Kishan Singh and Smt. Madhuli Devi vs State of U.P.

J.C.S. Rawat, J.—This appeal has been directed against the judgment and order dated 22.10.2002, passed by learned Additional Sessions Judge/Fast Track Court, Almora in Sessions Trial No. 62 of 2000, whereby the appellants have been convicted & sentenced to undergo rigorous imprisonment for two years u/s 308 Indian Panel Code, 1860 (for brevity as I.P.C.) and a fine of Rs. 1,000/- each. The appellants have also been convicted & sentenced to undergo imprisonment for six months u/s 506 I.P.C. In default of payment of fine, the appellants shall further undergo R.I. for six months each. The sentences shall run concurrently.

Brief facts of the prosecution case are that a report was lodged before Patti Patwari Tapari by the informant Pan Singh, husband of the injured Bhaguli Devi on 18/05/2000 at about 5:30 p.m., alleging therein that on 18/05/2000 at about 9:30 a.m. his wife Smt. Bhaguli Devi was collecting grass from her field adjacent to her house. When the injured Bhaguli Devi was setting fire to the waste grass so collected by her, the accused/appellants who had their house near the place started hurling abuses upon her and protested setting fire on the waste grass because the accused/appellants had an apricot tree near the place of setting fire. When the injured stated that she is setting fire to the waste grass collected by her in her field, both of the appellants started throwing stones upon the injured Bhaguli Devi due to which she sustained injuries on her head and other parts of the body. Thereafter, she became unconscious. The husband of the injured Bhaguli Devi was taking tea outside his house about a distance of 15 meters from the place of the incident. Seeing the injured Bhaguli Devi unconscious, he rushed to his field. When the husband of the injured was likely to reach at the spot, the accused/appellants left inside their house. Informant Pan Singh brought the injured to his house in an unconscious state. Thereafter, the injured Bhaguli Devi was taken to hospital, Dholadevi where she was medically examined by doctor at about 1:00 p.m. on the date of the incident and the treatment was given to the injured Bhaguli Devi. She was admitted to the hospital. Thereafter, a report was lodged at 5:30 p.m. on the same date. The patwari investigated the matter and after completing the investigation, the patwari submitted the chargesheet before the court concerned.

The accused/appellants were charged u/s 307, 504 and 509 I.P.C. The accused/appellants denied the charges and claimed to be tried.

The prosecution in support of its case examined Pan Singh PW1, Bhaguli Devi PW2 and Sher Singh PW3, son of the injured Bhaguli Devi PW2. All the three witnesses have claimed that they have seen the incident. Bhaguli Devi PW2 is the injured witness in this case. Trilochan Bhatt PW4 is the Patwari of the area and he is the Investigating Officer of this case who had after the investigation submitted the chargesheet before the court concerned. Dr. Harish Chandra Pant PW5 is the Medical officer who has examined the injured.

The accused/appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated due to enmity.

The learned Sessions Judge on appreciation of the evidence held accused-appellants guilty to the offences charged against them and convicted & sentenced them as mentioned above.

I have heard Mrs. Pushpa Joshi, the learned Counsel for the appellants, Mr. Nandan Arya, learned A.G.A. for the State and perused the record.

At the outset, it needs to be mentioned here that it is not disputed that the injured Bhaguli Devi sustained injuries on 18/05/2000 at about 9:30 a.m. at the place of incident. Dr. Harish Chandra Pant PW5 has examined the injured at about 1:00 p.m. in P.H.C., Dholadevi He has found the following injuries on the person of the injured:

Deep lacerated wound present on the head just above the occipital protubuler. The wound is round shaped and size of 3 cm. x 2 cm. x 0.5 cm.

Lacerated wound is present on the right side on the scalp just 2 cm. away from the occipital protubuler. The wound shaped is round and diameter of about 1 cm.

Contusion on the back side just above the right scapula. The contusion is round shaped and size of 3 cm. diameter.

Contusion is present on the back of the body just above the 4th number vertebrae. The contusion is round shaped.

