Court No. 47
Reserved on -14.02.2019 Delivered on - 27.2.2019
Case :- GOVERNMENT APPEAL No. - 1561 of 1986 Appellant :- State of U.P. Respondent :- Satish Chandra Balmiki Counsel for Appellant :- Govt. Advocate Counsel for Respondent :- Ravindra Sharma, Ruchi Srivastava
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Anil Kumar- IX,J.
[Delivered by Ram Surat Ram (Maurya), J.]
1. Heard Sri Nafees Ahmad, A.G.A., for State of U.P. and Miss Ruchi Srivastava, Amicus Curiae, for the respondent.
2. State of U.P. has filed this appeal from the judgment of Third Additional Session's Judge, Bareilly, dated 08.01.1986, passed in S.T. No. 136 of 1984, State vs. Satish Chandra Balmiki, [arising out of Case Crime No. 370 of 1983, under Section 307, Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') and Case Crime No. 371 of 1983 under Section 25 of Arms Act, 1959, P.S. Prem Nagar, district Bareilly], acquitting Satish Chandra Balmiki (the respondent), from all the charges.
3. On oral information of Hafiz-ur-Rahman (PW-1), FIR (Ex-Ka-1) of Case Crime No. 370 of 1983, under Section 307 IPC and Case Crime No.
371 of 1983 under Section 25 of Arms Act, 1959 were registered on 30.12.1983 at 3:30 P.M. at P.S. Prem Nagar, district Bareilly, against Satish Chandra Balmiki, by Head Moharrir Rajendra Singh. It has been stated in the FIR that the informant was resident of mohalla Narkulaganj. On that day at about 2:30 to 3:00 PM, he was sitting at his khokha, to take sun bath, where Khatif (kulfiwala), Mohammad Bux, Rafiq Shah, Mallan, (rikshawala), Naseem, (paper torn), Abdul Hafiz and others were also present. In the meantime, his nephew Nafees Khan came out from his house and stood in front of shop of Yusuf Khan, (pardewala), for taking sun bath. In the meantime, Satish Chandra Balmiki came from the side of Brahmpura and asked his nephew to give him Rs. 10/- as he had to drink. His nephew Nafees Khan told that he had no money. On which, Satish brought out his knife, warned his nephew to give money and caused knife injury in his abdomen. On receiving knife injury, his nephew fell down and shouted. Then they all challenged Satish but Satish again caused knife injuries to his fallen nephew in his abdomen, waist and thigh. When his knife was broken, then Satish began to run away, taking broken knife and leaving his nephew. They all chased Satish and caught hold him, while beating at a little distance. He had brought his nephew Nafees Khan and the accused Satish along with his broken knife with the help of his men at police station. Report be lodged.
4. It is alleged that Satish Chandra Balmiki was taken to police station along with knife used by him for commission of crime and he was taken into custody at the police station and recovery memo (Ex-Ka-6) of his broken knife was prepared at the time of lodging FIR. After lodging FIR, injured Nafees Khan was sent to District Hospital along with Constable Raj Kumar (PW-11) with chitthi majrubi, in a riksha. In hospital, the doctor declared Nafees Khas as dead. Raj Kumar came back to the police station, leaving the dead body at the hospital. On his information about the death, the case was converted under Section 302 IPC. From the hospital, information was sent to police station Kotwali, for conducting Inquest of the deceased on 30.12.1986 at 15:20 hours, through Bhagwandas (sweeper). On which, SI B.S. Pahelwan (PW-7) conducted Inquest (Ex-Ka- 7) of the dead body on 30.12.1983 between 15:45 to 17:05 hours. He prepared photo lash, police papers and letters to authorities (Ex-Ka-8 to Ka-13) to conduct postmortem of the deceased. He dispatched the dead body for postmortem through Constables Jwala Prasad and Anil Kumar. Dr. S.K. Khare (PW-4) conducted autopsy of the dead body on 31.12.1983 at 01:00 PM and prepared postmortem report (Ex-Ka-3) in which following ante-mortem injuries were noted:-
(i) Incised wound 1 cm x ½ cm x 1 cm on the right costal margin, 1.5 cm trailing present upwards wound is 2.5 cm from the mid sternal line.
