Rishi Pal & Ors. vs State of U.P.

Ramesh Sinha, J.

Heard Sri Jagdeo Singh, learned counsel for the appellants, learned AGA and perused the record.

This appeal has been filed against the judgment and order dated 2.6.1982 passed by Sessions Judge, Bijnor in S.T. No.19 of 1982 State Vs. Rishi Pal and others convicting and sentencing the appellants u/s 304 Part II/34 and 323/34 IPC and sentencing each of them for the first count 3 years and second count 3 months.

The prosecution story is as below:

On 26.7.1981 at about 6.30 p.m. Dal Singh is said to have been injured by the accused persons and also his sons Kishan Singh and Kripal Singh in village Sarai Gurha. A report of this occurrence was made orally by Kripal Singh at P.S. Najibabad. On that basis chick report Ext. Ka4 was prepared at 0.15 A.M. on 27.7.1981, according to which Dal Singh had gone to house of Udhey to make grievance that Udhey had unnecessarily given a lathi blow to his minor son Ram Autar. In fact his cattle did not enter the field of Udhey but those of others, though all the cattles were together. There all the four accused persons who are related to Udhey struck him with lathis. On hearing that their father was being beaten by the accused persons Kripal Singh and Kishan Singh rushed to the house of Udhey and tried to rescue their father. The accused persons then gave lathis blow to them also. On their alarm witnesses were attracted to the scene viz. Hari, Sher Singh, Ghanshyam etc. They intervened Kripal Singh then brought his unconscious father in a cart to the Police Station and lodged this report. The copy of the corresponding C.D in this regard prepared at the Police Station is Ext. Ka5. The Police sent all the three injured persons for medical examination. Injuries of all the three were examined by Dr. Harish Chand Dua P.W. 4 at Primary Health Centre Najibabad on 27.7.1981 at 1.10 a.m. The injury report of Kishan is Ext. Ka1 and these of Kripal and Dal Singh are Exts. Ka2 and Ka3 respectively.

The doctor found the following injuries on the person of Kishan

(1)Contusion over back right side supra scapular region, 11 cm. X 1� cm. downwards medially from the top of right shoulder.

(2)Contusion over left side back 9 cm x 1� cm. Over supra scapular region left side downwards medically.

(3)Contusion in front of right firearm 6 c. x 1 cm. Surrounded by traumatic swelling 6 cm. X 1 cm. Injury kept under observation. Advised XRay.

(4)Abrasion over lateral aspect of left wrist joint and adjoining parts of hand and forearm 6 c.m x 1� c. Traumatic swelling extending upto themar eximence in area 10 cm. x 4 cm.

He found the following injuries on the person of Kripal Singh:

(1)Contusion 10 cm. X 1� cm. over right supra scapular region downwards medially.

(2)Contusion over posterior lateral aspect of right elbow joint and adjoining part of forearm measuring 9 cm. x 1� cm.

(3)Contusion over back of left forearm 4 cm. X 1� cm. X 4 cm. above wrist joint.

He found the following injuries on the person of Dal Singh:

(1)Lacerated wound 4 � cm. x � cm. bone deep over right parietal region of skull, 8 cm. above the top of right ear. Margins contused. Injury kept under observation. Advised XRay.

(2)Traumatic swelling 9 cm. x 5 cm. Over left temporal region of skull just in front and above the left ear. Injury kept under observation. Advised XRay.

Dal Singh was unconscious even at the time of his admission at the hospital and he died there. Later on report of his death was sent to the Police Station by the hospital authorities and the copy of the C.D in this regard is Ext. Ka7, dated 27.7.1981 and time 115 p.m. Dal Singh died at 12.30 p.m. On 27.7.1981. His dead body was sent for postmortem examination. Inquest report Ext. Ka9 diagram of the dead body Ext. Ka10, challan of dead body Ext. Ka11 and letter for postmortem examination were all tendered in evidence by the prosecution and they were admitted as their formal proof was dispensed with by the defence. The postmortem report of Dal Singh is Ext. Ka13. The postmortem examination was done by Dr. S.K. Kapoor P.W.7 on 28.7.1981 at 4.30 p.m. He found the following antemortem injury on the body of the deceased Dal Singh:

(1)The wound is covered with surgical dressing. On removing the wound is lacerated. Size 3.5 cm. x .5 cm. x bone deep on the right side of skull, 8.5 cm. above the right ear and 10.5 cm. above manireis and behind the right eye brow horizontally present. On exposing clotted blood present under the scalp and brain substance and meninges based on both parietals and frontal in 6 pieces. On exposing further brain substance and meninges are lacerated.

