Hon'ble Kalimullah Khan,J.
(Delivered by Hon'ble Kalimullah Khan,J.) Heard learned counsel for the appellant, Dinesh Kumar Singh @ Shambhu Singh, the informant, and learned A.G.A. Perused the record.
This is the criminal appeal u/s 372 Cr.P.C. seeking leave to appeal against the impugned judgment and order dated 5.2.2014, passed by learned Additional Sessions Judge, Court No.1, Hathras, in S.T.No.255 of 2007 (State Vs. Hariom @ Santosh and two others), Crime No.31 of 2006, u/s 307 IPC, P.S. Chandapa, District Hathras, whereby he has acquitted accused respondents Hariom @ Santosh and Harish Chandra.
Be it known that Pratap Singh died during the trial, therefore, his case has stood abated.
In nutshell, the prosecution case is that on 24.2.2006, at about 9.30 p.m., Shyam Singh (injured), son of the first informant, Dinesh Kumar Singh @ Shambhu Singh, was driving tractor No.UP-86-A-6994 (Maisey) loaded with potato. When, he reached village Santikra turn, accused Santosh, son of Babu Jatav, r/o village Mangaroo, P.S. Sadabad, District Hathras, along with two other unknown persons appeared there on a motorcycle and fired with his country made pistol on Shyam Singh, who sustained injury in his right hand. First informant, Dinesh Kumar Singh and one Mukut Singh raised alarm. All the miscreants ran away on the motorcycle. The tractor was overturned. The first informant along with his son went to police station and lodged the F.I.R. Injured Shyam Singh and Mukut Singh were medically examined. After completing the investigation, I.O. submitted the charge-sheet.
Charge u/s 307 IPC was framed. Accused denied the charge and claimed their trial.
In order to prove its case, prosecution examined Shyamvir Singh (P.W.1), Bachchu Singh (P.W.2), Dinesh Kumar Singh @ Shambhu Singh (P.W.3), Soran Singh (P.W.4), Mukut Singh (P.W.5), Sunhari Lal (P.W.6), Dr. Shishir Vashistha (P.W.7), Constable 104 Vinod Kumar (P.W.8), Shailendra Pal Singh (P.W.9), S.I., S.K. Singh (P.W.10) and Ashutosh Tripathi (P.W.11).
Accused were examined u/s 313 Cr.P.C.They denied the allegations made against them and challenged the veracity of the evidence of witnesses of fact. They examined Hakim Singh (D.W.1) and Raj Bahadur Singh (D.W.2) in their defence.
On the basis of the evidence on record, learned trial court recorded the finding of acquittal, vide impugned judgment and order on the grounds that accused Hariom Singh, Harish Chandra and Pratap Singh were not named in the FIR rather one Santosh and two unknown were named and it is not established by the evidence on record that Hariom has his alias name Santosh; none of the prosecution witness has seen accused causing firearm injury on the victim; the incident took place in the darkness of night; medical report does not inspire confidence; original X-ray report and X-ray plate were not produced on record. The shirt of injured, Shyamvir Singh, was taken in police custody by I.O. after one month and three days of the incident, does not bear any hole caused by pellet and according to doctor, the injuries sustained by the victim, could be self inflicted. Learned trial court concluded that the possibility of false implication of the accused cannot be ruled out.
Feeling aggrieved, this criminal appeal has been filed.
Perusal of the judgment impugned makes it clear that first informant, Dinesh Kumar Singh @ Shambhu Singh, was not present at spot on the tractor rather he reached at the scene of incident on the motorcycle after 15 minutes of the incident and Bachchu Singh (P.W.2) reached at spot after 10 minutes of the incident after hearing the noise of fire in nearby potato field. Bachchu Singh (P.W.2) has clearly and categorically deposed the aforesaid facts and his aforesaid evidence has not been challenged by the prosecution.
Soran Singh (P.W.4) has deposed that he alone was present at spot at the time of incident and except him, none other was present there. In this way, he denied the presence of first informant, Dinesh Kumar Singh @ Shambhu Singh (P.W.3), Bachchu Singh (P.W.2) and Mukut Singh (P.W.5) at spot. Regarding himself, he deposed that he reached at spot after hearing the sound of fire and had sworn and filed his affidavit to I.O. at a belated stage after one month and three days of the incident, wherein he had not mentioned the name of Hariom. He has clearly and categorically deposed that he did not disclose the names of accused Hariom, Harish Chandra and Pratap Singh at spot although he was pre-acquainted with the names of accused Harish Chandra and Pratap. Had he seen these accused at spot, he must have disclosed their names to first informant, Dinesh Kumar Singh @ Shambhu Singh.
