Judgment Reserved On 07.02.2019 Judgment Delivered On26.02.2019
Court No. - 50
Case :- JAIL APPEAL No. - 1044 of 2015 Appellant :- Harindra Singh Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Ashok Kumar Yadav( Ac),B.K. Shukla,Brij Raj Counsel for Respondent :- A.G.A.
Hon'ble Aniruddha Singh,J.
1. The name of Sri Ashok Kumar Yadav, Advocate as amicus curiae on behalf of appellant was wrongly printed in the daily cause list.
2. Heard Sri B.K. Shukla, learned counsel for the appellant, Sri C.P. Singh, learned AGA for the State and perused the record.
3. This jail appeal has been preferred by appellant Harindra Singh against judgment and order dated 2.3.2015 passed by Special Judge (Prevention of Corruption Act), Varanasi in S.T. No. 634 of 2013 arising out of Case Crime No. 281 of 2013 and S.T. No. 635 of 2013 arising out of Case Crime No. 284 of 2013, Police Station Phoolpur, District Varanasi whereby appellant Harindra Singh was convicted under sections 307, 325, 504 & 4/25 Arms Act and sentenced to five years' rigorous imprisonment with fine of Rs.10,000/-, in default in payment of fine, three months' additional imprisonment under section 307 IPC; one year's simple imprisonment with fine of Rs. 1,000/- in default of payment 15 days additional imprisonment under Section 325 IPC; one year's simple imprisonment with fine of Rs. 1,000/-, in default of payment 15 days additional imprisonment under Section 504 IPC and one year's simple imprisonment with fine of Rs. 1000/-, in default in payment of fine, one month's additional imprisonment under section 4/25 Arms Act. All the sentences to run concurrently and sentence served out, be adjusted in the sentence awarded by the Court.
4. According to prosecution case, FIR was lodged against accused Harindra Singh on 15.10.2013 at 13.10 (1.10 p.m.) alleging that on same day at 11.00 a.m., he assaulted his uncle Ram Surat with knife. According to injury report, following injuries were found on the body of injured Ram Surat:
i. A stitched wound on the right side head, size 7 cm. X 0.5 cm., 8 cm. Above right ear, 6 stitches. Kept under observation. Advise x-ray head, refer to district hospital for X-ray expert opinion.
ii. A stitched wound on the mid of head, size 5 cm. X 0.5 cm., 12 cm. Above left ear, 4 stitches, kept under observation, advise x-ray head, refer to district hospital for X-ray, expert opinion & further management.
iii. A stitched wound on the left side head, size 5 cm. X 0.5 cm., 11 cm. Above left ear, 5 stitches, kept under observation advise x-ray head, refer to district hospital for X-ray, expert opinion & further management.
iv. A stitched wound on the left side face, size 10 cm. X 0.5 cm., 4 cm. from left ear, 10 stitches, kept under observation advise x-ray face, refer to district hospital for X-ray expert opinion & further management.
v. A stitched wound on the right forearm, size 3 cm. X 0.5 cm., 11 cm. Below right elbow joint, kept under observation, advise x-ray fore arm, refer to district hospital for X-ray, expert opinion & further management, 2 stitches present.
vi. A stitched wound on the right fore arm, size 4 cm. X 0.3 cm., 1.5 cm. Below right wrist, 3 stitches present.
vii. A stitched wound on the right fore arm, size 6 cm. X 0.4 cm., just below right wrist, 4 stitches, kept under observation, advise x-ray right fore arm, refer to district hospital for X-ray expert, opinion & further management.
viii. A stitched wound on the left arm, size 4 cm. X 0.4 cm., just above left elbow, 3 stitches present.
ix. A contusion on the left elbow joint, size 4 cm. X 3 cm., kept under observation, advise x-ray elbow joint left, refer to district hospital for X-ray, expert opinion & further management, 2 stitches present.
x. A stitched wound on the left leg, size 11 cm. X 0.5 cm., 21 cm. above left ankle joint, 9 stitches present, kept under observation, advise x-ray left leg, refer to district hospital for X-ray, expert opinion & further management, 2 stitches present.
xi. A plaster casted wound on the right leg, kept under observation, advise x-ray right leg, refer to district hospital for X-ray, expert opinion & further management, 2 stitches present.
5. After investigation, charge sheet was submitted against the appellant under sections 307, 325, 504 IPC & Section 4/25 Arms Act. Case was committed to the Court of Sessions for trial. Charges were framed. The appellant pleaded not guilty and claimed for trial. The prosecution examined six witnesses, P.W.1 Kameshwar Devi (complainant), P.W.2 Ram Surat (injured), P.W.3 Om Prakash, P.W.4 Hema Singh, P.W.5 Constable Alok Kumar Singh and P.W.6 Ram Awadh Yadav.
