Ombir Singh vs State
2017 Latest Caselaw 4012 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 14
 

 
Case :- JAIL APPEAL No. - 7454 of 2008
 

 
Appellant :- Ombir Singh
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Sangam Lal Kesharwani
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Heard Sri Sangam Lal Kesherwani, learned Amicus Curiae for the appellant, Sri Pradeep Rai, learned A.G.A. assisted by Sri Sharad Srivastava, learned brief holder for the State and perused the record of this appeal.

By way of instant Jail Appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 28.07.2008 passed by Additional Sessions Judge, F.T.C. Court no.5, Bareilly, in Sessions Trial Nos.526 of 2006 concerning Case Crime No.35 of 2004, under Sections 324, 394, 376/511 IPC, Police Station- Sheesh Garh, District- Bareilly, whereby the accused-appellant- has been sentenced to undergo one year simple imprisonment- under Section 324 IPC and seven years R.I. coupled with fine of Rs.5000/- for offence under Section 394 IPC, and in default of payment of aforesaid fine, he will have to undergo six months additional imprisonment.

Brief facts, as discernible from the record are rooted in the information, Exhibit Ka-1, whereby it transpires that the informant- Mahendra Pal Singh- lodged written report at Police Station- Sheesh Garh on 24.02.2004 at 1.15 A.M. against appellant- Ombir Singh, alleging therein that informant's mother- Sanehi Devi- was going to Village- Khamariya from Haldwani. Ombir Singh S/o Suraj Pal Singh, resident of Village- Banjariya, Police Station- Sheesh Garh met her (Smt. Sanehi Devi) in the evening on way of Banjariya and Khhamariya. He beat her and looted Rs.3,000/- in cash and some cloths. On alarm being raised, a number of persons arrived on the spot including- Bharat Singh, who witnessed the incident. It has been described in the F.I.R. that the informant took his mother- Sanehi Devi- on a tractor trolley and went to the police station. Request was made for lodging the report and taking appropriate action. This written report is Exhibit Ka-1.

Entry of contents of written report was noted in the concerned check F.I.R. at 1.15 A.M. on 24.02.2004 at Case Crime No.35 of 2004 u/s 394 I.P.C., Police Station- Sheesh Garh, District- Bareilly, which is Ex. Ka.4. Relevant entries were made in the concerned G.D. against the appellant on 24.02.2004 and a case was registered under aforesaid sections of Indian Penal Code against accused. Copy of G.D. is Ext. Ka.-5.

Later on injured- Sanehi Devi- was taken to the District Hospital, Bareilly for medical examination, where medical examination of the injured- Sanehi Devi- took place on 24.02.2004 at 4.30 P.M., and, following injuries were noted at the time of examination:-

(1) A incised wound on little finger of left hand measuring 1.5 x 0.2 cm muscle deep 2.5 cm above root of finger margins sharp.

(2) A incised wound on ring finger of left hand measuring 1.0 x 0.2 cm deep, injury shape, 2.5 cm as on the root of finger.

(3) A contusion 3.0 cm x 2.5 cm on right side of cheek just below the sightal margin.

(4) A contusion on left side of cheek 4.0 cm x 3.0 cm just below the sightal margin.

(5) A contusion 2.5 cm x 2.0 cm on front of nose just as on the tip of nose.

(6) Complaint of pain on front of neck, nose and both arms but no mark of injury seen.

(7) Complaints of pain and bleeding on genital organs, hence patient referred to Female Hospital, Bareilly for examination and expert opinion.

In the opinion of the doctor injury nos.1 and 2 were caused by sharp object, simple in nature. Injury nos. 3, 4 and 5 caused by hard blunt object, simple in nature. Except injury no.7, which was referred to Female Hospital, Bareilly for further management. Duration was said to be within one day.

This medical examination report is Exhibit Ka-3, which is proved by Dr. A.K. Gautam.

Internal medical examination of the victim- Sanehi Devi- was conducted at Women Hospital, Bareilly on 24.02.2004 at 5.45 P.M. The internal examination of the victim is herein below:-

Internal Examination:- Laceration present all around introitus reach upto urethra bleeding point and in-duration present. Tenderness present. Injury bleed on tough. ½ inch tear present at 5 O'clock in vagina involving only mucosa.

