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2016 DIGILAW 1696 (ALL)

RAM DULAR v. STATE OF U. P.

2016-05-04

RANJANA PANDYA

body2016
JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—Challenge in this appeal is to the judgment and order dated 23.2.1985, passed by II Additional Sessions Judge, Azamgarh, in Sessions Trial No. 301 of 1982 (State v. Ram Dular and others), under Sections 147, 148, 307/149, 323/149 I.P.C., Police Station Atrauliya, District Azamgarh, whereby the accused-appellants Gharib, Ram Pyare and Jawahir were found guilty and sentenced to undergo one year rigorous imprisonment under Section 148 I.P.C.; three months’ rigorous imprisonment under Section 323/149 I.P.C. and five years’ rigorous imprisonment under Section 307/149 I.P.C., whereas the accused appellants Ram Dular, Jagdamba, Ramakant, Ram Kripal and Jamuna were found guilty and sentenced to undergo one year rigorous imprisonment under Section 147 I.P.C.; three months’ rigorous imprisonment under Section 323/149 I.P.C. and five years’ rigorous imprisonment under Section 307/149 I.P.C. 2. Filtering out the unnecessary details the prosecution case in brief is that a written report was lodged by Phool Chand stating that Gharib and Ram Dular are real brothers. Their mother is common but fathers are separate. Both have filed civil suit against the informant Phool Chand and used to pressurized him for compromise. The informant denied the compromise due to which both were inimical with the informant. On 30.5.1979, again they wanted to compromise the matter but the informant refused. At which at about 01:30 p.m., Gharib, Ram Pyare, Ram Kripal, Jagdamba, Ramakant armed with lathi, spear and gandasa came to the house of the informant, out of which Gharib was armed with spear, Ram Pyare and Jawahir were armed with gandasa and remaining were armed with lathi. On the exhortation of Gharib, with intention to kill the informant, the accused persons started beating the informant with lathi, gandasa. When the informant was being beaten his niece Tara, sister-in-law Gulichi and his wife Sharda came to save him but the accused persons also assaulted them with lathi. At this, the informant snatched the spear of Gharib, tried to safeguard his family and himself due to which Gharib sustained injuries. His wife Sharda also threw bricks to save herself due to which the accused persons sustained injuries. Awadh, Jagat, Jitai and others have tried to calm down everybody. When the informant fall down, his spear was snatched and taken away by the accused persons. The injured were medically examined. The informant was taken to the hospital because it was fear that he would die. Awadh, Jagat, Jitai and others have tried to calm down everybody. When the informant fall down, his spear was snatched and taken away by the accused persons. The injured were medically examined. The informant was taken to the hospital because it was fear that he would die. When his situation improved, he lodged the report. 3. The prosecution examined as many as three witnesses. PW-1 is Phool Chand, the informant who proved the written report as Exhibit Ka-1. PW-2 is Sharda, the wife of the informant and the injured. PW-3 is the I.O. S.I. Ram Pyare Pandey who conducted the investigation. He prepared and proved the site plan as Exhibit Ka-2 and the charge-sheet as Exhibit Ka-3. In cross-examination, this witness has proved the carbon copy of the chik scribed by Head Constable Jokhan Singh as Exhibit Kha-1. 4. After the close of the prosecution evidence, the statements of the accused were recorded under Section 313 Cr.P.C., in which they denied the occurrence and has stated that they had been falsely implicated in this case due to enmity. 5. After hearing the learned counsel for the parties, the learned lower Court convicted and sentenced the accused as stated in para 1 of the judgment. 6. Feeling aggrieved, the accused have come up in appeal. 7. Heard Rajiv Lochan Shukla, learned counsel for the appellants, Sri S.N. Singh, Advocate and learned Additional Government Advocate for the opposite party and perused the lower Court record. 8. As far as the First Information Report is concerned, the occurrence is said to have taken place on 30.5.1979 at 13:30 hrs. The report was lodged on the same day at 23:50 hrs. Nothing has been stated in the First Information Report about the delay in lodging the First Information Report. 9. Prompt First Information Report ensures the correctness and truthfulness of the prosecution story but if there is delay in lodging the First Information Report, which has not been explained, would be harmful to the prosecution. 10. In Dilawar Singh v. State of Delhi, (2007) 12 SCC 641 , the Hon’ble Apex Court has held as under : “In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.” 