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2013 DIGILAW 153 (ALL)

BHOPAL SINGH v. STATE

2013-01-11

RAJES KUMAR

body2013
Rajes Kumar, J. This Criminal Appeal has been preferred by the appellant against the judgment and order dated 29.5.1982 of the IV Additional District and Sessions Judge, Kanpur in Sessions Trial No. 5 of 1982, holding the appellant guilty of offence under Section 307 IPC and sentencing him of three years' rigorous imprisonment. Briefly stated, the case set up by the prosecution was that the appellant and the injured, both were residents of Village Mahera, Police Station Bhognipur, District Kanpur. On 3.11.1981 at about 8:30 A.M., Mohar Singh, the injured ( P.W.-3) was standing infront of his house. Babu Ram, C.W.1 was also present at his door, whose house was situate only 8-10 paces from the house of Mohar Singh in the same lane. According to the prosecution, three accused persons, namely, Akbar Singh, Laxman Singh and Bhopal Singh came to the house of Mohar Singh. Akbar Singh and Laxman Singh caught hold of Mohar Singh, the injured and appellant pierced knife in the abdomen of Mohar Singh. This incident was witnessed by Babu Ram, C.W.I, Vidya Lal P.W.1, Rajesh and Chandrapal. Vidya Lal, P.W.1, the brother of the injured Mohar Singh alongwith other villagers took the injured to the hospital for medical treatment. Firstly, they took the injured to Police Station Bhognipur in a Tractor where Vidya Lal lodged a self written report at about 9:20A.M. Head Constable Kamal Prasad, P.W.4 prepared the check report and registered the case. Thereafter, Mohar Singh, the injured was sent to the State Dispensary, Pukhrayan where Dr. Ganga Krishna, P.W.2 examined Mohar Singh at 9:30 A.M. and he found following injuries:- "Incised wound 1.5 cm x 0.3 cm probing note done on left side of abdomen 6 cm above umbilicus, edges clean cut regular averted Blood fresh clots were present. X-ray was advised. Injury was kept under observation." In the opinion of the Doctor, the injury was caused by sharp edged weapon and its duration was fresh. Injured was referred to district Hospital for X-ray and for other treatment. The injured was admitted in UHM Hospital, Kanpur on 3.11.1981. According to Dr. R.K. Kashyap, who was on duty, the condition of the injured was very serious. The operation was conducted on the next day. According to the Doctor the injury was serious enough to cause death in the ordinary course. Mohar Singh was discharged from the hospital on 15.11.1981. The injured was admitted in UHM Hospital, Kanpur on 3.11.1981. According to Dr. R.K. Kashyap, who was on duty, the condition of the injured was very serious. The operation was conducted on the next day. According to the Doctor the injury was serious enough to cause death in the ordinary course. Mohar Singh was discharged from the hospital on 15.11.1981. Sub Inspector, Karedin Rakesh, P.W.5, investigated the case. He recorded the statement of Mohar Singh on 10.11.1981 and also recorded statement of Vidya Lal in the hospital. He recorded the statements of Rajesh and Baburam. He arrested Akbar Singh, one of the accused, but other accused persons surrendered in the court. After completing the investigation, he submitted the Chargesheet. Accused persons denied the prosecution allegations. Before the Trial court, the accused persons took the defence that they have been falsely implicated. All the witnesses belong to one party. There is animosity between them and the injured. There is no independent witness. In support of the case, the prosecution produced six witnesses, namely, Vidya Lal P.W.1, brother of the injured and the first informant as well as eye witness, Dr. Ganga Krishna, P.W.-2, who examined the injuries of the injured Mohar Singh, Mohar Singh, PW-3, injured himself, Kamal Singh, Head Constable, PW-4, who prepared the Check Report and registered the case, Sub Inspector-Karedin Rakes, P.W.5 and Dr. R.K.Kashyap, P.W.-6, who did operation in UHM Hospital. Babu Ram, an alleged eye witness was examined as a court witness. Accused persons examined Lalloo Singh, DW-1, who stated that about six months before at about 3-4 A.M. he found that Mohar Singh had been stabbed in his abdomen and women of his house were weeping. On being asked by him, Mohar Singh told him that he has been assaulted and attacked by some unknown assailants. So far as the injuries of Mohar Singh are concerned, there is no dispute from the side of the accused persons. The Trial court has observed that the injury report would indicate that Mohar Singh, the injured, sustained injuries on 3.11.1981 Dr. Ganga Saran examined the injury and he found that the injuries were fresh. Therefore, there can be no doubt that Mohar Singh sustained stab injury in his abdomen on 3.11.1981. From the statement of Dr. Kashyap, PW-6, it is clear that the said injury was fatal and could cause death to the injured in the ordinary course. Ganga Saran examined the injury and he found that the injuries were fresh. Therefore, there can be no doubt that Mohar Singh sustained stab injury in his abdomen on 3.11.1981. From the statement of Dr. Kashyap, PW-6, it is clear