Sunder & Another vs State Of U.P.
2018 Latest Caselaw 530 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment Reserved on : 29.03.2018
 
Judgment Delivered on : 15.05.2018
 

 
Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 1032 of 2003
 

 
Appellant :- Sunder & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Nigamendra Shukla
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Umesh Chandra Tripathi,J.

[1]. By way of instant criminal appeal, the appellants have challenged the legality and sustainability of the judgment and order dated 7.02.2003 passed by Special Judge (SC/ST Act), Bulandshahr in Criminal Case No. 87 of 1994 (State v. Sunder and another), arising out of Case Crime No. 83 of 1994, Police Station - Sikandrabad, District - Bulandshahr, whereby accused-appellants Sunder and Mukesh were convicted and sentenced as follows :

(i) Rigorous imprisonment for one year, for offence punishable under Section 323/34 of the Indian Penal Code (hereinafter referred to as 'IPC');

(ii) Rigorous imprisonment for two years, for offence punishable under Section 506 of IPC; and

(iii) Rigorous imprisonment for three years, for offence punishable under Section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'Act, 1989')

[2]. All the sentences were directed to run concurrently.

[3]. Succinctly, facts of the case are that informant Modi Lal Sagarwal, a doctor by profession, used to practise in his clinic situated in Mohalla Shekhwada, Police Station - Sikandrabad, District - Bulandshahr. He was a member of Scheduled Caste. Accused-appellant Sunder Lal had a tailoring shop in front of informant's clinic. On 24.02.1994 at 06.30 P.M., while the informant was sitting in his clinic, accused-appellants - Sunder Lal and Mukesh were disassembling the electrical wires by climbing up to the pole, due to which power supply of informant's clinic was cut off. This led to a rhubarb between informant Modi Lal Sagarwal and accused-appellants Sunder Lal and Mukesh, who started hurling caste-based abuses at the informant. Accused-appellant Sunder Lal taking 'saria' (a thin iron rod used for the purpose of construction) from his shop and accused-appellant Mukesh having 'plas' (a pair of pliers), assaulted the informant with their respective weapons, due to which he endured grievous injuries. He fell on the ground and became unconscious. After some time, one Sharif Ahmed came on the spot and took the injured informant Modi Lal Sagarwal, who was still unconscious, to Government Combined Hospital, Sikandrabad, Bulandshahr.

[4]. On the same day, i.e. 24.02.1994 at 07.00 P.M., injured informant Modi Lal Sagarwal was medically examined by Dr. Satish Kumar, the then Medical Officer, Government Combined Hospital, Sikandrabad, Bulandshahr, who noted the following injuries on the person of the injured:

1. Lacerated wound 3 cm. x 0.5 cm. x scalp deep at Right side of head middle part near hairline surrounded by swelling 6 cm x 4 cm. Injury kept under observation & advised X-ray skull AP & Lateral.

2. Contused swelling 7 cm. x 6 cm. at left side face just outer the left eye.

3. Abraded swelling 4 cm. x 3 cm. at back of left wrist. Injury kept under observation & advised X-ray left wrist AP & Lateral.

4. Lacerated wound 1.5 cm. x 0.25 cm. x muscle deep at back of Right Hand near root of Right thumb.

5. Traumatic swelling 5 cm. x 4 cm. at left side head 5 cm. above the left ear.

[5]. The doctor opined that injury nos. 1 and 3 be kept under observation and x-ray of AP & lateral of skull was advised. Injury nos. 2, 4 and 5 were simple in nature. All the injuries were caused by blunt object and their duration was fresh.

[6]. The injury report of Dr. Satish Kumar is on record and the same is marked as Ex.Ka.2.

[7]. X-ray AP and lateral view of skull and left wrist of injured informant Modi Lal Sagarwal was conducted on the next day of the occurrence, i.e. 25.02.2014.

[8]. The X-ray report is on record and the same is marked as Ex.Ka.3.

