Partly allowed

Kishan Yadav v. State of U.P.

Allahabad HC4 Aug 2023CRLA/1298/2002

Case brief

AI extract

What is this about?

The High Court allowed part of the criminal appeal wherein the trial court had convicted the appellant for attempted murder. Holding that the prosecution failed to prove that the injuries were grievous or dangerous to life, the Court reduced the conviction from Section 307 IPC to Section 323 IPC and reduced the sentence.

What did the court decide?

Conviction reduced from Section 307 IPC to Section 323 IPC; sentence reduced from seven years to one year; appellant forwarded for service of sentence.

Kishan Yadav Vs State of U.P. — Allahabad HC (2023) — LawSathi Research

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Neutral Citation No. - 2023:AHC-LKO:51379

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[Reserved]

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Court No. - 29

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Case :- CRIMINAL APPEAL No. - 1298 of 2002 Appellant :- Kishan Yadav Respondent :- State of U.P. Counsel for Appellant :- Shishir Pradhan Counsel for Respondent :- Govt.Advocate

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Hon'ble Mrs. Renu Agarwal,J.

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The present criminal appeal U/s 374(2) has been preferred against the judgement and order dated 3.9.2002 passed by Fast Track Court No.1/Additional Sessions Judge, Raebareli in Sessions Trial No. 332/2001 arising out of Case Crime No. 36 of 2001, Police Station- Gurubuxganj, District- Raebareli thereby convicting the appellant U/s 307 IPC for imprisonment of seven years along with fine of Rs. 1,000/- and in default of payment of fine, three months additional imprisonment.

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The facts in brief are that the nephew of the informant namely, Dinesh, S/o Kishan yadav started construction of his house on the plot purchased by him and his father, Kishan Yadav obstructed him, abused him and threatened him by country made pistol to abstain from construction of his house. Dinesh (his nephew) forbade him but the accused Kishan opened fire on him which hit on his head and face. The injured, Dinesh fell down on the ground. The incident was witnessed by Ramadhar S/o Ram Mohan and other villagers. When the villagers rushed to the place of occurrence, the accused took to his heels. The informant admitted the injured in district hospital, Raebareli. The written report was submitted to the police station

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for registration of a case against the accused.

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On the basis of the written report, the case was registered in Police Station- Gurubuxganj as case crime no. 36/2001 U/s 307 IPC and chik report was prepared at the same time. The case was entered in G.D. No. 15 dated 18.02.2001 at 16.30 pm.

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The case was investigated by the S.I. Bhawani Prasad who recorded the statement of the complainant, victim as well as the witnesses and visited the pace of occurrence and prepared site plan on the pointing out of the injured. The investigating officer arrested the accused Kishan Yadav and tried to recover country made pistol on the pointing out of the accused from his house, but nothing incriminating item or weapon was recovered. The recovery memo was prepared. After completion of the investigation, the investigating officer submitted charge sheet No. 21/01 dated 11.3.2001.

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After taking cognizance, the magistrate committed the case to the court of sessions. The court of sessions framed the charges against the accused and read over to him. However, the accused denied the charges levelled against him and claimed to be tried.

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The prosecution produced the following prosecution witnesses:

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"PW-1, Shamsher Yadav, Informant; PW-2 Dr. S. L. Sharma, Radiologist; PW-3 Sanjay Kumar Pandey, Medical Officer at district hospital, Raebareli; PW-4 Constable Shaildendra Kumar Mishra; PW-5 Bhawani Prasad Mishra, S.I.; PW-6 Dinesh Kumar, injured."

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After the conclusion of the prosecution witnesses, the statement of the accused was recorded U/s 313 CrPC wherein the accused stated that the injured, Dinesh is his son from his

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first wife. He provided him financial assistance for purchasing the land in dispute and he has been falsely implicated due to animosity regarding the land. The accused was awarded an opportunity to adduce evidence in his defence. The accused produced following defence witnesses:

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"DW-1 Deshraj S/o- Kishan Yadav; DW-2 Ram Dulare, Village Pradhan; DW-3 Lal Khan."

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After the perusal of the record and after hearing learned counsel for the parties, the trial court reached to the conclusion that the accused-appellant, Kishan Yadav shot fire at the injured, Dinesh. Thereafter the injured was admitted to district hospital, Raebareli where the PW-3, Dr. Sanjay Kumar Pandey referred him to KGMC, Lucknow due to grievous injuries sustained by him. Looking into the fact that the accused is the father of the injured who due to animosity regarding the land in dispute fired at him by country made pistol, the accused has been convicted U/s 307 IPC with the rigorous imprisonment of seven years and fine of Rs. 1,000/-.

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Being aggrieved and dissatisfied with the judgement and order dated 03.09.2002, the present appeal has been preferred.

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Heard Shri Shishir Pradhan, learned counsel for the appellant, learned AGA for the State and perused the record.

