Heard Sri Pankaj Bharti, learned counsel for the revisionist and learned AGA Ram Shiromani Yadav.
Grounds and reasons assigned for condoning the delay are satisfactory.
Delay is condoned.
Accordingly, Delay Condonation Application is allowed.
Order Date :- 14.7.2016 Raj .
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AFR Court No. - 22 Case :- CRIMINAL REVISION DEFECTIVE No. - 111 of 2006 Revisionist :- Pawan Agarwal Opposite Party :- Bhoole Ram & Others Counsel for Revisionist :- Pankaj Bharti Counsel for Opposite Party :- Govt. Advocate Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri Pankaj Bharti, learned counsel for the revisionist and learned AGA.
Instant Criminal Revision was preferred against the judgement and order dated 20.5.2005 passed by Special Judge/Additional Sessions Judge, Muzaffar Nagar, acquitting the opposite parties nos.1 and 2, Bhoole Ram and Dharmpal in S.T. No.429 of 2004, State Vs. Bhoole Ram and others, under Sections 147, 148, 307/149, 323/149, 325/149, 506 I.P.C., Police Station Khatauli, District Muzaffar Nagar.
Precisely, contention has been raised before this Court that initially in this case, cross cases were registered from both the sides and both sides had sustained injuries on their person but the learned trial Judge without appreciating real facts and circumstances of the case, vis a vis the testimony on record miserably failed to record correct finding regarding conviction of respondent nos.1 and 2, Bhoole Ram and Dharmpal.
Contention has been raised on behalf of the informant-revisionist that on bare perusal of the testimony on record, it is profusely reflected that the verdict of acquittal passed by the Specialj Judge/Additional Sessions Judge, Muzaffar Nagar is based on conjectures and surmises and the same is not based on material existing on record. In this way, finding of acquittal recorded by the trial court is not sustainable in the eyes of law. Admittedly, the fact of injury caused on Pawan Agarwal (P.W.1), the complainant, was elaborated and detailed by the Doctor M.S. Faujdar (P.W.5) in his injury report (Exhibit Ka-7). However, the court below took the same casually and interpreted it in favour of the accused persons and thereby recorded erroneous finding of acquittal in favour of opposite parties no.1 and 2, Bhoole Ram and Dharmpal, which finding need not be sustained and deserves to be set-aside by this Court and revision be allowed.
Per contra, Sri Ram Shiromani Yadav, learned AGA vehemently opposed the aforesaid argument on ground that bare perusal of entire testimony on record, as reflected from the judgement itself, shows that the appreciation and finding of testimony on record vis a vis circumstances of the case has been comprehensively dealt with by the learned trial court and natural conclusion of acquittal has followed. The prosecution witnesses were found to be highly interested and their testimony was highly improbable and in this way contradiction appearing in the ocular testimony is substantial and material. In this view of the matter, it cannot be said that the finding of acquittal returned by the trial court is tainted, perverse or erroneous.
Considered the above submission and also perused the record particularly certified copy of judgement, as brought on record by the revisionist, as per the prosecution version, it is reflected that the incident occurred on 2.11.2001 at around 9 a.m. in the morning, when the first informant Pawan Agarwal was getting done some construction work on Jamuna Bihar plot when the two accused persons Bhoole Ram and Dharmpal came on the plot and threatened the labourers working on the plot and after this, they went back. They also threatened that they will see him (informant) in future and after a short while around 9.30 a.m., the aforesaid two persons being accompanied by 3-4 unknown persons arrived on the spot. Bhoole Ram was possessing tabal and Dharmpal was possessing pistol and the others were possessing 'lathi' and 'danda'. They all started assaulting the complainant side. In the meanwhile, Dharmpal with intention to kill fired from his pistol but the target was somehow missed and the first informant saved himself. In the meanwhile, the first informant also fired in the air for self defence. Devdutt Sharma and Yogendra arrived on the spot and saw the incident. The first informant Pawan Agarwal sustained bone fracture injury. The report was lodged at the police station and thereafter- the injured first informant was medically examined at PHC Khatauli the very same day at 11.30 a.m. The matter was investigated into and charge sheet was submitted against the aforesaid accused persons under the aforesaid sections of Indian Penal Code.
The charges were read over and explained to the accused persons, who denied the charges and opted for trial.
In turn, the prosecution was asked to adduce its testimony. The prosecution in all produced five witnesses. P.W.1 Pawan Agarwal is the first informant. P.W.2 is Devdutt Kumar. The aforesaid two prosecution witnesses are eye-witnesses of fact. P.W.3 is Asarpal, who has proved the relevant Chik FIR and the GD entry regarding the crime in question. P.W.4 is Investigating Officer Ram Sharan Das, who conducted the investigation and submitted the charge sheet against the accused persons. P.W.5 is Dr. M.S. Faujdar, who medically examined P.W.1 Pawan Agarwal. Thereafter evidence for the prosecution was closed and the case was posted for final argument.
