Vinod Kumar And Others vs State Of U.P.
2022 Latest Caselaw 10921 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 89
 

 
Case :- CRIMINAL APPEAL No. - 1381 of 1992
 

 
Appellant :- Vinod Kumar And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Pt.Mohan Chandra,Bharat Singh,K.D. Tiwari,R.P.S. Chauhan
 
Counsel for Respondent :- A.G.A.,Ram Babu Singh
 

 
Hon'ble Krishan Pahal,J.

1. Heard Sri Bharat Singh and Sri R.P.S. Chauhan, learned counsels for the appellant no.2, Sri Ram Babu Singh, learned counsel for the informant and Sri V.K. Singh Parmar, learned A.G.A. for the State.

2. The appeal against appellant no.1- Vinod Kumar, appellant no.3- Moti Lal & appellant no.4- Rakesh has been abated by the order of this Court dated 22.01.2020. The appeal shall proceed regarding appellant no.2- Gulshan Kumar.

3. This criminal appeal under Section 374 Cr.P.C. has been filed by the appellant no.2- Gulshan Kumar against the impugned judgment and order dated 21.07.1992 passed by VII Additional Sessions Judge, Moradabad, in Sessions Trial No.327 of 1986 convicting the appellant to undergo six months rigorous imprisonment under Section 147 I.P.C. and to undergo 2 years rigorous imprisonment under Section 308 read with Section 149 I.P.C.

PROSECUTION STORY

3. As per prosecution story, the FIR was lodged by Smt. Laxmi Devi w/o Laxmi Narain, wherein it was alleged that her husband Laxmi Narain was seated at the platform of the temple on 07.04.1985 at about 8:10 am and the appellant alongwith three unknown persons came, armed with iron rod, lathi and danda etc., and injured her husband with an intention to cause his death. The witnesses, namely, Baburam and Ram Gopal had seen the occurrence.

4. The FIR was lodged promptly at 8:40 pm, the same night. The injury sustained by Laxmi Narain was medically examined at P.S.C. Chandausi by Dr. B.R. Hora at 9:00 pm on 07.04.1985. The injuries sustained by the injured person are as follows:-

(i) Lacerated wound 5 cm x 2 cm bone deep on the right side mandible and chin.

(ii) Lacerated wound 3 cm x ¾ cm x bone deep on the outer end of left eye brow and forehead.

(iii) Lacerated wound 3 cm x 1 cm x bone deep on the left side of head 7 cm above the left ear.

(iv) Two lacerated wound in an area of 7 cm x 2 cm x bone deep on the right side of head 8 cm from right ear.

(v) Lacerated wound 2 cm x 5 cm x bone deep right side head 3 cm above the right ear.

(vi) Lacerated wound 3 cm x 1 cm x bone deep on the right mastoid region.

(vii) Tramatic swelling 6 cm x 4 cm on the right side head and mastroid region.

(viii) Abrasion 5 cm x 1 cm on the right supra clevical region and rold or shoulder.

(ix) Multiple red contusion 7 in number on the back or both shoulder, both chest and lumber region.

(x) Red contusion 8 cm x 2 cm x in the outer side right upper arm 15 cm above the right elbow joint.

(xi) Two red contusion in an area 18 cm x 6 cm on the outer side and front of left upper arm.

(xii) Red contusion 11 cm x 2 cm x on the left sub casting margion.

(xiii) Red contusion 9 cm x 2 cm on the outer side left thigh 20 cm above the knee joint.

5. The investigation was taken up by the S.I. Rajveer Singh Tomar, who prepared the site plan, and has recorded the statement of the witnesses and filed a charge-sheet against the accused persons on 24.04.1985.

TRIAL

6. The charge was framed against the appellant on 27.10.1986 under Sections 147 and 308 IPC read with Section 149 IPC.

7. The prosecution had examined the witnesses, namely, PW-1 Laxmi Devi (informant), PW-2 Dr. B.R. Hora, PW-3 Hari Om, PW-4 Tillu alias Daya Shanker, PW-5 Laxmi Narain (injured) and PW-6 Jugal Kishore and the other witnesses were not examined as the genuineness of the prosecution documents was accepted by the learned counsel for the appellant.

