ANNAPORNA DUTT Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal is directed against the Judgment and Order dated December 13, 1979 passed by the High Court of Judicature at Allahabad, Lucknow Bench in Criminal Appeal No. 469 of 1978. The said Criminal Appeal arose out of the Judgment and order dated June 22, 1978 passed by the learned Sessions Judge, Sultanpur, in Sessions Trial No. 36 of 1978. In the said Sessions trial, the accused No. 1, Devi Dutt, and the accused No. 5, Annaporna Dutt (appellant No. 1 herein), were charged under Ss. 148, 302/149, 325/149, 324/ 149 and 323/149, I.P.C. The rest of the 15 accused persons were charged under Ss. 147, 302/ 149, 325/ 149, 324/149 and 323/149, I.P.C. Seven of the accused persons, namely, accused Nos. 4, 11, 12, 13, 15, 16 and 17 were acquitted of all the charges framed against them by the learned Sessions Judge. But the other accused persons were held guilty on different counts and were convicted to undergo rigorous imprisonment of different terms as indicated in the Judgment and order of the learned Sessions Judge. Against such Judgment of the learned Sessions Judge, Devi Dutt and these nine appellants preferred an appeal in Allahabad High Court, Lucknow Bench, being Criminal Appeal No. 469 of 1978. Such appeal was disposed of by the Allahabad High Court, Lucknow Bench, on December 13, 1979 and the High Court allowed the appeal of Devi Dutt and his conviction and sentences ordered by the learned Sessions Judge on several charges were set aside, but the appeal of the nine remaining accused who are appellants in this appeal, were allowed in part. The High Court set aside the conviction and sentence of all the nine appellants under Part I or Part II of Section 304 read with Section 149, IPC but the conviction of the said nine appellants was upheld under Ss. 325/ 149, 324/149 and 323/149, IPC., and each of the said appellants was awarded sentences of rigorous imprisonment for a period of two years, one year and nine months respectively. So far as the appellant, Annaporna Dutt is concerned, his conviction under Section 148, IPC was affirmed by the High Court but instead of two years' rigorous imprisonment as ordered by the learned Sessions Judge, the High Court awarded a sentence of rigorous imprisonment for one year. The conviction under S. 147, I.P.C. in respect of the appellants other than Annaporna Dutt was also maintained by the High Court but the sentence of rigorous imprisonment, for two years was reduced to rigorous imprisonment of nine months. The High Court directed that all the sentences awarded against each of the said appellants would run concurrently. It may be stated that appellants Nos. 1, 2 and 3 in this appeal, namely, Annaporna Dutt, Uma Dutt and Kanhaiya, are residents of village Pure Gurdin and appellant Nos. 4 to 8, namely, Ishwar Dutt, Sant Kumar, Ram Sunder, Lalan, Pratap are residents of village Gogmau and appellant No. 9, Onkar Nath, is the resident of village Uiara. The village Pure Gurdin and Gogmau are within the Police Station Jagdishpur in the District of Sultanpur but the village Uiara is within the Police Station, Musafirkhana, District Sultanpur, all in the State of Uttar Pradesh.

(2.) The prosecution case in short is that on June 30, 1977, at 10.00 a.m. an incident of assault and trespass had taken place in village Pure Gurdin where the three appellants reside. The deceased, Babulal and his relations had cut 13 bamboos from a clump situated in that village and they had stocked those cut bamboos on the back side of the house of Ram Prasad Tewari with an intention to use those bamboos for raising a thatch. All of a sudden, the said nine appellants along with Devi Dutt and the other seven persons since acquitted by the learned Sessions Judge came to the place where the said bamboos were stored. Devi Dutt was armed with a spear and appellant No. 1, Annaporna Dutt, had a pharsa. The said persons started assaulting Babulal and his companions. Thereafter the accused persons ran away. Besides Babulal, Bishambhar (P.W. 1), Tribeni Prasad (P.W. 4), Jagdamba (P.W. 5) and Brahma Dutt also received injuries at the hands of the accused persons. The report of the occurrence was lodged at Jagdishpur Police Station at 7.00 p.m. on the same day by Durga Prasad. Dr. L. M. Chaudhary, Medical Officer, P.H.C. Jamo, examined the said injured persons and he noted an incised wound on the head on left side 10 c.m. above left earlobe and the swelling on the left eye ball on the person of deceased, Babulal. According to the opinion of the said Medical Doctor, the injury No. 1 on the person of Babulal was caused by a sharp cutting weapon and injury No. 2 by blunt weapon. Tribeni was found to have suffered two perforated wounds above his right eye besides three other injuries caused by blunt weapon. Bishambhar had six injuries caused by blunt weapon and injuries on Brahma Dutt and Jagdamba, as found by the said doctor, were stated to have been caused by the blunt weapon. Babulal, however, succumbed to his injuries and the post mortem examination was held by Dr. N. A. Khan who had noted an incised wound, two traumatic swellings and three abrasions all ante mortem in nature. Left parietal and frontal bones in left orbital region and left temporal bone under external injuries Nos. 1, 2 and 3 were found to have been fractured. In the opinion of Dr. Khan, the death of Babulal was caused due to coma resulting from the head injuries.

