Ram Khelawan and Others vs State of Uttar Pradesh

N.K. Mehrotra, J.—This is an appeal against the judgment and order dated 10.5.1991, passed by the v. Ith Addl. Sessions Judge, Unnao in S.T. No. 380 of 1984 convicting the Appellants Ram Khelawan and Sukhbir under Sections 325/149, 148, 324/149 and 323/149, I.P.C. and sentencing them to four years'' R.I. u/s 325/149, I.P.C. and three years'' R.I. u/s 148, I.P.C. and two years'' R.I. u/s 324/149, I.P.C. and one year''s R.I. u/s 323/149, I.P.C. and accused Appellants Ram Pal, Raja Ram, Ram Kunwar, Roshan, Gauri Shanker, Bhola Ram and Kalloo Singh have been convicted under Sections 325/149, 147, 324/149 and 323/149, I.P.C. and sentenced to four years'' R.I. u/s 325/149, I.P.C., two years'' R.I. u/s 147, I.P.C., two years R.I. u/s 324/149, I.P.C. and one year''s R.I. u/s 323/149, I.P.C. All the sentences were directed to run concurrently.

Accused-Appellant Gauri Shanker has expired during the pendency of the appeal and therefore, the appeal filed by Gauri Shanker stands abated.

According to the prosecution story, Ram Lakhan, the complainant and his elder brothers Ram Jeewan and Ram Sanjeewan were sitting in front of their house for ''Holi Milan'' on 22.3.1989. It was at about 5.30 p.m. accused Ram Khelawan arrived at the door of Ram Lakhan (complainant) and started abusing him. Ram Lakhan (complainant) and his brothers prevented them from abusing. At this, accused-persons Ram Khelawan, Ram Pal, Roshan, Raja Ram, Ram Kunwar, Gauri Shanker, Bhola Ram, Sukhbir and Kalloo Singh reached there with lathis and ''dandas'' in their hands. There were iron leaves in the lathis of accused Sukhbir and Ram Khelawan. Accused-Appellant Gauri Shanker exhorted and other accused-persons started beating the complainant''s party. Smt. Sushila Devi, the mother of the complainant Ram Lakhan and other villagers namely: Pyarey Lal, Mewa Lal and Rajesh reached there to save them and then, the accused-Appellants also beat them. On hearing hue and cry, Abdul Gani and other persons of the village also reached there and after that the accused-persons escaped. During the course of this incident of marpit, Ram Jeewan, Smt. Sushila Devi, Rajesh, Ram Sanjeewan, Mewa Lal and Ram Lakhan sustained injuries. Ram Lakhan along with all the injured-persons reached the police station and lodged a written report against the accused-persons u/s 147/323, I.P.C.

Injured-persons Ram Jeewan, Smt. Sushila Devi, Rajesh, Ram Sanjeewan, Mewa Lal and Ram Lakhan were referred to District Hospital, Unnao where they were medically examined. Smt. Sushila Devi expired at about 3.25 a.m. on 23.3.1989 in District Hospital, Unnao. After receiving the information about the death of Smt. Sushila Devi, S.I. K. K. Siddiqui reached the hospital and prepared the inquest report. He also prepared the other documents of photolash, challan lash, letter to C.M.O. etc. The dead body of deceased Smt. Sushila Devi was sealed and was sent for post-mortem, Dr. S. C. Singhal conducted the post-mortem of the dead body of Smt. Sushila Devi and prepared the post-mortem report. S.I. Indra Jeet Singh recorded the statements of certain witnesses u/s 161, Cr. P.C. On 27.3.1989, the criminal case was converted u/s 302, I.P.C. and the investigation was entrusted to S.I. Babu Ram Bhaskar who after completing the investigation submitted the charge-sheet against the accused-Appellants.

Accused-Appellants Ram Khelawan and Sukhbir were charged under Sections 148, 302/149, 324/149, 323/149, I.P.C. and the other accused-Appellants Ram Pal, Raja Ram, Ram Kunwar, Gauri Shanker, Bhola Ram, Roshan and Kalloo Singh were charged under Sections 147, 302/149, 324/149, 323/149, I.P.C.

The accused-persons pleaded not guilty and claimed to be tried.

