Prakash & Others vs State Of U.P.
2017 Latest Caselaw 3629 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 13.07.2017
 
Delivered on 25.08.2017
 
Court No. - 25
 
Case :- CRIMINAL APPEAL No. - 226 of 1993
 
Appellant :- Prakash & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- B.M. Sahai,Salil Kr. Srivastava
 
Counsel for Respondent :- Govt. Advocate,S.K. Shukla
 

 
Hon'ble Ravindra Nath Mishra-II,J.

1. This criminal appeal has been filed against judgment and order dated 14th May, 1993 passed by Ist Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No. 421 of 1990, State Vs. Prakash and others, whereby accused-appellants Prakash and Chhanga Lal alias Chhanga have been convicted and sentenced under Section 326 and 307 I.P.C. with rigorous imprisonment of 10 years each and accused-appellants Bahadur and Jhabbu Lal have been convicted and sentenced under Section 323/34 I.P.C. with rigorous imprisonment of six months.

2. Brief facts, giving rise to this appeal, are that a written report, Exhibit Ka-1, was submitted by the complainant Smt. Phoolmati, widow of Nathulal Verma on 18.09.1989 in Police Station Gola, District Lakhimpur Kheri that she and the accused persons were residents of one and the same village; on 18.09.1984, some masons and labourers were at work at the house of the complainant for raising a wall of 'Varandah' of her house; accused Budhar Lal, her neighbour, whose house situated towards west of her house, has possessed her land forcibly and illegally; he was digging foundation of a wall just adjacent to the wall of complainant's house; the complainant's Dever, Ram Chandra, who used to live with her, after death of her husband, restrained accused-Budhar Lal from digging the foundation; it was about 10 a.m. Ram Chandra asked Budhar Lal to raise his wall leaving some passage within his own land whereupon accused Prakash armed with knife, accused Chhanga Lal armed with Gadasa assaulted Ram Chandar; they dragged Ram Chandar to their Chhappar where accused Chhanga Lal chopped off both his hands with Gadasa and accused Prakash took out both of his eyes and chopped off his tongue with the help of knife; accused-Jhabbu Lal and Bahadur, sons of accused Budhar Lal, both assaulted complainant, Smt. Phoolmati, with their kicks and fits and threw her away in dumped water near their Chhappar; complainant, Smt. Phoolmati, has further mentioned in her report that her Jeth Banshidhar, who was present at her house and Jalim Prasad, who had come at the place of occurrence, saw the occurrence.

3. On the basis of above written report, Chik F.I.R. was prepared at the police station under Section 326 and 323 I.P.C. Consequent entries were made in general diary (Exhibit Ka-3) of police station. The investigating officer reached the site and after making inspection of the place of occurrence prepared the site-plan (Exhibit Ka-4) of the same. The investigating officer also collected the blood stained and simple earth from the place of occurrence and prepared memo, (Exhibit Ka-5). The investigating officer took the blood stained sheet (Chader) in his possession vide memo, Exhibit Ka-6.

4. Injured Ram Chandar was sent from police station to P.H.C. Gola for his medical examination where he was medically examined by Dr. R.P. Pandey. Injury report is Exhibit Ka-9. The investigating officer recorded statements of witnesses under Section 161 Cr.P.C. and after completing the investigation submitted charge-sheet against the accused persons under Sections 326, 323 and 201 I.P.C. in the Court. Charges were framed against accused persons under Sections 326, 323 and 201 I.P.C. on the basis of material available on record.

5. During trial, the prosecution examined Smt. Phoolmati, complainant and eyewitness as PW-1, Ram Chandar, injured, as PW-2, Ghurai Lal, constable clerk, who had recorded the Chik F.I.R. and consequent entries in general diary of the police station as PW-3, Shri Shiva Veer Singh, the investigating officer, as PW-4 and Dr. S.K. Shukla, In-charge Medical Officer of District Hospital, Lakhimpur Kheri, as PW-5.

