Court No. - 48
Case :- GOVERNMENT APPEAL No. - 2214 of 1984 Appellant :- State of U.P. Respondent :- Surya Prakash Counsel for Appellant :- A.G.A.
Counsel for Respondent :- Anil Kumar Gupta,Mahesh Chandra Joshi,Rajesh Kumar,S. Shahnawaj
Hon'ble Anjani Kumar Mishra,J. Hon'ble Deepak Verma,J.
1. CJM report dated 13.07.2016 states that opposite party No.2 Babu Ram S/o Pati Ram, opposite party No.5 Maharaj Singh S/o Ganesh and opposite party No.8 Sanju S/o Chandan had been died since long back. As such appeal is abated against Babu Ram, Maharaj Singh and Vijendra @ Sanju.
2. This government appeal has been filed under Section 378 Cr.P.C. by the State against the judgment and order dated 03.05.1984 passed by Xth Additional Sessions Judge, Etah in Sessions Trial No.20 of 1982 (State Vs. Surya Prakash) under Sections 147, 148, 149, 307 I.P.C., Police Station Marehra, District Etah.
3. Learned A.G.A. submits that trial court has not applied its judicial mind and has wrongly acquitted the accused. He also submits that the impugned order is based on surmises and conjuctures and it is against the weight of evidence on record. Trial Court has passed the impugned order, erroneously discarding the prosecution evidence.
4. As per prosecution case, the alleged incident took place on 24.11.1980 in night at about 09:00 pm at Village Yadgarpur, Etah, when the informant and some other villagers were enjoying the bonfire (alaw) outside the house, suddenly accused persons, namely, Girishchandra, Suryaprakash, Jugendra @ Sanjeev armed with gun and country made pistol and Mahraj Singh, Mahesh armed with lathis and Dorilal, Baburam @ Lau, Vijendra, Jaiprakash came to the spot and threatened that all are making complaints, today I would see you all. In the meantime, three accused persons possessing gun and country made pistol fired on them with intention to kill and injured, hearing the shout and cry of the informant some villagers came to the spot, seeing the villagers, the accused persons fled away from the spot. It is said that the accused persons had enmity for a long back.
5. Harishchandra Verma (P.W. 4), who was Investigating Officer of the case, conducted the enquiry and submitted that chik report/FIR (Exhibit Ka-2) was prepared by Constable Karan Singh registered in G.D. at serial no.2. He verified copy of GD as Exhibit Ka-3 which had been prepared and signed by Constable Karan Singh. He started the investigation same day and recorded the statement of witnesses, namely, Ram Vakil, Sultan Singh, Mathura Prasad, Ram Bhajan etc. He prepared recovery memo of blood stained cloth on 28.11.1980. Recovery memo is Exhibit Ka-5.
6. Sunahari Lal lodged written FIR, scribed by Mathura Prasad. Exhibit Ka-1 FIR was registered at 01:15 in morning at Police Station Marehra on 25.11.1980. Chik FIR Exhibit Ka2 was prepared by Charan Singh and was entered in case diary. Injured were sent for medical examination to Government Hospital, Marehra where medical examination was conducted by Dr. A. K. Bhardwaj at 2 pm to 2:30 pm and injury reports have been marked as Exhibit Ka-7, Ka-8, Ka-9, K-10, K-11 and K-12. Smt Bhoo Devi, Prem Singh, Ram Vakil, Sultan Singh and Sunahari Lal were X-rayed and the X-ray reports have been marked as Exhibit 1, 2, 3, 4 and 5.
7. Witness (P.W. 6) Dr. Daya Shanker has given report after seeing the X-rays which are marked as Exhibit Ka-13, 14, 15, 16 and 17. Investigation of the case was handed over to Sri Harishchandra Verma (P.W. 4), Investigating Officer after taking statement of witnesses conducted spot inspection and prepared spot map which is marked as Exhibit Ka-4. Investigating Officer also collected sadri of Prem Singh and dhoti of Bhoo Devi which has been marked as Exhibit Ka-5 and after completion of investigation charge-sheet had been submitted against all the accused persons. Case was committed to sessions and charges were framed under Sections 147, 148, 307 read with Section 149 I.P.C. Prosecution produced six witnesses P.W. 1 Sunahari Lal, P.W. 2 Sultan Singh, P.W. 3 Mathura Prasad, P.W. 4 S.I. Harishchandra Verma (Investigating Officer), P.W. 5 Dr.
