JUDGMENT RESERVED ON : 03.05.2019 JUDGMENT DELIVERED ON : 31.05.2019 Case :- CRIMINAL APPEAL No. - 54 of 2004 Appellant :- Genda Lal Respondent :- State Of U.P.
Counsel for Appellant :- Brij Raj Singh,Ajay Vikram Yadav Counsel for Respondent :- Govt. Advocate First Information Report = FIR
Hon'ble Om Prakash-VII,J.
1. Present criminal appeal has been preferred by appellant Genda Lal against the judgment and order dated 19.12.2003 passed by Additional Sessions Judge/Fast Track Court No. 1, Mainpuri in Sessions Trial No. 64 of 1999 (State of U.P. Versus Gendra Lal and others) arising out of case crime no. 88 of 1992, under section 307 IPC, Police Station Kotwali, District Mainpuri whereby appellant has been convicted and sentenced for offence under section 307 read with Section 34 IPC to undergo R.I. for four years and fine of Rs. 2,000/- along with a default sentence of 3 months.
2. At the very outset it is made clear that accused Param Sukh and Jamal Khan died during trial, therefore, trial was completed only against the present appellant Genda Lal.
3. Prosecution story, in brief, as unfolded in chik FIR (Ex.Ka.3) is as follows :
4. On 23.1.1992 informant Ram Sewak orally informed to the local police that on 22.1.1992 he along with Jai Prakash son of Munshi Lal and Virendra son of Har Dayal was returning to his village after selling mustard grain. On the way when he reached near Bhojpura accused Param Sukh son of Matru Lal met with him and asked to leave him at Gola Bazar. When informant along with Param Sukh reached at Gola Bazar, accused Genda Lal also met there and took the informant to village Sikandarpur. Informant took dinner at the house of Jamal Khan. Thereafter he was returning to his home then aforesaid accused persons also came to leave him at the outskirts of the village. It was also informed to the local police that all the three accused persons at the outskirts of the village concerned started beating the informant with “lathi” and “danda”. Accused Param Sukh caused injuries with knife due to which informant sustained several injuries. On the basis of oral information police concerned registered the aforesaid chik FIR under Section 307 IPC against Param Sukh, Jamal Khan and Genda Lal. G.D. Entry was also made as Ext. Ka-4.
5. It also appears that after registering the FIR police concerned sent the informant for medical examination through majrubi chitthi. Medial examination of the injured was done on 23.1.1992 at 10.30 A. M. at District Hospital, Mainpuri and following injuries were found on his body :
“(I) Abrasion 2 c.m. X 0.5 c.m. on right side of skull 7.5 c.m. over right ear.
(II) Multiple linear abrasion all over front of chest both shoulders and both side of face about 5.6 c.m. in size on an average.
(III) Incised wound 2 c.m. X 1 c.m. on the front of left side of left knee over upper margin of patella.
(IV) Incised wound 3 c.m. X 2 c.m. on the right side of lower part of front of chest 7 c.m. below right nipple at 8' O clock position.
(V) Stab wound 2 c.m. X 2 c.m. X depth not probed tailing towards outer side extending 10 c.m. from wounds lying over right side of abdomen 8 c.m. away from umbilicus at 10 ' O clock position ultra-abdominal contents carrying out of one wound. Kept under observation. Advised plain X-ray of Abdomen.
(VI) Incised wound 3 c.m. X 1 c.m. on the back of left hip joint below Iliac crest muscle deep. Bleeding on wound present.
(VII) Incised wound 2 c.m. X 1 c.m. on the right side back of wrist at the lower of 4-2 vertebral level bleeding on wounds present.”
6. Injury report prepared by Dr. concerned is (Ext. Ka– 2). Investigating Officer visited the place of occurrence and prepared site plan (Ext. Ka-5). He has also interrogated the witnesses and after fulfilling entire formalities submitted charge sheet (Ext. Ka-6) against the present appellant and co-accused Param Sukh (since died) and Jamal Khan as absconder.
7. On submission of charge sheet cognizance was taken by the concerned Magistrate. From the perusal of the lower court record it also reveals that at the time of framing of charge Chief Judicial Magistrate, Mainpuri was of the opinion that it is a case under Section 307 IPC, hence fulfilling the entire formalities supplying the copies of the police papers, case was committed to the court of Sessions on 15.1.1999.
8. Accused appeared. Prosecution opened its case describing all the evidences collected by the Investigating Officer during investigation as well as proposed to be adduced against the appellant. Trial court also heard the accused side and on 21.4.2001 framed charge for the offence under Section 307 IPC against the appellant Genda Lal. Charge was read over to the appellant to which he denied and pleading not guilty claimed his trial.
9. In order to prove its case, prosecution examined P.W.-1 Ram Sewak (informant/injured); P.W.-2 Jai Prakash, P.W.-3 Virendra (both eye account witnesses); P.W.-4 Dr. A.
