HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on : 25.8.2015. Judgment delivered on : 16.9.2015. Case :- CRIMINAL APPEAL No. - 3883 of 2013 Appellant :- Sadan Bhadauriya @ Jagat Pal Singh Respondent :- State Of U.P. Counsel for Appellant :- Ajay Singh,A.N. Singh,L.M. Singh, Santosh Kr. Upadhyay,Shivam Yadav,Vinod Kr. Upadhyay Counsel for Respondent :- Govt. Advocate,Ajay Kumar Rai,V.K. Barnwal Hon'ble Om Prakash-VII,J.
1. This Criminal Appeal is directed against the judgment and order dated 6.7.2013 passed by the Additional Sessions Judge, Court No.6, Etawah in Sessions Trial No.122 of 2011 (State Vs. Sadan Bhadauriya alias Jagat Pal Singh) arising out of case crime no.79 of 2011 under sections 307, 506 IPC, P.S. Kotwali, District Etawah whereby the appellant Sadan Bhadauriya alias Jagat Pal Singh was convicted under Section 307 I.P.C. and sentenced to undergo R.I. for seven years and a fine of Rs.5000/-. In case of default in payment of fine, he shall further undergo additional S.I. for a period of six months.
2. The prosecution story, briefly stated, was that the informant Saurabh Gupta gave a written report (Ex.Ka.-3Ka) on 30.1.2011 at Police Station Kotwali, Etawah stating therein that there is a property dispute going on between his father Shesh Kumar Gupta son of Jyoti Shanker Porwal resident of 47 Saidwada, Etawah and Uncle (Tau) Anand Kumar Porwal son of Late Jyoti Shanker Porwal and cousin brother Ankur Gupta alias Jony son of Late Sushil Kumar. In connection to the said property dispute, a litigation was pending in the Court and often panchayat was going on. They are the resident of mohalla Saidwada, Etawah. Sadan Bhadauriya alias Jagat Pal Singh and Bharat Singh Bhadauriya both sons of Late Shishupal Singh were the partners in their cold storage. On 29.1.2011, the informant and his father were returning home from friends colony on a splendor motorcycle bearing registration no.U.P.75-H-4604. They had gone to the house of their friend to give payment of Rs.3 lacs, but his friend did not meet, therefore they were returning to their home. At about 8:30 p.m., near the office of Basic Shiksha Parishad, Sadan Bhadauriya alias Jagat Pal Singh, Bharat Singh Bhadauriya and unknown persons intercepted the informant and his father and started hurling abuses to them. When his father resisted, all the three accused persons armed with knives attacked his father with intention to kill him, they also inflicted several injuries on the neck and stomach of his father by making deadly assault. Sadan Bhadauriya was repeatedly exhorting that he should not be spared. He also snatched the bag carrying Rs.3 lacs. All the three accused persons, assuming his father to be dead, chased the informant on which the informant left his motorcycle and ran away towards the bushes to save his life. The accused persons threw his father in the bushes at the roadside. The whole incident was witnessed by the informant in the light of the tractor coming from the other side. Again the accused persons started searching for the informant. Due to fear, the informant could not go to his house nor he went to the police station at that time. When he came to the police station, he became aware that somebody has given information to the police regarding the incident. Anand Kumar Porwal and Ankur Gupta alias Jony hatched conspiracy in connivance with the accused persons to kill his father. On earlier occasion also, they threatened his father to kill in his presence and in this context an application was given to the higher police officials regarding the threat.
3. On the basis of written report (Ex.Ka.-3Ka), chick F.I.R. Ex.Ka.-2 was registered on 30.1.2011 at 14:25 hours as case crime no.79 of 2011 under sections 394, 307, 506, 120-B IPC at P.S. Kotwali, Etawah. Entry was also made in the G.D., the carbon copy of which is Ex.Ka.-3. Investigation was carried on.
