Allahabad High Court
Ram Khilari vs State Of U.P. on 19 October, 2020
Equivalent citations: AIRONLINE 2020 ALL 2121
Author: Subhash Chand
Bench: Subhash Chand
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on : 06.10.2020 Judgment Delivered on : 19.10.2020 Court No. - 38 Case :- CRIMINAL APPEAL No. - 2867 of 2012 Appellant :- Ram Khilari Respondent :- State of U.P. Counsel for Appellant :- Akhilesh Srivastava,Noor Mohammad,Ray Sahab Yadav,Sushil Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Arvind Kumar Mishra-I,J.
Hon'ble Subhash Chand,J.
[Per Arvind Kumar Mishra-I,J.]
1. Heard Sri Noor Mohammad, learned counsel for the appellant, learned A.G.A. for the State and perused the material brought on record.
2. The instant criminal appeal has been preferred by the appellant - Ram Khilari son of Phulwari Yadav, resident of Village - Deenapur, Police Station - Palimukeempur, District - Aligarh, against the judgment and order dated 09.07.2012 passed by Additional Sessions Judge, Court No. 6, Aligarh, in Session Trial No.450 of 2006, arising out of Case Crime No.126 of 2004 (State vs. Ram Khilari and another), under Sections - 307, 504, 506 I.P.C. and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "S.C./S.T. Act"), Aligarh, whereby the appellant has been convicted with the sentence of ten years rigorous imprisonment under Section - 307/34 I.P.C. coupled with fine Rs. 10,000/- with default clause to suffer additional rigorous imprisonment for one year. Similarly, one year rigorous imprisonment has been imposed under Section 504 I.P.C., coupled with fine Rs. 500/- with default clause for three months additional rigorous imprisonment, two years rigorous imprisonment under Section - 506 I.P.C., coupled with fine Rs.5,000/- with default clause to suffer six months additional rigorous imprisonment and life imprisonment under Section 3(2)(v) S.C./S.T. Act, coupled with fine Rs. 20,000/- with default clause to suffer two years additional rigorous imprisonment. All the sentences were directed to run concurrently.
3. Necessary and relevant facts, as gathered from the record, which led to the conviction of the appellant, appear to be that an F.I.R. was lodged by one Hardwari son of Kewal Singh Jatav on 12.11.2004 at Police Station - Palimukeempur at Case Crime No. 126 of 2004, under Sections - 307, 504, 506 I.P.C. and Section 3(2)(v) S.C./S.T. Act, with the allegations that the informant along with his nephew Satyaveer son of Ajuddi Prasad, were celebrating the festival of Deepawali at their home, when Ram Khilari son of Phulwari Yadav and Maloda son of Om Prakash Yadav, arrived at the house of the informant in drunken position at around 05:00 p.m. Both the persons were possessing country-made guns in their hands. They started abusing and demanded Rs. 100/- from the informant. On refusal to meet the demand, scuffle started on the spot and in the meanwhile, Ram Khilari with the intention to kill, fired upon the nephew of the informant, which fire hit the left temple and passed through and through. The incident was witnessed by the villagers Tara Chand and Charan Singh. Both the accused made their escape good from the spot, threatening of dire consequences in case any report is lodged to the ambit that their lives will not be spared. Request was made for lodging the report and taking action. Report is dated 12.11.2004, and the same is Ext. Ka.1.
4. On the basis of the contents of the written report, Check F.I.R. was prepared under the aforesaid sections of I.P.C. at aforesaid case crime number at police station - Palimukeempur, at aforesaid date and time. The Check F.I.R. is Ext.Ka-5 and the relevant General Diary entry at report no.29 at 6:20 p.m. on 12.11.2004, whereby the case was registered at the police station under the aforesaid sections of I.P.C. and the S.C./S.T. Act, respectively, is Ext.Ka-6.
