Ramanand Verma & Another vs State Of U.P.
2016 Latest Caselaw 3009 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
RESERVED
 
Case :- CRIMINAL APPEAL No. - 86 of 2011
 

 
Appellant :- Ramanand Verma & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Bhola Singh Patel,Praveen Kumar Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Heard Sri Bhola Singh Patel and Sri Praveen Kumar Verma, learned counsel for the appellants, Sri Balkeshwar Srivastava, learned AGA for the State and perused the record.

The instant jail appeal has been preferred by the appellants Ramanand Verma and Hansraj Verma against the judgment and order of conviction dated 10.01.2011 passed by the Special Judge, SC/ST Act, Barabanki, in Sessions Trial No.96 of 2010, arising out of Case Crime No.177 of 2009, under Sections 323/34, 504, 506 IPC and 3(1)(X) SC/ST Act, Police Station Kothi, District Barabanki whereby the appellants have been sentenced to six months' simple imprisonment under Section 323/34 IPC, six months' simple imprisonment under Sections 504 IPC, six months' simple imprisonment under Sections 506 IPC and six months' simple imprisonment under Section 3(1)(X) SC/ST Act. Each of the above sentences of imprisonment are coupled with a fine of Rs. 500/-, in case of default, the concerned convict will have to suffer additional imprisonment for three months. All the sentences shall run concurrently.

The factual matrix of the case, as unfolded by the prosecution appears to be; that the first informant Awadhrani wife of Ram Kewal, resident of Naseerpur, Police Station Kothi, District Barabanki, lodged a written report at Police Station Kothi on 27.3.2009 against the appellants regarding some incident alleged to have taken place on 3.3.2009 to the effect that the first informant is "Dhobi" by caste and she used to tie cattle having driven pegs/stakes and manger in front of her house for a long time.

On 03.03.2009 at about 8.00 a.m., Ramanand and Hansraj Verma sons of Asha Ram and their wives, coming to her doors , uprooted pegs/stakes and removed manger and began to fix their own manger on the spot. On being asked not to do the same, they abused filthily and said that they shall not allow her to live in the village and they assaulted the first informant with 'lathi' and 'danda'. On alarm being raised, a number of villagers arrived on the spot and they intervened in the matter and then only her life could be saved. The first informant sustained severe injuries and the appellants fled away from the place of occurrence after threatening her with dire consequences. The first informant along with her husband went to Government Hospital for her medical examination and x-ray examination. Photocopy of x-ray examination has been annexed. Therefore, report be lodged and action be taken. This written report is Exhibit Ka-1.

Entries of this report was noted down in Check FIR on 27.3.2009 at 10.30 a.m. at Crime No.177 of 2009, under Sections 323, 504, 506 IPC and 3(1)(X) SC/ST Act, at Police Station Kothi, District Barabanki. Check FIR is Exhibit Ka-5. On the basis of entries made in the Check FIR, the case was registered at Report No.16 of general diary dated 27.03.2009 at 10.30 a.m. at Police Station Kothi. Carbon copy whereof is Exhibit Ka-6.

Record reflects that prior to lodging of this first information report, medical examination of injured Awad rani was conducted by Dr. C.S. Sharma P.W.4 on 4.3.2009 at 10.20 a.m. Who found following injuries on the person of Awadhrani - the first informant, which is reproduced as hereunder:-

1. Lacerated wound of 4 cm x 1/2 cm x scalp deep on the head, 10 cm above the left eyebrow.

2. Lacerated wound of 2.5 cm x 0.5 cm x scalp deep on the head, 6 cm above the right ear.

3. Contused swelling of 5 cm x 4 cm on the head, 4 cm above right ear.

4. Contused swelling of 6 cm x 2 cm on the upper border of right scapula.

5. Contused swelling of 8 cm x 1 ½ cm on the right scapula (vertically).

6. Abraded contusion on 6 cm x 2 cm on the lower part of right scapula.

7. Contusion 15 cm x 2 cm on the lateral side of right scapula (vertically).

8. Contused swelling on all over the left scapula.

9. Contusion of 15 cm x 2 cm along with the vertebral column on the back of body.

10. Complaint of pain on the front of the chest on right side near lower ribs.

11. Contused swelling all over the dorsal of right hand.

All injuries kept under observation. X-ray of head, chest and right hand advised. All injuries were caused by hard and blunt object. Duration about one day old.

