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2019 DIGILAW 640 (ALL)

Badan Singh v. State of U. P.

2019-03-08

K.P.SINGH

body2019
ORDER : 1. This criminal appeal has been filed against a judgment and order dated 01.7.1986 passed by the learned Special Judge (Essential Commodities Act), Mainpuri in Session Trial No. 191 of 1985, State vs. Badan Singh and Another, under Sections 308/34 and 323/34 IPC, police station Karhal, district Mainpuri whereby learned Judge convicted and sentenced the appellants to three years' RI under Sections 308/34 IPC and six months' RI under Section 323/34 IPC. However, both the sentences were directed to run concurrently. 2. In short compass, the facts of the case are that a written report was handed over by the first informant Batti Singh at the police station Karhal to the effect that on 18.12.1984, some quarrel took place between his cousin Kariya on one side and Rakesh, son of Badan Singh on the other. When Munno Devi, sister-in-law of the complainant tried to pacify the matter, she was assaulted by Badan Singh, Siya Ram, Ramesh and Surajpal by lathi, danda, and Khanta, resultantly she received severe injuries on her person and head. While Rajkumari tried to save, Munno Devi, she was also assaulted by them, due to which she also sustained injuries. In addition to the first informant, the incident was witnessed by Lakhan Singh, Hira Singh and several other persons of the vicinity, who saved the injured. On account of the injuries sustained by Munno Devi, she became unconscious. 3. On the basis of the aforesaid written information, a case was registered at case crime No. 215 of 1984, under Section 308 IPC, police station Karhal, district Mainpuri. 4. After the registration of the case, the investigation of the case was entrusted to PW-8, SI S.K. Vidhyarthi, who investigated the case and submitted charge sheet against the appellants, under Sections 308/323 IPC, which he proved as Ext. Ka-8. Although PW-8, SI S.K. Vidhyarthi was summoned on the application of the accused-appellants, but the accused-appellants filed an application dated 30.10.1985 (Paper 33-B) that they do not want to cross-examine him. 5. As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions, where case was registered as ST No. 191 of 1985 and the learned Additional Sessions Judge, Mainpuri vide order dated 23.5.1985 framed the charges against the appellants under Sections 308/34 and 323/34 IPC, which were read and explained to them. However, accused pleaded not guilty and claimed to be tried. 6. To bring home guilt of the appellants the prosecution examined as many as eight witnesses. 7. PW-1, Raj Kumari is the injured witness. She deposed that on the date of incident, at about 4-5 PM, there had been a quarrel between Rakesh on one side and Kariya on the other, in which her Bhabhi, Munno Devi went to pacify the matter. At that time Siya Ram, Ramesh, Surajpal and Badan Singh arrived there. Badan Singh was armed with Danda, Siya Ram and Surajpal were armed with Lathi and Ramesh was having Khanta. They assaulted Munno Devi with their respective weapon. When she tried to save her sister-in-law, the accused also assaulted her, due to which she received injuries. On her cries, witnesses Lakhan, Batti Singh and Hira Singh arrived there. On seeing them, accused fled away. 8. PW-2, Lakhan deposed that he knows injured Raj Kumari and Munno Devi. He also knows accused Siya Ram, Ramesh, Surajpal and Badan Singh. On the date of incident, Munno Devi and Raj Kumari received injuries in Marpeet. There had been quarrel between Kariya and Rakesh. Munno Devi rushed to the spot to pacify them. Whilst she was pacifying the quarrel, at that time Badan Singh, Siya Ram, Ramesh and Suraj Pal came there. Badan Singh was having Danda, Ramesh was armed with Khanta, Siya Ram and Suraj were carrying lathis. Ramesh assaulted Munno Devi with Khanta, whereas Suraj, Siya Ram and Badan Singh with lathi and danda. To save Munno Devi, Raj Kumari fell on Munno Devi, who was also assaulted by the accused. While the incident was going on, this witness, Batti Singh and other witnesses arrived the spot. 9. PW-3, Munno Devi is the injured witness. She deposed that on the date of incident at about 5.00 PM, there had been quarrel between Rakesh and Kariya. She had gone to pacific the matter. At that time Badan Singh, Siya Ram, Suraj Pal and Ramesh reached there. Badan Singh was carrying Danda, Ramesh was having Khanta, Siya Ram was armed with knife and Suraj was having stick. All of them beaten her. Raj Kumari, who tried to save her by falling on her, was also assaulted. On their alarm, Lakhan, Batti Singh and others arrived. On the arrival of the witnesses, the accused fled. Badan Singh was carrying Danda, Ramesh was having Khanta, Siya Ram was armed with knife and Suraj was having stick. All of them beaten her. Raj Kumari, who tried to save her by falling on her, was also assaulted. On their alarm, Lakhan, Batti Singh and others arrived. On the arrival of the witnesses, the accused fled. She along with Batti Singh and Raj Kumari went to the police station. She was also medically examined along with Raj Kumari. 10. PW-4, Dr. A.K. Mishra, in his evidence deposed that on 18.12.1984 he was posted as Medical Officer at Primary Health Centre. On that date Constable Uday Veer Singh produced Raj Kumari and Munno Devi before him for medical examination. As the condition of Munno Devi was critical, after giving first aid, she was referred to Sadar Hospital, Mainpuri for further treatment. He further deposed that at 7.30 PM, he has medically examined Raj Kumari and found the following injuries: 1. Contusion 6 cm x 4 cm on upper part of back portion of right forearm, 5 cm below right elbow. 