Allahabad High Court
State Of U.P. vs Girish Pal & Others on 11 May, 2017
Bench: Shashi Kant Gupta, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Court No. - 45
Case :- GOVERNMENT APPEAL No. - 4143 of 2003
Appellant :- State Of U.P.
Respondent :- Girish Pal & Others
Counsel for Appellant :- G.A.,Radha Rani Sharma
Counsel for Respondent :- Bharat Bhushan Paul, Lav Srivastava, Pradeep Kumar,Sanjai Kumar Singh
Hon'ble Shashi Kant Gupta,J.
Hon'ble Shashi Kant,J.
(Delivered by Hon'ble Shashi Kant, J.)
1 This Government Appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") has been filed by State of Uttar Pradesh against judgment and order dated 08.05.2003 passed by Sri Raj Bahadur Singh, Additional Sessions Judge, Court No.13, Bareilly in Sessions Trial No.1434 of 1999 (State Vs. Girish Pal & 3 Ors.) arising out of Case Crime No.1 of 1997, under Sections 304, 308, 323, 336, 452, 504 of the Indian Penal Code, 1860 (for short 'the I.P.C.'), Police Station Sheeshgarh, District Bareilly, whereby accused-respondents Girish Pal, Bhagwan Das, Ravindra and Dharmpal have been acquitted for the offences punishable under above sections.
2. The brief facts of the case are as under :
2.1 The informant Sushila Devi (P.W. 1) submitted a written report (Ext. Ka-1) on 01.01.1997 at 7.15 P.M. at Police Station Sheeshgarh, District Bareilly stating therein that earlier on that date at about 5 P.M., accused-respondents Girish Pal, Bhagwan Das, Ravindra and Dharam Pal were assaulting one Chandra Sen because he was demanding back the money from Tullan advanced by him to Tullan and others. In order to save himself he ran and entered the house of deceased Fakir Chand. Accused-respondents also reached there chasing him. On hearing the cries of Chandra Sen to save him, Fakir Chand intervened and asked the accused-respondents not to assault him there. On this, Chandra Sen hit with a brick on his head, other accused inflicted lathi blows. Consequently, he received grievous injuries on his head and other parts of the body. When Shyama Devi (P.W. 7) tried to save her husband, she was also assaulted by the accused respondents. Informant took her father in unconscious state alongwith Smt. Shyama Devi, Chandra Sen, Chandra Mohan on Sawari Ghoda Tanga of Dilwar Shah to the police station. The incident was also witnessed by Jagan Lal and Harish etc.
2.2 On the basis of the above written report, Case Crime No.1/97 was registered under Sections 452, 308, 336, 323, 504 IPC. Entry for registration of the case was made at GD Rapat No.29 at 19.45 p.m. dated 01.01.1997 (Copy thereof is Exhibit Ka-10). Investigation of the case was entrusted to S.I.Vijendra Pal Singh (P.W. 5).
2.3 The injured Fakir Chand, Chandra Sen and Smt. Shyama Devi were sent to Sadar Hospital, Bareilly along with Chitthi Majroobi (Ext. Ka-4, Ka-2 and Ka-3) for their medical examination.
2.4 Dr. P.C. Saxena (P.W. 3) examined Smt. Shyama Devi and Chandra Sen and prepared their injury reports (Ext. Ka-3 and Ext. Ka 2). However, on examination of Fakir Chand, he found that he was brought dead. This fact was informed by him vide Ext. Ka-12 to S.H.O. Kotwali, Bareilly, which was entered at GD Rapat No.23 dated 02.01.1997 at 22.53 p.m., Ext. Ka-13.
2.5 On the above information S.I. Mahipal Singh reached the spot and prepared inquest memo, Ext. Ka 14. He also prepared sample seal, Ext. Ka-15, police paper no-13, Ext. Ka-16 Photo of Dead body, Ext. Ka-17, letter to C.M.O. Ext. Ka-18, letter to R.I., Ext. Ka-19, in Police Form No.33 and sent the dead body for postmortem examination.
2.6 Dr. V.K.Mishra, P.W.4 conducted the postmortem examination on the body of Fakir Chand on 02.01.1997 at 3.00 p.m. and prepared the postmortem report (Ext. Ka-5).
2.7 After receipt of postmortem report, Section 304 IPC was added in the case vide G.D. Rapat No.13, dated 03.01.1997 at 11.15 a.m. (Copy thereof is Ext. Ka-11).
2.8 After taking over the investigation, the Investigating Officer (P.W. 5) recorded statement of informant PW-1 Sushila Devi and Const. Jagat Singh and copied the FIR etc. On the next day he reached to the spot and after inspection, prepared the site plan (Ext. Ka-6). During investigation he has also recorded statements of witnesses Chandra Sen, Km.Meena Verma, Km. Radha Verma, Devi Prasad, Ved Prakash, Constable Jayendra Singh, Hatendra Kumar, Smt. Shyama Devi, Dilwar Shah, Tullan, Constable Sewa Ram and Munesh Kumar. On 14.01.1997, he arrested the accused Girish Pal and after completing necessary formalities of investigation, filed charge sheet, Exhibit Ka-8, against the accused-respondents.
2.9 In due course, the case was committed to the Court of Sessions. The Court below framed charges against the accused respondents, under Sections 452, 308/34, 388, 323/34, 506, 304/34 IPC, who denied the charges and claimed to be tried.
2.10 To prove its case, prosecution has examined Sushila Devi (P.W.1), Km. Radha (P.W. 2), Dr. P.C. Saxena (P.W. 3), Dr. V.K.Mishra (P.W. 4), SI Vijendra Pal Singh (P.W. 5), Constable Sewa Ram (P.W. 6) and Smt. Shyama Devi (P.W. 7) as oral evidence and Ext. Ka-1 to Ext. Ka-19 as documentary evidence.
2.11 In their statements recorded under Section 313 Cr.P.C., the accused-respondents denied the prosecution case as well as documentary and oral evidence produced by the prosecution and claimed their false implication in the case due to enmity. The accused-respondents have not produced any oral evidence. However, in the documentary evidence, they have filed certified copies of statements of Km.Sushila (Ext. Kha-1), Km. Radha (Ext. Kha-2); charge-sheet (Ext. Kha 3); and copy of judgment in Case No.1340 of 1996 (Ext. Kha 4); statements of Km.Meena (Ext. Kha 5); Smt. Shyama Devi (Ext. Kha 6); Copy of charge-sheet in Case No.374 of 1999 (Ext. Kha 7); and copy of judgment (Ext. Kha 8) in Case No.374 of 1999; and Copy of postmortem report of Fakir Chand (Ext. Kha-9) in Sessions Trial No.1434 of 1999.
3 After evaluating the evidence and material available on record, the Trial Court has passed the impugned judgment and order dated 08.05.2003 acquitting the accused-respondents.
4. Feeling aggrieved therefrom, the instant criminal appeal has been filed.
5. During pendency of the appeal accused-respondent no.2 Bhagwan Das has died and appeal was abated against him vide order dated 11.07.2007 as such this appeal is now related only against the remaining accused Girish Pal, Ravindra and Dharmpal.
6. Heard Sri Rajeev Gupta, learned A.G.A. appearing on behalf of the State-appellant and Sri B.P.Srivastava, learned Senior Advocate assisted by Sri Bharat Bhushan Paul, Advocate for the respondents.
7. On behalf of the appellant-State of U.P., learned A.G.A. contended that :
7.1 The occurrence took place during the broad day light and place of occurrence is the house of the deceased where presence of witnesses PW-1, PW-2 and PW-7, who are daughters and wife of the deceased respectively is very natural. There is no occasion for them to falsely implicate the accused respondents for murder of their father/husband and leaving the real culprits roaming scot-free.
7.2 The prosecution has successfully proved its case against the accused-respondents beyond reasonable doubt by adducing reliable oral and documentary evidence. Otherwise findings recorded by the Court below are wrong, illegal and not sustainable in the eyes of law.
7.3 The findings of the Court below are based on surmises and conjectures as well as on the misreading and misappreciation of the prosecution evidence.
7.4 The prosecution is not bound to produce all the witnesses named in the charge sheet. It is also authorized to produce the witness(es), who is/are not named in the FIR and charge sheet, if it feels the evidence of witness concerned is necessary for proper decision of the case.
7.5 PW-1, PW-2 and PW-7 are uneducated village ladies and rustic women. No infirmity or contradictions affecting the prosecution case are found in their evidence and whatever contradictions etc. exist, those are minor and trivial in nature not affecting the merit of the case set up by the prosecution.
7.6 The accused respondents are persons of dare devil nature and belong to Kurmi Biradari, majority population of the village. The witnesses Jagan Lal and Harish also belong to the caste of the accused respondents and they have been won over by the accused respondents.
7.7 After the incident, injured Chandra Sen left the village due to fear of accused-respondents and started living with his maternal uncle (Mama) at Haldwani.
7.8 The prosecution evidence started after four years of the incident. Many times NBW was issued against the witnesses Chandra Sen, Jag Mohan, Harish and Tullan etc. but they did not turn up and could not be produced in the evidence.
7.9 The evidence of above witnesses PW-1, PW-2 and PW-7 in respect to date, time, place, manner of the incident and weapons used by the accused respondents and their participation in the incident are intact and not only corroborated by the evidence of each other but also corroborated by recovery of blood stained and plain soil from the place of occurrence and evidence of Dr.V.K.Mishra (PW-4).
7.10 The injuries found on the body of deceased Fakir Chand and injured persons are also supported by the written report FIR, G.D.Entry, medical evidence, postmortem report of deceased Fakir Chandra etc. and sample of plain and blood stained soil.
7.11 There is no difference between the ocular and medical evidence in respect of injury received by Shyama Devi.
7.12 Though PW-1 in her evidence deposed that the written report was scribed by her though it was actually written by one Om Prakash Srivastava. This point is not seriously challenged by the defence.
7.13 In the above facts and circumstances the impugned judgment and order be set aside, accused respondents be convicted and punished suitably.
8. Per contra, learned counsel for the accused respondents contended that :
8.1 The written report filed in this case is highly doubtful and probably it has been changed by I.O. to give extra strength to prosecution case by substituting it from the original written report.
8.2 Informant PW-1 has told the written report scribed by her while it is scribe by one Om Prakash Saxena, as is evident from Ext. Ka-1.
8.3 On the written report, the only word Parthini (name of Sushila) was written. Then there was wide gap between the name and signature of PW-1 and also a difference in the ink used for writing the report.
8.4 The informant PW-1 reached the police station after reaching the I.O. but there is no G.D. of arrival of I.O./informant and no mention of crime number on Chitthi Mazroobi.
8.5 All the injured were sent for medical examination simultaneously but Shyama Devi and Fakir Chand were sent to PHC Bahedi and Chandra Sen was sent to Sadar Hospital but all reached the Sadar Hospital Bareilly and were examined there at different time. Fakir Chand was found to be brought dead by the doctor.
8.6 Shyama Devi was not produced and her injury report is not reliable as there is no reference of mark of identification on her injury report Exhibit Ka-3.
8.7 The injured Chandra Sen reached the hospital after a long gap of more than six hours at 11:25 P.M. He was not accompanied by any police personal. As such, injury reports of above persons are suspicious and not reliable at all.
8.8 The name of PW-2 Km.Radha is not mentioned in the FIR.
8.9. Alternatively, he has also contended that in case the Court reaches the conclusion that accused-respondents are guilty still they could not be convicted and punished under the sections they were charged as according to prosecution, accused Chandra Sen only given only a single blow of brick on the head of the deceased which was picked up by him from courtyard (Angan). Accused Bhagwan Deen was given a simple Lathi blow on the head. Other accused Ravindra and Bhagwan Das had also given a simple lathi blow on the non vital part of the body and there was no repetition of lathi blow by any accused-respondents as the incident had taken place all of a sudden and there was no premeditated meeting of mind amongst the accused-respondents for the offfences they were charged.
8.10. The incident took place out of sudden provocation. In the circumstances, the accused-respondents are liable for their individual acts.
8.11. PW-4 Dr. V.K.Shukla has given nature of injuries in his evidence according to which no serious damage has been caused from the injury caused by the accused Girish Pal. The injury caused by accused Girish Pal was only under Section 323 IPC.
8.12. The fatal injury was caused by accused Bhagwan Das, who died during the pendency of the appeal.
8.13. The injuries caused to Chandra Sen and Shyama Devi are also punishable under Section 323 IPC.
8.14. As the incident is too old and the incident is the first offfence caused by accused respondents, in these circumstances, accused respondents may be punished with sentence undergone/fine and in case they are punished for greater period, they may be enlarged by extending benefit of Uttar Pradesh First Offenders Probation Act, 1938.
8.15. There is no evidence against the accused Dharam Pal. Only interested witnesses have been examined by the prosecution and no independent witnesses have been examined.
8.16. The prosecution has miserably failed to prove its case against the accused-respondents.
9. In support of their contentions, learned counsel for the accused-respondents placed reliance on the decision in Sheo Swarup Vs. King-Emperor1, Tota Singh & Anr. Vs. State of Punjab2, Ramesh Babulal Doshi Vs. State of Gujarat3; Joginder Singh & Another Vs. State of Haryana4; and Muralidhar Alias Gidda & Another Vs. State of Karnataka5.
