Reserved on 8.5.2019 Delivered on 31.5.2019
Court No. - 77
Case :- CRIMINAL APPEAL No. - 2985 of 2008 Appellant :- Shiv Kumar And Others Respondent :- State Of U.P.
Counsel for Appellant :- Ashok Kumar Srivastava,Devesh Pandey,Manoj Kumar Singh Counsel for Respondent :- Govt.Advocate
Hon'ble Aniruddha Singh,J.
1. Heard Sri Manoj Kumar Singh, learned counsel for appellant No.1 Shiv Kumar, Sri Devesh Pandey, learned counsel for appellant No.2 Smt. Phulwasi alias Phulwasiya and appellant No.3 Nakhru alias Ram Nath Yadav as well as Sri Hari Pratap Gupta, learned AGA for the State and perused the record.
2. This criminal appeal has been preferred by Shiv Kumar, Smt. Phulwasi alias Phulwasiya and Nakhru alias Ram Nath Yadav and under Section 374(2) Cr.P.C. against judgment and order dated 7.3.2008 passed by Additional Sessions Judge(FTC), Sonbhadra passed in Special Session Trial No. 32 of 2007(State vs. Shiv Kumar & others) arising out of Case Crime No.3 of 2007, Police Station Machi, District Sonbhadra whereby Shiv Kumar, Phulwasi @ Phulwasia and Nakhru @ Ram Nath Yadav were convicted under section 304 Part-1, 307/34 IPC and sentenced to seven years' rigorous imprisonment with fine of Rs.5000/- each under section 304 Part-1 IPC and five years' rigorous imprisonment with fine of Rs.5000/-each under Section 307/34 IPC. In failure to deposit fine, they were directed to undergo additional three months simple imprisonment each under Sections 304 Part-1, 307/34 IPC and all sentences to run concurrently. They were acquitted under Section 3(1) 5 of SC/ST (Prevention of Atrocities) Act.
3. In the nutshell, FIR was lodged by Ram Sewak against Shiv Kumar, wife of Shiv Kumar and Nakhru alleging that on 17.5.2007 at 5 P.M. Ram Bachan and his wife Premiya Devi were found seriously injured; both injured stated that Shiv Kumar, wife of Shiv Kumar and Nakhru assaulted them with axe and stick(danda). Ram Bachan died after two hours and injured Premiya was admitted in the hospital; the reason behind assault was with regard to possession over the land. Deceased Ram Bachan received following ante-mortem injuries:-
1) Abrasion on right side of face sixe 7.0 cm x 3.0 cm just below outer angle of right eye, dry blood clot present.
2) Lacerated wound on front of left forearm size 6.0cm x 1.0 cm. Bone deep, dry blood clot present 4.0 cm below elbow joint.
3) Cut injury while thickness of left thumb cut part attached to body of thin skin.
4) Cut injury on palmer aspect of right hand sixe 6.0 cm x 1.0 cm , dry blood clot present bond deep.
5) Cut injury on front of right wrist joint size 4.5 x 1.0 cm bone deep. Dry blood clot present.
Apart from above antemortem injuries, there were following injuries
1) Fracture on ulna and radius bone on left forearm.
2) Fracture of proximal phalanx of left thumb.
Doctor opined that cause of death was hemorrhage and shock due to antemortem injuries.
4. Dr. P.B. Gautam examined injured Smt. Premi. She received ten injuries. Doctor opined that injury no.2 to 10 are simple except injury no.1. Injury no.1 and 6 appeared to have been caused by heavy sharp cutting object and injuries No. 2 to 10 except (6) appeared to have been caused by hard blunt object.
5. Case was registered and after investigation charge sheet was submitted. Cognizance was taken and charges were framed under section 302/34, 307/34 IPC and 3(1)5 SC & ST (Prevention of Atrocities) Act. Appellants pleaded not guilty and prayed for trial.
6. Prosecution examined P.W.-1 Smt. Premiya @ Premi Devi, P.W. 2 Ram Sewak (informant), P.W.-3 Dr. Prem Bahadur Gautam, P.W.4 Ram Chandar, P.W.5 Dr. Ram Chandra Maurya who conducted postmortem and proved postmortem report of the deceased, P.W. 6 K.C. Gupta, P.W.7 Constable Janardan Yadav and P.W. 8 Ram Prasad Arya(Circle Officer). Prosecution proved documentary evidence Ext. Ka-1 to Ka-18 and report of Forensic Science Laboratory Ext 15-A. Statements of accused were recorded under Section 313 Cr.P.C. They stated that they have been falsely implicated. No defence witness was produced.
7. After hearing learned counsel for accused/appellants and learned Prosecuting Officer for the State, impugned judgment and order was passed. Hence this appeal.
8. 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.”
9. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.
10. P.W.-1 Smt. Premiya @ Premi Devi is injured witness and testimony of injured witness is very material evidence as it was 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.
11. 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.
12. P.W.1 Smt. Premiya @ Premi Devi stated in her statement that she is the eye-witness and she & her husband Ram Bachan had been assaulted by Shiv Kumar with axe and Smt. Phulwasi alias Phulwasiya and Nakhru alias Ram Nath Yadav with stick(lathi). Reason behind was that her 'Chachiya Sasur' namely, Bhubar had executed will of his whole property in favour of deceased Ram Bachan; accused Shiv Kumar fraudulently got executed sale deed in his favour from Bhubar in exchange of getting 'old age pension' to Bhubar. Thereafter suit was filed for cancellation of sale deed in which deceased Ram Bachan was doing pairvi.
