State v. Hemant alias Hemant Lohar), whereby he has been convicted and sentenced to
Case Details
Court No. - 43 Case :- CRIMINAL APPEAL No. - 3969 of 2003 Appellant :- Ram Prakash Lohar And Another Respondent :- State of U.P. Counsel for Appellant :- B.K. Tripathi Counsel for Respondent :- Govt. Advocate Connected with Case :- CRIMINAL APPEAL No. - 5902 of 2004 Appellant :- Hemant Alias Hemat Lohar Respondent :- State of U.P. Counsel for Appellant :- B.K. Tripathi Counsel for Respondent :- Govt. Advocate Hon'ble Ashwani Kumar Mishra,J. Hon'ble Shiv Shanker Prasad,J. 1. These two appeals are of the year 2003 and 2004 and arise out of same FIR in Case Crime No. 284 of 2000, under Section 302/307/504/506 IPC read with Section 3(2)(v) SC & ST Act, Police Station Khorabar, District Gorakhpur. The accused appellant Hemant Lohar who has filed Criminal Appeal No. 5902 of 2004 is in custody ever since 15.5.2000 and has by now undergone incarceration of more than 22 years without remission and with remission his period of incarceration would be more than 25 years. Similarly, accused appellant Ram Prakash Lohar and Ram Autar Lohar were in custody since May, 2000 and have been granted bail by this Court during the pendency of appeal and have thus remained incarcerated for long. All three accused in these appeals are real brothers. 2. Two separate sessions trial have been conducted against the three accused. Criminal Appeal No. 3969 of 2003 is filed by the accused Ram Prakash and Ram Autar challenging the judgment and order of conviction and sentence, dated 19.8.2003, passed by the Special Judge (SC & ST) Act, Gorakhpur in Special Trial No. 186 of 2000 (State vs. Ram Prakash and another), whereby they have been convicted and sentenced to life imprisonment under Section 3(2)(v) SC & ST Act read with Section 302 IPC and also to undergo life 2 imprisonment under Section 3(2)(v) SC & ST Act read with Section 307 IPC. The other Criminal Appeal No. 5902 of 2004 is filed by accused appellant Hemant alias Hemant Lohar challenging the judgment and order of conviction and sentence, dated 16.9.2004, passed by the Special Judge SC&ST (P.A.) Act, Gorakhpur in Special Trial No. 186A of 2000 (State vs. Hemant alias Hemant Lohar), whereby he has been convicted and sentenced to life imprisonment under Sections 302/34 and 307/34 IPC read with Section 3(2)(v) SC & ST Act alongwith fine of Rs. 5000/-. In default of fine a year’s additional imprisonment is provided. All the sentences are directed to run concurrently. 3.
Facts
Prosecution case, in brief, is that the first informant’s sister Sunita, the daughter of deceased, washerman by caste, had gone to wash domestic utensils at the village pond in the evening where Hemant Lohar reached and cracked filthy jokes using vulgar and obscene words. She came home and narrated the incident to her father who went to house of Hemant Lohar and complained to him that he show same respect for his family as he had for his own. He asked why he had misbehaved with his daughter. The accused Hemant Lohar, Ram Prakash and Ram Autar started abusing him using caste specific names. Ram Prakash and Ram Autar allegedly caught hold of the deceased and Hemant started blowing knife upon the deceased. On raising alarm the first informant Rajesh, nephew Rajendra, cousin brother Santu and Awadhesh reached there, when accused leaving the deceased attacked Rajendra with knife blows. The accused after the occurrence left and confined themselves in their home. A written report of the incident was given to police by the first informant (Ext.Ka-1). 4. After registration of FIR (Ex. Ka. 14) the investigation proceeded. The Investigating Officer reached the spot and collected bloodstained and plain earth. The inquest also followed. The inquest witnesses were of the view that the deceased died due to stabbed injury caused to the deceased. The postmortem of the deceased Puranmasi was conducted on 15.5.2000 and the autopsy doctor opined the cause of death to be shock and haemorrhage due to following ante-mortem injury:- 3 "1. Incised wound 2.0 x 0.5 cm x chest cavity deep present (L) side front of chest 4.0 cm below (L) nipple at 7 ‘O’ clock position. 2. I.W. 3 cm x 1.0 cm x chest cavity deep lower part (L) side chest 3.0 cm below Injury No. 1. 3. I.W. 1.0 cm x 0.5 cm x Abdominal cavity deep 1 cm below Injury No. 2. 4. I.W. 1.0 cm x 0.5 cm x muscle deep (R) side abdomen 4.0 cm above umbilicus at 11 ‘O’ clock position. 5. LW 1.5 cm x 0.5 cm x muscle deep (R) side grain. 