Hari alias Hari Prasad Singh and Others vs State of U.P.

S.K. Jain, J.—This criminal appeal has been filed by four Appellants, namely Hari alias Hari Prasad Singh, Mahendra Singh, Lal Chand and Ram Singh against the judgment and order dated 6.3.1982 passed by learned Addl. Sessions Judge, Gorakhpur in State v. Hari and three Ors. S. T. No. 265 of 1979 under Sections 307, 326, 325/34 and 324/34, I.P.C., P. S. Sikri Ganj, district Gorakhpur whereby the learned Addl. Sessions Judge convicted the Appellants Hari alias Hari Prasad Singh and Mahendra Singh for the offence u/s 307, I.P.C. and sentenced each of them to imprisonment for life and convicted accused-Lal Chand and Ram Singh u/s 307/34, I.P.C. and sentenced each of them to undergo imprisonment for life.

During pendency of appeal Appellant No. 4 Ram Singh died and his appeal stood abated vide order of this Court dated 14.9.2007.

The facts which are essential for the purpose of this appeal are as follows:

That there was a litigation between the complainant Surya Bhan Singh on the one hand and Appellants Hari and Ram Singh on the other hand over some agricultural field. Due to this enmity on 27.7.1979 at about 5.30 a.m. when the complainant Surya Bhan Singh was going to ease himself towards the west of his village, Appellants Hari alias Hari Prasad Singh and Mahendra Singh armed with pharsa and Appellants Lal Chand and Ram Singh armed with lathis way laid him towards the north of the house of Brahmanand and caused injuries to him by their weapons. Complainant raised an alarm hearing which Prabhu Nath Singh, Roop Narain Singh and several other villagers arrived and rescued the complainant. The complainant suffered injuries all over his body. It was further alleged that by pharsa an injury was caused on his head and his right hand was chopped off.

The first informant got a written report scribed by one Shambhu Singh and submitted it at 6.45 p.m. on the same day at P. S. Sikriganj, on the basis of which H/C Jagdish Yadav prepared chick F.I.R. Ext. Ka-2 and registered the case in the G. D. as per Ext. Ka-3.

The investigation of the case was taken up by S.I., Gorakhnath Singh P.W. 6, who visited the place of occurrence on the same day and on the pointing out of the witnesses prepared site plan Ext. Ka-20 and also made search of the Appellants, but they were not traceable. He also took blood stained clothes of Shambhu Singh into possession and prepared fard recovery Ext. Ka-18. After recording the statement of the witnesses, he submitted charge-sheet Ext. Ka-22 against the four Appellants.

The injuries of complainant Surya Bhan Singh were examined by Dr. A. K. Srivastava P.W. 8 on 27.7.1979 at 7.45 p.m. in the District Hospital, Gorakhpur. He found the following injuries on the person of Surya Bhan Singh:

(1) Lacerated wound 7 cm. x 5 cm. x bone deep with traumatic swelling 14 cm. x 8 cm. on the head, 8 cm. above the right ear. Injury was bleeding. X-ray was advised.

(2) Lacerated wound 2 1/2 cm. x 2 cm. x bone deep on the scalp towards right side 6 1/2 cm. above right eye brow. Bleeding present.

(3) Lacerated wound 3 1/2 cm. x 1 1/2 cm. x bone deep on the right side forehead just above the eye brow outer angle. Bleeding present.

(4) Lacerated wound 2 cm. x 1/2 cm. x scalp deep on the back of the head 8 cm. behind injury No. 1. Bleeding present.

(5) Lacerated wound 2 1/2 cm. x 1/2 cm. x muscle deep in between the little and ring finger of the left hand.

(6) Contusion 5 cm. x 3 cm. with traumatic swelling 10 cm. x 5 cm. on the outer and lower aspect of left arm just above the elbow joint.

(7) Incised wound 4 cm. x 2 cm. x muscle deep in the back and middle part of right forearm. Margins are clean cut. Bleed on touch.

(8) Incised wound (clean cut) on the right fore arm 14 cm. x 4 cm. x bone deep. 24 cm. below the elbow joint. Only a part of the skin is attached. Both the bones of the fore arm is cut. Advised X-ray.

(9) Incised wound 10 cm. x 2 cm. x bone deep on the dorsum of the right palm upper part. Only a part of the skin is attached. Bone is also cut. Injury is 5 cm. below injury No. 8. Advised X-ray.

