Allahabad High Court
Satish Babu And Others vs State Of U.P. on 31 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 156
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved On:- 10.01.2020 Delivered On:- 31.01.2020 Case :- CRIMINAL APPEAL - 1826 of 2004 Appellant :- Satish Babu And Others Respondent :- State of U.P. Counsel for Appellant :- Ranvir Singh, Rajjan Singh Yadav, Ram Suphal Shukla Counsel for Respondent :- Govt. Advocate and Case :- CRIMINAL APPEAL - 1994 of 2004 Appellant :- Krishna Swaroop And anothers Respondent :- State of U.P. Counsel for Appellant :- Ranvir Singh, R.S. Singh, S.S. Tripathi Counsel for Respondent :- Govt. Advocate Hon'ble Siddharth, J.
1. Heard Sri Rajjan Singh Yadav, learned counsel for the appellants in Criminal Appeal No. 1826 of 2004 and Sri Ram Suphal Shukla, learned counsel for the appellants in Criminal Appeal No. 1994 of 2004 and Sri S.S. Tripathi, learned Additional Government Advocate appearing on behalf of State in both the appeals and perused the lower court record.
2. Criminal Appeal No. 1826 of 2004 has been preferred by Satish Babu, Jagat Narain, Kunwar Bahadur, Desh Raj, all sons of Raja Ram and Bharat @ Bhartendra Babu son of Desh Raj against the judgment and order dated 11.03.2004 and order dated 23.03.2004 passed by Additional Sessions Judge/ Fast Track Court, Auraiya in S.T. No. 212 of 2002.
3. Criminal Appeal No. 1994 of 2004 has been preferred by Krishna Swaroop son of Raja Ram and Rohit son of Desh Raj, against the common judgment and order dated 11.03.2004 and order dated 23.03.2004 passed by Additional Sessions Judge/ Fast Track Court , Auraiya, in S.T. No. 212 of 2002.
4. The appellants in both the appeals have been convicted and sentenced under Section 147 IPC for two years rigorous imprisonment and a fine of Rs. 10,000/- each; under Section 504 IPC to two years rigorous imprisonment each; under Section 506(2) IPC to six months rigorous imprisonment and fine of Rs. 2,000/- each and under Section 308/149 IPC to three years rigorous imprisonment and fine of Rs. 2,000/- each. All the sentences have been directed to run concurrently. Both the appeals arise out of common trial.
5. The prosecution case is that the informant is resident of Napur and is employed in Bank of Indore, branch- Kachnav Kala, District- Bhind. On account of his prosperity the other villagers harbour jealously against him. They keep on plotting against the appellant for beating him. Marriage of his younger brother was fixed 07.03.2000 and in the morning accused, Rohit son of Desh Raj, threatened his brother, Hari Mohan, of life by pointing a country made pistol on his chest but because of the marriage ceremony in the house they kept quiet. On 09.03.2000 after seeing off relatives, the members of his family were sitting in the house at 09:20 p.m for dinner when Rohit son of Desh Raj along with Jagat Singh, Krishna Swaroop, Kunwar Bahadur, Satish Babu, Desh Raj, all sons of Raja Ram and Bharat son of Desh Raj came to his house. Bharat had gun in his hand and other persons were armed with lathi and farsa. Satish Babu and Jagat Narayan caught hold of his hand and Bharat son of Desh Raj made blow on his head by the butt of the gun and all the accuseds started saying that today they will kill him. He cried for help and then Ashwani Kumar son of Ramphal Dohrey and Hoti Lal resident of Purwa Adot and many other villagers came and saved him. The accuseds after beating him and hurling abuses ran away.
6. Report of this incident was registered at Police Station on 09.03.2000 as Case Crime No. 100 of 2000, under Sections- 147, 323, 504, 506 IPC. The injuries of the informant were examined by the doctor and he was referred for x-ray of his head. Fracture was found on the head of the informant, Narendra Chaudhary. The Investigating Officer after investigation submitted charge sheet and charges under Sections- 147, 323, 325, 504, 506 and 308 IPC were framed by the trial court. The accuseds denied the charges and sought trial.
