This criminal revision has been filed against the judgment and order dated 20.10.2004, passed in Criminal Appeal No.36 of 2002 'Ramji and others Vs. State of U.P.', under Sections 323, 452, and 34 I.P.C. by which the learned Sessions Judge has passed the order of acquittal.
Heard Sri Harish Kumar Yadav, appearing for the revisionist and learned A.G.A. appearing for the opposite party no.5. No one is present for the opposite parties no.1, 2 and 3.
As per the prosecution story, the incident took place on 9.11.1988 at 5:30 p.m. The accused persons had beaten the complainant and when the complainant tried to escape, the accused persons entered into the house of the complainant and caused injuries.
The prosecution examined Pancham P.W.-1, Mangala Prasad P.W.-2, Ram Bali P.W.-3, Smt. Amiri Devi P.W.-4 and Constable Hari Shanker P.W.-5. Learned lower court convicted the accused persons for the offences punishable under Sections 323/34 and 452 I.P.C. against which the Criminal Appeal No.36 of 2002 'Ramji and others Vs. State of U.P.' was filed.
Learned Sessions Judge, Mirzapur after considering the evidence on record came to the conclusion that the prosecution has failed to prove the case and there were so many latches in the evidence of the prosecution hence the accused persons were entitled for acquittal and accordingly they were acquitted.
Aggrieved by the said judgment of the Sessions Judge, Mirzapur this revision has been filed on the ground that the incident took place in the light at about 5:30 p.m. so there was no possibility of committing mistake in the identification of the assailants. The F.I.R. was lodged without any delay. The findings of learned Sessions Judge are totally illegal and the judgment of the Appellate Court is based on conjectures and surmises hence the judgment of the Appellate Court is liable to be quashed.
Learned Sessions Judge has found the following infirmities in the prosecution evidence:-
(I) The complainant/injured was not produced in the evidence as he had died before recording the statement in the Court.
(ii) The Medical Officer and the Investigating Officer were not produced by the prosecution and no explanation was given.
(iii) There were two witnesses named in the F.I.R. namely Pancham and Ram Bali. Witness Pancham has admitted in his statement that accused Ram Ji has filed a case against him which is pending in the court hence he was interested witness.
(iv) Witness Mangala Prasad was not named in the F.I.R. and he is the son of the complainant.
(v) All the witnesses of fact has told the different places of occurrence.
(vi) The medical examination was conducted on the next day at 10:30 a.m. while the injuries have been mentioned as fresh. The duration of the fresh injuries means injuries caused within six hours.
(vii) The right of the accused has been vitiated by not producing the doctor.
(viii)Because there was contradiction about the place of incident hence the evidence of Investigating Officer was necessary.
Witness Smt. Amiri Devi is the wife of injured and witness Mangala Prasad is the son of the injured, who have not supported the prosecution version and their names do not find place in the F.I.R.
As far as the complainant/injured is concerned, admittedly he expired before his statement could be recorded in the Court as there was no opportunity to cross examine him.
As far as the so called independent witnesses Pancham and Ram Bali are concerned, it is admitted fact that accused Ram Ji had filed a case against Pancham and there were material contradiction in the statement of Pancham and Ram Bali regarding the incident and the place of incident.
In my view, learned Sessions Judge has correctly came to the conclusion that witnesses Smt. Amiri Devi and Mangala Prasad were not named in the F.I.R. hence their statement could not be believed.
Perusal of the statement of Pancham P.W.-1 reveals that he was a bye-passer at the place of incident. This witness has not told that on which part of the body Laxman got injuries. This witness has failed to tell the month of incident as well as the season. This witness admitted that the spot map was not prepared in his presence and he has also admitted that son and wife of Laxman (injured) came after 10-15 minutes after the incident. This witness has also admitted that Ram Ji has previously filed a case against him and witness Ram Bali. This witness has also failed to tell that how many Mukka or Chhapad were blowed by the accused. As per the prosecution story the incident took place due to money transaction but this witness has clearly denied this fact. This witness has also failed to tell that which accused blowed first slap to Laxman. In these circumstances, learned Sessions Judge has rightly come to the conclusion that the evidence of this witness is not reliable.
As far as the statement of Ram Bali P.W.-3 is concerned, admittedly he has also enmity with the accused persons as accused Ram Ji had lodged a case against this witness also previous to alleged incident.
As far as the statement of this witness is concerned, he has failed to tell that with what purpose he has gone to meet the Laxman. This witness has also failed to tell that who are the persons were present on the spot. This witness has also narrated that he has not intervened in the alleged quarrel and he was mere spectator to the alleged incident. It is very un-natural that in such circumstances where admittedly the accused persons were not armed with any weapon, the witness will not intervene. This witness has clearly admitted that till the incident took place the son and wife of the complainant/injured had not came. Regarding place of incident also, this witness has not supported the statement of Pancham P.W.-1.
In these circumstances, the evidence of both these so called independent witnesses was not reliable and certainly the learned magistrate had committed an error in relying such a piecemeal evidence adduced by these witnesses.
As far as the statement of Smt. Amiri Devi (wife of the complainant) and Mangala Prasad (son of the complainant) is concerned, admittedly they are not named in the F.I.R. and as per the statement of Pancham and Ram Bali, they had came later on. In these circumstances, they cannot be said to be the witness of the incident.
As far as the injuries are concerned, there is only one complaint of pain and one abrasion which have been said to be fresh at the time of medical examination while admittedly the medical examination was conducted after 17 hours of the incident. I do agree with the findings of learned Sessions Judge that fresh injuries means the injuries caused within six hours of the medical examination and 17 hours old injury cannot be said to be a fresh injury. Certainly the valuable right of the accused was denied by not providing the opportunity of cross examination and by not producing the medical officer who conducted the medical examination.
The prosecution has not given any justification for not producing the Medical Officer as well as the Investigating Officer. In these circumstances, it cannot be said that the prosecution has proved the guilt of the accused persons beyond reasonable doubt.
Certainly there are contradictions in the oral evidence which is not supported by the medical evidence and in these circumstances the appeal has been rightly allowed by the learned Sessions Judge, Mirzapur.
I do not find any reason to interfere in the findings recorded by the learned Sessions Judge, Mirzapur. Accordingly, the revision is liable to be dismissed.
The revision is dismissed.
Order Date :- 13.7.2012 Kpy