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Judgment
Accused-appellants assail the legality, validity and correctness of the judgment of conviction and order of
sentence dated 30.09.2003 passed by the Additional
Sessions Judge Sabalgarh district Morena in Sessions
trial No.154/99, whereby each of them stands convicted
under Section 332 of the IPC and sentenced thereunder
to suffer R.I. for two years with a fine of Rs.1000/-(one
thousand) in default to further undergo RI for two
months.
The prosecution case as emerged out in the course
of trial, in brief, is given below:
(2.1) On 15.07.98 an informer informed on
telephone to R.B.S. Bhadoriya (PW/12), the SHO of
Police Station Kailaras, that dacoits namely Omkar
Kachi and Vijendra Kachi have holed up in the
house of Heeralal (now dead) at village Nepari.
Thereupon, Sub-Inspector Shriniwas Sharma
(PW/2) with police force consisting of Head
Constables Haridas (PW/3) and Pannalal (PW/14),
Constable Murarilal (PW/10) and Home Guard
Sainiks Sardar Singh (PW/8), Gokul Singh and
Gopal Singh (not examined) reached the house of
Heeralal. Shriniwas Sharma called Heeralal out of
his house and told him that he has an information
that he has given shelter to dacoits Omkar Kachi
and Vijendra Kachi in his house. Therefore, he
wanted to take search of his house. Thereupon,
Heeralal hurled filthy abuses at Shriniwas Sharma
and the police force. He also told him that he would
not allow the police party to search his house.
Thereafter, he called out his family members and
instigated them to cordon off policemen, snatched
their rifles and beat them. Thereafter, he himself,
Jalim, Bharatlal (both are the appellants herein),
Banwari, Gutai, Lal Singh, Sunita, Kausa, Meena
Snehi and Sundar Bai, who are 11 in numbers, beat
Shriniwas Sharma and policemen with sticks and
Kharoras (a kind of stick). Sundar Bai caught hold
of Haridas and Jalim made an attempt to snatch his
rifle. In the incident Shriniwas Sharma, Pannalal
and Haridas sustained injuries. The incident was
witnessed by village Kotwar Shivcharan (PW/7),
village Sarpanch Ramlal Shakya (PW/6), Suresh
(PW/5) Balwant (PW/4) and Surendra Pawar (not
examined). Thus, the aforesaid persons deterred
the policemen from discharging their official duties.
Haridas lodged FIR Ex-P/10 on the self-same-day at
about 11.05 am stating the time of incident about
10.40 am. His FIR was recorded by R.B.S. Bhadoria
and a case at Crime No.138/98 was registered by
him against the aforementioned 11 persons under
Sections 393, 353, 332, 212, 216, 147, 148 and
149 of the IPC.
(2.2) Police personnel namely Shriniwas Sharma,
Pannalal and Haridas had been sent to medico-legal
examinations to Primary Health Centre Kailaras,
where on 15.07.98 Dr. F.C. Bansal (PW/1)
examined them and he gave their MLC reports Ex-
P/2, Ex-P/4 and Ex-P/6 respectively. Upon his
advice, on 18.7.98 Radiologist Dr. Yogendra Singh
(PW/9) took X-ray of Pannalal''s thorax region in
district hospital Morena. He found fracture in his
first rib of the left side and gave his report Ex-P/17
with X-ray plate Ex-P/18.
(2.3) Shri R.B.S. Bhadoriya (PW/12) carried out
the investigation in the case. He prepared spot map
Ex-P/11, arrested accused persons and recorded
case diary statements of the persons who were
conversant with the case. He also got the spot map
of the place of incident Ex-P/19 prepared by village
Patwari Banwarilal (PW/11).
(2.4) Upon completion of the investigation, the
police filed a charge-sheet against seven accused
persons namely Heeralal, Jalim, Bharatlal, Gutai,
Banwari, Angad and Lal Singh for their prosecution
for the offences punishable under Sections 353,
332, 212, 216, 147, 148, 149 and 333 of the IPC in
the Court of Judicial Magistrate First Class
Sabalgarh. Vide order dated 24.05.99, the learned
JMFC committed the case for trial to the Sessions
Court. Thereupon, Sessions Case No.154/99 was
registered and was made over for trial to the Court
of Additional Sessions Judge at Sabalgarh district
Morena.
