State of U.P v. Dwarika Das and others) whereby the on 16 Apr 2025 — Criminal Case No. 113 of 1982

Judgment

1. This government appeal has been preferred by State of the U.P. against the judgment and order dated 08.02.1984 passed by 7th Munsif Magistrate, Varanasi in Criminal Case No. 113 of 1982 (State of U.P. Vs. Dwarika Das and others) whereby the accused-respondents Dwarika Das, Kanhaiya Lal, Ballabh Das (Balbhadra Das) and Brindaban Das have been acquitted of the charges levelled against them under Sections 323, 324, 506 IPC.

2. During the pendency of the present appeal, it was reported that the accused-respondent No.4/Brindaban Das S/o Hari Kishun Das expired. His appeal stands dismissed as abated vide order dated 26.08.2021 passed by another Bench of this Court. The appeal thus survives only for the accused- respondents Nos. 1/Dwarika Das, 2/Kanhaiya Lal and 3/Balbhadra Das (Ballabh Das).

The trial court records have been received as has been reported by the office in its report dated 10.01.2013, the same are tagged with the records of the present appeal.

4. Heard Sri Ajay Singh, learned AGA-I for the State-appellant, Sri Ram Prakash Shukla, Advocate appearing for the accused respondents Nos. 1, 2 and 3, perused the records of the present appeal and also the trial court records. 2

5. The facts of the case are that on 25.12.1980 at about 08:15 pm in the house of the informant Brijpal Das identified as house No. K-26/2 Rangila Das Phatak, Police Station Kotwali, District Varanasi, the accused persons who were having enmity with regard to its partition with an intention to take possession of some rooms came there in which Dwarika Das was armed with a knife, Kanhaiya Lal was with a danda and Brindaban Das and Balbhadra Das (Ballabh Das) were armed with hammer and tried to break the lock of the door who were stopped on which Dwarika Das assaulted the first informant with a knife and Kanhaiya Lal with a danda. To save him his brother Mukund Das and mama Mathura Das, ladies of the house and neighbour Vijay Kumar came there and tried to save him from the assault on which there was a scuffle with his brother and mama also and the accused persons while committing marpeet ran out of the house while extending threats of life. His report be lodged and action be taken. An application dated 25.12.1980 to the said effect was given by him at the concerned police station which is marked as Exb: Ka-1 to the records.

6. On the basis of the said application, a First Information Report was lodged as Case Crime No. 313 of 1980, under Sections 324, 506 IPC, P.S. Sadar, District Varanasi on 25.12.1980 at 21:45 hours. The chik FIR is marked as Exb: Ka-5 to the records.

7. The site plan of the place of occurrence was prepared on 10.01.1981 which is marked as Exb: Ka-3 to the records.

8. Brijpal Das was medically examined on 25.12.1980 at 09:32 pm by Dr. P.D. Singh the Emergency Officer, SSPG Hospital, Varanasi and he was found to have received eight injuries in all which reads as under: “i) Incised wound 1cm x ¼ cm x bone deep on left eyebrow. ii) Incised wound 1cm x ¼cm x bone deep on right side cheek 1cm below right lower eyelid. iii) Abrasion 1/2cm x 1/4cm on right side face just below right eye. 3 iv) Lacerated wound 2cm x 1cm on left side nose upper part septum fracture. Advised x-ray. v) Lacerated wound 1cm x 1/4cm x bone deep right side forehead 2cm above right eyebrow. vi) Contusion 1cm x 1cm on left side upper lip vii) Abrasion 1cm x 1cm on lower lip. viii) Complaint of pain back of both side chest.”

9. The injury Nos.I and II were opined to have been caused by sharp pointed weapon, the injury no.IV was kept under observation and referred to the ENT surgeon for expert opinion. There is no opinion of the doctor with regards to other injuries. The said injury report is Exb: Ka-2 to the records.

10. The investigation concluded and a charge sheet No. 7 dated

11.01.1981 was filed under Sections 324, 323, 504, 506 IPC against the accused persons. The same is marked as Exb: Ka-4 to the records.

11. Charges in the matter were framed by Metropolitan Magistrate 7th, Varanasi against Brindaban Das and Balbhadra Das (Ballabh Das) under Section 324 read with Section 34 IPC, Section 323 read with Section 34 IPC and Section 506 IPC, against Kanhaiya Lal under Section 323 IPC, Section 324 read with Section 34 IPC and 506 IPC and against Dwarika Das under Section 324 IPC, Section 323 read with Section 34 IPC and 506 IPC vide order dated 17.01.1984. The accused pleaded not guilty and claimed to be tried.

12. In the trial, Brijpal Das the first informant was examined as PW-1, Mukund Das as PW-2, Mathura Das PW-3, Panna Lal as PW-4 and Dr. P.D. Singh as PW-5.

