Allahabad High Court
Chavi Nath vs State Of U.P. on 17 May, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Judgment Case :- CRIMINAL APPEAL No. - 35 of 1991 Petitioner :- Chavi Nath Respondent :- State Of U.P. Petitioner Counsel :- Mohd. A. Ali Respondent Counsel :- Govt. Advocate,Sumit Kumar Srivastava Hon'ble Zaki Ullah Khan,J.
(1) The instant appeal has been preferred by the appellantagainst the judgment and order dated 18.1.1991 passed by 2nd Additional Sessions Judge, Pratapgarh in S.T. No.237/1988 (State versus Chhavinath and others) under sections 147, 323, 307, 149 I.P.C.
The factual matrix of the case is as follows:-
(2)On the basis of Exhibit Ka-1, application, lodged by Dev Pratap, this case was registered at Police Station - Kandhai, District - Pratapgarh on 6.9.1986 at 19 hours against the appellants under Sections 147, 148, 149, 307, 324, 504, 506; that as per report of exhibit ka-1, the accused persons on 5.9.1986 at about 5.00pm committed mischief by grazing their cattle in his grove; that where complainant's uncle, Deo Raj, asked them not to do so, then the accused persons, who were armed with Lathi and Pharsa; started beating him, that on raising alarm the informant and his brother Bramhdeo rushed for help; that the accused persons also beat both of them with the intention to kill them; the accused persons caused such injuries with intention and knowledge as to kill them; that the accused also hurled abuses and extended threats; that this occurrence was witnessed by Hanuman Prasad Pandey, Ram Murat Pandey, Avdhesh kumar and others; that the condition of the injureds deteriorated due to injuries caused to them and they were apprehending death and that is why they were initially taken to Patti Hospital where they were medically examined; that since their condition was worsening, the doctor advised them to take to district hospital, Pratapgarh for their treatment; that as per advice, both the injured were brought to the District Hospital next morning where they were admitted; then the complainant went to Police Station - Patti to lodge the report, but the report was not written there; that thereupon he got the application (Exhibit Ka-1) typed and with this application he went to Police Station - Kandhai where he handed over the same to the police; then the case was registered at Crime No. 165 of 1986; that Investigating Officer, after making local inspection of the spot, prepared the site plan (Exhibit Ka-4); that the condition of the injured further deteriorated and they were shifted to Medical College Lucknow; that the Investigating Officer visited the Medical College Lucknow where injured, Deo Raj, gave written statement (Exhibit Ka-2) because of serious condition, he was advised by the doctor not to speak; that after completing the investigation, the charge-sheet was submitted by the Investigating Officer against the accused persons (Exhibit Ka-5) and then since the case was triable by the court of sessions, the accused were committed to the Sessions Court for trial; that the accused denied the charges and claimed to be tried and that trial court recorded statements of informant (P.W.-1), Raj Murat Pandey - P.W.-2 injured, P.W.-3 Deo Raj, Dr. A.K. Nigam - P.W.4, S.I. Harihar Pandey P.W.-5 and Dr. D.K. Maurya - P.W.-6 who were examined in support of the prosecution case.
(3) Accused persons adduced no oral evidence. However, in defence they filed copy of Chik F.I.R of the cross-case prepared on oral report of Chhabi Nath (Exhibit Kha1), Copy of the G.D, prepared on the basis of report Exhibit Kha-2, copy of injuries report of Chhabi Lal Ram Abhilakh (Exhibit Kha-3 and Kh4 respectively) and the charge-sheet of cross-case (Exhibit Kha-5). Learned trial court was of the view that the injuries were serious.
