Allahabad High Court
Pankaj Jaiswal vs Narendra Kumar Singh And 2 Others on 19 February, 2020
Bench: Sunita Agarwal, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 42 A.F.R. Case :- CRIMINAL MISC. APPLICATION DEFECTIVE U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 65 of 2016 Applicant :- Pankaj Jaiswal Opposite Party :- Narendra Kumar Singh And 2 Others Counsel for Applicant :- Rajendra Kumar Rathore,Vivek Jaiswal Counsel for Opposite Party :- G.A. Hon'ble Mrs. Sunita Agarwal, J.
Hon'ble Dinesh Pathak, J.
(Per : Hon'ble Dinesh Pathak, J.) Ref: Delay Condonation Application No. 387488 of 2016 On the application under Section 5 of the Limitation Act in moving the application seeking leave to appeal, time was granted to file counter affidavit vide order dated 17.12.2016.
No counter affidavit has been filed, till date.
The explanation given by the applicant for the delay is found satisfactory.
The application under Section 5 of the Limitation Act is hereby allowed. Delay condoned.
The application is treated to have been filed within time prescribed for the purpose.
Order on Appeal Heard Sri Vivek Jaiswal, learned counsel for the appellant at admission stage.
Instant criminal appeal u/s 372 Cr.P.C. has been preferred by the appellant, who is son of informant, Ramesh Chandra Jaiswal (since deceased), challenging the impugned judgement dated 15.3.2016 passed by the Additional District & Sessions Judge, Court, Varanasi in S.T. No. 529 of 1999 (State of U.P. vs. Narendra Kumar Singh & others), convicting the accused Narendra Kumar Singh (respondent no. 1), Ajay Kumar Singh (respondent no. 2) and Shiv Shankar Singh (respondent no. 3) for the commission of lesser offences under Sections 323/34, 325/34, 506 I.P.C., than the commission of graver offences for which they had been charged under Sections 307, 308, 326 & 504 I.P.C. Each of them (accused) has been sentenced to undergo imprisonment for six months under Section 323/34 and three years imprisonment under Section 325/34 I.P.C. along with fine to the tune of Rs.2000/-. In case of default, they shall further undergo three months additional imprisonment. That apart, they have also been sentenced to undergo imprisonment for one year under Section 506 I.P.C. along with fine of Rs.500/-. In case of default, they shall further undergo one month additional imprisonment. All sentences will go simultaneously.
It is pertinent to mention here that Jata Shankar Singh, one of the accused and informant Ramesh Chandra Jaiswal (P.W.1) had died during the pendency of the trial.
As per the FIR version, informant Ramesh Chandra Jaiswal was owner and in possession of House No. B-28/7-A, Ghasiyaritola, P.S. Bhelupur, District Varanasi. On the date of the incident i.e. 16.11.1994 at 9.00 p.m. Jata Shankar Singh s/o Chatradhari Singh, Narendra Singh s/o Jata Shankar Singh, Ajay Kumar Singh, son of Ravi Shankar Singh, all residents of B-28/7-A, Ghasiyaritola, P.S. Bhelupur along with their relative Shiv Shankar Singh s/o Gauri Shankar Singh, resident of village Bhikaripur, P.O. & P.S. Kachwa, District Mirzapur, who were tenants of southern portion of the house, armed with 'katta' (country made pistol), iron rod and hockey stick barged into the house of informant Ramesh Chandra Jaiswal and asked him to vacate the house. While the informant resisted, one of the accused namely, Narendra Singh shot at him by 'katta' intending to kill him. Still, he escaped by breath's distance and tried to run away, the remaining accused chased after him and thrashed him by iron road and hockey stick. While the informant screamed, his servant Bajrangi Lal (P.W. 2) son of Chhedi Lal, resident of D-41/3, P.S. Dashaswamedh, Districk Varanasi, who worked at his cement shop situate outside of his house, rushed to the informant but the accused had beaten him up as well by iron rod and hockey stick. Due to fracas, bypassers and bystanders gathered at the seen, consequently, anyhow lives of the informant and his servant could be saved. Thereafter, the accused threatened them to take their lives and fled away.
