Allahabad High Court
Prabhu vs State on 10 August, 2018
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on : 02.08.2018 Delivered on : 10.08.2018 Court No.50 Case :- CRIMINAL APPEAL No. - 2431 of 1986 Appellant :- Prabhu Respondent :- State Counsel for Appellant :- A.K. Singh,Anil Kumar Singh,Ravindra Kumar Mishra Counsel for Respondent :- A.G.A. Hon'ble Harsh Kumar,J.
1. This appeal has been filed against the judgement and order dated 23.8.1986 passed by Vth Additional Sessions Judge, Azamgarh in Sessions Trial No.15 of 1984 convicting the appellant for the offences under Section 304 (I) and Section 323 I.P.C. and sentencing with rigorous imprisonment for five years under Section 304 (I) and rigorous imprisonment for a period of three months under Section 323 I.P.C.
2. Heard Sri Ravindra Kumar Mishra, learned counsel for the appellant and Sri L.D. Rajbhar, learned AGA for the State.
3. The brief facts relating to the appeal are that on 11.04.1981 at 6:20 P.M. a FIR was lodged by Vijayi son of Raja Mallah stating that at 4:00 P.M, he was processing his crop a fruit of BAIL (Sriphal) fell on the heep of his wheat which was taken by him and he started eating it, then Ramawati and Tarva respectively sister and wife of Prabhu, started abusing the first informant in the meantime and Prabhu appeared there with lathi and started abusing; that the parents of first informant were at their door and asked Prabhu and members of his family to desist from abusing and Ram Surat, Loutu and Pakhandi who had arrived also asked them, not to abuse; that Prabhu beaten his father & mother with lath. And his father who sustained injury in the eye with oozing of blood and his mother also sustained lathi injuries and the condition of his father is very serious.
4. On this report, the case was registered against the appellant Prabhu under Section 308 IPC and since the injured Raja Mallah died due to injuries sustained in the incident, the case was converted under Section 304 IPC. The Investigation Officer after preparing the inquest report and collecting the injury report of Srimati Kisundei, the mother of first informant and Post Mortem Report of Raja Mallah, the father of first informant and collecting the evidence submitted charge-sheet against the accused-appellant under Sections 308/304 IPC and case was committed to Sessions. The Additional Sessions Judge framed charges against accused-appellant for offences under Section 323 IPC for causing simple injuries to Kinsundei and under Section 304 IPC for committing death of Raja Mallah by causing lathi injuries. The accused-appellant denied the charges and demanded trial.
5. The prosecution in order to prove the charges against appellant has produced Vijayi, the first informant as PW-1, Srimati Kisundei, the injured witness and mother of first informant as PW-2, S.I. Pitambar Shukla as PW-3, Ganesh Kumar as PW-4, Constable Jagat Narayan Mishra as PW-5, Dr. G.S. Chaturvedi, the Autopsy Surgeon as PW-6 and Dr. P. Sarangi as PW-7. After completion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. and accused produced Pharmacist Lallan Rai as DW-1 to produce and prove his injury report as well as injury report of his sister Ramawati as exihibit B-1 and B-2.
6. Learned counsel for the appellant contends that he has been falsely implicated for causing lathi injuries to Raja Mallah and his wife resulting in death of Raja Mallah; that the real fact is that on the day of incident Raj Dev and first informant were digging their Haudi and thus damaging his property and when he with his sister Ramawati asked them to desist, they beaten both of them with the lathis and in order to save their lives his family members Ramawati etc. pelted stones by which Raja Mallah sustained injuries; that the medical examination of appellant and his sister was done in District Hospital and their report was not lodged; that there are material contradictions in the prosecution evidence and the prosecution has failed to explain the injuries of accused and his sister and has failed to produce eye-witnesses of the incident; that the appellant had no motive to commit murder of Raja Mallah and the offence of appellant, if at all, does not travel beyond the ambit of offence under Section 325 IPC; that the appellant was a young boy of 25 years old at that time of his statement under Section 313 Cr.P.C. on 06.05.1986 and he has become around 57 years old at present; that the impugned judgment and order of conviction and sentence convicting the appellant under Sections 304 (I) and 323 IPC are liable to be set aside and appellant is liable to be acquitted.
