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2004 DIGILAW 1734 (ALL)

Prayag Singh v. State of U. P.

2004-09-01

AMAR SARAN

body2004
( 1 ) THIS criminal appeal arises out of the judgment and order dated 30-4-1981 passed by VIth Additional Sessions judge, Mainpuri in Sessions Trial No. 512 of 1980 whereby the appellants were convicted and sentenced to undergo rigorous imprisonment for a period of three years under Ss. 304/149, I. P. C. and for a further period of imprisonment of six months under Ss. 323/149 read with S. 147, I. P. C. Both the sentences were ordered to run concurrently. ( 2 ) AS the appellant-Prayag Singh has died, the appeal filed by him has already abated by order of this Court dated 28-1-2004. Apart from Prayag Singh and the other four appellants namely, Prithvi Singh, parmal, Nawab Singh and Ramveer Singh, one other person namely, Shanker had been made an accused in the FIR. As he had died during the pendency of the trial his case has abated by orders of the trial Court. ( 3 ) I have heard Shri S. P. Tewari, learned counsel for the appellants and the learned A. G. A. ( 4 ) IN short, the facts of this case are that there was some dispute going on between prayag Singh, Prithvi Singh and others on one side and Giriwar Singh and Bachan singh and others on the other. Proceedings under Ss. 107/116 were pending in the court of S. D. M. , Shikohabad. On account of this enmity, on 14-8-1980, when the de-ceased-Giriwar Singh along with his brother bachan Singh were going to Shikohabad, on the way near the field of Harcharan and mathuri, the six named accused persons assaulted them with lathies and kanta on the exhortation of Prayag Singh that they should be taught a lesson for indulging in endless litigations and they should be done to death. On hearing the cries, informant-Ramesh, Girish, Rajendra and Niranjan arrived at the spot. Girish, who tried to intervene, also received some injuries. On the cries of the witnesses, the accused left the spot saying that the victim has been saved on this occasion, but he would be done to death later. Thereafter, the informant proceeded to the police station Nagla Khanger with the injured Giriwar Singh, Bachan singh and Girish and lodged the report on 14-8-1980 at about 10. 45 a. m. The report was Initially lodged under Ss. Thereafter, the informant proceeded to the police station Nagla Khanger with the injured Giriwar Singh, Bachan singh and Girish and lodged the report on 14-8-1980 at about 10. 45 a. m. The report was Initially lodged under Ss. 147/323/324/325, I. P. C. Constable Gulshan Singh, p. W. 8 took down the written report and prepared chik report on its basis. Thereafter the Investigating Officer S. I. Atar Singh, P. W. 5 recorded the statements of Giriwar, bachan and Girish under S. 161, Cr. P. C. and sent the injured for medical examination to Shikohabad hospital. The Investigating Officer then proceeded to record the statements of informant-Ramesh, Rajendra and Niranjan Singh and then proceeded to the spot, and prepared site plan as indicated by the informant-Ramesh. ( 5 ) MEDICAL examination was conducted on injured Bachan Singh on 14-8-1980 at 3. 20 p. m. , Giriwar Singh on 14-8-1980 at 3. 30 p. m. and Girish on 14-8-1980 at 3. 40 p. m. by Dr. M. L. Agarwal, P. W. 1 at Civil hospital, Shikohabad. The doctor found the following injuries on the person of Bachan singh : (1) L. W. in triangle, each line 1 cm. long x up to bone deep on right eyebrow clotted blood present. (2) Multiple contusion of various sizes overlapping each other on right shoulder blade, shoulder joint and outer surface of upper 2/3 of right arm (number more than 20) size 6 cm. x 2 cm. to 8 cm. x 2 cm red. (3) Multiple contusion 12 cm. x 2 cm. to 8 cm. x 2 cm. red more than 22 on whole back. (4) Contusion 10 cm. x 2 cm. red on right costal border. (5) Contusion 6 cm. x 2 cm. red oblique on post surface middle of right forearm. (6) Contusion 4 cm. x 2 cm. red bruise on post surface of right forearm 4 cm. above wrist advised x-ray. (7) Traumatic tender swelling red on whole of right hand advised x-ray. (8) Ten contusion 12 cm. 2 cm. to 8 cm. x 2 cm. red on right buttock and