Nanhey vs State of U.P.

Shri Kant Tripathi, J.—The Appellant Nanhey has preferred this appeal against the judgment and order dated 30.4.1982 rendered by Sri K. G. Rastogi, the then Ist Additional Sessions Judge, Bareilly in S.T. No. 87 of 1981, State v. Nanhey, whereby he has convicted the Appellant Nanhey u/s 307 read with Section 34, I.P.C. and sentenced him to undergo rigorous imprisonment of five years.

The prosecution story is that 15-16 days before the occurrence, the complainant Pooran Lal, father of the injured Sunder Lal, had plucked honey bed which was taken away by the Appellant Nanhey. The complainant went to the house of the Appellant and asked to return the honey-bed but the accused refused to return it. The next day the Appellant Nanhey came to the complainant and said that if he lodged any report, he would kill him and his family members. Since that day, the Appellant was bearing grudge against the complainant and his family. On 6.11.1980, at about 6.00 p.m., the injured Sunder Lal was going from his house to offer prayers at the Mathia. On the way, when he was near the house of co-accused Ram Autar, the Appellant called him and demanded Rs. Ten which the injured refused to give. Thereafter the injured went to Mathia. While he was returning, both the Appellant Nanhey and co-accused Ram Autar met him near the house of Ram Autar and stopped him on the way and demanded Rs. Ten for purchasing wine. When the injured refused to pay the same, both the Appellant and co-accused assaulted him with knives. After receiving the knife blows, the injured became unconscious. At the time of the occurrence, the complainant Pooran Lal was selling earthen pots in the market of Koharapir. His daughter rushed there and informed him that her brother Sunder Lal had been assaulted by the two accused. The complainant immediately rushed to the scene of occurrence but by the time he reached there, his other son Ram Swaroop and others took the injured to the hospital. The complainant (P.W. 1 Puran Lal) then went to the police station Prem Nagar and lodged the F.I.R. the same day at about 6.40 p.m., on which basis the police registered the case and proceeded to make the investigation.

The injured Sunder Lal was medically examined by P.W. 4 Dr. Hamidullah the same day at about 7.25 p.m., who found the following injuries on the person of the injured:

(1) Incised wound 2.5 cm. x 0.7 cm. (under observation) on the left of the upper abdomen 7 cm. above the umbilicus at 11 O'' clock position;

(2) Incised wound 2.5 cm. x 1/2 cm. x muscle deep on right fore-arm posterior side at upper 1/3rd;

(3) Incised wound 3 cm. x 1/2 cm. x muscle deep on right fore-arm 1 cm. above injury No. 2;

(4) Incised wound 2.5 cm. x 0.6 cm. x muscle deep near injury No. 3;

(5) Incised wound 4.5 cm. x 2 cm. x muscle deep on right upper arm in middle;

(6) Incised wound 2.5 cm. x 1.5 cm. x muscle deep near injury No. 5.

All the injuries were caused by sharp cutting weapon. The doctor kept injury No. 1 under observation and remaining injuries were simple and were fresh at the time of the medical examination. P.W. 4 Dr. Hamidullah advised X-ray and also referred the injury to a surgeon.

P.W. 6 Satyapal Singh (Sub-Inspector) investigated the matter and submitted charge-sheet after concluding the investigation.

Co-accused Ram Autar died during the pendency of the trial. The trial court, therefore, framed charge u/s 307, I.P.C. against the Appellant Nanhey, who pleaded not guilty and claimed to be tried.

In order to prove the charge, the prosecution examined as many as six witnesses. P.W. 1 Pooran Lal is the informant and also the father of the injured, who proved the F.I.R. (Exhibit Ka-1). He was not present at the time of the incident. P.W. 2 Sunder Lal is the injured, who has supported the prosecution story in the witness box. P.W. 3 Kedar is also an eye-witness. He has stated that it was co-accused Ram Autar, who caused injuries to the injured with a knife and at that time the Appellant Nanhey was not present. In this way, the independent witness P.W. 3 Kedar has not supported the prosecution story, so far as the involvement of the Appellant is concerned. P.W. 4 Dr. Hamidullah has proved the aforesaid injuries as well as the injury report, Exhibit Ka-2. P.W. 5, Ashiq Husain is the scribe of the report Exhibit Ka-1. He has proved the report Exhibit Ka-1 as well as the G.D. entry Exhibit Ka-3. P.W. 6 Satyapal Singh, who had investigated the case, has proved formal papers such as charge-sheet and site plan etc.

