Murashlin And Another vs State Of U.P.
2018 Latest Caselaw 3821 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 15                                                                                                                              						    Reserved    
 
Case :- CRIMINAL APPEAL No. - 329 of 2005             
 
Appellant :- Murashlin And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Shree Prakash Singh
 
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 14.01.2005 passed by the Additional Sessions Judge, Court No.2, Saharanpur, in Special Session Trial No.331 of 2002 State Vs. Murashlin and another, arising out of Case Crime No.267 of 2001 under Sections 323/34 IPC and 3 (1) (10) SC/ST Act, Police Station- Deoband, District- Saharanpur, whereby the accused-appellants have been sentenced to undergo six months rigorous imprisonment coupled with fine Rs.500/-, in default of payment of fine, additional one month rigorous imprisonment on the first count and six months rigorous imprisonment coupled with fine Rs.1000/-, in default of payment of fine, additional one month rigorous imprisonment on the second count. Both the sentences were ordered to run concurrently.

Heard Sri Shailesh Kumar Shukla, learned counsel for the appellants, Sri Om Narain Tripathi, learned A.G.A. for the State and perused the record.

The facts leading up to this appeal appear to be, as discernible, from the record and particularly the first information report that the informant Gangaram lodged the written report on 16.05.2001 at 23:10 hours, at Police Station Deoband, District Saharanpur, regarding some incident with the allegations that the informant Gangaram had gone to take wages for reaping the crops at the house of Murashlin, Murtaza and Rashid where the accused-appellants were not paying wages as per agreement and were giving less wages with regard to agreement entered into between them. The accused-appellants started quarreling with the informant and the accused-appellants also called him by name of his caste and assaulted with Lathi and iron rod and also threatened with knife and countrymade gun. On alarm being raised, Sompal, Karanpal and Atar Singh and others arrived on the spot and saved the informant whereupon the accused-appellants after extending threat to life disappeared from the scene. The written report is Ext. Ka-2.

This report was taken down in the concerned Check FIR Ext. Ka-5 at Case Crime No.267 of 2001 under Sections 323, 504, 506 IPC and 3 (1) 10 SC/ST Act, Police Station Deoband, District and on the basis of the same, a case was registered in the concerned general diary Ext. Ka-6 on the aforesaid date and time at aforesaid crime number under aforesaid sections of IPC and SC/ST Act, at Police Station Deoband, District Saharanpur.

After lodging of the first information report, the injured Gangaram was medically examined by Dr. M.L. Sathiya PW-3, at C.H.C. Deoband, Saharanpur, on 16.05.2001 at 07:50 p.m. who noted following injuries:

"(1) Lacerated wound 3 cm x 1.5 cm x muscle deep outer to right eye associated with traumatic swelling in an area of 6 cm x 3 cm, fresh blood present, kept under observation.

(2) Red abraded contusion 2.5 x 1 cm at top of left shoulder.

(3) Red abrasion 1 cm x .5 cm at left leg below knee.

Complain of pain in abdomen was informed. Injuries were found to be simple in nature, caused by hard and blunt object.

Injury report has been proved by the doctor as Ext. Ka-1.

The investigation ensued and the same was entrusted to Circle Officer Shiv Ram Yadav PW-5 who took the investigation on 17.05.2001 and recorded statement of the informant, Head Moharrir Jai Prakash Singh and also recorded statement of the accused and on 18.05.2001 recorded statement of the prosecution witnesses Sompal, Karanpal etc., on their pointing out prepared site plan of the place of the occurrence as Ext. Ka-3 and after completing the entire investigation, filed charge sheet Ext. Ka.4 against the accused-appellants.

Consequently, proceeding of the case was committed to the court of Sessions from where it was transferred for conduction and disposal of the case to the aforesaid trial court of Additional Sessions Judge, Court No.2, Saharanpur who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the accused-appellants, accordingly, framed charges under Sections 323/34, 506 IPC and 3 (1) (10) SC/ST Act. Charges were read over and explained to the accused-appellants who abjured charges and opted for trial.