outer side of right thigh. (9) Contusion 2 cm. x 2 cm. red on front of right knee joint. " opinion : Injuries Nos. 6 and 7 are under observation, rest are simple. All injuries have been inflicted by blunt weapon. Duration about 1/2 day old. 2 cm. to 8 cm. x 2 cm. red on right buttock and outer side of right thigh. (9) Contusion 2 cm. x 2 cm. red on front of right knee joint. " opinion : Injuries Nos. 6 and 7 are under observation, rest are simple. All injuries have been inflicted by blunt weapon. Duration about 1/2 day old. ( 6 ) THE doctor found the following injuries on the person of Giriwar Singh : " (1) Lacerated wound 2 cm. x 2 cm. gaping x up to bone deep on post surface of right arm 3 cm. above elbow joint clotted blood present. Bleeds on touch. (2) Traumatic tender swelling on dorsum of right hand advised x-ray. (3) Lacerated wound 6 cm. x 2 cm. x up to bone deep on left side head 2 cm. above left ear clotted blood present. (4) Lacerated wound 1 cm. x. 75 cm. x up to bone deep clotted blood present on left side face 1 cm. out of left ear. (5) Contusion 4 cm. x 2 cm. red on middle of post surface of left forearm advised x-ray. (6) Lacerated wound 1 cm. x. 3 cm. x 1. cm. deep clotted blood present on post surface of left elbow joint. (7) 3 contusion 10 cm. x 2 cm. red on right buttock. (8) Contusion 8 cm. x 2 cm. red oblique on outer side of right leg in middle. (9) Contusion 8 cm. x 2 cm. red oblique on middle of front of right thigh. Opinion : Injuries Nos. 2 and 5 are under observation, rest are simple. All injuries have been inflicted by blunt weapon. Duration about day old. ( 7 ) ON the person of Girish, doctor found the following injuries : " (1) Lacerated wound 4 cm. x 1 cm. gaping x up to bone deep clotted blood present on post surface of head. (2) Contusion 8 cm. x 2 cm. red oblique on outer side of right arm advised x-ray. (3) Contusion 6 cm. x 2 cm. red oblique on lower 1 /3 of right forearm inner and post surface. (4) Eighteen contusion 12 cm. x 2 cm. to 10 cm. x 2 cm. red coloured on whole of back. (5) Four contusion 6 cm. x 2 cm. to 5 cm. x 2 cm. (3) Contusion 6 cm. x 2 cm. red oblique on lower 1 /3 of right forearm inner and post surface. (4) Eighteen contusion 12 cm. x 2 cm. to 10 cm. x 2 cm. red coloured on whole of back. (5) Four contusion 6 cm. x 2 cm. to 5 cm. x 2 cm. red on upper surface of left shoulder joint and outer surface of upper of left arm. " opinion :- Injury No. 2 is under observation, rest are simple. Inflicted by blunt weapon. Duration about day old. ( 8 ) GIRIWAR Singh died subsequently and post-mortem was conducted by Dr. B. S. Bisaria, P. W. 7 on the body of deceased on 16-8-1980 at 1. 30 p. m. Doctor found the following anti-mortem injuries : " (1) Stitched wound 6 cm. on the left side of head. (2) Hematoma 10 cm. x 9 cm. on the left side of the head. (3) Stitched wound 4 cm. in the left upper arm outer aspects. (4) Swelling 8 cm. x 7 cm. on the right hand. Fracture of middle of ring finger. (5) Swelling 15 cm. x 10 cm. on the back of left forearm and fracture of both bones in the middle. " Rigor mortis was present on the lower limbs. The internal examination revealed that the stomach and small intestines were empty. The time of death was between one and a half and two days. ( 9 ) WHEN the post-mortem report was brought to the police station, the case was converted to one under Ss. 147/323/324/325/304, I. P. C. Thereafter, charge-sheet was filed in this case on 22-8-1980, and charge was framed on 21-1-1981 under Ss. 147, 149 read with Ss. 304 and 149 read with S. 323, I. P. C. The accused persons pleaded not guilty to the charge and claimed trial. ( 10 ) IN support of its case the prosecution has examined Niranjan Singh, P. W. 2, girish, P. W. 3 and Bachan Singh, P. W. 4 as eye-witnesses to the incident. ( 11 ) NIRANJAN Singh, P. W. 2 has stated that the incident took place at about 8-9-a. m. He reached the spot on hearing the cries of Girwar and Bachan Singh, Ramesh, raghuwar Dayal, Girish and Rajendra also reached the spot. They saw six named accused assaulting Giriwar and Bachan Singh. ( 11 ) NIRANJAN Singh, P. W. 2 has stated that the incident took place at about 8-9-a. m. He reached the spot on hearing the cries of Girwar and Bachan Singh, Ramesh, raghuwar Dayal, Girish and Rajendra also reached the spot. They saw six named accused assaulting Giriwar and Bachan Singh. All the accused except Parimal were armed with lathies, while Parimal was carrying kanta. The accused also beat Girish, who intervened. The marpeet lasted about two minutes. ( 12 ) GIRISH, P. W. 3, who is an injured witness in this case, has deposed that on hearing the cries of Girwar and Bachan at about 8. 