Chhotey vs State Of U.P.
2021 Latest Caselaw 11071 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									AFR
 
									Reserved 
 

 
Case :- CRIMINAL APPEAL No. - 1362 of 1983
 
Appellant :- Chhotey
 
Respondent :- State of U.P.
 
Counsel for Appellant :- N.K.Shukla,Mohammad Waseem
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Subhash Chandra Sharma,J.

1. This criminal appeal has been preferred against the judgment and order dated 28.04.1983 passed by 4th Additional Sessions Judge, Budaun in Sessions Trial No.242 of 1981 arising out of Case Crime No.45 of 1980, Police Station Dataganj, District Budaun by which appellant has been convicted under Section 307 I.P.C. and sentenced to undergo rigorous imprisonment for a term of 3 years.

2. The prosecution story in brief is that two months prior to the present incident appellant and Rajbhar abongwith his other companions committed dacoity in the house of Shyam Pal (brother of informant). They were identified and named in the F.I.R. Atiraj brother of informant was witness in that case. That was the reason appellant was annoyed with him. On 05.02.1980 at about 8:00 P.M. in the night when informant with Shivlal was sitting at the tube well in his field, appellant alongwith some unknown person equipped with lathi came there and asked about Atiraj. At this informant-Jhandu Singh told him that Atiraj was at his home. Meanwhile Chhotey started assaulting informant with lathi and caused injuries. The appellant was identified in the light of torch and other unknown person could not be identified. An F.I.R. was lodged at Police Station Dataganj on 06.02.1980 at about 9:15 A.M. Jhandu Singh was sent to PHC Dataganj for medical examination from where he was referred to District Hospital, Budaun where he was examined on 06.02.1980 at about 12:30 P.M.

3. Injuries found on the person of Jhandu Singh are as here under :-

(I) Lacerated wound 3cm x 1cm bone deep on left side of the forehead.

(II) Incised wound 4cm x 1.5cm bone deep on right frontal region of head.

(III) Lacerated wound 1cm x 0.5cm, 10 cm above left ear on temporal region.

(IV) Lacerated wound 2cm x 0.5cm scalp deep, 1cm behind injury no.3.

(V) Lacerated wound 3cm x 0.5cm scalp deep on left occipital region of head.

(VI) Lacerated wound 4cm x 1cm scalp deep, 9cm behind injury no.5.

(VII) Lacerated wound 4.5cm x 0.5cm scalp deep on right parietal region, 11cm above right ear.

(VIII) Lacerated wound 1cm x 0.5cm muscle deep outer side of left eye.

(IX) Contusion 10cm x 5cm on left side face with swelling. Advised X-ray.

(X) Abraded contusion 16cm x 10cm lower part of left fore-arm and hand. Advised X-ray.

(XI) Lacerated wound 10cm x 0.5 cm below nose at top.

(XII) Contusion 4cm x 2cm top of left shoulder.

Duration about half day (12 hours). All except no.2 by blunt object, no.2 by sharp edged cutting object. All simple except no.1 & 2 Advised x-ray skull.

4. Investigation of the case was handed over to S.I. Babu Ram who after completing investigation submitted charge-sheet against Chotey under Section 307 I.P.C.

5. The court concerned took cognizance and afforded essential prosecution papers to the appellant and committed the case to the court of Session for trial.

6. The trial court framed charge under Section 307 I.P.C. against the appellant which was read over and explained to him. He did not plead guilty but denied the charge and claimed for trial.

7. Prosecution examined PW-1 Dr. S.C. Naugriya, PW-2 H.C. Ramveer Singh, PW-3 Jhandu Singh, PW-4 Shivlal and PW-5 Babu Ram the Investigating Officer.

8. After prosecution evidence statement of appellant under Section 313 Cr.P.C. was recorded in which he stated the prosecution story to be false. He had also stated that the statements made by the witnesses were false. He had been implicated in the case owing to an enmity about a field. He further stated that in wrestling he defeated Atiraj, so for damaging his good health he had been implicated falsely.

9. Opportunity for defence evidence was given to appellant but no evidence was adduced on his part.

10. After hearing the arguments for accused/appellant as well as the State, learned trial court passed the impugned judgment dated 28.04.1983 while convicting and sentencing the appellant as aforesaid.

