Santosh Kumar Pandey And Another vs State Of U.P.
2023 Latest Caselaw 20344 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


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Court No. - 50	Neutral Citation No. - 2023:AHC:156025
 
							Reserved on: 06.06.2023
 
							   Delivered on: 03.08.2023
 

 
Case :- CRIMINAL APPEAL No. - 1661 of 2021
 

 
Appellant :- Santosh Kumar Pandey And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Birendra Kumar Kushwaha,Amit Kumar Pandey,Anjani Kumar,Anurag Vajpeyi,Dhirendra Kumar Srivastava,Praveen Kumar Singh
 
Counsel for Respondent :- G.A.,Anjani Kumar,Gaurav Tiwari,Narendra Mishra
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

1. Heard Sri Amit Kumar Pandey, learned counsel for the appellants, learned counsel for first informant, Mohd. Shoaib Khan, learned A.G.A. for the State and perused the record.

2. Instant criminal appeal has been filed by the appellants under Section 374 (2) Cr.P.C. against judgment and order dated 22.03.2021, passed by learned Additional Sessions Judge/Special Judge (Essential Commodities Act), Varanasi in Sessions Trial No. 321  of 2015 (State Vs. Santosh Kumar Pandey and another) arising out of Case Crime No. 423 of 2013, under Sections 323, 325, 326, 307 I.P.C., P.S.- Badagoan, District- Varanasi, whereby the learned court below has convicted and sentenced accused appellants as under:-

i) under Section 323/34 to undergo one year rigorous imprisonment and Rs. 10,000/- fine to each;

ii) under Section 325/34 to undergo 7 years rigorous imprisonment and Rs. 5,000/- to each;

iii) under Section 326/34 I.P.C. to undergo ten years rigorous imprisonment  and Rs. 10,000/- fine to each to the appellant. The amount of fine is covered with default stipulation of imprisonment  and all the sentences were directed to run concurrently.

3. The factual matrix of the case which are relevant for present criminal appeal are that an F.I.R. was lodged at P.S. Badagaon, District- Varanasi on 10.09.2013 at 10:30 A.M. at the instance of informant Ashok Kumar Pandey on the basis of written report of the informant dated 09.09.2013 under Sections 323, 326, 325 I.P.C., wherein it is stated that the informant is resident of village Aharak (Baharipur), P.S.- Badagaon District- Varanasi. On 08.09.2013 at 12:00 Noon, his brothers Santosh Kumar Pandey, Vinod Kumar Pandey and Rahul Pandey  s/o Vinod Kumar Pandey, engaged in altercation with him at the home due to land dispute in which the the accused persons had beaten him which resulted in breaking of his teeth and an attempt was made to set his wife ablaze by pouring kerosene oil on her person. The matter was reported to P.S.- Badagoan, but no action was taken. This written report bearing date 09.09.2013 on which an endorsement is made by S.S.P., Varanasi to the effect that S.O. Badagaon to register the report and pursuant to this order, F.I.R. was lodged at P.S. concerned on 10.09.2013. The police investigated the case, the Investigating Officer visited place of occurrence and recorded statements of witnesses of fact, Ashok Kumar Pandey, Savita Pandey, Shivam Pandey, Dr. Anil Kumar Pradhan, Dr. Rahul Singh, the author of chik F.I.R. and submitted charge-sheet under Sections 323, 325, 326 and 307 I.P.C. against named accused persons Santosh Kumar Pandey and Vinod Kumar Pandey, who are present appellants, another named accused person Rahul was found juvenile and his case was separated and referred to jail J.J.B. by way of separate charge-sheet. The learned Magistrate committed the case to court of Sessions and on commencement of trial learned sessions court, Varanasi framed charge against accused appellants under Sections 323, 325/34, 326/34 and 307 I.P.C. The charges were explained and read over to accused persons, who denied the charges and pleaded not guilty.  At the stage of prosecution evidence, informant Ashok Kumar Pandey (P.W.-1) and his wife Savita Pandey, the other injured was examined as P.W.2 , P.W.3-Shivam Kumar Pandey is son of P.W.1 and P.W.2 and he is also an aggrieved and eye-witness. Dr. Rahul Singh conducted medico-legal examination of the injured Savita Pandey who is stated to have received burn injuries in the incident. P.W.5 Dr. Anil Kumar Pradhan gave treatment to P.W. 2 Savita Pandey in S.S.P.G.Hospital, Varanasi who was admitted there with 20 per cent burn injury  on 09.09.2013 at 04:35 P.M. and was discharged from the hospital on 23.09.2023. P.W. -6 Dr. Sangeeta Singh is dental surgeon, who examined the teeth injury of P.W.1, Ashok Kumar Pandey. P.W.7 -Constable Santosh Kumar Singh is author of chik F.I.R. P.W.-8 S.I. Krishan Lal is author of site plan of the place of incident. P.W.9- S.I. Ajay Kumar Rai is Investigating Officer, who filed charge-sheet in the case after investigation. The statements of the accused persons were recorded under Section 313 Cr.P.C. after conclusion of prosecution evidence, wherein they stated that the police challaned the accused and the informant under Section 107/16 Cr.P.C. in respect of the matter and other version of witnesses is wrong. The medical reports were prepared on exerting influence, and are wrong. The I.O. filed charge-sheet after investigation on the basis of wrong facts, the witnesses have deposed against them due to family enmity. In defence evidence D.W.-1 Shashikala wife of Chandra Bhusan and sister-in-law of the informant and accused persons and D.W. 2 Manoj, co -villager were produced. D.W. 2 is also a surety of accused persons.