30-9. 00 a. m. on the fateful day, he reached the field of Harcharan and Mathuri, Ramesh, rajendra, Niranjan Raghuwar Dayal also reached the spot at the same time. Parimal was armed with kanta and the other five named accused who were armed with lathies, were assaulting Giriwar and Bachan. When he tried to save Girish and Bachan, he was also assaulted by all the accused persons and received injuries. He was taken to the police station after the incident on a cot. When the Investigating Officer recorded his statement under S. 161. Cr. P. C. , Giriwar was fully conscious. ( 13 ) BACHAN Singh, P. W. 4, another injured witness of this case, has deposed that on 14-8-1980 he was proceeding along with his brother Giriwar to Shikohabad via Nagla khanger. As the puliya (culvert) on the road had broken down, hence they were proceeding through a smaller path (pagdandi ). It was rainy season. When they reached the field of Harcharan and Mathuri at about 8. 30-9. 00 a. m. , they were assaulted by Prayag singh, Prithvi Singh, Shanker, Nawab Singh and Ramveer Singh, who were armed with lathies and Parimal, who was armed with kanta. Parimal was plying his kanta from the reverse side. On their cries, Girish chand, Ramesh, Rajendra and Niranjan also arrived at the spot. After the incident, the accused went in the western direction. Some blood was there, on the spot of the incident. Injured were brought to the police station on a cot. At the police station Ramesh lodged the report. On their cries, Girish chand, Ramesh, Rajendra and Niranjan also arrived at the spot. After the incident, the accused went in the western direction. Some blood was there, on the spot of the incident. Injured were brought to the police station on a cot. At the police station Ramesh lodged the report. ( 14 ) LEARNED counsel for the appellant has not raised a very serious challenge to the time and place of incident as set up by the prosecution, but principally he has raised a doubt about the participation of at least two accused in this incident, i. e. Nawab and Parimal and has also questioned the appropriateness of convicting the appellants under S. 304 read with S. 149, I. P. C. ( 15 ) LEARNED counsel for the appellants did however, point out that according to Dr. M. L. Agarwal, P. W. 1 the time of incident was half a day old when he conducted the medical examination between 3)20 p. m. and 3. 40 p. m. on 14-8-1980. This would take the incident to about 3 a. m. pn 14-8- 1980. The doctor has even stated that the time of incident could not be 9 a. m. in the morning. The trial Court has given good reasons to reject this statement of the doctor, and to prefer the time of incident as mentioned by the witnesses including two injured witnesses. The doctor was even permitted to be cross-examined by the prosecution. The doctor admitted that contusion remain reddish for 18 hours, and an inflammatory swelling appears on the injuries after half a day, which had not even started in this case. Hence he admits that the injuries were positively less than half days old. Also as 3 to 6 hours margin is allowable in respect of the injuries, this would be in accord with the incident having taken place at about 9 a. m. , as is stated by the P. Ws. Moreover, as the medical examination of the injured was conducted at about 3. 30 p. m. 3 this would contradict the suggestion that the incident took place in the dark hours early in the morning on 14-8-1980. Moreover, as the medical examination of the injured was conducted at about 3. 