Harish Chandra Pal And Another vs State Of U.P.
2019 Latest Caselaw 4046 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 15.04.2019
 
Delivered on : 03.05.2019
 
Court No. - 34
 
Case :- JAIL APPEAL No. - 3398 of 2015
 
Appellant :- Harish Chandra Pal And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,(Amicus Curiae),Dharmendra Dhar Dubey (A.C.),Kalp Nath
 
Counsel for Respondent :- A.G.A.
 
				With
 
Case :- CRIMINAL APPEAL No. - 2719 of 2015
 
Appellant :- Ram Jeet Bind
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- B. Lal,Anurag Pathak
 
Counsel for Respondent :- Govt.Advocate
 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J.)

1. Accused-appellants faced trial in Session Trial No.137 of 2012 (State Vs. Harish Chandra and Ram Jeet, Crime No. 290 of 2012) under Sections 304, 323, 504, 506 IPC, Police Station Aurai, District Sant Ravidas Nagar (Bhadohi) and came to be convicted by Court of Additional Sessions Judge, Court No. 1, Bhadohi - Gyanpur vide judgement and order dated 24.3.2015, sentencing them under Section 304 read with Section 34 I.P.C. to undergo for life imprisonment, under Section 323 read with 34 I.P.C. to undergo for one year simple imprisonment with fine of Rs. 1000/-, under Section 504 I.P.C. to undergo for six months simple imprisonment and under Section 506 I.P.C. to undergo for five years simple imprisonment.

2. Being aggrieved, accused-appellants sought intervention of this Court by filing present Jail appeal from Jail concerned and accused-appellant Ram Jeet Bind filed separate Crl. Appeal No. 2719/2015. Since both appeals have arisen from common judgement, therefore, both appeals are being decided by this common judgement.

3. Brief facts giving rise to the present appeals as emerging from F.I.R. and evidence placed by prosecution on record are that P.W.-1 Kartali Devi aged about 75 years submitted written Tehrir Ex.Ka-1 getting it scribed by one Raj Kumar in the police station Aurai stating therein that she was sleeping with her victim (husband) and grand son Sanjay in the intervening night of 5/6.9.2012 in her hut situated near the pond. At about 1:00 a.m. in the night, the accused-appellants Harish Chandra and Ram Jeet came there and demanded male sheep to satisfy their lust. When victim Ram Jiyawan objected, they started to assault victim and P.W.-1 by Lathi and Danda, who sustained serious injuries. On hearing alarm made by them, Sitaram, Rajendra Pal, Sheetala Prasad and Ram Khelawan rushed there and rescued them. On intervention made by witnesses, both the accused-appellants ran away from spot. In the incident, P.W.-1 sustained injuries and victim Ram Jiyawan succumbed to injuries on spot at about 4:00 a.m. During incident, accused persons raised and slammed Sanjay, grand son of PW-1.

4. On the basis of written report Ex.Ka-1, PW-5 Sri H.M. Daulat Ram, posted in police station concerned, registered a Chick F.I.R. Ex.Ka-4 as Case Crime No. 290 of 2012 under Sections 304, 323, 504, 506 IPC against Harish Chandra and Ram Jeet. Entry of case was made in General Diary by PW-6 by constable clerk Smt. Anish Fatma under the direction of PW-5, copy whereof Ex.Ka-5 is on record.

5. PW-8 S.I. Om Prakash Rai commenced investigation, held inquest of deceased Ram Jiyawan, prepared Panchayatnama Ex.Ka-2 and other papers relating thereto, sent dead body for post morterm.

6. P.W. 4 Dr. Dheeraj Prakash conducted autopsy of deceased Ram Jiyawan, prepared post mortem report Ex.Ka-3 expressing his opinion that death was possible within one day prior to post-mortem and it might have been occurred due to haemorrhage and shock on account of ante-mortem injuries found on the body of deceased.

7. PW-7 Dr. Ramesh Kumar examined PW-1 Kartali Devi and found two injuries caused by blunt object i.e. a contused swelling 3 cm x 3 cm over the left palm and complain of pain over the arm. Both the injuries was opined by doctor to be caused by some blunt object within one day. Injury no. 1 was kept under observation witness prepared medico-legal report Ex.Ka.-6.

