Allahabad High Court
Devi Harijan And Another vs State Of U.P. on 20 July, 2021
Equivalent citations: AIRONLINE 2021 ALL 2036
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 27 Case :- CRIMINAL APPEAL No. - 242 of 2002 Appellant :- Devi Harijan And Another Respondent :- State of U.P. Counsel for Appellant :- Prem Singh,Sushil Kumar Singh Counsel for Respondent :- Govt. Advocate Hon'ble Karunesh Singh Pawar,J.
1. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record.
2. The present criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 has been filed against the judgment and order dated 8.2.2002 passed by II Additional Sessions Judge, Sultanpur in Sessions Trial No. 134 of 1994 arising out of Case Crime No. 209 of 1993, under Sections 324, 307 and 504 I.P.C., Police Station Lambhua, District Sultanpur, whereby the appellant no.1-Devi Harijan was convicted under Section 307 I.P.C. and sentenced to undergo five years rigorous imprisonment with a fine of Rs.2000/- and in default of payment to undergo three months additional imprisonment; and appellant no.2-Chauthi Harijan was convicted under Section 307/34 I.P.C. and sentenced to undergo five years rigorous imprisonment with a fine of Rs.2000/- and in default of payment to undergo three months additional imprisonment.
3. It transpires from the record that the instant appeal filed by appellant no.1-Devi Harijan has been abated vide order dated 17.04.2018 passed by Co-ordinate Bench of this Court.
4. The prosecution case, as per the written report, is that on 13.5.1993, at about 6:00 a.m., the cousin brother of the informant, namely, Devi, was digging onion on the abadi land of the informant and the informant reached there and asked him not to dig his onion but he did not listen him and after abusing him, went to his house and threatened him that I will see you just now. Thereafter, he gone to home and returned with scissor along with appellant no.2-Chauthi with intention to kill him. By that time father of the informant had also reached on the spot, upon which appellant no.2-Chauthi exhorted to kill the informant and caught hold his father while exhorting and appellant no.1-Devi Harijan with intention to kill started hitting his father with scissor, as a consequence of which, his father suffered with lot of wounds from scissor and scissor broke inside the body of his father and his father fell down. On alarm being raised, Jhagai and several other persons of the village reached there and saw the incident and also mediated. Thereafter, the informant took his injured father to the police station, where his report was not lodged and he was asked to first get the medical examination of the injured, then, the report will be lodged. The injured was thereafter medically examined.
5. The injuries of P.W.2 Bansilal was medically examined by Dr. R.P. Singh (P.W.5) of Community Health Center, Lambhua, Sultanpur on 19.5.1993 at 10.20 a.m. Dr. Singh found following injuries on the person of injured Bansilal:-
"(1) Incised wound at Rt. side of the scalp 3cm x 0.5cm deep x scalp deep fresh bleeding from the wound is present. 11 cm above the Rt. ear margins are sharp fresh bleeding from the wound is present.
(2) Incised wound at Rt. side of the back of chest 1cm x .5cm x muscle deep margins are sharp fresh bleeding from the wound is present.
(3) Incised wound at Rt. side of the back corresponding to medial border of scapula 1cm x (sic) x muscle deep fresh bleeding is present".
6. P.W.5 Dr.R.P.Singh, in his statement has stated that the injuries could be caused by the scissor on the date and time of the incident. He had advised the injured Bansilal to get the x-ray of his chest be done. Whereupon the injured Bansilal did his x-ray of chest from Radiologist Dr. Subodh Kumar, District Hospital Sultanpur. PW 3 Dr. Subodh Kumar, in his statement has deposed that the x-ray of chest of injured Bansilal was done under his supervision, wherein it has been opined that two radio opaque, metallic triangular seen in chest wall at level of thoralei 2, 3 and 4th spin. It was also found that both christopher angles clear and no bone injury seen. The report of x-ray has been marked as Exhibit Ka 2.
