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2013 DIGILAW 1105 (ALL)

BABULAL v. STATE OF U. P.

2013-04-12

RAJES KUMAR

body2013
Rajes Kumar, J. Heard Sri Rajeev Lochan Shukla alongwith Sri Shailendra Singh, learned counsel appearing on behalf of the appellants and learned Additional Government Advocate, appearing on behalf of the respondent. This Criminal Appeal has been preferred by the appellants against the judgment and order dated 21st June 1982, passed by the Vth Additional District & Sessions Judge, Gorakhpur, in Sessions Trial No. 604 of 1981, convicting the appellants for five years' rigorous imprisonment. The prosecution case was that Ramgati, the complainant, resident of Village Keshopur, accompanied by his brothers, Brij Kumar and Babarsi, was coming back from the market on 31.7.1980 after purchasing vegetables etc. at about 8:15 PM. When they reached near the house of Thakur Patharkatt, he was faced with three accused. Accused Babulal and Ramraj exhorted the other accused Bindra to kill the complainant, who fired a gun shot at the complainant. The complainant sustained injuries, several villagers reached at the place of incident and saw that the accused were running away. The complainant lodged a complaint written by one Brij Kumar at Police Station at about 9:10 PM, the same night. A case was registered on the basis of the said written complaint and the investigation was handed over to Sub Inspector, K.N. Chaudhary. The complainant was sent for medical examination and treatment. He was examined by Dr. R.S. Goel. After completion of investigation, a chargesheet was submitted by the Investigating Officer against all the accused persons. Accused Bindra was charged under Seciton 307 IPC, while the other two accused were charged under Sections 307 and 34 IPC. All the accused pleaded that they are not guilty and they have been falsely implicated and claimed for trial. Prosecution to prove its case examined P.W.1-Dr. S.C. Tripathi, P.W.2-Banarsi, P.W.3- Balli, P.W.4-Dr. R.S. Goel, P.W.5-Ram Gati, P.W. 6-Brij Kumar and P.W.-7-S.I. K.N. Chaudhary. Dr. R.S. Goel, P.W.4, who examined the complainant, in the District Hospital, Gorakhpur found following injuries on his person: 1. Multiple lacerated wound in an area of 9.5 cm x 3.5. cm, depth could not be measured due to injury located near the chest, on vital part, injuries were 5 in number. Maximum size was 2x 1 cm and minimum size was 5 cm x 5 cm on back of right shoulder including upper arm. Bleeding present. Blackening was also present around each injury. Injuries kept U/O. Advised X-ray. cm, depth could not be measured due to injury located near the chest, on vital part, injuries were 5 in number. Maximum size was 2x 1 cm and minimum size was 5 cm x 5 cm on back of right shoulder including upper arm. Bleeding present. Blackening was also present around each injury. Injuries kept U/O. Advised X-ray. Pellets were palpable on the medical and anterior surface of right upper arm. Injuries entrance injuries. Margins inverted and irregular. There was no corresponding exit wound on the body. 2. Abrasion 2 cm x 2 cm on the left side of back 8 cm below the lower part of scapula. Dr. R.S.Goel advised X-ray of injury no.1. He found the complainant intoxicated with liquor. According to Dr. Goel, injury no.1 was caused by a fire-arm which could have been a country made pistol. Both the injuries were likely to be caused at 8:15 PM of the same night. He prepared the injury report Ex. Ka-2. P.W. 1-Dr. S.C. Tripathi, Radiologist, proved X-Ray plate and X-ray report. He found foreign body shadow in the right shoulder back of the complainant in the X-ray and observed that the same could have been of pellets. P.W.-2, Banarsi did not support the prosecution case. He said that he did not see any one firing shot at Ramgati and did not gave any statement to the Investigating Officer. The complainant, P.W.-5, complainant's brothers Balli and Brij Kumar, P.W-3 and P.W-6 supported case of the prosecution. P.W-3, Balli, in his statement, has stated that while they were returning from the market alongwith Ramgati, Brijkumar had a torch. When they reached near the house of Thakur Patharkatt, all of a sudden they were faced by the accused. He stated that on the exhortion of Ram Raj and Babulal, the accused Brinda fired gun shot at the complainant by a country made piston, causing injuries on the right shoulder of the complainant. He stated that he had seen the accused persons in the light of the torch. He further stated that when the complainant fell down, the accused persons ran away. He further stated that on the dictation of the complainant-Ramgati, Brij Kumar written the complaint. The accused, Ram Raj and Babulal are residents of the same village while the other accused Brinda is resident of other village Lachui and the wife of Babulal is his