# Rajju Pathak @ Raj Kumar v. State of U.P

- **Citation:** (2012) 1 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-06
- **Case number:** CRIMINAL APPEAL No. 5054 of 2006
- **Bench:** Surendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajju-pathak-raj-kumar-v-state-of-u-p-42188
- **Pages:** 7

## Headnote

Sri Ajay Sengar
A.G.A.

Criminal Appeal-conviction of 10 years
rigorous
imprisonment-offence
under
Section 307, 452 I.P.C.-one shot country
made
Pistol
injury-on
foreheadaccording
to
Forensic
Report
manufactured
by
injured
himselfappellant
in
jail
since
29.03.2005sentence modified already undergone
Appeal allowed to this extent.

Held: Para 31

Learned counsel for the appellant has
submitted that the appellant is in jail
since 29.3.2005 and he is aged about 35
years and considering the facts and
circumstances of the case and the fact
that one shot was fired by the appellant
which hit on the forehead of the injured,
some leniency in sentence should be
adopted.
Case law discussed:
(2001) 7 SCC page 318 (SC); AIR 2004 SC
page 69; AIR 2004 SC page 77; 1983 Cr.L.J.
(SC) page 331

## Text

1 All] Rajju Pathak @ Raj Kumar V. State of U.P.
437

51. Both the writ petitions are allowed
subject to the observations made above.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.04.2012

BEFORE
THE HON'BLE SURENDRA KUMAR, J.

CRIMINAL APPEAL No. 5054 of 2006

Rajju Pathak @ Raj Kumar
 ...Appellant
Versus
State of U.P

 ...Respondent

Counsel for the Petitioner:
Sri G.S. Chaturvedi
Sri Sri Ajat Shatru Pandey
Sri Sushil Kumar Dubey
Sri B.N. Singh

Counsel for the Respondents:
Sri Ajay Sengar
A.G.A.

Criminal Appeal-conviction of 10 years
rigorous
imprisonment-offence
under
Section 307, 452 I.P.C.-one shot country
made
Pistol
injury-on
foreheadaccording
to
Forensic
Report
manufactured
by
injured
himselfappellant
in
jail
since
29.03.2005sentence modified already undergone
Appeal allowed to this extent.

Held: Para 31

Learned counsel for the appellant has
submitted that the appellant is in jail
since 29.3.2005 and he is aged about 35
years and considering the facts and
circumstances of the case and the fact
that one shot was fired by the appellant
which hit on the forehead of the injured,
some leniency in sentence should be
adopted.
Case law discussed:
(2001) 7 SCC page 318 (SC); AIR 2004 SC
page 69; AIR 2004 SC page 77; 1983 Cr.L.J.
(SC) page 331
(Delivered by Hon'ble Surendra Kumar,J. )

1. The appellant Rajju Pathak @
Raj Kumar has filed the instant criminal
appeal against the judgment and order of
the
conviction
and
sentence
dated
31.7.2006 passed by the Additional
Sessions Judge, FTC No.2, Jalaun at
Orai, in S.T. No.127 of 2005 State Vs.
Rajju Pathak @ Raj Kumar and others,
relating to Case Crime No.15 of 2005
under Section 307, 452 IPC, Police
Station Rampura, District Jalaun, and
also in S.T. No.128 of 2005 relating to
Case Crime No.30 of 2005 under Section
25 Arms Act, Police Station Rampura
District Jalaun. The appellant has been
convicted and sentenced to undergo ten
years rigorous imprisonment with fine of
Rs.5,000/- under Section 307 IPC, two
years rigorous imprisonment with fine of
Rs.1000/- under Section 452 IPC and
also one year rigorous imprisonment
with fine of Rs.1,000/- under Section 25
Arms Act. In default of payment of the
aforesaid fine, the appellant has been
sentenced to further undergo six months
additional simple imprisonment. All the
sentences have been directed to run
concurrently.
The
co-accused
Gyan
Singh has been acquitted of the said
charge vide impugned judgment and
order giving benefit of doubt.

2.

