Reserved on 28.5.2019 Delivered on 30.5.2019
Court No. - 77
Case :- CRIMINAL APPEAL No. - 96 of 2008 Appellant :- Prakash Giri And Another Respondent :- State Of U.P.
Counsel for Appellant :- Sunil Kumar Counsel for Respondent :- Govt. Advocate
Hon'ble Aniruddha Singh,J.
1. Heard Sri Sunil Kumar, learned counsel for appellants Prakash Giri and Vinod Giri as well as Sri P.K. Srivastava, learned AGA and perused the record.
2. This criminal appeal has been preferred by Prakash Giri and Vinod Giri under Section 374(2) Cr.P.C. against judgment and order dated 15.12.2007 passed by Additional Sessions Judge, Court No. 1, Bulandshahr passed in Session Trial No. 173 of 2005(State vs. Prakash Giri and Vinod Giri) arising out of Case Crime No.193 of 2004, Police Station Jahangirabad, District Bulandshahr whereby Prakash Giri and Vinod Giri were convicted under section 324/34, 323/34 IPC and sentenced to one year's rigorous imprisonment with fine of Rs.1000/- each under section 324/34 IPC and six months' rigorous imprisonment with fine of Rs.1000/- under section 323/34 IPC. In default in deposition of fine, they have to undergo additional three months' rigorous imprisonment on both counts. All the sentences were directed to run concurrently.
3. In the nutshell, according to prosecution case, FIR was lodged by Satya Pal Giri against three persons namely, Rajpal Giri, Prakash Giri and Vinod Giri alleging that on 13.6.2004 at 8:30 A.M. Rajpal Giri alongwith Prakash Giri and Vinod Giri came on a motorcycle from behind and deliberately dashed with the motorcycle of Bittu Giri; whereupon Bittu Giri and Girish Giri fell down; then Rajpal Giri assaulted them with knife, Prakash with a stick and Vinod Giri with butt of the countrymade pistol.
4. Injured Girish Giri received following injuries:-
1) An incised wound 3.5 cm x 0.5 cm x bone deep on right side of forehead, just above right eyebrow. Margins are clean cut, fresh bleeding present.
2) A lacerated wound size 2.5 cm x 0.5 cm. X skin deep on left side upper lip, just below left side of nose, fresh bleeding present.
3) A lacerated wound size 4.00 cm x 1.00 cm x bone deep on right side & middle of chin, fresh bleeding present.
4) An abrasion size 2.5 cm x 2 cm on right cheek prominence, oozing of blood present.
5) An abrasion size 5 cm x 2 cm on middle part of right side in front of neck, oozing of blood present.
6) A contused traumatic swelling 12 cm x 8 cm on right ankle joint. All around KUO and advised x-ray.
5. Injured Bittu received following six injuries:-
1) An abraded traumatic swelling 4 cm x 3 cm on right side of head, 7 O'clock above from right ear pinna at 11 O'clock position.
2) An abraded contusion size 7 cm x 6 cm on back of right shoulder.
3) A lacerated wound 1.5 cm x 0.5 cm on middle part & inner aspect of right knee joint, fresh bleeding present.
4) An abrasion 4 cm x 2.0 cm on right side & lower part and front of right knee joint . Oozing of blood present.
5) Abrasion 1 cm x 1 cm on inner aspect of left knee joint, oozing of blood present.
6) An abrasion 5 cm x 3 cm on right side lower part of back, oozing of blood present.
6. Case was registered and after investigation charge sheet was submitted under sections 308, 324, 323, 504, 506 IPC against Prakash Giri and Vinod Giri. Accused Rajpal Giri was exonerated. Cognizance was taken and case was committed to the Court of Sessions for trial. Charges were framed under sections 307/34, 324/34 and 323/34 IPC against both accused appellants. They pleaded not guilty and prayed for trial.
7. Prosecution examined P.W.-1 complainant Satya Pal Singh, P.W.2 injured Bittu Giri, P.W. 3 Girish Giri, P.W.-4 Dr. Dinesh Kumar, P.W.5 S.I. Bishan Pal Malik, P.W.6 Dharam Singh and P.W.7 Inspector Jai Ram Yadav. Statements of accused were recorded under Section 313 Cr.P.C. They stated that they have been falsely implicated. They have filed certified copy of a petition under section 9 Hindu Marriage Act filed by Ashok Giri against his wife Smt. Rajendri and copy of a petition u/s 24 Hindu Marriage Act filed by Smt. Rajendri in the aforesaid proceedings.
8. After hearing learned counsel for accused/appellants and ADGC (Criminal) for the State, impugned judgment and order was passed. Hence this appeal.
9. Learned counsel for appellants submitted that FIR was lodged after three days without explaining delay on 16.6.2004 at 7 P.M. The incident is of 13.6.2004 at 8:30 A.M. and the distance of police station is 8 kms from the place of occurrence. Learned counsel for appellants further submitted that Rajpal Singh was armed with knife. He was exonerated by the Investigating Officer. No application under Section 319 Cr.P.C. was moved and no order was passed. Only one incised wound was found on the body of Girish Giri. Other injuries are lacerated wounds and contusions etc. No fracture was found on the body of any injured. According to FIR, Rajpal was armed with knife. It is not a case of prosecution that any other accused had taken knife from Rajpal Giri and assaulted Girish Giri with knife. Hence no offence under section 324/34 IPC is made out against appellants Prakash Giri and Vinod Giri and they are entitled to acquittal under section 324/34 IPC on this very ground. There are major contradictions between statements of witnesses of fact as well as statements of investigating Officer and other witnesses. Hence appellants are entitled to be acquitted. The enmity is admitted and proved by the documents produced by appellants before the trial Court. It is admitted fact that Rajendri is the daughter of Rajpal Giri and she was married to Ashok Giri who is real brother of complainant. Two daughters of Rajpal Giri, Neeraj and Kavita were married to two sons of accused Prakash Giri. Several litigations are going on between Rajendri and Ashok Giri and to create pressure for compromise by Rajendri in favour of Ashok, accused have been falsely implicated. Due to that reason Rajpal Giri was exonerated after investigation.
