Allahabad High Court
Abhilakh Singh And Sripal Singh Sons ... vs State Of U.P. on 15 December, 2005
Equivalent citations: 2006CRILJ1419
Author: Mukteshwar Prasad
Bench: Mukteshwar Prasad
JUDGMENT Mukteshwar Prasad, J.
1. This criminal appeal at the instance of two brothers, Abhilakh and Sripal Singh sons of Mulayam Singh is directed against the judgment and order-dated 31.7.1981 passed by the then Additional Sessions Judge, Pilibhit in S.T. No. 63 of 1980, whereby he convicted both brothers under Section 325 read with Section 34 of Penal Code and each of them was sentenced to suffer rigorous imprisonment for a period of five years.
2. Briefly stated, the facts of the prosecution case-giving rise to this appeal were as under: -
Abhilakh and Sripal Singh are sons of Mulayam Singh, Arjun Singh, the deceased was brother of Subedar Singh and all of them resided in village Jatpura Police Station Puranpur, Pilibhit. Some altercation had taken place between Arjun Singh on the one hand and appellants on the other in the month of April 1979 in the Khalihan. The villagers intervened and solved the dispute. However, the appellants were annoyed and bore grudge.
3. On 24.9.1979, at about 7.30 a.m. both the appellants assaulted Arjun Singh mercilessly by lathi near the house of PW 1 Chandrabhai. PW 1 Chandrabhal and PW 2 Raj Kumar Singh arrived there and saw the incident and on their intervention, the assailants ran away. The assailants caused several injures. They further threatened to kill him.
4. On the same day, Arjun Singh reached Police Station Puranpur and lodged an oral First Information Report. The local Police registered a case under Sections 323/506 I.P.C. C.W. 1 H.C. Bhagwan Singh prepared non-cognizable report dated 24.9.1979 at 12.10 p.m.
5. The local police sent the injured to P.H.C. Puranpur for medial examination of the injuries. The Medical Officer referred him to District Hospital, Pilibhit for further treatment after giving him first aid.
6. Arjun Singh expired in the District Hospital on the same day. An intimation was sent to the Police Station Puranpur regarding death of Arjun Singh. The case was converted under Section 304 I.P.C. PW 3 S.I. Surendra Pal Singh after receipt of information of death of Arjun Singh reached District Hospital, Pilibhit at 9.30 a.m. on 25.9,1979. He prepared inquest report and sent the dead body in sealed condition to mortuary for postmortem examination.
7. PW 4 Dr. Abdul Wahid, Medical Officer of District Hospital conducted autopsy on 25.9.1979 at 3.30 p.m. According to him, the deceased was about 40 years old and had expired about one day prior to the examination. Dr. Wahid found the following ante-mortem injuries: -
1. Abraded contusion 12 cm. x 3-1/2 cm. on the right side of face over the temple with fracture of the right frontal, parietal and temporal bones underneath. Clotted blood present.
2. Abraded contusion 4 cm. x 3 cm. on the right fore-arm 6 cm. above the wrist with fracture of both the bones underneath. Clotted blood present.
3. Contusion swelling 14 cm. x 4 cm. on the front and lower part of right thigh.
4. Abraded contusion 7 cm. x 3 cm. on the medial and lower part of right thigh.
5. Abrasion 2 cm. x 1 1/2 cm. on the back of right calf of leg.
6. Abraded contusion 3 cm. x 2 cm. over the left external malleolus,
7. Contusion 14 cm. x 3 cm. on the antero-lateral aspect of left thigh.
8. Abrasion 1 1/2 cm. x 1 cm. on the back of right elbow.
9. Abraded contusion 2 cm. x 1 cm. on the dorsum of prox. phalanx of right ring finger.
8. In the opinion of Dr. Wahid, the cause of death was coma resulting from head injuries. He further opined that all the injuries were caused by lathi.
9. The case was investigated by S.I. D.S. Gautam, the then S.O. He investigated the case as usual and submitted charge sheet against the appellants.
10. The case was committed to the Court of Session where a charge under Section 304 read with Section 34 I.P.C. was framed on 30.10.1980. Both the brothers pleaded not guilty and claimed to be tried.
11. At the trial, the prosecution examined PW 1 Chandrabhal, and PW 2 Raj Kumar who are said to be eyewitnesses of the incident in question. PW 3 S.I. Surendra Pal Singh prepared inquest report and other relevant papers for postmortem examination. PW 4 Dr. Abdul Wahid conducted postmortem examination on 25.9.1979 and proved postmortem report. PW 5 H.M. Shashenshah Wali proved N.C.R. under Sections 323/506 I.P.C. and entry in the G.D. He proved entry in the G.D. dated 26.9.1979 also whereby the case was converted under Section 304 I.P.C. He further proved site plan and charge sheet prepared by the then S.O. D.S. Gautam. The court examined H.M. Bhagwan Singh who registered case against the appellants on 24.9.1979 at 12.10 a.m. on the dictation of Arjun Singh.
12. Both the accused in their statements given under Section 313 Cr.P.C. totally denied their involvement in the alleged offence and attributed their false implication in the case on account of enmity. No evidence was led in defence.
