Kawar & Another vs State Of U.P.
2015 Latest Caselaw 2005 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment Reserved on 19.8.2015
 
Judgment Delivered on 27.8.2015
 
Case :- CRIMINAL APPEAL No. - 8340 of 2008
 

 
Appellant :- Kawar & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Pankaj Bharti,Anuj Chaudhary,Dilip Kumar Kesharwani,J.K.Chakraborty,Narendra Singh Chahar,Noor Mohammad,Sushil K. Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Om Prakash-VII,J.

1. This criminal appeal has been preferred by the accused appellants against the judgement and order dated 5.12.2008 passed by the Additional District & Sessions Judge/ Fast Track Court No.1, Kairana, Muzaffarnagar in Session Trial No. 403 of 2006 (State vs. Maroof and another) convicting and sentencing the appellants for the offences punishable under Sections 308/34, 326/34 IPC. Fine was also imposed.

2. The facts of the case, as unfolded by the informant Waqar Khan son of Sardar Ali Khan in the First Information Report (in short 'F.I.R.'), are that on 22.12.2003 at about 1.00 p.m., while he was sowing wheat in his field, Kawar son of Ghani, Sajid son of Kawar, Maroof son of Ayyub and Murtaza son of Hamid came to his field. Kawar and Sajid were armed with Gandasi and Maroof and Murtaza were armed with lathi. They forbade the brother of informant for sowing wheat and hurling abuses assaulted to him. Hearing the noise, Ajaz Ali son of Inayat Ali Khan and Ragbir son of Kishna etc. came there and saved his brother and took him to Shamli Hospital. Accused had threatened that he escaped today but they would see again. Keeping in view the seriousness, injured was referred to Muzaffar Nagar Hospital. After getting him medically examined, he went for lodging report with the medical report. Accused were threatening them for dire consequences.

3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-3) was registered at Police Station concerned on 24.12.2003 at 11.00 a.m. mentioning all the details as had been described in Ext. Ka-.1. G.D. entry ( Ext. Ka-4) was also made at the same time.

4. Investigation in the matter was started by the Investigating Officer S.I. Pan Singh. He inspected the place of occurrence and prepared site plan (Ext. ka-5). The Investigating Officer also recorded statements of witnesses. The Investigating Officer took bloodstained cloth (Ext. ka-5) of injured Iftekhar. Medical report (Ext. ka-3), X-ray report (Ext. ka-8) was also collected by the Investigating Officer.

5. Injured Iftekhar was medically examined on 22.12.2003 at 4.10 p.m. at Shamli Hospital. Following injuries were found on his body:

"1. A lacerated wound of about 3 cm x 0.5 cm scalp deep present on the right parietal region. 9 cm from right ear. Fresh blood found.

2. A lacerated wound 6 c x 0.5 cm scalp deep present in the middle of head 16 cm from right ear. Fresh bleeding present KUO.

3. A lacerated wound 1 cm x. 0.5 cm scalp deep present on the middle of head 12 cm from right ear, fresh blood present.

4. A lacerated wound of 1.5 c x 0.5 cm scalp deep present on the right parietal region. 4 cm posterior to injury no.3. Fresh bleeding present.

5. An incised wound of 5 cm x 0.5 cm scalp deep present on the left parietal region 7 cm from let ear, fresh bleeding present, KUO adv. x. ray.

6. An incised wound of 0.5 cm x 0.5 cm muscle deep present on the posterior aspect of left hand along traumatic swelling of 7 cm x 6 cm on the left hand KUO adv. x. ray. Fresh bleeding present.

7. Diotal phalanx of ring finger of right hand also present, margins lacerated, bony projection present. Fresh blood present KUO adv. x. ray.

8. An incised wound of 2 cm x 0.5 cm muscle deep present in the anterior aspect of right leg present 10 cm below from right knee KUO adv. x. ray.

9. An incised wound of 1.5 cm x 0.5 cm muscle deep present on the anterior of right leg. 7 cm below from injury no.8 KUO adv. x. ray.

10. An incised wound of 1.5 cm x 0.5 cm muscle deep present on the medial aspect of right leg, 19 cm from right knee KUO adv. X-ray.

11. A linear abrasion of 5 cm present on the anterior aspect of left leg 13 cm from let knee.

12. Multiple red contusion are present in the whole of part at chest size varies for 14 cm x 6 cm and 7 cm x 3 cm."

6. According to the doctor, injury nos. 1,3,4,11 and 12 are simple in nature while injury nos. 2,5, 6,8,9 and 10 are KUO adv. x.ray and injury no.7 is grievous in nature. Injury no. 1,2,3,4,12 are from blunt object while injury no. 5,6,8,9 and 10 are from sharp edged object. While injury no.11 is from pointed object. Injury no.7 is referred to the Ortho Surgeon Opinion.

