Reserved
Court No.82
Case :- CRIMINAL APPEAL No. - 1078 of 2009 Appellant :- Lalla Respondent :- State of U.P.
Counsel for Appellant :- P.C. Srivastava,Lav Srivastava,Santosh Kumar Giri Counsel for Respondent :- Govt. Advocate Hon'ble Harsh Kumar, J. Hon’ble Umesh Kumar, J.
(Per Harsh Kumar, J.)
1. The instant criminal appeal has been filed against the impugned judgment and order dated 5.2.2009 passed by Additional District & Sessions Judge, Court No.10, Gorakhpur in S.T. No.407 of 2002, (Case Crime No.277 of 1993), under Section 394, 302 I.P.C., P.S. Shahpur District Gorakhpur convicting the sole accused-appellant for offences under Sections 394, 302 I.P.C. and sentencing him with imprisonment for life and fine of Rs.5,000/- under Section 302 I.P.C. and with rigorous imprisonment for a period of 10 years and fine of Rs.2,000/- with imprisonment for an additional period of 3 months and 1 month respectively in cas of default in payment of fine.
2. The brief facts relating to the case are that Moti Lal lodged F.I.R. at P.S. Shahpur, District Gorakhpur at 11:45 p.m on 15.5.1993 at Case Crime No.277 of 1993, under Section 394 I.P.C. with averments that “on 15.5.1993 he, his brothers Hari Lal, Chotey Lal and Jagai Prasad as well as with Deep Narain, Toofani and Kewal of village were returning from Rajahi Camp Chauraha to their village after selling fishes and at about 8:00 p.m. across the railway crossing, when they reached near culvert at road, four miscreants ambushing in forest bushes armed with lathi, danda, sadasi, katta and torch reached to them and asked them in abusive manner to stop, else will be killed; that due to apprehension, they stopped and miscreants started taking their search and looted money of all of them, which was collected by them on sale of fishes and when Deep Narain made a protest, miscreants fired at him, due to which he fell down; that on alarm raised by them several persons of public arrived there with whose help they managed to catch hold of two miscreants while other two miscreants fled away with Rs.200/- looted from him; that out of two miscreants caught at the spot one named himself to be Bheem Yadav of Mohnapur Lagan Tola and another Lalla of Padari Bazar, both of P.S. Shahpur, District Gorakhpur; that since both miscreants were beaten badly by public, so both of them and Deep Narain were taken to District Hospital, Gorakhpur for treatment; that the miscreants who managed to flee away may be identified.
3. Since injured Deep Narain succumbed to the fire arm injury, offence under section 302 I.P.C. was added in the case. During investigation after collecting the injury reports of victims Ram Kewal, Toofani, Chotey Lal as well as miscreants Bheem and Lalla and post mortem reports of victim Deep Narain and miscreant Bheem, preparing site plan and collecting evidence and enquiry about the names of other two accused, who fled away from spot, disclosed as Babloo son of Makhan of Mohnapur and Bechu @ Burhwa son of Heera Lal of Bhagat Purwa, both P.S. Shahpur, District Gorakhpur, arrested Babloo. However, Babloo could not be identified during identification parade, hence was released. I.O. upon completion of investigation submitted charge-sheet against appellant Lalla under Sections 394 & 302 I.P.C. and his case was committed to sessions. In S.T. No.407 of 2002 charges under Section 394 & 302 I.P.C. were framed against sole accused Lalla on 7.10.2002 to which he denied and demanded trial.
4. In order to prove the charges prosecution produced Moti Lal, first informant as P.W.-1 Chotey Lal, Hari Lal, Toofani and Ram Kewal, the eye witnesses of incident as P.W.-2 to P.W.-5 and formal witnesses S.I. Vinod Kumar Verma, the second I.O. who submitted charge-sheet first I.O. S.I. Rama Shanker Yadav, Head Constable Gauri Shanker Yadav, who proved Chik F.I.R. and G.D., Dr. Anil Kumar Srivastava, the autopsy surgeon, who conducted post-mortem of the dead body of Deep Narain, deceased, Inspector C.B.C.I.D. Ashok Kumar Ojha, another I.O., who prepared inquest report of Bheem as well as related papers Exhibits A-6 to A-11, S.I. Vijay Kumar Tiwari, who prepared inquest report of Deep Narain and proved Exhibits A-12 to A-16, Dr. M.L. Jaiswal, who proved injury reports of injured Ram Kewal, Toofani and Chotey Lal and Dinesh Prasad Dixit, the Chief Pharmacist, who proved injury reports of culprits Bheem and Lalla Exhibits A-20 & A-21 as P.W.-6 to P.W.-13 and closed. Thereafter statement of accused Lalla was recorded under Section 313 Cr.P.C. who did not adduce any evidence in defence. After hearing parties’ counsel and analization of evidence on record the Additional Sessions Judge passed impugned order convicting the sole accused Lalla for the offences under Sections 302 & 394 I.P.C. and sentenced him with rigorous imprisonment for life and fine of Rs.5,000/- under Section 302 I.P.C. and with rigorous imprisonment for 10 years and fine of Rs.2,000/- under Section 394 I.P.C. with default clause of imprisonment for additional period of 3 months and 1 month respectively in case of non-payment of fine.
