Kripa Ram vs State Of U.P.
2016 Latest Caselaw 2517 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. 25                                                     A.F.R.      
 
								     Reserved
 

 
                      
 
			Criminal Appeal No. 614 of 1997
 

 

 
Kripa Ram and others                              .....................Appellants
 

 
                                          Vs. 
 
State                                                          ................Respondent
 
                                          
 
                                   *************
 

 
Hon'be Aditya Nath Mittal, J.

During the pendency of this appeal,appellant No.1, Kripa Ram has passed away. Therefore, the appeal filed by appellant No.1, Kripa Ram has been abated against him and the appeal survives against rest appellants.

Heard Shri Salil Kumar Srivastava, learned counsel for appellants 2,3,4,6,7 and 8, Shri Narendra Gupta, learned counsel for appellant no. 5, learned AGA and perused the record.

This criminal appeal has been preferred against the judgment and order dated 30.09.1997 passed by II Additional Sessions Judge, Bahraich in Sessions Trial No. 185 of 1994 relating to case crime no. 91 of 1993 under sections 147,148,149,307,504,506 and 323 Indian Penal Code (For short IPC), police station-Gilaula, District-Bahraich (now District Shrawasti), whereby the appellants have been convicted and sentenced for the offences punishable under section 147 with rigorous imprisonment of six months, under section 148 IPC with rigorous imprisonment of one year, under section 325/149 IPC with rigorous imprisonment of two years and a fine of Rs. 2000/- and under section 307/149 with rigorous imprisonment of seven years and a fine of Rs. 3000/-.

The facts giving rise to the present appeal are that complainant Lal Sahab Pandey lodged the report on 3.7.1993 at 7.15 a.m. at police station Gilaula alleging therein that on 3.7.1993 at about 5.30 a.m., his father had gone to field for natural call. At about 5.45 a.m., due to the dispute of partition of the property, the accused persons armed with lathi abused his father and intercepted him. When his father tried to run away towards his house, then upon the exhortation of Daddan, accused Kripa Ram had caused fire arm injury upon his father with the intention to kill him. Upon further exhortation of Baburam, all the accused persons started beating his father by lathi. Upon his alarm, he and Nanke alias Kandhai Lal, Tularam and other villagers came to the spot for rescue. By seeing them, the accused persons ran away towards east.

Upon this information, the case at case crime no. 91 of 1993 under sections 147,148,149,307,504,506 and 323 IPC was registered against the appellants at police station-Gilaula, District-Bahraich. After investigation, the charge-sheet was filed against the appellants.

The prosecution has examined Dr. A.K.Sant as P.W. 1, Constable Imtiyaz Ahmad as P.W. 2, Tularam as P.W. 3, Kanhaiyalal Tripathi as P.W.4, Lal Sahab Pandey (complainant) as P.W. 5 and S.I. Santram as P.W. 6.

After recording the evidence of the prosecution, the statements of the accused appellants were recorded under section section 313 Cr.P.C., in which they have denied the evidence.

After appreciating the evidence on record, learned court below has convicted the appellants for the offences punishable under sections 147,148,325/149 IPC and 307149 IPC. and accordingly sentenced them.

Learned counsel for the appellants has submitted that witnesses Tularam (P.W.3) and Kanhaiyalal Tripathi (P.W.4) have not supported the prosecution version and the injured has also died. Therefore, he has not been examined. There remains the solitary statement of complainant Lal Sahab Pandey (P.W.5). It has also been submitted that although the genuineness of the medical report has been admitted, but it was incumbent upon the prosecution to have examined the doctor who conducted X-ray of the injured. Therefore, the injury report cannot be read in evidence. It has also been submitted that the fire arm injuries were caused by accused Kripa Ram, who has already died. The injuries were on non vital part of the body, therefore, offence punishable under section 307 IPC is not made out. All these injuries are simple and are on non vital part of the body, the offence under section 307 IPC is not proved. It has further been submitted that there are various material contradictions in the statement of the sole eye witness and his presence on the spot of occurrence is not proved. Therefore, his statement cannot be believed. It has also been submitted that there are defects in the statements under section 313 Cr.P.C, therefore, the appellants are entitled to get benefit of it.

On the other hand, learned AGA has defended the impugned judgment and order passed by the learned trial court and has submitted that although the injured has died after seven days of the incident due to natural death, but the FIR's version is corroborated by the statement of complainant Lal Sahab Pandey (P.W.5), who is the son of the injured. It has also been submitted that there is no glaring mistake in the findings of learned trial court.

Learned counsel for the appellants has placed much emphasis on the point that because the medical examination report was not proved, therefore, it cannot be read in evidence. In this regard, learned counsel for the appellants has relied upon Ram Deo Vs. State of Bihar, 1988 Crl.L.J. 1431, Ganpat Raoji Vs. State of Maharashtra, 1980 Crl.L.J 853, Nagina Sharma and others Vs. The State of Bihar, 1991 (2) Crime 453. The gist of the said law is that because the injury report is not a substantive piece of evidence, therefore, the genuineness if admitted under section 294 Cr.P.C., will not prove the injuries and the doctor should have been examined who had seen the injuries.

