Bhawani Prasad Pandey And Others vs State Of U.P.
2021 Latest Caselaw 10969 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

            A.F.R.
 
Judgment  Reserved On: 30.07.2021
 
          					Judgment Delivered On: 27.08.2021
 

 
Court No. - 48
 
Case :- CRIMINAL APPEAL No. - 45 of 1996
 
Appellant :- Bhawani Prasad Pandey And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.K.Chaturvedi,Ram Prakash Rai
 
Counsel for Respondent :- Govt. Advocate,Rudra Kant Mishra
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

1. Heard Sri S.K Chaturvedi, learned counsel for the appellants and Sri Rudra Kant Mishra, learned . A.G.A assisted by Sri S.B. Maurya appearing for State of U.P.

2. This criminal appeal has been filed against the judgment and order dated 09.01.1996 passed by the Additional Sessions Judge Gorakhpur in S.T. No. 240 of 1993 (State vs. Bhawani Prasad & others) Case Crime No.341 of 1992, P.S. Sahjanwa, District- Gorakhpur, convicting all the appellants (accused) under Section 147 IPC and sentencing them to undergo rigorous imprisonment for one years each and convicting under section 308\149 IPC and sentencing them to undergo rigorous imprisonment for three years each. Both the sentences have to run concurrently.

3. In brief, the facts are that the complainant Bhragunath Pandey gave an application dated 03.10.1992 at Police Station- Sahjanwa, District Gorakhpur alleging therein that today with his real brother Pramod Kumar Pandey and mother Savitri Devi, he went to his field to harvest his paddy crop. At about 10:00 a.m. Bhawani Prasad Pandey, Chunni Lal Yadav, Nand Lal Yadav, Sudarshan Yadav and Bhimal Yadav armed with lathi-danda came at the field and started restraining them from harvesting the crop complainant party said that they have sown it so they will harvest it. Meanwhile Sri Ram Pandey, Jai Prakash Pandey and Subhash Pandey also came there and said to Bhawani Prasad Pandey and his companions that why they are restraining from harvesting the crop, Bhragunath Pandey has sown it so he will harvest it. On this, all the above named persons started to abuse, chased the complainant and their companions to assault them. On the exhortation of Bhawani Prasad Pandey, all accused persons started to beat Sri Ram Pandey with lathi-danda due to which he suffered injuries on his head, legs, back and chest and he became unconscious. On the noise and seeing the condition of Sri Ram Pandey, the accused persons ran away from the spot. Sri Ram Pandey was taken to the hospital.

On the aforesaid application, a case bearing case crime no.327/92 under Section 147, 148, 323, 504, 308 IPC was registered at Police Station- Sahjanwa, Gorakhpur. Injured Sri Ram Pandey was medically examined and put under treatment. The Investigating Officer visited the place of occurrence and prepared the site plan, recorded the statements of complainant, injured and other witnesses and after completion of investigation submitted the charge-sheet against accused persons namely Bhawani Prasad Pandey, Chunni Lal Yadav, Nand Lal Yadav, Sudarshan Yadav and Bhimal Yadav.

Learned trial court framed the charges against the aforesaid accused persons under Section 147, 308 read with Sections 149 and 325 read with Sections 149 IPC. Accused persons denied the charges and claimed for trial. The prosecution produced seven witnesses. Statements of the accused persons under Section 313 Cr.P.C. was recorded in which they denied the prosecution case and further stated that they have been falsely implicated due to enmity. No evidence in defence produced by them. The learned trial court, after hearing the arguments by the impugned judgment, has convicted all the accused (appellants).

