The above three criminal appeals under Section 374(2) Cr.P.C. have been preferred by appellants against judgment and order dated 24/25.11.2003 passed by Additional Sessions Judge/F.T.C.-V, Lucknow in S.T. No.356/01 arising out of case crime no.231/99, P.S.Ghazipur, District Lucknow, convicting the appellants under Section 307/34 I.P.C. and sentencing them for a period of seven years' rigorous imprisonment with a fine of Rs.1000/- each and in default of payment of fine the appellants to undergo further rigorous imprisonment for one month.
Since all the above appeals arise from the same judgment and order, they were heard together and are being decided by this common order.
Briefly stated, the prosecution case is that on 22.3.1999, informant Tej Bahadur Rai gave a written report at Police Station Ghazipur(Ex. 'Ka'-1), wherein it was stated that his son, Akhilesh Rai, who was studying in Central School, H.A.L., in Class XII, had some 'Maarpeet' with Mohneesh Hasan @ Moon @ Lav Singh about 2-3 months back, while playing cricket, as such, he bore enmity. Mohneesh Hasan @ Moon @ Lav Singh had formed a group of boys of his own Mohalla and Lucknow University and used to threat Akhilesh Rai, with dire consequence, while going to and coming back from School. Mohneesh Hasan @ Moon @ Lav Singh also got him threatened by Rajendra Pratap Singh, who was a criminal, over telephone. It is further stated in the F.I.R. that informant had engaged private guard for his own safety and for the safety of his family.
On 22.3.1999, at 10:00 p.m. in night informant and his son, after having dinner, were walking in front of their house; from inside the park Mohneesh Hasan @ Moon @ Lav Singh, Vivek Singh Sengar, Ashish Batra @ Kalee and Rajendra Pratap Singh @ Rajan jumped the railing of the park; Mohneesh Hasan @ Moon @ Lav Singh exhorted; Vivek and Rajan caught hold of Akhilesh Rai and Ashish Batra, with intention to kill Akhilesh Rai, fired from pistol, from a close rage, on the left side of his chest. On alarm being raised by Akhilesh and the complainant, informant's wife, his daughter and his younger son came out of the house; neighbours were also attracted. The accused persons left informant's son and ran towards the park. The incident was witnessed in the night and the assailants were identified.
On the basis of written report(Ex.'Ka'-1) first information report(Ex.'Ka'-5) was lodged; entries(Ex.'Ka'-6) were made in general diary. The investigation was entrusted to S.I. Jairam Singh which was subsequently handed over to S.I. Indraveer Singh.
On 22.3.1999 at 11:15 p.m., the injuries of injured Akhilesh Rai was examined by Dr.Sahab Lal, Medical Officer, Bhaurao Devras Sanyukt Chikitsalaya, Mahanagar, Lucknow. The following injury was found on the person of injured:-
Fire arm wound of entry 1 c.m. in diameter X muscle deep over front of lower part of left shoulder; blackening around the wound present; fresh bleeding present. Injury kept under observation. Pulse 80 per minute; fully conscious. Above injury is fresh, caused by discharge from the fire arm. The injury kept under observation; referred to Balrampur Hospital for X-ray of injury - and further management and opinion.
The Radiologist at Balrampur Hospital X-rayed the shoulder of Akhilesh Rai on 23.3.1999. Ex.'Ka'-8 is its report.
The injured was admitted at Emergency Ward, Balrampur Hospital by informant for treatment on 23.3.1999 at 0:30 hours. The injured was referred to K.G.M.C. vide Ex.'Ka'-2. The injured was admitted at Gandhi Memorial & Associated Hospitals, Lucknow on 5.4.1999 for the treatment of the injuries of his left shoulder caused by fire arm. He was discharged on 14.4.1999 vide Ex.'Ka'- 9.
The X-ray plate of the injured dated 23.3.1999 is Ex.-1.
