JUDGMENT M.C. Jain, J.
1. The State has come in appeal against the judgment and order of acquittal dated 17th June 1981, passed by Sri B.K. Srivastava, III Additional Sessions Judge, Mainpuri in Sessions Trial No. 136 of 1981. Ten accused respondents, namely, (1) Puttu Lal (2) Kayam Singh (3) Vjjai Singh (4) Sughar Singh (5) Tilak Singh (6) Mulaim Singh (7) Phoolan Singh (8) Chhakki Lal (9) Babu Ram and (10) Mahesh Ram were tried in the said case. Vijay Singh, Sughar Singh, Tilak Singh, Mulaim Singh, Phoolan Singh and Chhakki Lal accused respondents are the sons of accused-respondent Puttu Lal. Babu Ram is the nephew of Puttu Lal. The accused respondent Mahesh Ram is the resident of the same village where the incident occurred and the accused respondent. Kayam Singh is said to be the neighbour and helper of Puttu Lal and his sons. The incident occurred on 1.7.1979 at about the time of sunrise in village Prithipur hamlet of Mohabbatpur, P.S. Kurrah, District Mainpuri and the F.I.R. was lodged the same day at 12.30 P.M. by Munni Lal PW 2 (eyewitness). The distance of the police station from the place of occurrence was about seven miles.
2. One Atar Singh lost his life in the incident whereas Jai Ram PW 1, Munni Lal PW 2, Vir Bahadur PW 3, Hoti Lal and Smt. Bataso Devi wife of Jai Ram sustained injuries on the side of the prosecution. The charge for causing the death of Atar Singh was under Section 304 read with section Section 149 I.P.C. against all the accused respondents. Puttu Lal, Vijay Singh, Sughar Singh and Kayam Singh were allegedly armed with Kantas and spears and as such they were charged for the offence of rioting under Section 148 I.P.C, whereas the rest being allegedly armed with lathis were charged under Section 147 I.P.C. All of them were further charged under Section 324 read with Section 149 and under Section 323 read with Section 149 I.P.C. for causing hurt to the injured named above.
3. Jai Ram PW 1, Hoti Lal and the deceased Atar Singh were real brothers, Munni Lal PW 2 is the son of Jai Ram. Vir Bahadur PW 3 is the son of the deceased Atar Singh
4. Broad features of the prosecution case, as unfolded from the F.I.R. and the evidence adduced in the Court, may be set forth. Five or six months before the occurrence, Puttu Lal had borrowed Rs. 170/- from Jai Ram . On 1.7.1979 at about sunrise, Jai Ram went to the house of Puttu Lal to demand his money. Puttu Lal asked him to wait, saying that he would soon return his money. A little while later, Puttu Lal along with remaining accused emerged out of the house armed with Kantas, spears and lathis. They started assaulting Jai Ram who fled towards his house. Ail the accused chased him upto his house. There Munni Lal, Atar Singh, Hoti Lal, Vir Bahadur Singh and Smt. Bataso came to his rescue but the accused assaulted them too with lathis, Kantas and bricks. Atar Singh was given blows by the accused Vijay Singh and after he fell down, he was assaulted by Mahesh Ram by bricks as a result of which, he sustained serious injuries in his stomach. Alter the departure of the accused, the injured including Atar Singh set out for police station on a bullock cart. Atar Singh succumbed to his injuries in the way. At the police station, Munni Lal scribed the report and presented the same there on the basis of which a case was registered. The investigation was taken up by S.I. Shiv Raj Singh PW 4. Inquest of the dead body was prepared along with other relevant documents and the dead body was sent for post mortem examination. Continuing the investigation, the Investigating Officer interrogated the witnesses, prepared the site plan etc. and ultimately submitted charge sheet.
5. The injured were sent to P.H.C. Karhal where they were medically examined by Dr. Ram Babu Gupta PW 5 with the preparation of injury reports Ex.Ka-11 to Ka-15. The medical examination was conducted from 9 P.M. to 9.30 P.M. The injuries of the injured are described below:
Hoti Lal
1. Three contusions of 8 cm x 1 cm, 5 cm x 1 cm and 7 cm x 1 cm. adjacent to each other on lateral side of left upper arm with swelling about 14 cm x 10 cm.