(4) The doctor found as many as three injuries on the body of injured Brahmadeo, injury no. 1 was incised wound (6cm x 1/2cm x 1cm) deep on the scalp (left parietal part), Oblieque in direction. The edges were clean cut, mild bleeding was present and he also examined Deo Raj, and found eight injuries on his body, out of which two were lacerated wounds on the head i.e. vital part. Learned Trial Court was of the view that Marpit between the parties on the date and time of occurrence is admitted to the parties, they have lodged the cross-case report. The only thing the trial court had to ascertain, was whether the accused were aggressor and they had indulged in Marpit as stated by prosecution. After analysing the prosecution evidence, learned trial court was of the view that the prosecution established its case beyond reasonable doubt and held the accused persons guilty and convicted and sentenced them to 5 years R.I under section 307/149 I.P.C and one year R.I under Section 323 I.P.C. They have also been convicted and sentenced under Section 147 for a period of one year. Trial Court directed that all the sentences shall run concurrently; aggrieved by the aforesaid order the instant appeal has been preferred.
(5) Learned counsel for the appellants argued that learned trial court did not appreciate the delay in lodging F.I.R. Cross F.I.R was lodged much earlier but the learned trial court held that delay in lodging F.I.R. has been well explained because of injuries on the person of the injured. Learned counsel for the appellants argued that occurrence took place on 5.9.1986 at about 5.00pm and matter has been reported on 6.9.1986 at about 19 hours, the reason given was that due to treatment of the injured persons the delay has been caused. Exhibit Ka-1, the written report itself suggests that it has been manipulated and after taking due consultation or legal advise the report was lodged; that in fact complainant went to his counsel at Pratapgarh then consulted him and got the report typed in the court compound and then came to police station and lodged the F.I.R. The informant could have lodged the report at Patti police station where the injured were initially taken for treatment and there was a police station, he should have lodged the report also at Pratapgarh where the injured persons were being treated in District Hospital but since he manipulated many things he got it typed and then went to police station after taking due consultation. The report itself suggests sheer concoction of the informant in typed application alleging that when he along with his brother went to save injured he was beaten mercilessly. At the time of evidence P.W.-1 did not specify as to how he was mercilessly beaten. Had he been mercilessly beaten, he would have been hospitalized in stead of his uncle and brother. The next point raised by the learned counsel for the appellant is that it has been alleged by the informant that accused persons encircled his uncle with intention to kill him. They also threatened to kill them and hurled abuses. It has also been alleged that witnesses came on the spot and they intervened but only one person was examined. Learned counsel for the appellants reiterated that comparative status of accused and informant and his family members is very important here and reason why the scuffle took place is very important. The informant alleged that the accused persons grazing their cattle in the grove of complainant. Looking into the comparative status the accused persons are of lower strata of society and of lower caste. They are in the category of scheduled caste whereas the complainant and companions are Brahmins and looking to their status, it is not possible that any scheduled caste person will have the courage to graze their animals in the grove of upper caste person. If they are grazing their animals the cause of action accrued to complainant and his family members and they could have asked them to stay away and could also advance threat to give them a lesson. It is not possible that a person of lower strata and lower economic status will come arm with weapons and form a gang and that too with intention to commit mischief in a grove for grazing their animals. The important things is that all the accused persons were not keeping the animals, most of them are poor and do not possess any such cattle as alleged. Chhabi Nath is in possession of a camel and he used to take his camel to carry load from one place to another place and his only livelihood is by carrying the load of other persons on his camel. He was engaged by the complainant to transport their (mannure) Khad from 'one place to another place' but complainant did not pay single penny and nurtured grievous because a Dalit is demanding payment and therefore, he instituted a false case against all of them.
(6) The learned trial court was of the opinion that a Marpit took place on the place shown in the site plan, but the fact is that there is also a way in the South. Chhabi Nath and Ram Abhilakh in their cross-examination stated that there is a road which is on the south of the grove and that due to evade payment, the complainant instituted a false case and they were also beaten up and this can be justified from the fact that P.W.1 stated that there is a way between his two lands and definitely the occurrence took place on the way and not on the land of the complainant and he has also stated that when the scuffle was going on he snatched a stick from one of the accused Sita Ram and started using it in self-defence. He has also stated that he was beaten up mercilessly but he could not show any injury on any part of his body.
(7) Learned counsel for the cited 1971 CAR 172 (SC) The State of Bihar versus Mohammad Kursheed in Criminal Appeal No. 142 of 1967 to support his argument that the observation of the learned trial court that accused were aggressor is completely baseless. The manner of the description is quite contrary to the facts on record.