This medical examination report is Exhibit Ka-4 and has been proved by Dr. C.S. Sharma, PW-4.

The Investigating Officer recorded statement of witnesses and prepared the site plan of the incident, which is Exhibit Ka-2 on record. The Investigating Officer after completing investigation filed charge-sheet against the appellants Ramanand Verma and Hansraj Verma, which is Exhibit Ka-3 on record.

Thereafter the case of the appellants was committed to the court of Sessions from where it was transferred to the trial court for disposal where the accused persons were heard on the point of charge and charges under Sections 323/34, 504, 506 IPC and 3(1) (X) SC/ST Act were framed. Charges were read over and explained to the accused-appellants, who denied charges and claimed to be tried.

The prosecution in order to prove its case produced in all five witnesses. Awadhrani PW-1 is the injured and informant. She has proved the lodging of the first information report. Ram Kewal is PW-2. He is husband of Awadhrani PW-1. He claims that he arrived at the spot after the incident had taken place. Rajesh Kumar Saxena is PW-3. He is the Investigating Officer who has detailed about the investigation and filing of the charge-sheet. Dr. C.S. Sharma is PW-4. He has conducted medical examination of the victim Awadhrani. Constable Babu Ram Gautam is PW-5. He has made entries in Check FIR and the concerned general diary and has proved the same as Exhibit Ka-5 and Ka-6, respectively.

Thereafter, evidence for the prosecution was closed and statement of accused was recorded under Section 313 Cr.P.C., wherein they claimed to be innocent and it was stated by accused Ramanad Verma that he has been falsely implicated because of pending litigation qua landed property. Appellant Hansraj Verma has termed his implication false due to enmity. No testimony whatsoever has been led by the appellants before the trial court.

The trial court after hearing the parties, passed the aforesaid judgment and order of conviction dated 10.01.2011 and, accordingly, imposed sentence.

Consequently, this appeal.

Learned counsel for the appellants has vehemently contended that implication of the appellant in this case is highly motivated on the ground that there is pending litigation in the court of Tehsildar regarding landed property between the first informant side and the appellants. The first informant somehow wanted to exert pressure on the appellants, and with that view in mind, she has cooked up a false story.

Learned counsel for the appellants has augmented his thrust by contending that the first information report is highly belated and was lodged on 27.3.2009 after a lapse of about 24 days; whereas, the incident allegedly took place on 03.03.2009. No reasonable explanation has been given regarding such inordinate delay either in the first information report or before the trial court. Even the Investigating Officer has not supported any such cause for lodging of the belated FIR.

Learned counsel for the appellants has further submitted that the victim is not worthy of credit as her testimony is full of contradictions and improvements. In so far as her testimony before the trial court and the statement recorded by the Investigating Officer under Section 161 Cr.P.C, are concerned, both are at great variance and the whole incident becomes doubtful and it cannot be said that the appellants have in fact committed the offence. It has stated that a number of co-villagers witnessed the incident and arrived on the spot but not a single independent witness has been produced by the prosecution in order to prove and corroborate its case. Therefore, testimony of Awadhrani PW-1 remains uncorroborated by any independent source. Corroboration though is not rule but present context expects independent corroboration in view of overflowing material contradictions in the testimony of Awadhrani PW-1.