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It is submitted on behalf of the appellant that the impugned judgement has been passed on the basis of presumptions, surmises and conjectures in most arbitrary manner. The trial court without giving any lawful reason disbelieved the statement of the defence witnesses produced by the accusedappellant in his defence. It is further submitted that PW-6, the injured- Dinesh is an interested witness and PW-1, Shamsher is

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the brother of the appellant, who has enmity with the appellant and he wants to grab the property of the appellant. The appellant is the real father of the injured- Dinesh. Therefore PW-1, Shamsher persuaded the injured to depose against the appellant. However, there was no intention to kill the injured. Hence, if the entire prosecution version is believed as it is, the offence would not travel beyond section 323 IPC.

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It is further submitted by learned counsel for the appellant that another independent injured witness- Chandan Pal was not produced by the prosecution who was importatnt and relevant eyewitness. The injured was hosptialised by his brother Deshraj who was produced as a defence witness by the accusedappellant. DW-1, Deshraj deposed that the appellant was not present at the time of occurrence and he was falsely roped by the informant due to enmity. Therefore, the impugned judgement and order is liable to be set aside.

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Per contra, learned AGA submitted that the injured is the step son of the accused-appellant who is residing with his second wife. The injured was constructing his house and on account of animosity, the accused shot fire at him by the country made pistol which hit the face and head of the injured and one of teeth was also fractured. Thereafter, he was hospitalized by the informant. In the X-ray report, one metallic shadow was found in parietal bone and another metallic shadow was found in the middle of face. Thus, learned trial court has rightly convicted the appellant on the basis of evidence available on record. There is no illegality, irregularity or perversity in the impugned order, hence the instant appeal is liable to be dismissed.

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Before analyzing the evidence it is desirable to recapitulate the evidence of witnesses.

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PW-1, Shamsher, informant deposed that the injured is his cousin and when he (injured) was constructing his house on the land purchased by him, the accused came and threatened him to shoot and asked him to abstain from constructing his house on 18.2.2001 at about 10-11 am. Due to altercation for some time, the accused-appellant shot fire by country made pistol at the injured who sustained injuries on his forehead, face and upper arm and fell down. He was present at the time of the incident, hence he admitted the injured in the district hospital and moved a written report to the police station concerned. Thereafter the injured was referred to KGMC, Lucknow. At the time of occurrence, Ramadhar was engaged in construction with Chandan Lal and his grand daughter aged about 13 years who also sustained injury by the pellets.

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PW-2, Dr. S.L. Sharma, Radiologist deposed before the trial court that the injured- Dinesh Kumar was brought by the informant, Shamsher to the district hospital, Raebareli where he was admitted at bed no. 23. During X-ray, two metallic shadows were found one on parietal bone another in the middle of the face. The Doctor proved the X-ray report as Ex-ka-2 and X-ray plate as material exhibit-1.

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PW-3, Dr. Sanjay Kumar Mishra deposed that he was posted as medical officer in district hospital, Raebarlei on 18.02.2001. He examined the injured- Dinesh at about 12 pm brought by his real brother, Deshraj and following injuries were found:

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"(i) lacerated wounds 0.3 cm x 0.2 cm that was circumferenced by swelling in the area of 3cm x 5cm on the right side of parietal bone 6.5 cm away from the outer sphere of right eye;

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(ii) lacerated wounds 0.5cm x 0.3cm in the inner side of upper

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lip in front of canine tooth;

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(iii) Canine tooth of right side was broken.

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It is clarified by the Doctor that the outer tooth was broken. However root was present. All the injuries were fresh; injury no.2 was advised for X-ray and injury no.3 was referred to KGMC, Lucknow."

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PW-4 Shailendra Kumar Mishra proved the chik report as Ex-ka-4 and GD No. 15 dated 18.2.2001 at 16.30 Hours as Exka-5.

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PW-5, Bhawani Prasad, S.I. who was the investigating officer of the case who recorded the statement of the witnesses and injured. He visited the place of occurrence and prepared site plan and proved it as Ex-ka-6, charge sheet as Ex-ka-7 and recovery memo/search memo as Ex-ka-8.

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PW-6, Dinesh, injured deposed that he purchased the land from Suraj Pal and was constructing his house on that land. The accused-appellant came at the place of occurrence on 18.02.2001 at about 11 am and obstructed the construction of his house. During altercation, the accused shot fire by country made pistol which hit on his forehead, face and upper arm. He fell down on the ground sustaining injuries. Then his uncle, Shamsher (informant) admitted him to the district hospital, Raebareli wherefrom he was referred to KGMC, Lucknow. It is further deposed that the father ousted him from his own house, therefore he was constructing the house on his own.

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DW-1, Deshraj deposed that his father was not present at the time of incident as he went to Chandaipur to meet his aunt (Mausi). When his father returned in the evening, the incident had already been occurred. He was present at the time of

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incident and admitted the injured in a hospital. He further stated that Rs. 2000/- was given to the doctor for implicating the accused/appellant in the graver offence. The report was typed by an advocate at the instance of informant, Shamsher. The injured sustained simple injuries, but the informant got the injured referred to KGMC, Lucknow with the collusion of doctors. It is also deposed by DW-1 that his father was falsely roped in this case so that the injured could grab the property of the accused/appellant.

