Judgment Reserved on 24.7.2019 Judgment Delivered on 31.7.2019
Court No. - 76
Case :- CRIMINAL APPEAL No. - 9 of 2001 Appellant :- Kailash Chandra And Others Respondent :- State Of U.P. Counsel for Appellant :- K.M. Mishra Counsel for Respondent :- Govt. Advocate
Hon'ble Aniruddha Singh,J.
1. Present criminal appeal has been filed by appellants Kailash Chandra, Shiv Singh, Banshi, Santosh, Shyam Babu, Vishram Singh and Sarvesh under Section 374(2) Cr.P.C. against judgment and order dated 16.12.2000 passed by Special Judge, S.C./S.T. Act, Etawh in Sessions Trial No. 874 of 1996 arising out of Case Crime No. 25 of 1995, Police Station Chaubiya, District Etawah whereby appellants were convicted under Sections 148, 324/34, 325/34 & 342 IPC and sentenced to two years' imprisonment under section 148 IPC; two years' imprisonment with fine of Rs. 2000/- in default of payment six months additional imprisonment under Section 324/34 IPC; three years' imprisonment with fine of Rs. 3,000/-, in default of payment nine months' additional imprisonment under Section 325/34 IPC and one year's imprisonment with fine of Rs. 1000/-, in default in payment of fine, three months' additional imprisonment under Section 342 IPC. Half of total amount of fine shall be paid to injured Ram Naresh. Appellants were acquitted for the offence under Section 307/149 of IPC.
2. According to prosecution case, FIR was lodged on 3.2.1995 at 0.35 a.m. by Pramod against six accused persons namely, Kailash Chandra, Santosh, Shiv Singh, Vishram Singh, Sarvesh, Banshi Lal and one unknown person alleging that they assaulted Ram Naresh with lathi-danda and illegal arms. During investigation, the name of Shyam Babu was surfaced. According to injury report, 49 injuries were found on the body of injured including 20 contusions, 21 abrasions, four lacerated wounds, one bleeding and three other injuries. All injuries are simple in nature except injuries no. 19 & 20 which were advised for X-ray. Injuries no. 29, 30, 31, 32, 33 & 46 were caused by firearm.
3. Formality to prove other documents of prosecution is dispensed with by the learned counsel for accused- appellants, therefore, written report (Ext. Ka-1) was proved by P.W. 1 Ram Naresh (injured). Chik FIR was exhibited as Ext. Ka-2, G.D. entry as Ext. Ka-3, site plan as Ext. Ka-6 and charge sheet as Ext. Ka-7. Injury report of injured (Ext. Ka- 4) and X-ray (Ext. Ka-5) were proved by P.W.3 Dr. A.B. Katiyar. After investigation charge sheet (Ext.-Ka- 7) was submitted under Sections 148, 307/149, 325/149 & 342 IPC.
4. Charges were framed under Sections 148, 307/149, 325/149 & 342 IPC against Kailash Chandra, Shiv Singh, Banshi, Santosh, Shyam Babu, Vishram Singh and Sarvesh. They pleaded not guilty and claimed for trial.
5. In order to prove its case, prosecution examined three witnesses in all i.e. P.W. 1 Ram Naresh (injured), P.W.2 Pramod (complainant) and P.W.3 Dr. A.B. Katiyar.
6. After closure of the prosecution evidence, statements of the accused/appellants under Section 313 Cr.P.C. were recorded. They specifically stated that they are innocent and have not committed the present offence. No different evidence was produced.
7. After hearing learned counsel for the appellants as well as learned D.G.C. (criminal), the impugned judgement and order was passed. Hence this appeal.
8. Heard Sri K.M. Mishra, learned counsel for appellants as well as Sri Mayank Mishra, learned brief holder for the State and perused the record.
