Subhash Kumar vs State Of Uttarkhand

CRIMINAL APPEAL NO. 933 OF 2009 [Arising out of Special Leave Petition (Criminal) No. 9155 of 2008]

SUBHASH KUMAR ... APPELLANT

Versus

STATE OF UTTARAKHAND ... RESPONDENT

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against a judgment and order dated

27.08.2008 holding the appellant guilty for commission of offence under

Section 324 read with Section 34 of the Indian Penal Code ("IPC" for

short) and sentencing him to undergo one year's rigorous imprisonment

and fine of Rs.1,000/- only.

3. One Surendra Kumar Sehgal was a student of D.B.S. (P.G.)

College. Appellant herein also was a student of B.A. Part II of the same 2

college. On 31.1.2000, when Surendra Kumar Sehgal was entering the

college through its gate to attend his N.C.C. class, appellant along with

three other persons who were armed with "Khukries" (a sharp edged

weapon) assaulted him on instigation made by the appellant as a result

whereof he suffered five injuries, which are as under:

"i. Incised wound 6 cm x 1.0 cm muscle deep on back side of head 11 cm above right ear. This injury was fresh and it was bleeding.

ii. Incised wound 2 cm x 0.5 cm x skin deep backside of the head and 7 cm below the injury no.1 and the blood was oozing from this injury.

iii. Incised wound 5 cm x 1 cm x muscle deep, on the left of head and 6 cm above the left ear.

iv. Incised wound 2.5 cm x 1.1. cm x muscle deep. In the left upper forearm of index finger of left hand from which blood is coming out.

v. Incised wound 2 cm x 1 cm x muscle deep on the side of middle finger of left hand and blood is coming out this."

4. Appellant was tried for commission of an offence under Sections

307, read with Section 34 of the IPC along with Surendra @ Sonu, Manoj

@ Monu and Hargopal. Surendra and Manoj are brothers of the appellant

whereas Hargopal is their maternal uncle.

3

5. The learned trial judge recorded a judgment of conviction finding

the accused persons guilty of commission of offence under Section 324

read with Section 34 of the IPC.

However, by reason of the impugned judgment whereas the other

accused, namely, Surendra, @ Sonu, Manoj @ Monu & Hargopal were

given the benefit of doubt, the judgment of conviction and sentence

passed by the learned trial judge as against the appellant was upheld.

However, his sentence was reduced to rigorous imprisonment for one year

from three years.

6. Mr. Sanjeev Bhatnagar, learned counsel appearing on behalf of the

appellant would urge:

(i) On a plain reading of the First Information Report ("FIR" for

short) it would appear that the appellant was not armed with

any "Khukri"; no overt act was attributed to him and his

involvement in the matter both in regard to possession of an

arm as also an instigation to others to assault him being an

outcome of improvement in the depositions of the

complainant before the court, the impugned judgment is

liable to be set aside.

4 (ii) Out of four accused, three having been acquitted, appellant in

any event could not have convicted with the aid of Section 34

of the IPC.

7. Mr. Jatinder Kumar Bhatia, learned counsel appearing on behalf of

the State, on the other hand, would support the impugned judgment.

8. The occurrence took place at about 1.00 p.m. on 31.1.2000. The

FIR was lodged on the same day at about 3.15 p.m. The statement of the

informant was recorded by the Investigating Officer. It was hand written.

Before us, the finding of fact arrived at by both the courts below that the

informant received injuries inflicted on him by "Khukri (s)" is not in

dispute. It also stands admitted that the first informant was assaulted with

a sharp edged weapon by more than one person. In the FIR, it had

categorically been stated that the appellant along with three others who

were armed with "Khukri" accosted him at about 1'O clock when he

entered in the College through a gate.

9. It is also not in dispute that he sustained injuries on his head as also

on his hand. He named Narendra Singh (P.W.1) as one of the eye-

witnesses. He, however, was declared hostile. It has, however, not been

disputed that the said Narendra Singh and one Shailly brought him to the

hospital. He claimed to have identified the other three accused. 5

The High Court, however, accorded benefit of doubt to the three

accused as no test identification parade was held.

