Ramesh Sinha, J.@mdashHeard Sri Rajeev Gupta and Sri A.B. Maurya, learned counsel for appellant and Sri R.K. Maurya, learned A.G.A. appearing for the State.
2. The present appeal has been filed against the judgment and order dated 12.2.1982 and 15.2.1982 respectively passed by Additional Sessions Judge VI, District Bareilly in Sessions Trial No. 108 of 1981, State v. Khoobi and three others by which the appellant No. 1 Khoobi has been convicted and sentenced u/s 304. Part-I read with Section 34, I.P.C. and sentenced to undergo rigorous imprisonment for a term of seven years and the appellant Nos. 2 to 4 namely Tota Ram, Om Prakash and Nathu have been convicted and sentenced u/s 304, Part-I read with Section 34, I.P.C. to undergo rigorous imprisonment for a term of five years each and further directed that the appellants Khoobi, Totaram. Om Prakash and Nathu, each of them shall undergo rigorous imprisonment for a term of one year u/s 323 read with Section 34 of the I.P.C. All the sentences were ordered to run concurrently.
3. Brief facts of the case are that on 31.3.1980 at 1:00 p.m. in the village Pastore a he goat of the complainant Lakhan entered in the house of Sohan Lal and caused some damage inside. This invited a protest from Sohan Lal and he asked the complainant''s brother Mullu to tie the he-goat so that it may not further cause damage. Mullu tied the he-goat accordingly. The accused Khoobi who was standing nearby remarked that "In Salon ka dimag kharab ho gaya hai agar hamara is pirkar nuksan hota to main inhen jaan se mardeta". The complainant Lakhan did not relish this remark and retorted back that why you should have killed us when no damage was done at your place. Thereupon the accused Khoobi called his brothers Tota Ram and Om Prakash accused and his son Nathu accused and began to beat the complainant. The accused Khoobi had a moongri (a wooden club) and the remaining accused had lathis. The complainant''s brother Mullu and his son Pitam tried to save the complainant but they were also subjected to the fury of the accused and received serious injuries by lathis. The complainant and his son Pitam also defended themselves by lathis. This occurrence was seen by one Mullu s/o Mewa Ram and some women of the neighbouring house who collected there. The accused retreated to their verandah. The complainant Lakhan took Mullu and Pitam in an injured condition in a Tempo to P.S. Quila, Bareilly and lodged a F.I.R. at 2 : 10 p.m. The complainant Lakhan, his brother Mullu and his son Pitam were sent to the District Hospital, Bareilly for medical examination and treatment. The condition of Mullu was serious and he was almost unconscious. He succumbed to his injuries in the night.
4. Initially a non-cognizable report of the incident was lodged u/s 323/506, I.P.C. but after the death of Mullu the case was converted u/s 304/323, I.P.C. and investigation started. After postmortem examination of the dead body of Mullu and completion of investigation the charge-sheet was submitted against the above named four accused were sent up u/s 304/323, I.P.C. before the committing Magistrate who committed them to the Court of Sessions.
5. The injuries received by the three injured persons are as follows:
Mullu Ram aged about 30 years s/o Sri Khanjan Ram r/o Pastore P.S. Quila Bareilly at 2:00 p.m. on 31.3.80 at Distt. Hospital. Bareilly Ex. Ka-8:
(i) Lacerated wound 6 cm. x 1 cm. x scalp deep on the Rt. side of head 6 cm. above the pinna of Rt. ear (Adv. X-ray).
(ii) Lacerated wound 5.5. cm. x 1 cm. x scalp deep on the left side of head 5 cm. above the left eyebrow (Adv. X-ray).
(iii) Lacerated wound 3 cm. x 0.5 cm. x scalp deep 3 cm. X 0.5 cm. x scalp deep 3 cm. behind injury No. 1.
All the injuries U.O. Adv. X-Ray. Caused blunt weapon. Duration is fresh (G.C. Poor unconscious. Admitted in E.W.)
The injury report of Pitam Lal P.W. 2 is Ex. Ka-9 and it indicates three injuries on his person including the following injury:
(i) Lacerated wound 4 cm. x 0.5 cm. x scalp deep on the left side head 6 cm. above the left ear. X-Ray was also advised for this injury.
The complainant Lakhan Lal P.W. 1 received three head injuries on his person vide injury report Ex. Ka-10, these injuries are as follows:
(i) Lacerated wound 3 cm. x 1 cm. x scalp deep on the right side head 7 cm. above the right eye brow (X-Ray advised).
