Narpat Singh vs State Of U.P.
2015 Latest Caselaw 3043 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							A.F.R.	
 
			JUDGMENT RESERVED ON : 08.09.2015
 
			JUDGMENT DELIVERED ON :09.10.2015
 

 
Case :- CRIMINAL APPEAL No. - 475 of 2010
 
Appellant :- Narpat Singh 
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Satyendra Narayan Singh,Gulab Shankar Singh,P.C. Pathak,Pradeep Kumar Rai,Radhey Raman Mishra,Rajiv Gupta,S.K.Pandey,S.N. Mishra,S.R. Pandey,V.K. Mishra 
 
Counsel for Respondent :- Govt. Advocate 
 

 
Hon. Om Prakash-VII, J.

1. This Criminal Appeal has been filed by the appellant against the impugned judgment and order dated 19.1.2010 passed by the Additional District & Sessions Judge, Court No.-1, Basti in Sessions Trial No. 205 of 2001 (State of U. P. Vs. Narpat Singh) pertaining to crime no. 79 of 2001 Police Station Haraiya, district Basti whereby the court below has convicted and sentenced the accused appellant for the offence under Section 304 Part-II IPC to undergo rigorous imprisonment of 10 years and also the fine of Rs. 10,000/- was imposed. In default of payment of fine to undergo one year additional rigorous imprisonment.

2. Prosecution story in nutshell as enumerated in the written report (Ext. Ka-1) is as under :

3. Informant, P.W.-1 Dinesh Singh moved a written report (Ext.Ka-1) at the police station concerned on 10.3.2001 mentioning therein that on 10.3.2001 when he was returning from the market and was passing in front of the house of Chandrika Singh, he (Chandrika Singh ) objected him that you will not pass through this way. But the informant went to his house as usual from that passage. Chandrika Singh felt offended and after some time Narpat Singh son of Dev Dutt Singh, Chandrika Singh son of Deep Narayan Singh, Ram Laut Singh son of Shesh Dutt Singh and Sanjeev Kumar Singh son of Devta Singh came to his house and started abusing and damaging the tractor. Due to fear, informant and his family members went inside the house. Hearing the uproar Ram Rikhi Singh son of Mata Prasad Singh, Smt. Kalawati Devi wife of Mata Badal Singh and others came there. Thereafter informant's mother Smt. Singari Devi, aged about 64 years, came out from the house and objected the accused persons from damaging the tractor. On exhortation of Chandrika Singh and Sanjeev Kumar Singh, Narpat Singh caused "lathi" blow on the head of informant's mother. Consequently she fell down. Many people gathered there then accused persons fled away. The incident is of 1.30 P.M. Deceased was taken to P.H.C., Hariya but looking to the serious condition she was referred to the District Hospital, Basti for treatment. Deceased was taken to the Sadar Hospital by private Maruti car where she succumbed to her injuries. Dead body was lying in Sadar Hospital.

4. On the basis of the written report (Ext.Ka-1) chik first information report (Ext. Ka-3) was registered on 10.3.2001 at 08.10 P.M. at the police station concerned under Section 304, 504, 427 IPC against Narpat Singh, Chandrika Singh, Ram Laut Singh and Sanjeev Kumar Singh. G.D. Entry (Ext. Ka-4) was also made. Investigation was entrusted to P.W.-4 S.I. Tej Pratap Singh. P.W.-7 S.I. Prabhakar Mishra reached at the District Hospital and prepared the inquest report (Ext. Ka-2) and taken the dead body in to the custody keeping the same in sealed cloth. He also prepared sample seal (Ext. Ka-8), photo nash (Ext. Ka-9), Challan Nash Form no. 13 (Ext. Ka-10), letters (Ext. Ka-11) and (Ext. Ka-12). Dead body was sent by this witness for post mortem through Constable C.P. 344 Suresh Kunwar and the Home Guard Jagdamba Singh.

5. Deceased Smt. Shingari Devi wife of Ram Ujagir Singh was initially examined at District Hospital, Basti on 10.3.2001 at 3.50 P.M. brought by her son. The injury report (Ext. Ka-13) was prepared by the Doctor. Deceased was aged about 65 years and following injuries were found on her person :

"Lacerated wound 2.5 cm x 1 cm x bone deep over left side of forehead 7 cm away from mid line and 8 cm above mastoid. Fresh blood was present. Patient was deeply unconscious."

