Munni Lal Yadav & Ors. vs State Of U.P.
2021 Latest Caselaw 3108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	Reserved on     :  05.0.12021	                                                           Delivered on    :  03.03.2021 	
 

 
CRIMINAL APPEAL No. 1305 of 1994
 

 
       1.      Munni Lal Yadav (deceased)                                        
 
 2.        Ram Murat Yadav                                                 
 
      3.        Ram Surant                                                                 
 
          4.     Amroo @ Amar Bahadur                             ----Appellants                            	
 
Vs
 
       State of Uttar Pradesh		                    -------Respondent
 
_______________________________________________________
 
For Appellants               :      Sri Ram Charan Yadav, Advocate 				                assisted by Sri Manoj Kumar Yadav
 
For Respondent/State    :     Sri Amit Kumar Singh, A.G.A	 _______________________________________________________
 

 
Hon'ble Raj Beer Singh, J.

1. This appeal has been preferred against judgment and order dated 31.08.1994, passed by learned IVth Additional Sessions Judge, Jaunpur, in Session Trial No. 10 of 1991 (State vs. Amroo @ Amar Bahadur & three others), under Sections 308/34, 323/34, 325/34 Indian Penal Code (hereinafter referred as I.P.C.), Police Station Jafrabad, Jaunpur, whereby all the four accused-appellants namely Amroo @ Amar Bahadur, Munni Lal, Ram Murat Yadav and Ram Surat have been convicted under Section 323/34, 325/34 and 308/34 I.P.C. However, they were sentenced only under Section 308/34 I.P.C. for imprisonment of three years rigorous imprisonment. No separate sentence was passed for offences under Sections 323/34 and 325/34 I.P.C.

2. During pendency of appeal, accused-appellant no.1 Munni Lal has passed away, thus, his appeal was abated. Now the instant appeal is confined only in respect of appellant Ram Murat Yadav, Ram Surat and Amroo @ Amar Bahadur.

3. Prosecution version is that on 19.08.1989 at about 10:00 PM, PW 2 Chandra Kesh Pandey went at the shop of accused Munni Lal and complained that their animals have grazed in his field. On this, all the accused persons started abusing him. Meanwhile, the complainant Banshraj also reached there and objected the abusing. On this, all the four accused persons came armed with lathis and sticks and assaulted the complainant Banshraj. One Mahendra Seth, Mahadev, Ram Chandar, Gopinath Seth came there and intervened and during intervention Mahendra has also sustained injuries. The complainant reported the matter to police by submitting tehreer Ex. Ka-1 and on that basis, the case was registered on 19.08.1989 at 10:00 P.M. vide first information report Ex. Ka-5, under sections 308, 324, 323, 504 I.P.C.

4. Complainant / injured Banshraj was medically examined on 20.08.1989 vide M.L.C. Ex. Ka-3 and he has sustained following injuries.

(i) Lacerated wound 4 c.m. x 0.5 cm x bone deep on the right side of head anterior part 7 c.m. above from the bridge of the nose with bleeding.

(ii) Lacerated wound 2.5 c.m. x 0.5 c.m. x scalp deep on the middle of forehead 1.5 c.m. above from bridge of the nose with bleeding.

(iii) Lacerated wound 1 c.m. x 0.5 c.m. x bone deep on the right side of forehead just above from right eyebrow with bleeding.

(iv) Lacerated wound 0.5 c.m. x 0.2 c.m. x deep fascia on the front of nose just below from bridge of nose with bleeding. Advised x-ray of nose.

(v) Abrasion 3 c.m. x 1 c.m. on the right side of face 3.5 c.m. below from right ear.

(vi) Abrasion 1 c.m. x 0.5 c.m. on the middle of left clavicle.

(vii) Abraded contusion 2 cm x 2 cm on the back of left upper arm 7 cm below from right shoulder joint red colour.

(viii) Abrasion 2 cm x 0.5 cm on the back of left forearm 8 c.m. below from left elbow joint.

(ix) Abraded contusion 4.5 cm x 2 cm on the back of left forearm 8 cm above from left wrist joint. Advised x-ray of left forearm.

(x) Abraded contusion 11 cm x 1.5 cm on the back of chest left side red colour 8 cm below from inferior angle of left scapula.

