Allahabad High Court
Swami Dayal And (3) Others. vs The State Of U.P. on 7 April, 2021
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- CRIMINAL APPEAL No. - 221 of 1999 Appellant :- Swami Dayal And (3) Others. Respondent :- The State Of U.P. Counsel for Appellant :- P.K.Misra,Anurag Kumar Singh,Brij Mohan Sahay,Rakesh K. Tripathi,Ran Vijai Singh Counsel for Respondent :- Government Advocate Hon'ble Rajeev Singh,J.
1. The present appeal has been filed against the judgment of conviction and order of sentence dated 18.05.1999 passed by IV Additional Sessions Judge, Hardoi in Session Trial No. 452 of 1991 arising out of Case Crime No. 119 of 1991, under Sections 323/34, 324/34 and 307/34 I.P.C., Police Station Tandiyawan, District Hardoi, whereby the court below had convicted the appellants and sentenced them to undergo R.I. for six months under Section 323/34 I.P.C. Trial court convicted the appellants under Section 324/34 I.P.C. and sentenced them to undergo R.I. for two years. Trial court also convicted the appellants under Section 307/34 I.P.C. and sentenced them to undergo R.I. for ten years.
2. Vide order dated 28th May, 1999, this Court while admitting the appeal, granted bail to the appellants. During the pendency of the present appeal, appellant no. 1-Swami Dayal s/o Kalika Prasad and appellant no. 3 Suresh s/o Swami Dayal died, as a result of which, appeal has been abated on their behalf vide order dated 30.08.2017.
3. As per prosecution story, on 21.09.1991, when the father of the complainant, namely, Chhotey Lal, was coming back to the house after morning rituals, at about 7 a.m., appellants, who were armed with lathi and banka, assaulted Chhotey Lal. On his alarm, when the uncle of the complainant, namely, Sri Ram reached at the place of incident to save Chhotey Lal, he was also beaten by the accused-appellants. Thereafter, the injured-Chhotey Lal was brought to the police station.
4. On the written complaint of the son of the injured-Chhotey Lal, namely, Basudeo, the F.I.R. was lodged at 9.30 a.m. on the same day, i.e., on 21.09.1991 as Case Crime No. 119 of 1991, under Sections 323, 324, 504, 506 I.P.C. and the chik F.I.R was proceeded. The case was also registered in the G.D. of the police station, vide G.D. No. 13 at 9.30 a.m. on 21.09.1991.
4. Thereafter, injured persons, namely, Chhotey Lal and Sri Ram were sent for medical examination to PHC, Tandiyawan, where they were examined by Dr. Ashok Kumar Singh. According to the medical report, 9 injuries were found on the body of the injured-Chhotey Lal, which are as under:
"1. A sharp cut wound 6 cm x 0.5 cm in diameter on the head, 7 cm above the nose of bridge transversely placed. Bone deep. Bleeding present.
2. A sharp cut wound on the head curved 9 cm. In length 0.5 cm in width, 6 cm from the bridge of nose extending posteriorly towards left ear, 8 cm above the left ear. Bone deep and bleeding pasitive.
3. A sharp cut wound on the middle of skull 8 cm above the left ear-1/2 cm x 0.5 cm in diameter anterio posteriorly placed. Bleeding pasitive Bone deep.
4. A sharp cut wound on the posterior side of skull - 4-1/2 cm x 0.5 cm, 6.1/2 cm above the left ear. Bone deep. Bleeding pastive.
5. A sharp cut wound 3 cm x 0.5 cm in diameter on the back side of skull, 10 cm from the left ear. Bleeding pasitive, Bone deep.