that the said injury was fatal and could cause death to the injured in the ordinary course. However, Dr. Kashyap was not examined on this aspect. The question arises to be considered whether the said injury was caused by the accused Bhopal Singh, appellant herein, as alleged by the prosecution and whether other two accused persons accompanied him with common intention. In this case, there are three witnesses of the incident. One Mohar Singh, PW-3, the injured himself, Vidya Lal, PW-1 and Babu Ram, CW-1. So far as Mohar Singh is concerned, since he himself is injured, his presence cannot be doubted. He specifically attributed the role of stabbing by knife to Bhopal Singh, appellant. He in his statement has stated that Bhopal Singh pierced the knife in his abdomen at about 8:30 A.M. Since the alleged incident is of day time, there may not be any doubt of identity of the accused person as they are residents of the same locality. Vidya Lal, PW-1, who is real brother of the injured, in his statement has stated that on hearing noise he came out of his house and seen the incident. His presence on the place of incident has been further testified by Babu Ram, CW-1. It has also been noted that the injured was taken to the hospital by Vidya Lal and the First Information Report has also been lodged by him. He in his statement has stated that by the time he came out of the house, he could not see the actual assault, but he did see Bhopal Singh with a knife in his hand and two other accused persons were standing near him. His statement has further been supported by Babu Ram, CW-1, who is an independent witness, whose house is situated at a close distance of the house of the injured, Mohar singh and from the place of incident. Babu Ram in his statement has stated that he has seen the incident and by the time he reached the place of incident, the accused persons gone back to their houses. No enmity of this witness with the accused has been mentioned. Babu Ram in his statement has stated that he has seen the incident and by the time he reached the place of incident, the accused persons gone back to their houses. No enmity of this witness with the accused has been mentioned. However, a faint plea has been raised that he is a relation of the injured. However, Babu Ram denied that the common ancestor of him and the injured were the same. Thus, the most reliable witness, Babu Ram, CW-1, has also attributed the role of stabbing to accused Bhopal Singh. On the other hand, the appellant produced Lalloo Singh, DW-1 in support of their case. The evidence of Laloo Singh is of a negative character and it appears to be an after thought which also does not inspire confidence. Heard Sri Pradeep Chauhan, learned counsel for the appellant and Sri A.K. Verma, learned AGA, appearing on behalf of the respondent. Learned counsel for the appellant submitted that it has been alleged that the injury was caused by a knife, however, the knife was not recovered. The statement of the injured that he was caught hold by Atar Singh and Laxman Singh has also been disbelieved by the Trial court. Except the testimonies of the injured, Mohar Singh and his brother, Vidya Lal, who are not independent witnesses, no other witness has stated involvement of the appellant in the occurrence. Both the injured, Mohar Singh and his brother, Vidya Lal, are the interested persons and, therefore, on the basis of their statement, the appellant should not be prosecuted. He further submitted that the appellant has no criminal history and has no enmity with the injured, therefore, there was no reason for causing injury to Mohar Singh. In the alternative, he submitted that it is a case of prosecution that the injury was caused by knife, but only one blow was caused and seeing the nature of the injury it could not be said that there was any intent to cause death and as such at the most an inference can be drawn that the motive was only to cause injury or cause physical harm to the injured and, therefore, in the circumstances, the case does not fall within the purview of Section 307 IPC, rather, the it only falls under Section 324 of the IPC. It has also been submitted that since 31 years have already passed from the date of occurrence and there is also no evidence on record of any further crime being committed by the appellant, thus, the punishment may be converted into a reasonable amount of fine. On the other hand, Sri A.K. Verma, learned AGA, submitted that Mohar Singh, the injured, in his statement has categorically stated that the appellant has pierced the knife in his abdomen where the vital parts of the body are located. Vidya Lal, PW-1, who is the real brother of the injured and reside in the same house, when came out of the house on hearing the noise, he also seen the appellant with the knife and other two persons, namely, Atar Singh and Laxman Singh, standing beside him. The statement of Vidya Lal, PW-1, and the injured has been corroborated by the statement of the independent witness Babu Ram, CW-1, the neighbour of the injured. It has not been pleaded that this witness has any enmity with the appellant and, therefore, from the statement