(3.) The accused persons including the appellants pleaded not guilty and denied the allegation of assault made by the prosecution. It may be noted that the appellants did not put any definite suggestions about their injuries and they did not lead any oral evidence in their defence. The prosecution, however relied upon the testimony of five eye-witnesses, namely, Bishambhar (P.W. 1), Ram Prasad (P.W. 2), Tribeni (P.W. 4), Jagdamba Prasad (P.W. 5) and Durga (P.W. 8). Out of the said five eye-witnesses, P.W. 1, P.W. 4 and P.W. 5 received injuries as indicated hereinbefore. One of the eye-witnesses, namely, Durga (P.W. 8), however, stated that he had falsely implicated seven accused persons. Accordingly, the said seven persons were acquitted by the learned Sessions Judge. The learned Sessions Judge accepted the evidences of the said eye-witnesses including the injured eye-witnesses and as the said eyewitnesses had stated that the appellants and the said Devi Dutt were parties to the assault, the learned Sessions Judge had convicted all of them and sentenced all the said accused persons on different counts which have been referred to hereinbefore. The High Court inter alia came to the finding that the deceased Babulal and three injured eye-witnesses, namely, Tribeni Prasad, Bishambhar, Jagdamaba and also Brahma Dutt were assaulted as alleged by the prosecution because such case of assault and the time alleged by the prosecution was established by the injuries found on their persons. The High Court inter alia came to the finding that there was no counter version by the defence and the learned Sessions Judge was justified in coming to the conclusion that the deceased Babulal and the said four persons were assaulted by blunt and sharp cutting weapon at the time of occurrence as suggested by the prosecution and Babulal had died as a result of head injuries received by him. The High Court noted that Durga (P.W. 8) lodged the first information report and the said Durga and Ram Prasad (P.W. 3) were independent witnesses. The High Court also noted that although the said witnesses implicated seven other persons with the said incident of assault but on the admission of Durga it transpired that they were falsely implicated. The learned Sessions Judge had, therefore, acquitted the said seven accused persons. The High Court observed that simply because such false accusation was made by the said independent witnesses in respect of seven accused persons, their evidences are not liable to be rejected outright but their evidences were required to be considered with caution. The High Court indicated that despite the fact that some innocent persons were falsely implicated by the eye-witnesses, the statements made by the said eye-witnesses may be relied on if on scrutiny it would transpire that the participation of the appellants and the said Devi Dutt who were appellants before the High Court in the offences alleged was established. Having noted the fact that at least 20 injuries were received by the five victims on the side of the prosecution, it was held by the High Court that it was quite likely that 9 or 10 persons had taken part in assault as alleged. The High Court also noted that the said incident of assault had taken place in broad day light. Having accepted the evidences of the said eyewitnesses about the participation of the appellants, the High Court was of the view that the case against them was established by the prosecution. The High Court, however, noted that one of the eye-witnesses stated that Devi Dutt was armed with the spear and participated in the act of assault but another witnesses, Ram Prasad, stated that Devi Dutt had no weapon in his hand. Since Ram Prasad was not declared as a hostile witnesses and as there was no reason to reject his evidence, so far as Devi Dutt was concerned, the High Court was of the view that it was quite probable that Devi Dutt did not take part in the act of assault but he arrived at the time of occurrence only out of anxiety, particularly when he had no weapon in his hand and he could not have participated in the assault. In that view of the matter, the High Court held that Devi Dutt was entitled to the benefit of doubt. The High Court accordingly acquitted the said Devi Dutt of all the charges and set aside his conviction and orders of sentences passed by the learned Sessions Judge. The High Court, however , held that there was no doubt about the participation by the appellants in the commission of the offences alleged against them and such participation also got corroboration from the medical evidence. The High Court held that there was, however, no justification in convicting the appellants under Section 304, Part I or Part II, IPC. According to the High Court, the facts and circumstances only indicated that the common object of the unlawful assembly formed by the said appellants was at the most to cause grievous hurt to the deceased and other injured persons but not to cause murder of anybody. In this respect, the High Court noted the deposition of P.W. 1, Bishambhar, that the fatal injury on Babulal was caused by chance. In that view of the matter, the conviction and the sentences against the appellants under Section 304, IPC was set aside. The High Court held that conviction and sentence of two years' rigorous imprisonment for the appellants under Section 325/ 149, IPC, conviction and sentence of one year's rigorous imprisonment under Section 324/ 149, IPC and nine months' rigorous imprisonment under Section 147, IPC would meet the end of justice. The High Court also held that conviction and sentence of one year's rigorous imprisonment under Section 148, IPC would also be adequate punishment in the facts of the case. Accordingly, Devi Dutt was acquitted. The appeal of the appellants was allowed in part and the conviction and sentences passed by the learned Sessions Judge were modified to the extent indicated hereinbefore. As aforesaid, the instant appeal has been preferred by the appellants against the said Judgment and order passed by the Lucknow Bench-of the Allahabad High Court.