Raj Kumar vs State Of U.P. & Others
2014 Latest Caselaw 7472 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 36
 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 5901 of 2010
 
Appellant :- Raj Kumar
 
Respondent :- State Of U.P. & Others
 
Counsel for Appellant :- A.K. Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(By Hon'ble Mrs. Vijay Lakshmi,J.)

This appeal has been preferred by the complainant Raj Kumar under Section 372 Cr.P.C. against the judgment and order dated 23.7.2010 passed by Addl. Sessions Judge, Court no. 1, Banda in S.T. No. 02 of 2009 (State vs. Ram Singh & anor) under section 304/34 IPC., (Case Crime No.277 of 2008), P.S. Naraini, District Banda.

The order sheet shows that since three consecutive dates i.e. 25.7.2014, 2.8.2014 and 8.8.2014 nobody was appearing in the Court from the side of appellant. However, in the interest of justice, the hearing was adjourned.

Today also, no one is present on behalf of the appellant even in the revised call and also on behalf of respondent nos. 2 and 3.

As the appeal is pending since long, it appears just and proper to decide it on merits after hearing learned AGA who is appearing on behalf of opposite party no.1.

We have heard learned AGA for the State and have carefully perused the records.

This is an appeal against the judgment of acquittal. The learned Trial Court has acquitted both the accused persons (respondent nos. 2 and 3) from the charges under sections 304/ 34 I.P.C.

Some background facts giving rise to this appeal are that an FIR was lodged by informant /appellant Raj Kumar to the effect that on 23.9.2008 at about 12 p.m. in the afternoon, accused Ram Singh, in a drunken state started beating his wife. Seeing this, his sister in law Radha, w/o Chunka raised alarm with the words "douro Ram Singh apni patni ko peet raha hai." Hearing the alarm, his deceased brother Chunka alias Chunku reached there to save her. On this, accused Ram Keshan caught hold of him and exhorted accused Ram Singh with the words " ise bhi maro". Hearing this, Ram Singh gave a blow of danda on Chunku's head, who fell unconscious after sustaining the danda injury on his head. The complainant and the villagers took him to PHC Naraini, from Naraini, he was referred to District Hospital, Banda and from there he was taken to Excel Hospital, Kanpur. On 26.9.2008 after returning from Kanpur, he was again admitted in District Hospital, Banda where he succumbed to his injuries and died on the same day at noon.

A written report was lodged on 28.9.2008 at 2:30 p.m. i.e. on 29.9.2008 and on the basis of this written report a criminal case under section 304 IPC was registered at Case Crime No.277 of 2008. The dead body of Chunku was sent for post mortem. The police investigated the matter and at the instance of accused Ram Singh recovered the danda which was used as a weapon of offence. After conclusion of investigation, the police submitted charge sheet against both the accused/ respondents (nos. 2 and 3) in the court. Charge was framed under Section 304/34 IPC against both the accused persons who denied the charges and claimed their trial.

The prosecution examined the complainant Raj Kumar as P.W.1, Smt. Radha w/o deceased Chunka as PW-2, Constable Ramakant Yadav as P.W.-3, Raj Kumar S/o Chunbadi as P.W.-4, Dr. Gyanendra Nikhra as P.W.-5 and the Investigating Officer Raj Narain Singh as P.W.-6.

The following documentary evidence was also adduced by the prosecution which are written report-Ex.Ka-1, Check FIR-Ex.- Ka .2, G.D. Entry-Ex.Ka-3, Site plan-Ex.Ka-5, recovery memo of Danda-Ex.Ka-6, P.M.Report-Ex.Ka-4, site plan of recovery of danda-Ex.Ka-7, charge sheet-Ex.Ka-8, Panchayat Nama-Ex.Ka.9, sample of seal-Ex.Ka-10, letter to R.I.-Ex.ka-11, letter to CMO- Ex.Ka.-12 photonash-Ex.Ka-13, and police form no.13-Ex.Ka.14.

After conclusion of the prosecution evidence, the accused persons were examined under section 313 Cr.P.C. in which they stated that Chunku was cutting woods after climbing on the tree and due to break of branch of tree, he fell down and sustained injuries on his head and died after few days. His wife Radha had taken Rs.40,000/- from the accused persons for his treatment and with a malafide intention of not returning such amount to them, deceased's brother Raj Kumar lodged a false case against them.

The learned Trial Court while appreciating the evidence adduced by the both the parties considered the following eight points.

1.Delay in lodging the FIR

2.Non production of witnesses from vicinity by prosecution.

3.Omission, contradiction and improvement by prosecution witnesses.

4.Corroboration of ocular evidence with medical evidence.

5.Proof of recovery of danda.

6.Alternative possibility of death of deceased falling from tree.

7.Credibility of defence witnesses.

