Allahabad High Court
Pati Ram And Ors. vs State Of U.P. on 9 March, 1994
Equivalent citations: 1994CRILJ3813
ORDER K. Narayan, J.
1. Appellants Pati Ram, Sahab Singh and Deep Singh have been found guilty of the offences Under Section 308, 323 and 325/34 I.P.C. and sentenced to undergo R.I. for three years, 18 months and 18 months respectively. The sentences have been made concurrents. Against this order dated 6-11-1979 regarding conviction and sentences, the accused appellants have approached this Court in appeal.
2. The charges related to occurrence of 10-10-1975 at about 5.30 p.m. in village Htepur P.S. Kampil. According to the prosecution story, one Smt. Jagdei was painting the court-yard with cow-dung when Deep Singh armed with Kanta, Pati Ram and Sahab Singh armed with Lathis arrived and objected to this painting. The exchange of words took place and Sahab Singh assaulted Smt. Jagdei with his cudgle and on her alarm Lekhram, Totaram, Gangadin and others also arrived. On their questioning as to why they had assaulted Smt. Jagdei, Deep Singh accused caused Farsa injuries to Lekhram who got unconscious. An F.l.R. of the incident is said to have been lodged at P.S. at 18.20 hours on the same day, the distance of police station being about 2 miles. As usual investigation proceeded and since the case was registered under Sections 308, 323, 324 I.P.C, a chargesheet under the said sections was submited and accused committed to the Court of Sessions.
3. After charges, the prosecution examined P.W. 1 Sitaram, and P.W. 2 Smt. Jagdei as witnesses of the occurrence, P.W. 3 H. C. Laxmi Narayan, P.W. 4 Dr. R. P. Gupta and P.W. 5 Dr. R.K. Gupta as also P.W. 6 H. C. Dalbir Singh and P.W. S. 1. Surendra Singh to prove its case. Needless to say that the doctors were examined to prove certain injury reports including supplementary report certifying some injuries to be grievous in nature as metacarpal and petella bones were said to have been fractured and the evidence of police constable was of formal nature. The court also examined Lekhram, father of Sitaram P.W. 1 who was also injured as a court witness No. 1 and after considering these evidences the learned Sessions Judge recorded the above said conviction and sentence.
4. The statement of P.W. 1 Sitaram, P.W. 2 Smt. Jagdei and court witness Lekhram do not show any ingredients of Section 308, I.P.C. Apart from the fact that they had failed at times to mention the name of Deep Singh 'as also any reason for the injuries said to have been received by some sharp-edged weapon which will be considered below, they had only stated that they were assaulted by Lathis by Pati Ram and Sahab Singh. The heaviest ingredient that could be considered to be some where near the impression of culpable homicide was a narration that Pati Ram had said 'Sala Ko Jan Se Mardo', Pahile to bach gaya that would it amount to a evidence for aggravating the offence is a question which should have weighed with the learned Sessions Judge if he had given some time to consider as to what he was really going to try ? The offences under Sections 308 and 307 I.P.C. are not to be inferred merely for a song. Such words even if the evidence is true as a fact are uttered by people not with a mind to commit murder but in order togather courage for themselves and to demoralise the opponents. In the event of any charge Under Section 307 I.P.C. or 308 I.P.C, the requirement of law would be that' if death had occurred within the expectation of normal man, the offence might have been either of murder or of culpable homicide not amounting to murder. It will leave the said issue relating to Section 307 I.P.C. for the present and will only deal with the aspect of culpable homicide, which has been defined Under Section 299 I.P.C. which reads as under :-
299 Culpable Homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
5. In the instant case, the best that could be thought of was only the impression of intention of causing death as none of the injuries found upon the person of victims could by any stretch of imagination be considered to be likely to cause death, much less knowledge of the accused that he was likely to cause death by that action. Thus the explanation apart, there was nothing to even think of offence of culpable homicide. There was exaggeration in the offence and I am pained to say that the learned Sessions Judge seems to have easily slipped into the trap of offence being registered by local police as one Under Section 308 I.P.C.
