Reserved On:- 06.12.2019
Delivered On:- 18.12.2019
Case :- CRIMINAL APPEAL – 1301 of 2003
Appellant :- Sammath Katiyar And Others
Respondent :- State Of U.P.
Counsel for Appellant :- Ashok Kumar Singh,Anjani Kumar Dubey
Counsel for Respondent :- Govt.Advocate
Hon'ble Siddharth, J.
1. Heard Sri Anjani Kumar Dubey, learned counsel for the appellant and Sri Gyan Narayan Kanojia, learned A.G.A. for the State.
2. This criminal appeal was initially preferred by four appellants, namely, Sammath Katiyar, Mangi Lal, both sons of Mishri Lal, Binod @ Suman and Kalloo @ Pramod, appellant nos. 2 and 3. During the pendency of appeal Mangi Lal and Binod @ Suman have died and by the order dated 29.05.2019 this appeal has been abated against them.
3. Now this appeal stands preferred by only Sammath Katiyar and Kallu @ Pramod, appellant nos. 1 and 4, against the judgment and order dated 20.03.2003 passed by Additional District and Sessions Judge, Kanpur Dehat in Sessions Trial No. 446 of 1999, convicting the appellant, Sammath Katiyar for offences under Sections- 307/149 I.P.C. and sentencing him for 10 years rigorous imprisonment and fine of Rs. 5,000/- and on failure to deposit the fine to undergo 6 months additional imprisonment. He has been further been sentenced for offences under Section 147 I.P.C. to one month imprisonment, under Section 148 I.P.C. to two months imprisonment, under Section 324 I.P.C. read with 149 I.P.C. to one month imprisonment, under Section 323 I.P.C. read with 149 I.P.C. to two months imprisonment and for offence under Section 452 I.P.C. to six months imprisonment and fine of Rs. 100/- on failure to deposit the fine to undergo 15 days additional imprisonment.
4. Appellant No. 4, Kallu @ Pramod, has been convicted under Section- 307 IPC read with Section 149 I.P.C. and has been sentenced to two years imprisonment, under Section 147 IPC to one month imprisonment, under Section 148 IPC to two months imprisonment, under Section 324 IPC read with 149 IPC to one month imprisonment, under Section 323 IPC read with 149 IPC to two months imprisonment and for offence under Section 452 IPC to six months imprisonment and fine of Rs. 100/- on failure to deposit the fine to undergo 15 days additional imprisonment.
5. Prosecution case, in short, is that informant, Ravish Chandra, gave an application at Police Station- Bilhaur on 15.09.1996 stating that on 15.09.1996 at about 10:00 a.m. co-villagers, Sampati, Mangi Lal, Suman, Kallu, Alok son of Sampati, armed with lathi, bhala, katta and kulhadi (club, spear, country-made pistol and axe) came to their house and after hurling filthy abuses pulled out the informant and his brother Dharmendra. They misbehaved with the ladies of the house also and the accused, Sampati, who had country-made pistol in his hand, fired on his brother and the bullet hit on his face. Mangi Lal attacked the informant with axe which caused grave injuries on his head and both the hands. Other accused caused grievous blows by lathi-danda.
6. The aforesaid application was registered as FIR on 15.06.1996 at 12:45 a.m. A.S.I., V.K. Vaish, conducted the investigation and submitted charge sheet before the court. After compliance of Section 207 Cr.P.C. the case was committed to the Sessions Court. Against accused, Sammath Katiyar, charges were framed under Sections 148, 307/149, 323/149, 324/149, 452 IPC. Against Pramod Kumar @ Kallu charges were framed under Sections 147, 307/149, 323/149, 324/149, 452 IPC.
7. The two witnesses of fact and injured witnesses, P.W.-1, Dharmendra and P.W.-5, Ravish Chandra, proved the allegations made in the F.I.R. They stated that Sampat had katta in his hand, Mangi Lal had kulhadi, Kallu @ Pramod was having bhala, Suman @ Vinod and Alok had lathi in his hand. They caught hold of the injureds, P.W.-1 and P.W.-5 and pulled them out of their house to its varandah. There they started beating them and appellant no. 1, Sammat, made fire from his country- made pistol and the pellets hit P.W.-1, Dharmendra, over his face, chest, neck and right eye. He was also beaten by Suman and Alok by lathi. The others hit him by kicks and fists. Mangi Lal caused axe blow on P.W.-5, Ravish Chandra. He stopped the axe blow from his hand and received injuries. Ravish Chandra was also attacked by spear by Kallu @ Suman and Alok caused lathi blows on him.
8. Dr. Avinash Chandra Srivastava, P.W.-2, proved that he examined P.W.-1, Dharmendra Katiyar, and found the following injuries over his body-
(i) Multiple pellet injury marks on forehead, nose, right lower eye lid, cheek, chin, front of neck, chest, right shoulder and right hand. The injuries were red in colour and fresh bleeding was present. Pellets were visible in the neck lesion. Right eye was marked conjusted and ecchymosed. There was swelling of both eye lids of right eye. Vision in right eye was diminished.
