Allahabad High Court
State Of U.P. vs Bhagirath on 26 September, 2003
Equivalent citations: 2004CRILJ2405
Bench: M.C. Jain, Onkareshwar Bhatt
JUDGMENT Onkareshwar Bhat, J.
1. State of U. P. has preferred this appeal against judgment and order dated 22-12-1980 passed by the then II Addl. Sessions Judge, Jhansi in Session Trial No. 140 of 1979. The accused respondent was tried and acquitted under Section 307, I.P.C.
2. We have heard Sri M. C. Joshi, learned A.G.A. for the State and Sri Ramesh Sinha for the accused-respondent as amicus curiae.
3. Accused-respondent, Bhagirath, was residing in a portion of the house of informant, Gajju, P.W. 3, in Mohalla Mahaviran police station Prem Nagar, district Jhansi as a tenant. The injured of the case Smt. Quiyan, P.W. 2, is the wife of the informant. The informant's elder son was married. The daughter-in-law of the informant had illicit connection with the accused. Therefore, according to the custom of Biradari separation of Bhagwan Das and his wife had taken place about two months prior to the occurrence and she was living at her parents' house. Due to the above separation the accused felt bad because he used to talk to her. He used to say that she had to be provided with food and clothes and that the informant had to keep her. On 29-6-1979 at 9 p.m. injured. Smt. Quiyan, went to ease herself behind railway boundary wall, which had an opening because some portion of it had broken. One electric pole was situated nearby which was emitting light. At that time accused armed with Banka came and started assaulting her. She raised alarm which attracted P.W. 1, Paragi Lal, and Kanhaiya Lal, P.W. 5, who were sitting at the temple of Shanker Ji which was near the place of occurrence. Her husband, Gajju, P.W. 3, also reached there. The accused ran away on seeing them towards the bungalow of Major Khan. Blood had fallen at the place of occurrence. After departure of the accused Gajju and Paragi Lal took the injured to nursing-home, then to Government Dispensary and then to medical college, Jhansi. At the medical college Paragi Lal, P.W. 1, prepared a written report on the dictation of Gajju. The written report was given at the police station Prem Nagar on 30-6-1979 at 2 a.m. on the basis of which a case was registered. P.W. 8, P. N. Chaturvedi along with the Station Officer started investigation and proceeded for medical college. In the way outpost Pulia No. 9 fell. The Station Officer, instructed the Head Constable, Vishwanath Singh and two other constables that the accused should be apprehended as he had run away towards the bungalow of Major Sahab. Head Constable, Sant Kumar, PAV, 4, of outpost No. 9 was on patrol duty along with Head Constable, Vishwanath and two other constables. He has stated that instruction for search of the accused was given by the Station Officer. On information they reached the gate yard of Bijauli where accused was apprehended at 2.25 a.m. in the night on 29/30-6-1979 along with Banka.
4. Dr. Ashok Kumar Gupta, P.W. 9, was on emergency duty in the medical college. On 30-6-1979 he examined the injuries of Smt. Quiyan at 12.45 a.m. Following injuries were found on her person ;
1. Incised wound. 3 1/2" x 1/2" in size situated over right side, of scalp obliquely placed not crossing the midline. Bleeding profusely cut end of scalp bone felt.
2. Another incised wound on left side of 21/2 x 1/2" in size situated behind the ear upto the parietal eminence on left side. It is scalp deep. Bleeding profusely.
3. The point of Pinna is cut in left ear attached with flinge of skin. Bleeding profusely.
4. An incised wound 1" x 1/4" in size placed behind the ear 1/2" below the mastoid process. Bleeding profusely.
5. An incised wound situated on right upper arm 21/2" x 1/2" in size 3" above the lip of olecranon process. It is transversely placed. The exposed out muscles of arm can be seen. It is muscle deep.
6. Incised wound 3" x 3/4" in size situate obliquely on radial aspect of right forearm 3" proximal to shyloid process of radius and 51/2" distal of olecranon process of right elbow. It is bleeding profusely and muscle deep.
7. Incised wound in the web space between thumb and right index finger. It is deep upto base of thumb and bones are exposed bleeding profusely.
8. Incised wound over vault of scalp obliquely placed 2" x 1/2" in size bone deep, bleeding profusely.
9. Incised wound situated on back of wrist (Lt. hand) 3" x 1/2" in size bleeding profusely bone cut and exposed. It is obliquely placed.