10. In reply, learned A.G.A. contended that whole incident has to be seen and appreciated in the background facts and intention of accused-respondents. PW-4 Dr. V.K.Mishra stated in his cross examination that both the injuries were grievous and sufficient to cause immediate death. In the facts and circumstances of the case, there is no justification for sentencing the accused-respondents for the sentence undergone or fine or extending them benefit of United Provinces First Offenders Probation Act, 1938.
11. We have given our careful consideration to the rival arguments raised by learned counsel for the parties and perused the record.
12. The sole question crops up for our consideration for determination of this appeal is whether the impugned judgment and order is based on the misreading and misappreciation of the evidence available on record and not sustainable in the eyes of law?
Answer to above question
13. To answer the above question, we are expected to take into consideration the evidence and material available on record, alongwith relevant provisions and case law.
14. Before evaluating the evidence of the witnesses of fact, we would like to discuss here the evidence of formal witnesses.
15. Dr. P.C.Saxena PW-3 has made endorsement at the back of Chitthi Mazroobi on 01.01.1997 at 9.45 p.m. mentioning that Fakir Chand was brought dead and the dead body was kept in the mortuary. Smt. Shyama Devi was medically examined on the same day at 9.50 p.m. and as per injury report Exhibit Ka-3, she has received Hematoma 3 cms. X 2 cms. in the left leg. Except that, no visible injury was found on her person.
16. On the same day at 11.25 p.m. Chandra Sen was also medically examined by Dr. Saxena and prepared injury report, Exhibit Ka-2. He found following injuries on person of the Chandra Sen :
A lacerated wound 4 cms. x 0.5 cm. Skin deep on the middle of head bleeding above 8 cms. from the root of the nose.
17. Injuries of Chandra Sen and Shyama Devi were fresh, ordinary and were caused by the blunt object. Dr. Saxena has also informed by his letter, Exhibit Ka-12, to S.H.O. Kotwali Bareilly that Fakir Chandra was brought dead and after examination of dead body needful may be done in the matter.
18. PW-4 Dr. V.K.Mishra has stated in his deposition that on 02.01.1997 at 3 P.M., he has conducted postmortem on the body of deceased Fakir Chandra, which has been brought by constable CP 1526 Mewa Ram and C/C 803 Mukesh Kumar in sealed condition and identified the deceased aged about 55 years. He has died about one day prior. He was of average built and on the upper and lower part of the body rigor mortis was present. He found following ante-mortem injuries on the body of the deceased :
(i) Lacerated wound on the head bonedeep 1- ½ x 1 cm.
(ii) Hematoma 6 cms. x 4 cms. on left side of Kanpati above 2 cms. from left ear.
19. In the internal examination, both left side parital and temporal bones of head were found fractured. Brain of left side was lacerated and there were clots of blood at various places. About 100 gms. semi digested food was found in the stomach. According to the opinion of doctor, cause of death was coma due to above referred antemortem injury of head. He has proved the postmortem examination report as Exhibit Ka-5. He has said that there is a possibility that the above injuries were caused by Lathi-Danda.
20. In his cross examination he has stated that injury of the head was capable for causing immediate death. Both the injuries were grievous in nature. Injury no.2 could be caused by hitting with any hard object or from falling down. He could not tell as to how the injury no.1 was caused. He also could not tell what were the semi digested food was taken. There was no bleeding from the above injures.
21. PW-5 SI Vijendra Pal Singh, Investigating Officer of the case stated in his deposition that on 01.2.1997, he was posted as S.O. Sheeshgarh. Case Crime No.1 of 1997 was registered in his absence. He has taken over investigation of the case. On that day, he copied written report, FIR and recorded statements of scribe of FIR Jagat Singh and informant Sushila Devi. During investigation, he has inspected the place of occurrence and prepared site plan (Ext. Ka-6), took samples of blood stained and plain soil and prepared memo for taking above sample (Ext. Ka-7). On 14.01.1997, he arrested the accused Girish Pal. He also recorded statements of injured Chandra Sen, Km. Meena and Km.Radha Pathak. He also recorded the statements of Devi Prasad, Ved Prakash, Const. Jayendra Singh, Hatendra Kumar, Smt. Shyama Devi, Dilwar Shah, Tullan, Const.Sewa Ram and Munesh Kumar and copied necessary documents in the case diary. After completing the investigation charged sheet (Ext. Ka-8) was filed against the accused persons Girish Pal, Bhagwan Das, Ravindra and Dharampal. He has also proved Chik FIR, Exhibit Ka-9. Copy of G.D. No.29 at 14.15 dated 01.01.1997 as Exhibit Ka-10, G.D.No.13 at 11.15 dated 03.01.1997 for adding the section 304, Exhibit Ka-11. In his cross examination he has stated that case was registered in his absence. He reached the police station after one hour from registration of the case. As per entries of G.D. injured were sent to the hospital for treatment. When he reached the police station, informant also reached there. This fact is not recorded in the G.D. and he stated this on the basis of his memory. He has denied the suggestion given to him to the effect that no case was registered in his absence and only injured were sent to the hospital along with Mazroobi Chitthi, Head Const. has copied written report submitted by the informant. Injured Fakir Chandra did not come to the police station rather he was brought to the police station after his death and Head Constable sent the injured to the hospital. There is no mention of crime number and sections in the Chitthi Majroobi. Injured were sent for medical examination to Sadar Hospital and not to PHC Bahedi. In the Chitthi Mazroobi it is stated that they were sent to PHC Bahedi. On his own stated that due to serious condition they were being taken to the district hospital. This fact was told to him by Constable Jayendra Singh. He has not made any entry in the CD about the serious condition of the injured. Written report of this case was not in the writing of Sushila Devi rather it was scribed by some one else.
22. In the G.D. Report of the case one blood soaked injury on the head was mentioned. Injuries might have been more than one. In the Chitthi Mazroobi also blood soaked injury on head has been mentioned. He inspected the spot on the identification of Chandra Sen and informant. Informant told him that Ravindra caused head injury to his father on the left side with a Lathi. It was stated by Radha that Ravindra attacked his father with a lathi hitting him on the left side of his head. In Radha's statement it is not stated that Chandra Sen came to her house and requested her father to save him from the accused persons. It is rather written that Bhagwan Das attacked her father with a lathi hitting him on his head. He denied the suggestion that he made forged investigation and prepared forged papers. After reaching the police station and reading the report of Sushila Devi he obtained report scribed by Prakash Saxena and got the case registered on the basis of that. He has not mentioned the time of closing of the evidence with intention to make altercation in that. He instructed the Head Constable not to register any case in his absence. Shyama Devi told him that scuffle took place at the crossing in front of the house of Jhunda Lal. She told him that Girish Pal assaulted her husband with a brick but did not tell him that the brick was picked up from the courtyard. She also informed that Bhagwan Das attacked her husband hitting him on the head with a lathi. She did not state that Ravindra also attacked her husband's shoulder (Muttha) with the lathi and Dharampal attacked his leg with a lathi. She told him that Dharampal caught his hand and scuffled. Bhagwan Das held his kauli.
23. PW-6 Constable Sewa Ram has stated in his deposition that SI Mahipal Singh prepared inquest memo (Exhibit Ka-14) of the dead body alongwith sample seal (Exhibit Ka-15), Challan Lash (Exhibit Ka-16), photo laash (Exhibit Ka-17), letter to CMO (Exhibit Ka-18), letter to RI (Exhibit Ka-19). After preparation of above papers, he sealed the dead body and delivered that to him and Munesh Kumar for postmortem. He went with the dead body to the postmortem house and delivered it to the doctor.
24. For ready reference, we are reproducing herewith evidence of PW-1, PW-2 and PW-7 as under :
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;g ckr lgh gS fd eSa pUnj lsu vkfn eqyftekuksa dks uke ls oyfn;r ls vPNh izdkj ls tkurh gwWaA pUnjlsu us eq>s crk;k Fkk ysfdu eSaus rgjh fjiksVZ esa ;g ckr ugha fy[kh o ?kVuk ds ckcr pUnzlsu us crk;k FkkA ;g rgjhj eSaus Fkkus ij Lo;a fy[kh Fkh bl rgjhj dks fy[kus esa eq>s 10&15 feuV yx x;s FksA eSaus ;g rgjhj njksxk ds nQ~rj esa cSBdj fy[kh Fkh ml le; esjs firk th csgks'k FksA esjs lkFk Fkkus fjiksVZ fy[kkus yxuyky gjh'k o pUnjlsu x;s Fks o esjh ekWa Hkh xbZ FkhA tc esjh fjiksVZ fy[k xbZ mldh udy eq>s fey xbZA fjiksVZ fy[kus ds ckn njksxk th us esjs firk th dks pUnjlsu esjh ekrk ';kek nsoh& dks vLirky Hkst fn;k FkkA cksys MkDVjh ds fy, Hkst fn;k FkkA eq>s ugha ekywe fdl lokjh njksxk o fdrus flikgh lkFk Hksts FksA esjs firk th o vU; pqVSyks dks Fkkus ij eqvk;uk pksVks dk fd;k ;k ugha fd;k eq>s ugha ekywe vLirky Hkstk FkkA njksxk th us eq>s xkWo okyks ds lkFk ?kj Hkst fn;k Fkk Fkkus ij ugha jksdk FkkA esjs ?kj ij dksbZ ugha Fkk NksVs 2 cPps Fks blfy;s eSa ?kj pyh xbZ firk th ds lkFk ugha xbZ FksA esjk C;ku njksxk th us Fkkus ij fy;k FkkA ?kVuk okys fnu ihNs 2 njksxk th esjs ?kj ij ugha vk;s FksA iqfyl okys vk;s FksA ;g /;ku ugha gS fd njksxk th xkao esa dc vk;s Fks ;g ekywe gS uD'kk cukus vk;s Fks fQj dgk uD'kk cukus nwljs fnu vk;s FksA njksxk th us uD'kk esjs lkeus ugha cuk;k FkkA - - - eSaus mudks ?kVuk okyh txg fn[kk nh FkhA mlds ckn og dgkWa pys x;s eq>s ugha ekyweA
;g ckr lgh gS fd punjlsu dks esjs lkeus fdlh us ugha ekjkA pUnjlsu eq>s crk jgk Fkk fd esjs flj esa pksV yxh Fkh eSa vius firk th ds pDdj esa pUnj lsu dh pksV ugha ns[k ikbZA eqyfte Hkxokunkl ds ikl ykBh] jfoUnz ds gkFk esa ykBh Fkh /keZiky ds gkFk esa ykBh Fkh eqyfte fxjh'k iky ds gkFk esa dksbZ gfFk;kj ugha Fkk [kkyh gkFk Fkk mlus uhps ls bZV mBkdj ekj nh mlus ;g ckr Lo;a dghA muds okn rhuksa eqyfteksa us esjs firk th dks ykfB;ksa ls ekjkA Hkxokunkl dh ykBh esjs firk th ds flj esa yxh Fkh vkSj fdldh ykBh eqg esa yxh vkSj /keZiky ds ykBh iSj esa yxh FkhA jfoUnz us esjs firk th ds ykBh ekjh Fkh tks eqB~Bk esa yxh FkhA ;g dguk xyr gS fd jfoUnz dh ykBh esjs firk th ds flj esa okbZ rjQ yxh Fkh eSa bldh dksbZ otg ugha ckr ldrh fd esjs C;ku esa njksxk th us jfoUnz ls ykBh esjs firk th ds flj esa okbZ rjQ yxhA ;g dguk xyr gS fd eSaus ;g ?kVuk u ns[kh gS ;g dguk Hkh xyr gS fd eSa ?kVuk dh [kcj lqudj Fkkus igqpha gwa¡A ;g dguk xyr gS fd esjs Fkkus igqpus ls igys esjs firk th vLirky Hksts tk pqds gks ;g dguk xyr gS fd eSaus Fkkus ij fjiksVZ lykg e'kfojk ls fy[kkbZ gksA ;g dguk xyr gS fd bl ?kVuk dks txuyky o gjh'k ds vykok vkSj fdlh us u ns[kk gksA
;g ckr esjh rgjhj esa ugha fy[kh gS fd fxjh'k us bZV esjs firk th ds flj esa ekj nh vkSj Hkxoku nkl o jfoUnz o /keZiky us ykBh MUMks ls ekjk ftlls esjs firk th ds flj o 'kjhj esa dbZ pksVs vkbZ gSaA ;g ckr Hkh lgh gS fd ?kVuk dks txuyky o gjh'k us ?kVuk dks vPNh rjg ns[kk gSA ;g lgh gS fd gjh'k o txuyky xokg gS vkSj blds vykok dks xokg gks rks eq>ss ugha ekyweA ;g dguk xyr gS fd ?kVuk ds fnu o le; ij jfoUnz ÄVukLFky ij u gksA ;g dguk xyr gS fd tc eSa Fkkus tkus jiV fy[kus dh ckr crkrh gwWa bl le; pUnjlsu esjs lkFk u x;k gksa ;g dguk xyr gS fd esjs firk th vkSj ekrk th lqlhyk nsoh dks bykt ds okLrs ih-,p-lh- cgsjh x;s gksA ;g dguk xyr gS fd esjh ekrk th ds dksbZ pksV u vkbZ gksA
esjs ?kj dk vkaxu dkQh cM+k gSA ;g dguk xyr gS fd pUnjlsu esjs ?kj u vk;k gks vkSj mlus ?kVuk ds okjs esa eq>s dqN u crk;k gksA ;g dguk Hkh xyr gS fd esjs lgu esa u gqbZ gksA ;g dguk xyr gS fd eSaus xkWao ds ikVhZcUnh ds otg ls eqyftekuksa uke ntZ fd;k vkSj >wBh xokgh ns jgh gwWa ;g dguk xyr gS fd esjs firk th dh xkWao esa flj ij pksV vkbZ gks vkSj geus mUgsa ogkWa ls mBkdj Fkkus ys tkdj ?kVuk dh fjiksVZ fy[kkbZA^^
"Smt. Sushihla W/o Late Shri Hari Shankar, Aged around 31 years, Resident of Village Padri, P.S. Sheeshgarh, Bareilly.