(ii) Incised wound 2.5 cm x 1 cm x cavity deep on the right sub costal margin. 23 cm below arm pit in the anterior axillary line.
(iii) Abrasion 3 cm x 1 cm on the right side of the chest. 15 cm below arm pit in the mid axillary line.
(iv) Incised wound 2 cm x 1 cm x bone deep on the left side of the back adjacent to median plane. 28 cm below the root of neck.
(v) Incised wound 1.5 cm x ½ cm x muscle deep on the outer side of the left thigh in the middle region.
In internal examination, both chambers of heart were empty;
½ liter clotted blood was present in stomach cavity; 300 gm. semi digested food was also present; small intestine as well as large intestine contained faecal and gases and bladder was punctured 1.5 cm below injury no. 2. According to Doctor death had occurred about a day before and cause of death was noted as shock and hemorrhage as a result of ante-mortem injuries.
5. After registration of FIR, SSI Madan Gopal Sharma (PW-10) started investigation. He copied the check FIR and G.D. entry in case diary. He recorded statements of the informant Hafiz-ur-Rahman, Head Moharrir Rajendra Singh and Constable Hari Nath Singh. He made spot inspection and on the pointing out of the informant, he prepared site-plan (Ex-Ka-15). On the spot, he found one pair sleeper and prepared its recovery memo (Ex-Ka-16). He recorded statements of the witnesses Raees Ahmad, Rafeeq Ahmad, Khatif Ahmad, Mohd. Bux, Rafeeq Shah, Naseem Khan, Abdul Hafeez, Hakim Khan, Babu, Hemraj and Jai Kishan. At the police station, he recorded statements of Constables Govind Singh, Hari Singh and Chaman Lal. On 03.01.1984, he copied Inquest and postmortem report of the deceased Nafees Khan in case diary. He recorded statements of the Panches of Inquest and the Constables Jwala Prasad and Anil. He recorded statement of SI B.S. Pahalwan and Bhagwandas, Sweeper. After investigation, he submitted charge sheet (Ex-Ka-20) against the accused under Section 302 IPC and Section 25 Arms Act, 1959, on which cognizance was taken.
6. On committal, the case was registered as S.T. No. 136 of 1984.
Additional Sessions Judge framed charges on 26.03.1984 against the accused. The accused pleaded “not guilty” and claimed for trial. In order to prove the charges, the prosecution examined Hafiz-ur-Rahman (PW-1), the informant, Khatif Ahmad (PW-2), an eye witness, Naseem Khan (PW-3), an eye witness, Dr. S.K. Khare (PW-4) to prove postmortem report, Dr.
M.S. Sethi (PW-5) to prove Injury Reports of the accused and Naseem Khan, Constable Harnath Singh (PW-6), to prove recovery memo of the knife, SI B.S. Pahelwan (PW-7) to prove Inquest, Constable Jwala Prasad (PW-8), who carried the dead body up to mortuary, Hafiz Khan (PW-9), father of the deceased, SSI Madan Gopal Sharma (PW-10), Investigating Officer and Constable Raj Kumar (PW-11), who took the deceased to hospital.
7. All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. He denied the evidence and materials and claimed false implication. He stated that on the date of incident, he was coming back from his duty, then the police arrested, assaulted and locked up him. After some time, he was taken to hospital, where his medical was done. Hafiz Khan, the father of the deceased was illegally running gambling game and liquor shop, where the injuries were caused to the deceased by unknown accused. The witnesses were giving false statements. The accused examined Ram Dayal (DW-1), to prove that Satish was arrested by the police from Nai Basti and took him while assaulting. Shahadat Ali (DW-2), the pharmacist, posted at District Hospital Bareilly, to prove that in Memo of Hospital, an entry was made by Bhajan Lal Saxena, the compounder that the dead body of Balam son of Hafiz Khan, R/O Nai Basti, Narkulaganj, PS Prem Nagar, Bareilly was brought by Constable No. 755 on 30.12.1983 at 3:10 PM.
