Bechan Ram vs State Of U.P.
2018 Latest Caselaw 1848 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 50
 
Case :- CRIMINAL APPEAL No. - 1993 of 1983
 
Appellant :- Bechan Ram
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.N.Misra,Ashish Kumar Gupta,Harish Kharbanda,Virendra Kumar Shukla
 
Counsel for Respondent :- A.G.A.,A.G.A.
 
Hon'ble Harsh Kumar,J.

1. The present criminal appeal has been filed against the impugned judgment and order dated 19.8.1983 passed by IV Additional Sessions Judge, Jaunpur in S.T. No.152 of 1982 (State Vs. Bechan and others), convicting the accused-appellants Nanhku and Bechan under Section 308 I.P.C. and sentencing them with rigorous imprisonment for a period of 3 years and 2 years respectively.

2. Heard Sri Virendra Kumar Shukla, learned counsel for accused-appellant no.1 Bechan Ram, Sri Ashish Kumar Gupta, learned counsel for accused-appellant no.2 Nanhku, Sri L.D. Rajbhar, learned A.G.A. for the State and perused the record as well as the lower court record summoned in appeal.

3. The brief facts relating to the case are that regarding the incident in question of 14.4.1981 a NCR was registered at No.108 by Bali Ram Maurya with the allegation that today at about 2:30 p.m. there was a dispute between his mother Basanti Devi and wife of Bechan Ram on account of quarrel between children in which Hriday Narayan and Baidyanath Giri intervened which was felt ill by Bechan Ram and he accompanied with Nanhku, Rajendra and Ram Prasad committed mar-pit with his mother. Upon NCR no investigation was done by the Police and a complaint case was filed by Bali Ram on 28.4.1981 regarding the incident in question with the allegation that on the exhortation by Bechan Ram, Rajendra and Ram Prasad, Nanhku caused Lathi injuries to his mother Basanti Devi on her head and knee in which cognizance was taken under Sections 308 & 323 I.P.C. and the case was committed to Sessions. The Additional Sessions Judge framed charges under Sections 308 and 323 I.P.C. against accused-appellant Nanhku and under Sections 308/34 & 323/34 I.P.C. against Bechan, Rajendra and Ram Prasad. The prosecution in order to prove the charges produced the injured Smt. Basanti Devi as P.W.-1, eye witness Hriday Narayan as P.W.-2, complainant Bali Ram as P.W.-3, Medical Officer Hari Shanker Rai as P.W.-4 and Court Muharir Om Prakash Pandey to prove the NCR as P.W.-5. After completion of prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C. and after hearing the parties' counsel the learned trial court vide impugned judgment order dated 19.8.1983 acquitted the co-accused Rajendra and Ram Prasad and convicted the Nanhku and Bechan Ram under Section 308 I.P.C. and sentenced accused Nanhku with rigorous imprisonment for a period of 3 years and Bechan Ram with rigorous imprisonment for a period of 2 years. Feeling aggrieved with which the two convicts have jointly preferred this appeal.

4. Learned counsel for the accused-appellants contends that accused-appellants have been falsely implicated; that there are material contradictions in the statements of prosecution witnesses; that learned trial court has rightly disbelieved Hriday Narayan, the alleged eye witness P.W.-2 and complainant Bali Ram Maurya P.W.-3, who is not alleged to be the eye witness of the incident; that learned trial court acted wrongly and illegally in relying on the sole testimony of injured witness Smt. Basanti Devi P.W.-1 as well as the evidence of Medical Officer P.W.-4 and convicted the accused-appellants; that learned trial court acted wrongly in ignoring the fact that prosecution failed to produce Ram Bali and Baidyanath, the other two eye witnesses of the incident; that P.W.-2 Hriday Narayan was interested witness and had enmity with accused-appellants as his father Ram Lakhan was convicted in a murder case on the evidence of Sita Ram, the father of accused-appellant Nanhku and Jagardeo, father of accused-appellant Bechan; that there is no X-ray report of the injuries of Smt. Basanti Devi and in absence of any X-ray or supplementary report her injuries may not be considered to be dangerous to her life; that the head injury of Smt. Basanti Devi could also have been sustained by her falling on the ground as well as in case her head is dashed by force against some hard object; that admittedly the dispute had arisen out of the quarrel between grand-son of injured Smt. Basanti Devi and son of accused-appellant Bechan Ram and possibility of dashing the head of Basanti Devi against wall by mother of Bechan may not be ruled out; that the accused-appellant Bechan Ram has been falsely implicated by assigning him the role of exhortation and no injury is alleged to have been caused by him to the injured; that in any case no offence under Section 308 is made out against the accused-appellants or any of them and even no offence under Section 324 I.P.C. may be made out in absence of any supplementary medical report on record; that it has been stated by P.W.-4 the Medical officer that she stayed at the Hospital for treatment for a period of 2¼ hours and despite advise for staying at hospital she got her discharged and left for home and so the offence of accused-appellants may not travel beyond the scope of Section 323 I.P.C.; that the matter relates to the incident dated 14.4.1981 and during trial or till release on bail in view of bail order passed in appeal the accused-appellants have been in custody for a period of a week or 10 days at least and considering the period of incident which is alleged to have taken place about 38 years ago in case they are found guilty of offence under Section 323 I.P.C. instead of imprisonment they may be sentenced with fine only.

