Chokha vs State of U.P.

M.C. Jain, J.—Chokha and his real brother Mittha were tried in S.T. No. 331 of 1979 before I Vth Additional Sessions Judge, Aligarh. The charge against the former was u/s 307, I.P.C. and u/s 307, I.P.C. read with Section 34, I.P.C. against the latter. By the impugned judgment dated 14.1.1981, the trial Judge acquitted Mittha, but convicted Chokha u/s 324, I.P.C. instead of Section 307, I.P.C. and sentenced him to two years rigorous imprisonment. Consequently, Chokha has preferred Criminal Appeal No. 128 of 1981 whereas the State has come up in appeal as regards the acquittal of Mittha and challenging the conviction of Chokha u/s 324, I.P.C. instead of Section 307, I.P.C.

The incident took place on 7.4.1979 at about 6.30 p.m. within the territory of village Aurangabad, police station Harduaganj, district Aligarh. The F.I.R. was lodged at 7.40 p.m. the same day by Surya Dev Singh P.W. 3, father of the injured Pradeep Kumar P.W. 1. He himself was not an eye-witness of the incident. The prosecution case was that Chokha of his village was a bad character and had recently been released from jail. He suspected that informant''s son Pradeep Kumar P.W. 1 was instrumental in sending him to jail. Therefore, he was harbouring grudge against him. Pradeep Kumar P.W. 1 was a practising advocate at Aligarh and used to go and come back daily in connection with his practice. On the fateful date and time, he was returning back to his village on cycle. Jai Chand and Raj Pal were coming behind him on their cycles. When he was on his way, Chokha and Mittha with one unknown person met him near the village. Chokha stopped his cycle and held out that he had been released from jail and he would finish him on that day. Mittha and unknown person exhorted and Chokha and latter opened fire on him from country-made pistols to murder him. The bullet struck in his left arm and below the armpit causing injuries to him. Assailants ran away. Jai Chand and Raj Pal had also reached from back side. Ram Swaroop son of Rewa Ram also saw the assailants running and recognised them. On lodging of F.I.R. a case was registered and investigation was taken up by Investigating Officer B. L. Katheria P.W. 5. The injuries of the injured were examined by Dr. Pradip Kumar P.W. 4 on 17.4.1979 at 9.15 p.m. Suffice it to say that gun shot injuries were found on his person and as per the medical evidence, the same could have been caused on 7.4.1979 at 6.30 p.m.

The defence was of denial and of false implication.

The material testimony was of the injured Pradeep Kumar P.W. 1 who supported the prosecution version in material particulars. Ram Swaroop P.W. 2 was not an eye-witness. He had run to the site on hearing the shot and the scream of the victim. He allegedly saw Chokha and Mittha running through the fields towards canal. According to him, Raj Pal and Jai Chand were standing near Pradeep Kumar. He himself went to the house of injured and informed his father. The trial Judge excluded the testimony of Ram Swaroop P.W. 2, holding that it was doubtful that he could recognize the running assailants and identify them correctly. He, however, relied on the testimony of the injured Pradeep Kumar P.W. 1 as to the complicity of the accused Chokha beyond reasonable doubt. However, he convicted Chokha u/s 324, I.P.C. only while acquitting the other accused Mittha. It is under these circumstances that these two appeals have come up before this Court.

We have heard Sri S. K. Pal learned A.G.A. from the side of State and Sri B. Sahai from the other side. Record of the lower court has been summoned before us which we have perused. We find that despite searching cross-examination, the testimony of Pradeep Kumar P.W. 1 could not be displaced as regards the actual assailant that it was Chokha and none-else who had shot him on the given date, time and place causing injuries to him.

As regards conviction of Chokha u/s 324, I.P.C. instead of Section 307, I.P.C., the learned trial Judge has given cogent and convincing reasons that there was no supplementary report to show that injuries sustained by the victim were sufficient to cause his death. There was no X-ray report or plate. Simply on the basis of the injuries found on his person, as reported in his medical examination report, it could not be held that the assailant intended to commit his murder. Therefore, the case was rightly found to be covered u/s 324, I.P.C., instead of Section 307, I.P.C. The appeal from the side of State in this behalf is without force.

Acquittal of accused-Respondent Mittha is also well justified. The prosecution case was that Chokha had himself expressed his intention to finish Pradeep Kumar P.W. 1. Therefore, there was hardly any occasion or necessity for Mittha to have exhorted him to kill his enemy. The complicity of Mittha was not established to the extent of judicial certitude. In our opinion, he was rightly acquitted.

The result is that the appeal filed by the State has no merit at all.

Coming to the appeal filed by Chokha as against his conviction u/s 324, I.P.C., we have observed above that in view of the sterling testimony of injured Pradeep Kumar P.W. 1, which could not be shattered or displaced by the defence, his conviction thereunder was perfectly in accordance with law. Therefore, his appeal challenging his conviction u/s 324, I.P.C. has to fail. The learned Counsel then commiseratingly argued that the sentence of two years'' rigorous imprisonment passed against him by the trial court should be reduced to the period already undergone. He pointed out that he surrendered before the lower court on 14.4.1979. The conviction against him was recorded and judgment was delivered on 14.1.1981. This appeal was admitted and bail was granted to him on 20.1.1981. In the intervening period, after his surrender, he remained on bail only for two months under the orders of this Court dated 13.3.1980. Thus, he has already been in jail nearly for one year and seven months.

Having regard to the totality of facts and circumstances of the case, we are of the opinion that interest of justice would be met by reducing the sentence of the accused Chokha to the period already undergone.

In the result, we finally order as under:

Government Appeal No. 744 of 1981 is hereby dismissed.

Criminal Appeal No. 128 of 1981 filed by the Appellant Chokha is partly allowed. His conviction u/s 324, I.P.C. under the impugned judgment dated 14.1.1981 is upheld, but his sentence of two years rigorous imprisonment is reduced to the period already undergone, which is nearly one year and seven months.

Under order dated 1.9.2003, non-bailable warrants had been issued against both of them, namely, Chokha and Mittha. We have upheld the acquittal of Mittha. In case he has been arrested and lodged in jail in consequence of non-bailable warrant issued against him, he shall be set at liberty, if not wanted in any other conviction.

Chokha, in case arrested in compliance of non-bailable warrant issued against him, shall also be released, if not wanted in any other connection as his sentence has been reduced to the period already undergone.

A copy of this judgment and order along with record of the case be sent to the court below asking the Chief Judicial Magistrate, Aligarh to report within two months.