Stated on oath that the deceased Fakir Chand was my father. My father was murdered on 01.01.1997 at 5 pm. Chandar Sen came running to our house and he was saying, "Pandit Ji, save me. These people are beating me." In the meantime, Girish Pal, Bhagwan Das, Ravind and Dharmpal came to our place. On this, my father said to them, "Don't beat him at my home." On this, Girish Pal picked up a brickbat and hit my father on his head with it. Bhagwan Das hit lathi on his head. My father slumped to the ground and became unconscious. Dharam Pal and Ravindra had also beaten my father. During this episode, my mother also sustained injuries and the accused also hit her with the lathi. On raising an alarm, Jagan Lal and Harish of the village and other villagers came there.
I along with my mother Shyama Devi took the unconscious father to the police station. I submitted a complaint in connection with this incident at the police station on the basis of which a case was registered. The complaint was shown to the witness. He said, "This is the same complaint which I had submitted with the police station. It bears my signature. It was marked as Ext. Ka-1."
Chandar Sen, who worked as a labourer, had told me that the remuneration for labour work had been paid to Tullan and others. A fight had erupted over the repayment of this very advance. The sub-inspector recorded my statement at the police station. I had narrated the incident to the sub-inspector. I had caused the inspection of the spot (paper torn). He had himself prepared the sitemap.
X X X I saw the incident which had occurred at my home. Except for this, I did not see any incident nor did I hear about any incident. I am married. I was married into Village Bhaagaav, PS Patwai, District Rampur. I reside with my parents. We seldom go to our in-laws' place. On the day of the incident, I was at my home. It is wrong to say that on the day of the incident, I was not at my parental house; rather, I was at my in-laws' place.
It is correct that I know Chandar Sen and other accused persons by their names and by the names of their fathers. Chandar had told this to me but I did not mention this in my written complaint. With respect to the incident, Chandar Sen had informed me. I had myself written this complaint at the police station. It took me 10-15 minutes to write this complaint. I wrote this complaint while sitting in the office of the sub-inspector. My father was unconscious at that time. Jagan Lal, Harish and Chandar Sen had accompanied me to the police station for lodging the complaint. My mother had also accompanied me. After lodging my complaint, I was given its copy. After lodging the complaint, the sub-inspector sent my father, Chandar Sen and my mother Shyama Devi to the hospital. He sent us there for medical examination. I do not know which conveyance was given by the sub-inspector and how many constables were sent with us. I do not know whether or not the injuries caused to my father and other injured persons were inspected or not at the police station but I know they were sent to the hospital. The sub-inspector had sent me to home along with the villagers. He did not retain me at the police station. There was nobody at my home. There were 2 small children. Hence, I left for home and did not accompany my father. My statement was recorded at the police station by the sub-inspector. On the day of the incident, the sub-inspector did not come over to my home following me. The policemen came there following me. I do not remember when the sub-inspector visited the village. I know this very thing that he had visited for preparation of the site map. Then volunteered to say, "He had visited the next day for preparation of the sitemap. The sub-inspector did not prepare the site-map before me. I had shown him the place of occurrence. I do not know where he went thereafter.
It is correct that nobody had beaten Chandar Sen in my presence. Chandar Sen was telling me that he had sustained injury on his head. I could not see the injury of Chandar Sen being concerned over the condition of my father. The accused persons Bhagwan Das, Ravindra and Dharam Pal were carrying lathis in their hands. The accused Girisl Pal was not carrying any weapon. He was empty handed. He picked up a brickbat from the ground and hit with it. He had himself told this. Thereafter, all the three accused persons beat my father with lathis. The lathi of Bhagwan Das hit my father on his head, lathi of another accused hit his mouth and the lathi of Dharam Pal hit him on his leg. Ravindra hit my father with his lathi on his shoulder. It is wrong to say that the lathi of Ravindra hit my father on the left side of his head. I cannot tell why the sub-inspector mentioned in his statement that the lathi of Ravindra had hit the left side of my father's head. It is wrong to say that I did not witness any incident. It is also wrong to say that I have come to the police station on hearing about the incident. It is wrong to say that my father had been sent to the hospital before my reaching the police station. It is wrong to say that I had lodged the complaint at the police station on being tutored. It is wrong to say that nobody had witnessed this incident except Jagan Lal and Harish.
It is not mentioned in my complaint that Girish hit my father's head with a brickbat and Bhagwan Das, Ravindra and Dharam Pal hit my father with lathis and sticks, which caused several injuries on my father's head and body. It is correct that Jagan Lal and Harish had witnessed the incident very well. It is correct that Jagan Lal and Harish are witnesses and I do not know if there is any other witness apart from them. It is wrong to say that Ravindra was not present at the spot on the day and time of the incident. It is wrong to say that Chandar Sen did not accompany me to the police station at the time I had stated to have gone there to lodge the complaint. It is wrong to say that my father and mother Sushila Devi might have gone to PHC Baherhi for treatment. It is wrong to say that my mother did not sustain any injury.
The courtyard of my home is very big. It is wrong to say that Chandar Sen did not come to my home and he did not tell me anything about the incident. It is also wrong to say that the incident did not occur in my courtyard. It is also wrong to say that I had named the accused persons out of groupism in the village and that I am giving false testimony. It is wrong to say that my father had sustained injury on his head at the village and that we had taken him from there to the police station and reported the incident."
(English Translation by the Court)
^^ih0MCyw0 2
03-08-2001
dq0 jk/kk iq=h Lo0 Jh Qdhj pUnz mez djhc 17 lky fu0 xzk0 iMjh Fkkuk 'kh'kx<+ cjsyhA
ogyQ c;ku fd;k fd lq'khyk nsoh esjh cgu gSA ?kVuk ds le; ;g vius ekrk firk ds lkFk jg jgh Fkh pUnzlsu dks eSa tkurh gwWa og esjs xkao ds gSA e`rd Qdhj pUn esjs firk th gR;k 01-01-97 dks gqbZ FkhA 'kke ds ikap cts dk le; FkkA pUnjlsu gekjs ?kj esa ?kql vk;k FkkA pUnjlsu mRrj dh rjQ ls gekjs ?kj esa ?kqlk FkkA esjs edku ds nks njokts gSa ysfdu pUnjlsu mRrj dh rjQ ls vk;k Fkk esjs edku ds mRrj rjQ pkSjkgk gS mlh rjQ ls pUnjlsu ?kj esa Äqlk FkkA mlds ihNs Hkxokunkl] jfoUnz] /keZiky vk x;sA pUnjlsu us dgk iafMr th ;g yksx eq>s ekj jgs gS ges cpk yksA rks esjs firk th us dgk gekjs ?kj esa bldks ugha ekjksA blh ckr ij fxjh'k iky us esjs firk th ds lj ij bZV ekj nh Hkxoku nkl us flj esa esjs firk th ds ykBh ekjhA esjh ekrk ';kek nsoh dks Hkh pksV yxhA bl ij ekjihV esa esjs firk th csgks'k gks x;s FksA 'kksj ij xokgku txuyky] yksx vk x;s FksA ;g yksx xokgh ugha nsaxs D;ksafd ;g yksx eqyftekuksa ls fey x;s gSaA esjs ogu lq'khyk nsoh esjs osgks'k firk o ekrk th dks ysdj Fkkus x,A ?kVuk ds ckor njksxk th us esjk C;ku fy;k FkkA eSaus tks ?kVuk gqbZ Fkh og njksxk th dks crk nh FkhA
ftl le; pUnjlsu ?kj esa vk;k eSaus ml le; mlds flj esa dksbZ pksV ugha ns[kh Fkh pUnjlsu ds lkFk dksbZ vkneh ugha vk;k FkkA pUnjlsu gekjs ?kj ds vkaxu esa vk x;k ml le; esjs firk th vakxu ds chpks chp esa FksA pUnzlsu muds ikl vkdj cksyk FkkA mlus ;g cksyk fd iafMr th ;g yksx eq>s ekj jgs gSa ges vki cpk yksaA ;g dguk xyr gS fd pUnjlsu gekjs ?kj esa u vk;k gks vkSj mlus ,slk u cksyk gks vxj esjs C;kuksa esa ;g ckr ugha fy[kh gS fd pUnjlsu us ?kj esa vkdj ;g dgk fd iafMr th eq>s cpk yks ;g yksx eq>s ekj jgs gSa ugha fy[kh gS rks eSa mldh dksbZ otg ugha crk ldrh tc esjs firk th us lcls igys - - - pUnjlsu esjs Äj esa ?kql vk;k rks fxjh'k iky us esjs firk th ds bZV ekjh lcls igysA mlds ckn Hkxokunkl us esjs firk th ds ykBh ekjhA ;g dguk xyr gS fd Hkxoku nkl us esjs firk th ds ykBh u ekjh gks eSaus njksxk th dks vius C;ku esa crk fn;k Fkk fd Hkxokunkl us esjs firk th ykBh flj esa ekj nhA mijksDr ckr fd Hkxoku nkl us ykBh ekjh tks esjs firk th ds flj esa yxh ugha fy[kh gS rks eSa bldh dksbZ otg ugha crk ldrhA ;g dguk xyr gS fd tc esjs firk th us euk fd;k gS vkSj chp cpko djus yxs gks rks jfoUnz us esjs firk th ds flj esa ykBh ekjh [kqn dgk fd Hkxoku nkl us esjs firk th ds flj esa ykBh ekjhA vxj njksxk th us esjs C;ku esa ;g ckr fy[kh gS fd jfoUnziky us esjs firk th ds flj esa ykBh ekj nh chp cpko djus ij rks ;g dSls fy[ks gS bldh eSa otg ugha crk ldrhA ;g dguk Hkh xyr gksxk fd esjs firk th dks esjs vkaxu esa dksbZ pksV u vk;h gks ;g dguk Hkh xyr gksxk fd muds tks pksV vk;h gS og eSaus u ns[kh gks ;g dguk Hkh xyr gksxk fd eSaus ?kVuk u ns[kh gksA ;g dguk Hkh xyr gksxk fd eSaus ÄVuk u ns[kh gksA ;g dguk Hkh xyr gksxk fd esjs firk th dks eq>s NksVs yky ds ?kj ds ikl ls mBkdj Fkkus ys x;sA ;g dguk xyr gS fd tc firk th dks pqVSy gkyr esa esjh ogu lq'khyk esjk HkkbZ pUnj lSu firk th QdhjpUnz ekWa ';keknsoh xkWao ds rkWaxs esa cSBdj Fkkus x;s FksA vkSj muds vykok vU; dksbZ O;fDr u x;k gksA buds vykok pUnjlsu txuyky o gjh'k x;s FksA eSaus crk fn;k Fkk fd esjs firk th ds lkFk pUnjlsu txuyky o gjh'k Hkh x;s FksA eSaus crk fn;k Fkk vxj esjs C;kuksa esa njksxk th us ;g ckr ugha fy[kh rks eSa bldh dksbZ otg ugha crk ldrhA ;g dguk xyr gS fd pUnjlsu esjs ?kj ugha ?kqlk u eqfYte esjs ?kj esa ?kqls ;g dguk Hkh xyr gS fd eqdnesa dks rjrho nsus dh otg ls ;g ckr dg jgh gSA**
"03.08.2001
Kumari Radha, D/o Late Shri Fakir Chand (sic), Aged around 17 years, R/o Village Padri, PS Sheeshgarh, Bareilly.
Stated on oath that Sushila Devi is my sister. At the time of the incident, I was residing with my parents. I know Chandar Sen. He belongs to my village. My father, deceased Fakir Chand was murdered on 01.01.1997. It was 5 pm. Chandar Sen had entered our house. Chandar Sen had entered our house from the north side. My house has two doors but Chandar Sen had come from the north side. There is an intersection (chowraha) to the north of my house. Chandra Sen had come into my house from that very direction followed by Bhagwan Das, Ravindra and Dharam Pal. Chandra Sen said, "Pandit Ji, these people are beating me. Please save me." On this, my father told them not to beat him in his house. On this, Girish Pal hit a brickbat on my father's head. Bhagwan Das hit lathi on my father's head. My mother Shyama Devi also sustained injuries. During this episode, my father fell unconscious. On hearing the noise, the witness Jagan Lal and other witnesses reached there. These people will not give testimonies because they have come to collude with the accused persons. My sister Sushila Devi took my mother and unconscious father to the police station. The sub-inspector recorded my statement with respect to the incident. I had narrated the incident to the sub-inspector.
