Major Singh and others vs State of U. P.

Vinod Prasad, J.—Three sibling brothers. Major Singh (A-1), Jeet Singh (A-2) and Bara Singh (A-3) all sons of Buta Singh resident of village Punnapur, P. S. Bahedi, district Bareilly, have challenged their conviction u/s 307/34. I.P.C. imposed by IVth Additional Sessions Judge, Bareilly. vide impugned judgment and order date 20.7.1981, recorded in S.T. No. 299 of 1980, State v. Major Singh and others. For the said offence, (A-1) was sentenced to three years R.I.. whereas rest of the two appellants, (A-2J and (A-3), were sentenced to five years R.I. Laconically stated, prosecution allegations against the appellants, as was narrated and scribed at the police station, vide oral first information report, Ex. Ka-1, on 26.10.1979 at 1.45 p.m., were that informant Sachcha Singh (P.W. 1) son of Bagha Singh resident of Harharpur. P. S. Baheri, district Bareilly had gone to attend the last rites (Sattarya) in village Punnapur at the house of Buta Singh alongwith his nephew injured Tara Singh. Said rites was also attended by many others including Guljar Singh, Sikandar Singh etc. In the aforesaid function, (A-2) offered liquor to the injured, who refused to oblige him and on insistence by (A-2) to consume it, injured spilled it on the floor which enraged (A-2), who thereafter retorted by complaining that if the injured had not to drink, then why he had participated in the rites. Injured Tara Singh countered the complaint by replying that there was difference between him and (A-2) as he was a literate man, whereas (A-2) was alcoholic. Verbal duel between them soon transformed into vetuparisation amongst the real sibling brothers and injured, which then was followed by muscle flexing between (A-1) and the injured. In the midst of such brawl, (A-2) gave a sword blow to injured Tara Singh on his neck, whereas (A-3) caused him gadasa injury. Sustaining injuries by both the blows, Tara Singh squatted on the ground unconscious. Informant. Sachcha Singh (P.W. 1) and other gathered relatives challenged the assailants, who all then sprinted away from the assault scene. This Incident had occurred at 5 p.m. on 25.10.1979.

Suchcha Singh (P.W. 1) went to P. S. Bahedi. following night. 26.10.1979 at 1.45 p.m. and dictated first information report, on the basis of which Chik F.I.R.. Ext. Ka-1. was prepared and offence u/s 307, I.P.C. was registered vide Crime No. 516 of 1979 and there after, father Lok Singh and others, carried the injured to the hospital for treatment of his injuries and his medical examination, which was conducted on 26.10.1979 at 1.15 p.m. by Dr. R. S. Dwivedi (P.W. 4.). according to whom, injured was a young boy aged about 18 years and had sustained two incised wounds of following dimensions :

(1) Incised wound 3.5 cm. x 0.5 cm. x skin on the Right side forehead 3.5 cm. above the Right Eye brow margins clear cut.

(2) Incised wound 10 cm. x 3 cm. x muscle of the neck cut, on the left side neck lower part 3 cm. above the Left clavicle and 10 cm. below the labula of the Left Ear. Wound transverse, margins clear cut. Blood clot filling the base of the wound, The patient is not able to lift the left upper Extremity of the shoulder and joint.

Doctor (P.W. 4) had prepared medical examination report. Ext. Ka-8. and had opined that injury No. 1 was simple, but had kept injury No. 2 under observation. Both of it were caused by sharp edged weapons. Doctor had also advised X-ray of injury No. 2. These injuries could have been sustained by the injured at the time of the incident.

Head Constable Raja Ram had recorded the F.I.R. and had prepared chik F.I.R.. Ext. Ka-1. and corresponding G.D. entry, Ext. Ka-5. S.I. Ram Kumar Sharma (P.W. 3) commenced investigation into the crime who come to the hospital, where he penned down 161, Cr. P.C, statements of the injured and other witnesses. Investigating Officer had also seized blood stained apparels of the injured by preparing its recovery memo Ext. Ka-3. P.W. 3, Investigating Officer, thereafter, conducted spot inspection and had prepared site plan Ext. Ka-2. He had raided accused house to apprehend them vide Ext. Ka-6 and finally wrapping up the investigation had charge-sheeted (A-1) and (A-3) vide Ext. Ka-4. (A-2) was separately charge-sheeted vide Ext. Ka-7.

Accused/appellants were summoned and finding their case triable by Sessions Court, it was committed to the court of Sessions for trial. Vth Additional Sessions Judge, Bareilly charged two of appellants u/s 307/34. I.P.C. and (A-3) u/s 307. I.P.C.