In the opinion of Medical Officer, the injuries were fresh and could have been sustained at the time and date indicated by the prosecution. The doctor further opined that the injuries could have been caused by some blunt object like stone. The prosecution has also adduced the evidence of Pan Singh PW1, Bhaguli Devi PW2 and Sher Singh PW3 who have stated that the injured sustained the injuries on the date, time and place indicated by the prosecution.

Now, it is to be decided as to who was the author of the injuries on the person of the injured Bhaguli Devi. This case rests on direct evidence. The prosecution has adduced the evidence of the injured Bhaguli Devi PW2 who has stated in her evidence that on 18/05/2000 at about 9:30 a.m. in the morning she was collecting the garbage in her field and when she started to burn it, the appellants started hurling filthy abuses upon her. The appellants further stated that by setting fire to the garbage, their apricot tree would be destroyed and burnt by the said fire. The injured stated that she is setting fire in the garbage so collected by her in her field. Thereupon, both the appellants got annoyed with the injured Bhaguli Devi and started throwing stones upon her. The injured Bhaguli Devi sustained the injuries on her person by the stones thrown by the appellants. The said incident was also witnessed by Kaushlya Devi who is the ant of the appellants and Narayan Singh resident of the same village. She has also stated that her husband was taking tea outside his house when the injured was setting fire to the garbage in her field. He also saw the incident and he came to her rescue. She has further stated that due to the injuries sustained by her, she fell unconscious in the field. When she gained consciousness, she was inside in her house. Thereafter, her husband Pan Singh PW1 had taken her to the hospital. When she was being taken to the hospital, the appellants again threatened that she had survived today and they would kill her and would left to Punjab. The injured was medically examined by the doctor. Pan Singh PW1 has corroborated the evidence of the injured Bhaguli Devi PW2. He has stated that at the time of the incident he was taking tea outside his house. He has given the details of the incident in his evidence. He has stated that when the injured sustained the stone injuries on her person, she fell down and became unconscious. He reached at the spot and he took the injured Bhaguli Devi to his house and thereafter, she was taken to the hospital where her medical was conducted and she was admitted. Thereafter, they went to the Patwari Chowki where report was lodged. She has also stated in her evidence that at the time of the incident her son Sher Singh PW3 was present at the spot. He has also given the vivid details of the incident and corroborated the evidence of the injured Bhaguli Devi on the material particulars. He has given the eye account of the incident.

Learned Counsel for the appellants contended that the prosecution has not produced the independent witnesses of the incident. The learned Counsel for the appellants contended that there is evidence that the incident has been seen by one Narayan Singh and Kaushalya Devi but they were not produced before the court. The learned A.G.A. refuted the contention. It is in the evidence of the injured Bhaguli Devi PW2 that Narayan Singh belonged to the family members of the appellants and Kaushalya Devi is Aunt of the accused/appellants. The prosecution has adduced the evidence of the injured Bhaguli Devi PW2 who has stated the entire incident and the said incident has been corroborated by the evidence of Pan Singh PW1. The injured witness presence at the place of occurrence cannot be doubted. Her testimony cannot be lightly rejected by the Court. The injured witness has categorically stated how the incident took place and how she got the injuries on her person. {See Narendra Nath Khaware v. Parasnath Khaware and Ors. 2003 SCC (Crl) 1144 and State of U.P. v. Kishan Chand and Ors. 2004 SCC (Cri) 2013. It is settled position of law that if the evidence of the prosecution witnesses is found credible and cogent there is no need to multiply the evidence on the same point. It is not the number of the witnesses, which is required to prove the fact; it is the quality of the evidence which is required to be appreciated by the Court. If the evidence adduced by the prosecution is credible, cogent and reliable, the prosecution is not under the obligation to adduce other witnesses on the same point. Thus, I do not find any force in the contention raised by the learned Counsel for the appellants.