kept. He further stated that when the complainant fell down, the accused persons ran away. He further stated that on the dictation of the complainant-Ramgati, Brij Kumar written the complaint. The accused, Ram Raj and Babulal are residents of the same village while the other accused Brinda is resident of other village Lachui and the wife of Babulal is his kept. He also stated that the market from where they were returning back is situated in village Lachui. P.W.5-complainant, Ramgati, also supported the prosecution case. In his statement, he stated that while he was returning back alongwith Banarsi, Brij Kumar and Balli from the market and when he reached near the house of Thakur Pattharkatt, he was fired at by the accused Brinda on exhortion of the other two accused, Babu Lal and Ramraj. He proved the report Ex Ka-3 and said that he lodged the report at the Police Station and was taken to Gorakhpur District Hospital. In his cross-examination, he admitted that he appeared as a witness in seven or eight cases on behalf of Police and also appeared as a witness against Ramraj. He stated that he had consumed liquor earlier in the market. He stated that his wife had not gone to the Police Station. He stated that prior to one year to this incident, his mother and wife were beaten by Ramraj and Babulal and a case has also been lodged against them. P.W-6, Brij Kumar is the scribe of the written report, Ex.Ka-3. He stated in his statement that when he was coming alongwith the victim, Balli and Banarsi and reached near the house of Thakur Patharkatt, the accused Babulal, Ramraj and Brinda Singh met. Babulal and Ramraj exhorted Brinda to kill the victim and then an explosion was made either by Brinda or by someone else. He stated that the explosion was either of shot fired by country made pistol or sound of explosion of country made bomb. He stated that in the light of torch flashed by him, he saw the three accused running away. He stated that the complainant sustained injuries on his right shoulder. He further stated that on the dictation of the complainant, he wrote the report. He also stated that he was named as a witness in a case under Section 307 IPC, but he did not appear as he did not see the accused person committing the crime. He stated that the complainant sustained injuries on his right shoulder. He further stated that on the dictation of the complainant, he wrote the report. He also stated that he was named as a witness in a case under Section 307 IPC, but he did not appear as he did not see the accused person committing the crime. He also stated that he was named as a witness in a case under the Excise Act but since he had not seen any thing he gave an affidavit. He stated that he has also not seen the arm by which the shot was fired and which caused the injury. P.W.-7, Sub Inspector K.N. Chaudhary was the Investigating Officer of the case. He proved the Chik report and also copy of the G.D. He interrogated the complainant at the Police Station and sent him for medical examination. He interrogated Balli and Brijkumar on 3.8.1980 and inspected the place of occurrence also. He also admitted that at the time of lodging of the report, wife of Ramgati, victim, was also present at the Police Station. The Trial court held as follows: In view of what has been said above, I am of the opinion that the prosecution has fully established that the complainant was fired at by accused Brinda on the exhortion of accused Babulal and Ramraj and the complainant received injuries consequent to the firing. I has been urged on behalf of the accused that it is not a case of an attempt to commit murder as the fire arm injury is on the back of right shoulder. This argument does not appear to be correct. The fire-arm injury is in an area of 9.5.cmX 3.5. Cm and doctor not dared to measure the depth of the injury for the fear that it may not cause further complications as the injury was located near the chest. According to the doctor, the injury could have caused the death. According to him, it was on a vital part. Thus, fire arm injuries were caused on a vital part and it was good luck of the complainant that he survived. The shot was fired from a close range of 6 feet. It was so done on the exhortion of the two accused who had previous enmity. According to him, it was on a vital part. Thus, fire arm injuries were caused on a vital part and it was good luck of the complainant that he survived. The shot was fired from a close range of 6 feet. It was so done on the exhortion of the two accused who had previous enmity. The firing from a close range by a fire arm on a vital part goes to fully establish that the intention of the accused was to kill. I am, therefore, of the opinion that the cases is one u/s 307 I.P.C. and the accused persons have committed an offence of attempt to commit murder. The charges framed