11. Being aggrieved with this judgment and order this appeal has been preferred.

12. Heard Mr. Mohammad Waseem, learned counsel for the appellant and Sri Arun Kumar Singh, learned A.G.A. for the State and perused the record.

13. Learned counsel for the appellant argued that in this case the identity of appellant is not certain because the occurrence took place in the night. There was no source of light. Lathi has been said to be used in causing injuries to informant Jhandu Singh but one incised wound was found on his person which is not probable with lathi. No blood stains were found on the place of occurrence. Atiraj brother of Jhandu Singh was defeated by appellant on account of that enmity he has falsely been implicated in this case. Now the appellant is near about 81 years old and he has been in jail for a period of more than one year. He further argued that the nature of injuries found on the person of informant have been said to be caused with lathi which is hard and blunt object. All injuries are simple in nature. Anyhow injuries were not fatal to the life of the injured. The nature of injuries brings the case within the purview of Section 323 I.P.C. in place of Section 307 I.P.C. Learned trial court has not considered all these facts while passing the judgment but convicted and sentenced the appellant arbitrarily which is illegal and not based on the evidence on record, therefore, it is liable to be set aside and appeal be allowed.

14. Learned A.G.A. opposed the contentions raised by learned counsel for the appellant and argued that Jhandu Singh was injured in this case who supported the prosecution version. Shivlal and Rajpal were eye-witnesses who have also supported the prosecution version. Medical report also corroborates the prosecution case. There was source of torch light which was taken there by Rajpal, as a result there was no suspicion in identifying the appellant by the informant. Blood stained soil was taken from the place of occurrence by Investigating Officer. There is no ground to reverse the findings recorded by the learned trial court and the impugned judgment and order convicting and sentencing the appellant is sound and based on legal principles. The appeal is devoid of merit and is liable to be dismissed.

15. Before proceeding to deal with the contentions raised by learned counsel for the appellant, it will be convenient to take note of the evidence as adduced by the prosecution.

16. PW-3 Jhandu Singh is informant who had stated that it was at about 8 P.M. he was at the well where engine was placed and Shivlal was also with him at that time and they were taking heat with fire. Meanwhile appellant Chotey and one other person came there and Chotey asked about Atiraj. Jhandu Singh replied that Atiraj was at home then Chotey uttered "isi ko le lo" and started beating him with intention to kill. He identified them in the light of torch but he did not know the name of other person. On making hue and cry Rajpal also came there with a torch. He sustained injuries on his head and arms. Accused persons went away in the direction of North West after causing injuries. Prior to the said incident appellant Chotey committed dacoity at the house of Shyamlal who is his nephew. In that case his brother Atiraj Singh is witness and as a result the companion of appellant Chhotey was imprisoned. Case against the appellant was still pending. After the accused persons went away his brother Atiraj Singh also came there at about 9-10 P.M. They arrived at home in the morning and went to police station with his brother. He got tehrir written by Rajpal in the village and affixed his thumb impression. On the basis of which case was registered at the police station. He proved tehrir as Exibit Ka-4.

17. PW-4 Shivlal deposed that it was time about 8 P.M. engine was placed at Sarman Singh's tube well, it belonged to Jhandu Singh who was present there. Both of them were taking heat with fire. Shivlal was one fourth partner in the land of Jhandu Singh. Appellant Chhotey and one other person came there, both of them were equipped with lathi and Chhotey asked about Atiraj. Jhandu Singh lighted his torch and told him that Atiraj Singh was at his home. Chhotey uttered "isi ko dekhenge" and both of them started beating Jhandu Singh. He began to cry after going on some distance and Jhandu Singh also made hue and cry. Rajpal also came there and made noise then other people from the village also came there. Atiraj Singh also came there but both of the accused persons fled away.

18. PW-1 is Dr. S.C. Naugriya who examined injured Jhandu Singh and prepared injury report dated 06.02.1980 at about 12:30 P.M. He proved the injury report as prepared by him in his handwriting and signature as Exibit Ka-1. Giving detail of injuries, he opined that except injury no.2 all injuries were possible with some blunt object like lathi and all the injuries were about half day old. Injury no.2 was possible with some incised weapon. All injuries except injury nos.1, 2, 9 & 10 were simple. Injury nos.1, 2, 9 & 10 kept under observation and advised for x-ray. All injuries were possible to be caused on 05.02.1980 at about 8-9:00 P.M.