7. After completing the investigation, charge-sheet (Ext. ka-7) against both the accused appellants was filed. Concerned Magistrate took the cognizance. Supplied copy of the police papers under Section 207 Cr.P.C. to the accused appellants. The case being exclusively triable by session court, was committed to the Court of sessions.

8. Accused/appellants appeared and charge under Sections 308/34, 326/34, 504 and 506 IPC was framed in the trial court against them. All the accused have denied the charges framed against them and claimed their trial.

9. Trial proceeded, and in order to prove its case, prosecution on its behalf examined nine witnesses, wherein PW-1 Waqar Khan, the informant, PW-2 injured Iftekhar, PW-3 Dr. Keshav Swami, PW-4 Constable Amar Pal Singh. PW-5 Panu Ram. PW-6 Mahboob. PW-7 Aijaz Ali, PW-8 S.I. Pan Singh, who completed the investigation and filed charge-sheet. PW-9 Dr. Dinesh Chandra Mowar.

10. After closure of prosecution evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded.

11. Accused persons in their statements under Section 313 Cr.P.C. denied the allegations and stated that they have been falsely implicated due to enmity.

12. The accused appellants were afforded opportunity to adduce evidence. They had filed a certified copy of the order passed in Civil Misc. Writ Petition No. 7708 of 1997 (Gayur Ali vs. D.D.C., Muzaffarnagar) dated 5.3.1997, khatauni of 1410 to 1415 fasli of village Ghari Hasanpur relating to Gata No. 849. The accused appellants had not adduced any oral evidence.

13. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt and convicted and sentenced the accused appellants, hence this appeal.

14. I have heard Shri Noor Mohammad, learned counsel for the appellants, learned AGA for the State at length, and perused the entire record carefully.

15. Castigating the impugned judgement and order, learned counsel for the appellants has submitted that maximum sentence imposed upon the appellants is of ten years and fine also. Out of the sentence imposed, appellants have served out eight years of sentence. Medical evidence does not support the prosecution case. Witnesses claiming themselves to be the eye witnesses were actually not seen the incident. There are major contradictions in the statement of witnesses on material points. Some of the accused named in the FIR were not found involved in the present matter, therefore, charge-sheet against them could not be filed. Witnesses examined by the prosecution have made improvement during course of examination before the Court, which are fatal to the prosecution case. There was enmity between the parties regarding possession over the agricultural land. As alleged by the prosecution, offence did not take place but the informant falsely implicated the accused appellants in this matter. Findings recorded by the trial court are perverse. No offence under Section 326 IPC is attracted in the present matter.

16. On the other hand, the learned AGA appearing for the State has submitted that accused appellants caused injuries to the injured Iftekhar with the use of Gandasi with intention to kill him. Medical evidence fully supports the prosecution case. The trial court has appreciated the evidence available on record in right perspective and rightly convicted and sentenced the accused appellants for the offence under Sections 308/34 IPC and 326/34 IPC. There is no illegality or infirmity in the findings recorded by the trial court in the impugned judgment and order warranting interference by this Court.

17. I have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence.

18. In the present matter, offence is said to have taken place on 22.12.2003 at 1.00 p.m.. First Information Report was lodged on 24.12.2003 at 11.00 a.m.. Distance between the place of occurrence to the concerned police station was three kilometres. There is a delay in lodging the FIR for about two days. It is mentioned in the FIR itself that injured was taken to the P.H.C., Shamli immediately after the incident, later on, the doctor referred him to the District Hospital Muzaffarnagar. If this fact is taken into consideration, delay in lodging the FIR has been explained in the FIR itself. In the facts and circumstances of the case, delay in lodging of the FIR is not deliberate but the same was for providing medical treatment. The time taken in lodging the FIR is possible one which has been properly and satisfactorily explained by the prosecution.

19. As far as date, time and place of occurrence is concerned, although no argument was advanced on behalf of the appellants in this regard, yet I have gone through the findings recorded by the trial court and the evidence available on record including medical evidence.