5. We have heard Sri Santosh Kumar Giri, learned counsel for appellant, Sri Anil Kumar Kushwaha, learned A.G.A. for the State and perused the record as well as the lower court record summoned in appeal.
6. Learned counsel for appellant contended that appellant has been falsely implicated for the offences under Sections 302 & 394 I.P.C.; that appellant was not one of the culprit rather was falsely implicated after picking him from his house; that there are material contradictions in prosecution evidence and none of the prosecution witnesses is alleged to have identified the real culprit who looted money and caused fire arm injuries to Deep Narain; that in F.I.R. no specific weapon or role has been assigned to each culprit rather there are general allegations that they were armed with lathi, danda, sadasi, katta and torch; that neither any weapon nor torch nor any looted money is alleged to have been recovered from the appellant; that as per prosecution case the miscreants who looted money managed to flee away; that only single fire arm injury has been sustained by Deep Narain in his back and all the prosecution witnesses have stated in their statements on oath that they could not see or identify the person/culprit who fired at Deep Narain; that in F.I.R. no other injury is alleged to have been caused to any other person by any of the culprits, rather after causing single fire arm injury to Deep Narain, upon alarm raised by first informant and associates and arrival of general public two miscreants allegedly managed to flee away with Rs.200/- looted from first informant while two culprits Bheem and Lalla were caught at the spot and badly beaten by public; that in F.I.R. there is no whisper that except Deep Narain anybody else was beaten by culprits, except that culprits who were caught on the spot, were badly beaten by public; that injury reports of Ram Kewal, Toofani and Chotey Lal Exhibits A-17, A-18 & A-19 states of simple injuries of hard and blunt object but the appellant has neither been assigned with any specific role of causing fire arm injury of Deep Narain nor any other injury to any of the three injured and may not be considered to be author of either single fatal fire arm injury of Deep Narain or alleged injuries of Ram Kewal, Toofani and Chotey Lal; that injury reports of Ram Kewal, Toofani and Chotey Lal have been obtained for avoiding responsibility of death of Bheem, the alleged culprit; that appellant did not commit the incident in question and had no concern with Bheem who died due to injuries allegedly caused to him by general public during the incident or any of the other culprits who allegedly managed to flee away; that P.W.-2 Chotey Lal in his statement on oath has stated that his medical examination was not done while P.W.-5 Ram Kewal has stated that he did not sustain any injury during the incident in question and so their injury reports are in contradiction to the evidence on record; that P.W.-3 Hari Lal is not alleged to have sustained any injury in the incident and there is no injury report of Hari Lal on record; that P.W.-4 Toofani and P.W.-5 Ram Kewal have not supported the prosecution case and have stated that due to darkness of night they could not identify any of the culprits and the appellant present before Court was not one of the culprit; that P.W.-1 Moti Lal is a Home Guard and P.W.-2 & P.W.-3 are his real brothers and being interested witnesses their testimony may not be relied; that no independent witness of public has been produced to corroborate the prosecution case; that prosecution has failed to prove charges under Sections 302 & 394 I.P.C. against accused-appellant by any reliable, cogent and independent evidence beyond reasonable doubt; that no offence under Section 302 I.P.C. is made out against appellant and he is also entitled for acquittal for offence under Section 394 I.P.C. by giving him benefit of doubt.
7. Per contra, learned A.G.A. supported the impugned judgment and order of conviction and contended that during the incident as many as three persons Ram Kewal, Toofani and Chotey Lal sustained multiple injuries of hard blunt object at the hands of miscreants and out of four miscreants, two were caught and beaten at the spot by first informant, his associates and public; that two culprits were promptly taken to hospital where their medical examination was conducted at 10:30 p.m. and 10:45 p.m. on same night per medical examination report of Bheem (Exhibit A-20), who subsequently died due to ante-mortem injuries with his autopsy report Exhibit A-5 and injury report of accused-appellant Lalla (Exhibit A-21); that since the appellant was caught on the spot so his active participation in commission of crime may not be disputed and there is no reason to disbelieve the prosecution case; that there is no reason for false implication of appellant after picking from him; that appellant has failed to deny sustaining of injuries during occurrence in question; that appeal has been filed with absolutely false and incorrect allegations and is liable to be dismissed.