X X X When Chandar Sen came to our house, I did not see any injury on his head. Nobody came with Chandar Sen. Chandar Sen had come in the courtyard of our house. At that time, my father was precisely in the centre of the courtyard. Chandar Sen approached him and said, "Pandit Ji, these persons are beating me. Please save me." It is wrong to say that Chandar Sen did not come to our house and that he did not say such a thing. I cannot tell why it is not mentioned in my statement that Chandar Sen came to our house and said, "Pandit Ji, save me; these persons are beating me." When my father and first (sic)..... When Chandra Pal entered our house, Girish Pal was first to hit my father on his head with a brickbat. Thereafter, Bhagwan Das hit my father with a lathi. It is wrong to say that Bhagwan Das did not hit my father with the lathi. In my statement, I told the sub-inspector that Bhagwan Das hit lathi on the head of my father. I cannot tell any reason if this is not mentioned in my statement that Bhagwan Das hit lathi thereby hitting my father's head. It is wrong to say that when my father restrained them and intervened into the matter, Ravinder hit lathi on my father's head. Volunteered to say that Bhagwan Das hit lathi on my father's head. If the sub-inspector has mentioned in my statement that on intervention by my father, Ravindar Pal hit lathi on my father's head, I cannot tell any reason for this as to how it came to be written there. It will also be wrong to say that my father did not sustain any injury in our courtyard. It will also be wrong to say that I did not see the injury caused to him. It will also be wrong to say that I did not witness any incident. It will also be wrong to say that (sentence unclear here). It is wrong to say that (when) my injured father was taken from the village to the hospital in a horse driven cart by my mother Sushila, my brother Chandar Sen, father Fakeer Chandra, mother Shyama Devi and no other person apart from them went with him to the police station. Apart from them, Chandar Sen, Jagan Lal and Harish had accompanied. I had told that Chandar Sen, Jagan Lal and Harish had also gone with my father. I cannot tell any reason if the sub-inspector haven't mentioned this in my statement. It is wrong to say that Chandar Sen did not enter my house and nor did the accused enter my house. It is also wrong to say that I am telling this in order to establish the case."
(English Translation by the Court)
^^ih0MCyw0 7
fnukad 25-02-03
c;ku Jherh ';kek nsoh iRuh Lo0 Qdhj pUnz] mez 55 o"kZ fuoklh iMjh Fkkuk 'kh'kx<+ cjsyh us l'kiFk dgk fd vkt ls djhc 6 lky nks ekg igys dh ckr gS 'kke ds ikap cts dk le; FkkA eSa vkius ?kj esa FkhA pUnzlsu xaxokj esjs ?kj esa Hkkxdj vk;k Fkk mlds ihNs fxjh'kiky Hkxoku nkl] johUnz o /keZiky vk;s FksA esjs ?kj ds vkaxu esa ?kql vk;s FksA
pUnzlsu us esjs ifr ls dgk fd iafMr th eq>s cpk yks ;s yksx eq>s ekj jgs gS eq>s cpk yksaA esjs ifr us pkjks yksxksa ls dgk fd ;gkWa er ekjks blh ckr ij fxjh'k iky us bZV mBkdj esjs ifr ds flj esa ekj nh vkSj Hkxokunkl us flj esa ykBh ekjh] jfoUnz us esjs ifr ds eqVBs ij ykBh ekjh] /keZiky us ifr ds iSj ij ykBh ekjha tc eSa cpkus xbZ rks jfoUnz us nkfgus iSj esa esjs ykBh ekjhA
pksV [kkdj esjs ifr fxj x;s vkSj csgks'k gks x;sA ml le; ?kj esa eSa o esjh yMfd;ka lq'khyk] jk/kk o esjs ifr ?kj ij FksA eq>s cpkus tkxu o gjh'k tks esjs xkao ds gS vkSj eqyfteku ds fj'rsnkj gS cpkus vk;sA rHkh ;s yksx ekjdj mRrj dks Hkkx x;sA
rkaxs ls eSa o esjs ifr] lq'khyk Fkkus x;sA Fkkus esa iqfyl okyks us dgk fd bUgsa rqe lh/ks cjsyh vLirky ys tkvksaA jiV dk eq>s ugha irk ckn esa fy[kkbZ gksxhA
eSa vius ifr dks ysdj cjsyh pyh vkbZ iqfyl dk flikgh ge yksxksa ds lkFk vk;sA vLirky esa MkDVj us ns[kdj dgk fd ;g ej pqds gSaA
xkao esa gekjk ,d gh ?kj gSA xkao esa vkSj fcjknjh ds yksx Hkh jgrs gSa eqlyeku] dqehZ pekj] rsyh jgrs gSaA t;knk eqlyeku o xaxokj gSaA gekjs xkao esa dqfeZ;ks dk cksyckyk gSA blfy,s buds f[kykQ dksbZ yksx xokgh nsuk ugha pkgrs gSaA eqyfteku dqehZ tkfr ds gSA
esjk Hkh MkDVjh eqvk;uk gqvk FkkA
eSa >q.Mk ds ?kj ds ikl ekjihV ds ckjs esa ugha tkrh gwWaA D;ksafd eSa ?kj esa FkhA
njksxk th us iwNrkaN dh FkhA njksxk th nwljs rhljs fnu eq>ls iwNrkaN dh FkhA
eSaus njksxk th dks ;g c;ku ugha fn;k Fkk fd ^^>q.Mk ds edku ds ikl pkSjkgs ij ekjihV gks jgh Fkh**A ;fn ;g ckr fy[kh gS rks eq>s ugha irkA eSa bldk dkj.k ugha crk ldrhA
Hkxokunkl] jfoUnz o /keZiky ds ikl ykfB;ka FkhA eSaus njksxk th dks ;g ckr crkbZ FkhA
eSaus njksxk th dks ;g c;ku fn;k Fkk fd Hkxoku nkl us ykBh ekjh tks esjs ifr ds flj ij yxhA ;fn njksxk th us c;kuksa esa ugha fy[kk gS rks eSa dkj.k ugha crk ldrhA
fxjh'k iky [kkyh gkFk Fkk fxjh'k iky us gekjs vkaxu ls bZaV mBk yh vkSj iafMr th ds flj esa ekjhA
pUnzlsu us iafMr th ls dgk fd eq>s cpk yks ;g yksx eq>s ekj jgs gSa ;g ckr eSaus njksxk th dks crk nh Fkh ;fn njksxk th us esjs c;kuksa esa ugha fy[kh gS rks otg ugha crk ldrhA
njksxk th dks ;g ckr Hkh crk nh Fkh jfoUnz us ykBh esjs ifr ds eqVBs ij ekjh ;fn ;g njksxk th us c;kuksa esa ugha fy[kk gS rks otg ugha crk ldrhA
;g ckr Hkh njksxk th dks crk nh Fkh fd /keZiky us esjs ifr ds iSjksa esa ykBh ekjh ;fn ;g njksxk th us c;kuksa esa ugha fy[kk gS rks otg ugha crk ldrhA
;g dguk xyr gS fd eSaus dksbZ ?kVuk uk ns[kh gks vkSj ?kVuk ds le; ekStwn ugha FkhA
;g dguk Hkh xyr gS fd eqyfteku esjs ?kj esa vk;s gks vkSj dksbZ ekjihV gqbZ gksA
;g dguk Hkh xyr gS fd njksxk th us igys eq>s le>k fn;k gks fd ,slk c;ku nsukA
;g dguk Hkh xyr gS fd tc esjs ifr us pUnzlsu dks ekjus ls euk fd;k rks /keZiky us xqRFke xqRFkk dh gks rFkk Hkxokunkl us ihNs ls dkSfy;k Hkj yh gks o fxjh'k us ?ksj dj bZV ekj nh gksA
eSaus njksxk th dks ;g c;ku ugha fn;k Fkk fd /keZiky us gkFk idM+ dj xqRFke xqRFkk dh rks Hkxoku nkl us esjs ifr dks ihNs ls dkSfy;k Hkj yh o fxjh'k iky us ?ksjs dj bZV ekjh tks lj esa yxhA vxj ;g ckr njksxk th us esjs c;kuks esa fy[kh gS rks xyr gS eSa otg ugha crk ldrhA Lo;a dgk fd ?ksjsdj ugha ekjh bZV mBkdj lj ij ekjhA
esjs ifr ds [kwu ugha fudyk Fkk tjk lk Nydk FkkA eSa ugha crk ldrh fd esjs ifr dh fdrus cts e`R;q gqbZA
;g dguk xyr gS fd eSaus >wBk c;ku fn;k gks o ekSds ij ekStwn u jgha gwWa vkSj esjs dksbZ pksV uk vkbZ gksA
esjk fdlh ls xkao esa dksbZ eqdnek ugha py jgk gSA**
"25.02.2003
PW 7
Smt. Shyama Devi w/o Late Fakir Chandra, aged 55 years, r/o Padari, PS Sheeshgarh, Bareilly has stated on oath: This incident occurred around 6 years back. It was 5 p.m. I was present at my home. Chandrasen Gangwar came running to my house being chased by Girish Pal, Bhagwan Das, Ravindra and Dharm Pal. They entered my courtyard.
Chandra Sen said, "Pandit ji mujhe bacha lo, ye log mujhe maar rahe hain, mujhe bacha lo (Pandit Ji, please save me. These people are beating me, save me)". My husband told all the four persons not to assault him there. On this, Girish Pal assaulted my husband with a brickbat while Bhagwan Das did so with lathi. Ravindra hit my husband's shoulder and Dharm Pal assaulted on my husband's leg. When I went there to save him, Ravindra inflicted Lathi blow on my right leg.
Being hit, my husband fell down and became unconscious. At that time my daughters Sushila and Radha, my husband and I were present at home. Jagan and Harish, relatives of accused and natives of my village came over there to our rescue. At that very time, these people having assaulted fled northwards.
My husband, Sushila and I went to the police station on a tanga (horse- driven cart) where policemen advised us to take him along straight away to Bareilly hospital. I am not aware of the report; it might have been registered later on.
Taking along my husband I came to Bareilly accompanied by police constables. In the hospital the doctor examined and declared him dead.
We have only one house in the village. It is inhabited by people belonging to many other communities such as Muslims, Kurmi, Chamar, Teli. Majority of them are Muslims and Gangwars. Our village is dominated by Kurmis; that's why no body dares to depose against them. The accused belong to Kurmi caste.
I, too, was medically examined.
x x x x (Sic)
I do not know about any clash near Jhunda's house because I was inside my home.
Sub Inspector had interrogated me. He had interrogated me on second and third days.
I did not give statement to Sub Inspector, "Jhunda ke ghar ke pass chaurahe me maar peet ho rahi thi". If he did not mention, I cannot state its reason.
Bhagwan Das, Ravindra and Dharm Pal were wielding lathies. I had mentioned it to the Sub Inspector.
I had given statement to Sub Inspector that Bhagwan Das gave lathi blow on my husband's head. If Sub Inspector has not mentioned this in my statement, I cannot assign its reason.
Girish Pal was empty handed who had picked a brickbat from our courtyard and hit it against the head of Pandit Ji.
Chandra Sen had appealed to Pandit Ji, "Please save me, these people are beating me". I had mentioned this fact to Sub Inspector, if Sub Inspector did not mention this in my report, I cannot specify the reason.
I mentioned this to Sub Inspector that Ravindra had given Lathi blow on my husband's shoulder . If Sub Inspector did not mention this in my statement, I cannot assign its reason.
I mentioned to Sub Inspector that Dharm Pal had given lathi blow on my husband's leg. If the Sub Inspector did not mention this in my statement, I cannot tell it reason.
It is wrong to say that I did not witness any incident and was not present at the time of occurrence.
It is wrong to say that the accused might have come to my house and committed any thrashing.
It is also wrong to say that Sub Inspector might have tutored me to testify such statement.
It is also wrong to say that when my husband forbade Chandra Sen to beat, Dharm Pal might have scuffled with him, Bhagwan Das might have taken him in his grasp and Girish might have cornered and assaulted him with brickbat.
I did not give statement to Sub Inspector that Dharm Pal had scuffled with my husband gripping his hand, Bhagwan Das had taken him in his clutches from behind while Girish Pal had assaulted him with a brickbat causing injury to his head. If Sub Inspector mentioned this fact in my statement, I cannot assign its reason. Volunteered to say that he had assaulted not by laying a siege to him, rather he had hit him on the head by picking up a brickbat.
Blood had not oozed out from my husband's head; it had spilled out a little. I cannot say at what time my husband died.
It is wrong to say that I have given a false testimony and might not have been present on the spot and sustained any injury.
I am not into any litigation with anybody in the village."
(English Translation by the Court)
25. Above memo was entered into the GD Rapat No.23, Exhibit Ka-13, dated 02.01.1997 at 22.53 p.m.. On the above information S.I. Mahipal Singh reached to the spot and prepared inquest memo, Exhibit Ka 14, of the dead body in the presence of Chandrabhoj, Surya Prakash, Harish Kumar, Jagan Lal and Mahesh Chandra Panchan. He has also prepared sample seal, Exhibit Ka-15, police paper no-13, Exhibit Ka-16 Photo of Dead body, Exhibit Ka-17, letter to C.M.O. Exhibit Ka-18, letter to R.I., Exhibit Ka-19, in Police Form No.33 and sent the dead body for postmortem in the escort of Const. Sewa Ram and Const. Munesh Kumar.
26. In Sheo Swarup (supra) the Court in para 7, 8 and 9 held as under:
"7. Many authorities were cited to their Lordships which undoubtedly reveal differences of views as to the powers of the High Court in dealing with an appeal, from an order of acquittal on a matter of fact. No useful purpose will be served by examining this long list of decisions. It will suffice if their Lord-ships state the conclusion which they have reached as the result of careful consideration of the full arguments which were addressed to them.
