Mangal Yadav vs State Of U.P.
2017 Latest Caselaw 4750 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

						AFR
 
					    Reserved on 24.07.2017
 
					    Delivered on 21.09.2017
 

 

 
Case :- CRIMINAL APPEAL No. - 1790 of 2013 
 

 
Appellant :- Mangal Yadav 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- Govt. Advocate,Anoop Kumar Upadhyay 
 

 
				  Sessions Trial No. 292 of 2011, 
 
				  Crime No.340 of 2010, 
 
				  U/s 326 IPC and 3(1) (10) of 					  SC/ST Prevention of Atrocities Act, 
 
				  Police Station- Kamlapur, 
 
				  District- Sitapur.
 

 
Hon'ble Satya Narain Agnihotri,J. 

1. Being aggrieved with the judgment and order dated 21.10.2013 passed by learned Special Judge (S.C./S.T. Act), Court No.2, Sitapur in Sessions Trial No.292 of 2011 arising out of crime No.340 of 2010 U/s 326 IPC and 3(1)(10), SC/ST Act, Police Station Kamlapur, District Sitapur, appellant Mangal Yadav preferred this appeal, whereby learned Special Judge (S.C./S.T. Act) hold guilty to appellant/accused under Section 326 IPC and sentenced 8 years rigorous imprisonment and fine of Rs.5,000/-, in default of payment of fine, further undergo 1 month additional imprisonment.

2. The facts giving rise to this appeal are as under:-

According to prosecution, in the intervening night of 1-2/07/2010 at about 2.30 am appellant/accused Mangal Yadav throw acid upon Smt. Prema Devi, the daughter of complainant Kheman Prasad alias Khem Karan in the village Mahdauli, Police Station Kamlapur, District Sitapur causing serious injuries to the complainant. Thereafter Kheman Prasad got scribed an application Exhibit Ka-1 from an unknown person and submitted it in the office of Police Station Kamlapur. Pursuance of which a formal FIR Exhibit Ka-6 was recorded. The investigation was commenced on 04.07.2010. Meanwhile, the injured Smt. Prema Devi was carried away to Civil Hospital, Sitapur wherein injuries were examined by Dr. Om Prakash Shukla. The injury report is exhibit Ka-3 on record. Since the injuries were serious that is why Smt. Prema Devi was admitted to the hospital, the bed head ticket is exhibit Ka-2 is on record.

3. Investigating Officer visited the place of occurrence on 05.07.2010 and prepared site plan exhibit Ka-4. After completion of the investigation, submitted charge sheet Ka-5.

4. Accused/appellant in his statement under Section 313 Cr.P.C. denied the allegations of the prosecution and stated that he is a labourer and no one is behind him to defend. He has been falsely implicated in this case.

5. To bring home the guilt of the accused, the prosecution examined PW1 Kheman Prasad alias Khem Karan complainant who proved that in the night of incident his daughter Smt. Prema Devi was sleeping under the thatch with his mother, daughter and niece on another cot. In the night, appellant/accused has thrown acid upon Smt. Prema Devi and when she raised alarm then he came beneath the roof of the house and chased to appellant/accused to nab him but he fled away. PW-2 Smt. Prema Devi is injured who stated on oath that in the night of incident she was sleeping on a separate cot from his mother, daughter and niece under the thatch of her house. In the night her mother asked water for drinking and she was giving water to her mother. At that very time accused came and thrown acid upon her which caused injuries upon her face, chest and abdomen. She further stated on oath that she raised an alarm then her father who was sleeping on the roof of the house, came down and so many other villagers came and they tried to nab appellant/accused but he succeeded to run away. She further narrated on oath that a lamp was lighting under the thatch which was kept on the floor, in the light of which she identified appellant/accused. She further narrated that appellant/accused was engaged in the service of fellow villager Sri Shailesh Singh for about one year and appellant/accused was residing in her village that is why she was very well familiar with the appellant/accused.

6. PW-2 further stated that prior to this incident appellant/accused had stolen the lantern due to which melee took place among appellant/accused and complainant alongwith victim, due to which appellant was nurturing/brewing enmity with the victim and complainant.

7. This witness was subjected to hectic cross examination but nothing could be extracted in favour of the appellant/accused.

8. PW-3 Dr. Om Prakash Shukla stated on oath that on 02.07.2010 he had examined victim Smt. Prema Devi at about 12.40 O'clock and following injuries were found on her person.

