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2018 DIGILAW 247 (ALL)

BHIMMA v. STATE OF U. P.

2018-01-31

ARVIND KUMAR MISHRA I

body2018
JUDGMENT : By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 16.01.1988 passed by Ist Additional Sessions Judge, Etawah, in Session Trial No.220 of 1986 State Vs. Ram Sanehi, arising out of Case Crime No.56 of 1982 under Sections 148, 307 read with Section 149, and 147 IPC Police Station- Dibiyapur, District- Etawah, whereby the appellants Bhimma, Diwari Lal, Hubba Lal, Ram Sewak Teli, Chhotey Teli have been sentenced to undergo one year rigorous imprisonment under Section 148 IPC, three years rigorous imprisonment under Section 307 read with Section 149 IPC. Accused Chhotey Kahar has been sentenced to undergo six month rigorous imprisonment under Section 147 IPC and three years rigorous imprisonment under Section 307 read with Section 149 IPC. All the sentences were directed to run concurrently. 2. Relevant to mention that appellant nos.3 and 6 namely Hubba Lal and Chhotey Kahar died during pendency of this appeal, therefore, the appeal qua the aforesaid appellants stood abated vide order of this Court on 30.03.2017. 3. Heard Sri Agni Pal Singh, learned counsel for the surviving appellants, learned AGA for the State and perused the record. 4. Before proceeding further with the factual matrix of this case, it is worth mentioning that the relevant prosecution papers were admitted to the defence, for example Check FIR, GD entry, injury reports of all the five injured, site plan and charge sheet etc. Therefore, no formal witness was required to prove these relevant papers and the same have been exhibited by the trial court. In this case, only two injured eyewitnesses, one radiologist and one doctor - in all four witnesses - have been produced by the prosecution. 5. The course of events leading to this appeal, as discernible from record has its genesis in the written report Ext. Ka-1 dated 16.05.1982 moved by the informant Parashuram son of Ishwari, resident of village Taiyapur within Police Station Dibiyapur, District Etawah wherein the allegations, inter-alia, were made to the effect that on the day of occurrence (16.05.1982) in the evening around 6:30 p.m., the appellants in company with the other co-accused arrived near the informant Parashuram who, at that point of time, was talking to Shomraj Teli sitting in front of his door. The accused said to him that he has voted against Pradhan Digvijay yet their candidate won (election) and they will teach him a lesson today for not voting in favour of their candidate and began to assault the informant. In the meanwhile, when the assault was being committed, the aforesaid accused were joined by a number of other co-accused. They were possessing Lathi, Ballam, (spear like weapon) Dhariya and one of the accused was also possessing countrymade gun. All of them assaulted the informant who raised alarm when his brother Dhaniram and Mahipal, Santosh Kumar Singh, Sone Lal, Hori Lal, Vansh Lal and Nathuram clamouring arrived on the spot and challenged the assailants whereupon the assailants left the informant and began to beat them which caused injuries on a number of persons. The assailants also chased the informant and other persons and trespassed into the house of the informant and Nathuram where they assaulted the ladies besides abusing them. This assault was caused with intention to kill the informant. The assailants fled away from the scene of occurrence after raising slogan 'Pradhan Zindabad'. The incident was witnessed by the villagers also. 6. This report was taken down in the concerned Check FIR Ext. Ka-2 at Case Crime No.56 of 1982 under Sections 147, 148, 452, 323, 504, 307 IPC, Police Station Dibiyapur, District Etawah and on the basis of the same, a case was registered in the concerned general diary Ext. Ka-3 on the aforesaid date and time at aforesaid crime number under aforesaid sections of IPC at Police Station Dibiyapur, District Etawah. 7. The investigation ensued and during course of the investigation, the injured namely Santosh Kumar, Mahipal, Hori Lal, Parashuram, Sone Lal and Phoolwati were examined by the doctor on 17.05.1982 around 12:00 midnight. Since all the injury reports of the aforesaid injured were admitted to the defence, therefore, the same were exhibited as Ext. Ka-4, Ext. Ka-5, Ext. Ka-6, Ext. Ka-7, Ext. Ka-8 and Ext. Ka-9, respectively. 8. As per testimony of Dr. R.K. Chaudhary PW-4, who prepared supplementary report of x-ray examination of the two injured namely Santosh Kumar and Mahipal, submitted report of fracture of frontal bone of skull of the injured Santosh Kumar and fracture of 7th and 8th ribs of left side of the injured Mahipal and has proved both the injury reports as Ext. Ka-15 and Ext. Ka-16, respectively. Ka-15 and Ext. Ka-16, respectively. X-ray plates have been proved by technician Hasin Akhtar PW-3 as material Exts. 1, 2, and 3. 9. The Investigating Officer recorded statement of various persons, inspected spot and prepared site plan Ext. Ka-11 and after completing the investigation, filed charge sheet against the present appellants. 