Allahabad High Court
Laxmi Chand Son Of Daya Ram, Sher Singh ... vs State Of U.P. on 23 December, 2005
Author: Imtiyaz Murtaza
Bench: Imtiyaz Murtaza, G.P. Srivastava
JUDGMENT Imtiyaz Murtaza, J.
1. Both the above appeals have been filed against the judgment and order dated 31.7.1981 passed by III Additional Sessions Judge, Muzaffarnagar in S.T. No. 179 of 1979 &,No. 186 of 1980 whereby the appellants have been convicted under Section 147 I.P.C, and sentenced to undergo rigorous imprisonment for one year, under Sections 302/149 I.P.C. and sentenced to undergo imprisonment for life, under Section 323/149 I.P.C. and sentenced to undergo rigorous imprisonment for nine months, under Sections 324/149 I.P.C. and sentenced to undergo rigorous imprisonment for two years. The appellants Sukkha and Nathu have also been convicted under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for two years. All the sentences were ordered to run concurrently.
2. The brief facts of the case, mentioned in the first information report lodged by Ramesh at the Police Station Purqazi, district Muzaffar Nagar, are that on 15.9.78 at about 8.00 p.m. he was present at the house of his uncle Ram Singh and while he was talking with him, the appellant Sukkha reached there and told Ram Singh that since he was mediator in his marriage and his father-in-law is not sending his wife to his house, he should intervene in the matter and arrange for sending his wife to his house Ram Singh refused to intervene in the matter because the dispute was between Sukkha and his father-in-law. At this appellant Sukkha started abusing Ram Singh and an alarm was raised. Thereupon, all the accused namely Laxmi Singh, Sher Singh, Babu Ram, Keshav and Natthu who was armed with Daon reached there. Sukkha had assaulted Ram Singh with his knife, which was concealed in his Sudde. On hearing the noise Hari Singh, Phool Chand; Ram Kishan, Phulloo and informant rushed there and tied to rescue Ram Singh, but the accused beaten them and caused injuries with their respective weapons. Satya Pal, Mahendra, Inder, Natthu, Tej Pal had also reached there and intervened in the matter. The accused persons fled away from the place of occurrence. Hari Singh was seriously injured and he was taken to the hospital by Atar Singh and Brahma. The report of the offence was lodged on 15.9.78 at 8.30 p.m. The distance of the police station was only 2 km.
3. Initially the report was registered under Sections 147, 148, 149, 308, 324, 323 I.P.C. After the registration of the report P.W.9.
V.N. Singh Chauhan commenced the investigation. On 15.9.78 he recorded" the statement of Ramesh Chand, informant. He inspected the place of occurrence and prepared the site plan, which is Ex.Ka.11. He also collected plain and blood stained earth and prepared its recovery memo, which is Ex.Kar.12 Thereafter he reached in the hospital where he found the dead body of Hari Singh. He appointed Sub-inspector Banwari Lal Sahrma to prepare the inquest memo. He recorded the statements of Ram Singh and Phool Chand. On 16.9.78 he recorded the statements of Phullu and Ram Kishan. The inquest memo of the dead body was prepared by B.L. Sharma, Ex.Ka.13. The dead body was handed over to constables Hari Prakash and Kishan Lal for carrying to Mortuary. Challan Lash is Ex.Ka.14. On 17.9.78 Laxmi Chand, Babu Ram and Sher Singh were arrested. On 18.9.78 Sukkha and Keshav were arrested. On the pointing out of Sukkha one knife (Ex.4) and Daon (Ex.2) were recovered and recovery memo was prepared, which is Ex.Ka.15. He had also prepared site plan of the recovery of weapons, which is Ex.Ka.16. On 31.12.78 statements of Simru, Dharam Singh and Zulfi @ Shafi were recorded and thereafter charge sheet was submitted. Charge sheet of Natthu was filed in absconding. The charge sheet is Ex. ka. 18.
4. P.W.5 Dr. S.S. Dass had medically examined Ram Singh on 15.9.78 at 9.30 p.m. and noted the following injuries on his body:-
1. Stabbed wound 2-1/2 cm x 1 cm x depth not probed on left Side of abdomen 16 cm away from umbilicus at; 2-1/2 0' clock position. The margins are clean cut and everted. Oblique in shape bleeding + under observation.