4. After the incident, injured Shesh Kumar was admitted in the District Hospital, Etawah for treatment. He was medically examined on 29.1.2011 at 9:15 P.M by P.W.1 Dr. V.K. Sahu, who was posted as Heart Specialist in District Hospital. Injured was brought by constable Pradeep of P.S. Kotwali, Etawah. The following injuries were found on the person of the injured Shesh Kumar :
(i)Lacerated wound size 2.5 cm. x 0.5 cm. x muscle deep on front of middle of neck transversely placed. Clean cut margin with blood clot.
(ii)Lacerated wound size 2 cm. x 0.5 cm. x muscle deep on front of neck 1.5 cm. below injury no.1. Clean cut margin with blood clot.
(iii)Lacerated wound size 2 cm. x 0.5 cm. x muscle deep on front of left side chest 7 cm. medial to left nipple with blood clot. Clean cut margin.
(iv)Lacerated wound size 2 cm. x 0.5 cm. x muscle deep on front of right side abdomen 12 cm. below nipple. Clean cut margin with blood clot.
(v)Lacerated wound size 2 cm. x 0.5 cm. x muscle deep on front of right side chest 7 cm. from umbilicus in 1 'O Clock position. Clean cut margin with blood clot.
In the opinion of the doctor, all the injuries except injuries no. (i) & (ii) were simple in nature. Injuries no. (i) & (ii) were kept under observation and referred to ENT Surgeon for expert opinion. All the injuries were caused by sharp edged object. Duration of the injuries was fresh. Injury report Ex.Ka.-1 was also prepared.
5. For better treatment, injured was referred to Agra, where he was admitted and treated in Pushpanjali Hospital & Research Centre. Papers relating to his treatment are Ex.Ka.-4, 5, 7, 8, 9 & 10 on the lower court record.
6. Investigating Officer after inspecting the spot, prepared the site plan (Ex.Ka.-5), recorded the statements of the witnesses and on the basis of evidence collected during investigation, submitted the charge-sheet (Ex.Ka.-6) against the accused-appellant Sadan Bhadauriya @ Jagat Pal Singh.
7. Concerned Magistrate took the cognizance in the matter and committed the case to the Court of Sessions for trial.
8. Learned Addl. Sessions Judge framed the charges under Sections 307, 506 IPC against the accused-appellant, who pleaded not guilty and claimed his trial.
9. In order to prove its case, prosecution, in oral evidence, examined P.W.1 Dr. V.K. Sahu, P.W.2 Constable Moh. Daraj, P.W.3 Saurabh Gupta, P.W.4 Shesh Kumar Gupta, P.W.5 Dr. Devendra Gupta, P.W.6 S.I. Vasudev Singh, P.W.7 S.H.O. Jitendra Kumar Parihar, P.W.8 Dr. Rajeev Pachauri.
10. In documentary evidence, the injury report of District Hospital, Etawah (Ex.Ka.-1), Chick F.I.R. (Ex.Ka.-2), copy of G.D., written report (Ex.Ka.-3K), Medical Report of injured dated 30.1.2011 of Pushpanjali Hospital & Reasearch Centre (Ex.Ka.-4), Supplementary report dated 8.2.2011 (Ex.Ka.-5) in original, Site Plan (Ex.Ka.-5K), Charge Sheet (Ex.Ka.-6) and Progress Report of Injured (Ex.Ka.7, 8, 9 & 10) were referred to and proved by the prosecution.
11. Accused-appellant Sadan Bhadauriya @ Jagat Pal Singh in his statement recorded under Section 313 Cr.P.C. stated the prosecution story to be false. P.W.4 injured Shesh Kumar Gupta had given false statement against him due to enmity. First information report was lodged on the basis of false facts. He also showed ignorance about the investigation made by the police and the injury report and stated that tainted, biased and unfair investigation was made by the police. Prosecution was launched on the basis of enmity.
12. Trial Court after hearing both the parties, vide impugned judgment and order convicted and sentenced the accused-appellant as above. Hence, this appeal.
