JUDGMENT M. Chaudhary, J.
1. This is an appeal filed by accused appellants Man Phool and Parsada from judgment and order dated 27th of June 1980 passed by Sessions Judge Saharanpur in Sessions Trial No. 77 of 1980 State v. Parsada and Ors. convicting accused Parsada and Man Phool under Sections 302, 323 and 436 each read with Section 34 IPC and sentenced to imprisonment for life, rigorous imprisonment for six months and to a fine of Rs 500. 00 respectively thereunder. However accused Khajan, Banwari and Jagdish were acquitted of the charge levelled against them. Appeal filed by accused Man Phool stood abated vide order dated 27th of January 2004 as he was reported having died.
2. First informant revisionist Parsada filed this revision from judgment and order dated 27th of June 1980 passed by Sessions Judge Saharanpur in Sessions Trial No. 183 of 1980 State v. Ram Swarup and Ors. acquitting all the accused of the charge levelled against them under Sections 147, 148, 307, 323 and 452 each read with Section 149 IPC.
3. Since the criminal appeal and criminal revision aforesaid have arisen out of cross-cases both are being taken up together for disposal with the consent of the parties' learned counsel.
4. Brief facts giving rise to this revision are that at 9:15 p.m. on 14th of March 1979 Parsada lodged an FIR at police station Nakur District Saharanpur situate at a distance of about five miles from village Jafarpur Nariyali that at about 4:00 p.m. that evening he alongwith his brother Phool Singh, nephew Rishi Pal and his neighbour Hukma were sitting inside their house and enjoying 'Hukka' that Kali Ram alongwith his sons Ram Swarup, Ziley, Tej Pal and Surat Singh and one Sahi Ram and his son Babu armed with lathi, ballam and Balkati (sharp edged weapon) etc. entered the house and started hurling abuses and as Parsada and his companions asked them not to abuse they gave them blows with their respective weapons causing them injuries. On hearing the hue and cry raised one Phool Singh, Chetan and Sota rushed to the scene of occurrence and saved them. The police registered a crime against the accused under Sections 147, 148, 452 and 323 IPC accordingly and started the investigation.
5. Injured Parsada, Rishi Pal and Hukum Chand were got medically examined at Primary Health Centre Nakur.
Medical examination of injured Parsada by Dr Jugal Kishore Mittal Medical Officer Primary Health Centre Nakur at 9:30 p.m. the same night revealed below noted injuries on his person :
1. Lacerated wound on left parieto temporal area 3 cm x 1 cm x scalp deep with traumatic swelling in an area of 6 cm x 6 cm.
2. Abrasion on mid line scalp 3 cm x 2.5 cm rounded with traumatic swelling in an area of 8 cm x 5 cm.
3. Contusion 12 cm x 1.5 cm. on left side chest posterior axillary line.
4. Abrasion 1 cm rounded at spine on left scapula.
5. Abrasion left forearm upper third lateral 4 cm x 1 cm another 2 cm x 1 cm.
6. Pea size abrasion on knuckle at right middle finger.
7. Abrasion right elbow posteriorly at bony part 2 cm x 1 cm.
The doctor opined that all the injuries were caused by some blunt object and fresh in duration and simple in nature. However injury No. 1 was kept under observation and x-ray of scalp advised.
Medical examination of injured Rishipal at 10:00 p.m. the same night revealed below noted injuries:
1. One abrasion on right knee laterally 1.5 cm x .5 cm linear and another 1 cm x .5 cm both 2 cms apart from each other.
2. Abrasion on right ankle laterally 1.5 cm x .25 cm.
3. Abrasion on left foot dorsal aspect near little finger 1 cm x .5 cm.
4. Abrasion on left forearm at its middle laterally 1 cm x .75 cm with traumatic swelling 8 cm x 5 cm. Directed Vertically.
The doctor opined that the injuries were caused by some blunt object, simple in nature and fresh in duration.
Medical examination of injured Hukam Chand at 10:20 p.m. the same night revealed below noted injuries on his person:
1. Lacerated wound on scalp on mid line posteriorly on parietal bone 2 1/2 cm x 1 cm x scalp deep directed vertically.
2. Contusion on right neck near clavicle 1.3 cm x .2 cm linear in shape directed horizontally with traumatic swelling 4 cm x 4 cm.