against the accused, therefore, have been brought home to the accused who are liable to be convicted accordingly. Learned counsel for the appellant submitted that the accused Ramraj died during the pendency of the appeal, hence appeal against him will stand abated. He submitted that both the remaining accused, Babulal and Brinda have been falsely implicated by the injured-Ramgati. The whole story is a fabricated and has been cooked up just to harass the accused inasmuch as both the appellants were not involved in the alleged incident. He further submitted that Balli, an eye witness, in his statement has stated that he and Brij Kumar, both, possessed torches while in the first information report, availability of the torches, has no where been mentioned and when torches were available why the first information report was written in the light of lantern. He submitted that if Ramgati was injured, the first step would have been to take the injured to the hospital for first aid while in the present case, the injured got the first information report prepared himself. When according to the prosecution's story there was a complete dark, how the injured and the alleged witnesses have identified that who exhorted whom and on exhortion who fired gun shots. It has further been submitted that the injured has consumed alcohol and was intoxicated. It has been alleged that the lantern was brought from Tahkur Patharkat whereas he was not made witness. There is also no basis to arrive to the conclusion that the gun shot was fired at from a distance of six ft. The blackening normally indicates that the gun shot was fired at from a very close distance. It has been alleged that the lantern was brought from Tahkur Patharkat whereas he was not made witness. There is also no basis to arrive to the conclusion that the gun shot was fired at from a distance of six ft. The blackening normally indicates that the gun shot was fired at from a very close distance. The witnesses, namely, Balli and Brij Kumar are the professional witnesses, thus, no reliance can be placed on their witness. In the first information report as well as in the statements of the injured-Ramgati, it has come that at the time of the incident, Banarasi was present, but in his statement, Banarasi denied to have seen the alleged incident. Thus, on these contradictions, he submitted that the prosecution failed to establish involvement of the appellants in the incident and also failed to prove that there was any intent on the part of the appellant to liquidate the injured. Therefore, the case does not fall within the ambit of Section 307 IPC and as such the appellants are liable to be acquitted. On the other hand, the learned Additional Government Advocate, appearing on behalf of the respondent, relying upon the judgment of the Trial court, submitted that the evidences on record clearly establish involvement of the appellants in the incident; the incident took place at 08:15 PM, the first information report was lodged at 09:10 PM and the injured was medically examined at 10:30 PM. There was no delay in lodging the first information report and in the medical examination. Since the injured was in a conscious state of health and was in a position to move and identify the accused, he preferred to lodge the first information report himself. Merely because he preferred lodging of first information report, before going for medical treatment, cannot be said to be a ground for suspicion. The Doctor's report reveals injury to have been caused by gun shot fire which was fired from a distance of about 6 ft. The medical report also revealed that the gun shot injury was caused on the vital part of the body and might have caused death. The Doctor in his statement as well as in the cross-examination has also fortified his medical report and there is no material to the contrary in this regard. The medical report also revealed that the gun shot injury was caused on the vital part of the body and might have caused death. The Doctor in his statement as well as in the cross-examination has also fortified his medical report and there is no material to the contrary in this regard. Ramgati, the injured, in his statement has narrated the incident and has categorically stated involvement of the appellants. His statement has been supported by the statements of two witness, namely, Balli and Brij Kumar. In substance, there is no contradiction in the statements of all the three persons. The question of using of lantern while scribing the first information report when torches were available is wholly irrelevant and nothing turns out to be in favour of the appellants. Investigating Officer in his investigation found that the appellants were involved in the incident. The first information report and the statements of the witness clearly establish that accused Babulal and Ramraj