Onkar vs State of U.P.

Vinod Prasad, J.—Appellant Onkar has filed instant appeal challenging his conviction u/s 394/397. I.P.C. and imposed sentence of seven years R.I. therefor passed by IInd Additional Sessions Judge, Badaun in S.T. No. 358 of 1979, State v. Onkar, vide impugned Judgment and order dated 9.2.1981. Unfolded prosecution allegations against the appellant, as was scribed by Kishori Singh, at the dictation of informant Nattho Lal, P.W. 1, in written F.I.R. Ext. Ka-1, were that on 14.8.1977 informant Nattho Lal P.W. 1 alongwith his maternal uncle Itwari and Sohan Pal were returning to their house from Gauri Shanker Festival, which was organized near village Aonla in district Bareilly and when they reached near culvert No. 2 in village Katya, at a distance of one and a quarter miles from village Bichaula under police circle Ujhani at 8 p.m. they saw three persons sitting on the culvert. One of the miscreants pointed his country made pistol at them and asked them to hand over their entire properties otherwise they will be shot at. P.W. 1 flashed his torch on the miscreants, on which one of the robbers brandished his country made pistol and instigated his associates to assault the informant and his associates on which second robber assaulted P.W. 1 with knife and the third one started belabouring Sohanpal and Itwari with lathi. Informant and his associates with folded hands requested to spare them and take whatever they want. On this, miscreants robbed them of their wrist watch, saree, cash money, other apparels and towels etc. Being terrorised, Itwari sprinted from the spot and was chased by two robbers but could not be apprehended. One of the robbers wielding country made pistol remained with the informant and Sohanpal. He asked the informant to disclose whatever is left with him on which informant replied that he had a change of one rupee. While handing over the change to the said robber, informant and Sohanpal snatched away the country made pistol with a cartridge embedded in its barrel and pushed the said robber on the ground and assaulted him with the butt of country made pistol and danda. On his shrieks, other two miscreants rushed towards the informant and Sohanpal but they were threatened by the informant that they have snatched away the country made pistol and cartridge and that they have annihilated their associate and if they will make any misadventure, they will also be done to death. On this, the other two miscreants ran away from the spot, but they were clearly identified by the informant and other witnesses. The apprehended accused disclosed his identity as Onkar, the present appellant. While apprehended accused was being brought to the police out post Majhauli, a head constable alongwith other police persons met the informant and witnesses in the way and with their help, the apprehended accused was brought to the police station, in the way informant Nattho Lal had dictated F.I.R. Ext. Ka-1, to Kishori Singh who had scribed it and after reaching the police station. It was lodged the same day at 9 : 30 p.m. after one and half hours of the incident, which was registered for offence u/s 394, I.P.C. at P.S. Sahswan, district Badaun.

Head Constable Rameshwar Dayal Sharma. P.W. 8 had registered the crime and prepared chik F.I.R. Ext. Ka-9 and corresponding G.D. entry Ext. Ka-10. He had also prepared the recovery memo of the country made pistol and cartridge alongwith blood stained apparel of the informant by preparing Exts. Ka-2 and 3.

S.O. Prem Shanker Sharma, P.W. 6 commenced investigation into the crime, interrogated informant and other two witnesses Sohanpal and Itwari and thereafter, interrogated appellant Onkar. Following usual investigatory steps P.W. 6 came to the spot and prepared site-plan map Ext. Ka-11. Thereafter, investigation was transferred to P.S. Ujhani as the crime was committed within its jurisdiction. S.I Gauri Singh. P.W. 7 of P.S. UJhani commenced further investigation and concluding it had charge-sheeted the appellant on 21.9.1977 vide Ext. Ka-12.