6. LW 2.0 cm x 0.5 cm x abdominal deep (R) side lateral part of Abdomen 2 cm above the iliac crest (R) side.” 5. PW-2 has also been medically examined on 14.5.2000 at 9 pm and following injuries have been noticed upon him:- 1. Punctured wound ½ cm x ½ cm cavity deep on the lateral aspect back of left side chest. 12 cm below the Lt. Axilla. Bleeding present. Margin clean cut. 2. Incised wound ½ cm x ½ cm muscle deep on the lateral aspect of left upper thigh. 4 cm below the Lt. Enterior superior Iliac spine. Margin clean cut. 6. Upon conclusion of investigation charge sheet (Ex. Ka. 13) was submitted against the accused appellants, on which the Magistrate took cognizance and committed the case to the court of sessions and was registered as Special Trial No. 186 of 2000. Charges accordingly were framed against the accused appellants Ram Prakash and Ram Autar under Sections 302/34, 307/34, 504 and 506 IPC and Section 3(2)(v) SC & ST (P.A.) Act. Accused appellant Hemant was also charged under Sections 302/34, 307/34, 504 and 506 IPC and Section 3(2)(v) SC & ST (P.A.) Act in respect of which Session Trial 4 No.186A of 2000 was registered. The accused appellants denied the charges and consequently trial commenced. 7. The prosecution in order to establish the charges against accused appellants produced oral testimonies of following witnesses:- “1. Rajesh Rajendra Dr. R.N. Rai Mahanth Yadav PW-1 PW-2 PW-3 PW-4 Dr. Prakash Chandra PW-5
Legal Reasoning
Act is concerned, we find that only allegation and material to support the charge is the accusation that the deceased was abused and his protest was frowned upon due to his being from washerman community. This may amount to an offence referable to Section 3(1) (x) of the Act. There is, however, no other evidence on record to suggest that the offence under Section 302/307 IPC was committed on account of caste identity of deceased. The FIR and the evidence 13 in the form of statement of PW-1 and PW-2 is with regard to intimidation/insult/humiliation of deceased who was a member of scheduled caste publicly. It is not alleged that the obscene comments were made because of the caste identity of the daughter of the deceased. 36. So far as abusing the deceased is concerned charge against the accused would at best be under Section 3(1)(x) of the Act for which he can be punished with imprisonment for a term of five years. 37. No incriminating material has been suggested to the accused while recording his statement under Section 313 Cr.P.C. with regard to commissioning of offence under Section 3(2)(v) of the SC & ST Act. The accused has not been confronted with any material to alleged that the offence was committed against the deceased and the injured on account of their being members of scheduled caste. In such circumstances, we find that conviction of accused appellant under Section 3(2)(v) of SC & ST Act was clearly impermissible being contrary to law. Life sentence accordingly awarded to the accused appellant Hemant Lohar under Section 3(2)(v) of the SC & ST Act stands substituted thus with the imprisonment for a period of five years under Section 3(1)(x) of the SC/ST Act for which evidence exists on record. 38. Considering the totality of circumstances and the evidence adduced, we find that although the act of causing injuries to P.W.2 and inflicting injuries resulting in homicidal death of the deceased is caused by the accused-appellant Hemant, yet his act being without any premeditation and caused at the spur of the moment would fall in Exception 4 to Section 300 IPC as it would fall within the definition of culpable homicide not amounting to murder. In such circumstances his punishment is altered from that under Section 302 to Section 304 Part 1 I.P.C. The conviction of accused-appellant Hemant under Section 307 I.P.C. is also sustained. 14 39. Learned counsel for the appellant states that accused appellant Hemant Lohar is in Jail since the date of judgment i.e. 16.9.2004. Even prior to his conviction the appellant Hemant alias Hemant Lohar was in jail throughout as he was never released on bail. The period of incarceration undergone by the accused appellant Hemant Lohar is above 22 years without remission. With remission the period of incarceration would be above 25 years. 