Ganesh Dutt Pathak State of U.P v. …

Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

2. This Criminal Appeal Under Section 374 (2) of the Cr.P.C. has been filed against the judgment and order dated 22.11.2010, passed by the Additional Session Judge, Court No.VIII, Faizabad (in short "Trial Court") in S.T. No.345 of 2008 (State Vs. Ganesh Dutt Pathak), arising out of Crime No.273 of 2003, under Sections 323, 504, 506, 325, 308, 406 I.P.C. By the impugned judgment and order, the appellant has been convicted for the offence under Sections 323, 325 I.P.C. However, instead of sending him to jail, the trial court has granted him the benefit of Section 4 of the probation of Offenders Act, 1958.

3. The case of the prosecution, in nutshell is that complainant Ram Narain Singh had given an application to Station Officer-Khandasa, District - Faizabad. In the same the applicant stated that (i) he is resident of Village-Garauli, Police Station-Khandasa, District-Faizabad, (ii) his real brother Har Narain Singh, son of Naurang Singh had given 2 CRLA No. - 107 of 2011 Rs.4000/- to Ganesh Dutt Pathak to deposit it in Baroda Bank, because he is illiterate, (iii) Ganesh Dutt Pathak has neither deposited the amount, nor given any receipt, (iv) on demand of receipt, Ganesh Dutt Pathak said that he had given receipt to some one else, (v) later on Har Narain Singh called a Panchayat but Ganesh Dutt Pathak had neither given receipt, nor returned the money, (vi) on 13.10.2003, Har Narain Singh was returning after natural call at 7.00 A.M. the Ganesh Dutt Pathak, who was sitting in the way, started beating the victim-Har Narain Singh with lathi due to which he fell down, (vii) on the alarm of Har Narain Singh, Ramesh Singh, Jagdish Singh saw the incident and saved the life of Har Narain Singh, (viii) the Ganesh Dutt Pathak rebuked Har Narain Singh and threatened to kill and fled away, (ix) Har Narain Singh was carried to hospital Faizabad and admitted with the help of villagers, and (x) after medical examination, X-Ray was conducted which shows that bone of rib of Har Narain Singh was fractured.

4. On the basis of this written report, an F.I.R. as Crime No.273 of 2003, under Sections 323, 504, 506, 325, 308, 406 1.P.C. was lodged against accused Ganesh Dutt Pathak on 19.10.2003 at 14.15 hours.

5. On the basis of the F.I.R., investigation proceeded in the matter and the Investigating Officer (in short "I.O.") visited the place of occurrence, prepared site plan recorded the statement of the witnesses and after completing the investigation submitted chargesheet against accused Gasnesh Dutt Pathak under section 323, 504, 506, 325, 308, 406 I.P.C.

6. After filing of the charge sheet, the cognizance was taken by the Magistrate and copies were furnished to the accused and thereafter the case was committed to the court of sessions for trial where it was registered as S.T. No.345 of 2008 and the charge against accused Ganesh Dutt Pathak under sections 323, 325, 504, 506(2), 308, 406 I.P.C. was framed against. The accused denied the charges and claimed the trial.

7. In support of its case, the prosecution has examined Ram Narain Singh (PW-1), Har Narain (PW-2), Ramesh Kumar Singh (PW-3), Dr. S.P. Bansal (PW-4), Constable Mohaharrir Ram Deen Rawat (PW5), Dr. 3 CRLA No. - 107 of 2011 A.K.Srivastava (PW-6) and S.I. Sadhu Ram as (PW-7). Prosecution has also filed written report (Ext.Ka-1), Medical report of injured Har Narain Singh (Ext.Ka-2), chick F.I.R. (Ext.Ka-3), Entry of G.D.(Ext.Ka-4), letter to R.K. (Ext.Ka-5), X-ray report (Ext.Ka-6), site plan (Ext.Ka-7) and chargesheet (Ext. Ka-8) in documentary evidence and has proved the same.

8. After closing of the evidence of the prosecution, the statement of accused Ganesh Dutt Pathak has been recorded under section 313 Cr.P.C. in which accused stated that on the day of incident, he was coming from natural call with empty Lota. At the time of returning Har Narain Singh and Ashok began to beat him with lathi. On his alarm Krishna Kumar and Hari Nath ran. Har Narain Singh became injured as he fell on the side of Kharanja near the road. The Nabdan of Har Narain Singh flows from the side of his house closely. He had given application for this at police station and other officers for removal of said Nabdan, due to this they were angry. The report was lodged after one week. Har Narain Singh received injuries by falling. In defence accused has filed paper No. 57A/2 site plan of S.T.No.69 of 2009 (State versus Har Narain Singh), 57A/6 Injury report of Sessions Trial No.69 of 09.