(10) Incised wound 12 cm. x 2 1/2 cm. x bone deep on the dorsum of right palm 1 1/2 cm. below injury No. 9. The bone is also cut. Only the skin of palm is attached. Advised X-ray.

In the opinion of the doctor the injury No. 1 was kept under observation till X-ray report was received. Injury Nos. 2 to 7 were simple in nature and injuries Nos. 8 to 10 were grievous. Injuries Nos. 1 to 6 were reported to be caused by blunt object and injuries Nos. 7 to 10 by sharp edged weapon like pharsa. The duration was reported to be fresh. The doctor prepared the injury report Ext. Ka-24. X-ray of injury No. 1 was taken by Dr. S. C. Tripathi, Radiologist, District Hospital, Gorakhpur on the same and he found fracture of lower end of the radius and ulna and corpal and metacarpol bones with distal fragments, partially amputated in the right forearm. His report is Ext. Ka-23 and the X-ray plate is material Ext. 1.

To prove its case the prosecution examined injured complainant Surya Bhan Singh as P.W. 1, Prabhu Nath Singh as P.W. 2, Smt. Rambha Devi as P.W. 3, S.I. Rajeshwar Prasad Shukla as P.W. 4, H/C Kailash Nath Singh as P.W. 5, Investigating Officer, Gorakhnath Singh as P.W. 6, Dr. S. C. Tripathi, Radiologist as P.W. 7 and Dr. A. K. Srivastava as P.W. 8 and also filed the documents.

Appellants in their statement u/s 313, Cr. P.C. denied their participation in the crime and stated that they have been falsely implicated due to enmity.

Appellant-Hari alias Hari Prasad Singh further stated that a case u/s 229B of U.P.Z.A. and L.R. Act is pending between him and the father of the complainant. He also stated that a false case by inflicting knife injuries by Mahendra on Surya Bhan was instituted and witnesses Prabhu Nath Singh and Roop Narain had falsely deposed in that case. He also stated that his son Mahendra has lodged a report u/s 307, I.P.C. against complainant Surya Bhan, Prabhu Nath and Subhash that a case is pending and this story has been concocted.

Appellant-Mahendra in his statement u/s 313, Cr. P.C. stated that on 27.7.1977 at 8 a.m. he was assaulted by Surya Bhan, Subhash and Prabhu Nath and a case u/s 307, I.P.C. is pending and in order to pressurise this false case has been concocted.

From the side of the Appellants-Sri Yogesh Dutt Misra, advocate was examined as D.W. 1 and Sri Bhagwan Singh, advocate, civil court, Gorakhpur was examined as D.W. 2.

P.W. 1 Surya Bhan Singh repeated the prosecution story given by him in his written report Ext. Ka-1 and further stated that he has got cultivation in village Mahuiduzrug. Tehsil Bansgaon and in village Laxmipur Tehsil Farinda, P.S. Cooperganj. Appellant Hari alias Hari Prasad Singh has also his share in the cultivation of village Laxmipur. The same was partitioned long ago but litigation in respect of the property of Laxmipur is going on since 1970 between him and Appellant-Hari Prasad Singh because of which there is enmity between his family and family of accused-Hari Singh. He further stated that Appellant-Mahendra Singh had assaulted him with knife before the present occurrence and in that case Mahendra Singh was acquitted. He also stated that on 26.7.1979 Appellant-Hari Singh and Lal Chand had assaulted his father Paramnath and brother Kapil Dev at village Laxmipur.

P.W. 2 Prabhu Nath Singh, P.W. 3 Rambha Devi daughter-in-law of injured Surya Bhan, the alleged witnesses of occurrence have deposed about the occurrence and supported the prosecution story.

P.W. 4 S.I. Rajeshwar Prasad Shukla is a formal witness, who proved the chick report and copy of the G. D. Ext. Ka-2 and Ka-3. P.W. 5 H/C Kailash Nath Singh is again a formal witness, who prepared the chick report Ext. Ka-19 on 26.7.1979 on the basis of written report of Kapil Dev Singh against Appellant-Hari Singh and Lal Chand and registered a case u/s 323, I.P.C. against Appellants-Hari Prasad Singh and Lal Chand.

P.W. 6 S.I. Gorakh Nath Singh is the Investigating Officer of the case. P.W. 8 Dr. A. K. Srivastava as stated above had medically examined complainant-Surya Bhan Singh.

P.W. 7 Dr. S. C. Tripathi, Radiologist stated he found fracture of radius ulna and corporal meta corporal bones as per the x-ray report of Surya Bhan Singh and proved the report Ext. Ka-23.

