Court No. - 41
Reserved on 9.7.2018 Delivered on 27.7.2018 Case :- CRIMINAL REVISION No. - 311 of 1991 Revisionist :- Kalloo And Others Opposite Party :- State Counsel for Revisionist :- K.D. Tripathi Counsel for Opposite Party :- A.G.A.
Hon'ble Aniruddha Singh,J.
1. This Criminal revision has been preferred against judgment and order dated 16.2.1991 passed by Special Judge(Dacoity Affected Areas), Banda in Criminal Appeal No. 60 of 1990(Kallu alias Sheonarain & two others vs. State) whereby confirming the conviction of the revisionist Lala alias Badri Prasad for six months' R.I., one year's R.I. and two years' R.I. under Sections 323/34, 324/34 and 325/34 IPC and releaving accused revisionists Kallu alias Sheonarain and Prem Lal giving benefit of U.P. First Offenders Act and directing them to maintain good character for two years and accordingly they were directed to execute a bond of Rs.5000/- and furnish two sureties of like amount within a week, arising out of judgment and order passed by Munsif Magistrate, Banda dated 23.7.1990 whereby sentencing and convicting all accused revisionists for six months R.I., one year's R.I. and two years' R.I. under Sections 323/34, 324/34 and 325/34 IPC respectively.
2. Learned counsel for the revisionists submitted that impugned order was passed against law and fact having illegality, incorrectness and impropriety.
3. In brief, facts of the case are that FIR was lodged against accused Kallu alias Sheonarain, Lala @ Badri Prasad and Prem Lal alleging that on 19.3.1986 kallu with butt of gun, Prem Lal with stick(lathi) and Lala with axe assaulted Bhura(Bhurey Lal). Bhurey Lal received following injuries:-
1. Swelling and severe pain on left upper arm 6 cm above to left elbow joint of 6 cm x 4.5 cm of blueish black colour and movement of upper arm not properly seen and advised x-ray as suspected fracture.
2. Swelling and severe pain whole left leg from left knee joint of left ankle joint of bluish black colour.
3. Swelling and pain on whole left foot dorsal side with contusion of 3 cm x 0.2 cm bluish black colour & advised x-ray.
4. Contusion on right knee joint of 3 cm x 0.2 cm anteriorily bluish black colour.
5. Incised wound on right elbow joint posteriorily 4 cm x 0.5 cm x 0.5 cm of blueish black colour with clean cut well defined margins.
Doctor opined that injury no. 5 is caused by sharp edged weapon and rest by blunt and hard object/weapon ½ to ¾ day old and injury no.1 and 3 were kept under observation & rest simple.
4. Case was registered. After investigation and completing all formalities police submitted charge sheet against all three accused. Charges were framed on 7.5.1987. Accused persons denied charges and claimed for trial.
5. Court examined P.W.1 Bhurey Lal, P.W.2 Ram Autar, P.W.3 Dr. J.P. Sharma, P.W.4 S.I. Rajesh Kumar Singh, and P.W.5. Dr.
M.C. Mittal.
6. After closure of prosecution evidence, statements of accused persons under Section 313 Cr.P.C. were recorded. They stated in their statements that they are innocent, they have not committed any offence and have been falsely implicated.
7. Trial Court after hearing parties, vide impugned judgment and order, convicted and sentenced accused revisionists for the offences under Sections 323/34, 324/34, 325/34 IPC, against which appeal has been filed before the lower Court. Both the Courts convicted and sentenced as aforesaid. Hence this revision.
8. Heard Sri Birendra Singh, learned counsel for revisionist No.2 Lala alias Badri Prasad, Sri K.D. Tripathi, learned counsel for revisionist No.1 Kallu alias Sheonarain & revisionist no.3 Prem Lal and Sri Vikas Goswami, learned A.G.A. for the State.
9. Learned counsel for the revisionists submitted that witnesses are interested witnesses and other independent witnesses have not been examined. No offence is made out against revisionists.