[9]. On the basis of X-ray report, supplementary injury report was prepared by Dr. Satish Kumar, which is on record and marked as Ex.Ka.4.

[10]. The doctor opined that in the report of X-ray AP & Lateral view of both skull and wrist, there was NAD i.e. Nothing Abnormal Detected, meaning thereby that both the injuries (injury nos. 1 and 3) were simple in nature.

[11]. Accordingly, the doctor deduced that all the injuries caused to injured informant Mohan Lal Sagarwal were simple in nature and were caused by hard and blunt object, that the duration of all the injuries was fresh and that the injuries might have been caused to the injured on 24.4.1994 at 06.30 P.M. by iron rod and pliers.

[12]. It was requested that report be lodged and action be taken. The written report is on record and the same is marked as Ex.Ka.1.

[13]. On the written information of informant Modi Lal Sagarwal, a chik first information report was lodged at Case Crime No. 83 of 1994 under Sections 323, 504, 506 of IPC and Section 3(1)(x) of Act, 1989 on 25.02.1994 at 01.30 P.M. The FIR is on record and the same is marked as Ex.Ka.5. On the basis of entries so made in the FIR, relevant entries were made in the General Diary (nakal rapat no. 32) and was case was registered against the accused at the aforesaid case crime number and under the aforesaid sections. The carbon copy of nakal rapat is on record and the same is marked as Ex.Ka.6. Thereafter, investigation of the case was started.

[14]. Investigation of the case was entrusted to Sub-Inspector Trilok Chandra Tyagi, who on the next day of the occurrence i.e. 25.02.1994, inspected the spot and prepared site plan and recorded the statement of witnesses. The site plan in on record and the same is marked as Ex.Ka.7.

[15]. After investigation, the police submitted charge-sheet against the accused-appellants Sunder and Mukesh under the same sections of IPC and Act, 1989. The charge-sheet in on record and the same is marked as Ex.Ka.8.

[16]. After hearing the accused on point of charge, the trial court was prima facie satisfied with the case against the accused. Therefore, it framed charge against the accused for the offence punishable under Sections 323/34, 506 of IPC and Section 3(1)(x) of Act, 1989. Charges were read over and explained to the accused, who pleaded not guilty and opted for trial.

[17]. To substantiate charge against the accused, the prosecution examined P.W.1 Sharif Ahmed and P.W.2 informant Modi Lal Sagarwal as witnesses of fact, whereas P.W.3 Dr. Satish Kumar and P.W.4 Sub-Inspector Trilok Chand Tyagi (I.O.) were examined as formal witnesses.

[18]. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused-appellants was recorded under Section 313 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), wherein they admitted the fact that P.W.2 informant Modi Lal Sagarwal is 'Jatav' by caste and they are 'Saini' by caste. But they claimed their innocence and stated to have been falsely implicated in the case due to enmity.

[19]. In turn, the defence did not lead any evidence, either oral or documentary.

[20]. The learned trial Judge, upon detailed consideration of evidence on record, found guilt of the accused-appellants for the offence punishable under Sections 323/34, 506 of IPC and Section 3(1)(x) of Act, 1989 beyond all reasonable doubt and passed the impugned order of conviction and sentence.

[21]. Feeling aggrieved by the order of learned trial court, the appellants have preferred the instant appeal.

[22]. Heard Ms. Seema Pandey, learned Amicus Curiae appearing on behalf of the appellants and Sri L.D. Rajbhar, learned Additional Government Advocate appearing on behalf of the State of Uttar Pradesh.

[23]. Contention has been raised by learned counsel for the appellants to the ambit that FIR has been lodged with an inordinate delay and that too, without any presumptive explanation. There are major contradictions in the statements of witnesses of fact. Moreover, their statements are not corroborated by medical evidence. Even so, learned trial court, without properly appreciating the evidence on record, has passed the impugned order, which is liable to be set aside.