7. P.W-1, Narendra Chaudhary, the informant of the case, in his examination-in-chief repeated the allegations mentioned in the FIR. In his cross-examination P.W-1 admitted that he is not aware on which post accused, Satish, is employed in police force. Accused, Jai Narain, is employed in P.A.C. He does knows where accsueds, Kishan Swaroop, Kunwar Bahadur and Bharat are employed. He admitted that the house of the accuseds are after the ten feet street near his house. He stated that his family takes water from well and public tap which is situated on the gate of Jagannath. Thereafter he stated that the aforesaid tap is situated on the gate of the accuseds but his family never takes water from the same. He failed to reply from where his family members take water. He alleged that the accuseds throw stones in his house and this is resulted into dispute with his brothers with accused, Bharat about two years ago in the month of July, 1998 but not in his presence. No FIR was lodged regarding the aforesaid incident and also the incident dated 07.03.2000. On 07.03.2000 no altercation took place but accused, Rohit pointed a pistol on the chest of his brother and threatened him but not before him. He came to his house four days prior to the incident on leave. He came to his house on 03.03.2000 but did not met the accuseds on 04.03.2000, 05.03.2000, 06.03.2000, 07.03.2000 and 08.03.2000. He saw them at 06:00 p.m on 09.03.2000, i.e., the date of incident. There was some function in their house and therefore all of them had gathered in their house. He admitted that P.W-2, Ashwani Kumar, is his brother-in-law and Hoti Lal is his uncle (mama). He stated that there were two injuries on his body and not one, as stated in FIR. When he reached the hospital he realized that he has suffered two injuries. The blood stains on the earth were present where he got injured but the Investigating Officer did not took the same in his possession. Apart from causing him injuries the accuseds beated his father, Ram Sewak Chaudhary and Hari Mohan. But by what weapon they were beaten he does not knows. They also suffered injuries. Father suffered injuries on mouth and the brother was slapped. He admitted that he did not mentioned these facts in the FIR.
8. P.W-2, Ashwani Kumar, stated in his examination-in-chief that accuseds, Satish Babu and Jagat Ram, caught the hand of P.W-1, Narendra Chaudhary and abused him and accused, Bharat, caused blow on his head by the butt of the gun. In his cross-examination he admitted that P.W-1, Narendra Chaudhary, is his brother-in-law (behnoi). He was present at the time of incident in the house when the incident dated 07.03.2000 took place at 10 - 10:30 am. He recognizes the accuseds. The accuseds had come from south direction. At the time of incident, Hoti Lal, Mama of P.W-1, was sitting along with him. He accompanied P.W-1, to the police station on motorcycle. He was driving and P.W-1 was sitting on the motorcycle. Hoti Lal was also sitting and holding him from behind. They went to police station and after giving application at the police station went to the hospital. Hoti Lal was medically examined. On 14.03.2000 accused, Rohit Desh Raj, Bharat, Satish, Jagat Narain, Kishan Swaroop and Kunwar Bahadur, came to his house in village Tulsipur and threatened him that in case he gives statement in favour of P.W-1 they will kill him. He testified that Bharat had gun in his hand he cannot say which accused had lathi and which had farsa in his hand. There was only injury on the head of the P.W-1 and no other injury on his body.
9. P.W-3, Hoti Lal, mama of P.W-1, stated that on 07.03.2000 accused, Rohit, pointed a country made pistol on the chest of Hari Mohan and threatened him of life. On the date of incident 09.03.2004 the accuseds came to the house of the P.W-1. Accused, Bharat, had gun in his hand and other accuseds had lathi-danda, farsa etc., in their hands. Accuseds, Jagat and Satish, caught hold of hand of P.W-1. Accused, Bharat, caused injury on the head of the injured by the butt of his gun. There was only one injury on the head of P.W-1. Application was given by P.W-1 at the police station and FIR was lodged.
