Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Evidence Of Witnesses Cannot Be Brushed Aside On Petty Issues-appeal Dismissed.
JUDGEMENT TITLE : Ganesh And Another Vs. State Ofu.P. On 31/05/2012 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 1977 OF 1981.
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved
AFR

CRIMINAL APPEAL NO. 1977 OF 1981

Ganesh And Another ............. Appellant

Vs.

State Of U.P. .................... Opposite Party

Hon'ble Vinod Prasad J.
This Appeal Has Been Preferred By Two Real Sibling Brothers Ganesh And Dinesh Who Are Aggrieved By Their Conviction Under Section 307/34 IPC And Imposed Sentence Of 4 Years R.I. Therefore, Recorded By Ist Additional Session's Judge, Ballia, In S.T. No. 156 Of 1980, State Vs. Dinesh And Others, Relating To P.S. Maniar, District Ballia, Vide Impugned Judgment And Order Dated 29.8.81.
Prosecution Allegations Against The Appellants, As Are Perceptible From The F.I.R. And Testimonies Of Fact Witnesses During The Session's Trial, Stated Laconically, Indicate That On 27.6.1979 At 12 Noon, PW3 Rameshwar, His Son Pawan Kumar, P.W.1, With Two Labours Videshi And Banarasi, PW2,who Were Brothers, Were Tilling Their Land, In Their Village Hathauz, When The Two Appellants, Armed With Lathi And Spear (ballam), Approached Them And Forbade Them From Such Tilling. P.W.1 Pawan Kumar Refused To Abide By Their Threats By Stating That The Field Belonged To Them. On This, Appellant Dinesh Caught Hold Of P.W.1 From Behind And Another Appellant Ganesh Thrusted A Spear Blow In His Chest With An Intention To Annihilate Him. This Incident Was Witnessed By The Persons Present There Namely, Bideshi, Banarsi,PW2, And Informant Father Rameshwar P.W.3.
After The Incident, Injured And Informant P.W.1&3, Went To The Police Station Maniar, And Lodged Written FIR, Ext. Ka-1 Same Day At 3.20 P.m. Head Moharrir, Kalpa Nath Ram, Registered The Case By Preparing Chik FIR, Ext. Ka 6, And GD Entry Ext. Ka 7. On An Application Dated 28.6.79, Moved By The Injured Pawan Kumar, Crime Was Converted From 323/324 To 307 IPC By The Orders Of Chaman Lal, Superintendent Of Police, Ballia Vide Ext. Ka2. From The Police Station, Injured Was Dispatched For His Medical Examination To Maniar Hospital.
Dr. K.N. Dubey, M.O. PHC, Maniar, PW5, Had Examined The Injured On 27.6.1979 At 4 P.m. And Had Prepared His Medical Examination Report, Ext. Ka 8. Doctor Had Noted Following External Injuries On His Body:-

1. Incised Wound 2 Cm X 1 Cm X 1.2 Cm, 10 Cm Medial From The Right Nipple.
Patient Is Conscious, Responds To Question.
Opinion-Injury Kept Under Observation, Caused By Sharp And Pointed Weapon.
Duration-Fresh.