The prosecution in support of its case, examined P.W. 1 Dr. Jitendra Singh, P.W. 2 Ram Lakhan, P.W. 3 Rajesh, P.W. 4 Ram Jeewan, P.W. 5 Ram Sanjeewan, P.W. 6 Mewa Lal, P.W. 7 Constable Satgur Prasad, P.W. 8 Babu Ram Bhaskar, the Investigating Officer, P.W. 9 Dr. S. C. Singhal and P.W. 10 S.I. Indra Jeet Singh.

All the injured-persons were medically examined by Dr Jitendra Singh (P.W. 1) on 23.3.1989 in District Hospital, Unnao. He has proved the injuries on the body of Ram Jeewan, Smt. Sushila Devi, Rajesh, Mewa Lal, Ram Sanjeewan and Ram Lakhan.

Dr. Jitendra Singh (P.W. 1) medically examined injured Ram Jeewan on 23.3.1989 at 12.40 a.m. at U.S.D. Hospital (Male), Unnao and found the following injuries on his person :

(1) Lacerated wound 1.0 cm. x 5 cm. x scalp deep on right side head 10 O''clock behind right ear.

(2) Incised wound 1.5 cm. x 0.5 cm. x muscle deep on right side face, 1.0 cm. in front of right ear. Fresh bleeding present.

(3) Abrasion 1.0 cm. x. 0.5 cm. on posterior aspect right forearm, 3.0 cm. below right elbow joint.

(4) Abrasion 5.0 cm. x 2.0 cm. on left side back scapular region.

(5) Contusion 30.0 cm. x. 2.0 cm. on both side back. Upper part (both scapular region).

(6) Contusion 6.0 cm. x 2.0 cm. lateral aspect, right thigh middle part.

Dr. Jitendra Singh (P.W. 1) medically examined injured Smt. Sushila Devi on 23.3.1989 at 12.50 a.m. at U.S.D. Hospital (Male), Unnao and found the following injuries on her person :

(1) Lacerated wound 7.0 cm. x 2.0 cm. x scalp deep on right side head with swelling behind injury No. 1 in an area 10.0 cm. x 6.0 cm. Fresh bleeding present.

(2) Contusion 4.0 cm. x 2.0 cm. on right upper lid.

Dr. Jitendra Singh (P.W. 1) medically examined injured Rajesh on 23.3.1989 at 1.00 a.m. at U.S.D. Hospital (Male), Unnao and found the following injuries on his person :

(1) Lacerated wound 2.5 cm. x 0.5 cm. x scalp deep on right side head, 5.0 cm. above right eye brow. Fresh bleeding present.

(2) Lacerated wound 6.0 cm. x 0.5 cm. x scalp deep on top of head (midline) 14.0 cm. above right ear. Fresh bleeding present.

(3) Abraded contusion 2.0 cm. x. 1.0 cm. on outer aspect right arm lower part.

(4) Contusion 4.0 cm. x 1.0 cm. outer side right arm 10.0 cm. below top of shoulder.

(5) Contusion 4.0 cm. x 1.0 cm. on posterior aspect left calf middle part (left leg).

Dr. Jitendra Singh (P.W. 1) medically examined injured Ram Sanjeewan on 23.3.1989 at 1.00 a.m. at U.S.D. Hospital (Male), Unnao and found the following injuries on his person :

(1) Incised wound 2.0 cm. x 1.0 cm. x muscle deep on right side forehead, 2.0 cm. above right eye brow. Fresh bleeding present.

(2) Contusion 5.0 cm. x 1.5 cm. on posterior aspect left leg middle part.

Dr. Jitendra Singh (P.W. 1) medically examined injured Mewa Lal on 23.3.1989 at 1.20 a.m. at U.S.D. Hospital (Male), Unnao and found the following injuries on his person :

(1) Lacerated wound 4.0 cm. x 0.5 cm. x scalp deep on left side head, 8.0 cm. above left eye brow. Fresh bleeding present.

(2) Abraded contusion 6.0 cm. x 2.0 cm. on top of left shoulder joint.

(3) Incised wound 3.0 cm. x 0.5 cm. x muscle deep on posterior aspect left forearm, 11 O''clock above left wrist joint. Fresh bleeding present.

(4) Abrasion 1.0 cm. x 1.0 cm. on medial end of left clavicle.

(5) Abraded contusion 5.0 cm. x 2.0 cm. on posterior aspect right shoulder joint.