First informant, Dinesh Kumar Singh @ Shambhu Singh (P.W.3), has deposed that he was pre-acquainted with the face of Harish Chandra but he did not know his name but in the FIR, he has not mentioned the aforesaid fact. He admitted that he did not disclose the name of Harish Chandra and Pratap in his statement recorded u/s 161 Cr.P.C. He explained that since, he did not know them, therefore, he did not disclose the aforesaid fact to I.O. This witness has deposed that he did not know that Santosh had his alias name Hariom. This fact came to his knowledge next day of the incident but still he did not told the aforesaid fact to I.O. This witness further deposed that accused has come from behind the tractor. He claims to have identified accused Hariom and the names of other two accused were informed to him by witnesses still he did not name them in the FIR. He could not explain as to why the names of all the three accused did not find place in the FIR. He deposed that all the accused, after opening fire, returned towards the back of the tractor. At one place, he says that accused fired from in front of the tractor. Subsequently, he deposed that they fired from the side of the tractor and ultimately he said that they fired from behind the tractor. He did not claim that there was any source of light at the back or in the side of the tractor. He admits that incident took place in the darkness of the night.
Mukut Singh (P.W.5) admitted in his cross-examination that Shyamvir was all alone in the tractor at the time of incident. In this way, he corroborates the evidence of Soran Singh (P.W.4) and belies his own presence as well as the presence of Dinesh Kumar Singh @ Shambhu Singh (P.W.3) and Bachchu Singh (P.W.2) at spot during the incident.
Shyamvir Singh, the injured witness (P.W.1), has deposed in his examination-in-chief that when he was driving the tractor loaded with potato, accused Hariom, Harish Chandra and Pratap met him on motorcycle on 24.2.2006, at about 9.30 p.m., near village Santikra turn. Hariom fired with his country made pistol causing injuries in his right hand and in the side of his body. He deposed that Hariom @ Santosh alone has fired at him. Harish Chandra and Pratap did not fire. He sustained injury in his hand. He does not claim to have sustained injury at his side. His claim that his father Dinesh Kumar Singh @ Shambhu Singh and Bachchu Singh were there at his tractor at the time of incident is belied by the evidence of Soran Singh (P.W.4). This witness does not depose that in the same incident, Mukut Singh sustained pellet injury whereas Mukut Singh (P.W.5) says that he sustained a single pellet injury in his thigh and Shyam Singh has sustained injury at the back of his shoulder. Dinesh Kumar Singh @ Shambhu Singh (P.W.3) has deposed that after the incident of fire, the tractor overturned as a result of which Mukut Singh (P.W.5) sustained injuries.
In this view of the matter, there is material contradiction in the evidence of P.W.1, P.W.3 and P.W.5 on the point of injuries sustained by both the victims. Undisputedly, the injury sustained by P.W.1 was not grievous in nature. No X-ray report or original X-ray plate was produced by the prosecution on record. Apart from it, P.W.1 says that he was pre-acquainted with Hariom. The Head Constable says that injured Shyamvir had gone to the police station along with his father and he was fully conscious. Even then the name of Hariom does not find place in the FIR. Injured (P.W.1) has deposed that he did not know any alias name of Hariom. Therefore, naming Santosh in the FIR appears to be a false accusation against Hariom, Harish Chandra and Pratap. Identity of the assailant Hariom is not fixed. Absence of hole in the shirt of injured Shaymvir leads corroborative support to the contention of accused that nothing has happened in the manner as alleged by the prosecution.
On the basis of aforesaid fact and evidence coupled with the fact that there was no motive alleged in the FIR for the incident, the view of acquittal taken by the learned trial court is a quite possible view especially when none of the prosecution witnesses are reliable witnesses.
The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possible arrived at by any court acting reasonable and judiciously and is, therefore, liable to be characterized as perverse.
No interference is called for by this Revisional Court. Hence, leave to appeal is refused and consequently the appeal is also dismissed.
Order Date :- 20.5.2014 m.a.