P.W.4 S.I. Shyama Prasad Singh Had Investigated The Case And On 3.7.1979, He Had Interrogated Injured In The Primary Health Centre And Had Seized And Sealed, His Blood Soaked Attire, Gamcha, Which Is Material Ext.1, And Seizure Memo In That Respect Is Ext. Ka.3. From The Primary Health Centre, I.O. Went To The Incident Scene In Village Hathauz, Where Informant P.W.3 Was Present. I.O. Firstly Interrogated Him And Recorded His Statement Under Section 161 Cr.P.C. And Thereafter Conducting Spot Inspection Prepared Site Plan Map Ext. Ka.4. Accused Persons Were Searched By The I.O. But They Could Not Be Apprehended. On 29.7.79, Witness Banarsi, PW2, Was Interrogated By The I.O. And Subsequently, On 4.8.1979, Accused Dinesh Was Arrested From The Village. On 19.9.79 Witness Bideshi Was Interrogated By The I.O., Who Concluding The Investigation, Charge-sheeted Appellants Accused, Vide Ext. Ka.5.
Charge-sheet Against Accused Appellants Resulted In Registration Of Case Against Them Before The Magistrate, Who Finding Their Crime Triable By Session's Court, Committed Their Case To Session's Court, U/s 309 Cr.P.C., After Observing Due Formalities U/s 207 Cr.P.C., Where It Was Registered As S.T. No. 156 Of 1980, State Vs. Dinesh And Another.
Learned Trial Judge Charged The Appellants With Crime U/s 307/34 I.P.C., Which Charge Was Denied By The Appellants, Who Claimed To Be Tried And Hence To Bring Home Their Guilt Successfully, Trial Procedure Commenced.
In It's Effort To Establish The Charge Against The Appellants, Prosecution Relied Upon Oral Testimonies Of Five Witnesses Out Of Whom Injured Pawan Kumar, P.W.1, Eye Witness Banarsi, P.W.2 And Informant Father Rameshwar Prasad, P.W.3, Were The Fact Witnesses. P.W.4 I.O. Shyama Prasad Singh, P.W.5 Dr. K.N. Dubey Were The Two Formal Witnesses. Besides Oral Testimonies Of The Aforesaid Witnesses, Prosecution Also Relied Upon Various Exhibits, Written FIR Ext Ka.1, Chik FIR, GD Entry, Medical Examination Report Of The Injured, Site Plan Map And Material Exhibit-1.
Learned Trial Judge After Looking To The Oral And Documentary Evidences Produced Before It, Vide Impugned Judgment And Order Dated 29.8.81, Concluded That The Prosecution Has Successfully Anointed Guilt Under Section 307/34 I.P.C. And Therefore, Convicted Both The Appellants For The Said Charge And Imposed Sentence Of 4 Years R.I. For That Crime, Which Conviction And Sentence Is Under Challenged In The Instant Appeal.
In The Aforesaid Background Facts, When The Appeal Was Called Out For Hearing, Nobody Appeared For The Appellants And Therefore, Sri Sriram Rawat, Learned Counsel Was Appointed As Amicus Curiae To Assist The Court In Disposal Of The Appeal, Which Was Pending Before This Court Since Last More Than Three Decades.
I Have Heard Sri Sriram Rawat, Learned Amicus Curiae In Support Of The Appeal And Sri Sangam Lal Kesherwani, Learned AGA For The Respondent State.
Learned Amicus Curiae Castigated Conviction Of The Appellants For The Primary Contention That Taking The Prosecution Case And The Evidences, Both And Oral And Documentary, As It Were Tendered Before Trial Court, Guilt Of The Appellants Will Not Travel Beyond The Scope Of Section 324 I.P.C. And Their Recorded Conviction Under Section 307 I.P.C. Is Unsustainable. Learned Counsel Supplemented Urged Submission By Pointing Out That Injury Sustained By The Injured Was Simple In Nature, And No Repetition Of Blow Was Given. No Supplementary Report Was Brought Forth By The Prosecution And Incident Had Occurred At The Spur Of The Moment Without Any Premeditation At A Petty Issue Of Tilling The Soil. It Was Further Contended That The Incised Wound Sustained By The Injured On The Right Nipple, Had Not Caused Any Internal Damage Nor There Is Any Evidence To That Effect. It Was Therefore, Submitted That There Was Total Absence Of Any Intention To Commit Murder, Which Is Sine Qua Non Ingredient For Making Out An Offence Under Section 307 I.P.C. Elaborating The Contention Further It Was Submitted That If The Appellant Intended To Cause Death Of Injured PW1, They Would Have Hurled A Much Forceful Thrust And Would Have Repeated The Blow. Second Accused Would Have Also Wielded His Weapon, Lathi Carried By Him. All Of A Sudden A Single Blow Was Given On The Chest With Mollified Force By Only One Accused And Therefore There Was No Evidence To Convict The Appellants U/s 307 IPC, Contended Learned Amicus Curie. Injury Report Of The Injured Indicate That He Was Conscious At All Point Of Time And Even The Doctor In His Deposition Had Not Stated That Injuries Sustained By The Injured Was Grievous In Nature And Dangerous To Life.
