Jabir & Others vs State Of U.P.
2016 Latest Caselaw 4100 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgement Reserved on 29.4.2016
 
Judgement Delivered on 12.07.2016
 
1.	Case :- CRIMINAL APPEAL No. - 1401 of 2013
 
Appellant :- Jabir & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajesh Kumar Pal,P.K.Singh,Yogesh Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
with 
 

 
2.	Case :- CRIMINAL APPEAL No. - 1255 of 2013
 
Appellant :- Shivnath Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajiv Gupta,Dileep Kumar,Rajrshi Gupta,Shristi Gupta
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Om Prakash-VII,J.

1. Since these criminal appeals have been heard at length and are being decided by a common judgment and order on merits, the Criminal Misc. 2nd Bail Application No. 47366 of 2014 filed on behalf of the applicants/appellants in Criminal Appeal No. 1401 of 2013 has become infructuous and the same is dismissed as having become infructuous.

2. Now the court proceeds to decide the present criminal appeals.

3. These criminal appeals have been preferred by the accused/ appellants against the judgement and order dated 12.3.2013 passed by the Additional District & Sessions Judge, Court No.3, Ballia in Session Trial No. 96 of 1999 (State of U.P. vs. Murtaza and others) convicting and sentencing the appellants Jakir and Kadir for the offences punishable under Sections 148, 307, 333, 336/149, 504, 506 IPC and 7 Criminal Law Amendment Act and fine was also imposed. Appellants Jabir and Shivnath Singh were convicted and sentenced for the offence under Sections 147, 307/149, 333/149, 336, 504, 506 IPC and 7 Criminal Law Amendment Act as also fine. All the sentences have been directed to run concurrently.

4. Since these criminal appeals have been filed against the same judgement and order, the same have been heard together and are being decided by a common judgment.

5. The facts of the case, as unfolded by the informant Devendra Dhar Dwivedi, Sub-Inspector, Police Station, Phephna in the First Information Report (in short 'F.I.R.'), are that on 16.3.1999 at about 22.30 p.m. the informant alongwith the police personnel, namely, constable 839 Ranjeet Singh, constable 540 Krishnanand Tiwari, constable 151 Rajesh Yadav, constable 744 Irshad Ahmad and constable 128 Dev Vrat Tiwari had gone to the house of accused Murtaza, who was wanted in case crime no. 45 of 1999, under Sections 457, 380 IPC, to trace/ search the accused Murtaza as also for looted property. As and when, on the road before the house of Murtaza, they were making enquiry about Murtaza, all of sudden, Murtaza son of Shakoor, Kadir son of Murtaza armed with farsa and Zakir son of Murtaza having bricks and stick and the neighbour Shivnath Singh son of late Ramdev Singh having bricks in his hand came out exhorting from the house of Murtaza, and hurling abuses said to kill the police personnel since they had arrested Nazir son of Murtaza in a case of theft. The informant and his companions withdrew themselves from the said place and came at the cemented road. In the meantime, they (accused persons), pelting the stone indiscriminately, began to beat the police personnel. The police personnel began to hide themselves with a view to escape from injury. All the above five persons, surrounding the constable Dev Vrat Tiwari with intention to kill, began to beat him. Murtaza, Kadir and Zakir with intention to kill him on his head and face beaten badly with sharp edged weapon due to which he received serious injuries and was fainted. When alarm was made, people rushed towards the place of incident and a voice also came towards police station, then the accused persons spared Dev Vrat Tiwari. He was serious. Police personnel had also received injuries of bricks and stone. Accused were habitual criminal and they threatened to kill the police personnel. They also exhorted that in future police personnel will not be spared. The above persons (accused) knowingly created hindrance in official work and caused injuries to the government servant. Jabir and Murtaza were apprehended and brought to the police station explaining the reasons for their arrest for the offence under Section 380/457 IPC and 4/25 Arms Act from the place of incident.

6. On the basis of the said written report (Ext. Ka-1), Chik - First Information Report (in short 'FIR') was registered on the same day at 22.45 hours at the concerned Police Station at Crime No. 46/99 under Sections 147, 148, 307, 333, 336, 504, 506 IPC and 7 Criminal Law Amendment Act. G.D. Entry ( Ext. ka-6) was also made.

7. Injured Krishna Nand Tiwari was medically examined on 17.3.1999 at 5.30 p.m. Following injuries were found on his body:

"1. Red scabed abrasion 3 cm x 2 cm on the upper aspect of front of left shoulder joint.