13. The accused in their statements recorded under Section 313 Cr.P.C. stated of false implication and of their being assaulted who have received 4 injuries and were medically examined. Vijay Kumar was examined as DW-

14. The trial court after recording of the entire evidence came to the conclusion that since the accused persons had also received injuries in the matter it appears that there was a marpeet between them and the prosecution witnesses are not truthful, and thus acquitted the accused persons of the charges levelled against them. The accused also received injuries in the matter. The details of the injuries received by the accused are as under: (I) Dwarika Das was examined on 25.12.1980 at 08:30 pm by Dr. P.D. Singh the Emergency Medical Officer, SSPG Hospital, Varanasi. “i) Linear abrasion 5cm long left side fore head 3cm above left eyebrow. ii) Abrasion 1/4cm x 1/4cm on left side nose in middle. iii) Abrasion 1/2cm x 1/4cm on below right index finger middle part. iv) Abrasion 1/2cm x 1/4cm on back and middle of right little finger. v) Abrasion 1/4cm x 1/4cm on back of right ring finger middle part. vi) Abrasion 1/2cm x 1/2cm on back and upper part left leg.” The opinion is as follows: “Injuries simple in nature caused by blunt weapon.” The same is Exb: Kha-1 to the records. (II) Kanhaiya Lal, examined on 26.12.1980 at 09:58 pm by Dr. P.D. Singh the Emergency Medical Officer, SSPG Hospital, Varanasi. “i) Abraded contusion 4cm x 3cm on right clavicle an inner thigh of it. ii) Contused swelling 2cm x 1cm on left index finger in distal phalanx. iii) Contused swelling 7cm x 5cm on left leg in front on upper part. iv) Contusion 9cm x 1.5cm on right leg outer part upper part. v) Contusion 12cm x 11cm on right thigh lower part outer aspect. 5 vi) Abraded contusion 10cm x 5cm on right leg middle part. vii) Contusion 5cm x 2cm on inner aspect of right wrist. viii) Contused swelling 2cm x 1cm on proximal phalanx of right little finger.” The opinion is as follows: “All injuries are simple caused by blunt object.” The same is Exb: Kha-2 to the records. (III) Ballabh Das (Balbhadra Das), examined on 26.12.1980 at 10:09 pm by Dr. P.D. Singh the Emergency Medical Officer, SSPG Hospital, Varanasi. “i) Contused swelling 17cm x 9cm on dorsum of right hand including right fingers, index, middle and ring finger of palm. Inj KUO and advised for x-ray. ii) Contused swelling 13cm x 11cm on right thigh lateral part on front. iii) Contusion 2cm x 1cm on left elbow joint on back.” The opinion is as follows: “The injury No.1 was kept under observation and advised x-ray and rest were were simple caused by blunt object.” The same is Exb: Kha-3 to the records. (IV) Brindaban Das, examined on 26.12.1980 at 10:15 pm by Dr. P.D. Singh at SSPG Hospital, Varanasi. “i) Contused swelling with abrasion 5cm x 3cm on proximal phalanx of right index finger KUO advised for x-ray. ii) Contused swelling 3cm x 2cm on distal phalanx of right index finger. iii) C/o pain on left hand. iv) Contused swelling 7cm x 4cm on dorsum of left hand. v) Contused swelling 9cm x 6cm on right upper arm in deltoid region. vi) Contusion 11cm x 1.5cm on left thigh lower part. 6 vii) Contusion 10cm x 2cm on left knee of upper part. The opinion is as follows: “All injuries are simple in nature except injury no.1 KUO advised for x-ray and caused by blunt object.” The same is Exb: Kha-4 to the records.

15. The prosecution thus stands that both the sides have received injuries and were examined by the same doctor. The incident in the matter is of 25.12.1980 and as of now 45 years have passed.

16. Learned counsel for the State-appellant submitted that the view of the trial court in acquitting the accused-respondents is perverse since in the present matter Brijpal Das the first informant had received injuries which were noted to be eight in number but the trial court did not consider the same in its true perspective. It is submitted that looking to the injuries of Brijpal Das the first informant and his version given before the trial court, the present case is one of those in which the judgment and order of the trial court deserves to be set aside and the accused deserve to be punished.

17. Per contra, learned counsel for the accused-respondents submitted that the view taken by the trial court is a just and a proper view inasmuch as the trial court has even considered the fact that all the four accused persons have received injuries and were medically examined. It is submitted that the trial court has passed order after meticulously examining the evidence and the material on record. It is submitted that since the view taken by the trial court is a probable view, the same should not be interfered into and the judgment and order of the trial court should not be set aside. It is submitted that the present appeal is without any substance and deserves to be rejected.

18. After having heard learned counsels for the parties and perusing the records, it is evident that in the present matter although the first informant is reported to have received injuries but the four accused persons had also 7 received injuries and were medically examined by the same doctor who has examined the injury of the first informant. The prosecution story with regards to the receiving of injuries by the accused persons is totally silent. The trial court has examined the evidence on record and given its finding which are cogent and reasonable. The present government appeal is against acquittal. As per settled principles of law the judgment and order of acquittal should necessarily be interfered into, if there are two reasonable views possible in the present matter. View taken by the trial court as per the records and evidence produced is a probable view. No ground is made out to interfere in the matter.

19. In view of the same looking to the above facts and circumstances of the case, the present government appeal is rejected.

20. The bail bonds filed by the accused-respondents is hereby cancelled and the sureties shall stand discharged.

21. Office to communicate this order to the concerned trial court within two weeks. The trial court records be also sent back to the trial court within the aforesaid period. Order Date :- 16.04.2025 Akbar (Samit Gopal,J.) MOHAMMAD AKBAR High Court of Judicature at Allahabad