Ram Murat and Others vs State of U.P.

Kant Tripathi, J.—The Appellants Ram Murat and seven Ors. have preferred this appeal against the judgment and order dated 13.10.1981 rendered by Shri C. L. Anand, the then II Ird Additional Sessions Judge, Gorakhpur in Sessions Trial No. 383 of 1978, whereby the learned Additional Sessions Judge has convicted and sentenced each of the Appellants u/s 307 read with Section 149, I.P.C. to undergo rigorous imprisonment of five years. Each of the Appellant No. 1 Ram Murat, the Appellant No. 2 Rama Nand and the Appellant No. 3 Sant has also been convicted and sentenced u/s 148, I.P.C. to undergo rigorous imprisonment of two years. Each of the remaining Appellants namely, Ram Ratan, Ram Chandra, Bishram, Ramain and Kesari, have also been convicted and sentenced u/s 147, I.P.C. to undergo rigorous imprisonment of one year. These sentences have been directed to run concurrently.

The Appellant No. 3 Sant and Appellant No. 8 Kesari died during the pendency of the appeal, consequently the appeal stood abated against them.

I have heard Shri Virendra Singh assisted by Sri Sapan Kumar Singh and Sri R. S. Tiwari appearing for the Appellants No. 1, 2 and 4 to 7, and the learned A.G.A. and perused the record.

It is alleged on 31.10.1976 at about 10 a.m., the complainant Sita Ram Tiwari was ploughing his plot No. 44/1. All the Appellants, who were duly armed with lathi and farsa arrived there. It is alleged that the Appellants No. 1, 2 and 3 had farsa and remaining Appellants had lathi. It is also alleged that the accused persons assaulted the complainant Sita Ram Tiwari and his son Sheo Ram with lathi and farsa, consequently they sustained serious injuries. The complainant Sita Ram Tiwari lodged the F.I.R. at the police station concerned on the same day at about 10.10 p.m. on which basis the police registered the case and proceeded to make the investigation.

Both the injured Sita Ram Tiwari and his son Sheo Ram were medically examined by P.W. 5 Dr. V. K. Srivastava, who was posted as Medical Officer at the P.H.C. Campierganj, district Gorakhpur on 31.10.1976 between 6 p.m. and 6.15 p.m. The following injuries were found on the body of the injured Sita Ram Tiwari:

(1) Contusion on back over right scapula of size of 12 cm. x 2 cm. red in colour ;

(2) Contusion just below the lower end of right scapula of size of 14 cm. x 2-1/2 cm. red in colour ;

(3) Contusion on back over the left scapula of size of 12 cm. x 2-1/2 cm. red in colour ;

(4) Contusion on back 3 cm. below the lower end of left scapula of size of 1-1/2 cm. x 2-1/2 cm. red in colour ;

(5) Contusion 1 cm. above the left scapula, red in colour 10 cm. x 2-1/2 cm. ;

(6) Traumatic swelling of size of 6 cm. x 4 cm. over the right elbow joint ;

(7) Abrasion 1 cm. x 1 cm. scab on dorsom of right hand ; and (8) Lacerated wound x skin deep 2 cm. x 1-1/2 cm. scab over dorsum of right hand.

The following injuries were found on the person of the other injured Sheo Ram:

(1) Traumatic swelling - 6 cm. x 4-1/2 cm. over the scalp on right side just above the right ear ;

(2) Contusion over the upper end of right lumbers 10 cm. x 2 cm. red in colour ;

(3) Contusion on back towards right side just below the lower end of right scapula 10 cm. x 2-1/2 cm. red in colour ; and (4) C/o Blood mixed sputum.

The doctor opined that all the injuries sustained by Sita Ram Tiwari were simple. Except injuries No. 7 and 8, all the injuries sustained by him were caused by some blunt object. The injuries No. 7 and 8 were caused by a sharp edged weapon. The duration of the injuries was about six hours.

The doctor further opined that all the injuries sustained by the other injured Sheo Ram were simple except injury No. 1, which was dangerous. The injuries sustained by the injured Sheo Ram were caused by a blunt object and were also about 6 hours old.

The Investigating Officer, after completing the investigation, submitted charge-sheet against all the Appellants in the Court concerned.

The Appellants No. 1, 2 and 3 were charged under Sections 148 and 307/149, I.P.C. The remaining Appellants were charged under Sections 147 and 307/149, I.P.C.

All the Appellants denied the charges levelled against them and claimed to be tried.

The prosecution examined as many as five witnesses. P.W. 1 Sita Ram Tiwari is the complainant as well as one of the injured. He has supported the prosecution story in the witness box and has also proved the F.I.R., Ex. Ka-1. P.W. 2 Sheo Ram is the other injured. He has also supported the prosecution story. No other eye-witness was examined.

P.W. 3, N. K. Singh had prepared the chick report Ex. Ka-2 and G. D. Ex. Ka-3. His evidence is of formal nature. P.W. 4 Sub-Inspector, Hansh Nath Mishra investigated the case and prepared the site plan Ex. Ka-4 and charge-sheet Ex. Ka-5. His evidence is also of formal nature.

P.W. 5 Dr. V. K. Srivastava has proved the injuries sustained by both the injured and has also proved injury reports, Exs. Ka-6 and Ka-7.

All the Appellants were examined u/s 313, Cr. P.C. who pleaded that they have been falsely implicated due to enmity.

The learned Additional Sessions Judge has believed the statements of the injured witnesses which were corroborated by medical evidence and found that the charges levelled against the Appellants were proved beyond all reasonable doubts.