2. Redish bluish contusion 3 cm x 2 cm on the lateral aspect of Rt arm in middle.

3. Redish bluish faint contusion 4 cm x 2.5 cm on the upper aspect of left gluteal region.

4. Swelling 4 cm x 3 cm on the right back of Rt arm above the Rt elbow."

8. According to the doctor, injuries were simple in nature.

9. Injured Rajesh Yadav was medically examined on 17.3.1999 at 5.15 p.m. Following injuries were found on his body:

"1. Redish blue contusion 4 cm x 2.5 cm on the lateral aspect of Rt forearm 10 cm below the Rt elbow joint.

2. Redish blue contusion 6 cm x 3 cm on the lateral aspect of left arm 7 cm about the left elbow joint.

3. Redish blue faint contusion 4 cm x 3 cm on the lateral aspect of Rt leg 15 cm below the Rt knee joint."

10. According to the doctor, injuries were simple in nature.

11. Injured Dev Vrat Tiwari was medically examined on 16.3.1999 at 11.50 a.m. Following injuries were found on his body:

"1. Incised wound 6 cm x 0.75 cm muscle deep on the Rt cheek about 1 cm in front of the R Ear. Fresh blood oozing.

2. Incised wound 5 cm x 0.75 cm x bone deep on the left side of the forehead above the L eyebrow - fresh blood.

3. Incised wound 2.5 cm x 0.5 cm x bone deep on the back side of occipital region of the skull - fresh blood.

4. Incised wound 1 cm x 0.2 cm x muscle deep - fresh blood on the middle phalanx of the left middle finger.

5. Incised wound 0.75 cm x 0.1 cm x muscle deep on the tarmental phalanx of the left index finger.

6. Incised wound 3 cm x 0.5 cm x bone deep on the R parietal region of the skull about 10 cm above the R ear - fresh blood."

12. Injuries were kept under observation. According to the Doctor, the injuries were caused by sharp object end.

13. Station Officer, P.S. Phephna proceeded to investigate the matter. He copied the chick FIR and G.D. in the case diary and also recorded statement of chik writer as well as the accused Murtaza and Zakir. He inspected the spot and prepared the site plan (Ext. ka-7) showing all the details in it. He also made search of accused persons. He also recorded statement of other witnesses on different dates.

14. After completing the investigation, charge-sheets (Ext. ka-9-10) against all the accused appellants were filed. Concerned Magistrate took the cognizance. The case being exclusively triable by the sessions court, was committed to the Court of sessions.

15. Accused/appellants appeared and charge under Sections 148, 307, 333, 504, 506, 336/149 IPC and 7 Criminal Law Amendment Act was framed in the trial court against Murtaza, Zakir and Kadir and under Sections 147, 307/149, 333/149, 504, 506, 336 IPC and 7 Criminal Law Amendment Act was framed against Jabir and Shivnath Singh. All the accused pleaded not guilty and claimed their trial.

16. Trial proceeded and in order to prove its case, the prosecution examined ten witnesses, wherein PW-1 C.P. Ranjeet Singh, PW-2 Constable 128 Dev Vrat Tiwari, PW-3 Bharat Bhushan Verma, PW-4 Constable 151 Rajesh Yadav, PW-5 retired S.I. Devendra Dhar Dwivedi, PW-6 Dr. Amod Kumar, PW-7 Dr. C.I. Raza, PW-8 Head Constable Krishna Avatar Singh, PW-9 Constable Meraj Ahmad Khan and PW-10 retired S.I. Vijay Nath Tiwari. In documentary evidence, the prosecution has filed written report (Ext. ka-1), injury reports of Krishnanand Tiwari (Ext. ka-2), Rajesh Yadav (Ext. ka-3), Dev Vrat Tiwari (Ext ka-4), first information report (Ext. ka-7), charge-sheet in case crime no. 46 of 1999 (Ext. ka-8) and charge-sheet in case crime no. 47 of 1999 (Ext. ka-9).

17. After closure of the prosecution evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded. Accused Murtaza died during trial hence trial against him was abated during trial itself.

18. Accused persons in their statements under Section 313 Cr.P.C. denied the allegations levelled against them and stated that they are innocent and the whole prosecution story is false. Accused Zakir and Jabir have said that they are poor labourer. They were hired by police without any payment and when they refused, the police has concocted the present story against them. Accused Shivnath Singh has said that he was not present on the spot on the day of alleged incident.

19. After hearing the learned counsel for the prosecution and defence, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused/appellants beyond reasonable doubt and the accused / appellants were convicted and sentenced, hence these appeals.