4. As per medical report, Ex. Ka.4 injured Sri Ram Pandey was medically examined on 03.10.1992 at 12:45 p.m. at District Hospital, Gorakhpur by the emergency medical officer. The Doctor has noted following injuries on his body:-

i) lacerated wound 3.5cm X 0.5cm into scalp deep on right side of head, 7cm above right ear, bleeding present

ii) Contusion 8cm X 4cm on outer part of right forearm just below elbow joint reddish

iii) Multiple contused swelling in an area of 23cm X all around on right forearm, injury kept under observation, X-Ray advised

iv) Traumatic swelling 6cm X 6cm on right chest around right nipple

v) Contusion 10cm X 2cm on right upper back, reddish

vi) Contusion 12cm X 2cm on right upper back, 5cm below injury no.5

vii) Contusion 8cm X 2cm on lower back, reddish

viii) Contusion 12cm X 7cm on right buttock, reddish

ix) Multiple contusion in area of 14 cm X 13cm on left buttuck

x) Contusion 13cm X 2cm on inner and lower 1/3rd of thigh

xi) Contusion 8cm X 8cm multiple, on left leg middle part

xii) Lacerated wound 6cm X 1cm X bone deep in front of right leg upper part

xiii) Multiple abrasion 9cm X 1cm, front of right leg middle part, 1cm below injury no.12.

xiv) Lacerated wound 2cm X 1cm, left leg middle part.

In the opinion of the doctor, all injuries except injury no.3 were simple in nature, injury no.3 was kept under observation. All injuries were caused by hard and blunt objects and duration fresh. It is also mentioned in the medico legal report that the patient is unable to stand and move. Admitted, ortho surgeon informed, police informed.

This medical report has been proved by Dr. Rama Shanker Misra (P.W.-6) who has also stated that these injuries could be caused on 03.10.1992 at 10:00 a.m. by lathi-danda.

Dr. R.A.L. Gupta P.W.3 in his examination in chief has stated that on 05.10.1992, the X-Ray of injured Sri Ram Pandey was conducted under his supervision. In the X-Ray of left forearm the fracture of ulna bone was detected. The witness has proved the X-ray report Ex.Ka.2 and X-Ray plate material Ex.1.

5. Bhragunath Pandey, P.W.1 is informant and also eye witness. He has fully corroborated the allegations made in the FIR and have stated that at the time of incident he alongwith his brother Pramod Kumar Pandey and mother Savitri Devi have gone to their field to harvest the paddy crop and the accused persons namely Bhawani Prasad Pandey, Chunni Lal Yadav, Nand Lal Yadav, Sudarshan Yadav and Bhimal Yadav armed with lathi-danda, came there and started restraining them from harvesting the crop. Meanwhile Jai Prakash Pandey, Sri Ram Pandey and Subhash Pandey also came there and said to the accused persons that complainant has sown the crop so they will harvest it, on this accused persons started abusing them and chased them to assault and brutally beaten Sri Ram Pandey with lathi-danda, resulting thereof he fell and became unconscious. He suffered the injuries on the head, back and chest, he was taken to hospital and was admitted in the hospital for treatment. Sri Ram Pandey (P.W.-2) is the injured and most important witness, he has also corroborated the prosecution case and stated that the incident is of 03.10.1992 at about 10:00 a.m. he was going to look his fields of Gram Bithaura then he saw that near the paddy field of Bhragunath Pandey, some altercation was going on with Bhragunath Pandey, his brother Pramod Pandey and his mother and Bhawani Prasad, Chunni Lal, Nand Lal, Sudarshan and Bhimal Yadav were restraining Bhragunath Pandey from harvesting the field. The witness said that Bhragunath Pandey has sown it so he will harvest it. On this the accused-persons started to abuse and chased to beat. On exhortation of Bhawani Prasad all accused persons started to assault him with lathi-danda. He suffered injuries and became unconscious and when he regain consciousness then he was told that he was being taken to hospital. Subhash Pandey and Jai Prakash Pandey also witnessed the occurrence. He was admitted in the District hospital, Gorakhpur where he was medically examined and X-Ray was also conducted. P.W.-4 Subhash Pandey is also an eye witness and this witness has also fully corroborated the prosecution version and supported the statement of other witnesses P.W.-1 Bhragunath Pandey and P.W.-2 Sri Ram Pandey. All these witnesses have been cross-examined at length by the defence but there is no major contradiction or discrepancy in their oral testimony. The ocular version also got support from the medical evidence on record which corroborate that injured Sri Ram Pandey has suffered 14 injuries on various parts of his body including multiple contusions. These injuries have been caused on the head, back, hand and chest. His X-ray report confirms that he has suffered one fracture of right ulna bone. The nature of the injuries itself confirms that these injuries have been caused by blows of lathi- danda, it cannot be self inflicted or suffered in any other manner. So there is no reason to disbelieve the oral statements of injured witness and other eye witnesses.