10. Learned A.G.A submitted that there is sufficient evidence against accused-revisionists to convict them.
11. We have considered rival submissions made by the learned counsel for the revisionists and learned A.G.A. for the State and gone through entire record.
12. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charges levelled against accused revisionists 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."
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. P.W.1 Bhurey Lal injured has clearly stated that Lala assaulted him with axe, Prem Lal assaulted with stick(lathi) and Kallu assaulted him with butt of gun. P.W.-2 Ram Autar has also corroborated the evidence of Bhurey Lal. P.W.-3 J.P. Sharma has clearly stated that injured Bhurey Lal received five injuries. Othere witnesses P.W.-4 S.I. Rajesh Kumar Singh and P.W.-5 Dr. M.C. Mittal have clearly proved documentary evidence(Ext. Ka-1 to Ext. Ka-8) and x-ray plates (Ext. 1 & 2) of injured Bhurey Lal. P.W.5 Dr.
M.C. Mittal has specifically stated that humour bone of left hand of injured Bhurey Lal was found fractured.
15. In the case of State of Karnataka vs. K. Yarappa Reddy, (1999) 8 SCC 715 it has been held that mere non-arrival of any neighbour to the scene or silence on the part of him would not reduce the credibility of evidence nor would justify to term reaction as unnatural. The presence of P.W.-1 injured Bhurey Lal and P.W.-2 Ram Autar is natural and they are natural witnesses.
16. In the case of Yogesh Singh v. Mahabeer Singh & others, 2017 Crl. L. J. 291 (Supreme Court) it has been held by the Supreme Court that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or embellishments do not affect the core of the prosecution and should not be taken to be a ground to reject the prosecution evidence. Hence, in this case evidence of P.W.-1 and P.W.-2 cannot be disbelieved on the ground that P.W.-2 Ram Autar is son of injured Bhurey Lal and both are interested witnesses.
17. Learned counsel on behalf of revisionists submitted that there was no motive to injure Bhurey Lal. This submission has no force. It was held in the State of U.P. vs. Nawab Singh, 2005 SCC (Criminal) 33 that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of prosecution witnesses even if there be any doubt raised in this regard. If the eye witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to prosecution case when other reliable evidence available on record unerringly establishes the guilt of the accused. Inspsite of that, motive mentioned in the FIR has been proved by P.W.-1 Bhurey Lal and P.W.-2 Ram Autar.
18. In the case of Lallu Manjhi & Another vs. State of Jharkhand reported in AIR 2003 SC 854, the Supreme Court has held as below:-
"The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness."
19. After analying judgment of Supreme Court in the case of Lallu Manjhi & Another vs. State of Jharkhand(supra) this Court finds that the testimony of witnesses P.W.1 Bhurey Lal (injured) and P.W.-2 Ram Autar are "wholly reliable" and are also corroborated by medical evidence as well as other documentary evidence produced by the prosecution.
20. From perusal of record, it shows that there are concurrent findings of trial court and appellate court. Maximum discretion has been exercised in favour of revisionist No.1 Kallu alias Sheonarain and revisionist No.3 Prem Lal and two years' probation has already been given to them. Seeing the role of revisionist No. 2 Lala alias Badri Prasad, I find that no leniency is required. Specific role of causing injury with axe was assigned to Lala alias Badri Prasad who had inflicted incised wound(injury no.5) on the left hand of injured Bhurey Lal, due to which humour bone of left hand of injured Bhurey Lal got fractured. Apart from this, Lala alias Badri Prasad is relative of injured Bhurey Lal and why would he falsely implicate his relative in a criminal case. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned judgment & order. The present revision lacks merit and is liable to be dismissed.
21. The revision is dismissed. Judgment and order dated 16.2.1991 passed by lower Appellate Court i.e. Special Judge(Dacoity Affected Areas), Banda in Criminal Appeal No. 60 of 1990 (Kallu alias Sheonarain & two others vs. State) is confirmed. If revisionist No.2 Lala alias Badri Prasad has not served out the sentence, he shall be taken into custody to serve out sentence.
22. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record. Order Date :- 27.7.2018 P.P.