The learned Counsel for the appellants further contended that the incident took place on 18/05/2000 at about 9:30 a.m. and the report was lodged with the Patti Patwari on 5:30 p.m. on the date of the incident. It is indicated in the F.I.R. that there is a five kilometers distance between the place of the incident and the place of the Patwari Chowki. The injured Bhaguli Devi PW2 has also stated this fact in her evidence. Thus, there is inordinate delay in lodging and recording the F.I.R. with the Patwari. The learned A.G.A. refuted the contention and contended that the delay in lodging the F.I.R. has sufficiently been explained by the prosecution in the evidence of the prosecution witnesses. The prosecution has tried to explain the delay in the F.I.R. in the evidence that the injured Bhaguli Devi became unconscious at the place of the incident and thereafter she gained conscious in her house as stated by the injured Bhaguli Devi PW2. Thereafter, they went to the hospital where her treatment was made and she was admitted in the hospital. The injured Bhaguli Devi has stated that after her treatment, they went to the Patwari Chowki. It is also evident that when she was taken to hospital, there were no other persons except her husband Pan Singh PW1 with her. Sher Singh PW3 has stated that he did not accompany the injured Bhaguli Devi PW2 to the hospital. It is also in the evidence that she was medically examined at 1:00 p.m. It is also in the evidence of Pan Singh PW1 that he reached at the hospital at 11:00 a.m. There is no effective cross examination on this point by the defence. It is a natural fact that if the injured has sustained the injuries, the relatives of the injured would take the injured to the hospital firstly for treatment rather go to the police station for lodging the report. When a person sustains the injuries, it is natural human conduct that the relatives of the injured would like to save the life of the injured first and thereafter take the legal recourse. It is also settled position of law if the prosecution has given a plausible or satisfactory explanation to the satisfaction of the Court regarding the delay in lodging the report, then the delay in lodging the F.I.R. is not fatal to the prosecution. It is also established position of law even if no plausible explanation has been given but the facts and circumstances arising out of the record itself provides the explanation for the delay, then the delay is also not fatal to the prosecution. It is also pertinent to mention here that the parties belonged to the village area and they are not so literate to have the knowledge of consequence of lodging the delayed report. It is also pertinent to mention here that the husband of the injured was all alone with the injured and he admitted her in the P.H.C. When the injured regained consciousness they went to Patwari Chowki. Thus, this fact ipso facto explains the delay in this case. The explanation offered by the prosecution as well as attending circumstances arising out of the record provides a plausible explanation for delay in lodging the F.I.R. Thus, I do not find any force in the contention of the learned Counsel for the appellants.

Learned Counsel for the appellants further contended that Sher Singh PW3 who is said to be the eyewitness of the incident was not present at the spot. This witness has been prepared at the later point of time to support the prosecution version. It was further pointed out that his name did not find place in the F.I.R. lodged by Pan Singh PW1 with the Pati Patwari concerned. Learned A.G.A. for the State refuted the contention and contended that non-mentioning of the name in the F.I.R. is not fatal to the prosecution. He has also relied upon the judgment of the Hon''ble Apex Court in the case of Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat, . From the perusal of the record it is true that the name of Sher Singh PW3 did not find place in the F.I.R. It is true that the report was lodged on the same day of the incident. It is also a fact that the injured Bhaguli Devi PW2 wife of Pan Singh PW1 sustained the injuries. According to them, she was unconscious at the spot and she was brought to her house. Thereafter, report was scribed in the village by Pan Singh PW1. It is clear that when the report was scribed, the party were at a slight trauma. It is also pertinent to mention here that the F.I.R lodged by the informant is not the encyclopedia of the facts of the incident. In the F.I.R, all the details are not required to be mentioned. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The FIR is lodged only to set the investigation in motion. The Hon''ble Apex Court in the case of Dhirajbhai Gorakhbhai Nayak (Supra) has held in para 7 as under:

Coming to the plea that the name of PW 3 does not appear in the first information report, it has to be noted that death took place, according to medical records, at about 4.45 a.m. and the first information report was lodged at about 5.15 a.m. In other words, the first information report was lodged almost immediately after the occurrence. As observed by this Court in Shri Bhagwan Vs. State of Rajasthan, the mental condition of the person who has just seen a close relative, the bread earner lose his life cannot be lost sight of. The psychic trauma cannot be ignored. Merely because PW 3''s name did not figure in the first information report, that is not a suspicious circumstance. Evidence of PWs 1 and 3 has been analysed by both the trial court and the High Court minutely and found to be credible and cogent. Nothing infirm therein could be shown to weaken their acceptability and reliability. The trial court and the High Court were justified in placing reliance thereon.

