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2017 Supreme(All) 172
ALLAHABAD HIGH COURT
BEFORE : BHARAT BHUSHAN AND ALOK KUMAR MUKHERJEE, JJ.
KASHMIRA AND OTHERS ....Appellants
Versus
STATE ….Respondent
(Criminal Appeal No. 3020 of 1982, decided on 6th January, 2017)
Counsel :
P.N. Mishra, Apul Mishra, Rahul Mishra and Gaurav Singh for the Appellants; A.G.A. and Ram Chandra Singh for the Respondent.
Headnote:(Indian) Penal Code, 1860—Sections 323, 324, 307, 302 read with Section 34—Juvenile Justice (Care and Protection of Children) Act, 2000—Section 7-A—Murder—Prosecution and proof—Trial Court concluded that there was sufficient evidence to establish the guilt of all the accused-appellants beyond reasonable doubt and convicted them by impugned order dated 26.11.1982—Challenge against—Appellant No. 1 died so his appeal stood abated—Appellant No. 4 was adjudged juvenile—Admittedly incident in question took place on 13.4.1980—Date, time and place of occurrence virtually acceptable to both parties—Incident took place in retaliation of act of deceased in driving away the bullocks with the lathi assault—Act of deceased to physically beat the bullocks of appellant No. 1 was sufficient to infuriate him—Testimony of P.W. 1 highly natural, credible and in consonance with normal human conduct—Eye-witnesses establish the fact that assailants appellants attacked deceased—If case of medical evidence and ocular testimony found consistent then the minor discrepancies cannot be allowed to vitiate the prosecution carefully—Promptness in lodging of F.I.R. rules out any possibility of fabrication—Relationship of witnesses with deceased and informant per se would not make them automatically untrustworthy—No material contradiction between the various witnesses—However, incident occurred without premeditation—Appellants were not only aggressor but infact they caused maximum damage but som eof them did receive simple injuries—Court if finds a person to be a Juvenile on date of commission of the offence, it shall forward the juvenile to the Board for passing appropriate orders and sentence, if any, passed by a Court shall be deemed to have no effect—Appeal filed by appellant No. 4 dismissed and send to Juvenile Justice Board—Conviction of appellant Nos. 2 and 3 under Section 302 set aside but sentences under Sections 323, 324 and 307 affirmed—Directions issued.
Appeal Dismissed.
(Delivered by Hon. Bharat Bhushan, J )
1. The appellants namely Kashmira, Lakshmi Chand, Shiv Kumar and Shiv Dutt have assailed the judgment and order dated 26.11.1982 passed by 2nd Addl. Sessions Judge, Muzaffarnagar in Sessions Trial No. 133 of 1980 (State Vs Kashmira and others) arising out of Crime No. 138 of 1980, Police Station Budhana, District Muzaffarnagar, whereby all the appellants have been convicted under Sections 323/34, 324/34, 307/34 and 302/34 IPC and sentenced each of them to 1 year rigorous imprisonment, 2 years rigorous imprisonment, 8 years rigorous imprisonment and imprisonment for life respectively. All the sentences were directed to run concurrently.
2. The appellant Kashmira has died, therefore, his appeal stands abated vide order dated 22.5.2012 passed by coordinate bench of this court. Similarly, appellant no. 4 Shiv Dutt was adjudged juvenile pursuant to the enquiry report dated 19.2.2015 passed by District Court, Muzaffarnagar. This court is now concerned with the appeals of appellant no. 2 Lakshmi Chand, appellant no. 3 Shiv Kumar and appellant no. 4 Shiv Dutt (juvenile).
3. Prosecution story in brief is that on 15.4.1980 at about 10.30-10.45 a.m., late accused Kashmira was taking his bullocks back to his compound (Gher) after providing drinking water to them from village pond. Suddenly two bullocks of accused Kashmira entered the compound of informant Banarasi (P.W.-1) and started eating the green 'Barseem' fodder lying near his fodder machine. Informant Banarasi, his wife Ram Katori and his son deceased Prem Pal were sitting inside the compound. Deceased Prem Pal drove away the bullocks of accused Kashmira after prodding them with lathi. This enraged Kashmira, who started abusing Prem Pal. Informant Banarasi and his son deceased Prem Pal asked Kashmira to refrain from abusing them and also asked him to control his bullocks properly. Kashmira left the place fuming. He threatened to teach them a lesson and went to his compound. After some time Late Kashmira armed with Lathi, his sons Lakshmi Chand armed with iron rod, Shiv Kumar and Shiv Dutt armed with knives arrived at the residence of informant Banarasi (P.W-1) and started abusing them again. This commotion brought Omveer (P.W-2), injured Rajendra, witness Mantoori (P.W-3), Mitrapal and Jugal Singh etc. to place of occurrence. All of them tried to reason with accused persons but of no avail. They started and then kept on beating deceased Prem Pal and when Rajendra and Omveer tried to rescue him, they were also assaulted by the assailants. Banarasi, the informant (P.W.-1), his wife (mother of deceased) Omveer (P.W.) and Rajendra challenged the assailants, whereupon all the assailants fled towards their own house.
4. This attack resulted in serious injuries on the person of Prem Pal, Rajendra and Omveer. Thigh of Prem Pal was cut and blood started flowing out of that wound. Pyjamas of Prem Pal (deceased) was tied around this wound. All the injured were put in Tractor Trolly and taken to Govt Hospital, Budhana where they were medically examined by P.W.-6 Dr Ajeet Singh, the then Medical Officer of Primary Health Centre (PHC), District Muzaffarnagar. Injured Rajendra was examined at about 11.55 and following injuries were noted on his person:-
(I) Lacerated wound 1-3/4" x 1/10" x muscle deep x oblique over the left side of top of skull 2" from mid line and 4-1/2' from left eye brow. Rugged margins. Fresh bleeding present.
(II) Incised wound ¾" x 1/4" x bone deep x oblique over the middle third right clavicle, sharp margins. Bleeding present probe going outwards and upwards upto 1/2".
(III) Incised wound 3/4" x 1/4" x oblique on left side of chest probe going medially and upwards up to 1-1/2" Sharp margins. Bleeding present. Injury is 4" below left nipple.
5. Injured Omveer was also examined on the same day and following injuries were found on his person:-
(I) Lacerated wound 2" x 1/4" x muscle deep x oblique on left side of skull 2" from