4. Learned Sessions Judge passed impugned judgment after hearing submissions of learned counsel for accused persons and learned public prosecutor, wherein accused persons were convicted and sentenced as aforesaid. Learned trial court in impugned judgment has recorded verdict of guilt against accused appellants under Section 307/34, 325/34 and 326/34 I.P.C. and acquitted them of charge under Section 307 I.P.C. The accused appellants were enlarged on bail during trial, however, they were taken into custody on 22.03.2021 after passing of judgment of conviction and sentence. The appellants are held in jail custody since pronouncement of impugned judgment dated 22.03.2021.

5. Learned counsel for the appellants submitted that appellants have falsely implicated in the case. The prosecution evidence is shaky, there is significant variation in F.I.R. version and statement of P.W.1, the informant before the court during trial. The accused-appellants are acquitted of charge under Section 307 I.P.C. for which they were also tried along with other penal sections. All the witnesses of fact are interested witnesses being informant, his wife and his son. The accused and informant are real brothers. The accused are falsely implicated in the case due to family dispute. The real story is that son of the informant was living with the appellants at his native village in connection with his studies whereas informant and his wife were residing in city of Varanasi. Shivam Pandey, son of informant was receiving studies at a local school and was residing with appellant No. 1 and he misbehaved with daughter of appellant No. 1 and on 08.09.2013, the appellants called informant and his wife to make their son understand for not committing any misbehaviour with the daughter of the appellant No. 1, on that account, the informant started quarrelling with appellants then police came and took the appellants and informant to police station and challaned them under Section 107/16 Cr.P.C. This fact is even admitted by the informant in his statement under Section 161 Cr.P.C. and even other prosecution witnesses also supported this and thereafter no incident ever took place. The prosecution story as alleged is completely concocted and manufactured just to falsely implicate the appellants. The statements and deposition available on record did not corroborate the prosecution case, hence, no case is made out against the appellants. The learned trial court has convicted and sentenced the appellants in arbitrary and unjust manner and the impugned judgment is against the date of evidence on record. The appellants are not having any prior criminal history.

6. Per contra, learned A.G.A. as submitted that there is no factual or legal error in the impugned judgment passed by learned court below. In this case, the informant and his wife suffered grievous injuries by assault given by accused-appellants. P.W.1, the informant lost his teeth due to assault given by accused persons in the incident and his wife Savita Pandey P.W.2 received burn injuries as kerosene oil was poured on her by accused persons and set her ablaze. The injured Savita Pandey was rushed to S.S.P.G. Hospital, Varanasi by her husband, she received burn injuries to the extent of 20 per cent on her neck, chest, thighs and hidden parts of the body. There is no cogent reason to interfere in impugned judgment passed by learned court below which is based on evidence on record. The injury report of Ms. Savita Pandey (exhibit K-2) reveals that a medico-legal examination of the injuries was conducted on 09.09.2013 at 03:30 P.M. and at that time of examination, dermo-epidermal burn injury about 20 per cent on abdomen lower side, both thighs, below right breast on back side of neck was found. This injury is in nature of heat and flame and was referred to S.S.P.G. Hospital, Burn Centre for further management. The injury report of Ashok Kumar Pandey reveals that he was examined at P.H.C., Harhua, Varanasi on 12.09.2013 at 10:13 A.M. and on examination 4 teeths (two lower central incisors and two lower lateral incisors) were found missing from socket. The patient was referred to dental surgeon S.S.P.G. Hospital for X-ray and expert opinion. These injury reports of the injured Mrs. Savita and Ashok Kumar Pandey are marked as exhibit K-2 and K-3 respectively. P.W.6, Dr. Sangeeta Singh dental surgeon S.S.P.G.Hospital examined the teeth injuries of P.W.1 Ashok Kumar Pandey on 13.09.2013 and the report is marked as exhibit K-5. In this injury report, it is stated that on examination, 28 teeth were found in the socket, two teeth No. 21 and 12 were found missing, no  mark of injury on the outer and inner aspect of lip in relation to teeth No. 21 and 12 found. Gum injury was closed in relation to 21/12 sockets and of 21/12 are in healing process. The seat of teeth No. 21/12 referred for X-ray to see any bony injury.