The first informant, who examined himself as P.W.2, in his

evidence stated:

"2. The incident is of 31.1.2000, day Monday and time about 1 p.m. At that time I was going to attend my NCC class in DBS College. As soon as I parked my scooter outside on the stand and entered in college, in the meantime Subhash, Surender @ Sonu, Manoj and their maternal uncle (Mama) Hargopal came behind me. They had been holding Khukhries in their hands. As these people came and Subhash put his hand on my shoulder. I saw behind and in the meantime Subhash said kill him "Jaan se Maar Dalo Saley ko" after this Hargopal assaulted with Khukhri on my head and thereafter Subhash also started assaulting with Khukhri and then all four people started very badly to me. All the four accused are present in the court."

Paragraph 9 of his evidence to which our attention has been drawn

by Mr. Sanjeev Bhatnagar reads as under:-

"9. The inspector enquired from me with regard to this case. I had written in the report that Subhash was having Khukri. It is wrong to suggest that it is not written anywhere in the report that Subhash was holding Khukhri in hand."

6 We may place on record that our attention has also been drawn to

the deposition of Mr. R.K. Kanojiya, SI of P.S. Dalanwala, Dehradun who

examined himself as P.W.4, which reads as under:

"17. I recorded the statement of Surendra Kumar on 1.2.2000. When I went to take the statement of injured to hospital then because of his unconsciousness and did not record statement of the doctor on 31.1.2000. I did not write in the case diary that on 31.1.2000, the injured was admitted on which bed and in which ward. It is incorrect to suggest that I had not gone to take the statement of the injured to hospital on 31.1.2000. In the investigation, the subscribe which I received in that all the accused persons are shown having Khukri in their hands, only Subhash is having Khukhri in hand is not written."

From his evidence, it appears that he had gone to record the

statement of the informant in the hospital on 31.1.2000; when he reached

the hospital, the informant had become unconscious and was in a serious

condition. His statement could be recorded only on 1.2.2000. It was on

that date the other accused persons were named.

10. Appellant surrendered in the court of Chief Judicial Magistrate on

7.2.2000. Manoj and Surendra were arrested on 11.2.2000. It is only on

7.3.2000, Hargopal had surrendered before the court. 7

11. FIR as is well known is not to be treated to be an encyclopedia.

Although the effect of a statement made in the FIR at the earliest point of

time should be given primacy, it would not probably be proper to accept

that all particulars in regard to commission of offence in detail must be

furnished.

The prosecution has brought on record that four persons assaulted

the injured. P.W. 2 sustained serious injuries. He felt unconscious but

must have regained consciousness for some time. After he was brought to

the hospital then he could get the FIR lodged. If the deposition of P.W. 4

is to be believed, the prosecution must be held to have proved that he

became unconscious again as a result whereof his statement could not be

recorded on that date.

12. Not only the courts below but also the parties proceeded on the

basis that the FIR disclosed that the appellant was also armed with

"Khukri". We say so because we do not find that the contention raised

before us by Mr. Bhatnagar, viz., that the FIR did not disclose the same

had been raised before the courts below. The only suggestion given to the

Investigating Officer, as noticed hereinbefore, was that it was written that

all accused were shown having Khukri in their hands and not Subhash

alone.

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13. The testimony of Surendra (P.W.2) - informant - had been relied

upon by both the courts below. We do not think that any case has been

made out to take a different view.

All the four accused were convicted by the learned trial judge. The

High Court, however, having regard to the fact that the other accused had

not been named in the FIR and no test identification parade was held

thought it fit to extend the benefit of doubt in favour of three of them.

That would not mean that on the same analogy, a judgment of acquittal

should have been recorded in favour of the appellant also.

Keeping in view the place of occurrence, it will not be hazardous to

presume that the incident had taken place within a very short time. P.W. 2

in his evidence stated that three persons came from behind. He might not

have been able to remember their names at the time when the FIR was

lodged. But, in our opinion, as the offence must have been committed by

more than one person and the appellant having been named in the FIR and

specific overt act having been attributed to him by P.W. 2 in his

deposition, we are of the opinion that no case has been made out to

interfere with the impugned judgment.

14. For the aforementioned reasons, the appeal is dismissed. 9

......................................J. [S.B. Sinha]

......................................J. [Dr. Mukundakam Sharma]

New Delhi;

May 06, 2009