Ram Pyare & 3 Others vs State Of U.P.
2018 Latest Caselaw 1572 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                           	 A.F.R.                                 
 
Court No. - 48
 
Case :- CRIMINAL APPEAL No. - 3304 of 2016
 
Appellants :- Ram Pyare & 3 Others
 
Respondent:- State Of U.P.
 
Counsel for Appellants :-  Sri Nikhil Kumar
 
Counsel for Respondent :- G.A.
 
Hon'ble Karuna Nand Bajpayee,J.

This is an appeal filed on behalf of the appellants Ram Pyare, Rinku, Ram Chandar and Virendra against the judgment and order dated 7.6.2016 passed by the Additional Sessions Judge, Bansi, Siddarth Nagar in S.T. No. 58 of 2012, State versus Ram Pyare and others, whereby the appellants have been convicted and sentenced to undergo rigorous imprisonment of one year under Section 323 IPC and a fine of Rs.1,000/- along with the default clause to undergo 2 months' simple imprisonment in case of failure to deposit the fine. The sentence of rigorous imprisonment of 3 years has also been recorded under Section 324 IPC along with fine of Rs. 2,000/- containing with it the default clause to undergo 2 months' simple imprisonment in case of failure to deposit the fine. Apart from this, rigorous imprisonment of 1 year under Section 504 IPC and a fine of Rs. 500/- has also been imposed along with default clause to undergo 1 month's simple imprisonment. Rigorous imprisonment of one year under Section 506 IPC and a fine of Rs. 500/- along with the default clause to undergo 1 month's simple imprisonment in case of failure to deposit the fine has also been recorded by the court. All the sentences were ordered to run concurrently.

Heard Sri Dinesh Kumar Singh, Advocate holding brief of Sri Nikhil Kumar, learned counsel for the appellants and the learned AGA for the State. Perused the record.

The initial version as transpires from the FIR appears to be that on 20.2.2012 at about 9.30 a.m.one Lautu Prasad (not appellant before this Court) along with accused persons Ram Pyare, Rinku, Ram Chandar and Virendra variously armed with axe, farsa and iron rod came up abusing on the 'Dalan' of the victim Wasim whereupon victim Wasim rushed back into his house in order to save himself. Thereafter, Lautu Prasad and Ram Chandar made assault upon the victim by farsa and axe (Kulhari). The other accused assaulted upon him by iron rod. On hearing the hue and cry raised by Wasim, some people like Mohammad Ali, Mohammad Salim and the womenfolk came up there and saved his life. The accused persons thereafter went away giving threats to his life. The FIR of the case was registered which has been proved as Ex.Ka-1. The victim was medically examined and his medical examination was proved as Ex.Ka-5. During the course of investigation, the site plan was prepared and was proved as Ex.Ka-2. After due investigation the chargesheet was submitted and proved in the court as Ex.Ka-3. The case was committed from the court of Chief Judicial Magistrate to the court of Sessions.

During the course of the trial, the prosecution in order to prove the case produced P.W.1 Wasim Ahmad, who is also the victim of the case, P.W.2 Smt. Haddishunisha , P.W.3 Mohd. Salim, P.W.4 Mohd. Ali, P.W.5 S.I. Ramakar Yadav, P.W. 6 Dr. Navin Chandra, Radiologist, P.W. 7 Dr. Krishnanand Mani Tripathi and P.W.8 Head Constable Ram Lakshman. It is these witnesses who have proved the various papers which have been exhibited as Ex.Ka-1 to Ex.Ka-7.

The statements of the accused persons were recorded under Section 313 Cr.P.C. in which they have denied the accusation. It was also stated on behalf of the accused that actually there is a spot on which the women of the village performed pooja on the auspicious day of 'Chhatha'. It was this spot on which the victim Wasim and his other associates wanted to take unlawful possession. Actually it was in this regard that Wasim etc. tried to make assault upon the accused persons. When resistance was made, a false case has been planted upon them. A complaint case is also said to have been filed on behalf of the accused persons in this regard.

