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2019 DIGILAW 281 (ALL)

Chhailbihari v. State of U. P.

2019-02-01

VIRENDRA KUMAR II

body2019
ORDER VIRENDRA KUMAR-II, J. This appeal has been preferred on behalf of the appellant Chhail Bihari assailing the impugned judgment and order dated 30.8.2008 delivered by learned Additional Sessions judge, Fast Track Court No. 7, Sitapur in Sessions Trial No. 725 of 2006 (State v. Chhai Bihari) arising out of Case Crime No. 157 of 2004 under Section 307 IPC, Police Station Misrikh, District Sitapur. The appellant Chhail Bihari, other co-accused persons Mathura Prasad, Ram Kumar and Prem Kumar have been convicted for offence punishable under Section 307/34 IPC and sentenced to each accused to undergo rigorous imprisonment for ten years. The amount of Rs. 5,000/- has been imposed on each accused including the appellant with default stipulation to serve out additional rigorous imprisonment for six months. 2. The co-accused persons have separately preferred their appeals i.e. Criminal Appeal No. 2068 of 2008 (Prem Kumar v. State of U.P.), Crimial Appeal No. 2067 of 2008 (Ram Kumar v. State of U.P.) and Criminal Appeal No. 2142 of 2008 (Mathura Prasad v. State of U.P.). 3. The Senior Superintendent, Central Jail Bareilly has informed vide order dated 24.1.2019 that appellant Chhail Bihari has been released on 25.3.2014 after serving out sentence of rigorous imprisonment for ten years and he has deposited amount of Rs. 5,000/- by means of receipt no. 038436. Therefore, this appeal is being heard and disposed of separately. 4. Heard Mr. Dev Kumar Tripathi, learned amicus curiae for the appellant and learned A.G.A. for the State. 5. Mr. Dev Kumar Tripathi, Advocate has been appointed as amicus curiae vide order dated 12.9.2017 in place of Ms. Meena Verma. She was discharged from liability of amicus curiae. 6. As per prosecution version on 21/22.04.2004 at night, the complainant Kunj Bihari (PW-5) and his brother Prem Narain (PW-6) were present on their agricultural field for guarding it. The appellant and co-accused persons Mathura Prasad, Ram Kumar and Prem Kumar arrived at about 11:00 p.m. on agricultural field of the complainant. The appellant Chhail Bihari was armed with Banka. He immediately assaulted Prem Narain by blowing Banka, while Prem Narain was lying on cot at the place of occurrence. The victim Prem Narain raised alarm, the complainant and other family members rushed towards victim Prem Narain. The appellant and co-accused persons fled away from the place of occurrence. 7. The complainant Kunj Bihari lodged written report (Ex. He immediately assaulted Prem Narain by blowing Banka, while Prem Narain was lying on cot at the place of occurrence. The victim Prem Narain raised alarm, the complainant and other family members rushed towards victim Prem Narain. The appellant and co-accused persons fled away from the place of occurrence. 7. The complainant Kunj Bihari lodged written report (Ex. Ka-1) at police station Mishrikh on 24.4.2004 at 18:25 hours. The crime no. 157 of 2004 for offence punishable under Section 307 IPC was registered at Police Station Mishrikh. 8. It was mentioned in the written report Ex. Ka-1 that on 19.4.2004 victim Prem Narain scolded his younger brother appellant Chhail Bihari and slapped twice, therefore appellant Chhail Bihari assaulted the victim by Banka. 9. The Investigating Officer exonerated co-accused persons Ram Kumar and Prem Kumar finding that they were incorrectly named by the complainant. He recorded statements of witnesses, prepared site plan, collected injury report of the victim Prem Narain and submitted charge sheet against appellants Chhail Bihari and Mathura Prasad only for offence punishable under Section 307 IPC. 10. The trial court on the basis of application moved under Section 319 Cr.P.C. passed order dated 22.01.2007 and summoned the accused namely Prem Kumar and Ram Kumar to face trial of this crime. 11. The trial court framed charges against Mathura Prasad and Chhail Bihari on 6.10.2006 and against Ram Kumar and Prem Kumar on 1.6.2007 for offence punishable under Section 307 read with Section 34 IPC. The appellant and co-accused persons pleaded not guilty and claimed to be tried. 