(ii) Lacerated wound 4 cm. x 1 cm. x scalp deep on the left eye brow. (Advised X-Ray).
Lacerated wound 4.5. cm. x 1 cm. x scalp deep on the left side head 9.5 cm. above the left ear. (Advised X-Ray).
The injured Mullu died on the same day the postmortem examination was conducted on 1.4.1980 at 4 :30 p.m. by Dr. S.K. Jain P.W.7. The ante-mortem injuries found on the dead body of deceased are as under:
(i) Stitched wound (Lacerated wound) 4 cm. x 0.5 cm. x skull deep on Rt. side head 6 cm. above Rt. ear...... (paper torn) stitches present. Underneath bone fractured.
(ii) Lacerated wound stitched 5.5. cm. x 0.5 cm..... (P-T.) 2 stitches present on left side head 5 cm. above eye brow, scalp deep underneath bone fractured.
(iii) Stitched wound (lacerated 3 cm. x 0-5 cm. x scalp deep on the Rt. side back of head 4 cm. behind inj. No. 1. Underneath bone fractured.
(iv) Contusion 6 cm. x 4 cm. on dorsum of Rt. hand.
In the opinion of the Doctor the cause of death is coma due to head injury.
The accused Khoobi, his wife Smt. Bhama, his brother Om Prakash and his son Nathu Lal also received injuries vide injury reports Ex. Kha-5 to Kha-8 respectively. According to these reports Khoobi received one head injury which is described below:
(i) Lacerated wound 5 cm. x 1 cm. x scalp deep on the left side head 5 cm. above middle and of left eye brow. Advised X-Ray. The other injuries of Khoobi are on various other parts of the body.
The accused Om Prakash received one lacerated wound and one abrasion vide injury report Ex. Kha-6. The lacerated wound is described below:
(i) Lacerated wound 2.5 cm. x 0.5 cm. x scalp deep on the right side head 13 cm. above the right ear. Advised X-Ray.
The injury report Ex. Kha-7 of Smt. Bhama indicates 5 injuries on various parts of the body except head.
The injury report of Nathu Lal accused Ex. Kha-8 indicates two contusions and one of them is 3 cm. x 2.5 cm. outer left side of head 7 cm. above the left ear.
6. The trial court framed charges against the appellants u/s 302 read with Section 34. I.P.C. and 323 read with Section 34, I.P.C. All these accused pleaded not guilty and claimed trial.
7. The prosecution to prove its case examined P.W. 1 Lakhan Lal (injured), P.W. 2 Pitam (injured), P.W. 3 Sohan Lal, P.W. 4 S.I. Jai Prakash Gupta, Police Lines, Bareilly, P.W. 5 Constable No. 16 Rajbeer Singh, P.S. Quila, District Bareilly, P.W. 6 Dr. M.K. Gupta, Supdt. Upgraded, P.H.C. Sambhal, District Moradabad and P.W. 7 Dr. S.K. Jain, Medical Officer, District Hospital, Bareilly.
8. After completion of the prosecution evidence all the four accused named above were examined u/s 313, Cr.P.C. All the accused denied the prosecution allegations and the circumstances appearing against them in prosecution evidence and stated to have been implicated on account of enmity with the help of interested and prosecution witness. The accused Khoobi gave a detailed statement before the Court as well as filed a written statement which is on record. The contention of this accused is that he has got an old house near the house of Lakhan complainant and Lakhan wanted to purchase that house on account of paucity of accommodation. Since this accused was not willing to sell his house as desired by Lakhan there was a enmity existing between them. In this background on 31.3.1980 at 1 p.m. when this accused and his family were in their old house the complainant Lakhan and his brother Chinti, Lalta Prasad and Mullu as well as Dhakan were fighting and abusing amongst themselves on the paucity of accommodation. These persons also accosted this accused for not selling his house to them. He asked them not to abuse whereupon all of them entered in his angan and beaten him with lathis. When his wife Bhama, son Nathu and brother Om Prakash tried to contain the complainant and his companion they were beaten and received injuries. This accused also lodged a cross report at the police station and their injuries were medically examined the same day. He stated that his case is pending in the Court of Munsif Magistrate.
