Court No. - 51 Case :- GOVERNMENT APPEAL No. - 3023 of 2012 Appellant :- State Of U.P.
Respondent :- Gajendra Singh & Others Counsel for Appellant :- Govt. Advocate Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Rajesh Mishra, learned A.G.A. on the application seeking leave to appeal against the judgment and order dated 4.5.2012 by means of which the accused-Respondents have been acquitted of the offences under Section 304/34 IPC.
We have heard learned A.G.A. at great length and perused the findings as has been recorded by the lower court concerned.
At the very outset it is appreciated that as far as the first information report is concerned it does not mention the place of occurrence or the time of occurrence or the weapon. It may also be appreciated that as far as the F.I.R. is much delayed and there is a complete confusion among the prosecution witnesses as to how and under what circumstances and in what manner the crime has occurred. With regard to delay in lodging the FIR the lower court has said as under:
“Learned counsel for the defence has next argued that FIR has been very much belatedly filed at the police station. The contention of the defence appears to be well founded. An NCR was registered at the police station Kotwali Nagar at 1.15 p.m. On 12.8.2007. If PW-2 and 3 are believed, the incident occurred at 10.30 p.m. On 11.8.2007. If entry in column No.4 of the NCR No. 48 of 2007 is believed, the incident occurrence in the intervening night of 10/11-8-2007 at 10.30 p.m. Thus by this calculation the information was given at the police station after about 15 to 39 hours. There is no explanation either in the complaint or in the statement of P.W.1 regarding the delay in lodging the report. Also on internal examination the doctor found that 8th rib of left side was fractured and left lung was lacerated. In that case the condition of the deceased might have been very serious. It is in the evidence that the deceased was neither taken to the police station nor to any hospital immediately after the incident. The prosecution owes an explanation as what was being done by the complainant till the lodging of the NCR. Secondly, apart from being delayed, P.W.1 has disowned the complaint Ex-K-1 which is available on the record. In such circumstance the delay in lodging the NCR adversely affects the prosecution case and compels the court to conclude that the accused persons have been falsely implicated after concoction.”
The Court further finds that as far as the scribe being Billu of the first information report is concerned, he was never examined as a witness and he never appeared before the trial court. With regard to testimony of P.W.1,2 and 3 are concenred, the court has observed hereinas under:
From the above statement of P.W.2 it is evident that P.W.1 turned up at the place of occurrence after the incident was over. Thus even from the statement of P.W.2 the presence of P.W.1 at the time of occurrence becomes doubtful. The conduct of P.W.1 as discussed above makes his present doubtful as well. P.W.3 Dharmvir Singh has also stated that P.W.1 Bramhpal was not present at the time and place of occurrence. Learned counsel for the defence has also contended that P.W.2 was not present at the time of incident The contention of the learned defence counsel cannot be ignored. PW-2 has deposed that when he arrived that the place of occurrence after hearing the commotion of the deceased accused persons beat him with lathi danda on his face and in the stomach. There is no evidence on the record to corroborate the statement of P.W.2. Had the P.W.2 been really beaten, he must have been attended by a doctor. The prosecution has failed to explain as what was the reason that P.W.2 did not get himself examined by any doctor or did not receive any first aid. As regards P.W.-3, P.W.3 has deposed that:
“Main ghatna wale din numaish men khilaune bechne gaya tha. Jab main raat men 11-11.30 baje ghar wapas aaya to maine dekha ki mritak Naipal Singh ke saath kuchh log maar- peet karrahe the------ Naipal Singh ke saath Kaun Maar-peet kar raha that unche main nahi janta”
15. Thus the statement of P.W.-3 shows that he did not recognize the persons who were beating the deceased. This fact has not been challenged by the prosecution. No doubt that P.W.-3 had supported the prosecution story in his examination-in-chief but when he turned hostile in cross- examination, the prosecution should have challenged P.W.3 as why he was changing his statement. Failure on the part of the prosecution suggests that the prosecution does not disown the P.W.3 making his whole statement admissible.
16. Learned counsel for the defence has next submitted that the prosecution is not sure about the time and date when the incident took place. The contention of learned defence counsel holds water and casts doubt on the prosecution story. In the complaint Ex-K-1 there is no mention of date and time of incident. P.W.2 has deposed that incident occurred on 11.8.2007 at 10.30 p.m. P.W.3 has also stated that incident took place on 11.8.2007 at 10.30 p.m. This fact is totally belied by Ex-Kh-1 which proves that the deceased was admitted in the hospital on 11.8.2007 at 6 p.m. Ex-Kh-1 has been proved in evidence by DW-1 Mr. Kuldip Singh. Now the question arises if the deceased was present in the hospital at 6 p.m. On 11.8.2007, then how could the accused beat him at 11.30 p.m. On 11.8.2007? This makes the prosecution story totally unreliable. Secondly, the deceased was admitted in the hospital for the treatment of loose motion and dehydration. Post-mortem report Ex-K-11 shows that the deceased had as many as eight injuries on his person. Injury No.3 has been stated to be very serious showing ribs and lungs fractured which ultimately resulted into death of the deceased. Under such circumstances, it fails to reason as why the deceased was being treated for the loose and dehydration and the factum of the deceased being seriously injured was not even taken into account. D.W.-1 has deposed that the deceased died due to loose motion and dehydration on 13.8.2007 which is clearly in contradiction to what has been stated in the post-mortem report. This whole circumstance makes the prosecution story highly unbelievable.
On the one hand the doctor says that cause of death is injury No.3 on the other hand doctor says that the case of death is dehydration on account of loosemotion and at one place P.W.3 says that the incident has takenn place on 11.8.2007 at about 10.30 p.m. Whereas the doctor says about 6 p.m. He was admitted in the hospital due to loose-motion and dehydration and it is also on record that victim was admitted to the hospital at the instance of Billu the scribe but Bill was never examined and thus the court below has taken a view which is possible.
Reference may be made to the recent judgment of the Apex Court rendered in the case of Bannareddy & Ors. vs. The State of Karnataka & Ors reported in 2018 (5) SCC 790 wherein the Apex Court has held as under:
11. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that: "The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt.
12. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favor. [Vide Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 in para.
94].
27. Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences in its entirety, especially when there existed no grave infirmity in the findings of the trial court. There exists no justification behind setting aside the order of acquittal passed by the trial court, especially when the prosecution case suffers from several contradictions and infirmities. No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the victim- respondents themselves are dubious, for instance admitting themselves later in a Multi- speciality hospital without proper cause. It has further come to our notice that respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.
Reference may also be made to the judgments of the Apex Court rendered in the cases of Sanmwat Singh Vs. State of Rajasthan reported in 1961 SC 715, Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011, Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005, Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 and Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627.
Thus, in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned A.G.A. has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no case for interference has been made out.
It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with moreso in view of the fact that about 9 years have already elapsed as the incident is of the year 2009.
After perusal of the impugned judgment shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.
No interference with the impugned judgment and order of acquittal is warranted. Accordingly leave to appeal is refused and application is rejected. Consequently, the appeal also stands dismissed.
Let the lower court record be sent back to the court concerned forthwith.
Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 21.8.2018 Manish Tripathi