7. It appears that after the incident the informant PW1 Pappu went along with his injured father to police station Lambhua for lodging the First Information Report but instead of lodging the First Information Report the Inspector told the informant PW1 Pappu to first get his father admitted in hospital then First Information Report could be lodged. As the First Information Report was not lodged even after hospitalizing the father of the complainant in Lambhua Hospital in a serious condition, hence, the informant Pappu P.W.1 had moved an application (Exhibit Ka1) before Superintendent of Police, Sultanpur on 18.5.1993, on which the Additional Superintendent of Police directed the Station Officer Lambhua Police Station on the date itself i.e. on 18.5.1993 to register a case. In pursuance thereof, an F.I.R. (Exhibit Ka 4) was registered as Case Crime No. 209 of 1993 under Section 324, 307, 504 Indian Penal Code, Police Station Lambhua, District Sultanpur on 29.5.1993 at 15.30 hours.
8. It transpires from the impugned order passed by the trial court that the Investigating Officer, who made the site plan, was not produced in the witness box and the Investigating Officer, who is said to have proved the site plan, has stated that he was not present at the time of preparation of site plan. The trial court, after going through the record, found that the investigation of the case was partly conducted by two Investigating Officers. First of all, S.I. Rajnath Rai had conducted the investigation of the case and after his transfer, the rest of the investigation was conducted by S.I. Mangla Prasad Singh (P.W.4), who, in his statement, has stated that on 24.6.1993 both the accused/appellants namely Devi and Chauthi was arrested. He also stated that after the death of erstwhile Investigating Officer Rajnath Rai the investigation of the case was entrusted to him. He had proved the site plan prepared by the then Investigating Officer Rajnath Rai, chik First Information Report prepared by the then Head Moharrir Ram Surat Paswan and carbon copy of G.D. which was prepared in original. Finally, on 11.7.1993, he submitted the charge-sheet (Exhibit Ka 3) against the appellants.
9. The case was committed to the court of Sessions in usual manner. There charges under Section 307/34 and 506 Indian Penal Code were framed against the appellants, to which they pleaded not guilty and claimed to be tried. His defence was that of denial.
10. In the trial, the prosecution, apart from tendering and proving a large number of exhibits, namely, written report (Exhibit Ka.1), Xray report (Exhibit Ka.2), charge-sheet (Exhibit Ka. 3), Chik First Information Report (Exhibit ka 4), report of record keeper (Exhibit Ka.5), General Diary (Exhibit Ka.6) and site plan (Exhibit Ka.7) as well as the injury report of injured Banshi (Ext. Ka. 7A), examined as many as 5 witnesses, namely, P.W.1-Papu alias Umesh, who is the complainant, P.W.2-Banshi, who is the injured witness, P.W.3-Dr. Subodh Kumar, who has proved the x-ray report, P.W.4-S.I. Mangla Prasad Singh, who has proved the site plan and other documents relating to investigation and also filed charge-sheet, Chik report, report of record keeper and site plan and P.W.5- Dr. R.P. Singh, who has medically examined the injured P.W.2 Bansilal. In defence, no witness was examined. In the statement recorded under Section 313 Cr.P.C., the accused/appellants have denied the incident and pleaded that they have falsely been implicated in the instant case. The trial court believed the evidence adduced by the prosecution and passed the impugned order, referred in para no.2 hereinabove.
11. PW.1-Pappu alias Umesh is almost repeated the prosecution version as has been mentioned in the written report and has stated that Devi (appellant no.1) is his cousin brother and appellant no.2 is the uncle of co-accused Devi. The incident took place around more than one and a half year ago. In the morning at sunrise while he was brooming at his door, he saw that accused Devi was digging onion belonging to him which was planted in the abadi land in front of his house. He asked Devi not to dig onion. On that Devi abused him and threatened to see him then he went away and immediately came back with scissor along with co-accused Chauthi. Chauthi exhorted to kill him. The father of the PW1 at that time came to rescue him at that moment the Chauthi caught hold his father from behind and accused Devi with an intent to kill has assaulted him with scissor around 1 inch scissor point was left in his back thereafter accused Devi again assaulted his father on his head upon receiving injury his father fell down Jhagai also saw this incident thereafter he took his father to Police Station Lambhua and then admitted him to Lambhua hospital where he was given treatment. Since the first Information Report was not being lodged by the police at Lambhua station therefore a written report was given to the Superintendent of Police after 4-5 days (exhibit Ka.1).