2. Abrasion 1-1/2 cm x 1/2 cm on top-of left shoulder oblique in shape.
3. Abrasion 1-1/2 cm x 1/2 cm on back right side 5 cm away From inferior angle of right scapula bone at 7 0' clock Position oblique in shape.
5. Phool Chand was also medically examined by him at 9.50 p.m. and he noted the following injuries:-
1. Stabbed wound 3-1/2 cm x 1 cm x depth not probed on the left side of abdomen 5 cm away from umbilicus at 3 0' clock position. The margins are clean cut and everted. Oblique in shape bleeding under observation.
2. Incised wound 3-1/2 cm x muscle deep on left side of chest 9-1/2 cm away from left nipple at 4'O clock position. The margins are clean cut and everted oblique in shape.
3. Incised wound 3-1/2 cm x 1/2 cm x muscle deep on back left Side scapular region lower end. The margins are clean cut and everted oblique in shape.
4. Incised wound 3 cm x 1 ½ cm x skin deep on middle of penis upper side. The margins are clean cut and inverted. Oblique in shape.
6. The medical examination of Ram Kishan was also conducted on the same day by him at 10.15 p.m. and the following injuries were noted:-
1. Swelling 5 cm x 3 cm on elbow lateral aspect. Injury is simple, and is caused by some blunt object. Fresh in duration.
7. The medical examination of Ramesh was conducted on the same day at 10.30 p.m. by him and the following injuries were noted:-
1. Swelling 5-112 cm x 3-1/2 cm on right forearm posterior aspect 9 cm away from right elbow joint.
2. Swelling 4 cm x 3 cm on right hand middle posterior aspect.
3. Abrasion 1/2 cm x '/2 cm on right hand ring finger in between 2nd and 3rd digits posterior aspect.
4. Abrasion 1/2 cm x 1/2 cm on night hand middle finger in between 2nd and 3rd digits poster or aspect.
5. Sweelling 5-1/2 cm x 3-1/2 cm on right thigh lateral aspect 15 cm away from right knee joint.
8. The medical examination of Phullu was conducted on the same day at 10.55 p.m. by him and the following injuries were noted:-
1. Abrasion 1/2 cm x 1/2 cm on left hand middle posterior aspect.
2. Abrasion 1/2 cm x 1/2 cm on left hand posterior aspect at the base of index finger.
3. Abrasion 1 cm x 1/2 cm on left hand posterior aspect little finger in between 2nd & 3rd digists.
9. The post mortem on dead body of Hari Singh was conducted by Dr. S.P. Singh, Medical Officer, District Hospital Muzaffar Nagar on 16.9.78 and he noted following ante mortem injuries-
1. Lacerated wound ½x1/4 muscle deep on the right side of The" forehead vertically placed just above the medial end of the right eye brow.
2. Incised wound 13/4" x 1/4" upto bone deep on the vertex of Skull towards the left side 5-1/2" above the left ear margins clean cut everted and well defined.
3. Incised wound 1" x 1/2" on the lateral aspect of the left side Of the chest in the auxiliary line 4" below the axilla x chest cavity obliquely placed. Direction upwards and medially.
4. Incised wound 1" x 1/2" x muscle deep on the lower Costal. Margin of the left side of the chest obliquely placed. Direction upwards medially Margins are clean cut. Everted and well defined.
5. Incised wound 1" x /2" x muscle deep about 1" above anterior superior iliac spine. Direction upwards and laterally Margins are clean cut. Everted and well defined,
10. In the internal examination he found bones of scalp and skull linear cut on the vertex of skull underneath the injury No. 2 and he also found left ventricle punctured underneath the injury No. 3. Both chambers empty and in his opinion the death was caused due to shock and hemorrhage as a result of ante mortem injuries.
11. After the submission of the charge sheet case was committed to the Court of Sessions. The Sessions Judge framed the charges under Sections 147, 323/149, 324/149 and 302/149 I.P.C. Sukha and Natthu were further charged under Section 148 I.P.C.
12. The prosecution in order to prove its case had examined nine witnesses in all. P.W.I Ramesh Chand, P.W.2 Satya Pal, P.W.3 Ram Singh, P.W.4 constable clerk Dhoom Singh, P.W.5 Dr.S.S.Das P.W.6 Shaukt Ali, P.W.7 Kishan Pal, P.W. 8 Dr. S.P. Singh & P.W.9 Station House Officer, V.N. Singh Chauhan.
13. The defence had examined four witnesses. D.W.I Chowdhary Mawali, D.W.2 S.C. Sharma, D.W.3 Ram Singh and D.W.4 Chando.