6. A sharp cut wound 4 cm x 0.5 cm on the back side of skull. Bone deep. Bleeding pasitive, 5.1/2 cm behind the crown.
7. A abrasion on the middle of scalp 1-1/2 cm x 1 cm in diameter.
8. Contusion on the upper side of block in the sacpular region-13 cm x 19 cm on the back.
9. Multiple contusion on the back. Dark reddish in colour."
The doctor also advised for x-ray in respect of injuries of Chhotey Lal, as such, x-ray was also conducted and supplementary report was prepared, which shows the presence of multiple radio opaque shadow (foreign bodies) of different shapes and size in the head region. On the basis of supplementary x-ray report of Chhotey Lal, the Investigating Officer altered Section 307 I.P.C.
As per the medical report of Sri Ram, two injuries were found, one of which was abrasion on the skull and the second was of pain in the right upper arm.
5. Thereafter, the Investigating Officer prepared the site plan and after recording the statements of the witnesses under Section 161 Cr.P.C., prepared the charge sheet dated 09.10.1991 under Sections 307, 323, 504, 506, 324 I.P.C. against all the appellants and filed the same in the court concerned. In pursuance of the same, accused-appellants were summoned. The case was committed to the court of session and registered as S.T. No. 452 of 1991 and the accused were charged under Section 323, 324, 307 read with Section 34, 504, 506 I.P.C. Appellants denied the charges and requested for trial.
6. The prosecution produced 7 witnesses, namely, Basudeo (complainant) as P.W. 1, Chhotey Lal as P.W. 2, Laxman s/o Gokul as P.W. 3, Constable Raj Kumar Maurya as P.W. 4, Dr. A.K. Singh as P.W. 5, Dr. O.P. Misra as P.W. 6 and S.I. Sughar Singh (Investigating Officer) as P.W. 7.
The prosecution also relied on 9 documentary evidences, i.e., application of the complainant-EX. Ka-1, Chik F.I.R.-Ex. Ka-2, G.D. No. 13 dated 21.09.1991-Ex. Ka-3, Medico Legal report of Chhotey Lal-Ex. Ka-4, injury report of Sri Ram-Ex. Ka-5, supplementary x-ray report of Chhotey Lal-Ex. Ka-6, x-ray report of Chhotey Lal-Ex. Ka-7, Site plan-Ex. Ka-8 and charge sheet-Ex. Ka-9.
Constable Raj Kumar Maurya (P.W. 4), who was posted as Constable clerk at police station Tandiyawan on the date of incident, has proved the chik F.I.R. Dr. A.K. Singh (P.W. 5) has proved the injury reports of the injured persons, namely, Chhotey Lal and Sri Ram. Dr. O.P. Mishra (P.W. 6) has proved x-ray report and x-ray plates and Investigating Officer Sughar Singh (P.W. 7) has proved the site plan and the charge sheet.
7. After closure of the prosecution evidence, statements of accused-appellants were recorded under Section 313 Cr.P.C. along with the statement of defence witness, i.e., Constable Mahabir Prasad as D.W. 1.
8. After hearing learned counsel for the parties, judgment and order of conviction and sentence dated 18.05.1999 was passed, which is under challenge.
9. Heard Shri B.M. Sahay, learned counsel for the appellants and Shri Yugul Kishor, learned A.G.A. for the State.
10. P.W.1-Basudeo (complainant), in his statement deposed before the court below, stated that on the date of incident, his father Chhotey Lal went to ease himself in the morning and while returning back, when he reached near the school Tiraha, the appellants, namely, Swami Dayal and Dinesh Kumar armed with lathi, Madan armed with banka and Suresh armed with kanta, assaulted Chhotey Lal. On his alarm, complainant (Basudeo) along with his uncle-Sri Ram rushed to save him and when Sri Ram tried to rescue Chhotey Lal, Swami Dayal and Dinesh assaulted him also with lathi. He also stated that at the time of incident, Laxman and Ram Bhajan were also present and on their challenge, the accused persons went away by saying that next time, he could not be saved. P.W. 1 also stated that appellants and complainant are the neighbours and there was one common wall, which fell down and when the complainant's side were raising construction, the accused persons started quarrelling, on which, proceedings under Section 107/116 Cr.P.C. was initiated, however, the wall was raised by the complainant's side. He also stated that, on account of the said incident, appellants were inimical to them since then. He also deposed that except the said incident, there was some agricultural land dispute also in between them. He also stated that the incident was explained to Vinod Kumar, who wrote the complaint and the complainant (P.W. 1) signed on the complaint.
