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2010 DIGILAW 1872 (ALL)

Gutto and others v. State of U. P.

2010-06-14

YOGENDRA KUMAR SANGAL

body2010
Yogendra Kumar Sangal, J.:- 1. This appeal has been filed by the accused persons of S.T. No. 58/1990 State vs. Gutto & 11 ors., under Section 147, 323/149, 324/149, 304 Part-II/149 IPC, P.S. District Barabanki against the judgment and order dated 11.10.1990 passed by 3rd Additional Session Judge, Barabank. By the impugned judgment and order, learned Session Judge held guilty and sentenced them for the offence under Section 147 for 1 year R.I.; under Section 323/149 1 year R.I.; under Section 324/149 for 2 years R.I., and under Section 304 Part-II/149 for 3 years R.I., and also ordered that all the sentences shall run concurrently. 2. During the pendency of the appeal, one of the appellant Hari Ram had died so orders for abating the appeal were passed vide order dated 20.07.2009. 3.As per prosecution case, a written report was submitted by the informant of the case with the averments that on 08.08.1988 in the noon his son Kayum went to the house of accused Gutto to bring Kunja (Kulad). His daughter Geeta said that the same is not available. His son came back. Soon after the wife of Gutto came at his house and complained that his son Kayum had molested her girl. They paid no heed to the complaint of Gutto and his family members started searching to Kayum with an intention to beat him but they failed to find him. At about 7'O clock in the evening when informant was in his grove he saw that all the accused having lathis in their hands came at the door of his house and they started to beat his son. Kayum tried to run away from there. On hue and cry of informant and his son witnesses Subrati, Yuvraj, Hamid, Akbar, Goli Wash Ahmed came there for their rescue. Accused persons have beaten them by using lathi and dandas. Ayub, Ismil and other villagers reached there. They saw the occurrence. Accused persons succeeded in escaping from there after threatening them to kill. Aunt (Chachi) of the informant was coming to see them. On instigation of Gutto, co-accused Ram Achal brought gandasa from his house and given blow on the leg of his Chachi and inflicted injuries. Subrati received serious injuries. When he was bringing to police station on a coat for the purpose of lodging FIR, in the way he succumbed to the injuries before reaching the police station. On instigation of Gutto, co-accused Ram Achal brought gandasa from his house and given blow on the leg of his Chachi and inflicted injuries. Subrati received serious injuries. When he was bringing to police station on a coat for the purpose of lodging FIR, in the way he succumbed to the injuries before reaching the police station. On this report, a case was registered naming accused for the offences referred above for investigation. 4. Record shows that regarding this occurrence another report was lodged by accused Gutto with the averments that on 08.08.1988 in the noon Kayum son of Abid came at his house under the pretext for taking the Kuja and he molested his daughter Geeta. His wife reached there, but Kayum succeeded in escaping there. His daughter made complaint to them. He went to the house of Kayum. He denied the allegations. He kept mum to save the prestige of his family. In the evening at about 7'O clock Biradri persons of Abid assembled and when he was going to collect the water, they challenged him and said to see him. Abid, Hamid, etc., (names given in the FIR) started to abuse and threatened him and forced him to run. He raised alarm. Accused persons with the help of ladhi and dandas started beating him. For his rescue, his family members reached there. They were also beaten by the accused by the use of lathi and dandas. Villagers assembled there and they saved them. On this report also a cross case was registered at the police station concerned. 5. Investigation was started in both the cases by the police. Injuries of both the sides injured persons were examined by the Doctor. Panchnama of dead body of Subrati along with letter to CMO for post-mortem was prepared. Dead body was sealed and sent for post-mortem. Post-mortem report was collected. It was found that cause of death of Subrati was shock and hemorrhage due to ante-mortem injuries. Statement of witnesses in both the cases were recorded. After concluding the investigation, charge-sheets were submitted in the court in both the cases. As case lodged on the report of Abid was exclusively triable by the court of Session so both the cases were committed to the Court of Session for trial of the accused persons. 6. Statement of witnesses in both the cases were recorded. After concluding the investigation, charge-sheets were submitted in the court in both the cases. As case lodged on the report of Abid was exclusively triable by the court of Session so both the cases were committed to the Court of Session for trial of the accused persons. 6. In both the cases, charges were framed by the Court concerned against the accused persons but accused have pleaded not guilty and claimed their trial. 7. In the present case on behalf of the prosecution statement of PW-1 Abrar, PW-2 Wash Ahmed, PW-3 Abid (informant of the case), PW-4 Kayum, PW-5 Dr. Anil Chandra who had conducted the post-mortem of the dead body, PW-6 Sabajeet Pal who is Investigating Officer of the case were recorded. Documents prepared during the course of investigation were also proved. Genuineness of the injuries reports produced on behalf of the prosecution was admitted on behalf of the accused. 