Ram Lalak vs State
2018 Latest Caselaw 2838 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 6.9.2018
 
Delivered on 26.9.2018
 
Court No. - 50
 
Case :- CRIMINAL APPEAL No. - 1879 of 1982
 
Appellant :- Ram Lalak
 
Respondent :- State
 
Counsel for Appellant :- V.K. Shukla,R.A. Mishra,S.K. Mishra
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Harsh Kumar,J.

1. The present criminal appeal has been filed against the impugned judgment and order dated 10.8.1982 passed by VIII Additional Sessions Judge, Allahabad in S.T. No.326 of 1981 (State Vs. Ram Lalak Pandey and others) under Sections 304/34 & 323 I.P.C., whereby the learned Additional Sessions Judge convicted all the accused-appellants for the offences under Sections 304/34 & 323/34 I.P.C. and sentenced each of them with rigorous imprisonment for a period of 4 years under Section 304/34 I.P.C. and 6 months rigorous imprisonment under Sections 323/34 I.P.C.

2. The brief facts relating to the case are that Ram Nidhi Pandey lodged a F.I.R. of the incident at 11:00 a.m. on 27.8.1979 at P.S. Karchana, District Allahabad with the allegations that "Due to litigation in consolidation courts with the accused-persons, they are on inimical terms with applicant; that Yesterday evening his she-buffalo suddenly entered in the sugarcane field of Ram Lalak for which he made a complaint to his father today morning and abused him; that at about 9:00 a.m. when he, his brother Ramrooj, Srinand and nephew Kamleshwar Prasad were going to the fields in south-west of their home, Ramrooj asked Ram Lalak that he will reimburse the loss caused to him and he had no reason to abuse his father. Upon which Ram Lalak, his brother Ram Hit son of Ram Lalak, Ramayan and Tirath Prasad assaulted with Lathis and caused injuries to Ramrooj, Srinand and Kamleshwar; that on his alarm Mool Sajeevan, Satya Narayan @ Bachchan, Ram Abhilash and Harsh Narayan arrived and intervened, upon which all the four accused left; that Ramrooj sustained injuries on head and right scapula and other points of body and Sri Nand and Kamleshwar also sustained lathi injuries and Ramrooj fell unconscious on the spot." On death of Ram Rooj Section 304 I.P.C. was added and upon investigation the charge-sheet was submitted and case was committed to Sessions. Learned trial court framed charges against the accused persons under Sections 323/34 and 304/34 I.P.C.

3. Prosecution in order to prove its case produced Kamleshwar Prasad, injured witness as P.W.-1, Ram Nidhi, the first informant as P.W.-2, Srinand, the injured witness as P.W.-3, Dr. Rajendra Dayal, Medical Officer, Swaroop Rani Hospital, who examined the three injured persons as P.W.-4, Autopsy Surgeon Dr. V.K. Gupta as P.W.-7, Dr. A.K. Kochar, Medical Officer of P.H.C. Karchana, who referred the injured persons to Swaroop Rani Hospital as P.W.-6, I.O. Sukh Dev Pandey as P.W.-5 as well as Mata Prasad Pandey, Chhedi Lal Gupta, Raja Ram, Hazarat Ali, Rama Shankar Dubey, the formal witnesses as P.Ws.-8 to 12.

4. After completion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. and they examined Sankatha Prasad as D.W.-1.

5. After hearing the parties counsel and perusal of record the learned trial court has passed the impugned judgment and order convicting all the four accused persons for the offences under Sections 304/34 & 323/34 I.P.C. and sentenced each of them with 4 years & 6 months rigorous imprisonment, respectively for two offences. Feeling aggrieved all the four appellants jointly filed the appeal. During the pendency of appeal accused appellants no.1, 3 & 4 namely Ram Lalak, Ramayana Prasad Pandey and Tirth Prasad Pandey were reported to have died and appeal in respect of them was abated vide order dated 2.8.2016.

6. Heard Sri V.C. Mishra, learned Senior Advocate assisted by Sri Uma Shanker Mishra, learned counsel for the surviving appellant Ram Hit and learned A.G.A. for the State and perused the record, paper-book as well as the lower court record summoned in appeal.

