Judgment reserved on : 07.07.2020 Judgment delivered on : 05.01.2021 Case :- CRIMINAL APPEAL No. - 20 of 1987 Appellant :- Parmatma Rai And Others Respondent :- State of U.P.
Counsel for Appellant :- M. Prakash,Madhur Prasad,P C Srivastava,Prakash Chandra Srivastav Counsel for Respondent :- A.G.A.
Hon'ble Om Prakash-VII,J.
1. This criminal appeal has been preferred by appellants Parmatma Rai, Krishna Rai, Nar Singh Rai and Ram Suresh Rai against judgment and order dated 18.12.1986 passed by I Additional Sessions Judge, Azamgarh in Sessions Trial No.174 of 1983 (State Versus Parmatma Rai and others) convicting and sentencing appellants Parmatma Rai and Krishna Rai for offence under section 304 Part-II IPC to undergo 3 years rigorous imprisonment, for offence under section 147 IPC to undergo 6 months rigorous imprisonment, for offence under section 323 read with section 149 IPC to undergo 1 year rigorous imprisonment, appellants Nar Singh Rai and Ram Suresh Rai for offence under section 147 IPC to undergo 6 months rigorous imprisonment, for offence under section 323 read with section 149 IPC to undergo 1 year rigorous imprisonment. All sentences were directed to run concurrently.
2. It was reported that during pendency of appeal, appellants-3 and 4 namely, Nar Singh Rai and Ram Suresh Rai have died, therefore, vide order dated 24.03.2017, appeal filed on their behalf has been abated. Thus, appeal is being decided only in respect of appellants-1 and 2 namely, Parmatma Rai and Krishna Rai.
3. Prosecution story, in brief, as unfolded in written report (Ex.Ka.1) are as follows :
4. Informant (P.W.1) Dipchand Rai resident of village Maltari, Police Station Jeanpur, District Azamgarh, moved a written report at police station concerned mentioning therein that on 21.11.1981 at about 10:00 A.M., informant, his wife Smt. Sudami Devi and sons Virendra Rai and Vijendra Rai were removing bricks from the lane in front of their house. Nagendra Rai was also standing there. At about 10:15 A.M., accused Lochan Rai, Narsingh Rai, Parmatma Rai and Krishna Rai came over there. Lochan Rai exhorted Parmatma Rai and Krishna Rai not to spare them. On his exhortation, accused Parmatma Rai, Krishna Rai and Narsingh Rai started throwing bricks lying in the lane with the intention to kill them. When informant's wife Sudami Devi came forward to prevent them, Parmatma Rai and Krishna Rai pelted bricks at her head. After receiving head injuries with bricks, Sudami Devi fell down on the ground. Both the sons of informant and Nagendra Rai came forward and tried to save Sudami Devi. In the meantime, accused Ram Suresh Rai exhorted all the accused to climb on the rooftop and throw the bricks on them. Whereupon all the accused climbed on the rooftop and started throwing bricks from there. Informant also received injuries on his hands and body. After intervention of the villagers, the accused went away from the spot. Since condition of Sudami Devi was critical, she was brought to District Hospital, Azamgarh by jeep.
5. Written report was scribed by Nagendra Rai. On the basis of written report (Ex.Ka.-1), Chik F.I.R. (Ex.Ka.-13) was registered at police station Jeanpur on 21.11.1981 at 11:50 A.M. at crime no.359 under sections 323, 336, 307 IPC against accused-persons named in written report. Entry was also made in general diary.
6. Informant's wife Sudami Devi was admitted at District Hospital, Azamgarh, where she succumbed to her injuries at 12:45 P.M. on the same day. An information was given to S.H.O., Kotwali, Azamgarh vide Ex.Ka.-22. Investigating officer was deputed, who reached the place where dead body of deceased was lying and prepared inquest report on 22.12.1981 at 8:45 A.M. (Ex.Ka.-20). He further prepared Nakshanas (Ex.Ka.-23), Challannas (Ex.Ka.-24), Report (Ex.Ka.-25) and also other police papers. After fulfilling all formalities, dead body of deceased was handed over to constables along with relevant police papers to carry the same to district mortuary for postmortem.