10. Consequently, proceedings were committed to the court of Sessions from where it was transferred for conduction and disposal of the case to the aforesaid trial court of the Ist Additional Sessions Judge, Etawah who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the accused, accordingly, framed charges under Sections 147, 148, 307 read with Section 149 and 452 IPC. Charges were read over and explained to the accused who abjured charges and opted for trial. 11. In turn, the prosecution was asked to adduce its testimony whereupon the prosecution produced in all 4 witnesses. A brief sketch of witnesses is as under:- 12. Parashuram PW-1 is the informant and injured eyewitness and similarly Santosh Kumar PW-2 is also injured eyewitness. Haseen Akhtar PW-3 is x-ray technician. Dr. R.K. Chaudhary PW-4 has medically examined the aforesaid six injured and also verified aforesaid x-ray examination reports. Except as above, no other testimony was adduced by the prosecution. 13. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, they claimed to have been falsely implicated in this case on account of village 'Partibandi'. 14. The learned Ist Additional Sessions Judge, Etawah, after appraisal of facts and consideration of the merit of the case and evaluating the evidence on record, returned aforesaid finding of conviction and awarded sentence vide impugned judgment and order dated 16.01.1988. 15. Resultantly, this appeal. 16. At the very outset, learned counsel for the appellants has submitted that the first information report is ante timed, concocted and outcome of afterthought. Injuries caused on the persons of the injured are not on vital parts and the same will not attract ingredients contained under Section 307 IPC. All the surviving appellant nos.1, 2, 4 and 5 namely Bhimma, Diwari Lal, Ram Sewak Teli and Chhotey Teli are senior citizens. 17. It has been further contended that the allegations are highly improbable. The accused had no motive or ill-will to commit the crime. All the surviving appellant nos.1, 2, 4 and 5 namely Bhimma, Diwari Lal, Ram Sewak Teli and Chhotey Teli are senior citizens. 17. It has been further contended that the allegations are highly improbable. The accused had no motive or ill-will to commit the crime. The accused never formed any unlawful assembly and the incident is denied. The role of the present appellants is confined to that of 'Marpit' only and there is no independent corroboration of the incident. Both the injured witnesses are relatives. There is no injury with regard to 'Kanta' on the informant PW-1 as well as the other injured witness PW-2. The medical evidence is contrary to the ocular testimony. The allegations made have not been properly and reasonably proved by the prosecution. 18. Lastly, it has been contended that Hon'ble Apex Court in a number of cases like the present one has held that when injury caused is not fatal and not on the vital part of the body, the case under Section 307 IPC cannot be made out. Therefore, the judgment and order of the conviction is perverse, erroneous and illegal. 19. Per contra learned A.G.A. while refuting aforesaid arguments submitted that the vivid and lively description of manner of incident has been proved by both the injured eye witnesses PW-1 and PW-2, respectively. Their respective testimony on the whole corroborates each other in material particulars, especially the manner and style of occurrence which cannot be doubted. 20. Learned AGA has further added that the presence of the two eyewitnesses on the spot, is natural and genuine. Their evidence is inspiring confidence and it is settled principle of criminal jurisprudence that testimony which corroborates each other in material particulars is to be believed and contradictions appearing in their testimony, if found to be of trivial nature, should be avoided. The prosecution has proved its case beyond reasonable doubt. The learned trial court while appreciating merit of the case was impressed by consistency of the aforesaid facts and proof of the same, therefore, rightly recorded conviction and awarded just sentence against the appellants. 21. Considered the rival submissions. 22. Bare perusal of the first information report itself is indicative of fact that the incident allegedly took place on 16.05.1982 in the evening at 6:30 p.m. in the village Taiyapur in front of the house of Somraj Teli. 21. Considered the rival submissions. 22. Bare perusal of the first information report itself is indicative of fact that the incident allegedly took place on 16.05.1982 in the evening at 6:30 p.m. in the village Taiyapur in front of the house of Somraj Teli. The distance from the place of occurrence up to the police station has been shown to be five kilometers and the first information report was lodged at Police Station Dibiyapur at 9:30 p.m. the very same day. After lodging of the first information report, medical examination of six injured was also done at Primary Heath Centre, Dibiyapur the very same night around 12:00 midnight wherein a number of injuries have been examined and injuries of the two injured have been referred for x-ray examination whereupon fracture of frontal bone of skull of the injured Santosh Kumar was noted in the supplementary medical report by Dr. R.K. Chaudhary, PW-4. Similarly, fracture of 7th and 8th ribs on the person of injured Mahipal was also noted in the supplementary report. Both the supplementary reports have been proved by the doctor witness PW-4 as Ext. Ka-15 and Ext. Ka-16, respectively. 