12. The trial court has recorded statements of PW-1 Shyam Lal, PW-2 Ram Katori, PW-3 Vidyawati, PW-4 Siya Ram, PW-5 Kunj Bihari, PW-6 injured Prem Narain, PW-7 Constable Mool Chandra, PW-8 Dr. Hari Krishan Pholeriya, PW-9 Dr. R.C. Gupta, PW-10 Dr. Virendra Verma, PW-11 Dr. A.K. Singh and PW-12 Investigating Officer Shyam Nath. These witnesses proved documents Ex. Ka-1 to Ka-11 relied upon by the prosecution. 13. The trial court has recorded statements of appellant and co-accused persons under Section 313 Cr.P.C. The appellant has stated that he has falsely been implicated in this crime only to usurp his share. 14. The appellant has not adduced any evidence in defence and stated before the trial court that he will not adduce any defence evidence. 15. 13. The trial court has recorded statements of appellant and co-accused persons under Section 313 Cr.P.C. The appellant has stated that he has falsely been implicated in this crime only to usurp his share. 14. The appellant has not adduced any evidence in defence and stated before the trial court that he will not adduce any defence evidence. 15. The trial court has heard learned defence counsel and learned Additional District Government Counsel and analyzed, evaluated and appreciated the evidence of witnesses PW-1 to PW-6. These witnesses are witnesses of facts. 16. PW-6 Injured Prem Narain was medically examined by PW-8 Dr. H.K. Phuleriya, who was called by Dr. R.C. Gupta, Emergency Medical Officer on 22.4.2004. He gave treatment to the victim whose throat was cut and he referred the victim at Lucknow Medical College. He has proved Ex. Ka-4 reference letter. 17. PW-9 Dr. R.C. Gupta has proved this fact that on 22.4.2004 he was posted in the District Hospital, Sitapur on the post of Emergency Medical Officr. At about 3:10 a.m. injured Prem Narain son of Bhikhari was brought by his brother Shyam Lal at the hospital. He was admitted on Bead Head Ticket No. 2709. The general condition of the victime was serious. His blood pressure was not capable to be recorded. He was having breathing problem. It was 32 per minutes. The victim was drowsy. The cut wound was seated on his chin and neck. The injuries of the victim were not noted in the register, because his condition was serious. PW-9 Dr. R.C. Gupta has also stated that he apprised the relative of the victim and referred him for further management by surgeon. PW-9 Dr. R.C. Gupta has proved Bed Head Ticket of injured Prem Narain as Ex. Ka-5. 18. PW-10 Dr. Virendra Verma has proved this fact that injured Prem Narain was brought on 6.4.2004 after reference from the District Hospital Sitapur. The throat was cut and it was stitched, a way was formed to breath. The stitch part of throat was open. The saliva was coming out from this wound. The treatment of the victim was possible by plastic surgeon, therefore, he referred the victim to plastic surgeon Dr. A.K. Singh and he proved reference letter Ex. Ka-6. 19. PW-11 Dr. A.K. Singh was posted as Professor and Head of the Department Plastic Surgery in Lucknow Medical College. The saliva was coming out from this wound. The treatment of the victim was possible by plastic surgeon, therefore, he referred the victim to plastic surgeon Dr. A.K. Singh and he proved reference letter Ex. Ka-6. 19. PW-11 Dr. A.K. Singh was posted as Professor and Head of the Department Plastic Surgery in Lucknow Medical College. He has proved that he was posted on 11.5.2004 on this post. He examined the victim Prem Narain, who was having cut wound in his throat. The plastic surgery was required. He operated throat of the victim on 11.6.2004 and treated cut wound by plastic surgery. The victim was discharged on 3.7.2004 in satisfactory condition. PW-11 has proved discharge ticket as Ex. Ka-7. 20. The trial court, after analyzing and appreciating the evidence of the above mentioned doctors, has found that the injuries sustained by the injured Prem Narain was caused by sharp edged weapon. The nature of injuries found on the throat of the victim were caused by appellant Chhail Bihari with Banka as per prosecution version. 21. The trial court has considered the argument of learned defence counsel that some unknown persons assaulted the injured Prem Narain and recorded finding that PW-5 complainant Kunj Bihari, PW-1 Shyam Lal and PW-4 Siya Ram were eyewitness of the incident. PW-1 and PW-4 were independent witnesses, who identified the appellant in light of torch. PW-1 Shyam Lal found the victim Prem Narain in an injured state in his agricultural field, where he was lying on the date of incident. These witnesses PW-1 and 4 has not adduced their evidence to support the prosecution case, whereas they were eyewitness. 