exhorted Brinda to kill the complainant, who on their exhortion, fired gun shot from a country made pistol on the injured-Ramgati as a result of which the complainant sustained injuries on the vital parts of his body which could have caused death. It clearly goes to show that the intent of the accused persons was to liquidate the injured-Ramgati. I have considered rival submissions and evidences on record as well as perused the impugned judgment. In substance, I do not find any contradiction in the statements of the injured-Ramgati, Balli and Brij Kumar. Balli and Brij Kumar, both, have categorically stated in their statements that they were present at the place of the incident at the time of the incident. They also stated that they have no enmity with the appellants. Apart from the injured, both these eye witnesses also stated in their statement that Babulal and Ramraj exhorted Brinda to kill Ramgati, who, on their exhortion, fired gun shot at Ramgati causing fatal injuries on the vital parts of the body. Balli and Brij Kumar also stated that they had torches and they identified the accused persons and have seen them at the time of the incident. The medical report as well as the statement of the doctor also revealed bullet injuries on the body of the injured which was caused by the gun shot. Balli and Brij Kumar also stated that they had torches and they identified the accused persons and have seen them at the time of the incident. The medical report as well as the statement of the doctor also revealed bullet injuries on the body of the injured which was caused by the gun shot. The medical report also revealed that the gun shot was fired at from a distance of 6 ft. Thus, it is a case where the gun shot was fired at from a very close distance. The gun shot caused injuries on the upper part of the body where the vital parts of the body exist and the gun shot might have hit the vital part of the body which may have caused death. Thus, it clearly establishes that the intention of the accused was to liquidate Ramgati. Thus, having regard to the totality of the facts and circumstances as well as evidences on record, the prosecution succeeded in establishing involvement of the appellants in the incident and the intent of the accused to kill the injured-Ramgati and the appellants failed to falsify the case set up by the prosecution and as such I do not find any error in the view taken by the Trial court in arriving to the conclusion that the prosecution has proved the case of commission of an offence under Section 307 IPC, which has been committed by the appellants. The argument of learned counsel for the appellants that after the incident in which serious injuries have been caused to the injured-Ramgati, the first step would have been to take him to the hospital for treatment, but in the present case, instead of taking the injured to the hospital for treatment, the injured-Ramgati himself got the first information report prepared and registered and that when according to the witnesses, they were having torches whereas it has come that the first information report has been written in the light of lantern, are not sufficient to disbelieve the case setup by the prosecution which is based on the cogent evidences. Therefore, the arguments advanced by the learned counsel for the appellants have no force and cannot be accepted. Since appellant no.2, Ram Raj, died, therefore, the Criminal Appeal filed by him stands abated. Therefore, the arguments advanced by the learned counsel for the appellants have no force and cannot be accepted. Since appellant no.2, Ram Raj, died, therefore, the Criminal Appeal filed by him stands abated. When the incident took place in the year 1981, the appellant no.1, Babulal was aged about 24 years and appellant no.3, Brinda was aged about 30 years. Presently appellant no.1 would be about 57 years old and the appellant no.3 would be 60 years old. Both the appellant no.1 and appellant no3, Babu Lal and Brinda, have been awarded five years rigorous imprisonment. Having regard to the entire facts and circumstances and in the interest of justice, I am of the view that the period of sentences awarded to them would be too harsh. Accordingly, the sentence of five years rigorous imprisonment awarded by the Trial court is reduced to two years rigorous imprisonment with fine of Rs. 25,000/- each. In case if they fail to pay fine they may be sentenced to 6 months further imprisonment. In the result, the Criminal Appeal is allowed in part. The appellants are on bail. They are directed to surrender within one month. The Chief Judicial Magistrate, Gorakhpur is directed to take the appellants into custody and send them to jail for serving out the sentence, as stated above. Office is directed to communicate this order to the C.J.M. concerned for compliance within a period of one week.