7. On perusal of evidence on record, it appears that the written report addressed to S.S.P. Varanasi by informant on basis of which F.I.R. in the case was lodged is approved by the informant as during his evidence as exhibit K-1, he supported his F.I.R. version in his examination-in-chief. P.W.-1 has stated in his evidence that on 08.09.2013,  it was Sunday, that the incident occurred at around 10-11 hours on 08.09.2013, on that day accused Santosh Kumar Pandey, Vinod Kumar Pandey and Rahul Pandey son of Vinod Pandey assaulted him, his wife and Shivam Kumar by kicks, fists and having being assaulted by accused persons his lower teeth got broken and beaten his wife and son and also assaulted them by kicks and fists. The altercation took place on question of  making of the door in the room which was allotted to him in his ancestral family house. The accused persons opposed the move of his son who tired to fix the door in the room and they stated to him that there is nothing thereof him. He informed police on 100 dial. The police visited the place and brought him and accused persons Santosh Kumar Pandey and Vinod Kumar Pandey at police station and action was taken under Section 107/116 Cr.P.C. They were released on bail. On next day i.e. 09.09.2013 at 10:30 A.M. At 11:00 A.M. again accused persons altercated with him and abused him and assaulted him by kicks and fists, resulting in injury in his teeth and body, when his wife and son tried to save him Vinod Kumar Pandey poured kerosene oil on her person and asked Santosh to bring match box, Santosh brought match box and gave it to Vinod and asked him to burn her as it will end the dispute. Rahul Pandey grabbed hands of Savita Pandey from behind and Vinod Pandey ignited a stick of match box and threw it on Savita Pandey. She started burning and crying in pain. Ashok Kumar and his son extinguished the fire which engulfed his wife and took her to P.H.C. Harhua. She was referred to city hospital after medical examination. He admitted his wife in the burn unit of S.S.P.G. Hospital, the doctor asked for a copy of F.I.R., then he informed S.O. Badagaon, telephonically. The S.O. asked him to take medical report then action will be taken as till then the action under Section 107/116 Cr.P.C. is taken. He wrote an application on 09.09.2013 and submitted it before S.S.P. at his residence. He was confronted to the written report of 5B/2 which he stated to be authored by him as written report of the incident, on observing this he stated that he identified his signature thereon, but it was not scribed by him. This exhibit K-1 consisting of two page, which he has given to S.S.P. on 09.09.2013 is not written by him, when he visited the police station on 10.09.2013, the Constable Raghuvar Yadav got this application scribed and took his signature. He got his teeth examined and treated at P.H.C. Harhua and at S.S.P.G. Hospital on 12.09.2013 and 13.09.2013. His wife was under treatment as in-door patient in S.S.P.G. Hosptial, his son was not admitted as he received minor injury. He has identified the place where incident occurred. A copy of two pages application which he gave to S.S.P. is retained by him.

8. In his cross-examination, the witness stated that there is no dispute relating to partition between him and accused persons. A family dispute occurred on the date of incident, his brother accused Vinod Pandey resides in Varanasi. He got an NCR registered after the incident on 09.09.2013 at P.S. Badagaon. He was not present in the village at the first date of incident, on that date he was out in city, when his wife got burned, there was crowd in which he could identify the accused persons, his oldest brother Chandrabhusan was not present at that time, but his wife and children were present there. He was residing in Premchand Nagar Colony, Varanasi at the time of incident. He and his son took her wife at P.H.C. Harhua by Omni Van which he himself had brought. His wife received burn injuries from lower portion of breast to abdomen,  thighs and private parts  of body in lower extremities. He took his wife to S.S.P.G. Hospital from Harhua by Government Ambulance. He visited police station on 10.09.2013. He met S.S.P. at his residence in the evening on 09.09.2013. He resides in Varanasi since 1997, at the time of incident his son Shivam Pandey was residing in the village, he cook his food himself or took  his meal from Shashikala wife of Chandra Bhushan Pandey. He visited his village on the date of incident on telephone call of his wife. The maar peet occurred after his arrival, the accused started beating him in front of police, the accused persons had broken his teeth before police personnel and it started bleeding. Police took him and accused persons at police station after incident, the blood was coming from his mouth due to breaking of teeth. He was released out by orders of S.D.M. on that date, but he did not get himself medically examined. It also occurred on 09.09.2013 when his son was beaten and his wife was burned.

9. P.W. 2 Savita Pandey, the injured who is said to have received burn injuries has stated in her evidence that her husband lost his four teeth in the incident of 08.09.2013 when he was beaten up by accused-persons, she visited her village home on that day. But Santosh Pandey and his wife started abusing her. They gave beating to her son then she asked her son to bring his father, the police took his husband and accused persons along with them. On next day 09.09.2013, the accused persons again started abusing them which was objected by her husband and on day at around 10-11 hours, the accused persons assaulted her husband and abused in filthy language when she intervened, they also gave beating to her and thereafter Vinod Pandey poured kerosene oil on her person and asked Santosh Pandey to bring match-box, when Santosh Pandey brought match-box and asked Vinod Pandey to kill her by burning, Rahul Pandey son of Vinod Pandey caught her from behind and Vinod Pandey ignited a stick of match box and threw it on her person due to which she started burning, her son and husband extinguished fire.

