Allahabad High Court
Santosh Kumar Shukla vs State Of U.P. on 27 January, 2014
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Judgement Reserved on 20.01.2014 Judgement Delivered on 27.01.2014 Court No.17 CRIMINAL APPEAL NO.348 OF 2013 Santosh Kumar Shukla (In Jail) son of Suresh Chandra Resident of Lalpur Phatak Bharawan, P.S. Atrauli, District Hardoi __Appellant/Accused Versus State of U.P. __Respondent/Prosecution Counsel for Petitioner:- Arun Sinha Counsel for Respondent :- M.Y. Ansari, A.G.A. Hon'ble Vishnu Chandra Gupta,J.
JUDGEMENT This Criminal Appeal under section 374(2) Code of Criminal Procedure (in short 'CrPC') has been preferred against the judgement and order dated 20.02.2013 passed by Additional District and Sessions Judge/TECP-2, Lucknow in Sessions Trial No.968 of 2002 having Case Crime No.291 of 2000, under Section 326 Indian Penal Code (in short 'IPC') and Section 3(2)(5) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short 'SC/ST Act'), P.S. Wazirganj, District Lucknow, whereby the appellant has been convicted and sentenced under Section 326 IPC to undergo rigorous imprisonment for 10 years and fine of Rs.50,000/- and in default of payment of fine one and a half year additional rigorous imprisonment.
The facts in brief for deciding this appeal are that Ram Avatar (PW 2) was working as 'Palledar' at the 'Aarhat' of Ranjeetmal Agrawal situated in Pandeyganj grains market, Lucknow. On 14.08.2000 at about 10 pm (night), accused appellant Santosh Kumar Shukla, working as accountant (Munim) in the aforesaid Aarhat asked Ram Avatar to provide wine for him. Ram Avatar (PW 2) refused to provide the same. Thereafter in the intervening night of 14/15.08.2000 when Ram Avatar was sleeping at the campus of Aarhat, the appellant having animus of not providing the wine came in the mid night and assaulted Ram Avatar with a pointed weapon, namely, 'Parkhi' (an instrument use for picking out the contents from close gunny bags for inspection) in the stomach of Ram Avatar and on account of that injury Ram Avatar cried. The incident was witnessed by Dhani Ram and Ramesh, who were also sleeping in the same Aarhat. The accused appellant managed to escape from the place of occurrence. The witnesses admitted Ram Avatar at Balrampur Hospital where he was medically examined and thereafter the incident was reported to the police of Police Station Wazirganj by the brother of injured Ram Avatar, namely, Ramchandra along with medical examination report by a written report (Ext. Ka-1) on 16.08.2000.
On the basis of aforesaid written report, a chick report was prepared at 9.15 pm (Ext.5) and the case was registered against the appellant in General Diary (Ext. Ka-6) by the police of P.S. Wazirganj at Case Crime No.291 of 2000, under Section 326 IPC and Section 3(2)(5) SC/ST Act. The injured Ram Avatar was medically examined on 14.08.2000 at 2.50 am in Balrampur Hospital by Dr.H.I. Rizvi, Senior Medical Officer, who found following injuries on the person of the injured as mentioned in medication examination report (Ex.Ka-2):
"Punctured wound 0.8 cm x 0.8 cm x depth not proved on right side of abdomen. 7 cm above umbilicus at 11 O'clock position. Crepitation present around the wound suggestive of surgical emphysema."
The injured was admitted in emergency ward and advised for x-ray of stomach. According to Dr. H.I. Rizvi (PW 3), the injury was fresh and the same may be caused by some pointed weapon and likely to be caused at 12.00 O'clock in intervening night of 14/15.08.2000.
Investigation of this case was conducted by Jang Bahadur Singh (PW 4) who prepared the site plan (Ext. Ka-3) and submitted the charge sheet (Ext Ka-4). The court below took cognizance and after committal of the case to the court of sessions charges were framed under Section 326 IPC and Section 3(2)(5) SC/ST Act against the appellant. The appellant denied the charges levelled against him and claimed for trial.
