Allahabad High CourtBabu Son Of Buddhan And Ors. vs The State on 12 October, 1995Equivalent citations: 1996CRILJ2116ORDER
 

G.S.N. Tripathi, J.1. The then Mrd Addl. Sessions Judge, Bulandshahr vide his judgment and order dated 6-4-79 passed in S.T. No. 268 of 1978 State v. Babu Singh and Tejpal, held the accused appellants Babu and Tejpal guilty of a charge UnderSection 326/34IPC and 326IPCrespectively and sentenced them to undergo 4 years R.I. Co-accused Samai Singh was given benefit of doubt and acquitted.2. The prosecution case started on the basis of the FIR Exhibit Ka 1 lodged by Sohan Lal, PW 2 at the Police Station Sayana on 28-8-76 at 7 a.m. The occurrance took place in the same morning at about 6 a.m. The distance of the police station is 2 miles. It has been alleged that on the date of occurrance i.e. 28-8-76 around 6 a.m. the complainant's brother Mohan Lal, PW 1 was going to ease out. When he reached near the houses of Gopal and Tejpal accused, there were 8-9 other persons. They all pounced upon the complainant. Tejpal pierced his knife and badly injured Mohan Lal. The witnesses arrived after hearing the alarm, including Dal Chand. Dal Chand was injured by the knife by the accused. Thereafter, the accused bolted away. In the FIR, names of 9 accused in all have been mentioned.3. On the basis of the written report, chik was prepared at the police station by Constable Rajbir Singh and the case was registered in the G.D. The injured persons were referred for medical examination. Dr. S.U.K. Zuberi, PW 7 medically examined Mohan Lal at the District Hospital, Bulandshahr at 10.10 a.m. and found three incised wounds in the abdominal portion. details of which have boon given in the judgment of the learned lower Court. The injuries were serious in nature and they could prove fatal. They were caused by a sharp-edged weapon like knife. They were fresh. As the condition of the victim was very serious, he was referred to Safdarganj Hospital, Delhi, where he was examined by Dr. Suresh Pandit. He found three stab wounds-one of the wounds had pierced upto 5th and 6th vertibra, causing traumatic paralysis. The patient was discharged on 21-9-76 and his traumatic paralysis could not be cured. That has become a life-long gift, vide the statement of PW 6 Dr. A. Sural, who has proved his medical report prepared by Dr. Pandit.4. Dr. Indra Singh, P.W. 4 medically examined Dal Chand at PH. C. Siyana on 28-8-76 at 7.45 a.m. He had found a cut wound in the right hand finger of the victim. This injury was simple in nature, quite fresh and could have been caused by knife at 6 a.m. on that very date.5. The investigation was taken in the hand by Sri Sheo Prakash Sharma, who conducted in a very clumsy slip shod manner. He reached the spot on 14-9-76 because the injured as well as the complainant both were outside the district. He prepared the site-plan and after interrogating the witnesses, he submitted the charge sheet on 22-10-76.6. In order to prove its case, the prosecution has examined PW 1 Mohan Lal, the injured. He has said that near the house of the accused Babu and Tejpal, he was overpowered by them by saying that he had been instrumental in lodging the report against them and causing mental anxieties to them. Accused Babu caught hold of his hands and brought him on the ground. Tejpal pierced his knife in his body and he thereafter became absolutely powerless. Dal Chand had came to his rescue, who also received injury Thereafter, he was shifted to the police station and then to Saiyana Hospital and thereafter to the District Hospital Bulandshahr and finally to the Safdarganj Hospital, Delhi.7. PW 2 Sohan Lal is the complainant. He has narrated the story as contained in the FIR. He has exonerated the other 7 accused by saying that he could not identify them correctly. In other respects, his statement is the same.8. PW 3 Rajmal arrived on the spot after hearing the alarm and saw the accused injuries to Mohan Lal.9. Other evidence is formal in nature. For instance PW 4 Dr. Indra Kumar has proved the injury report of Dal Chand, PW 7 Dr. Zuberi has proved the injury report of Mohan Lal and PW 6 Dr. A. Sural has proved the injury report prepared at the Safdarganj Hospital, Delhi.10. PW 5 Dr. Sheo Prakash Sharma is the Investigating Officer.11. The accused in their statements underSection 313Cr. P.C. have generally denied the allegations against them. They have said that on account of enmity, they have been falsely implicated. The accused have led no evidence in defence.12. After appraisal of the entire evidence and circumstances