According
to
the
first
information report lodged by Kishun
Dutt Tiwari, on 13.3.2005 at 5:30 p.m.,
the facts of the prosecution case are that
the first informant Kishun Dutt Tiwari
aged about 55 years was sitting inside his
house and was talking with Jamuna
Saran Srivastava and Chhuna @ Shiv
Naresh. Around 4:00 p.m., one accused
Gyan Singh also came there, just then the
appellant Rajju Pathak @ Raj Kumar
438 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
aged
about
35
years
armed
with
Tamancha (Katta) came in the courtyard
of the house of the first informant and
discharged fire from his Katta at the first
informant Kishun Dutt Tiwari with an
intent to kill him. The fire shot hit in the
forehead of the injured and co-accused
Gyan Singh and one unknown accused
also made fire. The trio ran away
extending life threat and hurling abuses.
The incident took place as a result of old
enmity. The first information report of
the incident was lodged against the
appellant and one Gyan Singh under
Sections 307, 452, 504, 506 IPC. The
weapon of offence namely Tamancha of
315 bore and two live cartridges were
recovered
from
possession
of
the
appellant by the police. The investigation
was made by the Investigating Officer
who after completion of the investigation
submitted
charge
sheet
under
the
aforesaid sections.

3. The trial Court framed charge
under Section 307/34, 452, 504, 506 IPC
against the appellant and one Gyan
Singh. The appellant was further charged
under Section 25 Arms Act.

4. The appellant pleaded not guilty
and claimed to be tried on the said
charges.

5. The prosecution examined the
injured as well as informant Kishun Dutt
as PW-1, Smt. Rajendri Devi PW-2 in
the
eyewitnesses
account.
The
prosecution also examined Dr. L.K.
Niranjan as PW-3, Dr. M.C. Verma PW4, S.I. Ram Dularey PW-5, H.C.
Virendra Singh PW-6, S.I. R.B. Shukla
(Retd.) PW-7.

6. According to the evidence of the
injured Kishun Dutt PW-1 on the day of
the incident, the witness was sitting in
the courtyard of his house and his wife
Rajendri Devi, Jamuna Saran Srivastava
and Chhunna were also sitting and
talking there. On the day of the incident
around 4:00 p.m., co-accused Gyan
Singh and one Amit Dubey came there
and sat on the cot expressing their desire
to purchase Sesame tree of the witness.
After about 15 minutes, the appellant
Rajju Pathak @ Raj Kumar armed with
Tamancha came there and fired one shot
from Tamancha at the head of the
witness. The fire shot hit in the forehead
of the witness. The wife of witness and
others who were sitting there tried to
catch the appellant, Gyan Singh and
Amit Dubey but trio ran away making
fire from their Tamanchas. This injured
was taken to the police station by
motorcycle where the witness gave the
written report of the incident which has
been proved as Exhibit Ka-1 by the
witness. This injured witness was taken
to the District Hospital, Orai where his
medical examination was conducted and
injury report Exhibit Ka-2 was prepared.

7. The Investigating Officer took
blood stained Baniyan of the injured and
prepared memo as Exhibit Ka-3. The
injured
was
referred
to
Regency
Hospital, Kanpur where he underwent
operation and pellet from injury was
taken out. According to the testimony of
this PW-1, the appellant Rajju Pathak @
Raj Kumar fired at the witness with an
intent to kill him due to old enmity and
pending litigation.

8. It is evident from cross
examination of this injured PW-1 that he
was prosecuted in the murder case of
1 All] Rajju Pathak @ Raj Kumar V. State of U.P.
439
Smt. Kaushal Kishore (Bhabhi of the
witness) and 10-15 cases were pending
against this witness at the time of the
incident.
The
witness
has
clearly
admitted at page no.16 of his evidence
recorded before the trial Court that there
were two groups in the village, one
group was of the witness and another
group was of the appellant. The witness
has identified Tamancha used in the said
offence as Exhibit-1 saying that one fire
shot made by the appellant from it hit in
the head of the witness and while leaving
the place, the appellant fired two or three
shots.

9. Smt Rajendri Devi PW-2 is wife
of PW-1. She has narrated and repeated
the same facts as stated in the evidence
of PW-1 and also first information report
of the incident. According to her, it was
the appellant who fired shot from
Tamancha at her husband, which hit in
the head portion of her husband. She has
also admitted old enmity of the appellant
with her husband saying that she could
not tell the distance from which the fire
was made at her husband.

