Mannna vs State Of U.P.
2014 Latest Caselaw 2559 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

This appeal under Section 374(2) Cr.P.C. has been preferred by Manna, son of Matai Pasi and Sinna, son of Lochan against the judgment and order dated 20.6.1998 passed by Sessions Judge, Unnao in Sessions Trial No.104 of 1998 (State v. Manna and another) convicting and sentencing the appellants under Section 307/34 I.P.C. for eight years' R.I.

Briefly stated, the prosecution case is that informant-injured Bhagwati and both the accused reside in Village Ahamadpur Wade. About a month prior to the occurrence, some altercations had taken place in between Vijai Pal, brother of the informant on one hand and both the accused and one Mangal on the other. The back ground of altercation was that Vijai Pal had given a push by his bi-cycle to them. Bhagwati(injured) made protest to the accused, whereupon the accused had threatened him with dire consequence.

On 14.11.1997 at about 3:00-4:00 a.m., informant Bhagwati was reaping his paddy crop and had reaped only two 'Muttha' (handful) paddy crop; at that time both the accused came there from the side of the grove. Accused Sinna fired at the informant, which did not hit him; the informant ran for his life but Manna followed him and fired, from his half gun, a shot, which hit him on the left side of shoulder at the back.

The informant prepared a written report Ext. Ka-6 and carried it to the police station where the first information report was lodged; on the basis of this report chik F.I.R. Ext. Ka-2 was prepared and the case was registered in the general diary at sl. no.14 at 13:30 hours, a copy of which is Ext. Ka-3.

Chitthi Mazroobi (Ext. Ka-4) was prepared by Constable Mohammad Shoab (P.W. 2) and the injured Bhagwati was sent for medical Examination at P.H.C. Hasanganj where the injuries were examined on 15.11.1997 at 11:30 hours by Dr.Dhirendra Singh (P.W.1), who found the following injuries on the person of injured Bhagwati:-

1-Multiple wound 0.5 cm x 0.5 cm to 0.2 cm x 0.2 cm (number not able to count about 54) on left shoulder region - 20 cm x 17 cm. Blackening and charring present.

Injury was kept under observation, caused by fire-arm, duration of about two days; the injured was referred to District Hospital, Unnao, for further investigation. He prepared injury report Ext. Ka-1.

Dr.M.C.Tiwari, Senior Radiologist District Hospital, Unnao on 17.11.1997 performed X-ray on injured Bhagwati; X-ray report Ext. Ka-5 revealed multiple radio opaque shadows of metallic density on the left scapula region.

S.I. Haribansh Rai (P.W.5) conducted the investigation and after its completion submitted charge-sheet (Ext. Ka-8) against both the accused.

The case was committed to the Court of Sessions. Charges were framed against the accused persons under section 307 I.P.C. and in alternate under section 307/34 I.P.C.

The accused pleaded not guilty and claimed to be tried.

The prosecution in support of its case examined Dr.Dhirendra Singh as P.W. 1, Constable Mohammad Shoab as P.W. 2,.Dr.M.C.Tiwari as P.W. 3, Bhagwati as P.W. 4 and S.I. Haribansh Rai as P.W.5.

Statement of accused was recorded under section 313 Cr.P.C.; they denied the prosecution case and stated to have been implicated falsely due to enmity. The accused persons filed a copy of family register Ext. Ka-1, copy of electoral roll Ext. Ka-2 and a carbon copy of N.C.R. alleged to have been lodged by Matai against Pappu and two others on 22.6.1997 Ext. Ka-3 and a copy of questionnaire Ext. Ka-4.

I have heard the learned counsel for the parties and evaluated the evidence on record.