22. PW-1 has stated that he did not saw the appellant and other co-accused persons while they assaulted the victim. PW-4 has stated that he was at Sitapur on the date of incident and he was not present at his residence. 23. The trial court has considered argument of prosecution that both the witnesses i.e. PW-1 and PW-4 have not supported the prosecution version under influence of the appellant and co-accused persons. 24. The trial court has analyzed and evaluated the evidence of PW-5 complainant Kunj Bihari and PW-6 injured Prem Narain. 23. The trial court has considered argument of prosecution that both the witnesses i.e. PW-1 and PW-4 have not supported the prosecution version under influence of the appellant and co-accused persons. 24. The trial court has analyzed and evaluated the evidence of PW-5 complainant Kunj Bihari and PW-6 injured Prem Narain. Both these witnesses have adduced their evidence that they were guarding their agricultural field on the date of incident at about 11:00 p.m. while appellant Chhail Bihari armed with Banka along with other co-accused persons gave blow of Banka on the neck of Prem Narain. PW-5 Kunj Bihari, in his cross examination has disclosed this fact that he was lying near engine and his brother Prem Narain was lying at a distance of 50 paces. 25. PW-6 Prem Naran has disclosed this fact that Kunj Bihari was lying at a distance of 1-2 furlong i.e. after one agricultural field. PW-6 Prem Narain has also disclosed this fact that PW-5 Kunj Bihari was lying at Tubewell. The victim was at a distance of 40-50 paces from PW-5 and was lying on a cot. After sustaining injuries, he covered a distance of 50 meters. PW-5 after hearing alarm of his brother ran towards his cot. PW-6 Prem Narain has also stated that co-accused Mathura Prasad caught his hands, Ram Kumar and Prem Kumar caught his legs and Chhail Bihari gave blow Banka on his throat and lips with intention to cause his death. 26. The trial court has recorded finding that after sustaining injuries, PW-6 Prem Narain told/apprised PW-5 Kunj Bihari by gesture that co-accused persons including the appellant assaulted him. PW-5 Kunj Bihari asked injured Prem Narain by naming the accused persons. Therefore, the trial court has discarded the minor contradictions appeared in the cross examination of PW-5 and PW-6 and discarded the arguments put forth by learned defence counsel. 27. The trial court has also considered the argument of learned defence counsel that the Investigating Officer did not prepare recovery memo of torch in light of which PW-5 and PW-6 saw the appellant. The trial court has recorded finding that it was fault of the Investigating Officer and the prosecution cannot be adversely affected on the basis of fault of the Investigating Officer. 28. The trial court has recorded finding that it was fault of the Investigating Officer and the prosecution cannot be adversely affected on the basis of fault of the Investigating Officer. 28. The trial court has analysed the evidence of PW-3 Smt. Vidyawati and PW-4 Siya Ram that appellant Chhail Bihari ate non-veg food (Chicken) and consumed liquor at house of Mathura Prasad. PW-5 Kunj Bihari has corroborated and supported the evidence of PW-3 and PW-4. The trial court has recorded finding about motive of the incident that injured Prem Narain scolded the appellant Chhail Bihari two days prior to the incident i.e. 19.4.2004 and slapped him twice regarding aforesaid conduct of the appellant. The appellant stayed at house of Mathura Prasad. Therefore, the appellant along with the co-accused persons committed incident of assault on the date of occurrence at 11:30 p.m.. 29. The trial court has recorded specific finding that no material contradiction was elicited during cross-examination of PW-5 Kunj Bihari and PW-6 Prem Narain. 30. The argument of learned defence counsel was discarded by the trial court that there is contradiction in the statement of PW-6 injured Prem Narain whether appellant used Banka or Tabbal. The trial court has recorded finding that Banka or Tabbal are the same weapon. Therefore, the evidence of the victim Prem Narain cannot be discarded and it was reliable and trustworthy. 