State of U.P v. Counsel for

Sri J.B. Singh, learned AGA-Ist for State and perused the record.

3. At the outset, it may be mentioned that during pendency of this appeal, appellant no.1 Abdul Gaffar, appellant no.2 Chhotey Miyan, appellant no.4 Shahzade and appellant no.6 Babu Khan have passed away and on behalf of those appellants, the appeal has been abated. Now, this appeal is confined only in respect of appellant nos.3, 5 & 7, namely, Ramzani, Nawab & Baker Ali respectively.

4. Learned counsel for the appellants submits that finding of conviction of appellants recorded by the trial court is not being disputed but in view of attending facts particularly the fact that this appeal is pending since the year 1983, the sentence awarded by the trial court may be reduced to the period already undergone. It was stated that the incident took place on 28.05.1977 and that four of the appellants-accused have already been passed away and that appellants have remained in custody for about eight days. After passing of so much long period, no useful purpose would be served by sending the 2 CRLA No. 1581 of 1983 appellants to jail at this stage. The appellants are in their seventies. Referring to these facts it was submitted that the sentence awarded by the trial Court may be reduced to the period already undergone.

5. Learned AGA has opposed the appeal and submitted that conviction of appellants is based on evidence, however in view of the fact that incident took place about 48 years back appropriate sentence may be awarded.

6. I have considered rival submissions and perused the record.

7. The instant case relates to an incident date 28.05.1977. Though, the finding of conviction is not being disputed, however I have gone through the record. As per prosecution version on 28.05.1977 at about 04.00 PM at village Gopalpur, the appellants-accused and co-accused persons assaulted Jagat Narayan and Ramvilas and caused injuries to them. Jagat Narayan reported the matter to police vide tahrir exhibit ka-4 and consequently first information report was registered on 28.05.1977 vide exhibit ka-3. Both the injured were medically examined. The investigating officer recorded statements of witnesses and prepared site plan of the spot. It appears that some of the accused-appellants have also sustained injuries and a cross case was registered from side of accused persons against injured persons. After investigation police have submitted final report with conclusion that incident is not established. Learned Magistrate rejected the final report and summoned the appellants-accused and co-accused persons.

8. The appellants-accused were charged for offence under Section 147, 325/149,323/149 IPC. The appellants-accused pleaded not guilty and claimed trial.

9. In support of its case, prosecution has examined 8 witnesses. After evidence, accused-appellants were examined under Section 313 Cr.P.C., wherein they have denied prosecution evidence and claimed that they have been falsely implicated. However, no oral evidence was led in defence.

10. After hearing and analysing evidence on record, accused-appellants were convicted by the trial court under Section 147 and 325/ 149 IPC and sentenced as stated in paragraph no. 1 of this judgment. Being aggrieved of the same, accused-appellants have preferred the present appeal.

11. PW-3 Jagat Narayan is the complainant as well as injured of the case. He has clearly supported prosecution version and stated that appellants-accused 3 CRLA No. 1581 of 1983 and co-accused have assaulted him and caused injuries. Close scrutiny of evidence shows that PW-3 Jagat Narayan is complainant and injured witness and he has made clear and cogent statement. He has been subjected to cross- examination but no such fact could emerge in his statement so as to affect his credibility or could create any doubt about the authenticity of his version. PW-3 Jagat Narayan has stood the test of cross-examination and no major contradiction or inconsistency could emerge. His testimony is corroborated by other witnesses. It is well settled that if testimony of sole witness, particularly that of injured witness, inspires confidence, conviction can be based upon it. In Jarnail Singh Vs. State of Punjab (2009) 9SCC 719, the Supreme Court reiterated the special evidentiary status accorded to the testimony of an injured accused. It was held that the fact that witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon. Similar view was expressed in the case of Krishan v State of Haryana, (2006) 12 SCC 459. With respect to the evidence of victim, the Supreme Court in Criminal Appeal Nos. 513-514 of 2014 (decided on 09.01.2017) Baleshwar Mahto & Anr. v. State of Bihar & Anr., has reiterated the law as under : "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built- in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC

Sri J.B. Singh, learned AGA-Ist for State and perused the record.

