Daya Ram And Ors.2 vs State Of U.P.
2023 Latest Caselaw 6485 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
(Lucknow)
 
***
 
RESERVED ON 2.9.2022
 
DELIVERED ON : 01.03.2023
 
Criminal Appeal No. 177 of 2002
 

 
Daya Ram and others     				         ...Appellants
 
		Through: Sri Ajit Kumar Singh, Advocate
 

 
vs.
 
State of U.P.             		                              ...Respondent
 
		Through:  Sri Pradeep Kumar Tripathi, learned 					counsel for the complainant and 					Additional Government Advocate
 

 

 
NARENDRA KUMAR JOHARI, J.

1. The present appeal has been filed by appellant Daya Ram and others under Section 374(2) of Cr.P.C. against the judgement and order dated 5.2.2002 passed by the Special/Additional District and Sessions Judge (E.C. Act) Hardoi in Sessions Trial No. 790 of 1997 (State Vs. Daya Ram and others) arising out of Case Crime No. 176 of 1994 under Sections 307/34 and 323/34 IPC, P.S. Pihani, District Hardoi by which the trial court has acquitted the accused persons Dayaram, Raju and Suresh from the charges of offence under Section 323/34 of IPC but convicted and sentenced them to undergo ten years Rigorous Imprisonment each for the offence under Sections 307/34 IPC.

2. Filtering out unnecessary details, the prosecution case in brief is that on 7.8.1994 the informant, Ramautar had ploughed the field of Dayaram on rent and his payment of labour charge was due. On 9.8.1994 when the informant, Ramautar had gone to Dayaram for the demand of his due labour charge, Dayaram refused to pay the same, consequently, an altercation took place between them. On the same date, i.e. on 9.8.1994 when informant Ramautar along with his brother Parsuram was grazing his animals on field, at about 3:30 PM ,accused persons Daya Ram, Raju and Suresh reached there. They were having the weapons 'kanta', stick (lathi), 'tamancha' (country made pistol) in their hands and by abusing the brother of informant, they attacked on him by stick (lathi) and 'kanta'. On hue and cry, the witnesses Naresh and Vinod who were working in their nearby fields exhorting the attackers ran towards the place of occurrence. Seeing them, the accused persons Dayaram, Raju and Suresh firing with country made pistol, fled towards east. Parsuram had received serious injuries in the occurrence. The informant, Ramautar gave a written information of the occurrence in the police station concerned on 9.8.1994 at 18:20 PM.

3. On the basis of above written application, the first information report of the occurrence under Sections 323, 504 and 307 IPC was lodged by the police station concerned against the accused persons vide Crime No. 176 of 1994. The injured Parsuram and Ramautar were medically examined at P.S. Pihani. The X-ray of injured Parsuram was conducted at District Hospital, Hardoi.

4. The investigating officer, after conclusion of investigation, submitted the charge sheet against accused persons Daya Ram, Raju and Suresh under Sections 307, 323, 325 and 504 IPC.

5. Learned Trial Court after committal of the case framed charges under Sections 307 read with Section 34, 323 read with Section 34 IPC against accused persons who abjured and denied the charges, pleaded not guilty and requested for trial.

6. In the trial, on behalf of prosecution, statements of witnesses Parsuram as PW-1, Naresh as PW-2, Vinod as PW-3, Dr. S.C. Rastogi as PW-4, Dr. O.N. Srivastava as PW-5, Head Constable Tirthraj Yadav as PW-6, Sudhakar Mishara as PW-7 and Ramautar as PW-8 were recorded.

7. After completion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. in which they denied the prosecution case and stated that they have been falsely implicated in the case by informent due to previous enmity. The evidence is false.

8. Learned Trial Court after hearing the argument and considering all the evidence on record, convicted the accused persons Daya Ram, Raju and Suresh under Sections 307 read with Section 34 IPC and sentenced them accordingly. Against the said conviction and sentence order, accused-appellants preferred the present appeal.

