Rakesh, Rati Ram and Naresh vs State of U.P.

M.K. Mittal, J.—Appellants Rakesh son of Sri Ram, Rati Ram son of Chhadami, Naresh son of Maharam all residents of village Nagla, Mohammadpur, P.S. Kotwali, District Mainpuri have preferred this appeal against the Judgment and order dated 29.3.2006 passed by Sri Bhopal Singh, Addl. Sessions Judge, Court No. 4, Mainpuri in S.T. No. 2298 (Crime No. 817 of 1996), whereby they have been found guilty and convicted under Sections 307/34 IPC and have been sentenced to undergo rigorous imprisonment for six years and fine of Rs. 2000/- has also been imposed on each of them with default stipulation of six months rigorous imprisonment.

Brief facts of the case as disclosed in the first information report Ex ka-1 lodged at P.S. Kotwali, District Mainpuri on 7.8.1996 at 6.4:) p.m. are that Ved Ram uncle of the informant Suresh Chand had purchased a land from Sri Ram, father of the accused Rakesh through a sale deed. On that account Rakesh nurtured enmity with Ved Ram. On 7.8.1996 at al out 5 p.m. when Ved Ram was cutting wood near his house accused Rakesh, Vinod and Rati Ram armed with knives and Naresh, maternal uncle of Rakesh, armed with country made pistol came there abusing Ved Ram and said to kill him. At this the accused with intention to kill attacked Ved Ram with Knives and Naresh fired at Ved Ram from his country made tamancha but the fire missed. Thereafter he gave blows with the butt of the tamancha and on the alarm raised by Ved Ram the informant his father and Pradeep, chokhey Lal, Smt. Krishna reached there and saw the incident and saved Ved Ram. Villagers also came there and when challenged, the accused vent away threatening and abusing.

Constable Sobran Singh, P.W.-5 was posted at police Station Kotwali on 7.8.1996 as Head Moharrir. On the basis of the written report lodged by Suresh Chandra, he prepared the check report Ex-ka-6. He also registered the case in the general diary same day at 6.40 p.m. and its copy is Ex-ka-7.

Injured Ved Ram was sent to District Hospital, Mainpuri where Dr. Sudhir Kumar, P.W.-3 was posted as Medical officer. He examined Ved Ram on 7.8.1996 at 7 p.m. and found the following injuries on his person:

Incised wound 5cm X 1.5 cm X cavity deep, margins were clear cut and fresh blood was present. Omentum was coming out from the wound which was on the left side of upper abdomen 13 cm from umbilicus at 1 o''clock position. Injury was kept under observation and X-ray was advised.

Incised wound 2.5 cm X 0.5 cm X muscle deep on epygastrum, margins were clean cut and fresh blood was present. It was 10 cm above umbilicus at 12 O''clock position.

Incised wound 7 cm X 1.5 cm X muscle deep on front of left fore arm, margins were clean cut and fresh bleeding was present, injury was semi circular in shape. It was 8 cm below left elbow.

Incised wound 1 cm X 0.5 cm X muscle deep, 4.5 cm below left auxilla, margins were clean cut and fresh bleeding was present.

Multiple lacerated wounds in an area of 16 cm X 8 cm varying in size from 6 cm X 1.5 cm to 5cm X 0.5 cm. They were muscle deep on skull. Fresh bleeding was present.

According to medical officer injury Nos. 1 to 4 were caused by sharp edged weapon and injury No. 5 by some blunt object. Doctor prepared injury report Ex-ka-2. According to him the injuries could have been caused on 7.8.1996 at about 5 p.m. and injury No. 1 was serious and could have resulted in the death of injured.

Dr. S.D. Poppi P.W.-4 was posted as Surgeon in S.N. Hospital. Agra on 13.9.1996. Ved Ram was admitted on 8.8.1996 and his operation was conducted and was discharged on 13.9.1996. Doctor proved the discharge slip Ex-ka-3 and the papers of the X-ray department Ex-Ka 4 to 5.