5. The investigation was entrusted to P.W.-7, R.C. Gupta, Deputy Superintendent of Police, who took cognizance of the Check F.I.R. and the written report, G.D. Entry etc. and recorded statement of the police witnesses, and also recorded the contents of the F.I.R. in the Check F.I.R. Later on, he inspected the spot on 14.11.2004, recorded statement of the persons present over there. The spot map was prepared by him, which is Ext. Ka-7. The Investigating Officer also prepared memo of blood-stained earth from the spot, which is Ext. Ka-8.
6. The record further reflects that the medical examination of the injured Satyaveer was conducted by Dr. Jamal Ajmat P.W.-3, who examined him on 12.11.2004 at 8:30 p.m. at J.N. Medical College, Hospital, Aligarh Muslim University Aligarh and found the following two injuries viz. lacerated entry wound in the measurement of 3 x 3 c.m. on the upper portion of left cheek, and the second wound was described as lacerated exit wound behind the back of the head left side below the ear. This report has been proved as Ext. Ka-2 by this witness (P.W.3). It was stated that the nature of the injuries was serious and can be caused by gunshot. P.W.4 is C.O. Mansha Ram Gautam, who took over investigation on 28.01.2005 from the first Investigating Officer and he also recorded statement of the accused Ram Khilari on 18.02.2005. P.W. 5, V.S. Mishra is the third Investigating Officer of this case. He also carried out the left over investigation on 29.03.2005. He, after recording the statement of several persons filed, charge-sheet against Ram Khilari, which is Ext. Ka-4 on record.
7. Pursuant thereto, the Additional Sessions Judge, Court No.2, Aligarh heard both the sides on point of charge and was prima-facie satisfied with the case against the accused-appellant, accordingly, framed charges under Sections 307/34, 504, 506 I.P.C. and 3(2)(v) S.C./S.T. Act. Charges were read over and explained to the accused-appellant who abjured the charges and opted for trial.
8. The prosecution, in order to prove guilt of the appellant examined as many as seven witnesses, a brief sketch of them is ut infra :-
9. P.W.-1 Hardwari is the informant and the eye witness of the occurrence. P.W.-2 Satyaveer is the injured eye witness. P.W.3 is Dr. Jamal Azmat. P.W.4, Mansha Ram Gautam, P.W.-V.S. Mishra and P.W.7 R.C. Gupta are the three Investigating officers of this case, whereas P.W.6 Nihal Singh has taken down the contents written report in the Check F.I.R. and has proved the same as Ext. Ka-5.
10. Except as above, no other testimony was adduced by the prosecution. Consequently, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein he claimed to have been falsely implicated in this case on account of enmity.
11. In turn, the defence produced D.W.1 Rewati Singh-the scribe of the first information report and D.W.2 Tara Chand.
12. Thereafter, evidence for the defence was closed and the case was posted for arguments and as a sequel to that arguments concluded.
13. After appreciating the evidentiary value and considering the attendant facts and circumstances of the case, the trial court recorded finding of conviction and passed the aforesaid sentence under the respective sections of I.P.C. and the S.C./S.T. Act, as above.
14. Resultantly, this appeal.
15. Sri Noor Mohammad, learned counsel for the appellant has assailed the merits of this case on several counts and has vigorously contended that no offence, whatsoever, has been committed in this case and no evidence has been tendered by the prosecution which can prove case of the prosecution beyond reasonable doubt. That way, to prove the ambit of Section 3(2)(v) S.C./S.T. Act to the effect that the accused committed the crime, knowing it well that the victim is a member of and belonged to schedule caste and schedule tribe, thus applicability of Section 3(2)(v) S.C./S.T. Act is elaborated with the pre-requisite that the crime was committed in such state of mind knowing it well that the victim is a member of and he belonged to the S.C./S.T. community and in case that element is missing, then no conviction can be recorded by the trial court under Section 3(2)(v) of the S.C./S.T. Act. In support of his argument, learned counsel for the appellant,, has placed reliance upon the decision of the Hon'ble Apex Court in the case of Khuman Singh Vs. State of M.P. and Another, reported in 2019 (3) JIC 420 (SC) wherein the sentence awarded under Section 3(2)(v) S.C./S.T. Act was severely assailed on that count. Next contended that the present case in hand is under Section 307 I.P.C. The incident took place all of a sudden out of grave and sudden provocation because the qurrel arose on the spot and it was not premeditated and was never intended in pre- planned manner to commit the crime. The investigation was not conducted fairly and the trial court overlooked the clinching testimony of the defence witnesses that the F.I.R. was written at the police station. That way, the F.I.R. is as a result of deliberation with the police. The scribe was examined as D.W.1 and he has clarified fact that the F.I.R. was dictated at the instance of 'Daroga Ji' at the police station and that fact creates doubt about the very genuineness of the first information report itself. There are patent and inherent contradictions in the testimony of the prosecution witnesses both facts and formal witnesses. They are improving and vacilating and their testimony is full of embellishments and can not be believed. Lastly, contended sentence awarded is too harsh.