9. It is to be noted that the injured Har Narain (PW-2) before the trial court remained intact and supported the facts as indicated in the written report/F.I.R. according to which Rs.4000/- were given to Ganesh Dutt Pathak to deposit in the Bank of Baroda. Thereafter, the receipt was demanded from Ganesh Dutt Pathak, who in response stated that the receipt has been given someone else and thereafter the injured Har Narain (PW-2) demanded money from Ganesh Dutt Pathak and thereafter Ganesh Dutt Pathak threatened him to life and being annoyed and due to this enmity, on 13.10.2003 at about 7.00 A.M. when the injured Har Narain was returning from natural call, accused Ganesh Dutt Pathak who was hiding himself came from the ambush and started beating the injured Har Narain and also hurled abuses. Har Narain, after sustaining the injuries fell down and on hearing the alarm the son of the 4 CRLA No. - 107 of 2011 injured Har Narain Singh namely Ramesh Kumar Singh (PW-3) and Jagdish Singh rushed to the spot and saved the life of Har Narain Singh.

10. PW-2 Har Narain Singh, according to his statement as also the evidence on record, remained in hospital for 10 days. His X-ray was also conducted and in the X-Ray 5th to 9th ribs on the right side of chest were found fractured. The aforesaid fact is corroborated by the medical evidence duly proved by (PW-4) Dr. S.P. Bansal, according to whom he examined Har Narain Singh (PW-2) on 13th October, 2003 at about 5.25 P.M. and found following injuries :- "1. Contusion 8 cm x 2 cm on right side back of chest in the scapular region,reddish in colour. Adv.X-Ray.

2. Contusion 10 cm x 2 cm on right side back of chest 4 cm below injury No.1.

3. Contusion 8 cm x 2 cm on right side back in the lower part of chest 5 cm below injury No.2. Adv. X-ray. In the opinion of doctor these injuries were caused by hard and blunt object. This witness has proved injury report Ext. Ka 2."

11. It would be apt to indicate here that it is well established that the evidence of an injured witness must be given due weightage as being an injured witness, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he/she has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein [Vide: State of M.P. vs. Mansingh, (2003) 10 SCC 414; Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; Abdul Sayeed vs. State of M.P.,

Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

2. This Criminal Appeal Under Section 374 (2) of the Cr.P.C. has been filed against the judgment and order dated 22.11.2010, passed by the Additional Session Judge, Court No.VIII, Faizabad (in short "Trial Court") in S.T. No.345 of 2008 (State Vs. Ganesh Dutt Pathak), arising out of Crime No.273 of 2003, under Sections 323, 504, 506, 325, 308, 406 I.P.C. By the impugned judgment and order, the appellant has been convicted for the offence under Sections 323, 325 I.P.C. However, instead of sending him to jail, the trial court has granted him the benefit of Section 4 of the probation of Offenders Act, 1958.

3. The case of the prosecution, in nutshell is that complainant Ram Narain Singh had given an application to Station Officer-Khandasa, District - Faizabad. In the same the applicant stated that (i) he is resident of Village-Garauli, Police Station-Khandasa, District-Faizabad, (ii) his real brother Har Narain Singh, son of Naurang Singh had given 2 CRLA No. - 107 of 2011 Rs.4000/- to Ganesh Dutt Pathak to deposit it in Baroda Bank, because he is illiterate, (iii) Ganesh Dutt Pathak has neither deposited the amount, nor given any receipt, (iv) on demand of receipt, Ganesh Dutt Pathak said that he had given receipt to some one else, (v) later on Har Narain Singh called a Panchayat but Ganesh Dutt Pathak had neither given receipt, nor returned the money, (vi) on 13.10.2003, Har Narain Singh was returning after natural call at 7.00 A.M. the Ganesh Dutt Pathak, who was sitting in the way, started beating the victim-Har Narain Singh with lathi due to which he fell down, (vii) on the alarm of Har Narain Singh, Ramesh Singh, Jagdish Singh saw the incident and saved the life of Har Narain Singh, (viii) the Ganesh Dutt Pathak rebuked Har Narain Singh and threatened to kill and fled away, (ix) Har Narain Singh was carried to hospital Faizabad and admitted with the help of villagers, and (x) after medical examination, X-Ray was conducted which shows that bone of rib of Har Narain Singh was fractured.

4. On the basis of this written report, an F.I.R. as Crime No.273 of 2003, under Sections 323, 504, 506, 325, 308, 406 1.P.C. was lodged against accused Ganesh Dutt Pathak on 19.10.2003 at 14.15 hours.