40. Considering the young age of accused appellant i.e. 18-19 years at the time of incident and also the fact that offence was committed at the spur of the moment, without any pre-meditation and the period of incarceration already undergone by the accused appellant Hemant Lohar we allow his appeal and substitute the sentence of life awarded to him with the sentence already undergone. Criminal Appeal No.5902 of 2004 is thus allowed in part. The accused appellant Hemant Lohar shall be released from Jail, forthwith, unless he is wanted in any other case, subject to compliance of Section 437A Cr.P.C. 41. Criminal Appeal No. 3969 of 2003, in so far as it relates to appellants Ram Prakash and Ram Autar succeeds and is allowed for the reasons and discussions contained in this judgment. The judgment and order dated 19.8.2003, passed by the Special Judge (SC&ST) Act, Gorakhpur in Special Trial No. 186 of 2000 (State vs. Ram Prakash and another) is, therefore, set aside. Since the accused appellants Ram Prakash and Ram Autar are on bail their bail bonds and sureties stand cancelled and they shall be set at liberty, forthwith, subject to compliance of Section 437A Cr.P.C. 42. A copy of this order shall be communicated to the accused appellants in Jail through Chief Judicial Magistrate/Jail Superintendent concerned, forthwith. Order Date:- 19.9.2022 Ranjeet Sahu (Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)
Arguments
Shri Amitabh PW-6 Jagdish Upadhyay PW-7” 2. 3. 4. 5. 6. 7. 8. Documentary evidences have also been adduced by the prosecution consisting of FIR as Ex.Ka. 14; written report as Ex.Ka.1; recovery memo of bloodstained and plain earth as Ex.Ka. 3; recovery memo of bloodstained weapon as Ex. Ka.5; Injury Report as Ex.Ka. 12; postmortem report as Ex.Ka. 4; Vidhi Vigyan Prayogshala Report as Ex.Ka. 16; Panchayatnama as Ex. Ka. 2; Charge Sheet as Ex. Ka. 13. 9. On the basis of oral and documentary evidence, thus adduced, the trial court has found the accused appellants guilty of the charges levelled and has consequently convicted them. Aggrieved by the judgement of conviction and sentence the accused appellants have preferred these appeals. 10. Prosecution in order to bring home the charge has produced two witnesses of fact namely Rajesh (PW-1) and Rajendra (PW-2). PW-1 is the first informant, who has supported the prosecution version, as per which, his sister had gone to village pond to wash utensils where accused Hemant reached and cracked vulgar jokes and when his sister came back and disclosed such facts to her father the deceased went to the house of accused and raised grievance 5 saying that his family also has respect, on which caste specific abuses were hurled by accused Ram Prakash and Ram Autar. At this juncture Ram Prakash and Ram Autar held the deceased and threw him on the ground whereafter accused Hemant inflicted knife injuries on the deceased. Injuries were caused in the abdomen, chest and hand of the deceased. On hearing the deceased screaming PW-1, PW-2 alongwith other members of family namely Santu and Awadhesh reached the spot and found the accused Hemant to be inflicting knife blows upon the deceased. The accused left the deceased and rushed towards PW-1 and PW-2. Ram Prakash and Ram Autar held PW-2 and Hemant inflicted knife blows to him. PW-1 has further stated that someone informed the police about the incident and the police party reached on the spot whereafter the written report was given by him to police. The accused party came back to their house and bolted their door from the inside. The police party reached their house and broke open the door and Ram Prakash and Ram Autar were caught by the police. Accused Hemant tried to flee and was caught by the crowd present and was beaten. The injured witness and the deceased were taken to the hospital. 11. Similarly PW-2 has also supported the prosecution story and has stated that he heard screams of deceased and when he reached the spot he saw that accused Hemant was inflicting stab blows on the deceased and accused Ram Autar and Ram Prakash had held the hands of the deceased. Deceased had already fallen on the ground by when PW.2 arrived at the place of occurrence. He has further stated that when PW-1 and PW-2 reached the place of occurrence, the accused persons left the deceased and caught hold of PW-2, who was also stabbed by accused Hemant with the same knife. 