3. Contusion in right shoulder posteriorly 3 cm x 0.5 cm.
4. Two pea sized rounded abrasions on right elbow posteriorly on bony prominence.
5. Lacerated wound on tip of right thumb .5 cm x .5 cm.
6. Lacerated wound on left leg at its middle antero laterally 1.5 cm x .5 cm x skin deep directed vertically.
The doctor opined that the injuries were caused by some blunt object like lathi and simple in nature and fresh in duration.
Injured Man Phool got himself medically examined on 19th of March 1979 at 3: 45 p.m. at Primary Health Centre Nakur. Dr. Jugal Kishore Mittal, Medical officer found below noted injuries on his person:
1. An old septic incised wound on left parietal bone area 2.2 cm x.5 cm x scalp directed vertically and tailing towards forehead.
2. Two old pea sized abrasions on right upper arm posteriorly at its lower 1/3rd.
3. An old abrasion on right knee anteriorly 1 cm x 1 cm rounded.
The doctor opined that the injury No. 1 was caused by sharp weapon and 2 and 3 by some blunt object. He also opined that the injuries were simple in nature and four days old in duration.
6. After investigating the crime the police submitted final report in the case. Then Parsada, the first informant filed a complaint giving rise to the trial of the accused respondents.
7. After framing of the charge against the accused the prosecution examined PW 1 Parsada and PW 2 Man Phool as eye witnesses of the occurrence. PW 3 Dr Jugal Kishsore Mittal who medically examined all the four injured proved the injury reports.
8. The accused denied the alleged occurrence altogether contending that they were got implicated in the case falsely. They also stated that they acted in their self defence. The accused also got injury reports of Tej Pal, Ziley Ram, Smt Ram Kali, Smt Bambuli and Ram Swarup proved and their copies filed in their defence. However no oral evidence was adduced by the accused in their defence.
9. Injured Ram Swarup who taking all the four injured went to Primary health Centre Nakur during the night between 14th and 15th of March 1979 got themselves medically examined there by Dr Jugal Kishore Mittal medical officer in-charge Primary Health Centre.
10. Medical examination of injured Tej Pal at about 1:00 a.m. during the night between 14th and 15th of March 1979 revealed below noted injuries on his person:
1. Lacerated wound on scalp on right parietal bone on mid line 2.5 cm x 2 cm x scalp directed obliquely and another crossing it 2.5 cm x 2 cm x scalp .
2. Traumatic swelling right side of neck ante triangled 6 cm x 4 cm.
3. Abrasion on right upper arm lower one third 2 cm x 1 cm with traumatic swelling 6 cm x 4 cm.
4. One abrasion on right forearm at its middle posteriorly 1 cm x .5 cm and another 1.5 cm x 0.75 cm. both 4 cm apart.
5. Lacerated wound on left 1st metacarpal bone .5 cm x .5 cm circular in shape.
6. Contusion 7 cm x 1.5 cm on right thigh at lower 1/3rd directed horizontally.
7. Contusion on left thigh at its middle 3 cm x 1cm.directed vertically.
8. Contusion .2 cm x 1 cm.on left thigh below injury No. 7 directed horizontally.
9. Swelling on tip of nose 2 cm x 1.5 cm.
10. Traumatic swelling 2 cm x 1.5 cm on sub mental area.
The doctor opined that the injuries were caused by blunt object, simple in nature and fresh in duration.
Medical examination of injured Ziley Ram at 1: 30 a.m. the same night revealed below noted injuries on his person:
1. Lacerated wound on left side of scalp parietal bone anteriorly 2 cm x 0.5 cm x scalp directed obliquely.
2. Lacerated wound 1.5 cm x 2 cm x scalp near to injury No. 1 directed horizontally.
3. Lacerated wound on scalp on left parietal bone 2.5 cm x 3 cm x scalp directed obliquely extended from its middle towards eye brow 1 cm x .2 cm x scalp directed vertically.