10. Complaining of pain left shoulder joint. No sign of external injury.
5. X-ray was also advised. Dr. Arvind Srivastava, P.W. 7, performed X-ray and submitted report. He found fracture on junction of occipital bone and right parietal bone. Fracture was also found in lower third region of ulna bone.
6. The accused-respondent admits that he was living as a tenant at the house of the informant and his wife. He has denied to have any connection with the wife of Bhagwan Das and has also denied the prosecution case.
7. In the site plan, Ex. Ka 9, a temple of Shanker Ji has been shown which is towards northern side. Towards south of the temple of Shanker Ji there is an open space whereafter there is house of Bhagwan Das and thereafter the house of informant. On the eastern side of the temple and above houses there is a road whereafter there is boundary wall about 6 or 7 feet high. The boundary wall was broken at one place and very close to the opening in the boundary wall there is an electric pole, which was emitting light, The place where Smt. Quiyan was assaulted is about twenty paces from the temple and it is about 13 paces from the house of the informant. The fact that at the time of occurrence there was light on electric pole has not been challenged by the defence. P.W. 5, Kanhalya Lal, was sitting at the temple and P.W. 1, Paragi Lal was also there, Kanhalya Lal knew the informant and his wife Quiyan as well as the accused. The statement of Quiyan, P.W. 2, the injured of the case, is categorical that she was assaulted by the accused by Banka, which is also called Gandasa, when she had gone for easing. She has stated that blood had fallen at the place of occurrence. Her statement finds complete corroboration from the statement of P.W. 5, Kanhalya Lal, who has stated about the presence of light and assault made by the accused by Gandasa on Quiyan and that blood had fallen on the ground. He has stated that Gandasa was about one span in length and its width was about four Angul (finger). He has stated that incident had also been seen by Paragi Lal, P.W. 1, who has also stated that there was light at the place of occurrence and that the accused assaulted Quiyan twice or thrice before him also. He has also stated that blood had fallen at the place of occurrence.
8. The statement of Gajju, P.W. 3, husband of Quiyan, is to the effect that when he reached the place of occurrence the accused was running away. From the place of occurrence blood has been recovered by the Investigating Officer and a memo in that regard was prepared which is Ex. Ka 2. The Investigating Officer has also found electric pole near the place of occurrence. Since the accused was living as a tenant in the house of the informant and injured there would have been no difficulty in his recognition by Quiyan, P.W. 2. In fact she has stated that she recognised the accused even before he opened assault on her. The testimony of Quiyan finds complete corroboration from the evidence of P.W. 1, Paragi Lal and P.W. 5, Kanhalya Lal. Her testimony also finds corroboration from the medical evidence. Dr. Ashok Kumar Gupta, P.W. 9, who had examined the injuries of the injured, found eight incised injuries on her person which have been noted above. The doctor has stated that the injuries could have been caused at 9 p.m. on 29-6-1979 by means of cutting instrument like Banka or Gandasa. On X-ray fracture was found at the junction of occipital bone and right parietal bone and lower third region of ulna bone, The injuries No. 1 and 2 were on right side scalp. The trial Court has disbelieved the testimony of Dr. Arvind Srivastava, P.W. 7. The doctor has stated that when he prepared the report his lecturer and professor were also sitting and he consulted them. The fact that professor and lecturer were sitting and he had consulted them does not detract the value of the report, The trial Court also discarded the testimony of P.W. 9, Dr. Ashok Kumar Gupta, as the doctor has not mentioned in the call register and bed head ticket when he had actually examined the injured, Quiyan. The statement of doctor, Ashok Kumar Gupta, P.W. 9, shows that on 30-6-1979 while he was Resident Casualty Officer in emergency in the Medical College, Jhansi, he had examined Quiyan at 12.45 a.m. The doctor has also stated that the injuries are mentioned in injury register and bed head ticket was filled by House Surgeon, Dr. S. C. Pathak, whose writing and signature were verified by him, He has also proved the entries made in the call book in which time 12.45 a.m. was mentioned. The doctor has stated that on the basis of entry in call register by which he was called at 12.45 a.m. he had attended the injured. The statement of the doctor leaves no room for doubt that he had examined Quiyan on 30-6-1979 at 12.45 a.m. The trial Court was not right in disbelieving the doctor only because the time of examination of the injuries of injured. Quiyan, is not mentioned in the call register or bed head ticket, when the statement of the doctor is read as a whole no room for doubt is left that Quiyan was examined by Dr. Ashok Kumar Gupta on 30-6-1979 at 12.45 a.m. Therefore, the finding of the trial Court that medical evidence does not tally with the oral evidence is not correct,