14. P.W.1 Ramesh Chand deposed that on the date of occurrence at about 8 p.m. he was sitting inside the chappar of his uncle Ram Singh and he was talking with him and there -was moon light. In the meantime the appellant Sukkha reached there and asked Ram Singh that since he had been the mediator in his marriage and his father-in-law is not sending his wife with him, he should intervene in the matter and arrange for sending his wife with him. Ram Singh refused to intervene in the matter because the dispute was between him and his father-in-law and stated that he had nothing to do with that. At this appellant Sukkha started abusing Ram Singh and also raised alarm. All the accused reached there. Natthu was armed with Daon and rest of the accused were armed with lathi. Sukkha took out the knife, which was concealed in his sudde and caused knife blow to Ram Singh. Hearing the noises Hari Singh, Mool Chand, Ram Kishan & Phullu rushed there and tried to intervene into the matter, but the accused beaten them. Satya Pal Singh, Natthu, Mahender, Kundan and others also reached there and witnessed the occurrence. The accused persons ran away towards the field (jungle). The condition of Hari Singh was very serious and he was taken to the district hospital Purkazi by Brahma and Atar. He had lodged the report written by Baljit Singh at the police station, which is Ex. Ka.1. He alongwith other injured persons were taken to the hospital by a constable and their injuries were medically examined. His statement was also recorded at the police station.
15. P.W.2 Satya Pal deposed that his house was about ten paces towards east of the house of Ram Singh. He stated that about 2 years or 2 years and 1/4 month back at about 8 p.m. he was sitting in his house. He heard noises coming from the side of the house of Ram Singh and he went there and saw that Sukkha was armed with knife, Natthu was armed with Daon and the remaining accused were armed with Lathis and they were assaulting Rani Singh, Hari Singh, Ram Kishan, Ramesh, Phool Chand and Phullu. He further stated that by the time he had reached there Ram Singh had already sustained knife injury in his stomach.
16. P.W.3 Ram Singh is an injured eye witness. He deposed that about 25 months ago at about 9 p.m. he was sitting in his chappar alongwith his nephew Ramesh Chand, informant. Sukkha came there and asked to intervene in the matter as the had been mediator in the marriage. His father-in-law was not sending his wife. Ram Singh replied that this was the matter between him and his father-in-law and he had nothing to do with the same. Sukkha started abusing him and he also raised alarm. On hearing the alarm accused persons namely Natthu armed with Daon, Laxmi Chand, Babu Ram, Sher Singh and Keshav armed with lathis reached there. Sukkha, gave knife blow to him. On hearing his alarm Hari Singh, Ram Kishan, Phullu and Phool Chand reached there. The accused persons had started assaulting them. Satya" Pal, Inder, Natthu, Mahendra and Tej Pal had also reached there. Natthu gave Daav blow. Hari Singh and after receiving this injury the condition of Hari Singh become serious and he was taken to the hospital by Alar Singh and Brahma. A written report was lodged by Ramesh Chand. The injured were referred to P.H.C. Purqazi for medical examination. Hari Singh had succumbed to his injuries.
17. P.W.3 is Constable clerk Dhoom Singh. He stated that he was posted as Head Moharrir on 15.9,78 at the police station Parishatgarh, district Meerut. He had prepared the chik F.I.R. on the basis of a report given by Ramesh, which is Ex.Ka.1. The chik F.I.R. is Ex.Ka.2 and G.D. entry is Ex.Ka.3. The case was registered under Sections 147, 148, 149, 308 and 324 I.P.C. On 17.9.78 the case was converted from Section 308 I.P.C. to Section 304 I.P.C.
18. P.W.5. Dr. S.S. Dass was medical officer, P.H.C. Purqazi, district Muzaffar Nagar on 15.9.78. He had medically examined the injuries of the injured persons.
19. P.W.6 is Constable Shaukat Ali. He was posted at police station Purqazi on 15.9.78. He had taken injured Ram Singh, Phool Chand, Ram Kishan, Ramesh & Phullu for the medical examination to Govt. Hospital Purqazi.
20. P.W.7 is constable Kishan Pal. On 16,9.76 he was posted as a constable at police chowki Purqazi. He had brought the dead body of Hari Singh in a sealed condition from Purqazi hospital to Muzaffar Nagar Mortuary. He had kept the dead body in a sealed condition.
