Sukhram and Others vs State of U.P.

Poonam Srivastav, J.—The instant appeal was preferred by nine Appellants against judgment and order dated 25.6.1981, passed by VI Ith Additional Sessions Judge, Etah, in Session Trial No. 450 of 1980 whereby they have been convicted and sentenced to one year R.I. u/s 147, I.P.C. and four years R.I. u/s 307/149, I.P.C. All the sentences were directed to run concurrently.

Heard Sri. Jai Narain, Counsel for Appellants and learned A.G.A. for the State.

Occurrence is alleged to have taken place on 4.5.1978 at 6 p.m. First information report was lodged by Bishan Lal P.W. 1 on the same day at 7.30 p.m. at P.S. Kasganj, district Etah. Police station is said to be situated at distance of one mile. There are two injured persons namely Durg Pal and Chandra Pal, who received injuries in the incident. All the Appellants are alleged to have caused injuries to the injured with lathis and dandas with such an intention or knowledge and under such circumstances, if death had been caused by that act, they would have been guilty of murder. Charge u/s 307, I.P.C. was framed against the accused.

The prosecution case, in short is as follows:

The complainant Bishan Lal lodged first information report at Police Station, Kasganj with the allegations that on 4.5.1978 at about 6 p.m., accused Sukh Ram, Shanker Lal, Nek Ram, Devi, Bhagwan Das, Pratap, Natthu, Talewar and Durg Pal having lathis and dandas came to his house. At that time, his son Chandra Pal was sitting on the ''nali'' in front of his house. The accused abused his son which was objected by his son on which, all the accused started to beat his son with lathis. On hearing alarm, Thakur Das, Shyam Lal, Ramji Lal and others reached the place of occurrence and saved his son otherwise the accused would have killed him. At the same time, Durg Pal brother of complainant was also returning to his house from Kasganj and when he reached near the village, all the accused beat him. Chandra Pal broke the chain of his wrist watch during marpit and it fell down somewhere. On this information, Clerk constable Balbir Singh scribed chik report Ext. Ka-5 and also made an entry in G.D., copy of which is Ext. Ka-6. Sri. N.D. Pachauri P.W. 7 was posted as S.I. in May, 1978 at Police Station Kasganj. The case was registered at Police Station Kasganj in his presence. He started investigation on 8.5.1978. On account of Assembly election of Soron on 7.5.1978, he could not commence the investigation earlier. He prepared the site plan and also proved it. This is Ext. Ka-9. Thereafter, he recorded statements of witnesses. He also obtained medical reports of Chandra Pal and Durg Pal. On 22.5.1978, the case was converted under Sections 147, 148 and 307, I.P.C. He recorded statement of Chandra Pal on 25.5.1978. After completing investigation, he submitted charge-sheet against the accused. This is Ext. Ka-10, Clerk Constable Balbir Singh also proved copy of G.D. Ext. Ka-7. The entry was made in G.D. report No. 33 on 22.5.1978 at 18.30 hours u/s 307 read with Section 149, I.P.C. by S.I. Sri. N.D. Pachauri.

Dr. K.S. Yadav P.W. 2 who was posted as Medical Officer, Primary Health Centre, Kasganj, examined injuries of Durg Pal on 4.5.1978 at 10.00 p.m. and found following injuries on his person which are detailed below:

Wound with clean margins 10 cm. x 1/2 cm. x bone touch on the top of head.

Abraded contusion 10 cm. x 8 cm. on the outer side left elbow.

Faint bruise with swelling tenderness 4 cm. x 3 cm. left shoulder outer and lower.

Bruise (red) 15 cm. x 2 cm. right scapula horizontal lower.

Bruise red 6 cm. x 2 cm. left shoulder blade bone middle horizontal.

Two parallel scratch linear 7 cm. x 1/8 cm. outer to left nipple.

Abrasion scratch liner 7 cm. x 1/8 cm. left postal margin lower.

Abrasion 2 cm. x 2 cm. outer side left knee.

Wound with clean margin 2 cm. x 1/2 cm. muscle protuding on the middle and front of left leg.

Injuries are simple. Injury Nos. 1 to 9 U.O. by blunt weapon. Injury Nos. 6, 7 and 8 are caused by friction with point. Nos. 1 and 9 are caused by edge of a weapon. Duration recent.

On the same day, i.e., 4.5.1978 at 10.15 p.m. the doctor also examined injuries of Chandra Pal and found following injuries on his person:

Contused wound 5 cm. x 1 cm. x bone on the top of head under observation.

Contused wound 1 cm. x 1/2 cm. x bone on the left side of head 9 cm. above ear.

Bruise (red) 15 cm. x 2 cm. left chest and back below left scapula.

Faint bruise 4 cm. x 2 cm. above and outer left scapula.

Scratch wound liner 5 cm. x 1/4 cm. skin on inner and middle of left forearm margins clean.

Abrasion 3 cm. x 1/4 cm. left side knee outer.