10. P.W-4, Head Constable, Anokhe Lal, proved the chik FIR. He further stated that he saw the injury on the head of the injured and got his signatures on the chik report.
11. P.W-5, Dr. V.V. Prakash, Senior Radiologist, stated that the injured came alone and was not accompanied by any policemen. His right parietal bone was found fractured and he gave his report accordingly.
12. P.W-6, Dr. R.B. Arya, found one lacerated wound 8.5 cm x 1 cm x bone deep 10 cm above right ear on scalp with fresh bleeding present on the body of the injured. Second injury was found to be pain in the back but no injury was found.
13. P.W-7, Sub-Inspector, Harendra Singh Yadav, proved the investigation of the case conducted by him.
14. P.W-8, Constable, Babu Lal Yadav, proved the signature of Sub-Inspector, Devendra Dixit on the charge sheet submitted before the court. He proved that Devendra Dixit had died and therefore he is proving his signature on the charge sheet.
15. The statement of the accuseds were recorded under Section 313 CrP.C and all of them have stated that P.W-2, Ashwani Kumar and P.W-3, Hoti Lal are sala and mama of P.W-1 respectively and they have given false evidence before the court. They further stated that the family of P.W-1 is envious of prosperity of their family members and therefore they have been falsely implicated in this case on 09.03.2000. The bis the utensils of the cooks, used in marriage of the brother of P.W-1, were kept on the public tap and P.W-1 stumbled on the utensils in the night and fell on them which is resulted in head injury by falling over the utensils. On account of envy he has falsely implicated the accuseds in this case. They denied going to his house and causing injury. The investigation by Investigating Officer was stated to be illegal.
16. The trial court found that offences under Sections 323 and 325 IPC are not made out against the accuseds and as such acquitted them of the charges under the aforesaid sections. However they have been punished for committing offences under Sections 147, 504, 506 (2), 308/149 IPC.
17. Counsel for the appellant has submitted that the implication of all the appellants for offences under Section 308 IPC read with Section 149 IPC is not justified. His submission is that general and sweeping allegations have been levelled against all the accuseds when the role of causing blow on the head of P.W-1 has been assigned only to Bharat. Satish and Jagat Narain, have been assigned the role of catching the hand of the injured. The incident is of night and no source of light has been mentioned nor found during investigation by Investigating Officer and how the assailants were recognized in the night has not been explained. The common object of all the accuseds has not been established. Mere presence of accuseds, except Bharat, does not proves the allegation of unlawful assembly and the implication of the appellants for offence under Section 147 IPC is not justified. There is no motive of the crime except jealousy of the accuseds with the injured. On 07.03.2000 only accused, Rohit threatened the brother of P.W-1 and there also no other motive was assigned for the act of the co-accused, Rohit. Motive still has its corroborative value even when direct testimony is available. When the accused, Bharat, caused the injury to P.W-1 on his head by butt of the gun, he raised alarm and then P.W-2 and P.W-3 reached the scene of incident but they did not saw anyone on the scene of incident. The testimony of P.W-1 has not been corroborated any witness of fact. The implication of the appellants under Section 504 and 506 IPC is not justified since only on account of mere allegation that accuseds abused the complainant the ingredients of Section 504 and 506 are not satisfied. The insult must be of such degree that it should provoke a person to break public place or commit any other offence. The Investigating Officer has not recovered any blood stained clothes or blood stains on earth from the place of incident when P.W-1 has admitted that blood has fallen on the earth. The prosecution case does not stands proved but the accuseds have been illegally convicted and sentenced.
18. Learned A.G.A on the other hand has submitted that the offence alleged against the appellants stand fully proved. Witness of fact have proved that all the accuseds came with weapons. Bharat was having gun and others were armed with lathi and farsa. Two of them, namely, Jagat Narain and Satish Babu, caught hold of the hands of the informant and Bharat gave a blow from the butt of the gun on his head. On the scream of the injured P.W-2, Ashwani Kumar and P.W-3, Hoti Lal, came on the spot. The medical examination of the injured was conducted on the same day on 11:25 p.m and the doctor found the injury fresh. Fracture on parietal bone of the injured was found. The injury was found to be grievous by the doctor, P.W-6. The offence under Sections 147, 149, 308, 504 and 506(2) IPC are fully made out against the appellants.