10. P.W. 3 Shivam Pandey is son of P.W. 1 and P.W. 2 and the altercation between the accused persons and the injured occurred due to some prior issue arose between the accused persons and P.W.3. According to prosecution witnesses, the P.W. 3 was residing in ancestral home together with accused Santosh Kumar Pandey and his family in room and was studying in the a local school. On date of incident dated 08.09.2013, he asked accused Santosh Pandey to get the door of his room repaired in morning as to which, said accused got infuriated and stated to Shivam that he was not owning anything and he will not let him to get the door repaired. He informed this incident to her mother telephonically, who was residing in Varanasi city along with her husband and she visited the ancestral home at around 09:30 A.M. and her husband P.W. 1 Ashok Kumar also reached the village, after sometime. This is case of accused side that P.W. 3 Shivam Kumar Pandey, who was residing with Santosh Kumar Pandey committed some misbehaviour with the daughter of Santosh Pandey which resulted in altercation between him and family of accused Santosh Kumar Pandey and accused side informed his parents telephonically to which they reached in phases on that day and after arrival an alteraction took place between them and accused persons. P.W. 3 Shivam has stated that on 08.09.2023, he was studying in a local school in intermediate. While staying in his room in a village, its door got broken for which he requested his uncle Santosh Pandey to get it repaired, but he enraged over that and asked him to run away and that he own nothing there. Then he informed his mother telephonically, who arrived at around 09:30 A.M. there and on her arrival accused persons started abusing and beating her, then she informed his father telephonically and he rushed to the village from Varanasi and on way to village home, he informed police on dial 100, the police arrived on 08.09.2023 at around 10:30 A.M. which consisted of constable and accused persons began beating him before police persons and abused him in filthy languages. The police challaned his father and accused persons for breach of peace. His father came to the village at around 7 P.M. and accused Santosh Pandey again began threatening him. They spent the night at village home any how but on next day 09.09.2013, the accused persons again started altercation from morning. On that at around 11 A.M. all accused persons Santosh Pandey, Vinod Pandey and his son Rahul Pandey abused and threatened his father and mother and engaged in maar peet with them when he intervened, they also gave him beating to him by kicks and fists, when his mother tried to save them, his uncle Vinod poured kerosene oil on her and asked to bring match box, then his uncle Santosh gave him match box and asked him to set her ablaze as it would end all dispute. Then Vinod Pandey ignited the stick of match box and threw it to his mother which resulted in her burning. His father took her to P.H.C. Harhua after sometime and from there she was referred to S.S.P.G. Hospital. His father got his teeth broken by assault given by accused persons, his mother was admitted in burn unit in S.S.P.G. Hospital under care of Dr. Anil Pradhan. He received minor injuries in the incident. In cross-examination, he stated that he would took make his meal himself on gas, he started living in village two months prior to the incident, he took admission in Class-XI. He did not visit police station on 08.09.2013 and 09.09.2013, there are three young daughters of Santosh Pandey. He had got the door repaired by a carpenter, his father is five brothers. He denied the defence satisfaction that on 08.09.2013 in the morning, he misbehaved with Sonu Pandey the daughter of Santosh Kumar Pandey which resulted in dispute and he also denied the suggestion that no altercation took place on question of making the door. His father received injuries on 08.09.2013 and his teeth got broken on 09.09.2013. His father reached the village on four wheeler and by that vehicle they reached P.H.C. Harhua, his mother visited P.H.C. Harhua in the with the burn clothes worn by her at the time of incident. She was treated there for some while and referred to S.S.P.G. Hospital. He also denied defence suggestion that on 08.09.2013, his father had brought her mother to Pandeypur and got her treated there, she was not produced at P.H.C. Harhua. He also denied defence suggestion that his mother herself poured kerosene oil on her person to make story of burning with a view to implicate accused persons.

11. P.W. 4 Dr. Rahul Singh proved the injury report of Savita Pandey prepared by him on 09.09.2013 at P.H.C., Harhua as exhibit K-1 in which he stated that the said injuries might be have been caused within 24 hours. These injuries would have been caused due to pouring of kerosene oil and burning. The injured was shifted to burn unit after medico-legal examination. On 12.09.2013, he was posted as medical officer at P.H.C. Harhua, on that day Ashok Kumar Pandey appeared before him on 01:35 P.M, he conducted his medical examination wherein two teeth were found missing in lower jaw and he was referred to the dental surgeon at S.S.P.G. Hospital. He proved injury report of P.W.1 as exhibit K-3. In cross-examination, he stated that he did not remember as to whether Savita Pandey was wearing the burn clothes at the time, she appeared before him. He also did not remember that smell of kerosene oil was emanating from her clothes. He cannot say that such injuries can occur on pouring of kerosene oil on body. He rejected defence suggestion that the injured had poured kerosene oil on her person and mopped the open part by some cloth and left the covered part in the same clothes which looked as coarse injury. He also stated that he cannot tell that injuries of Ashok Pandey  can result from hitting a hard object on falling off a motorcycle.