Chhotey Lal (P.W. 2), in his statement, before the court stated that on the date of incident, at about 7 a.m., when he was returning to house after easing himself, he was surrounded by Swami Dayal and Dinesh Kumar, who were armed with lathi, Suresh, who was armed with kanta and Madan, who was armed with banka. Thereafter, on the exhortation of Swami Dayal, all of them started assaulting him by saying that how could he construct the wall. In his statement, he further stated that on the alarm having been raised by him, Basudeo (P.W. 1) and Sri Ram (P.W. 2) along with Laxman and Ram Bhajan came on the place of incident. Further, when his brother-Sri Ram tried to rescue him, Swami Dayal and Dinesh assaulted him also by lathi. However, on the challenge having been given by his son-Basudeo and other witnesses, they went by saying that next time, he could not be saved.
P.W. 3, Laxman was also produced before the court, who stated that on the date of incident, he was going to take medicine for his calf and when he reached at the place of incident, he found that Chhotey Lal was being assaulted by the accused-appellants with their respective weapons. He also stated that when Sri Ram (P.W. 2) tried to save him, he was also assaulted by Swami Dayal and Dinesh. Thereafter, accused-appellants went away by saying that this time, he was saved, but next time, we would fix it.
11. Learned counsel for the appellants submitted that there is contradiction in the statement of the complainant-Basudeo (P.W. 1). Though P.W. 1 admitted the contents of the complaint and assigned specific weapons to all the accused, but neither in the F.I.R. nor in the site plan, the weapon Kanta is mentioned. Learned counsel for the appellants further submitted that in his statement, P.W. 1 also deposed that due to fear of the accused-appellants, he did not go the place of incident and was standing away from the place of incident. He also stated that when the injury was being caused, his father Chhotey Lal was not saving himself with his hands and was only moving here and there. Learned counsel for the appellants also submitted that though P.W. 1 stated that blood was oozing from his injuries and also fell down on the ground, but he admitted that blood stained clothes were not taken by the Investigating Officer and the clothes were properly washed by him on the next day of the date of incident.
Similarly, Chhotey Lal (P.W. 2), in his statement, deposed that when he was being assaulted by the appellants, he did not try to save him with his hands and he was assaulted for 3-4 minutes, he was standing. Learned counsel for the appellants submitted that P.W. 2 though categorically stated that after surrounding him, he was assaulted by all the appellants, in which, blood was oozing from his injuries and also fell down on the earth, however, blood stained clothes were not taken by the Investigating Officer.
Learned counsel for the appellants vehemently submitted that it is the admitted case of Chhotey Lal himself that he is having criminal antecedent and is inimical to the appellants, therefore, false implication of the appellants cannot be overlooked. He also submitted that there is vital omission in the F.I.R., as weapon-kanta, which was not mentioned in the F.I.R., was later on developed in the prosecution story in the statement of the complainant. Learned counsel for the appellants also submitted that neither the blood stained clothes nor the blood stained earth was taken into custody by the police, meaning thereby, no such incident was taken place on the alleged place of incident. Learned counsel for the appellants next submitted that in the statement of P.W. 1 deposed before the court, he has categorically stated that the Chhotey Lal was being assaulted, but thereafter accused-appellants went away by saying that this time he was saved, but next time, we would fix it.
