Nawab Singh & Another vs State Of U.P.
2018 Latest Caselaw 1720 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 1618 of 1998
 

 
Appellant :- Nawab Singh & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Samimul Hasnain,Bipin Bihari
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 24.08.1998 passed by IInd Additional Sessions Judge, Ghaziabad in Sessions Trial No.40 of 1997, State Vs. Nawab and another) for offence under Sections 323, 504, 506 IPC and Section 3(1)(10) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station- Muradnagar, District- Ghaziabad, whereby the accused-appellants- Nawab Singh and Smt. Kusum Lata- have been sentenced to undergo 1 year R.I. for each charge (under Sections 323, 504 and 506 IPC), coupled with fine Rs.500/- for each charge.

Both the accused- appellant (Nawab Singh and Smt. Kusum Lata) have been sentenced for the charge under Section 3(1)(10) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and they shall undergo 3-1/2 years R.I. each. In default of payment of fine, accused persons shall further undergo a simple imprisonment for three months each.

All the sentences are directed to run concurrently.

Crux of the events, as discernible from record particularly from perusal of the first information report, which was lodged at police station- Murad Nagar on 26.12.1994 at 7.45 P.M. at Case Crime No.519 of 1994, under Sections 323, 504, 506 IPC and 3(1)(10) The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 by one Beg Raj s/o Nathu Singh Jatav reveals that informant's wife Smt. Chaman Kali had gone to take flour from the grind-mill of Jai Bhagwan of village, but she could not get the flour from the grind-mill, therefore, she was returning back home through the eastern side pathway. At that point of time, appellant- Nawab Singh was milking his buffalo. Nawab Singh called her by using the words of community Scheduled Caste and asked her to not to go through this way. At this, informant's wife Smt. Chaman Kali moved on to the western side of the pathway and returned. While in the process of returning, the wife of appellant Nawab Singh came cross her. She also abused informant's wife and objected to her being there at that point of time. At the exhortation of Nawab Singh, his wife- Kusum Lala slapt Chaman Kali and Nawab Singh also gave her beating by kicks and fists in her abdomen. Due to which, Chaman Kali was rendered unconscious and she fell down near water tap. At that particular point of time, the informant was not at his home, when he came back to home from Modi Nagar, then he came to know about the incident through Prasadi that his wife is lying unconscious near the water tap. When the informant went to see his wife, he was manhandled by both the accused and he was beaten by fists, legs and stick, besides being abused by them. Accused Nawab Singh also threatened that he is ex- serviceman. The informant somehow extricated himself took his wife to the Government Hospital at Murad Nagar and got her medical examination done by the doctor. The FIR also describes that the incident was witnessed by Richhpal Singh, Rajendra, Narendra Tyagi, Virendra Gupta. Report is Exhibit Ka-1.

Contents of written report were taken down in the concerned check FIR at Case Crime No. 519 of 1994, under Sections 323, 504, 506 IPC and 3(1)10 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Police Station- Murad Nagar, District- Ghaziabad at 19.45 hours on 26.12.1994. The copy of check FIR is Ex.Ka.4. Consequent upon entries so made in the check FIR, a case was registered against the accused persons at concerned police station on 26.12.1994 at aforesaid crime number, under aforesaid section of Indian Penal Code vide entry made in the concerned General Diary at Serial No.55. The relevant GD entry is Ex.Ka.5.

Thereafter, Investigating Officer inspected the spot, recorded the statement of the injured and the prosecution witnesses and prepared the site plan (Exhibit Ka-6). Injured Smt. Chaman Kali was examined by Dr. J.S. Patel (P.W.5) on 26.02.1994 at about 6.40 P.M. at C.H.C. Murad Nagar and found the following injuries on her person:

(1) Contusion size 5 cm x 2 cm on the right cheek distance 1 cm below right eye reddish in colour.

(2) Complaint of pain in lower part of right of abdominal with vomiting, hence case is being referred to M.M.G., Hospital, Ghazibad- Advised X-ray.

This examination report has been proved by Dr. J.S. Patel (P.W.5) vide Ext. Ka.-2.

Informant Begraj Singh injured was also medically examined by Dr. Rajendra Varshney on 26.12.1994 at about 10.10 P.M. at C.H.C. Murad Nagar, District Ghziabad and the following injuries were found on his person:-

(1) A reddish contusion size 1 cm x .5 cm over the left face 1 cm below the left eye lid.