In this case, Dr. A.K.Sant had been examined as P.W.1, who had examined the injured on the date of incident and he has proved the injuries on the body of the injured. It is not disputed that doctor, who had conducted the X-ray and prepared the X-ray report, has not been examined and the accused persons had admitted the genuineness of the document. As far as the laws relied upon by the learned counsel for the appellants is concerned, they are not applicable to the present set of facts because in the present case, Dr. A.K.Sant has been examined as P.W. 1, who has proved the injuries on the body of the injured. As far as the non production of another doctor, who prepared the X-ray report of the injured is concerned, the genuineness of that report has been admitted under section 294 Cr.P.C. If the said interpretation of learned counsel for the appellants is accepted, then there remains no relevance of section 294 Cr.P.C. Sub-clause (3) of section 294 Cr.P.C. specifically provides that where genuineness of any document is not disputed, such document may be read in evidence in trial. Out of the three case laws relied upon by learned counsel for the appellants, two judgments are of Hon'ble Patna High Court. With due regards, in this respect, it appears that the Patna High Court has overlooked the provisions of section 294 (3) Cr.P.C. As far as the third law of Maharashtra High Court is concerned, Hon'ble Maharashtra High Court has specifically held in that law that once the genuineness is admitted, then the document itself may be read in evidence. Therefore, mere non examination of doctor, who prepared the X-ray report is not fatal to the prosecution in view of the fact that the injuries of the injured have already been proved by Dr.A.K.Sant (P.W1) and the opportunity of cross examination has also been extended.

Learned counsel for the appellants has further relied upon Sharad Birdhichand Sarda Vs. State of Maharshtra, 1984 SCC 116, in which the Hon'ble Supreme Court has held as under:-

"144. To the same effect is another decision of this Court in Harijan Megha Jesha Vs. State of Gujarat where the following observations were made; (SCC (cri) P. 653, para3)

in the first place , he stated that on t he personal search of the appellant a chedi was found which was bolld stained and according to the report of the serologiest, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant."

"145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant n his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration."

In the present case, I have perused the statements of the appellants recorded under section 313 Cr.P.C. and I find that the circumstances have been put to the appellants in their examination under section 313 Cr.P.C and the statement under section 313 Cr.P.C. is detailed statement, in which the evidence has been put to the appellants and the specific questions have been asked. In my opinion, the appellants do not get any benefit from the aforesaid law of the Hon'ble Supreme Court because I find that the circumstances have been put to the appellants in their examination under section 313 Cr.P.C.

The prosecution has examined three witnesses of fact namely Tularam (P.W.3) and Kanhaiyalal Tripathi (P.W.4) and complainant Lal Sahab Pandey (P.W.5). Tularam (P.W.3) and Kanhaiyalal Tripathi (P.W.4) have turned hostile and they have not supported the prosecution version. Moreover, in their cross examination by the prosecuting agency, nothing such material has come into light that they had seen the incident or they have reached the place of occurrence at the time of incident. In these circumstances, there remains the solitary statement of Lal Sahab Pandey (P.W.5), who is the complainant also. I am conscious of the fact that when there is single testimony of fact regarding the incident, it must be scrutinised very cautiously so as to come to the conclusion that whether the presence of such witness was natural on the spot and he had seen the incident with his own eyes. The statement of sole witness should also not contain any material contradictions. The testimony of the sole witness, who is a injured person, is entirely different from the testimony of the witness, who is not injured. Admittedly, Lal Sahab Pandey (P.W.5), who is the complainant also, has not received any injuries and he has also not stated in his statement that he has also been attacked by the appellants.

From the perusal of the statement of complainant Lal Sahab Pandey (P.W.5), it appears that there was enmity in between the father of the complainant and the appellants. It has come in his evidence that there was dispute regarding property and the injured father of the complainant had made the criminal complaint against these appellants, in which they were sent to jail. It has also come in the evidence that in that criminal complainant, the appellants after getting their release from jail, had committed this incident on second or third day. The complainant by his statement has tried to prove the motive of the incident, but mere motive is not sufficient to convict any accused unless there is reliable evidence regarding involvement of the appellants.

In the statement of Lal Sahab Pandey (P.W.5), it has come that he has seen the incident from the distance of 50 steps. This witness has also admitted that at the time of incident he was sitting in his house and upon alarm, he came out and reached Ghati, then he heard the voice of country made pistol, upon which he had raised the alarm and the witnesses had come there. As has been stated earlier that witnesses Tularam (P.W.3) and Kanhaiyalal Tripathi (P.W.4) have not supported the prosecution version, I find substance in the submission of learned counsel for the appellants that when the complainant has admitted in his statement that at the time of incident, he was sitting inside his house, then it was not possible for him to have witnessed the incident. In this regard, the statement of Lal Sahab Pandey (P.W.5) recorded under section 161 Cr.P.C is also important.