7. Autopsy on body of deceased Sudami Devi was conducted on 22.12.1981 at 2:00 P.M. by Dr. K.S. Mishra, the then Superintendent, District Hospital, Azamgarh.
On general examination, age of deceased was found 50 years. Probable time of death was about one day. Deceased was an average built, eyes were closed and mouth was semi opened. Clotted blood was oozing from nostrils and angles of mouth. Rigor mortis was passed off from upper extremities but was present in lower extremities.
On examination of body, following ante mortem injuries were found on person of deceased :
(i) Lacerated wound 1 cm. x 1/2 cm. x bone deep on the right side forehead, 4 cm. Above right eyebrow.
(ii) Multiple abraded contusion in an area of 6 cm. x 4 cm., 1 cm. medial and left to the injury no.1.
(iii) Contusion on whole of the right upper lid.
(iv) Contusion on whole of the left upper lid.
(v) Contusion 1 cm. x 1/2 cm. on front at middle of left leg.
(vi) Contusion 1 cm. x 3/10 cm. on front of the right leg, 5 cm. below right knee joint.
On internal examination of dead body, frontal and right parietal bones were found fractured into pieces. Membranes were torn into pieces under the injury of skull. Brain was lacerated and contained semi-clotted and clotted blood on the front and right side of brain surface. Stomach was empty. Faecal matter and gases were found in large and small intestines. Cause of death of deceased was shown in the postmortem report (Ex.Ka.-15) as shock and haemorrhage.
8. Informant P.W.1 Dipchand was medically examined at P.H.C., Azamgarh by Doctor on 21.11.1981 at 3:35 P.M. Following injuries were found on his person :
(i) Abrasion 0.8 cm. x 0.5 cm. on right forearm, 7 cm. below right elbow joint.
(ii) Contusion 5.5. cm. x 1.5 cm. on right forearm, 2 cm. from elbow joint.
(iii) Traumatic swelling on right hand.
(iv) Lacerated wound 0.6 cm. x 0.5 cm. x 0.3 cm., 14.5 cm. below left knee joint with swelling.
(v) Traumatic swelling 3 cm. x 1 cm. on medial aspect of toe.
In the opinion of Doctor, all the injuries were simple and nature and were caused by some blunt object. Injury report is Ex.Ka.-8.
9. Injured Vijendra Rai was medically examined at District Hospital, Azamgarh on 21.11.1981 at 5:10 P.M. by the Doctor, who found following injuries on his person :
(i) Lacerated wound 1½ cm. x 1/2 cm. through and through in the middle of pinna of left ear. Clotted blood was present.
(ii) Bruise 4 cm. x 2 cm. on left side of face, red in colour extending from the tragus of ear downwards.
(iii) Small abrasion 1/2 cm. x 1/2 cm. on outer surface of left shoulder, 1/2 cm. lateral end of clavicle.
Doctor opined that all the injuries were simple and nature and were caused by some blunt object. Injury report is Ex.Ka.-10.
10. Injured Virendra Rai was also medically examined on the same day and following injuries were found on his person :
(i) Bruise 2 cm. x 2 cm. on outer surface of left forearm in middle. Another bruise of 2 cm. x 1 cm. was present, 2 cm. proximal to prominance, which was red in colour.
(ii) Abrasion 2 ½ cm. x 1 cm. on right side of chest by the side of sternum.
(iii) Linear abrasion of 3 cm. was present on outer surface of right leg, 4 cm. above the ankle joint.
(iv) Linear abrasions of 1 ½ cm. was present on lateral surface of knee joint.
As per Doctor's opinion, all the injuries were simple in nature and were caused by some blunt object. Duration was five hours old. Injury report is Ex.Ka.-12.