4. Lacerated wound on left parietal bone prosteriorly on scalp 4 cm x 5 cm x scalp directed vertically.
5. Traumatic swelling on left side of scalp above ear 11 cm x 14 cm.
6. Traumatic swelling on left side face from angle of jaw towards nose 10 cm x 6 cm.
7. Contusion on left shoulder outer side 3 cm x 1 cm directed obliquely.
8. Contusion on right shoulder outer side 8 cm x 4 cm directed vertically.
9. Traumatic swelling on right side face at cheek 5 cm x 5 cm rounded.
10. Traumatic swelling on scalp at temporal area 6 cm x 4 cm. towards mid line.
11. Contusion on right upper arm on upper 1/3rd anteriorly 5cm x 2 cm directed obliquely.
12. Contusion on back at right scapula at upper end and lower end 3 cm x 2 cm directed obliquely both 5 cm apart.
The doctor opined that injuries No. 5 to 12 were simple in nature and fresh in duration. Injuries No. 1 to 4 were also fresh in duration and kept under observation. All the injuries caused by blunt object. The patient was semi conscious.
The doctor medically examined Smt Ramkali at 2.00 a.m. the same night which revealed below noted injuries on her person:
1. Contusion on left side back at upper end of pelvic girdle bone 7 cm x 4 cm. directed obliquely.
2. Contusion on right knee 8 cm x 1cm.
3. Contusion on right thigh anteriorly 6 cm x 5 cm rounded in shape.
4. Traumatic swelling on left shoulder 2 cm x 1 cm. rounded.
The doctor opined that the injuries were caused by blunt object simple in nature and fresh in duration.
The doctor medically examined Smt Bambooli at 2: 30 a.m. the same night which revealed below noted injuries on her person:
1. Lacerated wound on scalp at mid line anteriorly 3.5 cm x 1 cm x scalp with traumatic swelling 6 cm x 4 cm. Directed vertically.
2. Lacerated wound on left hand near web of thumb 2 cm x .5 cm x skin direction vertically semi circular in shape with traumatic swelling of hand posteriorly 5 cm x 4 cm.
3. Traumatic swelling on left forearm 1/3rd near wrist joint 5 cm x 4 cm. directed vertically.
4. Contusion on left leg antero laterally at its lower half 3 cm x 1 cm directed obliquely.
The doctor opined that the injuries No. 1, 3 and 4 were simple in nature and fresh in duration. Injury No. 2 was also fresh in duration and kept under observation. All the injuries caused by blunt object.
The doctor medically examined injured Ram Swarup at 2: 45 a.m. the same night which revealed below noted injuries on his person:
1. Lacerated wound on right parietal bone 4 cm x .5 cm x skin directed horizontally with traumatic swelling 4 cm x 3 cm.
2. Abrasion 1.5 cm x .25 cm linear in shape.
3. Contusion on left shoulder 2 cm x 1 cm rounded in shape.
4. Abrasions four in number on back near back bone at its middle 1 cm rounded about 2 cm apart.
5. Abrasion on right thumb 1st phylanx .75 cm x 1 cm. linear in shape.
6. Pea size abrasion on joint of right thumb with traumatic swelling 1 cm x 1 cm.
7. Traumatic swelling on left thigh anteriorly at its middle 3 cm x 2 cm.
11. The doctor opined that all the injuries were simple in nature and fresh in duration. He also opined that injuries No. 2 & 5 were caused by friction of pointed object and rest by blunt object.
12. On an appreciation of the parties' evidence on record the learned Sessions Judge held the accused not guilty of the charge levelled against them and all of them were acquitted by the impugned judgment and order.
13. Feeling aggrieved by the impugned judgment and order acquitting the accused complainant Parsada preferred this revision for redress.
14. Heard learned counsel for the revisionists, learned AGA for opposite party No. 1 State and learned counsel for accused opposite parties No. 2 to 7.
15. A perusal of the impugned judgment and the record goes to show that the prosecution failed to explain the injuries found on the person of accused Tej Pal Singh, Ram Swarup and their family members Ziley Ram, Smt Ram kali and Smt Bambooli. And failure on the part of the prosecution to explain the injuries on the person of accused Tej Pal and Ram Swarup made the prosecution version doubtful. And hence the accused opposite parties were rightly acquitted by the Court below giving them benefit of doubt. And therefore we are of the view that the finding of acquittal recorded by the court below does not call for any interference by this court in exercise of its revisional powers. The revision has no force and is liable to be dismissed.