12. Injuries caused on the deceased have clearly been noticed in the postmortem report and have been extracted above. The injuries include six incised wound on different parts of the body. An argument was raised that Injuries Nos. 5 & 6 are actually lacerated wound, but the doctor (PW-3), who conducted the postmortem, has 6 clearly stated that injuries 5 & 6 are in fact incised wound. The suggestions given to the doctor that he is trying to support the prosecution case by falsely deposing that injuries 5 & 6 are incised wound whereas in fact they are lacerated wound have been specifically denied. Injury report of PW-2 has also been brought on record. Two injuries caused to injured witness PW-2 are punctured and incised wound caused by a sharp edged weapon. The prosecution case is that the injuries have been caused to the deceased as also the injured witness by the accused Hemant from the same knife/dagger. The weapon of assault has been recovered from heap of husk at the house of the accused Hemant. The description of knife is mentioned in the recovery memo as blood stained knife with sharp edges on both sides. The injuries caused to the deceased and injured are by a sharp edged weapon which could be a knife. The prosecution case on this aspect appears consistent. 13. In the cross examination PW-1 has stated that on hearing scream of the deceased he reached the house of the accused persons by when his father had already fallen. Similarly PW-2 has also stated that when he reached the place of occurrence the deceased had already fallen and was on the ground. 14. PW-1 has clearly stated that the deceased had gone alone to the house of accused appellants to lodge his protest. PW-1 and PW-2 had not gone with him. When PW-1 saw his father he had already fallen and blood was coming out of his body. He has disclosed that Hemant had a knife in his hand when PW-1 reached there and he stabbed the deceased twice on his chest and abdomen. The previous injury was in his left hand and blood was coming out of the injury. 15. PW-1 has also deposed that accused Hemant had no lacerated wound and none had beaten him with Lathi/Danda. PW-2 was taken to hospital prior to arrival of police. 16. PW-2 in his statement has deposed that when he reached the place of occurrence he saw Ram Prakash and Ram Autar were 7 holding the hands of deceased who had fallen by then. He also claimed that Ram Autar and Ram Prakash held him and accused Hemant inflicted knife blows on his left chest and left thigh. PW-2 has been confronted with his statement under Section 161 Cr.P.C. wherein he had not disclosed that Ram Prakash and Ram Autar had held the deceased when he first saw him at the place of occurrence. In his cross examination PW-2 stated that he does not remember who had held which of the hands of the deceased or of himself. 17. Learned counsel for the appellants strenuously submits that accused Ram Prakash and Ram Autar were actually not present at the place of occurrence and their presence has been falsely planted in order to ensure that all male members in the family are implicated and they may not be able to pursue the case on behalf of the appellants. He further submits that in the event deceased had already fallen on the ground it would be difficult to comprehend that his hands would be held by the two co-accused. He also submits that there was clear improvement in the stand of PW-2 as he had not assigned role of catching the deceased to Ram Autar and Ram Prakash in his statement under Section 161 Cr.P.C. Learned counsel points out that in the statement of PW-1 & PW-2 it is not suggested that the deceased was held by PW-1 & PW-2 while he had fallen and was on ground. He also submits that the statement of PW- 1 and PW-2 does not support the prosecution case about the deceased having been held from both sides by accused Ram Prakash and Ram Autar while stab wounds were inflicted by Hemant. Learned counsel also suggests that in the event these two accused were present on the spot, holding hand of deceased and injured, they too would have received injuries in the process. 18. As against the prosecution case, noticed above, the case set up by the defence in the statement of accused Hemant in his testimony under Section 313 Cr.P.C. is that on the date of incident accused Hemant objected to plucking of mango by the daughter of deceased from his tree on which the daughter of deceased called him 8 Pagalwa (mad person) and in retaliation he slapped her twice. For this reason the deceased alongwith injured (PW-2 and others) came to his house and started beating him. His defence is that accused Hemant acted in self defence along with his mother and sister-in-law (bhabhi) who used sickle (Hasua) and Khai (agricultural instrument) on account of which injuries were sustained to the deceased and PW- 2. He claims to have disclosed this fact to the police on which he was asked to get himself medically examined. 