7. Per contra, learned AGA supported the impugned judgment and order of conviction and contended that it is proved from the evidence on record that the appellant caused fatal injuries to Raja Mallah and simple injuries to his wife and due to grievous injury caused to Raja Mallah on vital part of his body, he succumbed to the injury caused by appellant; that the appellant ought to have been convicted under Section 302 IPC punishable with life imprisonment or death and even in case of conviction under Section 304 (I) he ought to have been sentenced with at least ten years rigorous imprisonment; tha the trial court has taken very lenient view and has awarded very less and inadequate sentence; that it is absolutely wrong to say that the first informant and his associates was damaging the property of accused-appellant and upon being stopped by appellant and his sister Ramawati, they committed Maar-Peet with them with lathi and the sister of appellant Ramawati or his family members pelted stones which hit Raja Mallah on his eye resulting in his death; that the injury report of the accused-appellant Prabhu Nath and his sister Ramawati exhibit B-2 and B-1 on lower court record shows only simple and superficial injuries on their persons, which were got examined at District Hospital Azamgarh on 14.04.2018 with an inordinate delay of three days; that in both injury reports, the nature of injuries has been mentioned as simple and the duration about three days; that the alleged injuries of appellant and his sister are self inflicted and have been inflicted subsequently and has no nexus with the incident in question; that no apprehension of life ever arisen to the accused-appellant and no right of private defence could have accrued to him; that the prosecution is not required to explain the simple injuries of accused persons and non explanation of such simple injuries of accused persons does not adversely affect the prosecution case; that the appeal has been filed with absolutely false and incorrect allegations and is liable to be dismissed.
8. Upon hearing the parties counsel and perusal of record, I find that the learned trial court has discussed the prosecution evidence in detail. It is proved from the evidence on record that the dispute arose with regard to the fruit of BAIL (Sriphal) which itself dropped from the tree and was taken out by first informant who started eating it. Undisputedly, there was an ownership dispute over the fruit of BAIL (Sriphal) tree between the appellant and the family of deceased as it was under their joint ownership. It is proved from the evidence on record that when first informant started consuming the BAIL (Sriphal), he was abused by wife and sister of appellant and in the meanwhile appellant joined them with lathi and upon being stopped to abuse by the parents of first informant, he caused lathi injuries to both of them and due to grievous injury on vital part of body, the father of first informant succumbed due to above injuries.
9. The Medical Officer PW-6 Dr. G.S. Chaturvedi, the Autopsy Surgeon, has proved the Post Mortem Report of Raja Mallah exhibit A-14 and has stated that death of 54 years Raja Mallah was due to cyncohe as a result of following anti mortem death injuries:-
1. Lacerated wound 3 cm. X 1 cm skull bone deep, oblique outsider of upper part of nose, left side and near end of left (upper and lower lid adjacent to nose). On exploring the wound the eye ball, left inner contused and abraided medial mucle lacerated, the medial end of orbital fossa fractured. There is communication between frontal lobe of brain and outside through fractured orbital fossa through which brain matter and blood dark clotted flows when body is shaked.
2. Abrasion 2 cm. X 2cm. on front of right elbow
3. Abrasion 1cm. X 1 cm. in front side of chest Abrasion 1.5 cm X .5 cm. on left foot
10. The PW-7, Dr. P. Sarangi, Medical Officer has stated that he examined Srimati Kisundei at 7:00 A.M. on 12.04.1981 and found following injuries on her person -
1. contusion 8 cm. X 2 cm. on right side of scapula, below the upper angle of right scapula, red in colour -
2. complaint of pain on the right side of upper arm with no external injury visible -
3. complaint of pain on right upper arm with no external injury visible, and has opined that injuries were simple in nature.