[24]. Opposing the submissions advanced by learned counsel for the appellants, learned A.G.A. contended that there is no illegality or infirmity in the well-reasoned and well-observed order of conviction and sentence passed by the court below and the same is liable to be upheld.

[25]. Even though first information report of the occurrence was lodged on the next day on the occurrence, the prosecution has not explained the cause of delay in its lodging. After half an hour of the occurrence, injured informant P.W.2 Modi Lal Sagarwal was medically examined at Government Combined Hospital, Sikandrabad, Bulandshahr. The injured informant may not have gone to the police station due to the injuries sustained by him, which would have been the cause of delay in lodging the FIR. Only on the ground of delay in lodging the FIR, the prosecution version cannot be brushed aside.

[26]. P.W.2 injured informant Modi Lal Sagarwal had stated before court that on the day of the occurrence at about 06.30 P.M., he was sitting in his clinic. The accused-appellants - Sunder Lal and Mukesh were disassembling electrical wires by climbing up a pole. From the same pole, electricity both to informant's clinic and shop of the accused-appellant Sunder Lal, was supplied. Due to disassembling of wires by the accused-appellants, power supply of the informant's clinic was interrupted. On enquiry about the same being made by the informant, both the accused-appellants started abusing him and assaulted him with 'saria' and 'plas', due to which he sustained injuries. The statement of informant is corroborated by medical evidence. There is no material contradiction in the statement of P.W.2 informant Modi Lal Sagarwal, due to which it may be discarded.

[27]. P.W.1 Sharif Ahmed has also supported the prosecution version. But from the perusal of written report (Ex.Ka.1), it is revealed that he reached on the spot after the informant fell on the ground, being assaulted by the accused-appellants. This shows that P.W.1 Sharif Ahmed is not an eye-witness of the occurrence.

[28]. P.W.1 Sharif Ahmed also admitted this fact that while he took the injured P.W.1 informant Modi Lal Sagarwal to the hospital, the latter was unconscious. His statement is not corroborated by medical evidence or by statement of P.W.1 informant Modi Lal Sagarwal, who has expressly admitted in his cross-examination that he was conscious while being taken to the hospital.

[29]. P.W.1 Sharif Ahmed admitted this fact that at the time of the occurrence, he was at the salon of a barber named Buddhu for getting a haircut. The salon of Buddhu was merely at a distance of 6-7 steps from the informant's clinic. As and when he got his haircut done, an alarm was raised and he reached on the spot. In such a situation, it was least possible for him to see the occurrence, because the informant would have raised alarm only after sustaining injuries.

[30]. From the statement of P.W.2 injured informant Modi Lal Sagarwal, which is corroborated by medical evidence, it is proved beyond reasonable doubt that the accused-appellants have caused simple injuries to the injured at the time of the occurrence. Accordingly, offence under Section 323 of IPC is proved beyond reasonable doubt against the accused-appellants.

[31]. P.W.2 informant Modi Lal Sagarwal has not stated before court that the accused-appellants had threatened him with the intention to cause alarm. Even so, without any evidence, learned trial court has convicted the accused-appellants under Section 506 of IPC.

[32]. As per first information report, no one was present at the shop of the informant at the time of the occurrence. It is mentioned in the first information report that P.W.1 Sharif Ahmed reached on the spot some time after the occurrence took place. P.W.1 informant Modi Lal Sagarwal has admitted in his cross-examination that at the time of the occurrence, no patient was present in his clinic. The occurrence had taken place outside his clinic. From the perusal of first information report and statement of injured informant Modi Lal Sagarwal, it is evident that at the time of the occurrence, no other person, save the informant and the accused, was present on the spot.