13. P.W.2 Ram Sewak and P.W.6 K.C. Gupta are witnesses of dying declaration given by deceased Ram Bachan(husband of P.W.1). P.W.2 Ram Sewak lodged FIR stating therein that deceased had stated to him that Shiv Kumar, his wife Phulwasia, Nakhru, Shiv Murat, Lal Dhari and one unknown person had assaulted deceased and Premiya with axe and stick.
P.W.6 K.C. Gupta on the same point stated that when he reached to deceased Ram Bachan, offered tea and after sipping tea, Ram Bachan stated that Shiv Kumar and his wife had assaulted him with axe and stick. Thereafter Ram Bachan died. This fact was also stated to the Investigating Officer by him.
14. P.W.3 Dr. Prem Bahadur Gautam has proved the injury report of Smt. Premiya @ Premi Devi.
15. P.W.4 Ram Chandar proved the recovery of one axe and two sticks at the pointing out of accused Shiv Kumar.
16. P.W. 5 Dr. Ram Chandra Maurya has stated in his statement that on 18.5.2007 he conducted postmortem of Ram Bachan(aged 45 years) and found that deceased received five antemortem injuries (three incised wounds, one abrasion and one lacerated wound) with two fractures. He stated that injury nos.1 & 2 could have been caused by assault with stick and injury nos. 3,4 and 5 with sharp edged weapon. Cause of death was found hemorrhage and shock due to antemortem injuries.
17. Other witnesses proved place of occurrence, date and time of incident, entry in G.D., site plan map (Naksha Nazri) and other documents relating to offence. Place of occurrence is not disputed. Motive is also proved against Shiv Kumar and his wife Phulwasiya. P.W.6 clearly stated that deceased stated to him that only Shiv Kumar and Phulwasia assaulted the deceased.
18. As stated above, the statement of P.W.1 is not wholly reliable though she is eye-witness and injured witness as she remained unconscious after receiving injuries. Some improvement was done about number of accused but two names Shiv Kumar and his wife Phulwasia are common. In the statement of P.W.6 names of Shiv Kumar and Phulwasiya and according to P.W.2, six names who assaulted the deceased and his wife.
19. According to injury report of deceased as well as postmortem report of deceased three injuries were found on the body of deceased caused by sharp edged weapon and two by blunt object. The cause of death was cumulative effect of all injuries. Bloodstained stick and axe were also recovered at the pointing out of Shiv Kumar.
20. In these circumstances, from perusal of whole evidence produced by the prosecution, facts common are; first motive and second injury caused by Shiv Kumar. Presence of wife of Shiv Kumar was also proved beyond reasonable doubt.
21. The statements of P.W.2 and P.W.6 are very material because they are independent witnesses. Name of appellant Nakhru was not disclosed by P.W.6 who is independent witness. Names of Shiv Kumar & his wife Phulwasiya is common. In these circumstances from perusal of injuries of deceased, this Court finds that offence under Section 307 read with section 34 and 304 Part-I read with section 34 IPC is not proved beyond reasonable doubt against appellant Nakhru and he is liable to be acquitted.
Thus appellant No.3 Nakhru alias Ram Nath Yadav is acquitted under Section 307 read with section 34 and 304 Part-I read with section 34 IPC. His bail bonds are cancelled and sureties are discharged from their liabilities. He is directed to furnish bail bond under section 437-A Cr.P.C.
22. So far as appeal of Shiv Kumar and Phulwasiya is concerned, from perusal of whole evidence produced by the prosecution, it is proved beyond reasonable doubt that due to motive stated by the prosecution, they assaulted injured Premiya as well as deceased Ram Bachan.
23. In above backdrop, on the point of conviction and sentence against Shiv Kumar, appeal is liable to be dismissed and judgment of trial Court is liable to be confirmed. The appeal of appellant No.1 Shiv Kumar is dismissed accordingly. Appellant No.1 Shiv Kumar be taken into custody and sent to jail to serve out remaining sentence awarded by the Court below.
24. So far as appellant No.2 Smt. Phulwasi @ Phulwasiya is concerned, from perusal of record, it transpires that she was present at the time of incident and had assaulted the deceased. Hence appeal of appellant 2 Smt. Phulwasi @ Phulwasiya is liable be to be dismissed on the point of conviction.
25. Learned counsel for the appellants further submitted that appellant 2 Smt. Phulwasi @ Phulwasiya is old lady having no criminal history and no fruitful purpose would be served in sending her to jail at this stage. She belongs to rural area and same family, on going of her husband Shiv Kumar to jail, the whole family will suffer a lot. Hence lenient view may be taken.
26. From perusal of record, it is found that appellant 2 Smt. Phulwasi @ Phulwasiya has served out sentence for about one year(during trial from 22.5.2007 to 10.1.2008 about seven months & twenty days and after conviction from 7.3.2008 to 10.7.2008 about four months & three days). Thus she is sentenced to imprisonment already undergone with fine of Rs.15000/-(Rupees fifteen thousand) under section 304 Part-1 read with section 34 IPC and sentenced to imprisonment already undergone with fine of Rs.10000/-(Rupees ten thousand) under section 307/34 IPC. The amount shall be deposited within two months from today and in default to deposit the same, she shall undergo simple imprisonment for one year and six months under section 304 Part I read with section 34 IPC and 307 read with section 34 IPC respectively thereunder.
27. The appeal is partly allowed.
28. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned within four days. Compliance report be submitted within three months which shall be kept on record.
Order Date :-31.5.2019 P.P.