With Tongue In Cheek, Another Argument Was Also Raised That There Was An Enmity Between The Appellants And The Prosecution Side And Therefore, It Is A Case Of False Implication By Fabricating A Story But On This Second Urged Contention, Learned Amicus Curie, Did Not Harp Much.
Conversely, Learned AGA Supported Impugned Judgment By Submitting That It Is A Day Light Incident And Injury Sustained By The Injured Is Commensurate With The Prosecution Allegations And There Was No Animus For The Prosecution Witnesses To Implicate The Appellants In A Fabricated Version. Consequently It Suggested That Prosecution Has Successfully Anointed Appellant's Guilt. However, On The Question As To What Offence Is Established Against The Appellant, Learned AGA Expressed Agreement With Learned Amicus Curie.
I Have Considered The Arguments Raised By Both The Sides And Have Vetted Through The Evidences, Both Oral And Documentary, Existing On The Record. It Is Clear From The Prosecution Evidences That Both The Rival Factions Were Co-villagers And Incident Had Occurred Midday In The Month Of June In An Open Field Where The Injured Was Tilling The Soil Along With His Father P.W. 3 With Two Other Employed Laborers Banarasi (P.W. 2) And Videshi, Who Both Were Real Brothers Being Sons Of Jogi Dusadh. Banarasi (P.W. 2) Was An Independent Witness And Had Supported Prosecution Allegations On All It's Material Aspect. He Had No Animus Against The Appellants. He Was Subjected To Searching Cross Examinations But Defence Has Not Been Able To Dislodge Him From Main Substantum Of Prosecution Case. Injured And Informant, Albeit Related And Interested, Have Corroborated Each Other And PW2 Convincingly, Without Any Damaging Statement Diminishing Creditworthiness Of Their Depositions. Prior To The Incident, There Had Been No Such Significant Animus Between Them Compelling Prosecution Witnesses To Feign A Story Against Them. Presence Of All The Fact Witnesses At The Incident Scene Is Very Natural And Probable. No Suggestion Was Made To Them That They Were Not Present At The Spot And Therefore I Don't Find Any Reason To Disbelieve Them And Bracket Them As An Unreliable And Untruthful Witness. It Is A Case Of Single Blow, Which Would Not Have Lasted But For Few Seconds. Narration By The Fact Witnesses Is Natural And Confidence Inspiring. Medical Report Of The Injured Is Another Cementing Factor, Which Lend Credence To The Prosecution Story. Thus, So Far As Presence Of Appellants At The Scene Of The Incident And Assault Made By Them Is Concerned, Prosecution Has Successfully Proved These Charges And Resultantly, I Am Of The View That So Far As Conviction Of The Appellants Is Concerned, It Is Well Merited And Does Not Require Any Interference By This Court.
Turing To The Harangued Contention That Crime Committed By The Appellants Will Not Be One U/s 307 IPC, I Find That There Is Much Force In That Castigation. For Establishing Charge Of Attempt To Murder U/s 307 IPC What Has To Be Established, Clear Of All Doubts, That Accused Necessarily Possessed An Intention To Commit Murder. This Is Sine Qua Non Ingredient For That Offence And Absence Of It Will Catapult Accused Case Out Of It. Voluminous Judicial Pronouncements, Both By The Apex Court As Well As By This Court Has Firmly Laid Down Trite Law That Neither The Injury Nor It's Nature Is The Guiding Factor For Making Out Of An Offence U/s 307 IPC, But The Primary And Sole Criterion Is Intention To Commit Murder. Although Weapon Used, Site Of Injury Caused, Nature Of Injury, Circumstance Under Which It Is Caused, Attending Facts And Circumstances, All Are Relevant Factors To Determine Intention To Commit Murder But What Cannot Be Eschewed From Being Proved To The Hilt Is The Possessed Intention To Commit Murder. In This Respect, Reliance Can Be Placed On Various Apex Court Decisions, Some Of Which Are Cited Hereunder As Exemplars:-
In State Of M. P. V. Kashiram And Ors:AIR 2009 SC 1642 It Has Been Held By The Apex Court As Under:-