(xi) Contusion 4.5 cm x 1.5 cm on the left buttock red in colour.

5. On the same day, injured Mahendra was also medically examined vide M.L.C. Ex. Ka.4 and he has sustained following injuries.

(i) Lacerated wound 2.5 cm x 0.5 cm x bone deep on the middle of head 10 cm above from bridge of the nose with bleeding vertical.

(ii) Abrasion 1 cm x 1 cm on the top of left shoulder joint.

(iii) Complain of pain in the left back of the chest.

6. During course of investigation, the Investigating Officer PW-6 S.I. Phooldev Prasad recorded statements of witnesses, prepared site plan and after completion of investigation all the four accused persons namely, Amroo @ Amar Bahadur, Ram Murat Yadav, Munni Lal and Ram Surant were charge-sheeted for offences under section 308, 323, 325 and 504 I.P.C.

7. Trial court framed charges under Sections 308/34, 323/34, 325/34 I.P.C. against all the four accused persons. In order to bring home the guilt of accused persons, prosecution has examined six witnesses. One Dr. R.S. Verma was examined by the Court as CW-1.

8. After prosecution evidence, accused persons were examined under Section 313 of Cr.P.C., wherein, they have denied prosecution evidence and claimed false implication.

9. In defence accused-appellants have examined one Abdul Rahim as D.W.1 and one Sahab Lal as D.W. 2.

10. After hearing and analysing evidence on record, all the four accused persons were convicted under section 308/34, 325/34 and 323 / 34 IPC and were sentenced as stated in opening part of this judgment.

11. Being aggrieved by the impugned judgment, accused-appellants have preferred the present appeal.

12. Heard Sri Ram Charan Yadav, Advocate, assisted by Sri Manoj Kumar Yadav, learned counsel for the appellants and learned A.G.A. for the State.

13. In evidence, PW-1/informant Banshraj Singh has stated that all the four accused persons belong to one family and the house and shop of accused-appellants is situated opposite to his house. On day of incident, at about 10:00 PM, one Chandra Kesh Pandey (PW 2 ) has gone to shop of accused-appellants to lodge his protest that his crop has been grazed by cattle of accused Munni Lal and on that issue Munni Lal started abusing Chandra Kesh Pandey. PW-1 Banshraj Singh also reached there and complained against grazing of field and abusing being done by Munni Lal. On this, all the four accused persons started assaulting PW-1 Banshraj Singh and said Chandra Kesh Pandey. Hearing noise, one Mahendra Seth, Gopi Nath Seth and many other persons have also reached there and intervened in the matter. In the incident, PW-1 Banshraj Singh and said Chandra Kesh Pandey sustained injuries. During said fighting, accused Ram Surat has also sustained some injuries. There was light of electricity at the spot. After incident, PW-1 Banshraj Singh has reported the matter to police by submitting tehreer Ex. Ka-1 and he was medically examined.

14. PW-2 Chandra Kesh Pandey has stated that animals of accused Munni Lal have destroyed his crop. On 19.08.1989 at 10:00 P.M., he went to Munni Lal to reproach regarding grazing of his animals but Munni Lal started abusing him. Meanwhile, Banshraj Singh has also reached there. Thereafter, all the four accused persons started assaulting PW-2 Chandra Kesh Pandey and when Banshraj Singh intervened, all the four accused persons assaulted him with lathis and sticks. PW 2 Chandra Kesh Pandey further stated that when Mahendra tried to intervene, he was also assaulted by the accused persons.

15. PW-3 Gopinath Seth has also supported the prosecution version and stated that at the time of alleged incident, after hearing noise, he reached at the spot and saw that Banshraj Singh and Chandra Kesh Pandey were crying to save their lives. All the four accused persons have assaulted Banshraj with lathis and resultantly he has sustained several injuries.

16. PW-4 Mahendra has stated that after hearing noise he reached at the spot and saw that accused persons were assaulting Banshraj with lathis and sticks. When PW-4 Mahendra tried to intervene, he was also assaulted by them with lathis and resultantly, he has also sustained injuries.

