AJAY SHAHI AND 3 OTHERSversusSTATE OF U.P. AND ANR.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL REVISION No. - 1787 of 2013

Ajay Shahi And 3 Others
                                                            .....Revisionist(s)
                                   Versus
State Of U.P. And Anr.
                                                                 .....Opposite
                                                                       Party(s)

Counsel for Revisionist(s)    : Kamlesh Kumar Dwivedi, S.K. Dwivedi,
                                Santoosh Kumar Dwivedi, Satyendra
                                Narayan Singh
Counsel for Opposite Party(s) : Bhupesh Kumar Singh, Govt. Advocate,
                                Umesh Vats

Court No. - 85
                 HON'BLE JAI KRISHNA UPADHYAY, J.

1. This criminal revision has been preferred by the accused revisionists
against the judgment and order dated 5/6.6.2013 passed by the Additional
Sessions Judge (Ex-Cadre), Court No.26, Deoria in Criminal Appeal No. 45
of 2012 (Ravindra Kushwaha vs. State of U.P. and others) arising out of case
crime no. 65 of 2006 convicting and sentencing the appellants for the
offence punishable under Sections 323, 452 , 504, 506 of IPC.

2. The factual matrix of the case, as unfolded by the informant Ravindra
Kushwaha in the First Information Report (in short 'FIR'), is that on
2.3.2006 at around 11.00 p.m. while he was sleeping in his house after
having dinner, Ajay Shahi, Jalaluddin, Munna Kushwaha and Rajendra Rai
came and started getting the door of his house opened and ultimately they
forcibly entered the house by slamming the door and started abusing, pushed
him and throwing him on the ground started hitting him with kicks, punches
and hockey sticks. When the informant protested, they told that he had
opposed in the elections, they will not leave him alive. On making noise,
informant's uncle Baburam Kushwaha, brother Hareram and other people
coming, the accused persons ran away giving threats. Since it was quite late
in the night due to which next day somehow got his medical examination
done at Deoria.

3. On 4.3.2006, at 6.30 p.m., FIR was lodged and G.D. entry was also made.
Investigation started. The Investigating Officer visited the place of
occurrence, prepared a site plan and other papers. After completing the
necessary formalities, the Investigating Officer submitted charge sheet in the
matter.
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4. The accused persons appeared and they were charged under Sections
323/34, 452, 504, 506 of IPC. They denied the charges, pleading not guilty
and claimed to be tried.

5. The trial proceeded and in order to prove its case the prosecution
examined six witnesses, namely, P.W.1 Ravindra Kushwaha, P.W.2
Baburam, P.W.3 Hareram, P.W.4 S.I. Mrityunjay Pathak, P.W.5 H.C.
Shyammohan and P.W.6 Dr. Rahmat Ali.

6. In defence, no evidence has been produced.

7. As for documentary evidence, documents / papers as exhibited have been
proved.

8. P.W.1 - Ravindra Kushwaha, informant of the case, has stated that the
incident happened on 2.3.2006, at 11.00 p.m. While he was going to sleep
after eating food, Ajay Shahi, Jalaluddin Khan, Munna Kushwaha and
Rajendra Rai came to his door by vehicle and pushing the gate of his house,
they entered the house. Pulling from the bed, all four persons made him fall
down and hit with a hockey (stick) and kicks and punches. On the noise,
brother Hareram and uncle Baburam Kushwaha came and intervened. The
accused ran away hearing the noise. Next day morning he went to Deoria
hospital and got his injuries examined and thereafter went to the police
station and lodged the FIR. In cross-examination he has stated that during
the B.D.C. election, the accused had never beaten him and on the night of
the incident they suddenly came to beat. Neither he was a representative nor
a campaigner for any candidate for the Block Pramukh. Ram Iqbal Yadav
and Ajay Shahi were candidates for the Block Pramukh. He also stated that
prior to this incident, he had no enmity with the accused. Being a matter of
night, out of fear people did not come. He also stated that there were four
assailants and all of them had a hockey (stick) in their hands and they started
beating him with hockey (stick) together. The hockey (stick) injury was
inflicted on the arm and leg. On the day of getting the medical examination
done, he went to Police Station Baghauchghat via home to get the report
lodged on the same day.

9. P.W.2 - Baburam, who is the uncle of the informant, has stated that the
incident is of the night of 2nd March 2006 at about 11.00 p.m., He had a
timber shop towards the west of Ravindra's house. On the day of the incident
he slept at the timber shop. From inside Ravindra's house children started
crying and there was a noise then he and Hareram reached there. He further
stated that when he reached there, he saw that Ajay Shahi, Jalaluddin,
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Munna and Raghavendra were beating Ravindra with kicks, punches and
hockey (stick). He also stated that when we reached, the accused went
away in their vehicle. In cross-examination he has stated that at the time of
the incident, the night was dark, apart from him and Hareram, no one else
from nearby reached the spot of the incident. He further states that hey were
beating with kicks, punches and hockey (stick) and all four accused had a
hockey (stick) in their hands. At the time of the incident, there was no
electricity line.