Conclusion:- Injury caused by any blunt object. Injury is fresh. Duration within one day.

This medical Examination report is Exhibit Ka-2, which is proved by Dr. Shobha Puri.

The case was investigated into by S.I. V.K. Divakar P.W.7, who after taking down the contents of F.I.R. and the concerned G.D. inspected the spot prepared the spot map, Exhibit Ka-6 and also took note of medical examination of the victim- Sanehi Devi. Thereafter, he arrested the accused and recovered one knife from him and prepared the recovery memo.

After completing investigation, the Investigation Officer filed charge-sheet against accused, which charge-sheet is Exhibit Ka-7.

Pursuant to the filing of the charge-sheet, proceeding of the case was committed to the court of Sessions. As a sequel to that, this case was made over for trial and disposal to the Court of Additional Sessions Judge, F.T.C. No.5, Bareilly where it was numbered as S.T. Nos.526 of 2006, State Vs. Ombir Singh. The appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case under Sections 394, 324, 376/511 IPC against the accused-appellant. Therefore, it framed charges against the accused-appellant under the aforesaid sections of Indian Penal Code. Charges were read over and explained to the accused, who abjured charges and opted for trial.

The prosecution, in order to prove guilt of the accused examined as many as seven prosecution witnesses. Brief reference of the prosecution witnesses is ut-infra:-

Smt. Sanehi Devi P.W.1 is the injured victim. Mahendrapal Singh P.W.2 is the informant and he claims to have arrived at the place of occurrence after being informed by the villagers. Dr. Shobha Puri P.W.3 has medically examined the victim at Women Hospital, Bareilly and she has proved medical examination report, Exhibit Ka-2. Dr. A.K. Gautam P.W.4 also medically examined the victim- Smt. Sanehi on 24.02.2004 and has proved the medical examination report, Exhibit Ka-3A. HCP Mahendrapal Singh P.W.5 has recorded relevant entry in the concerned Check FIR and concerned GD and has proved the same as Exhibit Ka-4 and Ka-5. Bharat Singh P.W.6 claims himself to be an eye-witness of the occurrence. V.K. Divakar S.I. P.W.7 is the Investigating Officer of this case and has proved filing of charge-sheet against the appellant as Exhibit Ka-7.

Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he termed his implication false and deposed that he is a bus driver and informant and other persons wanted to travel free in his bus without fair, when he (appellant) refused their prayer, they became inimical towards him. Resultantly, some altercation had also taken place prior to the incident with them. The incident of loot and assault has been committed by some other persons. He has been implicated on account of enmity.

No evidence whatsoever was led by the defence.

The trial Judge after hearing both the sides and considering merit of the case passed aforesaid judgment of conviction and sentence against the appellant.

Consequently this appeal.

It has been vehemently contended on behalf of the appellant that in this case the incident of loot has not been substantiated by the testimony of either victim or so called witness- Bharat Singh- P.W.6. The Investigating Officer- V.K. Divakar- P.W.7 himself has stated in court that victim never told him about any loot, but she had stated that she lost her bag and cloths somewhere else and victim had also stated that she got her cloths, but she could not get her money. Investigating Officer too has stated that he has not filed charge-sheet under Section 394 IPC.

Further, it has been claimed that the testimony of another witness- Bharat Singh- P.W.6 is admittedly without oath having been administered to him, and on the whole, it will be discarded by the court and no relevance can be placed on the same. In view of the statement recorded by the Investigating Officer, it is obvious that Smt. Sanehi Devi P.W.1, the so called victim, is highly tutored and inimical towards the appellant and she has deliberately tried to implicate the appellant. The evidence does not inspires confidence so as to bring the case of the appellant under Sections 394, 324 IPC. Consequently, conviction and sentence awarded are apparently illegal, perverse and liable to be set aside.