Informant, injured and apprehended accused Onkar were medically examined on the date of the incident at 10:05, 10:25, 10:50 and 1:15 p.m. vide Ext. Ka.-4, 5, 6 and 7. Following injuries were noted by the doctor on their persons :

Ex. Ka-4

Examined Sri Nathoo Lal aged about thirty years s/o Naubat Singh r/o Chaturl Nagla village Khukhunia Jo P.S. Ujhani Distt. Budaun on. 14.8.1977 at 10.05 p.m. (Night) brought by C.P. 239 Shiv Kumar of P.S. Sahaswan. M.I. : 1. Old scar 1-1/2 cm. x 1/4 cm. on other side Lt. eye 1 cm. away from Lt. eye.

Injuries.--(1) Incised wound 3/4 cm. x 1/3 cm. x 1/2 cm. deep on left shoulder joint back upper third portion. Injury is simple and has been caused by some sharp edged weapon.

Duration of injury is fresh.

Ex. Ka-5

Examined Shri Itwari Lal aged about twenty five years s/o Khemkaran r/o Dharampur P.S. Ujhani Distt. Budaun on 14.8.1977 at 10.25 p.m. (Night) brought by C.P. 239 Shiv Kumar of P.S. Sahaswan.

M.I. : Mole on left side chest 3-1/2 cm. Below Lt. clevicle.

Injuries.--(1) Incised wound 1 cm. x 1/4 cm. x 1/2 cm. deep oblique on right side forehead extending from inner third of Rt. eyebrow. Injury is simple and has been caused by some sharp edged weapon. Duration of injury is fresh.

(2) Contusion 3-1/2 cm. x. 2 cm. oblique on back of left forearm 7 cm: above left wrist joint. Odema present at the site of injury. Suspected fracture of underlying bone. Advised X-ray left forearm for confirmation of fracture injuries has been caused by hard blunt weapon.

Duration of injury is fresh.

Ex. Ka-6

Examined Shri Sohan Pal aged about twenty two years s/o Shri Sardar Singh r/o Bagula Nagla

P.S. Ujhani Distt. Budaun on 14.8.1977 at 10.50 p.m./(Night) brought by C.P. 239 Shiv Kumar of P.S. Sahaswan.

MI : (1) Mole on right shoulder middle back.

Injuries.---(1) Contusion 3 cm. x 2 cm. oblique on outer side of back left forearm 5 cm. below elbow Joint. Injury is simple and has been caused by some hard blunt object.

Duration is fresh.

Ex. Ka-7

Examined Shri Onkar aged about twenty five years s/o Sri Hem raj r/o Naithua P.S. Bilsi Distt. Budaun on 14.8.1977 at 11.15 p.m. (Night) brought by C.P. 160 Rajveer Singh of P.S. Shaswan.

M.I. : Mole on right side chest 7 cm. below outer third of Rt. clavicle.

(2) Mole on right side front outer side Rt. arm 12-1.2 cm. below Rt. shoulder Joint.

Injuries.--(1) Lacerated wound 1-1/2 cm. x 1/4 cm. x muscle deep verticle 11 cm. above Rt. ear.

(2) Lacerated wound 2 cm. x 1/4 cm. x muscle deep 1-1/2 cm. below injury No. 1.

(3) Lacerated wound 1 cm. x 1/4 cm. x muscle deep on right prominance of the face.

(4) Contusion 3-1/2 cm, 1 cm. horizontal on right side face 1/2 cm. below Rt. lower lid.

(5) Abrasion 1-1/2 cm. x 1/2 on left side face 3-1/2 cm. below left side face prominance.

(6) Contusion 5 cm. x 2 cm. horizontal on front of left arm 26 cm. below left shoulder joint. Odema present at the side of injury. Suspected fracture of underlying bone.

(7) Contusion 3-1/2 cm. x 2 cm. with abrasion middle 1/2 x 1/4 cm. on back of left forearm 9 cm. below left elbow joint.

(8) Contusion 3 cm. x 1-1/2 cm. horizontal on back of left forearm 7 cm. above left wrist joint.