12.	P.W.-5 Dr. Anil Kumar Pradhan stated that he had treated Savita Pandey, who was produced before him on 09.09.2013 at 04:35 P.M. She was admitted by E.M.O. in S.S.P.G. Hospital with 20 per cent injured condition in emergency. She was referred    from P.H.C. Harhua Varanasi. He was posted in the hospital as Plastic Surgeon. He treated the injured from 10.09.2023 to 23.09.2013. He produced Bed Head Ticket of S.P. and acknowledged his signature thereon which was  exhibited as K-4.
 
13.	P.W.-6 Dr. Sangeeta Singh Dental Surgeon stated that on 13.09.2013 at around 11:30 A.M, she examined Ashok Kumar Pandey son of Shivmurat Pandey. She found that 4 front teeth in lower jaw were missing but no mark of injury was found. The gums from where teeth were found missing were in process of healing. The patient was referred on 13.09.2013 to P.H.C. Harhua.
 
14.	P.W.-7 Constable Santosh Kumar  Singh proved chik F.I.R. dated 10.09.2013 as exhibit K-7 and stated that the F.I.R. was authored by his
 
colleague constable Raghuvar Yadav, he prepared G.D. entry of registration of case on that day.
 

15. P.W.-8 S.I. Krishan Lal Tripathi proved  site plan of the case as exhibit K-8. P.W. 8 S.I. Krishan Lal has stated that Santosh Pandey and Vinod Pandey were challaned under Section 151 Cr.P.C. on 08.09.2013. He neither found any broken teeth on Ashok Pandey at that time, nor he had seen any injury in his mouth. His clothes were not blood stained. He did not take into custody any clothes on that day. He stated that informant Ashok Pandey has stated that his altercation with accused persons occurred on that day due to altercation between the daughters of Santosh Pandey and his son Shivam Pandey and his brother Santosh Pandey telephoned him that he take his son from there and he will not keep him anymore. He also stated similar statement was given by Savita Pandey wife of the informant. He visited the site on 10.09.2013. Ashok Pandey has not given any complaint on 09.09.2013 at Police Station. Savita Pandey has stated to him that when his husband came to house on being released, the accused-persons engaged in maar peet with them and tried to kill her by pouring kerosene oil on her person and burning her.

16. P.W.-9 S.I. Ajay Kumar Rai has proved charge-sheet in the case being exhibit K-9. In cross-examination he stated that in F.I.R. and time of incident is mentioned as 08.09.2013 time 12:00 hours. However, the incident occurred between 11-12 hours. He recorded statement of Santosh Pandey at her residence Premchand Nagar Colony, Pandeypur. She stated that on 08.09.2013 Santosh Pandey telephoned him to come to the village and take her son along with her as he is engaged in maar peet and on this information he came to her village, Ahrak from Pandeypur, Varanasi. She also stated that when her husband came back to village home on being released on bail, she was lying insensible. Her husband took her to Deen Dyal Hospital in the night but doctor asked them to inform the police firstly and come after informing the police and then they visited P.H.C. Harhua next day. The informant Ashok Kumar Pandey also stated that in his statement that after being released from jail in the evening on 08.09.2013 when he reached home, he found his wife lying in the village home at night, he took her wife to D.D. Hospital  by arranging a vehicle from but doctor asked them to come after informing the police. He did not examine two constables Kailash and Jitendra, who visited the place of the incident on 08.09.2013 as both sides were challaned under 151 Cr.P.C. on 08.09.2013. The mother of accused and informant was living in the village house at that time.

17. D.W.-1-Shahsikala is wife of Chandrabushan, who is real brother of the accused and informant. This witness stated that Shivam Pandey son of Ashok Pandey came to study in the village and his meal was arranged by wife of Santosh Pandey. Shivam Pandey misbehaved with daughter of Santosh Pandey on 08.09.2013 then, Santosh Pandey telephoned Ashok Pandey to come and take care of his son. Ashok Pandey and his wife came to village after receiving the information and they started abusing the wife of Santosh Kumar Pandey, when Santosh Pandey reached the home from market, the altercation took place and a crowd gathered there. Accused Vinod informed the police on dial 100 and police visited  the spot, when police was present on the spot Ashok Pandey took his wife in the room of the witness and poured kerosene oil on which her daughter cried seeing this and when she came in the room,  she saw that Ashok Pandey was searching match box, she interdicted him and intervened. The police took Ashok Pandey, Santosh Pandey and Vinod Pandey to police station where they were challaned and came back to home in the evening. In cross-examination this witness stated that Ashok Pandey had poured kerosene oil of 2.5 ltr on his wife, his daughter Kusum Pandey had seen this and cried. Ashok Pandey did not reside in the village thereafter.

18. D.W.-2 Manoj Singh also stated that informant Ashok Pandey resided in Pandeypur Varanasi with his family, his son Shivam Pandey was residing in the village at the time of incident in connection with studies and he take meal at the place of Santosh Pandey. On 08.09.2013, Shivam spoke to the daughter of Santosh Pandey in objectionable manner. The witness is co-villager of the parties, he came to know that Ashok Pandey poured kerosene oil on his wife and was searching for a match box. Witness reached inside the house and stopped him. In cross-examination he stated that he took bail of the accused persons. Police took accused and the informant to police station on the date of incident at around 11-12 hours.