10. Learned AGA submitted that due to enmity as stated above, this incident happened and appellants may be convicted under section 324/34 IPC. He placed reliance upon judgment of Hon'ble Apex Court in the case of Anwarul Haq vs. State of U.P., 2005 Crl.L.J. 2602, but in the opinion of Court due to difference in facts of the case, this case would not apply in the present case.
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. From perusal of record, it transpires that P.W.2 and P.W.3 are injured witnesses and their testimony is very material as has been held in the case of Jarnail Singh vs. State of Punjab, 2009(6) Supreme, 526 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 stands established in the case and it is proved that he suffered the injuries during the said incident.
14. Further in the case of Maqsoodan vs. State of U.P., (1983) 1 SCC 218(three Judges Bench) it was 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 the incident and they should normally be not disbelieved.
15. Statement of P.W.2 and P.W. 3 are corroborated by P.W.6 who is the independent witness as well as corroborated by injury reports of injured Girish Giri and Bittu Giri. Hence, it is proved beyond reasonable doubt that injuries received by injured in the incident as stated above were caused by appellants except injury no.1 of Girish Giri. Offence/charge under section 323/34 IPC is proved beyond reasonable doubt.
16. On the point of conviction under section 323/34 IPC, this Court finds no illegality and view taken by Court below is plausible view. Hence no interference is called for.
17. So far as conviction under section 324/34 IPC is concerned, it is admitted fact that Rajpal Giri was armed with knife. According to prosecution case, Rajpal Giri had assaulted Girish Giri with knife. He was exonerated and trial of Rajpal Giri was not done. Question is if injury no.1 of Girish Giri was neither caused by Rajpal Giri nor by appellants, whether appellants Prakash Giri and Vinod Giri can be convicted under section 324 IPC read with section 34 IPC? Answer will certainly be 'No'.
18. So far as the scope of section 34 IPC is concerned, it is reproduced hereunder for ready reference:-
"Section 34 in The Indian Penal Code Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
19. Word used "common intention" under Section 34 IPC is very material and it can be decided on the basis of case to case facts. It is settled law that if common intention is proved but no overt act is attributed to the individual accused, section 34 of the code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 IPC cannot be invoked. In other words, it requires a pre-arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds. It is also settled principle of law that burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert as it has been held in the case of Mrinal Das v. State of Tripura, AIR 2011 SC 3753. In this case common intention is absent as discussed above. Hence they are entitled for benefit of doubt under Section 324 IPC.
20. It is admitted fact that appellant No.1 Prakash Giri was armed with stick(danda) and appellant No.2 Vinod Giri was armed with countrymade pistol. Then it is unnatural that Vinod would not open fire with countrymade pistol though he had opportunity to do so. Hence it will not be proper to convict Vinod Giri for the offence under Section 324 read with section 34 IPC.
21. Appellant No.1 Prakash Giri was also armed with stick(danda) but no injury of stick was found sufficient or likely to cause grievous hurt. Hence, it will not be proper to convict appellant No.1 Prakash Giri under section 324 read with section 34 IPC.
22. In these circumstances, as discussed above, the offence under section 324 read with section 34 IPC is not proved beyond reasonable doubt and appellants are entitled to be acquitted and are acquitted accordingly.
23. So far as offence under section 323 IPC is concerned, the appeal on the point of conviction is liable to be dismissed and is dismissed accordingly.
24. Learned counsel for the appellants further submitted on the point of sentence that incident is of year 2004, about 15 years have elapsed; age of Prakash Giri and Vinod Giri are 72 years and 47 years respectively and they are not previously convicted persons. They belong to rural ara and they served out sentence about two months(initially at the time of bail about 18 days and after conviction about 24 days and at present from 10.5.2019 to till date). Hence considering the period of detention, it would serve justice if the appellants are sentenced to imprisonment already undergone with fine of Rs.1000/- each under Section 323/34 IPC.
25. This Court finds substance in the argument raised by learned counsel for appellants and in above circumstances lenient, view may be taken.
26. Thus, the appeal is partly allowed. Appellants Prakash Giri and Vinod Giri are acquitted under Section 324 read with section 34 IPC and they are convicted under section 323 read with section 34 IPC and sentenced to imprisonment already undergone with fine of Rs.1000/- (Rupees one thousand only) each and in default to deposit fine, they shall undergo simple imprisonment for three months. Fine shall be deposited within two months from today. Appellants are in jail. They be released immediately after depositing fine under section 323/34 IPC awarded by this Court.
27. Office is directed to transmit copy of this order alongwith record of lower Court to the Court below immediately. Compliance report be submitted within three months which shall be kept on record.
Order Date :- 30.5.2019 P.P.