2. Abrasion on lateral side of left upper arm about 2 cm above from left elbow joint of size 1 cm x 1/2 cm.
3. Abrasion on left knee joint of size 1 cm x 1 cm.
4. Complaint of pain in right lower leg nothing visible.
5. Contusion of 4 cm x 2 cm on right gluteal region.
6. Incised wound in right upper and lateral aspect about 2" above from right elbow joint, skin deep, of size 1 cm x 1/2 cm.
7. Complaint of pain in right forearm, nothing visible.
8. Multiple contusions on all over back of size 16 cm x 2 cm, 10 cm x 2 cm, 8 cm x 1 1/2 cm, 5 cm x 1 cm, 11 cm x 2 1/2 cm.
9. Contusion of 2 cm x 2 cm with swelling 6 cm x 5 cm in left side of back in lumber region joint, above the left iliac bone. Advised x-ray.
10. Lacerated wound superficial in about middle of head of size 1 cm x 1/4 cm with haematoma around it of size 3 cm x 2 cm.
All injuries except No. 6 which was of sharp edge, were of blunt object. All injuries except No. 9 for which x-ray was advised, were simple. The injuries were about 1/2 day old.
Vir Bahadur Singh
1. Abrasion linear in right gluteal region of size 1 cm x 1 cm.
2. Three abrasions on post aspect of right hand each just below and base of middle, right and little finger of size 1" x 1"
3. Lacerated wound skin deep about right parietal and occipital bone joint of size 3 cm x 1/2 cm.
All injuries were simple, caused by blunt object and about 1/2 day old.
Munni Lal
1. Linear abrasion on right knee joint by friction of size 1/4 cm x 1/4 cm.
2. Lacerated wound in anterior aspect of left ring finger at the junction of lower 1/3rd £ upper 2/3rd.
3. Lacerated wound in frontal bone in left side of head about 3" above from left eyebrow of size 1 cm x 1/4 cm, superficial.
4. Incised wound in frontal bone of head about 2" above from base of nose of size 2 cm x 1/4 cm, superficial.
All injuries were simple and had been caused by blunt weapon and friction. They were about 1/2 day old.
Bataso Devi
1. Swelling on head at right parietal bone of size 2 cm x 1 cm.
2. Pain in back. Nothing visible.
The nature of injury was simple, could be caused by friction and duration could not be fixed.
Jai Ram
1. Abrasion in right foot on anterior aspect at about middle, of size 2 cm x 1 cm.
2. Linear abrasion in left hand at about near wrist joint, of size 1 cm x 1/4 cm on lateral side.
3. Friction on right shoulder, of size 1 cm x 1 cm.
4. Lacerated wound skin deep, of size 5 cm x 1/2 cm on temporal region in head.
Injuries were simple and had been caused by blunt weapon and friction. They were about 1/2 day old.
6. The post mortem over the dead body of Atar Singh was performed by Dr. M.M. Sharma on 2.7.1979 at 4.45 P.M. The deceased was aged about 42 years and 1 1/4 day had passed since he died. The following ante-mortem injuries were found on his person:
1. Lacerated wound 1 cm x 1/2 cm x bone, present on left side forehead 5 1/2 cm above left eyebrow, margins of the wound abraded.
2. Traumatic swelling 11 cm x 9 cm present on right temporal region, just in front of right ear and above.
3. Lacerated wound 2 cm x 1/2 cm x bone, present on front of left leg upper 1/3 part, margins of the wound abraded.
4. Abrasion 1 cm x 1/2 cm present on front of left leg lower 1/3 part.
5. Multiple abrasion, in an area of 4 1/2 cm x 2 cm present or front of right knee varying from 2 cm x 2 cm to 1/2 cm x 1/2 cm.
6. Abrasion 3 1/2 cm x 3 cm present on top of right shoulder.
7. The cause of death was coma due to ante mortem injuries.
8. The formal proof of the post mortem report was dispensed with by the defence.
9. All the ten accused pleaded not guilty. The defence put forth a cross version that at about 4 A.M. the complainant Munni Lal and others had come to the house of the accused to take away the cattle on the pretext of recovering some disputed amount. The accused awoke and tried to protect and prevent the complainant's side from removing the cattle. The complainant Munni Lal and others were armed with lathis and kantas. Some of the accused pleaded their absence. A cross F.I.R. was lodged by Puttu Lal from the side of the accused also at 1.15 P.M. against Jai Ram, Atar Singh, Hoti Lal, Munni Lal and Vir Bahadur.