The learned Counsel for the Appellants submitted that from the evidence on record no offence u/s 307, I.P.C. is made out. None of the injuries sustained by the injured Sita Ram Tiwari was dangerous to life. The opinion of the doctor is not based on any scientific examination and is merely hypothetical and as such the learned Additional Sessions Judge was not correct in holding that injuries sustained by Sita Ram Tiwari were dangerous to life. The learned Counsel further submitted that at most the offence u/s 323, I.P.C. can be said to have been made out. It was also submitted that the doctor has wrongly mentioned that the injuries No. 7 and 8 sustained by Sita Ram Tiwari were caused by some sharp edged weapon.

The injury No. 7 found on the person of the complainant Sita Ram was abrasion. The injury No. 8 was lacerated wound. I fail to understand as to how these two injuries could be caused by any sharp edged weapon. A possibility cannot be ruled out that these two injuries were caused by a blunt object.

None of the injuries sustained by the injured Sita Ram Tiwari was dangerous to life. The injury Nos. 1 to 5 were contusion and remaining injuries were also neither serious nor dangerous and as such injuries sustained by him cannot be taken as a ground to hold that acts committed by the Appellants form offence u/s 307, I.P.C.

The learned A.G.A. submitted that injury No. 1 sustained by the injured Sheo Ram Tiwari was dangerous to life and has been made as the sole basis for holding that the offence u/s 307, I.P.C. was made out against the Appellants. In this connection it may be mentioned that P.W. 5 Dr. V. K. Srivastava has no where mentioned in the injury report that there was any damage either of bone or other part of scalp beneath the injury No. 1. No X-ray was advised nor any X-ray was done to ascertain any such internal damage. The learned Counsel for the Appellants submitted that the injured Sheo Ram Tiwari was not taken to any hospital for treatment and was relieved immediately after medical examination, which indicates that injuries sustained by him were not dangerous to life. The facts and circumstances under which the occurrence took place do not justify that the assault were made on both the injured with such knowledge or intention or under such circumstances that if any of them had died the Appellants would have been guilty of committing the offence of murder. If the Appellants intended to cause death of injured persons, they would have caused more severe and serious injuries specially when the Appellants were eight in number and the injured were only two. It seems to be a case of simple marpeet and facts and circumstances do not justify the conviction of the Appellants u/s 307, I.P.C. read with Section 149, I.P.C. The learned Counsel for the Appellants placed reliance upon Rekha Mandal and Ors. v. State of Bihar 1967 CAR 108. In that case the Apex Court has held that Section 307, I.P.C. requires that the act must be done with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge. In that case the fact that the injuries were not dangerous to life was also taken into consideration for holding that no offence u/s 307, I.P.C. was made out.

Keeping in view the facts and circumstances of the case and evidence on record I am of the view that the acts committed by the Appellants do not constitute the offence punishable u/s 307 read with Section 149, I.P.C. but constitute only the offence punishable u/s 323 read with Section 149, I.P.C. Accordingly the conviction of the Appellants u/s 307/149, I.P.C. cannot be upheld.

The learned Counsel for the Appellants further submitted that the complainant Sita Ram Tiwari has died. The other injured Sheo Ram Tiwari filed a written compromise before this Court which was referred to the Chief Judicial Magistrate, Gorakhpur for verification, which was verified by the injured Sheo Ram Tiwari and the accused persons before the Chief Judicial Magistrate, Gorakhpur who has submitted the verification report, which is on record. The learned Counsel for the Appellants further submitted that the offence u/s 323, I.P.C. is compoundable and as such the Appellants are entitled to be acquitted on the basis of compromise.

In the case of Badri Lal v. State of M. P. 2005 (2) UP CrR 357, the Apex Court has held that the compromise can be taken into account while considering the question of sentence. The offence u/s 323 read with Section 149, I.P.C. is compoundable. As such the compromise filed by the surviving injured Sheo Ram Tiwari and the Appellants in regard to that offence is acceptable. The Appellants are liable to be acquitted of the charge u/s 323 read with Section 149, I.P.C. In view of the fact that no offence u/s 307, I.P.C. is made out from the facts and circumstances of the case, the Appellants are also entitled to be acquitted of the charge u/s 307 read with Section 149, I.P.C.

The offences under Sections 147 and 148, I.P.C. are not compoundable and as such the Appellants cannot be acquitted under Sections 147 and 148, I.P.C. on the basis of the compromise.

In view of the fact that occurrence had taken place in the year 1976 and since then about 33 years elapsed, it is not proper to impose the sentence of imprisonment on the surviving Appellants. The ends of justice would be met if each of the Appellants No. 1 and 2 is sentenced u/s 148, I.P.C. to pay a fine of Rs. seven hundred and each of the remaining Appellants (Appellant Nos. 4 to 7) is sentenced u/s 147, I.P.C. to pay a fine of Rs. five hundred.

For the reasons discussed above, the appeal is partly allowed. The conviction and sentence of the Appellants u/s 307 read with Section 149, I.P.C. are set aside. All the Appellants are acquitted of the charge u/s 307 read with Section 149, I.P.C. They are further acquitted of the charge u/s 323 read with Section 149, I.P.C. on the basis of the compromise. The conviction of the Appellant No. 1 Ram Murat and Appellant No. 2 Rama Nand u/s 148, I.P.C. and Appellant Nos. 4, 5, 6 and 7, Ram Ratan, Ram Chandra, Bishram and Ramain, u/s 147, I.P.C. is upheld but the sentence imposed on each of them is set aside. Each of the Appellant Nos. 1 and 2 is sentenced u/s 148, I.P.C. to pay a fine of Rs. seven hundred and in default of payment of fine to undergo rigorous imprisonment of six months. Each of the Appellant Nos. 4, 5, 6 and 7 are sentenced u/s 147, I.P.C. to pay a fine of Rs. five hundred and in default of payment of fine to undergo rigorous imprisonment of six months.

The Appellants are granted two months time to pay the fine.