9. First to third degree burn lower parts of nose, lips, chin, face, neck, chest, shoulder and abdomen 2cm above umbilicus. There were 30% burn. The duration of the injuries was half day. Injuries were kept under observation because it were acid burn injuries. Witness proved injury report exhibit Ka-3 and bed head ticket exhibit Ka-2. Witness further stated that the injuries of the victim were grievous in nature.

10. PW-4 investigating officer Vishal Vikram Singh stated on oath that on the date when this crime was registered he was on leave and he started investigation on 04.07.2010 and recorded the statement of the witnesses and visited place of incident, prepared site plan exhibit Ka-4 and after completion of investigation submitted charge sheet exhibit Ka-5.

11. PW-5 constable/clerk Gyan Ratan Singh stated on oath that in pursuance of application exhibit Ka-1 of complaint, he scribed formal FIR and this fact was entered in the general diary, the carbon copy of which is exhibit Ka-7 on record.

12. No witness was examined by appellant/accused in his favour.

13. Heard learned Amicus Curiae, learned AGA and gone through the record including statement of the PWs.

14. Learned Amicus Curiae submitted that the incident took place on intervening night of 1-2/07/2010 at about 2.30 am. The police station is about 6km away from the place of incident. Despite of this fact the FIR lodged at 10.20 AM after 7 hours delay. No explanation tendered by the prosecution, thus the false implication of appellant/accused could not be ruled out.

15. Learned AGA refuted the argument of learned Amicus Curiae and submitted that the incident took place in the night in a village which is 6 km away from the police station. Both complainant and victim are illiterate that is why they had filed complaint after 7 hours delay. Incident happened in the night and place of occurrence is far away from police station that is why it can very well be inferred that after receiving injuries victim and complainant were indulged in preparation for journey to the police station due to why this delay was caused.

16. In the rival submissions of learned counsels I have gone through the entire record and finds that the place of incident is a village which is 6 kms away from the police station. Incident took place in the night. Complainant and his daughter are illiterate persons and belongs to the Scheduled Caste community. In the circumstances, they are not familiar with the requirement of law that the FIR should be lodged as early as possible. Moreover, there were acid burn injuries upon the person of PW-2 Smt. Prema Devi then it is natural for the complainant and victim, first to get some relief from the burn injuries then to move for the police station. In these circumstances, I do not find any delay in lodging the FIR.

17. Learned Amicus Curiae submitted that PW-1 complainant Sri Kheman Prasad alias Khemkaran has not proved in his statement that who scribed first information report exhibit Ka-2 that is why reliance could not be placed upon this document.

18. There is no substance in the submission of learned Amicus Curiae because PW-1 in his statement unequivocally narrated that when he reached in town Kamlapur, he got scribed FIR exhibit Ka-1 from an unknown person. Since the PW-1 is a fully illiterate person and only make sign that is why he could not be expected to know the name of the scriber of the FIR. Thus, if the name of scriber is not brought on record by the prosecution then it will not adversely affect the theory of prosecution.

19. Learned Amicus Curiae further submitted that there is no independent witness though PW-1 and 2 stated on oath that so many persons were came at the place of occurrence.

20. The submission of learned Amicus Curiae has no substance because PW-2 Smt. Prema Devi stated on oath that when appellant/accused thrown acid upon her and when she raised alarm, her father and other villagers came on the spot and tried to nab appellant/accused who fled away from the scene of occurrence. According to statement of PW-2, when appellant/accused thrown acid upon her none had seen except her to the commission of crime throwing of acid. When she raised alarm, her father came down from the roof and other villagers also came on the spot. Thus, the complainant and other villagers came on the spot after the commission of crime. PW-1 complainant admitted in his statement on oath that he had not seen accused/appellant throwing acid upon his daughter. Moreover, this crime was committed in the dark of midnight in the wee hours that is why no independent witness was present there and all came after throwing of acid by the appellant upon victim Smt. Prema Devi.

21. Learned Amicus Curiae further submitted that complainant recorded in exhibit Ka-1 that appellant/accused thrown acid when she was sleeping on the cot while PW-2 Smt. Prema Devi stated on oath that when she was giving water to her mother, at that time appellant/accused thrown acid on her. Thus, there is material discrepancy in between the statement of two witnesses of fact that is why the false implication of the appellant/accused is possible.