P.W. 8 Dr. A. K. Srivastava as stated above in the District Hospital, Gorakhpur had examined the injuries of Surya Bhan Singh.

D.W. 1 Yogesh Dutt Misra is Oath Commissioner, who proved the affidavit of Prabhu Nath Ext. Kha-2 and D.W. 2 Bhagwan Singh also stated that the affidavit was sworn by Prabhu Nath Singh.

The learned trial Judge after appraisal of evidence recorded the finding of conviction and sentenced the Appellants as aforesaid.

Learned Counsel for the Appellant-Sri Gopal Chaturvedi did not challenge the conviction of Appellants, but he urged that in the facts and circumstances of the case the sentence of imprisonment to life imposed upon the Appellants is rather harsh and it deserves to be reduced.

Learned Counsel for the complainant Sri O. P. Singh and learned A.G.A. supported the judgment of the trial court. It has been contended that injured Surya Bhan has suffered ten injuries in his body in this occurrence. Injury No. 10 is incised wound 12 cm. x 2 1/2 cm. x bone deep on the dorsum of right palm. The bone was also cut. Only the skin of palm was attached. The right hand of Surya Bhan is not working and as such the trial Judge rightly sentenced the Appellants to the imprisonment to life.

We have given our thoughtful consideration to the submissions of the learned Counsel for the parties.

From the perusal of the evidence on record it appears that admittedly there was litigation between the complainant''s family and the family of the Appellants. It is also borne out from the record that the criminal cases from both sides were also filed earlier to this occurrence. The enmity between the parties is admitted. Surya Bhan Singh P.W. 1 is injured witness. His statement is fully corroborated by the medical evidence on record. The doctor has opined that the injuries found on his body could be suffered by him at the time of the alleged occurrence.

P.W. 2 Prabhu Nath Singh and P.W. 3 Rambha Devi have also corroborated the statement of P.W. 1. A perusal of injury report of injured complainant suggests that he had suffered ten injuries. The three witnesses were put to a lengthy cross-examination, but nothing could be brought on record to discredit their statements. They have given vivid description about the manner in which the Appellants had caused injuries to the injured. We find the evidence of injured witness and two eye-witnesses natural and convincing and trustworthy. The trial court has given cogent reasons to record conviction against the Appellants and we are of the opinion that no interference in the findings recorded by the trial court is called for.

Hon''ble Apex Court in the case of Ram Kumar Vs. State (NCT) of Delhi, held that where the accused after chasing and firing the injured with country made pistol had injured the victim and accused and victim were cousin reduced the sentence of 10 years R.I. to seven years.

Keeping in view the above law and the facts and circumstances of the case and that the alleged occurrence took place on 27.7.1979 and the conviction was recorded against the Appellants on 6.3.1982. The statements of Appellants u/s 313, Cr. P.C. were recorded on 11.8.1981 at that time Appellant-Hari Singh was about 48 years of age, meaning thereby that he is now about 74 years of age. Mahendra Singh was about 23 years of age, thus he is at present about 49 years of age and Appellant-Lal Chand was about 20 years, he is now about 46 years of age. There is no evidence on record that after this occurrence the Appellants have been involved in any criminal activities. The alleged injuries were caused to the complainant by sharp edged weapons and lathis. There is no medical evidence on record that Surya Bhan is not able to work with his right hand due to injury No. 10.

Therefore, we are of the opinion that the sentence imposed on each of the Appellants, i.e., sentence to life imprisonment is too harsh. We are, therefore, of the opinion that the sentence should be modified and sentence of five years R.I. shall meet the ends of justice.

We, therefore, partly allow this appeal. We maintain the conviction of Appellants Hari alias Hari Prasad Singh and Mahendra Singh for offence punishable u/s 307/34, I.P.C. However, the sentence imposed upon each of the Appellants-Hari alias Hari Prasad Singh and Mahendra Singh for the offence punishable u/s 307, I.P.C. is reduced from imprisonment to life to rigorous imprisonment of five years. The sentence of imprisonment to life imposed upon Appellant-Lal Chand u/s 307/34, I.P.C. is also reduced to rigorous imprisonment of five years. The three Appellants are on bail. They be taken into custody to serve out the sentence.

Let a certified copy of this judgment be sent to the lower court concerned within a week for compliance. The record of the case be also transmitted to the lower court immediately. The compliance shall be reported by the Court concerned within a month from the date of receiving the copy of this judgment.