6. The remaining witnesses are formal in nature, P.W.5 Jai Shankar Prasad the Investigating Officer has proved the steps taken by him during investigation and the papers prepared by him including the site plan and the charge-sheet. P.W.7 Head Constable Diwakar Mani Tiwari is the chick and G.D. writer who has proved the papers as exhibits Ka.5 and Ka.6.

7. The FIR has been promptly lodged and there is no confusion or discrepancy in the date, time and place of occurrence.

8. Learned counsel for the appellant contended that from prosecution case, it is clear that dispute was between complainant- Bhragunath Pandey and accused persons, so there was no reason to assault Sri Ram Pandey as he was not concerned with the subject matter and Section 149 IPC is not attracted. There was no common object to assault Sri Ram Pandey. I am not agreed with this contention of learned counsel for the appellants. As per prosecution version, accused-persons armed with lathi-danda came on the spot and started altercation with the complainant- Bhragunath Pandey and his family members. Injured Sri Ram Pandey and two other persons intervened in the matter and Sri Ram Pandey took the side of the complainant. On this, the accused persons started to assault him with lathi-danda.

It has been held in the case of Shiv Ram vs. State, 1998 Cri LJ 76 (SC) by the Hon'ble Apex Court that, "the existence of common object before the commencement of the fight is not necessary. It is enough if the common object is adopted by all the accused."

It has been further held in the case of Amzad Ali vs. State, (2003) 6 SCC 270 that, "it is incorrect to contend that prior formation of an unlawful assembly with a common object is a must and should have been found as a condition precedent before roping the accused within the fold of Section 149. Common object could develop co-instanti and being a question of fact it can also be inferred and deduced from the facts and circumstances of a case."

Applying the aforesaid proposition of law on the facts of the present case, it is clear that accused adopted, common object and assaulted Sri Ram Pandey with lathi-danda in furtherance of the said common object. Hence Section 149 is fully applicable.

9. Learned counsel for the appellants further contended that all the injuries except one are simple in nature and the only grievous injury is on non-vital part of the body, hence no offence under Section 308 IPC is made out. This argument of the learned counsel has substance. Although 14 injuries have been caused to the injured but all injuries except injury no.3 are simple in nature and injury no.3- the fracture of ulna bone of right forearm is on the non-vital part of the body. Further there is no statement in oral testimony of the doctor that these injuries either individually or collectively were dangerous to life. Further P.W.-6 Dr. Rama Shanker Misra in his cross-examination has admitted that pulse rate and blood pressure is recorded in the injury report generally in serious condition and because he was not serious it was not recorded.

The Hon'ble Apex Court in the case of Bishan Singh and Ors vs. State, AIR 2008 SC 131 has held as under:

"Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although over-act had been attributed against each of the accused who were having lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture of the arm, which was not the vital part of the body.

The accused, therefore, in our opinion, could not be said to have committed any offence under Section 308 IPC. The same would fall under Sections 323 and 325 thereof."

10. In view of the above, considering the entire material on record in this case, in the opinion of this Court, no offence under Section 308 IPC is made out, and the appellants-accused are liable to be held guilty for offence under Sections 147, 323/ 149 and 325/ 149 IPC and conviction of the appellants-accused is modified accordingly.

11. Considering the nature of the offence, the number of injuries and its nature and all other attending circumstances, it will be just and proper to sentence the accused-appellants to undergo imprisonment for one year each under Section 147 IPC, imprisonment of one year each under Section 323/149 IPC and imprisonment of one year and fine of Rs. 10,000/- each under Section 325/149 IPC. In default of payment of fine, each accused will serve three months simple imprisonment. All the sentences shall run concurrently. If the fine is deposited, the victim Sri Ram Pandey will get half of it.

12. The appeal stands partly allowed, accordingly.

13. Lower court record along with copy of the judgment be transmitted to the trial court immediately.

Order Date :- 27.08.2021

C. MANI