9. Learned counsel for the appellants submitted that according to injury report, injuries found on the body of injured are simple in nature except two injuries i.e. injuries no. 19 & 20. Appellants are old persons and incident took place in the year 1995 (near about 24 years), hence, lenient view may be taken against accused-appellants. It is admitted fact that there was previous enmity between accused- appellants and injured. There is no independent witness against the appellants except interested witnesses P.W. 1 Ram Naresh and P.W. 2 Pramod, both are real brothers. There are major contradictions between statement of P.W. 1 Ram Nanresh and statement of P.W. 2 Pramod.
10. Sri Mayank Mishra, learned brief holder for the State submitted that there is sufficient evidence against accused- appellants to convict them.
11. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charges levelled against accused appellants beyond reasonable doubt or not. 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."
12. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.
13. I have considered rival submissions made by the learned counsel for the appellants and learned A.G.A. for the State and gone through entire record.
14. In criminal cases, the statement of the injured witness is very material and on this issue, the Hon'ble Supreme Court in the case of injured witness has observed as under:
"In the case of Jarnail Sing 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"
15. Statement of P.W.1 Ram Naresh who is injured witness was recorded, he stated that accused-appellant Kailash Chandra assaulted him with stick (lathi) and accused- appellant Santosh assaulted him by shot fire with country- made pistol and several pellet injuries were found as injuries no. 29, 30, 31, 32, 33, 46. General allegations are made against all other accused-appellants. P.W.2 corroborated the statement of P.W.1.
16. From the perusal of statements of P.W.1 & P.W.2, it transpires that there are general allegations against all other accused persons except accused-appellants Kailash Chandra and Santosh. They were armed with sticks (lathi-danda). According to F.I.R. accused Shiv Singh who was armed with stick (lathi) assaulted the injured but according to statement of P.W. 1 Ram Naresh, accused-appellant Shiv Singh has not caused grievous injury with stick (lathi) to him. Hence, main role of causing injuries with hard and blunt object was assigned to accused-appellant Kailash Chandra and fracture was found on arm and chest of injured Ram Naresh. This Court finds that offence under Section 325 IPC is made out against accused-appellant Kailash Chandra only.
17. Firearm injuries found on the body of injured Ram Naresh was caused by accused-appellant Santosh, hence offence under Section 324 IPC is also made out against accused appellant Santosh only.
18. Against other accused-appellants, general role have been assigned and injuries caused by them are simple in nature i.e. abrasions, contusions. Hence against them offence under Section 342/149 IPC is made out.
19. Question is whether accused-appellants except Kailash Chandra and Santosh are liable for the offence under Sections 325 and 324 of IPC respectively or not.
20. It is very necessary to discuss Section 149 IPC. For ready reference Section 149 IPC is quoted below:-
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
21. P.W. 3 Dr. A.B. Katiyar was the formal witness, he proved injury report of P.W.1 Ram Naresh.
22. From the perusal of record, it clearly transpires that at the time of incident Kailash Chandra was armed with lathi and Santosh was armed with firearm and other accused- appellants were armed with stick (lathi-danda) only. If there was intention or object to cause injuries to injured Ram Naresh grievously, all accused-appellants had an opportunity to assault Ram Naresh till he received injuries grievous in nature but it was not done by other accused-appellants. Hence it is very clear that there was no object/motive of other accused-appellants to assault Ram Naresh grievously.
23. Sections 324 and 325 IPC are reproduced below for ready reference:-
324. Voluntarily causing hurt by dangerous weapons or means.—Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either de- scription for a term which may extend to three years, or with fine, or with both.
325. Punishment for voluntarily causing grievous hurt.—Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
24. To prove the offence under Section 149 IPC, it is essential to prove that offence was done in prosecution of the common object by unlawful assembly. Unlawful assembly is defined under Section 141 IPC. For ready reference Section 141 IPC is quoted below:-
141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is—
25. From the perusal of record, prosecution evidence as well as statements of P.W.1 and P.W.2, it is proved beyond reasonable doubt that unlawful assembly was not constituted for the offence under Section 325 & 324 of IPC. That act was done by accused-appellants Kailash and Santosh and it was not done in prosecution of the common object. The assembly except accused Kailash and Santosh did not know the offence to be likely to be committed in prosecution of that object, hence other persons are not guilty for the offence under Sections 325/149 and 324/149 IPC. No unlawful assembly was proved, hence no offence under Section 148 IPC is made out for rioting arm with deadly weapon. It is proved that unlawful assembly was not constituted. Hence, they are liable to be acquitted under Sections 148, 324/149, 325/149 of IPC.