8. There is, in their opinion, no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has "obstinately blundered," or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice", or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.
9. Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."
27. In Tota Singh & Anr. (supra) the Court in para 6 held as under :
"6. The High Court has not found in its judgment that the reasons given by the learned Sessions Judge for discarding the testimony of P.W. 2 and P.W. 6 were either unreasonable or perverse. What the High Court has done is to make an independent reappraisal of the evidence on its own and to set aside the acquittal merely on the ground that as a result of such reappreciation, the High Court was inclined to reach a conclusion different from the one recorded by the learned Sessions Judge. This Court has repeatedly pointed out that the mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous."
28. In Ramesh Babulal Doshi (supra), the Court in para 7 held as under :
"7. Before proceeding further it will be pertinent to mention that: the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While setting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not."
29. In Joginder Singh & Another (supra) the Court in paras 6, 12 and 13 held as under :
"6. The law thus seems to be clearly settled to the effect that if there are two possible versions and the court of sessions adopted one such version, question of recording reversal of an order of acquittal by reason of the fact that if there was any independent appraisal by the High Court, the High Court could have come to a different conclusion, could not arise. Mere possibility of having that version ought to prompt the high Court to accept the findings and conclusion of the learned trial judge. The matter presently under consideration, however, is not in accordance therewith.
......
12. Coming back to the first count of Mr. Dhanda's submission that the two eye witnesses were there who are supposed to be independent and as such there is a direct evidence available on record which the court should accept as trustworthy. We are, however, unable to record our concurrence therewith as well. By reason of the facts stated above, question of having credence and acceptability being attributed to the evidence of the eye witness does not arise. The learned sessions judge did not find it expedient to rely on the evidence and as such acquitted the accused persons on the ground of benefit of doubt. The High Court thought it fit to run counter to the appraisal of the evidence and independently appraised without delving into the issue as noticed in the two judgments above.
13. We do find some justification in the submission of Mr. Sushil Kumar as also that of Mr. Ranjit Kumar, that the case made out by the prosecution in either of the matters cannot withstand the test of proof beyond all reasonable doubts. The doubt stands created and which doubt being a part of the criminal jurisprudential system should entail an order of acquittal on the ground of benefit of doubt."
30. In Muralidhar Alias Gidda & Another (supra) the Court in paras 10 to 12 held as under :
"10. Lord Russell in Sheo Swarup v. King Emperor : AIR 1934 PC 227], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said: (IA p.404)
"... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh v. State : AIR 1952 SC 52 while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Code of Criminal Procedure observed: (AIR p. 54, para 7)
"7. ..... the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu v. State : AIR 1954 SC 1], Madan Mohan Singh v. State of U.P. : AIR 1954 SC 637], Atley v. State of U.P. : AIR 1955 SC 807], Aher Raja Khima v. State of Saurashtra : AIR 1956 SC 217], Balbir Singh v. State of Punjab : AIR 1957 SC 216], M.G. Agarwal v. State of Maharashtra : AIR 1963 SC 200], Noor Khan v. State of Rajasthan : AIR 1964 SC 286], Khedu Mohton v. State of Bihar : (1970) 2 SCC 450], Shivaji Sahabrao Bobade v. State of Maharashtra : (1973) 2 SCC 793], Lekha Yadav v. State of Bihar : (1973) 2 SCC 424], Khem Karan v. State of U.P. : (1974) 4 SCC 603], Bishan Singh v. State of Punjab : (1974) 3 SCC 288], Umedbhai Jadavbhai v. State of Gujarat : (1978) 1 SCC 228], K. Gopal Reddy v. State of A.P. : (1979) 1 SCC 355], Tota Singh v. State of Punjab : (1987) 2 SCC 529], Ram Kumar v. State of Haryana : 1995 Supp (1) SCC 248], Madan Lal v. State of J and K : (1997) 7 SCC 677], Sambasivan v. State of Kerala : (1998) 5 SCC 412], Bhagwan Singh v. State of M.P. : (2002) 4 SCC 85], Harijana Thirupala v. Public Prosecutor, High Court of A.P. : (2002) 6 SCC 470], C. Antony v. K.G. Raghavan Nair : (2003) 1 SCC 1], State of Karnataka v. K. Gopalakrishna : (2005) 9 SCC 291], State of Goa v. Sanjay Thakran : (2007) 3 SCC 755] and Chandrappa v. State of Karnataka : (2007) 4 SCC 415]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
31. There is no dispute about the verdicts of the Court given in the above referred cases relied by learned counsel for the accused-respondents. However, we may also refer here observations of Hon'ble Apex Court in Sadhu Saran Singh Vs. State of U.P.6 wherein the Court in paras 18, 19 and 20 said as under:
"18. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, in the case of Sambasivan and Others V. State of Kerala, (1998) 5 SCC 412, has held :
"The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal are well settled. The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate Court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal".
19. This Court, in several cases, has taken the consistent view that the appellate Court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate Court, on scrutiny, finds that the decision of the Court below is based on erroneous views and against settled position of law, then the interference of the appellate Court with such an order is imperative.
20. This Court in Chandrappa V. State of Karnataka, (2007) 4 SCC 415, after referring to a catena of decisions, has laid down the following general principles with regard to powers of the appellate Court while dealing with an appeal against an order of acquittal:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge :
An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
Various expressions, such as, ''substantial and compelling reasons', ''good and sufficient grounds', ''very strong circumstances', ''distorted conclusions', ''glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language' to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
32. In Bhagwan Singh and Ors. Vs. State of M.P.7, the Court in para 7 said :
"7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. In the instant case the trial court acquitted the respondents by not relying upon the testimony of three eye- witnesses, namely, Kiran (PW7), Mukesh (PW12) and Jagdish (PW22) on considerations which apparently appeared to be extraneous. Such findings of acquittal apparently are based upon erroneous views or the result of ignoring legal and admissible evidence with the result that the findings arrived at by the trial court are held to be erroneous. The High Court has ascribed valid reasons for believing the statements of those witnesses by pointing out the illegalities committed by the trial court in discarding their testimonies. The High Court has also rightly held that the trial court completely ignored the basic principles of law in criminal jurisprudence which entitles the accused to claim the benefit of right of self-defence. Without there being any legal and admissible evidence but swayed by finding some injuries on the person of the accused, the trial court wrongly held that the respondents were justified in causing the death of three persons in exercise of their right of self-defence. No fault, therefore, can be found in the judgment of the High Court on this ground."
33. In Ramesh & Ors. Vs. State of Haryana8 the Court in paras 21 to 24 said :
21. .... The scope of interference in an appeal against acquittal is undoubtedly narrower than the scope of appeal against conviction. Section 378 of the Code of Criminal Procedure, 1973 confers upon the State a right to prefer an appeal to the High Court against the order of acquittal. At the same time, Sub-section (3) thereof mandates that such an appeal is not to be entertained except with the leave of the High Court. Thus, before an appeal is entertained on merits, leave of the High Court is to be obtained which means that normally judgment of acquittal of the trial court is attached a definite value which is not to be ignored by the High Court. In other words, presumption of innocence in favour of an accused gets further fortified or reinforced by an order of acquittal. At the same time, while exercising its appellate power, the High Court is empowered to reappreciate, review and reconsider the evidence before it. However, this exercise is to be undertaken in order to come to an independent conclusion and unless there are substantial and compelling reasons or very strong reasons to differ from the findings of acquittal recorded by the trial court, the High Court, as an appellate court in an appeal against the acquittal, is not supposed to substitute its findings in case the findings recorded by the trial court are equally plausible. The scope of interference by the appellate court in an order of acquittal is beautifully summed up in the case of Sanwat Singh v. State of Rajasthan : 1961 SCR (3) 120 in the following words:
"The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.
22. This legal position is reiterated in Govindaraju @ Govinda v. State by Sriramapuram Police Station and Anr. : (2012) 4 SCC 722 and the following passage therefrom needs to be extracted:
12. The legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 Code of Criminal Procedure. This is an indication that appeal from acquittal is placed on a somewhat different footing than a normal appeal. But once leave is granted, then there is hardly any difference between a normal appeal and an appeal against acquittal. The concept of leave to appeal Under Section 378 Code of Criminal Procedure has been introduced as an additional stage between the order of acquittal and consideration of the judgment by the appellate court on merits as in the case of a regular appeal. Sub-section (3) of Section 378 clearly provides that no appeal to the High Court under Sub-section (1) or (2) shall be entertained except with the leave of the High Court. This legislative intent of attaching a definite value to the judgment of acquittal cannot be ignored by the courts.
13. Under the scheme of Code of Criminal Procedure, acquittal confers rights on an accused that of a free citizen. A benefit that has accrued to an accused by the judgment of acquittal can be taken away and he can be convicted on appeal, only when the judgment of the trial court is perverse on facts or law. Upon examination of the evidence before it, the appellate court should be fully convinced that the findings returned by the trial court are really erroneous and contrary to the settled principles of criminal law.
23. The Court also took note of earlier precedents and summarised the legal position laid down in those cases, in the following words:
17. If we analyse the above principle somewhat concisely, it is obvious that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
18. There are no jurisdictional limitations on the power of the appellate court but it is to be exercised with some circumspection. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than that from the conviction of an innocent. If there is miscarriage of justice from the acquittal, the higher court would examine the matter as a court of fact and appeal while correcting the errors of law and in appreciation of evidence as well. Then the appellate court may even proceed to record the judgment of guilt to meet the ends of justice, if it is really called for.
xx xx xx
22. A very vital distinction which the court has to keep in mind while dealing with such appeals against the order of acquittal is that interference by the court is justifiable only when a clear distinction is kept between perversity in appreciation of evidence and merely the possibility of another view. It may not be quite appropriate for the High Court to merely record that the judgment of the trial court was perverse without specifically dealing with the facets of perversity relating to the issues of law and/or appreciation of evidence, as otherwise such observations of the High Court may not be sustainable in law.
24. The appellate court, therefore, is within its power to reappreciate or review the evidence on which the acquittal is based. On reconsideration of the evidence on record, if the appellate court finds the verdict of acquittal to be perverse or against the settled position of law, it is duly empowered to set aside the same. On the other hand, if the trial court had appreciated the evidence in right perspective and recorded the findings which are plausible and the view of the trial court does not suffer from perversity, simply because the appellate court comes to a different conclusion on the appreciation of the evidence on record, it will not substitute its findings to that of findings recorded by the trial court."
34. It reflects from perusal of the judgment and order impugned that the Court below has disbelieved the prosecution case mainly on the following grounds:
(A) Non-examination of Chandra Sen (injured), Tullan (the person from whom Chandra Sen demanded back money advanced to him), Jagan Lal (eye-witness), Harish (eye-witness) and Om Prakash Saxena (Scribe of the FIR).
(B) On 01.01.1997 PW-3 Dr.P.C.Saxena, during medical examination, found that Fakir Chand was brought there as dead.
(C) At 9.50 P.M., he has examined PW-7 Smt. Shyama Devi. He also examined injured Chandra Sen at 11.25 P.M. brought by Bhagwan Das Gangwar (Bhanja-son of Sister) and not by police.
(D) Letters for medical examination of Fakir Chand and PW-7 were written to P.H.C. Bahedi while that of Chandra Sen to Sadar Hospital though all were medically examined at Sadar Hospital.
(E) Crime Number was not mentioned on above letters for medical examination of injured, injury reports and inquest report (ruling relied) shows FIR ante-timed.
(F) Injury report of PW-7 Shyama Devi not reliable as column of mark of identification is left blank. Meaning thereby, she did not appear before doctor at the time of medical examination. She deposed that Ravindra gave lathi blow on her right leg while in the injury report, injury has been shown on the left leg.
(G) PW-2 Km. Radha is not named in the FIR. She also not deposed against the accused Ravindra and Dharam Pal.
(H) Investigation of the case is defective.
(I) No injury was found on muttha and leg of the deceased.
(J) No question has been asked to the doctor about date and time of injury.
(K) Documentary evidence, panchayatnama Ext.Ka-14, sample seal Ext Ka-15, Challan Laash Ext. Ka-16, Photo Laash Ext. Ka-17, Letter to CMO Ext. Ka-18 and letter to RI Ext. Ka-19 proved by secondary evidence by PW-6 which is not permissible in view of the availability of author thereof.
35. Learned counsel for the accused-respondents stressed upon the various contradictions and infirmities in the evidence of PW-1, PW-2 and PW-7 and submitted on that behalf that their testimonies are not reliable and liable to be discarded altogether.
36. In this regard he invited our attention towards following contradictions, omissions and improvements in the evidence of above witnesses.
37. Admittedly PW-1 has not witnessed the entire incident and has witnessed only the part of the incident occurred in her house and not the remaining part of the incident occurred outside her house. No one had beaten Chandra Sen in front of her house. She had also not seen the head injury of Chandra Sen. She has not written in her report that Chandra Sen had told him about the incident. In her evidence she had stated that lathi of Ravindra hit Muttha of her father while in her statement recorded under Section 161 Cr.P.C. she said that lathi of Ravindra had hit left side of her father's head. She has also not written in her report that Girish hit brickbat on the head of her father and other accused-respondents Bhagwant Das, Ravindra and Dharam Pal gave lathi blows to her father due to which her father received injuries on his head and body.