7. Learned counsel for the sole surviving appellant Ram Hit submitted that prosecution has failed to produce the independent witnesses mentioned in F.I.R.; that the first informant has not claimed himself to be the eye witness of incident in F.I.R. but in his statement as P.W.-2 he has falsely claimed himself to be the eye witness.

8. Taking me through the oral evidence of all prosecution witnesses as well as defence witness Sankatha Prasad he contended that P.W.-1 has admitted that in consolidation proceedings, the accused persons got 3½ bigha as against the first informant, who got only 2½ bigha, so there can be no reason of having grudge by accused persons, on account of consolidation case, when they had got major share; that it is proved from the evidence on record that she-buffalo of first informant had entered in the fields of Ram Lalak and when he was taking his she-buffalo to cattle pond deceased and injured persons arrived there and assaulted him at his house and compelled Ram Lalak and Ram Hit to charge lathis in exercise of right of private defence; that the evidence on record shows that on account of dispute with Ram Lalak deceased, all his family members viz. his brother Ram Hit and his sons Ramayan Prasad Pandey and Tirath Prasad Pandey were falsely implicated; that the prosecution has failed to prove the charges against sole surviving appellant Ram Hit beyond reasonable doubt and since the main accused Ram Lalak, who may have caused fatal head injury to Ramrooj Pandey in exercise of his right of private defence, has died, the accused-appellant Ram Hit is entitled for acquittal.

9. He lastly submitted that in this 40 years old incident of 26.8.1979 between the members of same family (Khandan) out of four accused/convicts, three Ram Lalak, Ramayan Prasad Pandey and Tirath Prasad Pandey have died and only Ram Hit is surviving, who was aged about 45 years at the time of recording of his statement under Section 313 Cr.P.C. on 26.5.1982 and after lapse of around 36 years has crossed the age of 80 years; that Ram Hit has no criminal antecedent to his credit, prior or subsequent to the incident in question and even if found guilty, his sentence may be reduced to period of imprisonment already undergone with imposition of some fine.

10. Per contra, learned A.G.A. supported the impugned judgment and order of conviction and contended that it is fully proved from the evidence on record regarding the broad day light criminal incident prompt F.I.R. was lodged with correct facts naming all the assailants i.e. the accused persons; that all the four accused persons in common intention with each other actively and collectively participated in the incident in question and caused multiple lathi injuries to Ramrooj Pandey, Srinand and Kamleshwar Prasad; that P.W.-1, P.W.-2 & P.W.-3 all are the eye witnesses of the incident out of which P.W.-2 is the first informant while P.W.-1 and P.W.-3 are injured witnesses whose presence on the spot may not be doubted; that the prosecution case is fully proved by the consistent statements of P.W.-1, P.W.-2 & P.W.-3 duly corroborated by the medical evidence on record and the learned trial court has rightly convicted appellants and has not committed any mistake in passing the impugned judgment of conviction; that accused-appellant Ram Lalak since deceased and surviving accused-appellant Ram Hit in their statements under Section 313 Cr.P.C. have specifically stated that deceased and injured persons assaulted them at their home and they charged lathis in exercise of their right of private defence by which they have admitted active participation of Ram Hit in the incident; that there is nothing on record to show that the incident occurred at the home of accused-appellants or any of them was even slapped or sustained any injury at the hands of deceased and injured persons or any right of private defence arose to them for causing multiple injuries to three persons resulting in death of Ramrooj; that in such type of incidents where several persons were charging lathies indiscriminately, no one can give specific description about the author of each injury of several injured; that the accused Ram Lalak and Ram Hit did take specific plea of causing injuries to deceased and injured persons in exercise of right of private defence, and have utterly failed to prove even accrual of any right of private defence to them in absence of even a single contusion or abrasion to any of them; that active participation of all the accused persons in the incident is fully proved from the evidence on record and since all of them committed the incident in common intention with each other, even in absence of any specific evidence as to which injury was caused by which accused and who caused fatal blow to deceased Ramrooj Pandey, the accused-appellant Ram Hit may not be considered not guilty.

