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State of U.P. v. Ujiyarey Lal( Died), Surendra & Kripal Singh - GOVERNMENT APPEAL No. 88 of 1982  RD-AH 3470 (23 September 2005)
Government Appeal No.88 of 1982
State of U.P................................................Appellant
1. Ujiyarey Lal (Died)
3. Kripal Singh............................................Accused
Hon'ble M.C. Jain, J.
Hon'ble M. Chaudhary, J.
(Delivered by Hon'ble Justice M. Chaudhary )
This is an appeal filed on behalf of the State from judgment and order dated 15th of September, 1981 passed by VIII Additional Sessions Judge, Etawah in Sessions Trial No. 142 of 1981 State vs. Ujiyarey Lal & others acquitting them of the charge levelled against them under section 307 IPC.
During pendency of the appeal accused Ujiyarey Lal was reported having died and hence the appeal with regard to him stood abated vide order dated 7.1.2004.
Brief facts giving rise to this appeal are that at 6:15 p.m. on 26th of January, 1981 Tej Singh, brother of the injured Barmadin lodged an FIR at police station Phaphund, District Etawah alleging that he and his brother Barmadin were on inimical terms with Ujiyarey Lal since long. At about 5:00 p.m. on 6th of January, 1981 Barmadin was returning back to his house at Kesampur after taking permit of sugar from the side of Devarpur and as he reached at the water channel in between the two places, Ujiyarey Lal taking spud alongwith his sons Surendra Singh and Kripal Singh armed with knives and Chotey Lal with sickle met him and Ujiyarey Lal shouted that Barmadin should be killed and they would not let him go alive. Immediately all the four smote Barmadin giving him blows with their respective weapons and on hearing the shrieks of Barmadin one Chandra Kumar who was going to Devarpur for giving cloth for stitching raised hue and cry attracting thereby Tej Singh and Vishambhar Singh to the scene of occurrence. Believing that Barmadin was done to death all the four miscreants bolted away. The police registered a crime on the basis of written report handed over to them at the police station and made entry regarding registration of the crime in the GD accordingly.
Injured Barmadin was got medically examined by Dr. Shiv Kripal Singh, Medical Officer in-charge, Male Dispensary, Phaphund at 6:45 p.m. the same day. His medical examination revealed belownoted injuries on his person:
1) Lacerated wound in zig-zag shape on forehead from left eyebrow towards right side 6cm x ½ cm x bone deep, bleeding profusely. Frontal bone suspected to be fractured. Advised x-ray of front of skull.
2) Lacerated cum incised wound on upper lip on right side placed vertically measuring 2 ½ cm x ½ cm x bone deep upto maxilla on right side. Lip divided in two parts.Right side maxilla also cut and hanging teeth were loose. Bleeding profusely. Advised x ray of face.
3) Tongue crushed in center and on tip lacerated wound. Bleeding profusely. Three teeth lying down in tongue wound extracted and sealed. One was lower incisor, two not identified.
4) Incised wound on right cheek measuring 1½ cm x 1/6 cm x skin deep, bleeding.
5) Incised wound at lower end of nose measuring 1½ cm x 1/6 cm x skin deep extending both the nostrils, bleeding profusely.
6) Bleeding from nose, whole of nose is suspected to be fractured. Advised x-ray of face.
7) Small incised wound at right eyebrow 1½ cm x ¼ cm x skin deep. Black eye formation in both the eyes. Swelling of face present.
Complained of pain in whole of chest.
The doctor opined that injuries no. 1,2,3,4 and 6 were grievous and kept under observation. Rest of the injuries were simple in nature. Injury no. 1 was caused by blunt object and rest by some sharp object. All the injuries were fresh. The doctor advised x-ray of whole face and the skull. He also observed that the patient was unconscious and his pulse was feeble.
X-ray of whole face and the skull of the injured done under supervision of Dr. R.C. Sharma, Radiologist, District Hospital, Etawah revealed fracture of right maxilla bone.
SI Raja Singh to whom investigation of the crime was entrusted went to Male Dispensary, Phaphund next morning and recorded statement of Tej Singh, brother of the injured and the first informant. Then he alongwith Tej Singh went to the scene of occurrence and inspected the site. He collected blood stained and simple earth from the scene of occurrence and picked up two teeth of the injured lying on the spot and sealed them in separate packets and prepared their memo ( Ext Ka 2). He also prepared site plan map of the place of occurrence (Ext Ka 3) and recorded statements of the witnesses. Then he searched for the criminals.
