Reserved on : 14.09.2018 Delivered on : 24.09.2018
Case :- CRIMINAL APPEAL No. - 2440 of 1983 Appellant :- Sheo Kumar & Another Respondent :- State Of U.P. Counsel for Appellant :- S.Ratan Counsel for Respondent :- A.G.A.
Hon'ble Harsh Kumar,J.
1. The appeal has been filed against judgment and order dated 10.10.1993 passed by Sessions Judge, Basti in S.T. No.94 of 1983 (State vs. Sheo Kumar & 2 others), under section 302/34 I.P.C., Case Crime No. 121 of 1982, P.S. Mahuli, District Basti convicting and sentencing the appellants to 7 years rigorous imprisonment under section 304(II) read with Section 34 IPC.
2. The brief facts relating to the case are that Ram Karan lodged a F.I.R. on 19.09.1982 at 10:30 p.m. at P.S. Mahuli, District Basti with the averments that “Sheo Kumar belongs to his family and his house is adjacent to his house; that the rainy water of the village passes from his door as well as door of Sheo Kumar; that today at about 5:30 p.m. Sheo Kumar and Ram Laut sons of Shyam Lal Yadav and Sri Nath son of Sheo Kumar were cutting earth from his door and covering the drain and when he and his father Musai asked them to stop, they started abusing and when asked to stop abusing, upon exhortation by Sheo Kumar, Sri Nath with lathi, Ram Laut with Ballam and Sheo Kumar with the back of spade started beating his father Musai who fell down on the ground; that he raised alarm by reaching to the village on which Shiv Poojan, Ram Laut son of Jhinku, Bahaoo and Ram Bali arrived there and intervened; that his father sustained multiple injuries of lathi and ballam and his left hand was fractured and he succumbed to the injures within half an hour. “
3. On this F.I.R. case crime No. 121 of 1982 was registered under section 304 I.P.C. against Sheo Kumar, Ram Laut and Srinath son of Sheo Kumar and upon investigation charge-sheet was submitted and case was committed to Sessions.
4. The Sessions Judge, Basti framed charges against the accused-appellants under section 302/34 I.P.C. and after recording evidence of prosecution witnesses along with one Court witness as well as statements of accused-persons under section 313 Cr.P.C. and hearing the arguments, passed impugned order acquitting accused Ram Laut by giving him benefit of doubt and convicting Sheo Kumar and Sri Nath for offence under section 304(II) read with section 34 I.P.C. and sentenced each of them with rigorous imprisonment for a period of seven years.
5. Feeling aggrieved, the two convicts preferred this appeal.
6. During pendency of appeal accused appellant no. 2 Shri Nath was reported to have died and appeal in respect of him was abated vide order dated 02.07.2018.
7. Heard Shri Amit Kumar Singh, learned counsel for the appellant, Shri L.D. Rajbhar, learned AGA for the State and perused the record.
8. Learned counsel for sole surviving appellant no. 1 contends that according to F.I.R. Mr. Bhagirathi is the scribe of written report and Shiv Poojan, Ram Laut son of Jhinka, Bahaoo of village as well as Ram Bali of village Mahobara and others had arrived at the place of incident and intervened, but the prosecution has neither produced Bhagirathi, the scribe of written report nor the alleged eyewitness Ram Laut son of Jhinka, Bahaoo and Ram Bali; that the prosecution has also not produced Investigating Officer and for not producing above material witnesses, the prosecution case may not be relied on twin testimonies of first informant, Ram Karan and alleged eyewitness Shiv Poojan who are interested witnesses; that the deceased was aged about 60 years while the first informant has stated himself to be 35-40 years old in his statements on oath as P.W.-1, but there is no whisper that he intervened or made any attempt to save his old father, rather he claims to have run towards village to call persons for help; that the conduct of first informant who was a young man in not coming for rescue of his father rather running for help to village is highly unnatural, while the accused persons were not armed with any deadly weapons like fire arm etc.; that from the statements of P.W.-1 it appears that he was not at all present at the place of occurrence and falsely stated himself to be the eyewitness of the incident; that the first informant has not sustained any injury in the incident, which makes his presence on the spot doubtful; that in the F.I.R. the sole surviving appellant Sheo Kumar has been assigned with the role of exhortation and main role of causing injuries with lathi and ballam has been assigned to Sri Nath and Ram Laut; that none of the injuries of the deceased Musai may be considered to have been caused with back of spade; that the learned trial court has acted wrongly in relying on untrustworthy evidence of prosecution witnesses and in convicting the appellant Sheo Kumar; that that appellant did not participate in the incident in question and his conviction is liable to be set aside and he is liable to be acquitted.