17. PW-5 Dr. D. Mandal has medically examined injured Banshraj and Mahendra.

18. PW-6 S.I. Phooldev Prasad has conducted investigation of the case.

19. CW-1 Dr. R.S. Verma has proved x-ray report of injured Banshraj Singh.

20. DW-1 Abdul Rahim has stated that on day of incident at around 5:06 P.M., he reached at liquor shop of Ram Surat and saw that Mahendra, Banshraj Singh and Chandra Kesh Pandey were running from there after abusing Munni Lal and when they tried to chase them, Banshraj Singh tried to run away by a tempo but the said tempo turned turtle and resultantly Mahendra and Banshraj sustained injuries. Similar version has been stated by DW-2 Sahab Lal.

21. Learned counsel has argued that PW-3 Gopinath Seth and PW-4 Mahendra Seth are interested witnesses as they belong to the family of informant Banshraj Singh and there are contradictions and inconsistencies in the statement of witnesses. As per prosecution version, initially the altercation took place between Chandra Kesh Pandey and Munni Lal but said Chandra Kesh Pandey (PW-2) has not sustained any injury and that he did not lodge any report. It was submitted that Banshraj Singh has enmity with accused persons as they have purchased some land of his family. PW-2 Chandra Kesh Pandey has not clarified as to how he came to know that his crops has been destroyed by animals of accused persons. Learned counsel further argued that from the statement of PW-5 Dr. D. Mandal and CW-1 Dr. R.S. Verma, it is clear that injured Banshraj Singh has sustained only one fracture in bone of his neck and except that other injuries were simple in nature and thus, at the most, the offence under Section 325 IPC is made out and conviction under Section 308 IPC is not justified. It has been further submitted that the defence evidence clearly shows that injured Banshraj Singh has sustained injuries as he was trying to run away by tempo, which has turned turtle. Learned counsel further submitted that main accused Munni Lal has already been passed away and that accused-appellant Ram Murat is 80 % disabled as his left leg has been chopped off and that accused-appellant Ram Surat and Amroo @ Amar Bahadur are also senior citizens and suffering from various ailments.

22. Learned A.G.A. has submitted that there is statement of injured PW-1 Banshraj Singh and it has been amply corroborated by another injured PW-2 Chandra Kesh Pandey as well as by independent witnesses PW-3 Gopinath Seth and PW-4 Mahendra Seth. There is no material contradiction in statement of these witnesses. The prosecution version is supported by medical examination report of injured Banshraj Singh and that motive of incident has also been proved. Learned A.G.A. submitted that conviction of accused-appellants is based on evidence and calls for no interference.

23. I have considered the rival submissions and perused the record.

24. Close scrutiny of evidence shows that informant/injured witness PW-1 Banshraj Singh has made clear and cogent statement that all the accused-appellants have assaulted him with lathi and sticks and resultantly, he has sustained several injuries. He has given vivid description of entire incident and his version is supported by his medical examination report. Though, PW-2 Chandra Kesh Pandey has not sustained any visible injury, but he has also made a clear statement and stated that all the accused-appellants have assaulted him as well as PW-1 Banshraj Singh. Though, learned counsel for the appellants has argued that PW-3 Gopinath Seth and PW-4 Mahendra Seth are family members of informant Banshraj Singh, but merely this bald statement is not sufficient to discredit their testimony. Both the witnesses have been subjected to cross-examination, but no such fact could emerge which may create any doubt about their presence at spot. There is no material contradiction or inconsistency in statements of witnesses.

25. Considering the entire evidence on record, the contention of learned counsel for the appellants that there are material contradictions in statement of witnesses or that the said witnesses have deposed falsely due to enmity, cannot be accepted. Similarly, merely because PW 2 Chandra Kesh Pandey did not lodge the report or that he has not clarified that how he came to know that his crop has been grazed by animals of accused-appellants would not affect the prosecution version. It is correct that DW-1 Abdul Rahim and DW-2 Sahab Lal have stated that injured have sustained injuries accidentally as the tempo has turned turtle but in view of clear, cogent and positive statements of injured and other witnesses, the said defence version cannot be accepted. Further, there is nothing to indicate that why the said defence witnesses did not make any such statement during course of investigation.

26. It would be pertinent to mention that PW-1 Banshraj Singh is an injured witness. Regarding testimony of an injured witness, in case of Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259, held as under :

The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881:1973 SCC (Cri) 563: AIR 1972 SC 2593], Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12], Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681], Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696], Bonkya v. State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113], Bhag Singh [(1997) 7 SCC 712 : 1997 SCC (Cri) 1163], Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606 bc), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472], Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302], Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] 29.