12. PW.2 Bansilal, who is injured witness, has also supported the statement of PW1 Pappu@Umesh and has stated that at about 6.00, in the morning, while he was at his own house, he heard noise and came outside his house. The accused Chauthi (appellant no.2) exhorted to kill Pappu@Umesh (P.W.1), whereupon in order to save his son he ran towards him, upon this, the accused Chauthi caught him from behind and accused Devi Harijjan assaulted him with scissor on his back which broke inside his back and thereafter he was hit by scissor twice he fell after receiving the injuries. This incident was seen by Jhangai. He was medically examined at Lambhua where he was admitted for more than one month. X-ray was also conducted.
13. P.W.5 Dr. R.P. Singh, in his statement, has deposed that deep injuries are possible to have come from scissor, however, no opinion has been given by him regarding the nature of the injury whether they are simple or grievous. PW6 Dr. subodh Kumar has done x-ray of the injured and has stated that in the x-ray, shadow of two multiple objects of triangular shaped has been seen, however, there is no bone injury. He has also proved the x-ray report and prints.
14. Learned Counsel for the appellants has submitted that the injury was caused by appellant no.1-Devi Harijan and appellant no.2-Chauthi Harijan has only caught hold the injured. He though admitted the manner of the injury inflicted upon the injured except the fact that the appellant no.1-Devi Harijan has caused the injury with intention to kill but he has stated that appellant no. 2 and the appellant no.1 had no prior meeting of mind. He submitted that the dispute erupted due to sudden provocation by the son of the injured Bansilal and upon this provocation, appellant no.1 went inside the house, took the scissor only just to teach PW1-Pappu alias Umesh a lesson, however, in between, all of a sudden, the injured Bansilal came on the spot. As per the prosecution case, injured was caught hold from behind by appellant no.2 at the initial stage. When the verbal hot talk is going on between appellant. No.1 and P.W.1-Umesh alias Pappu, injured Bansi was not even on the picture. There was no occasion to have any prior meeting of mind regarding causing injury to Bansilal by appellant no.1. If he had not stepped in to save his son, he would not have been injured, therefore, it could not be said that the appellant no.2 who caught hold of Bansi had any prior meeting of mind with the appellant no.1 or appellant no.2 could have any chance of prior meeting of mind to cause injury to the injured Bansilal. This contingency could not have been forseen neither by the appellant no.1 nor by appellant no.2. Therefore common object to cause injury is missing.
15. Learned A.G.A. has opposed the appeal and has submitted that from perusal of the evidence of PW1-Pappu alias Umesh and PW2-Bansilal, the intention to commit the murder is clearly corroborated by the x-ray report, where two shadow of metallic triangular shaped objects have been found inside the body of injured Bansilal (P.W.2) and also corroborated by the statement of PW5-Dr.R.P. Singh.
16. On due consideration to the arguments advanced by the learned counsel for the appellant as well as learned AGA, particularly the submission of learned counsel for the appellants that he is not disputing the incident and the narration of facts as deposed by PW1-Pappu alias Umesh and PW2-Bansilal, except the fact that the injury has been inflicted with an intent to kill the injured P.W.2-Bansilal, I find force in submission of learned counsel for the appellant that there could not have been any intention to kill the injured PW2-Bansilal as the injured PW2-Bansilal was not even present while the verbal hot talk between the appellant no.1 and PW.1-Umesh alias Pappu was going on. PW2-Bansilal appeared at the place of occurrence to save PW1-Pappu alias Umesh. By that time, the appellant no.1-Devi Harijjan had already returned from home with scissor on the spot, therefore, it cannot be said that he brought the scissor to inflict any injury or to kill PW2-Bansilal rather the intent would have been to teach a lesson or cause grievous injuries to PW1-Pappu alias Umesh not PW2-Bansilal. Since, PW2-Bansilal steeped in to save PW1-Pappu alias Umesh, he was caught hold by the appellant no.2 from behind and on momentary provocation, three injuries were inflicted on the injured by the appellant no.1.