In this backdrop, the informant filed the written report dated 16.11.1994 (Ext. Ka-1) at 10.00 p.m. and on the basis thereof, first information report (Ext. Ka-6) was lodged at the P.S. Bhelupur, District Varanasi. Head Clerk, Sri Ram Suchit Yadav (P.W. 6) of P.S. Bhelupur, District Varanasi had endorsed the contents of the written report in chik no. 300, registered as case crime no. 402/1994 against four accused namely, Jata Shankar Singh (since deceased), Narendra Singh (respondent no. 1), Ajay Kumar Singh (respondent no. 2) and Shiv Shankar Singh (respondent no. 3) under Section 307, 308, 326, 504, 506 I.P.C. at P.S. Bhelupur, District Varanasi. The aforesaid version was also endorsed in G.D. at Rapat no. 44.
Injuries inflicted to informant, Ramesh Chandra Jaiswal, P.W. 1 had been medically examined by Dr. Narendra Pratap Singh (P.W.4) on 17.11.1994 at Swami Vivekananda ChiKitsalaya, Bhelupur, District Varanasi. He had opined the age of the informant to be 44 years and had prepared/signed the injury report (Ext. Ka-2) of Ramesh Chandra Jaiswal showing the following injuries :
1& QVk gqvk ?kko vk/kk lseh- xq.ks vk/kk lseh- Åijh vksB ds ckbZ rjQ e/; js[kk ls ,d lseh- dh nwjh ij] jDrlzko gks jgk FkkA 2& QVk gqvk ?kko 1 lseh- xq.ks 1-4 lseh Åijh vksB ds vUn:uh fgLls e/;js[kk ls lVk gqvkA 3& m[kM+k gqvk ck;k lsUVªhy bulhtj nkWr] jDrlzko gks jgk Fkk o nkWr fudy x;k FkkA 4& ck;k ySVjy bulhtj nkWr VwVk gqvk] ftldk VqdM+k fudy x;k FkkA 5& m[kM+k gqvk nkfguk bulsUVªy nkWr vkSj nk;k lsUVªy bulhtj nkWr xk;c Fkk vkSj jDrlzko gks jgk FkkA 6& ck;k lsUVªy bulhtj nkWr vkSj ck;k ySVjy bulhtj nkWr o ck;k dsukbu nkWr vkSj igyk izheSjy m[kMs+ gq, Fks] jDrlzko gks jgk Fkk vkSj nkWr xk;c FkkA 7& QVk gqvk ?kko 1 lseh- xq.ks 1@2 lseh- ck, vksB ds vUn:uh fgLls esa e/; js[kk ls lVk gqvkA 8& uhyxw 4 lseh- xq.ks 2 lseh- nkfgus iSj ij ,M+h ls lVk gqvkA 9& nnZ dh f'kdk;r Nkrh ij lkeus dh vksj nkfgus vxzckgw rFkk Åijh fgLls esaA With respect to the aforesaid injuries, Dr. Narendra Pratap Singh has opined that injury nos. 1, 2, 7 & 8 were simple in nature, caused by 'Kundala' (Blunt object) whereas injury nos. 3, 4, 5 & 6 were severe in nature which were also caused by 'Kundala'(Blunt object).
On the same day i.e. 17.11.1994 at about 12.10 a.m. Bajrangi Lal, P.W. 2 was also medically examined by Dr. Narendra Pratap Singh, who had prepared and signed the medical report (Ext. K-3) showing three injuries which are given below :
1& QVk gqvk ?kko vk/kk 3-5 lseh xq.ks -5 lseh ck, dku ds fiUuk ij] ck, dku ds ihNs jDRkLkzko gks jgk FkkA fiUuk dk fdukjk Qvk gqvk FkkA 2& [kjklnkj uhyxw 2 lseh- xq.ks 1-5 lseh- ekFks ij ck, rjQ ckbZ HkkS ls 1-5 lseh- Åij vkSj e/; js[kk ls 2 lseh- nwjh ij] 3& nnZ dh f'kdk;r ck, gkFk ijA On FIR being lodged, the case was entrusted to Sri Suresh Yadav, Sub-Inspector for investigation who has recorded the statement of P.W. 1 on the same day, inspected the place of occurrence and prepared the site plan (Ext. K-4). On 17.4.1994 he arrested Narendra Kumar Singh, Ajay Kumar Singh and Shiv Shankar Singh and recorded their statement in the case diary. Fourth accused Jata Shankar Singh had surrendered in the court on 8.12.1994. His statement was recorded in the case diary on the same day.