26. It is made clear that appellants are not convicted by trial court for the offence under Section 323 IPC, Government Appeal or appeal by the complainant has not been preferred before this Court. Hence this Court finds not necessary to give finding on the point of offence under Section 323 of IPC.
27. For the foregoing discussions and in the above backdrop, this Court finds that charge under Sections 325 & 342 IPC levelled against appellant Kailash Chandra and charge under Sections 324 & 342 IPC levelled against the appellant Santosh stand proved beyond reasonable doubt. The conviction and sentence in respect of accused appellants Kailash and Santosh for the offence under Sections 325, 342 IPC and 324, 342 IPC respectively are affirmed. The criminal appeal of accused appellant Kailash for the offence under Sections 325, 342 IPC and accused appellant Santosh for the offence under Sections 324, 342 IPC are dismissed. They are acquitted under Section 148 IPC.
28. From the perusal of record and evidence produced by prosecution as well as injury report, it transpires that common object of accused-appellants was extended only upto offence punishable under Section 342 of IPC only for wrongful confinement of the injured Ram Naresh and not for offence under Section 324 & 325 of IPC. Hence, all other accused persons are liable to be punished under Section 342 read with Section 149 of IPC only.
29. So for as provision for punishment Section 342 IPC is concerned, prescribed punishment is imprisonment for one year or with fine of Rs. 1000/- or both.
30. On the point of conviction under Section 342 IPC, appeal is dismissed. All appellants are held guilty for the offence under Section 342/149 IPC. On the point of sentence, considering the age of appellants as Kailash Chandra is aged about 59 years, Santosh is aged about 55 years, Shiv Singh is aged about 47 years, Banshi is aged about 76 years, Shyam Babu is aged about 79 years, Vishram Singh is aged about 44 years and Sarvesh is aged about 51 years, because this is the first offence of accused- appellants, having no criminal history, their weak economic, social status & incident took place in the year 1995, 24 years have elapsed, ends of justice would be served out, if they are sentenced to the period already under gone with a fine of Rs. 1000/- (rupees one thousand). In default of payment of fine, they shall undergo imprisonment for additional three months.
31. The appeal is partly allowed.
32. The appeal of appellant no. 1 Kailash Chandra is partly allowed. Conviction and sentence awarded by trial court under Section 325 and 342/149 IPC is hereby confirmed. Sentences shall run concurrently. He is acquitted under Sections 324/149 & 148 IPC.
33. The appeal of appellant no. 4 Santosh is partly allowed. Conviction and sentence awarded by trial court under Sections 324 and 342/149 IPC is hereby confirmed. Sentences shall run concurrently. He is acquitted under sections 325/149 & 148 IPC
34. The appeal of appellants Shiv Singh, Banshi, Shyam Babu, Vishram Singh, Sarvesh is partly allowed. They are acquitted under Sections 148, 325/149, 324/149 of IPC. Their appeal under Section 342/149 IPC on the point of conviction is confirmed and on the point of sentence is allowed and impugned judgment & order is set aside. They are sentenced to imprisonment already undergone with fine of Rs. 1000/- (one thousand) under Section 342/149 IPC. They are directed to deposit the fine with a period of two months from today.
35. Accused-appellants Kailash Chandra and Santosh are on bail, the learned Chief Judicial Magistrate, Etawah is directed to take them into custody and lodge them in jail immediately to serve out the remaining sentences.
36. 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 three months. Office is directed to keep the compliance report on record.
Order Date :- 31.7.2019 A. Singh