13. Heard Sri Vinay Saran and Sri V.K. Upadhyay, learned counsel appearing for the appellant, Sri B.B. Dubey, learned counsel for the complainant as well as learned A.G.A. for the State and perused the entire record.
14. Learned counsel for the appellant argued that prosecution could not prove its case beyond reasonable doubt. Offence under section 307 IPC is not made out against the appellant. Injuries, said to have been received by the injured, were not grievous in nature and were not dangerous to the life. Investigation in this matter was made by the investigating officer in a perfunctory manner. All the injuries were only muscle deep and injured was in normal condition at the time of medical examination. It was further argued that there is no motive for the appellant to commit the present offence. There was a dispute between the parties regarding partnership business. Incident is said to have occurred in the night, but the prosecution could not establish the source of light in which the appellant was recognized. It was a case of robbery. Informant and the injured both have not identified the appellant and the appellant was falsely implicated in this case due to the dispute regarding partnership business. It was next submitted that injuries found on the person of the injured were manufactured, that's why medical evidence is against the oral testimony. The trial Court has not appreciated the prosecution evidence in right perspective and arrived at a wrong conclusion. Lastly, it was submitted that the appellant has served out about four years sentence against the seven years sentence imposed upon the appellant.
15. On the other hand, learned A.G.A. argued that although P.W.3, the informant did not support the prosecution case, but P.W.4, who is the injured, has supported the prosecution case. There is clear, cogent and reliable evidence available on record against the accused-appellant. He was recognized by P.W.4 in the light of the tractor. Injury no.1 is grievous in nature and the appellant has caused injuries to the injured with intention to kill him. All the essential ingredients to constitute the offence under section 307 IPC were established by the prosecution. The findings of the trial Court are based on correct appreciation of the evidence available on record. Medical evidence also supports the oral version.
16. I have considered the rival submissions advanced by the learned counsel for the parties and have also gone through the entire record carefully.
17. In the present matter, the informant is the son of the injured Shesh Kumar Gupta. Offence is said to have been committed on 29.1.2011 at 8:30 P.M. The first information report was lodged on 30.1.2011 at 14:25 hours against the five accused persons including the appellant. It is the case of the prosecution that at the time of occurrence, informant was going along with the injured on a motorcycle. They were also carrying Rs.3 lacs with them. The place of incident is road side in front of the office of Basic Shiksha Parishad. It is also the case of the prosecution that the appellant and his companions not only intercepted the informant and his father (injured) at the place of occurrence but they (accused persons) also abused them. When the father of the informant objected, the accused persons inflicted several knife injuries to the father of the informant with intention to kill him. The appellant was also exhorting the other accused persons not to spare the father of the informant. They also snatched Rs. 3 lacs from the informant. When the accused persons ran towards the informant to beat him, he escaped from there to save his life. The accused persons threw the injured in the shrubs. Appellant was recognized in the light of the tractor coming from the other side. The F.I.R. could not be lodged at that time by the informant due to fear. According to F.I.R., a passerby took the injured to the hospital. The injury report reflects that there were five incised wounds on the body of the injured. He was medically examined on 29.1.2011 at 9:15 P.M. at District Hospital, Etawah.
18. P.W.3, the informant of the case, has supported the prosecution case only to the extent that he was returning to his home on a motorcycle along with his father (injured) at the time of occurrence and the incident, as stated in the written report, occurred there at the time mentioned in the F.I.R., but he could not recognize the accused persons. He has been declared hostile by the prosecution.
19. Thus, there remains only the statement of P.W.4 Shesh Kumar Gupta, who is the injured witness. He stated that the accused-appellant Sadan Bhadauriya and his fellowmen stopped the motorcycle and caused knife injuries to him. P.W.3, the son of the injured ran away from the place of incident to save his life.
20. In the present matter, first and foremost question for consideration is that whether there is any delay in lodging the first information report and whether the same has not been properly explained.