The Appellant examined D.W. 1 Ramesh, who has narrated that the injured was assaulted by co-accused Ram Autar and at that time the Appellant was not present.

The learned Additional Sessions Judge believed the prosecution story as well as involvement of the Appellant in assaulting the injured and held the Appellant Nanhey guilty of the charge u/s 307 read with Section 34, I.P.C. and accordingly convicted and sentenced him as aforesaid.

Miss. Ibha Sinha, the learned amicus curiae appointed by this Court to argue on behalf of the Appellant, submitted that there is no evidence that the injury No. 1 was dangerous to life. Other injuries were simple and were on non-vital part, therefore, no offence u/s 307, I.P.C. is made out. It was further submitted that only the offence u/s 324, I.P.C. at most can be said to be made out. It was also submitted that the involvement of the Appellant in assaulting the injured is highly doubtful in view of the fact that the statement of the injured has not been corroborated by the independent witness P.W. 3 Kedar and D.W. 1 Ramesh. Therefore, the injured was assaulted only by co-accused Ram Autar and the Appellant has been implicated on account of enmity.

The injured is the best witness to tell as to who assaulted him. He has very categorically stated that co-accused Ram Autar first of all assaulted him with a knife on exhortation given by the Appellant and after that both the Appellant as well as co-accused Ram Autar gave him knife blows. He became unconscious on spot. This statement of the injured (P.W. 2 Sunder Lal) remained intact during the cross-examination and could not be shaken in anyway. There does not appear to be any reason for the injured (P.W. 2 Sunder Lal) to falsely implicate the Appellant if he was not present on the place of occurrence and only co-accused Ram Autar had assaulted him. The involvement of the Appellant along with co-accused Ram Autar has not only been specifically stated in the F.I.R. but that story even remained intact during the investigation and the trial.

The learned Additional Sessions Judge has very categorically held that P.W. 3 Kedar had been won over and he twisted the story to make statement against co-accused Ram Autar because Ram Autar had died before his statement was recorded in the Court, therefore, in order to protect the Appellant, he exonerated him. The prosecuting agency declared the witness P.W. 3 Kedar hostile and accordingly did not place reliance on his statement, therefore, the statement of P.W. 3 Kedar cannot be treated as a prosecution version to discard the statement of the injured duly corroborated by the medical evidence. The learned Additional Sessions Judge has disbelieved the defence witness by making the following observations :

Coming to the statement of Ramesh (D.W. 1), he stated that he was at his tea shop and accused Ram Autar was sitting at his shop and that he was saying that since Sunder had molested his sister, he would assault him. He further stated that at about 6 or 6.30 p.m. Sunder Lal injured came by that side and started abusing Ram Autar whereupon Ram Autar assaulted him by knife. In cross-examination he admitted that the said tea shop belonged to his elder brother Kailash and he carried on business of molasses and it was Kailash who used to sit at the tea shop. In these circumstances, this witness completely becomes a chance witness. It was Kailash who was the best person to depose what happened in front of his shop but he has not been produced. The necessary inference arises that had he been produced, he would not have supported the version of the defence. It is also too queer a co-incidence to be believed that at the very time when Ram Autar is said to be sitting at the tea shop and saying that he would assault Sunder Lal, the latter happened to pass in front of his shop. Moreover, strangely enough, it was never suggested to Sunder Lal that he had molested the sister of Ram Autar deceased accused and it was for that reason that Ram Autar had assaulted him. What was suggested to him was simply that he was assaulted by Ram Autar only and not the present accused, which suggestion was stated by him to be incorrect. The allegation of motive on the part of Ram Autar to assault him, namely, that he had molested his sister, is clearly an afterthought. Under these circumstances no reliance can be placed on the testimony of the defence witness and the defence version which appears to be totally concocted and false.

