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2018 DIGILAW 379 (ALL)

ZILEDAR v. STATE OF U. P.

2018-02-12

ARVIND KUMAR MISHRA I

body2018
JUDGMENT : Hon'ble Arvind Kumar Mishra-I, J. 1. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgement and order dated 27.03.1987 passed by Special/Sessions Judge, Jaunpur in Sessions Trial No. 14 of 1983 (State Vs. Ziledar and others), arising out of Case Crime No.173/1981, Police Station- Zafarabad, District- Jaunpur, whereby the appellant- Man Singh- has been found below 16 years of age, therefore, he got benefit of provisions of First Offender Probation Act. Hence, trial court directed him to furnish two sureties each for Rs.5000/- and a personal bond of the like amount for keeping peace and be of good behaviour for a period of three years and shall be kept under the supervision of Probation Officer. 2. Before proceeding further with the factual matrix of the case, no adverse circumstance or violation of good behaviour, as directed by the trial court, has been intimated from any corner to this Court, therefore, it is obvious that the sentencing part confined to direction of keeping good behaviour for a period of three years has already been suffered, thus stood exhausted. However, this case is being adjudicated upon on its merit. 3. Pertinent to mention that out of the three appellants two appellants, namely, Ziledar S/o Baladin (appellant No.1) and Lal Saheb S/o Subedar (appellant no.2) expired during pendency of this appeal. Therefore, this appeal stood abated qua Ziledar S/o Baladin (appellant No.1) and Lal Saheb S/o Subedar (appellant no.2) vide order dated 11.01.2018. Now, the appeal is confined to only one accused is being adjudicated upon in respect of appellant no.3- Man Singh only. 4. Facts relevant for adjudication of this appeal appear to be that the informant- Bansu Ram s/o Sahdev r/o village Husainabad Naipurm, Police Station- Zafrabad now Line Bazar, district Jaunpur lodged the written report on 14.06.1981 with allegation, inter alia, that it was around 9 A.M. when the informant's son- Jitendra Kumar- who was grazing his cattle in his field and the informant was also present over there in nearby field, the accused (Ziledar, his son Man Singh and Lal Singh) were also grazing their cattle in their field. All of a sudden, some dispute arose and in the meanwhile, on the exhortation of Ziledar, Lal Saheb and Zildar (both are accused in this case) caught hold of Jitendra; and Man Singh struck knife blow on the neck of Jitendra with intention to kill him. On alarm being raised accused fled away from the scene. Rambali and Girja Shanker and others saw the occurrence. Dead body of Jitendra Kumar was lying on the spot. This written report is Exhibit Ka-1. 5. Contents of written report were taken down in the check FIR- Exhibit Ka-2- at police station- Zafarabad, District- Jaunpur on 14.06.1981 at 10.45 A.M. under section 302 I.P.C. at case crime no.173 of 1981. Relevant entries in General Diary were also made and a case was registered. 6. During the course of investigation, Investigating officer reached to the spot, recorded statement of the witnesses, prepared inquest report and other relevant papers like photo-nash, challan- nash and sealed the dead body of Jitendra Kumar and sent it for postmortem examination. 7. Doctor D.N. Tiwari conducted the post-mortem examination on 14.06.1981, he noted following ante- mortem injury " stab incised wound size 2 cm x 0.5 cm x oblique left side into viseria deep at front of neck right side 1/2" above the right clavicle upper border (from medial end) and reported that cause of death was due to shock and haemorrhage as a result of the ante-mortem injury. This post-mortem report is Exhibit Ka-8. 8. As a sequel to that the Investigating Officer recovered the knife, prepared the fard (Exhibit Ka-9), visited the spot and prepared the site plans (Exhibit Ka-3 and Ka-4). Thereafter, after completing the necessary formalities, the Investigating Officer filed the charge-sheet (Exhibit Ka-10) against the accused. 9. Pursuant thereto the committal proceedings took place and the case was committed to the Court of Sessions, from where, it was made over for conduction of trial and disposal of the case to the Sessions Judge, Jaunpur. 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 302 read with 34 IPC against him. Charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. 10. 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 302 read with 34 IPC against him. Charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. 10. The prosecution in order to substantiate charge examined- Bansu Ram P.W.1, who is the father of the deceased- Jitendra, Rambali P.W.2 is also witness of fact and eyewitness of the scene and Girja Shanker P.W.3 is also the eyewitness of occurrence. 11. Since the genuineness of certain prosecution papers like the Check FIR (Exhibit Ka-2), charge-sheet, GD entry, etc. were admitted to the defense, therefore, formal proof of these papers was dispensed with and these papers were exhibited by the trial court. 12. After closure of the prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C, wherein accused denied his involvement in the incident and claimed to have been falsely implicated in the case. 13. No evidence whatsoever wasadduced by the defence. 