Allahabad High Court
Kallu vs State Of U.P. on 3 March, 2023
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW Reserved on 17.1.2023 Delivered on 3.3.2023 Court No. - 12 Case :- CRIMINAL APPEAL No. - 438 of 1997 Appellant :- Kallu Respondent :- State of U.P. Counsel for Appellant :- R.B.Singh,Kalika Prasad Pandey Counsel for Respondent :- Govt. Advocate Hon'ble Karunesh Singh Pawar,J.
1. This criminal appeal has been preferred under section 374 CrPC assailing judgment and order dated 28.7.1997 passed by Third Additional Sessions Judge, Pratapgarh whereby the appellant Kallu has been convicted and sentenced to four years rigorous imprisonment and a fine of Rs.500/-, with default provision in S.T. No.153 of 1992 for the offence under section 307 I.P.C..
2. Heard learned counsel for the appellant and learned Additional Government Advocate for the State.
3. Prosecution case as per first information report is that the complainant and the accused appellant are of one family. The accused Kallu is nephew of the informant. The son of the informant had cut one branch of Neem tree. This Neem belonged to Budhai. Sommari got executed a forged will for this Neem from Budhai whereas the said Neem was purchased by the informant. After cutting the Neem branch, Sommari and Kallu said that they will kill his son. An enmity regarding this was going on. Due to this enmity, on 23/24.4.1990 in the night at about 12.00, Kallu came at the house of the informant who was sleeping at the door. Three more persons were accompanying the accused Kallu. The informant does not know them by name. Kallu said as to where is his son Matapher. Today, he will kill him. Hearing this, Matapher climbed on the roof and started throwing bricks from there. Due to that, one accused sustained injuries on his head. While going, Kallu said/exhorted that Matapher could not be found and hence kill him (the informant). On exhortion of Kallu, the accused accompanying Kallu with country made pistol fired on the informant, as a result whereof, the informant received injuries. The pellets of fire came at his legs. The incident has been seen by the informant and his son in torch light. The incident was reported through Ext.Ka.3 at the police station. Due to that, crime No.136 of 1990 under section 307 I.P.C. P.S. Baghrai, was registered against the accused Kallu. The injured Chaituram was sent for medical examination. In the medico legal examination, it was found that the injured received one fire arm injury of 11cm x 11cm on left side of chest. Clotted blood was found present. Second fire arm injury measuring 16 x 4cm was on the right leg below knee. On that too, blood clot was present. The third fire arm injury 7cm x 4cm came on the left knee joint. Empty cartridges found on the place of occurrence have also been filed by the informant which is Ext. K-1. The investigating officer inspected the place of occurrence and site plan was prepared (Ext.Ka.6) and after completing the investigation, charge sheet was filed. Charge was framed against the accused appellant vide order dated 31.7.1992 under section 307 read with section 34 I.P.C.. The accused denied the charge and claimed to be tried.
4. The prosecution in order to prove its case has produced six witnesses, i.e. P.W.1 Smt. Ram Dulari (wife of informant Chaitu), P.W.2 Matapher son of the informant Chaitu Ram, P.W.3 Dr. A.K. Nigam, P.W.4 HC Hari Ram Chaudhary, P.W.5 S.I. Jagdish Singh and P.W.6 Vijai Prakash Singh.
5. P.W.1 Smt. Ram Dulari who is wife of the informant has supported the prosecution case. She stated that prior to the incident, due to cutting of Neem tree banch, a dispute took place which was referred in the panchayat. Kallu had beaten her husband. The villagers intervenued, however, Kallu extended threat to kill her husband and was inimical since then. On the date of incident, she was sleeping at home. Around 12.00 O'Clock, Kallu with his three accomplices came. She was sleeping inside, however, her husband was sleeping outside the house. At the time of the incident in the courtyard, her son Matapher and his wife were sleeping. The accused threatened her husband and got the door opened. She woke up her son and daughter in law. Both climbed on the roof. The accused started searching her son to kill. The accused started firing on the roof. The accused Kallu threatened that without killing, he will not go. After a while, when he came out from the house, he exhorted that since Matapher has not been found, kill him (complainant). On the said exhortation of Kallu, one accused has shot her husband from a country made pistol. She has identified the assailants in the torch light.
P.W.2 Matapher also supported the prosecution case. He stated that on the date of incident, he and his wife were sleeping opposite the court yard, his mother in Osara and the father was sleeping at the door. The accused with his three accomplices came inside the courtyard. Then he climbed on the roof by ladder. One accused kept on firing in the torch light. The accused Kallu kept on exhorting that without killing, he (Kallu) will not go. He threw the bricks from the roof which hit an accused. Kallu said that since he could not be traced, therefore, exhorted to kill his father. On this, another accused shot at his father. At the place of occurrence, empty cartridges were found which have been proved by this witness.
P.W.3 Dr. A.K. Nigam examined the injuries of Chaitu Ram. Bullet Fire arm injury was found in the x-ray but no bony fracture was found. He proved x-ray plate Ext. 1 and Ext. 2.
P.W.4 HC Hari Ram Chaudhary proved chik report as Ka-1. He entered the case in the general diary and proved nakal G.D., Ext. Ka.6.
P.W. 5 S.I. conducted investigation and proved Ext. Ka-7 charge sheeet.
P.W.6 Vijai Prakash Singh has proved the doctor(y) report of injured Chaitu Ram. He stated that he (Chaitu) was examined by Dr. S.M. Yadav who has died. He stated that the injured was examined by the doctor in his presence. He proved Ext. Ka-8 doctor(y) report.