8. Additional Sessions Judge, after hearing the parties, by the impugned judgment held that the place of incident was doubtful inasmuch as Investigating Officer did not find blood on the spot; FIR was ante-timed and was lodged after due deliberation as from hospital record, it was proved that the deceased was brought dead at the hospital on 30.12.1983 at 3:10 PM, without there being any chitthi majrubi and his name was mentioned as 'Balam' while the FIR was registered at 3:30 PM, in which the name of the injured was mentioned as 'Nafees Khan'. Presence of the witnesses on the spot was doubtful. There is no evidence to prove that the deceased had any association with the accused as such theory of demanding Rs. 10/- for drinking from the deceased was not probable. The accused sustained grievous injuries, while according to the prosecution witnesses he was assaulted through fist and kicks as such injuries of the accused were unexplained. On these findings, he acquitted the respondent. Hence, this appeal has been filed.
9. We have considered the arguments of counsel for the parties and examined the record. According to the prosecution, Satish Chandra Balmiki assaulted Nafees Khan @ Balam, through knife, on 30.12.1983 between 2:30 PM to 3:00 PM, on the main road of Nai-basti, mohalla Narkulaganj, Bareilly city, due to which he died on 30.12.1983 at 3:10 PM, while in the way of District Hospital Bareilly. The prosecution examined Hafiz-ur-Rahman, Khatif Ahmad and Naseem Khan (PWs-1 to 3) as the eye witnesses. According to them they caught hold the accused on the spot with his broken knife and brought to the police station. Hafiz Khan (PW- 9), father of the deceased was examined to prove that nick name of Nafees Khan was Balam.
10. FIR was lodged on 30.12.1983 at 3:30 PM by Hafiz-ur-Rahman (PW-1), who is maternal uncle of the deceased. Constable Raj Kumar (PW-11) stated that he had taken Nafees Ahmad to District Hospital Bareilly from police station Prem Nagar at 3:00 PM, along with chitthi Majrubi. The doctor, after examining, declared him as dead. Then he came back to police station, leaving the dead body in the hospital. In cross- examination, he stated that the injured was not alighted from riksha, on which he was brought to police station and after one or two minutes of his reaching to the police station, he went to the hospital on the same riksha. The doctor has not given anything in writing in respect of death of the injured to him. Chitthi Majrubi was not produced in the Court. In hospital, the name of injured was noted as Balam son of Hafiz Khan while in FIR Nafees Khan son of Hafiz Khan was noted.
From the statements of Raj Kumar (PW-11) and Shahadat Ali (DW- 2) it is proved that in hospital record, it was mentioned that the injured was brought dead on 30.12.1983 at 3:10 PM by Constable No. 755 of police station Prem Nagar. Raj Kumar (PW-11) has stated that he was Constable No. 755. FIR was registered at 3:30 PM on 30.12.1983, in which name of the injured was written as Nafees Khan. No alias name was mentioned in it. But in hospital record, the name of the deceased was noted as Balam. If chitthi majrubi was given to Raj Kumar (PW-11) at the time of taking the injured to hospital, then in all probability, in chitthi majrubi the same name of injured must have been noted, which is noted in FIR. Madan Gopal Sharma (PW-10) has stated that during investigation chitthi Majrubi was not seen by him. As such it is not proved that chitthi Majrubi was given to Raj Kumar at the time of sending the injured in hospital nor it was brought on record.
Inquest (Ex-Ka-7) was conducted at District Hospital Bareilly by SI B.S. Pahelwan (PW-7) on 30.12.1983 between 15:45 to 17:05 hours. As in hospital, the name of deceased was recorded as Balam as such in Inquest (Ex-Ka-7) also his name was recorded as Balam son of Hafiz Khan. In the Inquest, the Panches were Sharafat Ali, Usman Miyan, Nirale and Tarik (all residents of Brahmpura) and Ekrar Hussain resident of Bhud Kanoongoyan. Hafiz-ur-Rahman (PW-1) has stated that he did not know these Panches. From Inquest also it is proved that at the time of Inquest, none of the witnesses examined in this case, including Hafiz Khan (PW-9), were present there.