16. Brief facts giving rise to this appeal as unfolded from evidence adduced by the prosecution is that injured Ziley Ram was medically examined during the night between 14th and 15th of March, 1979 at 1:30 a.m. by Dr J K Mittal Medical Officer in-charge Primary Health Centre Nakur and at the time of medical examination he was semi conscious. X-ray of his skull was advised and the injuries sustained by him at his scalp were kept under observation. It appears that he was got admitted in the District Hospital for treatment where he succumbed to the injuries sustained by him in the said incident on 22nd of March 1979 at about 5:00 a.m. At 8: 30 a.m. on 22nd of March 1979 memo was received at the police station from the Hospital that Ziley Ram, the injured died that very morning due to the injuries sustained by him. Then SI Om Prakash Sharma went to the District Hospital, drew inquest proceedings on the dead body of Ziley Ram and prepared the inquest report (Ext Ka 9) and other necessary papers (Exts Ka 10 to Ka 12) and handed over the dead body in a sealed cover alongwith necessary papers to constables Dina Nath and Ram Pal for being taken for its post mortem.
Autopsy conducted on the dead body of Ziley Ram by Dr Man Mohan Lal, Medical Officer District Hospital Saharanpur on 22nd of March 1979 at 4: 30 p.m. revealed below noted ante mortem injuries:
1. Stitched lacerated wound 3 1/2 cm long on left temporal region 7 cm above left ear; on opening the stitches it is scalp deep.
2. Stitched lacerated wound 2 1/2 cm long on left temporal region 4 cm anterior to injury No. 1, on opening the stitches it was scalp deep.
3. Stitched lacerated wound 2 cm long on left side forehead 5 cm above left eye brow, on opening the stitches it was scalp deep.
4. Abrasion 1 1/2 cm x 2 cm on the back of left elbow.
5. Abrasion 1 cm x 2 cm on outer side right thigh 4 cm above right knee.
6. Abrasion 5 cm x 4 cm on the occipital region.
On internal examination frontal bone was found fractured and whole of his scalp covered with subcutaneous haematoma. Big haematoma present in brain covering whole of left cerebral hemisphere and occipal lobe left side. The doctor found crack fracture of left perineum temporal bone.
The doctor opined that the death was caused due to coma as a result of head injuries.
17. On receiving the post mortem report at the police station information was recorded as DH No. 4 on 26.3.79 observing that death of Ziley Ram appeared to be connected with some incident and enquiry into the matter was entrusted to SI B B Sharma (Ext Ka 7).
18. SI Brij Bhusham Sharma to whom enquiry was entrusted recorded the statement of Kali Ram, father of the deceased. Then he visited the scene of occurrence, inspected the site and prepared its site plan map. He also collected ashes from the scene of occurrence and prepared its memo (Ext Ka 13). Then the crime was registered at the police station against accused Parsada, Manphool, Khajan, Banwari and Jagdish under Sections 147, 148, 304 and 436 IPC on 30.3.80 vide G D entry No. 14 (Ext Ka 8). After investigating the crime the police submitted charge sheet against the accused accordingly (Ext Ka 14).
19. After framing of the charge against the accused the prosecution examined Tejpal (PW 3), Devi Sahai (PW 4) and Ratan Singh (PW 5) as eye witnesses of the occurrence. PW 1 Dr Man Mohan Lal, Medical officer SBD Hospital Saharanpur who conducted autopsy on the dead body of Ziley Ram has proved the post mortem report (Ext Ka 1) stating that the head injuries sustained by him were sufficient to cause his death in the ordinary course of nature . PW 2 Dr Jugal Kishore Mittal, Medical officer in-charge PHC Nakur who medically examined injured Tej Pal, Ziley Ram, Smt Ram Kali, Smt Bambooli and Ram Swarup during the night between 14th and 15th of March 1979 between 1:00 a.m. to 2: 45 a.m. has proved the injury reports (Exts Ka 2 to Ka 6). PW 6 HC Brij Pal Sharma who made entry regarding DH No. 4 on 26th of March 1979 and entry regarding registration of the crime against accused Parsada, Man Phool, Khajan, Banwari and Jagdish under Sections 147, 148, 304 and 436 IPC on 30th of March 79 in General Diary has proved GD entries (Exts Ka 7 & Ka 8). PW 7 constable Ram Phal to whom dead , body of Ziley Ram in a sealed cover alongwith necessary papers was handed over for its post mortem has deposed the said fact. PW 8 SI Om Prakash who drew inquest proceedings on the dead body of Ziley Ram in District Hospital Saharanpur has proved inquest papers (Exts ka 9 to Ka 12). PW 9 SI Brij Bhushan Sharma who enquired the case after recording of DH No. 4 and got the case registered against accused Parsada and others and investigated the crime and after completing the investigation submitted charge sheet against the accused has proved the police papers.