8. In their statement under Section 313 CrPC accused persons have denied the prosecution case and evidence and stated that they have been falsely implicated in this case. Accused Gutto in his statement further stated that his girl was all alone at the house. At in the noon when Kayum came at his house, he molested his girl. On her complaint, he informed to the parents of the Kayum. On this, he and his family members were beaten and false case has been lodged. In their defence some injuries were caused to the persons of prosecution side. 9. Copy of the injury reports from the side of accused were also brought on record. Genuineness of same was not disputed on behalf of the prosecution. 10. After hearing the parties counsel and State counsel in both the cases in the present case, learned trial court held guilty to the accused for the charges leveled against them and sentenced them as above. In cross case accused persons were acquitted. 11. Aggrieved by the order of conviction and sentence present appeal was filed by all the 12 accused out of them one had died during the pendency of the appeal. 12. On inquiry, learned counsel for the accused appellants stated that against the acquittal order in cross case, no appeal has been filed either by the informant of that case or on behalf of the State. 13. 12. On inquiry, learned counsel for the accused appellants stated that against the acquittal order in cross case, no appeal has been filed either by the informant of that case or on behalf of the State. 13. Heard learned counsel for the appellants, learned AGA for the State and perused the record. 14. As per the prosecution case, accused persons at about 7'O clock on 08.08.1988 raided the house of the informant having lathis in their hands and on the cause of incident of noon, they started to beat Kayum. When the informant and his other family members reached there for his rescue, they were also beaten by lathi and dandas by the accused persons and one of them Subrati was succumbed to the injuries when he was bringing police station. When the Chachi of the informant was coming to see them, Ram Achal on the instigation of Gutto has given blow of gandasa (sharp edged weapon) on her leg causing injuries to her. Accused persons have denied the correctness of this case of prosecution. 15. From the facts and circumstances of the case and perusal of the record, it is clear that it is not disputed between the parties that Kayum PW-4 went to the house of the accused Gutto in the noon. 16. As per prosecution case, he went there to bring Kuja for the purpose of preparing medicines for treatment of cow as asked by the Doctor. Daughter of the accused had reported him its non-availability. He came back. On the other hand, the case of the accused persons is that Kayum came at his house under the pretext for taking Kuja but he molested his girl and Gutto went to the house of the informant to inform him about his son Kayum's misdeed. Some altercation took place there as informant did not agree that his son did so. This shows that some incident has taken place in the noon and altercation has taken place between the parties. As per prosecution case taking it an insult of his family, accused persons have committed this offence at about 7.00 P.M. in the same evening. To support its case four eye-witnesses were examined on behalf of the prosecution. PW-3 is the informant Abid Ali who is also father of the victim Kayum. He had stated on oath the facts mentioned in the FIR. To support its case four eye-witnesses were examined on behalf of the prosecution. PW-3 is the informant Abid Ali who is also father of the victim Kayum. He had stated on oath the facts mentioned in the FIR. PW-1 Abrar and PW-2 Wash Ahmed are said eye-witnesses of the occurrence. They have also claimed that they received injuries in the occurrence when they tried for rescue of Kayum. PW-4 is the Kayum son of the informant taking him it is said the incident has taken place. They have all supported the prosecution case by their on oath statement. No such discrepancy, material contradiction, unnaturality and improbabilities was shown in their statements on behalf of the accused to disbelieve them. Except Abid Ali all the three witnesses are injured witnesses. Seeing their injuries, Doctor has prepared injury report. Genuineness of the same not disputed on behalf of the accused. Immediately after the occurrence matter was reported to the police without any delay. One of the injured Subrati had succumbed to the injuries received by him in the occurrence. It is nowhere disputed on behalf of the accused that Subrati received injures in this occurrence. Post-mortem report was prepared by the Doctor. Doctor Anil Chandra who was also examined on behalf of the prosecution. He had also corroborated this fact that cause of death of Subrati was shock and hemorrhage due to ante-mortem injuries. He had also proved the post-mortem report Exhibit-K2. Presence of all the accused persons and their involvement in the occurrence has stated by all the witnesses of the prosecution. They all are also named in the prompt FIR. Presence of the witnesses also cannot be doubted as they are injured witnesses. It is also clear from the report lodged on behalf of the accused that their presence on the spot is also not disputed to the accused persons. Why PW-1 and PW-2 are stating on oath against them, it is not sufficiently explained on behalf of the accused. 17. Learned AGA argued that Kayum and Abid had denied the correctness of the case of the accused that Kayum had molested the girl of accused Gutto. The best person was the girl of Gutto to support the case of the accused in this regard. To the reasons best known to the accused, she was not examined which cause doubt on the genuineness of the case of the accused persons. The best person was the girl of Gutto to support the case of the accused in this regard. To the reasons best known to the accused, she was not examined which cause doubt on the genuineness of the case of the accused persons. Arguments of learned AGA in the facts and circumstances of the case cannot be said without force. 18. It was argued on behalf of the accused that as per own case of the prosecution independent witnesses were available but none of them was examined. This creates doubt on the genuineness of the prosecution case. To rebut this argument, learned AGA argued that prosecution case cannot be thrown out or doubted on this ground alone. In the facts and circumstances of the case arguments of learned AGA cannot be said without force. Civilized people now-a-days are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the accused persons. They keep themselves away from the court unless it is inevitable. They think that crime like a civil dispute is between two individuals and parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but is there everywhere whether in village life or town or cities. So if independent witness did not come forward and were not examined on behalf of the prosecution. It will not materially affect the veracity of the prosecution case in the facts and circumstances of the present case. It is also important to mention here that accused persons were having their cross version regarding the occurrence and correctness of the same has been denied by the learned Session Judge and acquitted the accused persons of that case. If accused persons were of the view that judgment of the trial court in their case was not correct, they were free to file appeal/revision against the judgment and order but they have not challenged the correctness of that judgment to the reasons best known to them. 19. Learned trial court after considering all material on record and hearing the submissions of learned counsel for the parties held guilty to the accused persons for the charges leveled against them. 19. Learned trial court after considering all material on record and hearing the submissions of learned counsel for the parties held guilty to the accused persons for the charges leveled against them. It was argued on behalf of the accused that the main person Kayum to whom it is said that all the accused persons have beaten with lathi and danadas received only one injury has reported by the Doctor. It was further said that as per prosecution case informant Abid was also beaten by all the accused persons and blow of lathi were given to him also, but he did not examined his injuries which shows that no injury was found on the body by the Doctor. Learned counsel argued that this belies the correctness of the statement of the prosecution witnesses and prosecution case is liable to be thrown out on this ground itself. It is generally seen that the witnesses now-a-days go on adding embellishment to their version perhaps under the fear of their testimony being rejected by the court. It is established law that the court should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Contradiction in evidence of victim of assault is no ground to reject their entire testimony. Presence of Kayum and Abid is not disputed on behalf of the accused persons on the spot. Involvement of Kayum in the occurrence is there as per own case of the accused. If there was no injuries on the body of the Abid and also Kayum had not received any serious injury in the occurrence and Abid had not examined his injuries by the Doctor, it will not totally belies the prosecution case. There are four or five other injured persons in the case. Accused persons himself have admitted that in defence they inflicted injuries to them. One injured had succumbed to the injuries received by him is also not disputed on behalf of the accused. So in these circumstances, this argument is also of no force to held the accused appellants not guilty. There were only three injured from the side of the accused. They received simple and minor injuries. They have not approached the police immediately after the occurrence. There is delay in lodging the FIR on their behalf. So in these circumstances, this argument is also of no force to held the accused appellants not guilty. There were only three injured from the side of the accused. They received simple and minor injuries. They have not approached the police immediately after the occurrence. There is delay in lodging the FIR on their behalf. Only when report of the prosecution side has been lodged and investigation was started in the matter and they found that one of injured has succumbed to injuries. learned AGA argued that only then they got manufactured injuries and false report was lodged on their behalf naming all the injured and witnesses of the present case with the help of legal mind. Learned trial court has found after appreciating evidence of both the parties and held the cross case is result of after thought and manipulation and it was held that accused persons of the present case were aggressors. On the body of Subrati who succumbed to the injuries for lacerated wound of his vital part of body head were found. There were fracture in his frontal bone and jaw. Head bone was crushed and divided into pieces. He had also received injuries on the chest. There were 13 injuries on the body of the rest victim of the case including vital part of their body. One lady has also received injury of sharp edged weapons on her leg. It is not acceptable and believable that accused persons might have inflicted these injuries in their defence, it was held so by the learned trial court relying on the decision of Apex Court. 20. Thus, in view of the material available on record and also hearing the learned counsel for the parties and going through the judgment of the learned trial court, I don't find any reason to differ with the findings of conviction recorded by the learned trial court in the case. 21. Learned counsel for the appellant argued that seeing the facts and circumstances of the case sentence awarded to the accused appellant appears excessive. There are three injured from their side also. There defence case is that daughter of Gutto was molested by the son of the informant Abid only then a complaint was made in this regard. 21. Learned counsel for the appellant argued that seeing the facts and circumstances of the case sentence awarded to the accused appellant appears excessive. There are three injured from their side also. There defence case is that daughter of Gutto was molested by the son of the informant Abid only then a complaint was made in this regard. Learned counsel further argued that if this occurrence would not have taken place, informant will involve his marriageable age daughter in such occurrence it is not believable. 22. From the facts of the case, it reveals that when the incident has taken place and accused persons were returning from the place of occurrence only then when Chachi of the informant Jenunnisha was coming towards the house of the informant in the way on the instigation of Gutto co-accused Ram Achal brought gundasa from his house and inflicted injuries in the leg of the lady. Learned counsel for the accused argued that this is an independent act of these two accused of Gutto and Ram Achal and other accused persons have no concerned with it. It was further argued that all the rest accused were wrongly convicted by the trial court for the offence under Section 324/149 IPC. Any over act of other accused in inflicting injuries to Chachi of the informant, it is nowhere said by any of the witness of the prosecution. Two members of assembly beyond common object if did such act vicarious responsibility cannot be fastened on the other accused. This argument of learned counsel for the accused persons cannot be said without force. To the injury caused to Jenunnish only Gutto and Ram Achal can be held guilty and rest accused cannot be held liable for the same. 23. It was further argued on behalf of the accused that from the statement of PW-4 Kayum it comes out that only accused Sagar, Jagpat, Gutto, Maku inflicted injury to Subrati. PW-1 had stated in his on oath statement that Subrati was beaten by Jagpat, Sagar, Maku and Ram Achal. He has not named the Gutto while PW-4 has not named Ram Achal amongst the accused who have inflicted injuries to deceased Subrati. As per prosecution, accused persons came with a common object to teach lesson to Kayum as he had molested the daughter of Gutto and his father Abid had not paid heed to their complaint in this regard. He has not named the Gutto while PW-4 has not named Ram Achal amongst the accused who have inflicted injuries to deceased Subrati. As per prosecution, accused persons came with a common object to teach lesson to Kayum as he had molested the daughter of Gutto and his father Abid had not paid heed to their complaint in this regard. They were not having weapons except lathi. They came there with an intention to commit murder any of them, it is not clear from the prosecution evidence and case of FIR. Common object of the accused persons cannot be said for murder of any one and it also cannot be inferred from the prosecution evidence. What inferred from the evidence of the prosecution is that there intention was only of assault. 24. Learned counsel for the accused appellant argued that during the course of the incident when altercation were going on and accused persons were calling explanation of Kayum and Abid and only to teach lesson to the Kayum, they were intending for assault only. If some of the accused persons by lathi blow causes fracture of skill and other serious injuries to one of the victim who just came there for the rescue leading eventually to his death, the other accused persons cannot be roped by Section 149 IPC for his murder as they had no common object to cause death of the victim. There is no evidence on record that the accused persons who inflicted injuries to Subrati were being provoked by other members to inflict such injuries to him resulting in his death. If some members assembled suddenly struck a person on the prosecution side, it does not by itself proved that the act was in furtherance of the common object. To illustrate if it is taken that accused persons rushed to the house of 'K' with a view to injure 'K' or inmates of his house but one of the accused attack 'M' a woman working in the house causing grievous injuries to her, the other accused persons could not be held vicariously liable with the help of Section 149 IPC as it was not their common object nor they had any animus against her. 25. 