19. PW-2 Head Constable Ramveer Singh has stated that he prepared F.I.R. in his hand writing which he proved as Exibit Ka-2 and also stated that he entered the contents of F.I.R. into G.D at report no.14 which he proved as Exibit Ka-3.

20. PW-5 S.I. Babu Ram was the Investigating Officer of this case and he proved the investigation and the site plan as Exibit Ka-5, fard of taking torch into his possession as Exibit Ka- 6 to 8. He also collected blood stained soil and plain soil from the place of occurrence and prepared fard as Exibit Ka-10. Thereafter, he concluded the investigation and submitted charge-sheet as Exibit Ka-10.

21. Occurrence took place on 05.02.1980 at about 8:00 P.M. and F.I.R. was lodged at the police station on 06.02.1980 at 9:15 P.M. There is delay in lodging the F.I.R. but informant lived in a village which was five miles away from the police station, therefore, it could not be possible to go to the police station in the night for lodging F.I.R. In the morning he reached at police station and lodged F.I.R. without making any delay. In this way, the delay in lodging the F.I.R. cannot be said to be material in the circumstances of the present case.

22. So far as motive is concerned, there is no need to prove motive in cases of direct evidence.

23. It is settled law that the motive loses all its importance in a case where direct evidence of eye witnesses is available because even if there is a very strong motive for the accused person to commit a particular crime, they cannot be convicted if the evidence of eye witnesses is not convincing.

24. We find that the Supreme Court has clearly opined in various decisions, such as Gopi Ram v St. Of UP, 2006 (55) ACC 673 SC, State of UP v Nawab Singh; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav v State of Karnataka; (2003) 6 SCC 392, R.R. Reddy v State of AP, AIR 2006 SC 1656, Sucha Singh v State of Punjab; AIR 2003 SC 1471, State of Rajasthan v Arjun Singh AIR 2011 SC 3380, Varun Chaudhry v State of Rajasthan AIR 2011 SC 72 that the prosecution case could not be denied on the ground of alleged absence or insufficiency of motive. Motive is insignificant in cases of direct evidence of eyewitnesses. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable, truthful and acceptable evidence is available on record sufficient to establish the guilt of accused persons.

25. PW-3 Jhandu Singh is informant and injured witness. PW-4 Shivlal was present on the spot at the time of occurrence and was taking heat with the fire in company of informant Jhandu Singh.

26. PW-3 Jhandu Singh is injured witness. His presence on the spot cannot be denied. The reliability of injured witness has well been explained by the Hon'ble Apex Court in the case of State of U.P. vs. Naresh & others (2011) 4 SCC 324 from which a relevant para is reproduced hereinunder for ready reference :-

".....................The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence.

Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayad v. State of Madhya Pradesh, (2010) 10 SCC 259]. "

27. In another decision in the case of Mamo Dutt vs. State of U.P. (2012) 4 SCC 79, Hon'ble the Apex Court again reiterated the evidentiary value required to be attached to the evidence of an injured witness by observing thus:-

"Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit."...................

28. Again in the case of Balwan Singh & others vs. State Of Haryana (2014) 13 SCC 560 Hon'ble the Apex Court observed thus:

"It is trite law that the evidence of injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let actual assailant go unpunished."

29. PW-3 Jhandu Singh got injuries on his person in the incident. He was examined by Dr. S.C. Naugriya on 06.02.1980 at about 12:30 P.M. and injuries on his person were recorded by the doctor. Those injuries have been said to be caused on 05.02.1980 at about 8-9:00 P.M. in the night as stated by the doctor. Jhandu Singh has also stated about the incident to have taken place at about 8'o clock in the night. He also stated that injuries were caused on his head and arms. This gets support with the medical report Exibit Ka-1 and also with the statement given by PW-1 Dr. S.C. Naugriya.