K. Saxena, who has prepared the injury report (Ext. Ka-2); P.W.-5 Head Constable Ram Niwas Dixit, who has prepared the chik FIR (Ext. Ka.-3) and G.D. Entry (Ext. Ka- 4). This witness has also proved site plan (Ext. Ka. -5) and charge sheet (Ext. Ka-6) as secondary evidence as the Investigating Officer S.I. Charan Singh had died.
10. On closer of prosecution evidence, statement of the accused appellant was recorded under Section 313 Cr.P.C. in which he denied the entire prosecution case including the contents of the FIR. He also showed unawareness about the preparation of Ext. Ka-2, Ka-3 and Ka-4. He has specifically stated that charge sheet (Ext. Ka-6) was submitted on insufficient evidence. Prosecution was started due to rivalry and enmity. Accused denied to adduce any evidence in his defence.
11. It also appears that Trial Court after hearing the parties vide impugned judgment and order dated 19.12.2003 convicted and sentenced the appellant for the offence under Section 307 read with Section 34 IPC as above. Hence this appeal.
12. I have heard Sri Ajay Vikram Yadav, learned counsel for the appellant and Sri Ravindra Kumar Mishra, learned A.G.A. and perused the entire record.
13. Submission of the learned counsel for the appellant is that appellant is innocent and has not committed the present offence. Prosecution failed to establish the guilt of the accused appellant under Section 307/34 IPC. No specific role has been assigned to the appellant in committing the present offence. P.W.-2 and P.W.-3 are not eye account witnesses. Incident did not take place in the manner and style as has been stated by the prosecution witnesses. Medical evidence does not support oral version. Findings of the trial court in the impugned judgment and order are perverse.
14. Per contra, Sri Ravindra Kumar Mishra, learned A.G.A. argued that P.W.-1 is the injured witness. Medical version fully support the oral version. P.W.-2 and P.W.-3 when reached at the place of occurrence saw the accused person in torch light. They had specified the role of the accused appellant also in committing the present offence. Findings of the Trial Court in the impugned judgment and order are based on correct appreciation of fact and evidence. No interference is required by this Court.
15. I have considered the rival submissions made by the learned counsel for the parties and gone through the entire record carefully.
16. In this matter, as is evident from the record, incident is said to have taken place on 22.1.1992 in the night hour. FIR was lodged by the informant at 7.30 A.M. on 23.1.1992. Chik FIR (Ext. Ka-3) was registered initially for the offence under Section 324 IPC Injured was examined at District Hospital, Mainpuri on 23.1.1992 at 10.30 A.M. on the basis of Majrubi Chhithi of the police concerned. Injuries found on the body of injured are incised wounds, stab wounds and lacerated wounds, total seven in number. Thus on the basis of above factual backdrop submissions raised at the Bar have to be scrutinized in the light of the evidence available on record.
17. Since incident is said to have been taken place in the night hour of 22.1.1992, first informant initially reached in the night itself at the outpost of the police station at about 4 AM on 23.1.1992. Thereafter he was taken to the police station concerned by the police of outpost in the morning and by that time family members of the informant had also came there, then FIR was lodged. Thus what facts and circumstances have been disclosed by the prosecution witnesses about the time of the lodging of the FIR, same cannot be disbelieved. Time of injuries said to have been sustained by the injured is also tallied with the time disclosed in the FIR. Thus existence of the FIR at the time mentioned in the chik FIR (Ext. Ka-3) cannot be doubted.
18. As far as motive is concerned nothing is mentioned in the chik FIR on this point. Although motive is an essential ingredients to commit the offence but where there is eye account witnesses, motive looses its significance. If the contents of the FIR as well as statement made by the P.W.- 1, P.W.-2 and P.W.-3 are taken into consideration, nothing has come out to show the motive to commit the present offence. As has been mentioned here-in-above motive in case of eye account witnesses becomes immaterial, thus, other evidence adduced by the prosecution have to be scrutinised.
19. As far as the medical evidence is concerned P.W.-4 Dr. A. K. Saxena examined the P.W.-1 injured on 23.1.1992 at 10.30 A.M. and has found seven injuries on his body.
Out of them some are incised wound, one injury is stab wound and other injuries are lacerated wound. As per statement made by P.W.-4 injuries found on the body of the injured could come on 22.1.1992 in the night hour. Injury no. 5 was kept under observation although no supplementary report has been prepared, as per statement made by P.W.-4 but other injuries were simple in nature. In the present matter on close scrutiny of the entire evidence it cannot be said that medical evidence is contrary to the oral version of the prosecution witnesses. Finding of the Trial Court on this point is based on correct appreciation of evidence.
20. Now the question is whether the present incident took place in the manner and style stated by the prosecution witnesses and P.W.-2 and P.W.-3 both are eye account witnesses.