19. After hearing the rival contentions the first argument of the counsel for the appellants that for implication under Sections 147 and 149 IPC mere presence of all the accuseds, except accused, Bharat, did not make them member of an unlawful assembly unless the participate in the act of rioting or do some overt act with necessary criminal intention or share common object of unlawful assembly needs consideration. The Apex Court in the case of Vijay Panduram Thakre vs. State of Maharashtra, (2017) 2 SCC (Crl.) 356 has held as follows:-
Section 149 IPC reads as under:
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." As is clear from the plain language, in order to attract the provision of the Section, following ingredients are to be essentially established.
(i) There must be an unlawful assembly.
(ii) Commission of an offence by any member of an unlawful assembly.
(iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed.
If these three elements are satisfied, then only a conviction under Section 149, I.P.C., may be substantiated, and not otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly.
In the facts of the present case, we find that common object of the assembly, even if it is presumed that there was an unlawful assembly, has not been proved. The expression 'in prosecution of the common object' occurring in this Section postulates that the act must be one which have been done with a view to accomplish the common object attributed to the members of the unlawful assembly. This expression is to be strictly construed as equivalent to in order to attain common object. It must be immediately connected with common object by virtue of nature of object. In the instant case, even the evidence is not laid on this aspect. As pointed out above, the courts below were influenced by the fact that one of the injuries on the person of Ashok was on his head which became the cause of death and from this, common object is inferred.
In Mukteshwar Rai v. State of Bihar, the accused persons were alleged to have formed an unlawful assembly, gathered in a village and set some houses on fire and ransacked. Two persons died as they got burnt and two could not be traced. This Court agreed with the finding of the High Court as to formation of the unlawful assembly. But as to the finding that the common object of the unlawful assembly was to commit murder took somewhat a different view and observed:
"The specific overt acts attributed to A-1 and five others who are said to have actively participated in setting the fire and thrown some of the victims into the fire stand disbelieved. It may also be noted that none of the P.Ws. Is injured and we find from the judgment of the High Court that none of the witnesses say that any one of these appellants were armed. The learned Judge has extracted the incriminating part in each of the witnesses against these appellants. It stated that these accused were identified by those respective witnesses mentioned therein in discussing the case against each of th accused. There is nowhere any mention that any one of these appellants were armed. In such a situation the question is whether these appellants also had a common object of committing the murder. We have given earnest consideration to this aspect. Taking a general picture of the case and after a close scrutiny of the evidence we find that two persons were charred to death. This must have been the result of setting fire to those houses. With regards the other two missing persons it cannot be concluded that they were murdered in the absence of any iota of evidence. Under these circumstances we find it extremely difficult to hold that a common object of the unlawful assembly was to commit murder." We would also like to quote the following passage from Thakore Dolji Vanvirji & Ors. v. State of Gujarat.
20. In the present case it is to be decided whether all the accuseds would be constructively liable. So far as accused, Bharat, is concerned he has been assigned the role of causing blow on the head of the injured by butt of a gun. Satish Babu and Jagat Narain, have been assigned the role of catching hold of the injured, P.W-1, but there is no evidence against the remaining accuseds about any overt act on their part which may constitute offence under Sections 149 and 147 IPC. All the eye-witnesses have made general allegations against the other accuseds of accompanying the accused, named above, with lathi- danda and farsa. No doubt Section 149 IPC is vide in its sweep but in fixing the membership of the accuseds in unlawful assembly and in finding the common object, mere presence in any unlawful assembly does not make them participants in rioting by sharing common object and having necessary criminal intention. Therefore the conviction of all the appellants for offences under Sections 149 and 147 IPC does not appears to be justified. The prosecution has not been able to sustain the charge of rioting. Prosecution has to establish that there was unlawful assembly as defined in Section 141 IPC, that the accuseds were members of that assembly as defined in Section 142 IPC, that force of violence was caused by such assembly or by any member thereof and that it was used in prosecution of the common object of the assembly. The burden of proving the charge lies on the prosecution. Notwithfstanding the large number of persons accused for rioting and consequent difficulty of prosecution to name the specific act of particular accused, the court must see that all the ingredients required for unlawful assembly and rioting are strictly proved by the prosecution before convicting the accuseds.
