Chhotey and Others vs State of U.P.

Poonam Srivastav, J.—Heard counsel for the Appellants and learned A.G.A. for the State.

The instant criminal appeal has been preferred against judgment and order dated 20.7.1981, passed by VI Ith Additional District and Sessions Judge, Agra, in Session Trial No. 201 of 1977 State v. Chhotey and Ors. Accused/Appellants Chhotey, Gangaram, Ram Khilari, Godhan, Roshan, Kumher, Jagannath, Hotam and Jagish are convicted u/s 307 read with Section 149, I.P.C. to undergo three years R.I. as well as u/s 323 read with Section 149, I.P.C. and sentenced to undergo one year R.I. Both sentences were directed to run concurrently.

Allegation as unfolded in the F.I.R. is that on 19.6.1975 at sun rise while first informant Rakshapal Singh, his uncles Pal Singh and Sanwalia were making fences on chabutara, all the accused armed with lathi and accused Hotam and Jagdish armed with farsa arrived at the scene of occurrence with an intention to cause death to the injured. Hotam assaulted on Pal Singh with his farsa. Gangaram is also alleged to have struck farsa blow with an intention to kill the injured. Remaining accused started giving lathi blows. When Rakshapal Singh and Sanwalia raised alarm, Natthi, Chandan Singh, Ramdhar, Brahma Jeet, Ram Pati, Ram Nath and many others rescued victims from the attackers.

First information report was lodged by P.W. 1 at Case Crime No. 90 of 1975 under Sections 147, 148, 149, 307, 323 and 324, I.P.C. Police Station Saiyan, Sub-district Kheragarh, district Agra. He was injured in the incident. There were two other injured, Pal Singh and Sanwalia.

(1) Injuries of Rakshapal examined on 18.6.1975 at 12.45 noon by Dr. Chhotey Singh, are quoted below:

B/B Constable.

M.I.:

One black mole on the outer end of the Rt. Collar bone.

Injuries:

(1) L.W. 1-1/2 cm. x 1/2 cm. x scalp deep on the Rt. parietal region about 4-1/2 cm. about the Rt. ear.

(2) Abrasion 1/4 cm. x 1/4 cm. inner side of the Lt. Wrist.

(3) Contused abrasion 3/4 cm. x 1/2 cm. on the base and back of the Lt. little finger.

(4) Contusion 3 cm. x 1/2 cm. on the inner and middle of the Lt. thigh.

(5) Cont. 2 cm. x 1/2 cm.? on the inner side and middle of the Rt. thigh.

(6) Cont. 3-1/2 cm. x 1/2 cm. on the Rt. side of the back.

Injuries are simple caused by blunt weapon. Duration about half day.

(2) Injuries of Pal Singh examined on 18.6.1975 at 9.35 a.m. by Dr. Chhotey Singh, P.H.C. are quoted below:

B/B 1758 Ram Gopal.

M.I.:

One black mole on the Lt. side of the chest lower part.

Incised wound 7-1/2 cm. x 1 cm. x brain matter deep on the Rt. side of the forehead, extending to the Rt. side of the cheek. Rt. eye involved Adv. X-ray.

Cont. 3 cm. x 1/2 cm. on the back of the Rt. chest.

Cont. 2 cm. x 3/4 cm. on the back of the Rt. thigh upper part.

Cont. 3 1/2 cm. x 1/2 cm., 2 cm. below injury No. 2.

Cont. 2 cm. x 1/2 cm. on the outer side of the Rt. leg middle part.

Injury No. 1 kept under observation and adv. X-ray. Rest are simple caused by blunt object. Duration of all injuries fresh.

Inj. No. 1st caused by sharp weapon and is dangerous to life.

(3) Injuries of Sanwalia examined on 18.6.1975 at 12.30 noon by Dr. Chhottey Singh, P.H.C. are quoted below:

B/B Constable Methan Singh, C.P. No. 145.

M.I.:

One black mole over the front and upper part of the Lt. thigh.

Injuries:

(1) L.W. 1-3/4 cm. x 1/2 cm. x muscle deep on the back and lower 1/3rd of the Rt. forearm. Adv. X-ray.

(2) L.W. 1 cm. x 1/2 cm. x muscle deep on the back and upper 1/3rd of the Lt. forearm. Adv. X-ray.

Injuries kept under observation and advised X-ray. Duration about half day.

Motive assigned was that three or four days prior to date of occurrence, accused Gangaram threw garbage on the open land of Sanwalia, which resulted in an altercation between Gangaram and Sanwalia. Accused with an intention to wreak vengeance attacked on Sanwalia and other family members. All the accused denied their participation in the incident and pleaded not guilty.