20. I have heard S/Shri Dilip Kumar and P.K. Singh, learned counsel for the appellants in both the appeals and Shri Z.K. Hasan, learned AGA for the State, and have gone through the entire record.

21. Castigating the impugned judgement and order, learned counsel for the appellants have submitted that the appellants are innocent and have been falsely implicated in the present case. Prosecution case has not been supported by any independent evidence. Medical evidence is also doubtful. Place of occurrence is in the vicinity of dense populated area but the prosecution case is not supported by any person of the locality. It was further submitted that the prosecution could not prove its case beyond reasonable doubt as the motive / reason to remain present of the prosecution witnesses on the spot was not established. Crime No. 45 of 1999 is said to have been lodged against the accused Murtza (deceased-non-appellant) but the evidence to this effect was not adduced before the court concerned nor the weapon said to have been used in the crime was produced by the prosecution. In absence of such evidence, the opinion formed by the court below is perverse and illegal. It was next submitted that the appellant Shivnath Singh has been implicated in this matter as the police bore enmity with him because Shivnath Singh was resisting/protesting the local police for their wrong doings. It was further submitted that there is contradictory statement of the witnesses on the point of arrest of Murtza (deceased-non-appellant) before starting of the present incident. The recovery is also false. The findings recorded by the trial court regarding injuries said to have been sustained by the police personnel are also against the fact and law. The impugned order suffers from infirmity and illegality warranting interference by this Court.

22. On the other hand, Shri Z.K. Hasan, learned AGA appearing for the State has submitted that co-accused Murtza (deceased-non-appellant) was wanted in Crime No. 45 of 1999. The local police had gone to the place of occurrence in search of Murtza (deceased-non-appellant) and the properties said to have been looted and when the police tried to apprehend Murtza, accused persons objected the police personnel and caused injuries to them. At this juncture, learned A.G.A. refered to the injury reports and submitted that the injuries found on the body of the injured could be caused by the weapon assigned to the appellants. Appellant Shivnath Singh has also participated in the matter and caused resistance to the public servants to deter the public duty. The findings recorded by the trial court in the impugned judgment and order is in accordance with the evidence available on record. It was next contended that the motive has been clearly established by the prosecution. Non-furnishing the G.D. entry relating to Crime No. 45 of 1999 will not be sufficient to discard the oral statement of the prosecution witnesses. It was further submitted that the statement of prosecution witnesses can also not be discarded merely on this ground that they are police personnel. The prosecution case is supported by medical evidence. Appellants were arrested on the spot. P.W.-2 Devbrat Tiwari has sustained serious injuries. Hence, in the circumstances, the impugned order does not suffer from any infirmity or illegality.

23. I have considered the rival submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence.

24. In the present matter, the trial court's findings are that the prosecution was able to establish the motive, place of occurrence, time of incident and participation of the accused persons beyond reasonable doubt. The first information report is not an anti-timed document. Laches said to have been occurred on the part of the Investigating Officer are not sufficient to discard the evidence of the injured witnesses. Thus, the charge framed against the appellants were found proved beyond reasonable doubt.

25. Before analyzing the findings recorded by the trial court in the impugned judgment and order with the submissions advanced by the learned counsel for the parties and also the evidence available on record, it will be useful to note the admitted facts between the parties, which are as under:

(i) Place and time of occurrence is not disputed.

(ii) Prosecution could not furnish documents / papers relating to crime no. 45 of 1999, said to have been registered at police station concerned against co-accused Murtza (deceased - non-appellant), in regard to which the prosecution witnesses claim their presence on the spot.

(iii) Prosecution case is that all the injured were medically examined on 16.3.1999 but the injury reports (Ext. ka-2 & 3) regarding Krishna Nand Tiwari and Rajesh Yadav indicates that medical examination was done on 17.3.1999.

(iv) On the spot, police personnel were armed with the weapons issued to them but said weapons were not used by them in the incident.

(v) Shivnath Singh is not family member of the other accused.

26. Now the court proceeds to deal with the submissions made by the learned counsel for the parties.

27. First and foremost question in the present matter is as to whether the prosecution was able to establish the motive / reason of the presence of the police personnel on the date and time at the place of occurrence.

28. Although I am oblivious of the fact that motive relegates into the back ground in a case of direct ocular testimony and is not of much significance, but where the motive is false and cooked up, then it assumes importance to test the veracity or other wise of the prosecution witnesses.