19. The attention of this Court was drawn by learned counsel for the appellants towards this fact that there is no consistency in the version of the informant and other witnesses of fact in their sworn testimony before the court and their version in their previous statements recorded by I.O. under Section 161 Cr.P.C., particularly, with regard to date and time of the incident which creates a doubt of truthfulness of prosecution version. Learned counsel submitted that in F.I.R., it is stated that incident occurred on 08.09.2013 at 12 hours, wherein the accused Santosh, Vinod and Rahul quarrelled with him in regard of land dispute and the accused persons had beaten him, resulting in breaking of his teeth and they also tried to burn his wife Savita Pandey by pouring kerosene oil on her person, the matter was reported to local police station, but no action has been taken. This written report bears date 09.09.2013 and F.I.R. was lodged on 10.09.2013 on orders of S.S.P. thereon passed on 09.09.2013. The witness Ashok Pandey and his wife Savita Pandey, injured, in their statements under Section 161 Cr.P.C. have stated that incident occurred on 08.09.2013 and there is no mention of the incident dated 09.09.2013, however in their statement before Court, the witness Ashok Kumar Pandey and Savita Pandey have stated that quarrel and maar-peet both took place on 08.09.2013 and on 09.09.2013 and on both occasions Ashok Pandey suffered injuries and ultimately he got his four teeth broken. In statement u/s 161 Cr.P.C., the witnesses have stated that Savita Pandey was attempted to be burned by accused persons on 08.09.2013 and in statement before Court, it is stated that she was attempted to be burned on 09.09.2013 at around 11 hours, if she was attempted to be burned on 08.09.2013, there was no occasion to produce her before doctor at P.H.C. Harhua on next day at 03:13 P.M, at around after delay of 24 hours. Similarly, if the witnesses Ashok Pandey got his teeth broken on 09.09.2013, there is no justification that why he got himself medically examined by the doctor on 12.09.2013. The burn injuries of Savita Pandey are found to be simple by doctor in her medico-legal examination dated 09.09.2013. The witnesses Ashok Kumar Pandey and Savita Pandey could not explain the contradiction in their sworn testimony before the Court from their previous statements recorded under Section 161 Cr.P.C. The I.O. in his statement before the court stated that he recorded the statement of concerned witnesses as stated by them to him. The alleged burn injuries of the injured person Savita Pandey are either manufactured or falsely shown in medico-legal examination report. This is a version of P.W.-1 that he himself informed the police on dial 100 and two constables visited the native place of the informant and accused persons on the date of incident dated 08.09.2013 and he was even assaulted by accused persons in the presence of police. If this fact would be true then, both side could not be challaned at the instance of those police persons. The prosecution failed to examine those two police constables, who would be independent witnesses to throw light on the genesis of the occurrence and sequence of events on that day.

20. So far as omission of certain particulars is F.I.R. is concerned, this fact has been considered by learned trial court in impugned judgment and a judgment of this Court in Radha Mohan Singh Vs. State of U.P. 2005 CRLJ 167 as cited by learned trial court wherein it is stated that the purpose of lodging an F.I.R. is to keep the police machinery in motion to investigate a cognizable offence. It is not an encyclopedia. Learned trial court has also considered the contention of learned counsel for the accused that in respect of incident dated 09.09.2013, no F.I.R. has been lodged and in F.I.R. the date of incident is shown as 08.09.2013 only.

21. Learned trial court has rightly observed that P.W.1 in his sworn testimony before the court has clarified the entire facts and circumstances due to which he had to file written report before S.S.P. as he was busy in treatment of his wife on that day and when he got some leisure, he moved the application for lodging the F.I.R. Learned trial court placed reliance on judgment of Hon'ble Supreme Court in Kartik Malhar Vs. State of Bihar 1996 SCC (Cri.) 1888, wherein it is held that conviction can be based on the testimony of a single witness and one credible witness is sufficient. Moreover, a close relative, who is a natural witness cannot be regarded as interested witness. The term "interested" postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason

22. Although, in F.I.R. the date of incident is only mentioned as 08.09.2013, but if the F.I.R. is read along with sworn testimony of the informant Ashok Kumar Pandey, it appears that in the F.I.R. the facts incident dated 08.09.2013 &09.09.2013, both are mentioned. All the three prosecution witnesses have been consistent on point that the quarrel took place on 08.09.2013 between accused and the witnesses Ashok Kumar Pandey and his wife Savita Pandey on account of some previous altercation between the accused persons and P.W.3-Shivam Pandey, who is son of P.W.1 and P.W.2 and was residing along with accused persons at the time of incident in connection with his studies in the portion of accused Santosh Kumar Pandey, who is his real uncle. There is some contradiction with regard to the fact as to who called P.W.1 and P.W. 2 on 08.09.2013 telephonically, which resulted in visit of P.W.1 and P.W.2 to the place of incident which is their native place. The witnesses have stated in their sworn testimony before the court that some dispute occurred between accused persons and their son Shivam Pandey with regard to repair of the door of the room where he was residing as when he tried to get the door repaired, the accused persons objected to this and engaged in abusing him and he informed his parents telephonically regarding this. The accused also stated to him that he was having nothing at his native place, whereas in statement under Section 161 Cr.P.C. of P.W.1 Ashok Pandey, it is stated that his brother Santosh Pandey (accused) had informed him telephonically that his son Shivam has quarrelled with his daughters and called him to come to the village and take his son as he would not keep him with him. P.W. 1 has disowned this statement when confronted during cross-examination which is shown at page 10 of his statement before the court. Similar is the position of P.W.2 Savita Pandey, who also disowned her statement u/s 161 Cr.P.C. that Santosh Pandey telephoned her to come and take back her son from there. P.W.1 and P.W.2 also disowned their statement u/s 161 Cr.P.C. that P.W.2 was taken to Deen Dyal Hospital, Varanasi in the night of 08.09.2013 but doctor did not attend her.

23. In my considered opinion, above contradiction is not of much importance and this is consistent version of P.W.1 and P.W.2 that they visited their native home where accused were residing on a telephone call, in the forenoon on 08.09.2013 and after their arrival at their house in the village, the accused persons started quarrelling with them and also assaulted them. P.W.1-Ashok Pandey and P.W.-2 Savita Pandey disowned their statement under Section 161 Cr.P.C. that Savita Pandey was burned by accused persons on 08.09.2013 and when her husband came back to home in the evening on that day on being released on bail in proceedings under Section 116(3) Cr.P.C., he took her to the Deen Dyal Hospital but doctor asked them to inform the police firstly and then come to the hospital as this was police case. They have stated in their statement before the court that Savita Pandey was attempted to be burned by accused persons on 09.09.2013 at around 10-11 hours and after the incident her husband took her to P.H.C. Harhua wherein her medico-legal examination was conducted and thereafter, she was referred to S.S.P.G. Hospital, Varanasi on that day where she was admitted and was discharged on 23.09.2013.

24. From perusal on record it also appears that Savita Pandey appeared before medical board constituted by C.M.O. on application of accused persons to examine her injuries and the members of medical board also found old scar on which burn injuries were found by the doctor, who conducted medico-legal examination of Savita Pandey on 09.09.2013. Therefore, the contention of learned counsel for the appellants that injuries of Savita Pandey were not manufactured is not cannot be circumscribed. According to medico-legal injury of Savita Pandey, she received dermo -epidermal burn injuries about 20 per cent on abdomen, lower side both thigh, below right breast, back side of neck. The injuries were simple in nature caused by heat and flame referred to S.S.P.G. Hospital for further management. P.W.5 Dr. Anil Kumar are proved the bed ticked and treatment papers of injured Savita Pandey proved her bed ticket as exhibit K-4 during his evidence, he stated that the patient was under his treatment at S.S.P.G. Hospital between 10.09.2013 to 23.09.2013 and was discharged on 23.09.2013. She was produced before E.M.O. at S.S.P.G. Hospital on 09.09.2013 at 04:35 P.M. and was admitted to hospital by E.M.O.

25. So far as the dental injury of P.W.1 Ashok Kumar Pandey is concerned his injury report has been proved by Dr. Sangeeta Singh Dental Surgeon of S.S.P.G. Hospital Varanasi as exhibit K-5, she stated that said injured appeared before her on 13.09.2013 at 11:30 at the time of medico-legal examination 4 teeth were found missing in lower part of mouth, the gums were closed and were in the process of healing from where teeth were missing, she also referred him for X-ray, she stated that gum injuries, were found in the process of healing might have been of 08.09.2013. The patient produced a reference slip before her issued from P.H.C. Harhua bearing date 12.09.2013 which shows that he got himself treated on 12.09.2013 at P.H.C. Harhua. P.W.1 has stated in cross-examination that he rushed to the village on being called by his wife, who visited the place on call of her son Shivam Pandey. The accused persons assaulted him in presence of police personnel to police constables and in which his four teeth got broken which resulted in losing of blood. The accused persons assaulted him by fists, they did not try to burn his wife at that time. When police took him to police station, his clothes were blood stained due to oozing of blood from his mouth, his wife received burn injuries in delicate and private parts of her body in that incident. P.W.2 Savita Pandey also stated in cross-examination that her husband got his tooth broken on 08.09.2013 on being assaulted by accused persons, she was attempted to be burned by accused persons on 09.09.2013 and not on 08.09.2013. The accused persons started quarrelling since morning of 09.09.2013 and were denying the share of the witnesses in ancestral property.