17. Needless to say that injuries inflicted on the persons of the injured Bansilal has been proved by PW1-Pappu alias Umesh and PW2-Bansilal by PW5-Dr. R.P. Singh, who has prepared the injury report and proved it by PW3-Dr. Subodh Kumar, who has prepared x-ray report and proved it. However, the intention to cause death of PW2-Bansilal has not been proved by the prosecution. As per own case of the prosecution, PW2-Bansilal was not even present at the place of occurrence. He came at the place of occurrence when appellant no.1 was already there with scissor and jumped into the fight to save his son. Therefore, it cannot be said that there was any intention of the appellants to commit murder of PW2-Bansilal.
18. From the perusal of the injury report and also the statements of PW5 -Dr. R.P. Singh and PW3-Dr. Subodh Kumar, it is not clear whether the injury is grievous. No opinion in this regard has been given by the PW5-Dr. Subodh Kumar, nor any attempt has been made by the prosecution to prove that the injury sustained by the injured P.W.2-Bansilal is grievous. Also, no record has been gathered by the prosecution from the hospital so as to ascertain as to how much time the PW2-Bansilal had spent in the hospital. Although PW2-Bansilal, in his statement, has stated that he remained admitted in Lambhua Hospital for about one month.
19. Looking to the injuries suffered by PW2-Bansilal and the statement of PW5-Dr. R.P. Singh, in which he has stated that bleeding in such wound stops after five to ten minutes, I find that the statement of PW2-Bansilal that he remained admitted more than one month, seems to be improbable.
20. Learned counsel for the appellants has relied upon the judgements of Hon'ble Supreme Court in Sarju Prasad vs. State of Bihar : AIR 1965 SC 843 and Hari Kishan and another vs Sukhbir Singh and others :1988 AIR 2127, wherein it has been held that in a case under Section 307 Indian Penal Code, the Court has to see whether the act irrespective of its result was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to commit murder. Without this ingredient being established there can be no offence of "attempt to murder". The intention is to be gathered from all circumstances and no merely from the consequences that ensue. The nature of weapon, motive of the crime, severity of the blow etc. are some of the relevant factors. The relevant part of Hari Kishan and another Vs. Sukhbir Singh and others (supra) is reproduced as under:-
"On the first question as to acquittal of the accused under s.3O7/149 IPC, some significant aspects may be borne in mind. Under s.307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge or the accused must be such as is necessary constitute' murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under s. 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used. motive for the crime,severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration it,determine the intention. In this case, two parties in the course of a fight inflicted on each other injuries both serious and minor. The accused though armed with ballam never used the sharp edge of it."
21. In the instant case, the motive of the crime is not such rather altercation took place between the accused and P.W.1-Pappu alias Umesh for such a pity matter regarding digging of some onion planted just outside the house of the injured P.W.2-Bansilal. Therefore, this motive cannot be said to have persuaded the appellants to commit murder of the injured P.W.2-Bansilal. Severity of the blow is also relevant as no evidence has been adduced by the prosecution to show that the injury received was grievous in nature. Most importantly, the intention of the appellant no.1 was to assault PW1-Pappu alias Umesh and PW2-Bansilal was not even in the picture at that time. When P.W.2-Bansilal heard the noise/alarm, he came outside the house and when he saw that his son was in danger, he jumped into the fight to save his son and thus received injuries. Thus, from the consequence of the event, which took place in the presence of PW2-Bansilal at the spot, appears to be all of sudden and, definitely, appellant no.1 did not went inside his house but he returned with the scissor to make an assault on PW2-Bansilal rather the intention was to hit PW1-Pappu alias Umesh, therefore, it cannot be said that the appellant had the intention to commit murder of injured P.W.2.
22. From careful evaluation of evidence adduced by the prosecution and the material on record, I find that the intention of the accused/appellant no.1 was only to inflict the injury and that too on PW1-Pappu alias Umesh and not on PW2-Bansilal, therefore, it cannot be said that there was any common intention to commit murder. The weapon i.e. the scissor has also been recovered. The size and the shape of the scissor is also not known. In these circumstances, considering the time of attack, the fight which erupted for a trivial issue all of a sudden, as well as the severity of the blow, it is apparent that the accused persons committed the offence punishable under Section 324 alone.