The evidence of Sher Singh PW3 cannot be discarded only on the ground that his name was not mentioned in the F.I.R. The contention raised by the learned Counsel for the appellants has no force. Assuming that the evidence of Sher Singh PW3 is washed off from the record, even than there is evidence of eye account of Pan Singh PW1 and injured Bhaguli Devi PW2 in support of the prosecution evidence. I will revert back about the credibility of the prosecution witnesses later on.

Learned Counsel for the appellant further contended that the evidence of Dr. Harish Chandra Pant PW4 is not trustworthy. Learned Counsel for the appellants contended that the medical report reveals that the injured was unconscious at the time coming to P.H.C. No injuries were kept under observation. The injured also came to the hospital on foot with the help of her husband Pan Singh PW1. Thus the injuries were not fatal to the injured. The learned A.G.A. refuted the contention and contended that there were injuries on the person of the injured. He also pointed out that suggestion to the effect that she was suggested by the defence that she fell down on the field where the stones were there and she has denied this fact. He further stressed that the prosecution has admitted her presence at the spot. Injured Bhaguli Devi PW2 has stated in her cross examination that she went from her house to the hospital with her husband. When she went to the hospital, she was conscious. She has also stated that she went on foot with her husband and her husband remained with her during the aforesaid period. She has further stated that when she reached at the hospital, she became unconscious. The doctor has written that the patient was unconscious when came to P.H.C. The doctor in his deposition has stated that the patient sustained the unconsciousness in the hospital itself. Thus, there is no contradiction in the statement given by the doctor or written in the medical report. There is no cross examination of the defence on this point. Thus, the injuries as narrated by the doctor is corroborated by the evidence.

The appellants have been acquitted u/s 307 I.P.C. and have been convicted u/s 308 I.P.C. There is no State Appeal against the acquittal made by the learned Sessions Judge. Thus I have to confine my findings with regard to Section 308 I.P.C. The ingredients of 308 I.P.C. are that (i) the accused did any act (ii) the act was done with the intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that the accused attempted to cause such death by doing an act know to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death; and (iii) that the accused had no excuse for incurring the risk of causing such death or injury. From the perusal of the ingredients of Section 308 I.P.C., it is the act so done either with the intention or the knowledge. In the case the appellants have thrown stones upon the injured at the place of the incident. Throwing of the stones is sufficient to cause the death of the injured. The injury on the body of the injured was on vital part of the body. It is not the case of the appellants that they did not aim at the vital part of the body of the injured. There is evidence that the appellants have stated that let her die today. It is not the case of the prosecution that after throwing one stone or two, the appellants fled away from the place of occurrence. They waited till she fell down on the ground. Thereafter, husband of the injured reached at the spot and thereafter; they went inside their house. Thus, the intervening circumstances also caused obstruction for causing further injuries on the person of the injured. Throwing of the stones on the vital parts is itself is sufficient to have the knowledge of the injuries and its consequence. The injured has sustained the injuries on the head. The injuries have been indicated in the preceding paragraph of my judgment.