(8) Learned counsel also cited 1972 CAR 280 (SC) Thulia Kali versus The State of Tamil Nadu in which Hon'ble Apex Court, considering the F.I.R. Has observed as under:-
(9) " First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overstimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after thought. On account of delay, the report not only gets benefit of the advantage of spontaneity, danger creeps in of the introduction of coloured versioin, exaggerated account or connected story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
(10) Learned counsel, therefore, argued that the delay is very material and explanation given by prosecution is not befitting and is not wrothy of reliance. The F.I.R itself shows that it is coloured application and was lodged after obtaining legal advise .
(11) Learned counsel also pointed out that the injuries on the person of the accused have not been explained. Although the accused persons have submitted in defence the Exhibit Kha1, kha3 and kha-4 i.e. the injury reports of the accused persons which are duly admissible in evidence. The prosecution has failed to explain this fact that the injuries have been caused in self-defence. The learned counsel argued that Hon'ble Apex Court has given as, when and how the self-defence can be exercised in its judgment reported in 1973 CAR 72 (SC) Deo Narain versus The State of U.P. (12) Learned counsel vehemently argued that appellant Chhabi Nath owns a camel and earns his livelihood by employing the camel for carrying the load from one place to another place on charges.
(13) The learned counsel for the appellants finally argued that in view of the facts and circumstances and the case laws cited above the order passed by lower court conviting and sentencing the appellants is liable to be set aside.
(14) Learned counsel for the complainant and government advocate replied the arguments. The learned counsel for the complainant argued that there are two injured and Dr. D.K. Maurya - P.W.2 has examined both the injured. On 5.9.1986 at about 8.30pm he has examined and found an incised wound of (6cm x 1/2cm x 1cm) deep on the scalp (left parietal part). This injury was kept under observation. X-ray was advised and this injury was caused by sharp edged weapon and another contusion was caused by lathi. On 8.00 pm on the same day. Deo Raj the other injured was examined and lacerated wounds (3cm x 1/2cm x 1cm) deep on the scalp ( right frontal and parietal part 9cm above the mid of right eye brow, Mild bleeding were found, another lacerated wound 3cm x 1/2cm x 1/2cm deep on the scalf left parietal part of 7cm above the left ear was found and rests were contusions and lacerated wound 2.5cm x 1/2cm on the left back part, back and pinna, bleeding was present to the opinion of the doctor, the general condition of the patient was serious and he admitted the injured in the hospital, his injuries no. 1 to 4 were kept under observation and X-ray of scalp was advised. Injured were serious and injuries were sufficient to cause death in ordinary course of nature.
(15) The trial court found that the accused persons were aggressor and the court has held that they trespassed the land and they were armed with weapons and their intention was to cause mischief as no one was there to intervine. They will be taken to task as all of them formed an unlawfull assembly and each member of unlawfull assembly had intention to cause harm to complainant and injured. In pursuance of their common object they caused mischief and since injured restrained them he was beaten up mercilessly.
(16) Learned trial court held that Investigating Officer visited the spot on 7.9.1986 on the third day and he found grazed crop of Bajara and Arhar which had been shown in the site plan. All the three prosecution eye-witnesses produced in the evidence established that the occurrence took place in the field and not on the way as alleged by the defence. The defence did not examine any eye-witness to establish that occurrence took place on other place and not in the field of complainant. The trial court, therefore, was of the opinion that the occurrence took place as explained by the prosecution witnesses which established that the accused person caused injuries to the injured and prosecution case has been proved beyond reason doubt and, therefore, they have been rightly convicted and sentenced.