11. Upon hearing the parties counsel and perusal of record, I find that as per prosecution case in the evening of 26.8.1979 the she-buffalo of first informant entered in the sugarcane field of Ram Lalak and caused some damage on which in the morning of 27.8.1979 Ram Lalak came to the house of first informant and abused as well as threatened his father and later in the day when the first informant, his brothers Ramrooj, Srinand and nephew Kamleshwar were going to their fields, Ram Lalak etc. met on way and Ramrooj told him that he will compensate the damage caused by his she-buffalo and he had no business to abuse or treat his father, upon which Ram Lalak, his brother Ram Hit and his sons Ramayan and Tirath, started mar-pit with them with lathi-dandas over Rasta and when he raised alarm and witnesses arrived, accused persons fled away. It has also been contended that in the incident in question Ramrooj, Srinand and Kamleshwar sustained lathi injuries and Ramrooj, fell unconscious and could not recover and during treatment succumbed to the injuries in the same night of 27/28.8.1979.

12. The contention raised on behalf of appellant the prosecution has failed to prove motive on account of decision of consolidation case in view of the fact that prosecution witness has admitted that accused- appellant got major share in consolidation case, has no force because injured witness Srinand P.W.-1 has stated in para 12 of his statement that the consolidation case was decided in favour of the deceased about 2½ years ago and after preparation of decree upon measurements, an area of 13 biswa from the plot of accused persons was given the plot of deceased which was the reason of grudge by accused persons. The first informant P.W.-2 has also stated that after decision of consolidation case there was no dispute but there was tension (तनातनी) between two sides. Moreover, it is pertinent to mention that the decision in consolidation case is not alleged to be the sole motive and the incident of entry of she-buffalo of first informant in the fields of Ram Lalak in the evening of 26.8.1979 is alleged to be the immediate main motive following which Ram Lalak abused and threatened the father of first informant and deceased early in the morning of 27.8.1979 and later in the day the incident in question was committed by the accused persons. The injury reports of three injured persons duly proved by P.W.-4 Dr. Rajendra Dayal shows that multiple injuries were caused to them at about 9 a.m. on 27.8.1979, with hard and blunt objects and though the injuries of Kamleshwar and Srinand were not dangerous to their lives, but due to scalp deep grievous head injury on left parietal region unconscious Ram Ruj Pandey was admitted in emergency ward of Swaroop Rani Hospital, Allahabad and during treatment he breathed his last at about 2:20 a.m. in the same night of 27/28th August, 1979 within 10 hours of the incident. The Autopsy Surgeon Dr. V.K. Gupta has duly proved the post-mortem report of Ramrooj Pandey deceased and has stated that death of Ramrooj was caused as a result of shock and hemorrhage due to head injury.

13. The prosecution witnesses have not assigned specific role of causing head injury to Ramrooj Pandey to any particular accused out of four, but undisputedly in the incident in question Ramrooj sustained four lathi injuries, Srinand sustained one lathi injury and Kamleshwar sustained 2 lathi injuries in total 7-8 injuries which indicates the active participation of four accused persons in the incident. In such type of incidents when four persons are charging lathies indiscriminately over three persons, the details of each lathi blow by each accused with regard to particular injury to each injured may not be expected and possibility of escaping injured unhurt by some of the lathi blows in attempt of injured persons to save themselves, may not be ruled out.

14. It is noteworthy that defence has put self-contradictory suggestions to prosecution witnesses which have been denied by them. It has been suggested to (i) P.W.-1 in para 31 of his cross examination that, "on the day of incident (i.e. 27/8/1979) at about 11:30 a.m. he was grazing his she-buffalo in the fields of Ram Lalak and when he raised objections, they assaulted him at his home with lathies upon which he also charged lathis in defence" to (ii) P.W.-2 in para 23 of his cross examination that "his brother had assaulted him at the house of Ram Lalak and was beating him with lathies, on which Ram Lalak charged lathi in defence". (Without there any suggestion regarding entry of she-buffalo in his field) and differently suggested to (iii) P.W.-3 in para 18 of his cross examination that "they assaulted at the house of Ram Lalak and beaten him with lathies, upon which he also charged lathi in defence, and further suggested him that in the morning of 27.8.1979 they were grazing their she-buffalo in the fields of Ram Lalak". All the suggestions to 3 prosecution witnesses are at a great variance and self-contradictory.