There is sufficient evidence that the appellants had common intention to cause the injuries on the person of the injured. They came at the spot and when they saw the injured was setting fire to the garbage in her field, they hurled abuses and protested of setting of fire in the garbage. Thereafter, they also threw the stones with the common intention to cause the injuries on the person of the injured. The intention of the appellants for illegal act or omission can be inferred by the attending circumstances and act done by the appellants. There cannot be any direct evidence that what was in the minds of the appellants at the time of causing the injuries to the injured. Both the appellants participated in the act. In the case of Section 34 I.P.C. it is well settled that common intention pre-supposes prior concert of the mind. When the appellants came together the concert of mind could be ascertained from the acts of the appellants. It is true that charge u/s 34 I.P.C. has not been framed by the trial court. But the evidence has already been led to that effect. The Hon''ble Apex Court in the case of Karnam Ram Narsaiah and Others Vs. State of Andhra Pradesh, has held in para 7 and 9 as under:

The evidence on record shows that all the appellants were waiting for the deceased to come to the place of occurrence and all the eyewitnesses deposed that A-1 to A- 2 and A-4 caused injuries to the deceased. The counsel for the appellants sought to place reliance on Ninaji Raoji Boudha and Another Vs. State of Maharashtra, . That is a case where there was only one injury on the body of the deceased and there was no evidence as to who caused the injury, the Court held that the evidence on record did not show that the appellant therein had the common intention of beating the deceased. The prosecution allegation was that two persons had caused the injury to the deceased and one was acquitted by the trial court and there was no concrete evidence as to which of them caused the fatal injury. It was under those circumstances the conviction of the appellants was altered from Section 302 read with Section 34 to Section 325 read with Section 34 IPC. This decision does not render any assistance to the appellants. Another decision relied by the learned Counsel for the appellants is Ram Lal Vs. Delhi Administration, . In this case there was only one appellant who was convicted by the High Court for the offence u/s 302. The evidence disclosed that the deceased was given two lathi-blows and there was no evidence to show as to which of these two was given by the appellant. This Court was of the view that the appellant might have given the fatal blow or the other assailant might have given the blow. Under those circumstances, the conviction of the appellant was altered from Section 302 to Section 325 IPC.

8...

In the result, we do not find any error or illegality in the conviction of the appellants u/s 302 read with Section 34. Even otherwise also there was no specific charge against them for the offence u/s 302 read with Section 34. The appeal is accordingly dismissed.

The stones were used for the attack upon the injured and the place they have chosen is a vital part of the body namely head to inflict the injuries, clearly and un-erringly point out to their common intention to commit the offence as alleged by the prosecution. The appellants attacked by throwing stones simultaneously upon the injured. In these circumstances, it clearly spells out the common intention. Omission to mention Section 34 I.P.C in charge is inconsequential as the appellants are not prejudiced to this omission. No prejudice was shown by the appellants to me.

In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has been able to establish the guilt beyond reasonable doubt against the appellants. I find that the learned trial court has rightly convicted the appellants.

The learned Counsel for the appellant further submitted that the trial court has given the finding that the appellant Madhuli Devi has committed offence punishable u/s 308 & 506 I.P.C. and has been sentenced for 2 years R.I. and 6 months R.I. respectively. It was contended that the injured Bhaguli Devi has not sustained any grievous hurt on her person as such the appellant Madhuli Devi is entitled to get the benefit of the Probation of Offenders Act, 1958 as well as Section 360 of Cr.P.C. It was further contended that Madhuli Devi who appeared before the court on 05.10.2002 was 60 years of age in the year 2000 and now she would be at about 64-65 years old and infirm lady. It was further contended that there is no previous conviction against the appellant Madhuli Devi on her count. The prosecution has not stated anywhere that she was a previous convict in any of the case. As is apparent from the perusal of Section 360 Cr.P.C., the appellant must be below 21 years of age and as such Section 360 Cr.P.C. is not applicable. Whereas the Probation of Offenders Act is concerned, the following conditions must be satisfied for the application of Section 4:

(1) The offence committed must not be one punishable with death or imprisonment of life.

(2) The court must opine that it is expedient to release him on probation of good conduct instead of sentencing him to any punishment and.

(3) The offender or surety must have a fixed place of abode or regular occupation in a place situate within the jurisdiction of the court.

