Allahabad High Court
Om Prakash And Others vs State on 4 August, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:157327-DB Reserved on 05.06.2023 Delivered on 04.08.2023 Court No. - 78 Case :- CRIMINAL APPEAL No. - 2371 of 1982 Appellant :- Om Prakash And Others Respondent :- State Counsel for Appellant :- S.P.Kumar,Pulak Ganguly Counsel for Respondent :- A.G.A. Hon'ble Raj Beer Singh,J.
Hon'ble Surendra Singh-I,J.
(Per:Hon'ble Raj Beer Singh,J.)
1. This criminal appeal has been preferred against judgement and order dated 20.09.1982, passed by the Additional Sessions Judge-V, Bareilly in S.T. No. 353 of 1980, under Sections 302, 147, 148, 323/149 IPC, police station Shahi, district Bareilly, whereby, accused-appellant Nos. 1 to 3, namely, Om Prakash, Ram Chandra and Bholey have been convicted under Sections 147, 323/149 IPC and sentenced to three months rigours imprisonment under Section 147 IPC and three months rigorous imprisonment under Section 323/149 IPC. Accused-appellant no. 4 Summeri has been convicted under Section 302, 148, 323/149 IPC and sentenced to imprisonment for life under Section 302 IPC, six months rigorous imprisonment under Section 148 IPC and two months rigorous imprisonment under Section 323/149 IPC.
2. We have heard learned counsel for the accused-appellants and learned AGA for the State.
3. During pendency of this appeal, the accused-appellant No. 4 Summeri has passed away and in respect of appellant No. 4 Summeri, the appeal has already been abated vide order dated 05.06.2023. Now this appeal is confined only in respect of accused-appellant nos. 1 to 3, namely, Om Prakash, Ram Chandra and Bholey.
4. According to prosecution version, on 30.05.1980 the accused-appellant No. 1 Om Prakash was grazing his cattle in the sugar-cane field of informant. The brother of informant asked appellant No. 1 to take away his cattle from his land and on that issue some hot talking has taken place between them. In back ground of that issue, on the same day at 06:00 PM, accused-appellant Bholey, Om Prakash, Ram Chandra, Makhan Lal(since dead), armed with sticks, and accused Summeri (since died) armed with licenced gun, surrounded informant's brother Dharamveer Singh and started assaulting him. Hearing noise, some other persons including informant' brother Surajpal Singh also reached there. Accused-appellant No. 4 Summeri fired a bullet at Surajpal Singh and as a result thereof, Surajpal Singh sustained gunshot injuries and fell down and succumbed to injuries at the spot. Informant and his companion have also caused injuires to the accused persons in their defence. After incident, the accused persons ran away from the spot. In the same incident, one Dhakan Singh, Dharamveer Singh and Nanhu Singh have also sustained injuries.
5. Informant reported the matter to police by submitting tahreer exhibit ka-1 and consequently the first information report was registered on 30.05.1980 at 11:30 PM vide Exhibit Ka-6. Inquest report exhibit ka-9 was prepared and dead body of deceased was sent for postmortem. Injured were medically examined. The postmortem of deceased was conducted on 31.05.1980 vide exhibit ka-5. Statements of witnesses were recorded. After completion of investigation, police submitted charge-sheet against five accused persons including accused-appellants under Section 302 IPC. The court of Magistrate took cognizance and committed the case to court of session.
6. The trial court framed charges under Sections 148, 302, 323 read with 149 IPC against accused Summeri. Remaining four accused namely Makhan Lal, Ram Chandar were charged under Sections 147, 302, 323/149 IPC. Subsequently, a simplicitor charge under Section 302 IPC was framed against accused Summeri. All the accused persons pleaded not guilty and claimed trial.
7. In order to prove its case, the prosecution has examined four witnesses. PW-2 Chandra Pal Singh is informant of the case and PW-1 Khayali Ram and PW-3 Dhakan Singh are eye witness. PW-4 S.S. Tomar, Station House Officer has conducted investigation. It appears that one Dr. O.N. Srivastava was examined as court witness. After evidence, accused-appellants were examined under Section 313 Cr.P.C., wherein, they have denied prosecution evidence and claimed that they were falsely implicated. However, no defence evidence was adduced by the accused persons.
8. After hearing and analysing evidence on record, the accused-appellants were convicted by the trial court and sentenced as stated in paragraph No. 2 of this judgment. Being aggrieved of the same, accused-appellants have preferred the present appeal. Co-accused Makhan Lal has passed away during trial and co-accused Summeri passed away during pendency of this appeal.