16. Learned A.G.A. has submitted that each and every aspect of the case has been duly considered and the charges have been proved beyond reasonable doubt. Insofar as the present case is concerned, the case of Khuman Singh (supra) referred to by the learned counsel for the appellant as above, the same is highly distinguishable on fact, because in that case (aforecited), the dispute arose all of a sudden, when the assailants tried to graze their cattle on the field of the deceased who drove away the cattle/buffaloes of the accused from his field, when some wordy altercation took place on the spot, followed by assault being caused on the deceased and that was considered to be outcome of grave and sudden provocation, and not a premeditated plan to assault the deceased because he was a member and belonged to the Scheduled Caste community. That being so, the facts of this case in hand are entirely different, therefore the ratio as laid down in the case of Khuman Singh (supra) is very much distinguishable from the facts of this case and not helpful to the appellant.
17. We have considered the rival submissions. The moot point that arises for consideration relates to fact whether the prosecution has been able to bring home various charges aforesaid against the accused-appellant beyond all reasonable doubt ?
18. In that context, upon careful consideration of the entire merits, we observe that the incident, as emanating from the F.I.R., indicates that the occurrence took place in the evening of the Deepawali festival, when the victim was sitting in his home, where the assailants came and demanded Rs. 100/-, which on refusal by the victim resulted into assault being caused to the victim/informant.
19. The money was being demand for purchasing liquor/alcohol. While demanding money, the informant was vituperated in the name of caste. Insofar as the time of the incident is concerned, it is stated to have occurred around 5:00 P.M. The incident was reported at the police station on 12.11.2004 around 6:20 P.M. The description of the occurrence further states that on refusal to give the money, some scuffle took place followed by wordy altercation with the accused. In the meanwhile, Ram Khilari with the intention to kill fired upon the nephew of the informant (Hardwari), which hit and passed through and through from the left temple of the victim. The incident was witnessed by Tara Chand and Charan Singh- the inhabitants of the same village.
20. In the backdrop of the aforesaid allegations/averments, the testimony of the injured witness as well as the informant becomes relevant. The testimony of the injured victim- Satyaveer P.W.2, indicates that he has supported the version of the F.I.R. that the incident took place around 5:00 P.M. when he was celebrating the festival of Deepawali at his home. His uncle Hardwari was also present at that time, when the accused Maloda and Ram Khilari arrived at his home and extended abuses in the name of caste and demanded Rs.100/- for purchasing alcohol. On refusal to give money by his uncle that he is unable to give the money, both the accused, who were possessing 'tamancha' in their hands started scuffling and came on the 'khadanja' path. At that time, he was playing with fire-works under the 'sheesham' tree and at that point of time, Ram Khilari fired on his uncle with the intention to kill him, but it instead hit him (P.W.2). In the meanwhile, Tara Chand and Charan Singh arrived on the spot. After the shot hit this witness (P.W.2-Satyaveer), he became unconscious. Thereafter, he was taken to the medical college for treatmennt. He has testified that the gun shot scar was still visible on his face.
