Ummed vs State
2017 Latest Caselaw 1653 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Court No. - 5
 

 
Case :- JAIL APPEAL No. - 7256 of 2007
 

 
Appellant :- Ummed
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Awdhesh Rai,Ms.Saumya Chaturvedi,Amic,S.K.Agrawal
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble B. Amit Sthalekar,J.

Heard Ms. Somya Chaturvedi, learned Amicus Curiae for the appelant and Shri Tarkeshwar Yadav, learned A.G.A. on behalf of the State.

This jail appeal has been filed by the appellant Ummed against the judgement of the trial court dated 14.2.2007 passed in S.T. No. 582 of 1999 whereby the appellant has been convicted under section 394 I.P.C. and sentenced to 10 years R.I. with fine of Rs.5000/- with default stipulation.

Briefly stated the facts of the case are that an F.I.R. was lodged on 7.8.1999 at about 2 p.m. in the police station Baldeo, Mathura alleging an incident which is stated to have occurred at 1.30 p.m. According to the F.I.R. one Rajendra Prasad son of the informant was coming to his village Nagla Rai Singh police station Baldeo on a scooter, chassis no. 05 C BED 79303 with his daughter sitting at the back after picking her up from the school and as soon as the scooter reached near a small bridge/culvert/pulia, the two accused persons accosted him and tried to snatch the scooter from him. Both the accused persons were carrying Tamancha (country made pistols). Rajendra opposed them and raised an alarm whereby the two accused persons assaulted him with the butt of the Tamancha and also with knife as a result of which Rajendra suffered serious injuries on the head and other parts of the body. Hearing the cries of Rajendra farmers who were working in the nearby fields came running to the spot. From the college Nagla Rai Singh, Ramesh Chandra and Satya Pal Singh, Assistant Teachers came to the spot and from the direction of the village Baldeo, Jwala Prasad and Laik Ram, Assistant Teachers reached the spot. One Dr. Yashwant Singh R/o Bairni also reached the spot. All these persons challenged the accused persons upon which the accused persons with the intention to kill started firing at them narrowly missed them. The members of the public showed great courage and assaulted the accused persons and caught them. A knife and Tamancha was recovered from the accused. On being caught one of the accused disclosed his name as Nabba son of Niroti Jatav R/o Madnai police station Sadabad Hathras whereas the other accused disclosed his name as Narendra son of Deva Jatav R/o Madnai police station Sadabad Hathras. The informant Budhhi Ram then stated that he took his son Rajendra to the police station where he lodged the F.I.R. The public also brought the accused persons to the police station where the report was noted down by Jwala Prasad. A recovery memo was prepared on 7.8.1999 itself. A scooter was recovered from the accused which was a Bajaj Super Scooter Engine No. 05E BEK 80473 and chassis no. 05C BEK 79303. The knife was stated to be in the possession of Narendra, which was recovered by the public when they overpowered the accused persons and from the public it was recovered by the police. This knife was about 5 fingers in length with a six fingers handle with button system by which the knife could be opened and closed. A country made pistol .315 bore with an iron barrel about 7 fingers long which had a spring for opening and closing, with trigger and wooden butt was also recovered. This counter made pistol alongwith three live cartridges was recovered from the possession of Ummed, the appellant herein.