(9) Contusion 3 cm. X 1-1/2 cm. oblique on lower part left thigh 5 cm. above left knee joint.

(10) Contusion 3-1/2 cm. x 1-1/2 cm. oblique on left thigh 3 cm. below injury No. 9.

(11) Contusion 7 cm. x 2 cm. oblique on outer side left leg 19 cm. below Lt. knee joint.

All injuries are simple except Nos. 6 and 7 for which X-Ray is advised for confirmation of fracture. All injuries have been caused by hard blunt weapon.

Duration of all injuries is fresh.

Charge-sheeting of the accused resulted in his summoning and finding his case triable by the Sessions Court, it was committed to the Court of Sessions for trial where it was registered as S.T. No. 358 of 1979, State v. Onkar, on 8.10.1979.

IInd Additional Sessions Judge, Badaun charged the appellant u/s 394/397, I.P.C. and 25. Arms Act on 24.7.1980, which charges were read out to the accused, who denied the same by pleading not guilty and claimed to be tried and consequently, to anoint his guilt for the charged offences, trial procedure was undertaken.

Prosecution examined in all the nine witnesses to support its case out of whom, informant Nattho Lal P.W. 1. injured Itwari P.W. 2, injured Sohanpal P.W. 3 were the fact witnesses. Medical Doctor R.K. Seth P.W. 4, Reader of District Magistrate''s office Ram Narayan P.W. 5. S.S. I.P.S. Sharma P.W. 6 (First Investigating Officer). S.I. Girish Chandra Singh (Second Investigating Officer), Head Constable Rameshwar Dayal Sharma P.W. 8 and Head Moharir Rajendra Kumar Singh P.W. 9 were the formal witnesses.

In his statement u/s 313. Cr. P.C. appellant had denied the incriminating circumstances put to him and had pleaded his false implication in connivance with the informant and the police because of the reason that there was a scuffle between him and the informant and witnesses for purchasing books. In that brawl appellant had also wielded lathi on the informant and the witnesses. Head Constable and other two constables of out post Majurla meanwhile, had arrived at the incident place where the brawl was ensuing and had taken all the four persons to the police station where the appellant was falsely implicated, after denying registration of his report. After two months, he was released from jail and, therefore, could not take any legal action. Appellant had further stated that he had no pairokar. To support his defence version, appellant had examined Ram Chandar Sharma, as D.W. 1.

IInd Additional Sessions Judge, Badaun, vide impugned judgment and order, concluded that appellant''s guilt was established beyond any shadow of doubt only for the charged offence u/s 394/397, I.P.C. and therefore, convicted him for those offences. Learned trial Judge had further opined that offence under the Arms Act was not established because of technicalities in granting sanction and, therefore, had acquitted the appellant for the charge under 25, Arms Act.

In the background of above narrated facts, when the appeal was called out for hearing, nobody appeared to argue It for the appellant and consequently Sri C.S. Chaturvedi, learned advocate was appointed as amicus curiae to assist the Court.

I have heard learned amicus curiae in support of the appeal and Sri Patanjali Mishra, learned A.G.A. for the respondent-State and have perused the entire evidences, both oral and documentary, existing on the record of the trial court and have also appreciated facts and circumstances of the incident.

Assailing the impugned judgment of conviction. Sri Chaturvedi contended that because of the dispute with the informant and witnesses, the appellant was falsely implicated. Three people were alleged to have participated in the incident but during investigation, complicity of rest of the two accused, except the appellant, could not be surfaced and, therefore, entire prosecution version is fabricated. It was next submitted that though appellant was alleged to have been armed with the country made pistol but during the entire incident, he had not used it at all and hence, the prosecution story does not inspire any confidence as conduct of the appellant, as narrated by the prosecution witness, was absolutely weird as likewise no man of ordinary prudence would have acted. It was further contended that nothing was recovered from the possession of the appellant and therefore, also his conviction is unsustainable as allegation of robbery and participation of the appellant is doubtful.