on the record, the learned lower Court came to the conclusion that the prosecution case was fully proved against the accused Babu and Tejpal appellants alone. He convicted and sentenced them as noted above. Co-accused Samari Singh was given benefit of doubt and acquitted.13. The accused have felt aggrieved and filed this appeal.14. I have heard learned counsel for the parties at stretch and gone through the record. I find that there is absolutely no force in this appeal and it deserves to be dismissed.15. The fact that Mohan Lal had received injuries is proved from the statements of Dr. Zuberi and Dr. Sural. They have not been seriously cross-examined. The only cross-examination of Dr. Suraj is that these injuries could not be fatal. To Dr. Indra Singh, it has been put that the injuries could have been caused by a spear and they were 4-6-hours old. Not only this, it was suggested to Mohan Lal in paragraph I of the cross examination that he had in fact received injuries around 3 or 4 a.m. at the hands of. some unknown persons and on account of enmity, he has falsely implicated Babu and Tejpal, accused, Hollowness of this suggestion is explicit. It was not put to the Doctors aforesaid that these injuries could have been caused around 3-4 a.m. in that morning. The Doctors have found the injuries to be fresh. Dr. Zuberi had examined the injuries at 10.10 a.m. They were bleeding at the time of examination. Therefore by no stretch of imagination, it could be said that the injuries could have been received around 3-4 a.m. in the morning. Not only this, if it were a fact that the injuries had been received at 3-4 a.m., they must have lodged the report earlier as the police station is about 2 miles. The hospital is also nearby. So the suggestion that the injuries could have been received at 3-4 a.m. is absolutely without any substance and has been rightly rejected by the learned lower court.16. It is also established that these injuries although could not have proved fatal.... they caused a permanent traumatic paralysis to Mohan Lal and that will remain till his life. So he has been permanently incapacitated and made handicapped. Not only this, the injured remained in the Hospital for nearly a month. So from all standards, this is a case in which the charge prima facie underSection 326IPC is established.17. Now the question is as to whether these accused were responsible for causing the injuries aforesaid. There was a background of enmity. In the FIR itself it has been mentioned that there was a litigation between the parties and on account of that the accused were feeling inimical towards the complainant and his brother. Mohan Lal has stated in the Examination-in-Chief that his brother Sohan Lal was holding a cycyle repairing shop. On account of that, there was dispute between Tejpal's father Gopal and Sohan Lal. Tejpal had filed a criminal case in 1973 against the complainant. In the cross-examination, in paragraph 3, further he has said that Tejpal launched the criminal case against him and he had taken it ill when Gopal accused had falsely implicated him in a criminal case. However, he was given the benefit of doubt of First Offenders' Act. His brother Sohan Lal was also a co-accused.18. Sohan Lal, PW 2 has also staled that it was 4-5 years prior to the incident that Tejpal and his father Gopal had assaulted him. There was a dispute regarding the cycle repairing shop as well and the criminal case has been launched. This way, right from the very inception, the prosecution has admitted that there was an enmity between the parties. Not only this, even the accused have stated that there was an enmity and on account of that, they have been falsely implicated. Enmity is a double edged weapon and it cuts both ways. However, the question is as to whether the accused have been falsely implicated on account of enmity. As held earlier, the factum of injuries to Mohan Lal and Dal Chand is not disputed in this case. Therefore, if the injured persons had really seen the assailants, they would normally not let them go and substitute them by imaginary persons. That is against the rule of nature. Since the injuries were there, only the real assailants could have been implicated and not substituted by others.19. The nature of injuries is such that the assailants must have come in a very close contact with the victim. They were unwittingly helping the victim to identify them without any mistake and that is what has happened in this case. Therefore, it cannot be said that Mohan Lal, PW I would not have identified his assailants. I