Dr. Jitendra Singh (P.W. 1) medically examined injured Ram Lakhan on 23.3.1989 at 1.30 a.m. at U.S.D. Hospital (Male), Unnao and found the following injuries on his person :

(1) Abraded contusion 4.0 cm. x 1.5 cm. on posterior aspect left shoulder joint.

(2) Contusion 22.0 cm. x 1.5 cm. on left side back 8 O''clock below left shoulder joint.

(3) Abraded contusion 3.0 cm. x 1.0 cm. on top of right shoulder joint.

(4) Contusion 4.0 cm. x 1.5 cm. on outer aspect right arm, 7 O''clock below right shoulder joint.

(5) Lacerated wound 1.0 cm. x 0.25 cm. x muscle deep on posterior aspect left middle finger part left. Fresh bleeding present.

(6) Lacerated wound 2.0 cm. x 0.5 cm. x muscle deep on posterior part left head.

Dr. Jitendra Singh (P.W. 1) has proved the injury report of these injured persons Ext. Ka-1 to Ext. Ka-6.

Dr. S. C. Singhal (P.W. 9) has proved the ante-mortem injuries on the body of Smt. Sushila Devi. The ante-mortem injuries noted in the post-mortem report are as follows :

(1) Lacerated wound 7.0 cm. x. 2.0 cm. over right side with clotted blood present around the brain cavity deep and extended about 2.5 cm. above hair line.

(2) Contusion 4.0 cm. x 2.0 cm. over right upper eye brow.

Ram Lakhan (P.W. 2) is the complainant. He has proved the prosecution story as stated in the F.I.R. His statement is corroborated by the F.I.R. Ext. Ka-7. The statement of P.W. 2 Ram Lakhan is further corroborated by P.W. 3 Rajesh, P.W. 4 Ram Jeewan, P.W. 5 Ram Sanjeewan and P.W. 6 Mewa Lal.

P.W. 7 Constable Satgur Prasad is the formal witness and he has proved the chick report and copy of the G.D.

P.W. 8 Babu Ram is the Investigating Officer and he has proved the documents prepared during investigation and the charge-sheet.

P.W. 10 S.I. Indra Jeet Singh is also the Investigating Officer who was entrusted the investigation at initial stage.

The accused-persons have given the statements u/s 313, Cr. P.C. that P.W. 2 Ram Lakhan, P.W. 4 Ram Jeewan and P.W. 5 Ram Sanjeewan belong to the same family and they have not given the correct prosecution story. Accused-Appellants Gauri Shanker and Ram Khelawan have given another version of the incident. They have stated that they were present at their door of the house when Mewa Lal and Rajesh from the side of the complainant started abusing them. At this, accused-Appellant Ram Khelawan prevented them and then Ram Lakhan, Ram Jeewan, Ram Sanjeewan, Mewa Lal and Rajesh from the complainant side started beating them. They have stated that in this incident which was started by Ram Lakhan and Ors., accused-Appellant Ram Khelawan and Kalloo Singh sustained injuries because the accused-Appellants defended themselves in their self-defence. The accused-persons have further stated that Smt. Sushila Devi intervened and she was hit by a cane. The accused-persons have been falsely implicated in this case. Accused-Appellant Kalloo Singh has further stated that he was present at the door of the house of Ram Khelawan during Holi Milan and at that time Mewa Lal and Rajesh from the complainant side reached there and they started abusing them after consuming drinks and when they were prevented from abusing, they started blowing lathis and dandas. He has further stated that Ram Lakhan, Ram Sanjeewan were also accompanying Mewa Lal and Rajesh and they also started beating the accused-Appellants after having canes in their hands.

Admittedly, no F.I.R. was lodged from the side of the accused. The accused-persons have examined Dr. L. D. Shukla (D.W. 1). He was posted as Medical Officer in jail on 25.3.1989 and on that date, he had examined accused Appellants Kalloo Singh and Ram Khelawan. He has proved the following injuries on the body of accused Appellant Kalloo Singh noted by him on 25.3.1989 at 12.10 p.m. in jail :

(1) Contused traumatic swelling 10 cm. x 10 cm. on posterior aspect of upper 1/3rd of left fore-arm and elbow joint.

(2) Lacerated wound 2 cm. x 0.5 cm. x muscle deep on scalp, 10 cm. above right ear.