S.I. Jairam Singh, Investigating Officer prepared site plan Ex.'Ka'- 3 and on 27.3.1999 took blood-stained nylon vest of injured and prepared Ex.'Ka'-4. Further the statements of complainant and witnesses were recorded under Section 161 Cr.P.C. and after completing the investigation, charge sheet under Sections 307/504/34 I.P.C. was submitted. Special C.J.M., Lucknow vide order dated 2.3.2001 committed the case to the Court of Sessions. Charges were framed under Section 307 read with Section 34 I.P.C. and Section 504 read with Section 34 I.P.C. The accused denied the charges and offered to be tried.
The prosecution in order to prove the guilt of accused persons examined Tej Bahadur Rai, P.W. 1; Akhilesh Rai, P.W.2; Dr. Sahab Lal, P.W.3; S.I. Jairam Singh I.O., P.W.4; Constable Ram Lakhan Vaish, P.W. 5 and S.I. Indraveer Singh, I.O., P.W.6.
The statements of accused were recorded under Section 313 Cr.P.C.; they had stated that due to enmity they are being falsely prosecuted and they have no concern with the incident. Witnesses are of the family and are deposing because of some misunderstanding; they are innocent. The appellants did not lead any evidence in their defence.
The learned trial court, after considering the evidence, found the appellants guilty of the offence under Section 307 read with Section 34 I.P.C. and sentenced them as stated above.
Heard learned counsel for the appellants appearing in the respective appeals, the learned State Counsel and perused the record.
The appellants have challenged the conviction and sentence mainly on two grounds:- firstly, that no offence under Section 307 I.P.C. is made out and, at the most, the case would fall in the ambit of Section 324 I.P.C.; and secondly, that appellants Mohneesh Hasan @ Moon @ Lav Singh and Vivek Singh Sengar have not participated in the crime and have been falsely implicated.
This Court would firstly deal with the evidence on record in the light as to whether a case under Section 307 I.P.C. is made out or the case would fall in the ambit of Section 324 I.P.C.
In the present case, there are only two witnesses - (1) the informant Tej Bahadur Rai, P.W.1 and the second, injured Akhilesh Rai, P.W.2. Both of them have deposed that on 22.3.1999 at about 10:00 in night, they were walking in front of their house after having dinner; from beside park, appellant Mohneesh Hasan @ Moon @ Lav Singh, appellant Vivek Singh Sengar, appellant Ashish Batra and Rajendra Pratap Singh jumped the railing of the park and appeared; Mohneesh Hasan @ Moon @ Lav Singh instigated while Vivek Singh Sengar and Rajendra Pratap Singh caught hold of Akhilesh Rai; Ashish Batra fired from a close range with pistol on the left side of chest.
Akhilesh Rai, who is the star witness of the case, has not uttered a single word whether appellant Ashish Batra fired with intention to kill. In the examination in chief, this witness Akhilesh Rai(P.W.2) has stated as follows :-
'"..........IS KE BAAD MOHNEESH HASAN NE CHILLA KAR KAHA KI "MAARO SAALON KO BACHNE NA PAAY". USKE KAHNE PAR VIVEK SENGAR VA RAJENDRA SINGH NE MUJHE PAKAR LIYA, ASHISH BATRA @ KAALI NE REVOLVER NIKAAL KAR MERE SEENE MEIN SATAYA AUR FIRE KAR DIYA....."
Oral testimony of both prosecution witnesses P.W.1 Tej Bahadur Rai and P.W. 2 Akhilesh Rai regarding the seat of injury also gets belied by the medical evidence. P.W. 2 injured Akhilesh Rai and P.W. 1 Tej Bahadur Rai, father of the injured have categorically stated that fire was made from very close range and was fired at the chest. The seat of injury according to the injury report was over the front of lower part of left shoulder 9 c.m. below top of the shoulder. Thus, to state that the fire was made on the chest is totally false.
On evaluating the evidence of the injured P.W. 2 Akhilesh Rai, it could be safely inferred that appellant Ashish Batra had no intention to cause any such injury which could prove fatal for life.
It is also very essential to throw light on the medical evidence to ascertain whether the injury caused by appellant Ashish Batra was sufficient, in ordinary course of nature, to cause death. It is necessary to ascertain the intention of appellant.