30. PW-3 Jhandu Singh has told in his statement that accused/appellant was having lathi and caused injuries with it on his head and arms. PW-1 Dr. S.C. Naugriya has also mentioned in Exibit Ka-1 that except injury no.2 all injuries were possible to be caused with blunt object like lathi and injury no.2 was likely to be caused with some sharp object. He has further explained that injury no.2 could be caused with lathi having some sharp edged blade. In this way, it stands proved that injuries to PW-3 Jhandu Singh were caused with lathi at about 8:00 P.M. in the night of 05.02.1980.

31. Incident took place in the field where engine was placed on the well, which has clearly been stated by Jhandu Singh PW-3 and Shivlal PW-4. PW-5 S.I. Babu Ram had also explained in his statement about the place of occurrence which also gets support from site plan Exibit Ka-5. During cross-examination also informant Jhandu Singh had explained the place of occurrence to be on the well in the field where engine was placed and he had also explained the directions and about the fields situated around the site. Blood stained and plain soil was also taken from the place of occurrence by Investigating Officer during inspection of spot and fard was prepared which he proved as Exibit Ka-9. All these support the statement of informant Jhandu Singh about the place of occurrence being in the field at well where engine was placed.

32. So far as the fact of enmity between the informant and accused/appellant is concerned, appellant has stated in his statement recorded under Section 313 Cr.P.C. that he was a wrestler and defeated Atiraj Singh brother of the informant in wrestling that was the reason he was implicated falsely and also on account of enmity related to field. In this regard nothing has been stated by informant Jhandu Singh during his cross-examination and no any other evidence has been brought on record by the appellant. On the other hand, it has been stated by the informant that appellant committed dacoity in the house of his nephew Shyam Pal in which his brother Atiraj Singh was witness. Co-accused was convicted and case was pending against him on account of which appellant was annoyed with Atiraj brother of informant. Further it has also been explained by the informant during cross-examination that there was no any field of appellant situated in the area. No other proof has been given by appellant which could show that his field was also situated near the field of informant and that caused enmity between them. So the argument relating to the fact of enmity due to wrestling and land dispute is not tenable.

33. It has further been submitted that in this case occurrence took place in the night at about 8:00 P.M. there was no source of light, so appellant could not have been identified by the informant but only on account of enmity he named him falsely. PW-3 Jhandu Singh had clearly stated during his examination-in-chief that he identified appellant in the light of torch. During cross-examination also he has reiterated the fact of torch. PW-4 Shivlal had also stated that he identified the appellant in the light of torch. This also gets supports with the statement of PW-6 S.I. Baburam who took the torch in his possession and prepared fard Exibit Ka-6 & 7. Argument in this regard has no force.

34. From testimony of injured informant PW-3 Jhandu Singh and eye-witness PW-4 Shivlal, it is proved beyond reasonable doubt that on 05.02.1980 at about 8:00 P.M. in the night appellant Chhotey in company of his other friend caused simple injuries with lathi to Jhandu Singh on his head and arms while taking heat beside the fire in the field where engine was placed. Finding recorded by the learned trial court to this extent, holding guilty to appellant, is correct and it requires no interference.

35. Now the argument by learned counsel for the appellant is that the offence does not come within the ambit of Section 307 I.P.C. because there was no intention to cause death of informant but it squarely falls within the purview of Section 323 I.P.C.

36. So far as, conviction of the appellant under Section 307 I.P.C. is concerned, it is expedient to examine the main ingredients of Section 307 I.P.C. which are (I) the act attempted should be of such nature that if not prevented or intercepted it would lead to the death of victim, (ii) the intention or mens rea to kill is needed to be proved clearly without doubt for this purpose the prosecution can make use of the circumstances like attack by dangerous weapon on fatal part of body, however, the intention to kill cannot be gauged simply by seriousness of the injury caused, (iii) the intention and knowledge of the result of the act being done is the main thing that is needed to be proved for conviction under Section 307 I.P.C.

37. In this regard, in the case of State Of Maharashtra vs Balram Bama Patil AIR 1983 SC 305, Hon'ble the Apex Court held in para 9:

"To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."

38. Hon'ble the Apex Court has held in the case of Jage Ram vs. State of Haryana (2015) 11 SCC 366 that :-

"12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc."