6. The death certificate was also issued by the hospital concerned.

7. Autopsy on the dead body of the deceased was performed on 11.3.2001 at 4.10 P.M. by P.W.-6 Dr. N. K. Srivastava and post mortem report was prepared by him. From a perusal of the post mortem report and statement of P.W.-6 Dr. N. K. Srivastava it appears that in the upper portion of the post mortem report date of conducting the post mortem was inadvertently shown as 10.3.2001 (although in the bottom it is shown as 11.3.2001).

8. Deceased was aged about 65 years. She was short structured person and poor muscularity. Rigor mortis was present in all four limbs. Eyes and mouth were closed.

9. In the examination following ante mortem injuries were found :

"1. Contusion of 10 x 7 cm over left side of forehead anterior up to left eye brow and 1 cm. above the left ear underneath left temporal, left frontal bone in multiple pieces. Underneath membranes congested and blood clot present in cranial cavity.

2. Lacerated wound 1-1/2 cm x ½ cm left side over injury no. 1, 7 cm. posterior to left eye brow.

3. Blackening of left eye present. No apparent injury over eye lid present."

10. Cause of death is shown due to ante mortem injuries leading to intra cranial haemorrhage.

11. Investigating Officer, P.W.-4 Tej Pratap Singh copied the chik and the G.D. in the case diary and also recorded the statement of the informant P.W.-1 Dinesh Singh. He also interrogated eye witnesses Kalavati Devi and Dharam Narayan Singh and visited the spot on 11.3.2001 and prepared the site plan (Ext. Ka.-5). Other witnesses were also interrogated by this witness. After fulfilling the formalities this witness submitted charge sheet (Ext.Ka-7) against accused Chandrika Singh, Narpat Singh, Ram Laut Singh and Sanjeev Kumar Singh. This witness has also proved the chik and G.D. prepared by Constable Rajendra Singh as he was acquainted with the signature and writing of the Constable Rajendra Singh.

12. Concerned Magistrate took the cognizance on the charge sheet and the case being exclusively triable by the Court of sessions committed for trial to the Sessions Court.

13. Accused appeared. Charges against all the accused named above were framed under Section 304 read with Section 34, 427 IPC were framed to which they denied and claimed their trial.

14. In order to prove its case the prosecution examined eight witnesses. P.W.-1 Dinesh Singh, who claimed himself to be eye witness; P.W.-2 Kalawati Devi, P.W.-3 Ram Rikhi Singh were also examined as eye witness; P.W.-4 S.I. Tej Pratap Singh, I.O.; P.W.-5 Constable C.P. Suresh Kunwar who has carried the dead body of the deceased for post mortem; P.W.-6 Dr. N. K. Srivastava who has conducted the post mortem on the dead body of the deceased. P.W.-7 S.I. Prabhakar Mishra, who has prepared the other police papers; P.W.-8 Dr. Mohd. Iqbal, who has initially examined the deceased and prepared inquest report and injury report (Ext. Ka-3).

15. After closer of the prosecution evidence statement of the accused facing trial were recorded in which they stated the prosecution story to be false. Accused appellant Narpat Singh has specifically stated that no injury was caused by him to the deceased but she received injuries in her house and accused appellant was falsely implicated in this case.

16. Trial court after hearing the parties and going through the entire record vide impugned judgment and order convicted and sentenced the accused appellant but acquitted the other co-accused persons namely Sanjeev Kumar Singh, Chandrika Singh and Ram Laut Singh. Hence this appeal by the appellant Narpat Singh against the conviction. There is no appeal filed against acquittal by the State or the complainant.