9. The accused Tota Ram contended that he was not present at the time of any such circumstances and he has been implicated simply on account of enmity. The other two accused Om Prakash and Nathu stated that the complainant and others beaten them with lathis and they simply defended themselves.
10. The accused did not produce any oral defence and filed a copy of their complaint pending before the Munsif Magistrate, Hawaii under Sections 323, 452, 504 and 506, I.P.C. P.S. Quila.
11. The witness P.W, 1 Lakhan complainant deposed before the trial court that on the date of occurrence at about 1 p.m. his he-goat entered in the house of Sohan Lal and did some damage inside and Sohan Lal asked his brother Mullu deceased to keep the he-goat under proper check as it has done damage at his place. The deceased Mullu accordingly, tied the he-goat. At that very moment Khoobi accused remarked "In Salon ka dimag kharab ho gaya hai agar hamara is pirkar nuksan hota to main inhen jaan se mardeta". The witness P.W. 1 Lakhan further stated that he asked Khoobi that no damage has been done at his place then why should he kill us. Thereupon marpeet took place. The witness P.W.1 Lakhan also stated that the accused and his family belong to one and same family and live in the same compound.
12. P.W. 3 Sohan Lal stated that on the date and time of occurrence he was inside his house and Mullu''s he-goat entered in his house and caused damage. He protested to Mullu and Mullu tied the he-goat. This witness also stated that at the same time Khoobi accused remarked that if the same he-goat caused damage at his place, he would kill them. These witness also stated that Lakhan P.W. 1 asked Khoobi that no damage has been done at his place then why should he kill them. It was also asserted by this witness that the marpeet took place thereafter. In his cross-examination this witness stated that he-goat done damage to some corn and it was trivial matter hence he did not lodge a formal report about it. There appears to be no ambiguity in this statement of P.W. 2 because such minor incidents are common in villages and specially in those cases where the houses are adjacent. It is already stated by P.W. 1 Lakhan that the houses of the accused as well as of the prosecution witnesses are situated in the same compound.
13. The witness P.W. 2 Pitam who is a son of complainant Lakhan also supported the immediate motive of this occurrence. He also stated that a he-goat belonging to his father caused some damage in the house of P.W. 3 Sohan Lal and on his protest Mullu deceased had tied the said he-goat. This witness also stated that Khoobi accused thereupon reported that if the damage would have been caused at his place, he would have killed them. This witness also stated that his father Lakhan protested on this remark of the accused Khoobi and the marpeet started. No part of this evidence on immediate motive of the occurrence could be shattered in cross-examination.
14. Sri Rajeev Gupta, learned counsel for appellant vehemently argued that from the side of the appellant also there are injured and they have also received injuries at the hands of the complainant and victim and other accused persons and for which a cross case was also registered against them, and the conviction of the all the appellants under Sections 304. Part-I read with Section 34, I.P.C. and u/s 323 read with Section 34, I.P.C. is against the evidence on record hence the conviction and sentence of the appellants be set aside.
15. Learned counsel for appellants submitted that the story which has been narrated by the prosecution that the dispute between the parties had taken place on account of he-goat of the complainant which entered into the house of one Sohan Lal on account of which Sohan Lal asked the complainant to tie up the he-goat thereupon the accused Khoobi who was standing nearby had remarked that "In Salon ka dimag kharab ho gaya hai agar hamara is parkar nuksan hota to main inhen jaan se mardeta" whereas, in a non-cognizable report which has been lodged by P.W. 1 complainant Lakhan Lal, a different version has been given by the complainant that he was going from his house to some place and when the accused Khoobi met him he remarked that "Jo humse bolega hum use jaan se maar denge" on which complainant stated that why he would be killed on which there was an altercation and the accused Khoobi called some persons from his house and started assaulting the complainant with lathis on which his brother (Mullu) and son (Pitam) came to save him but they were also beaten with lathis and they had received injuries. Hence, he submitted that the origin of the prosecution story is doubtful and the story regarding he-goat entering in the house as has been stated by the complainant and prosecution witness P.W. 2 and P.W. 3 for the first time before the trial court.