After thorough investigation, the investigating officer had submitted charge-sheet (Ext. ka-5) under Section 307, 308, 326, 504, 506 I.P.C., P.S. Bhelupur, District Varanasi. Vide order dated 31.3.1995, the trial court had taken cognizance of the offence and given copy of evidence to the accused under Section 207 Cr.P.C. Thereafter, the trial court vide order dated 17.7.1999 committed the case to the Court of Sessions for trial. The trial court vide order dated 1.11.2010 framed charges against the accused namely, Narendra Kumar Singh, Ajay Kumar Singh and Shiv Shankar Singh under Section 307, 308/34, 326/34, 504 and 506 I.P.C. Apart from that, Narendra Kumar Singh had been separately charged for the offence under Section 307 I.P.C.
To prove the guilt of the accused, the prosecution has examined as many as six witnesses. Out of them, three are the witnesses of fact whereas the remaining three are formal witnesses.
P.W. 1 Ramesh Chandra Jaiswal was the first informant of the occurrence and had proved his written report as Ext. K-1. He had deposed that he was the sole owner of the house in question i.e. B-28/7A, Ghasiyaritola, District Varanasi and resided there. Jata Shankar Singh was the tenant of the ground floor towards the southern portion of the house. According to his version, on 16.11.1994 at 9 p.m., accused Narendra Kumar Singh armed with country made pistol, Ajay Kumar Singh armed with hockey stick, Shiv Shankar Singh armed with iron rod and Jata Shankar Singh barged into the flat of the informant and threatened him to vacate the same. In the meantime, Narendra Kumar Singh had shot fire at him but he escaped by breath's distance. He further stated that, while he tried to run away, accused persons had caught and thrashed him by hockey stick and iron rod due to which he sustained grievous injuries. On his screaming, P.W. 2 Bajrangi Lal, servant of the informant who worked at his cement shop, reached there but he had also been thrashed by iron rod and hockey stick, consequently, he fainted on the floor. In the meantime, several people gathered there and intervened in the matter. P.W. 1 further stated that the aforesaid incident was witnessed by PW-3, Ashok Kumar and one Rajesh. Thereafter, he went to the police station to lodge written complaint. The informant also stated that after FIR being lodged, he had been taken by the investigating officer at the place of occurrence and had been sent for medical examination accompanied by a constable.
P.W. 2 Bajrangi Lal who is injured witness has corroborated the statement of P.W. 1 with respect to the occurrence in his deposition. P.W. 3 Ashok Kumar who has been produced as a witness of the incident, has also corroborated the occurrence. P.W. 4 Dr. Narendra Prapat Singh has proved the medical report/inury report (Ext. K-2) of Sri Ramesh Chandra Jaiswal and medical report/injury report (Ext. K-3) of Bagrangi Lal. P.W. 5 Sri Suresh Chandra Yadav, the investigating officer has deposed the sequence of investigation as mentioned in the case diary. He has proved the site map (Ext. K-4) and charge-sheet (Ext. K-5) filed against the accused. P.W.6, Head Clerk, Sri Ram Suchit Yadav has proved the Chik report No. 300 (Ext. K-6) which has been written by him on the basis of written report filed by the informant on 16.11.1994 at about 22 p.m. He has also proved the carbon copy of G.D. Entry (Ext. K-7).