10. P.W. 3 - Hareram Kushwaha, who is said to be an eyewitness witness,
has stated that it has been a little over a year since the incident happened, it
was 11.00 p.m., Ravindra Kushwaha, when Ravindra started screaming at
night, then running he and his uncle Baburam reached the place of
occurrence and saw that Ajay Shahi, Jalaluddin Khan, Munna and Rajendra
Rai were beating Ravindra with a hockey (stick). The electricity was on and
in that same light he saw and recognized the accused persons. In cross-
examination, this witness has stated that the accused Ajay had a hockey
(stick) in his hand, the rest of the accused were holding a stick (danda).
When Ravindra was getting beaten, his wife was screaming. Blood was
falling from Ravindra's head and mouth. Ravindra was wearing a vest
(baniyan) and lungi at that time.

11. P.W.04 - Mrityunjay Pandey Sub-Inspector has stated that on date
4.3.2006 he received the investigation of the matter. He further stated that in
the statement of Section 161 Cr.P.C. the witnesses have stated that the
accused themselves had come in a Jeep or Qualis vehicle but in the site
inspection he did not find any track of a vehicle coming and going on the
spot. He also stated that all four accused were holding a hockey (stick), such
a statement was not given by the complainant or the witnesses in the
statement under Section 161 CrPC. No witness had told me about the source
of electricity.

12. P.W. 5 - Head Constable Shyam Mohan Tripathi proved the lodging of
FIR and preparation of G.D.

13 P.W.6 - Dr. Rahmat Ali stated that that he had physically examined
Ravindra Kushwaha and found the five injuries on his body in the form of
contusion, abrasion and complaint of pain. In his opinion all the injuries
were simple.

14. After the closure of prosecution evidence, statements of accused
revisionists under Section 313 CrPC were recorded in which they denied the
prosecution case and stated that they have been falsely implicated due to
political rivalry.
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15. The Trial court found that prosecution had not fully succeeded in
bringing home the charges against the accused revisionists beyond
reasonable doubt, therefore, it acquitted them from the charges but the
appellate Court vide its judgment and order dated 5/6.6.2013 in Criminal
Appeal No. 45 of 2012 (Ravindra Kushwaha vs. State of U.P. and others)
arising out of case crime no. 65 of 2006 convicted and sentenced the
accused revisionists, as mentioned above. Hence this criminal revision.

21. At the outset, it is submitted by the learned counsel for the revisionist
that revisionist no. 2 - Jalal Uddin has expired and in this regard a death
certificate dated 23.7.2021 has been brought on record. Hence, revision
against him stands abated. Now the surviving revisionists are Ajay Shahi -
revisionist no.1, Munna Kushwaha - revisionist no.3 and Rajendra Rai -
revisionist no.4.

22. I have heard Shri K.K. Dwivedi, learned Counsel for revisionists and
Shri Sunil Kumar, learned A.G.A appearing for the State at length. None is
present for the informant even in the revised call.

23. Learned counsel appearing for the surviving revisionists submitted that :

i). Prosecution case is false and fabricated. FIR was lodged belatedly
without any plausible explanation regarding the delay.

ii) There are material contradictions in the statements of prosecution
witnesses.

iii). There was no source of light at the place of occurrence in which the
witnesses have identified / recognized the miscreants.

iv). Injuries received by the injured are simple in nature.

v) Motive taken by the prosecution has not been proved.

vi) All the witnesses of the fact are interested witnesses.

vii) The appellate court has committed illegality in convicting and
sentencing the revisionists. The findings recorded by the appellate court in
the impugned judgment suffer from infirmity, illegality and perversity
warranting interference by this Court.

21. On the other hand, supporting the impugned judgment, it has been
submitted by the learned A.G.A. for the State that there is sufficient
evidence on record that the revisionists have actively participated in the
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crime. There was strong motive to commit the crime. It was also submitted
that there was no reason to falsely implicate the accused persons in this case
by the prosecution witnesses. There is no major contradiction or infirmity in
the statements of witnesses. The conviction is based on evidence and there
are no reasons to interfere with the same.

22. We have considered the arguments of the learned counsel for the parties.
We have also carefully examined the trial court records, the statements of
the prosecution witnesses and the documents filed in this case.

23. So far as the submission that the First Information Report was lodged
belatedly without any plausible explanation regarding the delay is
concerned, in the written complaint the incident is shown to be of dated
2.3.2006 at 11.00 p.m and and the FIR was lodged on 4.3.2006 at time 6.30
p.m. The distance of the police station from the place of the incident is
shown to be merely four kilometers in the Chik FIR. PW-1 informant has
stated that next day morning he went to Deoria hospital and got his injuries
examined and thereafter went to the police station and lodged the FIR. In
this way regarding the delay, there is force in the argument of the learned
counsel for the revisionist. An unexplained delay in lodging a FIR weakens
the prosecution's case and raises serious suspicion of fabrication or
afterthought. In the matter of Nallabothu Ramulu alias Seetharamaiah and
others vs. State of Andhra Pradesh with Chalmala Veeraiah vs. State of
Andhra Pradesh, 2014 Cri. L. J. 2487 (Supreme Court) where alongwith
other infirmities circumstances regarding the F.I.R. were found suspicious,
the Hon'ble Apex Court held that the whole prosecution story was doubtful.