(2) A reddish contusion size 4 cm x 1 cm over the left upper chest anteriorly 4 cm above the left nipple.

(3) A reddish contusion size 3 cm x 2 cm surrounded by the traumatic swelling size 4 cm x 2.5 cm behind the left ear just posterior to the left external ear.

(4) A reddish contusion size 2 cm x 0.5 cm on the knee joint left side.

This examination report has been proved by Dr. Rajendra Varshney (P.W.6) vide Ext. Ka.-3.

Thereafter, after completing the necessary formalities, charge-sheet under Section 323, 504, 506 IPC and Section 3(1) (10) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act, 1989 was filed by the Investigating Officer against the accused- Nawab Singh and Smt. Kusum Lata.

Consequently, 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, Ghaziabad where it was numbered as S.T. No.40 of 1997 (State vs. Nawab Singh and another). The appellants were heard on point of charge and the trial court was, prima facie, satisfied with the case against the accused-appellants. Therefore, it framed charge against the accused-appellant under Sections 323, 504, 506 IPC and Section 3(1) (10) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act, 1989. 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 6 prosecution witnesses. Brief reference of the same is sketched herein below:-

P.W.1 Begraj Singh is the informant and injured eye-witness of the incident. He has also proved the written report, Exhibit Ka-1.

P.W.2 Chaman Kali is the injured and eye-witness of the incident. She also narrated whole prosecution story.

P.W.3 Sri Richhpal is also an eye-witness.

P.W.4 Rajendra Kumar is also an eye-witness of the incident.

P.W.5 Dr. G.S. Patel is the formal witness and examined the injured Chaman Kali and proved the injury report as Exhibit Ka-2.

P.W.6 Dr. Rajendra Varshney is the also the formal witness, who examined the injured Begraj and proved the injury of injured Begraj as Exhibit Ka-3.

Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, they claimed to have been falsely implicated in this case on account of enmity.

It is important to note fact that genuineness of the prosecution documents- say- Check FIR Exhibit Ka-4, General Diary Entry Exhibit Ka-5, Site Plan of the place of occurrence Exhibit Ka-6, Charge- sheet Exhibit Ka-7 have not been disputed by the accused side.

No other oral or documentary evidence has been adduced on behalf of the accused in their defence.

Learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced the accused-appellants- Nawab Singh and Smt. Kusum Lata- to undergo 1 year R.I. under each count (under Sections 323, 504 and 506 IPC), coupled with fine Rs.500/- under each count.

Further, accused- appellants (Nawab Singh and Smt. Kusum Lata) have been sentenced to undergo for the charge under Section 3(1)(10) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 for 3-1/2 years R.I. each. In default of payment of fine, accused appellants shall undergo a simple imprisonment for three months.

Consequently, this appeal.

I have heard, in extenso, argument pros and cons and also perused the record of this appeal.

It has been contended that in this case the genuineness of the FIR is not proved as the original one and no such incident ever took place, but the fact is that some civil litigation was contested between both the sides, wherein, the accused came out successfully and the informant side lost the case. This was the prime reason for false implication of the accused. The testimony of the injured witnesses (P.W. and P.W.2) cannot be believed and it cannot be said that the injury was infact caused by the accused. There is no X-ray examination report in relation to injury no.2 allegedly caused on the person of Chaman Kali. The testimony of both the injured is contradictory. The informant was admittedly not present on the spot at the time of the occurrence, but he had gone to Murad Nagar and he came to know about the incident only when he was informed by one Prasadi, whereas, the fact is that Prasadi has not been produced before the trial court. The FIR is ante-timed.

Learned A.G.A., while replying to the aforesaid contention, submitted that the version of the prosecution is consistently proved and established by the testimony of the prosecution witnesses of fact as well as the other prosecution witnesses. The testimony of the two injured witnesses (P.W. and P.W.2) cannot be doubted. Nothing specific has been stated in the statement of the accused under Section 313 Cr.P.C., except vague claim of the enmity. Lastly, he submits that the findings of conviction is consistent and clinching.

At this stage, learned counsel for the appellants submitted that both the accused- appellants are old persons, therefore, in case, it is found that they are guilty, their case should be sympathetically considered on the point of sentencing.

Considered the rival submissions and also considered rival claims, in the light of above, the moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to prove its case beyond reasonable doubt under the aforesaid charges under sections 323, 504, 506 IPC and Section 3(1) (10) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989?