(ii) Contusion 13 cm x 1.5 cm on the back of scapula, red in colour.
(iii) Contusion 8 cm x 1.5 cm on the lateral aspect of the left arm, red in colour. Opinion of doctor was that injury no. 1 was caused by fire arm, injury nos. 2 and 3 by hard and blunt object. All injuries were fresh. Injury no. 1 was kept under observation and referred for x-ray of skull and for expert opinion and further management especially of right eye injury. Injury nos. 2 and 3 were found simple in nature.
9. In the supplementary medical report, P.W.-2, recorded that as per the report of the eye surgeon, Dr. Vinod Tripathi, vision in right of the injured, Dharmendra is nil. The report of radiologist showed multiple rounded metallic small shadows on skull. 17 metallic pellets were recovered during operation from head, face, eye, mouth, nose and left exilla and both hands. The eye injury was found to be grievous in nature caused by fire arm.
10. Injured, Ravish Chandra, was examined by P.W.2, Dr. Avinash Chandra Srivastava, and he found the following injury on his body-
(i) Incised wound bone deep, 2.5 cm x 0.5 cm on ventral aspect of left forearm, fresh bleeding present. Injury was 4 cm above wrist joint over radius, red in colour.
(ii) Triradiate lacerated wound with long arm 3 cm x .5 cm and anterior extension 1 cm x 0.5 cm, scalp fresh bleeding present.
(iii) Liner abrasion 1 cm x 0.1 cm on ventral aspect of right forearm, 6 cm over wrist joint.
(iv) Swelling of tip of left ring finger with nail perforation at distel and from nail bed, fresh bleeding present.
(v) Contusion 1 cm x 1 cm on left deltoid region, red in colour.
(vi) Contusion 5 cm x 6 cm on left on thigh, red in colour, 12 cm above left knee joint.
(vii) Contusion 1 cm x 1.5 cm over left medial epicondyle.
Injury no. 1 was found to be caused by sharp edge weapon, injury nos. 4, 5, 6 and 7 by hard and blunt object, injury no. 3 by friction again linear from pointed object. All the injuries were found to be less than one day old in duration and simple in nature.
11. P.W.-3, Dr. Vinod Kumar Tripathi, stated that vision in right of the injured, Dharmendra is nil. The report of radiologist showed multiple rounded metallic small shadows on skull. 17 metallic pellets were recovered during operation from head, face, eye, mouth, nose and left exilla and both hands. The eye injury was found to be grievous in nature caused by fire arm. He further stated that injury no. 1 could have proved fatal.
12. P.W.-4, Constable, Jaganath, proved the chik F.I.R. and stated that the original G.D. has been destroyed.
13. P.W.-6, Dr., K.K. Jagtyani, stated that he conducted the x-ray of the injured, Dharmendra and found multiple small radio opaque shadows on his skull in the x-ray report. He proved the x-ray report.
14. P.W.-7, Vinod Kumar Vaish, proved his investigation record being Investigating Officer of the case.
15. Statement of the accuseds were recorded under Section 313 Cr.P.C. wherein they denied the incident and alleged false implication. They also stated that the injureds, Dharmendra and Ravish, are facing trial for kidnapping and murder of son of Radha Krishna. Police used to go to the house of the injured, Dharmendra, from their roof which is connected with his roof for arresting him and therefore he has falsely implicated him on account of enmity.
16. The trial court found that the injured witnesses, P.W.-1 and P.W.4, have been able to prove the alleged offences against the accuseds beyond doubt. Their injuries and the manner of incident stands corroborated from the medical evidence from record. Therefore, the accuseds are liable to be convicted and accordingly they have been convicted and sentenced and hence this appeal.
17. Counsel for the appellant has submitted that appellant no. 1 is aged about 80 years and is suffering from ailments of heart and of old age. Both the injureds are having criminal record and criminal antecedents. The appellants have been falsely implicated on account of property dispute. Medical report is not corroborated by prosecution story. Only interested witnesses have been examined and no recovery has been made from the possession and pointing out of the appellant no. 1 and 4 hence their participation in the alleged offence is not proved. The place of incident was also not proved. Now there is no motive for commission of the alleged offence. He has prayed that appellant nos. 1 and 4 may be acquitted of the charges.
18. Learned A.G.A. has vehemently opposed the arguments advanced on behalf of the counsel for the appellant. He has submitted that the offences alleged against the appellant nos. 1 and 4 stand fully proved from the evidence on record. The medical evidence fully corroborates the prosecution case. Mere non-proof of the motive will not entitle the accused to get acquittal. The court below has considered the material on record in correct perspective and has found that the offences alleged against the appellants stand proved. He has submitted that the age of the appellant no. 1 is about 79 year and age of appellant no. 4 is about 38 years and for awarding punishment age is irrelevant.