13. After having considered entire oral as well as documentary evidence led by the prosecution and arguments advanced by the parties, learned Judge found that the offence committed by the accused was punishable under Section 325/34 I.P.C. and he accordingly convicted both the brothers in said Section and sentenced them to undergo rigorous imprisonment for a period of five years.
14. I have heard learned counsel for the appellants, learned A.G.A. and perused the record carefully.
15. Learned counsel for the appellants assailed the judgment under appeal mainly on the grounds that Investigating Officer of the case was not examined by the prosecution and presence of PW 1 Chandrabhal and PW 2 Raj Kumar at the time of incident appears to be doubtful. According to him, no independent witness of the locality appeared in the witness box. It was also submitted that the impugned incident took place more than 26 years ago and as such, the appellants deserve leniency regarding sentence and in any case, they should not be sent to Jail again.
16. On the other hand, learned counsel appearing for the State supported the impugned judgment and urged that Arjun Singh succumbed to the injuries on the same day in the District Hospital and one of the injuries was found on the head which is a vital part of the body and therefore, the appellants who were real brothers, do not deserve any sympathy of this Court and sentence passed against the appellants by the trial court can not be said to be excessive.
17. I have considered the arguments advanced on behalf of the parties and have also scanned the evidence carefully. In the instant case, it is noteworthy that deceased himself lodged the report at the Police Station within five hours of the incident in which both the appellants were named and it was clearly alleged that appellants assaulted him (Arjun Singh) mercilessly with their lathies. It is noteworthy that PW 1 Chandrbhal and PW 2 Raj Kumar were named in the report as eyewitnesses of the occurrence in question. As noted above, the injured expired in the District Hospital on the same day as a result of head injuries (injury No. 1). Dr. Abdul Wahid found fracture of right frontal, parietal and temporal bones. Therefore, in view of prompt F.I.R. by the deceased himself and number, nature and seat of ante-mortem injuries, It is crystal clear that assailants caused grievous hurt to Arjun Singh on the impugned date and time and gave him several lathi blows on different parts of the body including head. In this view of the matter, it may be safely concluded that the injuries in question were neither self-suffered nor manufactured with a view to falsely implicate the appellants.
18. Now the next question is as to who were the perpetrators of crime who belaboured Arjun Singh with lathies at the place, as alleged by the prosecution. As mentioned above, the prosecution produced two eyewitnesses only to prove the complicity of the appellants in the crime. PW 1 Chandrabhal whose house is quite adjacent to the scene of incident categorically testified that on the impugned date at about 7.30 a.m. he was having tea in his house. On hearing the cries, he came Out and saw the appellants assaulting Arjun Singh with lathies and after sustaining injuries, Arjun Singh fell down. He intervened and then assailants took to their heels. Chandrabhal added that PW 2 Raj Kumar Singh had also arrived there and saw the incident. PW 2 Raj Kumar Singh disclosed that at about 7.30 a.m. on the date in question, he was going to Flour Mill of Chandrabhal. He found both the appellants assaulting Arjun Singh with lathies. Both Chandrbhal and Raj Kumar disclosed in clear words that the incident took place between temple and well and on their intervention, the assailants ran away towards north-west. Both the witnesses were cross-examined at length, but I find nothing in their cross-examination to discard or disbelieve their testimony. Learned counsel for the appellants failed to point out any animosity between the appellants on the one hand and prosecution witnesses on the other.
19. It is true that Investigating Officer was not examined by the prosecution. However, I find that non examination of Investigating Officer in the instant case is not fatal and no prejudice was caused to the appellants.
20. After a close scrutiny and analysis of the evidence on record, I am in agreement with the conclusion of the court below that there was no reason to disbelieve the evidence of the eyewitnesses. PW 1 Chandrabhal and PW 2 Raj Kumar were neither interested in the deceased nor inimical to the appellants and the court below rightly placed reliance on their testimonies. I further agree with the inference of the court below that there was no intention on the . part of the appellants to commit the murder of Arjun Singh and they intended to cause grievous hurt.
21. So far as sentence is concerned, the court below sentenced the appellants to undergo rigorous imprisonment for a period of five years. It is true that the impugned incident took place more than 26 years ago and the appellants are now more than 60 years old. On the other hand, Arjun Singh a young man aged about 40 years expired as a result of Injuries caused at the hands of appellants. In this view of the matter, I am inclined to reduce the sentence of imprisonment to the period of two years. Further the appellants are liable to pay a fine of Rs. 15,000/- (Fifteen thousand) also.
22. The appeal is, therefore, disposed of as under: -
The conviction of both the appellants under Section 325 read with Section 34 of Penal Code is confirmed. The sentence imposed by the trial court is modified and each of the appellants is sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 15,000/- (Fifteen Thousand). In default of payment of fine, they are directed to suffer rigorous imprisonment for a period of one ear.
23. The appellants are on bail. Their bail bonds are cancelled. They shall be taken into custody and lodged in Jail to serve out the sentence.
24. A copy of the judgment shall be sent to the court concerned / Chief Judicial Magistrate, Pilibhit within a week for compliance of the order. The compliance shall be intimated to this Court within a period of six weeks from the date of receipt of the record.