Surendra @ Shyam Lal & Others vs State Of U.P.
2017 Latest Caselaw 6732 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

				         AFR
 
 Judgment reserved on 27.10.2017	
 
Judgment delivered on 13.11.2017
 

 
Court No. 61
 

 
Case :- CRIMINAL APPEAL No. - 500 of 2009
 

 
Appellant :- Surendra @ Shyam Lal & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ravindra Nath Rai,Ashok Kumar Rai,Manu Saxena
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Umesh Chandra Tripathi,J.

1. Heard Sri Ravindra Nath Rai, learned counsel for the appellant and Sri L.D. Rajbhar, learned A.G.A., for the State.

2. This appeal is directed against the judgment and order dated 14.01.2009 passed by learned Addl. Sessions Judge/Fast Track Court (2), Muzaffarnagar in S.T. No. 598 of 2008 (State Vs. Ravi Kant and others) whereby accused-appellants Surender @ Shyam Lal, Radhey Kant and Kamla Kant @ Pappu were convicted for the offence punishable under Section 307 IPC read with Section 34 India Penal Code (hereinafter referred to as "IPC") and each of them were sentenced to rigorous imprisonment for a period of 5 years and to pay fine of Rs. 1,000/- each and in default of payment of fine one year further imprisonment.

3. Brief facts of the prosecution are that on 16.05.2007 at about 5:00 AM appellants Pappu @ Kamlakant, Surendra @ Shyam Lal, Radhey Kant alongwith co-accused Ravi Kant having blunt object lathi, knife and country made pistol (katta) entered into residence of informant Smt. Babita. Accused Radhey Kant and Ravi Kant caught hold of Ram Pal (husband of informant) and appellant Pappu @ Kamlakant stabbed knife to Ram Pal with intention to kill him. Ravikant opened fire by his Katta but Ram Pal escaped by chance. On alarm being raised, Preetam Singh, Mohd. Rafiq and many other person reached at the place of occurrence. Then appellants alongwith co-accused Ravikant ran away. Before one day in the evening appellants and co-accused had also abused the informant and and his family members. On information of Smt. Babita Devi through Senior Superintendent of Police, Muzzafarnagar, by his order first information report at case crime no. 232 of 2007 under Sections 452, 307, 504, 506 IPC on 20.05.2007 at 1:50 PM was lodged against accused persons. Injured Ram Pal was medically examined at Community Health Centre, Muzzafarnagar on 16.05.2007 at 5:30 AM. After investigation police has submitted chargesheet against the appellants and co-accused Ravi Kant for the offences punishable under Sections 452, 307, 504, 506 IPC. Trial Court has framed charges under Sections 452, 307/34, 504, 506 IPC against appellants and co-accused Ravi Kant and explained charges to them. They have pleaded not guilty and claimed to be tried.

4. To substantiate charges against accused persons, prosecution has examined PW-1 Informant (Smt. Babita), PW-2 (Sri Ram Pal Singh) (injured), PW-3 Mohd. Rafiq, PW-4 Praveen Kumar, PW-5 Peetam Singh as witnesses of facts. The formal proof of police papers and medical report have been dispensed with by learned counsel for the accused. In the statement under Section 313 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), of appellants Surender @ Shyam Lal, Radhey Kant and Kamla Kant @ Pappu and co-accused Ravi Kant have stated that they have been falsely implicated in this case. No evidence has been adduced from the defence side. Upon detailed consideration of evidence and material available on record, learned Trial Court found the guilt of accused-appellants Surender @ Shyam Lal, Radhey Kant and Kamla Kant @ Pappu and co-accused Ravi Kant under Section 307 read with Section 34 IPC, was proved beyond reasonable doubt. However, learned Trial Court held that prosecution had failed to prove guilt of accused persons under Sections 452, 504, 506 IPC beyond reasonable doubt. Appellants Surender @ Shyam Lal, Radhey Kant and Kamla Kant @ Pappu have been sentenced and the attendance of co-accused Ravi Kant was not procured at the time of pronouncement of judgment, therefore, his case was separated.

5. Learned counsel for the appellants contended that all witnesses of fact are hostile and not supported the prosecution version even though learned Trial Court convicted the appellants only on the basis of signature of informant on FIR and of witnesses on affidavits produced before Superintendent of Police, Muzaffar Nagar during investigation. Injury report of injured Ram Pal is not admissible in evidence as it was not proved by doctor who has conducted medical examination. Learned Trial Court has passed the impugned judgment without properly appreciating the evidence available on record.

