Reserved on 24.5.2019 Delivered on 31.5.2019
Court No. - 77
Case :- CRIMINAL APPEAL No. - 425 of 2008 Appellant :- Ramesh And Another Respondent :- State Of U.P.
Counsel for Appellant :- Sheo Ram Singh,Sanjai Kumar Yadav,T.C. Sharma Counsel for Respondent :- Govt. Advocate
Hon'ble Aniruddha Singh,J.
1. Heard Sri Shiv Nath Singh, learned Senior Advocate assisted by Sri Sheo Ram Singh and Sri Rajesh Kumar, learned counsel for the appellant as well as Sri Mayank Mishra, learned Brief Holder for the State and perused the record.
2. This criminal appeal has been preferred by appellants Ramesh and Vikramaditya alias Dhelai under Section 374(2) Cr.P.C. against judgment and order dated 23.1.2008 passed by Additional Sessions Judge, Fast Track Court No. 4, Azamgarh passed in Session Trial No. 82 of 2001(State vs. Ramesh and another) arising out of Case Crime No.10 of 1998, Police Station Maharajganj, District Azamgarh whereby Ramesh and Vikramaditya @ Dhelai were convicted under section 307/34, 325/34, 323/34, 504 IPC and sentenced to six years imprisonment with fine of Rs.2000/- each under section 307/34 IPC,three years' imprisonment with fine of Rs.1000/- each under section 325/34 IPC, six months' imprisonment each under section 323/34 IPC and six months' imprisonment each under section 504 IPC. In default in deposition of fine, they have to undergo additional six months' imprisonment. All the sentences shall run concurrently.
3. In the nutshell, according to prosecution case, FIR was lodged by Nagdu Yadav against four persons namely Ramesh Yadav, Vikramaditya @ Dhelai, Kamla Yadav and Chandi Pandey alleging that on 28.11.1998 at 5 P.M. on exhortation of Kamla Yadav, Ramesh opened fire at complainant which hit on his hand; Vikramaditya @ Dhelai and Chandi Pandey assaulted him with sticks(lathi). Witnesses Jagdish Yadav, Ram Naresh and other family members saw the incident and tried to save the complainant.
Initially NCR No. 205/98 was lodged under section 323, 504 IPC on 29.11.1998.
4. Medical examination of injured Nagdu Yadav was done by Dr. Satendra Kumar Pandey on 29.11.1998. Injured received following six injuries.
1) Contusion 9 cm x 7 cm on lateral aspect of right upper arm 10 cm above elbow joint, transverse blueish red.
2) Lacerated wound 2 cm x 2 cm. X muscle deep on posterior aspect of right forearm 10 cm below right elbow joint, clotted blood present. Metallix foreign body felt in the wound.
3) Contusion 5 cm x 2 cm on posterior aspect of right forearm 6 cm above wrist joint. Transverse, swelling, tenderness and crapita present.
4) Traumatic swelling on right middle finger 4 cm above its tip.
5) Pain on right leg but no mark of external injury seen.
6) Contusion 2 cm x 2 cm on posterior aspect of right ankel joint 9 and half cm above heel.
Except injury Nos. 2 and 3, all injuries were found simple in nature and caused by hard and blunt object.
According to x-ray report, a single small foreign body is seen superficially just below skin of right forearm and in injury No.3 recent fracture was seen in lower part of right ulna. According to opinion of Dr. S.K. Pandey injury no. 2 is simple in nature and caused by firearm(gun pellet seen) and injury no. 3 is grievous in nature caused by blunt and hard object.
5. Case was registered and after investigation charge sheet was submitted. Cognizance was taken, file was committed to the Court of Sessions for trial and charges were framed. Accused pleaded not guilty and claimed for trial.