of the injured, Mohar Singh, Vidya Lal, P.W-1, brother of the injured and Babu Ram, CW-1, an independent witness, it has been clearly established that the appellant pierced knife inside the abdomen of the injured where the vital parts of the body are located and in case if the injury would have been caused deeper and at some upper portion of the abdomen, it would have been proved to be fatal for the life of the injured. Therefore, the act of the appellant was not just to cause injury, but his intent was to cause death to the injured. I have considered rival submissions and perused the impugned order as well as the materials available on record. The time of the incident has been disputed by the appellant before the Trial court, but the same has not been accepted by the Trial court and the finding recorded by the Trial court on this aspect has not been challenged by the appellant. According to the prosecution, on 3.11.1981 at about 8:30 A.M., Mohar Singh, the injured ( P.W.-3) was standing infront of his house. Babu Ram, C.W.1 was also present infront of door of his house, whose house was situate only 8-10 paces from the house of Mohar Singh in the same lane. According to the prosecution, on 3.11.1981 at about 8:30 A.M., Mohar Singh, the injured ( P.W.-3) was standing infront of his house. Babu Ram, C.W.1 was also present infront of door of his house, whose house was situate only 8-10 paces from the house of Mohar Singh in the same lane. According to the prosecution, three accused persons, namely, Atar Singh, Laxman Singh and Bhopal Singh came to the house of Mohar Singh. Atar Singh and Laxman Singh caught hold of Mohar Singh, the injured, and appellant pierced knife in the abdomen of Mohar Singh. This incident was witnessed by Babu Ram, C.W-I, Vidya Lal P.W.1, Rajesh and Chandrapal. Vidya Lal, P.W.1, the brother of the injured, Mohar Singh, alongwith other villagers took the injured to the hospital for medical treatment. Firstly, they took the injured to Police Station Bhognipur in a Tractor where Vidya Lal lodged a self written report at about 9:20A.M. Head Constable Kamal Prasad, P.W.4 prepared the check report and registered the case. Thereafter, Mohar Singh, the injured was sent to the State Dispensary, Pukhrayan where Dr. Ganga Krishna, P.W.2 examined Mohar Singh at 9:30 A.M. and he found following injuries:- "Incised wound 1.5 cm x 0.3 cm probing note done on left side of abdomen 6 cm above umbilicus, edges clean cut regular averted Blood fresh clots were present. X-ray was advised. Injury was kept under observation." In the opinion of the Doctor, the injury was caused by a sharp edged weapon and were fresh. Injured was referred to district Hospital for further treatment. The injured was admitted in UHM Hospital, Kanpur on 3.11.1981. According to Dr. R.K. Kashyap, who was on duty, the condition of the injured was very serious. The operation was conducted on the next day. According to the Doctor the injury was serious enough to cause death in the ordinary course. Mohar Singh was discharged from the hospital on 15.11.1981. Sub Inspector, Karedin Rakesh, P.W.5, investigated the case. He recorded the statement of Mohar Singh on 10.11.1981 and also recorded statement of Vidya Lal in the hospital. He recorded the statements of Rajesh and Baburam. The first information report was lodged on 3.11.1981 at about 9:20 AM, just immediately after the incident by Vidya Lal, the brother of the injured, Mohar Singh. He recorded the statement of Mohar Singh on 10.11.1981 and also recorded statement of Vidya Lal in the hospital. He recorded the statements of Rajesh and Baburam. The first information report was lodged on 3.11.1981 at about 9:20 AM, just immediately after the incident by Vidya Lal, the brother of the injured, Mohar Singh. In the First Information Report, Vidya Lal, P.W-1, has categorically stated that the appellant has pierced the knife inside the abdomen of his brother due to which he sustained injuries. He stated that Atar Singh and Laxman Singh were having old enmity with his brother. They caught hold of his brother, while the appellant pierced the knife inside the abdomen. He also stated that the incident was seen by Rajes, Son of Natthu Ram and Babu Ram, Son of Buddha. Mohar Singh, the injured in his statement has also stated that Atar Singh and Laxman Singh caught hold of him and asked the appellant to beat ( Maaro) the injured and the appellant pierced knife in his abdomen and on his shouting, Babu Ram, CW-1 has shouted and exhorted them not to physically assault the injured. Meanwhile, Rajes and Chandrapal, who were passing from there have also seen the incident and they also exhorted and proceeded towards the place of incident and seeing them, the accused persons ran away from the spot. On hearing the shouting, my brother, Vidya Lal, PW-1, who also reside with me, came out of the house, thereafter, all the accused persons ran away. The injured, Mohar Singh also stated that he had an old enmity with Atar Singh and Laxman Singh. Babu Ram, CW-1, in his statement has stated that his house is situated near the house of Mohar Singh. When he was standing infront of