Learned AGA has refuted the aforesaid arguments by contending that testimony of Awadhrani PW-1 is consistent and inspiring confidence as she has proved the incident by specifically stating that she was assaulted by the appellants. Dr. C.S. Sharma PW-4 has proved the medical examination report of the injured. The contradictions appearing in the testimony of PW-1 are not vital but of trivial nature.

Considered above submissions as well.

The core consideration that engages attention of this Court in the instant appeal is confined to the fact as to whether the testimony of the injured victim (PW-1) is worthy of credence and her testimony can be believed as such, being free from material contradictions, and the prosecution has been able to prove its charges against the appellants beyond reasonable doubt?

In this case, the star witness is the injured Awadhrani and she is injured eyewitness of the incident. It is admittedly a case where no independent witness has been produced. To appreciate evidence, a note of contents of first information report may be taken into account by this Court. Perusal of the first information report reveals that it was lodged on 27.03.2009 and it refers to the incident dated 3.3.2009 which took place at 8.00 a.m. In the very last part of this first information report, it has been alleged that after the incident, the injured went to the Government Hospital in the company of her husband for her medical examination and got her x-rayed. Thereafter, the report was lodged. No worthy explanation or reason has been given in this first information report (Exhibit Ka-1) for lodging this report at such a belated stage after the incident.

In this view of the matter, it would be relevant to look into testimony of Awadhrani, injured PW-1 as to what reason she has assigned for lodging of the FIR at such belated stage on 27.03.2009. A peep into the testimony of PW-1 is thus helpful in arriving at correct position vis-a-vis attendant circumstances of the case.

Smt. Awadhrani PW-1 has categorically stated in her examination-in-chief that she got scribed the report at the police station but her report was not lodged. Then she got herself medically examined and x-ray examination of head, hand and chest was also done. Thereafter she went to the police station, dictated the report to Diwan Ji. After hearing contents of the same, she impressed her thumb impression on it. She has proved the written report exhibit Ka-1 on record.

This factual aspect qua lodging of the FIR has also been described in the testimony of Ram Kewal PW-2, husband of Awadhrani PW-2. He has also stated that after the incident, he went along with his wife to the police station for lodging of the first information report but the report was not lodged there. Then on the next day medical examination was conducted at Government Hospital, Barabanki.

Ram Kewal PW-2 has stated that he did not go to the police station second time for lodging of the first information report but his wife had gone to the police station for lodging of the same. No explanation regarding belated FIR has come forth either from PW-1 or PW-2 in their examination-in-chief. Their testimony in this regard can be read together to mean that after the incident had taken place on 03.03.2009 both PW-1 and PW-2 went to the police station for lodging of the first information report but the report was not lodged. Thereafter medical examination of Awadhrani was conducted at Government Hospital, Barabanki on 04.03.2009 and then only the first information report was lodged against the appellants. If it is so, then in common parlance, the report ought to have been lodged at least one or two days after from the date of medical examination of Awadhrani-the injured. But this first information report was lodged after a gap of 23 days on 27.03.2009 which under circumstance is beyond comprehension of the Court. No reasonable explanation and no circumstance justifying such delay has come forth. There is abysmal silence on point of delay in lodging of FIR.

Further, how is it possible that on the second occasion, when the injured Awadhrani went to the police station to lodge the first information report, she went alone without her husband and her husband did not accompany her to the police station and injured got her report scribed by dictating the same to one Diwan Ji. This creates doubt on the very lodging of the FIR itself. In this factual background, it is established that the first information report is highly belated and there is no plausible explanation for causing such inordinate delay.

Now meritorial aspect of the case qua the incident has to be analyzed. Obviously, it is a case where as per the first information report, assault was caused to Awadhrani by the appellants along with their wives.

As per testimony of Awadhrani PW-1, Ramanand and Hansraj Verma sons of Asha Ram and their wives, coming to her doors, uprooted pegs/stakes and removed manger and began to fix their own manger on the spot. When she asked not to do the same, she was rebuffed by the appellants and they assaulted her with Lathi-Danda causing severe injuries to her. On alarm being raised, a number of villagers arrived on the spot. They intervened and only then the victim was spared. The assailants fled away from the scene after threatening the injured with dire consequences.

