Lalta Prasad And (2) Ors. vs State Of U.P. on 23 May, 2013

[Cites 11, Cited by 4]

Allahabad High Court

Lalta Prasad And (2) Ors. vs State Of U.P. on 23 May, 2013

1. Challenge in this criminal revision are the judgements of trial court and of appellate court having order dated 29.10.2002 passed by Sessions Judge, Faizabad in Criminal Appeal No. 12 of 1999 confirming the judgement and order dated 20.02.1999 passed by 1st Judicial Magistrate, Faizabad convicting and sentencing the revisionists under Sections 323/34, 324/34 and 325/34 I.P.C with simple imprisonment of six months under section 323/34 IPC, simple imprisonment for one years under Section 324/34 IPC and simple imprisonment of one year and fine of Rs. 500/- under Section 325/34 IPC to each of the accused revisionists in criminal case No. 2517 of 1998.

2. The factual matrix of the case in short is that informant Ram Jash gave a written information (Ext.Ka-1) to police station of Inayatnagar District Faizabad against the revisionists Lalta Prasad, Jalipa, sons of Raj Bahadur Yadav, Jagdhar, son of Shitla prasad Yadav and along with Ram Prem @ Dhodhey, son of Shiv Prasad Yadav on 03.11.1987 at 10.30 a.m. which was registered in general diary at serial no. 5 (Ext.Ka-8). In this written report, it has been mentioned by Ram Jash that all the four accused came at the door of informant and asked him to come out from their house and pay their money. When Ram Jash and Ram Baran came out of the house, the accused persons started assaulting them. Kedar Pandey and others intervened and saved them. On the basis of this written report NCR was drawn and Chitthi Majrabi were issued for medical examination from the police station to Ram Jash and Ram Baran. Ram Jash, the informant was medically examined on 03.11.1987 at 3.10 p.m. but not on the basis of Chitthi Majrabi. He was examined on his own behalf as shown by doctor "brought by self". The following injuries were found on the person of Ram Jash by Dr. K.U. Ahamad, EMO, District Hospital, Faizabad as mentioned in the injury report (Ext. Ka -4) prepared in the hospital.

i. Traumatic swelling 11 c.m. X 5 c.m. on the back of lower ½ of the right forearm and wrist. Tenderness present. Kept in observation. Adviced X-ray.

ii. Contusion 8 c.m x 2 c.m. on the left scapular region.

iii. Incised wound 7 c.m. X 2 c.m. X muscle deep on the outer and lower 1/3 portion of right leg.

3. All the injuries were simple in the nature. Injuries no.(ii) caused by some blunt object. Injury No.(iii) caused by sharp edged weapon and injury No.(i) kept for observation, duration of injuries found to be about half day old.

4. Supplementary report (Ext.Ka-2) of Ram Jash was also proved. Fractured of lower 1/3 of right radius bone seen.

5. The injuries of Ram Baran were also examined on 05.11.1987 at 12.15 p.m. by Medical Officer of District Hospital Faizabad Dr. R.P. Pandey (P.W-4), but not on the basis of Chitthi Majrubi and found following injuries on the person of Ram Baran as mentioned in injury report (Ext.Ka-3).

(i) lacerated wound with hard scale without pus 1.15 cm x 0.4 cm bone deep on front of right leg 8 c.m. inferior to right knee.

(ii) Lacerated wound with hard scale without pus 1.5 cm x 0.4 cm bone deep on front of right leg 5 cm inferior to injury no.1.

6. All the injuries were found simple in nature caused by blunt object. Duration is about 2 to 3 days old.

7. On the basis of injuries mentioned in medical report the case was converted under Section 323 to 324 and 325 IPC after giving Case Crime no. 342 of 1987 after making entries (Ext.Ka-9) in the general diary as serial No. 16 at 10.35 a.m. on 11.11.1987. The police after investigation filed charge sheet (Ext.Ka-6) against the revisionists. Trial of Ram Prem @ Dhodhey was separated as he was absconder. The charges against the accused/revisionists were framed under Section 323, 324, 325 IPC with the help of Section 34 IPC. Accused persons denied the charges and claimed their trial. The prosecution to substantiate its case examined Ram Baran (PW-1) the injured, Ram Jash (PW-2) informant of the case and also injured, Ramu (PW-3) an eye witnesses of the incident, A.K. Srivastava, Radiologist (PW-4) who prepared the supplementary report of Ram Jash, Dr. R.P. Pandey (PW-5) who medically examined injured Ram Baran, Dr. K.U.Ahamad (PW-6) who medically examined Ram Jash, (PW-7), SI Braj Raj Singh, the first investigation officer and B.D. Sharma S.I. (PW-8) the second Investigation Officer of the case. Revisionists were examined under Section 313 CrPC after close of the prosecution evidence. They claimed their false implication due to enmity and did not adduce any evidence in defence. The trial court after appreciating the evidence on record convicted and sentenced the revisionists as stated above. Aggrieved by the aforesaid conviction and sentence recorded by the trial court, revisionists preferred an appeal having Criminal Appeal No.12 of 1999 before the Sessions Judge who on his turn dismissed the appeal and confirmed the conviction and sentence recorded by the trial court. Hence this revision.

8. Learned counsel for the revisionists contended that this is a case of misreading of evidence by both the courts below. The conviction and sentence recorded by the courts below is based on perverse findings and are liable to be set aside and this revision deserves to be allowed. To substantiate his submissions, he pointed out the evidence which according to him was misread while recording the findings of facts.

Firstly-In the first information report no weapon of assault has been mentioned. During investigation the weapon attributed to the accused were Lathi, Danda and Ballam. The witnesses examined in the court further made improvements and introduced Pharsa.