The prosecution has submitted several documentary evidence to prove the ownership and possession of the informant over the property in dispute, like as copy of plaint of O.S. No. 162/1994 (Ramesh Chandra vs. Phulvasa Devi & others) (Ext. Ka- 8), Death certificate of Vishwanath Pandey (Ext. Ka-10), Death certificate of Smt. Chabiraji Devi (Ext. Ka-11), Copy of the registered sale deed dated 9.12.1993 (Ext. Ka-12) executed in favour of the informant Ramesh Chandra Jaiswal, Copy of the order dated 25.2.1994 passed in O.S. No. 162 of 1994 (Ramesh Chandra vs. Phulvasa Devi & others) (Ext. Ka-13), Copy of Misc. case no. 259/1989 (Jata Shankar vs. Shiv Nath Pandey) (Ext. Ka - 14), Copy of the order dated 1.8.1992 passed in Misc. case no. 259/89 (Ramesh Chandra vs. Phulvasa Devi & others) (Ext. Ka-15), Copy of the Commissioner's report filed in O.S. no. 760/1994 (Ramesh Chandra vs. Phulvasa Devi & others) (Ext. Ka-16), Copy of the affidavit filed by Ramesh Chandra Jaiswal in O.S. No. 760/1994 (Ramesh Chandra vs. Phulvasa Devi & others) (Ext. Ka - 17) Accused namely, Jata Shankar Singh (since deceased), Narendra Singh, Ajay Kumar Singh and Shiv Shankar Singh had made their statement under Section 313 Cr.P.C. They had denied the alleged incident and pleaded their innocence. They stated that they had been falsely incriminated in the alleged offence and claimed for trial.
In addition to the answer of the questions put to the accused under Section 313 Cr.P.C., Jata Shankar Singh has stated that on the date of occurrence, he was not present in the house. After returning home, he came to know that Ramesh Chandra Jaiswal, with whom he is prosecuting, came along with police personnel of P.S. Bhelupur, District Varanasi, had ransacked and plundered his house. They had flailed Narendra Kumar Singh and others, who were present in the house and illegally roped in them in a false criminal case. With respect to the same incident, Narendra Kumar Singh had also initiated separate criminal proceedings.
Accused Narendra Singh has deposed that true owner of the house in dispute was Smt. Phulvasa Devi and in respect of house in question Ramesh Chandra Jaiswal was pursuing civil litigation. On the date of occurrence at about 10 a.m. Ramesh Chandra Jaiswal alongwith police personnel of P.S. Bhelupur barged into his house and plundered it. On resistance, they flailed him and illegally incriminated all of them in false case.
Accused Ajay Kumar Singh stated that on the date of occurrence, he was present at the house of his relative Jata Shankar Singh and in the night the police came and plundered the house. On resistance being made, they had falsely incriminated Narendra Singh and Shiv Shankar Singh in false case. Accused Shiv Shankar Singh had also made statement in the same way corroborating the statements of other three accused.
Accused had not examined any other independent witness in their defence, rather filed several documents to prove their ownership over the property in dispute. To prove their victimization, they filed cross-case with respect to the same incident registered as case crime no. 125/1996. In the aforesaid case, final report dated 3.12.1997 had been submitted by the investigating officer. Feeling aggrieved, the accused preferred protest petition registered as Misc. case no. 504/2000. After considering the statement under Section 200 Cr.P.C. made by Jata Shankar Singh and statement of witnesses namely, Santosh Kumar, Narendra Kumar Singh and Ajay Kumar Singh under Section 202 Cr.P.C., the trial court passed an order dated 9.6.2000 summoning Ramesh Chandra Jaiswal under Section 447, 379 I.P.C.
After considering the facts and circumstances of the case and the documentary evidence available on record, the trial court found that no offence under Section 307, 308 & 326 I.P.C. was made out, rather convicted the accused for the commission of lesser offence under Section 323/34, 325/34 and 506 I.P.C., as mentioned in the preceding paragraphs.
Feeling aggrieved against the conviction of accused for the lesser offence, present appeal has been preferred by the appellant who is the son of the informant late Ramesh Chandra Jaiswal seeking conviction of the accused, for the incident in question, in accordance with law.