15. It is also pertinent to mention that with great difference to above suggestions in reply to question no.2 in their statements u/s 313 Cr.P.C. all the accused persons have admitted entry of she-buffalo of first informant in the field of Ram Lalak in the evening of 26.8.1979 and to its contrary while accused-appellants Ram Lalak (since deceased) and Ram Hit (surviving appellant) in reply to question no.16 have stated that "At about 6-7 a.m. on the day of incident i.e. 27.8.1979 the she-buffalo of Ramrooj Pandey had entered in his sugarcane fields which was taken by him to his house and before he could leave for cattle pond, Srinand, Kamleshwar and Ramrooj arrived there, abused them and charged lathies on them, upon which Ram Lalak and Ram Hit charged lathies on them for their defence."

16. The discussions made above shows that the accused-appellants have Istly suggested P.W.-1 that he was grazing his she-buffalo in field of Ram Lalak at about 11:30 a.m. on 27.8.1979, IIndly suggested P.W.-2 that he was not present when his brother assaulted at the house of Ram Lalak, without any whisper about entry of she-buffalo and further IIIrdly and differently suggested P.W.-3 that they were grazing she-buffalo in his field in the morning of 27.8.1979 (as against he time of 11:30 a.m. suggested to P.W.-1 as well as admission of entry of she-buffalo in his field in the evening of 26.8.1979). The above self contradictory suggestions/statements of accused persons shows that just in order to falsify the prosecution version they (accused Ram Lalak and Ram Hit) have raised a false plea of entry of she-buffalo in his fields at 6-7 a.m. on 27.8.1979 in reply to question no.16 of their statements under Section 313 Cr.P.C. and against their admission in reply to question no.2 and taken a false plea of causing injuries to injured persons and deceased in exercise of their right of private defence.

17. In view of admission and above self-contradictory suggestions/statements of accused persons it is fully proved from the evidence on record that she-buffalo of first informant had entered in the fields of accused Ram Lalak in the evening of 26.8.1979, Ram Lalak abused the father of first informant in the morning of 27.8.1979 and subsequently at about 9:00 a.m. they assaulted and caused lathi injuries to Ramrooj, Kamleshwar and Srinand. It is also noteworthy that in injury reports of Ramrooj, Srinand and Kamleshwar Prasad who were examined between 1:15 to 1:25 p.m. at S.R.N. Hospital, Allahabad their injuries were opined to have been caused by lathies around 9:00 a.m. on 27.8.1979. The accused persons have not disputed the time of incident and so the self-contradictory suggestions that she-buffalo entered in field of Ram Lalak at 11:30 a.m. on 27.8.1979 and statement of entry of she-buffalo at 6-7 a.m. are wrong, bogus, vague and baseless.

18. The accused persons have produced Sankatha Prasad as defence witness no.1 who has also repeated the same version of entry of she-buffalo the same day on 27.8.1979 and mar-peet at the house of Ram Lalak and causing of injuries to injured persons by Ram Lalak and Ram Hit in exercise of right of private defence. It is noteworthy that since the accused persons have taken specific plea of causing of injuries in exercise of right of private defence, the burden to prove accrual of right of private defence lies on them and in absence of even a simple injury of contusion or abrasion to any of them, they have utterly failed to prove the same.

19. Learned counsel for the appellant has also submitted that since I.O. has not collected any blood from the place of occurrence hence the prosecution has failed to prove the place of occurrence and so also the prosecution case fails and is liable to be thrown out. He referred to the statement of P.W.-4 Dr. Rajendra, who has stated that, blood was oozing from head injuries of Ramrooj Pandey. It is noteworthy that P.W.-1 Kamleshwar Prasad, the injured witness in para 29 of his statement on oath has stated that no blood fell on the ground from the injury of Ramrooj, P.W.-2, the first informant and eye witness in para 19 of his statement on oath has also stated that Ramrooj fell down but he could not see as if any blood fell on the ground or not, and P.W.-3 has stated that he did not see any blood falling on the ground from the injuries of Ramrooj. Apart from it, it is also noteworthy that the incident in question has taken place in the month of August in rainy season over the Rasta which is not alleged to be pakka rasta and possibility of disappearance of disintegrated blood stains if any by the time of preparation of site plan may not be ruled out. In view of above evidence on record as well as the settled position of law that for the latches in investigation by Investigating Officer, prosecution case may not be disbelieved, I find that mere for the reason that no blood was found at the spot by I.O., or was not collected by him the place of occurrence may not be doubted or disputed and the prosecution case may not be disbelieved or thrown out.