6. Then again the offence under Section 308 I.P.C. though it may be a comparatively minor offence, is more dependent upon a study of Section 302 I.P.C. Broadly speaking if a culpable homicide is there, it will be murder unless it can be brought within the mischief of exceptions or ousted from all the explanations in Section 302 I.P.C. The Sessions Judge has not considered that aspect at all and proceeded to frame charge under Section 308 I.P.C.
7. It may be that the Magistrate was bound to commit the accused to the court of Sessions as the chargesheet was under Section 308 I.P.C. but the learned Sessions Judge is also expected to apply his mind while framing charges and made use of Section 228 Cr. P.C. which direct that if after such consideration and hearing as considered in the preceding sections the Judge is of the opinion that there is ground for assuming that the accused has committed the offence which is not triable by court of Sessions he may frame charge and by order transfer the case for trial to the court of Chief Judicial Magistrate. In framing the charges the Sessions Judge are not supposed to sit in a machenical manner, look into the draft charges given in the Indian Penal Code and charge the accused irrespective of the other allegations and evidence that are likely to be produced before him. On the other hand, they are supposed to bear in mind that prosecution and misuse of law should not be allowed to creep in. Where a minor offence of simple or even greivous hurt is tried in the court of Session, the accused may have to run up to High Court and a benefit of local appeal and revision may stand denied to him.
8. Thus irrespective of any weakness in evidence, the charge and conviction under Section 308 I.P.C. could not be sustained.
9. I shall next proceed with the consideration of the evidence as it was. The evidence of P.W. 1 Sitaram was to the effect that Pati Ram and Sahab Singh had given him Lathi blows and Deep Singh had given blows of Kanta. It was shown in his cross examination that he was shy about the earlier fact where these persons had prosecuted Pati Ram and others for another similar case. It cannot be said that he was not aware of it as he had already stated about it to the investigating officer but then why he should try to conceal it when he was making a statement on oath ? He was the person who had lodged the first information report. He was questioned as to why he had not written the report himself and his reply was that it could not be done because he had injury in mid of his hand, which means right hand. While the fact of the matter is that he had no injury in his right hand at any place. There is no law that everybody should write papers himself but at the same time if he is required to give any reason he should not -make a lame excuse. Apart from this witness P.W. 2 Smt. Jagdei though she had mentioned the name of Deep Singh did not say that Deep Singh had caused sharp edged weapon injuries. On the contrary, on certain suggested questions of the State, she stated that she received lathi blow from Deep Singh though in the earlier breath she had stated that Deep Singh had Kanta in his hand. Needless to say that she was declared hostile and even this much of statement could be obtained only with the help of leading questions. Such witnesses are not reliable has also been held by the Supreme Court in the case of Jagir Singh v. State, . In addition to the above it may also be kept in mind that Sitaram P.W. 1 was a person who was much interested in at least exaggerating the offence from the very beginning and it may also be said that something else was being given the shape of grievous hurt caused by accused appellants. Possibly in view of this weakness, the court preferred to examine Lokhram as court witness but he again stated that there was exchange of words between Deep Singh and Sitaram and when he reached there for intervention, Deep Singh fled away and Sahab Singh and Patiram arrived with lathis. If this situation is suggested, the availability of Kanta in the hand of Deep Singh has been denied and then it becomes a question as to how the incised wounds were caused. The evidence has to be read as a whole and not in the form that a person must be believed simply because he is injured or has been examined as a court witness. In order to record a conviction, the court should have definite evidence before it and not a jungle of facts in a scattered manner pregnant with self contradictions.
10. Thus the evidence, therefore, was not, sufficient to come to a conclusion of guilt and accordingly the conviction and sentence rendered by the trial court cannot be sustained.
11. In result, this appeal should succeed.
12. The appeal is allowed. The conviction and sentence rendered by the Sessions Judge are hereby set aside and the appellants shall stand acquitted of the charges framed against them. The appellants if they have been taken in custody in pursuance of the order dated 8-2-1994 shall be set at liberty forthwith unless wanted in some other case. In case they have not been taken in custody, they need not surrender. Their bail bond are cancelled and sureties discharged.