3. At the outset, it may be mentioned that during pendency of this appeal, appellant no.1 Abdul Gaffar, appellant no.2 Chhotey Miyan, appellant no.4 Shahzade and appellant no.6 Babu Khan have passed away and on behalf of those appellants, the appeal has been abated. Now, this appeal is confined only in respect of appellant nos.3, 5 & 7, namely, Ramzani, Nawab & Baker Ali respectively.

4. Learned counsel for the appellants submits that finding of conviction of appellants recorded by the trial court is not being disputed but in view of attending facts particularly the fact that this appeal is pending since the year 1983, the sentence awarded by the trial court may be reduced to the period already undergone. It was stated that the incident took place on 28.05.1977 and that four of the appellants-accused have already been passed away and that appellants have remained in custody for about eight days. After passing of so much long period, no useful purpose would be served by sending the 2 CRLA No. 1581 of 1983 appellants to jail at this stage. The appellants are in their seventies. Referring to these facts it was submitted that the sentence awarded by the trial Court may be reduced to the period already undergone.

5. Learned AGA has opposed the appeal and submitted that conviction of appellants is based on evidence, however in view of the fact that incident took place about 48 years back appropriate sentence may be awarded.

6. I have considered rival submissions and perused the record.

7. The instant case relates to an incident date 28.05.1977. Though, the finding of conviction is not being disputed, however I have gone through the record. As per prosecution version on 28.05.1977 at about 04.00 PM at village Gopalpur, the appellants-accused and co-accused persons assaulted Jagat Narayan and Ramvilas and caused injuries to them. Jagat Narayan reported the matter to police vide tahrir exhibit ka-4 and consequently first information report was registered on 28.05.1977 vide exhibit ka-3. Both the injured were medically examined. The investigating officer recorded statements of witnesses and prepared site plan of the spot. It appears that some of the accused-appellants have also sustained injuries and a cross case was registered from side of accused persons against injured persons. After investigation police have submitted final report with conclusion that incident is not established. Learned Magistrate rejected the final report and summoned the appellants-accused and co-accused persons.

8. The appellants-accused were charged for offence under Section 147, 325/149,323/149 IPC. The appellants-accused pleaded not guilty and claimed trial.

9. In support of its case, prosecution has examined 8 witnesses. After evidence, accused-appellants were examined under Section 313 Cr.P.C., wherein they have denied prosecution evidence and claimed that they have been falsely implicated. However, no oral evidence was led in defence.

10. After hearing and analysing evidence on record, accused-appellants were convicted by the trial court under Section 147 and 325/ 149 IPC and sentenced as stated in paragraph no. 1 of this judgment. Being aggrieved of the same, accused-appellants have preferred the present appeal.

11. PW-3 Jagat Narayan is the complainant as well as injured of the case. He has clearly supported prosecution version and stated that appellants-accused 3 CRLA No. 1581 of 1983 and co-accused have assaulted him and caused injuries. Close scrutiny of evidence shows that PW-3 Jagat Narayan is complainant and injured witness and he has made clear and cogent statement. He has been subjected to cross- examination but no such fact could emerge in his statement so as to affect his credibility or could create any doubt about the authenticity of his version. PW-3 Jagat Narayan has stood the test of cross-examination and no major contradiction or inconsistency could emerge. His testimony is corroborated by other witnesses. It is well settled that if testimony of sole witness, particularly that of injured witness, inspires confidence, conviction can be based upon it. In Jarnail Singh Vs. State of Punjab (2009) 9SCC 719, the Supreme Court reiterated the special evidentiary status accorded to the testimony of an injured accused. It was held that the fact that witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon. Similar view was expressed in the case of Krishan v State of Haryana, (2006) 12 SCC 459. With respect to the evidence of victim, the Supreme Court in Criminal Appeal Nos. 513-514 of 2014 (decided on 09.01.2017) Baleshwar Mahto & Anr. v. State of Bihar & Anr., has reiterated the law as under : "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built- in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC