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2012 DIGILAW 2602 (ALL)

BRAHMDEO YADAV v. STATE OF U. P.

2012-11-06

A.P.SAHI

body2012
A.P. Sahi, J. The six appellants in this Appeal stood trial in Session Trial No.167 of 1980 and vide judgment dated 10.8.1982 all the appellants were convicted with separate sentences that have been awarded for offences under Section 147 /148/149/324 & 325 IPC for different periods without imposing any fine or any other alternative sentences. The said judgment dated 10.8.1982 is under Appeal. It is on record that the appellant No.3 - Chhedi and appellant No.5 - Balmiki died during the pendency of the appeal, therefore, the appeal against them stood abated. Sri V.P. Srivastava, learned Senior Counsel, assisted by Sri S.K. Dwivedi has been heard on behalf of the appellants and Sri Mahendra Bahadur Singh and Sri Sageer Ahmad for the State. The incident is of 28.3.1978 and the First Information Report narrates that the injured Jokhu Lal Pathak, while he was harvesting his crop of Gram in his agricultural holding along with his son and his brother-in-law Ram Dular, the appellants, who bore an old enmity due to village party politics and a previous incident, arrived at the scene of occurrence fully armed and with a common intention, exhorted to assault the injured with an intention to kill. The F.I.R. narrates that the appellant No.1 - Brahmdeo Yadav was armed with a "Pharsa", which is a sharp edged long weapon, Jai Narain - the appellant No.2 was also armed with a similar weapon and one other accused who is not the appellant namely Rajendra was carrying a spear with him. The other named in the F.I.R. and the appellants before this Court namely Chhedi, Ramdev, Balmiki and Muneshwar were armed with Lathis ( Stick). It is alleged that all of them simultaneously assaulted the injured and the informant. They sustained injuries from the said weapons and both hands of Jokhu were broken. The injured in this state were rushed on a Jeep accompanied by his brother-in-law Ram Dular to Deoria, District Sadar Hospital, where Jokhu was medically examined and the F.I.R. was lodged on the same day naming 7 accused including Rajendra, who is not the appellant before this Court. The recovery of blood-stained mud was made on the next day and a memo was prepared together with a separate memo in relation to the blood-stained clothes which is also an exhibit on record. The recovery of blood-stained mud was made on the next day and a memo was prepared together with a separate memo in relation to the blood-stained clothes which is also an exhibit on record. The medical examination that was conducted at 1.35 P.M. on the date of the incident itself records 9 injuries on the person of Jokhu Lal Pathak. The injuries are as follows:- "( 1) Lacerated wound 1/4" x 1/10" x scalp deep on left side head 3" above the left ear pinna. ( 2) I.W. 1/4" x 1/10" x skin deep on the left upper arm linear third outer aspect. ( 3) I.W. 1/4" x 1/10" x skin deep on the left upper arm outer aspect 1" above the injury No. ( 3) U.O. Contused swelling 10" x around the lower third of left upper arm, covering left elbow back & upper 2/3rd of left fore-arm-underlying left humorous bone is fractured at its lower third shaft and left forearm line are fractured clinically. ( 4) U.O. I.W. Two each measuring 1/4" x 1/10" x muscle deep lying 1/2" apart on the Rt. Upper arm lower third-outer aspect 1/4" above Rt. Elbow with contused swelling 6" x around the lower two third of Rt. Upper arm covering Rt. elbow under lying Rt. Humorous bone fractured middle. ( 5) Multiple contusion over lapping each in area of 6-1/2" x 4" on the left buttock outer aspect. ( 6) I.W. 1" x 1/2" x bone upper part skin libia 1" below left knee joint. ( 7) I.W. 1" x 1/4" x muscle left leg inner aspect lever third part 1-1/2" above left ankle. ( 8) Contusion 5" x 1" on the back of chest middle oblique in direction extending both side of Thoracic spine. ( 9) Contused swelling with abdomen 1-1/2" x 1" on the Rt. Leg lower third outer aspect." There are, thus, 5 incised wounds and 3 injuries of contusion. The medical opinion records that injury Nos. 3 and 4 were kept under observation and X-Ray was advised. Thereafter, charges were framed against all the 7 accused under Section 307 read with Section 149IPC vide order dated 20.10.1981 and the trial proceeded. The statement of the injured Jokhu Lal Pathak was recorded as PW-1, the statement of PW-2 Shri Niwas Pathak, his son and the statement of one family relative Ram Nagina Pathak was recorded as PW-3. Thereafter, charges were framed against all the 7 accused under Section 307 read with Section 149IPC vide order dated 20.10.1981 and the trial proceeded. The statement of the injured Jokhu Lal Pathak was recorded as PW-1, the statement of PW-2 Shri Niwas Pathak, his son and the statement of one family relative Ram Nagina Pathak was recorded as PW-3. The Investigating Officer - Bhim Rao, Sub-Inspector of Police also entered into the witness-box as PW-4 and Dr. M.S. Alam, a Medical Officer, who carried out the medical examination and prepared the report, entered the witness-box as PW-5. The X-Ray Technician of the Hospital Kunj Bihari Singh entered the witness-box as PW-6 and Gopalji Chaubey another police official to support the transcribing of the F.I.R. entered the witness-box as PW-7. All the 7 accused were examined under Section 313 Cr.P.C. and Dr. Farooq entered the witness-box on behalf of the defence as DW-1. This Doctor had issued a Medical Certificate in favour of the appellant No.1 - Brahmdeo Yadav certifying that he was under his treatment between 23.3.1978 and 1.4.1978 for some