In my opinion, the reasons recorded by the learned Additional Sessions Judge in disbelieving the statement of D.W. 1 Ramesh seems to be perfectly correct and is not in any way perverse or contrary to the evidence on record.

For the reasons discussed above, I am of the view that the learned Additional Sessions Judge has rightly believed the statement of the injured (P.W. 2 Sunder Lal) as well as the medical evidence.

The learned amicus curiae submitted that P.W. 4 Dr. Hamidullah had kept the injury No. 1 under observation and advised X-ray and also referred the injured to a surgeon, but during the trial, the X-ray report and opinion of the surgeon were not produced to show that the injury No. 1 was dangerous to life or it had caused any internal damage. Therefore, no offence u/s 307, I.P.C. is made out. In this connection, the learned A.G.A. submitted that the injured has admitted during the trial that he remained hospitalised for about 15-20 days and remained unconscious for about nine days. The injury No. 1 was on vital part, therefore, the offence u/s 307, I.P.C. is made out. In reply the learned amicus curiae submitted that other injuries were on non-vital part and merely on the basis of the injury No. 1, it cannot be held that the Appellant and the co-accused Ram Autar had any intention to kill the injured and assaulted him with that intention. If the intention had been to kill the injured, the Appellant and co-accused Ram Autar could cause more injuries on vital parts but they inflicted other injuries on non-vital parts. Therefore, only the offence u/s 324, I.P.C. is made out.

In the lower court record, bed head ticket is available, which indicates that the general condition of the injured was very poor and the submission of the learned A.G.A. seems to be correct. The injury No. 1 was on vital part and serious in nature which supports that the assault was made on the injured with the intention to kill him but fortunately he survived. If the other injuries were on non-vital parts and simple it is no ground to say that no offence u/s 307, I.P.C. is made out. To constitute an offence u/s 307, I.P.C., it is not necessary that the injury inflicted must be grievous or dangerous to life. It is sufficient to make out a case u/s 307, I.P.C. if presence of an intent required by the section coupled with some overt act in execution thereof is proved by the evidence. It is not necessary that bodily injury capable of causing death should have been inflicted because Section 307, I.P.C. makes a distinction between the act of the accused and its result. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under such circumstances that if by that act death had been caused, the person committing the act would have been guilty of murder. The nature of weapon used, motive and intention behind the commission of crime, nature of injuries and severity and persistence of blows are to be considered to see whether or not any offence u/s 307, I.P.C. is made out.

Keeping in view the facts and circumstances of the case, I am of the view that the finding that the offence u/s 307/34, I.P.C. is made out against the Appellant is perfectly correct and requires no interference.

In regard to the quantum of sentence the learned amicus curiae submitted that the Appellant has been in jail for quite some time during the pendency of this appeal as well as during the trial and the occurrence is of the year 1980, therefore, it would not be proper to send the Appellant again in jail after about thirty years of the occurrence. The sentence of imprisonment may be modified to the period already undergone and appropriate fine may be imposed.

The learned A.G.A. did not dispute the fact that the Appellant has been in jail for quite some time as submitted by the learned amicus curiae. Keeping in view the facts and circumstances of the case and submissions of the learned amicus curiae and the learned A.G.A., it is not proper to send the Appellant again in jail after about thirty years of the occurrence. The ends of justice would be met if the Appellant is sentenced to undergo rigorous imprisonment for the period already undergone and also to pay a fine of Rs. ten thousand.

The appeal is partly allowed. The Appellant''s conviction u/s 307 read with Section 34, I.P.C. is confirmed. The sentence is modified. The Appellant Nanhey is sentenced u/s 307 read with Section 34, I.P.C. to undergo rigorous imprisonment for the period already undergone and to pay a fine of Rs. ten thousand and in default of payment of fine to undergo a further rigorous imprisonment of six months.

On realisation of the fine, a sum of Rs. six thousand shall be paid to the injured as compensation.

A sum of Rs. five thousand only shall be paid to Miss. Ibha Sinha, the learned amicus curiae as fees from the State Exchequer.

Let a copy of this judgment along with the lower court record be sent to the Sessions Judge, Bareilly for compliance.