21. Regarding the conviction of the accuseds for offence under Sections 504 and 506 IPC, the Apex Court in the case of Vikram Johar vs. State of Uttar Pradesh and Another, 2019 (14) SCC 207 has held that follows:-
21. We need to notice Sections 503, 504 and 506 for appreciating the issues, which has come up for consideration, which are to the following effect:-
"503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.-- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
506. Punishment for criminal intimidation.-- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
22. ................................
23. In paragraph No.13 of the judgment, this Court has noticed the ingredients of Section 504, which are to the following effect:-
"13. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC."
24. In another judgment, i.e., Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423, this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, case was registered for the offence under Sections 353 and 506 I.P.C. After noticing Section 503, which defines criminal intimidation, this Court laid down following in paragraph Nos. 11 and 12:-
"11. Xxxxxxxxxxxxx A reading of the definition of "criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC."
22. Now reverting back to the case in hand we find that there is general allegation against the accuseds that after the co-accused, Bharat, injured P.W-1 and he screamed all the accuseds abused and threatened him of life and went away. There is no allegation that such threat consisted of some injury to his person, reputation of property, or they did so with intent to cause alarm to P.W-1 or to cause him to do any act which he was not legally bound to do or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat. Therefore the allegation under Sections 504 and 506 IPC were also not made out against all the appellants.
23. The offence under Section 308 IPC has also been found proved by the trial court against the appellants. There are ocular testimonies of three witnesses of fact in this regard. In law a person commits an offence under Section 308 IPC if he does not act with such intention or knowledge and under such circumstances that, if he thereby caused death he would be guilty of culpable homicide not amounting to murder. In the present case if considered this offence with the motive of only jealousy the offence under Section 308 IPC against accused, Bharat stands proved and not against the other accuseds. The injury of fracture on the left parietal bone of the injured has been found and it is sufficient to bring the case of appellant, Bharat, under Section 308 IPC, because had the injured died, he could have been convicted under Section 304 IPC.
24. Now regarding the offence of catching hold this court finds that such allegations are often made in cases to falsely implicate number of accuseds where the number of injuries on the injured party do not corelate with the number of accuseds. In the present case only one injury on the head of the appellant was found but there were 7 persons implicated by the prosecution. Two of them namely, Satish Babu and Jagat Narain, have been assigned the role of catching hold of injured, P.W-1. The Apex Court in the case of Balwantbhai B. Patel vs. State of Gujarat has held accordingly and set aside the judgment of conviction recorded by the High Court.
25. Regarding the role of exhortation assigned to the accuseds it has been found that it is a week type of evidence as held by the Apex Court in the case Jainul Haque vs. State of Bihar, 1974 AIR SC 0-45. The Apex Court has held in the above noted case that eye-witnesses are prone to exaggerate thing and to involve as many accuseds as possible. The evidence exhortation is, in very nature of things, a week piece of evidence. There is quite often tendency to implicate some persons, in addition to the actual assailants by attributing to that person role of exhortation to the assailants to assault the victim. Unless the evidence in this respect is clear, cogent and reliable no conviction for abetment can be recorded against the person assigned the role of exhortation. In the present case no clear evidence regarding the manner and actual words of exhortation was proved by the prosecution. Hence the role of exhortation assigned to the co-accuseds cannot be accepted. In the present case there is another important aspect of the case. All the accuseds in their statements under Section 313 Cr.P.C have stated that there was jealousy on the part of injured which has resulted into their false implication. Similar allegation has been leveled by the injured against the accuseds stating that since he was employed in the bank and his family was prosperous therefore the accuseds were jealous and they caused the alleged offence against him. Both the sides have set up this motive of offence as jealousy only and nothing more. Although there is ocular testimony of three witnesses proving the fact of the accused, Bharat, causing head injury by the butt of gun to the injured P.W-1, but the defense of the accuseds that the injured himself suffered injury by falling on the utensils kept on the public tap in the night and on account of falling over the heavy utensils brought by halwai in marriages he suffered a solitary injury on his temporal bone. This injury was utilized by the injured to false implicate the appellants in this case since there was already relationship of jealousy between the two parties and the injured got and occasion to falsely implicate seven persons in this case. The defense of the accuseds under Section 313 Cr.P.C has not been examined at all by the trial court before convicting and sentencing the appellant. Nothing has been recorded by the trial court whether the defense set up by the accuseds inspires confidence or not. Its probability or improbability has also not been considered by the trial court. It has only recorded the finding that no effective oral or documentary evidence have been produced by the accuseds to prove that the injured suffered injuries after falling on the utensils kept on the public tap.