2. Contusion 1.5 cm x 1 cm on right side of face just below right eye. 11. In the opinion of the doctor, all the injuries were simple and were caused by blunt object, like lathi. All the injuries were fresh and were caused at 6.00 PM on 18.12.1984. 12. PW-5, Batti Singh is the first informant of the case. He deposed that on the date of occurrence at about 5-6 PM, he was on his house. On hearing the hue and cry, he rushed to the place of occurrence. When he reached the spot, he saw that accused Ramesh, Suraj Pal, Siya Ram and Badan Singh were assaulting Munno Devi. Badan Singh was armed with Danda, Siya Ram and Suraj Pal was having lathi, whereas Ramesh was having Khanta. Ramesh assaulted. All the accused assaulted Munno Devi with their respective arms. At the time of occurrence, Lakhan Singh, Hira Singh and Raj Kumar also arrived at the spot. Raj Kumari, who came to save Munno Devi, was also assaulted by the accused-appellants. He further deposed that he lodged the written report at the police station, which he proved as Ext. Ka-3. 13. At the time of occurrence, Lakhan Singh, Hira Singh and Raj Kumar also arrived at the spot. Raj Kumari, who came to save Munno Devi, was also assaulted by the accused-appellants. He further deposed that he lodged the written report at the police station, which he proved as Ext. Ka-3. 13. PW-6, Mitthoo Singh was the Head Muharrir, who prepared check FIR on the basis of written report handed over by Batti Singh and made necessary GD entries, which he proved as Ext. Ka-4. 14. PW-7, Dr. D.S. Shukla deposed that on 18.12.1984, he was posted as Emergency Medical Officer at Sadar Hospital, Mainpuri. On that date at 10.20 PM, he had medically examined Munno Devi, and found the following injury on her person: "Stitched wound 3 cm in length on right side of head 8 cm above right ear surrounded with swelling 5 cm x 4 cm. Bleeding present. X-ray was advised." 15. Doctor Shukla further stated that patient was unconscious and her condition was so precarious and there was likelihood of her death. 16. PW-8 SI S.K. Vidhyarthi was the investigating officer of the case, who investigated the case and submitted the charge sheet against the appellants. His evidence in details has already been discussed above. 17. After the closure of prosecution evidence, statements of the accused-appellants were recorded under Section 313 Cr.P.C. in which they denied their participation in the crime and stated that they have falsely been implicated in the present case. 18. However, learned Special Judge (EC Act), Mainpuri after hearing learned counsel for the parties and after assessing and evaluating the evidence on record, convicted and sentenced the appellants as indicated above. 19. Hence, this appeal. 20. During the pendency of this appeal, as appellant No. 2, Siya Ram died, the appeal filed on his behalf abated vide order dated 22.12.2016 and appeal filed on behalf of appellant No. 1, Badan Singh survives and is being decided by this order. 21. Heard learned counsel for the appellant-Badan Singh and Attrey Dutt Mishra, learned Additional Government Advocate and perused the record of the case. 22. Learned counsel for the appellant contends that the appellant has falsely been implicated due to enmity. He further contends that witnesses are related to each other, thus are not reliable. 21. Heard learned counsel for the appellant-Badan Singh and Attrey Dutt Mishra, learned Additional Government Advocate and perused the record of the case. 22. Learned counsel for the appellant contends that the appellant has falsely been implicated due to enmity. He further contends that witnesses are related to each other, thus are not reliable. Learned counsel lastly contends that learned Additional Sessions Judge has erred in law in not giving the benefit of Section 360 of the Code of Criminal Procedure to the appellant. 23. On the other hand learned State Counsel contended that the prosecution has proved the case against the appellant beyond the hilt and that order of conviction calls for no interference by this Court. 24. I am not convinced with the contention of learned counsel for the appellant that either on account of enmity or relationship, witnesses are not deposing correct facts and framed a false case against the appellant leaving the real culprits to go scot free. In this case the incident is admitted. There are two injured witnesses in this case, namely PW-1, Raj Kumari and PW-3, Munno Devi. PW-1, Raj Kumari has received two contusions, whereas PW-3, Munno Devi received stitched wound 3 cm in length on right side of head 8 cm above right ear surrounded with swelling 5 cm x 4 cm. PW-7, Dr. D.S. Shukla, who conducted medical examination of PW-3, Munno Devi opined that conditions of the victim was very much serious and there was likelihood of her death. Moreover, both the injured witnesses clearly stated that all the accused assaulted them and also stated the manner and the weapons by which they have been assaulted. In addition to the injured witnesses, PW-2, Lakhan and PW-4, Batti Singh, who were the witnesses of facts have also fully supported the prosecution case and have given the vivid description of the occurrence. Moreover, all the witnesses were put to lengthy cross-examination, but nothing could be elicited to make their testimony doubtful. 25. Accused-appellant Badan Singh in his statement under Section 313 Cr.P.C. stated that there was quarrel between wife of accused-appellant Badan Singh and Virendra Singh for which Badan Singh lodged a report at the police station. Moreover, all the witnesses were put to lengthy cross-examination, but nothing could be elicited to make their testimony doubtful. 