The evidence of Dr.Sahab Lal, Medical Officer, Bhaurao Devras Sanyukt Chikitsalaya, Mahanagar, Lucknow would be of importance. He examined injured Akhilesh Rai, P.W.1 on 23.3.1999 at 11:15 p.m. and found following injury on his person:
Fire wound of entry 1 c.m. in diameter X muscle deep present over front of lower part of left shoulder 9 c.m. below top of left shoulder. Blackening around the wound present, fresh bleeding present, injury kept under observation, referred to Balrampur Hospital for X-Ray and further management.
He stated in his cross-examination that - ......CHOTHIL HOSH MEIN THA AUR USKI GENERAL CONDITION SANTOSH JANAK THEE.... CHOT GANBHIR NAHIN THEE.
CHOT SE BODY KE TISSUE DAMAGE NAHIN HUE THE. YAH CHOT NON-VITAL PART OF THE BODY PAR THEE. IS SE JEEVAN KO KHATRA NAHIN THA."
The evidence of this witness also does not indicate that injured P.W.2 Akhilesh Rai received any grievous injury. Thus, what has been elicited from the testimony of P.W. 3 Dr. Sahab Lal is that the injury received by injured Akhilesh Rai P.W. 2 was not sufficient, in ordinary course, to cause death and it was not on vital part of the body.
Learned trial court has not considered whether the offence would fall under Section 307 I.P.C. or would fall in the ambit of Section 324 I.P.C. The scrutiny of evidence and keeping in view the discussions made above, this Court, safely arrives to the conclusion that conviction under Section 307 I.P.C. is bad in law. On the facts and circumstance of the case, the offence committed by appellant Ashish Batra would not travel beyond the purview of Section 324 I.P.C.
Now, we deal with the case of co-accused Mohneesh Hasan @ Moon @ Lav Singh and co-accused Vivek Singh Sengar.
It has been vehemently contended that both these appellants were not present at the spot and they have been implicated on account of their inimical terms with injured Akhilesh Rai, P.W.2, as it comes out from their depositions that they have been falsely implicated and had no concern with the incident and the witnesses were deposing because of some misunderstanding.
The evidence against appellant Mohneesh Hasan @ Moon @ Lav Singh is that he instigated and it was he with whom some scuffle had taken place while playing cricket in the park. It is submitted that the evidence of exhortation is considered to be a weak type of evidence.
Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Jainul Haque v. State of Bihar, reported in (1974) 3 SCC 543, at page 545 and Hon'ble Apex Court has observed as under:
"The part attributed to the appellant according to the first information report is that he had exhorted the other accused to assault Leyaquat, while according to the evidence adduced at the trial the appellant actually joined in the assault on Leyaquat. The High Court did not accept the prosecution evidence on the point that the appellant had joined in the assault on Leyaquat. All the same, the High Court convicted the appellant because it was of the view that the appellant had exhorted the other accused to assault Leyaquat. In the absence of any substantive and cogent evidence adduced at the trial that the appellant had exhorted the other accused to assault Leyaquat, the High Court, in our opinion, should not have convicted the appellant for the offence under Section 323 read with Section 114 of the Indian Penal Code. The High Court has found the evidence of the eyewitnesses to be unsatisfactory. It has also found that the eyewitness were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."
Reference on this point may also be made to the pronouncement of the Apex Court in the case of Anand Mohan v. State of Bihar, (2012) 7 SCC 225 and Hon'ble Apex Court has observed in para 69 as under:
"69. This Court has held in Jainul Haque v. State of Bihar (supra) that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often quite a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim and unless the evidence in this respect is a clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."
Admittedly, appellant Mohneesh Hasan @ Moon @ Lav Singh was unarmed. Apart from it, if he had managed some other person to serve his purpose of taking revenge, then there was absolutely no purpose for appellant Mohneesh Hasan @ Moon @ Lav Singh to remain present at the scene. There is no specific role of assault assigned to appellant Mohneesh Hasan @ Moon @ Lav Singh, he deserves to be granted benefit of doubt.