11. The evidence on record shows that PW-1, the first informant and PW-2, Kisundei, the injured witnesses have been examined by the prosecution and both of them are eye-witnesses of the incident. The PW-1 is the son of deceased upon taking of BAIL (Sriphal) by whom, the dispute arose and Kisundei, is wife of deceased who sustained injuries in the incident and is the injured eye-witness of the incident. The prosecution has not produced any independent witness of the incident but it is noteworthy that the eye-witnesses mentioned in FIR Ram Surat, Loutu and Pakhandi have not been produced on the pretext that they have been won over by the accused persons as has been stated by PW-1 and so for non-production of above witnesses, no adverse inference can be drawn against the prosecution.
12. It is pertinent to mention that PW-2 is an injured witness and there is consistency in the statement of first informant who has corroborated the prosecution case as well as his injured mother PW-2 and in absence of any material contradiction, there is no reason to disbelieve the injured witness as she is not supposed to spare the real culprits and falsely implicate the appellant, particularly when there was no enmity.
13. The occurrence of incident in question is not disputed by the appellant rather he has stated in statement under Section 313 Cr.P.C. that it had taken place at the time when the first informant and his associates were causing damage of his property. There is nothing on record to indicate that the incident did not take place in the manner mentioned in the FIR or it did take place in the manner alleged by the accused-appellant. It is noteworthy that alleged injuries of appellant and is his sister Ramawati, are simple in nature. Their injury reports exhibit B-1, B-2 states that the injuries were 3 days old and were simple in nature. As per injury report Exhibit B-1 Smt. Ramawati sustained following three injuries:
(1) abrasion with scab 5 cm. X 2 cm. on back of left forearm 3 cm above left wrist joint, and (2) traumatic swelling 3 cm. X 2 cm. on back of left palm below left wrist joint, (3) complaint of pain on right side of lower back, no mark of injury seen.
14. According to the Exhibit B-2, the injury report of Prabhu Nath appellant dated 14.04.1981, the 19 years old appellant sustained following four injuries:
(1) abraded swelling with scab 1.5 X 0.5 cm. on right side of forehead 5 cm. above right eyebrow, scab hard (2) contusion 4 cm. X 1.5 cm. on right upper arm outer aspect 4 cm. Below right shoulder joint (3) scab present on the outer aspect of right leg 0.5 cm. X 0.5 cm., 8 cm. above right melleolus, (4) complaint of pain right lower side back, no mark of injury seen.
Above injuries were also opined to be simple and three days old.
15. From the above injury reports, it is clear that the none of the injuries of accused-appellant or his sister was grievous in nature or on vital part of their body, on account of which any apprehension of life could have arisen in their minds giving rise to right of private defence to them. The suggestion that pelting of stones by Ramawati, & other ladies resulted in injuries to deceased and Kisundei has been specifically denied by PW-1 and PW-2. It is also noteworthy that the deceased has sustained four injuries and his wife Kisundei has sustained three injuries and all the above seven injuries to two injured persons have been opined by PW-6, the Autopsy Surgeon as well as Medical Officer the PW-7, to have been sustained by lathi and all the seven injuries may not be sustained as a result of alleged pelting.
16. It is settled principle of law that the prosecution is not obliged to explain the simple injuries on the person of accused.
17. In 1998 (37) ACC in the case of Ram Sundar Yadav Vs. State of Bihar, the three Judges Bench of Apex Court held that -
"Injuries sustained by accused in same incident in which the deceased died - Prosecution not invariably bound to explain the injuries on accused - Prosecution case if otherwise trustworthy and acceptable would not be affected by its failure to explain injuries on accused"
"Plea of exercise of right to private defence - burden on accused. Mere sustaining of injuries by accused in the same occurrence in which the deceased died not by itself conclusive prove of deceased being aggressive"
18. In the case of Kiledar Sing Vs. State of Madhya Pradesh (2003) ACC 219, the Apex Court held that:
"Prosecution not required to explain injuries on person of accused party though all injuries were simple"
19. And in the case of Dashrath Vs. State of Chhatisgarh, AIR 18 Supreme Court 1133, the Apex Court held that:
"Non explanation of simple injuries of accused persons is not fatal to prosecution case"
20. I find that the burden to prove existence of apprehension of life giving rise to right of private defence to accused, lies on accused who has failed to prove the same by any iota of evidence. Even the contention that Ramawati or other ladies of his family pelted stones is not established by any evidence and neither Smt. Ramawati nor any other witness was produced who assert the same on oath. Moreover, in absence of any nexus between the alleged simple and superficial injuries of accused and his sister, neither the prosecution case may be adversely affected for non-explanation of alleged simple injuries nor appellant may be held justified for causing injuries to deceased in exercise of alleged non-existent right of private defence.