9. The prosecution case also finds support from the recovery of Banka from possession of the accused on 30-6-1979 at 2.24 a.m. It has come in evidence that when the Investigating Officer, P. N. Chaturvedi, P.W. 8, was proceeding with the Station Officer towards Medical College outpost No. 9 felt in the way and the Station Officer instructed the Head Constable, Vishwanath Singh, Constables, Pooran Lal and Bhagwan Singh to apprehend the accused, who was alleged to have run away towards the bungalow of Major Sahab. P.W. 4; Sant Kumar states that he received the instructions of the Station Officer at 2.15 a.m. on 29/30-6-1979 when the accused was apprehended along with Banka at 2.55 a.m. in Bijauli gate yard workshop. The description of Banka is mentioned in the memo, Ex. Ka 4, which shows that its length was one span and width was four Anguls (fingers). There was blood on its blade. The description of Banka tallies with the description given by P.W. 5, Kanhalya Lal. Sant Kumar has stated that after his departure for checking duty, which was noted at 12.30 in the night of 29/30-6-1979, he came back to the out post because he felt to ease. On this score alone the trial Court has disbelieved the recovery of Banka, We are of the view that this fact alone is not sufficient for discussing the testimony of Sant Kumar regarding recovery of Banka from possession of the accused.
10. The observation of the trial Court investigation was done in half hearted manner is also not correct. The trial Court has observed that the investigating officer had not sent the blood-stained earth and plain earth for expert's opinion. Non sending of blood-stained earth and plain earth may be a lapse on the part of the Investigating Officer but it does not by itself detract the sworn testimony of the injured and eye-witnesses who categorically stated that blood had fallen at the place of occurrence. The weapon used and the fact that incised injuries have been sustained that must have caused bleeding. The trial Court has further observed that the place of occurrence was changed in as much as P.W. 1 Paragi Lal, who stated that the assault on Quiyan took place infront of the house of Quiyan. This sentence has been placed up in isolation. The site plan shows that the place of occurrence is infront of the house of informant and injured. The statement of Paragi lal, P.W. 1, in cross-examination that accused was assaulting Quiyan in front of her house does not mean that the assault on the injured took place just in front of her house. It was too literal an interpretation in isolation with the context in which it was said. The court has to see totality of the evidence and no capital can be made by taking one sentence from here or there. The place of occurrence where Quiyan was assaulted is also situate in front of her house and is at a distance of twenty paces from the houses. The motive for the crime is said to be annoyance of the accused caused due to going away of the daughter-in-law of the informant and the injured after separation according to the custom of the Biradari had taken place and she had gone to live with her parents. The statements of the informant. Gajju and injured, Quiyan, prove the said motive.
11. We are of the view that prosecution has proved its case beyond all reasonable doubt that it was accused-respondent, who armed with Banka, had assaulted the injured, Quiyan at the date, time and place of the occurrence with such intention and under such circumstances that if by that act death would have been caused, he would have been guilty of murder.
12. The injured had sustained nine injuries which show accused's intention. Two of the injuries were on right and left side scalp, which had caused fracture at the junction of occipital bone and parietal bone and there was also fracture of ulna bone in lower the third region.
13. In the facts and circumstances of the case, the finding of acquittal recorded by the trial Court is required to be reversed. The accused-respondent did commit an offence under Section 307, I.P.C. and he has to be punished therefore. Interest of justice will be met in awarding rigorous imprisonment for four years and a fine of Rs. 2000/- to the accused-respondent.
14. The appeal is allowed and the order of acquittal of the accused-respondent is set aside. The accused-respondent, Bhagirath, is convicted Under Section 307, IPC and sentenced to four years rigorous imprisonment and with a fine of Rs. 2000/- (Rupees two thousand only). In default of payment of fine he shall undergo further rigorous imprisonment for six months. The accused-respondent is on bail. He shall cause to be arrested by the Chief Judicial Magistrate concerned forthwith to serve out the sentence awarded to him. The Chief Judicial Magistrate shall report compliance within two months.
15. Judgment be certified for follow up action.