The prosecution, in order to prove guilt of the appellant examined as many as six witnesses namely Sompal PW-1, Karanpal PW-2 are eyewitnesses. Gangaram PW-4 is the injured-informant. Dr. M.L. Sathiya PW-3 has medically examined the injured on 16.05.2001 at 7:50 p.m. and has proved medical examination report Ext. Ka-1. Shiv Ram Yadav PW-5 is the Investigating Officer. Ashok Kumar PW-6 is a constable, he has proved entry made in the Check FIR and general diary in the handwriting of constable Jai Prakash. Except as above, no other testimony was adduced by the prosecution.

Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein they termed their implication false. The defence has produced three witnesses namely Rajpal DW-1, Pramod Kumar DW-2 and accused-appellant Murashlin DW-3. All the defence witnesses have deposed on point that on the day of occurrence, some altercation took place at the flour mill of accused-appellant Murashlin where the informant Gangaram along with others beat the accused-appellant Murashlin and his wife. Thereafter, evidence for the defence was closed.

The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against accused-appellants and sentenced them as aforesaid vide impugned judgment and order dated 14.01.2005.

Feeling aggrieved by the aforesaid judgment and order of conviction, the present accused-appellants have moved in appeal before this Court.

It has been urged on behalf of the accused-appellants that this case is absolutely false and counter version already raised by the accused-appellant Murashlin against the informant Gangaram was pending in the competent court of the law at Deoband. No such incident ever took place. The testimony of the injured Gangaram when compared with the ocular testimony of other two prosecution witnesses of fact and with the medical examination report Ext. Ka-1 is, on the face, contradictory.

It has been further urged that the description of the incident hardly inspires confidence. The motive created for causing the incident has not been properly proved by the prosecution nor was there any motive existing for committing the offence in question. The sentence awarded to the accused-appellants under circumstances is not justifiable and is too harsh. In fact the informant Gangaram has himself assaulted the accused-appellants for which he should be punished but the police in collusion with the informant has wrongly filed charge sheet against the accused-appellants.

Learned AGA has replied to the aforesaid contention by submitting on various legal as well as factual aspects of the case and has summed up that the incident has been very much proved by the testimony of the injured/informant Gangaram. The incident has been described by the prosecution witnesses with all particulars. The learned trial Judge while appreciating merit of the case was impressed by consistency of the aforesaid facts and proof of the same, therefore, rightly recorded conviction and awarded just sentence against the accused-appellants.

Also considered the rival submissions.

In the light of the submission raised by both the sides, the moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to establish the charges against the accused-appellants under Sections 323/34 IPC and 3 (1) (10) SC/ST Act beyond all reasonable doubt?

Bare perusal of the first information report establishes fact that the incident in question allegedly occurred on 16.05.2001 around 6:30 p.m. at Labkari within Police Station Deoband, District Saharanpur when the informant Gangaram went to the house of the accused-appellant Murashlin then some altercation took place on account of payment of wages for reaping the crops which was agreed upon between the informant and the accused-appellants that 25 Kg. (5 Garhi) of wheat shall be charged for the work done in the agriculture field measuring 1 Bigha, whereas, the accused-appellants insisted for payment of wages at the rate of 4 'Gahri' per Bigha.

The accused-appellants did not pay the wages to the informant Gangaram instead started abusing him and called him by name of his caste and beat him with Lath and iron rod and threatened with knife and countrymade gun. On alarm bring raised, Sompal, Karnpal and Atar Singh came on the spot along with others who saved the informant.

In the backdrop of the aforesaid allegations, testimony of the prosecution witnesses of fact and particularly that of the informant becomes vital. The informant Gangaram has testified fact as PW-4. His evidence qua the incident tallies with the description of the incident given in the first information report that he was beaten by the accused-appellants on the day of the incident with Lathi and iron rod. The accused-appellant Murashlin was possessing Lathi and Rashid assaulted by fist wherein he received injuries.

Injury report Ext. Ka-1 has been proved by Dr. M.L. Sathiya PW-3 wherein he found three injuries on the persons of the injured Gangaram while he examined him on 16.05.2001 at 7:50 p.m. Injury no.1 was stated to be lacerated wound 3 cm x 1.5 cm x muscle deep outer to right eye associated with traumatic swelling in an area of 6 cm x 3 cm, whereas, the other two injuries were stated to be red abraded contusion 2.5 x 1 cm at top of left shoulder and red abrasion 1 cm x .5 cm at left leg below knee. All injuries were reported to be simple in nature.