"10. It Is Sufficient To Justify A Conviction Under Section 307 If There Is Present An Intent Coupled With Some Overt Act In Execution Thereof. It Is Not Essential That Bodily Injury Capable Of Causing Death Should Have Been Inflicted. The Section Makes A Distinction Between The Act Of The Accused And Its Result, If Any. The Court Has To See Whether The Act, Irrespective Of Its Result, Was Done With The Intention Or Knowledge And Under Circumstances Mentioned In The Section. Therefore, An Accused Charged Under Section 307 IPC Cannot Be Acquitted Merely Because The Injuries Inflicted On The Victim Were In The Nature Of A Simple Hurt.
11. This Position Was Highlighted In State Of Maharashtra V. Balram Bama Patil And Ors. (1983 (2) SCC 28), Girija Shanker V. State Of Uttar Pradesh (2004 (3) SCC 793), R. Parkash V. State Of Karnataka (JT SC 348) And State Of Madhya Pradesh V. Saleem @ Chamaru And Anr. [2005 (5) SCC 554].
12. Whether There Was Intention To Kill Or Knowledge That Death Will Be Caused Is A Question Of Fact And Would Depend On The Facts Of A Given Case. The Circumstances That The Injury Inflicted By The Accused Was Simple Or Minor Will Not By Itself Rule Out Application Of Section 307 IPC. The Determinative Question Is Intention Or Knowledge, As The Case May Be, And Not Nature Of The Injury."
In State Of M.P. V. Imrat And Anr:AIR SC 2008 2967 It Has Been Laid Down By The Apex Court As Under:-
"11. It Is Sufficient To Justify A Conviction Under Section 307 If There Is Present An Intent Coupled With Some Overt Act In Execution Thereof. It Is Not Essential That Bodily Injury Capable Of Causing Death Should Have Been Inflicted. The Section Makes A Distinction Between The Act Of The Accused And Its Result, If Any. The Court Has To See Whether The Act, Irrespective Of Its Result, Was Done With The Intention Or Knowledge And Under Circumstances Mentioned In The Section. Therefore, An Accused Charged Under Section 307, IPC Cannot Be Acquitted Merely Because The Injuries Inflicted On The Victim Were In The Nature Of A Simple Hurt."
In Prakash Chandra Yadav V. State Of Bihar And Ors:AIR 2007 SC(Suppl) 488 It Has Been Held By The Apex Court As Under:-
"12. From A Bare Perusal Of The Said Provision, It Is Evident That First Part Thereof Does Not Contemplate That Receipt Of Any Injury On The Part Of The Victim Is A Pre-requisite For Convicting An Accused Thereunder. In The Event Injuries Are Received, The Second Part Of Section 307 Would Be Attracted. The Necessary Ingredients For Attracting The First Part Of Section 307 Of The Indian Penal Code Is Intention Or Knowledge. The Legal Position Would Be Evident From The Illustration (c) Appended To The Said Provision Which Reads As Under :
"(c) A, Intending To Murder Z, Buys A Gun And Loads It. A Has Not Yet Committed The Offence. A Fires The Gun At Z. He Has Committed The Offence Defined In This Section, And If By Such Firing He Wounds Z, He Is Liable To The Punishment Provided By The Latter Part Of The First Paragraph Of This Section."
Mr. V. Shekhar, Learned Senior Counsel Appearing On Behalf Of The Respondent Has Drawn Our Attention To A Decision Of This Court In Parsuram Pandey And Ors. V. State Of Bihar [(2004) 13 SCC 189] Wherein, Inter Alia, It Was Held : "To Constitute An Offence Under Section 307 Two Ingredients Of The Offence Must Be Present :
(a) An Intention Of Or Knowledge Relating To Commission Of Murder; And
(b) The Doing Of An Act Towards It.
For The Purpose Of Section 307 What Is Material Is The Intention Or The Knowledge And Not The Consequence Of The Actual Act Done For The Purpose Of Carrying Out The Intention. The Section Clearly Contemplates An Act Which Is Done With Intention Of Causing Death But Which Fails To Bring About The Intended Consequence On Account Of Intervening Circumstances. The Intention Or Knowledge Of The Accused Must Be Such As Is Necessary To Constitute Murder. In The Absence Of Intention Or Knowledge Which Is The Necessary Ingredient Of Section 307, There Can Be No Offence "of Attempt To Murder". Intent Which Is A State Of Mind Cannot Be Proved By Precise Direct Evidence, As A Fact It Can Only Be Detected Or Inferred From Other Factors. Some Of The Relevant Considerations May Be The Nature Of The Weapon Used, The Place Where Injuries Were Inflicted, The Nature Of The Injuries And The Circumstances In Which The Incident Took Place."