11. Smt. Chandrawati Devi wife of Bechai Rai was examined on the same day at 5:30 P.M. and following injuries were found on her person :
(i) Lacerated wound 2 cm. x 1/2 cm. x skin deep on posterior surface of skull longitudinally 2 cm. above the occipital protuberance. Another lacerated wound of 2 cm. x 1/2 cm. x skin deep was present 1 cm. medial to previous wound.
(ii) Bruise of 2 cm. x 1 cm. on right side back of neck 1 cm. posterior to the root of neck.
(iii) Bruise 2 ½ cm. x 1 cm. on back of shoulder joint. 3 cm. lateral and 2 cm. posterior to injury no. (ii).
(iv) Bruise 4 cm. x 2 cm. on back of abdomen extending both sides of vertebral column.
(v) Abrasion 2 ½ cm. x 1 cm. on posterior surface of left leg, 3 cm. above the ankle joint.
As per Doctor's opinion, all the injuries were simple in nature and were caused by some blunt object. Her injury report is Ex.Ka.-11.
12. One Ajai Kumar son of Saltnat Rai aged about 14 years was also examined on the same day at 5:40 P.M. and following injury was found on his person :
(i) Abrasion 3 cm. x 1½ cm. on posterior surface of abdomen left side, 3 cm. away and out to iliac crest.
In the opinion of Doctor, injury was simple in nature and was caused by some blunt object. Injury report is Ex.Ka.-9.
13. Investigating officer took up the investigation on the same day, recorded the statement of the informant Dipchand, inspected the place of occurrence and prepared Site Plan (Ex.Ka.-16). He collected blood stained and simple earth as well as bricks from the place of occurrence (Ex.Ka.-17). He also recorded the statement of injured and witnesses and arrested the accused Parmatma Rai on 29.11.1981. After completing entire formalities and interrogating the injured and witnesses, he submitted charge-sheet (Ex.Ka.-19) against accused-persons.
14. Concerned Magistrate took the cognizance in the matter and case, being exclusively triable by the Session Judge, was committed the Court of Sessions.
15. Accused-persons appeared and trial court after hearing both the parties on 29.8.1983 framed the charges against the appellants and other co-accused (since died) for the offence under sections 147 and 304/149 IPC. Again, on 1.5.1984, additional charge for the offence under sections 323/149 IPC was added. Charges were read over to the accused-persons, to which they denied and claimed to be tried.
16. In order to prove its case, prosecution examined P.W.1 Deep Chand, the informant, P.W.2 Nagendra Rai (eyewitness account), P.W.3 Virendra (eyewitness account), P.W.4 Shiv Kumar Singh, Head Constable, P.W.5 Dr. Suresh Singh, who has examined the informant, P.W.6 Dr. Vinod Tripathi, who has examined P.W.3 Virendra Rai, Vijendra Rai, Chandrawati and Ajay Kumar, P.W.7 Vishnu Datt Tripathi, Head Moharrir, who has prepared the Chik F.I.R. and G.D., P.W.8 Dr. K.S. Mishra, who has conducted the postmortem on the dead body of the deceased and P.W.9 Shiv Nath Ram, who has investigated the case.
17. After closing the prosecution case, accused were examined under section 313 Cr.P.C. in which they clearly denied the charges levelled against them and stated that they were falsely implicated in this case. Accused persons specifically stated that there was a dispute between the parties in respect of land situated in the lane in between the houses of both the parties. Accused-persons also stated that the said land belongs to them. Informant wanted to take forcible possession of the same and due to this reason, he had initiated proceedings under section 145 Cr.P.C. Possession over the disputed land was found of the accused-persons. Subsequently, informant threatened to encroach upon the disputed land, therefore, a civil suit, being O.S. No.581 of 1981 (Narsing Rai Versus Deep Chand Rai and Another) was filed by the accused side. In Misc. Appeal, Court concerned restrained the informant from interfering in any way in the possession of the accused side. On the day of incident, informant was forcibly raising a wall. When he was asked not to raise the same, informant's side assaulted on them. Accused-persons also threw brickbats in their defence. Accused have also filed number of documents in their defence which include injury reports of injuries received by them also in the same incident.