21. In the chik FIR (Ext. Ka-3) lodged by the informant P.W.-1 Ram Sewak himself it was clearly mentioned that accused persons caused injury with lathi, danda and knife. What was specific role of each and every accused, have not been disclosed in the FIR. When P.W.-1 informant Ram Sewak was examined before the court on oath has specifically stated that all the accused came along with informant 2-1/2 kms. outside the village concerned and they all forced the informant to sit on the gun point. Present appellant kicked him due to which he fell down. Thereafter all the accused caused several injuries on the body of the injured. In the examination-in-chief this witness has also stated that accused Param Sukh (died during trial) caused knife injuries. When this witness was cross examined he specifically stated that the accused persons caused injuries with lathi, danda and knife. Appellant Genda Lal hold his waist and Jamal Khan had caught hold the hands of the appellant. Thereafter accused Param Sukh (since died) caused knife injuries. This witness has specified that he received four knife injuries on the stomach and back as well as on the side. P.W.-2 although is a chance witness has stated that he along with P.W.-3 Virendra was going to search the injured. As and when they reached at the place of occurrence heard the noise and then they flashed torch light and saw the accused persons and the injured. As per statement of P.W.-2 accused Param Sukh (since died) was armed with knife and accused Jamal Khan (since died) and present appellant were holding waist of the informant. When they made alarm accused ran away. He has also stated that informant/injured Ram Sewak also ran away from the spot. Thereafter they searched Ram Sewak but they did not find him and then they returned back. P.W.-3 has also stated the same facts but about the role of accused persons he has stated that when they reached at the place of occurrence and flashed the torch, saw that accused Genda Lal and Jamal Khan were causing injuries with lathi and accused Param Sukh was causing injuries with knife. When they moved towards the place of occurrence accused ran away. Informant Ram Sewak also ran away due to fear.
22. If the statement of P.W.-2 and P.W.-3 are closely/minutely analysed to ascertain this fact that whether they are eye account witnesses or not, it emerges that they were not accompanying the informant. They had gone to search the informant. It was night hour. It appears improbable and unbelievable that they were searching informant Ram Sewak and when they saw the injured being beaten by the accused persons, injured would ran away seeing the witnesses. Story of the P.W.-2 and P.W.-3 is not believable. If P.W.-1, informant (injured), was being beaten by the accused persons, P.W.-2 and P.W.-3 both had gone to save the injured then running away of the informant from the place of occurrence is not natural and it is against the normal behavior of human being. Either P.W.- 2 and P.W.-3 are not eye account witnesses or prosecution has suppressed the origin and genesis of the incident manipulating a different story which does not fit to the facts and circumstances of the present case.
23. Apart to this if the manner of incident as stated by the P.W.-1 to P.W.-3 are compared with each other, three different stories have been stated by them. Injured has received knife injury on his stomach, back and side of the body. Role assigned to the present appellant is that he was holding the waist of the injured. It also appears improbable and unbelievable that if one person is holding the waist of any person then injury could be caused on both side (back and front side) of the injured. Injuries found on the body of the injured could only be caused by the knife when nobody has caught hold him. This fact also creates doubt about the truthfulness of the prosecution story, particularly, the involvement of the present appellant. No specific role has been assigned to the present appellant about causing any injury described in the injury report. Findings of the trial court about the involvement of the present appellant in the present matter in my considered view is not based on correct appreciation of evidence. P.W.-2 and P.W.-3 both are not eye account witnesses.
They did not see the incident. Their statement is not acceptable in the facts and circumstances of the case and is contrary to the medical evidence. As far as the statement of P.W.-1, the injured, is concerned since no specific role to the appellant for causing injury to the injured is assigned, catching hold of the waist appears improbable, thus, statement of P.W.-1 Ram Sewak regarding involvement of the present appellant is also not believable. Finding of the Trial Court about involvement of present appellant is not based on correct appreciation of fact and evidence. Prosecution was not able to prove the guilt of appellant beyond reasonable doubt.
24. Thus appeal having some merit is liable to be allowed. Impugned judgment and order dated 19.12.2003 passed by the trial court for the reasons discussed herein above is liable to be set aside and appellant Genda Lal is liable to be acquitted for the charge under Section 307 read with Section 34 IPC.
25. In view of the discussion made herein above, the appeal is allowed. Appellant Genda Lal is acquitted from all the charges framed against him as he is not found guilty for committing the offence under Section 307 read with Section 34 IPC. He is on bail. He need not to surrender. His bail bonds are cancelled and sureties are discharged from their liability.
26. Keeping in view the provisions of Section 437-A Cr.P.C., appellant Genda Lal is directed forthwith to furnish a personal bond of the sum of Rs. fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant namely Genda Lal on receipt of notice thereof shall appear before Hon'ble Supreme Court.
27. Copy of this order along with lower court record be sent to court concerned forthwith for compliance. Compliance report be also sent to this Court.
Order Date :- 31.05.2019 Sachdeva