Secondly- In the statement of Ram Baran (PW-1) he stated that all the four accused were armed with their respective weapon assaulted his brother Ram Jash. He denied that he got any injury of Pharsa but he stated that Ballam hit his left leg and lathi was also hit on his left leg. Pharsa injury was caused to Ram Jash and his one hand was also broken. He categorically stated that he and his brother both got their medical examined in the hospital on the same day. This statement is not in consonance with the documentary evidence produced by the prosecution in the form of FIR and injury reports of injured persons Thirdly- In the statement of Ram Jash (PW2) he categorically stated that Lathi of Jagdhar hit his hand. This witnesses categorically stated that Ram Baran was assaulted by Lathi, Pharsha and Ballam by the accused person. He also stated that accused persons assaulted him with lathi Pharsha and Ballam. However, he categorically stated that none of the accused assaulted with knife. Later on, he changed his version and said that his brother did not receive any injury of Pharsa. However he received injury of Ballam. He categorically stated that he got Pharsa injuries on his leg and no Ballam injuries were caused to him. When specially asked during cross examination, this witnesses did not able to give any explanation of not mentioning any weapon in the first information report. This statement is also not in consonance with the documentary evidence produced by the prosecution in the form of FIR and injury reports of injured persons.

Fourthly- Another eye witness Ramu is also the real brother of both Ram Jash and Ram Baran. This witness categorically stated that Ram Baran got one Pharsa injury and Ram Jash got two Ballam injuries. This statement is also not in consonance with the documentary evidence produced by the prosecution in the form of injury reports of injured persons. His Statement is also contradictory with other two eye witnesses examined by prosecution.

Fifthly- The finding recorded by the trial court is at page 5, in which it has been categorically held that on the basis of statement of Dr. R.P. Pandey (PW-5) that injuries to Ram Baran could not be caused either by Bhala or Ballam but in spite of that the court said that the case of prosecution has been supported by Ram Baran though the evidence of Ram Baran is conflicting with the medical evidence. On the contrary, the findings recorded by the trial court that injuries to Ram Jash were caused by some pointed weapon.

9. In the alternative, the learned counsel for appellants submitted that the appellants remained in jail for more than 3 weeks. The incident is of 2002. More than 10 years have passed. So if Court comes to this conclusion that conviction is sustainable the appellants be awarded sentence of period already undergone and rest of period of sentence be converted into fine.

10. It is well settled law that while exercising the powers of revision the concurrent findings of fact recorded by the courts below should not be interfered with unless there is a case of misreading of evidence or of non consideration of material and admissible evidence or of considering such evidence which is not admissible at all. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452, at page 454 hon'ble Supreme Court has held while discussing the scope of powers of High Court under section 397 read with section 401 CrPC :

"5. Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."

11. In State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659, at page 664 the Apex Court held as under:

"22. The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 Cr.P.C. Section 401 Cr.P.C. is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court".

It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 Cr.P.C. conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 Cr.P.C, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.

23. On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn. in which it is observed thus: (SCC p. 651, para 5) "The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."

24. It is necessary to note that in the case of Duli Chand the High Court had re-appreciated the whole evidence and confirmed the findings of the two courts below. This Court, therefore, did not interfere with them.

25. We, therefore, find that there were no grounds available with the High Court to upset the verdict of conviction and sentence passed by the two courts and direct acquittal of the accused."

12. It is settled rule of appreciation of evidence that the statement of witnesses as a whole should be taken into consideration and not the stray sentences from the evidence. Mere discrepancies regarding number of below or seat of injuries or which injury caused when and in what manner during course of incident is not material discrepancies. The FIR is not encyclopedia. It is not in dispute that lathi sticks and sharp or pointed weapons were used at the time of commission of the crime. The injured received injuries of blunt as well as of sharp edged weapon. Informant was medically examined on the same day. The evidence of injured witness cannot be brush aside for such type of discrepancies pointed out by the counsel for the revisionists. I, therefore, find that there were no grounds available to this Court to upset the verdict of conviction passed by the two courts and direct acquittal of the revisionists.

13. It is not disputed that incident was occurred in year 1987. The lower courts take more than 12 years to conclude the trial as is evident from the date of verdict of Magistrate i.e. of 18.2.1999. Thereafter appellate Court took more than 3 years to decide the appeal. This Court on his turn could able to hear this revision after more than 10 years. The accused revisionists were taken into custody to serve sentence at the time of dismissal of appeal on 29.10.2002. They have been granted bail by this court vide order dated 13.11.2002. They were said to have been released from jail on 18.11.2002. As such the revisionists remained in jail for about three weeks.

14. Having considered the submissions advanced by the counsel for revisionists, I am of the view that no interference is called for in the judgement of the Courts below convicting the revisionists under sections 323,324,and 325 IPC read with section 34 of IPC and the same is upheld. However, so far as sentence is concerned the ends of justice would be served by modifying the sentence of imprisonment converting the rest of the sentence into fine under each head, i.e. under section 323/34 IPC with a fine of Rs. 1000/-, under section 324/34 IPC with fine of Rs.2000/- and under section 325/34 IPC with a fine of Rs.3000/- each. The amount of fine shall be deposited by the revisionist within one month from today in the trial court. Out of amount of fine so realised from the revisionist a sum of Rs.4000/ shall be paid to injured of this case Ram Jash and Rs. 3000/- to another injured Ram Baran and rest amount of fine of Rs.3000/- shall go to State. In case of default of payment of fine the revisionists shall be taken into custody to serve out the sentence as ordered by the trial court vide judgement and order dated 20.02.1999.

15. In View of the above the revision is partly allowed.

16. Let copy of this order be sent to the concerned trial court forthwith along with record of courts below for its compliance. The Registrar of this Court shall ensure the compliance.

Order Date:-23.05.2013 Ajay

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Allahabad High Court