A. K. Bhardwaj and P.W. 6 Dr. Daya Shanker.
8. P.W.1 Sunahari Lal on oath submitted that about two years back at 9 hours in night when he along with Mathura Prasad, Sultan Singh, Ram Vakil, Prem Singh, Shiv Prasad, Bhoo Devi and Ram Bhajan were sitting before ‘alaw’. Accused-Surya Prakash and Jogendra armed with guns, Girish Chandra with tamancha, Mahesh and Maharaj Singh carrying lathis and rest empty handed reached there and shouted that "हमारे खि%लाफ दर%ास्त देते है इनको मार दो" and started firing. He next stated that informant had made 2-3 applications against the accused persons. Accused persons fired over informant. Mahesh and Maharaj Singh had beaten Sultan Singh and Bhoo Devi by lathi. Informant, Shiv Prasad, Prem Singh, Ram Vakil and Bhoo Devi received pellets injuries. On account of hue and cry, some villagers reached the spot whereafter all accused ran away. He next stated that he submitted written report. Mathura Prasad was its scribe of report. On his dictation, Mathura Prasad wrote out and then read over the same to him. He was sent for medical examination.
9. This witness admitted that he along with Sultan Singh, Ashok, Mathura Prasad, Vasdev and Ram Vakil are accused in a case under Section 364 I.P.C. Before this case, he had enmity with informant. Mathura Prasad, Shyam Lal, Prem Singh and Ram Vakil are relatives. The accused fired for a distance of 10 to 15 paces. 5 to 6 shots had been fired from west side. House of Nemchand is situated to the distance of 10-15 steps east side and is at a 10-15 steps. After receiving injury, blood were came out. He was bleeding from the injuries and the clothes were stained in blood. Blood stained clothes were washed.
10. P.W. 2 Sultan Singh has stated on oath that on 24.11.1980 at about 9 pm when he along with Sunahari Lal, Shiv Prasad, Prem Singh, Ram Bhajan, Mathura Prasad, Ram Vakil, Bhoo Devi was sitting near the alaw, the accused persons came there, Girish had tamancha, Surya Prakash and Bijendra had bandook, Mahesh and Maharaj Singh had lathi and rest were empty hand. From the distance of 14-15 steps they shouted that you all have made various applications against us. Girish Chandra and Surya Prakash started firing, Jogendra also fired, Maharaj Singh and Mahesh inflicted lathi blows. Informant-Sunahari Lal, Ram Vakil, Prem Singh, Surya Prakash and Bhoo Devi received injuries. Bhoo Devi and P.W.-2 received injuries of pellets as well as lathi.
11. In his cross examination he admitted that he is an accused in cross case. Shot were fired from a distance of 14 to 15 steps. Four persons came near the alaw. Two persons started assaulting with lathis.
12. P.W. 3 Mathura Prasad in his statement stated that at about 9 pm he along with Sultan Singh, Bhoo Devi, Prem Singh Surya Prasad, Sunahari Lal etc. were seated near the alaw. When the accused persons arrived, Girish had tamancha, Surya Prakash and Jogendra had country made pistol, Mahesh and Maharaj Singh had lathis in their hands. Jai Prakash, Dori Lal, Lau @ Babu Ram and Brijendra Singh were empty hand and shouted that you all were made various applications against us today we will fix you. Surya Prakash, Girish and Jogendra fired, Mahesh and Maharaj Singh beat Sultan Singh and Bhoo Devi by lathis. Bhoo Devi, Shiv Prasad, Prem Singh, Sunahari Lal and Ram Vakil received fire arm injuries. On account of hue and cry of the witnesses, villagers came there and the accused ran away from the spot.