Since the condition of Barmadin injured was serious and he remained hospitalized for more than one month the investigating officer recorded his statement on 5th of March, 1981.
After completing the investigation the police submitted charge sheet against the accused excepting Chhotey Lal accordingly (Ext. Ka 4).
After framing of charge against the accused the prosecution examined Tej Singh (PW 1), Chandra Kumar (PW2) and Barmadin (PW 3) as eye witnesses of the occurrence. PW5 Shiv Kripal Singh, Medical Officer in-charge Male Dispensary, Phaphund who medically examined the injured has proved the injury report. PW6 R C Sharma , Radiologist, District Hospital, Etawah under whose supervision face and skull of the injured were x-rayed has proved the x-ray report. PW4 SI Raja Singh who investigated the crime has proved the police papers.
Since co-accused Chhotey Lal was absconding his charge sheet was not submitted alongwith the accused abovenamed.
The accused denied the alleged occurrence altogether stating that they were got implicated in the case falsely on account of enmity.
No evidence was adduced by the accused in their defence.
On an appraisal of the evidence and other material on the record the learned Additional Sessions Judge disbelieved the prosecution case and acquitted the accused giving them benefit of doubt.
Feeling dissatisfied with the impugned judgment and order the State has preferred this appeal assailing acquittal of the accused respondents.
We have heard learned AGA Shri K.P. Shukla for the State appellant and Shri Akash Mishra, learned counsel for the accused respondents.
After going through the evidence and other material on record we do not find ourselves in agreement with the findings recorded by the court below. A perusal of the record goes to show that PW1 Tej Singh, brother of the injured and the first informant narrated all the facts of the occurrence from the beginning to the end as stated above deposing that the alleged evening at about 5:00 p.m. he was going to Devarpur for taking manure and as he was proceeding towards the water channel falling in between the villages Kesampur and Devarpur he heard some hue and cry and that then he rushed towards the water channel and saw that Ujiyarey Lal taking the spud alongwith Surendra Singh and Kripal Singh with knives and Chhotey Lal with sickle were giving blows to his brother Barmadin with their respective weapons and thereafter thinking that Barmadin died the miscreants bolted away. PW 2 Chandra Kumar corroborated him stating likewise deposing that at about 5:00 p.m. the alleged evening he was going to Devarpur to give cloth for stitching and as he reached near the channel he heard the shrieks of Barmadin and on reaching he saw that Kripal Singh and Surendra Singh with knives alongwith Ujiyarey Lal with spud and Chhotey Lal with sickle were giving blows to Barmadin with their respective weapons and that after smiting Barmadin with their respective weapons and taking him to be dead the miscreants fled away. PW3 Barmadin, injured himself deposed that some three years ago Ujiyarey Lal had beaten him and in that case he was convicted and sentenced; that subsequently Ujiyarey Lal alongwith his sons Surendra Singh and Kripal Singh beat one Munshilal and in that case his nephew Ram Prakash stood as a witness against Ujiyarey Lal and his sons and that case also ended in their conviction; that the alleged evening at about 5:00 p.m. he was returning back from Auraiya to his village Keshampur and as he was crossing the channel Ujiyarey Lal holding a spud and his sons Kripal Singh and Surendra Singh armed with knives and Chhotey Lal with sickle emerged from ''lahi' crop and on the exhortation of Ujiyarey Lal that they would not let him go alive assaulted him with their respective weapons and as they were giving blows to him Chandra Kumar, Tej Singh and Vishambhar Lal rushed to the scene of occurrence and then the miscreants bolted away.