30 p. m. 3 this would contradict the suggestion that the incident took place in the dark hours early in the morning on 14-8-1980. Rather it would suggest that the incident must have taken place later (nearer to the time of medical examination)as ordinarily there would be an anxiety to rush the surviving injured persons to hospital soon after the incident, especially as there were head injuries on all the injured persons. More importantly there is no reason to discard the evidence of the injured witnesses Bachan and Girish about the time of incident. ( 16 ) LIKEWISE the challenge to the place of incident on the ground that no blood stained earth was collected in this case is also not of particular significance as admittedly it was rainy season and it was quite possible that the blood which may have fallen on the pagdandi had been washed away in the rain, or by people trampling the path way. We also note that most of the injuries to the injured and deceased were contusions which did not involve tear of the skin, and even the few lacerated wounds found on the deceased and injured were not very deep, so that not much blood would have fallen on the ground in any case. Also, as there were injured witnesses in this case, i see no reason how they would benefit in any manner by shifting the place of incident from the pathway near the field of Harcharan and Mathuri where the incident actually took place to some other place. I therefore, hold that the incident indeed took place at the time and place as alleged. ( 17 ) THERE is substance, however, in the contention that there was no kanta injury on any of the injured as none of the injured was shown to have received even a single incised wound. Significantly, an attempt has been made by Dr. M. L. Agarwal, P. W. 1 to himself suggest that if the kanta was used from its blunt side as lathi, then lacerated wound would result and it appears that very belatedly taking a clue from this suggestion, the last eye-witness Bachan Singh, P. W. 4 has stated that Kanta was used from the blunt side. Although the earlier two eye-witnesses, i. e. P. Ws. Although the earlier two eye-witnesses, i. e. P. Ws. 2 and 3 did not make any deposition to this effect. In fact these witnesses alleged the normal user of kanta. ( 18 ) IN this view of the matter, as Parimal has been assigned the role of using a kanta and in the absence of any incised wound on the body of the deceased and injured, I hold the participation of Parimal in the incident to be doubtful and acquit him of the charges framed against him. ( 19 ) SO far as Nawab is concerned, D. W. 1 Dr. K. C. Kapoor, who was Superintendent District Hospital, Mainpuri, examined nawab on 16-4-1981. He found that Nawab was suffering from Parkinsonism, which had significantly affected his right upper limbs. Even P. W. 1, Dr. M. L. Agarwal has stated that the old person, who was shown to him in Court (Nawab) was suffering from Parkinsonism. He states that in this disease whole body tremble and Nawab Singh was suffering from this disease from the last 5-6 months. He appeared to be about 70 years old as per the observation of P. W. 1, Dr. Agarwal on 6-2-1981. Nawab has given his age as 60 years under S. 313, Cr. P. C. In any view of the matter, he would not be less than 85 years now. ( 20 ) IN my opinion, therefore, it would also not safe to record the conviction of appellant-Nawab. Accordingly, he is acquitted of the charges for which he has been tried. ( 21 ) THE next question that arises in this case concerns the proper section for which the remaining appellants should be convicted and the proper sentence to be awarded to them. We find that injuries received by the injured Girish and Bachan were mostly simple in nature although the injuries Nos. 6 and 7 of Bachan which were red bruises on post surface of right forearm and traumatic tender swelling red on whole of right hand and x-ray has been advised in the case of Bachan Singh. Injury No. 2 of girish which was a contusion 8 cm. x 2 cm. red oblique on outer side of right arm, which was kept under observation. However, there was no evidence of the doctor that any of the injuries on Bachan and Girish would be dangerous to life. Injury No. 2 of girish which was a contusion 8 cm. x 2 cm. red oblique on outer side of right arm, which was kept under