Learned counsel for the appellant submitted that the punishment awarded by the trial court under Section 323/34, 325/34, 506 I.P.C. to the accused/respondents is disproportionate to the injuries sustained by the informant, Ramesh Chandra Jaiswal, whereas serious injuries were inflicted which could cause homicidal death of the informant. Therefore, accused should also be punished under Section 307, 308, 326 and 504 I.P.C. He further submitted that conviction for lesser offence without framing any charges in that respect, had illegally been awarded, on the basis of surmises and conjectures, which is unjustified. Sri Ramesh Chandra Jaiswal, the father of the appellant had received fatal injuries, which were nine in number but his medical report and the surrounding circumstances had not been properly appreciated by the trial court whereas the statement of Ramesh Chandra Jaiswal was fully corroborated by other relevant evidence available on record. It is further submitted that cross-FIR filed by the accused clearly proved their presence on the spot, who had beaten up Ramesh Chandra Jaiswal with an intention to cause his death.
We have carefully considered the submissions advanced by learned counsel for the appellant and perused the impugned judgment passed by court below and the papers filed by the appellant.
Occurrence of crime was the result of property dispute. Both the parties were claiming their right, title and possession over the house in dispute i.e. house No.B-28/7-A, Ghasiyaritola, P.S.Bhelupur, Varanasi. The informant Ramesh Chandra Jaiswal was claiming his right and title over the property in dispute on the basis of the registered sale deed dated 9.12.1993 (Ext. K-12) which had been executed by the heirs and legal representatives of Shiv Nath Sharma through the power of attorney holder. According to the prosecution case, the house in dispute orginally belonged to one Vishwanath Pandey who died on 25.5.1988. His death certificate had been filed as Ext. K-10. He was succeeded by his son Shiv Nath Sharma who also died on 13.1.1991, his death certificate had been filed as Ext. K-11. After death of Shiv Nath Sharma, his heirs had executed registered sale deed in favour of the informant. At the time of the sale deed, when the informant got the possession of the property in dispute, Jata Shankar was residing in a flat situate towards southern portion of the house. Ramesh Chandra Jaiswal (P.W.1) had filed a suit registered as O.S. no. 162/1994 (Ramesh Chandra Jaiswal vs. Smt. Phulvasa Devi w/o Jata Shankar) for permanent injunction and cancellation of the alleged Will deed. On the other hand, accused were claiming their right and title on the basis of an unregistered Will Deed dated 21.5.1988, from which Smt. Phulvasa Devi wife of Jata Shankar had derived her right and title over the property in dispute. Smt. Phulvasa Devi had also filed a suit being O.S. No. 760 of 1994 for a direction to the Senior Superintendent of Police to restrain the Ramesh Chandra Jaiswal from interfering in her peaceful possession over the property in question. At a later stage, after the date of occurrence, she amended the plaint seeking dispossession of Ramesh Chandra Jaiswal from the house in question.
The trial court entered into the civil dispute between the parties and recorded a finding with respect to the title and possession of the parties over the property in dispute. At this juncture, we may note that we are not supposed to go into the merits of the title and possession of the parties over the property in dispute because of the nature of proceedings before us.
As per the prosecution case, late Ramesh Chandra Jaiswal was the owner of the house in question and was residing in it's northern portion whereas accused Jata Shankar and others were residing, as a tenant, towards the southern portion of the house in dispute. On the date of incident i.e. 16.11.1994 at about 9.00 p.m. accused barged into the flat of the informant and asked him to vacate the premises in question. While the informant had resisted their conduct, one of the accused namely, Narendra Kumar Singh had shot fire at him who escaped by breath's distance and tried to run away from the seen but the accused thrashed him by iron rod and hockey stick inflicting several injuries. While he raised alarm, Bajrangi Lal, who is his servant and worked at his cement shop, reached there to save him but he had also been beaten up by the accused inflicting injuries. By-passers and by-standards who had heard fracas, gathered on the spot and due to their intervention, the informant and his servant could save their lives.