13. In cross Mathura Prasad stated that accused were 10 to 15 steps away. Bhoo Devi fell down after receiving injury, her dhoti stained with blood. Mathura Prasad (P.W. 2) is son of Sarpanch Shyam Lal. P.W. 2 managed bullockcart went to police station by tractor but had no knowledge who were went with tractor. He is accused in proceeding under Section 364 I.P.C.
14. Injured were examined by Dr. A. K. Bhardwaj (P.W. 5). On 25.11.1980 he was posted as Medical Officer in Government Hospital, Marhara. He examined the injured-Sultan Singh son of Munshi Lal, Ram Vakil son of Prem Singh, Prem Singh son of Tej Singh, Shiv Prasad son of Tej Singh, Sunahari Lal.
15. Injury report of Sultan Singh S/o Munshi Lal examined at 02:00 pm is as follows::-
“{1} नीलगू निनशान 6 सेमी.X2.5 सेमी. छाती पर सीधी तरफ, चोट निनरीक्षण में र%ी गई थी और एक्स-रे की सलाह दी गई थी, यह चोट निकसी कु न्द आले से आना सम्भव थी। {2} उसी निदन 2.10 बजे इन्होने श्रीमती भूदेवी पत्नी मुन्शी सिंसह की चोटों का डाक्टरी मुआयना निकया और निनम्नखिलखि%त चोटें पाई:-
{1} %राश .25 सेमी.X.25 सेमी. बाई तरफ की उंगली पर पीछे की तरफ {2} %राश .25 सेमी.X.25 सेमी. बाई मध्यमा उंगली पर। {3} कु चला हुआ घाव .25 सेमी.X.25 सेमी.X मांस तक गहरा बांये हाथ के अंगुठे के निनचले निहस्से पर, %ून निनकल रहा था। {4} गोली घुसने का घाव .25 सेमी.X.25 सेमी. पेट पर सीधी तरफ, काखिलमा खिलए हुए। चोट नं० 1,2,3 साधारण थी जो कु न्द आले की रगड़ से आई थी चोट नं० 4 निकसी आग्नेस्त्र से आई थी।”
16. Injury report of Ram Vakil son of Prem Singh examined at 02:25 pm is as follows::-
“{1} गोली घुसने का घाव जो संख्या में तीन थे , इनमें से एक बांये हाथ की अग्रभुजा पर था, दसरा अग्रभुजा के बीच में, तीसरा इन्डेक्स फिंफगर पर था। सभी .25 सेमी.X.25 सेमी.X मांस तक गहरे थे, घाव के चारों तरफ लाखिलमा थी। {2} गोली घुसने का घाव .25 सेमी.X.25 सेमी.X मांस तक गहरा सीधी अग्रभुजा पर, छराD निनकालकर सील निकया गया था। {3} गोली घुसने का घाव .25 सेमी.X.25 सेमी.X मांस तक गहरा सीधी अग्रभुजा के ऊपरी निहस्से के बाहरी निहस्से पर। छराD पल्पेनिबल था। एक्स-रे की सलाह दी गई थी। {4} गोली घुसने का घाव .25 सेमी.X.25 सेमी.X मांसपेशी तक गहरा सीधे हाथ की मध्यमा उंगली पर पीछे निनचले निहस्से पर। {5} गोली घुसने का घाव .25 सेमी.X.25 सेमी. छाती पर सीधी तरफ। एक्स-र की सलाह दी गई थी। {6} गोली घुसने का घाव .25 सेमी.X.25 सेमी. सीधे पैर पर। {7} गोली घुसने का घाव .25 सेमी.X.25 सेमी.X मांसपेशी तक गहरा सीधी तरफ सर पर। चोट नं० 1,2,3,4, व 7 साधारण थी चोट नं० 6 निनरीक्षण में र%ी गई थी जो आग्नेस्त्र से आई थी। चोट नं० 1 बाद मे 7 नं० पर खिल%ाई गई है।”
17. Injury report of Prem Singh S/o Tej Singh, examined at 02:50 pm is as follows:
“{1} गोली घुसने का घाव .25 सेमी.X.25 सेमी.X मांसपेशी तक गहरा गदDन के पीछे बांई तरफ। {2} गोली घुसने का घाव .25 सेमी.X.25 सेमी.X मांसपेशी तक गहरा सूजन से घिघरा हुआ कमर पर बांई तरफ Scapula हड्डी और रीढ़ की हड्डी के बीच में। {3} गोली घुसने का घाव .25 सेमी.X.25 सेमी. सूजन से घिघरा हुआ, बांई अग्रभुजा के पी...। एक्स-रे की सलाह दी गई। सभी चोटें आग्नेयस्त्र से आई थी।”
18. Injury report of Shiv Prasad S/o Tej Singh. examined at 03:00 pm is as follows:
“{1} गोली घुसने का घाव .25 सेमी.X.25 सेमी.X मांसपेशी तक गहरा बाये कन्धे के जोड़ पर , %ून आलूदा था। {2} गोली घुसने का घाव संख्या में दो .25 सेमी.X.25 सेमी. छाती पर बाई तरफ निननिपल से 4 सेमी. नीचे। चोट को निनरीक्षण में र%ा गया और एक्स-रे की सलाह दी गई थी। {3} गोली घुसने का घाव .25 सेमी.X.25 सेमी. पेट पर ऊपर की तरफ। चोट निनरीक्षण में र%ी गई और एक्स-रे की सलाह दी गई थी। {4} गोली घुसने का घाव .25 सेमी.X.25 सेमी. छाती पर सीधी तरफ संख्या में दो निनरीक्षण में र%ी गई और एक्स-रे की सलाह दी गई। {5} गोली के घुसने का घाव .25 सेमी.X.25 सेमी.X पेट पर सीधा तरफ सूजन के घिघरा हुआ। निनरीक्षण में चोट र%ी गई और एक्स-रे की सलाह दी गई। चोट नं० 1 साधारण थी, वाकी सभी चोटें निनरीक्षण में र%ी गई और आग्नेयस्त्र से आई थी। ”
19. Injury report of Sunahari Lal examined at 2:25 pm is as follows:
“{1} गोली घुसने का घाव .25 सेमी.X.25 सेमी. छाती पर बांई तरफ लाखिलमा खिलए हुए। एक्स-रे की सलाह दी गई। {2} गोली घुसने का घाव .25 सेमी.X.25 सेमी.X मांसपेशी तक गहरा संख्या में दो छाती पर सीधी तरफ। दोनों चोटों से छरJ निनकाले गये। {3} गोली घुसने का घाव .25 सेमी.X.25 सेमी. सीधे कन्धे के ऊपर। छराD पल्पेनिबल था, एक्स-रे की सलाह दी गई थी। {4} %राश .25 सेमी.X.25 सेमी. चेहरी पर सीधी तरफ। चोटें साधारण थी और आग्नेयस्त्र से आई थी। चोट नं० 4 निकसी कठोर वस्तु की रगड़ से आई थी।”
20. Dr. A. K. Bhardwaj (P.W. 5) opined that it is possible that injuries would have been received at 9 pm on 24.11.1980. No blacking or tattooing mark had been found.
21. Dr. Daya Shankar (P.W. 6) Medical Officer, District Hospital, Etah on 26.11.1980 conducted X-ray of injured Bhoo Devi and after seeing the X-ray report he prepared X-ray report. He prepared X-ray report also of Prem Singh, Ram Vakil, Sultan Singh and Sunahari Lal.
22. Harishchandra Verma (P.W. 4), is the Investigating Officer of the case. Chik FIR, marked as Exhibit Ka-2, was written by Constable Karan Singh and he has admitted that he recorded statement of the witnesses Ram Vakil, Sultan Singh, Mathura Prasad and Ram Bhajan and made spot inspection and prepared spot map. He collected clothes and prepared fard, marked as Exhibit Ka-4 and Ka-5. After completion of investigation, on 22.12.1980 submitted charge-sheet (Exhibit Ka-6) against all the accused persons.