The injured Rajendra was examined as P.W. 1 in the trial and he stated that the incidence had occurred about 1.30 p.m. in the afternoon of 7.8.1999. He was coming on a scooter with his daughter towards his village after picking her up from school in village Baldeo and as he neared the culvert, the accused blocked his way and snatched his scooter. They were carrying country made pistol. He objected and raised cries upon which he was attacked with a knife iflicting injuries and was also hit on the head with the Tamancha as a result of which he sustained serious injuries on his head and body. Hearing his cries farmers working in the nearby fields rushed to the spot and caught hold of the accused. Ramesh Chandra and Satya Pal, Assistant Teachers rushed to the spot and from village Baldeo Jwala Prasad and Laik Ram, Assistant Teachers arrived at the spot. One Dr. Yashwant of Baraini also reached the spot and challenged the accused whereupon the accused fired at them with the country made pistol missing them narrowly. The public which had gathered assaulted the accused and recovered a country made pistol and knife from them. One of the accused disclosed his name as Nabba, son of Niroti and the other disclosed his name as Narendra, son of Deva, both resident of Madnai police station Sadabad district Hathras. Lateron they came to know that one of the accused was named Ummed son of Ganpat and the other was named Deo Prasad son of Umra. He also stated that he was seriously injured and was examined by the doctor. Rajendra identified Ummed, the appellant in court as the person who had hit him with the butt of the country made pistol and tried to snatch the scooter from him and who was caught by the public. In his cross examination he stated that on the date of the incident i.e. 7.8.1999 he had gone to pick up his daughter Sridevi from school. It was the first time he was coming on scooter. He was returning at about 1.30 p.m. when the school got over. The place of incidence was about two - two and half km. from the school and on scooter they covered the distance within two - two and half minutes. He stated that the accused persons accosted him near the culvert and caught him and threatened him and told him to leave the scooter. He stated that scooter did not have registration number and belonged to his younger brother. Rajendra also stated that after the incident he had fainted and as a result the F.I.R was lodged by his father in the Baldeo police station and he cannot specify the time as he was unconscious. His father came to the spot where the incident had occurred but he could not tell the time as he was not wearing a watch. He also stated that his village was about 2 km. from the place of incidence. On foot it takes about 1 hour and on cycle it takes half an hour to reach. Before coming to the police station for lodging the F.I.R. he had not spoken to his father and it was the villagers who had informed his father about the incident and Jwala Prasad, Assistant Teacher had also told his father about the incident. This witness has clearly stated that Ummed the appellant had hit him on the face and back with the butt of the country made pistol and also hit him with fists. After the incidence he never returned to the spot with the police.

Satyapal was examined as P.W. 2 and he stated that on 7.8.1999 at about 1.30 p.m. he was returning from Nagla Rai school after closure of the school and when he reached near the culvert he saw that the public had caught hold of two persons. One person he identified in court as Ummed, the appellant. He has further stated that he heard from the public that a country made pistol had been recovered from the accused but he had not seen it.

Ramesh Chandra was examined as P.W. 3 and he also stated that he was returning from the primary school, Nagla Rai Singh, after its closure and on reaching the culvert he saw that a crowd had caught hold of the accused Ummed whom he identified in the court and that Rajendra was also present in an injured condition. He also stated that when he reached the spot the fight between the accused and the injured was already over.

Jwala Prasad was examined as P.W. 4. He has stated that when he was coming from the primary school, Avairna after its closure near the culvert he saw Rajendra in an injured condition. He was bleeding from the head. The public had caught hold of the two culprits. Satya Pal , Ramesh Chandra and Laik Ram had also reached there. Thereafter Buddhi Ram, father of the injured Rajendra alongwith some other persons also reached the spot. He stated that he had written down the chik F.I.R. on the statement of Buddhi Ram. Thereafter he went with the culprits to the police station Baldeo and the F.I.R was handed over to the police. Rajendra at the time of incidence was coming with his daughter on the scooter. This witness further stated that he alongwith Buddhi Ram and others took Rajendra on the scooter with the knife and country made pistol and cartridges alongwith the culprits to the police station Baldeo where the F.I.R. was written. The police took the scooter in custody. A knife was recovered from one of the accused persons. One country made pistol was recovered from Ummed, the appellant herein. In cross examination P.W. 4 stated that after the closure of the school at about 12.15 p.m. when he reached the place of incidence, the incident was already over and Rajendra was lying in an unconscious condition. He did not speak to Rajendra at all. He could not state whether he had reached before Buddhi Ram or later but he had seen Buddhi Ram at the place of incidence later. He then stated that the girl had thrown away the keys of the scooter which was disclosed by the girl herself. He could not remember the number of the scooter or its make but informed that it was given in the marriage and was being used by the son of Buddhi Ram. He further stated that he had written the F.I.R. which was dictated to him. Rajendra had injuries on the head. He could not state as to from whom the country made pistol and the knife was recovered but these items were shown to him by the public and stated that it was recovered from the accused. He also stated that the police took away the appellant Ummed from the spot as it had reached the spot by them and he also went with the police to the police station where the F.I.R. was lodged about 4 - 5 p.m.