In her cross examination, Awadhrani PW-1 has stated that she sustained injuries on her head, hand and chest and blood oozed out from injuries and her whole body was seeped in blood and the blood also spilled on the ground. Her 'Saree' and 'Blouse' were stained with blood and she gave her blood stained clothes to Daroga Ji. She had also shown the place where blood spilled on the ground but Daroga Ji did not take blood stained clothes and did not collect the blood stained soil. She has also stated that 50-60 people of the village had arrived on the spot after she raised the alarm during course of incident.

At this stage, it would be relevant to take account of testimony of the Investigating Officer, Rajesh Kumar Saxena PW-3. He has stated that this case was registered on 27.03.2009. He carried out investigation, took various steps, recorded testimony of witnesses and prepared the site plan. In his cross examination, he reflected on certain contradictions in the statement of Awadhrani PW-1 recorded before the trial court and in the statement recorded by him under Section 161 Cr.P.C. He has stated that Awadhrani has not given statement that she was tying her animals with pegs/stakes when Ramanand, Hansraj Verma and their wives arrived at the spot.

Further, the Investigating Officer has testified that Awadhrani PW-1 did not give statement that she had earlier come to the police station for lodging of the report and her report was not lodged and then she got herself medically examined. After medical examination, she went to the police station second time for lodging of the first information report. This witness has specifically stated that in case any such statement has been given (by Awadhrani PW-1) in Court then the same is false statement.

This witness has also stated that Awadhrani did not give him the blood stained clothes nor did she show the place/ground where the blood spilled out. Similarly, this witness has exposed material contradictions appearing in the testimony of Ram Kewal PW-2 by stating that he did not give any such statement that the accused persons ever said to him 'Pakdo Sale Dhobi Ko' 'Tab mai mauke se ghar me bhag gaya'. He has stated that in case any such statement has been given by him (Ram Kewal PW-2), then he is telling a lie. He has further claimed that Ram Kewal did not give statement that as soon as he (PW-2) reached on the spot, the accused persons were standing over there possessing 'Danda' and iron rods in their hands.

Not only this, the Investigating Officer PW-3 has also gone to the extent that he did not investigate on point as to why the first information report was lodged after such inordinate delay. These contradictions are fair enough to show that the victim is constantly improving her version of the incident in the court which version of the incident, if read conjointly with her statement given under Section 161 Cr.P.C., does not inspire confidence and therefore, cannot be believed without any independent corroboration. Here independent corroboration becomes judicially imperative.

Obviously, in this case as per testimony of Awadhrani PW-1, her saree and blouse were steeped in blood after the incident had taken place in the morning at 8.00 a.m. As per her testimony, she was severely assaulted by the assailants. If it was so, then how and why the injured kept waiting for more than 25 hours for getting herself medically examined. This by itself creates doubt about the time of the incident and on the factual assertion of the victim that she sustained injuries at 8.00 a.m. on 03.03.2009. This anomaly regarding time of injury being caused and the medical examination conducted on 04.03.2009 creates lot of doubt on the authenticity of the time and place of the incident itself.

At this stage, it would be proper to look into testimony of Dr. C.S. Sharma PW-4 who conducted medical examination of the victim Awadhrani. Dr. C.S. Sharma PW-4 has proved fact that he medically examined Awadhrani on 04.03.2009 at Government District Hospital, Barabanki at 10.20 a.m. wherein he has detailed 11 injuries on the person of victim Awadhrani.