23. Blood stained clothes were not sent for forensic examination. Blood earth was not collected from the spot. Pellets were recovered from the spot. No blood had been recovered from Shyam Lal Chaupal. Wood ash, soil, burnt wood had not been collected. Sign of pellets had not been found on the walls.
24. Accused persons under Section 313 Cr.P.C. denied all the allegations alleged against them and submitted that the informant, to save themselves from cross case, falsely implicated them the present case. All the accused persons have stated that they have been falsely implicated as they are witness in the cross case and Maharaj Singh is informant in cross case. Present FIR has been lodged so that accused persons may be pressurised and harassed.
25. Defence produced D.W. 1 Virendra Jain, Hindi Typist in District Magistrate Office, Etah, who has stated that Girish Chandra Yadav son of Chandan Singh was involved in black marketing of sugar and report/complaint was registered in the office of District Magistrate and enquiry was conducted by SDM.
26. Heard Sri Ajit Ray, learned AGA for the appellant and Sri S.Shahnawaj, learned counsel for the respondent.
27. Learned AGA contended that in the FIR, Girish Chandra, Surya Prakash and Jogendra @ Sanjeev have been assigned with country-made pistols and five persons, namely, Smt. Bhoo Devi, Ram Vakil, Prem Singh, Shiv Prasad and Sunahari Lal have received gun shot injuries, which is evident from the medical reports and statements of P.W. 5 and P.W. 6 Dr. A.
K. Bhardwaj and Dr. Daya Shankar respectively. It is clear from the statement of Dr. A.K. Bhardwaj (P.W. 5) that pellets were removed from the body of the injured, therefore, prosecution had proved its case beyond reasonable doubt. Trial Court has not applied its judicial mind and has wrongly acquitted the opposite party Nos.1 to 9 under Sections 147, 148 and 307 I.P.C. Prosecution produced the eye-witness and injured witnesses. From their testimony a clear case under Section 307 is made out. He next argued that findings of the trial court that prosecution had failed to prove its case; the FIR is ante timed and that is no independent witness was produced and flaw in investigation as well as medical evidence is also not supporting the statement of witnesses are all against the weight of evidence and, as such, liable to be set aside.
28. Per contra, learned counsel for opposite party Nos.1, 3, 4, 6, 7 and 9 vehemently supported the judgment and order dated 03.05.1984 passed by Trial Court, Learned counsel for opposite party submits that Trial Court has acquitted the opposite party as the prosecution had been failed to prove motive as to why accused had fired over the injured as well as informant. Trial Court also considered the statement of witnesses which have not corroborating the facts as well as medical reports and, prima facie, lacuna in investigation, as from the spot blood pellets or khokha had not been recovered by the Investigating Officer as well as the clothes of the injured were not taken into custody. At the place of incident there was a wall towards east from there Investigating Officer has not found signs of bullets. The Investigating Officer had also not collected the ash of alaw (burnt wood) and blood which was fallen on the ground. Trial Court rightly come to the conclusion that place of incident is wholly doubtful. He next argued that Trial Court has rightly come to the conclusion that FIR is ante timed as it had been stated that the incident occurred about 09:00 in night and distance of police station from the place of incident is about 14 kms and it was not possible to reach 14 kms. by bullockcart by 1.15 hours. All the witnesses produced are related to each other and no independent witness was produced. Having regard to the medical report, doctor in his statement stated that injuries were not dangerous to life. After considering all the above aspects it rightly acquitted the opposite parties. As such, no interference is warranted.
29. We have perused the entire record. On perusal of the FIR it is clear that Girish Chandra, Surya Prakash, Jogendra @ Sanjeev were armed with guns and country made pistols and Maharaj Singh and Mahesh S/o Maharaj Singh had lathis in their hands. Dori Lal, Babu Ram, Vijendra, Jai Prakash having no weapons in their hands, i.e., empty hand. They came to the place of the incident where some people were seated before alaw. Informant and other persons recognised the accused persons/opposite party Nos.1 to 9 in the light of alaw and in the moon light. The role of firing had been assigned to Girish Chandra, Surya Prakash, Jogendra @ Sanjeev Singh S/o Chandan and role of beating by lathi has been assigned to Maharaj Singh and Mahesh S/o Maharaj Singh.