5. On the basis of the F.I.R., investigation proceeded in the matter and the Investigating Officer (in short "I.O.") visited the place of occurrence, prepared site plan recorded the statement of the witnesses and after completing the investigation submitted chargesheet against accused Gasnesh Dutt Pathak under section 323, 504, 506, 325, 308, 406 I.P.C.

6. After filing of the charge sheet, the cognizance was taken by the Magistrate and copies were furnished to the accused and thereafter the case was committed to the court of sessions for trial where it was registered as S.T. No.345 of 2008 and the charge against accused Ganesh Dutt Pathak under sections 323, 325, 504, 506(2), 308, 406 I.P.C. was framed against. The accused denied the charges and claimed the trial.

7. In support of its case, the prosecution has examined Ram Narain Singh (PW-1), Har Narain (PW-2), Ramesh Kumar Singh (PW-3), Dr. S.P. Bansal (PW-4), Constable Mohaharrir Ram Deen Rawat (PW5), Dr. 3 CRLA No. - 107 of 2011 A.K.Srivastava (PW-6) and S.I. Sadhu Ram as (PW-7). Prosecution has also filed written report (Ext.Ka-1), Medical report of injured Har Narain Singh (Ext.Ka-2), chick F.I.R. (Ext.Ka-3), Entry of G.D.(Ext.Ka-4), letter to R.K. (Ext.Ka-5), X-ray report (Ext.Ka-6), site plan (Ext.Ka-7) and chargesheet (Ext. Ka-8) in documentary evidence and has proved the same.

8. After closing of the evidence of the prosecution, the statement of accused Ganesh Dutt Pathak has been recorded under section 313 Cr.P.C. in which accused stated that on the day of incident, he was coming from natural call with empty Lota. At the time of returning Har Narain Singh and Ashok began to beat him with lathi. On his alarm Krishna Kumar and Hari Nath ran. Har Narain Singh became injured as he fell on the side of Kharanja near the road. The Nabdan of Har Narain Singh flows from the side of his house closely. He had given application for this at police station and other officers for removal of said Nabdan, due to this they were angry. The report was lodged after one week. Har Narain Singh received injuries by falling. In defence accused has filed paper No. 57A/2 site plan of S.T.No.69 of 2009 (State versus Har Narain Singh), 57A/6 Injury report of Sessions Trial No.69 of 09.

9. It is to be noted that the injured Har Narain (PW-2) before the trial court remained intact and supported the facts as indicated in the written report/F.I.R. according to which Rs.4000/- were given to Ganesh Dutt Pathak to deposit in the Bank of Baroda. Thereafter, the receipt was demanded from Ganesh Dutt Pathak, who in response stated that the receipt has been given someone else and thereafter the injured Har Narain (PW-2) demanded money from Ganesh Dutt Pathak and thereafter Ganesh Dutt Pathak threatened him to life and being annoyed and due to this enmity, on 13.10.2003 at about 7.00 A.M. when the injured Har Narain was returning from natural call, accused Ganesh Dutt Pathak who was hiding himself came from the ambush and started beating the injured Har Narain and also hurled abuses. Har Narain, after sustaining the injuries fell down and on hearing the alarm the son of the 4 CRLA No. - 107 of 2011 injured Har Narain Singh namely Ramesh Kumar Singh (PW-3) and Jagdish Singh rushed to the spot and saved the life of Har Narain Singh.

10. PW-2 Har Narain Singh, according to his statement as also the evidence on record, remained in hospital for 10 days. His X-ray was also conducted and in the X-Ray 5th to 9th ribs on the right side of chest were found fractured. The aforesaid fact is corroborated by the medical evidence duly proved by (PW-4) Dr. S.P. Bansal, according to whom he examined Har Narain Singh (PW-2) on 13th October, 2003 at about 5.25 P.M. and found following injuries :- "1. Contusion 8 cm x 2 cm on right side back of chest in the scapular region,reddish in colour. Adv.X-Ray.

2. Contusion 10 cm x 2 cm on right side back of chest 4 cm below injury No.1.

3. Contusion 8 cm x 2 cm on right side back in the lower part of chest 5 cm below injury No.2. Adv. X-ray. In the opinion of doctor these injuries were caused by hard and blunt object. This witness has proved injury report Ext. Ka 2."

11. It would be apt to indicate here that it is well established that the evidence of an injured witness must be given due weightage as being an injured witness, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he/she has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein [Vide: State of M.P. vs. Mansingh, (2003) 10 SCC 414; Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; Abdul Sayeed vs. State of M.P.,