10. The prosecution relied upon the testimony of Jai Ram PW 1, Munni Lal PW 2 and Vir Bahadur PW 3 as eyewitnesses apart from medical evidence and that related to the investigation of the case.
11. From the side of the defence the copy of the F.I.R. Ex.Kha 2 and copy of injury reports of Sughar Singh, Kishan Lal and Puttu Singh (Ex.Kha-2 to Ex.Kha-4) were filed. DW 1 Dr. D.P. Misra was examined who had examined the injuries of these accused in District Jail, Mainpuri on 4.7.1979 between 11.05 A.M. and 11.45 A.M. The following injuries were found on their person:
Sughar Singh
1. Lacerated wound 3.5 cm x .5 cm x scalp deep on right side head just above hair link.
2. Contusion 1 x 1 cm on the posterio-medial aspect of the left thumb distal phalanx.
3. Contusion .7 cm x .5 cm on the anterior aspect of the proximal phalanx of left index finger.
4. Contusion 1 cm x .5 cm on the hack of left ring or just above the nail.
All the injuries were of blunt object, simple and about 3 days jold.
Vijay Singh
1. Lacerated wound 2cm x .5 cm x skin deep on the top of head.
2. Abrasion 7.5 cm x .5 cm on the right side head, 5.5 cm above the right ear.
3. Abrasion 1 cm x 1 cm on the left side head, 2 cms above the left ear.
4. Contusion 6 cm x 2 cm on the right shoulder.
5. Contusion 7 cm x 2 cm on the middle of right side back.
6. Abrasion 1 cm x .1 cm on the dorsum of the foot right middle part.
7. Abrasion 1 cm x 1 cm on the back of left forearm, middle third.
All the injuries were of blunt object, simple and about 3 days old.
Puttu Lal
1. Abrasion 1 x .5 cm on the left side head just above the left ear.
2. Contusion 4 cm x 4 cm with abrasion in centre about 15 cm x 1 cm on the back of left forearm, middle third.
3. Abrasion 3 cm x .5 cm on the left side intra scapular region.
4. Contusion 2 cm x 2 cm on the right side abdomen.
5. Abrasion 1 cm x 1 cm on the front of right leg, 15 cm below the knee joint.
All the injuries were of blunt object, simple and about 3 days old.
12. On appraisal of the evidence on record, the trial Judge recorded acquittal which has caused grievance to the State.
13. We have heard Sri K.P. Shukla, learned A.G.A. from the side of the State and Sri Akhilesh Singh from the side of the accused respondents. The argument from the side of the State is that the trial Judge committed error in discarding the prosecution evidence for fanciful reasons. On the other hand, the learned counsel for the accused respondents has tried to support the acquittal recorded by the trial Judge.
14. We have gone through the evidence on record and have cross checked the findings with it and the attending circumstances. We find that the trial Judge has recorded acquittal for cogent and convincing reasons. The succeeding discussion would be relevant in this regard.
15. At the initial brunt of the matter, it deserves mention that as held by the Supreme Court in the case of Kalyan and Ors. v. State of U.P. 2002 SCC (Cri) 780 the High Court should refrain from disturbing the findings of fact arrived at by the trial court, particularly when interference is sought on mere possibility of an alternative view in respect of the evidence adduced in a case. It is first to be pointed out that the prosecution presented a distorted version. Right from the lodging of the F.I.R. it was alleged that at about the time of sunrise Jai Ram PW 1 had gone to Puttu Lal accused to demand back Rs. 170/- lent by him to him. Puttu Lal did not oblige him. Instead, he allegedly went inside his house and returned a little while later with the remaining accused, duly armed and assaulted him (Jai Ram) there and then chased him up-to his door where the remaining part of the incident took place. It does not stand to the test of logic and common course of human behaviour. When Puttu Lal had declined to return back the money of Jai Ram, it was highly improbable that he would go inside his house and instantly come out duly armed with his six sins and three orders to assault Jai Ram and then to chase him upto his door to assault him and five others on his side. He (Puttu Lal) having succeeded in declining to return Jai Ram's money, the latter did not cause any displeasure to him to be assaulted and chased by as many as ten persons and for the remaining part of the incident to be taking place in the manner as alleged.