Pain and tenderness left thigh and calf with swelling.

Pain and tenderness with swelling right thigh.

Injury Nos. 1 and 2 U.O. and can be dangerous to life as he is not in senses. Remaining injuries are simple and caused by blunt weapon. Injury No. 5 was caused by friction with pointed weapon. Duration recent.

He proved injury reports which are Exts. Ka-2 and Ka-3. He also advised X-ray for injured Chandra Pal. He also prepared supplementary injury report on the basis of X-ray plate of injured Chandra Pal and proved it, which is Ext. Ka-4. In his opinion, injuries of both injured could be caused on 4.5.1978 at 6 p.m.

Dr. K.L. Maheshwari P.W. 6 conducted X-ray of the head and chest of injured Chandra Pal on 5.5.1978. He proved X-ray plate Ext. 1. He found a fracture on the vault of skull. He also prepared and proved X-ray report Ext. Ka-8. He stated that injury was on the head of Chandra Pal which is a vital part and was grievous in nature. In his opinion, this injury was sufficient to cause death if injury was also caused on the brain at the same time.

The prosecution examined complainant Bishan Lal as P.W. 1, who narrated prosecution case in detail. He also proved F.I.R. Ext. Ka-1. Prosecution also examined the injured Chandra Pal P.W. 3 and Durg Pal P.W. 4. They are witnesses of fact. They fully supported prosecution case.

Dr. K.S. Yadav, P.W. 2 examined both injured Chandra Pal and Durg Pal and proved medical reports and also supplementary report. Constable Balbir Singh P.W. 5 proved Chik report and G.D. Dr. K.L. Maheshwari P.W. 6 proved X-ray plate and X-ray report. Sri. N.D. Pachauri P.W. 7 is the Investigating Officer of this case.

The accused pleaded not guilty and stated that they have been implicated falsely in this case on account of enmity.

The accused have not adduced any oral evidence in defence. The accused have filed two documents, one is copy of the plaint of civil case filed by accused Shanker Lal against complainant Bishan Lal and his brother Sita Ram for damages and second document is copy of decree. The case was decreed ex parte on 8.9.1980 against the complainant and his brother Sita Ram. In this case, relationship between the accused as stated above is admitted to the complainant as well.

In the present case, enmity is also admitted. The fact that injured Chandra Pal and Durg Pal received injuries, is also not disputed from side of the accused. The date and time has also not been seriously challenged. In this case, occurrence allegedly took place at 6 p.m. First information report was lodged on the same day, i.e., 4.5.1978 at 7.30 p.m. Thus, it is apparent that there is no delay in lodging the F.I.R. Both injured were medically examined on the same day, i.e., 4.5.1978 at 10 p.m. and 10.15 p.m. Thus, injuries were examined promptly and there appears to be no manipulation. Besides, there is direct evidence of the complainant and injured Chandra Pal and Durg Pal that injuries were caused to the injured. Having regard to the nature of injuries, it cannot be said that injuries could be self inflicted.

Moreover, defence has also not challenged injuries. Hence, it is proved from record that incident took place and the injured received injuries.

Learned A.G.A. has disputed each and every arguments advanced on behalf of Appellants.

After giving a careful consideration and going through the evidence on record, it appears that accused participated in the incident and caused injuries to Chandra Pal and Durg Pal, which are sufficiently established by evidence of the doctor. Evidence of radiologist also establishes that there was fracture on the vital part of the injured but on a close scrutiny of the entire evidence, I am of the view that there was no intention to kill the injured since weapons used are lathis and dandas. On the face of prosecution case, intention was only to cause injuries to the injured. However, submission of the Counsel for Appellants that injuries were received in some other incident, is also not acceptable as occurrence took place in broad day light in the month of May, 1978 and assailants with a common intention caused injuries to the other side on account of existing enmity. They did commit offence. Thus, conviction u/s 307, I.P.C. is uncalled for, however, the accused are liable to be punished for lesser offence.

In the circumstances, judgment of Sessions Judge convicting the Appellants u/s 307, I.P.C. is set at naught. However, conviction u/s 307, I.P.C. is altered to u/s 324 read with Section 149, I.P.C. The incident relates to the year 1978. It is brought to my notice that Appellants are not history sheeters and it is a fact that there is a long time gap, therefore, in my view, Appellants need not be sent to jail after 30 days. Conviction u/s 307/149, I.P.C. is quashed and Appellants are convicted u/s 324, I.P.C. The sentence is reduced to period already undergone and fine of Rs. 2,000. Appellants are liable to deposit Rs. 2,000 each in lieu of imprisonment.

It is brought to my notice that Appellants pursuant to non-bailable warrant, have been taken into custody. They shall be released forthwith subject to an undertaking that they will deposit fine of Rs. 2,000 each within a period of six weeks from the date of release. In the event of default in payment of fine, they shall undergo three months imprisonment.

In view of the aforesaid discussion, the instant appeal is partly allowed.