Identical statement was also given by P.W. 2, Chhotey Lal (injured), meaning thereby, there was no intention to kill Chhotey Lal. Learned counsel for the appellants also submitted that Chhotey Lal (P.W. 2) stated that he was being assaulted by the accused-appellants by all surroundings, but he did not save himself with his hands. It has vehemently been submitted by the learned counsel for the appellants that neither the blood stained clothes nor blood stained earth was taken by the Investigating Officer, though the blood was allegedly oozing from his injury and the same was also fell on the earth. He also submitted that the Investigating Officer has wrongly added the offence under Section 307 I.PC., on the basis of supplementary medical report, though, as per the statements of the witnesses as also the injury report of the injured, no intention can be said to be made out to kill Chhotey Lal. It has next been submitted by the learned counsel for the appellants that court below has committed error in convicting the appellants, as it is highly improbable that the person, who is being assaulted, is not trying to save himself with his hands. Learned counsel for the appellants also submitted that no explanation has been given by the prosecution in relation to the foreign particles found in the x-ray report, as it is not the case of the prosecution of firing.
Learned counsel for the appellants submitted that the blood stained earth was not recovered by the Investigating Officer, though it is obligatory on the part of the prosecution to prove its case. In the present case, though injured witness has himself stated that blood was oozing from his injury and also fell on the earth, but not collecting the same by the Investigating Officer, creates suspicion on the prosecution story itself. In support of his submission, learned counsel for the appellants placed reliance on the decision of the Hon'ble Apex Court in the case of Laxmi Singh & Ors. Vs. State of Bihar, (1976) 4 SCC 394 (paragraph 14).
He also submitted that the statement of the injured is not reliable as he himself has not explained the foreign particles found, during the course of x-ray, in his head. In support of his submission, learned counsel for the appellants place reliance on the decision of the Hon'ble Apex Court in the case of Pankaj Vs. State of Rajasthan, (2016) 16 SCC 192.
Further, placing reliance on the decision of this Court in the case of State of U.P. Vs. Ram Lakhan & Ors., 1983 L.Cr.R. 211, learned counsel for the appellants submitted that the injuries of the witness guarantees his presence, but not his veracity. Reliance has also been placed learned counsel for the appellants in the cases of Shyama & Ors. Vs. State of U.P., 1992 JIC 148, Nizamuddin & Ors. Vs. State of U.P., 1991 JIC 588, and Gulam Mustafa Vs. State of Uttaranchal, (2016) 15 SCC 752 and submitted that as per the prosecution evidence, appellants voluntarily caused injuries, therefore, conviction under Section 307 I.P.C. has wrongly been done and it sustained up to the conviction under Section 324 I.P.C.
It is next submitted that there is no recovery of any weapon from the appellants. He lastly submitted that as the incident is of September, 1991, i.e., about 30 years ago and the appellant no. 2 is more than 70 years and appellant no. 4 is more than 55 years and they never misused the liberty of bail, therefore, their case is to be considered for probation under the provisions of Section 360 Cr.P.C. as well as under Section 4 of the Probation of Offenders Act, 1958.
12. Shri Yugul Kishor, learned A.G.A., on the other hand, opposed the prayer of the appellants and submitted that injured-Chhotey Lal received 9 injuries and out of nine injuries, six injuries are sharp edged wounds and two injuries are contusion. Learned A.G.A. further submitted that as appellant no. 2-Madan was assigned banka and appellant no. 4-Dinesh was having lathi, therefore, it cannot be said that the injuries of the injured persons have not been caused by the appellants. Learned A.G.A., placing reliance on the decision of the Hon'ble Apex Court in the case of Mallikarjuna Vs. State of Karnataka, (2019) 8 SCC 359 (paragraph 20) and CBI & Anr. Vs. Mohd. Parvez Abdul Kayuum & Ors. (2019) 12 SCC 1 (paragraph 65) submitted that there is no illegality in the judgment and order passed by the court below.