17. I have heard Sri V. K. Mishra, learned Advocate who appeared for the appellant and Sri Shabbir Ahmad, learned A.G.A.

18. Submission of the learned counsel for the appellant is that the prosecution could not prove its case beyond reasonable doubt. Date, time and place of the occurrence were also not proved by the prosecution. Motive assigned to commit the present offence is also not proved. No blood stained earth was found by the Investigating Officer at the place of occurrence. The damaged parts of the tractor were also not taken into custody by the Investigating Officer as a piece of evidence. Prosecution witnesses themselves have admitted that deceased was taken to the hospital taking out from the house of the informant. Thus the plea taken by the accused appellant that the deceased received injuries inside the house of the informant is probable and believable. Trial court finding is perverse. Referring to the post mortem report it was submitted that time of death does not tally with the oral version of the prosecution witnesses. Since there was enmity, therefore, appellant was falsely implicated in this case on that ground. Witnesses are interested and relative witnesses. There was every chance for false implication of the accused applicant in the case. Prosecution case is not supported by any independent witnesses. Investigation is also not fair. Medical evidence is against oral version of the witnesses. First information report is belated. Deceased was examined at the Hariya P.H.C. near to the police station concerned but no information was given by the informant about the incident at that time to the concerned police, it also creates doubt about the authenticity of the F.I.R.

19. Learned A.G.A. argued that since the condition of the deceased was precarious, priority of treatment to the deceased was given by the informant. Eye account witnesses are natural and probable witnesses. Incident took place at the door of the informant, therefore, the witnesses examined by the prosecution are most natural and probable witnesses. Since the deceased fell down after receiving injuries, therefore, she was taken inside the house. It is not the case of the prosecution that blood fell down on the earth, therefore, no question of finding of the blood stained earth at the place of occurrence arises. Medical evidence fully supported the oral version. Although in the injury report Doctor had shown only one injury but in the post mortem two injuries are found and these two injuries are corresponding to each other and are situated at the same place, therefore, it cannot be said that medical evidence does not support the prosecution version. Motive was fully established by the prosecution, statement of the eye account witnesses are reliable. Contradiction, omission and improvement are not of such nature which places the eye account witnesses in the category of unreliable witnesses.

20. I have considered the rival submissions and gone through the entire record.

21. In the present matter offence is said to have been committed on 10.3.2001 at about 1.30 P.M. in village Kasiyapur, sub district Hariya, district Basti. Police station is 6 kms. away from the place of occurrence. F.I.R. was lodged on the same day at 08.10 P.M. It is mentioned in the written report itself that initially the injured (deceased) was taken to P.H.C., Hariya but looking to the precarious condition of the deceased, the Doctor referred to the patient to the District Hospital, Basti where she died during treatment on the same day at 5.15. P.M. No information was given by the informant prior to this F.I.R. Thus the F.I.R. came into existence after about seven hours of the incident. Though the distance between the place of occurrence and police station is only six kms. and the deceased was taken for treatment initially at P.H.C. Hariya and thereafter District Hospital, Basti. Therefore, time consumed by the informant in lodging the F.I.R. could not be said to be unreasonable. The informant has not only explained the delay in lodging of the F.I.R. satisfactorily at initial stage but also in the deposition made before the court below. So long as the contention raised by the learned counsel for the appellant that if the deceased was taken to P.H.C., Auraiya and the police station was situated near to the P.H.C. then the information should have been given at that time by the informant is not acceptable and the F.I.R. could not be doubted on this score. Condition of the deceased was precarious one. Priority was given to save her life. If information was not given to the local police at that time, the F.I.R. Could not become a suspicious document. After close analysis of the entire document I am of the view that the F.I.R. lodged in the matter is not anti timed nor hit by any provision of the law nor is a suspicious document.

22. So long as motive is concerned P.W.-1 Dinesh has stated that when he was returning from the market and as soon as he reached in front of the door of the accused person they told that he will not go/pass through that passage but the informant went ahead from that passage itself. This infuriated the accused persons and thereafter all the accused persons came at the door of the informant and caused present offence. It has also come in the evidence that there was previous litigation between the family members of P.W.-2 Smt. Kalawati and the accused persons. On the ground of above accepted factual situation it could not be held that accused appellant was falsely implicated in this case due to the motive described above. Motive is a double edged weapon and it may be a reason for committing the offence as well as for false implication. Motive attributed to the accused appellant for committing the present offence could not be doubted on this ground and the whole prosecution evidence could not be disbelieved. Only requirement of the law is that in such a situation prosecution evidence would be analysed very carefully and cautiously.