25. From the facts and circumstances detailed above and also taking into consideration of the evidence available on record, it is found that Jagpat, Sagar and Maku are the common persons who were named by PW-1 and PW-4 that they only have inflicted injuries to Subrati. There was no common object of the accused persons to inflict injuries to Subrati, it is clear from the record. PW-4 has named Gutto while PW-1 has named Ram Achal also. As there are contradiction in the evidence of PW-1 and PW-4 in these names so having doubt of correctness of their statement leaving them also, it is clear that only Jagpat, Sagar and Maku are the person who caused to the injuries to Subrati. All the accused persons were convicted by the trial court for the offence regarding the death of Subrati under Section 304 Part-II only. They were not found guilty for the offence under Section 302/304 IPC. This finding of the trial court was not challenged on behalf of the State by filing the separate appeal. In the above facts and circumstances of the case for the death of Subrati only Jagpat, Sagar and Maku could be held guilty and the rest accused persons are not liable to be punished in this regard. 26. Learned counsel for the appellant further argued that accused persons were involved in this case in 1988 more than 21 years have lapsed and they are facing the courts since then. It was further argued that during the trial and after conviction from the trial court almost all the accused persons remained in jail nearabout two months. Some of them have also received injuries during the occurrence. Except Subrati no other victim of the present case have received any grievous injury. Case of the accused persons is that as Kayum molested the daughter of Gutto so this occurrence has taken place. It was further argued that no useful purpose will be served to keep the accused persons in jail for more time whose individual act are not of serious nature. No motive to cause murder of Subrati has been attributed to any of the accused. Only to give lesson to Kayam it is said that they assembled and inflicted injuries. There was a cross version of the accused persons but unfortunately that was not find favour of the trial court. No motive to cause murder of Subrati has been attributed to any of the accused. Only to give lesson to Kayam it is said that they assembled and inflicted injuries. There was a cross version of the accused persons but unfortunately that was not find favour of the trial court. Parties belongs to the same village and some of the them are neighbourer of the informant. It was prayed for taking lenient view in awarding the sentence to the accused appellants. He further argued that if accused sentence of imprisonment is converted in fine have no objection. 27. From the above all discussions and circumstances of the case and considering the arguments of learned counsel for the parties, I am of the opinion that leniency in awarding the sentence in the matter if taken it will meet the ends of justice. 28. Accordingly, appeal partly allowed. 29. Conviction of all the accused for the offence under Section 147 IPC, under Section 323/149 IPC is upheld. Gutto and Ram Achal are also held guilty for the offence under Section 324 IPC. Rest accused are acquitted from the charge of the offence under Section 324/149 IPC. Accused Sagar, Maku and Jagpat are also held guilty for the offence under Section 304 Part-II IPC and rest accused are acquitted from the charge under Section 304 Part-II/149 IPC. All the accused are punished to pay Rs. 2,000/- and imprisonment already undergone for the offence under section 147 and in default of payment of fine 2 months S.I.; under Section 323/149 IPC of sentence already undergone and Rs. 3,000/- each as fine and in default of payment of fine 3 months S.I. Accused Gutto and Ram Achal are also sentenced for the offence under Section 324 IPC for a term of imprisonment already under gone and Rs. 5,000/- each as fine and in default of payment of fine 4 months S.I. Accused Sagar, Jagpat and Maku are also sentenced to undergo 1 year rigorous imprisonment and to pay a fine of Rs. 10,000/- each and in default of payment of fine 6 months S.I. All the sentences shall run concurrently. Time spent by the accused persons in jail during the trial shall be taken into consideration by the Court/Jail authorities. Out of amount deposited by the accused as fine Rs. 10,000/- each and in default of payment of fine 6 months S.I. All the sentences shall run concurrently. Time spent by the accused persons in jail during the trial shall be taken into consideration by the Court/Jail authorities. Out of amount deposited by the accused as fine Rs. 5,000/- to each of the son of deceased Subrati shall be paid as compensation under Section 350 CrPC. 30. Accused persons are not present. Their bail stand cancelled. Record be sent forthwith to the trial court along with copy of the judgment. Trial court shall issue process against the accused to secure their presence for the purpose to serve out the sentence. After modifying the warrant already issued, accordingly, the learned trial court shall take the accused persons into custody and sent them to jail for the compliance of the order and shall report to this Court within two months about the compliance. 31. With the above observations, the appeal is finally disposed of.