Learned A.G.A., controverting learned amicus curiae''s submission, submitted that the appellant was arrested at the spot and from the injury report it is established that he was involved in the crime. It was therefore, submitted that his complicity in the incident cannot be doubted, there was no reason for the prosecution witnesses to fabricate a story to implicate him falsely and hence guilt of the appellant is proved beyond all reasonable doubt. It was next contended that, if during investigation. Investigating Officer could not mark out the participation of rest of the two unknown assailants that will not be sufficient to absolve the appellant of the charged crime committed by him specially when, the maxim falsus in uno Jalsus in omnibus does not apply to our criminal jurisprudential system. Consequently, it was submitted that the appeal lacks merit and be dismissed as the guilt of the appellant has been proved to the hilt clear of all doubts.

Analysing rival submissions and evidences, oral and documentary, in the light of advanced arguments vis-a-vis defence of the appellant reveals that some of the facts are admitted to both the sides and on all those aspects, the prosecution case stands proved beyond any shadow of doubt. These aspects are the date of the incident, presence of the Informant and witnesses (P.Ws. 1 to 3) and that of the appellant, use of lathi during the incident, presence of Head Constable and two other constables soon after the incident and lastly the assault between the informant, witnesses and the appellant. In view of these admitted facts, what remains to be decided is as to whether the prosecution version of commission of robbery is correct version or the defence of the appellant of an assault and false Implication is the correct narration of facts.

Vetting evidences of fact witnesses from above angle, it becomes evident that all the three prosecution witnesses have narrated consistent congruent and categorical depositions that they had gone to attend the fair of Gauri Shanker in village Gularia near Aonla in district Bareilly which festival was organized on the occasion of Shiv Teras. From the festival they had started their return journey at 1 p.m. by bus and had alighted from it at 7 : 30 p.m. near village Maurania from where they had started stepping towards their village. When they had covered a distance of one and quarter miles from village Bichaula and had "reached culvert No. 2 in village Bichaula P.S. Ujhani, district Badaun at 7:45 p.m. present incident occurred Just after fifteen minutes. Their consistent case is that out of three miscreants appellant was armed with a country made pistol, while another two were armed with a knife and a lathi During his cross-examination. P.W. 1 had deposed that at the incident time moon was rising and from a distance of five feet, he had flashed his torch which was of two cells. He had showed his torch to the Investigating Officer. His narration was clear and consistent that robbery was committed by appellant''s associates at gun point and the entire incident lasted for about fifteen minutes. He had further evidenced that during the incident, appellant had not made any fire and P.W. 1 had unloaded the country made pistol and had handed over pistol and cartridge to the police. On being questioned, informant had further deposed that appellant was not tied with anything but he was caught hold and was brought to the police station and on their way to Police Station they had met with Head Constable and other constables. He had further stated that he had dictated his report in the market to a boy and when he was dictating it only he and the scribe were present. He had denied any relationship between him and the scribe and had evidenced that it took fifteen to twenty minutes in dictating the F.I.R. He had further testified that from the police station, he was sent to the hospital for medical examination through constable. He had emphatically denied defence suggestion that appellant had not robbed him and because of purchase of books that a scuffle had taken place because of which they had assaulted the appellant and had falsely implicated him in a mendacious story with the help of the police. P.W. 1 had further denied any relationship with Sohanpal P.W. 3 but had admitted that P.W. 2 is his maternal uncle. From his entire cross-examination, defence has not been able to shatter his testimonies and discredit him. No damaging evidence could be elicited from this witness so as to doubt narration of the incident by him. No enmity or any reason for false implication was suggested to this witness nor there was any reason to fabricate a false story against the appellant. He seems to be an independent witness without any ulterior motive to nail in the appellant in a false charge.

