Parmal vs State of U.P.

Mukteshwar Prasad, J.—This appeal by the accused is directed against the judgment and order dated 7th December, 1981 passed by Sri Y. R. Tripathi, the then Additional Sessions Judge, Ghazipur whereby he convicted accused Parmal u/s 308 read with Section 34, I.P.C. and sentenced him to undergo rigorous imprisonment for a period of two and half years. He further convicted the accused u/s 24 of the Cattle Trespass Act and sentenced him to undergo rigorous imprisonment for a period of two months. Both the sentences were ordered to run concurrently.

In brief, the facts of the prosecution case as revealed from the record are under.

A civil suit No. 94/75 was filed by Naik, father of the Appellant, against Mangru Singh, the informant, for permanent injunction and the Plaintiff obtained ex parte temporary injunction and the parties were restrained from making construction over the disputed land. The Defendant was further restrained from objecting the Plaintiff from taking water from the well in suit. The suit was filed on 22.5.1975.

On 1.6.1975 at about 6.00 p.m. cattle (cow) owned by the accused were grazing and damaging the sugarcane crop standing in the plot owned by Mangru Singh, son of Mukhram. The cattle caused damage of the crop worth Rs. 34. The informant seized the cattle and was taking to cattle pound. The Appellant and his father, who died during pendency of the case in the court below forcibly, rescued the cattle and assaulted on the head of Mangru Singh. They assaulted with lathies and he sustained injuries. P.W. 2 Chandrama and Shiv witnessed the incident. The injured rushed to P.S. Birno and lodged an oral F.I.R. at about 7.30 p.m. on the same day. The local police registered a non-cognizable case u/s 323/426, I.P.C. and Section 24 of the Cattle Trespass Act and made entry in the G.D.

Mangru Singh got his injuries examined at the District Hospital, Ghazipur on 2.6.1975 at 11.35 a.m. by Dr. A.K. Verma.

P.W. 3 Dr. A.K. Verma found one lacerated wound 3.5 cm. ? 1/2 cm. ? 4/10 cm. on the scalp extending upward and forward from 8.5 cm. above the right ear covered with fresh blood clot and abraded contusion with swelling 5.5 cm. ? 2.5 cm. on the back. He was complaining pain also on the left genital region.

In the opinion of Dr. A.K. Verma, injury Nos. 1 and 2 were caused by blunt object. He kept under observation and advised X-ray of the scalp and chest. The injuries were about one day old at the time of examination.

Mangru Singh was admitted in the hospital on 2.6.1975 and remained hospitalized upto 12.6.1975.

A haematoma developed on the site of injury on the skull on 5.6.1975.

On 9.6.1975, the haematoma was drained out in operation theatre. He was discharged on 12.6.1975.

On X-ray of the scalp, hairline crack fracture of the right parietal bone was found.

On 13.6.1975, Mangru Singh gave an application to S.P., Ghazipur along with injury report, X-ray report, etc. and then Circle Officer, Mohamadabad directed the S.O. to investigate.

The police registered a case u/s 325, I.P.C. and investigated as usual. After investigation by S.I. Vikram Singh, the police submitted charge-sheet against father and son.

Accused Parmal was charged u/s 307 read with Sections 34 and 426, I.P.C. He was further charged u/s 24 of the C.T. Act. He pleaded not guilty to all the charges and claimed trial.

In order to prove its case, the prosecution examined P.W. 1 Mangru Singh the injured, P.W. 2 Chandrama, an eye-witness named in the F.I.R., P.W. 3 Dr. A.K. Verma, who did medical examination of the injuries. P.W. 4, S.I. Vikram Singh, I.O. of the case P.W. 5 H. C. Paras Nath Pandey, the then constable Moharrir posted at P. S. Birno, who proved non-cognizable report and copy of the G.D., P.W. 6 Dr. C. B. Singh, who got the X-ray done and P.W. 7 Lalji Prasad, X-ray Technician.

Accused Parmal in his statement given u/s 313, Cr. P.C. admitted existence of chak of the informant towards west of the village as well as filing of the civil suit by his father against Mangru Singh. He totally denied all other allegations levelled by the prosecution and attributed his false implication on account of enmity. According to him, Appellant''s father Naik had obtained temporary injunction from the Court and he (Naik) went to fetch water from the well on the impugned date and time whereupon Mangru Singh, Tej Bahadur and Ram Bahadur assaulted him. Naik used his lathi in self-defence and sustained fracture.

Accused examined D.W. 1 Dr. Kalika Singh, who examined the injuries of Naik at the District Hospital, Ghazipur on 4.6.1975 at 12.30 p.m. and D.W. 2 H. C. Virendra Bahadur Singh.

After a detailed scrutiny of the entire evidence on record as well as defence version and the evidence led by the accused also and considering the submissions made on behalf of the parties, learned Judge found Parmal guilty for the offences punishable u/s 308, I.P.C. and Section 24 of the C.T. Act and convicted and sentenced him as noted above. Hence this appeal.

I have heard learned Counsel for the Appellant, learned A.G.A. and perused the lower court record carefully.

Learned Counsel for the Appellant has assailed the impugned judgment mainly on the grounds that Appellant''s father Naik had filed a civil suit about ten days prior to the incident, in question, and had obtained temporary injunction also in his favour and as such, relations between the parties were strained. When Appellant''s father went to fetch water from the well, he was assaulted by Mangru Singh and two others and Naik sustained injuries, including fracture. Naik exercised his right of self-defence and the trial court erred in convicting the Appellant. It was urged that incident took place in the year 1975 and since then twenty nine years have elapsed and as such, it would not be just and proper to send the Appellant to jail again in case appeal was dismissed.