(17) Heard learned counsel for the appellant and learned counsel for the complaint and government advocate. The trial court found that prosecution has established the case beyond reasonable doubt. The trial court held that occurrence took place on 5.9.1986 at 5.00pm and the report was lodged at 19 hours on 6.9.1986 and the delay has been explained as the injured were not in a position to be transported and complainant was busy in the treatment of injured and when he got time then he lodged the F.I.R. Prosecution story has been believed because of seriousness of the injuries and other factors which the court took from the cross-case. The trial court was of the view that the accused persons admitted the date and time of the occurrence, therefore, it has been established that occurrence took place on the date time as alleged by the prosecution. Regarding the injuries on the person of the accused persons, Deo Raj the injured snatched the Lathi of Sitaram and used it in self-defence. The complainant denied charges that he got the F.I.R written on the advice of an advocate. The court, therefore, convicted and sentenced the appellants as mentioned above.
(18) The first and foremost point which the trial court was to adjudicate is the comparative status of the parties. Admittedly the injured and the complainant belong to different castes. The charge that the complainant and injured were beaten up mercilessly should be examined throughly in light of entire evidence. The accused persons are downtrodden and are Dalit and no Dalit can have courage to roar on the upper caste and that too by entering into their fields and graze their animals while the allegations are that the accused persons took their animals and went to the field of Brahmins and when they were restrained they used force. The important things is that there was no previous enmity. How can Dalit members of the village community of that village roar upon the upper caste Brahmins by taking their own animals for grazing in grove and field of Brahmins and that too completely armed with Pharsa and Lathi. It is against the human conscious. Comparative status itself points out that there is something fishy in the prosecution story. The persons who alleged to have committed unlawfull activity are downtrodden of the society and they cannot muster the courage to roar like a lion and beat the owner of the field after committing trespass. It is very important that P.W. 1 has admitted in his statement that everyone was not in a position to own a cattle. P.W.1 had admitted that Chhabi Nath was having a camel but his brother owned a camel that means as far as camel is concerned, both the brothers were using camel to earn their livelihood. P.W. 1 also admitted that each one was not having a cattle, therefore, it is against common sense that persons who do not have any camel why they will form an unlawfull assembly which is for grazing the cattle in some one's fields. The other important point which is very convincing is that the written report Exhibit Ka-1, informant says that he was beaten mercilessly " eqyftte us izkFkhZ dks rFkk czgnso dks cM+h csjgeh ls ekjk-ihVk " The strange thing is that though he was mercilessly beaten but neither he was examined by the doctor nor there is any mark of injury on any part of his body. The F.I.R was written after a lapse of more than 24 hours. The reason given are not convincing. No person will endeavour to waste his time by getting the application typed and then handing over to the police. The conduct of complainant shows that there was manipulation and he was at Patti where there was a police station, he was at district headquarters where there was a police station but he got his application typed and presented to the Kandhai police station after a lapse of 26 hours. The injuries on the body of Chhabinath and Ram Abhilekh were non-explained. It was duty of prosecution to establish as to how the injuries have been caused. Cross-case is there which means that scuffled took place. The learned trial court held that the accused persons were aggressor but in the statement of P.W.-1, it has been alleged that Deo Raj santched the Lathi of Sitaram and then wielded it in defence which caused some injuries to the accused persons. The ruling cited by the appellants regarding self-defence is very important which is 1973 CAR 72 (SC) Deo Narain versus The State of U.P (supra). It says that right of private defence is preventive and not punitive, therefore, the injuries of the accuse persons should have been explained at length.
(19) Regarding the delay in F.I.R, the appellants have cited 1972 CAR 280 (SC) (supra) in which Hon'ble Apex Court has given how the delay in filing F.I.R. explains regarding aggression. Appellants have cited 1971 CAR 172 (SC) (Supra) which attracted the facts of present case, therefore, in view of above discussion, I am of the opinion and hold that the findings recorded by learned lower court are liable to be set aside and appeal is liable to be allowed.
(20) Appeal is allowed and order dated is 18.1.1991 passed by 2nd Additional Sessions Judge, Pratapgarh in S.T. No.237/1988 (State versus Chhavinath and others) under sections 147, 323, 307, 149 I.P.C. is set aside and appellants are acquitted from the charges. They are on bail. They need not surrender. Their bail bonds are discharged.
Order Date :- 17.5.2013 Rabindra Kumar