Court No. - 28
Judgment Reserved on : 30.03.2018
Judgment Delivered on : 24.04.2018
Case :- CRIMINAL APPEAL No. - 603 of 2004 Appellant :- Ashraf & Others Respondent :- State Of U.P.
Counsel for Appellant :- V.R. Tiwari,Rishi Kant Rai,S. Tewari,V.P.Tiwari Counsel for Respondent :- Govt. Advocate Connected with Case :- CRIMINAL APPEAL No. - 731 of 2004 Appellant :- Chhangur & Another Respondent :- State Of U.P. Counsel for Appellant :- V.R. Tiwari Counsel for Respondent :- Govt. Advocate
Hon'ble Umesh Chandra Tripathi,J.
1. The instant criminal appeals are born out of a common judgment and order dated 28.01.2004 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Deoria in Sessions Trial No. 285 of 1992 (State v. Chhangur and others) arising out of Case Crime No. 122 of 1991, Police Station – Baghauchghat, District – Deoria, whereby accused-appellants – Chhangur, Islam, Khurshid, Ashraf and Liyakat Ali were convicted and sentenced as follows :
(i) Rigorous imprisonment for a period of five years each and to pay fine of Rs. 2,000/- each, under Section 307/149 of the Indian Penal Code (hereinafter referred to as 'IPC') and in case of default in payment of fine, additional imprisonment for six months each had to be undergone by each of them.
(ii) Rigorous imprisonment for a period of two years each and to pay fine of Rs. 1,000/- each, under Section 452 IPC and in case of default in payment of fine, additional imprisonment for three months had to be undergone by each of them.
2. Both the sentences were directed to run simultaneously.
3. Facts of the prosecution case, in brief, appear to be that on 10.10.1991 at about 02.30 P.M., accused-appellants Chhangur, Islam, Khurshid, Ashraf and Liyakat Ali, possessing blunt object - 'lathi-danda' (wooden stick) and sharp-edged weapon 'gadasi', entered into the residence of the informant Adalat and brutally assaulted Jahedun Nisha, wife of informant Adalat and Noor Jahan, wife of informant's brother, on account of some old land dispute. Jahedun Nisha sustained injuries by 'gadasi' (axe-like weapon) on her neck. On alarm being raised, co-villagers Sadan, Mahendra, Sri Kishun and others came to their rescue. At the time of the occurrence, informant Adalat was not present at his residence. When he returned to his residence, he took away the injured for medical examination. It was requested that report be lodged and strict action be taken. The written report is on record and the same is marked as Ex.Ka.1.
4. Contents of written report were taken down in the FIR at Case Crime No. 122 of 1991 under Sections 147, 452, 324, 323 IPC at Police Station – Baghauchghat, District – Deoria on 10.10.1991 at 20.50 hours (08.50 P.M.). The FIR is on record and the same is marked as Ex.Ka.6. On the basis of entry so made in the FIR, relevant entry was made in the General Diary (G.D. No. 33) and a case was registered against the accused at the aforesaid case crime number under the aforesaid section. The carbon copy of G.D. is on record and the same is marked as Ex.Ka.7.
5. Thereafter, the investigation of the case was started and it was entrusted to S.I. R.D. Gautam, I.O. of this case. He first of all send the both the injured for medical examination. Thereafter, he inspected the place of occurrence and prepared site plan. The site plan is on record and the same is marked as Ex.Ka.8. He also recorded the statement of informant and other witnesses.
6. Injured Jahedun Nisha was medically examined on the same day at 04.00 P.M. at Primary Health Centre, Pathardeba, District – Deoria by Dr. S.K. Chaubey, Incharge Medical Officer, Patharba, Deoria. As per statement of Dr. S.K. Chaubey and injury report of the injured, the following injuries were found on her person :
(i) Traumatic swelling 2.5 cm. x 2 cm. over head frontal part left side 4 cm. above eyebrows.
(ii) Incised wound 4 cm. x 0.2 cm. x skin deep over neck left side posterior part horizontal, margins clean cut.
