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CASE NO.: Appeal (crl.)  1362 of 2002

PETITIONER: State of U.P.

RESPONDENT: Raja Ram and Ors

DATE OF JUDGMENT: 20/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1.      The State of U.P. is in appeal against the judgment of the  Division Bench of the Allahabad High Court directing acquittal  of the present respondent while upholding the conviction of  three others, namely, Raja Ram, Ram Nath, and Ram Prasad,  with the altercation that they were convicted under Section  302 read with Section 34 of the Indian Penal Code, 1860 (in  short ’IPC’), instead of Section 302 read with Section 149 IPC.   Conviction for offences punishable under Sections 147 and  148 IPC was set aside. The High Court set aside the conviction  of Devender, Chhotey Lal and Subhash who are respondents 4  and 6 in this appeal.   

2.      Respondents faced trial for alleged commission of offence  punishable under Section 302 read with Sections 149, 148  and 147 of the Indian Penal Code, 1860 (in short ’IPC’).  The  learned Additional Sessions Judge, Ballia found the accused  persons guilty and sentenced each to undergo imprisonment  for life and one year respectively in respect of three offences.        

3.      Prosecution version in a nutshell is as follows:      

       On 10.4.1984 Yadunath Chauhan (hereinafter referred to  as the ’deceased’) was going from his village Bankat to village  Jigirsar for some work.  When he was near the Government  Tube-well and the field of Balchand, all the appellants  surrounded him.  Time was about 6.30 a.m. Appellants Raja  Ram and Ram Nath were having ’Spears’ while all other had  lathis.  On exhortation of accused Ram Prasad, appellants  Raja Ram and Ram Nath started assaulting Yadunath with  spear and rest with lathi.  On the alarm raised by the victim,  his son Babban Chauhan (PW-1), Ram Lal, Roop Narain (PW- 2), Kamal Nath and others were attracted to the scene of  occurrence.  Seeing the pressure being mounted with the  arrival of witnesses accused persons ran away with their  respective weapons.

       Babba Chauhan (PW-1) son of the deceased, himself  wrote down the First Information Report (Ex. Ka 1) and carried  the same along with victim Yadunath to P.S. Khejuri where  F.I.R. was recorded and the investigation was undertaken.                  After completion of investigation charge sheet was placed.   Accused person pleaded false implication. They examined one

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witness DW-1 and exhibited certain documents to show that  the complainant was inimical to them.   

4.      On analysis of the evidence on record learned trial court  held that the incident occurred at the time and place indicated  by prosecution and the same is witnessed by PWs 1, 2 and 3  and their evidence was trustworthy. The First Information  Report was lodged with promptness and the stand of defence  that deceased was done to death in the early hours of the day  while it was still dark was not acceptable. With these findings  learned trial court Judge concluded that the prosecution had  succeeded in establishing its case beyond reasonable doubt.                                           5.      Accused persons preferred appeal before the High Court.   Analysing the evidence on record the High Court found that  the accusations so far as they relate to respondents 1 and 3  stand substantially established. Their participation in the  occurrence was proved beyond doubt.  Ram Prasad, Raja Ram  both assaulted the deceased with spear. In the post-mortem  examination two incised penetrating wounds were found,  beside five other incised injuries. As regards Ram Prasad, it  was noted that all the witnesses stated that he assaulted the  deceased on his head with a lathi.                                      6.      Coming to the case of the respondents 3 to 6 it was found  that the prosecution was not free from doubt. They were  alleged to be armed with lathi.  In the first information report  there was a clear statement that these accused persons  assaulted the deceased with lathis, Babban Chauhan (PW-1)  had also stated about this. But PWs. 2 and 3 made a  departure and stated that only accused Ram Prasad struck a  lathi blow on the head of the deceased but others simply  waved their lathis to scare the witnesses. The High Court  found this was to be a development to bring their version in  line with the medical evidence. It was noted that since one  injury with a blunt weapon was noted, this departure from  earlier stand was introduced.  Therefore, the conviction and  sentence in so far it related to respondents 3 to 6 was set  aside.  They were acquitted of the offence charged.  However,  the conviction of Raja Ram, Ram Nath and Ram Prasad was  altered to Section 302 read with Section 34 IPC.              7.      In support of the appeal learned counsel for the  appellant-State submitted that prosecution version having  been accepted, the High Court should have also convicted   respondents 3 to 6.   8.      We find that the High Court has noted that prosecution  case against Devendra, Chotey Lal and Subhash, is not free  from doubt.  They were alleged to be armed with lathi.  In the  first information report there was a clear statement that these  appellants also assaulted the deceased with lathi.  Babban  Chauhan (PW-1) in his examination in chief also stated that  all the assailants having lathi were continuously hitting the  deceased with lathis. PWs 2 and 3, however,  in their  deposition made an improvement and developed the case that  only Ram Prasad, appellant struck a lathi blow on the head of  the deceased, but the acquitted three simply waved their lathis  to thwart away the witnesses.  It appears that since deceased  had only one blunt object injury which is specifically  attributed to Ram Prasad alone, the prosecutor did not  hesitate to develop the case through the evidence of PWs 2 and  3 that these appellants did not strike any blow of lathi on the  deceased but they simply threatened the witnesses by  brandishing lathis. No such case was put forward in the first

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information report or at the investigation stage.  High Court,  therefore, extended benefit of doubt to Devendra, Chotey Lal  and Subhash and acquitted them of the offences charged for.                 9.      The reasoning of the High Court does not suffer from any  infirmity.  As rightly observed by the High Court PWs 2 and 3  tried to introduce different versions from what has been stated  during investigation.  Their version was altered to be in line  with medical evidence.  Therefore, the High Court has rightly  held that the evidence is not cogent so far as they are  concerned.    

10.     We find no reason to differ with the conclusion of the  High Court.  The appeal fails and is dismissed.