39. Again it was reiterated in the Case of State of Madhya Pradesh Vs. Kanha @ Om Prakash, CrlA. No. 1589 of 2018.

40. For the conviction under this section more importance is to be given to mens rea or intention than the actus reus or the actual acts itself. The attempt should arise out of a specific intention or desire to murder the victim. The nature of weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injuries inflicted is all taken into consideration to determine the intention.

41. In a case of an assault on the head with lathi, it is always a question of fact whether there was intention to cause death or other injury. The circumstances, manner of assault, nature and number of injuries will all have to be considered cumulatively.

42. In the F.I.R., it has been mentioned that appellant asked informant about his brother Atiraj Singh and when he told that Atiraj Singh was at home, appellant alongwith his friend assaulted with lathi with the intention of causing death but it has not been mentioned anywhere that appellant was uttering such words while causing injuries on his person. Even during his examination before the court he has not stated that appellant was uttering such words expressing his intention to kill him. PW-4 Shivlal has also not stated any word in this regard that appellant was uttering words expressing his intention to kill Jhandu Singh. It reveals that appellant might be furious on Atiraj because he was witness in the case of dacoity which was committed at the house of Shyampal nephew of informant but not against the informant Jhandu Singh. When Jhandu Singh told him that Atiraj Singh was at home appellant assaulted him with lathi while saying "isi ko le lo". This expression does not at all infer the intention of appellant to kill Jhandu Singh. No any other enmity with the appellant has been disclosed in the testimony of informant during examination before the Court, therefore, it cannot be concluded that there was any intention or motive in the mind of appellant to kill Jhandu Singh. The nature of injuries caused to Jhandu Singh also shows that all injuries are simple though some of them are on the head and others are on his arms but no any injury is of such nature as can be said to be grievous. In the opinion of the doctor PW-1 all injuries are simple and caused with lathi. He has nowhere stated that the injuries are fatal to the life of injured Jhandu Singh. Though lathi can be used to cause grievous injuries but it depends on force used. The nature of injuries shows that no much force was used while making assault with lathi otherwise it might have caused grievous injuries on the head and on the other parts of the body. In this way, it transpires from material on record that appellant had no intention to cause death of informant Jhandu Singh but he only intended to cause voluntarily simple hurt to him which cannot come within the purview of offence as defined under Section 307 I.P.C. and the manner committing the offence itself brings the case within the limits of Section 323 I.P.C.

43. Moreover, in the present case injuries were caused by lathi. The injuries in the opinion of doctor were simple, therefore, it is apparent that accused did not want to use lathi with the intention of causing death of informant. From this aspect also the present case does not fulfill the ingredients of Section 307 I.P.C. but it comes within the ambit of Section 323 I.P.C. Hence conviction of the appellant under Section 307 I.P.C. cannot be sustained.

44. In these circumstances of the case, this court is of the view that conviction of the appellant under Section 307 IPC cannot be sustained but appellant is liable to be convicted for the offence under Section 323 I.P.C.

45. In the case of Neelam Bahal and another vs. State of Uttarakhand 2010 (2) SCC 229 where conviction and sentence of appellant under Section 307 I.P.C. was converted into Section 326 I.P.C. simplicitor. Incident took place in the year 1987 and appellant was about 25 years old. Considering the facts and circumstances of the case, Hon'ble the Apex Court, reduced the sentence to the period already undergone by him.

46. In the present case, it is noteworthy that the incident took place in the year 1980 i.e. 41 years ago and it is said that now appellant is above 81 years old person. Record does not show that the appellant has any criminal antecedent and learned counsel for appellant has also submitted the same which could not be rebutted by learned counsel for the State.

47. Record shows that appellant has remained in jail from 10.03.1980 to 28.06.1980 and from 28.04.1983 to 21.03.1984 i.e. more than one year.

48. To sum up, the conviction & sentence imposed on the appellant under Section 307 I.P.C. is set aside instead he is convicted under Section 323 I.P.C. No any purpose will be served by sending the appellant (aged about 81 years) in jail after elapse of 41 years from the incident. The period of sentence is reduced to the period already undergone by him.

49. Accordingly, the appeal is partly allowed.

Order Date :- 9th September, 2021

Ashok Gupta

(Subhash Chandra Sharma, J.)