8. PW-8 further commenced investigation, recorded statement of witnesses, visited spot, prepared site plan Ex.Ka-7, traced accused persons and on the basis of information of informer, arrested the accused and prepared memo of arrest Ex.Ka-9, recorded their statement and after completion of investigation filed charge sheet Ex.Ka-8 against the accused-appellants before C.J.M. concerned.

9. Case being exclusively triable by Court of Session, was committed to Session Judge, Bhadohi, where-from it was transferred to Additional District Judge, Court No. 2, Bhadohi for disposal according to law.

10. Trial Court framed charges against accused-appellants on 7.1.2013, which reads as under :-

" आरोप

मै गंगाराम, अपर सत्र न्यायाधीश कोर्ट संख्या-2 भदोही-ज्ञानपुर आप अभियुक्तगण हरिश्चन्द्र पाल व रामजीत बिन्द को निम्नलिखित आरोपो से आरोपित करता हूँ:

प्रथमः- यह कि दिनांक 6.9.2012 को समय 1.00 बजे रात्रि स्थान ग्राम भरतपुर थाना औराई जिला संत रविदासनगर-भदोही में आपलोगो ने वादिनी करताली देवी के पति को लाठी डण्डा से मार कर प्राणघातक चोटे पहुचाई, जिससे उसकी मृत्यु हो गयी। इस प्रकार आपलोगो ने भा०दं०सं० की धारी 304/34 अन्तर्गत दण्डनीय अपराध किया, जो इस न्यायालय के संज्ञान में है।

द्वितीय- यह कि उपरोक्त दिनांक, समय व स्थान पर आपलोगो ने वादिनी, उसके पति व उसके नाती को लाठी डण्डा से मार पीट कर स्वेच्छया साधारण चोटे पहुचाई। इस प्रकार आप लोगो ने भा०दं०सं० की धारा 323/34 के अन्तर्गत दण्डनीय अपराध किया, जो इस न्यायालय के संज्ञान में है।

तृतीय- यह कि उपरोक्त दिनांक, समय व स्थान पर आप लोग ने वादिनी व अन्य को भद्दी-2 गालिया देकर प्रकोपित किया, जिससे उसकी शान्ति भंग हुयी और वह उत्तेजित हुआ। इस प्रकार आप लोगो ने भा०दं०सं० की धारा 504 के अन्तर्गत दण्डनीय अपराध किया, जो इस न्यायालय के संज्ञान में है।

चतुर्थ- यह कि उपरोक्त दिनांक, समय व स्थान पर आप लोगो ने वादी को जान से मारने की धमकी देकर आपराधिक अभित्रास किया। इस प्रकार आपलोगो ने भा०दं०सं० की धारा 506 के अन्तर्गत दण्डनीय अपराध किया, जो इस न्यायालय के संज्ञान में है।

एतद्द्वारा आपलोगो को निर्देशित किया जाता है कि उपरोक्त आरोपो में आप लोगो का विचारण इस न्यायालय द्वारा किया जावे।

C H A R G E

I, Ganga Ram, Additional Sessions Judge, Court No. 2, Bhadohi-Gyanpur, do hereby charge you, the accused Harish Chandra Pal and Ramjeet Bind, as under:

First: That on 06.09.2012 at 1:00 am, at Village Bharatpur, PS Orai, Sant Ravidas Nagar-Bhadohi, you, the accused, by giving lathi blows to the husband of the complainant Kartali Devi, caused him grave injuries, resulting in his death. In this way, you people have committed an offence punishable u/s 304/34 IPC, which is within cognizance of this court.

Second: That on the aforesaid date, time and place, you, the accused, intentionally caused simple injuries to the complainant, her husband and her grandson by assaulting them with a lathi. In this way, you people have committed an offence punishable u/s 323/34 of IPC, which is within cognizance of this court.

Third: That on the aforesaid date, time and place, you, the accused, hurled the complainant and others with egregious expletives and caused provocation to them leading to breach of peace and sparking off their anguish. In this way, you people have committed an offence punishable u/s 504 of IPC, which is within cognizance of this court.

Forth: That on the aforesaid date, time and place, you, the accused, by threatening to kill the complainant, have committed criminal intimidation. In this way, you people have committed an offence punishable u/s 506 of IPC, which is within cognizance of this court.

