Hon'ble Mrs. Vijay Lakshmi,J.
( By Hon'ble Rakesh Tiwari, J.) Called for the records of Criminal Appeal No. 3058 of 2014, Rudra Nath Rai and others versus State of U.P. and others & Criminal Appeal No. 3357 of 2014, Hitendra Rai and others versus State of U.P. and others and perused the same.
Heard learned A.G.A. for the appellant-State of U.P. learned counsel for the accused-respondents and perused the record.
The aforesaid Criminal Misc. Application (Leave to Appeal) No. 361 of 2014 along with Government Appeal No. 361 of 2014 under Section 372 Cr.P.C. has been preferred challenging the validity and correctness of the impugned judgment and order of acquittal dated 3.7.2014 passed by the Addl. Sessions Judge, Bansi, Siddarthnagar in S.T. No. 143 of 2009 (State Vs. Hitendra Rai and others) acquitting the accused- respondents of the charges framed against them under Sections 452,307/149,504 and 506 IPC.
The prosecution case, in brief, is that appellant-complainant lodged an FIR against the accused-respondents on 16.7.2006 at 9.10 A.M. in police station Kotwali Bansi, Siddarthnagar to the effect that at about 7.30 A.M. in the morning when he was going from his new to his old house the accused-respondents came armed with lathi, Danda, Pharsa and firearm. They entered his house abusing & assaulted him, his father and son Narendra Rai with Danda. When Vijay Kumar Mishra came to intervene, they with intention to kill him started assaulting him by danda. On a hue and cry made by them, Purshottam Rai, Anil Rai Sarvendra Rai and other persons came to save them from the clutches of the accused-respondents. At that accused Rudranath Rai fired from his licenced gun and the remaining accused disrooted the trees in his premises.
Case crime no. 719 of 2006, under Sections 147,148,149,452,307,325,504,506 and 427 IPC was registered. After investigation, the I.O. submitted charge sheet against all the the accused persons.
Charges under Sections 148,452,307/149, 323/149, 504,506 and 427 IPC were framed by the Addl. Sessions Judge, Bansi, Siddarthnagar against the accused persons, who denied the same and claimed to be tried.
In order to prove its case the prosecution examined six witnesses namely, Vijay Kumar Mishra (PW-1) Ram Shankar Rai (PW-2), Dr. R.B. Ram (PW-3), Anil Rai (PW-4), Dr. Mahesh Prasad, Radiologist (PW-5), SI, Sukra Dev Prasad (PW-6) whereas the accused persons in their statements under Section 313 Cr.P.C. denied the prosecution case stating that they have been falsely implicated.
After considering the evidence, material on record and hearing the counsel for the parties, the trial Court acquitted the accused-respondents vide judgment and order dated 3.7.2014 holding that the prosecution has failed to prove its case beyond all reasonable doubts.
The contention of learned counsel for the appellant is that the FIR was promptly lodged. The impugned judgment is assailed saying that there was strong motive to commit the offence, further a full attempt was made to kill the appellant and the other injured persons in order to eliminate them. Therefore, section 307 IPC is attracted in the present case; that despite the fact that the prosecution witnesses P.Ws. 1 to 5 had fully supported and proved its case beyond reasonable doubt and suspicion even then the trial Court has illegally acquitted the accused persons of the charges against them. It is stated that P.Ws. 1 and 3 have stated in their statements that in fact the Farsa blow was given to the appellant by accused-respondent no.2 but instead of hitting the appellant it hit accused-respondent no.4, hence the injury of accused-respondent no.4 was very well explained by the appellant and PW-3. According to the statement of PW-7 the I.O., the appellant and his family members as well as PW-2 were assaulted by the accused persons outside the house and inside the house so Section 452 IPC itself is fully attracted and the trial Court without assigning any plausible reason and explanation illegally acquitted the accused persons under Sections 452,307/149, 504 and 506 IPC. It is stated that Dr. R.D. Ram (PW-4) and Dr.. Mahesh Prasad Mishra, Radiologist (PW-6), who had examined the injuries of the injured, son, father and Vijay Kumar Mishra had found a hairline fracture on his frontal bone.