The statement of Buddhi Ram, P.W. 5 was also recorded which is to the same effect as that of the F.I.R.

The statement of Ram Pal Singh, P.W. 6, the investigating officer of the case was also recorded.

Ms. Somya Chaturvedi, learned Amicus Curiae submitted that none of the prosecution witnesses was an eye witness to the incidence which happened. Ramesh Chandra, Satya Pal, Jwala Prasad all have stated that they arrived at the spot after the incident had already taken place and when they arrived they only saw that the public had caught hold of the culprits and that Rajendra Prasad was lying in an injured condition. Her submission therefore is that it is the solitary testimony of Rajendra that the appellant had tried to snatch the scooter from him in an attempted robbery but this statement had not been corroborated by the other prosecution witnesses. The girl Sridevi, daughter of Rajendra, who was alleged to be present on the spot, was never examined in the trial. The villagers who were working in the nearby fields and had arrived at the spot immediately after hearing the cries of Rajendra and had also caught the accused with the Tamancha (country made pistol) were also not examined during trial. Laik Ram also was never produced in the court to support the prosecution case even though he is stated to have arrived on the spot with Jwala Prasad.

Learned Amicus Curiae further submitted that in the F.I.R. and in the statement of Rajendra it has been stated that the Assistant Teachers, namely, Jwala Prasad, Satya Pal, Ramesh Chandra and Laik Ram who arrived at the spot challenged the accused persons who fired at them which missed them narrowly but this story has not been supported by any of these witnesses in their testimony before the court. All the prosecution witnesses have stated that the incident had already taken place by the time they reached the place of incidence. In this view of the matter, the submission is that the statement of Rajendra that the accused appellant had attempted robbery of the scooter is an unreliable statement. The submission therefore is that the ingredients of Section 394 I.P.C. are not present as robbery or attempted robbery has itself not been established.

Learned Amicus Curiae then referred to the injury report and submitted that the injuries received by Rajendra, injury no. 1 was lacerated wound 4 cm. x 1 cm. reaching upto 3 cm. bone above the right eye brow which was pleading, the injury no. 2 is an abrasion 1.5 cm. x 0.3 cm. on the right side of the forehead about 8 cm. below the injury no. 1, the injury no. 3 was again a lacerated wound 1 cm. x 0.5 cm. in the muscle on the right side of the face about 1.5 cm. below the right eye, injury no. 4 was a swelling 4 cm. x 2 cm. to the right side of nose reddish in colour, injury no. 5 was a stab would 1 cm. x 1 cm. on the left lower back portion. As per the medical report the injury no. 5 was caused by a sharp weapon or by a knife. Injuries 1,2,3 and 4 were caused by a blunt object. The rest of the injuries were simple in nature. The submission of the learned Amicus Curiae, therefore, is that no where in the medical report has it been stated that any of the injuries was capable of causing death and therefore even if the injuries are grievious it would not amount an offence even under section 326 I.P.C. of voluntarily causing hurt which carries a maximum punishment of imprisonment upto one year with fine upto Rs.1000/- or both.

Shri Tarkeshwar Yadav, learned AGA, however, submitted that the incident itself is not denied. All the witnesses have referred to the incident. It was a broad day light incident, the public had caught hold of the accused from whom one country made pistol and one knife was also recovered and even if from the evidence of the prosecution witnesses, it is found that none of them was present when the incident occurred but the sole testimony of the injured Rajendra Prasad could not have been discounted or disbelieved and it was enough to bring home a finding of guilt against the accused.