19. It is admitted on record that soon after the incident the accused Hemant has been medically examined at the Primary Health Center, Khorabar, where following simple injuries have been found on the body of the accused Hemant:- “1. Lacerated wound of size 7cm x 1cm x bone deep on the right side of scalp 10.5 cm above right ear, L shaped fresh bleeding present. 2. Lacerated wound of size 4 cm x 0.5 cm on the right side of scalp 2 cm in front of injury no. 1 oblique, fresh bleeding present. 3. Lacerated wound of size 7 cm x 1 cm x 0.5 cm front side of right hand 7.5 cm below wrist joint, fresh bleeding present. 4. Lacerated wound of size 1.5 cm x 1 cm on the right ring finger inner side just above tip fresh bleeding present. 5. Contusion of size 3 cm x 2 cm on the internal side of left ankle joint and red in colour.” 20. So far the genesis of dispute between the parties is concerned, it is claimed by the prosecution that the accused Hemant made obscene comments with the daughter of deceased but the daughter herself is not produced in evidence nor was she even interrogated. The origin of the dispute is thus not clear. 21. No defence witness is otherwise produced to prove the other story set up in defence about plucking of mango by the daughter of deceased and her calling him mad and as a consequence his slapping her in retaliation. 9 22. The genesis of the dispute is thus not established by the prosecution. It is also not clear, in such circumstances, to determine as to who was the aggressor. It is otherwise the prosecution case that the place of occurrence was in front of the accused house, as per the site plan. 23. The presence of deceased at the house of accused appellant poses a question as to who was the aggressor. In the absence of direct evidence to prove the cause of dispute it becomes difficult to ascertain as to which party was the aggressor. There are no independent witnesses produced by the prosecution to explain the origin of dispute or the exact cause of provocation and also the question as to who was the aggressor? 24. There are thus two distinct eventualities asserted by the parties. The first is the prosecution version in which the daughter of the deceased was misbehaved by the accused-appellant Hemant who made obscene comments with her and upon a complaint made at the house of the accused the accused appellant assaulted the deceased and the injured witness. The other version put forth by the defence is that the accused-appellant Hemant objected to plucking of mango from his tree by the daughter of the deceased on which he was called mad and in retaliation he slapped the daughter of the deceased twice whereafter the deceased with others came to the house of the accused and inflicted injuries upon Hemant on which the accused Hemant reacted in defence. 25. It is apparent that in either of the two possible factual eventualities the incident occurred at the spur of the moment leading to the homicidal death of deceased and injury caused to PW-2. There apparently was no premeditation and in the statement of P.W.-1 he has clearly admitted that prior to this incident there was no enmity between them. We also find that the place of occurrence is the house of the accused-appellant and, therefore, the presence of the injured witness and the deceased at the house of the accused-appellants is 10 established. It is also admitted that injuries were caused to the accused Hemant. Although the crowd present is stated to have beaten him up but it is difficult to accept this version as the Police party had already arrived at the place of occurrence by the time the door of accused house was broke open. PW-1 has clearly denied any injuries caused to Hemant by the crowd. 26. The first issue which requires deliberation is about the presence and roles of Ram Autar and Ram Prakash in the crime. 27. Ram Autar and Ram Prakash have not sustained any injuries and the plea of crowd beating up the accused appellant is limited to Hemant. If the prosecution case is to be believed that crowd had gathered around the house of accused and the offence was committed by the three accused, jointly, then all of them would have been assaulted by the crowd present and the circumstance that only one of the three brothers was beaten remains unexplained. 