14. Consequently, the trial court after considering entire facts and circumstances of the case and after evaluating evidence on record, recorded finding to the ambit that appellant- Man Singh- at the time when the murder was committed, was below 16 years of age, therefore, instead of sending the appellant to jail gave him benefit of provisions of First Offender Probation Act and released him on probation on his furnishing two sureties each for rupees five thousand and a personal bond of the like amount for keeping peace and good behaviour for a period of 3 years under the supervision of Probation Officer, resultantly the instant appeal has been preferred before this Court. 15. Heard Sri B. K. Verma, learned counsel for the appellant and learned AGA for the State. 16. Learned counsel for the appellant has raised crux contention to the ambit that so far as the ocular testimony of the prosecution witnesses of fact is concerned, except P.W.1 Bansu Ram, both P.W.2 Rambali and P.W.3 Girja Shanker have not supported the prosecution case. He further adds that the unfortunate incident took place because of sudden quarrel. 16. Learned counsel for the appellant has raised crux contention to the ambit that so far as the ocular testimony of the prosecution witnesses of fact is concerned, except P.W.1 Bansu Ram, both P.W.2 Rambali and P.W.3 Girja Shanker have not supported the prosecution case. He further adds that the unfortunate incident took place because of sudden quarrel. 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. He further submits that leniency of probation for a period of 3 years has not been violated and there is nothing on record, which may indicate that after the delivery of judgement of the trial court any violation or act in breach of the terms and conditions of the probation bond has been reported from any corner. Hence, the order of conviction passed by the trial court is not based on material on record. 17. Learned AGA has vehemently refuted the argument and submitted that P.W.1 Bansu Ram, father of the deceased Jitendra has described the incident and has given consistent and clinching testimony against the accused. The statement of P.W.2 Rambali and P.W.3 Girja Shanker is not of a magnitude that the same may materially affect credibility of the statement of P.W.1 Bansu Ram, as it clearly established fact that they (P.W.2 Rambali and P.W.3 Girja Shanker) have been won over by the accused. He submits that the appellant gave knife blow on a young boy- Jitendra without any rhyme or reason. The appellant gave knife blow on the neck of the deceased. He further adds that the occurrence took place in broad daylight i.e. at about 09.00 A.M. Such a reckless and mischievous person deserves no sympathy. 18. Also considered the rival submission. 19. Bare perusal of the testimony of the P.W.1 Bansu Ram on point of occurrence is found to be consistent. He has given innocuous description of the incident as to how it was caused. The facts and circumstances of the case show that though a large number of persons were present and murder was committed in broad day light of a young boy, but none of the witnesses were prepared to given evidence. He has given innocuous description of the incident as to how it was caused. The facts and circumstances of the case show that though a large number of persons were present and murder was committed in broad day light of a young boy, but none of the witnesses were prepared to given evidence. The solitary statement of P.W.1 Bansu Ram is sufficient enough to convict the appellant, which stands fully corroborated with the post-mortem report Exhibit Ka-8, which clearly shows that the deceased had received one incised wound on the neck and death was due to that injury. So the solitary statement of Bansu Ram P.W.1 finds corroboration from the medical evidence. So far as presence of the Bansu Ram P.W.1 is concerned, it is mentioned in the FIR which was lodged just after the incident at 10.45 a.m. he was scrapping grass in his field and he clearly deposed in his testimony that as and when he heard the noise went to the spot and saw the occurrence. Therefore, his presence on the spot cannot be doubted. 20. Genuineness of the charge-sheet and the other relevant papers have been admitted to the defence. 21. To sum up, it is clearly revealed that the entirety of the prosecution testimony inspires confidence and establishes fact beyond doubt that on 14.06.1981 accused- Man Singh- gave knife blow, which caused injury on vital part of the deceased- Jitendra and the complicity of accused Man Singh in the very commission of the offence cannot be ruled out as per the testimony on record qua the facts and circumstances of this case. 22. In view of above, the charge against appellant is unequivocally established. The trial court has rightly convicted the appellant and given him the advantage of relevant provisions of the Probation of the Offenders Act and asked him to furnish bond for Rs.5000/- with two sureties each in the like amount for three years period for keeping peace and good behaviour. 23. The finding is based on material on record and the same cannot be faulted with, therefore, no interference is required. 23. The finding is based on material on record and the same cannot be faulted with, therefore, no interference is required. However the trial court has looking to the tenderness of age of the appellant, shown leniency to the appellant while convicting him, which leniency has not been violated and there if nothing on record, which may indicate that after the delivery of judgement on 27.3.1987 upto further period of three years or upto the probation period the appellant committed any violation or acted in breach of the terms and conditions of the probation bond. 24. In the wake of above, this appeal lacks merit and the same is dismissed. 25. Copy of this order be sent to the court concerned for information and necessary follow-up action.