From these evidence, it appears that Nafees Khan received knife injuries, somewhere else in a different manner. He was taken to police station by the Panches of Inquest or general public, from where he was sent to hospital by Raj Kumar (PW-11). As by that time FIR was not in existence as such no chitthi majrubi was given to him. He died in the way. Thereafter, when the witnesses and family members came to know about the incident, they lodged FIR with due deliberation. By the time of Inquest being completed, neither the witnesses nor the family member came to the hospital. Medical examination of Naseem Khan (PW-3) was made in same hospital on 30.12.1983 at 5:45 PM, while Inquest was completed at 5:05 PM. Findings of trial Court that the FIR was ante-timed does not suffer from any illegality.
11. On behalf of the accused, suggestion was given to the witnesses that the father of the deceased was running gambling in illegal manner, where two unknown gamblers caused the injuries to Nafees Khan in dispute relating to gambling. On suspicion that those gamblers used to come to the house of the accused, he was arrested by the police, while he was returning to his house from his duty from Kunwar Daya Shankar Inter College, Bareilly, where he was employed as the Sweeper. The police badly assaulted him, due to which he received injuries on his body as mentioned in Injury Report (Ex-Ka-5). Dr. M.S. Sethi (PW-5) prepared injury report of the accused (Ex-Ka-5) in which the following injuries were noted :-
(i) Lacerated wound 2 cm x 1 cm x skin deep on the pinna of right ear. Fresh blood was coming.
(ii) Lacerated wound 1.5 cm x 0.5 cm x skin deep on the left side of forehead. 7 cm above from left eyebrow.
(iii) Lacerated wound 1.5 cm x 0.5 cm x scalp deep on the left side of head. 05 cm above from left ear.
(iv) Swelling 2 cm x 2 cm left side of head 07 cm away from injury no. 3.
(v) Contusion 12 cm x 2 cm on the back of obliquely placed.
(vi) Abrasion 2.5 cm x 1 cm on the back of left thigh.
(vii) Abrasion 3.5 cm x 0.5 cm on the front of right thigh.
(viii) Multiple abrasion in an area of 4.5 cm x 3.5 cm on the right knee joint.
In the opinion of the doctor the injuries were found simple and fresh and injuries no. 1, 2, 3, 4 and 5 were caused by some blunt object. Hafiz- ur-Rahman (PW-1) has stated that at the time of holding the accused, all the persons present there, including him and assaulted the accused through fist and kicks. Khatif Ahmad (PW-2) stated that after holding the accused, he had assaulted the accused through fist and kicks. He assaulted 8-10 fist. On the spot 7-8 persons assaulted him. Hafiz-ur-Rahman (PW-1) assaulted him through danda. His statement that Hafiz-ur-Rahman (PW-1) assaulted him through danda was contradictory to statement of Hafiz-ur-Rahman (PW-1). Naseem Khan (PW-3) stated that the accused was caught hold besieging him from all the side. All the persons, who apprehended him were empty hand. Later on, he stated that the accused was assaulted through danda. But in his statement under Section 161 Cr.P.C., use of danda at the time of holding was not mentioned. Statements of the witnesses in respect of the injuries of the accused are contradictory. The injuries on the body of the accused were not corroborated to the medical evidence, which was created a doubt in respect of presence of the witnesses on the spot at the time of occurrence or catching hold the accused and taking him to police station.
12. In site-plan (Ex-Ka-15), the place of occurrence was shown as northern roadside in west of Brahmapura crossing and medical shop of Ganesh was shown west to it. The presence of witnesses were shown 35 paces west to the place of occurrence. Hafiz-ur-Rahman (PW-1) stated that he and other witnesses were standing for sun bath at khokha, which was at Brahmapura crossing, which means in east of place of occurrence. At the time of incident, medical shop of Ganesh was not existing. House of the deceased was at a distance of 300 paces from the spot. Khatif Ahmad (PW- 2) stated that the house of the deceased was at a distance of 30-40 paces from the spot. He had gone to the house of the deceased for calling the family members of the deceased after the incident but no one had come as at that time only ladies were present at his house. Naseem Khan (PW-3) has stated that the father of the deceased had come on the spot. If father of the deceased was present, then he would have lodged the FIR. It does not appear probable that after information that the deceased was seriously assaulted through knife, no one from the family of the deceased would come on the spot.