A perusal of the impugned judgment and record goes to show that the learned Trial Judge has rejected the sworn testimony of the three eye witnesses including the injured and relied upon some trifling and insignificant circumstances to discard the prosecution case. He observed that since the statements of three eye witnesses regarding place of occurrence are contradictory implicit reliance can not be placed on their testimony. This observation made by the learned trial judge is fallacious. PW3 Barmadin, the injured stated that about 5:00 p.m. the alleged evening he returned from Auraiya and as he was crossing the water channel having no water at that time and climbed 20-25 paces on the slope of the channel in order to go to his village Keshampur all the four miscreants emerged from ''lahi' crop and Ujiyarey Lal taking a spud alongwith his sons Surendra Singh and Kripal Singh with knives and Chhotey Lal with sickle caught hold of him and made him fall in the ''Bejhar' field of Dalip and smote him with their respective weapons hitting him on his face, forehead, tongue, nose etc. It appears that while climbing on the slope from the channel sighting the miscreants Barmadin apprehended danger to his life, and then he might have tried to run towards the village and hence there is nothing strange if the miscreants encircled him on the channel and made him fall down in the ''Bejhar' field abutting the channel. It is a matter of common experience that in rainy season fields abutting main streams, water channels, rivers etc. come under water and hence if PW2 Chandra Kumar stated that the victim was assaulted by the accused at the channel that cannot be termed to be a material contradiction regarding place of occurrence inviting consequence of jettisoning his testimony. A perusal of the record goes to show that the statement of the witnesses were recorded in the month of July and at that time due to heavy rains, the fields abutting the water channel might have come under water; and therefore this witness might have stated that the victim was assaulted and given blows with knives, spud and sickle by the accused at the water channel. It has also been observed that PW 1 Tej Singh, brother of the injured who lodged FIR of the occurrence at the police station mentioned in the FIR that his brother Barmadin was assaulted by the miscreants at the channel. ''Bejhar' field in which Barmadin was given blows by lethal weapons by the accused is abutting the main stream. However, he stated in his deposition that his brother Barmadin was given blows by the accused with their respective weapons in the ''Bejhar' field abutting the water channel. However this witness Tej Singh was not contradicted in his cross-examination by the defence counsel regarding the place of occurrence mentioned in the FIR lodged by him. Moreover it is a matter of common knowledge that apprehending danger to one's life one can not remain static or stationary like a log of wood and he would certainly try to run away for his life and in that case in order to save himself when Barmadin was climbing on the slope of the channel the assailants would have chased him and while he was running for his life was pulled and fallen down by the miscreants in the ''Bejhar' field abutting the channel and the pathway going to his village. Thus in fact there is no material contradiction in the statements of the witnesses regarding the place of occurrence. PW4 SI Raja Singh, the investigating officer also collected blood stained earth and two teeth of injured Barmadin from ''Bejhar' field of Dalip. It has come in the evidence that the injuries sustained by Barmadin must have bled profusely. Thus the said observation made by the trial court regarding place of occurrence is erroneous based on faulty appreciation of evidence.
The Trial Judge also observed that 26th of January, 1981 the day the injured was assaulted was a public holiday and hence the statement of PW3 Barmadin, the injured that at about 5: 00 p.m. the alleged evening he was returning back from Auraiya after taking permit of sugar for fair price shop run by him cannot be relied upon. The said observation made by the learned trial judge is also erroneous. PW3 Barmadin, the injured stated that one day prior to the day of occurrence he had gone to Auraiya for taking permit and he was told in the office that he may collect his permit the next day and then he retuned back to his home that day and next day he again went to Auraiya for collecting permit and after taking permit of sugar he was returning back to his home holding a wallet containing register and permit. PW 1 Tej Singh, brother of the injured deposed that he had taken up the wallet containing papers lying near the place of occurrence when he brought his injured brother on a cot from the scene of occurrence to his house. No doubt PW2 Chandra Kumar has stated that as miscreants fled away he went to see Barmadin lying on the spot and at that time he was empty handed and he did not see anything lying near the place of occurrence. This statement of PW 2 Chandra Kumar cannot be treated to be material one because due to his power of observance and perception he witnessed the assailants and the victim and might have not perceived the minute details such as he was holding a wallet or it was lying near the place of occurrence.
Further the learned Trial Judge observed that the injured received a lacerated wound in zig zag shape on his forehead which could not be caused with the weapons held by the miscreants. No doubt Dr. Shiv Pal Singh (PW5) who medically examined injured Barmadin stated that injury no.1 could not be caused with sickle. In our opinion injury no.1 lacerated wound in zig zag shape on the forehead measuring 6 cm x ½ cm x bone deep could be caused with the spud if blade of the spud had gone blunt and was not sharp. Injuries no.2 and 3 could be caused by the blow given with sickle over maxilla, upper lip and tongue. Rest of the incised wounds could very well be caused with knife.