(iii) Contusion 4.5 cm. x 0.6 cm. over back of neck horizontal, red.
(iv) Incised wound 1.2 cm., linear over neck right side lower part, skin deep, fresh blood oozing out, margins clean cut.
(v) Incised wound 2.2 cm., linear, skin deep over neck right side 0.4 cm. below and in front of injury no. (iv).
(vi) Contusion 5 cm. x 1.6 cms. over back left side lower part, red, horizontal.
(vii) c/o Pain over back right side upper part no external injury evident.
(viii) Lacerated wound 0.3 cm. x 0.2 cm. over dorsal aspect of right little Finger distal part. skin deep.
7. In the opinion of the doctor, injury nos. (ii), (iv) and (v) were caused by a sharp-edged weapon, while rest of them were caused by hard blunt object. All the injuries were simple in nature and their duration was fresh.
8. The injury report of injured Jahedun Nisha is on record and the same is marked as Ex.Ka.3.
9. Injured Noor Jahan was also medically examined on the same day at 04.10 P.M. at Primary Health Centre, Pathardeba, District – Deoria by Dr. S.K. Chaubey. As per statement of Dr. S.K. Chaubey and injury report of the injured, the following injuries were found on her person :
(i) c/o pain over abdomen lower part left side, external injury not visible.
(ii) Traumatic swelling 5 cm. x 4 cm. diffused over dorsal aspect of right hand proximal to 2nd and middle finger, advised x-ray for bony injury.
(iii) Abrasion 0.8 cm. x 0.3 cm. over back of right forearm proximal part irregular.
(iv) c/o pain over back left side upper part, external injury not evident.
10. In the opinion of doctor, all the injuries were caused by hard and blunt object. Three injuries – injury nos. (i), (iii) and (iv) were simple in nature, while injury no. (ii) would be confirmed after expert opinion from Radiologist. The duration of all the injuries was fresh.
11. The injury report of injured Noor Jahan is on record and the same is marked as Ex.Ka.4.
12. In the supervision of Dr. M.M. Pratap, Senior Radiologist, District Hospital, Deoria, x-ray of right hand proximal to second and middle finger of injured Noor Jahan was conducted on 12.10.1991 at District Hospital, Deoria. As per x-ray report and statement of Dr. M.M. Pratap, index finger of right hand of injured Noor Jahan was fractured. The x-ray report of injured Noor Jahan is on record and the same is marked as Ex.Ka.2.
13. Thereafter, Dr. S.K. Chaubey, after going through the x-ray report, stated that injury no. (ii) referred to Dr. M.M. Pratap, Radiologist for expert opinion, submitted supplementary injury report, stating therein that the aforesaid injury was grievous in nature. The supplementary injury report is on record and the same is marked as Ex.Ka.5.
14. After completion of investigation, the police submitted charge- sheet against accused-appellants - Chhangur, Islam, Khurshid, Ashraf and Liyakat Ali under Sections 147, 452, 307, 324, 323, 342, 504 and 506 IPC. The charge-sheet is on record and the same is marked as Ex.Ka.9.
15. Pursuant thereto, committal proceedings took place and the case was committed to the Court of Sessions. As a sequel to that, it was made over for trial and disposal to the court of II Additional Sessions Judge, Deoria. Accused were heard on point of charge and the trial court was prima facie satisfied with the case against them, therefore, it framed charges against them under Section 147, 148, 307/149, 452 and Section 506 Part ii/149 IPC. Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.
16. The prosecution in order to prove guilt of the accused examined as many as seven prosecution witnesses, out of whom, P.W.1 informant Adalat, P.W.2 injured Jahedun Nisha, P.W.3 Sri Kishun and P.W.4 injured Noor Jahan were examined as witnesses of fact, whereas, P.W.5 Dr. M.M. Pratap, P.W.6 Dr. S.K. Chaubey and P.W.7 Constable S.P. 118 Satya Narayan Singh were examined as formal witnesses.
17. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 of the Code of Criminal Procedure, wherein, they pleaded their innocence. Accused-appellant Chhangur stated that first information report against him is a counterblast of his case.