The case was investigated by S.I. Sri Brahma Singh, P.W.6. The site plan prepared by him is Ext.Ka6. The accused persons were arrested and after completing the investigation, charge sheet Ext. Ka8 was submitted by the said investigating officer on 5.8.1981.

It may be mentioned that earlier this case had been registered at the Police Station under Section 308 and 323 IPC and on 27.7.1981, it was converted into Section 304/323 IPC. The accused persons were then committed to the court of Sessions on 21.1.1982 by the then Munsif Magistrate, Bijnor, Sri A.K. Jain, they were summoned in this court on 24.2.1982 and charges u/s 302/34 and 323/34 IPC were framed against them that on 26.7.1981 at about 6.30 p.m in village Gurha Sarai, the accused persons in furtherance of their common intention committed murder of Dal Singh by intentionally causing his death at the house of Udhey and also voluntarily caused hurt to Kishan and Kripal. These charges were read out and explained to the accused persons and they pleaded not guilty and claimed to be tried.

The prosecution examined 7 witnesses and filed 14 documents. There is no material exhibit. Thirteen documents have already been referred to in the narration of the prosecution story. The 14th (Ext. Ka.14) document is an affidavit of constable Nanhey Singh. It was tendered by the prosecution in evidence. In this affidavit the constable has sworn that on 27.7.81, the dead body was entrusted to him and another constable Suhvir Singh in sealed condition by S.I Sri Ram Vir Singh and they identified that dead body before the doctor on 28.7.81 and then he brought the postmortem examination report to the police station and delivered it there. He has sworn further that so long as the dead body remained in his custody its seals remained intact.

Out of the seven witnesses examined four are of fact and three are formal. The formal witnesses are the two doctors viz Dr. Harish Chand Dua P.W.4 and Dr. Suresh Kumar Kapoor P.W.7 and the I.O Sri Brahmn Singh P.W.6. Their roles have already been stated. The witnesses of fact are Kripal Singh P.W.1 and Kishan Singh P.W.2, both injured and P.W.3 Kripal Singh and Kishan Singh have narrated the entire prosecution story and Hori P.W.3 has stated that he saw the accused persons wielding lathis upon Dal Singh and when Kripal Singh and Kishan Singh tried to rescue him they were also given lathi blows. Ram Autar P.W.5 is aged about 12 years only. He has stated that about 9 months ago in the rainy season he was returning after grazing cattle, one Vijain was also with him and he too was returning after grazing his cattle. It was about sunset when they came near the field of Udhey some heads of catele of Vijain entered Udhey''s field. Thereupon Udhey gave a lathi blow to him (witness). On reaching home, he informed his father Dal Singh about this. Dal Singh then went to Udhey''s house to make grievance along with him. There the accused persons began to beat Dal Singh. This witness ran away from there and infromed Kripal Singh and Kishan Singh, whom he met in the way. Then Kripal Singh and Kishan Singh went to Udhey''s house to save their father.

The accused persons have given no defence. However Rishi Pal accused has stated u/s 313 Cr.P.C that he heard that his father Udhey beat Ram Autar. He denied the main occurrence in question. According to him he has been falsely implicated because the cattle of prosecution witnesses damaged their crops and thus relations between them remained strained. He has denied that the accused persons Munney, Kalwa and Tara are cousins interse or that he himself is the son of the maternal uncle of Munney accused. The accused Kalwa has also stated the things about the alleged relationship. He has stated that he was not there in the occurrence and that he did not even know whether Ram Autar was beaten by Udhey. The same thing has been stated by Munney accused. He has stated that he goes to scrap grass on the field of these prosecution witnesses and as such they are displeased with him. Accused Tara has also exhibited ignorance about the motive or the occurrence. He has stated further that his elder brother is Atar Singh. This statement that his elder brother is Atar Singh has given this statement that accused Tara does not find mention in the FIR. Ext. Ka4. In this document instead of naming the person it has been stated that there was the elder son of Amray. Accused Tara is also the son of Amray. On this basis it is stated on behalf of the defence that instead of the elder brother this Tara has been implicated in this case.