6. Prosecution examined P.W.-1 Nagdu Yadav, P.W. 2 Jagdish, P.W.-3 Dr. S.K. Singh, P.W.4 Retired S.I. Gorakhnath Singh and P.W.5 Dr. Satyendra Kumar Pandey. Statements of accused were recorded under Section 313 Cr.P.C. They stated that they have been falsely implicated.
D.W.1 Gaya Prasad Upadhyaya was produced in defence. During trial, accused Chandi Pandey and accused Kamla Yadav expired, hence case was abated against both accused.
7. After hearing learned counsel for accused/appellants and Assistant Government Counsel(Criminal) for the State, impugned judgment and order was passed. Hence this appeal.
8. Learned counsel for appellants submitted that this is a case of single witness. P.W.1 is interested and injured witness. P.W.2 Jagdish(so-called eye-witness) has not supported the prosecution case and turned hostile. According to injury report, offence under section 307 IPC is not made out against the appellants. There are major contradictions between ocular testimony and medical/injury report. The evidence of D.W.1 was ignored by the trial Court.
9. Learned Brief Holder opposed the contention of learned counsel for the appellants and submitted that there are sufficient evidence to convict appellants.
10. 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.”
11. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.
12. P.W.1 is injured witness and statement of P.W.1 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.
13. 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.
14. P.W.1 injured has stated in his statement that on exhortation of Kamla Yadav, Ramesh opened fire at him and he received one pellet injury on hand. Other co-accused assaulted him with sticks(dandas). On the issue of incident, P.W.1 injured witness stated that Ramesh and Vikramadityqa assaulted him with gun and hard and blunt object respectively. Question is whether Section 307 IPC is made out on injury caused by Ramesh by opening fire at P.W.1 ? Section 307 IPC is reproduced below for ready reference:-
“Section 307 in The Indian Penal Code 307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.—2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.]”
15. Question is whether there was intention or knowledge and under such circumstances by that act would be guilty of offence under section 307 IPC beyond reasonable doubt or not? P.W.1 is alone witness against the appellants and he is interested as well as injured witness. In the case of Santosh Devidas Behade vs. State of Maharashtra 2009(4) Supreme 380 it has been held that the testimony of witnesses in a criminal trial cannot be discarded merely because witness is a relative or family member of the victim of the offence. In this case, the Court has to adopt a careful approach in analysing such witness and if testimony of the related witness is otherwise found credible, accused can be convicted on the basis of testimony of such related witness. It is very clear that careful approach and close scrutiny is necessary.
16. Recently, in the case of State of Maharashtra vs. Dinesh reported in AIR 2018 SC 2997 it was observed that it cannot be held that testimony of sole eye-witness cannot be relied upon or conviction of the accused cannot be based upon statement of sole eye-witness of the crime. All what is needed is that the statement of sole eye-witness should be reliable, should not be any doubt in mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of crime and involvement of the accused in committing such crime. It is well settled that it is the quality of evidence and not the quantity of the evidence which is required to be judged by the Court.
17. It is also proved by D.W.1 that P.W.3 is inimical witness. In the case of State of U.P. vs. Sheo Sanehi, 2005(52) AC 113(SC) the Apex Court held that the possibility of falsely involving some persons in the crime or exaggerating the role of some of the accused by such witnesses should be kept in mind and ascertained on the fact of each case. Hence proper scrutiny is necessary.
18. It is admitted fact by injured witness P.W.1 Nagdu that Ramesh had opened fire at him and that was not written in NCR due to mistake of clerk of the police station concerned. It is also admitted that P.W.1 was not medically examined on the 'majroobi chitthi' of the police station concerned but he went to the hospital himself. It is also admitted at page 4 of the cross-examination that no treatment was taken by P.W.1 on the advice of doctor but he had taken Desi treatment(turmeric & Onion). It is also admitted at page 5 of the cross-examination by P.W.1 that at the time of incident not only four persons name in the FIR were present but some other more than 50 persons were present. P.W.1 in his cross-examination at page 5 also admitted that firing was done from the distance of two bigha and only one fire was shot. Thereafter he became unconscious. Jagsdish and Ram Naresh were also present but they have not received any injury.