38. PW-2 Km. Radha is not named as a witness in the FIR. She has also not given evidence regarding participation of accused respondents Ravindra and Dharampal in the incident and making attack on her father. She has also not seen the injury on head of Chandra Sen. She claimed that Chandra Sen appealed to her father to save him, Bhagwan Das gave lathi blows on her father's head. Chandra Sen, Jagan Lal and Harish also went police station alongwith her father but these facts do not find place in her statement recorded under Section 161 Cr.P.C. She has also retracted from her earlier statement regarding hitting of lathi on her father's head.
39. PW-7 told in her evidence that she received injury on her right leg with the lathi blow by Ravindra but in her injury report, Ext. Ka 3, the injury was found on her left leg. Not only this, column of marks of identification of above injury report is also left blank which caste serious doubt about her presence before the doctor at the time of medical examination. She claimed that she told the I.O. that Bhagwan Das gave lathi blow on the head of her husband, Girish Pal picked the brickbat from her courtyard and hit that on the head of Panditji (her husband), Chandra Sen appealed to her husband to save him from accused-respondents who were beating him, Ravindra gave lathi blow on Muttha of her husband and Dharampal gave lathi blow on legs of her husband but above facts are not mentioned in her statement recorded under Section 161 Cr.P.C. She retracted her earlier statement that a scuffle took place at the Chauraha/crossroads near the house of Jhunda and Dharampal had scuffled with her husband gripping his hand, Bhagwan Das had taken him in his clutches from behind while Girish Pal had assaulted him with a brickbat causing injury to his head.
40. The above referred contradictions, omissions etc. of trivial and minor nature not affecting the prosecution case in respect of date, time, place and manner etc. of the incident and what ever directions came in their evident, that is probably due to long lapse of time between the incident and recording of evidence of above witnesses. Apart from this, all the above witnesses are uneducated rustic person having a village background and fair admissions by them that they have not seen injury on the head of Chandra Sen and none had beaten him before them and they are aware only about the part of incident which took place within the house of deceased ensure the ring of truth in their statements.
41. In Fazar Ali and Ors. Vs. State of Assam9, the Apex Court in paras 20, 21, 22 and 24 said :
"20. All the eye-witnesses have assigned the role of all the Accused of causing injuries in their statements. PW. 1 and PW. 4 are two independent witnesses who have also proved the incident and role of the accused. The mere fact that, there are certain inconsistencies with regard to the manner of causing injuries to Samsuddin and Abdul Rahman by the witnesses as deposed in the court and as noted in the statement Under Section 161 Code of Criminal Procedure, can in no manner shake the entire evidence or make the statement of witnesses unreliable.
21. There are two reasons for not accepting the above arguments; firstly, before the Police also the role of Accused was mentioned by eye-witnesses. In their statements Under Section 161 Code of Criminal Procedure and before the Court also eye-witnesses proved the role of the Accused and presence of the accused. Hence, the eye-witness account of witnesses proves the presence of the accused. They have been rightly convicted Under Section 302 read with 49 Indian Penal Code.
22. Secondly, there is clear evidence of eye-witnesses that Accused persons did not allow the injured to come out from their house for about three hours. In spite of the request being made by neighbours and other persons present on the spot, Accused have almost seized the house and did not permit injured Afazuddin, Abdul Rahman and Samsuddin to come out or to go for treatment. Finding to this effect has been recorded both by trial court and High Court. Each person being a member of unlawful assembly is guilty of offence being committed in prosecution of common object, has been held both by trial court and High Court. This Court in Chandrappa and Ors. v. State of Karnataka : (2008) 11 SCC 328 has laid down that it is unreasonable to expect from a witness to give a picture perfect report of the incident and minor discrepancies in their statement have to be ignored. Para 17 and 18 of the judgment is extracted as below:
17. It has been contended by the learned Counsel for the Appellants that the discrepancies between the statements of the eyewitnesses inter se would go to show that they had not seen the incident and no reliance could thus be placed on their testimony. It has been pointed out that their statements were discrepant as to the actual manner of assault and as to the injuries caused by each of the Accused to the deceased and to PW3, the injured eyewitness. We are of the opinion that in such matters it would be unreasonable to expect a witness to give a picture perfect report of the injuries caused by each Accused to the deceased or the injured more particularly where it has been proved on record that the injuries had been caused by several Accused armed with different kinds of weapons.
18. We also find that with the passage of time the memory of an eyewitness tends to dim and it is perhaps difficult for a witness to recall events with precision. We have gone through the record and find that the evidence had been recorded more than five years after the incident and if the memory had partly failed the eye witnesses and if they had not been able to give an exact description of the injuries, it would not detract from the substratum of their evidence. It is however very significant that PW 2 is the sister of the four Appellants, the deceased and PW 3 Devendrappa and in the dispute between the brothers she had continued to reside with her father Navilapa who was residing with the Appellants, but she has nevertheless still supported the prosecution. We are of the opinion that in normal circumstances she would not have given evidence against the Appellants but she has come forth as an eyewitness and supported the prosecution in all material particulars.
.....
24. We have gone through the oral evidence recorded before the trial court. A translated copy of such statement in English is being available on the record of the High court. We are of the view that finding of guilt recorded by trial court is based on correct appreciation of evidence. Minor contradictions and inconsistencies as pointed out by the learned Counsel for the Appellants rightly have been ignored by the courts below."
42. Recently, a three-Judge Bench of Hon'ble Apex Court in Criminal Appeal Nos.607-608 of 2017 (Mukesh & Anr. Vs. State of N.C.T. Of Delhi & Ors.) decided on 05.05.2017, in paras 83 to 86 dealt the issue of appreciation of evidence and in paras 87 and 88 considering the related issues to that, benefit of doubts and duties of Court respectively said as under :
83. In this context, we may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony (1985) 1 SCC 505 :
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper- technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ..."
84. In Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470, it has been ruled that:
"11. .... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."
85. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, a three-Judge Bench held:
"7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
86. In Krishna Mochi v. State of Bihar (2002) 6 SCC 81, the Court ruled that:
"32. .... The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time".
87. In Inder Singh and another Vs. State (Delhi Administration) (1978) 4 SCC 161, Krishna Iyer, J. laid down that:
"Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes."
88. In the case of State of U.P. v. Anil Singh 1988 (Supp.) SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
43. Admittedly, there was no earlier enmity between the deceased PW-1, PW-2 and PW-7 and accused respondents on other side. It is also evident from the papers (Ext. Kha-1, Kha-2, Kha-3, related to Criminal Case No.1340/96 and Ext. Kha-4 related to Crl. Case No.32 of 1992 and Ext.- Kha-5, Kha-6, Kha-7, Kha-8 all related to Crl. Case No.374 of 1999) filed by the accused-respondents, which shows that there was some earlier enmity between the family members of deceased and accused persons of those cases Omkar, Pappu @ Parmeshwari, Munna @ Prem Shankar and Jaidev and if witnesses were intended to falsely implicate any one, it was a golden opportunity for them to implicate the aforesaid persons in the incident and not implicate the accused respondents against whom they have no ill will or enmity in the murder of their father/husband leaving the real culprits roaming scot free. Thus the aforesaid fact further demonstrate that the accused-respondents have not been falsely implicated.
44. Some other arguments advanced by learned counsel for the accused-respondents and detailed discussion of the evidence of witnesses will be made by us hereinafter at the time of dealing with the reasons recorded by the Court below for disbelieving the prosecution case.
45. Now, we will examine correctness and sustainability of the above grounds and reasoning of the Court below in the light of the rival arguments raised by learned counsel for the parties and evidence and material available on record.
46. A close scrutiny of the evidence and material available on record reveals that :
Ground A
47. So far as non examination of witnesses Chandra Sen, Jagmohan, Harish, Tullan etc. are concerned, it may be stated that the prosecution is not bound to examine all the witnesses mentioned in the charge sheet rather it has a right of choice to produce the witnesses who are necessary to prove the case. However, in the facts and circumstances, it would be better if witnesses Chandra Sen, Jagmohan, Harish, Tullan etc. were examined but non examination of those witnesses will not make the prosecution case liable to be thrown on this ground rather it has to be examined on the basis of evidence and material available on the record.
48. The conduct of the accused respondents shows their dictorial and dare devil nature as they without any reason had not only beaten Chandra Sen but also chased him and entered the house of deceased and on intervention of the deceased who was also the owner of the house was attacked by them. Evidence available on record also shows that family of deceased was alone family of its caste in the village. Accused-respondents belong to the "Kurmi Biradri" having dominating population in the village. Injured Chandra Sen and witnesses Jagmohan and Harish also belong to the same caste. After the incident Chandra Sen left the village and was residing in Haldwani (another State 'Uttaranchal') repeatedly summons, bailable warrant (BW) and non-bailable warrant (NBW) were issued not only against the non-examined witnesses but also against the PW-1, PW-2 and PW-7 etc., as is evident from the table given herein below :
Sl.
Names of witnesses
Application/ paper no.
Date of Order
Nature of process issued
Smt. Sushila Devi & Jagan Lal
9 kha/1
4.8.2000
Summons
Sushila Devi, Jagan Lal and Harish Kumar
11kha/1, 11kha/2 & 11kha/3
30.10.2000
BW
Sushila Devi, Jagan Lal and Harish Kumar
11kha/5
11.10.2000
Summons
Harish Kumar and Jagan Lal
15kha/2 and 15kha/4
8.12.2000
BW
Smt. Sushila Devi, Shyama Devi, Km.Meena Sharma and Km.Radha
19kha/1
7.6.2001
Summons
Smt. Sushila and Chandra Sen
23kha/1
13.7.2001
BW
Km.Meena Sharma
23kha/4
13.7.2001
BW
Km. Radha
25kha/2
-
Summons
Km.Meena
25kha/2
-
Summons
Chandra Sen
25kha/3
-
Summons
Mahipal Singh
36kha/3
25.8.2002
Summons
Mahipal Singh
36kha/4
31.8.2002
Summons
Mahipal Singh
36kha/6
13.09.2002
Summons
49. Informant PW-1 Sushila has moved application paper no. 32 Ka through ADGC (Crl.) for discharge of the witnesses Tullan, Dilwar Shah, Chandra Sen, Km. Meena, Chandra Bhoj and Shyama Devi. No order was passed on that application. However PW-7 was subsequently examined as witness under Section 311 Cr.P.C. PW-2 has stated in her statements that :
^^;g yksx xokgh ugha nsaxs D;ksafd ;g yksx eqyftekuksa ls fey x;s gSaA^^
50. PW-7 has stated in her statement that :
^^]]]]]]xkao esa gekjk ,d gh ?kj gSA xkao esa vkSj fcjknjh ds yksx Hkh jgrs gSa eqlyeku] dqehZ pekj] rsyh jgrs gSaA t;knk eqlyeku o xaxokj gSaA gekjs xkao esa dqfeZ;ks dk cksyckyk gSA blfy,s buds f[kykQ dksbZ yksx xokgh nsuk ugha pkgrs gSaA eqyfteku dqehZ tkfr ds gSA^^
51. It may also be presumed that due to fear of respondents PW-1, 2 and 7, who are daughters and wife of the deceased could not gather courage to give evidence against them for more than four years from the incident and BWs and NBWs were also issued against them.
52. In the case of Sadhu Saran Singh (supra) he Court has dealt the issue of non examination of the injured witness and independent witnesses and held in clause (v) and (vi) of para 21 as under :
"21. ....
(v) Coming to the issue of non-examination fo the injured witness Ganga Singh, it is relevant to point out that the Trial Court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. This stands proved by the registration of two FIRs dated 12.9.1997 and 6.10.1997 which establish the fact that Ganga Singh was threatened and kidnapped Therefore, non-examination of injured Ganga Singh could not be fatal to the case of the prosecution and the same cannot be a ground to disregard the evidence of P.Ws. 1 and 2. Thus, no adverse inference can be drawn against the prosecution for not examining Ganga Singh, the injured witness (Also see : Rajan Rai v. State of Bihar 2006 (54) ACC 16.
(vi) As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy."
53. So far non examination of scribe Om Prakash Saxena is concerned, that is of no consequence because informant PW-1 has not made any grievance about the contents of written report rather admitted all the facts narrated in that as such non examination of scribe of written report is not fatal and crucial for the prosecution.
54. In the above facts and circumstances, it could not be said that prosecution has not made sincere efforts to summon and examine the witnesses Chandra Sen, Jagmohan, Harish, Tullan and Om Prakash Saxena etc. and withhold them willingly and no adverse presumption against the prosecution can be drawn under Section 114(g) of Indian Evidence Act.
55. In view of the above, we find approach of the Court below hammering the prosecution for not examining the above witnesses, is not based on the proper appreciation of all relevant facts, circumstances, case law and cannot be approved.
Ground (B)
56. There is no dispute that on medical examination of injured Fakir Chand on 1.1.1997 at 9.45 P.M., Dr. P.C.Saxena, PW-3 found that he was brought dead there but we are unable to understand that what inference the Court below want to draw from this.