P.W.1 Kripal Singh who is the informant/injured of the present case has stated that he along with his brother Kishan Singh were returning home at about sunset after cutting the grass. When they were on their way to home, they were passing through village Gurra and they heard a noise in the lane. They dropped their grass and rushed towards the place of occurrence and they saw the accused persons beating their father Dal Singh. The accused Munney, Tara and Rishipal were armed with lathis and accused Kalua was armed with an axe. He had tried to rescue his father and the accused persons yielded lathi blows on them also. He raised alarm and the witnesses Hori, P.W.3 Ghanshyam and Sher Singh reached there. The accused persons then fled away. He then sent for bullock cart and took his father along with his brother to Police Station Najeebabad where he lodged FIR. The Police then sent for medical examination and it was in the hospital that his father subsequently died. The said fact was also narrated by Kishan Singh, P.W.2 who was also an injured witness and has thus corroborated what has been stated by Kripal Singh, P.W.1.

Learned counsel for the applicant argued that the two injured persons i.e. P.W.1 Kripal Singh and P.W.2 Kishan Singh who are said to have been received injuries in the incident. Their medical examinations were conducted on the same very day i.e. on 27.7.1981 at 1.10 a.m. and 1.30 a.m. respectively by P.W.4 Dr. Harish Chandra whereas the injured Dal Singh who was their father was examined on 27.7.1981 at 11.20 a.m. which shows that the injured Dal Singh who subsequently died on the same day at 12.30 p.m. received injuries at some other point of time and the incident has taken place in some other manner and not as narrated by the prosecution. Hence the judgment and order passed by the trial court should be setaside by this Court on this ground alone. It was also argued by learned counsel for the applicant that Dal Singh, the deceased received only one injury on his person. It can hardly be said that there was any intention on the part of the accused persons to kill him. The statement of P.W.3, Hori Lal who is also an eyewitness of the incident is contrary to what has been stated by P.W.1 and P.W. 2. Hence their testimony is unworthy to be believed.

Learned counsel for the appellants has also argued that the evidence of the witness P.W.1 and P.W.2 can not be relied upon as Dal Singh having sustained injuries on 26.7.1981 at 6.30 p.m. and died on 27.7.1981 at 12.30 p.m. has neither named the appellants to have assaulted nor informed his sons the actual assailants who had assaulted him, though he remained alive for several hours. There is no plausible explanation given by the prosecution hence the judgment of the trial court should be setaside.

He lastly submitted that the incident is 31 years old and has become too stale and the appeal has come up for hearing before this Court after 30 years and the appellants at present are between 5253 years and they have settled with their families and are earning their livelihood for their families and it will be too harsh if they are send to jail after 30 years which was put their families in great hardship. Hence the appellants have already undergone for about four months in jail in all during the course of the trial and after their conviction by the trial court after which they filed appeal before this Court and were released on bail during the pendency of appeal. Hence the rest of the sentence of the appellants be converted into fine and the same shall not be treated as an enhancement of sentence.

On the other hand learned AGA has submitted that the trial court has rightly convicted the appellant as the evidence of P.W.1 and P.W.2 are sufficient evidence against the appellant who have narrated the prosecution story which is corroborated by medical evidence. Hence, trial court has rightly recorded the findings of conviction and sentence of the appellants.