6. The genuineness of injury report of injured Ram Chandar was admitted by counsel for the accused-appellants. At the conclusion of prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. in which they had pleaded their false implication in the case out of enmity. Accused persons did not lead any evidence despite opportunity having been given to them.

7. After hearing rival contentions of the parties, the lower Court concluded that accused-appellants Prakash and Chhanga Lal alias Chhanga were guilty of offence under Sections 326 and 307 I.P.C., therefore, they were convicted and sentenced under Section 326 and 307 I.P.C. with rigorous imprisonment of 10 years each. Both the sentences have been directed to run concurrently. However, accused Bahadur and Jhabbu Lal were convicted and sentenced simple imprisonment of six months each under Section 323 I.P.C read with Section 34 I.P.C. Feeling aggrieved by the conviction and sentence, this appeal has been preferred.

8. Heard learned counsel for the accused-appellants and learned Additional Government Advocate and perused the lower Court record.

9. It has been contended on behalf of the accused-appellants that the F.I.R. is an ante-timed document and lower Court erred in law in not concluding to that effect. It has also been contended that the letter of request sent by police station for medical examination of PW-2, Ram Chandar, neither mentions crime number nor sections under which the case was registered. Prosecution witnesses, namely, Smt. Phoolmati and Ram Chandar do not inspire any confidence and should not have been believed by the Court below. No independent witness has been examined. The injuries of Smt. Phoolmati, PW-1, is self-inflicted and doubtful, therefore, conviction of accused-appellants is unsustainable and they deserve to be acquitted.

10. Per contra, learned Additional Government Advocate has argued that though no independent witness has been examined by the prosecution, yet both of the prosecution witnesses being injured, their presence cannot be doubted. The testimonies of injured witnesses inspire confidence and have rightly been believed and relied upon by the trial Court. The F.I.R. was prompt and not ante-timed.

11. This is a case of brutal attack on injured Ram Chandar where his both eyes were taken out and his tongue was cut with knife and his both hands were chopped off by 'Gadasa'. The occurrence is alleged to have taken place on 18.09.1989. The FIR with regard to this brutal incident was lodged on same day. FIR in a criminal case is vital and valuable piece of evidence for the purpose of appreciating the evidence led at the Trial.

12. For his argument that FIR in present case is tainted one as it is ante-timed and it was not in existence when it is alleged, learned counsel for accused-appellants has referred 'Chithi Mojrobi' (Exhibit Ka-9) of injured Ram Chandra sent by police station to Primary Health Center, Gola, on the back of which injuries found on the body of injured Ram Chandra were recorded by Doctor. It is true that 'Chithi Mojrobi' contains neither crime number nor section of offence, but whether this is sole criteria to decide that the FIR was not in existence when it is alleged. Hon'ble Apex Court has laid down certain external checks in Meharaj Singh Versus State of U.P. (1994) 5 SCC 188 by which it can be decided whether FIR is ante-timed or not. The external checks culled down by Hon'ble Apex Court may be mentioned as below:-

"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial and the object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any, for delay in lodgment of the FIR results in embellishment which is a creation of afterthought. Emphasis was laid on the fact that on account of delay, the FIR not only gets bereft of the advantage of spontaneity but also danger of introduction of a coloured version or exaggerated story."

13. The requirement of Section 157 Cr.P.C. to forthwith send a copy of FIR to Magistrate concerned is external check, while recording of time and date of FIR in the register is internal check. In the present case, copy of General Diary of police station (Exhibit Ka-3) is internal check, which certifies lodging of FIR at the time it is alleged. Apart from this, FIR in present case also fulfills the requirement of Section 157 Cr.P.C. The FIR was lodged on 18.09.1989 at about 02.50 P.M. and chick FIR was sent to Magistrate having jurisdiction immediately. Chick FIR (Exhibit Ka-2) bears signature and stamp of Chief Judicial Magistrate, Lakhimpur Kheri along with date which shows that the chick FIR was received in the office of Chief Judicial Magistrate, Lakhimpur Kheri on 19.09.1989. Thus, it can not be said that FIR is ante-timed.

