Shambhu Rai and Others vs State of U.P.

Naheed Ara Moonis, J.—Both the Criminal Appeals have been preferred against a common judgment and order dated 31.1.2011, passed by Sessions Judge, Siddharth Nagar in Session Trial No. 198 of 2009, under Sections 307/34, 450 IPC and in Session Trial No. 16 of 2007, under Sections 307, 450 IPC, arising out of case crime No. 920 of 2006, P.S. Kotwali Bansi, District Siddharth Nagar, convicting and sentencing the Appellants to undergo ten years rigorous imprisonment u/s 307, 307/34 IPC with a fine of Rs. 1000/-each, failing which they shall further undergo for a period of two months simple imprisonment and convicting and sentencing the Appellants u/s 450 IPC for five years rigorous imprisonment with a fine of Rs. 1,000/-each, failing which they shall further undergo for a period of two months simple imprisonment. Therefore, the prayer for bail in these appeals are being disposed of by means of a common order.

Heard Shri V.M. Zaidi, the learned Senior Counsel, assisted by Shri Mohan Bihari Mathur, the learned Counsel appearing for the Appellants, Shri Shehroze Khan, the learned Counsel appearing for the complainant and the learned AGA for the State.

The prosecution case in a nutshell is that the complainant Anil Rai had lodged a first information report on 28.10.2006 at about 9:45 am with the allegation that the Appellants came at his house armed with spear and lathi and had asked him not to give evidence, in reply thereto the complainant had stated that he will give the correct evidence. The Appellants infuriated on his reply and hurled abusive language and started assaulting him with kicks-fists and lathi-danda, when the complainant in order to save himself from their assault ran towards his house, then the Appellant Shatrughan Rai ran behind him and pierced ballam, on account of which he had sustained injuries over his abdomen and on left thigh. At the hue and cry various persons of the locality including Ganesh Rai, Purshottam Rai and Sharda Mishra arrived there and saved the complainant from them. The injured was examined at the Primary Health Centre, Bansi, Basantpur, who was examined by P.W.3, Dr. J. P. Singh on the same day at about 10:35 am and thereafter he was referred to the District Hospital, District Siddharth Nagar.

It is vehemently argued by Shri V.M. Zaidi, the learned Senior Counsel appearing on behalf of the Appellants that at the very outset the accused persons except the Appellant Shatrughan Rai were not charge sheeted and were summoned u/s 319 Code of Criminal Procedure

It is next contended that the first information report was lodged by the injured, Anil Rai after about 3 hours and 45 minutes of the incident, whereas the distance from the police station of the place of incident was only 8 km away. The Appellants have been falsely implicated as the father of the complainant had committed murder of the elder brother of the father of the Appellant Shatrughan Rai in which the complainant''s father was convicted for seven years and on account of that the complainant had bore enmity with the Appellants. There is discrepancy in the statement of the injured, who was examined as P.W.1, with the prosecution case. All the persons have been assigned the role of causing injury with kicks-fists and lathi-danda, except the Appellant Shatrughan Rai, who is said to have assaulted the injured with spear. There is no injury caused by lathi. According to the medical report, injury No. 1 is incised wound on abdomen, of which there is no explanation given by the prosecution as to how the injured sustained the injury. The injury No. 2 was piercing wound on the left thigh which is on non vital part and as such even if the prosecution case is taken to be true there was no intention to commit murder. The injuries are not grievous in nature and there is no supplementary report to show that the injuries sustained by the injured are grievous in nature. The case does not travel beyond Section 324 IPC, as no offence is made out under Sections 307 and 450 IPC. The Appellants were on bail during trial and now they are in jail since their conviction 31.1.2011. In case they are enlarged on bail they will not misuse the liberty of bail.

Per contra, Shri Shehroze Khan, the learned Counsel appearing on behalf of complainant has firstly refuted the contention of the learned Counsel for the Appellants. It is contended that after the incident the Appellant Shatrughan Rai was arrested and was sent to jail against whom the charge sheet was only submitted, thereafter the proceedings under Sections 82 and 83 Code of Criminal Procedure were initiated against the Appellants Shambhu Rai, Hitendra Rai and Virendra Rai and they were declared absconder. The investigation continued and the charge sheet was submitted against them in abscondance which is exhibited as Ka-12. Thus, the submission of the learned Senior Counsel appearing for the Appellants that they have been summoned u/s 319 Code of Criminal Procedure is absolutely false and against the record. So far as the motive is concerned the father of the injured was convicted on the testimony of the father of the Appellant Shatrughan Rai, therefore enmity is admitted between both the parties. The conviction of the complainant''s father was set aside in appeal by this Court on 17.12.1971, whereas the present incident has occurred on 28.10.2006, which is admitted by the Appellant Shatrughan Rai in his statement u/s 313 Code of Criminal Procedure and had stated that on 16.7.2006 Varunendra Rai had lodged a case against 14 persons including the Appellants in which four persons had sustained injuries. The complainant and Varunendra Rai were the witnesses in that case and the Appellants were pressurising the complainant not to give evidence against them and on account of which this incident had occurred. The statement of the injured fully supports the prosecution case. So far as the role of the Appellants are concerned their complicity in the present case cannot be doubted. They came at the house of the complainant with prior meeting of mind armed with ballam and lathi-danda. The doctor has also given his opinion that the injuries No. 1 and 2 were caused by some sharp edged weapon and merely because that no lathi injury was found on the person of the complainant, it cannot be said that all of them were not involved in the incident.

It is further contended that the ocular testimony is fully corroborated with the medical evidence. The ocular testimony cannot be discarded. It is settled law that where there is discrepancy in the medical evidence with the ocular testimony the preference will be given to the ocular testimony. All the Appellants have actively participated in the commission of aforesaid offence.

Therefore they do not deserve to be enlarged on bail. There is every apprehension that in case they are enlarged on bail they will try to intimidate the complainant and other witnesses.

Having considered the above submissions made by the learned Counsel for the parties, this Court is of the view that the Appellants'' counsel has wrongly submitted that the Appellants except Shatrughan Rai were summoned u/s 319 Code of Criminal Procedure and no charge sheet was submitted against them. The role assigned to the Appellants who were armed with lathi shows that they were sharing a common intention in the commission of offence with the Appellant Shatrughan Rai, who is said to have assaulted the injured with ballam and the Appellants were having enmity and pressurising the complainant not to give evidence in a case pending prior to this incident against them.

Considering the aforesaid facts and circumstances and the gravity of offence, this Court is not inclined to release the Appellants on bail at this stage, their prayer for bail is therefore rejected. The hearing of the appeal is expedited.