Considered the submissions advanced by learned counsel for the parties. From the perusal of the record, it is apparent that the two injured witnesses namely Kripal Singh and Kishan Singh whose statement was recorded by the trial court as P.W.1 and P.W.2 respectively shows that the presence of said witnesses at the place of occurrence cannot be doubted and they are reliable witnesses and there is nothing to disbelieve their testimony. The contention of learned counsel for the appellants that the medical examination of the injured Dal Singh which was conducted on 27.7.1981 at 11.20 a.m. whereas the medical examination of two injured persons were done on 27.7.1981 at 1.10 a.m. and 1.30 a.m. respectively, suggests that the deceased died in some other manner and at different point of time does not appears to have much force as testimony of P.W. 1 and P.W.2 who are the injured witnesses and the sons of the deceased who reached the place of occurrence on hearing the noise heard by them and saw the accused persons assaulting their father and in trying to save their father, they were beaten by the accused person and later on P.W.1 took his father on a bullock car to the concerned police station from where they were sent for medical examination at the concerned hospital by the police constables and were medically examined by P.W.4 Dr. Harish Chandra on the same very day. Doctor Suresh Kumar (P.W.7) even stated in para no.3 that the injuries of Dal Singh was half day old and in para 6 he has stated that all the injuries could be caused at 6.30 p.m. on 26.7.1981. The trial court has rightly recorded the finding that the occurrence had taken place in which Dal Singh (deceased) and his two sons sustained injuries and the injuries of Dal Singh proved fatal.

The argument of the learned counsel for the appellants that though the deceased Dal Singh remained alive for several hours and he did not disclose to anyone nor to his sons P.W.1 and P.W.2 about the accused appellants causing injuries to him is of not much significance as from the perusal of the record, it is apparent that Dal Singh sustained the injuries remained unconscious because of the said reason he could not inform P.W.1 and P.W.2 about the assailants or as to why he went to the house of Udhey and how the quarrel started not only this P.W.5 Ram Autar who too has stated in para 2 that he met his brothers Kripal Singh and Kishan Singh and informed them about he being beaten by the father of Rishi Pal i.e. Udhey. P.W.5 Ram Autar at the time of the incident was 12 years old and from his statement it is apparent that he told everything to Kripal Singh and Kishan Singh which finds corroboration in para no.5 and 7 of the statement of Ram Autar.

Moreover the injured witnesses P.W.1 and P.W.2 who are the sons of deceased being eyewitness of the occurrence had specifically stated that it were the appellants who assaulted their father and when they tried to save their father they were also beaten by the appellants and they received injuries in the incident. The motive for the incident is given by P.W.1 Kripal Singh and Kishan Singh P.W.2 appears to be quite natural as it has been admitted by the appellant Rishipal, the son of Udhey in reply to question no.4 u/s 313 Cr.P.C that he heard that his father Udhey gave a lathi blow to Ram Autar (P.W.5), the brother of the complainant and the son of deceased Dal Singh. Thus it is a natural conduct on the part of the father of Ram Avtar Dal Singh gone to Udhey asking him as to why he has given lathi blow to his son Ram Autar.

Thus from the entire material available on record, it is established from the testimony of injured witnesses P.W.1 and P.W.2 that the incident has taken place in the manner as has been narrated by the prosecution and same finds corroboration by the medical evidence. The finding of conviction and sentence of the appellants for the aforesaid offence for which they have been charged with does not suffer from any illegality, hence no interference is called for by this Court in the judgment and order passed by the trial court. It is hereby upheld.

Considering the argument of the learned counsel for the appellants regarding the incident being too old and the appeal has come up for hearing after 30 years and to send the appellants in jail after so many years would cause great hardship to their families and it would meet the ends of justice that rest of the sentence of the appellants is converted into fine of Rs.75,000./, which shall be deposited by the three appellants in equal proportion in the Court of C.J.M. Bijnor within four months from today. Out of which, Rs.20,000/ each is directed to be paid to the two injured persons i.e. P.W.1 Kishan Singh and P.W.2 Kripal Singh and also to P.W.5 Ram Autar sons of deceased Dal Singh respectively, if alive, or to their legal heirs, if any, and Rs.15,000/ shall go to the State. In default of payment of fine, as directed above, the appellants shall be taken into custody to serve out the sentence, as ordered by the trial Court.

In view of the above, the appeal is partly allowed.

Office is directed to send a certified copy of this order to CJM, Bijnor for its compliance.