The learned Trial Judge also observed that injured Barmadin made few statements before the court which were not possible for him to observe at the time of occurrence. We have gone through the statement of PW3 Barmadin, the injured very carefully and cautiously and found nothing of the sort. He has not stated anything which he would have not observed at the time of occurrence. He stated that after receiving the injuries he was conscious upto the time he reached the police station and the Hospital but he was not in a position to speak as he had received injury on his tongue. He stated that at the time of occurrence he had seen Chandra Kumar (PW2) standing at a distance of some 14-15 paces from the place of occurrence and he was holding some clothes but he could not tell whether they were stitched or not. He also stated that after receiving the injuries he was first taken in a bullock cart to his house from the scene of occurrence and therefrom to the police station and then to the Hospital. Thus the said observations made by the learned trial judge are based on conjectures and surmises.
We are conscious of the fact that an Appellate Court entertaining an appeal from the judgment of acquittal held by the trial court though entitled to reappreciate the evidence and come to an independent conclusion but in doing so the appellate court should consider every matter on record and reasons given by the trial court in support of the order of acquittal and should interfere only when the view taken by the trial court is perverse or unreasonable resulting in serious miscarriage of justice. No doubt if two views are possible on a set of evidence then the appellate court need not substitute its own view in preference to the view of the trial court which has recorded acquittal. If the trial court acquits an accused by giving undue importance to minor discrepancies and taking suspicious view of the evidence based on conjectures and surmises then the appellate court would be justified in interfering with the order of acquittal and while reversing an order of acquittal the appellate court must give sufficient grounds for holding the appreciation of evidence of the trial court as erroneous and unsupportable.
In the instant case findings recorded by the learned trial judge are perverse based on erroneous appreciation of evidence resulting in serious miscarriage of justice.
In the instant case medical evidence leaves no room for doubt as to the factum of the occurrence and the prosecution case with regard to its time and the weapons used in the assault also receive corroboration from it. The place of occurrence is also fixed up by the recovery of blood and two teeth by the investigating officer therefrom. No doubt PW 1 Tej Singh is real brother of the injured and PW2 Chandra Kumar is closely associated with him but the sworn testimony of the witnesses who are relatives to the victim or closely associated with him cannot be thrown over board if the witnesses withstood the test of their cross-examination firmly and their presence at the scene of occurrence cannot be doubted. Testimony of the injured witness Barmadin has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and saw the assailants with close proximity. On carefully scanning the evidence of these three eye witnesses we find that shorn of few contradictions and inconsistencies which are of very trivial nature and insignificant nothing tangible could be elicited in their cross-examination. All the three eye witnesses have given truthful and honest account of the occurrence witnessed by them. Therefore sworn testimony of the three eye witnesses including the injured being otherwise convincing and consistent on all material aspects cannot be discarded simply on the ground that Tej Singh is blood relation of the victim or Chandra Kumar closely associated with him or the witnesses are inimical to the accused.
Benefit of doubt rendered by the trial court in respect of all the accused namely Ujiyarey Lal, Surendra Singh and Kripal Singh goes straight in the teeth of ocular evidence. On a conspectus of oral evidence of all the three eye witnesses and other material on the record we are of the view that the prosecution has proved participation of the accused in the said crime beyond reasonable doubt. The trial court acquitted them giving benefit of doubt on tenuous grounds.
Since the reasons assigned by the court below for recording acquittal of the accused are manifestly erroneous and contrary to evidence the impugned judgment cannot be sustained in law.
As to the offence made out, it has been argued by the learned counsel for the accused respondents that if the accused would have intended to commit the murder of Barmadin they would have given blows to him with lethal weapons on his neck, chest, abdomen etc. Though some of the injuries received by the victim are on vital parts of the body still we think it would be proper to convict the accused respondents under section 326 read with section 34 IPC as they acted in concert in furtherance of their common intention and caused several grievous injuries to the victim with dangerous weapons.
The appeal is allowed and the impugned judgment acquitting the accused is set aside. Since accused Ujiyarey Lal has been reported having died, the government appeal against him stood abated as observed above. Accused respondents Surendra and Kripal Singh are convicted under section 326 read with section 34 IPC and each of them is sentenced to undergo five years' rigorous imprisonment thereunder. The accused respondents are on bail. Their bail bonds are hereby cancelled.
Let the judgment be certified to the court below. CJM, Etawah shall take steps to take accused respondents Surendra Singh and Kripal Singh in custody and send them to jail to serve the sentence imposed upon them.
Dt.23rd of September, 2005
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