The accused/appellant Madhuli Devi has been convicted u/s 308 and 506 I.P.C. Section 308 provides two types of punishments. The first limb prescribes a punishment of three years or fine or both. The second limb provides the punishment of imprisonment of 7 years or fine or both. Section 506 I.P.C. also provides two limbs of the punishment. The first limb provides the imprisonment for two years or fine or both. The second limb provides punishment of 7 years or fine or both. Thus, the first ingredient is fulfilled that the offence is not punishable with death or imprisonment for life. Now the mere question arises whether in such offences like 308, 304 and 376 read with 511 I.P.C., the provision of First Offender Act should be given or not. In the case of Chand and Others Vs. State of U.P., , the accused/appellant was convicted u/s 304 part II of the I.P.C. The question of giving the benefit of the Probation of Offenders Act was considered by the Apex Court in the said case. The Hon''ble Apex Court held that the appellants are being convicted falls under the second part of Section 304 I.P.C. and such of them as are under 21 years would be entitled to the benefits of Section 4 of the Act. This is a case in which the appellants were admitted to the First Offenders Act and they were released on First Offenders Act. In another case, the Hon''ble Apex Court in the case of State of Haryana v. Prem Chand reported in 1997 SCC (Cri) 1176 held the appellant guilty of the offence u/s 376, 511 I.P.C. If the conviction would have been made u/s 376 I.P.C. he could have been awarded imprisonment for life or one extending to 10 years. But the offence for which the respondent was found guilty was only attempt to rape. The Hon''ble Apex Court held that the respondent/accused was entitled to the benefit of Section 360 Cr.P.C. and Section 4 of the Probation Act and the Hon''ble Apex Court upheld the granting of such benefit to the accused.

As indicated in the preceding paragraphs of my judgment, scuffle took place in between two neighbours and in such scuffle the appellant Madhuli Devi alongwith other appellant Kishan Singh participated in pelting the stone upon the injured Bhaguli Devi and she sustained the injuries. Thus, it was not a premeditated. It was a sudden quarrel resulted in such injuries in a quick succession of quarrel. There is no case of the parties that the lady had a criminal history or she has been convicted earlier. This is the first conviction of the appellant Madhuli Devi on her count. It is not disputed that she is an old and infirm lady of 64-65 years living in the village. The accused appellant Madhuli Devi being old lady could be given the benefit of the Probation of First Offenders Act. There is no evidence that she has committed any subsequent offence during this trial and she has been convicted in such offence.

Considering the totality of facts and circumstances of the case, the appellant Madhuli Devi is entitled to get the benefit of Section 4 of Probation of First Offenders Act. While maintaining the conviction of the appellant Madhuli Devi, I direct that she will be dealt with the provision of Probation of Offenders Act. As such, I direct that the appellant Madhuli Devi be released on probation of good conduct instead of sentencing her. The appellant Madhuli Devi should enter into a personal bond with two sureties to appear and receive the sentence when called upon during the period of two years for the purposes in question. The bonds of Rs. 20,000/- shall be executed before the learned C.J.M., Almora within six weeks from the receipt of the order. The accused/appellant Madhuli Devi shall remain in the supervision of the Probation Officer, Almora during this period. The Probation Officer would direct the appellant Madhuli Devi to appear before him as he deems fit. The Probation Officer will supervise her conduct during this period and if the Probation Officer did not find her conduct satisfactory, he shall submit report to this Court. The appellant Kishan Singh is not entitled to the benefit of this provision.

In view of the above, the conviction and sentence awarded by the trial court against the appellant Kishan Singh are affirmed. The conviction against the appellant Madhuli Devi is also affirmed. However, the sentenced imposed by the trial court for a period of two years against the appellant Madhuli Devi is hereby modified that she is entitled to get the benefit of Section 4 of Probation of Offenders Act, 1958 as directed above. The appeal as against the conviction and sentence against the appellant Kishan Singh is hereby dismissed whereas the appeal of appellant Madhuli Devi is hereby confirmed as against the conviction and the sentence of appellant Madhuli Devi is modified to the above extent.

Let the lower court record be sent back to the court concerned for compliance.