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2018 DIGILAW 265 (ALL)

MAIKU v. STATE OF U. P.

2018-02-01

ARVIND KUMAR MISHRA I

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JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order dated 17.09.1986 passed by Additional Sessions Judge, Fatehpur in Sessions Trial No. 399 of 1984 (State Vs. Maiku and others), arising out of Case Crime No.46/84, Police Station- Lalauli, District- Fatehpur, whereby the appellant- Maiku- has been convicted and sentenced to undergo 10 years R.I. coupled with fine of Rs.5000/- and default clause stipulates additional R.I. for one year. 2. Facts relevant for adjudication of this appeal appear to be that a written information at police station- Lalauli, district- Fatehpur on 20.03.1984 at 9.30 a.m. was given by Badlu (complainant), whereby allegations were made to the ambit that on 19.03.1984 some altercation took place between informant's relative- Lakhn s/o Dhadhu and co- villager Maiku. Informant's son Surajpal (P.W.3) admonished accused Maiku, which enraged the accused and he became inimical towards him (Surajpal). On the next day i.e. 20.03.1984, informant's son was brooming the floor infront of his house, when accused possessing countrymade gun in his hand appeared on the spot in company with others and began to extend abuses. Informant's son Surajpal asked them not to call by bad names, whereupon, Maiku at the exhortation of another co- accused fired with countrymade gun which caused injuries on the face and several parts of the person of Surajpal. On alarm being raised, Bijai s/o Dhadhu, Kamta s/o Kunware and others arrived on the spot and the accused made his escape good. This written report is Exhibit Ka-1. 3. Contents of written report were taken down in the check FIR- Exhibit Ka-2- at police station- Lalauli, district- Fatehpur on 20.3.1984 at 9.30 A.M. under section 307 I.P.C. at case crime no.46 of 1984. Relevant entries in G.D.- Exhibit Ka-3- were also made and case was registered. 4. Subsequent to the lodging of the FIR injured Surajpal was medically examined at PHC Bahuwa, District Fatehpur at 11.45 A.M. On 20.03.1984, wherein following injuries were noted :- 1. Firearm wound of entrance present on upper part of right shoulder 9 cm. from root of neck and 4 cm. medial and anteriorly from top of right shoulder. size 0.2 cm x 0.2 cm collar of abrasion present. Fresh bleeding present. Firearm wound of entrance present on upper part of right shoulder 9 cm. from root of neck and 4 cm. medial and anteriorly from top of right shoulder. size 0.2 cm x 0.2 cm collar of abrasion present. Fresh bleeding present. A small pellet was recovered from the wound at a depth of 0.5 cm sealed and handed over to the constable concerned. 2. Multiple abrasions (about 20 in number) oval in shape. present on left side of chest left shoulder right side of chest in upper part and medial part and in front of neck. Collar of abrasion present. Size 0.2 cm x 0.2 cm oval towards left side. Fresh bleeding present. 3. Multiple abrasion in face and front of forehead extending from chin to 9 cm. Above the root of nose. Oval in shape. Fresh bleeding present. There is blood discharge from both eyes and there is black eye in lower eyelid and its surrounding area. Those abrasions are about 25 in number. One hard nodular thing is palpable 2.5 cm above the left angle of mandible. One hard nodule is palpable 8 cm above the right tragus of ear. Two parallel abrasions are present on left cheek 3.5 cm x 4.5 cm below tragus of left ear. Size 1.00 cm x 0.2 cm and 1.5 cm x 0.2. cm, respectively. Collar of abrasion present. Fresh bleeding present. One abrasion present in the outer aspect of left pinna size 0.2 cm x 0.2 cm. Note :- (1) There is no blackening, charring in any of these injuries. Fresh bleeding present from injury nos.1 to 3. (2) Patient was unable to open his eyes due to injury, hence could not be examined and referred to Eye Surgeon, District Hospital, Fatehpur for expert opinion and proper treatment. Cause :- All injuries are by firearm. Duration:- Fresh injuries within six hours. Nature :- All the injuries were kept under observation and X-ray was advised for skull, chest and upper part of left arm and referred to District Hospital, Fatehpur. One pellet was recovered from right shoulder injury. This injury report Exhibit Ka-6 is admitted to the defence. 5. Investigation of this case proceeded further and the Investigating Officer also took blood- stained clothes of the injured- Surajpal (P.W.3), prepared memo of the same Exhibit Ka-4. Thereafter, he recorded the statement of the witnesses and also inspected the scene of occurrence. This injury report Exhibit Ka-6 is admitted to the defence. 5. Investigation of this case proceeded further and the Investigating Officer also took blood- stained clothes of the injured- Surajpal (P.W.3), prepared memo of the same Exhibit Ka-4. Thereafter, he recorded the statement of the witnesses and also inspected the scene of occurrence. He prepared the site plan Ex.Ka.5 and after completing the necessary formalities, filed charge-sheet Exhibit Ka-7 against the accused-appellant. 6. Committal proceedings took place and the case was committed to the Court of Sessions, from where, it was made over for trial and disposal to the Additional Sessions Judge, Fatehpur. Appellant was heard on point of charge and the trial court was prima facie satisfied with the case against the accused, therefore, it framed charge under Section 307 IPC against him. Charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. 7. The prosecution in order to substantiate charge against the accused examined as many as three witnesses of fact, viz. - Badlu P.W.1 is the informant and father of injured Surajpal. Bijai P.W.2 is also witness of fact and Surajpal P.W.3 is the injured eyewitness. 8. Since the genuineness of injury report, check FIR, charge-sheet, GD entry, etc. were admitted to the defense, therefore, formal proof was dispensed with and these papers were exhibited by the trial court. 9. After closure of the prosecution evidence, statement of the accused was recorded, wherein the accused denied his involvement in the incident and claimed to have been falsely implicated in the case due to enmity. He stated in his defense that in fact Surajpal P.W.3 himself was in possession of country-made gun and during scuffle, that country-made gun fell on the ground and brother-in-law of accused Maiku picked up the gun and fired with the gun in self-defense, which fire hit injured Surajpal P.W.3. 