8. Upon hearing parties' counsel and perusal of original record of court below summoned in the appeal, we find that as per prosecution case first informant, P.W.-1 and P.W.-2 to P.W.-4 are eye witnesses of the incident of loot/robbery in question. First informant Moti Lal in his statement on oath as P.W.-1 has proved F.I.R. and supported the prosecution story and his statement is corroborated by Chotey Lal and Hari Lal P.W.-2 & P.W.-3. No doubt that P.W.-2 and P.W.-3 are real brothers of P.W.-1 but it may not be forgotten that they are eye witnesses of incident and merely on account of relationship with first informant, their testimony may not be disbelieved out right (particularly when P.W.-2 Chotey Lal and P.W.-5 Ram Kewal are injured eye witnesses) however their testimony is to be considered with caution. P.W.-4 & P.W.-5 though have been declared hostile in view of their statements that they could not identify the culprits but both them have fully supported and corroborated the place of occurrence as well as the manner of occurrence of loot/robbery in question by several miscreants as well as of causing of fire arm injuries to Deep Narain upon his protest resulting in his death and catching hold of two culprits with aid of general public at the spot, who were also beaten by public and apart from victim Deep Narain one of the culprits Bheem also died due to injuries sustained by public while accused-appellant Lalla sustained as many as 10 injuries per injury report Ext A-21.
9. From the evidence on record that prosecution has successfully established that in the incident in question two culprits were caught by first informant, his associates as well as persons of public, who disclosed their names to be Bheem of Mohanpur and Lalla (the appellant) of Padari Bazar both P.S. Shahpur, District Gorakhpur. The injury reports of above two culprits on record Exhibit A-20 and A-21 show that Bheem sustained as many as 14 injuries by hard and blunt object out of which injury nos.1 to 5 over face were kept under observation with advice of X-ray and Lalla, the appellant sustained as many as 10 injuries by hard and blunt object out of which injury nos.2 & 7 were kept under observation and adviced for X-ray of his skull, right forearm and wrist. It is not disputed that due to above injuries 32 years old Bheem died as per post-mortem report mentioning cause of death due to shock and hemorrhage as a result of ante-mortem injuries. It is also proved from the evidence on record that Deep Narain sustained single gun shot injury resulting in his death and his post- mortem report Exhibit A-5 shows two gun shot injuries, one of entry over middle of back abdomen and the other of exit in right illiac region and cause of death opined to be shock and hemorrhage as a result of ante-mortem injuries.
10. It is settled principle of law that testimony of hostile witness may not be discarded as a whole and the portion of his statement, which corroborates prosecution case may be taken into consideration. Upon careful consideration of statements of P.W.-2 to P.W.-5 were are of the considered view that their testimony is in full consistency with prosecution case as well as statement of P.W.-1, the first informant.
11. From the evidence on record, we find that prosecution has succeeded in proving occurrence of incident of loot/robbery in question at about 8:00 p.m. on 15.5.1993 and death of Deep Narain due to gun shot injury caused by one miscreant, as well as catching of two out of four culprits on the spot out of which one died and another appellant Lalla with multiple injuries was tried and convicted.
12. Considering the charges levelled against appellant Lalla, we find that according to prosecution case all the four culprits were armed with lathi, danda, sadasi, pistol/katta and torch, but no specific weapon has been assigned to them specifically. Undisputedly no weapon is alleged to have been recovered from the two culprits who were caught during the incident or any of the other culprit on his arrest. Out of two culprits, one Bheem died due to injuries caused by public and from other appellant Lalla, neither any fire arm nor lathi, danda, sadasi or torch was recovered. It is pertinent to mention that no looted money is alleged to have been recovered from appellant Lalla. The prosecution witness Moti Lal P.W.-1 (first informant) in his statement on oath has stated that all the four culprits were covering their faces and the two culprits who managed to flee away had looted Rs.200/- from him. P.W.- 2 Chotey Lal in his statement on oath at page 26 of paper book has stated that he could not see as to which of the culprit fired. P.W.-3 at page 28 of the paper book has stated that at the time of causing of fire arm injury to Deep Narain he was at some distance so could not see as to who fired at him and P.W.-4 & P.W.-5 have also stated that they could not identify the culprits.
13. None of the prosecution witness has made any specific allegation that appellant Lalla was armed with pistols/fire arms and neither any fire arm nor any other weapon nor looted money has been recovered from him. There is absolutely no reliable, cogent or trustworthy evidence on record to prove that fatal fire arm injury of victim Deep Narain, was caused by accused-appellant Lalla and appears to have been caused by any of the other miscreants.