All the appellants denied the charges and claimed to be tried and hence to anoint their crime, their trial commenced.

In the trial prosecution examined informant (P.W. 1) and injured Tara Singh (P.W. 2) as two fact witnesses and Investigating Officer S.I. Ram Kumar Sharma (P.W. 3) and Dr. R. S. Diwedi (P.W. 4) as formal witnesses.

In accused statements u/s 313, Cr. P.C.. (A-3 and A-1), pleaded defence that they had taken Holy book Guru Granth Saheb to Gurdwara and had returned at 7 p.m. and they had no knowledge about any brawl and assault. Informant had framed them in a fabricated case because of pending immovable property litigation. (A-2), besides pleading false implication also stated that informant and injured had come to his residence to take dinner at about 5 or 6 p.m. and when he was making arrangements for it, they demanded liquor, but (A-2) refused to oblige them, on which these persons engaged into a verbal onslaught, but gathered guests rebuffed them and consequently, by feigning a spurious story, they have implicated him in a terradiddle. Accused/ appellants, however, did not examine any defence witness, albeit, two of them, had pleaded alibi.

IVth Additional Sessions Judge, Bareilly, vide impugned judgment of conviction and sentence concluded that prosecution had successfully established accused guilt u/s 307. I.P.C. and consequently convicted them for that offence and imposed sentences as has already been mentioned above in the opening part of this judgment and resultantly this appeal, challenging conviction and sentence.

This appeal was preferred in the year 1981. After a gap of three decades, when it was called for hearing, nobody appeared to argue it on appellant''s behalf and hence Dr. Abida Syed was appointed as amicus curiae to assist the Court in its disposal.

I have heard learned amicus curiae for the appellants and Sri Patanjali Misra learned counsel/A. G. A. for the State.

Assailing impugned judgment, learned amicus curiae submitted that none of the two fact witnesses are reliable and there was previous enmity of landed property between informant and injured with the appellants and, therefore, there was sufficient reason for the informant to cook up a false case and implicated the appellants. Next, it was contended that two of the accused (A-1) and (A-3) had gone to Gurdwara with the revered Holy book of Guru Granth Saheb and were not present at the spot and prosecution had failed to tender cogent, reliable and confidence inspiring evidence against them and therefore, their conviction is unsustainable. It was further submitted that on an overall analysis of entire prosecution evidences, it does not inspire any confidence and therefore, appellants be acquitted of the charges levelled against them and be set at liberty and their appeals be allowed. Learned amicus curiae further submitted that, in case, the appellants are not accorded clean acquittal, they being persons of young age on the date of the incident, and of now are old and aged, without any criminal antecedents, be not sentenced to imprisonment, and their sentence be suitably mollified.

Sri Patanjali Misra, learned A.G.A. conversely submitted that there is no infirmity in the impugned judgment of conviction and sentence and appeal be dismissed and the same does not require any alteration either in conviction or in matter of sentence.

Summating rival submissions and evidences on record, it is revealed that an incident did occur on 25.10.1979 at 5 p.m. when there must have been twilight and hence identification of known accused should not pose any difficulty. Appellants have not challenged prosecution version taking a defence that somebody else had committed the crime and contrary to it they have admitted presence of both the informant and the injured Suchcha Singh and Tara Singh. (A-2). in accused statement u/s 313 of the Code has admitted their presence, as according to his defence plea, they were present in inebriated condition and were demanding further liquor. Thus, presence of, both (P.W. 1 and 2), is admitted. Besides this, from the defence plea of (A-2), date, time, place of the incident alongwith presence of (A-2) are also proved beyond any doubt. Since it is trite law that facts admitted need not be proved, therefore, on these aspects no criticism by the amicus curiae can be entertained and hence presence of (P.Ws. 1 and 2) cannot be doubted during the incident and defence argument is to be repelled.

Another important aspect of the appeal is that the F.I.R., Ext. Ka-1, was lodged without delay and was dictated at the police station and hence chances of it being cooked up or fabricated dissipates in the facts and circumstances of the appeal. Bereft of any embellishment. fabrication and cooking it inspires confidence. Facts and circumstances of the appeal further reveals that belated medical examination of the injured, as was argued by learned amicus curiae, is of no consequence because, at the earliest, appellants were named as the assailants with specific roles by the informant, whose presence is unquestionable during the incident. Defence arguments, castigating prosecution story on these aspects, do not carry any weight and has to be shunned, as they do not come to rescue and shield the appellants.