(3) Contused traumatic swelling 12 cm. x 10 cm. on dorsum of left fore-arm.

(4) Contusion 5 cm. x 2 cm. on anterior aspect of middle 1/3rd of left fore-arm.

(5) Abrasion 2 cm. x 2 cm. left side of lower abdomen.

(6) Multiple contusions in an area of 15 cm. x 15 cm. on right buttock.

(7) Multiple contusions in an area of 15 cm. x 15 cm. on left buttock.

He has also proved the following injuries on the body of accused Ram Khelawan noted on 25.3.1989 at 12.20 p.m. in jail :

(1) Lacerated wound 1 cm. x 0.5 cm. x skin deep on scalp at occipital.

(2) Abrasion 1 cm. x 1 cm. on posterior aspect of right shoulder.

(3) Contused swelling 8 cm. x 6 cm. on dorsum of left hand.

(4) Abrasion 1.5 cm. x 0.5 cm. on the joint below left knee.

(5) Abrasion 2 cm. x 0.5 cm., 8 cm. below injury No. 4.

After examining the evidence adduced by both the sides, the learned Sessions Judge has recorded a finding that the factum of occurrence is admitted to both the parties namely ; the prosecution as well as the accused, as is clear from the statement of accused Gauri Shanker, Ram Khelawan and Kalloo Singh. They have admitted their presence on the spot. The question as to whether the other accused had participated in the occurrence or not? is to be seen by the evidence adduced by the prosecution.

In the cases where the occurrence is admitted to both the parties, in such types of cases, the Courts have to decide which party was aggressor. The learned trial Judge has framed an issue for consideration in the judgment. The issue which was decided by the learned Sessions Judge is as to whether the accused-persons after forming unlawful assembly for achieving their common object voluntarily attacked injured Ram Lakhan, Ram Jeewan, Ram Sanjeewan, Rajesh and Mewa Lal or these injured persons attacked on the accused and the accused-persons caused the injuries on the person of the injured-persons in their right of self defence. The object of framing this issue was to decide which party was aggressor. In order to decide which party was aggressor, the learned Sessions Judge has recorded specific findings in the judgment.

The learned Sessions Judge is of the view that in order to decide which party was aggressor, the place of occurrence is very material. He has discussed the evidence adduced by the prosecution and after taking into consideration the statement of the accused u/s 313, Cr. P.C. He has recorded a categorical finding that the incident took place at a place which is beyond the sahan of the accused Ram Khelawan which is in front of the house of the injured. The learned Sessions Judge has discussed the oral evidence and the site plan prepared by the Investigating Officer at pointing out of the witnesses and after discussing the site plan, he has turned down the contention of the accused that the incident took place at the sahan of the house of accused Ram Khelawan.

The learned Sessions Judge has also held that in determining which party was aggressor, the number of injuries and the number of the injured persons, the nature of the injuries sustained in the incident are relevant factors in deciding the aggressor party. it is settled that in deciding the aggressor party, the number and nature of injuries are relevant factors. As stated above, there are six injured-persons on the side of the prosecution and one of the injured Smt. Sushila Devi has succumbed to her injuries. On the other hand, on the side of the accused-persons there are only two injured-persons whose nature of the injuries are simple. The learned Sessions Judge has given the reasonings to arrive at the conclusion that the number and nature of the injuries and the number of the injured-persons is sufficient to hold that the accused party was aggressor.

I have examined the evidence adduced by the prosecution on the record of the trial court. I agree with the findings recorded by the trial court in arriving at a conclusion that the accused-party was aggressor on the basis of the findings, about the place of the occurrence and about the number of injured-persons.