The learned Additional Sessions Judge framed the
charges against all the 7 accused persons for the
offences punishable under Sections 147, 333 r.w. 149
(for causing grievous injury to Head Constable Pannalal)
and 332 r.w. 149 IPC (for causing simple injuries to SI
Shriniwas Sharma and Head Constable Haridas). The
accused persons pleaded not guilty to the charges.
Thereupon, they were put on trial. At the stage of
prosecution evidence, accused Heeralal died on
18/6/2002. Thereupon, the learned ASJ closed the case
against him. In the examination under Section 313
Cr.P.C., the accused persons denied all the incriminating
evidence and circumstances appearing against them in
the prosecution evidence. They took the defence,
simpliciter, that they were falsely implicated in the case.
However, they did not adduce any evidence either oral or
documentary in their defence.
Having scrutinized and appreciated the prosecution
evidence and considered the defence plea, the learned
ASJ has held accused Lal Singh guilty for committing an
offence punishable under Section 333 and accused Jalim
and Bharatlal for the offence punishable under Section
332 IPC. Accused Lal Singh was sentenced to suffer RI
for 5 years with a fine of Rs.2000/- (two thousand) with
default stipulation. Accused-appellants Jalim and
Bharatlal were sentenced to suffer RI for two years with
a fine of Rs.1000/- with default stipulation each. Feeling
aggrieved by the verdict, they have jointly filed this
appeal under Section 374(2) of the CrPC. During the
pendency of this appeal, accused-appellant Lal Singh
took the plea that he was juvenile at the time of
incident. Thereupon, this Court passed an order dated
10.5.2013 directing the trial Court to determine what
was the age of accused Lal Singh on the date of incident
by holding an enquiry in accordance with law. Thereafter,
the successor learned ASJ submitted his enquiry report
dated 3.10.2013. According to his report, on the date of
incident, the age of Lal Singh was 16 years and 3 days.
Upon the perusal of proceedings of various dates of
hearing after the receipt of the enquiry report, no order
is passed by this Court. Now on the basis of the enquiry
report, the conviction and sentence passed on Lal Singh
vide the impugned judgment is quashed being invalid
and it is directed that he be tried in the concerned
Juvenile Justice Board in accordance with law. In view
whereof, this appeal survives only against accused-
appellants Jalim and Bharatlal.
Learned counsel for the accused-appellants
submitted that their convictions are based upon the
evidence of police personnel because all the independent
eye witnesses have turned hostile and that they have not
supported the prosecution case even a bit when they are
subjected to cross-examination by the prosecution.
Therefore, the learned ASJ has gravely erred in placing
reliance upon the evidence of policemen because it is but
natural for them to support the prosecution case
suppressing the true facts behind the incident. Hence,
the impugned judgment is liable to be set aside.
Alternatively, he submitted that the incident occurred in
the year 1998 and this appeal is being disposed of finally
on merits in the year 2017. Thus, they have been
suffering agonies of the trial mentally and monetarily
near about 19 years. At the time of incident, they were
in the age group of 20-25 years. Now, they are men of
the middle age group, and they are shouldering the
responsibilities of their families. Therefore, no useful
purpose will be subserved to send them in prison to
serve out the remaining jail sentence. He submitted that
they had suffered judicial custody for a period of 3 days
and that they had already deposited the fine amount. He
submitted that under Section 332 of the IPC,
imprisonment is not mandatory, only the fine sentence
can be imposed. Therefore, they may be sentenced for
the period of jail sentence they had already undergone
with fine already imposed and if this Court deems just
and proper the sentence of fine may be reasonably
enhanced in case this Court is pleased to uphold the
impugned judgment.