Turning towards the evidence of P.W. 2, it is clear from his testimonies that he has supported informant P.W. 1 in all material aspects of the matter. Although subjected to lengthy cross-examination, accused have not succeeded in eliciting any damaging statement from him. So is the evidence of Sohanpal P.W. 3, who had corroborated his earlier two predecessor witnesses. It is his deposition that informant was assaulted by the appellant. There seems to be slight inconsistency and contradiction in respect of actual assault and blows between witnesses but these are wholly insignificant as the manner in which the incident had occurred, there has to be natural incongruities. This, however, does not demolish the well cemented and authentic depositions of fact witnesses, who have lend credence to each other. On an overall analysis of evidences there remains no doubt that depositions of all the fact witnesses are creditworthy, truthful and confidence inspiring.

Turning towards the defence of the appellant, it seems to be fabricated and unthought of defence. D.W. 1 had failed to support the said defence convincingly. No book seller or any person of the market was examined by the appellant to prove his defence story. He had requested D.W. 1 to intimate his relatives regarding the mishap occurred with him, but it is very alarming that none of his relatives had come forward to support his claim. Nothing has been said by the appellant as to why the three fact witnesses will indulge into a brawl with him and will assault him. He had admitted assaulting the prosecution side with lathi and therefore, so far as sustaining of injuries by the prosecution side by blunt object are concerned, it is proved beyond doubt. Presence of informant and other two witnesses during the incident is admitted and, therefore, it cannot be doubted. In such a view, in absence of any motive by all prosecution witnesses to frame in the appellant. I do not find any reason to doubt their veracity and evidences.

Prosecution version is also consistent with medical examination reports proved by the Doctor. Injuries sustained by the prosecution side can be caused by lathi and knife. It has not been suggested to any of the fact witnesses that during the incident knife was not used by any of the accused and therefore, the appellant had failed to explain the incised injury sustained by Nattho Lal and Itwari. According to the deposition of Doctor P.W. 4, injury No. 1 sustained by Nattho Lal was caused by sharp edged weapon and was fresh in duration when he was medically examined. Injury No. 1 of another injured Itwari P.W. 3 was also caused by a sharp edged weapon and was fresh in duration. Injury No. 2 of the said injured P.W. 2 had even a suspected fracture underneath and was caused by a blunt object. The Doctor was suggested that the injuries mentioned above (incised wounds) were caused by blunt object, but he had emphatically denied said suggestion. He is clear in his statement that both the injuries were possible by wielding knife. In such a view, while the Doctor had supported the prosecution version on all its material aspects of the matter, it has completely ruled out the possibility of sustaining of injuries of the informant and two other witnesses only by blunt object. This demolishes the defence of the appellant in its entirety. The trial Judge seems to have examined and analysed the prosecution version in the right perspective and has drawn correct conclusions. All the three prosecution witnesses had sustained injuries during the incident and therefore, their presence on the spot, otherwise also, cannot be doubted besides admission of the appellant.

The F.I.R. of the incident was lodged just after one and half hours of the incident and therefore, there was no time left to fabricate it and cook up a false story. In this respect, the-contention of learned amicus curiae does not appeal to reason. Although in Ext. Ka-1 time of the incident is clearly mentioned as 8 p.m. but while recording the F.I.R. and preparing the chick report, Ext. Ka-9. Head Moharir had noted the time as 7 p.m. which ostensibly is a human error and, therefore, the appellant cannot be allowed to make any mountain out of such a mole. Written F.I.R. supports this view.

Sumating the entire facts and circumstances of the case, I am of the opinion that the guilt of the appellant has been established clear of all the doubts and therefore, the appeal lacks merit and has to be dismissed. Sentence which has been imposed on the appellant cannot be further reduced as it is the minimum prescribed statutory punishment for the charge u/s 397. I.P.C. The appeal is dismissed. The appellant is on bail. He is directed to be taken into custody forthwith to serve out the remaining part of his sentence. His personal bond and surety bond are discharged. Copy of this Judgment is directed to be transmitted to the trial court for its intimation and compliance.