21. P.W.8 Dr. S.P. Singh had conducted the post mortem examination of the deceased Hari Singh.
22. P.W.9 V.N. Singh Chauhan is the investigating officer of the case.
23. The defence had examined four witnesses.
24. D.W.I is Chowdhary Mawali. He deposed that he is agricultural labourer and he was Chowdhary of Schedule Caste of the entire area of Purqazi. He was Chowdhary of Panchayat of Biradri. He stated that about 20-25 days prior to this occurrence Hari Singh had brought her unmarried sister-in-law by enticing her away. Several persons from in-laws of Hari Singh had come to his house in a panchayat. In the panchayat it was decided that Hari Singh shall hand over his sister-in-law to his father-in-law. Hari Singh did not agree to this decision and several persons had forcibly taken his sister-in-law and handed over to his father-in-law. They had also threatened Hari Singh. He further deposed that the accused were not involved and some unknown persons had committed the offence.
25. D.W.2 Subhash Chandra Sharma is a practicing advocate. He deposed that Ram Naresh Sharma was his clerk. He knew Satya Pal. He was his client. On 9.9.80 Satya Pal had signed the affidavit and he had verified the said affidavit as Oath Commissioner. The signature of Satya Pal was Ex.Kha. 1 and the affidavit was Ex.K.ha.2.
26. P.W.3 is Ram Singh. He stated that he had seen the houses of Ram Singh and Hari Singh in Puraqazi. His house was at a distance of 250 yards from their houses. He also knew Babu, Laxmi and Sher Singh. The distance of the house of Babu from the house of Ram Singh was 225 yards. The house of Babu Ram was in Mataon Mohalla. The house of Laxmi Chand from the house of Ram Singh wasat a distance of 275 yards. He lived in Mohalla Bade Bagad. The house of Sher Singh was at a distance of 250 yards from the house of Ram Singh and he lived in Mohalla Kallarpuri. The houses of Ram Singh and Hari Singh were in Mohalla Siras.
27. D.W.4 Chando deposed that she was married with Sukkha about 10-11 years ago. Her marriage was settled by his father. Gauna ceremony had taken place after 3-4 days of the marriage. She stated that she had come to the house of Sukkha from the house of his father on the day of marriage and thereafter she had stayed there for 3-4 days. Thereafter she again had returned to his father's house. After the Gauna she had come to the house of her husband. She had stayed with Sukkha for about 7-8 days and mostly she used to live alongwith her husband. There was no dispute between her and her husband. She has a daughter of about two years.
28. The Sessions Judge considering the evidence on the record convicted the appellants as aforesaid. Hence these appeals.
29. We have heard learned Counsel for the appellants and A.G.A. for the State.
30. The Counsel for the appellants had challenged the findings of the trial court on various grounds.
31. The Counsel for the appellants submitted that the first information report is ante-timed. It is submitted that occurrence had taken place on 15.9.1978 at 8.00 P.M. and the report is lodged at 8.30 P.M. The distance of the police station is only 2.Kms. We have considered the submission of the Counsel for the appellants and also perused the lower court record and the evidence on the record. The informant in the first information report had mentioned the time of occurrence is at 8.00 P.M. in approximation. The scribe of the report is Baljeet Singh. In our opinion, the first information report is not ante-timed. After the registration of the report, injured were medically examined at 9.30 P.M. by Dr. S.S. Das, P.W. 5, at P.H.C. Purkazi. In our opinion, there is nothing to suggest that the first information report is ante-timed. The injured were medically examined by the doctor when they were produced by Con.
Shaukat Ali of P.S. Purkazi. This clearly indicates that injured were taken to P.H.C. for medical examination report after the registration of the report.
32. The Counsel for the appellants submitted that the appellants had no motive to commit the offence and he also placed reliance on the testimony of the defence witnesses. D.W. 4 Smt. Chando had admitted that there was no dispute with regard to the marriage. The marriage was arranged by her father and Gauna had taken place after 3-4 years of the marriage. There was no dispute in sending her to the house of her in-laws. In our opinion, there is no force in this submission also. It is a case of direct evidence and prosecution case cannot be thrown on the ground that motive foiled in this case.