19. Application under section 155(2) Cr.P.C. was submitted to the Court on 17.12.1998 after 19 days of incident which is typed copy ( Ka-2) in two pages and language shows that some legal person has prepared the draft of the application after 19 days. This fact shows that on exhortation of Kamla Yadav Ramesh opened fire with gun and only one pellet was found in right hand of P.W.1. It is also pertinent to mention here that P.W.5 Dr. Satyendra Kumar Pandey stated that injury no. 2 was simple in nature and caused by firearm. There was no blackening, tattooing or charring present on injury no.2. It is also pertinent to mention that P.W.3 Radiologist stated that injury no. 2 may be planted by putting some metal(chharra) and this type of shadow may come in x-ray. Hence it is very clear and admitted fact that injury no.2 can be planted. It is simple in nature and caused by firearm from long distance.
20. In these circumstances, it is unnatural to believe that one person shot fire from distance of two bighas with intention to cause death and only one small metal hit the right hand(on non-vital part) of injured. In these circumstances, intention or knowledge to cause death is not proved beyond reasonable doubt. Present circumstances are not in favour of prosecution about offence under section 307/34 IPC. This Court finds that offence under Section 307/34 IPC is not proved neither against applicant no.1 Ramesh nor against appellant No.2. Vikramaditya alias Dhelai. Hence both appellants are liable to be acquitted of charges under section 307/34 IPC levelled against them. Maximum offence against them goes to under section 325/34 IPC only.
21. It is also pertinent to mention here that in the FIR named witness Jagdish, has been examined by the prosecution before the trial Court as eye- witnesses as well as independent witness but he has not supported the prosecution case, turned hostile and nothing was stated by him in favour of prosecution even in cross-examination. Hence single testimony of P.W.1 rests before the Court.
22. In the circumstances as discussed above, this Court finds that no offence under section 307/34 IPC is proved beyond reasonable doubt against the appellants.
23. So far as offence under Section 504 IPC is concerned, even from examination-in-chief of P.W.-1, ingredients of section 504 IPC are not proved beyond reasonable doubt. Hence appellants are also liable to be acquitted under Section 504 IPC.
24. So far as offence under section 325/34 IPC is concerned, fracture in the hand of P.W.1 was found. Hence offence under section 325/34 IPC is proved against both appellants. Other injuries were found simple in nature.
25. So far as offence under section 323/34 IPC is concerned, it is also proved beyond reasonable doubt against both the appellants.
26. In the above backdrop, both appellants are acquitted under sections 307/34 and 504 IPC and conviction and sentence awarded by trial Court under Section 307/34 and 504 IPC are hereby quashed/set aside. However, conviction of both the appellants under Sections 325/34 and 323/25 IPC is confirmed.
27. Learned counsel for the appellants submitted that incident is of year 1998, about 20 years have elapsed; appellants belong to rural area, old aged persons and not previous convicted having no criminal history, hence lenient view may be taken.
28. Appellant No.1 Ramesh has served out sentence for eight & half month and appellant No.2 Vikramaditya @ Dhelai 16 days. Hence this Court is of the opinion that lenient view may be taken on the point of sentence to meet the ends of justice.
29. In these circumstances, appellants Ramesh and Vikramaditya alias Dhelai are convicted under section 325/34 and 323/34 IPC and sentenced to imprisonment already undergone with fine of Rs.25000/-(Rupees twenty five thousand) each under section 325/34 IPC and imprisonment already undergone under section 323/34 IPC. Fine shall be deposited within two months from today and in default in deposition of fine, both the appellants have to undergo simple imprisonment for one year.
30. The Criminal Appeal is partly allowed.
31. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned within three days for necessary compliance. Compliance report be sent to this Court which shall be kept on record.
Order Date :- 31.5.2019 P.P.