Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ALLAHABAD HIGH COURT
Om Prakash-VII and Umesh Chandra Sharma, JJ.
State of U.P. – Appellant
versus
Baij Nath and Ors. – Respondents
Government Appeal No.1709 of 1984
Decided on 7.7.2022

Counsel for the Parties:
For the Appellant: Dga
For the Respondents:V.C. Katiyar, Dhirendra Kumar Srivastav, Pushpa Varma, V. Singh and Virendra Singh, Advocates

IMPORTANT POINTS
(1) Burden of proof lies on parties who substantially asserts affirmative of issue and not upon party who denies it – In criminal cases it is for prosecution to bring guilt home to accused.
(2) About injured witness, there is presumption that he was present on the spot but there is no presumption that he is deposing true facts.

Headnote:
Indian Penal Code, 1860 – Section 307 – Criminal Procedure Code, 1973 – Section 378 – Attempt to murder – Appeal against acquittal – Burden of proof lies on parties who substantially asserts affirmative of issue and not upon party who denies it – In criminal cases it is for prosecution to bring guilt home to accused – Accused is not bound to establish his innocence for reason that there is no burden laid on accused to prove his innocence and it is sufficient if he succeeds in raising a doubt as to his guilt – If victim had actually recognised accused he would have told people of crowd that such people had attacked upon him – Statement of people residing nearby were not recorded nor they were examined in court – Both witnesses of fact are real brother and interrelated and inimical witnesses – About injured witness, there is presumption that he was present on the spot but there is no presumption that he is deposing true facts – An independent witness did not come forward to support prosecution case – Witnesses have not been able to recognize accused persons and accused persons were named in F.I.R on account of enmity – It is a case based on circumstantial evidence in which all chains of circumstances are not completed, except only one ingredient that is motive, no other ingredient such as last-seen or any extra-judicial confession or any recovery has been proved – Trial court has rightly acquitted accused persons – Appeal dismissed. (Paras 11, 14, 18, 23 and 24)
Result: Appeal dismissed.

JUDGMENT

Umesh Chandra Sharma, J.—At the outset, it is clarified that accused-respondent no. 2 – Saggal and respondent no. 3 Bhaggu have died during the pendency of the appeal, thus the appeal filed against them have been abated vide order dated 08.04.2022, henceforth the Court is proceeding to decide the appeal against surviving respondent.

2. Heard Shri Ratan Singh, learned A.G.A. for the State, Shri Virendra Singh, learned counsel for the accused-respondent and gone through the entire court record with the assistance of the respective counsels.

3. The instant appeal has been filed against the judgment and order dated 02.03.1984 passed by Assistant Sessions Judge, Mirzapur, in Sessions Trial No. 156 of 1982 arising out of Case Crime No. 227 of 1981, under Section 307 I.P.C., whereby, the deceased accused persons Bhaggu and Saggal and alive accused-respondent have been acquitted.

4. In brief the State of U.P. has pleaded in appeal that judgment and order of acquittal is wholly illegal and erroneous and against the law. Learned Trial Court has not assessed the prosecution evidence appropriately and has not considered the facts and circumstances of the case and material on record. The alleged offence took place on 02.11.1981 at 07:30 P.M. and the F.I.R. was lodged on the same night at 10:00 A.M. Blood was recovered from the Ekka and pieces of bomb and splinter etc. were also recovered. The prosecution has examined the following 08 witnesses, to prove the prosecution version:- (i) P.W.-1, Paggal, informant witness (ii) P.W.-2, Gulab, informant (iii) P.W.-3, Dr. A. D. Singh (iv) P.W.-4, Dr. K.N. Srivastava, (v) P.W.-5, Dr. C.P. Singh (vi) P.W.-6, S.I. Sarju Prasad Chaudhari, I.O. (vii) P.W.-7, Girija Shanker Tripathi, Head Constable and (viii) P.W.-8, Kunwar Bind Narayan, Pharmacist. There was no occasion to acquit the accused persons, therefore, the impugned judgment and order be set aside and the appeal be allowed and the accused-respondent, Baijnath be convicted and sentenced in accordance with law.

5. In brief facts of the case are that complainant - Gulab moved an application on 02.11.1981 to lodge the F.I.R. with the allegation that his brother Paggal used to drive Ikka and he was going on Ikka with his brother from Mirzapur city to his house; Amarnath Nai was also sitting on the said Ikka: At about 07:30 P.M., when all the three persons sitting on the Ikka reached at Railway crossing on Aam Ghat, three accused persons suddenly came and threw bombs on his brother Paggal. Miscreants were seen and recognized in the head light of truck. Upon hearing the noise of explosion of bomb, witnesses Figgal S/o unknown and so many other persons reached on the spot. Accused persons escaped. Paggal was seriously injured as well as Amarnath Nai has also received injuries. Few parts of Ikka were broken. There were inimical terms between the Paggal and accused persons due to some criminal cases as a result of which the accused persons inflicted bomb injuries with intention to kill him. The informant admitted the victim in the hospital and went to police station to lodge the F.I.R. One Jai Prakash has scribed the F.I.R. This information (Tahrir) has been exhibited as Exhibit Ka-I.

6. Informant Paggal was medically examined on the same day at 09:00 P.M. in District Hospital Mirzapur where the Doctor found 08 injuries; out of which 06 were lacerated and 02 were abrasion on the body of the victim. A radiological report was also prepared which is exhibited as Exhibit Ka-3, proved by Dr. K.N. Srivastava whereas the injury report of the injured Paggal has been proved by Dr. C.P. Singh as Ex. Ka-2, who opined that all injuries have incurred by the bombastic attack. He deposed that it appears that the attack was done from the front side.

7. Since the injuries nos.1 & 2 were serious in nature, therefore, Xray was advised by the Doctor. P.W.-4, Dr. K.N. Srivastava, Radiologist found in X-ray that libera and fibula bones of the right leg of Pagga