I have gone through the documents on record as well as the judgment of the trial court. What is noteworthy is that the FIR was written by Buddhi Ram father of the injured Rajendra. In the testimony of Rajendra it has come on the record that he was unconscious. Thus Buddhi Ram was not an eye witness of the incident. The story of F.I.R. is that it was as it was narrated to him by Rajendra Prasad and by other persons present on the spot. According to Rajendra, the accused attempted to rob him of his scooter. He further stated that when he was accosted by the accused persons, Ramesh Chandra, Satya Pal, Jwala Prasad and Laik Ram came rushing to the spot and they challenged the accused persons upon which the accused persons fired at them with a country made pistol which missed them narrowly. This statement of Rajendra Prasad has not been supported by any of the prosecution witnesses Ramesh Chandra, Satya Pal or Jwala Prasad. These three witnesses have stated that by the time they reached the spot the incident had already happened and they only saw that the public had caught hold of the culprits and that Rajendra was lying in an injured condition. None of the other villagers who had caught hold of the culprits was produced in the trial as a witness nor their statement recorded. Sridevi, daughter of Rajendra who was accompanying him on the scooter and was present on the spot was also not examined in order to support the incidence of attempted robbery under section 394 I.P.C. In order to constitute an offence under s3ection 394 I.P.C. it must be shown that voluntary hurt is caused in committing or attempting to commit robbery. Neither robbery nor attempted robbery has been established since the sole version of the injured Rajendra Prasad, is not supported by the testimony of the P.W. 2,3, and 4, therefore, in my opinion the essential ingredient to constitute an offence under section 394 I.P.C. being absent the conviction of the appellant under section 394 I.P.C. cannot be justified. The appellant has already been acquitted of the offence under section 307 I.P.C.

In support of her contention, learned Amicus Curiae has relied upon the judgment of the Supreme Court in case of Joseph Vs. State of Kerala reported in (2003) 1 SCC 465, paragraph 13 of which reads as under:

"13. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eye witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when prosecution case rests mainly on the sole testimony of an eye-witness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable."

The next judgment relied upon by the learned Amicus Curiae is of a Division Bench of this Court in the case of Jagatpal and others Vs. State of U.P and others reported in 2004 (5) ACC 267, relevant paragraph 20 of which reads as under:

"20. Non-examination of witnesses of the vicinity who admittedly reached at the scene of occurrence in the presence of the assailants further causes a serious dent in the genuineness and truthfulness of the evidence of these eye witnesses. No reasonable explanation was given by the prosecution for non-production of such witnesses. An adverse inference, hence is available against the credibility of the evidence of these witnesses."

However, it is not in dispute that the accused were caught by the public and injuries were sustained on both sides. The other accused Deo Prasad son of Deva died during the trial therefore it will have to be seen as to whether any offence under section 326 or 323 I.P.C. is made out against the appellant. Section 326 speaks of voluntarily causing grievious 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. The injury report of the doctor who has examined Rajendra Prasad as well as the accused Ummed appellant and deceased Deo Prasad does not mention anywhere that the injuries were such as were likely to cause death. The injury report only records that some of the injuries were grievious and some were simple but the injury caused to Rajendra has not been described as one which is likely to cause death, therefore, in my opinion the ingredients of section 326 I.P.C. are also not present in the present case. No doubt hurt has been caused to Rajendra son of the informant and therefore in view of my findings already noted herein above although the ingredients in order constitute an offence under section 394 I.P.C. or even section 326 I.P.C. are absent and not made out but nevertheless offence under section 323 I.P.C. which prescribes a maximum term of imprisonment of one year or fine of Rs.1000/- or both is made out against the appellant.

Therefore for the reasons aforesaid this appeal is partly allowed. The judgement of the trial court is modified to the extent that the appellant is held guilty of the offence under section 323 I.P.C. instead of 394 I.P.C. and his conviction and sentence is converted into one of section 323 I.P.C.

It is to be noted that the appellant Ummed has already undergone the maximum sentence prescribed under section 323 I.P.C. and has already been released from jail, therefore, he need not surrender in this case before the court.

Before concluding, this Court must put on record its appreciation of the efforts put in by Ms. Somya, learned Amicus Curiae in providing valuable assistance to the Court. It is, therefore, directed that a sum of Rs. 10,000/- be paid to Ms. Somya Chaturvedi, learned Amicus Curiae towards fees.

The above amount be paid to Ms. Somya Chaturvedi, learned Amicus Curiae by the Registry of the Court within 15 days.

Dated: 09th June, 2017.

O.K.