10. The defense also led testimony of Rampal D.W.1. 11. The trial court after considering entire facts and circumstances of the case and after evaluating evidence on record, returned finding of conviction and sentenced the appellant to ten years rigorous imprisonment, as a result whereof, the instant appeal has been preferred before this Court. 12. Heard Sri Amit Kumar, learned counsel for the appellant and learned AGA for the State. 13. 12. Heard Sri Amit Kumar, learned counsel for the appellant and learned AGA for the State. 13. Learned counsel for the appellant has raised crux contention in form that the FIR is ante-timed in view of fact that the distance of police station from the place of occurrence is stated to be 16 km. whereas the FIR was lodged within one and half hour, which is not possible. Insofar as injuries caused on the victim are concerned, the same though fell within category of 307 IPC but the same cannot be construed to be fatal from any angle whatsoever, therefore, conviction under Section 307 IPC is wholly unjustified and at the most, this case may be covered under Section 324 IPC. Insofar as the ocular testimony of the prosecution witnesses of fact is concerned, there appears to be grave contradictions in their testimony, particularly in the description of the manner of the assault and duration within which the incident was committed, the entire incident took place within a minute, therefore the things have been fabricated and the appellant has been deliberately roped in, in this case on account of enmity due to several litigations pending between the parties. The appellant is an infirm and old person aged about 70 years. He further submits that co-accused Lakhan, Nankwa @ Ram Asrey and Ram Sehawan were also present on the spot at the time of the occurrence, but they were given benefit of doubt by the learned trial court and were held not guilty for offence punishable under Section 307/34 IPC. Therefore, on the same set of evidence, the present accused-appellant also deserves to be acquitted, because the discrimination created by the court below is inherently illegal and erroneous and hence, the order of conviction passed by the trial court is not based on material on record. 14. Learned AGA has vehemently refuted the argument and submitted that the victim has himself described the incident and has given consistent and clinching testimony. The contradictions are not of magnitude that the same may materially affect credibility of the witnesses of fact and the charge and it cannot be said that the injuries so caused are not fatal. He submits that the appellant fired with a country-made gun on a young boy Surajpal P.W.3 without any rhyme or reason. The contradictions are not of magnitude that the same may materially affect credibility of the witnesses of fact and the charge and it cannot be said that the injuries so caused are not fatal. He submits that the appellant fired with a country-made gun on a young boy Surajpal P.W.3 without any rhyme or reason. He fired at the injured pointing on his face and upper part of the body and caused permanent physical disability to him and the victim has been rendered blind. He further adds that the occurrence took place in broad daylight i.e. at about 08.00 AM and such a reckless and mischievous person deserves no sympathy. 15. Also considered the rival submission. 16. Bare perusal of the testimony of the injured witness Surajpal on point of occurrence is found to be consistent. He has given innocuous description of the incident as to how it was caused. The defence itself has suggested in terms that the fire was caused by the brother-in-law of Maiku in self-defence who picked up the country-made gun on the spot after it had fallen down from the possession of Surajpal. But theory of self-defence fails because the accused himself started abusing the injured, which ultimately resulted into causing of injuries to the injured-Surajpal. 17. This particular suggestion by defence is itself is an admission of the presence of accused on the spot and an admission of the time and place of the occurrence. Further, the plea that the fire was not opened by Maiku is not established either by ocular testimony by D.W.1 or by facts and circumstances of the case. 18. Medical examination report, Exhibit Ka-6, is admitted to the defence and it cannot question this particular aspect that the injuries are on vital parts of person of the injured. Genuineness of the charge-sheet and the other relevant papers have been admitted to the defence. The occurrence has also been corroborated by the testimony of the other two prosecution witnesses- Badlu P.W.1 and Bijai P.W.2. 19. Slight contradictions emerges in their testimony regarding exhortation given by other co-accused, but this aspect loses significance in view of fact that all the other co-accused, except the appellant, have been acquitted, therefore, no observation need be made regarding presence of other co-accused on the spot and their involvement in the shape of either exhortation or participation in the incident. Slight contradictions emerges in their testimony regarding exhortation given by other co-accused, but this aspect loses significance in view of fact that all the other co-accused, except the appellant, have been acquitted, therefore, no observation need be made regarding presence of other co-accused on the spot and their involvement in the shape of either exhortation or participation in the incident. The entirety of the prosecution testimony on the whole inspires confidence and establishes fact beyond doubt that on 20.03.1984 Maiku fired with his country-made gun, which caused several injuries on the person of injured Surajpal and the complicity of accused Maiku in the very commission of the offence cannot be ruled out as per the testimony on record and the facts and circumstances of this case. 20. Under the facts and circumstances of the case, the court below was justified in recording finding of conviction and has rightly awarded sentence of 10 years R.I. Coupled with fine of Rs.5000/-, which need no interference at all. 21. Consequently, this appeal lacks merit and the same is dismissed. 22. Appellant is on bail. His bail bonds are cancelled, he be taken into custody forthwith and sent to jail to serve out the entire/remaining part of the sentence awarded by the trial court. 23. Copy of this order be sent to the court concerned for information and necessary follow-up action.