26. It appears that certain interpolations are made in the case diary with regard to date and time of incident mentioned in statement of witnesses of fact Ashok Pandey, Savita Pandey and Shivam Pandey, under Section 161 Cr.P.C. and on many places, the date of incident mentioned in the statement is changed by using whitener and at some places, it is changed from 09.09.2013 to 08.09.2013 by overwriting. Thus, in these circumstances, the sworn testimony of the witnesses before the Court gets reliance and contradictions pointed out from their previous statement by defense side loose its significance. Therefore, from perusal of record and considering submissions of learned counsels for both the sides, I find no infirmity, factual or legal error in finding of learned court below. The accused persons assaulted P.W.1 on 08.09.2013 and again assaulted him on 09.09.2013 in which he suffered grievous hurt in his teeth and this fact is corroborated by evidence of Dental Surgeon P.W.5-Dr. Sangeeta Singh as well as P.W.-4 Dr. Rahul Singh who were posted at P.H.C. Harhua on 09.09.2013 and 12.09.2013 as medical officer. Thus, doctor has categorically denied the suggestion of learned counsel or the defence that burn injuries of Savita Pandey to be manufactured.

27. The finding of learned trial court with regard to proof of burn injuries of Savita Pandey is also consistent with the evidence on record. However, this fact cannot be lost sight that in the present case learned trial court has committed legal error while convicting and sentencing the accused persons for charge under Section 326 I.P.C. as on basis of medico-legal injury report of injured Savita Pandey her injuries were found by the doctor who firstly examined her after the incident as simple, she remained hospitalized after suffering burn injuries from 09.09.2013 to 22.03.2013 and she was discharged from hospital on 23.09.2023, thus it cannot be held that she suffered any hurt which endangered her life or has caused her severe bodily pain was unable to follower her ordinary pursuits during period of 20 days. There is no allegation or evidence of permanent disfiguration of her head or on account of receiving any grievous hurt by an object of shooting stabbing or cutting or by means of fire or any heated substance. The burn injuries suffered by her are on portion of body which is usually covered by women. The provisions of Section 320 and 326 are being reproduced here to further clarify this point:

Section 320 in The Indian Penal Code

320. Grievous hurt.--The following kinds of hurt only are desig­nated as "grievous":--

(First) -- Emasculation.

(Secondly) --Permanent privation of the sight of either eye.

(Thirdly) -- Permanent privation of the hearing of either ear,

(Fourthly) --Privation of any member or joint.

(Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.

(Sixthly) -- Permanent disfiguration of the head or face.

(Seventhly) --Fracture or dislocation of a bone or tooth.

(Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

Section 326 in The Indian Penal Code

326. Voluntarily causing grievous hurt by dangerous weapons or means--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to re­ceive into the blood, or by means of any animal, shall be pun­ished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

28. Thus, when we examine above provisions in the light of facts of the case, we found that Section 326 I.P.C. is not made out in the present case as injured-Smt. Savita Pandey has not suffered grievous hurt at the instance of accused persons by means of fire or any heated substance. Therefore, instead of charge under Section 326 I.P.C. which is found to be proved by learned trial court, in fact, charge under Section 324 I.P.C. is made out in the case. Therefore, conviction of the appellants is liable to be converted from charge under Section 326 I.P.C. to 324 I.P.C. The accused persons were enlarged on bail during trial and are stated to be held in jail custody since 22.03.2023 from the date of their conviction and sentence in impugned judgment.

29. I find no factual or legal error in impugned judgment of court below with regard to finding of conviction and sentence awarded to accused persons with regard to charge under Sections 323/34 and 325/34 I.P.C.

30. Keeping in view the facts and circumstances of the case, the sentence of accused appellants Santosh Kumar Pandey and Vinod Kumar Pandey is modified in following manner:-

a. The conviction of appellants is modified from Section 326/34 to Section 324/34 I.P.C. and their sentence of ten years rigorous imprisonment is modified accordingly, to three years rigorous imprisonment, with a fine of Rs. 10,000/- each, with default stipulation as directed in impugned judgment.

b .  The conviction of accused persons for charge under Section 323/34 and 325/34 I.P.C. will remain intact, however, the sentence of seven years rigorous imprisonment for charge under Section 325/34 I.P.C. is modified to 2 years rigorous imprisonment and Rs. 5,000/- fine as awarded in impugned judgment, with default stipulation.

c. The conviction and sentence awarded for charge under Section 323/34 I.P.C. is also affirmed. All the sentences were directed to run concurrently.

31. Total amount of fine awarded against accused persons, which is Rs. 16,000/- to be payable by each of them, which total comes to Rs. 32,000/- out of this Rs. 25,000/- will be paid to P.W.2, the injured Smt. Savita Pandey, wife of Ashok Kumar Pandey and learned trial court will ensure compliance of this order. The period undergone by accused in jail custody during investigation, trial and conviction shall be set off from modified sentence awarded to the appellants in this appellate judgment.

32. In view of the foregoing discussions, present criminal appeal stands partly allowed.

33. Let a certified copy of this order be forwarded to learned trial court to ensure compliance and for information to jail authorities, for necessary compliance.

34. Let L.C.R. be sent back to the court concerned at the earliest.

Order Date: 03.08.2023.

Nitika Sri