In reply, learned Public Prosecutor submitted that it
is true that the independent eye witnesses have not
supported the prosecution case, but it is not the rule of
law that conviction cannot be based upon the evidence of
police personnel if their evidence is found reliable and
trustworthy and free from material contradictions and
inconsistencies. He submitted that in the present case
there is a consistency in the evidence of police personnel
and their evidence is supported by medical evidence.
Therefore, the learned ASJ has not erred in convicting
the accused persons placing reliance upon their
evidence. He submitted that the learned ASJ has
imposed reasonable jail sentence upon them and that
taking into consideration the facts of the case in right
perspective no lenient view is required in this respect. Upon these submissions, he prayed for dismissal of the
appeal as it is devoid of merits and substance.
This Court has considered the rival submissions
made at the Bar and perused the impugned judgment
and the material on record.
Upon the perusal of the evidence of independent
eye witnesses namely Balwant (PW/4), Suresh (PW/5),
Ramlal Shakya (PW/6), Shivcharan (PW/7) and Sardar
Singh (PW/8), it is found that they have not supported
the prosecution case and turned hostile. The prosecution
subjected them to gruelling cross-examination under the
provision of Section 154 of the Evidence Act, but nothing
has come out in support of its case. As such, the learned
ASJ has convicted the accused persons upon the
evidence of police personnel and medical evidence. In
the cases of Govindaraju alias Govinda v. State, AIR
2012 SC 1292, Girja Prasad (Dead) by L.Rs. v. State of
M.P ., AIR 2007 SC 3106, and State Govt. of NCT of Delhi
v. Sunil and another, (2001) 1 SCC 652, the Supreme
Court has held that the conviction can be based upon the
evidence of police personnel provided that their evidence
is reliable and trustworthy. In view of the aforesaid case-
law, it will be seen whether the learned ASJ has relied
upon the evidence of police personnel after close and
critical scrutiny of their evidence?
Shri Shrinivas Sharma (PW/2) has stated that on
the date of incident i.e. 15.07.98 he was posted as Sub-
Inspector at Police Station Kailaras. On the same day,
R.B.S. Bhadoriya (PW/12) was posted as the SHO of the
said Police Station. On that day, R.B.S. Bhadoriya got a
secret information that dacoits namely Omkar Kachi and
Vijendra Kachi, who are the accused of the Crime
No.112/98 registered at Police Station Kailaras under
Sections 395 and 365 IPC, have been hiding in the house
of Heeralal (deceased accused) at village Nepari. This
information was entered into Rojnamachasana No. 647
dated 15.07.98 being P/7-A. Thereupon, R.B.S.
Bhadoriya ordered him to verify the information. Later,
he along with Head Constables Pannalal (PW/14) and
Haridas (PW/3) and Constable Murarilal (PW/10) and
Sainik Gopi Lal and Gopal went to village Nepari taking
rifles. This entry was made into Rojnamachasana No.
650 dated 15.7.98 being Ex-P/8. He has further stated
that village Kotwar Nepari Shivcharan (PW/7) showed
the police party the residence of Heeralal. He called him
out and apprised him of the secret information. Later, he
asked him to give the search of his house. Having heard
so, he called out his family members. At that time,
accused Jalim and Bharatlal came out with lathis.
Heeralal and others inflicted lathi blows on his head and
other parts of his body. He sustained injuries on his
head, hands and back. Haridas and Pannalal were also
beaten and they also sustained injuries. For this reason,
they could not took the search of Heeralal''s house and
had to return empty-hands. After arriving at police
station, he made the entry of the incident into
Rojnamachasana No.653 dated 15.7.98 being Ex-P/9. He
has also stated that Haridas lodged FIR Ex-P/10 of the
incident and that he, Haridas and Pannalal had been sent
for medico-legal examinations. Upon the perusal of his
cross-examination, it is found that there are no material,
contradictions, omissions or inconsistencies between his
evidence and the contents of the FIR. Thus, there is no
ground to disbelieve his evidence.