20. PW 3 Tej Pal, the injured deposed that he had taken a plot adjoining his house from the village pradhan and had constructed a shanty thereover but Parsada and his family members wanted to lake possession over that land, that on 14th of March 79 Khajan, brother of Parsada and Manphool set fire to his shanty with match sticks inspite of the fact that he and his brother Ziley Ram went out of their house on the hue and cry raised by their father Kali Ram and asked them not to put their shanty on fire and as they resisted Parsada and his associates Man Phool, Khajan, Banwari and Jagdish all the five gave lathi blows to him and his brother Ziley Ram, that on hearing the hue and cry as their mother Smt Bambooli and brother Ram Swarup alongwith his wife Ram Kali came out of their house they also gave them lathi blows thereby causing them injuries and that then injured Ram Swarup taking all the injured went to P H C Nakur where all the injured were medically examined. He also deposed that injured Ziley Ram who was got admitted in the District Hospital succumbed to the injuries sustained by him some 8-9 days thereafter in the Hospital. He also deposed that he hurled danda in his self defence inflicting injuries to accused Parsada. PW 4 Devi Sahai tried to corroborate him stating likewise. PW 5 Ratan Singh stated that at about 4:00 p.m. the alleged evening he was going from his house to his fields and as he reached in front of the house of Kali Ram he saw Parsada, Banwari, Khajan, Manphool and Jagdish giving lathi blows to Tej Pal and Ziley Ram and also to Smt Bambooli, Smt Ram Kali and Surat Singh as they came out of their house thereby causing injuries to them and that Tej Pal also hurled danda in his self defence.
21. The accused denied the alleged occurrence stating that the alleged evening Tej Pal alongwith his brothers Ram Swarup, Ziley Ram and Surat Singh and father Kali Ram and one Sahi Ram and his son Babu reached their house and beat them causing injuries to him, Rishi Pal, Hukma and Man Phool but the accused did not adduce any oral evidence in their defence. However they got the injury reports of all the four injured namely Parsada, Rishi Pal and Hukam Chand proved by Dr Jugal Kishore (PW 2) who medically examined them on 14th of March 79 between 9:30 p.m. to 10: 20 p.m. and that of injured Man Phool who got himself medically examined by him on 19th of march 79 at 3:45 p.m. (Exts Kha 1 to Kha 4). They also got FIR of the occurrence lodged at police station Nakur on 14th of March 79 at 9: 15 p.m. and entry regarding registration of the crime in GD proved by HC Brij Pal Sharma and true copy of these documents filed (Exts Kha 5 and Kha 6). It appears that on 28th of March 79 Kali Ram, father of injured Ziley Ram alongwith Ram Swarup gave an application to Station Officer, police station Nakur to the effect that at about 4:00 p.m. on 14th of March 79 dispute had taken place over setting their shanty on fire and in that dispute Ziley Ram was also a party and as he ran away from the scene of occurrence he collided with a pucca wall receiving injuries at his head and since the injury received by him was serious he got him admitted in the Hospital where he succumbed to the head injury sustained by him and that head injuries were not caused to him by any person. PW 9 SI Brij Bhushan Sharma, the investigating officer admitted in his cross-examination that an application was given by Kali Ram and Ram Swarup to the station officer police station Nakur on which the circle officer passed an order to verify the facts (Ext Kha 7)
22. On an appreciation of the parties' evidence the Sessions Judge believed the prosecution case against accused Parsada and Man Phool convicting them under Sections 302, 323 and 436 each read with Section 34 IPC and sentencing them as stated above. However he held accused Khajan, Banwari and Jagdish not guilty of the charge levelled against them and acquitted them accordingly.
23. Feeling aggrieved by the impugned judgment accused appellants Parsada and Man Phool preferred this appeal for redress. Accused appellant Man Phool was reported having died and hence his appeal stood abated vide order dated 27th of January 2004.