In this case, it is admitted position that the genuineness of the first information report, the site plan and the charge-sheet have been admitted to the defence, therefore, the concerned police officials- say- the Constable and the Investigating Officer were not examined and concerning prosecution documents/papers were marked in exhibit and presence of formal witnesses was deferred.

In so far as the place of occurrence is concerned, it is important to take note of fact that site plan Exhibit Ka-6 is the admitted document to the defence itself. Both the prosecution witnesses- say- P.W.1 and P.W.2 have categorically stated in their testimony about the occurrence having taken place around 5.30 P.M. on 26.04.1994 when Chaman Kali P.W.2 was returning home on the eastern side Patri of the pavement when accused Nawab Singh called her by caste name and asked her not to pass through the way, as he was milking his Buffalo. Consequently, Chaman Kali (P.W.2) proceeded towards western side of the parti of the road. When appellant no.2 Kusum Lata (wife of Nawab Singh) came across her, abused injured Chaman Kali and at the exhortation of Nawab Singh slapped her. Chaman Kali was beaten due to which she fell down near water tap in unconscious state. It was around 5.30 P.M. in the evening. As the testimony of P.W.1 Begraj, it is apparent that he was not present on the spot, however, he arrived on the spot after coming to know about the incident from one Prasadi. When he too was beaten. He somehow saved himself and took his wife to CHC Murad Nagar, where she was attended by Dr. G.S. Patel P.W.5, who medically examined Smt. Chaman Kali. Injured Begraj has also got examined himself by Dr. Rajendra Varshney P.W.6.

Both the the injury reports (Exhibit Ka-2 and Exhibit Ka-3) have been specifically proved by the testimony of two doctors Dr. G.S. Patel P.W.5 and Dr. Rajendra Varshney P.W.6. They have categorically stated that these injuries could have been caused around 5.30 P.M. on 26.12.1994.

So far as presence on the spot of the Begraj P.W.1 is concerned, it gives impression to the ambit that after coming to know about the occurrence soon after it took place around 5.30 P.M. when the informant returned to his home from Murad Nagar, he reached on the spot where his wife was lying unconscious. At that point of time, informant was also manhandled, abused and beaten by the accused.

Not only this, the other witnesses- say- P.W.3 Shri Richhpal, P.W.4 Rajendra Kumar are also witnesses of fact of occurrence and they have without any deviation approved the very occurrence. Their testimony when read conjointly, reveals that the story of the prosecution is consistent, clinching and inspires confidence and the same cannot be doubted. Merely, because the informant was not present at the beginning of the occurrence and he arrived on the spot only after Chamn Kali had been beaten and was lying in unconscious state near the water tap, would not nullify his testimony otherwise consistent.

The scrutiny and analogy apart from perusal of facts and circumstances of the case by the trial court on the merit of the case is justified and the trial court took right note of the occurrence and rightly recorded conviction under Sections 323, 504, 506 IPC and 3(1) (10) of The Scheduled castes and the scheduled Tribes (Prevention of Atrocities) Act, 1989, which conviction is being based on material on record and justified under facts and circumstances of the case need no interference instead the same is affirmed at this stage.

In so far as the sentencing part of the judgment and order impugned is concerned, that way specific claim has been made that both the appellants are old persons, as appellant no.1 is over 70 years of age and appellant no.2 is over 68 years of age, which is mentioned in the statement recorded under Section 313 Cr.P.C.

In view of above, sentencing part of the case may be considered sympathetically and looking to the enormity of the offence and the injury caused, no interfere is required for the sentencing part as recorded against the charge under Sections 323, 504, 506 IPC.

However, in so far as sentencing part for the charge under Section 3(1) (10) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, then the sentence of 3-1/2 years is modified to 1 year R.I. so as to meet the ends of justice.

Accordingly, the sentencing part of the judgment and order impugned dated 24.08.1998 passed by IInd Additional Sessions Judge, Ghaziabad in Sessions Trial No.40 of 1997, State Vs. Nawab and another) for offence under Section Section 3(1)(10) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station- Muradnagar, District- Ghaziabad is modified.

In view of above, this appeal is partly allowed.

Both the appellants are on bail. They are directed to surrender and in case they do not surrender, they shall be taken into custody and sent to jail to serve out the sentence imposed on them as above.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Dt.26.07.2018

Raj