9. It has been argued by learned counsel for the accused-appellants that the Trial court has not appreciated evidence in correct perspective and there is no credible evidence against the appellants. Referring to evidence, it was submitted that there are material contradictions and inconsistencies in the statements of alleged eye-witnesses and their evidence is not reliable.
10. Main stress was laid by the learned counsel on the point of sentence and it was submitted that the co-accused Summeri, who was convicted under section 302 IPC, has already died and that the accused-appellants were convicted under section 147 and 323/149 IPC and thus, their sentence may be reduced to the period already undergone by them. It was pointed out that after incident, the accused-appellants have surrendered before the court on 06.06.1980 and they were granted bail on 17.06.1980 by the court of Sessions Judge and they have submitted their bail bonds on 18.06.1980 and thus, they have remained in custody about 12 days. It was submitted that alleged incident took place on 30.05.1980 and this appeal is pending since the year 1982. Now, appellant No. 1 Om Prakash is aged about 62 years, appellant no. 2 Ram Chandra is aged about 68 years and appellant No. 3 Bholey is aged about 70 years. During trial, the appellants had remained in judicial custody for 12 days. In view of these facts, no useful purpose would be served by sending appellants to jail at this stage.
11. Learned AGA has opposed the appeal and argued that there is no illegality or perversity in the impugned judgment. The conviction of accused-appellants is based on evidence and thus, no interference is called.
12. We have considered the rival submissions and perused the record.
13. As the appellant nos. 1 to 3, namely, Om Prakash, Ram Chandra and Bholey have been convicted under Sections 147, 323/149 IPC, thus, the details of inquest proceedings and postmortem of deceased are not mentioned in this judgement. The prosecution case in respect of these appellants is that they have caused injuries to Dharamveer Singh, Dhakan Singh and Nanhu.
14. Injured Dharamveer Singh was medically examined vide exhibit ka-2. He has sustained following injury:-
i. One abraded contusion 8 cm x 2 cm on left side back of chest.
Injured Dhakan Singh was medically examined vide exhibit ka-3 and he has sustained following injuries:-
i. Lacerated wound 2 cm x 2 cm x scalp deep on left side of head 6.5 cm above left ear. ii. Abrasion 1.5 cm x 1 cm on top of head.
iii. Contusion 3 cm x 1 cm on upper arm 6 cm below elbow joint. Injured Nanhu Singh was medically examined vide exhibit ka-4 and he has sustained following injury:- i. Contusion on lateral 1/3 of back of left in size 5 cm x 3 cm.
15. In the first information report, it was alleged that on 30.05.1980 a quarrel has taken place between accused-appellant No. 1 Om Prakash and brother of informant, namely, Lalla Singh over the issue of grazing cattle in the sugar-cane field of informant. Thereafter, on the same day at 06:00 PM, accused Bholey, Om Prakash, Ram Chandra and one Makhan, armed with sticks, and accused Summeri (since died) armed with licenced gun, surrounded informant's brother Dharamveer Singh and started assaulting him and hearing noise some other persons, including Surajpal Singh, came there and tried to intervene and at the same time accused-appellant No. 4 Summeri fired a bullet at Surajpal Singh and resultantly he sustained firearm injuries and died. In the same incident, said Dhakan Singh, Dharamveer Singh and Nanhu Singh also sustained injuries.
16. In evidence, PW-1 Khayali Ram has stated that on the day of incident at about 06:00 PM all the accused-appellants having sticks and co-accused Summeri having gun have assaulted Dharamveer Singh and Nanhu and while Dhakan Singh and others tried to intervene, they were also assaulted by them. Hearing noise, Chandrapal and Surajpal also came there but co-accused Summeri fired a bullet at Surajpal, who sustained gunshot injury and died. PW-2 Chandra Pal Singh has also made a similar statement and stated that co-accused Summeri has fired a bullet at his brother Surajpal, who sustained gunshot injury and died. PW-3 Dhakan Singh is an injured witness. He has stated that on the day of incident at about 05:30 PM, accused-appellants namely, Om Prakash, Ram Chandra, Bholey alongwith Makhan, having sticks, were assaulting Dharamveer and Nanhu and accused Summeri was having gun. When PW-3 Dhakan tried to intervene, he was also assaulted by accused persons. At the same time, Chandrapal and Surajpal came there and co-accused Summeri has fired a bullet at Surajpal, who sustained gunshot injury and fell down and later on died.