18. Accused-persons have also examined D.W.1 Dr. K.S. Gupta, the then Medical Officer of the District Jail, Azamgarh and D.W.2 Dr. Vinod Tripathi. Accused-persons through these witnesses have proved the injury report Ex.Kha-1 belonging to Narsingh Rai, Ex.Kha-2 injury report of Lochan Rai, Ex.Kha-3 injury report of Krishan Kumar Rai, Ex.Kha-4 injury report of Smt. Babuna, Ex.Kha-5 injury report of Smt. Komla, Ex.Kha-6 & 7 injury report of Parmatma Rai, Ex.Kha-8 x-ray report of Parmatma Rai. Accused-persons have also filed Ex.Kha-9 copy of the partition map of village Maltodi, Ex.Kha-10 copy of khasra abadi, Ex.Kha- 11 copy of judgment and order passed in a reference on 17.7.1962 by the Munsif, Mohammadabad, Gohna, Ex.Kha-12 copy of the order dated 17.8.1962 passed by the S.D.M., Sagari in the proceedings under section 145 Cr.P.C., Ex.Kha-13 copy of the plaint of O.S. No.851 of 1981, Ex.Kha-14 copy of ad-interim injunction application, Ex.Kha-15 memorandum of appeal, Ex.Kha-16 copy of ad-interim injunction application moved by the District Judge, Azamgarh, Ex.Kha-17 copy of the order dated 13.10.1981 passed by the learned District Judge, Azamgarh, Ex.Kha-18 copy of the application dated 7.11.1981 moved by Narsing Rai for extending the ad-interim order. Accused-persons have filed Ex.Kha-19 copy of the order dated 7.11.1981 passed by IV Addl. District Judge, Azamgarh extending the injunction order upto 16.12.1981, Ex.Kha-20 copy of the application dated 17.11.1981 moved by Narsing Rai, Ex.Kha-21 copy of the order dated 17.11.1981 passed by IV Addl. District Judge, Azamgarh for issuing a commission, Ex.Kha-22 copy of the Commissioner's report, Ex.Kha-23 copy of the application for grant of bail by Lochan Rai and others, Ex.Kha-24 copy of the bail order and Ex.Kha-25 copy of the report made by Parmatma Rai.
19. I have heard Sri P.C. Srivastava, learned counsel appearing for the appellants and Sri R.K. Srivastava, learned A.G.A. for the State.
20. It was submitted by learned counsel for the appellants that findings recorded by the trial court in the impugned judgment and order are perverse. Informant's side themselves were aggressors, as is clear from the F.I.R. itself. A newly constructed wall has also been shown in the site plan prepared by the Investigating Officer as well as Amin Commissioner, but the trial court misinterpreting the Ex.Ka-18 (the site plan) reached at a wrong conclusion that no such type of new construction was found over the disputed land. It was further submitted that injuries found on the person of the accused side were proved by defence. They received injuries in the said incident itself, but the trial court illegally interpreting the defence evidence also reached at a wrong conclusion. There was an ad-interim injunction order operating on the day of incident passed in a misc. civil appeal against the informant's side. Despite this fact, they were encroaching the land violating the injunction order. Thus, trial court finding on this point is also perverse. Appellants' side had acted in their right of private defence of the property and person, which has been satisfactorily proved and explained. There was cross-version of the present matter. Although, no appeal has been filed against the finding recorded in the cross-case, yet findings of the trial court in the impugned judgment and order are perverse. At this stage, learned counsel appearing for the appellants specifically referred to the statement of P.W.1, P.W.2 and P.W.3 and also the statement of D.W.1 and 2 while referring the findings of the trial court. Thus, prayer was made to allow the appeal and to set-aside the impugned judgment and order.