21. Upon careful consideration of evidence on record as well as the statements of first informant and injured witness Kusindei as well as the defence version. The learned trial Court has considered all the arguments advanced on behalf of the accused appellant and has committed no mistake in relaying on the prosecution evidence and holding the appellant guilty for the offence under Section 304-I and Section 323 IPC.
22. According to the injury report of accused-appellant exhibit B-2 on record, he was 19 years old at the time of his medical examination on 14.04.1981 and at present he is a person around 56 years of age.
23. Learned counsel for the appellant has also submitted that since the appellant has become an old person, so sentence imposed on him may be reduced.
24. The offence under Section 304-I IPC is punishable with imprisonment for life or imprisonment of either description which may extend to ten years and shall also be liable to fine. Considering the fact that there was no enmity between the parties and the appellant is not alleged to have caused fatal injury to Raja Mallah in pre-planned manner rather the incident in question did take place over a petty dispute of the fruit of BAIL (Sriphal) dropped from the tree in joint ownership of appellant and deceased and having been consumed by the first informant. The appellant is not alleged to have any intention to cause any fatal injury to the deceased but since the injury caused by him was on vital part however it was so grievous that it resulted in his death. The trial court has already taken a very lenient view and sentenced appellant with imprisonment for a period of five years only. I find that since the appellant had no intention to cause death of Raja Mallah his conviction under Section 304 (I) IPC is erroneous and he is guilty of offence under Section 304 (II) IPC. Considering the fact that the petty dispute between the parties giving rise to the incident in question had taken place about 37 years ago, by modifying the conviction from Section 304 (I) to 304 (II) IPC, the sentence of appellant may be further reduced by reducing the period of rigorous imprisonment to a period of only three years and imposing some fine.
25. In view of the discussions made above, I have come to the conclusion that the trial Court has not committed any mistake in holding the appellant guilty for causing death of Raja Mallah and causing injuries to Smt. Kisundei, acted wrongly in convicting appellant under Section 304 (I) IPC instead of 304 (II) IPC. The conviction of appellant under Section 323 IPC is liable to be upheld and conviction under Section 304 (I) IPC is liable to be modified and converted to Section 304 (II) IPC. The appeal is accordingly liable to be partly allowed.
26. The appeal is partly allowed, the impugned judgment and order of conviction convicting the accused-appellant Prabhu @ Prabhu Nath for the offence under Section 304 Part I IPC and sentence there under is set aside and conviction under Section 323 IPC is upheld. He is held guilty and convicted for the offence under Section 304 (II) IPC apart from under Section 323 IPC. The impugned sentence passed by trial court is set aside and he is sentenced with rigorous imprisonment for a period of three years with fine of Rs. 10,000 /- and in case of default in payment of fine with simple imprisonment for an additional period of six months under Section 304-II IPC and the sentence of rigorous imprisonment for a period of three months under Section 323 IPC is upheld. Both the sentences will run concurrently and the period already undergone will be adjusted in accordance with rules.
27. The appellant is on bail. His bail bonds are cancelled and sureties are discharged. He is directed to surrender forthwith to undergo the remaining period of sentence.
28. Office is directed to send the lower Court record back to Court below along with a copy of judgment for ascertaining necessary compliance, if any, by the trial Court.
Order Date :- 10.08.2018 Kamar