The role assigned to appellant Vivek Singh Sengar is that of catching hold. It is pertinent to mention here again that co-accused Rajendra Prasad Singh, against whom there is similar evidence right from the first information report to the evidence of the witnesses adduced in court, has not been challaned nor has been summoned under Section 319 Cr.P.C. There is no clinching and cogent evidence against appellant Vivek Singh Sengar.
Learned counsel states that he has been falsely implicated. P.W.2 in his cross-examination has stated - VIVEK SINGH SE DIRECT KOI DUSHMANI NAHIN THEE".
One more important aspect of the matter which should be taken into consideration is that the whole incident took place in a very cool manner. The role assigned to appellant Vivek Singh Sengar is of catching hold but there is no evidence that the injured tried to free himself or P.W. 1 Tej Bahadur Rai, father of the injured tried to intervene or save injured Akhilesh Rai. It creates doubt the way the incident took place. The case is of single injury - one would have made fire and run away from the place of occurrence. The incident is of night and at the place where, usually, people do not move on the road at that time. The participation of accused Vivek Singh Sengar is also not proved beyond reasonable doubt. He also deserves to be granted benefit of doubt.
It is the duty of the courts to award proper sentence, having regard to the nature of evidence. As already discussed above and having drawn the conclusion, the case of appellant Ashish Batra is covered by Section 324 I.P.C.
Learned counsel for the appellant humbly prayed that, to meet ends of justice, it would be safe and proper to award appellant Ashish Batra the sentence already undergone by him. It is submitted that to send appellant Ashish Batra again to jail, he being a young man aged about 37 years and would be earning livelihood for his family, would ruin his family. Appellant Ashish Batra, at the initial stage, was arrested on 23.3.1999 and was granted bail on 14.5.1999; he was again sent to jail on the date of judgment, i.e. 24.11.2003 and was bailed out vide order dated 8.12.2003, i.e. in total, he remained behind bars for two months and five days. Learned counsel contends that, to meet ends of justice, this Court may award reasonable compensation to injured Akhilesh Rai.
Learned Additional Sessions Judge has omitted to award compensation of any of the amount, whatsoever. The, learned Additional Sessions Judge has overlooked the law laid down by Hon'ble the Supreme Court in Hari Krishnan and the State of Haryana v. Sukbir Singh and others reported in AIR 1988 SC 2127, wherein it has held that power of imposing fine is intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is to some extent a constructive approach to crime and a step forward in criminal justice system. It is because of this, that, it was recommended that all criminal courts should exercise this power liberally so as to meet the ends of justice, by cautioning that the amount of compensation to be awarded must be reasonable.
In view of the facts and circumstances of the case and the law discussed above, I find that the case against appellant Mohneesh Hasan @ Moon @ Lav Singh and appellant Vivek Singh Sengar is not proved beyond reasonable doubt. Accordingly, they are given the benefit of doubt and acquitted of their charges.
The case against appellant Ashish Batra is proved under Section 324 I.P.C. but in the facts and circumstance and also in view of the discussions made above, he may be sentenced with the period already undergone by him in this case and also with fine of Rs.10,000/- with default stipulation of six months' additional imprisonment.
In the result, Criminal appeals numbered 1903 of 2003 and 1884 of 2003 are hereby allowed and appellants Vivek Singh Sengar and Mohneesh Hasan @ Moon @ Lav Singh are hereby acquitted of the charges levelled against them. Appellants Vivek Singh Sengar and Mohneesh Hasan @ Moon @ Lav Singh are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.
Criminal Appeal No.1934 of 2003 is hereby partly allowed and conviction and sentence of appellant Ashish Batra is hereby converted under Section 324 I.P.C. and he is sentenced with the period of detention already undergone by him in this case and also with fine of Rs.10,000/- with default stipulation of six months additional imprisonment. Appellant Ashish Batra shall pay the fine within sixty days from the date of receipt of record by the learned trial court, which shall, in turn pay the amount, so deposited, as compensation to injured Akhilesh Rai, without delay. If any amount has been deposited earlier as fine before the learned trial court, the same shall be adjusted by the trial court in the fine imposed by this Court.
The office is directed to send the lower court record along with copy of the judgment to the learned trial court without delay to ensure compliance.
Order Date : 13.04.2016 kvg/-