F.I.R. has been lodged with promptitude, accordingly, it is held genuine.
15. PW1 Mohan Lal is the complainant of the case and brother of the deceased Rajkaran @ Khissu. PW1 Mohan Lal has stated in his examination-in-chief at page no. 22 of the paper book that the incident took place on 27.05.2016 at 08:00AM in the morning, he was taking his buffaloes towards the pond to let them drink water. In the way to pond, appellant Dinesh Kumar alias Bhaiyawa who belongs to the village of this witness met in front of the door of Bacchi Lal and started hot talks on some old incident. He abused this witness. When his brother Rajkaran @ Khissu intervened, then appellant Dinesh Kumar alias Bhaiyawa assaulted his brother Rajkaran over middle of his head. After beating Dinesh Kumar alias Bhaiyawa the appellant fled from there. Thereafter, this witness along with Nanbhai, Suresh, Vijay and Rakesh rushed to hospital. In the way to hospital, his brother Rajkaran succumbed to the injuries. This witness lodged the F.I.R. at the police station and proved the F.I.R. Ex. Ka-1. Defence cross-examined this witness.
At page no. 24 & 25 of the paper book, this witness has deposed in his cross-examination in the court that appellant Dinesh Kumar alias Bhaiyawa was abusing him. He did not abuse the appellant Dinesh Kumar alias Bhaiyawa. At that time, Bacchi Lal, Phool Chand’s mother were sitting there. They were abusing each other ten to fifteen minutes. Having come to know about the incident, the brother of this witness came there and asked the appellant as to why he was abusing, then the appellant who was already having lathi in his hand, assaulted the deceased Rajkaran @ Khissu on his head. In cross-examination, nothing prejudicial to the prosecution could be extracted by defence from this witness. Taking buffaloes for drinking them to pond is natural phenomena in villages. There is no major contradiction in the evidence of this witness. The evidence of PW1 is probable and reliable.
16. PW2 Bachi Lal is also an eye witness of the alleged witness, he has stated in his examination-in-chief at page no. 27 of the paper book that the incident took place eleven months ago at 08:00AM in the morning, he was present at the time of incident. There was an altercation going on between Mohan Lal and Dinesh Kumar alias Bhaiyawa, then Rajkaran @ Khissu reached there and tried to pacify them. Thereafter, Dinesh Kumar Bhaiyawa hit on the head of Rajkaran due to which he fell down on the ground and later on in the way to hospital he succumbed to the injuries. In cross- examination, nothing prejudicial to the prosecution could be extracted by defence from this witness. From the analysis of the evidence of PW2, it is clear that incident took place in front of his house, presence of this witness at the door of his house at 08:00AM in the morning, is natural and probable. Evidence of PW2 is also probable and credible.
17. PW3 Bhagwan is also the eye witness of the alleged incident, however, this witness in his cross-examination at page no. 31 of the paper book has stated that it is true that he did not see the occurrence. He reached on the spot later on, thus, this witness has not seen the occurrence through his own eyes. Thus, this witness has not supported the prosecution case.
18. PW4 Vijay Kumar is also eye witness of the alleged incident, however, this witness in his cross-examination at page no. 33 of the paper book has stated that at the time of incident, this witness was having meal at his house. From the above statement of this witness, it is clear that this witness has not supported the prosecution version.
19. Learned counsel for the appellant submitted that there is contradiction between the medical evidence and oral evidence, I do not agree with the above contention.
PW5 Dr. Anil Kumar Yadav has opined in his cross-examination at page no. 36 of the paper book that the injuries on the person of deceased Rajkaran @ Khissu were caused by some hard and blunt object.
PW1 Mohan Lal and PW2 Bacchi Lal have stated in their evidence that appellant Dinesh Kumar alias Bhaiyawa assaulted the deceased Rajkaran by stick (lathi). The stick is a hard and blunt object, thus, evidence of PW1 & PW2 is corroborated by PW3 Dr. Anil Kumar Yadav. Accordingly, it is held that there is no contradiction between medical and oral evidence, rather medical evidence supports the oral evidence.
20. Learned counsel for the appellant next submitted that recovery of weapon of assault i.e. lathi is doubtful.
PW6 Ramjeet is the investigating officer of this case and has proved recovery memo of weapon of assault lathi Ex. Ka5. There is no contradiction qua the recovery of lathi. However, information leading to discovery is only admissible as in the recovery memo it has been stated that he assaulted by lathi to Ramkaran and he can get it recovered from the canal. Recovery from the canal is only admissible because it is a recovery pursuant to the information given by the appellant, hence, recovery of lathi is also proved.
21. Learned counsel for the appellant relied upon Jai Karan and another v. State of U.P. 2018 7 ADJ(NOC) 3 and stated that evidence of eye witness is inconsistent, there is contradiction between medical and oral evidence so appellant should be extended the benefit of doubt. I have gone through the above authority of full bench of this Court. The facts of the present case are entirely different, therefore, the appellant cannot get the benefit of aforesaid authority of the Full Bench of this Court.
22. Learned counsel for the appellant further relied upon State of Uttar Pradesh v. Deoman Upadhyaya 1960 LawSuit(SC) 146 . I have gone through the above citation of Hon’ble Apex Court. This ruling is also not applicable in the present case as the facts of the present case are totally different, therefore, the appellant cannot get the benefit of aforesaid authority.
23. Learned counsel for the appellant lastly submitted that appellants has been implicated due to enmity, complainant and appellant both belong to same caste. Some case regarding rape was pending between the parties in which the appellant Dinesh Kumar alias Bhaiyawa was a witness. I do not agree with the above contention of the learned counsel for the appellant because enmity is a double edged weapon which cuts both the sides. It may be the cause of incident and at the same time it may be the reason for false implication also. So far as the facts and circumstances of the present case are concerned there is definite, probable and reliable evidence of PW1 Mohan Lal & PW2 Bacchi Lal against the appellant which is corroborated by the evidence of PW5 Dr. Anil Kumar Yadav.
24. From the perusal of the impugned judgment passed by the court below, it is evident that that appellant has been convicted under Section 304 I.P.C. and sentenced to undergo 10 years of rigorous imprisonment and with a fine of Rs. 20,000/-.
Keeping in view of the facts and circumstances of the case, it would not be appropriate to take a lenient view against the appellant and reduce his sentence. Appeal is devoid of merits and is liable to be dismissed.
25. Accordingly, this appeal is dismissed.
26. Copy of this judgment be certified to the court below for compliance. Lower court record be transmitted to the District Court, concerned.
Order Date :- 19.8.2021 VPS