23. Hon'ble Supreme Court in Sarju Prasad Vs. State of Bihar (Supra) has held as under:-
"In this state of the evidence we must hold that the prosecution has not established that the offence committed by the appellant falls squarely under Section 307, I. P. C. In our opinion, it amounts only to an offence under Section 324, I. P. C".
24. Thus, in order to attract punishable offence under Section 307 Indian Penal Code, the prosecution is required to prove the intention or knowledge to commit the murder and the actual act of trying to commit murder. The words "such intention" as described under Section 307 Indian Penal Code refers to the meaning "intention" referred under Section 300 Indian penal Code. Thus, intention to cause death, intention to cause such bodily injury which the offender knows it as likely to cause death. The intention to cause such bodily injury, which is sufficient in order to cross the ordinary course of nature to cause death. Therefore, the intention to cause death is essential element to attract the offence of attempt to murder.
25. In the case of Ramesh Vs. State of U. P. : AIR 1992 SC Page 664, where a single injury was found on the back of the injured, the appeal of accused-appellants who was tried along with two others was convicted u/s 307/34 IPC and sentenced to undergo rigorous imprisonment for four years, while the two others were acquitted, was partly allowed by the Apex Court. His conviction was altered into section 324 IPC and the sentence was reduced to the period already undergone with fine of Rs. 3000/-, which was to be paid to the complainant as compensation.
26. In the case of Merambhai Punjabhai Khachar and others Vs. State of Gujarat : AIR 1996 SC Page 3236, there was an attempt to commit murder by fire arm and a pellet hit the victim, however, the Apex Court held that Section 307 IPC cannot be held to have been satisfied and the conviction was altered to Section 324 IPC.
27. In the instant case, as regards the injuries are concerned, there is no evidence on record to show that these injuries could have been fatal for life of the injured or that the injuries were caused by the appellants with intention to kill the injured. Thus, it clearly shows that there was no intention of the accused appellants to kill the injured. Thus, I am of the view that conviction of the appellants under Section 307 read with Section 34 IPC cannot be sustained. But, in fact, the appellants are liable to be convicted for the offence punishable under Section 324 IPC.
28. At this juncture, learned Counsel for the appellants has contended that the appellant no.1-Devi alias Harijan died and his instant appeal has been abated, however, appellant no.2-Chauthi Harijjan is alive and is aged about 70 years presently, whereas the injured P.W.2-Bansilal is also alive and is aged about 75 years of age presently. He prays that appellant no.2-Chauthi Harijan has not committed any crime prior to the said incident and, therefore, he is ''first offender', hence the benefit of Section 4 of the Probation of Offenders Act may be given to the appellant no.2.
29. Learned AGA, on the other hand, does not dispute the fact that the appellant no.2 is the first offender but he vehemently submitted that if the benefit of Section 4 of the Probation of Offenders Act be given to the appellant no.2, some restrictions may be provided so that appellant no.2 may not repeat such a crime in future.
30. As to whether the appellant no.2 is entitled to get the benefit of Section 4 of the Probation of Offenders Act or not, I deem it appropriate to reproduce Section 4 of the Probation of Offenders Act, which reads as under :-
"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 behaviour:
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."
31. It is relevant to mention here that Section 360 Cr.P.C. also confers the powers on the Court to release the accused on probation for good conduct or after admonition.
32. For the reasons aforesaid, the appeal filed by the appellant no.2-Chauthi Harijan is partly allowed.
The conviction of appellant no. 2, namely, Chauthi Harijan under Section 307 read with Section 34 IPC and sentence awarded to him is set aside. However, appellant no.2 is found guilty for the offence punishable under Section 324 read with Section 34 IPC and is convicted thereunder.
He shall get benefit of Section 4 of Probation of Offenders Act.
He shall file two bonds to the tune of Rs.20,000/- each coupled with personal bonds to the effect that he shall not commit any offence and shall be of good behaviour and shall maintain peace during the period of one year. If he is in breach of any of the conditions, he shall subject himself to undergo one year rigorous imprisonment. The bonds aforesaid shall be filed by the accused/appellant no.2 within two months from the date of judgement. The time for submitting the bail bonds shall not be extended on any ground whatsoever.
33. Let a copy of this judgment along with original lower Court record be sent to the Court concerned for compliance forthwith.
Order Dated: 20.7.2021 Madhu