14. Learned counsel for accused-appellants has also argued that public witnesses, present at the time of occurrence, were not produced by the prosecution and the witnesses produced are interested witnesses, therefore, their testimonies are not reliable. This argument of learned counsel does not appeal at all. PW-1, Smt. Phoolmati, has very implicitly explained in her statement that masons and labourers working at her house skipped way from the scene of occurrence when this brutal incident took place. Though public witnesses, Vanshidhar and Jalim Prasad, are said to be present at the scene of occurrence, but Banshidhar, being Jeth of the complainant, is related to her and another witness Jalim prasad skipped away seeing the incident, therefore, prosecution could not be insisted upon to produce such witnesses. Apart from this, independent witnesses are often reluctant to appear as witness in criminal cases for the fear of enmity. They must have courage to come forward and depose against the -accused-appellants. There is no legal bar that evidence of interested witness cannot be based for conviction. However, evidence of such witnesses has to be evaluated with care and cautious. For appreciation of evidence of interested witnesses, Hon'ble Apex Court in Masalati and others Versus State of U.P., AIR 1965 SCC Page-202 has observed as below:-

"There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is a partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

15. Discussing reliability of testimony of a interested witness Hon'ble Apex Court in S. Sudershan Reddy & Ors. Versus State of A. P. (2006) 10 SCC 163 has held:

"relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible."

16. Thus, it is clear that relation is not a factum to discard the testimony of witness which is otherwise reliable. In the present case, both witnesses produced by the prosecution as PW-1 & PW-2 are eyewitnesses. PW-2, Ram Chandar, who had become victim of the ghastly attack of accused persons, lost his both eyes and tongue in the incident when appellant-accused Prakash took out his eyes and cut his tongue with the help of knife. His both hands were chopped off by accused-Chhanga. He has stated on oath that all the four accused persons dragged him to Chhappar where Chhanga Lal chapped off both his hands with the help of Gadasa and accused Prakash took out his both eyes and chopped off tongue with the help of knife. PW-1, Smt. Phoolmati, has also supported case of the prosecution. She has also suffered injuries at the hands of accused persons. She has stated that accused Jhabbu and Bahadur both have assaulted her with fists and kicks and threw her away in dumped water. Injuries received on her body have been proved by PW-5, Dr. S.K.Shukla. Injuries received on her body cannot be disbelieved merely because she was not medically examined in Government Hospital. Injuries on her body also prove her presence on the place of occurrence.

17. Learned counsel for the appellant has argued that merely because genuineness of the injury report (Exhibit Ka-9) has been admitted by the defence counsel, injuries on the body of injured, Ram Chandar are not proved. He has relied on Ram Deo Yadav and others Versus State of Bihar 1988 Cri.L.J. 1431 for his argument. In this case, Doctor who had examined the injuries, has not been produced by the prosecution and injury report was not taken in evidence under Section 294 of Cr.P.C. Learned Single Judge of Patna High Court held that injury report cannot be used by prosecution to prove injuries. It has further been held that according to Section 60 of Evidence Act, a person, who claims to have seen incident, must depose in the Court as to what he had seen and found. Therefore, learned counsel for accused-appellants has argued that though genuineness of injury report has been admitted by the defence counsel, the injuries found on the body of injured are not proved for want of evidence of Doctor.

18. I find the above case law distinguishable on the facts of this case. In the present case, the defence has specifically admitted the genuineness of injury report and no where the injuries found on the body of injured Ram Chandar have been challenged, rather suggestions have been given to both the prosecution witnesses that injured Ram Chandar was of bad character, he was involved in eve teasing of ladies of village, therefore, he suffered that kind of injuries in an attack by some other persons. These suggestions clearly show that injuries are not disputed. Thus, where genuineness of document is admitted and injuries are not denied, that can be read in evidence as substantive piece of evidence to prove injuries without examination of doctor.