breathing problem. After the evidence closed, the trial court proceeded to examine the same and ultimately convicted 6 of the accused except Rajendra, who was acquitted giving him the benefit of doubt. This is how the present appellants are before this Court in Appeal. Learned counsel has taken the Court through the statement of the witnesses of the prosecution as well as of the defence in extenso and it has been urged that the appellants were falsely implicated and there is a exaggeration in number of the accused. The extent of the cut injuries has been explained by Sri V.P. Srivastava to urge that none of them have been caused by a sharp edged weapon like a Pharsa and the cause of the incised injuries do not stand corroborated with the allegations as suggested by the prosecution. He further contends that Pharsa is alleged to have been in the hands of the appellant Nos. 1 and 2 and the other 4 accused are said to have been armed with Lathis. Sri Srivastava, therefore, submits that there is no individual role assigned to any of the appellants and there is no evidence to indicate or nominate each individual in respect of the injury caused. He has relied on the judgment in the case of Shri Kishan and others Vs. Sri Srivastava, therefore, submits that there is no individual role assigned to any of the appellants and there is no evidence to indicate or nominate each individual in respect of the injury caused. He has relied on the judgment in the case of Shri Kishan and others Vs. State of U.P., AIR 1972 Supreme Court 2056, to urge that the offence would in no case travel up to section 307 IPC and the injuries being simple in nature, there could not have been a conviction for offences even under Sections 324 and 325 IPC. He further submits that the evidence nowhere indicated a premeditation or any element of common intention or common object so as to implicate all the appellants with the aid of section 149 IPC. He contends that a very important witness namely Ram Dular, who is said to have been accompanied the injured at the time of harvesting when the incident took place, was never produced as a witness and, therefore, such a lapse on the part of the prosecution should be sufficient to draw an adverse inference against the prosecution. He submits that the absence of the testimony of such an eye witness is fatal to the prosecution which clearly establishes that the guilt was not proved beyond the reasonable doubt. He has further invited the attention of the Court to the statement of Sub-Inspector of Police - Bhim Rao to point out infirmities in the investigation and contends that the past criminal History of the injured reflects on the character of that person who would not hesitate in falsely implicating the appellants. Coming to the nature of the injuries, Sri Srivastava contends that none of the incised injuries were on any vital part nor did they cause any internal damage. Some of the incised wounds were only skin deep. The contusion clearly related to the alleged injuries by Lathis and were not reported to be serious or grievous so as to gather an intent to murder. The dimensions of the cut injuries were so negligible that there was no possibility to gather an impression of an attempt to cause grievous hurt. He further submits that the alleged motive that was sought to be fixed on the appellants particularly on Brahmdeo Yadav by narrating the issue of theft of the same village and the involvement of one Nand Prasad which remained unestablished. He further submits that the alleged motive that was sought to be fixed on the appellants particularly on Brahmdeo Yadav by narrating the issue of theft of the same village and the involvement of one Nand Prasad which remained unestablished. According to Sri Srivastava, all the appellants were falsely implicated on account of village party politics. The incised wounds are nowhere of that of a Pharsa which weapon was not used in it's normal course and, therefore, it's attribution for gathering an inference that the offence travelled up to Section 325IPC would be unjustified. In his summation, Sri V.P. Srivastava contends that the accused appellants are of advance age, the injured has also died long back and in the event this Court does not find any reason for acquittal then in that view as an alternative argument, he submits that the offence does not travel so as to make it punishable beyond 323 IPC and, as such, the same should be treated as such and the appellants be awarded punishment if required by letting them off on the period undergone with imposition of some fine. The learned A.G.A., on the other hand, contends that the manner in which all the accused arrived on the spot armed with lethal weapons, the intention was quite clear and he has urged that it was not only knowledge but intention as well with a common object to commit the murder of the injured or at least to cause grievous hurt that the assault was made. The learned A.G.A. contends that the very use of lethal weapons with several blows cumulatively indicates the motive and intention with which it was caused and the previous acquaintance as well as the enmity was established so as to bring about a conviction. Having heard learned counsel for the parties and having perused the evidence on record as well as the findings recorded by the trial court, the drawing of an inference for the purpose of motive, which is a twin edged weapon to be employed for punishment, suffice would be to record that the old enmity did indicate that they had strained relation atleast between Brahmdeo Yadav and the injured Jokhu Lal Pathak. Thus, so far as Brahmdeo Yadav is concerned, there might have been this