10. Dr. L.K. Niranjan, PW-3 has
proved injury report of the injured saying
that he examined the injured Kishun Dutt
on 13.3.2005 and following injury was
found on his person:-

1. Firearm wound of entry size of
2cm x 0.5 cm x bone deep on left side of
forehead, 2cm above from left eyebrow,
marginal abrasion present and scorching
all around the wound was found, blood
was oozing and palpable pellet was on
right side of forehead. X-ray was advised
and injury was kept under observation.

11. According to the evidence of
the doctor, the said injury was likely to
be caused on 13.3.2005 around 4:00-4:15
p.m. by firearm. Injury was on vital part.

12. Dr. M.C. Verma PW-4 who was
radiologist took x-ray of the head of the
injured. One cylinderical and one small
rounded radio opaque shadow of metallic
density was seen in the x-ray and there
was fracture of frontal bone. This witness
has proved x-ray report as Exhibit Ka-5.

13. S.I. Ram Dularey PW-5 was
Investigating Officer of the case who
started the investigation and recorded
statement of the witnesses and prepared
site plan Exhibit Ka-6 and also took one
empty cartridge 315 bore from the spot
through memo Exhibit Ka-7. According
to this witness, he took the appellant on
police remand by the order of the Court
dated 1.4.2005 and then Tamancha of
315 bore and two live cartridges were got
recovered at the pointing out of the
appellant from inside the heap of bricks
placed
in
the
agriculture
plot
of
Mahendra Dhobi on 2.4.2005 at 11:00
a.m. and recovery memo Exhibit Ka-3
was prepared. This witness also prepared
site plan of the place of the recovery of
Tamancha as Exhibit Ka-10 and sent the
same to the forensic laboratory and after
completion
of
the
investigation,
submitted charge sheet as Exhibit Ka-9.

14. H.C. Virendra Singh PW-6 has
been examined by the prosecution to
prove chik FIR as Exhibit-11 and G.D.
Entry thereof Exhibit Ka-12 and chik
FIR under Section 25 Arms Act as
Exhibit Ka-13 and G.D. entry thereof
Ka-14.
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

15. Sri R.B. Shukla, PW-7, S.I.
(Retd.) investigated the case under
Section
25
Arms
Act
and
after
completing the investigation, submitted
charge sheet Exhibit-Ka 16 and sanction
of the District Magistrate, Exhibit Ka-17
was obtained.

16. The appellant while examining
under Section 313 Cr.P.C. denied the
whole prosecution story and stated that
the first informant/injured Kishun Dutt
was engaged in the manufacturing of the
illegal Tamanchas and during inspection
of the manufactured Tamanchas, the fire
shot was accidentally discharged which
hit the injured Kishun Dutt causing the
said
injury.
He
has
been
falsely
implicated on account of enmity in this
case.

17. Awadh Bihari DW-1 was
examined in the trial Court. This DW-1
tried to prove that he did not hear any
sound of fire shot nor any kind of noise
on the day of the incident from house of
the injured. This DW-1 is immediate
neighbour of the injured Kishun Dutt
having adjoining house. This DW-1 has
further deposed that hearing some cries,
people were going to the house of the
injured and this witness also went there
at 4:00 p.m. and saw that Kishun Dutt
had sustained injury in his head but at
that time, the appellant was not present
there at the house of the injured. DW-1
has further tried to establish that he had
not seen the appellant Rajju Pathak @
Raj Kumar going to or coming out of the
house of the injured. When this defence
witness supported the candidate of his
own caste in the election, since then he
was not on visiting terms to the house of
the injured as their relations had become
sour. Since this defence witness had
some enmity with the injured prior to the
alleged incident, his evidence does not
inspire confidence.

18. Heard Sri Ajat Shatru Pandey,
learned counsel for the appellant and
learned AGA for the State. I have
carefully gone through the evidence
available on record.

19. It appears from the report of the
Forensic
Science
Laboratory
dated
16.5.2005 which is Exhibit Ka-18 that
the weapon of offence namely .315 bore
Tamancha with two live cartridges in one
sealed bundle and one empty cartridge of
.315 bore in another sealed bundle were
sent to the Forensic Science Laboratory,
which were examined. The used empty
cartridge was found to have been fired
from the said recovered firearm.