22. There is no substance in the argument of learned Amicus Curiae because at the time of commission of crime PW-1 was sleeping over the roof of his house and PW-2 Smt. Prema Devi victim was sleeping under thatch of her house. Since the victim received acid burn injuries that is why it is not possible for her to give graphic version of the incident. Moreover, the FIR exhibit Ka-1 is a very short document that is why it could not be imagined that appellant/accused was falsely implicated. The discrepancy as suggested by the learned Amicus Curiae emerges in the statement of PW-1 and 2 has no relevance because PW-1 admitted in his statement that he had not seen appellant/accused throwing acid upon her daughter Smt. Prema Devi, what PW1 said that when he heard the voice of her daughter he came down from the roof of his house.

23. Learned Amicus Curiae further submitted that PW-3 Dr. O.P. Shukla opined that the injuries which were found on the person of victim Prema Devi could only be caused when she was lying condition on the cot and not in the sitting position.

24. I am afraid to agree with the argument of learned Amicus Curiae because statement of doctor is a opinion and it cannot prevail over the ocular evidence. Since PW-2 victim herself stated on oath that when she was sitting on the cot and was giving water to her mother appellant/accused thrown acid upon her in the sitting position on the cot. In my opinion, such injuries may be caused in the sitting position when a person was inclined for fetching water from the utensil.

25. Learned Amicus Curiae further submitted that the incident took place in the dark night that is why it is not possible for the victim and the complainant to identify and recognise appellant/accused because the appellant was not the resident of village Mahdauli. Thus, the false implication of appellant/accused could not be ruled out.

26. It is true that the appellant/accused is not the resident of village Mahdauli but PW-1 and 2 both stated on oath that one year earlier from the date of incident appellant/accused was in the service of Shailesh Singh resident of village Mahdauli and appellant/accused was residing in the house of Shailesh Singh and he was using path opposite to the house of victim for to and fro. Since the appellant/accused was residing from one year prior in that very village that is why the identification and recognition of the appellant/accused in the dark night by the witnesses is natural phenomena in the village, because the villagers are accustomed of seeing and recognising any person in thick and dark night who were familiar with them more than, the urban people. After all, PW-2 Smt. Prema Devi victim proved that a lamp was lightning beneath thatch which was kept on the floor. In these circumstances in the light of lamp PW-2 victim could very well recognise and identify the appellant/accused. PW-1 proved that since he was familiar with appellant/accused that is why he identified and recognised appellant/accused from behind when he was running from the scene of occurrence. There is no cogent reason to disbelieve the statement of PW-1 and 2 that they have recognised to appellant/accused in the light of lamp and from behind due to earlier proximity.

27. In the last, learned Amicus Curiae submitted that there was no motive for accused to throw acid upon victim. Since there was no motive that is why the commission of crime could not be committed by the appellant/accused. Learned counsel further submitted that there was illicit relation between victim and one Chhabiley of the village who is the relative of complainant and victim that is why to save Chhabiley both complainant and victim in the connivance of each other lodge a false complaint against the appellant/accused.

28. I find myself unable to accept the arguments of learned Amicus Curiae because the false involvement of few persons could be in any offence but in a case where there is only lone accused person is involved then the possibility of false implication has not arisen. No victim shall spare to a real or actual culprit and make a false implication of other person.

29. In the light of above discussion, I again visited the evidence tendered by the prosecution and cogitated, considered carefully and find that the prosecution succeeds in proving the guilt of the appellant/accused beyond doubt and there is no cogent and plausible reason to disbelieve the statement of PW1 and 2 complainant and victim. As far as the statement of other witnesses is concerned all rest witnesses are of formal nature that is why there is no need to discuss about the statement tendered by these witnesses. They all supported the statement of PW-1 and 2.

30. In view of the above discussion, I find that the learned Trial Judge passed judgment and order, after considering the facts and circumstances of the case in consonance of law. There is no ground to interfere or set aside the judgment and order of Trial Court.

31. Judgment of learned Trial Court is affirmed. The appeal, being devoid of merit, is hereby dismissed.

32. Let the judgment be notified to learned Trial Court for compliance. Learned Trial Court shall submit its report within one and a half month from the date of judgment.

33. Let the record of the learned Trial Court be sent back forthwith as early as possible.

Order Date :-21.09.2017

Sarika

(S.N. Agnihotri, J.)