20. A perusal of the injury report shows that injured was medically examined on 22.12.2003 at 4.10 p.m. i.e. on the day of the incident itself. He was taken to the hospital by Ajaz Khan son of Inayat Khan and twelve injuries were found on the body of the injured Iftekhar. Some of the injuries were grievous in nature. X-ray report (Ext. ka-8) reveals fracture in the parietal bone and metacarpal bone. Prosecution witnesses in their statements made before the Court have clearly stated that accused appellant Kawar was armed with Gandasi and accused appellant Maroof was armed with lathi. Clear and consistent statement of the prosecution witnesses is that both the accused appellants have caused injuries to the injured with the respective weapons assigned to them with the intention to kill him. A lengthy cross-examinations were made from the prosecution witnesses but nothing contrary to the prosecution evidence came out. Since findings recorded by the trial court on the points of date, time and place of occurrence have not been challenged and medical evidence clearly supports the oral testimony, therefore, finding recorded by the trial court on these points only on the basis that there are some contradictions in the statements of prosecution witnesses cannot be discarded. In a lengthy cross-examination done by the defence from the prosecution witnesses, contradictions were bound to occur in the statements. If a witnesses are not a tutored witness, generally contradictions happened to occur in their statements. On a minute perusal of the entire statement of the prosecution witnesses, I am of the opinion that statement of prosecution witnesses on material points are consistent and clear and are also supported by the medical evidence. Hence, the findings recorded by the trial court on these points are sustainable and do not require interference.

21. Submission of the learned counsel for the appellants is that both the accused appellants have served-out eight years sentence out of ten years maximum sentence imposed upon them. It was further submitted that accused appellants can only be convicted either for the offence under Section 308 IPC or for the offence under Section 326 IPC. There is only one injured Iftekhar in the present offence.

22. I have perused the evidence and the findings recorded by the trial court in consonance with the submissions made by the learned counsel for the appellants in this regard. To ascertain as to whether conviction of the accused appellants made by the trial court in both Sections i.e. under Section 308 IPC and Section 326 IPC for only one injured is legal or not, it is necessary to minutely scrutinize the provisions of the said Sections. Section 308 IPC reads as under:

"308. Attempt to commit culpable homicide.--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has com­mitted the offence defined in this section."

23. Section 326 IPC provides as follows:

"326. Voluntarily causing grievous hurt by dangerous weapons or means--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to re­ceive into the blood, or by means of any animal, shall be pun­ished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

24. If the above-quoted provisions of Section 308 IPC and Section 326 IPC are taken in to consideration in consonance with the facts and circumstances of the present case, it is clear that the trial court has committed error in convicting the accused appellants for the offence under Section 308 IPC as also under Section 326 IPC both. Maximum sentence (imprisonment) imposed upon the accused appellants under Section 308 IPC is of seven years whereas for the offence under Section 326 IPC is of ten years. Prosecution case will be taken either under Section 308 IPC or under Section 326 IPC but not in both the Sections. In the opinion of the Court, prosecution has established its case under Section 326 IPC. Conviction recorded by the trial court under Section 308 IPC is liable to be set-aside.

25. So far as the submission regarding sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

26. 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].

27. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence.

28. The Apex Court in the case of G. V. Siddaramesh Versus of State of Karnataka; 2010 (87) AIC 43 (SC), while allowing the appeal of the appellant, altered the sentence. Paragraph 31 of the said judgment is reproduced below:

"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I. P. C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B, I. P. C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."

29. Applying the principle laid down by the Apex Court in the aforesaid judgements and having regard to the totality of the facts and circumstances of the case particularly the fact that the accused appellants have served-out substantial portion (about eight years) of the sentence imposed upon them, I am of the considered view that the ends of justice would meet if the sentence of the appellants awarded to them under Section 326 IPC is reduced / modified to the imprisonment of eight years excluding the punishment of fine imposed upon them in the impugned judgment & order, which shall be deposited or additional imprisonment ordered to be served-out in default of payment of fine shall be undergone by the appellants.

30. In the light of foregoing discussions, this appeal is liable to be allowed in part and the conviction of the appellants namely, Kawar and Maroof under Section 326 IPC read with Section 34 IPC is liable to be upheld. The impugned judgment and order dated 5.12.2008 is liable to be modified to the extent as discussed above.

31. Accordingly, the appeal is allowed in part. Conviction of the appellants namely, Kawar and Maroof under Section 326 IPC read with Section 34 IPC is upheld. The sentence of ten years rigorous imprisonment awarded to the appellants Kawar and Maroof for their conviction under Section 326 IPC read with Section 34 IPC is altered and reduced to the imprisonment of eight years. Fine imposed upon the appellants for the offence under Section 326 IPC read with Section 34 IPC will be deposited or in default, additional imprisonment as ordered by the trial court, shall be served-out. Accused appellants are acquitted for the offence under Section 308 IPC read with Section 34 IPC. Nature of the imprisonment would be the same as ordered by the trial court in the impugned judgment and order.

32. Let a copy of this judgement along with lower court record be sent to the Sessions Judge, Muzaffarnagar for compliance. A compliance report be sent to this Court.

Order Date :- 27.08.2015

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