Hence, it is hereby directed that you people be tried by this court for the aforesaid offences."

(English Translation by Court).

11. Accused-appellants pleaded not guilty and claimed trial.

12. In order to substantiate its case, prosecution examined as many as 8 witnesses out of whom P.W. 1 Kartali Devi, PW-2 Shitala Prasad and PW-3 Sita Ram are the witnesses of fact and PW-4 Dr. Dheeraj Prakash, PW-5 Daulat Ram, PW-6 Anish Fatma, PW-7 Dr. Ramesh Kumar and PW-8 Om Prakash Rai are formal witnesses.

13. Statement of accused-appellants under Section 313 Cr.P.C. was recorded by Court explaining all the evidence and other incriminating circumstances wherein accused-appellants claimed false implication in the present case on account of village party bandi, denied the prosecution story in toto and all formalities of investigation were said to be wrong.

14. After hearing counsel for the parties and evaluating entire evidence, oral and documentary, produced by prosecution, Trial Court held accused-appellants guilty and sentenced as stated above.

15. We have heard Sri Dharmendra Dhar Dubey, learned Amicus Curiae and Sri Anurag Pathak, learned counsel for the appellants and Sri Ratan Singh, learned A.G.A for State-respondent at length and have gone through the record available on file carefully with the valuable assistance of learned counsel for the parties.

16. Although time, place and date and manner of injuries found on the body of deceased and PW-1 as stated by prosecution have not been challenged but according to advocate for defence, accused-appellants are not responsible for causing death of Ram Jiyawan or injuries to PW-1. From the evidence of PWs. 1, 2, 3, 4 and 7. Time, place and date of occurrence as set forthwith by prosecution are completely established.

17. Only question remains for consideration is "whether accused appellants are responsible for committing death of Ram Jiyawan and causing injuries to PW-1 and Trial Court has rightly convicted them in the aforesaid crime".

18. We may now proceed to consider, briefly, evidence of prosecution. P-W-1, injured and happens to be wife of deceased deposed that in the fateful night, she herself and her husband along with her grand son Sanjay were sleeping after taking meal. Accused-appellants came there and demanded male sheep from them. On objection made by her husband (victim), both accused-appellants assaulted him (victim) and P.W.-1 with Lathi and Danda, who received serious injuries. Victim Ram Jiyawan succumbed to injuries at about 4:00 a.m. in the same night. It was further stated by her that after assaulting Ram Jiyawan, accused-appellants tried to throw Sanjay in the pond. She lodged F.I.R. and went to hospital for medical examination. Witness was cross-examined by defence at length but nothing material or major contradiction could be brought on record through the same so as to disbelieve her statement.

19. PW-2, Sheetala Prasad, deposed that in the mid night of 6.9.2012, he was in his house and on hearing scream, he rushed to spot and saw that accused-appellants Harish Chandra and Ram Jeet were assaulting Ram Jiyawan with Lathi and Danda. At that time, PW-1 and her grand son were also there. PW-1 was also assaulted by accused-appellants by Lathi. The incident was witnessed by Sita Ram PW-3 and one Rajendra also, accused-appellants ran away on seeing them.

20. PW-3, Sita Ram, deposed that at about 1:00 a.m. in the night of 6.9.2012, on the call of Sanjay and on hearing scream, he along with his son rushed to spot and saw that accused-appellants Harish Chandra and Ram Jeet were assaulting Ram Jiyawan with Lathi and Danda and Kartali Devi (PW-1) with kicks and fists. Ram Jiywan received serious injuries due to which he succumbed. Police held inquest before him and Sheetala Prasad and took their signatures on the inquest report. Both PW-2 and PW-3 with stood lengthy cross-examination but no major contradiction could be brought through the same which may dent their testimonial deposition.

21. PW-1 is wife of deceased, PW-2 and PW-3 are neighbours, whose presence is fully natural and cannot be doubted. They established the complicity of accused-appellants in the crime and they supported the prosecution case.

22. Another argument advanced by learned counsel for the appellants is that witnesses of fact, PW-1 is relative of deceased, so her testimony can not be said to be reliable and trustworthy.