23. Insofar as nature of injury caused on the person of injured Santosh Kumar is concerned, it can be conveniently observed that by no stretch of imagination, injury in form and shape of fracture of frontal bone of skull would not be termed to be injury on non-vital part of the body and it cannot be said that injury of aforesaid dimension is not serious injury. That way, argument to the extent that injury caused on the informant's side are simple in nature does not sound well and befit to the facts and circumstances of the case. Therefore, insofar as reliance placed by learned counsel for the appellants in the case of Rudrappa Ramappa Jainpur Vs. State of Karnataka 2005 (52) ACC 126 SC is concerned, the same is not helpful to the appellants. Here in the case in hand the injury no doubt is on vital part of body - fracture of skull. 24. Therefore, insofar as reliance placed by learned counsel for the appellants in the case of Rudrappa Ramappa Jainpur Vs. State of Karnataka 2005 (52) ACC 126 SC is concerned, the same is not helpful to the appellants. Here in the case in hand the injury no doubt is on vital part of body - fracture of skull. 24. Insofar as version of the incident is concerned, bare perusal of the combined reading of the testimony of the two injured namely informant Parashuram PW-1 and Santosh Kumar PW-2 itself reflects that they have proved the incident which occurred in the evening around 6:30 p.m. and at that point of time, the informant was sitting at the shop of Somraj Teli when the accused more than five in number arrived on the spot possessing 'Kanta', 'Ballam', 'Dhariya' and 'Lathi' and taunted that the informant has not voted for their candidate in the election for which they will teach him a lesson and thereafter they began to assault the informant. In the meanwhile, other accused also joined them. One of the assailants Ram Sewak whipped out revolver and shot two rounds of fire. 25. On alarm being raised, a number of villagers arrived on the spot who challenged the assailants whereupon they (accused) beat them (villagers) and chased them into the houses of Parashuram and Nathuram where they beat the ladies also. Nothing adverse of magnitude on this aspect has emerged in the cross-examination of the two injured witnesses PW-1 and PW-2 which may reflect on fact that no such incident ever took place and no injury, whatsoever, was caused upon a number of injured including Santosh Kumar whose frontal bone of skull was found to have been fractured on x-ray examination. His supplementary report Ext. Ka.-15 has been duly proved by the doctor witness PW-4. No other testimony was produced. Worth mentioning is the fact that genuineness of the first information report, charge sheet and all injury reports of injured have been admitted to the defence/appellants. Therefore, formal proof of the same was dispensed with. This act on the part of the defence is implicit admission of the incident. 26. There is no such explicit or inherent circumstance, which may point things otherwise than the one claimed and proved by the informant. Therefore, formal proof of the same was dispensed with. This act on the part of the defence is implicit admission of the incident. 26. There is no such explicit or inherent circumstance, which may point things otherwise than the one claimed and proved by the informant. Injury reports have not been questioned when the defence has already admitted all injury reports and what is surprising that genuineness of the charge sheet has also been admitted by the defence/appellants. 27. I have already considered the material aspects of the occurrence which fit in the attendant circumstances and facts of this case and it eventually turns out that the prosecution has been able to prove charge against the appellants. The learned trial court has also taken comprehensive view of the entire occurrence and has discussed its various aspects and rightly recorded the conviction against the present appellants and has awarded just sentence against them which needs no interference at this juncture. 28. Accordingly, the judgment and order of conviction dated 16.01.1988 passed by Ist Additional Sessions Judge, Etawah, in Session Trial No.220 of 1986 State Vs. Ram Sanehi, arising out of Case Crime No.56 of 1982 under Sections 148, 307 read with Section 149, and 147 IPC Police Station- Dibiyapur, District- Etawah, is hereby upheld. Consequently, the instant appeal lacks merit and the same is dismissed. 29. In this case, the appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They shall be taken into custody forthwith for serving out the sentence so imposed upon them by the trial court. 30. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.