9. Per contra, learned AGA supported the impugned judgment and order of conviction and contended that the statements of prosecution witnesses Ram Karan, P.W.1 and Shiv Poojan, the eye witness P.W.2 are consistent and are duly corroborated by the medical evidence on record; that the evidence on record clearly proves active participation of Sheo Kumar appellant in the incident in question beyond reasonable doubt; that accused-appellants and Ram Laut, committed the incident in question, collectively/ participated in furtherance of their common intentions and caused as many as seven injuries to Musai with lathi, ballam and back of spade in their hands, resulting in his death within half an hour; that there was no reason to falsely implicate appellant leaving the real culprit; that the learned trial court has acted wrongly in acquitting the co- accused Ram Laut by giving him benefit of doubt in view of the fact that ballam was allegedly used as lathi and not as spear; that F.I.R.
is not running encyclopedia and every single detail is not required to be mentioned therein; that the appeal has been filed with wrong and baseless allegations and is liable to be dismissed.
10. The perusal of record shows that post mortem of Musai was conducted at 3:00 p.m. on 21.09.1982. As per post mortem report of Musai deceased Ext. A-2, the 60 years old Musai sustained following ante-mortem injuries:-
1. Lacerated wound 2 cm x 1 cm x bone deep on the back of left upper arm 6 cm above elbow. Underneath the wound there was fracture of humerous bone. The margins were irregular.
2. Bruise with abrasion 20 cms x 2 cm on upper part of back of chest side to side on both side.
3. Bruise with abrasion 10 cm x 2 cm on the right side of the back side to side 3 cm below injury no.2.
4. Multiple abrasions in an area of 8 cm x 6 cm on left side of back, middle part.
5. Bruise with abrasion 4 cm x 3 cm on left side of lower part of chest 10 cm above the iliac crest.
6. Abrasion 2 cm x 1 cm on top of right shoulder.
7. Abrasion 3 cm x 1 cm on left axilla outer side.
11. The autopsy surgeon P.W.3 has stated that upon internal examination he found his 8th to 10th ribs were fractured, peritoneum over spleen had ruptured and spleen had divided in two halves (two parts) and cause of death was shock & hemorrhage due to anti mortem injuries.
12. Upon hearing parties counsel and perusal of record, paper book as well as original record of trial court summoned in appeal, I find that that the incident in question is alleged to have taken place due to a petty dispute over drain, in front of houses of deceased & accused persons, which was allegedly being demolished by accused- persons and upon asking them to stop by father of first informant, accused Sri Nath armed with lathi, Ram Laut armed with Ballam and Sheo Kumar armed with Spade allegedly caused multiple injuries to Musai, the father of first informant. In F.I.R., the surviving appellant Sheo Kumar has been assigned with role of exhortation and it has been mentioned that deceased sustained injuries of lathi and ballam, however in statements P.W.1 and P.W.2, have stated that upon exhortation by Sheo Kumar, Sri Nath beaten the deceased with lathi, Ram Laut beaten him with ballam, used as lathi and Sheo Kumar hit him with back of spade. In his cross examination in para 17, the first informant, P.W.1 has stated that when the injured Musai fell down on ground, accused Sheo Kumar hit him with back of spade and again stated in para 21 that he is unable to give reasons for not mentioning in F.I.R. that upon falling of his father on ground, he hit him twice with back of spade.
13. P.W.2 Shiv Poojan, who is mentioned to be eye witness of the incident in F.I.R., has also stated in para 15 of his cross examination that Sri Nath and Lautoo (Ram Laut) were beating Musai and when he fell down, Sheo Kumar hit him with back of spade.
14. Medical Officer P.W.3 has stated that due to multiple injuries sustained by 60 years old Musai, his 8th to 10th ribs were fractured, peritoneum over spleen ruptured and spleen was divided into two halves and his death was caused due to shock and hemorrhage, as a result of anti mortem injuries.
15. The learned counsel for the appellant has doubted the conduct and presence of first informant at the spot at the time of incident for want of any injury sustained by him. I do not find any force in the arguments, because the three accused-persons allegedly armed with deadly weapons viz lathi, ballam and spade were beating his old father (by which they caused death of his father) and since he was empty handed it was quite natural for raising apprehension in his mind, that if he intervened in the incident to save his father, instead of saving his father he too will be badly beaten at the hands of accused-persons and so it will not be correct that his behavior /conduct was strange or unnatural. Moreover, it differs from person- to- person who reacts differently in different situations and since undisputedly, he was empty handed his conduct in not intervening to stop the accused, may not be considered to be unnatural and for his such conduct, or for want of injuries to him there is no sufficient reason to doubt his presence at the spot. The argument that he could have brought weapon from his adjoining house, is also baseless, as incident was committed in few minutes and the assailants were not supposed to wait for him to return with weapon from home and cause injuries to them.
16. The other contention of learned counsel for the appellant that since scribe of F.I.R., Mr. Bhagirathi and three eye witnesses mentioned in F.I.R. Ram Laut son of Jhinkoo Yadav, Bahaoo and Ram Bali have not been produced, so for not producing best evidence, adverse inference must be drawn against the prosecution and prosecution case, is liable to be disbelieved, also has no force because one of the four eye witnesses mentioned in F.I.R. Shiv Poojan has been produced as P.W.2 and quality and not the quantity of witnesses is material. The statement of P.W.2 Shiv Poojan, the eye witness mentioned in F.I.R. is in conformity with prosecution case, statement of P.W.1 and medical evidence on record. Hence the prosecution case may not be disbelieved or thrown out, merely for non production of other three eye witnesses or scribe mentioned in F.I.R. It is also noteworthy that Shiv Poojan is not alleged to be inimical to the accused-persons and is not alleged to be a partisan witness, so his testimony may safely be relied.