In the statement recorded under section 161 Cr.P.C, this witness has stated as under :-

"]]]]]]]]]]]]]]]]]'kksjxqy ij eS rFkk xkWo ds uuds mQZ dUgSbZ yky iq+= lqdbZ o rqykjke oxSjk oxSjk igqpW x;s Fks rks lHkh eqfYteku ekjuk can djds iwjc dh rjQ dks Hkkx x;s Fks A esjs firk th us crk;k fd lHkh eqfYteku eq>s ?ksj fy;s Fks rks nn~~u us dgk fd ekjks lkys dks] bl ij Ñik jke us ]]]]]]]]]]]]]]]]]."

from the aforesaid statement recorded under section 161 Cr.P.C, it appears that the statement of complainant is based upon the information of his father. From his statement, it also appears that the time when the complainant and the alleged witnesses reached the place of occurrence , the accused persons had ran away towards east . It also appears that the complainant had reached the place of occurrence much later and till then the accused persons had fled away from there. As there was previous enmity in between the parties, therefore, the possibility cannot be ruled out that due to previous enmity, the appellants might have been named due to the suspicion.

There is one more material contradiction in the statement of Lal Sahab Pandey (P.W.5). He has stated in his cross examination that the FIR was scribed by himself and he does not know any Devi Prasad Mishra. Further, he has authenticated this version by saying that he had not got scribed the FIR by any third person, but he had himself written the Tahrir. This fact is contrary to the Tahrir Ext. Ka-4 because in the Ext. Ka-4, it has been specifically mentioned in the same hand writing that the scriber of this Tahrir is Devi Prasad Mishra of Gilaula. This contradiction goes to show that either the complainant had not witnessed the incident himself and he has simply signed the report scribed by Devi Prasad Mishra otherwise there was no reason to wrongly deny this fact that the Tahrir was not scribed by Devi Prasad Mishra. This material contradiction goes to the route of the matter and creates so many doubts about the truthfulness of the contents of this report Ext. Ka-4.

The complainant has admitted in his statement that when he had lifted his father from the spot, his clothes were stained with blood and mud and in the same blood stained and muddy clothes, he had first gone to police station. The general diary has been scribed at the time of lodging the FIR, which has also been proved as Ext. Ka-3, but it does not contain any such fact that the clothes of the complainant were also stained with blood and mud.

I also find substance in the submission of the learned counsel for the appellants that the incident is of the month of July and it was a rainy season. It has also come in the evidence that after about four hours, the rain started. When the rain starts, the clouds come on the sky. The incident is of 5.45 a.m. in the morning and in these circumstances, it cannot be denied that no sufficient source of day light was available at that time, therefore, it was not probable to see the incident from the distance of 50 steps, as stated by the complainant.

There is one more circumstance that if the complainant was present on the spot, he might have tried to get rescue his father and might have also received some injuries, but in the present case there is no such attempt stated by the complainant and admittedly the complainant has also not received any injuries. If the incident has been committed by eight accused persons armed with lathi and country made pistol, and if the incident had taken place due to previous enmity, then in these circumstances, the appellants could have also attacked the complainant if he was actually present on the spot. He has nowhere stated that he intervened in this incident and tried to save his father. It goes to prove that he was not present there and he scribed FIR upon information of his father, or otherwise. All these circumstances go to show that at the time of incident, the complainant was not present on the spot. The statement of complainant as well as the version of the FIR that Tularam (P.W.3) and Kanhaiyalal Tripathi (P.W.4) had also reached the spot, do not find support from the statements of Tularam (P.W.3) and Kanhaiyalal Tripathi (P.W.4).

In view of the above discussion, the presence of Lal Sahab Pandey (P.W.5) is suspicious by various adverse circumstances and the presence of this witness on the place of incident is also doubtful. It appears that the appellants have been implicated mere on the basis of suspicion due to previous enmity. In these circumstances, the statement of Lal Sahab Pandey (P.W.5) does not inspire confidence. Apart from Lal Sahab Pandey (P.W.5), there is no other eye witness of the incident. In these circumstances, I am of the view that the prosecution has utterly failed to prove the guilt of the appellants and the appellants are entitled for the benefit of doubt also.

I find that the findings of the learned trial court are perverse and appreciation of evidence by the learned trial court is misconceived. The appeal is liable to be allowed and the appellants are liable to be acquitted of the charges levelled against them.

The appeal is allowed. The judgement and order dated 30.09.1997 passed by II Additional Sessions Judge, Bahraich in Sessions Trial No. 185 of 1994 is set aside. Appellants are acquitted of the charges levelled against them.

Office is directed to send a certified copy of this order to the concerned trial court along-with lower court record at an early date.

Order Date: 12th May, 2016

GSY