16. He further argued that there has been cross report of the incident which too was lodged from the side of the accused Khoobi against the deceased and the complainant and other injured persons for offence under Sections 323, 504 and 506. whereby it was stated that the accused persons were fighting amongst each other and were taking the name of the informant (Khoobi) and stated that he too will be beaten by them on which accused Khoobi requested that he has no concern with the accused on which the accused Khoobi was beaten by the complainant and by other accused persons and his son (Nathu Ram) and his daughter-in-law have gone to save him and they were assaulted by the accused persons and have also received injuries, the said N.C.R. has been marked as Ex. Kha-3. He further pointed out that the 4 four persons from the side of the accused have received injuries namely Khoobi (appellant) his wife Smt. Bhama his son Nathu Ram and his brother Om Prakash and the injury reports of these injured are marked as Exs. Kha-5 and Kha-8 respectively. He submitted that though the injuries on the side of accused are larger in number as compared to the injuries on the side of the prosecution. It was argued that there has been no explanation regarding injuries received on the side of the accused and the trial court has thus not considered this aspect of the matter and has convicted the appellants for the offence in question.
17. He then urged that there are general allegations against all the accused persons and the author of the injuries caused to the deceased is not known as the deceased died to head injury as a result of coma. Hence, he submitted that the conviction and sentence of the appellants u/s 304, Part-I, read with Section 34, I.P.C. be set aside.
18. In support of his arguments learned counsel for the appellants has placed reliance on a judgment of this Court report in the case of
19. The learned counsel for the appellant has lastly submitted that the present appeal has come up for hearing after about 31 years and the incident has become too old and stale and the appellant Khoobi is aged about 70 years, Totaram is aged about 60 years, Om Prakash is aged about 50 years and Nathu aged about 50 years have already settled with their families and to send him to jail after about 33 years when the incident took place, it would be too harsh and further their families would be put to great hardships. The appellants had already remained in jail for about one year and four months during the pendency of the trial and after his conviction by the trial court. Hence, the rest of his sentence of the appellants be converted into fine and the same shall not be treated as enhancement of sentence.
20. Per contra Sri R.K. Maurya, learned A.G.A. has argued that the contention of the learned counsel for appellant is wholly unfounded and has submitted that the accused had no concern at all with the incident in question which originally started between the complainant and Sohan Lal who were related to each other and living in the same premises. The accused Khoobi made uncalled remark against the complainant who said that as the he-goat of the complainant has not made any damage to him hence he cannot make such remark against him on this the incident has flared up. He further drawn the attention of this Court toward statement of the complainant Lakhan Lal who deposed before the trial court that he has narrated the prosecution version as has been stated in the Court to the Police but the Police did not record his full version correctly nor Police has mentioned in their statement u/s 161, Cr.P.C. about the said fact. He submitted that if there is any fault on the part of the investigating agency or Police for a tainted investigation the prosecution case could be thrown on that score. He further argued that no doubt the cross report was lodged from the side of accused Khoobi as non-cognizable report and the accused have also received injuries in the incident, but the same has explained by P.W. 1 and P.W. 2 in their statements before the trial court that they have assaulted the accused persons with lathis and the accused Khoobi his brother and his son have also assaulted them with lathis due to which they received injuries. He submitted that there are three injured from the side of the prosecution, i.e., P.W. 1 Lakhan Lal P.W. 2 Pitam Lal and P.W. 3 Mullu who is the brother of P.W. 1. He further submits that all the three injured persons received lathi injuries at the hand of accused persons and one of the injured Mullu had died because of coma due to head injury hence the participation of the appellants in the incident cannot be doubted Moreover, accused persons have admitted the incident which has taken place at the relevant date and time and case laws which have been cited by the learned counsel for the appellants is also distinguishable on the facts and circumstances of instant case. He further submitted that the trial court had rightly convicted the appellants for the offence in question as the evidence of the injured and the prosecution witnesses was sufficient against the appellants for their conviction.
21. Considered the submissions advanced by the learned counsel for the parties.
22. So far as the first argument of the learned counsel for the appellants is concerned that the origin of the prosecution story appears to be doubtful one as he submitted that a different version was given by the complainant in his non cognizable report regarding cause of dispute on which the incident taken place as compared to his statement given by him before the trial court that his he-goat entered in the house of one Sohan Lal and the accused has made uncalled remark against the complainant for which they had no concern and when the complainant protested about the said uncalled remark made by accused Khoobi against him there was altercation between the parties on which accused Khoobi who was armed with moongri (wooden club) and the other accused namely Tota Ram, Om Prakash and Nathu who were armed with lathi had assaulted the complainant who raised alarm on which his brother and son had arrived at the place of occurrence to save him, they too were assaulted by the accused persons with lathis and they sustained injuries. From the evidence of P.W. 1 which was given before the trial court it is evident that he has stated before the trial court that he had informed about the incident in detail which had taken place to the Police, but the Police of concerned Police Station did not lodge his report giving full detail of the incident and had only lodge a short detail of the incident for which the complainant cannot be faulted.