6. Statement of accused was recorded under section 313 Cr.P.C.. He pleaded not guilty and stated that he has been falsely implicated but produced no witness in defence.
7. After hearing learned counsel for the appellant and Government Counsel, impugned judgment & order was passed. Hence this appeal.
8. Learned counsel for the appellant submitted that the impugned judgment and order is against facts and law. Appellant was living in Bombay at the time of incident. He has been falsely implicated due to property dispute between appellant and injured. Injuries were received by the injured due to fall down. Recovery of knife was shown falsely. There are major contradictions in the statements of injured and witnesses about weapon of assault, some said by 'chapad' and some said by knife.
9. From the perusal of record, it transpires that appellant was in jail since 16.10.2013 to 2.2.2015 (one year, three months and 16 days, later on, he is languishing in jail since 2.3.2015 (three years and eleven months). Thus, served out in jail about five years and two months till date.
10. Sri C.P. Singh, learned AGA submitted that there is no illegality in the judgment.
11. Question is whether the charges levelled against the appellant under Sections 307, 325, 504 IPC & Section 4/25 Arms Act have been proved beyond reasonable doubt or not.
12. Word 'proved' is defined under Section 3 of Evidence Act as under:-
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
13. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.
14. From perusal of record, it transpires that P.W.2 Ram Surat is the injured witness who stated in his examination before the court that the incident took place on 15.10.2013 at 11 a.m. in day light. Accused appellant (nephew of injured) had abused him and assaulted with sharp-edged weapon (chapad) on head, hand and leg and incident was seen by Hema Devi and other villagers.
15. P.W. 1 Kameshwari (complainant) and P.W. 4 Hema Singh (eye witness) have clearly stated in their statements that incident happened was done date and time mentioned above and corroborated by the version of P.W. 2 injured witness.
16. In criminal cases, the statements of injured witness are very important because he was present on spot and received injuries. On this issue, the Hon'ble Supreme Court in the case of injured witness has observed as under:
“In the case of Jarnail Singh vs. State of Punjab, 2009
(6) Supreme Court 526, the Court has held that deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence on the scene of incident established in the case and it is proved that he suffered the injuries during the said incident.
In the case of Maqsoodan vs. State of U.P., (1983)1
SCC 218, the Apex Court has held that presence of the injured witnesses at the time and place of the occurrence cannot be doubted as they had received injuries during the course of incident and they should normally be not disbelieved.”
17. Observations made by Hon'ble Supreme Court in above cases, the evidence of P.W.2 injured is very material. It was held that statement of injured cannot be disbelieved, generally except in exceptional circumstances, hence it is proved beyond reasonable that appellant has assaulted the injured by sharp- edged weapon (chapad) at the time and date stated by the prosecution.
18. According to injury report, eleven injuries were found on the body of injured mentioned above. Injuries no. 1, 2, 3, 4, 5, 7, 9, 10, 11 were kept under observation and x-ray was advised. Injuries found on the vital part of injured were caused by appellant, hence offence under Section 307 IPC levelled against the appellant is proved beyond reasonable doubt.
19. Other documents of prosecution were proved by prosecution witnesses.
20. The evidence of P.W. 2 and P.W. 4 are wholly reliable. There is no chance for false implication of the accused- appellant and there is no chance to give false statements against the appellant because injured and other witnesses are family members of the appellant. Witnesses are neither inimical nor interested. So-called false implication on the basis of enmity as stated by the appellant is false and baseless.
21. From the perusal of record, it transpires that sharp-edged weapon (chapad) used in this crime was recovered from the possession of appellant, hence under Section 4/25 Arm Act is also proved against the appellant beyond reasonable doubt.
22. From the perusal of record, it also transpires that appellant was convicted and sentenced to five years' rigorous imprisonment under Section 307 IPC and one year's simple imprisonment under Section 325, 504 IPC and 4/25 Arms Act. All sentences run correctly. Hence, it is very clear that more than five years has been served out by the appellant.
23. View taken by the trial Court is possible view, hence no interference is called for in this appeal. For the foregoing discussions and in the above backdrop, this Court finds that other arguments and grounds of appeal made by the learned counsel for the appellant are baseless; the appeal is liable to be dismissed. Hence dismissed.
24. Appellant Harindra Singh shall be released forthwith after serving out the sentence awarded by the Court, if he has not been released. If he is not wanted in any other case.
25 Copy of this judgment be also supplied to the accused appellant through the concerned Superintendent of Jail.
26. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court within one month. Office is directed to keep the compliance report on record.
Order Date :- 26.02.2019 A. Singh