Mahipal and Others vs State of U.P.

Ramesh Sinha, J.—This Criminal Appeal has been filed against the judgment and order dated 19.09.1984 passed by 6th Additional Sessions Judge, Aligarh in S.T. No. 438 of 1983 (State v. Mahipal and others). The appellants were convicted u/s 148, I.P.C. and sentence to under for two years rigorous imprisonment and the rest of the appellants were convicted u/s 323, I.P.C. read with Section 149, I.P.C. and sentence to six months rigorous imprisonment and all the appellants were also convicted u/s 324, I.P.C. read with Section 149, I.P.C. and sentence to two years rigorous imprisonment and all the sentences were directed to run concurrently. The appellant Nos. 1 (Mahipal) and 2 (Prem Pal) have expired during the pendency of the appeal, hence, the appeal against the appellant Nos. 1 and 2 was ordered to be abated vide order of this Court dated 07.01.2011.

The prosecution case, in brief, is that on 29.03.1983 few days before the Holi Festival, there was a sad demise in the family of one Jitendra Kumar as his uncle had expired. Hence, Jitendra Kumar and Prem Sharma were not playing colours or celebrating the Holi Festival. On the date of the incident, when the festival of colours was going on then at about 3:00 p.m. in the afternoon Jitendra Kumar and Prem Sharma were sitting on their Chabutara along with Amar Singh, Shishu Pal and Man Singh and others. The accused Banwari and Chandra Pal while playing colours had come there and started throwing wet mud on them on which Jitendra Kumar and Prem Sharma told them not to do so. On which accused Banwari and Chandra Pal started abusing them. Further, the person sitting on the Chabutara also asked them not to do so on which Banwari and Chandra Pal threatened them and said that they will again come and went away. After short while accused Mahipal and Banwari armed with pharsa, Chandra Pal, Ram Pal and Rishi armed with lathies arrived at the place of occurrence and on the exhortation of Mahipal, Banwari assaulted with pharsa and other accused with lathi and pharsa started assaulting Jitendra Kumar and Prem Sharma who were injured and the accused persons ran away. Out of fear the persons sitting out of chabutara did not try to save the injured and the accused kept on assaulting them.

Jitendra lodged a first information report at police station Kuarshi after getting it written from one Harendra Pal Singh on the same day at about 4:15 p.m. Prem Sharma, Harendra, Jitendra Kumar and others have gone to the police station and from there injured Prem Sharma and Jitendra Kumar were sent for medical examination to Malkhan Singh, Hospital, Aligarh.

PW6 Dr. I.H. Qurashi examined the injured Jitendra Kumar Sharma on 29.03.1983 at about 4:45 p.m. at Malkhan Singh, Hospital, Aligarh and found the injury mentioned hereinbelow:--

(Vernacular matter omitted....Ed.)

Red mark of bruised injury 2 cm x 1 cm, on left side of forehead, 1 cm above the left eyebrow. Report of aforesaid 1 injury is exhibit ka6

(English translated)

Similarly, on the same day, at about 5:00 p.m. PW3 Dr. I.H. Qurashi also examined the other injured Prem Sharma and he found the injuries on his person which is quoted hereinbelow:--

(Vernacular matter omitted.... Ed.)

Incised wound 3 cm x 1/2 cm bone deep on the left side of the face, in a slanting position.

(English translated)

The doctor found both edges were sharp and full of blood. An X-Ray was advised. Under the guidance of Dr. O.P. Varshney, PW7 Ramashankar Bhardwaj performed X-Ray on Prem Sharma on 31.03.83. X-Ray plates are Exhibits I & II. On the basis of these plates, Dr. O.P. Varshney prepared a report, which is exhibit Ka8."

The X-Ray of injured Prem Sharma was performed by Dr. O.P. Vashney. X-Ray plates prepared which were marked as Ext. Ka1 and Ext. Ka2 and the supplementary report which was prepared by Dr. O.P. Varshney has been marked as Ext. Ka8.

Dr. PW6 I.H. Qurashi on the basis of X-Ray report of Dr. O.P. Sharma prepared a supplementary report which is marked as Ext. Ka9 and he found that the injury was serious in nature as Zoygomatic bone was found to be fractured.

PW5 Atar Singh, Sub-Inspector of Police had made spot inspection and prepared the site plan of the incident which was marked as Ext. ka4 and after investigation submitted charge-sheet against the accused persons which was marked as Ext. Ka5. Thereafter, the trial Court framed charges against the accused persons for the offence under Sections 147, 148, 149, 323, 307, I.P.C. and the trial Court on the basis of charge-sheet framed charges against the accused persons who denied the charges and pleaded to be tried.

The prosecution in support of its case examined PW1 Jitendra Kumar Sharma who is the informant/injured, PW2 Amar Singh who was also sitting at the chabutara and at the time of the incident with injured persons had turned hostile and did not support the prosecution version, PW3, Prem Sharma, the injured, PW4 Mahipal Singh who was also sitting at the chabutara at the time of incident had also turned hostile and did not support the prosecution story, PW5, Atar Singh, Investigating Officer, PW6 Dr. I.H. Qurashi, examined the two injured persons, PW7 Prem Shankar Bhardwaj, X-Ray Technician who proved the signature and handwriting of Dr. O.P. Varshney and proved the X-Ray report.

Statement of the accused persons recorded under Sections 313, Cr. P.C. in which they submitted that they have been falsely implicated in the present case as six month''s prior to the incident wife of accused Mahipal had expired. Hence, they were not celebrating Holi Festival and no such incident has taken place. There was enmity with injured Prem Sharma since long back, thus a false case was registered against them.