23. It is settled law that due to the fault or tainted investigation by the Police, the prosecution case cannot be thrown out on that count only hence it cannot be said that due to some omission made by the Police in the N.C.R. report lodged by the complainant cannot falsify the prosecution story regarding the origin of the incident. The finding recorded by the trial court on this aspect of the case cannot said to be unreasonable.
24. The other argument of the learned counsel for the appellant that cross report was lodged by the accused Khoobi against the complainant the deceased and other injured persons stating that the complainant and injured person had assaulted the accused Khoobi and his other family members who have sustained injuries and there is no explanation given by the prosecution regarding the said injuries of the accused and further they have assaulted the complainant side in self defence, it is to noted that P.W. 1 Lakhan Lal the complainant as well as the P.W. 2 Pitam Lal injured have categorically stated before the trial court that when the accused Khoobi, his brother and his son had assaulted to the complainant Lakhan Lal P.W. 1 then he and his son P.W. 2 had assaulted the accused Khoobi and other injured on accused side with lathis in order to save themselves. Thus, the prosecution has explained the injuries of the accused persons. The finding recorded by the trial court regarding the said argument of the learned counsel for the appellant also appears to be sound and reasonable and does not require any interference by this Court. The case law cited by the learned counsel for appellant is not applicable in the present case. Moreover, in view of the judgment of the Apex Court in the case of
"17. It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witness may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused person''s are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case."
25. So far as the last argument of the learned counsel for the appellant is concerned that the general allegations have been levelled against all the accused persons for assaulting the injured and other persons due to which one of the injured Mullu died as a result of coma due to head injury and author of the said injury is not known is also not acceptable as it is a categorical case of the prosecution that the accused Khoobi alongwith other three persons had assaulted the three injured P.W. 1 Lakhan Lal, P.W. 2 Pitam Pal and P.W. 3 Mullu who subsequently died due to coma because of head injury which was as a result of lathi injuries. From the perusal of medical examination report of the three injured persons it is apparently clear that all the injured persons had received injuries from moongri (wooden club) and lathis by which the appellants assaulted them hence it cannot be said that the participation of all the accused person is doubtful as all of them have assaulted the injured and injured Mullu received three lathi injuries and he succumbed to his injuries on the same day. Moreover, the accused have admitted the incident as they have lodged a cross report of the incident and their presence at the place of occurrence cannot be doubted.
26. It is clear from the evidence that the prosecution case is fully corroborated by the medical report as well as the postmortem report of the deceased. It further transpires from the evidence on record that the deceased Mullu was unarmed and he was done to death by the accused persons who had come to save his brother P.W. 1 Lakhan Lal. I find no infirmity in the evidence of injured witness P.W. 1, P.W. 2 as well as evidence of P.W. 3 and other prosecution witnesses which may discard their testimony and the prosecution has proved its case beyond reasonable doubt against the appellants hence their conviction and sentence awarded by the trial court by the impugned judgment and order is hereby upheld.
27. Considering the facts and circumstances of the case. submissions of the learned counsel for the appellant, looking into the age of the appellant as on date and taking into account that the incident is about 33 years old and the appeal has come up for hearing after about 31 years and the position of the appellants as on date, it is directed that rest of the sentence of the appellants be converted into fine of Rs. 1,00,000 (Rupees one lakh) which shall be deposited by the aforesaid four appellants namely Khoobi, Tota Ram, Om Prakash and Nathu respectively in equal proportion, i.e., 25,000 each in the Court of C.J.M., Bareilly within a period of three months from today, out of which Rs. 80,000 shall be given to legal heirs of deceased, if any, and Rs. 5,000 to each of the two injured namely Lakhan Lal P.W. 1 and Pitam Lal P.W. 2 and Rs. 10,000 shall go to the State.
28. In default of payment of fine. as directed above, the appellant shall be taken into custody to serve out the sentence, as ordered by the trial court.
29. In view of the above, the appeal is partly allowed.
30. Office is directed to send a certified copy of this order to the C.J.M. concerned for its compliance.
