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Ram Autar v. State Of U.P. - JAIL APPEAL No. 1077 of 2006  RD-AH 11938 (13 July 2007)
Crl. Jail Appeal No. 1077 of 2006
State of UP.---------------------------------Opp. Party.
Hon'ble R.N. Misra, J
This appeal has been preferred by the appellant, Ram Autar against the judgement and order dated 9.8.2005, passed by Sri D.K. Srivastava, the then Additional Sessions Judge( Court No.5), Budaun in Sessions Trial No. 577 of 2004, whereby he has been convicted for the offence, punishable under Section 308 I.P.C and sentenced to undergo R.I. for seven years.
I have heard Sri D.R. Azad, the Amicus Curiae for the appellant and learned A.G.A for the State and perused the evidence on record.
The facts giving rise to this case are as under:
The complainant-informant Ramesh and the appellant Ram Autar are residents of Qasba and Police Station Usawa, district Budaun. The injured Veer Sahai was the father of complainant-informant and the appellant. According to the F.I.R version, the appellant was drunkard and he was pressurising his father, Veer Sahai for selling landed property, but he did not agree for the same, so the appellant had ill will against his father. On 25.5.2004 at about 5.45 P.M., the father of the appellant was sitting in his agricultural field as shown by letter 'A' in the site plan Ext. Ka-7. The appellant reached there. He had handle of hand pump. He assaulted his father by said handle due to which, he sustained injuries. The occurrence was seen by Ramesh, Rajesh and Dinesh. Ramesh lodged the first information report Ext. Ka-5 at police station Usawa district Budaun, which was registered as non-cognizable case. The injuries of injured Veer Sahai were examined at District Hospital, Budaun by Dr. Harpal Singh PW-6. The injury report is ext. Ka-4. The following injuries were found on the body of injured, Veer Sahai.
1.Lacerated wound 8 cm x 1 cm upto bone of Lt. side head.
2.Lacerated wound 7 cm x 1/ 2 cm upto bone of top of head.
3.Lacerated wound 2 cm x 1/ 2 cm muscle deep on back of head.
4.Contused swelling all over Lt. Eye.
The x-ray of head injuries was done. X-ray plate is ext. Ka-1, X-ray report is Ext. Ka-2 proved by Dr. M.P. Gangwar, PW-5. The fracture of skull bone was found. On the basis of injury report, the case was converted into cognizable one and relevant entry in the G.D was made by PW-4 Constable, Sohan Pal Singh. The N.C.R was registered by PW-7, Ram Khilaona Sharma. The investigation was made by Sub-Inspector Sushil Kumar PW-8, who had prepared site plan Ext. Ka-7, recorded statement of witnesses and submitted charge sheet ext. Ka-8 against the accused.
The accused-appellant denied the allegations levelled against him and alleged his false implication due to enmity with his brothers.
The prosecution has examined PW-1, Rajesh, PW2 Ramesh and PW-3 Dinesh as eye witnesses of the occurrence. PW-1 Rajesh has turned hostile and has not supported the prosecution case. He has stated that he did not see occurrence. Nothing could be found in his cross examination made by the prosecution in its support. PW-2, Ramesh, the complainant-informant has also given evidence half heartedly. He has stated that he did not see the appellant while causing injuries to his father Veer Sahai, but he had seen the appellant while running away from the place of occurrence. He has lodged the report Ext. Ka-5 at the police station Usawa. PW-3, Dinesh, is also real brother of the appellant and son of injured. He has stated that on the relevant date, it was about 6.00 P.M, when he was present on his field, his father was also there. The appellant was also present in his hut. All of a sudden, he came out of the hut and assaulted Veer Sahai from the handle of hand pump. He sustained injuries. PW-1 Rajesh was present at some distance on his field. When Ramesh came to the spot, the appellant had also left the place , but again he has stated that the Ramesh had seen the appellant while running away from the place of occurrence. In his cross examination, he has stated that his father had about seven Bighas agricultural land and the entire land is under mortgage. He is the labourer and earn his livelihood by taking agricultural field of others on 'Batai'. Ramesh and Dinesh both have corroborated this fact that the appellant was a drunkard and gambler and he always used to create fuss in the village. When he reached the place of occurrence, he saw Ram Autar sitting there, his father was also there. Some question have been asked by learned counsel for the defence regarding topography of the place of occurrence which have been correctly described by PW-3. He has stated that he had seen the appellant while causing injuries to his father by handle of hand pump. He had given four blows to him. When he wanted to intervene, the appellant ran away from the spot. He has denied the suggestion of defence that he has deposed against the appellant for grabbing the land. This is admitted fact that the injured had not partitioned agricultural land amongst his sons during his life time.
As I have disclosed earlier, the injured has sustained three lacerated wounds on his head and one contused swelling all over left eye. The x-ray report reveals fracture of skull bone. The injuries were fresh which were examined on 25.5.2004 at about 11.15 P.M. The injured was the father of appellant and PW-3 is the real brother. There is nothing on record to show that PW-3 had deposed against the appellant falsely due to enmity. PW-2 also saw the appellant while running away from the place of occurrence. The evidence of Veer Sahai could not be recorded because he had died before giving evidence. Learned trial court found the prosecution evidence reliable and convicted the appellant.
Learned counsel for the appellant has argued that since two witnesses have turned hostile, therefore, only on the basis of statement of PW-3, the appellant should not have been convicted. But I see no force in this contention because to prove a fact, quantity of evidence is not considered but quality is considered. As I have discussed earlier, the appellant, witnesses and injured, all belong to same family and the conduct of the appellant has also been unsatisfactory. As stated by PW-2 and 3, the appellant is drunkard and gambler and quarrel unnecessarily in the village. There was no reason for the father and brothers to falsely implicate him in this case. The prosecution case has been supported by medical evidence. No doubt is created regarding date, time and place of occurrence.
Learned counsel for the appellant has argued that since the appellant is in jail since more than three years, hence lenient view may be taken regarding quantum of punishment. The record shows that the appellant is in jail since 2.6.2004 as is evident from the copy of G.D 5Ka/1 in the Magistrate file. The injured Veer Sahai had also in due course left the world. The appellant is real brother of complainant-informant and other eye witnesses Dinesh. From the evidence on record, it is also evident that they are poor persons.
Considering the injuries, background of the family and nature of the incident, it is clear that the incident took place in routine manner. No other case except this was ever filed against the appellant. In such situation, the lenient view is liable to be taken.
In the result, the appeal is dismissed with the modification that the sentence of seven years awarded by learned trial court is reduced to three and half years.
Let a copy of this judgement be sent to C.J.M concerned for compliance who shall submit his report to this Court by 13.8.2007.
Sri D.R. Azad, the Amicus Curiae will get Rs. 1500/ from the State for his useful assistance rendered by him to the Court.
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