28. When we evaluate the evidence on record, cumulatively, we find that active participation of accused appellants Ram Prakash and Ram Autar in the commissioning of offence appears doubtful. PW-1 and PW-2, who are the only two witnesses of fact have admitted in their cross examination that the deceased had fallen on ground by the time they arrived at the place of occurrence. The question of these witnesses seeing the two accused holding the hand of deceased while he was on ground otherwise seems unnatural. The circumstance in which the main accused Hemant was physically beaten by the crowd without any injuries caused to the other two accused supports the inference that they were not present at the place of occurrence. PW-2 has been confronted with his statement made to police where he never stated that Ram Autar and Ram Prakash had held the deceased. 29. Apart from the fact that Ram Prakash and Ram Autar sustained no injuries it is also on record that none of their clothes were recovered containing any blood or injury marks. The fact that PW-2 11 did not remember which of the two accused held which of his hand also strengthens the doubt regarding the presence of the two accused in holding the injured witness. 30. We find substance in the argument of appellant counsel that presence and participation of accused Ram Prakash and Ram Autar in the crime is doubtful. Their participation in the commissioning of offence is limited to holding the deceased and injured which is not found credible from the evidence available on record. 31. The trial Court instead of evaluating the evidence in proper perspective has proceeded to accept the testimony of prosecution version mechanically so as to convict the accused Ram Autar and Ram Prakash. The improbability of holding hands of a person who has already fallen on the ground or holding hands of injured who does not remember which hand was held by which of the two accused has been overlooked. The improvement in the testimony of PW-2 is also ignored. The element of doubt raised with regard to the participation of the two accused is also overlooked. It appears probable to us in the facts of the case that possibility of ceremonial roles being assigned to the two accused cannot be ruled out in the facts of the present case. The two accused appellants Ram Prakash and Ram Autar are thus entitled to the benefit of doubt and their conviction and sentence cannot be sustained. 32. Although, charge under Section 34 IPC was also framed against the two appellants Ram Prakash and Ram Autar, yet Section 34 IPC has not been invoked by the court below while convicting them of the offence. Since we have found presence of the aforesaid two appellants doubtful at the place of occurrence and Section 34 IPC has otherwise not been invoked, we are of the view that common intent on part of accused Ram Prakash and Ram Autar in commissioning of the offence is not established. 33. So far as the accused appellant Hemant is concerned he is assigned the main role of stabbing the deceased and the injured. 12 PW-1 has admitted that there was no enmity between the parties and it appears that the fight erupted at the spur of the moment. It was the deceased and the injured who had come to the house of the accused appellant to raise a complaint when the incident occurred. The instrument of assault in this case is the knife which is usually available in most of the rural Indian Households. It is the same knife which has been used to stab both the deceased and also the injured witness. It also appears that the act of the accused-appellant Hemant was at the spur of moment in the fit of rage. As per the disclosure of age of accused in his statement under Section 313 Cr.P.C., he was about 18-19 years of age at the time of incident. 34. We have examined the injuries caused to the deceased as also the injured PW-2 all of which are incised wounds. The injuries show that all of them are caused by a sharp edged weapon and could be a knife. The size of wound in all cases have a uniform dimension of ½ cm width which tallies with the statement of prosecution witness that same knife was used to cause injuries both to the deceased and the injured. Accused Hemant in his statement under Section 313 Cr.P.C. has suggested that their action was in self defence which clearly supports the inference that he was present at the place of occurrence and had caused the injuries. The finding by the court below that accused appellant Hemant has caused the injuries resulting in homicidal death of deceased and injuries to PW-2 is based upon the evidence available on record and is liable to be sustained. 35. So far as charge framed under Section 3(2)(v) of SC and ST