5. Per contra, learned A.G.A. for the State supported the impugned judgment and order of conviction and contended that learned trial court has analysed the prosecution evidence on record in detail and has rightly convicted them for the offences as mentioned in the judgment; that the appeal has been filed with absolutely false and baseless allegations and is liable to be dismissed.

6. Upon hearing the parties' counsel and perusal of paper-book as well as the original record of court below summoned in the appeal, I find that the learned trial court has discussed and analyzed the prosecution evidence on record in detail and held that P.W.-3 was not an eye witness of the incident and his testimony is of no help to the prosecution except for proving the F.I.R. and testimony of P.W.-2 the eye witness showing ignorance about conviction of his father in murder case on the testimony of father of accused-appellant Bechan Ram and Nanhku does not inspire confidence and cannot be believed. The P.W.-1 Smt. Basanti Devi is the injured witness, who has sustained head injury as well as injury on her right knee and the medical officer has found injury no.1 to be a lacerated wound 5 c.m. x 1 c.m. x bone deep on mid of left side of head with swelling in an area of 9 c.m. x 5 c.m. of which X-ray was advised apart from injury no.2 an abrasion 1.5 c.m. x .5 c.m. on right knee simple in nature. The P.W.-4 Dr. Hari Shanker Rai has stated on oath that both the injuries were fresh at the time of her examination at 5:00 p.m. and were caused by hard and blunt object. He has also stated that the injured was brought to him in semi-conscious condition and vomited twice before him and she remained under his treatment at the Medical Centre P.H.C. Kerakat for 2¼ hours and he gave stitches to her wound as well as bandage at skull where there was injury and bone of skull was visible.

7. The statement of P.W.-1 is that there was a quarrel between her grand-son and son of accused-appellant Bechan Ram following which a quarrel did take place between her and wife of accused-appellant Bechan Ram which was settled due to interference of P.W.-2 Hriday Narayan. It is the case of prosecution that accused-appellant Bechan Ram felt ill of the quarrel by injured with his wife and called Nanhku, Rajendra and Ram Prasad and upon being exhorted by Bechan Ram, Rajendra and Ram Prasad, Nanhku gave lathi blows to Smt. Basanti Devi resulting in head injury to her. Learned counsel for the accused-appellants has taken the Court to the statement of Medical Officer P.W.-4 at page 40 where he has stated that injury no.1 can be sustained in case the head of the injured is dashed by force to some hard object and submitted that it appears that during quarrel the head of P.W.-1 would have been dashed by Bhagwati Devi, wife of Bechan Ram against the wall resulting in the head injuries. The above argument has no force in absence of any such statement under Section 313 Cr.P.C. by the accused-appellant Bechan Ram and Nanhku that Bhagwati Devi, the wife of accused-appellant Bechan Ram dashed the head of P.W.-1 against the wall during the quarrel. It is also pertinent to mention that Medical Officer has specifically stated on oath at page 39 that from injury no.1 the death of injured could have taken place and again at page 42 that since the patient had vomited before him and was semi-conscious so he has stated that her death was also possible and had she not vomited before him or would not have been semi-conscious then he would have stated that injury was simple in nature by which her death was not possible.

8. In view of above evidence on record, I find that statement of injured witness Smt. Basanti Devi is fully corroborated by the medical evidence on record as well as the statement of Medical Officer P.W.-4 Dr. Hari Shanker Rai. It is noteworthy that after the incident the victim was taken to Medical Centre P.H.C. Kerakat by Home Guard Kanu Ram as mentioned in her injury report Exhibit A-3 and there is no sufficient ground for disbelieving the injured witness. I am of the considered view that sole testimony of injured witness, corroborated with medical evidence, in broad day light incident was sufficient to be relied and the trial court has not committed any mistake in relying on it.