23. As far as the date, time and place of occurrence is concerned, certainly Investigating Officer did not find any blood stained earth on the place of occurrence. There is contradiction in the statement of P.W.-2 Kalawati about exact place where from she had seen the incident and also the damaged part of the tractor but in the opinion of the court on these facts the testimony of the eye account witnesses could not be disbelieved regarding the manner, date, time and place of the occurrence. Prosecution case is that accused persons caused damage to the tractor by the use of "lathi". It might be possible that parts of the tractor would not have been broken in pieces. Therefore, the argument advanced by the learned counsel for the appellant is not liable to be accepted and the place of occurrence could not be doubted. So far as the date and time of the occurrence is concerned, before discussing on this point I would discuss the medical evidence.

24. Deceased at first was examined at P.H.C. Hariya at 3.50 P.M. In the injury report (Ext. Ka-13) it is mentioned that fresh blood was present on the injuries. Deceased was also medically examined at District Hospital, Basti but could not survive and died on the day of incident at 5.15 P.M. Time of the injuries as per the eye account witnesses is 1.30 P.M.. No any question to challenge the time of the injuries was asked by the appellant during the course of examination from the P.W.-6 Dr. N. K. Srivastava and P.W.-8 Dr. Mohd. Iqbal to show that the injuries found on the body of the deceased could not come at 1.30 P.M. on 10.3.2001. P.W. -8 Dr. Mohd. Iqbal has clearly stated that the injuries found on the body of the deceased could come at 1.30 P.M. on the day of incident by the use of "lathi" and "danda". Since there is no any challenge on the part of the accused appellant regarding time of the injuries, therefore, argument advanced by the learned counsel for the appellant is not acceptable. So far as the number of injuries are concerned, in fact P.W.-8 has shown only one injury and the Doctor conducting the post mortem has shown two injuries on the head of the deceased. Injury no. 3 is blackening on the left eye. If the injuries described in the post mortem report and stated by P.W.-6 are compared with the injuries described in the injury report Ext. Ka-3 and the statement of P.W.-8 Dr. Mohd. Iqbal, it is crystal clear that the injuries shown in the injury sheet Ext. Ka-3 and the injuries shown in the post mortem report are the same. P.W.-6 has clearly stated before the court that injury no. 1 and 2 corresponds to each other. It might be possible that at the initial stage the Doctor examining the injury might have not detected this fact that there are two injuries and it appears that due to that reason P.W.-6 has shown only one injury. Thus there is no any contradiction in the oral testimony and the medical evidence regarding number of injuries.

25. So far as the shape, size and dimension of the injuries are concerned, it is the case of the prosecution that accused appellant caused "lathi" blow on the head of the deceased. Deceased was aged about 65 years old lady. Doctor had opined that after particular age the bones are broken easily. The shape and size of the injuries stated in the medical evidence, in my considered opinion, could be caused by the use of weapon "lathi" assigned to the accused appellant. Finding recorded by the trial court on this issue is not interfereable because there is no any infirmity or illegality in the finding. I am also of the considered view that medical evidence fully support the oral version.

26. So far as the presence of eye account witnesses are concerned P.W.-1 Dinesh Singh and P.W.-3 Ram Rikhi Singh both are the family members of the deceased and P.W.-2 Kalwati is neighbour. Place of incident is in front of the house of these witnesses. In the facts and circumstances of the case the witnesses examined by the prosecution would only be the best witnesses. They are the natural and probable witnesses. Their presence on the date, time and place of occurrence could not be doubted as they would be the first persons who could see the incident and reach the place of occurrence. It has also come in the evidence that before causing blow on the head of the deceased some hue and cry took place at the time of occurrence. It is possible that hearing the uproar P.W.-2 would have reached on the roof of her house. Any inconsistency or contradictory statement made by this witness on this point is the result of pressure of cross examination and being a rural lady. The settled legal position is that testimony of a witness who is the relative of the deceased could not be disbelieved only on the ground of his being relative. Only requirement of law is that statement of these witnesses would be scrutinised very carefully and cautiously. Similar is the position of the interested witnesses. If for the sake of argument the submission advanced by the learned counsel for the appellant that there was a litigation pending between family members of Kalawati and accused appellant, is taken into consideration then also P.W.-2 Kalawati could not be termed as interested witness. Interested witnesses are those who at all costs are interested in getting the conviction of the accused persons. In the present matter looking to the place of occurrence and the location of the house of the P.W.-2, her presence could not be doubted at the time of incident at the place of occurrence. The testimony of this witness is also supported by the medical evidence. Similar is the position with regard to P.W.-1 Dinesh Singh and P.W.-3 Ram Rikhi Singh. Although both are the relative of the deceased but they are most natural and probable witness and their version find support with the medical evidence. Thus it can safely be held that there is no any conflict between the medical evidence and the oral version. In the present matter date, time and place of the occurrence, as alleged in the written report (Ext. Ka-3) were fully established by the prosecution beyond reasonable doubt. Trial court finding on these points cannot be termed as illegal or improbable.