Head Constables Haridas (PW/3) and Pannalal
(PW/14) and Constable Murarilal (PW/10) have
corroborated the evidence of Shriniwas Sharma in
material particulars. Haridas has also deposed that
accused Jalim and Lal Singh beat him with lathis. As a
result, he sustained injuries on his back. Accused Jalim
also made a futile attempt to snatch his rifle. He has also
proved FIR Ex-P/10. Pannalal has also testified that
accused Bharatlal inflicted a blow of Kharora (stick) on
his left chest. Upon the meticulous reading of their cross-
examination, it is found that there is nothing adverse to
discredit their evidence. Moreover, there are
consistencies in their evidence on all the material
particulars, which lends credence to the incident as
depicted in the FIR and their evidence.
Dr. F.C. Bansal (PW/1) has stated that on 15.07.98
he medico-legally examined Sub-Inspector Shriniwas
Sharma, Head Constables Pannalal and Haridas. On
examination of Shriniwas Sharma, he found a lacerated
wound on his left head, contusions on right and left
shoulders, right back, posterior of head and one abrasion
on left knee. On examination of Pannalal, he found a
contusion on his left chest for which he advised x-ray. On
examination of Haridas, he found contusions on fourth
and eighth ribs of the right side and on outer side of his
left hand. He has also stated that their injuries were
about twelve hours old. Shriniwas Sharma and Haridas
sustained simple injuries with hard and blunt object(s).
He has proved MLC reports of Shriniwas Sharma,
Pannalal and Haridas Ex-P/2, Ex-P/4 and Ex-P/6
respectively. Dr. Yogendra Singh (PW/9) has testified
that on 18.07.98 he took X-ray of the chest of Pannalal
and found that he had a fracture in his first rib of left
side. His report is Ex-P/17 and the X-ray plate is EX-
P/18. The defence has cross-examined both the doctors,
but there is nothing in their cross-examination to
disbelieve their evidence. Thus, it is proved from the
medical evidence that on the date of incident i.e. 15.7.98
Shriniwas Sharma, Pannalal and Haridas sustained
injuries in the incident.
Now this Court comes to the sentence part of the
judgment. It has been already stated that the police
registered the FIR against 11 named persons. The record
of the trial Court and the evidence of Manoj Kumar Rai
(PW/13), the then Sub-divisional Police Officer Kailaras,
reveal that he had made a separate enquiry into the
incident upon the orders of the Superintendent of Police
Morena. He found that named accused in the FIR Sunita,
Meena, Snehi, Kausa and Sundariya were not involved in
the crime. On the basis of his enquiry report, the police
had not charge-sheeted them and only seven accused
persons were charge-sheeted. The learned trial Judge
has convicted juvenile Lal Singh and accused-appellants
Jalim and Bharatlal and acquitted 4 accused persons. As
per the FIR and the statements of the material
prosecution witnesses, the incident occurred upon the
instigation of accused Heeralal, but he had died during
the trial of the case. The learned trial Judge convicted
juvenile Lal Singh under Section 333 of the IPC for
causing grievous injuries to Head Constable Pannalal
(PW/14). The record reveals that accused-appellants
Jalim and Bharatlal have been facing trauma of the trial
for about last nineteen years, that they have no criminal
antecedents, that they have deposited fine amounts
upon the order of this Court passed at the time of
suspension of their jail sentences, that they belong to
the poor and semi-literate society and that they
remained in judicial custody for two days. At the time of
incident, they were in the age group of 22-24. Now, they
are the men of middle age group. In these circumstances
of the case, this Court is of the firm view that no useful
purpose will be subserved in sending them to undergo
the remaining jail sentences after a passage of nineteen
years. It would be just and proper that they be jail
sentenced for the period they had already spent
maintaining the fine sentences imposed on them by the
trial Court.
For the foregoing reasons and discussions, this
appeal is partly allowed. The convictions of accused-
appellants Jalim and Bharatlal under Section 332 of the
IPC are affirmed but their jail sentences have been
reduced to the period they had already undergone, while
maintaining the fine sentences. Their bail-bonds shall
stand cancelled.
Accordingly, this appeal is finally disposed of.