his house and the injured Mohar Singh was standing infront of his house, the appellant accompanied by Atar Singh and Laxman Singh reached there. While Atar Singh and Laxman Singh caught hold of the injured, Mohar Singh, the appellant pierced the knife in the abdomen of the injured and when I started shouting and exhorted them not to do it, they ran away. The incident was also seen by Rajes and Chandrapal, who also shouted. On hearing the noise, Vidya Lal, PW-1, the brother of the injured also came out of his house. The incident was also seen by Rajes and Chandrapal, who also shouted. On hearing the noise, Vidya Lal, PW-1, the brother of the injured also came out of his house. Vidya Lal, PW-1, in his statement has stated that on the day of the incident, his brother, Mohar Singh, the injured, was standing infront of his house when the appellant accompanied by Atar Singh and Laxman Singh came there. Atar Singh and Laxman Singh caught hold of his brother by catching right and left hands and the appellant pierced the knife in the abdomen of his brother, Mohar Singh. At the time of incident, Rajes and Chandra Pal were also present, who exhorted and on their shouting, the appellant and other accused ran away. The statements of the appellant, Bhopal Singh, Atar Singh and Laxman Singh were also recorded in the form of question and answer. In their statements, they have denied their involvement in the incident and any knowledge about the incident. The statements of the injured, Mohar Singh and Vidya Lal, PW-1, brother of the injured, corroborated by the witness, Babu Ram, CW-1, prove the involvement of the appellant in the incident of causing injury to Mohar Singh, the injured, by knife. There is no contradiction in the statements. The statements of all the three support statements of each other. They were eye witnesses. It is not the case of the appellant that Babu Ram was in any way related to the injured. He was an independent witness. It is also not the case of the appellant that Vidhya Lal, PW-1, the brother of the injured derives some benefit out of the result of the litigation. Merely because he was the brother of the injured, he cannot be said to be the interested witness. The Apex Court, in a recent decision, in the case of Gajoo v. State of Uttarkhand, reported in ( 2012) 9 SCC 532 , has held that the related witness does not necessarily mean or is equivalent to the interested witness. A witness may be called 'interested' only when he or she derives some benefit from the result of the litigation; in the decree in a civil case, or in seeing an accused person punished. This view has also been taken by the Apex Court in the case of State of U.P. v. Kishanpal, reported in ( 2008) 16 SCC 73 . This view has also been taken by the Apex Court in the case of State of U.P. v. Kishanpal, reported in ( 2008) 16 SCC 73 . In the case of Darya Singh v. State of Punjab, reported in AIR 1965 SC 328 , the Apex Court has held that on principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars. Merely because co-accused, Atar Singh and Laxman Singh were acquitted, by giving the benefit of doubt, may not be a ground for acquittal of the appellant. In my view, the ground taken by the Trial court for acquittal of Atar Singh and Laxman Singh does not appear to be sound because in the First Information Report and in all the statements involvement of Atar Singh and Laxman Singh in the incident has been clearly stated. Therefore, in the facts and circumstances of the case, I do not find any error in the view taken by the Trial court about the involvement of the appellant in causing injury to the injured. However, having regard to the fact that the appellant has been exhorted by the co-accused to beat the injured and also having regard to the injuries caused in the abdomen, which was not much deeper and not caused in the upper portion of the abdomen where the vital parts of the body are located, the intent of the appellant appears only to physically harm the injured and not to kill the injured. Though, the nature of the injury may be such which may cause the death, but the case more appropriately falls within the purview of Section 324 of the IPC and is not a case under Section 307 of the IPC. Having regard to the facts and circumstances of the case, the sentence of three years' rigorous imprisonment awarded by the Trial court is reduced to two years rigorous imprisonment with the fine of Rs.10,000/= ( Rupees Ten thousand only). In case if the appellant fails to deposit the amount of fine, within one year, he shall be subjected to further rigorous imprisonment of six months. In the result, the Criminal Appeal is allowed in part. In case if the appellant fails to deposit the amount of fine, within one year, he shall be subjected to further rigorous imprisonment of six months. In the result, the Criminal Appeal is allowed in part. The appellant is on bail. The Chief Judicial Magistrate is directed to take the appellant into custody and send him to jail for serving out the sentence, as above. Office is directed to communicate this order to the C.J.M. concerned for compliance within a period of one week.