State of U. P. vs Baij Nath

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 558

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW BENCH, LUCKNOW)
OM PRAKASH-VII, UMESH CHANDRA SHARMA, JJ.
State of U.P. – Appellant
Versus
Baij Nath And Others – Respondents
Government Appeal No.1709 of 1984
Decided on : 07-07-2022.

Advocates:
Advocate Appeared:
For the Appellant : Dga
For the Respondent: V.C.Katiyar, Dhirendra Kumar Srivastav, Pushpa Varma, V.Singh, Virendra Singh

Headnote:
Indian Penal Code, 1860 – Section 313, 307 – Causing miscarriage without woman’s consent – Attempt to murder – Instant appeal has been filed against judgment and order passed by Assistant Sessions Judge, in Sessions Trial arising out of Case Crime No. 227 of 1981, under Section 307 I.P.C., whereby, deceased accused and alive accused-respondent have been acquitted – Held, In case Supreme Court pointed out reiterating the cardinal principle of law that where facts placed before Court point out two views, one of guilt of accused and another to his innocence, Court should give benefit of view, which is favorable to accused – In this case it has been proved that witnesses had not seen and recognize the accused persons committing offence on spot – Therefore, it cannot be said that it is a case of direct evidence – This Court is of view that 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 – In all attending circumstances on basis of evidence, lower court has rightly come to conclusion that prosecution has not been able to prove case beyond reasonable doubt, therefore, trial court has rightly acquitted accused persons – This Court is also of considered view that there is no sufficient evidence and attending circumstances to interfere with judgment of acquittal of lower court, therefore this appeal lacks merit and is hereby liable to dismissed – Appeal is dismissed.

JUDGMENT :

Umesh Chandra Sharma, J.

1. 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, X-ray 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 Paggal were broke