21. On the other hand, learned A.G.A. for the State argued that judgment and order passed in the cross-version has not been challenged. Findings of the trial court recorded in the impugned judgment and order are based on evidence. Smt. Sudami Devi died during treatment due to injuries sustained by her in this incident. Number of persons belonging to the informant's side also received injuries in the same incident and appellants, forming an unlawful assembly, have committed the present offence. Thus, it was argued that there is no illegality, infirmity or perversity in the findings of the trial court.
22. I have considered the rival contentions raised by learned counsel for the parties and have gone through the entire record.
23. Findings of the trial court in the impugned judgment and order on main points are as follows :
(i) Appellants' side were aggressor. They started pelting bricks and stones on the informant's side on the date, time and place mentioned in the first information report. This fact finds support with the statement of the informant and injured witnesses i.e. P.W.1, 2 and 3.
(ii) At initial stage, although there were only four accused-persons, but during course of incident, one more accused joined them and forming an unlawful assembly they committed the present offence.
(iii) Informant's side were not raising any construction over the disputed property on the day of incident.
(iv) Injuries sustained by the accused-persons were manufactured and injury reports proved by them are also forged and fabricated.
24. Thus, on the basis of aforesaid findings, trial court reached on the conclusion that appellants' side were aggressor and informant's side have acted in their right of private defence.
25. I have analyzed the findings of the trial court minutely in light of the arguments advanced by the parties with the evidence available on record.
26. As is evident from the record, there is no dispute between the parties that a disputed lane lies in between the houses of informant and accused-persons. Proceedings under section 145 Cr.P.C. were also adhered to between them. An order under section 146 Cr.P.C. (old) was also passed by the learned Munsif and on that basis, learned S.D.M., Sagari passed the final order dated 19.3.1965 finding the actual physical possession of the appellants' side over the disputed land. It is also evident from the record that a civil suit being O.S. No.581 of 1981 (Narsing Rai Versus Deep Chand Rai and Another) was filed by the appellants' side for permanent injunction in which an ad-interim injunction application was also moved. Although same was rejected, yet in misc. civil appeal filed against the said order before the District Judge concerned, ad-interim injunction was granted in favour of the plaintiffs (appellants) restraining the informant's side. Ad-interim Injunction order was extended on 7.11.1981 upto 16.12.1981. In the aforesaid suit, commission was issued and the Commissioner prepared a report showing the foundation on the disputed land alleged to have been dug out by the informant's side.
27. If the pleas taken by the prosecution as well as appellants in the statement under section 313 Cr.P.C. are taken into consideration, then it also emerges out that there is no dispute between the parties regarding the date, time and place of occurrence. Deceased Sudami Devi also received injuries in the same inicident and she succumbed to her injuries during treatment. Thus, question needs to be decided in the appeal is whether the findings of the trial court on the point of aggressor is correct and is based on the evidence adduced by the parties ?
28. Finding of the trial court is that the informant's side have not raised any wall or dug any foundation over the disputed land. Pelting of stones and bricks were started by the appellants' side upon the informant's side. Trial court while reaching on the aforesaid conclusion have taken note of the site plan as well as commission report. Trial court was of the view that the investigating officer has not shown any wall or other type of newly raised construction over the disputed land. If the site plan (Ex.Ka.-16) prepared by the investigating officer is taken into consideration minutely, in the index, at point no.1, it has been clearly mentioned that the informant's side were collecting the bricks lying on the disputed newly constructed wall situated in the disputed land. Commission report submitted in the civil suit also indicates that a foundation was dug out over the disputed property.
29. The first information report was lodged in the matter by P.W.1 Deep Chand and he himself has admitted in the F.I.R. that they were collecting bricks from the place of occurrence on the date and time of incident. Similarly P.W.2 and P.W.3, who claimed themselves to be the eyewitness account, have also admitted the said fact. They have also admitted that on the day of incident, there was an ad-interim injunction passed by the civil court in favour of the appellants against the informant's side. It appears that the trial court finding that there was no newly constructed wall over the disputed land on the day of incident nor the same has been shown by the investigating officer in the site plan, is totally perverse and illegal. As has been discussed here-in-above, the investigating officer has shown in the site plan the newly constructed wall. Prosecution witnesses themselves have admitted that they were collecting bricks from the place of occurrence on the date and time of the incident. Thus, the trial court finding on this issue is not based on correct appreciation of facts and evidence.