Investigating Officer Madan Gopal Sharma (PW-10) stated that he had reached spot within 45 minutes of the incident. On the pointing out of the informant, he prepared site-plan (Ex-Ka-15). During spot inspection, he did not find blood on the spot nor blood stained earth was taken. Although, according to the witnesses, the injured remained lying on earth for few minutes. For these reasons place of incident as shown by the prosecution is doubtful.
13. The presence of the witnesses on the spot is doubtful due to their subsequent behavior also. Hafiz-ur-Rahman (PW-1), claims to be maternal uncle of the deceased and stated that he had returned to his house from police station after lodging FIR. After coming out about 10 paces from police station, he received information regarding death of Nafees Khan through Mohd. Yamin. The dead body was sealed on next day at 5:00 AM. On next day, he did neither go to hospital nor postmortem house and remained at his house. He attended burial ceremony of the deceased on next day at 5:50 PM. Naseem Khan (PW-3), claims to be brother-in-law of the deceased and his injuries were allegedly examined on 30.12.1983 at 5:45 PM in same hospital. He stated that he remained at the police station up to 6:00 PM. He did not know as to who had taken the deceased to hospital from police station. He went to the hospital from police station at 5:00 to 5:30 PM. In Injury Report (Ex-Ka-4), time of his examination was mentioned as 5:45 PM. He did not meet the deceased in hospital. When he was returning after bandage, one boy informed him that his brother-in-law had died. Thereafter, he came to his house and did not go to see the deceased. He attended burial ceremony of the deceased on next day. It is not probable that a close relations would not go to see the deceased at the hospital after hearing the news of his death. Naseem Khan (PW-3) sustained two abrasions in right leg, which were simple in nature. Khatif Ahmad (PW-2) was resident of mohalla Kanghi Tola, which was at a distance of 8-10 KM from the place of incident. Khatif Ahmad (PW-2) stated his profession as labourer but in statement he has stated that he owned a shop of forma of kulfi, situated at a distance of 15-20 paces from the place of occurrence. His shop was not shown in site-plan (Ex-Ka-15). For the aforesaid reasons, presence of the witnesses on spot at the time of incident is doubtful.
14. The prosecution case was that the accused demanded Rs. 10/- from the deceased for drinking and on denial, he caused knife injuries to Nafees. Naseem Khan (PW-3) stated that he had not seen the accused while fighting or misbehaving with any one prior to the incident, although the accused was resident of his mohalla and was known to him. The deceased never made any complaint of the accused to him. No one had made any complaint to him that the accused used to demand money from people. It does not inspire confidence that for not giving Rs. 10/-, a person would cause knife injuries at a public place. The origin of the dispute is also doubtful.
15. A broken knife is allegedly recovered from the accused. Khatif Ahmad (PW-2) stated that knife was sealed at the police station. Head Constable Hari Nath Singh (PW-6) stated that knife was sealed, rapping it in the cotton. But when the knife was opened in the Court, then neither on the blade of knife nor in the cotton, the blood stains, were found. The knife was not sent for chemical examination as such it is not proved that this knife was used for causing injuries to the deceased at the time of incident.
16. Incident took place on 3012.1983. The judgment of acquittal was passed on 08.01.1986. The appeal came for hearing before this Court after 33 years of the acquittal. A three-Judge Bench of Supreme Court in Jadunath Singh v. State of U.P. , ( 1971) 3 SCC 577, has held that in an appeal against acquittal, the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415, Supreme Court culled out the general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal. The said principles are enumerated below:
“(i) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(ii) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(iii) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(iv) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(v) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
The aforesaid principles have been approved by a three Judges Bench of Supreme Court in Pawan Kumar v. State of H.P., (2017) 7 SCC 780 .
17. In view of the aforesaid discussions, the appeal has no merits and is dismissed. Office shall communicate this order to the Court concerned. Original records be also returned. Miss Ruchi Srivastava, Amicus Curiae, who argued this case of behalf of respondent shall be given Rs. 10,000/- (ten thousands) as her fee.
Order Date :- 27.2.2019 Rahul Dwivedi/-