State Of U.P. vs Virendra And Others
2014 Latest Caselaw 8849 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                           Reserved
 

 
Case :- GOVERNMENT APPEAL No. - 1441 of 2005
 

 
Appellant :- State Of U.P.
 
Respondents :- Virendra and others
 

 
Counsel for Appellant:-        Ms. Usha Kiran, AGA
 
Counsel for the Complainant:- Sri A.K. Awasthi & 
 
                                                 Sri Rakesh Kumar Srivastava
 

 
Counsel for Respondents:- Sarva Sri Arvind Kumar Singh,
 
                                               Kuldeep Kumar, Manish Tiwari,
 
                                               R.K. Srivastava 
 
                                               and Rajrshi Gupta 
 
  	     
 
Hon'ble Rakesh Tiwari,J.

Hon'ble Mrs. Vijay Lakshmi,J.

( Delivered by Hon'ble Rakesh Tiwari, J.)

Heard Ms. Usha Kiran, learned A.G.A. for the appellant-State of U.P., Sri A.K. Awasthi & Sri Rakesh Kumar Srivastva, learned counsel for the complainant, Sri Rajrshi Gupta, learned counsel for the accused-respondents and perused the record.

This Government Appeal No. 1441 of 2005 along with Criminal Misc. Application (Leave to Appeal) under Sections 378 and 378 (3) Cr.P.C. has been preferred challenging the validity and correctness of the impugned judgment and order of acquittal dated 14.12.2004 passed by the II Addl. Chief Judicial Magistrate, Gautambudh Nagar in Case No. 66 of 2004 (State Vs. Virendra and others) acquitting the accused- respondents of the charges framed against them under Sections 323,324,325, 326,504 and 506 IPC.

Briefly stated the prosecution case is that on 25.2.1999 an application was moved by complainant Bhagmal Singh before the S.O. at Police Station Dankaur, Gautambudhar to the effect that when Narmesh son of his nephew resident of village Devta was standing in front of his house at about 5.00 P.M., accused Virendra son of Rantu and Ravi son of Mani Ram resident of village Devta, who were going on bicycle, collided with Narmesh, whereupon some altercation and scuffle is said to have taken place between them which subsided on the spot.

It is further averred in the application that on account of this previous enmity on 26.2.1999 at about 6.30 A.M. when Narmesh was returning after attending call of nature from the field, accused Virendra, Ravi and Mani Ram armed with lathis fitted with Farsa came and started assaulting him and when his brother Trimesh came to save him he was also assaulted. Hearing the hue and cry, Kalu Ram, Ranjit and many other persons of the village came there and saw the incident. Seeing the villagers the accused persons ran away towards Gaye Gadhi Azampur abusing and threatening to kill Narmesh and Trimesh. After medical examination of injured Narmesh, the report of the incident was lodged at Police Station Dankaur, District Gautambudh Nagar, which was registered at case crime no. 22 of 1999, under Sections 323,324, 325,326,504 & 506 IPC. After completing the investigation, the I.O. submitted chargesheet against all the the accused persons.

Charges for the offence punishable under Sections 323,324, 325,326,504 & 506 IPC were framed against the accused persons by the II Addl. Chief Judicial Magistrate, Gautambudhnagar. The accused persons denied the charges and claimed trial.

In order to prove its case the prosecution examined eight witnesses namely, injured Narmesh (PW-1), complainant Bhagmal (PW-2), injured Trimesh (PW-3), Dr. Satish Kumar (PW-4), Dr. V.K. Gaur (PW-5), Jagvir Singh (PW-6), Lekhraj Sharma (PW-7) and Dr. Praveen Bhatia (PW-8).The accused persons in their statements under Section 313 Cr.P.C. denied the allegations levelled against them stating that they have been falsely implicated in this case.

After considering the evidence and material on record as well as hearing the counsel for the parties, the learned trial Court acquitted the accused-respondents vide judgment and order dated 14.12.2014 holding that the prosecution has failed to prove its case beyond all reasonable doubts.