29. As is evident from the FIR and the statement of prosecution witnesses, the present incident took place when the local police had gone to the place of occurrence in connection with case crime no. 45 of 1999 under Sections 457, 380 IPC in search of accused Murtza but no documentary evidence to establish this fact as to whether crime no. 45 of 1999 was related to the offence stated by the prosecution witnesses has been filed. The present matter is related to crime nos. 46 of 1999 and 47 of 1999. Thus, the burden to prove the time and date of the registration of crime no. 45 of 1999 was upon the prosecution. The trial court finding on this point is that motive / reason regarding the presence of the police personnel on the date and time at the place of occurrence was established by the prosecution beyond reasonable doubt. Since the prosecution could not adduce any documentary evidence on this point, then in absence of such evidence, the finding recorded by the trial court on the point of motive is not sustainable. In this matter, it cannot be said that on the basis of statement of eye account witnesses motive has no significance. There is specific plea of the prosecution regarding motive/ reason of presence of the police personnel on the date and time at the place of occurrence and the entire prosecution story rests on the motive taken by the prosecution. In the instant case, police personnel are said to have received injuries. One constable Dev Vrat Tiwari has received serious injuries but the manner in which the injuries were said to have been caused by the appellants to the police personnel are improbable and unbelievable. Several police personnel, present on the spot, were armed with revolver and rifle but they have not used the same in their defence rather they saved themselves by hiding. There is contradiction in the statement of PW-1, PW-2 and PW-3 on the point as to whether the accused Murtaza was apprehended before start of the present incident or not and also on the point of time of medical examination of the prosecution witnesses said to have sustained injuries in the present matter. PW-5 in the cross-examination has admitted that none of the accused was named in crime no. 45 of 1999. This fact also supports the submission raised by the learned counsel for the appellants. Hence, it appears that the prosecution has suppressed the origin and genesis of the incident as only one constable Dev Vrat Tiwari has received serious injuries in the matter. Injury reports said to have been prepared in regard to other injured are also not believable as there is contradictory statement of the prosecution witnesses regarding date and time of preparation of those reports. Further, PW-5 has not disclosed the name of the persons who rescued them. The weapon said to have been used in the crime was also not produced before the Court.

30. So far as the laches in investigation are concerned, the Apex Court in Kailash Gour and others vs. State of Assam, (2011) 13 Scale 549 has held that:

".....................That an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the alter of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution......."

31. Upon careful analysis and consideration of the settled legal position in the backdrop of the facts and circumstances of the present case, I am of the opinion that the conclusion taken by the trial court regarding motive and manner of committing the offence is not in accordance with law and the evidence available on record and the prosecution appears to have suppressed the origin and genesis of the occurrence due to which the documentary evidence regarding Crime No. 45/1999 was not produced. Thus, this Court is of the view that the prosecution has not been able to establish the guilt of the accused appellants beyond reasonable doubt. Hence, the Court is inclined to grant benefit of doubt to the accused appellants on the ground of rule of caution.

32. In view of the above discussions, we are of the opinion that the prosecution has failed to establish the guilt of the accused appellants Jakir and Kadir for the offences punishable under Sections 148, 307, 333, 336/149, 504, 506 IPC and 7 Criminal Law Amendment Act and accused appellants Jabir and Shivnath Singh for the offences punishable under Sections 147, 307/149, 333/149, 336, 504, 506 IPC and 7 Criminal Law Amendment Act beyond reasonable doubt and to the satisfaction of the judicial conscience of the court. So, the impugned judgement and order of conviction and sentence dated 12.3.2013, which has been sought to be assailed, call for and deserves, interference. The criminal appeals are liable to be allowed.

33. Accordingly, criminal appeal nos. 1401 of 2013 and 1255 of 2013 are allowed and the conviction and sentence imposed upon the accused appellants Jakir and Kadir for the offences punishable under Sections 148, 307, 333, 336/149, 504, 506 IPC and 7 Criminal Law Amendment Act and accused appellants Jabir and Shivnath Singh for the offences punishable under Sections 147, 307/149, 333/149, 336, 504, 506 IPC and 7 Criminal Law Amendment Act are set-aside as the accused appellants Jakir, Kadir, Jabir and Shivnath Singh are found not guilty for the aforesaid offences. They are acquitted of all the charges framed against them. Accused appellant(s) on bail need not surrender. Their bail bonds are cancelled and sureties are discharged. The accused appellants, who are in jail, be released forthwith in case they are not wanted in any other case / crime.

34. Copy of this judgement be also kept on the record of Criminal Appeal No.1255 of 2013.

35. Copy of this judgement alongwith lower court record be sent forthwith to the Sessions Judge, Ballia for compliance. Compliance report be sent to this Court.

Order dated : 12.07.2016

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