observation. However, there was no evidence of the doctor that any of the injuries on Bachan and Girish would be dangerous to life. ( 22 ) SO far as the deceased-Girwar is concerned, the initial medical report of Dr. M. L. Agarwal showed that except injuries Nos. 2 and 5, which were kept under observation, the rest of the injuries were simple. Injury No. 2 was a traumatic tender swelling on dorsum of right hand and injury No. 5 was contusion 4 cm. x 2 cm. red on middle of post surface of left forearm, for which x-ray was advised. ( 23 ) THE witnesses have stated that girwar was fully conscious when he was taken to the police station. The post-mortem examination which was conducted by Dr. Bisaria also shows that there was no apparent damage to the head and neck region of the deceased-Girwar. Dr. Bisaria has further stated that there are very narrow veins and arteries in the brain of person and if some blood had clotted in these veins or arteries, if may cause death. However, he could not state that injury No. 1 which was a stitched wound on the left side of the head could have caused the death of the deceased. Dr. Bisaria, P. W. 7 did not find any clotted blood in the brain of Girwar and there was no fracture underneath skull bone. Even under the heamotoma on the left side of the head, there was no fracture. ( 24 ) IN this view of the matter, it could not be affirmatively said that the accused persons either intended to cause the death of Girwar or that they even did knew that his death would ensue as a result of assault on him. Even under the heamotoma on the left side of the head, there was no fracture. ( 24 ) IN this view of the matter, it could not be affirmatively said that the accused persons either intended to cause the death of Girwar or that they even did knew that his death would ensue as a result of assault on him. If amongst the six named accused persons, the blow by some person has struck on the head of Girwar, which has clotted a very fine vein or artety of his brain, it could not be inferred that common object of all the accused persons was to commit an offence of culpable homicide punishable under S. 304, I. P. C. All that could be inferred from the circumstances was that the accused knew that at least grievous hurt would result to the deceased as a result of such marpeet. In such circumstances the accused could appropriately be convicted under S. 325 read with S. 149, I. P. C. instead of S. 304/149, I. P. C. ( 25 ) AS about 23 years have elapsed after this incident, and the accused have already spent about 3 months in jail, I think they have suffered sufficiently with the sword of damocles of an impending stint in jail looming over their heads for such a long time, and even two of the accused persons have died in the meanwhile. It would now meet the ends of justice if the sentence of remaining accused namely Prithvi Singh and ramveer Singh is reduced to the period already undergone, and they are awarded fine in place of a substantive sentence of imprisonment. The learned Counsel for the appellants states that he would not treat an imposition of fine as an enhancement of the sentence. ( 26 ) ACCORDINGLY the sentence of appellants Prithvi Singh and Ramveer Singh is reduced to the period already undergone by them. They are further required to pay a fine of rupees three thousand each under Section 325 read with Section 149. I. P. C. In default of payment of fine, they must undergo further imprisonment for 6 months each. They are granted three months time to deposit the fine. On payment of the fines, their bail bonds shall stand cancelled and their sureties shall be discharged. I. P. C. In default of payment of fine, they must undergo further imprisonment for 6 months each. They are granted three months time to deposit the fine. On payment of the fines, their bail bonds shall stand cancelled and their sureties shall be discharged. ( 27 ) AS appellants, Parimal and Nawab singh are acquitted of all the charges and they are on bail, their bail bonds shall stand cancelled and sureties discharged. They need not surrender before the Court below. ( 28 ) THE appeal is partly allowed. Appeal partly allowed. . .