18. In defence, the accused have filed injury reports of accused- appellants Liyakat Ali and Khurshid and that of Gulshan, daughter of Hadish Ansari, injured from the side of the accused.
19. Accused-appellants Liyakat Ali, Khurshid and injured from the side of the accused Gulshan were also examined on the same day, that is to say, on 10.10.1991 at 06.20 P.M., 06.15 P.M. and 06.00 P.M., respectively by Dr. S.K. Chaubey at Primary Health Center, Pathardeba, Deoria, who noted the following injuries on their person :
20. Injuries on the person of accused-appellant Liyakat Ali :
(i) Lacerated wound 2.5 cm. x 0.7 cm. x skin deep, irregular over front of left leg upper part, fresh clots present over wound.
(ii) Lacerated wound 2 cm. x 0.5 cm. x skin deep over front of left leg 1 cm. below injury no. (I) (iii). Abrasion 0.6 cm. x 0.4 cm. over front of left leg upper part 2.2 cm. below injury no. (ii).
(iv) Traumatic swelling 2.2 cm. x 1.6 cm. over dorsal aspect of left foot proximal part outer aspect.
21. In the opinion of the doctor, all the injuries caused to the injured were caused by hard and blunt object. All the injuries were simple in nature and their duration was about half day.
22. The injury report of accused-appellant Liyakat Ali is on record and the same is marked as Ex.Kha.1.
23. Injuries on the person of accused-appellant Khurshid :
(i) C/o pain over neck posterior aspect of left side, external injury not evident.
(ii) C/o pain over inner aspect of right arm middle, external injury not evident.
(iii) Abrasion 2 cm. x 1.2 cm. irregular over right arm lower part outer aspect.
(iv) Abrasion 0.4 cm. x 0.2 cm. over back of right forearm proximal part, irregular.
(v) C/o pain over front medial aspect of right leg upper part, external injury not evident.
24. In the opinion of the doctor, injury nos. (iii) and (iv) were caused due to friction against rough surface. All the injuries were simple in nature and their duration was about half day.
25. The injury report of accused-appellant Khurshid is on record and the same is marked as Ex.Kha.2.
26. Injuries on the person of Gulshan :
(i) Traumatic swelling 2.5 cm. x 2 cm. over face left side 1.5 cm. below left eye.
(ii) Abrasion 2.5 cm. x 0.6 cm. over forehead left side, irregular, 2 cm. above eyebrows.
(iii) C/o pain over right arm lower part, external injury not evident.
(iv) C/o pain over abdomen upper part, central part external injury not evident.
(v) C/o pain over front of right thigh, external injury is not evident.
27. In the opinion of the doctor, all the injuries were caused by hard and blunt object. All the injuries were simple in nature and their duration was about half day.
28. The injury report of Gulshan is on record and the same is marked as Ex.Kha.3.
29. Learned trial Judge after considering the case on its merit passed aforesaid finding of conviction and passed the impugned judgement and order.
30. Feeling aggrieved by the order of learned Additional Sessions Judge, the appellants have preferred the instant appeals.
31. Heard at length the arguments advanced by Sri V.R. Tiwari, learned counsel for the appellant and Sri L.D. Rajbhar, learned Additional Government Advocate for the State of Uttar Pradesh.
32. Learned counsel for the accused-appellants contended that first information report has been lodged with an inordinate delay and that too, without any plausible explanation. The accused- appellants have been falsely implicated in this case due to enmity. The prosecution has failed to proved its case beyond reasonable doubt against the accused-appellants.
33. P.W.1 informant Adalat is not the eye-witness of the occurrence. He lodged the FIR on the information of his wife P.W.2 Jahedun Nisha and P.W.4 Noor Jahan, wife of his brother Salamat.
P.W.4 Noor Jahan has been examined by the prosecution, but she has not supported the prosecution version, and was declared hostile by the prosecution. She has expressly stated before the court that no one has assaulted her. She has neither sustained injury nor was examined by the doctor.