[33]. Section 3(1)(x) of Act, 1989 reads as follows :

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

[34]. From the perusal of above provision of law, the accused may be punished for the offence punishable under Section 3(1)(x) of Act, 1989 only if they had intentionally insulted or intimidated the informant with the intention of humiliating him in any place within public view. If there is no other person at the place and time of occurrence, save the informant and the accused, then it cannot be said that occurrence had taken place within public view and the accused-appellants cannot be convicted for the offence punishable under Section 3(1)(x) of Act, 1989, as was held by Hon'ble Apex Court in Swaran Singh & Others v. State through Standing Counsel & Another reported in (2008) 8 SCC 435.

[35]. The aforesaid fact was further examined by Hon'ble Apex Court in Asmathunissa v. State of Andhra Pradesh represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad & Another reported in (2011) 11 SCC 259 in which it was held as under :

"...words used are "in any place but within public view", which means that the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present. ..."

[36]. For the reasons aforesaid, I am of the considered view that offence under Sections 506 of IPC and 3(1)(x) of Act, 1989 is not proved beyond reasonable doubt against the accused-appellants. The trial court while recording conviction against the accused-appellants under the aforesaid sections failed to properly appreciate the evidence on record and facts and circumstances of the case, thus recording erroneous finding of conviction, which cannot be sustained.

[37]. The occurrence had taken place about 24 years ago. Statement of accused-appellant Mukesh under Section 313 of Cr.P.C. was recorded on 19.09.2002, in which he stated his age to be about 25 years. Accordingly, on the date of the occurrence, i.e. 24.02.1994 he was about 18 years old. In his statement recorded under Section 313 of Cr.P.C., accused-appellant Sunder had stated his age to be about 37 years. Accordingly, his age on the date of the occurrence was about 29 years.

[38]. In the peculiar facts and circumstances of the case, in order to secure the ends of justice, it would be appropriate to release accused-appellants Sunder and Mukesh on probation, instead of sentencing them straightaway.

[39]. Resultantly, the instant appeal is allowed in part. Conviction of accused-appellants - Sunder and Mukesh under Sections 506 IPC and 3(1)(x) of Act, 1989 is hereby set aside. However, their conviction under Section 323 of IPC is upheld.

[40]. Although, conviction of accused-appellants - Sunder and Mukesh under Section 323 of IPC is upheld, but their sentence is set aside. Instead of sentencing them straightaway to any punishment, they are released on probation of good conduct for a period of two years. They are directed to furnish a personal bond and two reliable sureties each in the like amount, to the satisfaction of trial court, before the trial court, within 30 days from receipt of certified copy of this order by the trial court, with the condition that they shall appear and receive sentence when called upon by this Court before such period and in the meantime, to keep peace and be of good behaviour.

[41]. Both the accused-appellants are further directed to deposit compensation amount of Rs. 7,500/- each in the trial court within 30 days from receipt of certified copy of this order by the trial court. Out of total compensation amount of Rs. 15,000/-, Rs. 10,000/- shall be paid to the injured informant Modi Lal Sagarwal or, in his absence, to his legal heirs.

[42]. Office is directed to send a certified copy of this order to Special Judge (SC/ST Act), Bulandshahr for its compliance. Let the lower court's record be remitted back to the court concerned.

Order Date :- 15.5.2018

I. Batabyal

[Umesh Chandra Tripathi, J.]

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Case :- CRIMINAL APPEAL No. - 1032 of 2003

Appellant :- Sunder & Another

Respondent :- State Of U.P.

Counsel for Appellant :- Nigamendra Shukla

Counsel for Respondent :- Govt.Advocate

Hon'ble Umesh Chandra Tripathi,J.

[1]. Today the appeal was allowed in part. Ms. Seema Pandey, Advocate has appeared and argued on behalf of the appellant as Amicus Curiae. I appreciate the assistance provided by her to the Court.

[2]. Office/Registry is directed to pay Rs. 5,000/- to Ms. Seema Pandey, learned Amicus Curiae on behalf of appellant as fees.

Order Date :- 15.5.2018

I. Batabyal

[Umesh Chandra Tripathi, J.]

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