21. We upon careful perusal of the record also find that this witness (P.W.2) was medically examined by Dr. Jamal Azmat P.W.3 at J.N. Medical College Hospital Aligarh Muslim University, Aligarh on 12.11.2004 around 8:30 P.M., wherein two injuries were found on his person viz., lacerated entry wound 3 x 3 c.m. on left cheek which was grievous in nature and lacerated exit wound with ragged margins with visible bony passing through and through to the back of head left side. This injury report has been proved by P.W.3 Dr. Jamal Azmat as Ext. Ka-2. Both the gun shots have been stated to be of grievous in nature. The doctor witness has further testified in his cross examination that the fire was shot from a certain distance, therefore, there was no blackening, charring and tattooing. The specific testimony of the doctor witness that this injury could have been caused by the gun shot has not been put to any challenge, whatsoever, by the defence. Here, the testimony of P.W.1 Hardwari also corroborates testimony of P.W.-2 Satyaveer in material particular, regarding the occurrence and in the absence of any specific challenge to the gun shot injury being caused by the accused upon the injured Satyaveer, the occurrence stands proved by the prosecution beyond reasonable doubt.
22. Learned counsel for the appellant has vehemently argued on the strength of case of Khuman Singh versus State of M.P. And another as referred to hereinabove and has submitted that at the time of commission of the offence, the accused must commit the offence knowing it well that the person belonged to the scheduled caste community and it being so, the offence was committed. Any conviction recorded under Section - 3(2)(v) of S.C./S.T. Act in the absence of any specific proof by the prosecution on that pariticular aspect would render the conviction illegal. But the aforecited case does not come to the rescue of the appellant on the ground that the facts of the present case are entirely different from the one as were juxtaposed in the above referred case of "Khuman Singh vs. State of M.P. And another". The reason being that in that case, the Hon'ble Apex Court apparently found that it was a case of sudden provocation which was extended by the informant side itself when the informant/victim drove away the cattle of the accused from his field, which led to assault being caused on the victim, thus causing his death. Here, in the abovecited case, the conviction was initially recorded under Section - 302 I.P.C. but it was altered and modified and confined to Section 304 Part-II I.P.C. on account of fact that it was not a premeditated murder the incident occurred in a spur of moment on the spot and it was a case of grave and sudden provocation, thus falling within one of the exceptions of Section - 300 I.P.C. The cause of action arose on the spot.
23. Here, in this case in hand, argument has been advanced by learned counsel for the appellant that the incident took place all of a sudden, but the argument is casual and does not carry any substance, for the reason that both Satyaveer and Hardwari were celebrating the festival of Deepawali at their home in the evening around 5:00 P.M., when the assailants appeared/arrived on the spot and forcefully demanded Rs. 100/- for taking liquor. On refusal being made, scuffle followed which led to the firing by the appellant, thus causing injury upon P.W.-2 Satyaveer. There is no point that any sort of provocation was given or extended by the injured or the informant to the accused. Refusing to give money would not be treated to be any sort of provocation in this case (in hand). Therefore, the aforecited case is not helpful to the appellant. Here, there is absence of grave and sudden provocation. Here the provocation is self induced by the appellant.
24. Insofar as the finding on the other aspects of the case as recorded by the trial court are concerned, the same is consistent and justified. It is per-chance that the injured was saved, but the seat of injury is the head- the vital part of body and nature of injury has not been challenged specifically by the defence. There is no material contradiction in the description of the occurrence as appearing in the testimony of the two eye-witnesses of fact - say P.W.-1 Hardwari and P.W.-2 Satyaveer. Their testimony on the whole inspires confidence.
25. We also notice that two defence witnesses have also been examined in this case. D.W.1 Rewati Singh, is scribe of the F.I.R. and he has testified in his examination-in-chief that some quarrel took place between Hardwari and other villagers. Hardwari asked him to accompany him to the police station and at the police station 'Daroga Ji' dictated the F.I.R., which was scribed by this witness. He has categorically stated that Hardwari did not dictate the F.I.R. and there is enmity between the accused and the informant side and due to this 'Daroga Ji' had involved the accused in this case. However, in his cross examination, he has categorically stated that Hardwari is resident of his village and he has admitted fact that it was dictated by Hardwari. He has categorically stated that "मुझसे तहरीर लिखवाई थी" however he has denied the suggestion that it is incorrect to say that the report, which he scribed was dictated by Hardwari. Although he has further denied suggestion that it is incorrect to say that he did not write the F.I.R. at the instance of 'Daroga Ji'. In the last paragraph of his testimony, he has denied the suggestion that he wrote the F.I.R., at the instance of Hardwari.