Ground (C) and (D)
57. In this regard I.O. PW-5 told that Fakir Chand and Smt. Shyama Devi was taken to the Sadar Hospital due to their serious condition, however, there is no reference about their serious condition in the G.D. or C.D. concerned. No doubt in the Chitthi Mazroobi of Fakir Chand and Shyama Devi hospital is mentioned as PHC Bahedi but in the GD, Ext. Ka 10, it is clearly mentioned that injured Fakir Chand, Smt. Shyama Devi and Chandra Sen were sent for their medical examination to the Sadar Hospital and this fact of GD was not challenged on behalf of the accused-respondents by way of cross-examination or suggestion to PW-5 who proved the Ext. Ka-10. So far as late reaching of Chandra Sen for his medical examination with Bhanja Bhagwan Das Gangwar is concerned, is also of not much importance because there was no dispute that he went for medical examination along with his Chitti Mazroobi and his injuries were examined and injury report, Ext.Ka 2, were prepared by the doctor P.C.Saxena PW-3 and he was neither cross-examined nor given any suggestion that at the time of medical examination Shyama Devi PW-7 was not present before him or any other lady was produced and Chandra Sen was not having injuries mentioned in his injury report, Ext. Ka 2, as such he prepared wrong and false injury report of PW-7 and Chandra Sen and without any evidence to this effect we find no occasion for PW-3 who is a doctor in the Government Hospital to involve himself in the activities of preparing wrong injury reports of PW-7 and Chandra Sen. In view of the above, we find no justification in the reasoning of the Court below to disbelieve the prosecution case and injury reports regarding injured Chandra Sen and PW-7.
Ground (E)
58. Though as per prosecution FIR is prompt and not ante-timed, however, the accused-respondents have questioned that on the ground that I.O. PW-5 has instructed the Head Constable for not registering the FIR of murder etc. in his absence due to that Head Constable has not registered the case and sent the injured to the hospital to take time upto arrival of PW-5 and FIR of the case has been lodged after he returned to the police station on the day of incident. It is also clear from non mention of crime number of the case in the Chhithi Mazroobi (on reverse side of which injury reports of the injured are prepared), injury reports (Ext. Ka 2, Ka 3 and Ka 4)) and inquest report (Ext. Ka-14). It is true that case crime number is not mentioned in the above papers.
59. In Amar Singh Vs. Balwinder Singh & Ors.10 the Court said :
"The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. The scope and purpose of Section 174 Cr.P.C. was explained by this Court in Pedda Narayana v. State of A.P. : (1975) 4 SCC 153 and it will be useful to reproduce the same:
The proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is therefore not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of court."
60. In Sri Sambhu Das @ Bijoy Das and Anr. vs. State of Assam11, the Court in paras 20 to 24 said :
"20. Section 157 of the Code says that if, from the information received or otherwise an officer incharge of a police station has reason to suspect the commission of an offence which he is empowered to investigate, he shall forthwith send a report of the same to the Magistrate concerned and proceed in person to the spot to investigate the facts and circumstances of the case, if he does not send a report to the Magistrate, that does not mean that his proceedings to the spot, is not for investigation. In order to bring such proceedings within the ambit of investigation, it is not necessary that a formal registration of the case should have been made before proceeding to the spot. It is enough that he has some information to afford him reason even to suspect the commission of a cognizable offence. Any step taken by him pursuant to such information, towards detention etc., of the said offence, would be part of investigation under the Code.
21. In Maha Singh v. State (Delhi Administration) this Court considered a case in which police officer arranged a raid after recording a complaint, but before sending it for registration of the case. It was held in that case that "the moment the Inspector had recorded a complaint with a view to take action to track the offender, whose name was not even known at that stage, and proceeded to achieve the object, visited the locality, questioned the accused, searched his person, seized the note and other documents, turns the entire process into investigation under the Code.
22. In State of U.P. v. Bhagwant Kishore : AIR 1964 SC 221 this court stated that "Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation."
23. The principles now well settled is that when information regarding a cognizable offence is furnished to the police that information will be regarded as the FIR and all enquiries held by the police subsequent thereto would be treated as investigation, even though the formal registration of the FIR takes place only later.
24. Assuming that some report was made on telephone and that was the real First Information Report, this by itself would not affect the appreciation of evidence made by the learned Sessions Judge and the conclusions of fact drawn by him. The FIR under Section 154 Cr. P.C. is not a substantive piece of evidence. Its only use is to contradict or corroborate the maker thereof. Therefore, we see no merit in the submission made by learned Counsel for the appellants."
61. Hon'ble Apex Court in Mukesh & Anr. (supra), in para 51 said:
"51. In this case, there is no delay in the registration of FIR. The sequence of events are natural and in the present case, after the occurrence, the victim and PW-1 were thrown out of the bus at Mahipalpur in semi-naked condition and were rescued by PW-72, Raj Kumar, and PW-70, Ram Pal, both EGIS Infra Management India (P) Limited employees. The victim was seriously injured and was in a critical condition and it has to be treated as a natural conduct that giving medical treatment to her was of prime importance. The admission of PW-1 and the victim in the hospital and the completion of procedure must have taken some time. PW-1 himself was injured and was admitted to the hospital at 11:05 p.m. No delay can be said to have been caused in examining PW-1, the informant.
52. In the context of belated FIR, we may usefully refer to certain authorities in the field. In Ram Jag and others v. State of U.P (1974) 4 SCC 201, it was held as that witnesses cannot be called upon to explain every hour's delay and a commonsense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution."
Ground (F)
62. Injured and wife of deceased Smt. Shyama Devi PW-7 stated in her evidence that Ravindra caused Lathi injury on her right leg while as per her injury report, Ext. Ka 3, she has received injury on her left leg. Dr. P.C.Saxena has also stated in his evidence that he on medical examination of the witness found injury on her left leg, column of identification mark is left blank and on the basis of it, it was submitted on behalf of the accused-respondents that she was not produced before the doctor at the time of alleged medical examination. It will be pertinent to mention here that evidence of witness has been recorded after more that six years and due to lapse of memory, injury received by her if on the wrong leg is not of much importance. No cross examination of the witness has been done on this point and no other suggestion has been given to her so far she may explain about right position. Dr. P.C.Saxena PW 3 has stated in his examination in chief that :
^^mlh fnu eSus Jherh ';kek nsoh dk mez djhc 50 o"kZ ifr Qdhj pUnz fu0 xzke iMjh Fkkuk 'kh'kx< cjsyh vk x;s 9-50 ih0,e0 pksVks dk eqvk;uk fd;k ftldks esjs ikl lh @ ih 510 KkusUnz iky flag Fkkuk 'kh'kx< ysdj vk;k Fkk mlds 'kjhj fuEu pksVsa ik;h x;hA
1& uhyxw fu'kku 3 lseh --- 2 lseh okbZ VkWx ij lkeus dh rjQ] chp vU; dksbZ tkfgjk ckgjh pksV dk fu'kku ekStwn ugh Fkk ;g pksV lk/kkj.k izdkj dh Fkh tks fdlh l[r dqUn vkys ls vkuk laHko Fkh o rkth Fkh ;g fjiksVZ ojoDr eqvk;uk rS;kj dh tks esjs ys[k o gLrk{kj esa gSA bl ij et:o dk fu'kkuh vaxwBk o igpku dk fu'kkuh vafdr gS bl ij izn'kZ d 3 Mkyk x;kAß
63. But he was not cross examined about blank column of identification mark and was not given any suggestion that they were not present at the time of her medical examination and it appears that above column was left blank inadvertently. In addition to it, we find no material reason or justification for Dr. P.C. Saxena, who is an independent person to involve and indulge himself in making any false injury report of the witness.
64. In Darbara Singh Vs. State of Punjab12, the Court in para 5 said :
"5. .... So far as the question of inconsistency between medical evidence and ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value via-a-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liably to be disbelieved. (vide: State of U.P. Vs. Hari (2009) 13 SCC 542 and Bhajan Singh @ Harbhajan Singh and Ors. Vs. State of Haryana (2011) 7 SCC 421"
GROUND (G)
65. Admittedly, Radha PW-2 is not named in the FIR and she has not given any evidence against the accused Ravindra and Dharam Pal for their participation in the incident and committing attack on the deceased. But her statement under Section 161 Cr.P.C. was recorded by the I.O. on the next day of the incident and she was also named as witness in the charge sheet. She is the daughter of the deceased and in view of the date, time and place of the incident, her presence and witnessing the incident is quite natural.
66. In Bhagwan Singh and Ors. Vs. State of M.P.13, the Court in para 13 said :
"13. We also do not find any substance in the submission of the learned counsel for the appellants that statement of Kiran (PW7) should not be given any weight because her name is not mentioned in the FIR. There is no requirement of law for mentioning the names of all the witnesses in the FIR, the object of which is only to set the criminal law in motion. Kiran (PW7) herself was injured and being the niece of Hari Ram (deceased), had no reason to involve innocent persons in the commission of the crime. Merely because PWs 7, 12 and 22 happen to be the relations of the deceased, cannot be made a ground to discard their evidence. In the circumstances of the case, the High Court has rightly found the aforesaid witnesses to be natural witnesses of the occurrence."
67. In Chittar Lal Vs. State of Rajasthan14, the Court in para 8 said :
"8. Evidence of the person whose name did not figure in the FIR as witness does perforce become suspect. There can be no hard and fast rule that the names of all witnesses more particularly eye-witnesses should be indicated in the FIR. As was observed by this Court in Shri Bhagwan Vs. State of Rajasthan 2001 CriLJ 2925 mere non-mention of the name of an eye-witness does not render prosecution version fragile."
Ground H
68. This is settled position of law that only defective investigation cannot be a ground for acquittal of the accused persons as is observed by Hon'ble Apex Court in Hema Vs. State thr. Inspector of Police Madras 15 as under :
10) It is also settled law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been considered in various decisions. In C. Muniappan and Others vs. State of Tamil Nadu, 2010 (9) SCC 567, the following discussion and conclusion are relevant which are as follows:-
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.
11) In Dayal Singh and Others vs. State of Uttaranchal, 2012 (8) SCC 263, while reiterating the principles rendered in C. Muniappan (supra), this Court held thus:
"18. ... Merely because PW 3 and PW 6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. ..."
12) In Gajoo vs. State of Uttarakhand, 2012 (9) SCC 532, while reiterating the same principle again, this Court held that defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused should not be an aspect of material consideration by the Court. Since, the Court has adverted to all the earlier decisions with regard to defective investigation and outcome of the same, it is useful to refer the dictum laid down in those cases:
20. In regard to defective investigation, this Court in Dayal Singh v. State of Uttaranchal while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under: (SCC pp. 280-83, paras 27-36) "27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, held: (SCC p. 657, para 5) ''5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so [pic]would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.'
28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
29. In Zahira Habibullah Sheikh (5) v. State of Gujarat, the Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The court issued a caution that in such situations, there is a greater responsibility of the court on the one hand and on the other the courts must seriously deal with persons who are involved in creating designed investigation. The Court held that:
(SCC p. 398, para 42) ''42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this courts have a vital role to play.' (emphasis in original)
30. With the passage of time, the law also developed and the dictum of the court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
31. Reiterating the above principle, this Court in NHRC v. State of Gujarat held as under: (SCC pp. 777-78, para 6) [pic]''6. ... "35. ... The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the ''majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators." (Zahira Habibullah case, SCC p. 395, para 35)'
32. In State of Karnataka v. K. Yarappa Reddy this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows: (SCC p. 720) ''19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the [pic]action taken by the investigating officers. The criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case.'
33. In Ram Bali v. State of U.P. the judgment in Karnel Singh v. State of M.P. was reiterated and this Court had observed that: (Ram Bali case15, SCC p. 604, para 12) ''12. ... In case of defective investigation the court has to be circumspect [while] evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective.'
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a ''fair trial', the court should leave no stone unturned to do justice and protect the interest of the society as well.
35. This brings us to an ancillary issue as to how the court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab, the Court, while [pic]dealing with discrepancies between ocular and medical evidence, held: (SCC p. 159, para 8) ''8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out.'
36. Where the eyewitness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive.
''34. ... The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by [examining] the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert's opinion is accepted, it is not the opinion of the medical officer but [that] of the court.'"
13) It is clear that merely because of some defect in the investigation, lapse on the part of the I.O., it cannot be a ground for acquittal.
Further, even if there had been negligence on the part of the investigating agency or omissions etc., it is the obligation on the part of the Court to scrutinize the prosecution evidence de hors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth.
69. In Raj Kishore Jha Vs. State of Bihar & Ors.16 the Apex Court held as under :
(10)A bare perusal of the judgment of the High Court shows that it has disposed of the appeal in a rather casual manner. Most of the conclusions arrived at the by the High Court are per se not on sound footing. The appellate Court will not abjure its duty to prevent miscarriage of justice by interfering where interference is imperative. Where doubt is based on irrelevant grounds or where the Court allows itself to be deflected by red herrings drawn across the track, or where the evidence accepted by the Trial Court is rejected by the High Court after a perfunctory consideration or where the baneful approach of the Court has resulted in vital and crucial evidence being ignored or for any such adequate reason, the Court should feel obliged to secure the ends of justice, to appease the judicial conscience, as it were. The High Court has noted that the names of witnesses do not appear in the first information report. That by itself cannot be a ground to doubt their evidence as noted by this Court in Bhagwan Singh and Ors. v. State of M.P., JT (2002) 3 SC 387, Chittar Lal v. State of Rajasthan, (2003) AIR SCW 3466 and State of Madhya Pradesh v. Man Singh and Ors., (2003) 6 Supreme 202. There is no requirement of mentioning the names of all witnesses in the first information report. No reason has also been indicated by the High Court as to why the evidence of PWs. 3, 8, 11,12 and 15 was to be obliterated merely because they were accused in the counter case. In a case of this nature, when counter case has been registered, the Court hearing the same has to scrutinize the evidence with greater detail and even in such a situation the evidence which is cogent, credible and trustworthy cannot be totally wiped out because of the only circumstance that they were accused in the counter case. Additionally, we find that PWs. 3, 6 and 9 have not been merely described in the first information to have taken the deceased to the hospital, as observed by the High Court. A bare reading of the first information report clearly shows that they were described as eyewitnesses also. Here again, the High Court has committed error.