Besides, N.C.R. No. 679, was lodged as cross report by Godhan Singh son of Kadam Singh, on 18.6.1975 at 5.55 p.m. at police station Kotwali, district Agra. Pal Singh son of Manwar Singh, Natthi and Pahar sons of Sanwalia were named in the said N.C.R. Information was that Appellants in appeal and accused in N.C.R. are neighbours. There was some altercation between children of the two families, which resulted in marpit by lathi.

(1) Injuries of Godan Singh examined on 10.6.1975 at 7.05 p.m. by Dr.A.M. Sukhoi, Emergency District Hospital, Agra are quoted below:

M.I. One black mole on the bridge of nose.

Injuries:

(1) Contused abrasion (scabed) 1 cm. x 1/2 cm. x with swelling in an area of 2-1/4 cm. x on the back of outer side of Lt. forearm of Lt. wrist Adv. X-ray.

(2) Contusion 1 cm. x 1/2 cm. x with swelling in an area of 2-1/2 cm. x 2 cm. x on the back of Lt. hand Adv. X-ray.

Both injuries are kept U.O. Adv. X-ray. Both injuries are caused by blunt object. Duration about half day old.

X-ray of Godan Singh, who lodged N.C.R., was performed by Dr. Rama Shankar Sharma, X-ray report is quoted below:

The radiogram shows evidence of fracture of the lower end of the radius as marked No. callus formation is seen.

M.I. of Sri. Godan Singh one black mole on the bridge of nose.

All the accused were charge-sheeted, they were committed to Court of Session. Charges were framed on 21.3.1979.

Four witnesses of fact were examined on behalf of prosecution. P.W. 1 Rakshapal Singh and P.W. 3 Sanwalia are victim of occurrence while P.W. 2 Natthi and P.W. 4 Ramapti are eye-witnesses. First information report was registered at 8.30 a.m. but no exact time of occurrence is mentioned either in the F.I.R. or in statement of any of witnesses. All of them mentioned time of occurrence at sun rise. Police station was situated at a distance of three miles. Since F.I.R. was registered at 8.30 a.m. it can very well be presumed that in the month of June, occurrence might have taken place about 5 to 6 a.m. F.I.R. exhibited as Ka-5 has been proved by P.W. 6 Ilam Singh.

The counsel for Appellants has argued that witnesses are family members and interested witnesses. Independent witnesses namely Chandan Singh, Rajdhar, Brahmajeet and Ram Nath have been withheld without any explanation. So far incised injuries are concerned, it is emphatically argued that during marpit, incised injuries were caused by falling on chaff cutting machine, which has been shown by the Investigating Officer in the site plan though doctor did not agree with this suggestion.

The counsel for Appellants has also laid stress on the fact that Godhan sustained two injuries, which is evident from Exhibit Kha-2. There is also fracture of lower end of radius in his left arm as shown in X-ray report, Exhibit Kha-1. There is no explanation from prosecution regarding injuries, therefore, it is evident that both sides indulged in some altercation and conviction u/s 307/149, I.P.C. is uncalled for and the same is liable to be set at naught. Learned Sessions Judge should have taken a note of this fact, which he failed. Therefore, conviction recorded by him is bad and illegal.

I have heard counsel appearing for Appellants and learned A.G.A. for the State at length, gone through evidence, statement on oath, cross-examination and injuries. Since admittedly, both sides have received injuries, occurrence did take place but whether accused formed an unlawful assembly to commit murder is a circumstance, which prosecution has not been able to prove. No doubt, injuries on the side of complainant cannot be overlooked but the fact that accused side also received injuries and there being no explanation, conviction u/s 307/149, I.P.C. does not appear to be merited.

Prosecution though has successfully proved that injuries were caused by accused but it cannot be said that injuries were caused with a definite intention and motive to kill the injured as well as the fact that they were not armed with any deadly weapon. Use of farsa by one of the accused is not sufficient to arrive at a definite conclusion that intention was to kill the injured especially when it has come in evidence that farsa was used from the other side. This itself negates the intention to kill. However, this was not an assertion in first information report as well. Conviction u/s 307/149, I.P.C. for three years R.I., is set at naught. However, conviction of one year R.I. u/s 323/149, I.P.C. is valid and upheld.

Appellants'' counsel has asserted that the appeal relates to the year 1981, i.e., 28 years before, the Appellants have also been enlarged on bail, no fruitful purpose will be served by sending them to jail again especially at such an old age. The Apex Court in the case of State of Punjab v. Bira Singh and Ors. held that it is not proper to send the accused to jail after lapse of more than ten years on the contrary the Hon''ble Supreme Court was satisfied by imposing fine in a case u/s 304, Part II, I.P.C. This is a case where conviction is only u/s 323/149, I.P.C. Therefore, in my view, it will be justiciable that Appellants are sentenced to the period already undergone and fine of Rs. 1,000 each of the Appellants. Fine shall be deposited within a period of three months from today.

In the event of default, accused shall undergo imprisonment for a period of six months.

For the reasons discussed above, the instant appeal is partly allowed.