20. It is also pertinent to note that for not collecting blood from the place of occurrence, it will not be correct to infer that the incident did take place at the door of accused-appellant Ram Lalak because D.W.-1 Sankatha Prasad has also denied falling of any blood on the door of the house of Ram Lalak. Defence witness Sankatha Prasad in his statement on oath in para 3 has stated that Ramrooj, Srinand and Kamleshwar came with lathies at the door of Ram Lalak and firstly they charged lathies upon which in exercise of right of private defence Ram Lalak and Ram Hit also charged lathis. Apart from above, from the statements of Ram Hit and Ram Lalak U/s 313 Cr.P.C., their active participation in the incident in question is admitted and the same is fully proved by defence evidence of their own witness Sankatha Prasad, the D.W.-1.

21. Upon careful consideration of entire evidence on record, I find that the statements of prosecution witnesses are consistent with no material contradictions therein and for minor discrepancies, if any, with regard to averments made in F.I.R. where first informant is stated that he was accompanying deceased and injured persons and his statement that he was at a distance of 8-10 steps, the prosecution case may not be disbelieved or thrown out.

22. In view of the discussions made above, I am of the considered view that the learned trial court has rightly appreciated the evidence on record and has not committed any mistake in holding the accused-appellants guilty. The learned counsel for the appellant has failed to show any incorrectness in the impugned order or that Ram Hit was falsely implicated. There is no sufficient ground for interfering with or setting it aside the impugned judgment and order of conviction. The impugned judgment and order of conviction is liable to be affirmed and the appeal being devoid of merits is liable to be dismissed.

23. However, considering the fact that (i) the incident in question did take place around 39 years ago on 27.8.1979, (ii) the injured persons as well as the appellants belong to one and the same family (Khandan) and they had common ancestors, (iii) the incident is not alleged to have been committed in pre-planned manner rather did take place over a petty dispute of damage caused by she-buffalo in the sugarcane field of accused-appellant Ram Lalak a day before the incident in question, (iv) the sole surviving accused-appellant Ram Hit was aged around 45 years at the time of recording of his statement under Section 313 Cr.P.C. on 26.5.1982 and due to lapse of over 36 years since then, would not only have crossed the age of 80 years but would also have turned less strong, (v) the appellants were released on bail 36 years back vide order dated 18.8.1982 passed in this appeal, (vi) there is nothing to show any other criminal antecedents to the credit of accused-appellant Ram Hit prior to or subsequent to the incident in question and (vii) he remain in custody for few days pending trial and from 19.8.2018 in furtherance of order dated 7.7.2018 issuing non-bailable warrants till grant of bail on 6.9.2018, I find that even upon affirming the conviction, it would be just and appropriate that the sentence imposed on sole surviving accused-appellant Ram Hit be modified and reduced, to the period of rigorous imprisonment already undergone with imposition of some fine, which will meet the ends of justice.

24. Accordingly the appeal is partly dismissed. The impugned judgment and order of conviction as well as conviction of accused-appellant Ram Hit under Sections 304/34 & 323/34 I.P.C. is affirmed. The appeal is partly allowed and impugned sentence of appellant Ram Hit for above offences, is reduced and modified in the manner that sole surviving accused-appellant Ram Hit is sentenced with rigorous imprisonment for a period already undergone under Section 304/34 I.P.C. and fine of Rs.10,000/- (to be deposited within two months) and in case of default in payment of fine with simple imprisonment for an additional period of 3 months, and he is further sentenced with rigorous imprisonment for a period already undergone under Section 323/34 I.P.C.

25. The sole surviving appellant Ram Hit is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender unless wanted in some other case or commits default in payment of fine.

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

27. Let lower court record be sent back to court below forthwith along with a copy of this order for necessary compliance, if any.

Order Date :- 26.9.2018

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