26. The Apex Court in the case of Reena Hazarika vs. State of Assam MANU/SC/1249/2018 has held regarding the requirement of Section 313 Cr.P.C "16. Section 313, Code of Criminal Procedure cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an Accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial Under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath Under Section 313(2), Code of Criminal Procedure The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the Accused takes a defence after the prosecution evidence is closed, Under Section 313(1)(b) Code of Criminal Procedure the Court is duty bound Under Section 313(4) Code of Criminal Procedure to consider the same. The mere use of the word 'may' cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an Accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken Under Section 313 Code of Criminal Procedure, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the Accused taken Under Section 313 Code of Criminal Procedure and to either accept or reject the same for reasons specified in writing."
27. Although the trial court has refused to consider the defence of the accuseds under Section 313 Cr.P.C on the ground that there is no oral or documentary evidence in support of the same but this court in exercise of apellate jurisdiction can consider the same. The finding of the court below that there is defence without supporting evidence hence defense of the accuseds set up under section 313 Cr.P.C cannot be considered, is not in accordance with requirement of law. The Apex Court in the case of Reena Hazarika (Supra) has clearly held that the statement of the accuseds under Section 313 Cr.P.C is not a substantive evidence but whether the defence setup therein is acceptable or not has to be considered. Whether the defense is acceptable or not or whether it is compatible or incompatible with the evidence available is an entirely different matter. If there is no consideration at all of the defense taking under Section 313 Cr.P.C., in the given facts of the case, the conviction stands vitiated.
28. In the present case the defence set up was that the injured fell on utensils of halwai in the night and suffered one injury of fracture on his left temporal bone therefrom. No internal damage in the brain of the injured was found by the doctor. It was a simple fracture on parietal bone. The utensils utilized by halwai while preparing food for large number of persons are mostly of heavy metals and have different type of edges and by abruptly falling on such utensils injury on head can occur. It is not absolutely impossible. Due to sudden fall the injury suffered by P.W-1 on head can be suffered by such fall on heavy utensils of halwai. From the statements of P.W-1 it is clear that he has avoided replying to the question from where his family brings the water. The public tap has been admitted to be situated on the gate of the house of the accuseds. It is not improbable that on the public tap infront of the house of the accuseds the utensils were being washed or kept for being washed and the injured stumbled against them and fell on them resulting in injury over his head. He has admitted that the accuseds were jealous of his family and accuseds have said that injureds was jealous of them and therefore there is possibility of false implication of appellants in this case by P.W-1. The trial court has not considered this aspect of defense.
29. After considering the totality of fact and circumstances on record this court find that at the most offence under Section 308 IPC was made out against the accused, Bharat, but on account of non-consideration of the defense of the accused under Section 313 Cr.P.C., the same can also not been sustained.
30. The judgment and order of this trial court is set aside. The office is directed to send back record of the court below along with copy of this judgment and order within three weeks.
31. The criminal appeal is allowed.
Order dated: 31.01.2020 Rohit