After perusing the documentary evidence available on record, the trial court came to the conclusion that mutation case decided in favour of the informant Ramesh Chandra Jaiswal on the basis of the registered sale deed dated 9.12.1993 and appeal filed by Smt. Phulvasa Devi wife of Jata Shankar against the mutation order was pending and the informant Ramesh Chandra Jaiswal was in possession over the property except southern portion of the house, which was in the tenancy of Jata Shankar since the time of the original landlord. In this back ground, trial court came to the conclusion that accused barged into the house of Ramesh Chandra Jaiswal in furtherance of the common intention to cause him harm which resulted into occurrence in question.
With respect to the same occurrence, accused had also lodged an FIR registered as case crime no. 125/1996 at a belated stage. After due investigation, the investigating officer submitted final report, against which present accused had preferred protest petition which was converted into the complaint registered as complaint case no. 504/2000 under Section 447 and 379 I.P.C. The impugned judgement reveals that both the parties were prosecuting two civil litigations and four criminal cases, details of which are mentioned as below :
1) O.S. No. 162/1994 (Ramesh Chandra vs. Phulvasa Devi & others) which was filed by the informant (Ramesh Chandra Jaiswal) against Smt. Phuvasa Devi wife of Jata Shankar (accused) for permanent injunction with respect to the house in question except the possession of the flat which is in the possession of Jata Shankar. Subsequently, by way of amendment, new relief had been sought for cancellation of will deed dated 21.5.1988 which was allegedly executed by the original owner in favour of Smt. Phulvasa Devi.
2) O.S. no. 760/1994 was filed by Smt. Phulvasa Devi for injunction and at subsequent stage she added a relief for possession by way of amendment after the incident-in-question had occurred.
3) FIR registered as case crime no. 125/1996 (now converted into complaint case no. 504/2000 under Section 447 and 379 I.P.).
4) Case crime no. 23 of 2008 with respect to the incident dated 29.12.2007 under Section 452, 323, 504, 506, 308 I.P.C. filed by Smt. Gauri Yadav wife of Bajrangi Lal against Jata Shankar and others. Aforesaid FIR was registered as S.T. no. 414/2009.
5) FIR registered as case crime no. 540/2008 (State vs. Jata Shankar) under Section 147, 452, 323, 504 & 506 I.P.C.
6) Case crime no. 375/2008 under Section 147, 452, 324, 323, 504 & 506 I.P.C.
Series of litigations on the civil and criminal side evince the indulgence of the parties for the title and possession over the house in question, due to which they bore enmity against each other.
In the instant matter, we are confining ourselves to the incident which took place on 16.11.1994 at 9 p.m., in which P.W. 1 and P.W. 2 had sustained injuries. P.W. 1 clearly deposed that accused respondents in furtherance of the common intention barged into his house and dragged him from his flat to the lawns within the precincts of the house. He further deposed that his servant Bajrangi Lal had also sustained injuries, who came to his rescue. P.W. 2 had corroborated the statement of P.W. 1 that while he went on the spot after hearing the sound of gunfire and fracas, he saw the accused beating Ramesh Chandra Jaiswal and, while he tried to interpose himself in the scuffle, he had also sustained injuries. P.W. 3 Ashok Kumar had also corroborated the statement of P.W. 1., stating that after hearing the fracas, he went on the spot and saw that accused persons were beating up Ramesh Chandra Jaiswal and Bajrangi Lal.
Learned counsel for the appellant has emphasized the use of katta, by which informant was shot, in the crime scene and submitted that accused persons should have been convicted for the graver offence. He has tried to portray the role of charged person as an offender who had intentionally shot fire and attempted to murder and, or, attempted to commit culpable homicide of an informant. Close scrutiny of impugned judgment evince the coherent and justifying approach of the trial court, after considering the circumstances and evidence available on the record, in negating the commission of crime u/s 307, 308 and 326 IPC.
"Intention" or "knowledge" are two alternative statutory elements to hold any person guilty for the commission of offence u/s 307 and 308 IPC. Therefore, one should have mens-rea intending to commit murder or should possess knowledge that overt act, in all probability, would cause death of the victim. Term "attempt" as embodied in the aforesaid sections could stem from the specific intention to commit murder and such blameworthy condition of mind could be gathered from the direct or circumstantial evidence, including the conduct of accused. Mere bodily injury capable of causing death or not, are not sufficient to hold any person guilty for committing crime under aforesaid sections.