According to him, P.Ws. 1 to 3 and 5 have fully supported and proved the prosecution case; that Dr. R.B. Ram (PW-4) and Dr. Mahesh Prasad (PW-6) have fully proved the injury reports of the injured, his son and his father and Vijay Kumar Mishra; that the FIR was promptly lodged.
It is argued that no explanation was given by the trial Court while acquitting the accused-respondents under Sections 452,307/149,504 and 506 IPC despite the fact that a fracture of the frontal bone of PW-2 was proved by the Radiologist (PW-6) and as such the order and judgment passed by the trial Court is liable to be set aside in respect to accused-respondents with regard to their acquittal under Sections 452,307/149,504 and 506 IPC and further in not sentencing them under Sections 148,323/149 and 427 IPC.
From a perusal of the record and the impugned judgment it is apparent that the trial Court has given detailed and cogent reasons in paragraph 18 of the judgment for reaching to the conclusion that the accused-respondents are liable to be acquitted from the charges under Sections 452,307/149,504 and 506 IPC. The relevant extract of paragraph 18 of the judgment reads thus:-
" izFke lwpuk fjiksVZ tks oknh eqdnek o:.ksUnz jk; }kjk vfHk;qDrx.k }kjk vafdr djk;h x;h gSA mlls ifjyf{kr gS fd tc oknh nk ;fn rF; ds xokgku ds lk{; dks ns[kk tkos rks ih0MCyw0&1 ds :i esa ijhf{kr xokg oknh eqdnek o:.ksUnz jk; }kjk viuh eq[; ijh{kk dFku fd;k x;k fd tc og nk<+h cuokdj vius u;s edku ls iqjkus edku vk jgk Fkk rHkh lHkh vfHk;qDrx.k fgrsUnz jk; vkfn }kjk ftuesa :nz ukFk ds ,dukyh canwd fgrsUnz] 'k=q?ku ,oa lR; izdk'k lHkh ds gkFk esa Qjlk ckdh vius gkFkksa esa ykfB;kW ysrs gq, lHkh yksx tku ls ekjus ds fy;s nkSM+k;s fgrsUnz jk; us Qjls ls mlds mij okj fd;k ftlds MaMk mlds nkfgus da/ks ij yxk /kkj ihNs dh rjQ fudy xbZ tks mlds HkkbZ ohjsUnz ds lj ij yxh og fugFkk FkkA ftlls tku cpkus ds fy;s xM In our considered opinion, the trial Court has rightly come to the conclusion that there was no injury of Farsa and the shot was fired by respondent-accused Rudra Nath Rai in the air not to kill any person. The allegation that the accused-respondents had assaulted Vijay Kumar Mishra with intention to kill is not correct for the reason that it is not denied by the appellant that the accused had come also armed with firearm which was used for firing in the air. If the accused had any intention of using it as a murder weapon they would not only have used it upon the appellant at the first opportunity and instance outside his house but also on Vijay Kumar Mishra, who is claimed to have come there to intervene. Moreover, the assault upon the appellant appears to be an afterthought for the same reason. It rather appears from record that there was an altercation between the parties in which both sides received injuries but none from gun shot. The anger subsided with uprooting of some small trees. The allegations could not be proved by the appellant before the trial Court. Even Vijay Kumar Mishra has not filed any appeal against the judgment impugned as is informed to us by the counsel for the appellant.
It is doubtful how a very thin hairline fracture on forehead was detected by a low quality x-ray machine which can be detected only on high resolution automatic machines. Therefore, this report of the Radiologist (PW-4) and the Dr. Mahesh Prasad (PW-6) become doubtful. There appears to be no illegality or infirmity in the impugned judgment and order of acquittal of the trial Court.
For the reasons stated above, we do not find it to be a fit case for interference by this Court. Accordingly, the prayer for leave to appeal is rejected and as a consequence, the Government Appeal is also dismissed.
Dated 8.10.2014 CPP/-