The prosecution case rests on the solitary testimony of injured Bhagwati(P.W.4). This witness and the appellants are resident of the same Village, i.e. Ahamadpur Wade. The residence of accused appellant Manna is about 150 paces from the house of Bhagwati(P.W.4). As per prosecution version injured Bhagwati(P.W.4) alone went to his field for reaping the paddy crop; time of the incident was about 3:00-4:00 a.m.; Bhagwati(P.W.4) had reaped the paddy crop in an area of 3 cubic x 4 cubic towards west of his field; the place is shown by letters A B C and D in the site plan Ext. Ka-7. Further in the statement of Bhagwati(P.W.4), he had stated that near the paddy field there is a grove of Maiku and Ram Asray and it is situated after one field from his own field. The grove of Maiku and Ram Asray is towards north of the paddy field, after paddy field of one Kallu. As alleged, both the appellants came from the grove and appellant Sinna fired at Bhagwati(P.W.4) by his half gun which did not hit him. Then, he ran and appellant Manna also ran after him and fired from his half gun, which hit at his back on the left side. This witness has also stated that it was a moon-lit night.

After sustaining injuries Bhagwati(P.W.4) did not fall down. He came to his house, which was about 500 paces away from the place of the incident. He has stated that he remained at his house up to 10:00 a.m. all alone lying in pain and agony. He has also stated that he was a rickshaw puller at Lucknow for last 3-4 years and visits his Village occasionally. This witness has stated that he went to police station all alone, on foot, which is at a distance of about 2 'Kose' from his Village. In chik F.I.R. (Ext. Ka-2), the distance of Village Ahamadpur Wade (place of occurrence) is shown to be two miles from police station. The written report (Ext. Ka-6) was prepared by Bhagwati(P.W.4) at a restaurant near police station Hasanganj, with the help of some unknown.

P.W.1 Dr. Dhirendra Singh medically examined injured Bhagwati(P.W.4) and found the injuries as mentioned above. He stated that the injuries could have been caused by some fire arm on 14.11.1997 at about 3:00-4:00 a.m. Dr. Dhirendra Singh has stated that the injuries caused were dangerous to life, they were not simple. He further stated that on the basis of X-ray report and on his own belief, he had stated that the injuries were dangerous to life. He also stated that the injury could not have been caused in the night of 13.11.1997 but immediately contradicted his statement saying that it could be of that date and time. He also stated that he did not prepare any supplementary report after X-ray report. In cross-examination, this witness stated "GOLI KITNI DUR SE CHALAYEE GAYEE THEE MAIN NAHIN BATA SAKTA".

The first contention of learned counsel for the appellants is that there is ample delay in lodging the F.I.R. and this delay has not been explained by the injured P.W. 4 Bhagwati. There is absolutely no explanation of delay in the F.I.R.; nor there is any whisper of the same in his statement adduced in court. As alleged the incident took place in between 3:00-4:00 a.m. The statement of injured Bhagwati(P.W.4) reveals that after receiving injuries he quietly came back to his house and kept lying in pain up to 10:00 a.m.; then, all alone he went on foot to lodge the F.I.R. which was registered at 13:30 hours; the distance of police station being only two miles north from Village Ahamadpur Wade. First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed the names of the actual culprits and the part played by them as well as the names of eye-witness present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after- thought. On account of delay, the report not only gets benefit of the advantage of spontaneity danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the first information report should be satisfactorily explained.

Here, in the case in hand, there is absolutely no explanation of delay at any stage, what to say, of plausible explanation. This non-explanation is, thus, fatal for prosecution. In Rajeevan and anr. v. State of Kerala, reported in (2003) 3 SCC 355, Hon'ble the Supreme Court has very categorically and elaborately explained the pros and cons with regard to F.I.R. being lodged promptly or with delay.

The point of delay in lodging the F.I.R. has not been considered by the trial court in its true perspective. The injuries were not such that injured Bhagwati (P.W.4) could not go to police station, but since he was not sure about the assailants he took time for consultation and finally went to lodge F.I.R. on his own.

The second contention of learned counsel for the appellants is that there is evidence to this effect that the first shot was fired from grove by Sinna who was at a distance of about 20 paces from north of his (Bhagwati,P.W.4) field; the grove is also on the north of his field. It has been categorically stated in the statement of Bhagwati(P.W.4) - "PEHLA FIRE BAAG SE HI HUA THA. FIRE HONE KE BAAD MAINE SINNA KO DEKHA THA." Now this statement clearly indicates this witness, P.W.4 Bhagwati, could not see the appellant Sinna firing at him.