The allegations of the prosecution with regard to use of country made pistol during scuffle between the parties, while the accused barged into the house of the informant, is not supported by any evidence. Except the statement of P.W. 1, no one had corroborated his version with respect to use of firearm. P.W. 2 and P.W. 3, both had stated that they rushed towards the place of occurrence after hearing the sounds of gunshot and fracas, meaning thereby both the witnesses were not present at the relevant time when Narendra Kumar Singh had allegedly shot fire at informant (P.W.1) Ramesh Chandra Jaiswal. Even otherwise, used cartridge was not found on the spot. The investigating Officer had not shown any recovery of alleged 'katta' and empty cartridge used in the crime. By any stretch of the imagination, it cannot be said that at the time of the incident 'katta' was used with intention to kill the informant who allegedly escaped by breath's distance which could, otherwise, have caused his death, in case, he came in its the range. The medical reports of P.W. 1 & P.W. 2 dated 17.11.1994 (Ext. K - 2 & 3 respectively) clearly revealed that blunt object had been used by the accused while they had allegedly attacked on P.W. 1 and beaten up P.W. 2. The injury report of P.W. 1 shows nine injuries, most of them, according to the Doctor, could be caused by a blunt object. There was a cut and abrasion on his lips and jaw. A contusion has been shown at his ankle of right leg. As per the medical report of P.W. 1, Dr. Narendra Pratap Singh opined that injury nos. 1, 2, 7 & 8 are simple in nature which could be caused by blunt object and injury nos. 3, 4, 5 & 6 are severe in nature which could be caused by blunt object as well and all the injuries were fresh and blood was oozing from the wound. In medical report it is show that three tooth of the informant were broken and not present in mouth and one was ruptured. The probability of infliction of such injuries is quite possible when two parties were engaged in fierce face-off. In the medical report, there is no sign of injury on the other part of the body of the informant except, injury no. 8 which has been shown as contusion on the ankle of the right leg. Injuries shown in the medical report are not capable of causing death of the victim.
The allegation made by prosecution with respect to the shot fired from katta (country made pistol), thus, is not corroborated by any evidence, as discussed by the trial court. Even, counsel for the appellant has shown his helplessness to show any credible evidence in this regard. Mere injury caused to P.W.1 and P.W.2 cannot be made the solitary basis for conviction of the accused for commission of crime under Sections 307 and 308 IPC. Non recovery of alleged 'katta' and empty cartridge, use of which have been heavily relied upon by the prosecution in making out the genesis of crime, totally wiped out the accusation of the prosecution for commission of offence under the aforesaid sections. As such, the graver offences are not proved beyond reasonable doubt.
After considering the medical report and circumstances in totality, it cannot be said that the accused have made attempt to murder or attempted to commit culpable homicide as defined under Section 307 and 308 I.P.C. There are no such circumstances to suggest the intention of the accused persons for committing homicidal death of the informant.
Learned trial court has also examined the facts and circumstances of the prosecution case in light of the ingredients for commission of offence, under Section 326 IPC and negate the charge, inasmuch as, no dangerous weapons or means had been found to be used by accused in the crime scene for voluntarily causing grievous hurt to the prosecution.
Charge under section 504 IPC was also framed vide order dated 01.11.2010, against accused/respondent but same has not been dealt with by the trial court. We have appreciated the circumstance of the occurrence as discussed in the impugned order. There is no intentional insult committed by the accused to provoke the prosecution, intending or knowing that such provocation would cause another to break the public peace or to commit any other offence. Instant matter at hand is a result of property dispute between the parties and, as per prosecution case, the aggression was on the part of accused, though accused have filed cross case with respect to same incident showing the aggression on the part of instant prosecution in ensuing the crime. Therefore, statutory elements as embodied u/s 504 IPC are not satisfied and no commission of offence is made out therein.