From the side of the defence, DW1 Rishial Singh was examined as defence witness who stated that on the date of incident as per the tradition of the village some procession used to be taken out and after playing colours people used to go to the houses of the person where demise had taken place and on 29.03.1984 at about 3:00 p.m. people of the village had took chaupai at the house of Prem Sharma and some persons had thrown mud at his house, where there was a stampede at the house of Jitendra Kumar and Prem Sharma and due to which both of them had fallen from the chabutara where iron plates and stone were kept and they received injuries. PW1 Jitendra Kumar and PW3 Prem Sharma who are injured persons have stated before the trial Court the version given by them in the F.I.R. and have further stated the fact that they have received the injuries at the hands of the accused on the date and time of the incident and they were medically examined by the doctor who have stated that the injuries received by the injured persons were possible at the said date and time of the incident.

The trial Court on the basis of statement of the injured persons i.e. PW1 and PW3 found that the version given by the prosecution was corroborated by the medical report and medical evidence of PW6 Dr. I.H. Qurashi. Hence, convicted and sentenced the accused persons for the offences which they have been charged.

Heard Sri. Imran Ullah, learned counsel for the appellants and learned A.G.A. for the State.

It is contended by learned counsel for the appellants that from the perusal of the record and the evidence of PW1 and PW3 the two injured witnesses, it was evident that the accused Mahipal and Banwari were armed with pharsa had assaulted the two injured persons and from the perusal of the injury report of Prem Sharma, it is evidence that he only received one incised wound on his face which was bone deep and hence, in such a situation the author of the said injury is not known. He further submitted that though the X-Ray of the injured Prem Sharma was performed by Dr. O.P. Varshney but the said doctor was not produced by the prosecution to prove the X-Ray report. Hence, in such a situation, the X-Ray report is inadmissible in evidence. He further submitted that so far the injured PW1 Jitendra Kumar Sharma is concerned, he has received only abrasion on his forehead and there is no supplementary report of the said injured which may show that any internal damage was caused to him. Moreover the injuries received by the said Jitendra Kumar Sharma is simple in nature and not dangerous to life. He further submitted that out of seven persons five were said to have armed with lathies and assaulted the injured but there is only one abrasion found on the face of the injured Jitendra Kumar Singh. Hence, it was also not known who is the author of the said injury. In such a situation, the trial Court has committed the gross illegality in convicting and sentencing the appellants for maximum sentence of two years rigorous imprisonment is against the evidence on record. Hence, the judgment of the trial Court is liable to be set aside.

On the other hand, learned A.G.A. for the State submitted that two persons have received injuries i.e. PW1 Jitendra Kumar Sharma and PW3 Prem Sharma and they were medically examined by the doctor on the same date and they have categorically in the evidence before the trial Court as well as during the investigation have stated that the appellants have formed an unlawful assembly with a common object of that unlawful assembly and actively participated in the incident and have assaulted the injured who have received injuries in the incident. The presence of injured at the place of occurrence cannot be doubted and the evidence also cannot be disbelieved simply because the author of the said injuries inflicted to the two injured persons.

Considering the submissions advanced by both the parties as well as from the perusal of the record, it transpires that PW1 Krishan Kumar Sharma and PW3 Prem Sharma have categorically stated the participation of the appellants who were armed with lathies and pharsa on the date and time of incident and have given in evidence in which they had received injuries at the hands of appellants and the medical evidence of the injured shows that the incident had taken place on the date and time of incident they have received injuries in the said incident which was corroborated by the medical report as well as by the medical evidence of PW6 doctor who has examined the two injured. It is true that the two injured persons have received the simple injury on their person but the role of the appellants informing an unlawful assembly for a common object of assaulting the two injured with pharsa and lathies is established from the evidence on record. Hence, the trial Court has rightly convicted the appellant Mahipal and Banwari u/s 148, I.P.C. and rest of the appellants under Sections 323, 147, I.P.C. read with 149, I.P.C. and all under Sections 324 read with 149, I.P.C. maximum sentence of two years is in accordance with law. Hence, no interference is called for by this Court in the conviction and sentence of the appellants.

Learned counsel for the appellants further submitted that as the incident has taken place on 29.03.1983 i.e. 29 years have elapsed and the present criminal appeal has come up for final hearing after gap of 29 years and the appellants have settled with their families and are earning their livelihood for their families and after so many years to send them to jail would be putting their entire families into hardship and further he submitted that the appellant No. 4 Ramji Lala and appellant No. 5 Banwari are old men and who are aged about 75 years as on date and they are at the fag end of their lives. He further submits that the appellants had been in jail total period of one month during the course of trial. Hence, the rest of the sentence be converted into fine.

Keeping in view the aforesaid fact the appeal has come up for hearing after 29 years and as the incident had become old and stale and further the appellants have settled with their families and the two appellants, namely, Ramji Lala and Banwari are 75 years old. In such situation, it will be too harsh to send them to jail after so many years to serve out the rest of the sentences. Thus, it is directed the remaining sentence of the appellant Nos. 3 to 7 is converted into fine of Rs. 15,000/- and as the appellants belonging to one family the said amount shall be realized equally from the appellant Nos. 3 to 7 out of the said amount Rs. 13,000/- shall be paid to the injured PW1 Jitendra Kumar and PW3 Prem Sharma in equal proportion i.e. Rs. 4,000/- each if they are alive or to their legal heirs in accordance with law and Rs. 2,000/- shall go to the State. The fine aforesaid shall be deposited within three months from today in the Court of CJM, Aligarh and in default of payment of fine the appellant Nos. 3 to 7 shall be taken into custody to serve the remaining sentence as awarded by the trial Court by the judgment and order dated 19.03.1984.

In view of the above, the appeal is partly allowed. Let a copy of this order be sent to the concerned trial Court for its compliance.