21. Before proceeding to deal with this submission, I would refer the settled legal position on this issue.
"The case of the prosecution cannot be rejected solely on the ground of delay in lodging the FIR. The court has to examine the explanation furnished by the prosecution for explaining the delay. There may be various circumstances particularly the number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If the prosecution explains the delay, the court should not reject the case of the prosecution solely on this ground. Therefore, the entire incident as narrated by the witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of the prosecution and even if there is some unexplained delay, the court has to take into consideration whether it can be termed as abnormal. (Vide: P. Venkataswarlu v. State of A.P., AIR 2003 SC 574; and State of U.P. v. Munesh, AIR 2013 SC 147)."
22. From the perusal of the entire record, it is clear that the first information report was lodged on the next day of the incident. Distance between the place of occurrence and the police station is 1½ kms. It is the admitted case of the prosecution that a passerby had taken the injured to the hospital. Informant had left the place of incident while the assailants were causing injuries to his father. Due to fear, he could not contact the police immediately. If the facts regarding the delay in lodging the F.I.R., as disclosed in the written report and stated by the prosecution witnesses, are taken into consideration, it emerges that delay in lodging the F.I.R. has been properly explained by the prosecution. Looking to the nature of the offence, when there were only two persons at the place of occurrence, informant had left the place of occurrence to save himself, accused had thrown the injured in the bushes after inflicting injuries on him and he was admitted in the hospital by some passerby, information given by passerby to the police was only regarding the injured, therefore, this Court is of the opinion that time exhausted in lodging the F.I.R. is possible and probable one. In the facts and circumstances of the case, it cannot be held that delay in lodging the F.I.R. is deliberate. The delay has been properly explained. Thus, the first information report cannot be taken as a delayed document and the prosecution case cannot be thrown out on this basis. The findings recorded by the trial Court on this point is not interferable.
23. So far as the presence of the witnesses on the spot is concerned, P.W.3 Saurabh Gupta had not recognized the appellant. He left the place of occurrence while his father was being beaten by the accused persons, but he has proved this fact that on the date, time and place of occurrence, the incident took place. His father P.W.4 was beaten by the assailants. Conduct of P.W.3 in saving his life cannot be termed as unnatural or against the human conduct. Occurrence took place in the night. Accused persons also chased P.W.3 to cause injury. Thus, from the statement of P.W.3, date, time and place of occurrence, as mentioned in the written report (Ex.Ka.-3K) find support.
24. P.W.4 Shesh Kumar Gupta, who is the injured witness, has clearly supported the prosecution case. He stated that he identified the accused-persons in the light of the tractor. Besides this, it has also come in the evidence that appellant was a business partner in the cold storage business. If the appellant was known to the injured, then he would have easily recognized the appellant. Submission of the learned counsel for the appellant that there was a dispute between the parties regarding the partnership business, therefore, appellant was falsely implicated in this case. It is pertinent to mention here that several knife injuries were found on the body of the injured. The prosecution version is supported with the medical evidence. Timing of the injuries also tallies with the time of incident mentioned in the first information report. Shesh Kumar Gupta (P.W.4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident. Enmity or rivalry is admitted to both the parties, which may be the cause to commit the present offence or may be the reason to falsely implicate the appellant, but from the perusal of entire evidence, this Court is of the view that statement of P.W.4 on the point of motive, date, time and place of occurrence cannot be disbelieved, as P.W.4 is the injured witness. There is no evidence to show that injuries found on the person of the injured were manufactured. It is unbelievable fact that injured would create manufactured injuries and falsely implicate the appellant on the basis of such injuries. The injuries found on the body of the injured witness (P.W.4) were not manufactured, but were caused by the accused-appellant and his companions on the date, time and place of occurrence.
25. Thus, this Court finds that the evidence of P.W.4 is cogent and reliable as this injured witness had sustained serious injuries in the occurrence. A testimony of an injured witness stands on a higher side than other witnesses.
26. In Abdul Sayeed v. State of M.P., (2010) 10 SCC 259, it has been observed by the Hon'ble Apex Court that the question of weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. It has also been reiterated that convincing evidence is required to discredit an injured witness.