After the appreciation of evidence and considering the circumstances, learned court below has convicted the accused for lesser offence u/s 323/34 and 325/34 IPC. Learned counsel for the appellant has submitted that the trial court has illegally passed the conviction order for the lesser offence without framing any charge against the accused under the aforesaid sections. We do not agree with the submission made by learned counsel for the appellant. Considering the provisions as embodied u/s 221, 222 and 464 Cr.P.C., Hon'ble Apex Court has expounded in the case of Dinesh Seth vs. State of N.C.T. of Delhi, (2008) 14 SCC 94 that non framing of charges or some defect in drafting of the charges would not vitiate the trial. Para '21' of the said judgment quoted below :
"21. The ratio of the abovenoted judgments is that in certain situations an accused can be convicted for an offence with which he may not have been specifically charged and that an error, omission or irregularity in the framing of charge is, by itself not sufficient for upsetting the conviction. The appellate, confirming or revisional court can interfere in such matters only if it is shown that error, omission or irregularity in the framing of charge has caused prejudice to the accused and failure of justice has been occasioned."
The concept of punishing the accused for a lesser offence than the one for which he was charged has been discussed in detail by the Apex Court in the matter of Rafiq Ahmed @ Rafi vs. State of U.P., AIR 2011 SC 3114, while considering the two Full Bench decisions of Apex Court and two decisions of Constitutional Bench, and expounded in para '31' :
"31. As is evident from the above stated principles of law in various judgments, there is no absolute bar or impediment, in law, in punishing a person for an offence less grave than the offences for which the accused was charged during the course of the trial provided the essential ingredients for adopting such a course are satisfied."
Reverting to the facts and circumstances of the case at hand, we find that with respect to the incident in question both sides had lodged FIR showing injuries caused by other side. Matter at hand relates to the FIR lodged by Ramesh Chandra Jaiswal (since deceased) who and his servant Bajrangi Lal, had sustained injuries mainly on the face as evident from their medical reports (Ext Ka '2' and Ext Ka '3'), respectively. After framing charges, full and fair opportunity of hearing had been afforded to the parties. Thus, precisely it was well within the knowledge of the parties as to what were the accusation made by the prosecution and accordingly, other side had taken his defence. Learned trial court has negated the charges u/s 307, 308, 326 IPC, inasmuch as, ingredients of commission of offence under aforesaid sections are not satisfied. The court below has punished the accused for a less grave offence of cognate nature, i.e. u/s 323 and 325 IPC, whose essentials are satisfied with the evidence on record. Voluntarily causing hurt/voluntarily causing grievous hurt as embodied u/s 323 and 325 of IPC are alike the main ingredient of Section 326 IPC i.e voluntarily causing grievous hurt, which was one of the offence under trial, and after careful consideration of fact and circumstances of the case trial court had rightly convicted the accused for an offence of lesser gravity, which has been proved by the prosecution beyond reasonable doubt. No prejudice can be said to have been caused to either side owing to non framing of charges under the sections under which punishment for the offence of lesser gravity has been awarded.
We are of the considered view, after perusing the impugned order and analyzing the circumstances of the case, that the trial court has rightly convicted the accused for commission of the offences u/s 323/34, 325/34 and 506 I.P.C. on account of the injuries sustained by the informant (P.W.1) and his servant Bajrangi Lal (P.W.2). Other offences of graver nature, qua the charges framed, are not proved beyond reasonable doubt satisfying their statutory elements. There is no illegality or infirmity in the impugned judgment passed by court below warranting interference of this court in an appeal filed on behalf of the informant. We find no good ground to alter or modify the impugned judgment for conviction of the accused for the offences of higher gravity.
Resultantly, the instant appeal is dismissed being devoid of merits. Impugned judgment and order dated 15.03.2016 passed by the Additional District & Sessions Judge, Court, Varanasi in S.T. No. 529 of 1999 (State of U.P. vs. Narendra Kumar Singh & others) convicting the accused under Sections 323/34, 325/34, 506 I.P.C. is hereby affirmed.
Date : 19.2.2020 nd.