14. As per prosecution case the first informant and his associates were returning to their village after selling fishes on their bicycles. Undisputedly, I.O. did not found or collect any bicycle from the spot but merely for this reason prosecution case may not be disbelieved and prosecution may not suffer for latches, if any, on the part of I.O. The trial court has very rightly observed that bicycles could have been taken away by the other persons and such minor discrepancies, if any, may not adversely affect the prosecution case.
15. Since all the prosecution witnesses of fact have consistently stated that they could not identify the assailant who caused fire arm injury to Deep Narain, it is quite obvious that miscreant with fire arm would have been amongst the two miscreants who managed to flee away. It is also a matter of ordinary prudence that when public managed to catch two out of four miscreants, the persons with fire arms or other deadly weapon would have got better opportunity to escape and flee away as due to apprehension of probable injury by fire arm, no one ordinarily dares to catch such an armed miscreant. It is quite possible that two miscreants who were not having any deadly weapon could be caught at the spot because they were not armed with fire arms. In view of evidence on record the accused-appellant Lalla may not be considered to be author of single fatal fire arm injury of victim Deep Narain, deceased and his conviction for offence under Section 302 I.P.C. is unsustainable under law. It is also pertinent to mention that according to prosecution the incident of loot/robbery was committed by as many as four persons but there is no evidence on record to prove that apart from having common intention to commit robbery they also had common intention to cause death of any victim. It is quite possible that any member of the group of miscreants may be concealing fire arm for his safety/defence without knowledcge of others and would have fired without premeditation of mind, in an attempt to save himself from being caught or otherwise. So also for individual act of any one of them in absence of any evidence of common intention of all to cause death of victim appellant, one of the members of group may not be held guilty for offence under Section 302 I.P.C. with help of provisions of Section 34 I.P.C., particularly when no charge of Section 302 I.P.C. read with Section 34 I.P.C. has been framed against accused-appellant Lalla. Hence accused-appellant is found entitled to bereft of doubt and we are of considered opinion that prosecution has failed to prove him guilty for the murder of Deep Narain, for the offence under Section 302 I.P.C.
16. As far as the conviction of accused-appellant under Section 394 I.P.C. is concerned, the provisions of Section 394 I.P.C. provides that:-
“394. Voluntarily causing hurt in committing robbery.—If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”
17. It is fully proved from prosecution evidence on record that out of four miscreants, who committed the incident of loot/robbery, two were apprehended at the spot by prosecution party and general public, and were badly beaten causing multiple injuries to both of them, out of whom one Bheem succumbed to such injuries, while prompt medical examination of another accused-appellant Lalla was conducted within 3 hours of incident at District Hospital, Gorakhpur.
18. Accused-appellant Lalla who sustained as many as 10 injuries which were found to be fresh could not deny his injuries mentioned in his injury report Ext A-21 and has not stated that above injuries were sustained by him elsewhere. In his statement under Section 313 Cr.P.C. he has stated that he was falsely implicated after picking from home, which may not be accepted in view of his injuries and evidence on record.
19. In view of discussions made above, the findings of holding accused-appellant Lalla guilty for offence under Section 394 I.P.C. are free from any mistake and are liable to affirmed. However, the findings holding him guilty for the offence under Section 302 I.P.C. are wrong and incorrect and unsustainable under law.
20. Accordingly, the appeal of accused-appellant Lalla is liable to be partly allowed and partly dismissed.
21. The appeal is partly allowed and conviction of accused-appellant under Section 302 is set-aside and he is acquitted of the charges under Section 302 I.P.C. by giving him benefit of doubt. However, his conviction under Section 394 I.P.C. is affirmed and appeal in this respect stands partly dismissed.
22. As far as sentence under Section 394 I.P.C. is concerned, the trial court has sentenced accused-appellant Lalla with rigorous imprisonment for a period of 10 years and fine of Rs.2,000/- under Section 394 I.P.C. with imprisonment for an additional period of one month in case of default in payment of fine. Section 394 I.P.C. provides for punishment with imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine. The sentence imposed by trial court is just and adequate in view of facts and circumstances of the case.
23. The appellant Lalla is in jail. He will be released forthwith on completion of substantive sentence as well as sentence in lieu of default in payment of fine, unless wanted in any other case, subject to furnishing of bail bonds with sureties to appear before higher court to the satisfaction of trial court, as per provisions of Section 437-A Cr.P.C.
24. The material exhibits, if any, shall be disposed off after expiry of statutory period of appeal in accordance with rules.
25. Let a copy of this order be sent to court below through Fax & E- mail forthwith.
26. Let lower court record be sent back to court below along with a copy of this order for necessary compliance forthwith.
Order Date :- 18.12.2019 Kpy