AI Structured Summary
Not yet generated for this judgment
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.