6. Learned A.G.A., has contended that there is no any illegality in the order passed by the learned Trial Court and as such the appeal is liable to be dismissed.

7. Although medical report Ex.Ka-7 of injured Ram Pal is not proved by doctor but formal proof of Ex.Ka-7 has been dispensed with by the learned counsel for the accused. According to Section 294 Cr.P.C., if the genuineness of a document produced by prosecution is admitted by the learned counsel for the accused person (s) then such document may be read in evidence in any inquiry, trial or other proceeding under Cr.P.C., without proof of the signature of the person to whom it purports to be signed. Since, learned counsel for accused person dispensed with the formal proof of injury report Ex.Ka-7, It means that he has admitted the genuineness of injury report. Therefore, it need not be proved by doctor and it is admissible in evidence.

8. Witnesses of fact PW-1 (Babita Devi) stated before the Court that at the time of occurrence at about 5:00 AM, she saw her husband in injured condition and when he was asked about the injury, he stated that someone has caused injury with knife. PW-2 (Injured Ram Pal Singh) has stated that on the date of occurrence some one had caused injury with knife but he could not identify the person who had caused injury. PW-3 Rafiq and PW-4 Pravin Kumar and PW-5 Peetam Singh stated before the Court that they had not seen any person causing injury to injured Ram Pal. In their statement before the Court, none of the witnesses of fact has narrated that the appellants Surender @ Shyam Lal, Radhey Kant and Kamla Kant @ Pappu entered into the informant's house and appellant Kamla Kant @ Pappu caused injury with knife to injured Ram Pal. All witnesses of fact have been declared hostile by the prosecution even though only on the basis that informant had put her signature on written information Ex.Ka-1 and informant Smt. Babita Devi and injured Ram Pal had submitted affidavit before Senior Superintendent of Police during investigation supporting the prosecution version, trial court convicted the accused/appellants.

9. Here it must be noted that first information under Section 154 Cr.P.C., is not substantial evidence. It may be used only to contradict witnesses produced before the Court or with the permission of Court to corroborate them as has been held by Hon'ble Supreme Court in the cases of Sambhu Das v. State of Assam, (2010) 10 SCC 374.

10. There is no provision in Cr.P.C., in which informant or witnesses of fact may produce an affidavit before the Investigating Officer or Superintendent of Police during investigation. During investigation Investigating Officer may record the statement of witnesses under Section 161 Cr.P.C. Procuring or receiving the affidavit of informant or other witnesses during investigation by Senior Superintendent of Police or Investigating Officer is against law and is not permissible. It is further noted that affidavit produced before the Senior Superintendent of Police or Investigating Officer during investigation may be a statement of witness during investigation which is also not a substantive evidence. Such view has been expressed by the Hon'ble Supreme Court in the case of Sat Pal vs Delhi Administration, AIR 1979 Page 294, relevant portion of the same reads as under:-

"..........Nor was the High Court competent to use the statements of these witnesses recorded by the police during investigation, for seeking assurance for the prosecution story. Such use of the police statements is not permissible. Under the proviso to s. 162 Cr. P.C. such statements can be used only for the purpose of contradicting a prosecution witness in the manner indicated in s. 145, Evidence Act, and for no other purpose. They cannot be used for the purpose of seeking corroboration or assurance of the testimony of the witness in court. "

11. In view of this, statement of witnesses during investigation can be used only for the purpose to contradict the prosecution witnesses in the manner indicated in Section 145 of the Evidence Act.

12. For the aforesaid reasons, it is evident that there is no any substantive evidence against the appellants in this case. Learned Trial Court has recorded the conviction under Section 307/34 IPC against the appellants namely Surender @ Shyam Lal, Radhey Kant and Kamla Kant @ Pappu without any evidence which cannot be sustained in the eyes of law.

13. The criminal appeal is accordingly allowed. Conviction of appellants Surender @ Shyam Lal, Radhey Kant and Kamla Kant @ Pappu under Section 307/34 IPC is set aside and they are acquitted from the charge of offence punishable under Section 307 IPC read with Section 34 IPC.

14. The appellants are on bail. They need not surrender. Their bail bonds shall stand discharged.

15. Office is directed to send a certified copy of this order to Sessions Judge, Muzaffarnagar for its compliance. Office is directed to send back the lower court record.

Order Date :- 13.11.2017

Jaswant