The prosecution examined the informant Ramchandra (PW 1) who proved the written report submitted by him and supported the prosecution story as narrated in FIR. During trial, PW-1 Ramchandra in examination-in-chief admitted that he is not an eyewitness of this case and what he stated is on the basis of information received by him from the injured Ram Avatar. The injured witness Ram Avatar (PW 2) was also examined during trial, who supported the prosecution case and stated that when he was sleeping in Aarhat, the appellant attacked with Parkhi on his stomach and after receiving injury he cried and caught the appellant but the accused appellant managed to escape from the spot. He categorically stated that this incident was seen by Dhani Ram and Ramesh. He also stated that he was medically examined by the doctor and remained in the hospital of 13 days.
Dr. H.I. Rizvi (PW-3) was also examined to prove the injury report. Investigating Officer Jang Bahadur Singh (PW 4) was examined, who proved the site plan and charge-sheet submitted against the accused. S.I. Mangelal was also examined as PW-5, who at the time of commission of crime was posted as Head Constable and scribed the first information report on the basis of written report given by Ramchandra and register the case against the appellant.
Thereafter the prosecution closed its evidence and thereafter accused appellant was examined under Section 313 CrPC, who denied the allegations levelled against him on the basis of evidence of the prosecution and claimed that he has been implicated falsely in this case on account of enmity. In defence, he did not produce any evidence though he has stated in 313 CrPC that he produced the defence.
The trial court after considering the evidence of prosecution and submissions of both the parties acquitted the appellant from the charges levelled under Section 3(2)(5) SC/ST Act and convicted the appellant under Section 326 IPC. Hence this appeal.
I have heard Sri Arun Sinha, learned counsel for the appellant and Sri M.Y. Ansari, learned A.G.A. for the State.
Learned counsel for the appellant confined his submissions to the extent that even if, the evidence of prosecution is taken as such, no offence under Section 326 IPC is made out and at the most, offence under Section 324 IPC would be made out. It was further stated that the appellant is in jail from the date of his conviction which was recorded on 20.02.2013 by Additional District and Sessions Judge/TEPC-2, Lucknow and as such he was submitted that appellant may be released after reducing the sentence for the period, which has already undergone by him as no minimum sentence is prescribed and maximum sentence provided upto three years. It was further submitted that the manner in which the incident was taken place and that only one injury has been caused and the assault has not been repeated, hence lenient view may be taken in favour of the appellant. The appellant is not a previous convict and he is also entitled to the benefit of provisions of provocation.
On the other hand, Sri M.Y. Ansari, learned A.G.A. for the State was submitted that after perusing the material evidence available in the record of the trial court, the trial court has rightly passed the impugned judgment. Learned A.G.A. supported the version of the prosecution.
The main contention of learned counsel for the appellant is that neither from the statement of injured nor from the injury report and from the statement of doctor, it appears that the injury caused to Ram Avatar was grievous one. No supplementary report has been brought on record to demonstrate that injury was grievous. During examination, the doctor did not opined that injury was serious or dangerous to life or grievous in nature.
Learned trial court while convicting the appellant was of the opinion that injury caused by the accused appellant to Ram Avatar was grievous and dangerous to life. The trial court at pages 12 and 13 of its judgment held that on the basis of evidence, it is proved that in the intervening night of 14/15.08.2000 at about 12.00 (night) at the Aarhat situated at Pandeyganj, P.S. Wazirganj, District Lucknow, appellant Santosh Kumar Shukla by using a dangerous weapon made from iron, namely, Parkhi voluntarily assaulted the injured Ram Avatar causing grievous injury, which was dangerous to life and thereby he committed the offence under Section 326 IPC. So far as the commission of offence under Section 326 IPC is concerned, the trial court actually misread the evidence and formed the opinion on the basis of evidence which was not at all available on record.
