N.S Gupta, J.:— Ravikaran, Shripal and Sehdev who were convicted by Shri ??? Kulshrestha the then IV Additional Session Judge, Bulandshahr vide his judgment an order dated 25.9.1979 under Sections 326/??? I.P.C and 324/34 I.P.C and were sentence to undergo R.I for a period of three year under Sections 326/34 and for a period of two years under Sections 324/34 I.P.C each have come up in appeal before this Court.
2. It appears that during the pendency of the appeal, which was pending before this Court, ever since the year 1979 accused Shripal had died as per report dated 14.6.1994 received from the Chief Judicial Magistrate, Bulandshahr. It is said that the accused Shripal has since been killed in police encounter and accused Schdev has died in his natural death, the appeal against these person namely Shripal, and Schdev had, therefore, abated. The appeal proceeded as against the accused Ravikaran. Shri Sunil Kumar, Advocate for the accused Ravikaran has vehemently argued before me that as many as 8 persons as also one unnamed were mentioned as culprits in the FIR. The police had challaned only 7 persons and had left the eighth accused person namely Nanhey, who was related as brother-in-law of accused Sehdev. After a needful trial, the learned Sessions Judge, Bulandshahr, had acquitted 4 of the accused-persons namely, Chanderpal, Rajbir, Harbans, Baljil. It was argued that the role of accused Rajbir as stated by the injured Tejpal Singh in the statement before the court below, was identical to that of the accused Ravikaran who was an appellant before this Court. It was argued on behalf of the appellant that there was no justification for the learned court below to convict the accused appellant Ravikaran when the co-accused Rajbir was left over.
3. I have given my thoughtful consideration to the fact and circumstances of the case. The facts of the case are as under:
4. On 14.10.1976 at about 9.30 P.M a First Information report was lodged by Sri Dharam Pal Singh, P.W 4, who is the brother of Shri Tej Pal Singh, stating therein that at about 6.30 P.M on the same day in the Jungle of village Murli Nagla P.S Shikarpur district Bulandshahr accused Nos. 1. Chanderpal, 2. Rajbir, 3. Ravikaran, 4. Sehdev, 5. Baljit, 6. Harbans Singh, 7. Shripal, 8. Nanhey brother-in-law of Sehdev had formed an unlawful assembly and in prosecution of the common object of that unlawful assembly they caused hurt to Tejpal Singh, P.W 1 by means of Danda, Farsa and Balkati. It was alleged that the accused Baljit was armed with a country made pistol. He opened fire by means of a country made pistol but the said fire was missed. The injured Tejpal Singh was taken to the district Hospital Bulandshahr where his injuries were medically examined by Dr. D.B Singh, P.W 2 on 15.10.1976 at 7.30 P.M The following injuries were found on his person:
1. U shaped incised wound 7 cm. × 1 cm. × bone on rt. side head 9 cm above right ear, Adv. X-Ray.
2. Lacerated wound 13 cm. × 2 cm. × bone on top of head towards right side—transvesly placed 2 cm above rt. ear Advised X-ray.
3. Multiple lacerated wound in an area of 12 cm × 4 ½ cm on rt. side back of head measuring smallest 2½ cm × ¾ cm. × bone and biggest bone. Adv. X-ray.
4. Lacerated wound 4 cm × 3.4 × scalp on front of head at the hair line middle.
5. Lacerated wound 3 cm × ½ cm × scalp on the root of nose vertical extending to forehead middle.
6. Incised wound 4 cm ¼ cm × cartilage lower part but through and through and upper part bone-deep. Adv. X-ray.
7. Lacerated wound 2½ cm × 1 cm × muscle on left mastoid region.
8. Lacerated wound 2½ cm × ½ cm × muscle on back of left ear pinna upper part.
9. Incised wound 3½ cm × 1 cm × through and through on rt. ear pinna cut in the middle.
10. Lacerated wound 15 cm 2 × cm muscle on under surface of chiks U shaped.
11. Lacerated wound 7 cm × 1 cm. muscle (1½ cm. deep) on back of rt. hand inner part.
12. Incised wound 9 cm × 2 cm × bone cut through and through from the khuckles of rt. hand except thumb, the index finger hanging by a tag of skin, Adv. X-ray.
13. Incised wound 3 cm × ¾ cm × muscle on outer aspect of right arm lower ⅓rd.
14. Lacerated wound 2½ cm × ¾ cm × muscle on right scapular lower part.
15. Incised wound 7 cm × 1½ cm × bone on right scapular lower part.
16. Incised wound 11 cm × 1 cm × bone right scapular upper part.
17. Incised wound 10 cm × ¼ cm × skin on right scapular outer part.
18. Linear incised wound 13 cm × skin deep on right scapula 1 cm below injury No. 16.
19. Incised wound 18 cm × ½ cm × skin of right side back middle.
20. Incised wound 9 cm × 1 cm × bone on lower spine, transversely placed Adv. X-ray.
21. Incised wound 10 cm × ½ cm × muscle 4 cm below injury No. 20.
22. Abrasion 7 cm × 1.2 cm on right side back lower part.
23. Abrasion 7 cm × 1.2 cm on outer part left scapula.
5. During the course of trial Sri Tej Pal Singh injured was examined as P.W 1. Sri Munshi Singh, who was the father-in-law of Tejpal (injured) and who claimed himself to be an eye witness of the occurrence, was examined as P.W 3. Shri Dharam Pal Singh brother of the injured Tejpal Singh, who lodged the first information report about the occurrence and set the machinery of law in motion, was examined as P.W 4. The statement of Shri Munshi Singh, father-in-law of the injured, was disbelieved by the court below itself. The learned court below placing the reliance on the statement of the injured Tejpal had convicted and sentenced the accused appellants.