(11)Mere non-examination of Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version. In Ram Dev and Anr. V. State of U.P., [1995] Supp. 1 SCC 547, it was noted that non-examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye witnesses. It was, however, indicated that it is always desirable for the prosecution to examine the Investigating Officer. In the present case after examination- in-chief and partial cross-examination, the Investigating Officer had died. Therefore, this cannot be a case which can be stated to have caused any prejudice to the accused on account of Investigating Officer's non- examination. The prosecution cannot be attributed with any lapse or ulterior motives in such circumstances. In Behari Prasad and Ors. v. State of Bihar, [1996] 2 SCC 317, it was held that case of prejudice likely to be suffered mostly depends upon facts of each case and no universal straight Jacket formula should be laid down that non-examination of Investigating Officer per se vitiates the criminal trial. The said view has been found echoed in Ambika Prasad and Am. v. State (Delhi administration, [2000] 2 SCC 646, Bahadur Naik v. State of Bihar, [2000] 9 SCC 153 and, Ram Gulam Chaudhury and Ors. v. State of Bihar, JT (2001) 8 SC 110.
Ground (I)
70. It is clear from the record that on examination of Fakir Chand on 01.01.1997 at 9.45 P.M. Dr.P.C. Saxena PW-3 found him to be brought dead. In these circumstances there was no occasion for him to examine the whole body of Fakir Chand. Postmortem examination of his body has been done on 02.01.1997 at 3.00 p.m. i.e. apprx. 22 hours after the incident. Lathi blows if not very severe and not causing any contusion etc. are lacerated wounds and then they may heel up during such a long interval. If those injuries are not found on the body of deceased on the postmortem examination it will not make any change in the prosecution case because above postmortem examination report is merely an opinion of expert and not binding on the Court.
71. Otherwise also, PW-1 and PW-7, who are eye witnesses of the incident clearly stated in their testimonies that all the accused-respondents have participated in the incident and caused injuries to the deceased.
72. At this juncture we would like to mention that as per Apex Court version in Darbara Singh (Supra) in case of conflict between the ocular and medical evidence, ocular evidence available on record be given preference.
73. In Sultan Singh Vs. State of Haryana17 the Court in para 14 said :
"In Madan Gopal Kakkad v. Naval Dubey : (1992) 3 SCC 204, it was observed as under:
34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court.
35. Nariman, J. in Queen v. Ahmed Ally , while expressing his view on medical evidence has observed as follows:
The evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion.
74. In Dayal Singh and Ors. Vs. State of Uttaranchal18 the Court said :
"30. Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert opinion is accepted, it is not the opinion of the medical officer but that of the Court. {Plz. See Madan Gopal Kakad v. Naval Dubey and Anr. : (1992) 3 SCC 204}."
75. In view of the above, this ground for discarding the prosecution case by the Court below is not proper.
Ground (J)
76. So far ground for discarding the prosecution case by the Court below for not questioning the doctor about the date and time of injury is concerned, it may be clear from the perusal of record that this is a clear case of misreading of evidence by the Court below as it has been clearly mentioned by the doctor in his examination in chief that :
Þmlh fnu eSus e`rd QdhjpUnz mez djhc 55 o"kZ iq= dqUny yky ftyk cjsyh Fkkuk 'kh'kx< cjsyh dk 'ko 9-45 ih-,e- ij ftyk vLirky ekspZjh esa esjs }kjk j[kok;k x;k ftldks lh @ih 510 ftrsUnz iky flag Fkkuk 'kh'kx< ysdj vk;s FksA bl ij izn'kZ d 4 Mkyk x;kA
;g pksVs 01-01-97 dks ikap cts 'kke ykBh MUMksa bZVksa ls vkuk laHko gSA^^
Ground (K)
77. As far proving of documentary evidence by secondary evidence of PW-6 is concerned, it is clear from perusal of the record as stated above that several efforts have been made by the prosecution to summon and examine the S.I. Mahipal Singh, author of the documents but his posting could not be located and in the circumstances if those papers were proved by secondary evidence of PW-6, it could not be objected otherwise also at the time of examination of PW-6 and proving of the above documents by his secondary evidence neither the Court below nor the defence has raised any objection in this respect.
78. In these circumstances, above ground for discarding the prosecution case is highly objectionable. Moreover, if all those documentary evidence are excluded, still a prosecution case of death of Fakir Chand due to injuries caused to him by the accused-respondents stands proved.
79. For the facts and reasons stated above, we are of the considered view that Trial Court has not properly applied its mind while deciding the case and misdirected itself by wrong facts, ground, misreading of evidence and drawn wrong conclusions on the basis of those.
80. For the above compelling substantial reasons to prevent miscarriage of justice and do substantial justice, we hold that impugned judgment and order is wrong, illegal and liable to be set aside and accused-respondents are liable to be convicted and sentenced accordingly.
81. Our findings in respect of question no.1 has posed following two ancillary questions before us:
(a) For what offences accused-respondents are liable to be convicted? and
(b) What sentence may be awarded to them?
82. Learned A.G.A. has submitted that all the accused-respondents are liable to be convicted under Sections 304/ 34 IPC and 323/34 IPC.
83. Controverting the above arguments, learned counsel for the accused-respondents submits that there was no enmity between the deceased, injured on one hand and accused-respondents on the other hand. Incident has taken place on the sudden spur of moment as reaction or intervention of deceased in the quarrel between the injured Chandra Sen and accused respondents. No accused-respondents has repeated the blow. In the above circumstances, accused-respondents are liable to be convicted only for their individual acts.
84. According to medical reports, only injury no.2 of the deceased Fakir Chand was dangerous to life and it was caused by the accused Bhagwan Das who had died during pendency of this appeal and case was abated against him. As far as injury caused by accused-respondents Girish Pal is concerned, it is of ordinary nature and has not caused any substantial damage and was not capable to cause death and in these circumstances, he may be sentenced maximum under Section 323 IPC. Injuries caused by accused-respondents Ravindra and Dharam Pal are not found on the postmortem examination of the deceased and PW-2 Radha has said nothing in her evidence regarding their participation in the incident or causing injury to the deceased. In these circumstances, they are entitled to be acquitted.
85. In reply to the above arguments of learned counsel for the accused-respondents, learned AGA submitted that according to evidence of PW-4, both injuries of deceased Fakir Chand were dangerous to life and injury caused by accused-respondent Girish Pal has also caused substantial damage. In these circumstances, it could not be said that accused respondent Girish Pal is liable to be convicted under Section 323 IPC. As all the accused-respondents have actively participated in the crime, therefore, they are liable to be convicted under the sections as requested earlier by him.
86. In Vijendra Singh and Ors. Vs. State of U.P.19, the Court said:
15. Mr. Giri has drawn our attention to paragraph 10 of the authority in Jai Bhagwan (supra). It reads as follows:
10. To apply Section 34 Indian Penal Code apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.
16. He has also relied on the decision in Suresh Sakharam Nangare (supra). In the said case, the Court after referring to Section 34 Indian Penal Code opined that a reading of the above provision makes it clear that to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked.
17. In the said case, the Court after analyzing the evidence opined that there is no material from the side of the prosecution to show that the Appellant therein had any common intention to eliminate the deceased because the only thing against the Appellant therein was that he used to associate himself with the accused for smoking ganja. On this factual score, the Court came to hold that the Appellant could not be convicted in aid of Section 34 Indian Penal Code.
18. In this regard, we may usefully refer to a passage from the authority in Pandurang and Ors. v. State of Hyderabad : AIR 1955 SC 216. The three-Judge Bench in the said case adverted to the applicability and scope of Section 34 Indian Penal Code and in that context ruled that:
32. ... It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor : AIR 1945 PC 118. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the Section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor : AIR 1925 PC 1 and Mahbub Shah v. King Emperor (supra). As Their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice.
33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.
19. And, again:
34. ... But to say this is no more than to reproduce the ordinary Rule about circumstantial evidence, for there is no special Rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". (Sarkar's Evidence, 8th Edn., p. 30).
20. In this context, we may refer with profit to the statement of law as expounded by the Constitution Bench in Mohan Singh (supra). In the said case, the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The larger Bench dealing with the concept of constructive criminal liability Under Sections 149 and 34 Indian Penal Code, expressed that just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two Sections are similar and in some cases they may overlap. The common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. Thereafter, the Court held:
It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King-Emperor (supra) common intention within the meaning of Section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the Section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.
21. In Harshadsingh Pahelvansingh Thakore (supra), a three-Judge Bench, while dealing with constructive liability Under Section 34 Indian Penal Code has ruled thus:
Section 34 Indian Penal Code fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P. (1975) 4 SCC 247; Maina Singh v. State of Rajasthan : (1976) 2 SCC 827) Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse "They also serve who only stand and wait" a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code.
22. In Lallan Rai and Ors. v. State of Bihar (2003) 1 SCC 268 the Court relying upon the principle laid down in Barendra Kumar Ghosh (supra) has ruled that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result.
23. In Goudappa and Ors. v. State of Karnataka : (2013) 3 SCC 675 the Court has reiterated the principle by opining that Section 34 Indian Penal Code lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed the question how to gather the common intention and answering the same held that the common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.
24. The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 Indian Penal Code is a question of fact and is to be ascertained from the evidence brought on record. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See: Kirpal and Bhopal v. State of U.P. : AIR 1954 SC 706). In Bharwad Mepa Dana and Anr. v. The State of Bombay : AIR 1960 SC 289, it has been held that Section 34 Indian Penal Code is intended to meet a case in which it may be difficult to distinguish the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. The principle which the Section embodies is participation in some action with the common intention of committing a crime; once such participation is established, Section 34 is at once attracted.
87. In the facts and circumstances of the case, we find that there was no premediation or previous meeting of mind of accused-respondents for causing death of the deceased i.e. culpable homicide not amounting to murder. In this view of the matter, all the accused respondents be held guilty for their individual acts.
88. In view of the discussion made above, we convict the accused-respondent Girish Pal under Section 304 IPC. The accused-respondents Ravindra and Dharam Pal are being convicted under Section 323 IPC.
89. So far as submissions of learned counsel for the accused-respondents to punish the accused-respondents by sentence already undergone by the accused-respondents with fine or releasing them under Section 4 of the First Offenders Probation Act, 1938 are concerned, we find no justification in the above submissions in respect of accused-respondents Girish Pal, who without any provocation or just cause attacked the deceased with the brickbat. In consequence of this and other injuries, he died subsequently. It may also be mentioned here that doctor has opined the injuries caused by accused-respondents Girish Pal as dangerous to life and it caused serious damage to the head and brain of the deceased, therefore, he deserves to be suitably punished.
90. Now we will deal with the question of sentence, which may be awarded to the accused-respondents.
91. Learned counsel for the accused-respondents submits that this is the first offence of the accused-respondents and the incident is now more than 20 years old, therefore, accused-respondents may be punished by sentence already undergone by them with fine and in any other case, they may be extended benefit of First Offenders Probation Act, 1938 as all the accused-respondents have fully settled in their life, owe their family responsibility and looking to the 20 years gap between the incident and passing of this order, there is no occasion to send them to jail to serve the sentence.
92. We find some substance in the arguments of learned counsel for the accused-respondents in respect of accused-respondents Ravindra and Dharam Pal. However, we find no such justification for the accused Girish Pal, who has been convicted under Section 304 IPC, hence the accused-respondent Girish Pal is sentenced to undergo for seven years' rigorous imprisonment with fine of Rs.35,000/-. In case of non payment of fine he will undergo further two years' rigorous imprisonment.
93. In case of recovery of fine, Rs.30,000/- thereof will go to kith and kin of the deceased Fakir Chand.
94. Accused-respondent Girish Pal is directed to surrender before the trial court within thirty days from today to serve the sentence awarded to him.
95. So far the sentence of accused-respondents Ravindra and Dharampal is concerned, we find substance in the submission of learned counsel for the accused-respondents. They have not been convicted earlier. Now after a lapse of such a long time, no useful purpose would be served by sending them to jail for serving the sentence and therefore, it will be appropriate to call a report from the District Probationary Officer concerned regarding character and antecedents of accused-respondents Ravindra and Dharampal within four weeks from today to consider the aspect of releasing them on probation of "good conduct". In view of this, we are not passing any sentence against them at this stage.
96. List on 6th July, 2017 for considering the report of the District Probationary Officer concerned and further passing the order on its report and other consequential orders, after hearing the learned counsel for the parties.
97. The appeal stands allowed in the manner, as above.
98. Office is directed to communicate this order immediately to the District Probationary Officer concerned for submitting his report as well as to the Trial Court and CJM, Bareilly for compliance of the order through fax and speed post, keeping the receipt thereof on record.
Order Date:11.05.2017
KA