17. It may thus be seen that the role of causing death of deceased by firing bullet at deceased Surajpal Singh has been attributed to accused-appellant No. 4 Summeri, who was convicted of offence under Section 302 IPC. As stated above, accused-appellant Summeri has already passed away and his appeal already stand abated.
18. PW 3 Dhakan Singh, who was injured in the incident, has made clear and cogent statement that all the appellants-accused have assaulted him and they have also caused injuries to Dharamveer Singh and Nanhu Singh. No material contradiction or infirmity could be shown in his testimony. His version is supported by PW-1 Khayali Ram and PW-2 Chandan Pal Singh. The version of PW-3 Dhakan Singh is also supported by his medical evidence. Merely because other two injured persons did not come in to witness box, it would not render the testimony of PW-3 Dhakan Singh unreliable.
19. Regarding testimony of injured witness, in case of Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694], the Hon'ble Apex Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2021], a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing could be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214]). In fact testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. It is fairly well settled that evidence of an injured witness must be given due weightage as being an injured witness, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. The injured witness would not like to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259]. 22.
20. In the instant case, it is apparent that testimony of the injured witness PW 3 Dhakan Singh is cogent and credible and it is further supported by PW-1 Khayali Ram and PW-2 Chandra Pal Singh. He has been subjected to cross-examination but he remained firm and nothing adverse could come out. As stated earlier, version of the injured witness is also supported by medical evidence. Scrutiny of evidence shows that the statements of PW-1, PW-2 and PW-3 are quite clear and cogent. No such fact could emerge in their cross-examination so as to create any doubt about the credibility of these witnesses. Learned trial court has discussed entire evidence and convicted the accused-appellants under the aforesaid sections. After considering entire evidence on record, it is apparent that conviction of accused-appellant Nos. 1 to 3 under Sections 147, 323/149 IPC is based on evidence and calls for no interference.
21. So far as question of sentence is concerned, it may be noticed that the alleged incident took place on 30.05.1980 and since then a period of 43 years has passed. This appeal is pending since the year 1982. The accused-appellants have no criminal antecedents and that have remained in custody for about 12 days during trial. The appellant No.4 Summeri, who was convicted under Section 302 IPC, has already passed away. Accused-appellant Nos. 1 to 3, namely, Om Prakash, Ram Chandra and Bholey have been convicted under Sections 147, 323/149 IPC and they were sentenced to three months rigorous imprisonment under Section 147 IPC and three months rigorous imprisonment under Section 323/149 IPC. It is well settled principle that sentence must be just and simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive.
22. It has been observed by the Hon'ble Apex Court that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which have been indicated hereinbefore and also have been stated in a number of pronouncements by Apex Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. A court, while imposing sentence, has to keep in view the various complex matters in mind. In respect of certain offences, sentence can be reduced by giving adequate special reasons but the special reasons have to rest on real special circumstances. (vide Raj Bala vs. State of Haryana & Ors, 2016 (1) SCC 463).
23. In the instant case, as stated above the alleged incident took place about 43 years ago and accused-appellants are not previous convict and they alone cannot be held responsible for long delay in disposal of this appeal. It was stated that they remained in custody for 12 days during trial. Considering all aspects of the matter, no useful purpose would be served by sending accused-appellants to jail at this stage, rather it appears that ends of justice would met if sentence of three months rigorous imprisonment under Section 147 IPC and three months rigorous imprisonment under Section 323/149 IPC, awarded by the trial court, is reduced to the period already undergone by them and the sentence of fine may be enhanced.
24. Accordingly, conviction of accused-appellant Nos. 1 to 3, namely, Om Prakash, Ram Chandra and Bholey under section 147, 323/149 IPC is upheld, but sentence of three months rigorous imprisonment under Section 147 IPC and three months rigorous imprisonment under Section 323/149 IPC, awarded by the trial court, is set aside and accused-appellant Nos. 1 to 3 are sentenced to the period already undergone by them, along with fine of Rs. 5,000/- under Section 147 IPC and fine of Rs. 1,000/- under Section 323/149 IPC. Accused-appellant Nos. 1 to 3 are directed to deposit the amount fine within forty five days from today. In default of payment of fine of Rs. 5,000/- under Section 147 IPC, they shall undergone three months imprisonment and in default of payment of fine of Rs. 1,000/- under Section 323/149 IPC, they shall undergo one month's imprisonment.
25. The appeal is party allowed in above terms.
26. A copy of this order be transmitted to the court concerned.
Dated: 04.08.2023
Anand
(Surendra Singh-I) (Raj Beer Singh, J)