On the other hand, learned Counsel for the State has supported the impugned judgment and contended that the court below took into consideration the defence version and evidence also and rightly found that Naik did not receive injuries in the course of incident, in question, and prosecution could not be held responsible for non-explanation of the injuries.

On a careful consideration of the submissions made on behalf of the parties and the oral and documentary evidence on record led by the prosecution and defence, I hold that the learned Judge committed no error in appraisal of the evidence and rightly concluded that accused Parmal and his father in furtherance of their common intention attempted to commit culpable homicide and the Appellant was rightly convicted for the offences punishable under Sections 308/34, I.P.C. and Section 24 of the C.T. Act.

The Appellant filed certified copy of the order dated 22.5.1975 passed by the learned Munsif in, Naik and Anr. v. Mangru Singh Original Suit No. 94/75, and the copy of the order dated 1.10.1976 passed in the aforesaid suit. It is, therefore, obvious that a civil suit was filed by the Appellant''s father against the injured (Mangru Singh) about ten days prior to the impugned date and he obtained temporary injunction. Enmity is a double-edged weapon and it cuts both ways. Therefore, the Courts are required to scrutinise the evidence with great care and caution. In the instant case, the prosecution produced P.W. 1 Mangru Singh and P.W. 2 Chandrama, who was named as an eye-witness in the F.I.R. P.W. 1 Mangru Singh supported the prosecution version in toto and testified in very clear words that on impugned date and time, sugarcane crop was standing in his chak and he was present at his pumping set. He saw that Naik was grazing his cow in the informant''s sugarcane field and was waiting there that Naik would drive away the cattle. When he found that Naik did not drive out the cow from the field, he reached there, found the crop damaged and then he took the cow out of the field and was going to cattle pound. Thereafter, Naik rushed to his house and both father and son arrived there with lathies in their hands and rescued the cow and on the exhortation of Naik, Parmal assaulted him. Thereafter, Naik also gave lathi blow. The informant further disclosed that on his alarm, Shiv, Shivpujan and Ramkrit arrived there and saw the incident. He too used a Danda in defending himself. Mangru Singh was cross-examined extensively on behalf of the Appellant but, in my opinion, he got success in the test of cross-examination. It is noteworthy that defence tried to show some infirmities in the prosecution case on the ground that some facts were missing in the F.I.R. It may be noted that the local police registered a non-cognizable report in which summary of the offence is noted down.

P.W. 2 Chandrama whole-heartedly supported the prosecution story and corroborated the testimony of Mangru Singh. He too stated in very clear words that both father and son had assaulted Mangru Singh with lathies and Mangru Singh had defended himself with a danda. P.W. 2 Chandrama categorically stated that Mangru Singh sustained head injuries. He was also cross-examined at length but there is nothing in his cross-examination also to disbelieve his testimony.

There is sufficient medical evidence on record to the effect that Mangru Singh was assaulted on 1.6.1975 at about 6.00 p.m. and one lacerated wound on the scalp and abraded contusion with swelling were found on the left and right of spine. On X-ray, hairline crack fracture of the right parietal bone of the skull was found. It is further clear that Mangru Singh remained hospitalised in the District Hospital, Ghazipur as indoor patient from 2.6.1975 to 12.6.1975 and the haematoma developed on the site of the injury was drained out in the operation theatre on 9.6.1975.

On the other hand, the defence made unsuccessful attempt to show that Naik was assaulted by Mangru Singh and two others in the course of incident and sustained three injuries and he exercised his right of self-defence. D.W. 1 Dr. Kalika Singh was also examined to prove the injuries of Naik. But, in my view, Dr. Kalika Singh failed to help the defence. First of all, I find that no F.I.R. was lodged by Naik or his son Parmal. Secondly, the injuries of Naik were examined at the District Hospital on 4.6.1975 and there is no explanation on record regarding delay in medical examination of the injuries. Further, Dr. Kalika Singh himself demolished the defence version by admitting that injury No. 1 of Naik (traumatic swelling on the right palm, including all fingers) could be caused by fall and there was no contusion. Had the injury been caused by a lathi blow there would have been a contusion also. He added that injury No. 1 could not be caused by lathi. Thus, Dr. Kalika Singh himself gave a death blow to the defence version.

In view of the aforesaid discussion and close scrutiny of the entire evidence on record led by the parties, I find no illegality in the impugned judgment and the learned Judge rightly concluded that Appellant along with his father was responsible for causing injury to Mangru Singh. I find no good ground to interfere with the finding recorded by the trial court and I hold that the Appellant was rightly convicted u/s 308 read with Section 34, I.P.C. and Section 24 of the C.T. Act.

It is correct that incident took place in the year 1975 and the Appellant was convicted by the court below on 7.12.1981. Therefore, in view of the various decisions of this Court as well as the Apex Court, it will not be proper at all to send the Appellant to jail again after a lapse of more than twentytwo years from the date of conviction.

In the result, the appeal is partly allowed. The conviction of the Appellant u/s 308/34, I.P.C. and Section 24 of the C.T. Act is confirmed. He is sentenced to the period already undergone by him and to pay a fine of Rs. 3,000 u/s 308/34, I.P.C. and Rs. 200 u/s 24 of the Cattle Trespass Act. He is allowed to deposit total fine of Rs. 3,200 within a period of six weeks from today in the court below failing which he will have to suffer rigorous imprisonment for a total period of six months.

Copies of this judgment along with record shall be sent to the court below and C.J.M. concerned for compliance within ten days. Compliance report be sent to this Court within two months.