23. Evidently, this is a case of direct evidence. PW-1 established that accused-appellants have assaulted Ram Jiyawan with Lathi, Danda and herself with kicks and fists. Dr. PW-4 Dheeraj Prakash conducted post mortem and the same was proved by stating that deceased Ram Jiyawan was found with five ante-mortem injuries on his body which might have been caused by blunt object like Lathi and Danda. Ante-mortem injuries observed on the body of Ram Jiyawan reads as under :

"(i) Contused swelling 6 cm x 5 cm on lower end of right arm underlined bone fractured.

(ii) Contused swelling 5 cm x 4 cm on upper part of left forearm underlined bone fractured.

(iii) Contused swelling 8 cm x 6 cm on lower end of left thigh underlined bone fractured.

(iv) Contused swelling 3 cm x 2 cm with crepation on the right side of chest (anterior) part underlined rips fractured

(v) Contused swelling 2 cm x 2 cm and 2 cm x 1.5 cm on left side of anterior chest with crepation underlined rips fractured."

24. Further PW-7 Dr. Ramesh Kumar conducted medical examination of PW-1 Kartali Devi, found one abraded contusion wound 3 cm x 2 cm present on dorsal of left palm ulnar side red to blues in colour and one complaint of pain at the back side of arm which was caused by some blunt object.

25. Admittedly, PW-1 Kartali Devi, wife of deceased is injured in the incident, therefore, her presence on spot cannot be doubtful and it is found quite natural.

26. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court has held as under :-

"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.

(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)."

27. It is settled law that merely because PW-1 is close relative to deceased, her testimony cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person that too his own real wife. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence.

28. In so far as discrepancies, variations and contradictions in the prosecution case are concerned, we have analysed entire evidence in consonance with the submissions raised by learned counsel's and find that the same do not go to the root of case.

29. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.

30. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019 Hon'ble Supreme Court has observed that the Court will have to evaluate the evidence before it keeping in mind the rustic nature of the depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.

31. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of the Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.

32. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus, merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved.

33. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, the Supreme Court held as under :-

"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."

34. In the present case, it is fully established that Ram Jiyawan and PW-1, were seriously injured by accused-appellants in the hut of P.W.-1, evidence shows that dead body of Ram Jiyawan was found in his house. P.Ws. 1, 2 and 3 supported the prosecution case. The medical evidence shows that death of Ram Jiyawan might have occurred due to ante mortem injuries at the time as alleged by prosecution, therefore, there cannot be any hesitation to come to conclusion that accused-appellants caused death of Ram Jiyawan by causing several injuries by Lathi Danda due to which he succumbed to injuries and assaulted PW-1 with kicks and fists by causing injuries to her.

35. In the entirety of the facts and circumstances and legal preposition discussed herein before, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellants and Trial Court has rightly convicted them for having committed an offence under Sections 304, 323, 504, 506 IPC.

36. So far as sentence of accused-appellants are concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

37. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

38. There was no premeditation and act done by appellants appears to be in heat of passion, without appellants taken any undue advantage or acted in a cruel manner. Number of wounds caused by appellants, it is a well established position by itself, cannot be decisive factor.

39. In Surain Singh v. State of Punjab, (2017) 5 SCC 796, Court has restated the settled legal position about the purport of exception 4 to Section 300 of IPC. Even in that case, the accused had repeatedly assaulted the deceased with a Kripan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC.

40. Keeping in view, the nature of injuries noticed by PW-4, it is difficult to accept that accused-appellants intended to cause death of Ram Jiyawan or that injuries were so dangerous that they would in all probability cause death.

41. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, motive, nature of offence, weapon used in commission of offence and the manner in which it was executed or committed. We partly allow both these appeals. We confirm appellants' conviction under Sections 304, 323, 504, 506 I.P.C. and modify order of sentence under Section 304 I.P.C., to rigorous imprisonment for a period of 10 years and fine of Rs. 10,000/- each. In default they shall further undergo imprisonment for two months. They shall be entitled to set off under Section 428 Cr.P.C.

42. Lower Court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action and to apprise the accused-appellants through Jail Authority.

43. Before parting, we provide that Sri Dharmendra Dhar Dubey, learned Amicus Curiae for appellants shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to him without any delay and, in any case, within one month from the date of receipt of copy of this judgement.

Order Date :-03.05.2019

Manoj