Chief plank of the prosecution evidence is the statement of P.W.1 Mohd. Wasim, who has been examined in the court. The version that has been given in the court has introduced several vital changes deviating from his entire version as was earlier given in the FIR. P.W.1 Wasim has deposed in his statement that on the day of occurrence he had gone to the betel shop of Haddishunisha where he met accused Virendra, Chandar and Rinku who called him and then they took him to a platform at Tajia spot where the other accused Ram Pyare and Lautu were present from before. The accused Ram Chandar was armed with 'Saria' and accused Virendra was armed with axe (Kulhari). Accused Rinku was armed with Farsa, while accused Lautu and Ram Pyare were having lathis. They abused him and then made assault upon him on which witnesses Mohd. Ali, Salim, Gauri, Haddishunisha and other villagers assembled on the spot. It was also stated by Wasim that before this incident accused Chandar had in an inebriated state put his hand in his pocket on which there took place some quarrel and threat was given to him by the accused Chandar. It was stated by Wasim that he had singed on the FIR but had not read the same before signing it. When in the court the FIR was read out to this witness he gave the statement that he had not dictated any such FIR and the spot of the occurrence has been shown by the scribe on his own wrongly and arbitrarily. He has also deposed that later on as a victim he was taken to the hospital where he was medically examined and x-ray was done.

Haddishunisha has been examined as P.W.2, who owns a betel shop and where the victim Wasim is said to have gone and where the incident, according to the statement of Wasim given in the court, took place. This witness in her statement has not claimed to be the eyewitness of the occurrence and according to her version, the accused persons had already gone away when she reached the place of occurrence. According to her statement, she found the victim Wasim lying there and none of the accused was there at that time. According to her statement, accused Rinku, Virendra and Chandar had come to call the victim and this is all what she claims to have known.

Mohammad Salim has been examined as P.W.3. According to him, he had seen the accused running away and according to his statement also, the accused had run away before he could reach the place of occurrence. According to him, when he saw the victim for the first time, he was bleeding and there was no question to apprehend the accused as they had already fled away.

Another witness Mohammad Ali has been examined as P.W.4. According to him, accused Ram Chandar, Virendra, Rinku and Ram Pyare had made assault upon the victim Wasim by iron rod, danda, and axe. He pleaded ignorance about the cause of the incident. He has also deposed later on that he could not apprehend the accused because they had already fled away and he had also seen the victim bleeding.

S.I. Ramakar Yadav has been examined as P.W.5, who has deposed about the various steps of investigation and has inspected the spot and prepared the site plan. He recorded the statements of the various witnesses and has also deposed to have submitted the chargesheet of the case.

Dr. Naveen Chandra has been examined as P.W.6, who has deposed to have done x-ray of the victim Wasim and according to him, no fracture was found on his body.

P.W.7 is Dr. Krishnanand Mani Tripathi, who has examined the victim and has found following injuries on his person:-

1- Lacerated wound 3 cm. X ½ cm. on the forehead.

2- Incised wound 4cm. X 1 cm. X 1 cm. on the head..

3- Abrasion 4 cm. X 1 cm. over the ankle.

4- Abrasion 2 cm. X 1 cm. over left leg with swelling 6 cm. X 4 cm., 10 cm. from knee joint.

5- Complain of pain in the chest.

6- Injury nos. 6,7 and 8 have been described as contusions.

In the opinion of the Doctor, all the injuries except injury nos. 2 and 4 were of simple in nature and were caused by blunt weapon. Injury no.2 was, in the opinion of the Doctor, caused by a sharp edged weapon. All the injuries were found fresh.

After considering the evidence produced on behalf of the prosecution, the trial court proceeded to hold the accused-appellants guilty under various sections as has already been described in the beginning of the judgment.