The testimony of the injured Gangaram on the point reflects that he had gone to the house of the accused-appellants for demanding wages and as per testimony of the prosecution witnesses of fact namely Sompal PW-1 and Karanpal PW-2, both the witnesses though accompanied the injured Gangaram up to the house of the accused-appellants but were standing outside the house, whereas, the injured Gangaram entered into the house of the accused-appellants and the incident took place in the 'Gher' (circle of the house of the accused-appellant Murshalin). In this context, the contention has been raised that for application of Section 3 (1) (10) SC/ST Act, it is necessary and essential that the incident must have taken place at public place and it must have been done with a view to humiliate the victim in the presence of the public.

Admittedly, as per testimony of Gangaram PW-4, the place of occurrence is the house of the accused-appellant Murashlin. Therefore, the offence under Section 3 (1) (10) SC/ST Act cannot be said to have been committed at public place instead it has been committed within the periphery and four corners of the house of the accused-appellants. Therefore, applicability of Section 3 (1) (10) SC/ST Act loses legal significance and the possibility of committing offence under Section 3 (1) (10) SC/ST Act would itself stand obviated because the place of occurrence, as per testimony of the informant-injured PW-4 himself, is the house of the accused-appellants. Therefore, conviction under Section 3 (1) (10) SC/ST Act becomes vitiated and the conviction and sentence under aforesaid Section of the SC/ST Act as imposed on the accused-appellants is hereby set aside.

Now the point of causing injury on the person of the injured Gangaram is to be considered vis-a-vis testimony and circumstances of this case. In that regard, cumulative testimony of the injured Gangaram PW-4, Sompal PW-1 and Karanpal PW-2 is indicative of fact that in the alleged incident, some injuries were caused which were reported to be simple in nature although injury no.1 was kept under observation but no supplementary report has been brought on record. The injuries sustained by the injured Gangaram could have been caused on 16.05.2001 at 6:30 p.m. as opined by the doctor. Therefore, the point of injury sustained by the injured Gangaram in the incident stood proved beyond reasonable doubt against the accused-appellants under Section 323/34 I.P.C. Therefore, conviction recorded by the trial court under Sections 323/34 IPC is upheld.

However, insofar as the quantum of imposition of sentence upon both the accused-appellants is concerned, obviously the accused-appellants have no previous criminal history nor has any criminal history been described by the prosecution against them. The injuries were caused to the injured Gangaram after some altercation took place between both the sides on non-payment of the wages.

Considering the facts and circumstances of the case and the background of the accused-appellants and the very manner of the incident, it would be appropriate that the injured Gangaram be compensated for injuries caused upon him by imposition of sufficient fine towards punishment and no useful purpose will be served if the accused-appellants are detained in prison.

With that view in mind, conviction recorded by the trial court under Section 323/34 I.P.C. though maintained, however, the sentence is modified and confined to fine only for Rs.2000/- to be paid by each accused. That way, fine initially imposed by the trial court to the extent of Rs.500/- is enhanced to Rs.2000/- and the aforesaid fine shall be deposited by the accused-appellants within two months.

In case of non-deposition of fine, the concerned convict will have to suffer additional imprisonment for two months.

Accordingly, sentencing part of the impugned judgment and order of conviction dated 14.01.2005 passed by the Additional Sessions Judge, Court No.2, Saharanpur, in Special Session Trial No.331 of 2002 State Vs. Murashlin and another, arising out of Case Crime No.267 of 2001 under Sections 323/34 IPC and 3 (1) (10) SC/ST Act, Police Station- Deoband, District- Saharanpur is hereby modified to the extent as aforesaid while the accused-appellants are exonerated of charge under Section 3 (1) (10) SC/ST Act.

The instant appeal is allowed, partly in aforesaid terms.

In this case, the accused-appellants are on bail. They need not surrender before the court below. Their personal bonds and bail bonds are cancelled and sureties are discharged. However, the appellants shall ensure compliance of Section 437A Cr.P.C.

However, it is directed that in case the amount of fine is realized then 50% of the amount of fine - say Rs.2000/- (out of Rs.4000/- from both accused-appellants) shall be given to the injured Gangaram or his successor, as the case may be.

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

Order Date :- 20.11.2018

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