27. So far as the role assigned to the present appellant is concerned P.W.-1 Dinesh Singh, P.W.-2 Kalwati and P.W.-3 Ram Rikhi Singh all these witnesses have stated that accused appellant caused "lathi" blow on the head of the deceased. Medical evidence fully support this fact. Injuries found on the head of the deceased could be caused by the "lathi" as has been stated by the Doctor. This fact has not been challenged by the appellant in the cross examination. Cause of death of the deceased is due to head injuries leading to intra cranial haemorrhage. Therefore, role of the accused appellant in causing the head injury was proved by the prosecution from its evidence beyond reasonable doubt. Deceased died due to head injuries caused by the accused appellant simplicitor. Thus the manner of occurrence is also established by the prosecution beyond reasonable doubt.

28. It appears that Special report was not send immediately to the concerned Magistrate and Investigating Officer has made defective investigation but these facts are not of such nature which caused any prejudice to the accused appellant as the oral version of the prosecution witnesses are fully supported by the medical witnesses.

29. So far as the conviction of the accused appellant for the offence under Section 304 Pt. II IPC is concerned law provides that if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death, the accused appellant could be punished under Section 304 Pt. II IPC. The punishment would be of imprisonment of either description for a term which may extend to 10 years or with fine or with both. Thus it is clear that maximum punishment for the offence under Section 304- Pt.II IPC could be imposed only for 10 years. Trial court has imposed 10 years R.I. and fine of Rs. 10,000/-. It is also settled legal position that for imposing extreme punishment accused must be heard personally. From a perusal of the impugned judgment and order it is clear that appellant was not heard personally. Apart from this while imposing extreme penalty trial court has not assigned any reason for imposing such penalty. In the present matter the accused appellant is languishing in jail since 19.1.2010. He was also in jail for some time during trial.

30. In criminal trial 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].

31. Applying the aforesaid principle I am of the view that if the accused appellant is punished for the offence under Section 304 Pt. II IPC for eight years rigorous imprisonment and a fine of Rs. 10,000/- as awarded by the trial court, it would subserve the purpose of awarding appropriate sentence and also would meet the ends of justice.

32. Thus on the basis of the foregoing discussions, I am of the view that present criminal appeal is liable to be partly allowed confirming the conviction of the accused appellant under Section 304- Pt. II IPC but modifying the punishment of imprisonment awarded to him by impugned judgment and order dated 19.1.2010 passed by the Additional District & Sessions Judge, Court No.-1, Basti in Sessions Trial No. 205 of 2001 (State of U. P. Vs. Narpat Singh) reducing it to eight years instead of ten years. The fine imposed upon the accused appellant will remain unchanged and the additional imprisonment ordered by the trial court in default of payment of fine would also remain same.

33. Thus the Criminal Appeal No. 475 of 2010 is partly allowed. The conviction of the appellant Narpat Singh under Section 304 Part II IPC is hereby confirmed and the sentence of imprisonment imposed upon the appellant Narpat Singh for the offence under Section 304 Part II IPC is modified and reduced to eight years instead of ten years. The fine imposed by the trial court is affirmed. Additional imprisonment in default of payment of fine would be the same as ordered by the trial court.

34. Record of the trial court along with copy of this judgment be sent to the Court concerned and Chief Judicial Magistrate concerned for immediate compliance. Compliance report be also submitted to this Court.

October 9, 2015.

Sachdeva