Turning towards actual incident of assault, both the prosecution witnesses have corroborated each other on all material aspects of the incident. Inspite of lengthy and cumbersome cross-examination, defence had not been able to shatter their testimonies. It is clear and categorical depositions of (P.Ws. 1 and 2). that, firstly (A-2) gave a sword blow to the injured and thereafter (A-3) assaulted him with gadasa. Testimonies of. both (P.Ws. 1 and 2) are flawless, without any incongruities and inconsistencies and hence cannot be discarded without worthwhile criticism. Some insignificant omissions and contradictions do not damage their, otherwise confidence inspiring, testimonies. Injured''s injury report proved by Dr. R. S. Diwedi (P.W. 4). further corroborates and lends credence to the prosecution allegations and establishes use of sword and gadasa in the incident. From the doctor accused had failed to elicit any material affecting prosecution case on the main charge. From a careful examination of all attending circumstances and evidences, it is evident that narration of actual incident, both by (P.Ws. 1 and 2), are truthful and unembellished and it can be safely acted upon.

Now turning towards the most contentious issue involved in the appeal, as to what offence has been committed by the appellants, I am of the view that prosecution evidences does not disclose committing of offence u/s 307. I.P.C. Initially, prosecution version, as was narrated at the police station vide Ext. Ka-1. was that of an altercation ensued between appellants and injured Tara Singh and at that moment (A-1) was empty handed. He did not assault anybody. Indulging into verbal onslaught or even muscle flexing, by a bare handed accused is not sufficient to anoint him with common intention to commit attempt to murder u/s 307, I.P.C. with the aid of common intention. Prosecution has failed to establish that (A-1) shared such an intention with other accused. It will be pointed out later that even P.Ws. 2 and 3 also had no such intention. There was absence of commonality of purpose and hence application of Section 34, I.P.C. on all the accused was wholly misplaced. Incident of assault started all of a sudden at the spur of the moment on a petty wordly duel and measuring of strength. Prior to it. there was no common intention nor during the incident, it developed. It was impulsive individual act by (A-2 and 3) who both gave one single blow each to the injured, (A-1) had no knowledge about it and it were hurled in a flash in heat of surcharged atmosphere. Conviction of (A-1) u/s 307, I.P.C. with the aid of Section 34, I.P.C., therefore, is unsustainable and cannot be upheld. During actual assault (A-1) had withdrew and did not participate. He was a silent spectator to the two blows given by other two appellants. He himself did not assault the injured. In such fact scenario, bringing appellant Major Singh (A-1) within the mischief of Section 307/34, I.P.C. will be wholly unjustified and on this score trial Judge fell in grave error. He was not charged with any other offence and it is too late in the day to charge him as such. Here, I must hasten to add that common intention to commit a crime can develop at the spur of the moment, but for establishing that fact, there has to be reliable and confidence inspiring evidences with categorical assertions in clear and unambiguous terms or established circumstances should point it out without any uncertainty. On the said aspect, each case is dependent upon facts and circumstances peculiar to it. In the present appeal, such an evidence is totally lacking.

Another supplementary reason for coming to aforesaid conclusion is that each of the two appellants (A-2 and 3), also did not share commonality of purpose to commit murder of injured and had given a single blow each to him. (A-3), however, did not assault the injured with sufficient force to anoint him with intention to commit murder. Injury caused by him was simple in nature and skin deep only. Nature of injury, which can be sustained by a gadasa blow Is dependent on the force applied while wielding it. Only use of that weapon causing simple hurt is not indicative to possess an intention to commit murder, which is sine qua non ingredient to convict any accused for a crime u/s 307. I.P.C. In the present appeal, albeit injury was caused by a sharp edged cutting weapon but was simple in nature and only skin deep. No repetition of blow was given and (A-3) was content with causing such a simple injury. Thus, what can be said certain degree of conviction, is that (A-3) had only an intention to cause simple hurt to the injured and he never intended to cause his death nor he had assaulted him with such an intention. His single blow causing simple skin deep injury at the spur of the incident. in a brawl, preceded by verbal onslaught, will not bring his case within the ambit of Section 307/34. I.P.C. and therefore, his conviction for that charge also is erroneous. Against him prosecution had established only commission of an offence u/s 324, I.P.C, only, and not in furtherance of any common intention.