9. It has been argued by learned counsel for appellants that learned Trial Court has materially erred in convicting the accused persons for the offence under Section 307 read with Section 34 IPC. The prosecution story is highly doubtful. There were substantial discrepancies in the evidence of prosecution. The witness PW-8, Ramautar who was the informant of the case and the alleged eye witness PW-3 Vinod, had not supported the prosecution case in his evidence. The medical evidence available on record does not support the ingredients of charge under Section 307 and Section 34 IPC and at the most the offence may fall under the definition of Section 324 IPC only. On the basis of evidence, of prosecution witnesses, intention to kill was conspicuously missing which is sine qua non of charge under Section 307 IPC. The proof of intention or knowledge to kill and any overt acts of appellant was absolutely missing but learned Trial Court has wrongly convicted and sentenced the accused persons under Section 307 IPC, hence, the judgment of learned Trial Court is liable to be set aside and the instant appeal deserves to be allowed. In support of his argument, learned counsel for the appellants has placed reliance on the judgments of Apex Court in the case of Neelam Bahal and another Vs. State of Uttarakhand (2010) 2 SCC 229; Purushottam Pandey Vs. State of U.P. (Criminal Appeal No. 210 of 1997 decided by this Court on 6.10.2016); Ram Kumar @ Kunwarey and 2 Ors. Vs. State of U.P. (Criminal Appeal No. 1085 of 2004 decided by this Court on 25.4.2019) and Vivek Kumar Tiwari @ Ashu and Another Vs. State of U.P. (Criminal Appeal No. 908 of 2016 decided by this Court on 6.10.2016.

10. Per contra, learned AGA has submitted that although the witnesses PW-8 and PW-3 had not supported the prosecution case and were declared as hostile even then the witness PW-1, who was injured in the occurrence, has supported the prosecution version. The statement of witness PW-1 is also gets support by the statement of witness PW-3, Vinod. The injury of Parsuram has been proved by his medical examination report as well as evidences of witnesses PW-4 and PW-5. It is not necessary for offence under Section 307 IPC, that injury should be on vital part of the body, if the accused person had attacked on victim with intention and knowledge to kill and the victim receives injuries on the non vital part of his body even then the offence of Section 307 IPC be made out. Learned Trial Court had rightly convicted and sentenced the accused persons under the charge of offence under Section 307 read with Section 34 IPC. On the above score, the appeal has no force and is liable to be dismissed. In support of his argument, learned AGA has placed reliance on the judgment of Hon'ble Apex Court in the case of Vineet Mahajan Vs. State of Punjab and others (2017) 14 SCC 803.

11. I have heard the arguments of learned counsel for the appellants, learned AGA and perused the record thoroughly.

12. Witness PW-1 Parsuram was an injured witness who had received the injuries in the occurrence. Soon after the occurrence, he was medically examined by the Incharge Medical Officer, Primary Health Centre, Pihani on 9.8.1994. The medical examination report indicates that the injured had received the following injuries:

1. Lacerated wound 8.5CM x 2 CM x scalp deep right side of head which was of 2.5CM right from the corners of right eyes. Margins were irregular and the blood was flowing.

2. Lacerated wound 3CM x 0.5CM x scalp deep on right side of the head which was above 2.5 CM from the injury no. 1.

3. Lacerated wound 1CM x 0.5CM x scalp deep on head region 2.5 CM above to the injury no. 2.

4. Lacerated wound 3CM x 0.5CM x cartilage deep towards right ear. The margins were irregular and colour was red.

5. Abrasion 6CM x 0.5 CM on the backside of neck.

6. Lacerated wound 3CM x 1.5 CM x bone deep at left wrist.

7. Lacerated wound 5CM x 2.5 CM x bone deep on left wrist.

13. The witness PW-4 Dr. S.C. Rastogi who is radiologist has stated that in X-ray no bone was fractured in the head region of injured Parsuram but ulna bone of the left wrist was found fractured. The injuries of injured Parsuram were not fatal for his life. There was no injury on the vital part of his body also. The witness PW-5 Dr. O.N. Srivastava has stated in his evidence that the injuries of Parsuram would have been caused possibly by its 'lathi'. The injuries cannot be caused by any sharp weapon.

14. The witness PW-1 who has reiterated the FIR version in his examination-in-chief. He further stated that the accused Suresh had opened fire on him but he did not receive any injury of firearm. He further stated that accused Daya Ram hit him by 'kanta' and Raju by stick(lathi). As he received the injuries, he shouted for help then the witnesses Naresh and Vinod reached on the spot by exhorting the accused persons, thereafter the accused Suresh fired a shot by his country made pistol and the accused persons fled away.

15. The witness PW-3, Vinod had stated in his evidence that at the time of occurrence he was working in his field which was 6-7 fields away from the place of occurrence. In his presence all the accused persons attacked on Parsuram and Ramautar. Accused Daya Ram was having 'kanta', Raju was having stick(lathi) and Suresh was having 'tamancha' (Country made Pistol) in their hands. As the witness reached on spot, he saw that the injured Parsuram and Ramautar were being beaten by the accused persons. After committing the offence, when the accused persons were going from the place of occurrence, accused Suresh opened fire by his 'tamancha'. The witness PW 3 further stated on oath that before his arrival at the place of occurrence, the incident had taken place prior to 5-10 minutes approximately. When Parsuram fell down, the accused persons did not attack on him. He stayed at the place of occurrence for 10 to 15 minutes and when the other family members of the injured reached on the spot, he went police station along with informant and injured.