Per contra, learned A.G.A. has replied to the aforesaid contentions by submitting that the evidence on record is clinching in the sense that Smt. Sanehi was medically examined at the District Hospital, Bareilly on 24.02.2004 at 4.30 A.M. and injury nos. 1 and 2 found to have been caused by some sharp edged weapon. In that way, the version of victim that she sustained injury due to assault/blow being caused by knife, stands corroborated under the circumstance. Thus, ocular testimony is in conformity with the medical testimony and vice- versa.

So far as the statement recorded by the Investigating Officer- V.K. Divakar S.I. P.W.7 of the victim- Smt. Sanehi Devi is concerned it can be observed that the piece of testimony had come forth before the trial court and which was put to cross-examination, will be of paramount consideration to this Court and this Court will not be swayed away merely by recording of statement under Section 161 Cr.P.C. and will conclude that no loot took place on 24.02.2004, nothing adverse has emerged from the cross-examination of the victim, which may expose falsity of the prosecution case.

Moreover, latches committed by the Investigating Officer will not throw away case of the prosecution. The incident took place in the evening of 23.02.2004 and the first information report was lodged at 1.15 A.M. and the distance from the place of occurrence upto Police Station has been 14 kilometers and in that way the lodging of the F.I.R. will be considered prompt.

Considered the above submissions.

The moot point that arises for adjudication of this appeal revolves around fact whether the prosecution has been able to establish guilt of the accused beyond reasonable doubt and the judgment and order of conviction and sentence passed by the court below is liable to be set aside?

Bare perusal of the first information report, Exhibit Ka-1, on the face of it, reflects that the incident was allegedly caused by Ombir Singh in the evening of 23rd February, 2004 when the mother of the informant was going from Haldwani to Village- Khamariya in the evening, when Ombir Singh S/o Suraj Pal Singh, resident of Village- Banjariya, Police Station- Sheesh Garh met her on way beat her and looted Rs.3,000/- in cash and some cloths. When she raised alarm, a number of persons including Bharat Singh P.W.6 arrived on the spot and witnessed the incident. The victim was taken to the police station on a tractor trolley and report was lodged.

In the backdrop of the aforesaid factual aspects, the prime consideration relates to the testimony of the independent witness- Bharat Singh P.W.6, who admittedly was not administered any oath by the trial court. He has been cross-examined, wherein in the very first line of page-19 of the paper book, he has stated that he was not administered any oath while his examination started in the trial court. It is an irony that the trial Judge, who was recording this piece of testimony failed to administer any oath on this witness (Bharat Singh P.W.6). But the cross-examination was dragged to a great extent without raising any objection, therefore, his testimony in principle may be acted upon at least for the purpose of either contradicting or corroborating Smt. Sanehi P.W.1- the victim.

Now Court may switch over and scrutinize testimony of Smt. Sanehi P.W.1, who in her examination-in-chief has testified that on the date of incident Ombir met her and challenged her that he will teach her a lesson and began to beat her by kicks, fists and slaps besides causing injury by knife and looted Rs.3000/- and cloths. She raised alarm, whereupon, Bharat Singh P.W.6 and others arrived at the spot saw the incident and saved her. Ombir scampered towards the sugarcane field. She called her son, who took her to the police station and lodged the report and after lodging of the report, she was sent to the hospital for medical treatment where she was medically examined. She has been cross-examined by the defence, wherein, she has admitted fact that accused is a bus driver and he runs bus between Bajariya and Baheri. At the time of incident, she was alone. She has testified that she sustained knife injury on her chest and hand.

Upon careful perusal of medical examination of Smt. Sanehi, it transpires that she was medically examined by Dr. A.K. Gautam P.W.4 at District Hospital at 4.30 P.M., wherein, he noted two incised wounds both on little finger of left hand. Rest of the injuries were in shape of contusions, which are stated to be simple in nature caused by hard blunt object, except injury no.7, for which, she was referred to the Female Hospital, Bareilly. This injury report has been examined by Dr. A.K. Gautam P.W.4, which is Exhibit Ka-3.