Turning towards crime committed by Jeet Singh (A-2), the same also does not fall outside mischief of Section 324. I.P.C. His presence on the spot is not doubtful, as he had admitted his presence at the spot alongwith (P.W. 1) and (P.W. 2). It is also admitted by him that incident had occurred because of liquor demand and consumption of it. According to (A-2) it was (P.Ws. 1 and 2), who had approached him at his residence, in an inebriated condition and had demanded further liquor. Therefore, initial case as put forth by the prosecution that the incident had occurred because of liquor demand seems to be actual narration of genesis of the incident, being established from the defence plea by (A-2). In such a view, false implication of (A-2) is ruled out. There was no reason for the injured, as well as for the informant, to mendacious a false story against this appellant, sparing the real assailants. Injury No. 2 of the injured from its very nature seems to be quite possible by sword, but again prosecution had not brought on record any x-ray report of the injured with any supplementary report, and that, in my opinion, comes to the rescue of (A-2) to alter and dilute his conviction. What has been successfully established, by the prosecution, is that the said appellant did cause a single blow by sword on the vital part of injured Tara Singh and, therefore, crime committed by him also falls within the mischief of Section 324, I.P.C. Conviction of the said appellant for the charge u/s 307/34, I.P.C, in my humble view, therefore. is also not sustainable, as in the heat of a verbal exchange, at the spur of the moment, a single blow from the sword will not be sufficient to establish, beyond any shadow of doubt, that the accused possessed intention to commit murder. For proving a charge u/s 307, I.P.C. what is sine qua non is harbouring such an intention and not actual injury caused. Each case has to be judged on its on merits to fathom out presence or absence to such an intention. From the evidence of two fact witnesses, there is dearth of convincing evidence that (A-2) harbingered such an intention. His conviction u/s 307/34, I.P.C. therefore, is also liable to be interfered with and he can be convicted only u/s 324, I.P.C.

Turning towards the sentence part of it. 1 am of the opinion that Major Singh, being empty handed and was not charged with any other offence, deserves acquittal. Prosecution version is not sufficient to nail him for the charge u/s 307/34. I.P.C. Appeal of appellant Major Singh (A-1) is, therefore, allowed and he is acquitted of the charge u/s 307/34. I.P.C.

Appellants (A-2 and 3). Jeet Singh and Bara Singh, had caused simple injury to the injured without any repetition of blows, at the spur of moment, without any premeditation, on a petty issue, without any intention to cause his death, and therefore, both of them are acquitted of the charge u/s 307/34, I.P.C. and instead are convicted u/s 324. I.P.C For that offence, looking to the nature of the injuries caused by them, appellant (A-3) is sentenced to the period of imprisonment already undergone by him with a fine of Rs. 10.000, out of which Rs. 5,000 is awarded as compensation to injured Tara Singh, while appellant Jeet Singh (A-2) is sentenced to one year rigorous imprisonment with fine of Rs. 20.000. out of which Rs. 10,000 is awarded as compensation to the injured Tara Singh. Residue of above entire discussion is as follows :

Appeal of appellant Major Singh is allowed and he is acquitted of the charge levelled against him. He is on bail. He need not surrender, his personal bond and surety bonds are hereby discharged.

Appellant Bara Singh is convicted u/s 324, I.P.C. instead of 307/34, I.P.C. and is sentenced to the period of imprisonment already undergone by him with a fine of Rs. 10,000 which he is directed to deposit within a period of one month, from the date of notice of realisation of the same from the trial court, failing which he shall undergo further three months rigorous imprisonment. If the fine, awarded aforesaid, is deposited, a compensation of Rs. 5.000 is to be handed over to the injured out of it by the trial Judge, for the injury caused to him by this appellant.

Appellant Jeet Singh (A-2) is acquitted of the charge u/s 307/34. I.P.C. and instead he is convicted u/s 324. I.P.C. for which crime, he is sentenced to 1 year R.I. with a fine of Rs. 20.000 which he is directed to deposit within a period of one month, from the date of notice of realisation of the same from the trial court, failing which he shall undergo further six months rigorous imprisonment. If the fine, awarded aforesaid, is deposited, by this appellant, a compensation of Rs. 10.000 shall be handed over to the injured, out of it by the trial Judge, for the injury caused to him by this appellant.

Appellant Bara Singh (A-3) is on bail, he need not surrender, his personal and surety bonds shall be discharged only after he has deposited the fine or has been arrested to serve out default sentence. Appellant Jeet Singh (A-2) is on bail. He is directed to surrender within a fortnight, from the date of receiving information of this judgment, by and before the lower court concerned to serve out remaining part of his sentence. If appellant Jeet Singh fails to surrender before the Court concerned within the period allowed, trial Judge shall get him arrested and lodge him in jail to serve out his sentence.

Injured shall be handed over the compensation within two weeks of deposit of fine, if at all.

Since amicus curiae has argued the appeals of appellants, therefore, trial Judge is directed to intimate this order to the appellants for compliance by issuing them notices.

Let copy of this judgment be certified to the trial court immediately for compliance.