Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 549 (ALL)

SUBASH v. STATE OF U. P.

2018-03-06

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 11.12.1985 passed by IV Additional District & Sessions Judge, Gorakhpur in Sessions Trial No. 103 of 1983 (State Vs. Subash), arising out of Case Crime No.39/1982, Police Station- Tiwripur, District- Gorakhpur, whereby the appellant- Subash- has been found guilty for the offence- under Section 307 IPC, and given benefit of provisions of Probation of First Offenders' Act and directed him to keep peace and be of good behaviour for a period of 1 year on condition that he will furnish a personal bond for Rs.1000/- along with two sureties in the like amount. 2. Heard Sri Kamlesh Singh, learned counsel for the appellant and the learned AGA for the State and perused the record of this appeal. 3. Factual matrix of this case as discernible from record appears to be that in this case Sadanand P.W.1, the injured, lodged the written report at police station- Tiwaripur, district- Gorakhpur on 08.05.1982 at 9.20 P.M. against the accused- Subash s/o Ram Awadh Yaday alleging thereby that some barat procession had arrived at the house of Hori Lal of the village-? Ghunghun Kotha and while the marriage celebration was in full swing, the accused- Subash- arrived on the spot and created ugly scene in drunken position under the influence of intoxication, he started abusing, upon which, Sadanand P.W.1 asked him not to indulge in abusing, but, Subash persisted with his misdeed on the spot and instead of stopping the same, he threatened the informant of dire consequences. 4. In the backdrop of aforesaid threat, the incident took place at 8 P.M. on 8.5.1982, while the injured informant (Sadanand) was returning home after answering to nature's call and reached near the house of Kalpnath, accused- Subash, laid in ambush for informant at that place appeared on the spot and caused knife blow on his stomach with intention to kill. On alarm being raised Balkesh, Horilal, Dayanand etc. of the village arrived on the spot. The incident was witnessed by others as well. This written report is Exhibit Ka-1. 5. The contents of aforesaid information were taken down in the Check FIR on 8.05.1982 at 09.20 AM at Case Crime No.39 of 1982, under Section 307 IPC, Police Station- Tiwaripur, District- Gorakhpur. of the village arrived on the spot. The incident was witnessed by others as well. This written report is Exhibit Ka-1. 5. The contents of aforesaid information were taken down in the Check FIR on 8.05.1982 at 09.20 AM at Case Crime No.39 of 1982, under Section 307 IPC, Police Station- Tiwaripur, District- Gorakhpur. Check FIR is Exhibit Ka-3 on record. On the basis of entry so made in the Check FIR, the case was registered against the aforesaid accused in the General Diary of aforesaid date and time, which is Exhibit Ka-2. 6. Record further reflects that Dr. V.K. Sinha P.W.5 had medically examined the injured- Sadanand- at Sadar Hospital, District Gorakhpur at 9.50 P.M. on 8.05.1982, wherein, the following injury was noted on examination:- 1. Incised wound 6 cm x 2.50 cm, cavity deep vertical downwards and backwards on left part of abdomen. 1-1/2 cm away from the middle line, afresh injury, kept under observation, caused by sharp weapon. 7. In the opinion of the doctor, the said injury was caused by some sharp edged weapon. This injury report has been proved by Dr. V.K. Sinha P.W.5, which is Exhibit Ka-7 on record. 8. As a sequal to that, the investigation ensued and taken over by Sri Niwas P.W.4, who after recording the relevant entries in the concerned G.D. proceeded to the spot and arrived there at 11.20 P.M. Since no light was existing on the spot, therefore, he did not carry out any investigation in the night. On 9.5.1982, he searched for the accused, but could not trace him. He inspected the spot and prepared the spot map, Exhibit Ka-5. He also carried out the investigation by recording statement of the witness/injured and completed the investigation by filing charge sheet against appellant, which is Exhibit Ka-6. 9. Consequently, the case was committed to the court of Sessions from where it was transferred to the court of IV Additional Sessions Judge, Gorakhpur after numbering the same as Sessions Trial No.103 of 1983, whereupon the trial court heard the accused on the point of charge and was prima facie satisfied with the case against accused under Sections 307 IPC. The charge was read over and explained to the accused, who denied the charge and claimed to be tried. 10. The charge was read over and explained to the accused, who denied the charge and claimed to be tried. 10. The prosecution in order to bring home guilt of the accused examined as many as five prosecution witnesses, namely, Sadananad P.W.1 (injured complainant/informant), Hori Lal P.W.2 (eye-witness of the incident), Dayanand P.W.3 (scribe of the FIR), Sri Niwas P.W.4 (Investigating Officer) and Dr. V.K. Sinha P.W.5 (proved the injury report Exhibit Ka-7). 11. Thereafter the evidence for prosecution was closed. The appellant in his statement under Section 313 Cr.P.C. took plea of defence that he was falsely implicated in this case on account of enmity. 12. The defence, in turn, did not lead any evidence. 13. Consequently, the trial court after considering entire facts and circumstances of the case and after evaluating evidence on record found guilty to the appellant for the aforesaid offence and instead of awarding sentence given benefit of provisions of Probation of First Offenders' Act and directed him to keep peace and be of good behaviour for a period of 1 year on condition that he will furnish a personal bond for Rs.1000/- along with two sureties each in the like amount, resultantly the instant appeal has been preferred before this Court. 14. Quintessence of the argument advanced by the learned counsel for the appellant is primarily confined to the ambit that the incident infact was committed by some unknown person in the darkness of night. He further adds that there was no independent corroboration by any witness of the village to the stature that some altercation had taken place between the complainant- Sadanand and the accused- in the night, while the dancing party was giving its performance before the 'Barat' (procession). Next, he contends that appellant has been deliberately roped in, in this case by the informant on account of enmity. 