25. Accused-appellant Badan Singh in his statement under Section 313 Cr.P.C. stated that there was quarrel between wife of accused-appellant Badan Singh and Virendra Singh for which Badan Singh lodged a report at the police station. This Court failed to understand as to how and under what circumstances, the incident which took place between Kamla Devi and Virendra Singh, accused-appellants Badan Singh and Siya Ram have been falsely implicated in the instant case. Moreover, date, time and place of occurrence relating to the incident which took place between Kamla Devi and Virendra have not been disclosed. In this case there are two injured witness, who have fully supported the prosecution case. It is not expected from the injured to depose wrong facts and frame a false case against the appellant leaving the real culprits to go scot free. 26. In Arjun and Others vs. State of Rajasthan, 1994 Supp (1) SCR 616, Hon'ble Supreme Court held as under: "We are not convinced by the aforesaid argument that either on account of animosity or on account of relationship, the witnesses did not divulge the truth but fabricated a false case against the appellants. It is needless to emphasis that enmity is a double edged sword which can cut both ways. However, the fact remains that whether the prosecution witnesses are close relatives of the deceased victim or on inimical terras with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on inimical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased." 27. In Hari Obula Reddy and Others vs. State of Andhra Pradesh, (1981) 3 SCC 675 , a three Judge Bench of the Supreme Court has observed thus: "It is well settled that interested evidence is not necessarily unreliable evidence. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased." 27. In Hari Obula Reddy and Others vs. State of Andhra Pradesh, (1981) 3 SCC 675 , a three Judge Bench of the Supreme Court has observed thus: "It is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony, nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence." 28. The next contention of the learned counsel for the appellant is that all the witnesses are related to each other and, therefore, their evidence is untrustworthy. This contention has no leg to stand inasmuch as PW-2, Lakhan Singh, who has fully supported the prosecution case was not related to the injured or the complainant. He was an independent witness, who resides next to the house of accused-Badan Singh. Moreover, the independent person avoid to testify in such cases as they do not want to invite enmity of the accused. 29. The last contention of learned counsel for the appellant is that learned Additional Sessions Judge has erred in law in not giving the benefit of Probation of Offenders Act to the appellant. 30. Before adverting to this contention of learned counsel for the appellant, it would be useful to quote Sections 3, 4 and 6 of the Probation of Offenders Act, 1958: "3. 30. Before adverting to this contention of learned counsel for the appellant, it would be useful to quote Sections 3, 4 and 6 of the Probation of Offenders Act, 1958: "3. Power of court to release certain offenders after admonition:- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition." 4. Power of court to release certain offenders on probation of good conduct:- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behavior: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any and the probation officer concerned. "6. Restrictions on imprisonment of offenders under twenty-one years of age:- (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. (2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section (1) the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender." 31. Perusal of Section 6 of the Probation of Offenders Act makes it clear that while in the case of offenders, who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act. 32. In the present case there are two injured namely PW-1, Raj Kumari and PW-3, Munno Devi. PW-7, Dr. D.S. Shukla, who conducted the medical examination of injured PW-3, Munno Devi opined that condition of Munno Devi was very much serious and there was likelihood of her death. 33. Hon'ble Supreme Court in Dalbir Singh vs. State of Haryana, AIR 2000 SC 1677 held as under: "Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence." (Emphasis supplied) 34. Moreover, the appellant along with other co-accused assaulted the injured with Khanta, lathi and danda with premeditated mind to cause his death, as a result thereof both the injured have received injuries, description thereof have already been given herein above. 35. Keeping in view the injuries and the manner in which the appellant assaulted the injured and caused injuries, the benefit of Section 6 of Probation of Offenders Act cannot be extended to the appellant. 36. In view of what has been indicated herein above, the order of the learned trial court calls for no interference. 37. Accordingly, the appeal is dismissed. 38. 36. In view of what has been indicated herein above, the order of the learned trial court calls for no interference. 37. Accordingly, the appeal is dismissed. 38. However, considering the facts that when the statement of the appellant under Section 313 Cr.P.C. was recorded in the year, he was aged about 45 years, at present he must be about 79 years of age, while upholding the conviction of the appellant under Section 308 IPC, this Court reduced the sentence of the appellant under Section 308 IPC to six months. 39. Chief Judicial Magistrate, Hamirpur is directed to take the appellant into custody forthwith to serve out the sentence awarded to him. 40. Office is directed to transmit a certified copy of this judgment to the court concerned for compliance. 41. Compliance report be positively submitted to this Court within eight weeks.