13. I have considered the arguments advanced by the learned counsel for the parties and gone through the record.
14. Admittedly, the prosecution was initiated by lodging of the F.I.R. on the written complaint of Basudeo, who was examined as P.W. 1. It is also evident that in the written complaint, Basudeo alleged that he is the eye witness of the incident and he saw that the appellants armed with lathi and banka assaulted his father Chhotey Lal (P.W. 2). However, later on, Basudeo changed his version by assigning the weapon of kanta to Suresh. It is also evident that P.W. 1 as well as P.W. 2 have categorically deposed before the court that the appellants were annoyed on them due to the wall having been raised by them, as a result of which, they assaulted the injured. In their statement, both the witnesses, i.e., P.W. 1 and P.W. 2 stated that thereafter the appellants went away by saying that next time, they would fix it. It is also evident from the statement of the injured, Chhotey Lal that when the accused persons were assaulting him, he was not saving himself with his hands. Further, though Madan and Suresh were allegedly having sharp edged cutting weapon, i.e., banka and kanta, as has been stated in the deposition of the witness as well as injured, but general role has been assigned to all the accused persons. It is also not clear that as to how many blows were given by Madan and Suresh.
P.W. 7, Sughar Singh-Sub Inspector/Investigating Officer, in his statement, stated that Section 307 was added by him after receiving x-ray report and supplementary report, which reveals some foreign particles found in the head of Chhotey Lal. However, apparently, the case of the prosecution was not of firing, even by any of the accused. Moreover, P.W.-2 Chhotey Lal (injured) has not deposed anything before the court below about the foreign particles found in his head, as per the x-ray report.
Finding this omission surprising, I have gone through the case diary, after opening the sealed envelop (attached with the file), and gone through the statement of the injured-Chhotey Lal recorded under Section 161 Cr.P.C. A perusal of the case diary goes to show that before the Investigating Officer, Chhotey Lal stated that in another incident, he received fire arm injury in his head, but pallets could not be got out through operation and, thus, they are being shown in the x-ray report.
In such circumstance, there was no justification available to the Investigating Officer to add Section 307 I.P.C., as he deposed before the court below that Section 307 I.P.C. was added after going through the x-ray report and, thus, the Investigating Officer committed wrong, especially when there was no case of the prosecution of firing.
Further, as per Dr. A.K. Singh, who examined the injured, only two contusions were found on the body of the injured-Chhotey Lal. Moreover, though the brother of Chhotey Lal, namely, Sri Ram was also the injured witness, but he was not placed before the court below for statement. The prosecution also could not give any specific explanation as to why neither the blood stained clothes/earth nor any weapon was recovered. Therefore, presumption goes against the prosecution.
It is also an admitted fact that initially, the F.I.R. was lodged under Sections 323, 324, 504, 506 I.P.C., but thereafter, merely on the basis of injuries and supplementary report, Section 307 I.P.C. was added by the Investigating Officer, though no such case of firing is alleged against the appellants. On the basis of the said report of the Investigating Officer, the trial court convicted the appellants under Section 307 I.P.C. also along with other Sections. It is also the admitted case of the prosecution that the incident had taken place for 3-4 minutes and thereafter, accused persons went away by saying that they would fix it next time.
In the identical circumstances, Hon'ble Apex Court in the case of Gulam Mustafa (supra), held that to justify conviction in Section 307 I.P.C., the Court has to see that whether the act was done with the intention to commit murder.
In view of above facts and circumstances, the appellants cannot be held liable to be convicted for the offence under Section 307 I.P.C. However, at the same time, for having voluntarily caused grievous hurt, they are liable to be punished under Section 324 of the Penal Code.
Considering the above facts and circumstances of the case, the present appeal is partly allowed. The conviction and sentence under Section 307 I.P.C. is set aside. The conviction under Section 324 I.P.C. is confirmed. However, the sentence inflicted by the trial court under Section 324 I.P.C. is modified to the period already undergone by the appellant nos. 2 and 4, namely, Madan and Dinesh Kumar with fine of Rs.25,000/- each. In case of default of payment of fine, both the appellants have to further undergo imprisonment for a period of two months.
Both the appellants are directed to deposit the amount of fine in the court below within three months from today, failing which, Chief Judicial Magistrate concerned will proceed with the matter in accordance with law.
Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.
April 07, 2021 VKS