30. As far as the question that who was aggressor in the matter is concerned, the trial court finding on this issue is also not based on correct appreciation of fact and evidence. D.W.1 and D.W.2 both have clearly proved that accused-persons were examined in jail on 22.11.1981 itself and injuries were found on their bodies. They have also proved the said injuries said to have been caused on 21.11.1981 at about 10:00 A.M. Trial court did not discuss the statement of D.W.1 and D.W.2 minutely and also did not take into account the fact admitted by the prosecution witnesses that they were collecting bricks at the place of incident at the time of occurrence. Since there was an ad-interim injunction against the informant's side and they were fully aware about the same, then in that situation it shall be presumed that they were collecting the bricks from the place of occurrence violating the court's order. They had no right to do any sort of work over the disputed land, as they had been restrained by the civil court through an ad-interim injunction order.
31. The plea taken by the accused-persons that the informant's side were raising wall over the disputed land violating the court's order and when they were asked not to do such work, they started throwing bricks and stones upon the appellants, to which appellants also started throwing bricks in their right of defence cannot be disbelieved. In that situation, this and only this can be presumed that both sides gathered at the place of occurrence at the time of incident. When the informant's side were illegally without any authority doing the work by raising wall and collecting the bricks violating the court's order and due to that reason both sides started pelting / throwing stones / bricks upon each other and in that event both sides sustained injuries in the same incident. Merely, on this basis that judgment and order passed in the cross case has not been challenged, the perverse findings recorded by the trial court in the impugned judgment and order cannot be allowed to stand.
32. Since the finding of the trial court on the point of aggressor is not found correct, incident did not take place as concluded by the trial court or as alleged by the prosecution, therefore, other findings recorded by the trial court, in the opinion of the Court, are also not sustainable. The informant's side themselves were aggressors. There was no intention / knowledge of the appellants' side to cause injuries to deceased Sudami Devi to attract the offence under section 304 IPC.
33. Since it is a case of sudden fight and the informant's side themselves were on wrong footing and were doing work over the disputed land by violating the court's order, therefore, the plea taken by the appellants that they also threw bricks upon the informant's side in their right of private defence of person and property cannot be denied / ignored.
34. Thus, on the basis of aforesaid analysis, Court is of the view that prosecution has not been able to prove the charge levelled against appellants beyond reasonable doubt. Findings recorded by the trial court in the impugned judgment and order regarding guilt of appellants Parmatma Rai and Krishna Rai for the offence under Sections 304 Part-II, 147, 323/149 IPC are perverse and need interference by this Court. Trial Court has erred in holding guilty to appellants for the aforesaid offence. Conviction and sentence imposed upon appellants Parmatma Rai and Krishna Rai vide impugned judgment and order is not sustainable. Appeal, therefore, deserves to be allowed and appellants are liable to be acquitted.
35. Accordingly, Appeal is allowed. Impugned judgment and order dated 18.12.1986 passed by I Additional Sessions Judge, Azamgarh in Sessions Trial No.174 of 1983 (State Versus Parmatma Rai and others) convicting and sentencing appellants Parmatma Rai and Krishna Rai for the offence under Sections 304 Part-II, 147, 323/149 IPC is set aside. Appellants Parmatma Rai and Krishna Rai are acquitted of the charge under Sections 304 Part-II, 147, 323/149 IPC. Appellants are on bail, they need not surrender. Their bail bonds stand canceled and sureties discharged.
36. Keeping in view provisions of Section 437-A Cr.P.C., appellants Parmatma Rai and Krishna Rai are directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, appellants on receipt of notice thereof shall appear before Hon'ble Supreme Court.
37. Copy of this order along with lower court record be sent to court concerned forthwith for compliance. Compliance report be also sent to this Court.
Order date :- 05.01.2021 / ss