20. In this case, the injured Kishun
Dutt PW-1 has supported the prosecution
case in his evidence. His evidence has
further been supported by the testimony
of his wife Smt. Rajendri Devi PW-2.
Learned counsel for the appellant has not
been able to point out any kind of
material discrepancy or contradiction in
their evidence. There is no reason to
disbelieve their testimony. The testimony
of the injured witness and presence of the
firearm injury on his forehead coupled
with fracture of the head bone are
sufficient to establish the presence of the
appellant on the spot on the date and
time of the occurrence. His evidence as
well as evidence of his wife PW-2 is
truthful, natural, probable and is fully
reliable and trustworthy as credibility of
the same has not been shaken in any
way.
1 All] Rajju Pathak @ Raj Kumar V. State of U.P.
441

21. The testimony of the injured
has been fully corroborated by medical
evidence. No contradiction has been
pointed out between medical evidence
and ocular evidence by the learned
counsel for the appellant. Thus, apart
from it, recovery of the aforesaid
Tamancha with two live cartridges and
one empty cartridge at the pointing out of
the appellant without having any valid
licence is also proved beyond doubt from
the evidence on record.

22. In the case of Anil Rai Vs. State
of Bihar (2001) 7 SCC page 318 (SC), it
has been observed that testimony of any
inimical witness cannot be discarded
merely on the ground of enmity if it is
otherwise convincing and consistent and
enmity is proved to be the motive of the
crime. However, possibility of falsely
involving some person in the crime or
exaggerating the role of some of the
accused by such witness should be kept
in mind and ascertained on the facts of
each case.

23. In the case of Kamaljit Vs. State
of Punjab AIR 2004 SC page 69, it has
been observed that minor variations
between medical evidence and ocular
evidence do not take away primacy of
the later.

24. In the case of Rama Kant Rai
Vs. Madan Rai and others AIR 2004 SC
page 77, it has been observed that
evidence of eyewitnesses is to be tested
for its inherent consistency and inherent
probability of the prosecution story. If
eyewitness account is even credible and
trustworthy, medical evidence pointing
to alternative possibility is not to be
accepted as conclusive.

25. The main contention of the
learned counsel for the appellant is that
single shot was fired by the appellant
which hit in the forehead of the injured
and some pellets of the fire shot were
under skin of the forehead and only one
head bone was fractured. Hence, there
was no intention of the appellant to cause
death and the said injury was not
sufficient in the ordinary course of nature
to cause death of the injured.

26. In the case of State of
Maharastra Vs. Balram Bama Patil and
others 1983 Cr.L.J. (SC) page 331, it has
been observed that it is not necessary
that the injury actually caused to the
victim of assault should be sufficient
under ordinary circumstances to cause
death of the person assaulted. Section
307 IPC makes a distinction between an
act of accused and its result, if any. What
the Court has to see is whether the act
irrespective of its result was done with
the intention or knowledge and under
circumstances mentioned in Section 307
IPC. It is sufficient in law if there is
present an intent coupled with some over
act in execution thereof.

27. Some contentions of the learned
counsel for the appellant are that no
supplementary report in the light of x-ray
report was prepared and was made
available on record. That in this case,
there was admittedly old enmity, two
independent eyewitnesses Shiv Nath and
Jamuna Saran Srivastava were not
examined. That the incident took place in
the open space. That the place of
standing of the injured and also of the
appellant were not shown in the site plan.
442 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

28. I have considered these
submissions and compared them with the
evidence on record.

29. As per x-ray report, there was
fracture of frontal bone of the head of the
injured and injury was griveous in
nature.
Hence,
absence
of
the
supplementary report is not sufficient to
give any benefit to the appellant. The
prosecution case has been completely
and fully established from the evidence
of PW-1 and his wife PW-2 and then
supported by medical evidence. Hence
non-examination
of
the
so-called
independent witnesses is of no help to
the
appellant
in
the
facts
and
circumstances of the case. There is no
material omission in the site plan and all
relevant points have been shown therein
by the Investigating Officer. If there is
any such minor discrepancy or omission,
the benefit of the same can not be given
to the appellant.

30. As per statement of the
appellant recorded under Section 313
Cr.P.C., the injured sustained firearm
injury on his person due to accidental
discharge of fire shot from any one of
Tamanchas allegedly manufactured by
the injured himself. Thus, there remains
no doubt that firearm injury found on the
forehead of the injured was caused by
Katta/Tamancha which was recovered at
the pointing out of the appellant by the
police and the said fire was found to
have been made from Tamancha of the
appellant
by
the
Forensic
Science
Laboratory leaving no room of doubt on
the veracity or genuineness of the
prosecution case. Thus, the impugned
judgment and order recording conviction
and sentence of the appellant under
Section 307, 452 IPC and 25 Arms Act,
is upheld.