11. Although, it is trite law that the First Information Report is only the report submitted to inform the police about the commission of the crime. It is not required that the First Information Report should contain the details and description of the entire facts. it is not expected that the informant, who is the relative of the victim should give every minutes details of the incident in the First Information Report. 12. PW-1 is Phool Chand, the informant who has stated that after he sustained injuries, he fell down. He was severely injured. He dictated the report to his brother Lacchoo, who came to see him. After that the information was sent to the police station. Thus, I think, there is no delay in lodging of the First Information Report. 13. As far as the motive is concerned, in Sheo Shankar Singh v. State of Jharkhand and another, (2011) 3 SCC 654 , the Hon’ble Apex Court has held as under : “The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well-settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye-witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the Court upon a proper appraisal of the deposition of the eye-witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case or fortify the Court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye-witnesses. See Shivaji Genu Mohite v. State of Maharashtra, (1973) 3 SCC 219 , Hari Shanker v. State of U.P., (1996) 9 SCC 40 and State of Uttar Pradesh v. Kishanpal and others, (2008) 16 SCC 73 .” 14. The present case rests on direct evidence, hence, motive practically looses its value. In the present case, however, the injured PW-1 Phool Chand has stated that prior to the incident Gharib and Ram Dular have filed a civil suit against him and they were pressurizing the informant for compromise. The informant refused to compromise due to which Ram Dular and Gharib have become inimical with him. Even Ram Dular in the statement recorded under Section 313 Cr.P.C. has stated that he has been falsely implicated due to enmity but since this is a case of direct evidence, motive does not carry a lot of weight. 15. Learned counsel for the appellants while castigating the impugned judgment has submitted that the learned trial Court has not given any reasonable and plausible ground to record the conviction of the appellants for the offences punishable under Section 307 I.P.C. The alleged injuries sustained by all the injured persons, are simple in nature. The injuries are neither dangerous nor fatal to life. The injuries are neither dangerous nor fatal to life. No X-ray or supplementary report regarding the injuries had been filed or proved by the prosecution to ascertain the nature of the injuries. Thus, the trial Court has grossly erred in convicting the accused appellants for the offences punishable under Section 307 read with Section 149 I.P.C. 16. Per contra, learned A.G.A. while supporting the impugned judgment has contended that it is a broad day light case, having direct evidence. So there is no illegality in the findings of the learned trial Court and the appeal is liable to be dismissed. 17. Before we proceed to analyze the evidence of the witnesses on record, as per the arguments advanced by the counsel for the parties, it would be in the fitness of things, if the statements given by the prosecution witnesses in their examination-in-chief are noted in brief. 18. The informant PW-1, who is an injured witness namely Phool Chand has stated that Gharib and Ram Dular are real brothers. Their mother is common but fathers are different. Prior to the incident, Ram Dular had filed a civil suit against the informant and was pressurizing the informant to compromise the matter. When he refused, Ram Dular and Gharib were annoyed. On the date of occurrence, again Gharib asked the informant to compromise, when he refused, Gharib threatened to kill him. During the day time, Gharib, Ram Dular, Jawahir, Ram Pyare, Ramakant, Jadgamba, Jamuna and Ram Kripal came at the door of the informant. Gharib was armed with spear, Ram Pyare and Jawahir were armed with Gandasa and the remaining were armed with lathi. On the exhortation of the Gharib, all have started beating the informant with Gandasa and lathi. Gulichi, Sharda and Tara came to save him, at which they were also beaten. When the informant was being beaten, he snatched the spear of Gharib and attacked Gharib with the spear due to which he sustained injuries. The wife of the informant also throw bricks in defence. The occurrence was witnessed by Awadh, Jagat, Jitai and others. After sustaining injuries, the informant fell down at which the accused took away the spear and fled away. The injured were examined in the hospital at Azamgarh. The informant was admitted in the hospital and the injured has lodged the report. 