To establish an offence under Section 326 IPC, the prosecution has to establish first that an accused voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal.
The first ingredient for the offence under Section 326 IPC is that injury should be caused voluntarily having no element of provocation as defined under Section 335 IPC. The second ingredient is to prove that injury caused is grievous and thirdly the weapon classified in Section 326 IPC. In case, any condition mentioned in Section 326 IPC is lacking, offence under Section 326 IPC could not be made out.
Grievous hurt has been defined in Section 320 IPC, which reads as under:
320. Grievous hurt. - The following kinds of hurt only are designated as "grievous": -
First - Emasculation.
Secondly - Permanent privation of the sight of either eye.
Thirdly - Permanent privation of the hearing of either ear.
Fourthly - Privation of any member or joint.
Fifthly - Destruction or permanent impairing of the powers of any member or joint.
Sixthly - Permanent disfiguration of the head or fact.
Seventhly - Fracture or dislocation of a bone or tooth.
Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
The prosecution admittedly has not proved any of the category out of eight categories mentioned under Section 320 IPC. The doctor has not stated that injury was grievous. The injured himself stated that he remained hospitalized for 13 days only, so, 8th condition would also not be attracted. No emasculation, permanent privation of the sight of either eye or of the hearing of either ear or privation of any member or joint was established. It was also not proved that there are any fracture or dislocation of a bone or tooth or permanent disfigurement of the head or face or destruction or permanent impairing of the powers of any member or joint. Therefore, the prosecution has utterly failed to establish that injury caused to Ram Avatar was grievous one.
From the evidence available on record, it appears that hurt has been caused voluntarily by a dangerous weapon which could may be used as an instrument of stabbing. Hence the offence shall squarely falls within the ambit of Section 324 IPC and consequently, I express my concurrence with the submission of learned counsel for the appellant that no offence under Section 326 IPC is made out and only offence under Section 324 IPC is made out against the appellant.
Offence under Section 324 IPC is punishable with imprisonment for three years, or fine or with both.
Having considered the period for which the appellant has undergone, in the opinion of the Court, would be sufficient to meet the ends of justice in the present case for the reason that the only injury was caused by the accused appellant and has not repeated the assault and the weapon used was not a ordinarily used weapon for assault. The weapon used for assault is an instrument of picking the gains from the gunny bags. The appellant is neither previous convict nor has any criminal history.
So far as the calculation of undergone period of the accused appellant is concerned, the record reveals that the accused appellant was arrested on 05.10.2000 and in this regard, an entry was made in General Diary no.61 at 20.30 hours by the police at Police Station Wazirganj. When he was arrested, he was having injuries in his legs and was unable to move, therefore, the appellant was released on bail from the police station on the next day. Thereafter he did not seek any regular bail from the court concerned. The case was also committed to the court of sessions without getting any bail. Therefore, before conviction, he did not remain in jail for a single day. However, when he was convicted in this case, he was taken into custody on 20.02.2013 and since then he is in jail. After judgment and order dated 20.02.2013 passed by the trial court, the appellant served out more than eleven months period of his sentence as a convict.
Considering the facts and circumstances of the case, the appeal is partly allowed. The conviction of the appellant Santosh Kumar Shukla is set aside under Section 326 IPC and is acquitted from the charges levelled under Section 326 IPC but he is convicted under Section 324 IPC and is sentenced for the period undergone and fine of Rs.10,000/-. In default of payment of fine, the appellant will further undergo imprisonment of one month. After realization of fine, a sum of Rs.7500/- shall be paid to the injured of this case. The sentence awarded to the appellant is accordingly reduced to meet the ends of justice in the light of the order passed by this Court.
Let a copy of this judgement be sent to the trial court and also to Chief Judicial Magistrate, Lucknow for compliance of the order passed by this Court without any delay.
The Senior Registrar of this Court shall ensure the compliance of this order forthwith.
Dated: 27.01.2014 akverma