16. Apart from that, the other witnesses of fact PW-2 and PW-8 have not supported the prosecution case in their evidences. Rest of the prosecution witnesses are formal witnesses.

17. As far as the discrepancies in the evidences of witnesses and prosecution case are concerned, the informant had stated in FIR that on 9.8.1994 he had gone to Daya Ram demanding his labour charges. He had not mentioned in the FIR that, at that time, his brother Parsuram had also accompanied him whereas the witness PW-1 in his cross examination has stated that he had also gone with Ramautar to demand labour charges from Daya Ram. The informant had further mentioned in the FIR that the accused persons attacked on his brother Parsuram by stick(lathi) and 'kanta' ('Kanta' is a sharp edged weapon). The informant has not mentioned anywhere in his FIR that the accused Suresh had opened fire on injured Parsuram but in his evidence PW-1 had stated that accused Suresh opened fire on him although he did not receive the injury of firearm. The witness PW-3 has also stated in his evidence that Parsuram had not received any injury of firearm, whereas in the FIR, it has been mentioned that when the witnesses after hearing the voice of help of injured persons reached on spot by exhorting, the accused persons fled towards east and they had also opened fire. This fact has also been mentioned by witness PW-3 but in investigation no pellets or empty cartridges have been recovered from the place of occurrence even in medical examination, no injury of any firearm had been found on the body of injured Parsuram or informant Ramautar. During investigation, no firearm has been recovered from the possession of the accused also, therefore, it cannot be proved that accused Suresh had attacked on injured Parsuram by firearm.

18. It has been mentioned in FIR that the accused persons attacked on Parsuram by 'lathi' and 'kanta'. Witness PW-1 had stated in his evidence that Dayaram attacked on him by 'kanta' and Raju by 'lathi'. Contrary to the same, witness PW-3 had not mentioned in his evidence that any accused had attacked on injured Parsuram by 'kanta'. No injury of 'kanta' has been found in medical examination of injured persons. The Doctor had opined that the injured Parsuram would have received injuries by 'lathi' attack. No recovery of 'kanta' has been made by investigating officer on the possession/pointing out of the accused persons, therefore, it cannot be proved that the accused persons had attacked on victim Parsuram by 'kanta'.

19. The question arises for consideration is whether the act of the appellants fall within the ambit of Section 307 of IPC?

The provisions of Section 307 of IPC reads as under:

"307.Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts by life convicts.--When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. "

20. To justify the conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injuries actually caused may often give considerable assistance in coming to a finding that as to the intention of accused, such intention may also be deduced from other circumstances, may even, in some cases, be ascertained without any reference to all actual injuries. The section prescribed, makes a difference and distinction between an act of 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. The Court is aware that it is not necessary that injury actually caused to the victim of assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whatever the act irrespective of its result was done with an intention or knowledge and under circumstances mentioned in this Section. It is suffice in law, if there is presence of an intent coupled with some overt act in execution thereof as has been laid down in the case of State of Maharashtra Vs. Balram Bama Patil and others (1983) AIR SC 305.

21. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not fall under Section 307 IPC. It would all depend upon the facts of a given case but intention has definitely be considered.

22. In the present case, although in FIR, it has been mentioned that accused persons were carrying deadly weapons in their hands but the use of 'kanta' and 'tamancha' (countrymade pistol) to assault victim/injured Parsuram has not been proved. The injuries, which have been sustained by the injured Parsuram, have been caused by use of stick(lathi) only, as it has been mentioned in medical examination report and oral evidences of PW-4 and PW-5. Witness PW-3 had stated that when injured Parsuram fell down after receiving attack of 'lathi', the accused persons did not attack on him further. In the FIR as well as in evidences of PW-1 and PW-3, it has been mentioned that after hearing the voice of crying of injured persons, as the witnesses reached on place of occurrence, the accused persons fled away by opening fire, therefore, the presence of firearm with accused persons has been proved but it appears that the accused persons had used the firearm only to cause fear and threat to the public while they intended to flee from the place of occurrence. This fact has not been mentioned in the FIR that accused Suresh would have fired on injured with intention to kill. Witness PW-3 also not stated in his evidence that accused Suresh had opened fire on injured Parsuram. Although injured witness PW-1 had stated that accused Suresh fired on him by his 'tamancha' with intention to kill him but in absence of any corroborative evidence, this part of statement of PW-1 cannot be relied upon, therefore, taking into consideration the above fact and evidence including injury report of injured Parsuram, it can be inferred that the injuries, sustained by Parsuram, had been caused by 'lathi' only that too are not on vital part of his body. The accused persons were having 'kanta' and 'tamancha'(countrymade pistol) with them but they did not use the same while they were intending to attack on injured Parsuram. In absence of any evidence contrary to it, it can be concluded that accused persons were not having any intention to kill the victim Parsuram.