31. The trial court has found on perusal of record that appellant Chhail Bihari absconded after committing the incident. Therefore, the Investigating Officer PW-12 Shyam Nath Singh was compelled to submit charge sheet against Mathura Prasad only showing the appellant as absconder. PW-12 has stated that he submitted charge sheet against accused persons on 28.9.2004 and obtained process under Section 82-83 Cr.P.C. against appellant Chhail Bihari. 32. The trial court has also discarded argument of learned defence counsel that PW-5 Kunj Bihari was not able to prove prosecution version regarding the fact that whether injured Prem Narain became unconscious after the incident or ran 40 meters from his cot. The trial court has observed that there was minor contradiction in the statement of PW-5 complainant Kunj Bihari and PW-6 injured Prem Narain. The trial court has recorded finding that victim Prem Narain has proved this fact that appellant along with other co-accusd persons committed the incident and appellant Chhail Bihari assaulted him. 33. The trial court has observed that there was minor contradiction in the statement of PW-5 complainant Kunj Bihari and PW-6 injured Prem Narain. The trial court has recorded finding that victim Prem Narain has proved this fact that appellant along with other co-accusd persons committed the incident and appellant Chhail Bihari assaulted him. 33. The trial court has also considered the argument of learned defence counsel that the victim brought his bedding at his house and it was not possible for him after sustaining grievous injury on his neck. This fact was elicited during cross examination of PW-6 Prem Narain by the defence counsel. On the basis of this statement the trial court has not accepted the argument of learned defence counsel. 34. The trial court has further considered the argument of learned defence counsel that F.I.R. of this crime was lodged at police station Misrikh with delay. The trial court has held that the victim was referred from District Hospital Sitapur to Medical College Lucknow where he was undergoing treatment, therefore, F.I.R. was lodged on 24.4.2004 at 18:25 hours at Police Station Misrikh. This fact was not material because the prosecution has explained the delay by producing medical evidence of doctors. 35. PW-2 Smt. Ram Katori is the mother of injured Prem Narain and appellant Chhail Bihari. She saw the victim in an injured state at 11:00 p.m. She was declared hostile. She has denied to state before the Investigating Officer under Sectin 161 Cr.P.C. Smt. Ram Katori is mother of appellant and injured Prem Narain, therefor, it may be possible that she has not adduced her evidence as per prosecution version and did not support it. 36. On the basis of above discussions, and the evidence available on record, the impugned judgment and order dated 30.8.2008 cannot be termed as perverse or against the evidence available on record. The accused appellant was convicted and sentenced in correct perspective to undergo the aforesaid rigorous imprisonment for ten years and fine of amount of Rs. 5,000/- was also imposed adequately. 37. On the other hand, the Senior Superintendent, Central Jail Bareilly vide letter dated 24.1.2019 has informed that appellant Chhail Bihari has served out the sentence awarded against him and he has deposited amount of fine of Rs. 5,000/- by means of receipt no. 038436 and he has been released on 25.3.2014 from Central Jail Bareilly. 38. 37. On the other hand, the Senior Superintendent, Central Jail Bareilly vide letter dated 24.1.2019 has informed that appellant Chhail Bihari has served out the sentence awarded against him and he has deposited amount of fine of Rs. 5,000/- by means of receipt no. 038436 and he has been released on 25.3.2014 from Central Jail Bareilly. 38. The impugned judgment and order is hereby upheld and affirmed, therefore, this appeal lacks merits, deserves to be dismissed and is hereby dismissed. 39. The learned amicus curiae shall receive fee prescribed by State Government of U.P. immediately. 40. The record of trial court be sent back and copy of the judgment be sent to the trial court, Sitapur and the Senior Superintendent, Central Jail, Bareilly for compliance. 41. The Section has to comply this order immediately.