8.Whether the prosecution has proved the place of occurrence, time of occurrence, manner of occurrence beyond reasonable doubt.

Regarding point no. 1, the learned Addl. Sessions Judge was of the opinion that there is a delay of five days in lodging the FIR without any plausible explanation for the same.

With regard to 2nd point relating to non-production of witnesses from the vicinity, the learned court below was of the opinion that no one except the accused persons, Ram Singh's wife Smt. Rammo and deceased Chunka have been shown to be present on the spot at the time of occurrence. Chunka died in the occurrence and Smt. Rammo, wife of Ram Singh whom accused Ram Singh was beating at that time, has not come to depose in court against her husband, which is her natural conduct being the wife of accused Ram Singh. On the basis of this fact, the learned Sessions Judge did not find any force in the argument of learned counsel for the accused person that no independent witness from the vicinity had been produced by the prosecution.

On point no. 3, the Court below was of the opinion that admittedly P.W.-1 was not present at the time of occurrence and the statement of Smt. Radha-P.W.-2, the sole eye-witness suffers from material contradictions, discrepancies and improvements.

The point no. 4 is related to corroboration of ocular evidence. The learned Trial court was of the opinion that there is no material contradiction between medical evidence and ocular evidence in this case.

On point no. 5 relating to the proof of recovery of danda, the learned court below has expressed its view after appreciating the evidence available on record in detail and has opined that the recovery of danda at the instance of accused Ram Singh is not reliable because the memo of recovery does not bear signatures of any public witness nor any signature of some police official accompanying the Investigating Officer is on the recovery memo, More so, no site plan of the place of recovery of danda has been prepared by the Investigating Officer, the place from where the danda was alleged to be recovered at the instance of accused Ram Singh is easily accessible to the public. The Investigating Officer has not recorded the statement of accused in the diary before proceeding to the place of recovery nor he has given the opportunity to the accused to repeat the same information in presence of 'Panch'.

In view of the aforesaid facts, the learned Trial court found that the prosecution has miserably failed to prove the recovery of danda at the instance of accused Ram Singh.

So far as point no. 6 relating to the alternative possibility of death of the deceased by falling from tree is concerned, the learned court below has relied on the statement of P.W.-3 Constable Ramkant Yadav, who had stated that Crime No. 276 of 2009 was initially registered under section 304-A IPC in this case. In Original G.D. Section 304-A IPC was recorded twice and Crime No.276 of 2008 was also recorded twice. However, the G.D. produced in the court as Ex.Ka-3 has over-writing and after over- writing crime no.277 of 2008 and Section 304 IPC have been written by pen. P.W.-3 Constable Ramkant Yadav has further stated that there is also over writing and cutting in the check FIR wherein 'A' is deleted from section 304-A I.P.C..

The aforesaid statement of P.W.-3 Constable Ramakant finds corroboration with the statement of Chief Pharmacist-Raja Hussain produced as D.W.-1 who has depose in the court that Dr. P.S. Sagar had examined the injuries of Chunka on 20.9.2008 at 4:30 p.m. and these injuries were recorded in accidental injury register. D.W.-1 has further stated that accused Ram Singh had borne the expenditure for the treatment of the deceased. In support of his contention, defence had filed a paper No.38 Kha to prove the fact that expenditure of treatment of deceased Chunka were borne by accused Ram Singh. The court below was of the opinion that there is no reason to disbelieve the evidence of D.W.-1 who is an independent witness and whose statement finds corroboration with that of the prosecution witness P.W.-3 himself, who is also an independent witness.

The point Nos. 7 and 8 relating to the credibility of defence witness and the credibility of prosecution story were decided in favour of accused respondent by learned court below on the basis of the appreciation of evidence on point nos. 1 to 6. Consequently, the learned trial court acquitted the accused respondent finding them not guilty.

On a close scrutiny of the impugned judgement and after appreciating the evidence available on record, we do not find any reason to deviate with the view of the trial court and we are also of the firm view that the prosecution has failed to prove its case beyond reasonable doubt against the accused persons. There is a delay of five days in lodging the FIR without any plausible explanation for the same, no independent witness has been produced by the prosecution. The recovery made under section 27 of Evidence Act at the instance of accused respondent Ram Singh is not reliable as it has not fulfilled the mandatory requirements of law. There is cutting and over writing on the check FIR and it is clearly evident that the letter 'A' written against section '304' has been deleted and case crime no. 276 has been converted to '277'. All these facts create strong doubt in the prosecution story. The lower court below keeping in view the aforesaid discrepancies and embellishments has rightly acquitted the accused persons by the impugned judgement and we do not find any reason to interfere in the same .

The appeal being devoid of merit is liable to be dismissed and is, dismissed accordingly.

Order Date :- 13.10.2014

Ps/.