9. From the evidence on record it is clear that there was dispute between the grand-son of the injured/victim and son of accused-appellant Bechan Ram and subsequently a quarrel did take place between P.W.-1 and wife of Bechan Ram. In the circumstances accused-appellant Bechan Ram had sufficient motive to call accused Nanhku, Ram Prasad and Rajendra. It is proved from the evidence on record that upon exhortation by Bechan Ram, Rajendra and Ram Prasad, accused-appellant Nanhku caused injuries to the victim P.W.-1 with the lathi, including a head injury and the learned trial court has committed no mistake in correctly analysing and relying on the prosecution evidence on record and it rightly acquitted the co-accused Rajendra and Ram Prasad, who were not assigned any motive and were not given any role except that of exhortation and convicted the accused-appellant Bechan Ram, who had motive and exhorted Nanhku as well as convicting the Nanhku, who actually caused the injuries. Since the injuries were caused by Nanhku upon exhortation by Bechan Ram, Bechan Ram is also liable for the offence on account of common intention for causing the injuries and is liable to be convicted with the help of Section 34 I.P.C.

10. As far as the conviction of accused-appellants for the offence under Section 308 I.P.C. is concerned, I find that undisputedly there is no supplementary or X-ray report on record and P.W.-4 has stated that she was discharged within 2¼ hours after treatment so despite the fact that P.W.-1 sustained bone deep head injury and was brought in semi-conscious condition by the Home Guard and had also vomited twice before the Medical Officer but considering that against the medical advise she left the Medical Centre after her wound having been stitched and bandage was done so the gravity of her injury does not bring the offence under Section 308 I.P.C. Considering the nature of injury, I do not agree with the arguments advanced by learned counsel for the accused-appellants that the injury was mere a simple injury and their offence does not travel beyond the scope of Section 323 I.P.C. rather I find that it is a case of voluntarily causing hurt by dangerous weapon by using the Lathi as weapon of offence which could be likely to cause her death and so the offence committed by accused-appellant no.2 Nanhku comes within the ambit of offence under Section 324 I.P.C. and that of accused-appellant no.1 Bechan Ram under Section 324/34 I.P.C.

11. In view of the discussions made above, I have come to the conclusion that the appeal is liable to be allowed and the conviction and sentence of accused-appellants under Section 308 I.P.C. is liable to be altered for the offence under Section 324 & 324/34 I.P.C. against accused-appellant no.2 and accused-appellant no.1 respectively.

12. In view of the fact that the incident in question did take place on 14.4.1981 over a petty dispute between children and accused-appellants no.1 & 2 were aged about 35 years and 38 years as on 3.8.1983, at the time of recording of their statements under Section 313 Cr.P.C. and that they have become the persons around 70 years old, I find that it will not be just and proper to re-send them to prison at this age of around 70 years for a petty dispute, after their release on bail about 35 years ago and by sentencing them with imprisonment for the period already undergone and fine only the ends of justice will be properly served.

13. The appeal is allowed accordingly. The impugned judgment and order convicting the accused-appellants Bechan Ram and Nanhku for the offence under Section 308 I.P.C. and sentencing them with imprisonment for a period of 3 years and 2 years respectively is set-aside. The conviction of accused-appellants is altered and accused-appellant no.2 Nanhku is held guilty and convicted for the offence under Section 324 I.P.C. and sentenced with rigorous imprisonment for a period already undergone and fine of Rs.4,000/- and in case of default in payment of fine with simple imprisonment for an additional period of one month and accused-appellant no.1 Bechan Ram is held guilty and convicted for the offence under Section 324/34 I.P.C. and is sentenced with rigorous imprisonment for a period already undergone and fine of Rs.4,000/- and in case of default in payment of fine with simple imprisonment for an additional period of one month.

14. The amount of fine shall be paid by the accused-appellants within one month from today, failing which they will undergo the default sentence.

15. The appellants no.1 & 2 are on bail. Their bail bonds and surety bonds are cancelled and sureties are discharged. They need not surrender unless wanted in some other case or any of them commits default in payment of fine.

16. The material exhibits, if any, shall be disposed off after statutory period in accordance with rules.

17. Let lower court record be sent back to court below along with a copy of this order for necessary compliance.

Order Date :- 6.8.2018

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