19. In this respect, Full Bench judgment of this Court in Siddique Versus State of U.P., 1981 CrLJ, Page-379 must be mentioned as below which illustrates the point in issue very clearly. In this case, following question which also bears relevancy to the fact in issue of this case, was referred to Full Bench for decision.

"Can an injury report filed by the prosecution which has been admitted to be genuine by the accused, be read as substantive evidence under Section 294 (3) Cr.P.C.?"

The Full Bench of this Court held that the word "any" appearing before the word "document" means an indefinite number and make sub section (1) of Section 294 Cr.P.C. applicable to all documents filed by the prosecution or the accused, irrespective of their nature and character.

20. The Full Bench in Siddique Versus State of U.P. (supra) observed as below:-

"8. In our opinion, if the prosecution or the accused does not dispute the genuineness of a document filed by the opposite party under Sub-section (1) of Section 294, Cr. P.C. it amounts to an admission that the entire document is true or correct. It means that the document has been signed by the person by whom it purports to be signed and its contents are correct. It does not only amount to the admission of it being signed by the person by whom it purports to be signed but also implies the admission of the correctness of its contents. Such a document may be read in evidence under Sub-section (3) of Section 294, Cr. P.C. Neither the signature nor the correctness of its contents need be proved by the prosecution or the accused by examining its signatory as it is admitted to be true or correct. The phrase 'read in evidence' means read as substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the evidence used to discredit a witness or to corroborate his testimony."

21. Referring the admissibility of injury report admitted to be genuine under Section 294 Cr.P.C. the Court further observed:-

"10. An injury report filed by the prosecution is obviously a document as defined in Section 29, I.P.C. Before the Code of Criminal Procedure, 1973 came into force an injury report could not be read in evidence as it was only a writing of the doctor made at the time of the examination of the injuries of the injured person. It contained his observations regarding the nature, dimension and location of the injuries and also his opinion regarding their duration and the instrument with which they were caused. The doctor who prepared the injury report was required to enter the witness box during the inquiry or trial to prove the injuries of the injured person. He could refresh his memory under Section 159, Evidence Act by referring to the injury report prepared by him and the injury report was proved by him under Section 67 , Evidence Act and it corroborated his deposition in Court under Section 157, Evidence Act. Under Sub-section (3) of Section 294, Cr. P.C. an injury report filed by the prosecution under Sub-section (1) of Section 294, Cr. P.C. may be read as substantive evidence in place of the deposition of the doctor who prepared it if its genuineness is not disputed by the accused. If its genuineness is disputed then the doctor who examined the injured person must appear in the witness box to prove his injuries and also to prove the injury report and in such a case the statement of the doctor would be the substantive evidence and the injury report may be used to corroborate or discredit his testimony."

Answering the question referred to it, the Full Bench finally concluded that:-

"15. For the reasons given above, our answer to the question referred to us for decision is that an injury report filed by the prosecution under Sub-section (1) of Section 294 Cr. P.C. whose genuineness is not disputed by the accused may be read as substantive evidence under Sub-section (3). of Section penal, Cr. P.C."

22. In view of above judgment of Full Bench in Siddiquie Versus State of U.P. (supra) no scope of doubt remains that the injury report, genuineness of which is admitted by the accused persons during trial, can be read in evidence to prove the injuries caused to the injured without examining doctor.

23. Learned counsel for accused-appellants has also cited Sharad Birdhichand Sarda Versus State of Maharastra (1984) 4 SCC Page 116 in which it has been held that the circumstances which were not put to the accused persons to explain under Section 313 Cr.P.C cannot be relied upon. This case law does not apply to the present case. The present case is not based on the circumstantial evidence, therefore, prosecution was not expected to put any circumstance to the accused persons under Section 313 Cr.P.C. This case is based on direct evidence.