34. Injured P.W.2 Jahedun Nisha and P.W.3 Sri Kishun have supported the version of the prosecution. P.W.3 Sri Kishun has admitted that he deposed in favour of P.W.1 informant Adalat and against accused-appellant Chhangur in civil litigation about the land belonging to Gaon Sabha. This shows that P.W.3 Sri Kishun is most inimical to the accused-appellant and an interested witness to the informant. He further admitted that in between place of occurrence and residence of one Bheema, there is residence of Ramadhar. At the time of the occurrence, he was getting repaired his plough at the residence of Bheema. He reached on the spot after hearing the alarm raised by the injured.
35. As per first information report, the accused-appellants entered into the house of P.W.1 informant Adalat and immediately attacked Noor Jahan and P.W.2 Jahedun Nisha. It is natural that after being attacked, Jahedun Nisha and Noor Jahan might have raised an alarm and after hearing that alarm, P.W.3 Sri Kishun might have reached on the spot. P.W.2 Jahedun Nisha has sustained seven injuries, out of which, three injuries are incised wounds. Noor Jahan has sustained only two visible injuries, out of which, one is abrasion and another is traumatic swelling. The occurrence would have taken place hardly within 1-2 minutes. In this short span of time, it was least possible for P.W.3 Sri Kishun to reach on the spot and see the occurrence.
36. Here, it must also be noted that as per FIR, the accused- appellants have caused injuries to the injured inside the informant's house. But P.W.3 Sri Kishun has admitted in his cross- examination that he did not enter into the informant's residence at the time of the occurrence. He was at his doorway. He made a contradictory statement that accused-appellants dragged the injured from the residence and assaulted them at the doorway. He further stated that in the occurrence, two little children of the informant have also sustained injuries. It is neither the case of prosecution nor that of the injured witness Jahedun Nisha. She has not stated before court that her small children have also sustained injuries. This shows that P.W.3 Sri Kishun is not an eye-
witness of the case and he is most unreliable witness.
37. Injured witness P.W.2 Jahedun Nisha has supported the version of the FIR. In her examination-in-chief, she stated that accused entered into her residence and accused-appellant Islam caused several blows on her with 'gadasi'. In her examination-in- chief, she has not narrated this fact that the accused have dragged her from her residence and beaten her at the doorway of her residence. But, in her cross-examination, she made a contradictory statement that the accused had dragged her from her residence and took her into a hut and assaulted her in that hut. She further stated in her cross-examination that she was admitted in the hospital for 5-6 days. As per her injury report, all the injuries on her person were simple in nature. Her injuries were not of such gravity that she may be admitted to the hospital. In her injury report, it was also not mentioned that she was admitted to the hospital. Her statement that she was admitted to the hospital for 5 to 6 is not corroborated by medical evidence. She further admitted that after her medical examination, she went to Baghauchghat police station. If she was admitted in the hospital, then it was not possible for her to go to police station. Once, she stated that firstly, she went to police station and from the police station, she went to the hospital by a vehicle. Further, she stated that firstly, she went to hospital, then she went to the police station. This shows that Jahedun Nisha is also not a reliable witness.
38. From the perusal of injury report of P.W.2 Jahedun Nisha and statement of P.W.6 Dr. S.K. Chaubey, it is apparent that injury nos. 2, 4 and 5, as alleged to have been caused by 'gadasi', are skin deep and superficial. All the aforesaid three injuries are alleged to have been caused by 'gadasi' (sharp-edged weapon) on the neck.