26. In this regard, we also come across the testimony of the Police Constable P.W.6 Nihal Singh. He has categorically stated regarding the fact of lodging of the F.I.R. that on 12.11.2004, when he was posted at Police Station - Palimukeempur as Head Muharrir, he prepared the Check F.I.R. on the basis of written report (Ext. Ka-1) and has proved the F.I.R. as Ext. Ka-5. He has further testified that on the basis of the entry made in the Check F.I.R., he made a reference of the same in the General Diary at Rapat No. 29 at 6:20 P.M. on 12.11.2004 and has proved the concerned General Diary as as Ext. Ka-6. He has been cross examined, wherein he has testified to the ambit that Hardwari was accompanied by the injured-Satyaveer, Pappu, Charan Singh, etc. and the written report was brought at the police station and he had seen the injuries of the injured at that point of time. He has been suggested only to the ambit that it is incorrect to say that at the instance of S.O., he lodged an ante-time F.I.R. The testimony of P.W.-6 as above would indicate that the testimony of D.W.-1 is absolutely false and it appears that he was initially a prosecution witness and has been won over by the accused, therefore, he is not telling truth. No suggestion has been made to P.W.6 by the defence that the written report Ext. Ka-1 was in fact written at the dictation of 'Daroga Ji ' by D.W.1 at the police station. The another defence witness is D.W.-2 Tara Chand. He is stated to be an eye witness of the occurrence in the F.I.R., but he did not name the accused to have seen him on the spot, at the time of the occurrence. He says that when he came out of his house, the assailants had fled away. Therefore, his testimony also does not create any doubt regarding the occurrence. The presence of both the injured witness and the informant on the spot is most natural.
27. The testimony of P.W.-1 and P.W.-2 is most clinching, consistent and inspiring confidence and it corroborates the occurrence in material particulars leaving aside element of doubt.
28. The site-plan prepared by the Investigating Officer Ext.Ka-7 is also indicative of fact as to the very place, where the occurrence took place and the crime was committed and it fixes with certainty the other places specifically marked as the place of presence of the informant at place-B where the informant was stated to be standing and the victim was standing under the 'sheesham' tree at place marked by word "X". This site plan has also not been challenged specifically by the defence. Therefore, the very place of commission of crime is satisfactorily proved by the prosecution.
29. After considering the entirety of this case, we unhesitatingly hold that the prosecution has successfully proved its case beyond all reasonable doubt against the present appellant- Ram Khilari and the testimony of the prosecution witnesses - both fact and formal is consistent and clinching and inspires confidence. The trial court took correct view of the entire occurrence and has properly scrutinized, appraised and analyzed facts and law in right perspective.
30. It is established principles of criminal jurisprudence that the prosecution is required to prove its case beyond all reasonable doubt and the burden of proof to establish the charge is always on the prosecution and in this case the prosecution has successfully prove the charges against the appellant beyond all reasonable doubt and the appellant was rightly convicted under aforesaid charges and was sentenced condignly.
31. Accordingly, the judgment and order dated 09.07.2012 passed by Additional Sessions Judge, Court No. 6, Aligarh, in Session Trial No.450 of 2006, arising out of Case Crime No.126 of 2004 (State vs. Ram Khilari and another), under Sections - 307, 504, 506 I.P.C. and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is hereby upheld. Consequently, the instant appeal lacks merit and the same is dismissed.
32. In this case, the appellant is in jail, he shall serve out the sentence as awarded by the trial court.
33. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.
Order Date :- 19.10.2020
S Rawat
(Subhash Chand,J.) (Arvind Kumar Mishra-I,J.)