Case was investigated by S.I. K.P. Singh, P.W.-6. He started investigation on 7.8.1996. He interrogated the injured Ved Ram. He also interrogated Suresh Chandra, and inspected the place of occurrence on 8.8.1996 at the pointing out of this witness and prepared the site plan Ex-ka-8. He also interrogated other witnesses and after compiling the investigation submitted the charge sheet Ex-Ka-9 against the accused persons.

Case of the accused persons was committed to the Court of Sessions on 15.11.1998 by Chief Judicial Magistrate, Mainpuri. The accused were changed u/s 307/34 IPC on 20.3.1998. Accused pleaded not guilty and claimed trial.

In support of its case, prosecution led evidence and besides the above noted formal witnesses examined Ved Ram P.W.-1 and Pradeep P.W.-2 as witnesses of fact and occurrence. These two witnesses have stated the prosecution case on oath.

Accused were examined u/s 313 Cr.P.C. They denied the prosecution case and contended that they have been falsely implicated in this case. However accused did not adduce any oral evidence in their defense. Case of accused Vinod was separated on account of his being juvenile on the due of the incident after his examination u/s 313 Cr.P.C.

Learned Trial Court on the basis of the evidence came to the conclusion that the accused persons attacked Ved Ram with intention to kill him and caused him injuries and that the prosecution had been able to establish its case beyond reasonable doubt. Consequently he convicted the accused persons as aforesaid. Feeling aggrieved, this appeal has been filed.

Heard Sri B.R. Singh, learned Counsel for the appellants, Sri S.L. Kesharwani, learned A.G.A. and perused the trial Court record.

Contention of learned Counsel for the appellants is that they nave been wrongly implicated in this case on account of enmity as the injured Ved Ram was accused in the murder case of Sri Ram, father of the appellant Rakesh. He has also contended that prosecution did not adduce any independent witnesses and has only examined the injured and his son Pradeep who was a child at the time of the incident. He has also contended that learned Trial Court has also erred in accepting the evidence of the injured and his son and has wrongly convicted the appellants and that the appeal is liable to be allowed.

Against it learned Counsel for the state has contended chat the appellants nurtured enmity with the victim because he had purchased the pilot from Sri Ram father of the accused and he was implicated in the murder case of Sri Ram. He has also contended that the prosecution case has been stated by the victim himself and has been corroborated by the medical evidence as well as the testimony of Pradeep son of injured and that there is no reason to discard their testimony. According to learned Counsel for the state, learned trial court has rightly convicted the appellant, as the prosecution had been successful in establishing its case against appellants beyond reasonable doubt. In order to appreciate the contention of the respective parties, it will be appropriate to refer the statements of the witnesses of fact and occurrence.

P.W.-1 Ved Ram has stated on oath that it was about 5 p.m. when he was cutting wood in his field. At that time the accused Rati Ram Rakesh, Vinod armed with knives and Naresh maternal uncle of Rakesh armed with tamancha came there and abused him and threatened him and with mention to kill attacked him. According to this witness, Rakesh, Vinod and Rati Ram gave him knife blows whereas Naresh fired at him with tamancha but that fire missed. Thereafter he gave blows with the butt of the tamanci a on his head and caused him injuries. The incident was seen by Suresh, Pr deep his wife Smt. Krishna and brother Chokhey Lal. He received injuries in his stomach, hand and head. He had purchased sale deed from Sri Ram, father of Rakesh. Rati Ram and Sri Ram had fired at him in the year 1980 and they were convicted and on that account they nurtured enmity. After receiving injuries he remained conscious and went to police station with his brother and nephew. He was medically examined and X-ray was also done He was referred to medical college for treatment. In cross examination he seated that he did not know whether the first information report regarding murder of Sri Ram was lodged against him, Roshan Lal and Sukhram. He had purchased land from Sri Ram. He denied that no money was paid for the land. He reached police station at about 6.30 p.m. The distance is about 6-7 kilometers. He was admitted in the hospital at Agra in the night at about 12. He remained in the hospital for more than one month and had discarded his blood stained underwear. He also stated that at the time of incident he has Rearing only under wear. Suit for cancellation of sale deed executed by Sri Ram was pending. He was cutting wood with gadasha. At the time of incident he was collecting the already cut wood as he had kept the gadasha at his house. Subsequently he stated that his earlier statement that he was cutting the wood at the time of incident is correct. He denied the suggestion that he did not receive any injury on his head. Witnesses had come soon. He denied the suggestion that in order to avoid the murder case of Sri Ram he lodged a false report against Rajesh and his companions. His son and nephew were only witnesses present at the time of incident. He also denied the suggestion that in order to avoid the sale deed of Sri Ram, he filed the false report. This witness was re-examined and he stated that the first information report was written by Suresh Chandra at his dictation. He proved it Ex-ka-1. He was again cross examined and he stated that he did not write the first information report himself. He denied that it was not dictated by him and that he was unconscious at that time.