Learned counsel appearing on behalf of the appellants has made multi-pronged attack upon the credibility and reliability of the prosecution evidence as has been produced in this case and has also tried to assail the findings of the trial court on various grounds. It has been emphasized by the learned counsel for the appellants that there are sharp contradictions in the description of weapons as have been assigned to various accused persons by the victim himself, who is the first informant of the case also. It has been pointed out that accused Lautu, who has not been chargesheeted and is not the appellant before this Court, was said to have been armed with farsa or kulhari in the initial version given out in the FIR. The other accused persons Ram Pyare, Rinku and Virendra were said to have been armed with iron rod in the version of the FIR but this description underwent a sea-change subsequently, when the victim came to depose before the trial court. Accused Lautu was later on attributed lathi, just as accused Ram Chandar was later on attributed saria in the statement given before the court. It has also been pointed out by the learned counsel for the appellants that accused Ram Pyare, Rinku and Virendra were also later on attributed lathi, farsa and kulhari respectively in the deposition given in the court which is in sharp contradiction with the earlier weapons that were attributed to them in the FIR. Submission of learned counsel for the appellants is that actually the incident never took place in the manner as has been described by the victim and as there was a dispute over the 'Pooja' place and the prosecution side wanted to take unlawful possession over it which was resisted by the accused persons. Whereupon the incident had taken place in which some persons of the accused side had received certain injuries also. A complaint was also filed in that regard against the people of the prosecution side in which they were summoned and for all these reasons, therefore, a completely concocted version has been introduced which is full of such diagonal contradictions which were otherwise not possible to have been there if the victim would have given out a truthful version of the occurrence. It has been submitted by the learned counsel for the appellants that even on the point of place of occurrence there are loud inconsistencies and incompatibilities in the version given by the victim Wasim. While he claims in his version of the FIR to have been assaulted inside his house where he had rushed back to save himself, the version given out in the court is altogether different and the whole occurrence has been shifted to the betel shop of P.W.2 Haddishunisha. Submission is that the incompatibility is too loud to be reconciled with each other and goes to the root of the matter especially in the wake of the defence plea that the occurrence had taken place on a different place and in a different manner altogether and that too for an entirely different reason. It has been further submitted that so far as the deposition of P.W.2 Haddishunisha is concerned, her statement does not help the prosecution much as she does not claim to have seen any part of the occurrence. It has also been observed by the trial court also that P.W. 2 Haddishunisha had reached the place of occurrence after the accused had already fled away. Thus it has been found even by the court that P.W.2 has not fully supported the prosecution case. The statement of P.W.3 Mohammad Salim is also in the same vein and he also does not depose to have seen the accused making assault upon the victim. It is only the statement of P.W.3, which to some extent, gives corroboration to the statement of Wasim but the inherent intrinsic contradictions in the statement of Wasim denudes his testimony from all credibility. Learned counsel for the appellants has drawn the attention of the Court towards paragraph 20 of the judgment in which inherent contradictions with regard to the weapons said to have been wielded by the accused side has been dealt with by the trial court. But despite having noted the same, no plausible justification or explanation with regard to the same could be found by the court. Similarly, in paragraph 21 of the judgment major contradictions with regard to the place of occurrence have been noted by the court without finding any explanation. But the court has tried to make use of victim's tainted testimony and has tried to seek corroboration from other witnesses and has again some how tried to make out the case of the prosecution which according to the counsel is not a very fair approach. The contention is that even though the trial court has taken note of all the major contradictions in the prosecution evidence but instead of drawing inference against the prosecution it has still gone to hold the accused-appellants guilty. According to the counsel, in view of the major contradictions in the statements of the witnesses and the infirmities in the judgment, the findings of guilt of the accused-appellants cannot therefore, be sustained.

While opposing and rebutting the submissions made by the learned counsel for the appellants, learned AGA has submitted that it is not needed that the testimony produced in the court should be wholly above-board and flawless and it is also not necessary that if there were contradictions the witness should necessarily be held unreliable. According to the learned AGA, the victim has received injuries and, therefore, his presence on spot is a proven fact, so there was no reason for him to falsely depose against the accused persons and, therefore, contradictions, if any, have to be ignored and no interference in the judgment should be drawn against the witnesses or the prosecution case as such.