Dr. A.K. Gautam P.W.4 has stated in her cross-examination that these injuries may have been cased in the afternoon of 23rd of February 2004 or may have been caused around 10 P.M., the same day. It is obvious that this medical examination is indicative of fact that the victim sustained injuries and these injuries have been testified to have been caused by the accused appellant which fact cannot be doubted because nothing adverse of magnitude has come forth so as to affect veracity of the claim of the injured, which stands corroborated by the medical examination, Exhibit Ka-3, proved by Dr. A.K. Gautam P.W.4. It can be observed that the ocular testimony is in consonance with the medical testimony.

Similarly, Dr. Shobha Puri P.W.3 has conducted internal medical examination of the victim, wherein she has found laceration present all around introitus reach upto urethra bleeding present and in-duration present tenderness present. Injury bleed on touch. ½ inch tear present at 5 O'clock in vagina involving only mucosa.

In the opinion of the doctor, these injuries could have been caused in the evening of 23rd February, 2004. The internal examination of the injured has been proved as Exhibit Ka-2. This doctor witness has not been cross-examined by the defence.

In so far as act of loot is concerned, the testimony of Smt. Sanehi Devi P.W.1 when considered in the light of her statement recorded by the Investigating Officer becomes doubtful to the extent that she had stated in her statement that she lost her bag and clothes, however, she found her clothes but could not find her rupees.

In the above wake of specific testimony, the factum of loot appears to have exaggerated version of the incident in order to involve the appellant in graver offence than mere causing assault. Why no such statement purporting to or indicative of offence of loot was ever recorded by the Investigating Officer in clear cut terms, which would have placed the case of the accused within four corners of Section 394 IPC. This testimony of the I.O. regarding recording of above specific statement of the victim should normally be accepted and acted upon by this Court for the reason that disclosure so made in the cross-examination by the Investigating Officer may be in shape of new introduction recorded during the course of investigation, but the Investigating Officer was not tried to be re-examined by the prosecution. As per mandate under Section 138 Indian Evidence Act, it was incumbent on the prosecution to have re-examined this witness on that point but the prosecution utterly failed to do so. Consequently, advantage goes to the appellant and a reasonable doubt is created regarding the incident of loot having been committed by the accused, as disclosed in the first information report and stated by Smt. Sanehi Devi P.W.1- the victim. Therefore, the very part of testimony which relates to and is confined to the fact of committing offence of loot of Rs.3000/- and the clothes has not been satisfied only perused as such it would not to be believed in its shape at this juncture.

It appears that the learned trial Judge while evaluating and appreciating the testimony on record failed to look into aforesaid legal and factual aspects of the case and recorded erroneous and wrong finding of conviction under Section 394 IPC, which conviction and sentence under Section 394 IPC is liable to be set aside.

In so far as the case of the appellant under Section 324 IPC is concerned that way the medical examination report, Exhibit Ka-3, confirms the act of beating/assault given by the appellant to victim Smt. Sanehi Devi on 23.2.2004. Therefore, conviction and sentence recorded by the trial court under Section 324 IPC is liable to be sustained and that finding remains undisturbed.

Above discussion goes to show that the argument advanced by the learned amicus curiae to the ambit that case of the appellant is not covered under Section 394 IPC, and the conviction recorded by the trial court under Section 394 IPC is patently erroneous is upheld, consequently, conviction and sentence recorded under Section 394 IPC is hereby set aside, but the conviction and sentence awarded under Section 324 IPC is hereby upheld.

Accordingly, this Jail Appeal succeeds partly in aforesaid terms.

Record suggests that the appellant has suffered the entire sentence, therefore, no consequential order need be passed at this stage.

However, it is directed that the appellant is required to comply provisions under Section 437A Cr.P.C.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Dt.06.09.2017

Raj

Hon'ble Arvind Kumar Mishra-I,J.

Sri Sangam Lal Kesharwani, learned amicus curiae for the appellants in Jail Appeal No.7454 of 2008 has rendered valuable assistance in deciding the appeal, which was pending since 2008, therefore, he is directed to be paid Rs. 10,000/- as his fees by the office of this Court.

Order Date:- 6th September, 2017

Raj