Applying The Reasonings Laid Down In By The Apex Court In The Instant Facts And Circumstances, It Is Seen That A Single Blow Was Given To The Injured At The Spur Of Moment. Incident Started Because Of Tilling Of Soil. There Was No Previous Enmity And None Of The Sides Had Any Animus Against Each Other. In Respect Of Possession Of Field, There Has Been No Litigation Between Both The Sides. The Doctor Had Nowhere Stated That The Injury Sustained By The Injured Was Grievous In Nature Or Dangerous To Life. If The Appellants Harbingered An Intention To Commit Murder, Ganesh Would Have Pierced The Spear Into The Chest Of The Injured With Such Force As Would Have Caused His Death, Which He Did Not Do. He Never Attempted A Second Blow Also. So Far As Dinesh Is Concerned, He Had Caught Hold Of The Injured By His Back. He Never Made Any Attempt To Assault Him With Lathi, Though He Had Carried It Along With Him. In Such A View, Looking To The Entire Facts And Circumstances And The Background In Which The Incident Had Occurred, It Does Not Seems That The Appellants Had An Intention To Commit Murder And, Therefore, Their Conviction Under Section 307 I.P.C. Is Indefensible And Has To Be Scored Out.Proven Guilt Of The Appellants Does Not Cross Boundary Of Section 324 I.P.C. And It Is Only For That Crime That The Appellants Can Be Convicted.
In The Net Result Conviction Of Appellants U/s 307/34 IPC Is Scored Out And Instead They Are Held Guilty And Convicted U/s 324/34 IPC.
Turning Towards The Sentence, It Is Noted That The Incident Had Occurred In 1981. Thirty One Years Have Gone By. A Single Blow Was Given At The Chest Of The Injured By One Of The Appellant Ganesh. Dinesh Had Not Caused Any Injury To The Injured Although He Had Caught Hold Of Him. Appellants Were Released On Bail On 4.9.81. They Had, Therefore, Remained In Jail For Near About Five Days. None Of The Two Appellants Had Got Any Criminal Proclivity Nor They Are Involved In Any Other Crime. They Both Are Real Sibling Brothers. After A Long Gap Of Thirty One Years, They Must Have Attained Quite An Old Age And Must Have Settled Down In Their Lives. Even During Intervening Period Of Thirty One Years, They Had Not Indulged Into Any Crime. Both The Sides Were Co-villagers And During Crime, Only Simple Hurt Was Caused And These Are Some Of The Mitigating And Mollifying Circumstances Favourable To The Appellants. In My Humble View, The Period Of Imprisonment Already Undergone By The Appellants With Fine Of Rs. 15,000/- On Each Of Them With A Compensation Of Rs. 20,000/- To The Victim Or His Family Members Will Serve The Ends Of Justice.
Appeal Is Allowed In Part. Conviction Of The Appellants Under Section 307 I.P.C. And Imposed Sentence Thereon Is Hereby Scored Out And Instead Appellants Are Convicted Under Section 324/34 I.P.C. And They Are Sentenced To The Period Of Imprisonment Already Undergone By Them With Fine Of Rs. 15,000/- On Each Of Them, Out Of Which Total Amount, Rs. 20,000/- As Compensation Is Awarded To Injured Pawan Kumar Or His Family Members. Appellants Are On Bail, They Need Not Surrender But Their Bail Bonds And Surety Bonds Shall Be Discharged Only After They Have Deposited The Fine Awarded Herein Above. They Are Allowed One Month Time To Deposit The Amount Of Fine From The Date Of Receipt Of Notice From Learned Trial Judge For The Said Purpose. If The Appellants Fails To Deposit Imposed Fine, Learned Trial Judge Will Cause Them To Be Arrested And Will Lodge Them In Jail To Serve Out Six Months Rigorous Imprisonment, As A Default Sentence. In Case Fine Is Deposited Within The Stipulated Period Of Time Allowed To Them, Learned Trial Judge Will Summon The Victim Or His Family Members And Shall Disburse The Compensation Awarded To Him Herein Above.
Let A Copy Of This Judgment Be Certified To The Trial Court For It's Intimation.
Dt.31.5.2012
Rk/Arvind/-






Hon'ble Vinod Prasad,J.
Sri Sriram Rawat, Learned Amicus Curiae Has Rendered Valuable Assistance In Deciding The Appeal, Which Was Pending Since Last Three Decades And, Therefore, He Is Directed To Be Paid Rs. 8,000/- As His Fees By The Office Of This Court.

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