17. The contention of learned counsel for the appellant that out of seven injuries sustained by deceased, as mentioned in postmortem report Ext. A-2, none of the injury may be considered to have been sustained with the back of spade. The incident in question did take place suddenly due to a petty dispute over drain. Spade is an instrument used for digging earth etc., agricultural purposes, which carries around 2-3 feet long wooden stump at the bottom of which there remains a 3 to 4 m.m. thick iron plate of the size around 9” x 9”. Thickness and size of iron plate as well as length of wooden stumps differs from spade to spade, front side of which carries edge to dig the earth. A blow from front i.e. edged side, may cause grievous incised wound but if the assailant is not having any intention to cause grievous injuries and uses it from back side, it is quite possible that the back side of iron plate, which also carries corners, may also hit the other parts of body, apart from by the stump of spade and the possibility of causing of injury nos.1, 6 and 7 with the back of spade, may not be ruled out. It is noteworthy that if a person makes an attempt on the life of other with spade in his hand, he is supposed to give blow to injured from front i.e. sharp edged side and not by back of spade. By using the spade from back side and not giving spade blow from sharp edged side, makes it clear that in absence of any allegations of previous enmity and in view of the evidence on record, the accused appellant Sheo Kumar had no intention to cause grievous injuries or commit death of Musai.
18. It is pertinent to mention that by forceful blows of lathi, Ballam & back of spade allegedly given by accused-persons not only three ribs of deceased were fractured but his spleen was also divided into two parts and due to cumulative effect of all the injuries death of 60 years old Musai did take place within no time. The nature of injuries of deceased does not indicate to have been caused by single person and single weapon, which also indicates active participation of accused-appellant in the incident in question. Moreover, the surviving accused-appellant Sheo Kumar has apart from been exhortation has also assigned with the role of hitting the deceased with back of spade and his active participation in the incident in common intention with co-accused persons may not be ruled out, and is fully proved beyond reasonable doubt from the evidence on record.
19. Against the acquittal part of impugned judgment, acquitting co-accused Ram Laut giving him benefit of doubt neither government appeal nor appeal by first informant/victim has been filed, so that part of impugned judgment, may not be touched.
20. Upon careful analysis of evidence on record, I find that the incident in question was not committed in pre-planned manner with an intention of causing death of Musai or causing such bodily injuries as is likely to cause his death rather the incident in question did take place in a heat of passion, in a spur of moment over petty dispute of drain where in the accused persons caused injuries to 60 years old Musai with the knowledge that it is likely to cause his death, though without any intention to cause his death.
21. In view of discussions made above, I have come to the conclusion that the learned trial court has not committed any mistake in holding the accused-appellants guilty for committing the incident in question, resulting in death of Musai and in convicting the appellants for the offence under section 304(II) read with section 34 IPC. There is no sufficient ground for setting aside, the impugned judgment of conviction and the appeal is liable to be dismissed and the impugned judgment and order of conviction is liable to be affirmed.
22. However, considering the fact that (i) the incident in question did take place on 19.9.1982 around 36 years back (ii) sole surviving accused-appellant was released on bail vide order dated 19.10.1983 in this appeal about 35 years back, (iii) the sole surviving accused- appellant Sheo Kumar was aged about 40-45 years at the time of his statement under section 313 Cr.P.C. as on 21.9.1983 and during last 35 years, he must have attained the age around 65-70 years and may also have become weak and (iv) there is no other criminal antecedents to the credit of surviving appellant Sheo Kumar, prior or subsequent to the incident in question and (v) he would have remained in custody during trial for few days and further for one month since 14.8.2018 in furtherance of non bailable warrants issued in this appeal till grant of bail vide order dated 14.9.2018. I find that it would not be just and appropriate that even upon affirmation of his conviction under section 304(II) IPC, the sentence imposed on him, may be reduced to the period of imprisonment already undergone with imposition of some fine, which will meet the ends of justice.
23. The appeal is partly dismissed. The impugned judgment and order is upheld and conviction of sole surviving accused-appellant Sheo Kumar under section 304(II) read with section 34 IPC is affirmed. The appeal is partly allowed and the sentence imposed on surviving appellant Sheo Kumar is modified and reduced in the manner that he is sentenced with rigorous imprisonment for a period already undergone and fine of Rs.5,000/- (to be deposited within two months) or in case of default in payment of fine with simple imprisonment for an additional period of two months under section 304(II) read with section 34 IPC.
24. The appellant is on bail, he need not surrender unless wanted in other case or commits default in payment of fine.
25. Material exhibits, if any, be disposed of after statutory period in accordance with rules.
26. Let the record of trial court be sent back to court below forthwith alongwith copy of this judgment for necessary compliance, if any.
Order Date :- 24.9.2018 Bhanu/Tamang