P.W.2 Jahedun Nisha stated that the accused gave blow on her with 'gadasi' by applying force. She stated as follows :
“…......िबना कहे सने अिभयक गण घर से खीचने िनकालने लगे I अिभयक गण जोर जोर से गड़ासी से बाहर को मारने लगे I गड़ासी की मुिड़या पकड़कर अिभयकगण मार रहे थे I अिभयकगण मार रहे थे की तब हम लोग छटपटा रहे थे तथा हाथ पैर से रोक रहे I हम लोग हाथो पर गड़ासी का वार रोकने के िलए पकडे नही I गड़ासी के वार से हाथ की अंगुली से खून िगरा गले से भी खून िगरा I ”
This shows that the accused assaulted her with a heavy sharp- edged weapon 'gadasi' with full force. If Jahedun Nisha would have been attacked with heavy sharp-edged weapon with full force, she might have sustained deeper injuries. Superficial and skin deep injuries are not possible by assault with force by a heavy sharp-edged weapon. If three accused had assaulted injured Jahedun Nisha and Noor Jahan with 'lathi', then both of them must have sustained more injuries. Noor Jahan has sustained one visible injury, i.e. traumatic swelling, that might have been caused by a blunt object. Except that on her neck, injured Jahedun Nisha has not sustained any incised wound by sharp-edged weapon on any part of her body. If a person assaults someone on his/her neck, then it is natural that the victim will try to save his/her neck and in defence, he/she may sustain incised wound on his/her hand. Jahedun Nisha has not sustained any incised wound on her hand. This shows her unnatural conduct.
39. Here, it must also be noted that in the chik FIR, at the top of the FIR, offence under Sections 147, 452, 324, 323 IPC is mentioned. Section 307 IPC is not mentioned. However, only in the middle of the FIR, Section 307 IPC has been mentioned. This shows that the police was favourable to the informant.
40. It was most reasonable for P.W.1 informant Adalat and injured person firstly to go to the police station and after that, to the hospital because injuries of injured Jahedun Nisha and Noor Jahan were simple and superficial in nature. But, contrary to that, they first of all, went to the hospital and after their medical examination, they went to the police station. At the police station, the police could not see the injuries of Jahedun Nisha caused on her neck, because it was covered with a bandage, as mentioned in the G.D. From these facts, possibility of fabricated and false injuries to the injured cannot be ruled out.
41. From the perusal of injury report, it is evident that none of the injuries of the injured were likely to cause death.
42. P.W.2 Jahedun Nisha admitted this fact that without any cause, accused-appellants entered into her residence and suddenly started assaulting her. This version of the prosecution also does not appear to be natural and probable. Without any cause, there was no reason for the accused-appellants to enter into the residence of Jahedun Nisha and beat her and Noor Jahan. Accused-appellants Liyakat Ali, Khurshid and from their side, Gulshan have also sustained injuries on the same day. They were medically examined by the same doctor, Dr. S.K. Chaubey, who has examined the injuries of prosecution side, at the same hospital. The injuries caused to the side of the accused were not explained by the prosecution.
43. In Lakshmi Singh and others v. State of Bihar (1976) 4 SCC 394, Hon'ble Apex Court held as under :
“.....where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants ”
44. P.W.1 informant Adalat and P.W.2 Jahedun Nisha have stated that there was land dispute between them and the appellants, for which, civil litigation is going on and due to the said land dispute, the accused had beaten Jahedun Nisha and Noor Jahan.
45. No independent witness has supported the prosecution version. From the statements of witnesses of fact and injury reports of both the parties, probability of false prosecution against the appellants due to the land dispute cannot be ruled out.
46. For the reasons aforesaid, considering the facts and circumstances of the case and in the light of the observation made by Hon'ble Apex Court in Lakshmi Singh's case (supra), I am of the considered view that the prosecution has failed to prove guilt of the accused beyond all reasonable doubt and that the appellants deserve to be given benefit of doubt. The learned trial court while recording conviction against the appellants failed to properly appreciate the evidence, facts and circumstances of the case and recorded erroneous finding of conviction, which cannot be sustained.
47. Resultantly, the instant appeals are allowed. Conviction of appellants - Chhangur, Islam, Khurshid, Ashraf and Liyakat Ali under Sections 307/149 and 452 IPC passed by learned Additional Sessions Judge, Fast Track Court No. 2, Deoria is hereby set aside and they are acquitted.
48. The appellants are on bail. They need not surrender. Their bail bonds stand cancelled and sureties are discharged.
49. Let a certified copy of this order be provided to Sessions Judge, Deoria for necessary compliance. Let the lower court's record be remitted back to the court concerned.
Order Date :- 24.4.2018 I. Batabyal [Umesh Chandra Tripathi,J.]