find that the injuries of Mohan Lal could not have been caused by spear, rather, they could have been caused by the knife only. Role of Babu is that he caught hold of the victim Mohan Lal and brought him on the ground vacilitating Tejpal to cause knife injuries. Had Babu not played this role, it was quite likely that the victim might have run away. But the act of Babu fully ensured that the injured had to be done to death. It was a providential escape that Mohan Lal escaped death. A very lengthy cross-examination has been faced by Mohan Lal. But he has remained unscathed and unscratched. Simply because he was interrogated after a lapse of time, for his fault, because he was himself hospitalized for over a month, it will not belie the prosecution story. He has described the manner in which he was shifted from one hospital to another. A look at the injury report shows that he must have been semiconscious after receipt of these injuries. Therefore, a detailed and photographic description cannot be expected from him. In paragraphs, he said that he tried to get up after receipt of the injuries. But Babu did not permit him to do so. Further, he says that he is semi-literate. He could only sign his name and nothing more. Therefore,-I find that after ignoring the minor tit-bits here and there, solitary statement of Mohan Lal is sufficient to record a conviction in this case. He has also proved the injuries of Dal Chand. Therefore, the presence of Dal Chand cannot be disputed nor, in fact, it has been disputed.20. Sohan Lal, it seems, reached after the occurrence had taken place, but soon thereafter. It appears from his statement that he had named some other persons along with these appellants on account of suspicion. He said that after seeing the injuries of his brother, he himself became semi-conscious. But he admits that in fact, only these two appellants were the real assailants. Since others were also present and they were morally supporting these accused, he had named them in the FIR. I think that those persons have already been let off by the police. No adverse inference can be drawn against the prosecution on this ground. He moved the machinery of law without delay and lodged the report. Therefore, the statement of Sohan Lal, PW 2 is only of a corroborative value, although he is not technically proved to be an eye witness of the actual assault.21. PW 3 Rajmal is an independent witness and resident of the same locality. He has been named as a witness in this FIR also. After hearing the alarm, he reached the spot without loss of time. He saw that Babu had caught hold of the hands of Mohan Lal and had brought him on the ground and Tejpal was piercing his knife. In the cross-examination, he has said that his house is hardly at a distance of 200 paces and when he reached there, he saw about 25 persons surrounding the injured. Nobody tried to catch hold of the culprits. Further in paragraph 3, he says that apart from these accused, other persons were also there. They were not helping in the assault actually. But some of them had knives and spears also. Although they did not participate in the mar-pit. An effort was made to prove that he is the collateral of the victim. But he has boldly denied it. Even the accused have not led any evidence that Rajmal is a partisan witness. Therefore, there is no reason to discard the statement of Rajmal.22. Thus, after a thread-bare analysis of the entire evidence and circumstances on the record I come to an irresistible conclusion that the prosecution has proved its case against the accused beyond a shadow of reasonable doubt and the lower Court has rightly convicted the accused in this case.23. It is urged that Tejpal was a minor at the time of occurrence. There is no force nor any evidence on the record to prove this allegation.24. The last argument was that some leniency should be shown to the accused in the sentence. I think, it is not justified. The only mistake which the learned lower Court has done, in this case, is that he had been very soft in sentencing the accused, who have committed such heinous offence causing permanent damage to the victim. Therefore, further softening in sentence will make administration of justice ludicrous and an object of scorn. That should not be permitted.25. The appeal is dismissed. The accused are on bail. Their bail bonds and surety bonds are cancelled. The CJ.M. concerned is directed to take them into custody at once to serve out the sentence. He shall also intimate this Court within a month from today about the compliance of this order.