The learned Counsel for the accused has argued before me that the prosecution witnesses have not been able to explain the injuries sustained by the accused during the incident. While, it is very important circumstance to infer that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version and the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and their evidence is unreliable. No doubt, this is a legal proposition settled by the Supreme Court in a number of cases from 1976, onwards and the first case is the decision in Lakshmi Singh and Ors. v. State of Bihar, 1976 ACC 372. I may point out that the Supreme Court has also held that there may be cases where non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. Now in this case, the learned Sessions Judge has pointed out the statement of the prosecution witnesses who have stated that they defended themselves at the time of aggression by the accused-persons by their own hands and by snatching the weapons being used by the accused-party. Injured person P.W. 2 Ram Lakhan has categorically stated that he saved himself by his own hands. The learned Sessions Judge relying on the statement of the prosecution witnesses has recorded a finding that during such incident it is probable that the persons who are being attacked may make an attempt to save themselves from the weapon being used by the accused during the incident. Further the learned Sessions Judge has held that the injuries of two accused-persons Kalloo Singh and Ram Khelawan are simple in nature. They have not lodged any F.I.R. Their injuries have been noted in the jail after three days. Keeping in view all these factors, the learned Sessions Judge has correctly recorded a finding that in this case after seeing the nature of the evidence of the prosecution and the manner of incident, it cannot be said, that even if, it is found that the injuries of accused Kalloo Singh and Ram Khelawan have not been explained in the F.I.R. and in the statement u/s 161, Cr. P.C. it is fatal in any way-for the prosecution case and it cannot be said with certainty that the injuries noted by the jail doctor on the persons of Ram Khelawan and Kalloo Singh were sustained during the incident.

The learned Sessions Judge has also recorded a finding that in this case the evidence is such that non-explanation of the superficial injuries on the person of two accused is not sufficient to disbelieve the prosecution witnesses.

The learned Sessions Judge has referred the statements of Ram Lakhan, P.W. 2, Rajesh, P.W. 3, Ram Jeewan, P.W. 4, Ram Sanjeewan, P.W. 5 and Mewa Lal, P.W. 6 which fully corroborate the prosecution story. Out of these witnesses Ram Jeewan, Ram Sanjeewan, Rajesh and Mewa Lal are the injured witnesses and there can be no doubt about their presence at the time of incident after seeing the injuries proved by the doctor.

The accused-persons are nine in number. The injured-persons are six in number. One of the injured Smt. Sushila Devi has succumbed to her injuries. The prosecution witnesses have also given statements that the lathis in the hands of accused Sukhbir, Ram Khelawan were such that there were iron leaves fitted in their lathis. The learned Sessions Judge has also recorded a finding that since it is proved that all the nine accused-persons were armed with lathis, therefore, the common object of forming an unlawful assembly in causing injuries to Ram Lakhan, Ram Jeewan and Ram Sanjeewan is proved. He has referred the statements of the prosecution witnesses who have stated that during incident Smt. Sushila Devi reached there and she was hit by lathi during the course of incident. The statements of the prosecution witnesses and the accused make it clear that there can be no intention to kill Smt. Sushila Devi on the part of any of the accused. I agree with the finding of the learned Sessions Judge that the prosecution witnesses have not stated anything to prove that there was any intention on the part of the accused-persons to cause death of Smt. Sushila Devi and there is no evidence that the lathi injury on the head of Smt. Sushila Devi was the cause of death. The prosecution evidence goes to show that Smt. Sushila Devi was hit by a lathi without any intention during the incident of marpit between nine persons on one side and six persons on the other side. It is also not proved that whose blow caused the injury on the person of Smt. Sushila Devi.

After discussing the entire evidence adduced by the prosecution and after recording the aforesaid findings, which are according to the evidence on record, the learned Sessions Judge has correctly found the accused-persons guilty under the aforesaid offence. In view of the prosecution evidence, the accused could not be convicted either u/s 302 or 304, I.P.C. and they have been correctly found guilty under Sections 325, 324 and 323, I.P.C. read with Sections 147, 148 and 149, I.P.C.

After hearing the learned Counsel for the accused-persons and after perusal of the evidence of the prosecution, I hold that the findings recorded by the learned Sessions Judge are in accordance with the evidence on record and I endorse the findings that the accused-persons were aggressors and there is nothing to disbelieve the prosecution version specifically when the incident is admitted to the accused-persons also. There is nothing to disbelieve that six persons sustained injuries during the incident. There is every doubt that two accused-Appellants sustained injuries during the incident. In view of such findings, the appeal has no force.

In view of the above, the appeal is dismissed. The accused-Appellants are on bail. They are directed to surrender themselves before the Chief Judicial Magistrate, Unnao, forthwith to serve out the sentence awarded to them. Their bail bonds are cancelled and sureties are discharged.

A copy of this judgment along with the lower court''s record shall be sent to the Chief Judicial Magistrate, Unnao, without delay and the Registry will submit a report of compliance within seven days from today. The Chief Judicial Magistrate, Unnao, shall also send his compliance report within two weeks thereafter.