30. From perusal of medical report, all the injured persons have received gun shot injury by pellets which is size of 0.25 mm. It appears that shot has been fired by a single gun. P.W. 1, P.W. 2 and P.W. 3 are having close relations with each other. P.W. 1, Sunahari Lal in his cross examination admitted that Mathura Prasad (P.W. 3) and Sultan Singh (P.W. 2) are close relatives. The scribe of the FIR Mathura Prasad. P.W. 1, on oath has stated that Mahesh and Maharaj Singh had beaten Sultan and Bhoo Devi by lathi which is contrary to medical report of Bhoo Devi and Sultan Singh. P.W. 2 Sultan Singh in cross examination has stated that two persons beaten to him and to Bhoo Devi. On account of that his mother-Bhoo Devi fell down. The injury report of Bhoo Devi and Sultan Singh does not support the version of P.W. 1 and P.W. 2. From the statement of P.W. 1, P.W. 2 and P.W. 3 it is not clear whether there was any motive to carry out the attack P.W. 1, P.W. 2 and P.W. 3 could not prove by their statement that there was an old enmity due to which opposite party No.2 attacked and injured them. Rather the statement of P.W. 1, P.W. 2 and P.W. 3 shows that motive was against Sunahari Lal and his father but not against Sultan Singh, Smt. Bhoo Devi and Prem Singh. Prosecution had while conducting investigation failed to collect the relevant evidence. Investigating Officer has not collected blood, pellets and khokha from the spot whereas it is the case of prosecution that shots were fired and five persons received gun shot injuries. Moreover, from the statement of witness P.W. 1, P.W. 2 and P.W. 3 it is clear that blood had fallen on the ground but P.W. 4 Harishchandra Verma, Investigating Officer, had not collected blood stained soil and he did not find any pellets from the spot. No blood was found nor the Investigating Officer collected the ash burnt wood. He had not found any mark of pellets over wall which was situated 10-15 steps behind the place of incident. The statement of Investigating Officer that no pellets or blood has been collected from the spot creates doubt regarding place of incident. An doubt regarding the place of occurrence, always go in favour of the accused.
31. Having regard to the oral testimony on record, no independent witness has been produced by prosecution and as per doctor’s opinion, injury received by injured are not fatal to life and the story regarding lodging of the FIR are anti timed. Statement of witnesses do not corroborating the facts and contradict each other. They are also not consistent to the medical evidence. Investigation is faulty as important evidence had not been collected. Place of occurrence is doubtful. Motive is not proved. As such, order of acquittal require no interference.
32. The Hon’ble Apex Court has held in Arulvelu and another Vs. State represented by the Public Prosecutor and another and in Babu Vs. State of Kerala, 2009 (10) SCC 206; 2010 (9) SCC 189; 2011 (1) U.P.
Crl 143 (SC) the well established principles of law consistently reiterated and followed by this Court are that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record so as to arrive at a finding as to whether the view of the trial court were perverse or otherwise unsustainable. Even though, the appellate court is entitled to consider or whether in arriving at the finding of fact, trial court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law, the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanour of the witnesses is the best Judge of the credibility of the witnesses.
33. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right, subject to the statutory exceptions. The said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial courts acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a casual or cavalier manners where the another view is possible should be avoided, unless there are good reasons for such interference.
34. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the finding have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is against the weight of evidence; or if the finding so outrageously defies logic as to suffer from the vice of irrationality. Thus, unless there are substantial and compelling circumstances, the order of acquittal is not required to reversed in appeal.
35. In view of the above, we are of the view that trial court after considering all the aspects and considering all the evidence available on record rightly acquitted the opposite party No.2.
36. Accordingly, we dismiss the appeal filed by the State and affirm the judgment dated 03.05.1984 passed by Xth Additional Sessions Judge, Etah in Sessions Trial No.20 of 1982.
Order Date :- 28.07.2021 Nitin Verma (Hon'ble Deepak Verma, J.) (Anjani Kumar Mishra, J.)