The State of U.P.-appellant has preferred this Government Appeal assailing the aforesaid judgment on the ground that delay in lodging the FIR has been properly explained as both the injured namely, Narmesh (PW-1) and his brother Trimesh (PW-3) were taken to PHC Sikandrabad where the Doctor referred them for treatment to District Hospital, Bulandshahr and from where they were referred to All India Institute of Medical Sciences, Delhi and the treatment was going on when the FIR was lodged; that a perusal of the judgment of the trial Court would show that Narmesh had sustained 3 incised wounds on his palm and 2 abrasions on his thigh and leg. After x-ray his ring finger was found to be fractured and his small finger was chopped off while Trimesh had sustained 3 incised wounds on his head and an abrasion; that no details regarding scuffle amongst accused due to which they had sustained injuries is mentioned in the judgment; that there is no material improvement in the evidence; and that the prosecution has examined three eye witnesses including two injured, hence the judgment of the trial Court is liable to be set aside.

Per contra, Sri Rajrshi Gupta, learned counsel for the accused-respondents has supported the judgment of the trial Court and has submitted that the FIR has been lodged with delay of more than two and a half days which has not been properly explained.

Learned counsel for the respondents, while drawing our attention to the statement of I.O. has submitted that the I.O. has categorically stated that complainant Bhagmal had given a statement to him that the injured persons had a scuffle among each others in which they had sustained injuries which clearly goes to show that the two injured caused injuries to each other and a forged and fictitious FIR was lodged against the accused persons after two and a half days in order to falsely implicate the accused persons due to village politics and ill-will; that there are serious contradictions in the testimony of the prosecution witnesses and the medical evidence in as much as Dr. Satish Kumar (PW-4) has clearly stated that no injuries were caused by sharp edged weapons which completely demolishes the prosecution case of Farsa being used during scuffle in which incised wounds had been caused in the manner stated by the complainant. Learned counsel for the respondents has filed written submissions and the true copy of injury report of Narmesh in proof of the fact that no incised wound was found on the body of Narmesh. It has been submitted that learned trial Court has wrongly mentioned them as incised wounds in the judgment.

He next submits that there is no evidence, either ocular, or documentary which may suggest that the little finger of injured Narmesh had sustained injuries in the scuffle; that in fact the injury report of Narmesh shows that all the injuries were lacerated wounds or abrasions, which clearly goes to show that little finger of injured Narmesh was amputated and was not cut in this particular incident, which fact is supported by the statements of Dr. Satish Kumar (PW-4) and Dr. V.K. Gaur (PW-5).

He also submits that the Investigating Officer during the investigation did not find any evidence to support the allegations of scuffle having taken place as alleged by the prosecution witnesses. No illegality has been committed by the trial Court in the impugned judgment warranting any interference by this Court.

From the record, it appears that I.O. has not stated in his evidence that the injuries sustained by the injured were caused by the accused persons. To the contrary, the I.O. has stated that the injured had received injuries in the scuffle between themselves. It has been mentioned in the FIR that the accused persons were assaulting the injured by Lathis fitted with Farsa. This fact has also been admitted by injured Narmesh (PW-1),Trimesh (PW3) and complainant Bhagmal (PW-2) in their statements,who have stated that the accused persons had caused injuries by lathis fitted with Farsa but no incised wounds were found on the person of injured as mentioned in the medical report, which is evident from the statement of Dr. Satish Kumar (PW-4) which goes to show that handle part of Farsa or lathi might have been used.

On the basis of the aforesaid facts, learned counsel for the respondents has submitted that it is abundantly clear that there are major contradictions in the statements of prosecution witnesses as well as medical evidence. No independent witness has been examined by the prosecution. The occurrence is said to have taken place on 26.2.99 at about 6.30 A.M. whereas the FIR was lodged at police station Dankaur on 28.2.99 at 14.00 hours, hence there was delay of two and half days in lodging the FIR, which has not been properly explained.

After hearing learned counsel for the parties and on perusal of the impugned judgment we are of the considered opinion that in the cumulative circumstances of unexplained long delay in lodging the FIR after two and a half days and material contradictions in ocular testimony of the prosecution witnesses with the medical evidence supported by the statements of the Doctors as well as by the I.O., the prosecution has miserably failed to prove the guilt of the accused persons beyond reasonable doubt and the trial Court on these considerations has rightly acquitted the accused persons from the charges under Sections 323, 324,325, 326, 504 & 506 IPC framed against them.

For the reasons stated above, the judgment impugned is confirmed and we do not find this appeal, a case for interference by this Court. Accordingly, the prayer for leave to appeal is rejected. As a consequence, the Government Appeal is also dismissed.

Dated 20.11.2014

CPP/-