6. In his statement under section 313 CrPC, the case of the accused appellant was of denial. He stated that Matapher prior to the incident had cut a branch of Neem tree. His father Sommari tried to stop him, however, Matapher had beaten his father. Due to intervention of the villagers, his father did not report to the police station. Due to this enmity, his name has been planted, although, it is a case of dacoity.
7. Learned counsel for the appellant has submitted that no evidence has been led by the prosecution to convict the appellant under section 307 I.P.C.
8. The admitted case of the prosecution is that on the exhortation of the accused appellant, the co-accused has fired upon the injured. He submits that except the appellant, no one has been caught by the police. It is submitted that merely on exhortation without invoking section 34 I.P.C., the accused appellant could not have been convicted.
9. Learned A.G.A. has opposed the appeal.
10. I have considered the submission advanced by learned counsel for the parties.
11. Admittedly, the offence as alleged in the first information report is due to the enmity going on between the informant and his son on one side and the accused appellant and Sommari who has allegedly got executed a forged will for the Neem tree from Budhai, on the other. On the fateful night on 23/24.4.1990, the accused appellant Kallu along with his three associates came at the house of the informant to commit the alleged offence to kill the son of the informant. However, when Matapher, son of the complainant could not be found as he had climbed at the roof of the house, then on the alleged exhortation of the present appellant, one of the accused fired shot at the informant, causing injuries as aforesaid. Although, the P.W.1 Smt. Ram Dulari and P.W.2 Matapher have supported the prosecution case but on the basis of their testimony alone without any other corroborative evidence, the judgment of conviction cannot be recorded for the offence under section 307 I.P.C., more so in view of the admitted case of the prosecution that the role of the appellant is only of instigating the co-accused.
12. It is significant to note that although the charge was framed for the offence under section 307 read with section 34 I.P.C., however, judgment of conviction has been recorded for the offence under section 307 I.P.C. only. There is no whisper of Section 34 I.P.C.. The main assailant(s) were not arrested by the police, nor any charge appears to have been framed against them. As said above, the role of the present appellant is only of instigating the co-accused who had shot from his fire arm, injuring the complainant.
13. This court while perusing the statement of the accused under section 313 CrPC and the judgment impugned has noticed the fact that the appellant has been convicted on the ground that on his exhortation, the co-accused has fired at the injured. This is the circumstance on the basis of which the appellant accused has been convicted. However, while examining the accused under section 313 CrPC, this particular circumstance that on exhortation of the accused, the co-accused has fired on the injured has not been put to the accused.
It is worthy to note that the learned trial court, although recorded the statement of the accused appellant under Section 313 CrPC, but a perusal of the judgment does not disclose the case of the accused, nor there is any whisper as regards the defence of the accused appellant. The trial court has recorded the judgment of conviction under section 307 I.P.C. in a casual manner and the defence of the appellant has not been dealt with. The statement of the accused appellant too has been recorded in a very cursory manner, without asking the accused relevant and direct question qua the allegation of exhortation to the main assailant who has caused injuries to the complainant, as referred to above. Thus, not only the judgment of the trial Court but also the statement under Section 313 CrPC is flawed.
14. In Satbir Singh and another versus State of Haryana 2021 SCC Online SC 404, Hon'ble Supreme Court has observed that the trial court should not record statement of the accused in a very casual and cursory manner, without specifically questioning the accused as to his defence. To quote para 22 :
"It is a matter of grave concern that, often, Trial Courts record the statement of an accused under Section 313 CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice "audi alteram partem", as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the part of the Court to question the accused fairly, with care and caution. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense, since the inception of the trial, with due caution, keeping in consideration the peculiarities of Section 304-B, IPC read with Section 113-B, Evidence Act. "
(Emphasised by me)
15. No specific question was asked from the accused under Section 313 CrPC as to what he has to say in his defence about his role of instigating the co-accused to kill the complainant when his son Matapher could not be found. Thus, the appellant was not afforded opportunity to put his defence. Learned trial court did not examine the defence of the accused. The court must put incriminating circumstances before the accused and seek his response. Section 232 CrPC provides, "If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. Such discretion must be utilised by the trial Courts as an obligation of best efforts.
16. For the purpose of conviction under section 307 I.P.C., the prosecution has to establish, firstly, intention to commit murder and secondly, act done by the accused. The burden is on the prosecution that the accused had attempted to commit murder of the prosecution witness. Here, in the case in hand, the role assigned to the accused appellant is only of exhortation and nothing else. Thus, on this ground also and in view of the fact that offence under section 34 I.P.C has not been dealt with although charge was framed by the trial Judge, the judgment under appeal is liable to be set aside.
17. Further, the prosecution has failed to produce Nanku tailor and Uma Shankar Patel of the village who have allegedly seen the incident in torch light. Only the wife and son of the complainant who are the interested witnesses have been examined as P.W. 1 and P.W.2 and although they supported the prosecution case that the present appellant has exhorted his accomplice to kill the informant, however, no corroborative material, much less a cogent and independent evidence, in support of this allegation has been led by the prosecution.
18. In view of what has been discussed above, the judgment and order of conviction dated 28.7.1997 (supra) is liable to be and is hereby set aside. The appellant is in jail. He shall be released from jail forthwith. The bail bonds and surety bonds are discharged.
Pending application, if any, stands disposed of.
19. Let the lower court record be sent back to the trial court, along with a copy of this order forthwith.
(Karunesh Singh Pawar, J) March 3, 2023 KKB/