27. In view of the aforesaid legal principle, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt-guarantee of his presence at the place of occurrence.
28. Thus, the trial Court finding on the point of reliability of the statement of P.W.4 Shesh Kumar Gupta, the injured witness is correct. There is no infirmity or illegality and the same is based on correct appreciation of evidence available on record.
29. Doctor, who examined this injured witness, has clearly opined that the injuries found on the person of the injured could be dangerous to life. Prosecution case is that the injuries were caused by knife. Doctor has also opined that all the injuries found on the person of the injured were caused by the same weapon and also the dimension of the injuries were same. The Court cannot ignore the medical evidence which is vital in this case. Thus, in the present matter, from the prosecution evidence, it is established that medical evidence fully support and corroborate the prosecution version.
30. It is a settled principle of law that in order to attract the offence of attempt to murder, the intention of the accused played vital role.
31. Now the question is whether the offence under section 307 IPC is made out from the prosecution evidence or not. P.W.4 has stated that the injuries were caused by the appellant and his companions with intention to kill him. Some of the injuries were on vital part of the body. The trial Court finding that all the circumstances established by the prosecution clearly go to show that appellant had caused injuries to the injured with intention to kill him. The trial Court has also observed that if for the sake of argument, this fact be taken into consideration that the injuires were not grievous in nature, then also intention of the appellant and his companions was clear to eliminate the injured. Non-submission of charge-sheet against other accused persons named in the first information report will not demolish the case against the present appellant. Findings recorded by the trial Court on this point are in accordance with law. Non-submission of charge-sheet against other accused itself will not absolve the present appellant from the criminal liability. The trial Court finding regarding the guilt of the appellant for the offence under section 307 IPC is not liable to be interfered with as the same is based on correct appreciation of evidence.
32. As far as the quantum of punishment is concerned, trial Court finding guilty to the accused-appellant imposed seven years rigorous imprisonment and a fine of Rs.5000/- and in default of payment of fine, six months additional imprisonment was also ordered to be undergone.
33. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
In view of the above propositions of law, the paramount principle that should be the guiding factor is that the punishment should be proportionate to the gravity of the offence.
34. On comparison of the provisions enumerated under section 307 IPC with the settled legal position regarding imposition of the sentence in criminal cases, it is clear that sentence should be imposed proportionate to the crime attributed against the accused. It should also be in the nature to deter the criminals from committing the offence and also to conform the conscience of the society. Undue sympathy is not appreciated while imposing the punishment upon an accused of heinous offences.
35. Leniency in imposing the sentence in heinous crimes is not required under the law. Maximum sentence awarded to the appellant is seven years. Statute provides that if hurt is caused while committing the offence under section 307 IPC, the punishment may be either to imprisonment for life or to imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Providing sympathy for reducing the sentence is not warranted in the present matter.
36. In the present matter, hurt was caused while committing the present offence. Intention of the appellant and his companions to cause hurt was clear, therefore, in the opinion of the Court, the trial Court finding regarding imposition of seven years rigorous imprisonment and a fine of Rs.5000/- cannot be termed to be extreme penalty. The finding recorded by the trial Court is not liable to be interfered with.
37. I find no force in the argument of the learned counsel for the appellant to reduce the sentence imposed upon the accused-appellant only to the sentence already undergone by the appellant.
38. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has established its case beyond reasonable doubt that the appellant is guilty for committing the offence punishable under Section 307 IPC. Resultantly, I find no infirmity in the impugned judgment of conviction passed by the trial court.
39. For the reasons stated in the foregoing paras, this criminal appeal has no merit and, is, accordingly, dismissed. The conviction and sentence recorded by the trial Court against the accused-appellant is affirmed. As the appellant is in jail, he shall serve out the remaining period of his sentence.
40. The record of the trial Court along with copy of the judgment be sent to the Court concerned and Chief Judicial Magistrate concerned for immediate compliance. Compliance report be also submitted to this Court.
Dtd./- : 16th September, 2015.
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