Pradeep P.W.-2 who is son of the injured has given his age is 12 years on the date of examination i.e. 21.10.2000. This witness has stated that incident took place about 4 years back. He was standing near his father Ved Ram when the accused Rakesh, Ratiram and Vinod armed with knives and Naresh armed with tamancha came there and in furtherance of their common intention they attacked his father. Three accused Rakesh, Ratiram and Vinod gave knife blows whereas Naresh fired at his father but the fire missed. Then he gave blows with the butt of the tamancha and his father raised alarm on hearing which his mother Smt. Krishna, tau and brother Suresh came there and they all challenged the accused who went away. His father received knife injuries in his stomach, hand and tamancha injuries on his head. In cross examination he has stated that he does not know if his father had purchased any land from Sri Ram. Sri Ram was murdered but he does not know that any report was filed against his father in that matter. The guava tree was being cut. He was taking the cut wood to his house and his father was cutting wood. Mother was at the house of his tau which was at a distance of about 6-7 steps from the place where the wood was being cut. He did not tell the investigating officer that he had gone to call his mother from the house of his tau. He had also shouted after hearing the cries of his father. The marpeet continued for about 10-12 minutes. He did not go to police station. His father was wearing only underwear at the time on the incident. He, denied the suggestion that his father had killed Sri Ram, father Rakesh and in order to avoid that case, he lodged this false report.

The evidence of the witnesses as has come on record clearly establishes the fact that the injured Ved Ram was attacked and was given blows with the sharp edged weapon as well as blunt weapon. According to the injured he was attacked with the knife and butt of the tamancha and he received injuries. According to the medical evidence, injury No. 1 of Ved Ram was grievous as omentum had also come out and this injury could have proved fatal. The day, time and place of occurrence has not been disputed by the defense also.

Now, it has to be seen whether this incident was caused by the accused persons in the manner as alleged by the prosecution. In order to substantiate its case, prosecution examined the injured Ved Ram and his son Pradeep. In this case, the first information report was lodged by Suresh nephew of injured who also claimed himself to be eye witness. But he has not been examined. According to Ved Ram at the time of incident his wife Smt. Krishna and brother Chokhey Lal had also come but in cross-examination he says that Pradeep and Suresh were eye witnesses. In the circumstances of the case, if Suresh has not been examined it is not material.

Learned Counsel for the appellants has contended that Ved Ram was inimical towards the accused persons because he was accused in she murder case of Sri Ram, father of the accused Rakesh and also that the injured Ved Ram had obtained the sale deed from Sri Ram without making any payment land that matter was challenged in civil court as suit for cancellation of sale deed was pending and in order to avoid these proceedings and to pressurize the accused persons this false report was made by Ved Ram. As far as the question of sale deed is concerned, it is not disputed that Ved Ram got the sale deed executed from Sri Ram prior to this incident. It has also come in his evidence that the suit for cancellation of sale deed was also pending. However he has denied that sale deed was obtained by him from Sri Ram under the influence of intoxication or that without making any payment. Although Ved Ram has denied that he was accused in the murder case of Sri Ram but even if for arguments sake it is found that he was named in the first information report it could be a motive for accused to act as well as he might have been interested in taking revenge from the injured Ved Ram a person responsible for the death of his father. Therefore the facts of the case show that both the parties were aggrieved and if the complainant had any motive for false implication accused had also motive for attacking the inured Ved Ram.