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DW-2, Ram Dulare, Village Pradhan deposed that the accused-appellant came to him for getting the ration card prepared and waited there for about three and a half hours. Later on, he came to know that the accused-appellant has been implicated in a crime.

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DW-3, Lal Khan deposed that the accused-appellant, Kishan Yadav informed him that he will go to Chandanpur to meet his aunt. When he reached to the place of occurrence, he saw that the accused-appellant was not present there and the injured was taken to the hospital by his brother Deshraj.

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From perusal of the record, it transpires that some facts are uncontroverted that the accused-appellant is real father of the injured. The appellant remarried to a lady and refused to give any of his property to the injured. The injured was constructing his house.

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The present case is that an altercation occurred between the injured and his father (accused-appellant). The appellant forbade him from construction and after some time the accused shot fire at him. PW-1, informant who took the injured to the hospital as he was present at the time of the incident. He supported the prosecution version. He categorically stated that

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the land was purchased by Dinesh from Suraj Pal. There is no contradiction in the statement of PW-1 which could adverse to the prosecution version. PW-1 took the injured to district hospital, Raebareli. There is no intent that on account of animosity, the accused-appellant has been falsely implicated in the case. PW-1, informant and PW-6, injured supported the prosecution version. PW-3, Dr. Sanjay Kumar Pandey proved the injuries of the injured. PW-2 also proved that two opaque metallic shadows were seen in the parietal bone as well as in the middle face of the injured.

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Learned counsel for the appellant argued that the PW-2 admitted that he did not conduct a surgery of the injured nor opaque shadows were removed from his body as he is radiologist not a surgeon to conduct any surgery. PW-3 admitted that injuries were not found grievous in nature. According to Ex-ka-3, medical report prepared by the PW-3 all the injuries were found fresh. X-ray of injury no.2 was advised and it is mentioned that the final opinion to be given after X-ray. After X-ray report, no supplementary report was given and there is no opinion of the Doctor that the injuries were grievous in nature and dangerous to life.

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The injury report as well as the statement of the PW-2 and PW-3 goes to show that when the incident happened, the injured, PW-6 sustained injuries out of the firearm weapon. However, it is not proved on record that the injuries sustained by him were grievous in nature or dangerous to life.

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The defence version is that the accused-appellant was not present at the time of incident. DW-1 who is the son of the accused-appellant admitted the injured to the hospital. As per medical report, the doctor did not give the opinion that the injuries sustained by the injured were grievous in nature.

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Therefore the statement of the DW-1 is that the informant, Shamsher bribed Rs. 2,000/- to the doctor for mentioning grievous injuries and forwarding the injured to KGMC, Lucknow, it is not supported by the documentary evidence. No grievous injury is mentioned by the Doctor. Hence, the credibility of the DW-1 is not in consonance with the fact and is doubtful. Moreover, he is the real son of the accused-appellant, therefore he deposed in favour of the accused/appellant.

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DW-1 deposed that his father went to Chandanpur to meet her Aunt (Mausi), however, DW-2 stated that the accusedappellant came to him for getting ration card prepared and he waited there for about three and a half hours for this purpose. Therefore, there is contradiction in the plea of alibi whether the accused-appellant went to Chandaipur or he was with DW-2 at the relevant point of incident.

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In view of the above discussions, it is clear that the accused was present at the place of occurrence and he shot fire on the injured, due to which the injured sustained firearm injuries. However the prosecution failed to prove that the injuries were grievous in nature.

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Learned trial court held that the injury is caused at the parietal bone which is vital part of the body, therefore, learned trial court found that the injuries were grievous in nature and dangerous to life. The conclusion of the trial court is based on the assumption because the injuries were found on the parietal bone. As per the injury report, there is no fracture in parietal bone. The internal part of the brain is not damaged. The doctor has not opined that the injuries were grievous in nature or dangerous to life. Learned trial court without appreciating the oral or documentary evidence available on record, reached to the conclusion that the injuries are dangerous to life. Moreover,

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the investigating officer searched the house of the accused but no weapon was recovered from his house on the pointing out of appellant. Hence, the judgement passed by the trial court convicting the accused/appellant U/s 307 IPC is not sustainable.

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The impugned judgement and order dated 3.9.2002 is liable to be modified to the extent that the applicant is not guilty under Section 307 IPC.

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The appeal is partly allowed and the guilt of the accused is reduced from section 307 IPC to section 323 IPC. The imprisonment is reduced from seven years to one year U/s 323 IPC instead of section 307 IPC.

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The appellant is on bail. His personal bail bonds are forfeited. The appellant is directed to surrender before the court in compliance of the judgement and order for serving out sentence, if any.

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Let this order be communicated to the lower court for necessary compliance. The lower court record also be sent back.

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(Renu Agarwal,J.)

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Order Date :- 4.8.2023

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Shravan

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Digitally signed by :- SHRAVAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Kishan Yadav v. State of U.P.

Case brief

What is this about?

What did the court decide?

Kishan Yadav v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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