24. Lastly, it has been contended on behalf of accused-appellants that from the nature of injuries caused to the injured, Ram Chandar, it cannot be said that accused-appellants Prakash and Chhanga Lal had any intention to kill him. All the injuries are grievous in nature. Hence, relying on Parusuraman alias Velladurai and others Versus State of Tamil Nadu, 1992 Supp (1) SCC, page-429, learned counsel has argued that the act of accused-appellants comes within mischief of Section 324 I.P.C. read with Section 34 I.P.C. The trial Court has convicted accused-appellants Prakash and Chhanga Lal under Sections 326 and 307 I.P.C. Accused-appellants Prakash has been alleged to have taken out both eyes of injured Ram Chandar and chopped off his tongue by means of knife and accused Chhanga has been alleged to have chopped off both his hands. Thus, it is a case of permanent privation of the sight of both the eyes and hands which comes within the definition of 'grievous hurt' defined under Section 320 I.P.C. Learned counsel for the accused-appellants does not dispute this, but his argument that act of accused-appellants comes within the mischief of Section 324 I.P.C. is not acceptable as grievous hurt has been caused by means of instrument of cutting which is a dangerous weapon. Causing grievous hurt by means of dangerous weapon is an offence under Section 326 I.P.C. Therefore, trial Court committed no error in coming to the conclusion that accused-appellants Prakash and Chhanga are guilty of offence under Section 326 I.P.C., however, its conclusion that they were also guilty under Section 307 I.P.C. is not sustainable. Though the injuries complained of are grievous in nature, but they do not in any way indicate any intention to cause death. The accused-appellants intended only to cause grievous hurt by means of a sharp-edged weapon with which they were armed.

25. Accused-appellants Bahadur and Jhabbu Lal have been convicted under Section 323 I.P.C. for causing simple hurt to the complainant, Smt. Phoolmati, who has been examined as PW-1. She has stated that these two accused attacked her with kicks and fists and threw her in dumped water due to which she has also suffered two contusion injuries. Testimony of PW-1 has very well supported by injury report (Exhibit Ka-8). Finding of trial Court in this regard is substantiated by the defence available on record.

26. As accused-appellants Chhanga Lal and Jhabbu Lal were reported to be died, therefore, their appeal has already been abated vide order dated 05.02.2014 and 06.04.2015 respectively.

27. In view of above discussions, I come to the conclusion that accused-appellant Prakash has rightly been convicted under Section 326 I.P.C. However, sentence awarded by the trial Court to him is not in accordance with the provisions of Section 326 I.P.C. Offence under Section 326 I.P.C. is punishable not only with imprisonment but also with fine which is mandatory. It appears that trial Court lost sight of mandatory provision for sentence of fine.

28. Hence, after hearing learned counsel for accused-appellants on the point of sentence of fine, accused-appellant Prakash is sentenced not only with imprisonment of ten years, as imposed by trial Court, but also with fine of Rs.5,000/- under Section 306 I.P.C. In default of payment of fine, he shall further undergo imprisonment of one month. Conviction and sentence of accused Bahadur under Section 323 I.P.C. read with 34 I.P.C. is upheld. Conviction and sentence of accused-appellant Prakash under Section 307 I.P.C. is quashed. The judgment of trial Court is modified to this extent. The imprisonment which has already been undergone by accused-appellants shall be adjusted as against the sentence awarded to them.

29. Let lower Court record be sent back to Chief Judicial Magistrate, Lakhimpur Kheri along with copy of this judgment for immediate compliance. Appellant-accused Prakash and Bahadur shall appear before Chief Judicial Magistrate, Lakhimpur Kheri, who shall take them into custody and send them to jail to serve out the sentence. Their bail-bonds shall be cancelled.

Order Date :- 25.08.2017

MVS Chauhan-Pachhere/-