The facts and circumstances of the case as have come on record show that accused persons had a greater motive as they were more aggrieved because of the murder of Sri Ram and also the execution of sale need by Sri Ram in favour of injured Ved Ram. Injured Ved Ram made a positive statement that he was attacked by accused persons with intention to kill him and although he has been cross examined at length, there is no challenge to this part of his statement. He has specifically denied the suggestion that he implicated the accused persons falsely in order to avoid the fictitious sale deed and also to avoid the murder case of Sri Ram. If a person is attacked, it is not probable that he would substitute the assailants by persons with whom he has enmity. An addition may be possible but not complete substitution. It the injured Ved Ram was attacked by other persons he could have implicated the accused along with those persons but it is not probable that only on account of inimical terms he would implicate the accused persons falsely.

Learned Counsel for the appellants has also contended that the prosecution did not examine any independent witness to substantiate its case. It has come in the statement of the injured that when the incident took place his son was present and soon his nephew Suresh and father Chokhey Lal had arrived. He does not mention about the presence of any independent witness in his first information report. He has not named any villagers to have arrived and to have seen the incident. In the circumstance, if the prosecution did not examine any independent witness it is not material particularly when the testimony of Ved Ram is reliable and is to be accepted. Testimony of the injured has been corroborated by statement as given by Pradeep P.W.-2 son of the injured and also by the medical evidence. Thus I come to the conclusion that the evidence as has come on record is sufficient to establish the prosecution cane that the accused persons had an attacked the injured Ved Ram as alleged by aim.

Section 307 IPC reads as under-

Attempt to murder: whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.

Contention of learned A.G.A. is that the accused attacked Ved Ram with intention to kill him. They came prepared and armed with knives and tamancha and the accused gave repeated blows to the injured with knies and the accused Naresh also fired with tamancha at Ved Ram although it missed and thereafter he gave blows with the butt of tamancha on the head of Ved Ram. This shows that the accused had intention to kill the injured

In the case of Hari Mohan Mandal v. State of Jharkhand (49) 2004 ACC 347, it has been held by the Hon''ble Apex Court that to justify, a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coining to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even, in some cases be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if, any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this, section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. In a recent case of Lachman Singh v. State of Haryana (2007) 1 SCC 123, the observations made in the case cited above have been reiterated.

In the instant case, the accused attacked Ved Ram with intention to kill him and also caused him injuries and even one of the injuries caused could have proved fatal and it shows that they had intention to kill Ved Ram. In this case all the accused did overt act in furtherance of their common intention and therefore all are vicariously liable for their act. The existence of common intention has to be inferred from the attending circumstances of the case and the conduct of the parties and no direct evidence of common intention is necessary. If the accused have common intention then every one of them liable for the act done by the others.

Learned Counsel for the appellants has contended that the learned Trial Court has awarded excessive sentence to the accused persons and that the appellants Rakesh and Rati Ram are in jail for quite some time. Considering all the facts and circumstances of the case if sentence is reduced from six years to three years the interest of justice will be served. With this modification, appeal is liable to be dismissed.

Conviction of the accused u/s 307/34 IPC is hereby confirmed. However their sentence is modified from six years rigorous imprisonment to three years rigorous imprisonment. The fine as imposed on them with default stipulation is confirmed. Appellants Rakesh and Rati Ram are in jail and they shall continue to serve out the sentence as imposed on them. Appellant Naresh is on bail. His bail bonds are cancelled, Learned Trial Court is directed to issue non bailable warrants against Naresh to ensure that he is committed to custody forthwith to serve out the sentence. With the above modification the appeal is hereby dismissed.

Copy of the Judgment be certified to learned Trial Court without any delay and learned trial court shall also inform the jail authorities concerned accordingly. Compliance report be sent within a month. The rail court record be also sent back.