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IN THE HIGH COURT OF ALLAHABAD
Anjani Kumar Mishra, Syed Aftab Husain Rizvi, JJ.
Rajesh Alias Bachchan Yadav – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 820, 831, 1355, 1356, 188 of 2007
Decided On : 14-12-2021
Indian Penal Code, 1860 - Sections 147, 148, 302, 307, 436, 435, 336, 342, 353, 323, 504, 506, 427 - Criminal Law Amendment Act - Section 7 – Offence of Murder – Criminal Intimidation – Assault - Convicted – Appeal against conviction - Alleged that “Applicant is living there with his family since last 30 years - One Brahm Dev Chauhan resident of Ussa tries to take illegal possession of house property alleging it the land of Gram-Sabha - Because of this enmity, previously he has made several attempts to dispossess complainant by inciting villagers - Due to this reason today appellants and others of same village, and several other persons holding lathi-danda, Ballam and bricks/stones in their hands with common object suddenly came at my house abusing and threatening with death - Seeing them I and my uncle Rajesh Yadav ran to save our lives, then they chased and assaulted us - My father and younger brothers ran inside house, then accused-persons shut door from outside and put straw (puwal) etc. at door and set it on fire and sat outside holding lathi-danda and spear in their hands. But anyhow my father came outside room, then accused-persons chased him and assaulted him severely - He fell down and became unconscious. On our cries and seeing flames of fire, Hansnath Yadav, Adalat Yadav, Lalbachan Yadav and other villagers/neighbourers and passers by came there and exhorted the accused-persons then they came on the road abusing and threatening with death. With the help of those persons we pulled out both from flames and saved their lives.
Finding of the court:
From evidence it is proved that accused-appellants, forming an unlawful assembly with common object, set on fire the two houses of the complainant, so their conviction under Section 436 IPC is just and legal - Presence of any outsider at the place of occurrence was possible and on its basis his name may have been mentioned in the FIR. On the aforesaid reasoning, the learned trial court has extended benefit of doubt to the accused Santosh Yadav, also. The findings of the learned trial court are based on appreciation of evidence and cannot be said to be perverse or purely conjecture and surmises. The view taken by the learned trial court cannot be said to be improbable also. It may be a possible view. Applying the proposition of law as discussed above it is clear that there is no sufficient ground to interfere in the aforesaid findings of the trial court and set aside the order of acquittal. The powers of revisional court being limited, the revisional court cannot re-appreciate the evidence in its own way to interfere in the finding of acquittal unless the said finding is either perverse or based on inadmissible evidence or admissible evidence has been ignored by the court. There is no such circumstance in this case. So there is no merit in the revision which is liable to be dismissed - it is clear that convictions of accused-appellants under Sections 302 & 307 IPC are not sustainable in the eye of law, the same is liable to be set aside and all the accused-appellants are liable to be acquitted of the charges under Sections 302 and 307 IPC - conviction and sentence of the appellants accused for charges under Sections 147, 323, 436 & 506 IPC are hereby upheld.
Result: Criminal appeals are partly allowed and Criminal Revision dismissed
JUDGMENT :
Syed Aftab Husain Rizvi, J.
1. Heard Sri V.P. Srivastava, and Sri Dilip Kumar, learned Senior Counsels assisted by Sri Ranjay Kumar, learned counsel appearing for the appellants and learned A.G.A. for the State respondent in criminal appeals and Sri Kamlesh Kumar Tiwari, learned counsel for the Revisionist and Sri Ranjay Kumar, learned counsel for opposite party and learned AGA for the State-respondent.
2. All the aforesaid criminal appeals and Revision have been filed against the judgment and order dated 22.12.2006 passed by the Additional Sessions Judge, court no.7 Ballia in S.T. No. 167 of 2006 (State vs. Basdeo & others) in case crime no.1 of 2006 under Sections 147, 148, 302, 307, 436, 435, 336, 342, 353, 323, 504, 506, 427 IPC and Section 7 of Criminal Law Amendment Act, P.S. Pakari, District-Ballia.
By the impugned judgment and order dated 22.12.2006, the learned trial court has convicted the accused-appellants namely-Brahmdeo Chauhan, Ravindra Chauhan, Rajesh alias Babban Yadav, Arvind Gaur, Kamla Rajbhar, Guddu Rajbhar, Rambhawan Rajbhar, Gama Rajbhar, Jawahir Chauhan, Harish Chand Rajbhar, Ramashankar Rajbhar, Basudeo Rajbhar under Section 147 IPC and sentenced each of them to undergo one year rigorous imprisonment, under Section 436 IPC to undergo life imprisonment and fine of Rs. 1,000/-each, under Section 323 IPC to undergo six months rigorous imprisonment, under Section 307 IPC to undergo seven years rigorous imprisonment and fine of Rs.2000/-each, under Section 302 IPC to undergo life imprisonment and fine of Rs.5000/-each and under Section 506 IPC to undergo five years rigorous imprisonment. In default of payment of fine, each accused will have to serve eight months imprisonment. All the sentences to run concurrently. All the four criminal appeals have been filed by the accused/appellants against the aforesaid judgment and order of conviction and sentences.
By the impugned judgment and order the learned trial court has also acquitted accused namely Suman Rajbhar, Santosh Yadav, Hansnath Gaur, Ranjit Gaur, Sunil Rajbhar, Devendra Rajbhar, Harendra Rajbhar, Bechu Rajhbhar and Mohan Rajbhar from all the charges. Aggrieved by this complainant Rajnikant Yadav has filed the Criminal Revision against the judgment and order of acquittal.
3. During the pendency of the criminal appeal, appellant-accused Kamla Rajbhar has died, consequently, appeal stands abated for him.
4. In brief the prosecution case is that complainant-Rajnikant Yadav gave an application dated 01.01.2006 written by Uma Shankar Yadav at P.S. Pakari District Ballia. In the application, it was alleged that “Applicant-Rajnikant Yadav is original resident of Hathauj, P.S. Khejuri, District Ballia. At present his father after constructing a house in village Ussa P.S.-Pakari, District- Ballia is living there with his family since last 30 years. One Brahm Dev Chauhan resident of Ussa tries to take illegal possession of the house property alleging it the land of Gram-Sabha. Because of this enmity, previously he has made several attempts to dispossess the complainant by inciting the villagers. Due to this reason today on 01.01.2006 at about 6:30 pm, Basudeo Rajbhar, Kamla Rajbhar, Guddu Rajbhar, Panch Ratan Rajbhar, Raj Kapoor Gond, Ram Bhawan Rajbhar, Harish Chand Rajbhar, Gama Rajbhar, Kavindra Nath, Ravindra Nath, Shravan Kumar, Ajay Chauhan, Rajesh alias Babban, Santosh, Arbind Gaur, Raju, Rajesh, Jawahir Chauhan, Brahmdev Chauhan and Ramashankar Rajbhar and others of the same village, and several other persons holding lathi-danda, Ballam and bricks/stones in their hands with common object suddenly came at my house abusing and threatening with death. Seeing them I and my uncle Rajesh Yadav ran to save our lives, then they chased and assaulted us. My father Chandra Dev Yadav and younger brothers ran inside the house, then accused-persons shut the door from outside and put straw (puwal) etc. at the door and set it on fire and sat outside holding lathi-dan
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