The third contention of learned counsel for the appellants is that the medical evidence is contradictory to the oral testimony of the sole injured witness, i.e. Bhagwati(P.W.4). This witness in his cross-examination has categorically stated - "MAI KARIB PACHCHAS KADAM BHAGA TAB MANNA NE MUJHE GOLI MAREE THEE." - in the examination-in-chief, this witness has stated - "TAB MAIN BHAAGA AUR MANNA MULJIM NE DAURAKAR ADDHEE SE GOLI MAAREE". Medical evidence reveal that there was blackening and charring present all around the wound - the dispersal of injury was in the area of 20 cm x 17 cm, site plan Ext. Ka-7 also indicates that the distance between the place of firing and the shot hitting the injured Bhagwati was 30 paces. The nature of injury received by injured witness Bhagwati having blackening and charring is impossible in such circumstance. The trial court has erred in appreciating this aspect of the matter.

Hon'ble the Supreme Court in Solanki Chimanbhai Ukabhai v. State of Gujarat reported in (1983) 2 SCC 174 has observed as under :

13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.

In another decision decision of Hon'ble the apex court- Umesh Singh v. State of Bihar, reported in (2013) 4 SCC 360,it has been observed as under:

"Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."

In the present case, the nature of injury received by injured witness having dispersal of injury in the area of 20 cm x 17 cm which, in fact, could be caused from a distance but, at the same time, having blackening and charring, which can only be the result of a close range firing extended to six feet. Neither the distance shown in site plan nor the ocular evidence of injured Bhagwati support the oral testimony of the injured Bhagwati with regard to blackening and charring.

All these factual circumstances read with the aforementioned decisions of Hon'ble the Supreme Court lead to the conclusion that it is not safe to rely upon the F.I.R. and evidence adduced in the instant case.

The credibility of this witness creates doubt, though he is the sole injured witness. Admittedly, there is reason for falsely implicating the appellants indicated in the F.I.R. as well as in the statement adduced by P.W. 4, Bhagwati(injured) wherein it has been stated that, prior to the present occurrence, about a month back, Vijay Pal, brother of complainant had some altercations with the accused; complainant had protested whereupon accused had threatened him with dire consequence. Learned counsel states that there was no immediate motive for the appellants to assault the witness Bhagwati(P.W.4). There could only be reason for falsely implicating but there could be no occasion for appellants to execute the incident, as alleged, since the issue was of a month back and trivial in nature.

Moreover, the incident is of wee hours, surprising enough, how could the assailants know Bhagwati(P.W.4) would go at that time to his field to reap paddy crop. The whole incident took place without assailants uttering a single word, there was no instigation on the part of assailants; it only indicates that some-one unknown quietly fired at Bhagwati from behind and ran away, his identity was not known to Bhagwati P.W. 4 (injured) and for this reason Bhagwati did not go to lodge F.I.R. promptly but after consultation, which delayed the lodging of F.I.R., a false and concocted F.I.R. came into existence.

It is true that the evidence of the injured assumes great importance but, as stated earlier, because of the undue delay in the F.I.R. and major contradiction in ocular evidence and medical evidence, the evidence of the prosecution has been scrutinized with extra care and caution and after doing so, the only conclusion arrived at, by this Court, is that the evidence of the sole injured P.W.4 Bhagwati does not stand on the highest pedestal of integrity. Thus, judicial propriety demands that appellant Sinna and Manna be given benefit of doubt.

In view of the discussions made above and also that the trial court has not considered the prosecution evidence in its true perspective, which renders its conclusion unsustainable in the eyes of law, appellants Sinna and Manna are given benefit of doubt.

Thus, this appeal deserves to be allowed and is hereby allowed. The judgment and order dated 20.6.1998 passed by learned Sessions Judge, Unnao in Sessions Trial No.104 of 1998 is hereby set aside. Appellants Sinna and Manna are acquitted of the charges levelled against them. They are on bail. Their bail bonds are cancelled and sureties are discharged. They are set at liberty.

Office is directed to communicate this order to the court concerned forthwith for compliance of the order and lower court record be sent back.