24. The next argument of the learned counsel for the revisionists is that the
prosecution has failed to prove the motive. PW-1-informant in his cross-
examination has stated that prior to this incident, he had no enmity with the
accused. Similarly, P.W.-3 has also said in his evidence that to this day he
does not know why this incident occurred. In this way, no motive for the
incident could be proved by the prosecution.

25. As regards the submission that no independent witness has been
produced by the prosecution and all the witnesses of fact are interested
witnesses and they are the brother and uncle of the informant, in the
evidence of P.W.-2 Baburam, it has come that he is the uncle of the
complainant of the case and in the evidence of P.W. 3 Hareram, it has come
that he is the brother of the complainant of the case Ravindra, apart from
these two witnesses, no other witness of fact has been produced and
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examined by the prosecution whereas in the evidence it has come that at the
time of the incident, the wife of the informant of the case was present on the
spot and she also intervened and on her screaming voice, people from the
neighborhood came and a crowd gathered and seeing the said crowd only,
the accused fled away from there. The wife of the informant, the most
important witness of this matter, has not been examined and no reason for
not getting her examined has been mentioned either, not getting any
independent witness examined in relation to the incident also puts an adverse
effect on the prosecution case.

26. Moreover, the statements given by the witnesses of fact are self-
contradictory. In the evidence of P.W.-3 it has come that on the scene of
crime at the time of the incident electricity was on, contrary to this in the
evidence of P.W. -2 it has come that at the time of the incident the night was
dark and there was no electricity line. He further stated that he had heard the
voice of the accused whereas further in the evidence of this same witness it
has come that "at the time of the incident electricity was on and in that same
light saw and recognized the accused persons." Thus there is mutual
contradiction on this point in the evidence of both the above important
witnesses of fact. P.W.-2 has stated in his evidence that at the time of the
incident Ravindra was wearing pajama and shirt whereas by P.W. 3 in his
cross-examination has said that Ravindra was wearing vest (baniyan) and
lungi at that time, thus there is difference in the above statements of the main
witnesses of fact i.e. P.W. 2 and P.W.3 and these contradictions make their
presence at the incident itself doubtful.

27. As far as the question of injuries sustained by injured Ravindra
Kushwaha is concerned, in the First Information Report it has been stated
about four persons have assaulted him continuously with hockey (stick) and
stick (danda) whereas in the injury report a total of five injuries have been
shown on the body of the injured and all the said injuries are of simple
nature.

28. Hence, from the above analysis it is clear that the FIR was lodged with
an excessive delay, why and under what circumstances this delay occurred
there is no clear explanation for this, regarding the light / illumination at the
place of incident too the situation is doubtful and in such a situation the
identification of the accused persons is also doubtful, there is contradiction
in the statements of the witnesses regarding the clothes on the body of the
injured at the time of the incident, no other such evidence is available on the
file which would support the prosecution case. Therefore, keeping in view
the above facts, after analyzing the evidence available record, this court is of
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                                    the opinion that the prosecution has miserably failed to prove the charges
                                    under Section 323/34, 504, 506, 452 I.P.C. framed against the accused
                                    persons beyond reasonable doubt. The impugned judgment and order
                                    suffers from infirmity, illegality and perversity. Thus, this Court is of the
                                    view that the prosecution has not been able to establish the guilt of the
                                    surviving accused revisionists beyond reasonable doubt. Therefore, the
                                    Court is inclined to grant benefit of doubt to the surviving accused
                                    revisionists on the ground of rule of caution.

                                    29. In view of the above discussions, we are of the opinion that the
                                    prosecution has failed to establish the guilt of the surviving accused
                                    revisionists for the offences punishable under under Section 323/34, 504,
                                    506, 452 I.P.C. beyond reasonable doubt and to the satisfaction of the
                                    judicial conscience of the Court. So, the impugned judgment and order of
                                    conviction and sentence dated 5/6/2013, which has been sought to be
                                    assailed, call for and deserves, interference. The criminal revision is liable to
                                    be allowed.

                                    30. Accordingly, criminal revision is allowed and the conviction and
                                    sentence imposed upon the surviving accused revisionists Ajay Shahi,
                                    Munna Kushwaha and Rajendra Rai for the offence punishable under under
                                    Section 323/34, 504, 506, 452 I.P.C. is set-aside as the accused revisionists
                                    found not guilty for the aforesaid offences. They are acquitted of all the
                                    charges framed against them. They are on bail, they need not surrender, and
                                    their bail bonds are cancelled and sureties are discharged.

                                    31. Copy of this judgment alongwith trial court record be sent forthwith to
                                    the trial court for compliance.

                                    September 30, 2026
                                    safi
                                                                                       (Jai Krishna Upadhyay,J.)




Digitally signed by :-
MAHBOOB SAFI
High Court of Judicature at Allahabad