15. It has been succinctly claimed on behalf of the appellant that the entire gamut of testimony on record, vis-a-vis facts and circumstances of the case, when taken together as a whole, do not form any coherence and do not give any consistent view of the incident that it occurred in the manner and style claimed by the informant, the entire story is concocted, fabricated and outcome of mischievous mind of the informant. 16. 16. While summing up his arguments, learned counsel stressed on point that though it is a judgment of conviction and advantage of provisions of the Probation of Offenders Act has been extended to the appellant, it is obvious that no adverse report/information regarding bad conduct/behaviour or any such activity by or on behalf of the appellant has been reported by any person or authority. Consequently, the direction, as contained in the judgement of the trial court dated 11.12.1985 stood suffered and complied with by efflux of time. 17. Learned AGA has supported the conviction and sentence awarded against the appellant and has submitted that there is no specific reason to falsely implicate the appellant by the informant. He has also supported the operative portion of the judgement, whereby advantage of provisions of Uttar Pradesh First Offenders' Probation Act, 1938 has been given to the accused. Appeal lacks merit. 18. Also considered the rival submissions. 19. The moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to prove the charge levelled against the appellant beyond reasonable doubt? 20. Before adverting to the main proposition set up by the prosecution against the accused, it would be appropriate to have a dip into the contents of the first information report- Ex.Ka.1. the Written report which was lodged by informant- Sadanand of village- Tiwaripur, district Gorakhpur on 8.5.1982 at 9.20 P.M. at Police Station- Tiwaripur of District- Gorakhpur, wherein it was alleged that some 'barat' procession had arrived at the house of Hori Lal of the village and celebration was going on and a number of villagers were dancing, in the meanwhile, accused- Subash- arrived on the spot in drunken condition and began to abuse. Informant on being asked not to indulge in such act, insisted and continued with his misdeed on the spot and instead of stopping, he threatened the informant of dire consequences and went away. After lapse of five days on 8.5.1982 at about 8 P.M., while the injured informant (Sadanand) was returning home after answering to nature's call (around 8 P.M.), the accused, who laid in ambush for informant at that place appeared on the spot in front of the house of Kalpnath of the village, gave knife blow on his (Sadanand) stomach with intention to kill. On alarm being raised Balkesh, Horilal, Dayanand etc. On alarm being raised Balkesh, Horilal, Dayanand etc. of the village arrived on the spot. They chased the assailants, but Subash (accused) fled away from the spot. It was moon-lit night. It is evident from the testimony of the Sadananad P.W.1 that he remained in hospital for 20 to 22 days. He has further testified to the fact that except some altercation on the day of barat, there was no other inimical cause between the informant and the accused. He identified the accused well in the moon-lit night at the time of occurrence and raised alarm when blow was caused to him. His testimony is fully supported by Hori Lal P.W.2 and Daya Nand P.W.3. Presence of Hori Lal P.W.2 and Daya Nand P.W.3 on the spot is natural one and their testimonial account of the occurrence cannot be faulted with and it cannot be said that the court below has wrongly appreciated things both factual as well as legal. 21. In so far as nature of the injury caused on Sadananad P.W.1- is concerned, obviously, the doctor witness- Dr. V.K. Sinha P.W.4 has testified that this sort of injury can be caused by sharp edged knife and in his examination-in-chief, he has noted the injury in the measurement and shape of incised wound 6 cm x 2.50 cm, cavity deep vertical downwards and backwards on left part of abdomen. 1-1/2 cm away from the middle line, as fresh injury, kept under observation, caused by sharp weapon. 22. The seat of injury is itself vital and it cannot be said that the intention of the accused was not to cause death. It was the fate of the informant that he somehow saved himself on the arrival of witnesses at the time of occurrence. The doctor witness P.W.5 has testified to the fact that this sort of injury can be caused on the day of occurrence around 8 P.M. by knife. 23. It being so, this court can observe in all fairness that the testimony forthcoming is innocuous and is in conformity with the medical evidence and giving thrust to the prosecution case, eventually establishing the charge against the accused. The weapon used and the seat injury is itself indicative of the very intention which was working in the mind of the accused, but the injured escaped fatal injury. The weapon used and the seat injury is itself indicative of the very intention which was working in the mind of the accused, but the injured escaped fatal injury. The accused must be imputed with knowledge of outcome of his act that the knife blow so caused on the stomach can cause serious injury on the informant, even his death. 24. It is well established jurisprudential principle that the prosecution would have to prove its case beyond all reasonable doubt only then the guilt will be deemed to have been established against an accused as is the case in hand. 25. Under the aforesaid facts and circumstances of the case, it can be opined that the trial court has rightly convicted the appellant under Section 307 IPC after considering the nature of the injury caused and looking to the seriousness of the magnitude of the incident, the trial court has rightly gave benefit of Uttar Pradesh First Offenders' Probation Act, 1938, which requires no interference. 26. Consequently, this appeal being devoid of merit is dismissed. 27. However, it is observed that in this case the judgement was delivered on 11th December, 1985, since then nothing adverse has been reported from any corner against the appellant that he ever indulged in any criminal activity and did not keep peace, therefore, with the expiry of the period of probation, the sentence so awarded though in the form of probation stood suffered and exhausted. If the appellant has not already furnished probation bond for one year period as directed by the trial court, he is directed to appear before the District Probation Officer, Gorakhpur to furnish deemed security bond for keeping peace and being of good behaviour and in case, the bond is so furnished, the same shall be kept on record. 28. Copy of this order be sent to the court concerned for information.