While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107], where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29)

"28........In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2021] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214]).

The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

27. In the instant case, examining the statement of injured witness Banshraj Singh in the light of above stated legal position, his evidence inspires confidence and finds ample corroboration by medical evidence as well as by other eye-witnesses. Merely because second injured Mahendra has not been examined, it would not make any difference. The prosecution has also established the motive of alleged incident. Considering entire evidence on record, it is apparent that the prosecution has been able to prove the alleged incident and the involvement of appellants therein.

28. However, so far this argument is concerned that no case under Section 308 IPC is made out, it has substance. Scrutiny of evidence shows that injured Banshraj Singh has sustained total 11 injuries and as per medical examination report Ex. Ka-3 as well as from statement of PW-5 Dr. D. Mandal, it is apparent that all the injuries were caused by blunt object and that injury nos. 4 and 9 were kept under observation and that rest of the injuries were simple in nature. As per statement of CW-1 Dr. R.S. Verma, fracture was found in bone of neck of injured Banshraj Singh but there was no fracture or abnormality in his arm. He has clarified that except the fracture in bone of neck, there was no other fracture or abnormality. Thus, it is apparent that except the said fracture in neck, all other injures sustained by injured Banshraj Singh were simple in nature. On the basis of said neck injury, it could not be said that the appellants have assaulted the injured Banshraj Singh with such intention or knowledge that by that act they would cause death. There is no such evidence that accused-appellants have intention or knowledge to cause culpable homicide not amounting to murder. Considering the entire evidence, no case under Section 308 IPC is made out. Hence the conviction and sentence of accused-appellants under Section 308 IPC is not sustainable. In view of all these facts and circumstances, it would be appropriate that conviction of accused-appellant be altered from Section 308 IPC to Section 325 IPC.

29. So far as question of sentence is concerned, it was submitted by the learned counsel for appellants that accused-appellant Munni Lal has already passed away and that the alleged incident took place about 31 years back. It was submitted that accused-appellant Ram Murat is 80% disabled person as his left leg has been chopped off and his disability certificate has been filed on record. Further, he has become completely blind. Accused-appellants Ram Surat and Amroo @ Amar Bahadur are also senior citizens. Learned counsel for the appellants has submitted that accused-appellants have already remained in custody for about one week and in view of above facts and circumstances, no useful purpose would be served by sending the accused-appellants in jail at this stage.

30. In the case of Gopal Singh Vs. State of Uttarakhand (2013) 7 SCC 545, the Hon'ble Apex Court, held as follows:

"Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The Principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect-propensity to become a social threat or nuisance, and some times lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment".

31. Keeping in view the aforesaid legal position, in the instant case it may be stated that the injured Banshraj Singh has sustained fracture in bone of his neck. The alleged incident has taken place 31 years back and that the incident took place suddenly at the spur of moment. It has been pointed out that accused-appellant Ram Murat has become 80% disabled and his left leg has been chopped off and that now he has lost vision completely. It was also stated that accused-appellants Ram Surat and Amroo @ Amar Bahadur are also senior citizens. Considering all aspects of the matter, it appears that no useful purpose would be served by sending the accused-appellants to jail at this stage. It appears that ends of justice would met if accused-appellants are sentenced to the period already undergone by them along with fine of Rs. 10,000/- each.

32. In view of aforesaid, conviction of accused appellants, namely, Ram Murat Yadav, Ram Surant and Amroo @ Amar Bahadur under Section 308/34 IPC is set aside and instead, they are convicted and sentenced to the period already undergone by them along with fine of Rs. 10,000/ each for the offence under Section 325/34 IPC. In default of payment of fine, accused-appellants shall undergo six months imprisonment. It is also directed that out of total fine realized, the 60 % amount of fine shall be disbursed to injured Banshraj Singh by the Court below. Accused-appellants are stated on bail and they are directed to deposit the amount of fine within 45 days from today before the Court concerned.

33. Appeal is partly allowed in above terms.

34. Copy of this order along with record trial court be sent back to the court concerned forthwith.

Date: 03.03.2021

A. Tripathi

(Raj Beer Singh, J)