16. The F.I.R. contained an unusual and unnatural recital that the incident had been seen by a number of witnesses but out of fear of the accused, who were dangerous and quarrelsome persons, nobody was ready to depose in favour of the prosecution. It indicated as if the witnesses, though not named in the F.I.R., had been consulted beforehand as to whether they would depose in favour of the prosecution or not. If is there in the testimony of Jai Ram PW 1 that the houses of Baij Nath and Raksh Pal were there in the northern side of the house of Puttu Lal. He further stated that the houses of Bariyar Singh and Maharaj Singh' were at a distance of about 100 paces from his own house. He also stated that Natthu, Sahab Singh, Laturi Singh, Sri Ram, Bhajan Singh etc. had witnessed the incident but they would not depose in favour of the prosecution. The name of none of them was mentioned in the F.I.R. Rather, as we pointed out above, an unnatural recital was made in the F.I.R. regarding the witnesses. The F.I.R. is also silent as to the weapons of the accused respondents. Judging as a whole, an impression is gathered as if the F.I.R. was lodged after deliberation and concoction. Needless to say, once the F.I.R. is held to be fabricated, the entire prosecution case collapses.
17. The case, as pointed out above, rests only on the testimony of the interested witnesses. Though they are injured but it only shows their presence. Their presence, however, does not guarantee the truth of their deposition. Their evidence suffers from inherent improbabilities. It has been admitted by Jai Ram PW 1 that Kayam Singh accused had earlier appeared as a witness against him in a case of Marpit in which he was ? convicted. Therefore, there was animus too for the false implication of Kayam Singh. The participation of all the accused in the crime is not free from doubt. It was early morning time. Babu Ram, Kayam Singh and Mahesh Ram lived at different places. They could not have any prior information about the appearance of Jai Ram at the house of Puttu Lal and as such it was highly improbable that they could assemble there at such early time. Had as many as ten accused participated in this crime, the complainant side would have received much more number of injuries than those received by the five injured and the deceased Atar Singh. Some of the accused hove definitely been falsely implicated and in any case, the truth is so inextricably mixed with falsity that the same cannot be separated.
18. Further, three accused, namely, Sughar Singh, Vijay Singh and Puttu Lal did sustain injuries wherefor no explanation has been given by the prosecution. We note from the testimony of SI Shiv Raj Singh PW 4 that Puttu Lal had reached the police station to lodge the F.I.R. with Kayam Singh, Vijay Singh etc and that the injuries of Puttu Lal, Vijay Singh and Sughar Singh were noted in the G.D. Their injury reports have been proved from the side of the defence. Jai Ram PW 1, Munni Lal PW 2 and Vir Bahadur PW 3 all denied to have seen any injuries on the person of these accused. All of them emphatically stated not to have caused any injury to them. Obviously, it was another flaw casting cloud on the prosecution version that the injuries caused on the side of the accused went completely unexplained.
19. Lastly, the ocular testimony was not in conformity with the medical evidence. All the eyewitnesses of fact stated that Jai Ram PW 1 was first assaulted at the house of the accused Puttu Lal and then in front of his house. All of them stated that all the injured were assaulted with Kantas, spears and lathis. However, excepting Hoti Lal and Munni Lal none else on the prosecution side received any cut weapon injury. The deceased Atar Singh was allegedly given spear blows by Vijay Singh and after he fell down, the accused Mahesh Ram gave brick blows in his stomach. However, as per the post mortem report, the deceased did not receive any sharp edged weapon injury. There was no injury in his stomach either. So, there is yawning gap between the ocular version and medical evidence, meaning thereby that the two do not reconcile.
20. In view of the above speaking flaws, shortcomings and defects in the prosecution evidence, the finding of acquittal recorded by the learned trial Judge is perfectly justified.
21. A person has profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. The Supreme Court has held in the case of Kalyan and Ors. v. State of U.P. (supra) that the High Court should be slow in disturbing the finding of fact arrived at by the trial court. In an earlier case of Kali Ram v. State of H.P. AIR 1973 SC 2773, it was observed that it is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person.
22. On the state of evidence adduced by the prosecution in the case at hand, judged in the light of the attending circumstances, no conviction could be recorded. We endorse the finding of acquittal and are inclined to dismiss this appeal.
23. The appeal is hereby dismissed and the acquittal is affirmed.
24. The judgment be certified to the lower court.