24. We have heard learned counsel for the appellant and learned AGA for the respondent State.
25. After hearing the parties' learned counsel and going through the impugned judgment and the record we find ourselves unable to agree with the findings recorded by the court below convicting the accused appellants under Section 302, 323 and 436 each read with Section 34 IPC and sentencing each of them as stated above. The appellant's learned counsel has advanced the following arguments assailing the judgment of the trial court:
First and the foremost argument advanced by the appellant's learned counsel is that there is no FIR of the alleged occurrence lodged by any of the injured or their relation. PW 3 Tej Pal, the injured and brother of the deceased admitted that no FIR of the occurrence was lodged at the police station. He admitted that his brother Ram Swarup who had received injuries and their father Kali Ram also accompanied them to PHC Nakur. PW 2 Dr Jugal Kishore Mittal, Medical officer in-charge PHC Nakur who medically examined all the injured stated that the police station Nakur was at a distance of about one furlong from PHC Nakur. FIR in a criminal case is a most important document; and much emphasis is laid upon prompt FIR because if FIR of an occurrence is lodged at police station promptly there are the least chances of any manipulation or fabrication. However in the instant case there is no FIR at all lodged by any of the victims or their relation or acquaintance. And therefore it is not known as to what was the first version of the occurrence given by the injured or witnesses of the occurrence to the police . In this case statements of the witnesses were recoded by the investigating officer more than two months after the occurrence for no justifiable reason.
26. A perusal of the record goes to show that it took about two hours in medical examination of all the live injured by the doctor at PHC Nakur and police station Nakur was situate only at a distance of one furlong therefrom but the FIR of the occurrence was not lodged either by Kali Ram, father of injured Tej Pal and Ziley Ram or Ram Swarup, brother of these two injured as he had not received any serious injury. It all goes to show that there was something black in the bottom. It appears that Kali Ram, father of injured Tej Pal and Ziley Ram feeling somewhat guilty gave an application to the station officer police station Nakur that some dispute had taken place between the parties over putting his shanty on fire and while his son Ziley Ram was running from the scene of occurrence he got collided with a pucca wall and received injuries at his head. A perusal of the injury report of Ziley Ram goes to show that he received injuries No. 1 to 4 on left side of his head. He also received injury at his left shoulder. In all fairness the prosecution should have examined injured Ram Swarup and his father Kali Ram but neither of these two witnesses were examined by the prosecution for the reasons best known to them.
27. Secondly, the appellant's learned counsel vehemently argued that the prosecution did not explain the injuries sustained by Man Phool and his son Rishipal and their neighbour Hukum Chand. A perusal of the injury report of Man Phool goes to show that he received an incised wound at his head which cannot be self inflicted . Injured Hukum Chand also received a lacerated wound at his scalp. It too can not be self inflicted or superficial. Since the prosecution has not explained the injuries received by accused Man Phool and his son Rishipal and their neighbour Hukum Chand it cannot be said with certainty as to how the occurrence originated.
28. Lastly, the appellant's learned counsel also argued that neither of the three eye witnesses deposed that Parsada ignited fired to the shanty of Tejpal and his family members and hence the court below was not justified in convicting him under Section 436 read with Section 34 IPC. He also contended that all the three eye witnesses deposed against all the five accused consistently that they gave lathi blows to Tejpal Singh, Ziley Ram and others but the trial court convicted accused Parsada and Man Phool and on the basis of same evidence acquitted the remaining three accused inspite of the fact that there was no distinguishing feature.
The arguments aforesaid advanced by the appellant's learned counsel are not devoid of any force.
29. Considering the parties' evidence on record and all the facts and circumstances attending the case we are of the view that the accused appellant Parsada is entitled to benefit of doubt and hence should be acquitted. Since the trial court failed to appreciate the parties' evidence on the record in its true perspective against the accused appellants the impugned judgment and order holding them guilty can not be sustained in law.
30. The appeal is allowed and the judgment and order convicting accused appellant Parsada under Sections 302, 323 and 436 each read with Section 34 IPC are set aside . Accused Parsada is hereby acquitted. He is on bail. His bail bonds are hereby discharged.
31. The revision is dismissed.
32. Office is directed to send copy of the judgment alongwith record of the lower court to the court concerned immediately for necessary compliance under intimation to this court within two months from today.