31. Learned counsel for the
appellant has submitted that the appellant
is in jail since 29.3.2005 and he is aged
about 35 years and considering the facts
and circumstances of the case and the
fact that one shot was fired by the
appellant which hit on the forehead of
the injured, some leniency in sentence
should be adopted.

32. Learned AGA opposing this
submission, has taken me through the
last
two
pages
of
the
impugned
judgment. It appears from page no.28 of
the impugned judgment that the appellant
Rajju Pathak @ Raj Kumar has criminal
history and he has been convicted in
some murder case in S.T. No.90 of 2003
State Vs. Pawan Upadhyay and others by
the Special Judge (E.C. Act) and
sentenced to imprisonment for life. This
fact has not been disputed by the learned
counsel for the appellant.

33. The incident took place in the
year 2005. The appellant fired one shot
from his Tamancha at the injured without
repeating the same and only one firearm
injury in the forehead was caused. The
appellant is in jail since 29.3.2005
namely for more than seven years in this
case. The sentence awarded to the
appellant should in the interest of justice
as per the learned counsel for the
appellant be modified and the same
should
be
reduced
to
the
period
undergone by the appellant.

34. In the result, while upholding
the conviction recorded by the trial Court
vide
judgment
and
order
dated
31.7.2006,
this
Court
reduces
the
1 All] Central Drug Institution V. Gyaneshwar Tripathi and others
443
sentence awarded to the appellant to the
period
of
imprisonment
already
undergone by him. The appeal is to that
extent allowed and order modified. The
bail
bonds
of
the
appellant
are
discharged. The appellant shall be set at
liberty if he is not wanted in any other
case.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.04.2012

BEFORE
THE HON'BLE ANIL KUMAR, J.

Misc. Single No. - 5282 of 1988

Central Drug Institution {At : 02:00
P.M.}

 ...Petitioner
Versus
Gyaneshwar Tripathi and others

 ...Respondents

Counsel for the Petitioner:
Sri Asit Kumar Chaturvedi

Counsel fr the Respondents:
C.S.C.

U.P. Industrial Dispute Act 1947-Section6 (1)-Duty of labor court-when any
dispute referred for adjudication under
Section 4 K-Tribunal or Lower Court duty
bound for adjudication-unless award
passed-no power to consign the record
merely on statement of representative of
workmen-held-recall order justified-can
not be termed in contravention of
statutory provision.

Held: Para 22 and 23

Thus , in view of the above said fact , it
must , therefore, be held as a matter of
construction , when the reference under
Section 4K of the U.P. Industrial Act
1947 has been made to Labour Court/
Tribunal , the said authority is duty bond
to adjudicate the reference which is
made to it. Accordingly the action on the
part of the opposite party no.2/ Labour
Court in the present case , thereby
passing the order dated 12.8.1987 (
Annexsure
no.5)
consigning
the
reference to record on the statement
given by the representative/ workman
Sri Gyaneshwar Tripathi that he is not in
a position to contact workman and the
case may be consigned , is contrary to
law thus unsustainable.

In view of the above said fact , the
subsequent action on the part of the
Labour Court thereby recalling the order
dated 12.8.1987 ( Annexure no.5) on an
application moved on behalf of the
workman and passing the impugned
order dated 4.5.1988 ( Annexure no.8)
under challenge in the present case
cannot be said to be an action in
contravention
to
the
mandatory
provisions as provided under the Act for
adjudication of the industrial dispute
referred to it by the State Government
under Section 4K of the Act.

(Delivered by Hon'ble Anil Kumar,J. )

1. Heard Sri Asit Kumar Chaturvedi,
learned counsel for the petitioner , Sri S.C.
Sitapuri learned counsel for respondent
no.1, learned State Counsel for respondent
no.2 and perused the record.

2. In the city of Lucknow there is an
institute known as Central Drug Research
Institute , Lucknow ( Hereinafter referred
to
as
'
Institute')
established
and
administered by the Council of Scientific
and Industrial Research , New Delhi , a
Society, registered under the Societies
Registerationi Act, 1860.

3. As per the version of the petitioner
, the institute has been established for
conducting research work in various drugs
, and no productive activity is being carried