33. Learned Counsel for the appellants further submitted that there was no source of light in which the accused could be identified by the witnesses. We have examined the submission of the Counsel for the appellants. In the first information report it was mentioned that the accused were identified in the moon light, It is settled that known persons can be identified in faint light also. The ocular testimony is supported by the injured witnesses and their presence at the time of occurrence cannot be doubted. The weapons of the assault are such that assailants must have come in a very close contact with the victims. In such a situation the identification of known persons in the faint light is also possible. We have carefully examined the submission of the Counsel for the appellants and the evidence on the record. The prompt lodging of the F.I.R. is also proved by the testimony of P.W. 4, Con. Dhoom Singh, who had proved the chik F.I.R., Ext. Ka. 2 on the basis of a written report, Ext, Ka. 1. The injured Ram Singh, Phool Chand, Ram Kishan, Ramesh and Phulloo were medically examined by P.W. 5, Dr. S.S. Das who had examined them at 9.30 P.M. The time and place of the occurrence is not seriously challenged in this case. The prompt lodging of the report eliminates the chances of embellishment. The presence of the witnesses is established by the injuries suffered by the witnesses during the occurrence. The first information report and the testimony of the witnesses are consistent about the manner of the assault and the role of the accused.
34. The last submission of the Counsel for the appellants is that Sessions Judge had wrongly convicted the appellants with the aid of Section 149 I.P.C. There was no prior enmity with the deceased or with any other injured persons. The occurrence took place at the spur of the moment. According to the first information report, appellant Sukkha had requested Ram Singh to intervene in the matrimonial dispute and thereafter altercation had taken place. Appellant Natthu, who reached at the place of occurrence, carrying Daon alongwith other accused persons, had assaulted the deceased and injured. The testimony of the injured witnesses shows that Natthu had assaulted the deceased with Daon. The injuries of Ram Singh shows that he had received only simple injuries, although he was the main target of the assault. The common object of all the accused was to cause only simple injury. All the accused persons cannot be held liable for the individual act of Natthu. The post-mortem report shows that injury nos. 3 and 4 of the deceased were sufficient in the ordinary course of nature to cause death. The role of causing these injuries to the deceased was assigned to Natthu by the testimony of the witnesses. In view of this, the conviction of the appellants under Section 302/149 I.P.C. is set aside and appellant Natthu is convicted under Section 302 I.P.C.
35. Now the question arises whether the appellant Natthu can be convicted under Section 302 I.P.C. in the absence of any charge.
36. In the case of Nallabothu Venkaiah v. State of A.P. (2002) 7 SCC 117, at page 126, the Apex Court had held that:
On an analytical reading of a catena of decisions of this Court, the following broad proposition of law clearly emerges: (a) the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence; (b) wrongful acquittal recorded by the High Court, even if it stood, that circumstances would not impede the conviction of the appellant under Section 302 read with Section 149 IPC; (c) charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 read with Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved.
37. In the present case specific overt act has been assigned to the appellant Nathu and the injuries caused by him was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, appellant Nathu is convicted under Section 302 I.P.C.
38. For the reasons stated above, the above appeals are decided as under:
1. Criminal Appeal No. 1732 of 1981 (Laxmi Chand, Sher Singh and Babu Ram v. State) is partly allowed. The conviction and sentence of the appellants under Section 302/149 I.P.C. is set aside and the conviction and sentences for the remaining sections awarded by the trial court are maintained. The appellants are on bail. C.J.M. Muzaffarnagar is directed to take the appellants into custody and send them to jail for serving out -the sentences awarded by the trial court and modified by us.
2. Criminal Appeal No. 1748 of 1981 (Sukkha, Keshav Ram and Natthu v. State).
Appeal of appellants Sukkha, Keshav Ram is partly allowed. The conviction and sentence of the appellants under Section 302/149 I.P.C. is set aside and the conviction and sentences for the remaining sections awarded by the trial court are maintained. The appellants are on bail. C.J.M. Muzaffarnagar is directed to take the appellants into custody and send them to jail for serving out the sentences awarded by the trial court and modified by us.
Appeal of appellant Nathu is dismissed with the modification that instead of Section 302/149 I.P.C. he is convicted under Section 302 I.P.C. and sentenced to imprisonment for life. His conviction and sentences for the remaining sections awarded by the trial court are maintained. He is on bail. C.J.M. Muzaffarnagar is directed to take the appellant into custody and send him to jail for serving out the sentences awarded by the trial court and modified by us.
39. Office is directed to communicate this order to the C.J.M. Muzaffarnagar within a week for compliance and the C.J.M. Muzaffarnagar shall send the compliance report to this court within a month.