After hearing both the sides, learned trial Judge found the incident not proved and the testimony not reliable and in totality rejected the claim of the first informant and acquitted the accused persons of the aforesaid charges under the aforesaid sections of Indian Penal Code.
Consequently, this revision.
At the very outset, it can be observed that in this case, the place of incident is said to be the 'plot' existing in Jamuna Bihar where some construction work was going on and in the meanwhile, accused persons arrived on the spot with threat to stop the work immediately. Thereafter accused person left the place of occurrence and came back after a short while and then they assaulted the first informant. On bare perusal of the medical report, as reflected from the judgement, shows that as many as ten injuries were caused on the person of the injured.
Injury no.1 was said to be on the left side of the head 12.5 cm above left ear measuring 4.5 cm x 4 cm x 0.5 cm. Injury No.2 is abrasion with contusion measuring 2.1 cm on the left side of the face just 1.5 cm below mouth. Injury no.3 was on the left side of chest in the form of abraded contusion. Similarly, rest of the injuries have also been mentioned in the judgement.
It is noteworthy that P.W.5 Dr. M.S. Faujdar has opined that all the injuries are simple in nature. It is also gathered that the injury nos.3 and 10 were directed to be referred for X-ray examination, however, no X-ray examination report or plate is available on record. This injury report has been proved by doctor witness P.W.5 M.S. Faujdar, as Exhibit Ka-7 before the trial court.
Obviously, both the eye-witness account i.e P.W.1 Pawan Agarwal and P.W.2 Devdutt Kumar have not been believed by the learned trial Judge on ground that both are highly interested and partisan witnesses and against both these witnesses criminal case has already been registered under Sections 147, 148, 307 IPC at police station Khatauli, District Muzaffar Nagar. Certain papers have also been filed by the defence before the trial court, per list 38 Kha and 39 Kha, wherein timing of the incident was stated to be 8 a.m., the very same day morning on which the first informant got his report lodged at police station Khatauli, District Muzaffar Nagar. This first information report by the P.W.1 Pawan Agarwal was lodged at the police station at 11.05 a.m. on 2.11.2001, whereas the first information report by the accused persons of this case against the first informant was lodged prior in time at 10.30 a.m. at the same police station. Not only this, the medical examination of accused Bhoole Ram was also conducted at 11.00 a.m. the very same day. A number of injuries were recorded on his person. But injuries on accused persons have not been properly explained by the prosecution and this aspect was taken note of by the court below also and the court below had reasonable ground to believe and construe impact of non-explanation of injuries on the person of the accused side. Further, injury on Bhoole Ram was stated to be serious in nature, whereas the injuries on the person of the first informant side was found to be simple in nature. Thus, it is obvious that in the version of incident on the accused side the incident of assault had already taken place around 8 a.m. on 2.11.2001 regarding which, the report was lodged by the first informant of this case wherein he stated that injuries caused on his person have been caused at or around 9.30 a.m. the very same day. The explanation sought to be given in respect of injuries on the accused persons by the testimony of prosecution witness Devdutt was found to be without any base and without any support from the facts and circumstances of the case, as held by the trial court. Trial court has gone to the extent of observing under facts and circumstances of the case that the prosecution witness Devdutt is highly interested and partisan and wholly unreliable witness. His testimony is contradictory in material particulars regarding the narration of the incident, as given to the Investigating Officer and deposed before the trial court.
Even P.W.4 Investigating Officer Ram Shiromani has proved these contradictions and there is no whisper in the statement of this prosecution witness that he got recorded any statement regarding firing been done on the spot by anyone. Therefore, hollowness of prosecution case is deeply rooted in material contradictions appearing in the testimony of the prosecution witnesses.
Lastly but not the least, this being Revisional Court cannot re-appreciate factual finding given by the trial court and this Court is basically concerned with apparent illegality and perversity of the finding so recorded and appearing in judgement. In a number of cases it is well established that in case of findings of acquittal, if the Appellate/Higher Court comes to record findings that the findings so recorded is grounded on material on record and the view so taken by the trial court, is the natural outcome of the material on record then the findings arrived at need not be interfered with by the higher Court. Even in cases where two views are possible then the view so taken by the trial court,if found to be supported by material on record then the same is not to be interfered with by the Appellate or higher Court, as the case may be.
This being so, there is no cogent reason to disturb the finding of acquittal recorded by the trial court in this case. Consequently, this revision lacks force and is dismissed accordingly.
Order Date :- 14.7.2016/Raj