6. I should state here that on the next day of the accident i.e 15.10.1976 at about 10.30 A.M the Additional Sub-Division Magistrate, Bulandshahr had recorded the statement of the injured. In that statement the injured had made no mention of the fact that his father-in-law Shri Munshi Singh was an eye witness of the occurrence. The injured did not state about the fact than soon after the occurrence his brother Dharam Pal had come on the spot and that he had taken him to Shikarpur hospital and from Shikarpur to Bulandshahr hospital. The injured stated about the presence of his son to whom he hinted to run away but he was not examined as a witness of the occurrence before the Court below. We are now left with the solitary testimony of the injured.
7. There was admittedly an enmity between the parties. The accused appellant is said to be the real brother of accused Sehdev. The accused Sehdev has since died, he is said to have outraged the modesty of the wife of younger brother of injured earlier to this accident, about which a panchayat was convenedand the village panchayat had sentenced a fine of Rs. 500/- and infliction of 5 shoes to Sehdev, the accused appellant Sri Rajbir, who is said to be a Vakil or Village Barrister, had promised to pay the fine himself, when the injured complained about the non-payment of fine by the accused Sehdev to Rajbir Singh, the accused Rajbir Singh told the injured that he would not get any money let him do whatever he thought proper. It would thus be seen that the injured Tejpal and accused Sehdev and Rajbir bore enmity with each other since before the date of occurrence. Since his brother's wife was molested and since inspite of the verdict of the village panchayat, Sehdev and Rajbir did not pay the amount of fine rather said to the injured to do whatever he thought proper, the injured Tejpal Singh was feeling all the more aggrieved towards Sehdev and Rajbir. It is, therefore, probable for me to believe that when an incident of Marpit had happened with Tejpal, P.W 1 his brother Dharam Pal Singh dragged all the near and dear of Sehdev in the occurrence in question. It is important to note here that the time of occurrence as mentioned in the FIR was 6.30 P.M in the month of October, 1976. It has been observed by the learned Sessions Judge himself in his judgment that according to the defence the sun set at 5.54 P.M The learned Sessions Judge observed that after the setting of the sun adequate light would be available for a period of about more than half an hour. When the sun admittedly set at 5.54 P.M at the time of the occurrence and when the time of the occurrence was based upon vague estimation of the injured and his brother at 6.30 P.M I am of the opinion that the occurrence had taken place during the darkness and the injured person could not have been in a position to see the faces of the assailants with meticulous details. The circumstances that the injured in his statement before the Additional Sub-Division Magistrate, Bulandshahr failed to state the specific role of each of the accused person, proves that the injured could not possibly see the faces of the assailants and therefore, he could not state the specific role played by each of the accused person in his statement which was recorded as dying declaration by ASD-II.
8. I find from the statement of the injured himself that Sehdev, Rajbir and Ravikaran were all armed with Farsa. According to the version of the prosecution all these three accused persons yielded their Farsa and had caused injuries to the injured Tejpal Singh. It was specifically stated by the injured in his cross-examination before the court below that the accused Ravikaran and Sehdev both were present. The co-accused Rajbir was given benefit of doubt by the trial Court itself. When according to the statement of the injured the role of Rajbir and appellant Ravikaran was similar, I am of the opinion that there was no propriety on the part of the learned Sessions Judge, Bulandshahr to have convicted and sentenced the accused appellant Ravikaran.
9. It is important to note here that the complainant or the State have not come up in appeal before this court against the acquittal of Rajbir or any other accused person. That being so, I am of the opinion that on ground of judicial parity the accused appellant Ravikaran also deserves benefit of doubt. The circumstances that the occurrence had taken place after sun set, the possibility that the injured was not in a position to see and recognise the face of the appellants and that his brother had roped them because of previous animosity cannot be ruled out. I am, accordingly, of the opinion that the appeal deserves to be allowed, and the accused appellant is hereby held not guilty and he is accordingly acquitted. The appeal of Ravikaran is hereby allowed. His conviction and sentence passed by the IV Additional District and Sessions Judge, Bulandshahr as per judgment and order dated 25.9.1979 is nereby set aside. The accused Ravikaran is acquitted in the said section relating to the case crime No. 304 of 1976 police station Shikarpur, district Bulandshahr. He is on bail. His bail bonds are hereby cancelled. He need not surrender. The accused Shripal and Sehdev having died, the appeal against them is abated.
10. Appeal Allowed.