23. The accused persons accumulated on place of occurrence and attacked on injured Parsuram as well as Ramautar. Witness PW-3 Ramautar had stated that the accused person did not attack on him but witness PW-5 has stated that injured Ramautar was having an injury of abrasion of 1.5CM x 0.5CM on right side of his chest. The witness PW 5 had further stated that the injured Ramautar was examined by him on 9.8.1994 who was brought by the same constable along with injured Parsuram in Primary Health Centre, Pihani. Although the witnesses PW-1 and PW3 had stated in their evidences that accused persons had attacked on Ramautar also but in FIR the informant Ramautar has specifically stated that accused persons had attacked and beaten to his brother Parsuram only.

24. Taking into consideration the content of FIR as well as evidence of PW-8, it can be concluded that the prosecution could not prove the fact that accused persons had attacked on informant Ramautar also.

25. The weapon which has been used in occurrence was 'lathi'. Sometime the attack by 'lathi' may cause death of victim, when used as dangerous weapon. It has been proved by the evidence of PW-5 that injured Parsuram was having fracture of ulna bone at distal end. No contrary evidence has been submitted by the appellants. According to Section 320 IPC, fracture or dislocation of bone comes under the definition of grievous hurt, therefore, it can be concluded that accused persons, who attacked on injured Parsuram with their common intention, have committed the offence under Section 326 IPC. Accordingly, the prosecution has succeeded to prove the charge of offence under Section 326 read with Section 34 IPC against accused-appellants.

26. Having regard to the above facts, circumstances and evidence of the case, it appears that the learned Trial Court misled itself in assessing the injuries of injured Parsuram as well as gathering the intention of accused persons, hence, the conviction under Section 307 IPC read with Section 34 IPC is altered under Section 326 read with Section 34 IPC.

27. Learned counsel for the appellants submitted that accused appellants have no criminal history in their credit. Approximately 29 years have gone by from the date of occurrence. At present the appellants are old persons and suffering from ailments of old age. No fruitful purpose will be served if the appellants will be sent jail again, their sentence be reduced to the sentence of imprisonment already undergone by appellants.

28. The provisions of Cr.P.C. has not given any straitjacket formula for sentencing. According to law laid down by the Hon'ble Apex Court and High Courts, the sentence for the offence depends on so many factors like circumstances for commission of crime, character, antecedents of offenders, use of weapon, mode of crime, mental status and the age of offender. The socio economic condition also plays a vital role.

29. I have considered the argument advanced by the learned counsel for the appellants and taking into consideration the fact that the offence pertains to the year 1994, accordingly, approximately 28 years have gone by. The appellants are old persons and having ailments related with their age. The appellants no.1 and 2 had undergone for the period of approximately one and half month and appellant no. 3 had undergone for four months. According to the learned counsel for the appellants, appellants realized a regret to their mistake and are remorseful of their conduct to the society to which they belong. They have feeling of transformation in themselves and they are also ready to pay some compensation to the victim/complainant or his legal representative.

30. As argued, appellants have no criminal antecedents to their credit. No fruitful purpose will be served to send them in jail again after a long gap of time. The object of sentence is reformative. Therefore, in the opinion of the Court, the appellants should be given a chance to reform themselves, hence, taking into consideration that the accused/appellants have been found guilty under Section 326 read with Section 34 IPC, the sentence is modified to the period already undergone.

31. As the Court is taking a lenient view by reducing the sentence as undergone, therefore, it will be just and proper to award an appropriate compensation for the victim also.

32. Accordingly, appellants, within two months from today, will deposit Rs. 10,000/- each as compensation before the trial court. The trial court will disburse the aforesaid amount of compensation to the victim Parsuram. If it is found that victim is not alive, the said compensation amount be paid to his legal successor.

33. It is made clear that if the aforesaid amount of compensation is not deposited by the appellants as directed above, the trial court will recover the aforesaid amount from appellants in accordance with law.

34. Accordingly, the appeal is allowed partly.

35. Office is directed to send the copy of this order along with the record of the case to the court concerned for compliance.

(Narendra Kumar Johari, J.)

Lucknow:

March 1st, 2023

Amit/ML

Whether the order is speaking:- Yes/No

Whether the order is reportable:- Yes/No