19. After hearing the rival contentions this court finds that both the appellants have been convicted for committing offences under Section 307/149 IPC. While appellant no. 1 has been sentenced to 10 years imprisonment, appellant no. 4 has been sentenced to two years imprisonment. The injuries caused by appellant no. 1 were found to be grievous and resulted into loss of right eye of the injured, Dharmendra. The injuries caused by the appellant no. 4 were alleged to have been caused by spear. There are incised wounds found on the body of the injured, Ravish Chandra, which are alleged to have been caused by spear. He has also suffered injuries of lathi. The incised wound on the hand and head of the injured could have been caused by axe also which was in the hand of Mangi Lal.
20. After considering the injury report and the statement of the doctor, P.W.-2, it is clear that only injury no. 3 on the body of Ravish Chandra has been clearly stated to have been caused by tip of spear. Injury no. 1 has not been clearly attributed by the doctor to be injury by spear. He has stated that it can be caused by axe also. Axe was not in the hand of the applicant but it was co-accused, Mangi Lal, who was holding axe.
21. The Apex Court has held that for conviction under Section 307 IPC the intention to cause death is also required to be proved along with the injuries inflicted. In the present case there are only injuries but the motive of the crime has not been stated. There is no definite evidence on record to prove why the injureds were attacked by the accuseds persons.
22. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc.
23. In the case of State of M.P. vs. Kashiram & Ors. (2009 4 SCC 26), the scope of intention for attracting conviction under Section 307 IPC was elaborated and it was held as under:-
"13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
14. This position was highlighted in State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28, Girija Shanker v. State of U.P. (2004) 3 SCC 793 and R. Prakash v. State of Karnataka (2004) 9 SCC 27.
* * * 16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury."
24. The Apex Court has held that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by the Apex Court in Sevaka Perumal v. State of T.N.(1991) 3 SCC 471.
25. Learned counsel for the appellants prayed for reduction of the sentence imposed on the second appellant to the period already undergone.
Placing reliance upon the judgment of this Court in Hari Singh vs. Sukhbir Singh & Ors., (1988) 4 SCC 551, learned counsel for the appellants additionally submitted that in terms of Section 357 (3) Cr.P.C. compensation may be awarded to the victim and the sentence be modified to the period already undergone.
26. For the conviction under Section 307/149 IPC, court below imposed upon the appellant no. 1 rigorous imprisonment of ten years. On appellant no. 2 rigorous imprisonment of two years has been imposed under Section 307/149 IPC. While imposing punishment, courts have an obligation to award appropriate punishment. Question of awarding sentence is a matter of discretion and the same has to be exercised by the courts taking into consideration all the relevant circumstances. What sentence would meet the ends of justice would depend upon the facts and circumstances of each case and the courts must keep in mind the gravity of the offence, motive for the crime, nature of the offence and all other attendant circumstances as held by the Apex Court in the State of M.P. vs. Bablu Natt (2009) 2 SCC 272; Alister Anthony Pareira vs. State of Maharashtra, (2012) 2 SCC 648 and Soman vs. State of Kerala, (2003) 11 SCC 383.
27. In the factual backdrop of this case the conviction and sentence of appellant nos. 1 and 2 for committing offence under Section 307 IPC is not made out. There is no motive for commission of offence proved against the appellants aforesaid. At the most offence under Section 326 IPC is made out against appellant no. 1. Against appellant no. 4 there is only injury no. 3 on the wrist which can be clearly set to be injury caused by the tip of spear. P.W.-2, Doctor has not clearly stated whether injury no. 1 can be definitely attributed to spear or axe. Clearly injury no. 3 was not grievous but simple in nature and at the most the appellant could have been convicted under Section 324/149 IPC to which he has already been sentenced. Therefore the conviction of the appellant no. 1 for offences under Section 307/149 IPC and is unjustified and is hereby set aside.
28. The age of the appellant no. 1 is 79 years. The incident took place in the year 1996. There is no justification for sending the appellant no. 1 to jail again at this stage.
29. Keeping in view that the injured, Dharmendra, has lost his right eye on account of the gun shot injury caused to him by the appellant no. 1 the sentences under Sections 326, 147, 148, 324/149, 323/149 and 452 IPC are affirmed but converted into fine of Rs. 2 lakhs which shall be paid to the injured, Dharmendra, or if he is not alive, to his legal heirs, as compensation within three months from the date of judgment.
30. Against appellant no. 4, only the offences under Sections 324/149 and 452 IPC stands proved. He is absolved of all other charges. His conviction under Section 324/149 IPC is affirmed. Keeping in view the time lag his sentence is modified and he is directed to pay fine of Rs. 25,000/- as compensation to the injured, Ravish Chandra, or to his legal heirs, if he is not alive, within three months from the date of judgment.
31. Both the appellants are on bail. Their bail bonds and sureties shall be discharged after payment of aforesaid compensation. In case of failure to pay the aforesaid fine, the defaulting appellant shall be taken into custody forthwith and would serve the remaining sentence as per the order of the trial court.
32. Office is directed to send back the record of this case to the court below along with copy of this judgment.
33. Criminal Appeal is partly allowed.
Order date: 18.12.2019 Rohit