in the background for him to have led the team of assault. Thus, so far as Brahmdeo Yadav is concerned, there might have been this in the background for him to have led the team of assault. So far as the actual assault is concerned, it is clear that Ram Dular the brother-in-law of the injured Jokhu Lal Pathak was never produced as a witness and, who was the main eye witness named in the F.I.R. said to be present at the time of occurrence. Ram Nagina Pathak, who is a collateral of the injured, arrived at the spot after the incident had already occurred. The statement of Jokhu Lal Pathak, the injured, indicates that the assault was made for about 1 - 1½ minutes. It is, thus, clear that it was Ram Dular or the injured himself, who witnessed the assault but Ram Dular was never produced in the witness-box. Ram Nagina Pathak in his cross examination has admitted that he arrived after the incident had already occurred. The aforesaid testimony, therefore, of the other witnesses apart from the injured witness, therefore, is not that of an eye witness. The discrepancies, however, as alleged by the learned counsel for the appellants do not travel beyond a minor discrepancy in description and, as such, the statement of the injured witness at least has to be given credit as held by a Division Bench of Gujarat High Court in the case of State of Gujarat Vs. Bharwad Jakshibhai Nagribhai and others, 1990 Cr.L.J 2531 ( paragraph No.28). The aforesaid judgment has been affirmed by the Apex Court reported in ( 1995) 5 SCC 602 . In view of the principles indicated in the aforesaid judgments any exaggeration or embellishment has to be segregated, but the statement of the injured witness cannot be discarded outright even if the injured witness has tried to lace his statement with some embroidery. The question is as to what extent the said testimony of the injured witness has been corroborated. One of the eye-witnesses named in the F.I.R. as pointed out herein above Ram Dular was not produced at all. He was an eye-witness, who could have clearly supported the stand of the prosecution but the same was withheld. The injuries are, however, corroborated by the oral testimony and medical report. One of the eye-witnesses named in the F.I.R. as pointed out herein above Ram Dular was not produced at all. He was an eye-witness, who could have clearly supported the stand of the prosecution but the same was withheld. The injuries are, however, corroborated by the oral testimony and medical report. Coming to the issue of the knowledge and intention as well as the common object with which the offence is said to have been committed, the Court has to assess the same in the light of the principles as laid down by the Apex Court in the case of Kesar Singh and another Vs. State of Haryana, reported in ( 2008) 15 SCC 753 . The evidence has been unable to establish as to what prevented the assailant from executing their alleged premeditated intent to commit the offence. The nature and the seat of the injuries to my mind were inflicted in broad day light and without any resistance to the assailant. The accused were, thus, not prevented from carrying out their intent and alleged purpose to commit the offence. The nature of the injuries were undoubtedly not as simple as suggested by the learned counsel for the appellant. The existence of the fracture and the superficial incised wounds coupled with the other injuries are multiple injuries of hurt. The medical examination report, therefore, corroborates the testimony of the injured as extracted herein above. These injuries, therefore, leave no room for doubt that they definitely fall within the definition of an offence as contemplated under Sections 324 & 325 IPC, the reason being that 7 of the injuries even though not on any vital part of the body but are sufficiently seated on the arms and the legs of the injured. One contusion is of a very small area on the abdomen and one lacerated wound which is stated to be of a very minor dimension is scalp deep on the left side of the head. These two injuries appear to have been caused by Lathis and do not indicate such force so as to cause grievous hurt at least when he was almost in a helpless available position surrounded by 7 persons. There is no indication that the injured was helped out of the situation at the time of the incident. These two injuries appear to have been caused by Lathis and do not indicate such force so as to cause grievous hurt at least when he was almost in a helpless available position surrounded by 7 persons. There is no indication that the injured was helped out of the situation at the time of the incident. These factors coupled with the background in which the incident had occurred, the offence, in my opinion, does satisfy the ingredients of an intention so as to establish the culpability of the offence for causing hurt. Accordingly, this Court finds no reason to accord any other conviction other than what has been recorded by the trial court. The conviction and sentence awarded is, therefore, confirmed but in view of the fact that all the appellants except those who had died have entered an advance stage of their life and are old and infirm and they have also been waiting for 32 years for their ordeal to come to an end, this Court modifies the sentence awarded to the extent of period undergone in respect of the surviving appellants with a fine of Rs.5000/- each on the appellant Nos.1, 2, 4 & 6. The appeal is, therefore, dismissed subject to the modification in the sentence herein above. In the event the appellants fail to deposit the fine, they shall undergo rigorous imprisonment of 3 months each in lieu thereof.