8. In defence, the appellant had examined DW- 1 Jugal Kishore and DW-2 Iqbal Ahmad Siddiqui J.E. Hydel Distribution Division Bilari. In the statement recorded under Section 313 Cr.P.C., the appellant had denied having committed the said offence.

RIVAL CONTENTIONS

9. Learned counsel for the appellant, at the outset, has stated that PW-1 Smt. Laxmi Devi is not an eye-witness rather she has lodged the FIR on account of heresay evidence. Thus, the FIR itself is not based on direct evidence. The statement has no evidentiary value. Learned counsel has further stated that PW-3 Hari Om has not supported the prosecution story rather he has stated that he had reached the place of occurrence after sometime alongwith the informant and there was utter darkness at the place of occurrence as there was no electricity supply at that time. Thus, his evidence falsifies the prosecution story. The same statement has been reiterated by PW-4 Tillu alias Daya Shanker. The two witnesses have not been declared hostile by the prosecution and no cross-examination, as such, has been conducted by the public prosecutor.

10. PW-5 Laxmi Narain has corroborated the FIR and named the appellant as the assailant who had assaulted him at the time of occurrence causing grievous injuries to him. Learned counsel for the appellant has indicated several contradictions in the statement of the injured person and has stated that he is an interested witness. The appellant has denied having committed the said offence in the statement recorded under Section 313 Cr.P.C.

11. The defence witness DW-1 Jugal Kishore has stated, in his statement, that the injured person Laxmi Narain is a history-sheeter and a drunkard and he has further stated that his shop is adjacent to the said temple and no such incident has occurred as alleged in the FIR. The said witness was not cross-examined by the public prosecutor.

12. DW-2 Iqbal Ahmad Siddiqui, is the Junior Engineer, Hydel Distribution Division Bilari, who has categorically proved the logbook register of the sub station Chandausi wherein it has been found on 07.04.1985, the electricity supply had failed and there was no electricity between 7:25 pm to 10:25 pm. Nothing concrete has come up in the cross-examination of the said witnesses.

13. Learned counsel for the appellant has further stated that a compromise has been entered into between the parties.

14. Learned counsel for the informant has not disputed the factum of a compromise having been entered into between the parties. The same is on record.

15. Learned counsel for the appellant has placed much reliance on the judgment of Apex Court passed in case of Narinder Singh and Ors. vs. State of Punjab & Anr.1, wherein the compromise was arrived between the parties in a case under Section 307 IPC. Learned counsel has further stated that there is a solitary witness to the occurrence which is not supported by any evidence whatsoever and in view of the said compromise, the appellant may be acquitted in the case.

16. Per contra, learned A.G.A. has vehemently opposed the criminal appeal on the ground that as per Section 134 of Evidence Act, it is the quality of the witnesses and not the quantity that matters. The statement of the injured person shall be enough to convict the appellant. The judgment and order passed by the trial court does not suffers from any ambiguity or illegality, although he has fairly conceded the fact that the compromise has been entered into between the parties and the appellant has been amply incarcerated in jail. The appeal may be partly allowed regarding the period already undergone by the appellant.

CONCLUSION

17. In this matter, if the entire fact and circumstances of the case are taken into consideration especially that there was no source of light at the time of offence as proved by DW-2 and also that a compromise has been entered into between the parties. The appellant has been living with the stigma of convicted person since the year 1992. Thus, in the facts and circumstances of the case, this Court is of a view that if the sentence imposed is reduced/modified to the extent of the imprisonment already undergone it shall meet the ends of justice. The criminal appeal is partly allowed modifying the sentence imposed upon the appellant as above.

18. Accordingly, the criminal appeal is partly allowed. The conviction of appellant- Gulshan Kumar is upheld under Sections 147 and 308 IPC read with Section 149 IPC, but the substantive sentences imposed upon the appellant by the trial court shall stand modified/reduced to the period already undergone by him.

19. Let a copy of this judgment alongwith the trial court record be sent to the court concerned for necessary compliance.

Order Date :- 23.08.2022

Ravi Kant

Krishan Pahal, J.