19. The occurrence was witnessed by Awadh, Jagat, Jitai and others. After sustaining injuries, the informant fell down at which the accused took away the spear and fled away. The injured were examined in the hospital at Azamgarh. The informant was admitted in the hospital and the injured has lodged the report. 19. PW-2 is Sharda, the injured witness who has stated that Dular, Gharib, Jagdamba, Pyare, Ramakant, Kripal, Jamuna and Jawahir came to her house. They were armed with spear, gandasa and lathi. Gharib exhorted, at which the remaining started assaulting Phool Chand. Then this witness alongwith Tara and Gulichi came to save the informant but all the three were also beaten. The informant took the spear of Gharib and used it in self-defence. The injured also throw bricks, due to which Gharib sustained injuries. The incident was witnessed by Jagat, Dhengu and others. 20. PW-3 is Ram Pyare Pandey, Sub Inspector who conducted the investigation. He recorded the statements of the witnesses and prepared the site-plan. The investigation was ended into a charge-sheet. This witness has proved the site-plan as Exhibit Ka-2 and charge-sheet as Exhibit Ka-3. The doctor was not examined in this case. The genuineness of the chik report, G.D., injury reports of Sharda, Phool Chand, Tara and Gulichi were admitted by the prosecution under the provisions of Section 294 Cr.P.C., hence they were marked as Exhibits. 21. On perusal of the original record of the trial Court, particularly the evidence of the injured witnesses, it transpires that the incident has been fully proved through the statements of the injured witnesses PW-1 Phool Chand and PW-2 Sharda. The presence of the injured witnesses at the place of occurrence at the relevant time are probably and have been duly proved. There are no material contradictions or inconsistencies in the testimony of PW-1 Phool Chand and PW-2 Sharda. The incident had taken place at about 01:30 p.m. and the injured Phool Chand was examined at the hospital on the same day at 05:45 p.m. The injured Sharda was examined at the hospital on 30.5.1979 at 07:00 p.m. The injured Tara was examined at the hospital on 30.5.1979 at 07:10 p.m. while the injured Gulichi was examined at the hospital on 30.5.1979 at 07:25 p.m. The accused Gharib has also sustained injuries. The genuineness of his medical report was admitted by the prosecution. The genuineness of his medical report was admitted by the prosecution. The medical report was marked as Exhibit Kha-2. Thus, the presence of PW-1 Phool Chand, PW-2 Sharda and even the accused Gharib is prima facie established by their injuries. 22. The injuries of Sharda, Tara and Gulichi were simple in nature. As far as the injuries of Phool Chand are concerned, he sustained the following injuries : 1. Lacerated wound 4 cm. X 2 cm. bone deep on the left side head, 13 cm. above left ear. Bleeding present. 2. Traumatic swelling 6 cm. X 5 cm. on the top head in the middle. 3. Incised wound 1 cm. X 0.5 cm. on the right side cheek, 3 cm. below right eye. Bleeding present. 4. Incised wound 2.5 cm. X 0.5 cm. X mussel deep (lip out right side through and through) on the right side upper lip. 5. Incised wound 3 cm. X 1 cm. upper gum adjacent to incisor and canine. Upper incisor and canine moving (referred to dental surgeon for expert opinion to examine the oval cavity and teeth). 6. Abrasion 3 cm. X 0.5 cm. on the left side forehead, just above left upper eye brow. 7. Incised wound 2 cm. X 0.5 cm. X mussel deep, left side cheek. 8. Abrasion 2 cm. X 1 cm. on the middle of left fore arm at its back. 9. Contusion 11 cm. X 2.5 cm. on the left scapula. 10. Abraded contusion 24 cm. X 6 cm. over lower back right and left side. 11. traumatic swelling 15 cm. X 6 cm. on the front of left leg, middle part (advised X-ray). 12. Contusion 13 cm. X 2.5 cm. on the middle of left thigh at its back. 13. Contusion 14 cm. X 3 cm. on left hip. 14. Abraded contusion 13 cm. X 3 cm. on right hip. 23. As per opinion of the doctor, injury Nos. 1 to 4 were grievous. Injury Nos. 5 and 11 were kept under observation (X-ray advised) and the remaining were simple in nature. 24. For reasons best known to the prosecution, even the doctor, who examined the injured was not produced before the Court. It was mandatory for the doctor to state before the Court that the particular injury was fatal and dangerous to the life of the injured or not. 25. 24. For reasons best known to the prosecution, even the doctor, who examined the injured was not produced before the Court. It was mandatory for the doctor to state before the Court that the particular injury was fatal and dangerous to the life of the injured or not. 25. To justify a conviction under this section i.e. 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim by the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. [Vide State of Maharashtra v. Balram Bama Patil, AIR 1983 SC 305 ]. 26. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not fall under Section 307 of Indian Penal Code. It would all depend upon the facts of a given case. Intention has to be seen. 27. It also emerges that all the two injuries, even if accepted to be attributed to the appellant, were kept under observation and there is no iota of evidence to show that they were sufficient in ordinary course of nature to cause death. Resultantly, the evidence can be said to indicate involvement of the appellant in an offence punishable for simple hurt with a deadly weapons like gandasa, spear and lathi. Resultantly, the evidence can be said to indicate involvement of the appellant in an offence punishable for simple hurt with a deadly weapons like gandasa, spear and lathi. In the facts and circumstances of the case, it is difficult to accept that knowledge or intention can be attributed to the appellant about the likely death of the victim by causing the injuries, because they have not repeated the blows. If the intention would have been to kill the injured then the appellant must have repeated the blows. 28. Learned counsel for the appellant has placed heavy reliance on the case of Kundan Singh v. State of Punjab, AIR 1982 SC 213, wherein the Supreme Court in a single para judgment observed as under : “We are of the view that having regard to the facts and circumstances of the present case and particularly in view of the fact that P.W. 6 and P.W. 7 were in the Courtyard of their house when the appellant fired gun shots and he could not, therefore, have intended to injure them, the conviction of the appellant under Section 307, I.P.C. was not justified. We think that the conviction of the appellant could be maintained only under Section 324 of the I.P.C. since P.W. 6 and P.W. 7 received simple injuries. We accordingly allow the appeal and alter the conviction of the appellant to one under Section 324 of the for causing simple injuries to P.W. 6 and P.W. 7 and since the appellant has already suffered imprisonment for about 16 months, we direct that the sentence imposed on the appellant be reduced to that already undergone by him and ha may be set at liberty forthwith.” 29. Although, injury Nos. 5 and 11 were kept under observation, but neither there is any X-ray report, X-ray plate nor any supplementary report. Even the injuries of the accused Gharib were kept under observation but there is no supplementary report or opinion of the doctor about the injuries nor any X-ray plate. 30. There is nothing on record to show that the injuries of Phool Chand could be fatal to his life, nor there is any evidence that there was the intention of the appellant to do away with the life of the injured. 30. There is nothing on record to show that the injuries of Phool Chand could be fatal to his life, nor there is any evidence that there was the intention of the appellant to do away with the life of the injured. Thus, I am of the view that the conviction of the appellant under Section 307 I.P.C. cannot be sustained and they are liable to be convicted for the offence punishable under Section 324 I.P.C. 31. Perusal of the report also shows that the occurrence took place in the year 1979, about 37 years back. Perusal of the report of C.J.M., Azamgarh dated 18.12.2015, reveals that appellant No. 1 Ram Dular and appellant No. 7 Jawahir have since died. 32. At present the ages of the accused appellants Gharib is more than 70 years, Jagdamba is more than 60 years, Ramakant is more than 60 years, Ram Kripal is more than 60 years, Jamuna is more than 65 years and Ram Pyare is more than 58 years. 33. In view of the afore stated reasons, the appeal is partly allowed. 34. The conviction of the appellants under Section 307 read with Section 149 I.P.C. and sentences awarded to them are set aside. However, the conviction of the accused appellants under Sections 148, 323/149 and 147 I.P.C. are maintained. The accused-appellants are hereby convicted under Section 324 I.P.C. 35. The accused Gharib and Pyare are sentenced to Rs. 1000/- fine under Section 148 I.P.C.; Rs. 1000/- fine under Section 323/149 I.P.C. and Rs. 3000/- fine under Section 324 read with Section 149 I.P.C., whereas the accused appellants Jadgamba, Ramakant, Ram Kripal and Jamuna are sentenced to Rs. 1000/- fine under Section 147 I.P.C.; Rs. 1000/- fine under Section 323/149 I.P.C. and Rs. 3000/- fine under Section 324 read with Section 149 I.P.C. 36. The total amount of fine shall be deposited in the trial Court by the accused-appellants within two months from the date of delivery of judgment which shall be paid by the trial Court to the injured Phool Chand and in case he has died to his legal representatives. 37. In case the fines are not deposited within the stipulated period, each of the appellants will undergo simple imprisonment for three months under each counts. 38. Let copy of this judgment be sent to the trial Court concerned for compliance.