Perusal of injury report exhibit Ka-4 reveals that the duration of these injuries have been stated to be about one day old. In his cross examination, this witness has categorically stated that these injuries can be caused both in the morning of 03.03.2009 and in the evening of 03.03.2009. Thus, it is obvious that it cannot be said that the injuries so caused on the person of victim were in all probability caused at 8.00 a.m. on 03.03.2009, whereas, as per opinion of doctor, injuries can be caused even in the evening of 03.03.2009. What kept the victim confined at her home all day on 03.03.2009 after she was seriously injured. This particular aspect of time gap between incident and medical examination has neither been explained nor stands explained under circumstances of the case. Even no supplementary medical report was obtained.

It has been stated by Awadhrani PW-1 in her cross examination that 50-60 villagers arrived on the spot after she raised alarm but not a single person was produced for corroboration of her testimony. Suggestion has been given by the defence/appellants that the accusation is false and motivated on account of pending litigation qua landed property in the court of Tehsildar. This suggestion has also been stated by the appellant Ramanand Verma in his statement recorded under Section 313 Cr.P.C. Perusal of testimony of PW-1 also reflects that she is constantly improving her testimony and she has tried to embellish the incident with improved version which renders her testimony wholly unreliable.

In cases where testimony of victim does not inspire confidence instead creates doubt then corroboration of incident by independant testimony or circumstance is the general law. Here testimony of PW-2 Ram Kewal also reflects that 10-20 co-villagers had gathered on the spot during the incident but no one was produced for corroboration of the incident. Though it is trite law that number and plurality of the witnesses will not decide the merit of the case but it is the quality of the witness in a criminal case and evidence as a whole is to be weighed and not counted. If the evidence has a ring of truth, is cogent, credible and trustworthy only then it may form basis of conviction and in case evidence as a whole does not inspire confidence and is doubtful then the court should normally insist for its corroboration. Here the quality of testimony of PW-1 is discovered to be sketchy, vacillating, improving and the same cannot be believed to be true in the absence of independent corroboration.

It is one of the circumstances that statement of the victim also involves participation of appellants' wives in the incident. However, after investigation their complicity and involvement in the incident was found not correct and charge sheet was not filed against them. Her statement (PW-1) is self contradictory and does not befit in the circumstances of the case. She has lodged the first information report at great convenience after inordinate delay on 27.03.2009, whereas, the incident took place on 03.03.2009. Though she claims to have been severely assaulted and she sustained serious injuries but there is no proof on record that the injuries so caused were either serious or fatal. Ram Kewal PW-2 is unable to tell names of villagers whom he saw on the spot when he arrived on the spot after the incident.

Above discussion makes it obvious that the testimony of the sole witness (PW-1) does not inspire confidence and the same is sketchy and improved one and in the absence of independent corroboration, it would not be safer to repose trust in the same.

Consequently, the description of incident as stated by the victim PW-1 in her statement before the trial court is not worthy of credit and the witness is motivated on account of enmity due to pending litigation and her testimony on the whole becomes wholly unreliable. The trial court while appraising the testimony on record failed to take into account and appreciate the quality of the evidence vis-a-vis attendant circumstances and it was not justified in recording finding of conviction based on such shaky evidence/ testimony.

In the final count, the impugned judgment and order of conviction dated 10.01.2011 passed by the Special Judge, SC/ST Act, Barabanki, in Sessions Trial No.96 of 2010, arising out of Case Crime No.177 of 2009, under Sections 323/34, 504, 506 IPC and 3(1)(X) SC/ST Act, Police Station Kothi, District Barabanki is hereby set aside.

Consequently the instant appeal succeeds and is allowed, accordingly. Appellants are found not guilty of the charges under Sections 323/34, 504, 506 IPC and 3(1) (X) SC/ST Act and are acquitted of the same.

In this appeal, both the appellants are on bail. Their personal and bail bonds are cancelled and sureties discharged They need not surrender before the court concerned. However, they will furnish bonds before trial court within 15 days in compliance of Section 437-A of Cr.P.C.

Let a copy of this judgment be certified to the trial court for intimation and necessary follow up action.

Order Date :- 26th May 2016

IrfanUddin