The Court has perused the judgment and the entire record and has considered the rival submissions made at the bar.

It is true that all the contradictions may not be of such nature which may persuade this Court to throw the prosecution evidence over-board. It is also true that in law even a tainted testimony can be used to corroborate the untainted testimony and a witness who may not be wholly reliable can be used to lend corroboration. But it does not appear to be a case where this Court is to examine the testimony which is free from serious infirmities or free from major contradictions. The testimony of the victim Wasim alone could have carried enough weight to prove the charge if it was found otherwise reliable by this Court. But this Court does not in its estimate find him belonging to that class or category. If a person has received injuries on his person they can only go to prove to some extent his presence at the spot but that does not necessarily ensures about the correctness or truthfulness of the version of occurrence given out by him. It is possible that Wasim could have incurred injuries in some incident but the question of questions is as to whether the version of the occurrence as described by him is a credible version on the basis of which this Court may proceed to hold the accused guilty. If the testimony of Wasim himself is rendered wholly unreliable then there can not be any scope to improve the fate of his testimony by seeking corroboration from other half reliable or tainted testimonies produced by prosecution. P.W. 2 Haddishunisha does not claim to have seen the occurrence at all, just as P.W.3 Mohd. Salim has also deposed that before he could reach the place of occurrence the accused had already fled away. In fact, if the testimony of victim Wasim was found to be wholly reliable by the court, there was hardly any need to look for corroboration from any other witness. There are diagonal contradictions between the version of the FIR regarding the place of occurrence and the subsequent version regarding the place of occurrence deposed by this witness when he came in the court. It is not a case where two descriptions about the place of occurrence are such which may be reconciled with each other. It is also relevant to note that if the entire version of the FIR contains even a grain of truth that the occurrence had taken place inside the house of Wasim then also there is no question for either P.W.2 or P.W.3 or P.W. 4 to have witnessed the occurrence at all. Probably that might be the reason why the place of the occurrence was changed subsequently so that some witnesses may be introduced to have seen the incident. If the occurrence had taken place inside the house of Wasim then there was no question for other witnesses to have come inside the house at that time. But unfortunately this attempt does not appear to have fructified as the witnesses, purposely so introduced, have also not claimed to have seen the actual occurrence at all. Similarly, there is discrepancy in the weapons that have been assigned to the various accused persons and the entire version has been made to turn topsy turvy. When the opportunity was given to the witness to explain the incompatibility, he had no other explanation to proffer than to say that the version contained in the FIR was never his version and whatever has been written in the FIR was dictated by the scribe on his own and not by him. But once this witness has admitted his signatures, this Court has no option but to hold that he is the author of this FIR and such kind of explanation cannot be held to be a legitimate explanation to explain such vital and grave contradictions of crucial importance which in the opinion of this Court, go to the root of the matter and are capable to knock out the bottom of the prosecution case. Moreover, the denial of the first informant from being the author of the contents of the FIR would have another very pernicious effect on the prosecution case as the FIR proved by prosecution shall then stand divested from all its corroborative value. The significance of FIR does not need to be elaborated upon by this Court as the same is too well known. The FIR is the earliest version of the case and if the same has been lodged promptly the chances of embellishment and improvements in the version get minimized . The allegations contained in the prompt FIR are often treated to have an inbuilt assurance of they being true and the same go a long way to buttress the strength of prosecution version. But in case the FIR itself is found to have been influenced by confabulations and discussions or if it is found that the same has not been authored by the first informant then there is hardly any use of the same for prosecution. It is so well known that the FIR is the previous statement of the first informant and can be used either to contradict or for corroboration of maker thereof i.e. its author the first informant. If the first informant denies and does not claim to have been the author of FIR and if he does not claim its contents how can the same be used to corroborate his testimony at all ! On that score also, the credibility of the prosecution case gets another blow and the damage caused by such denial appears to be irreparable. The submissions made by the learned counsel for the appellants therefore, seem to have substance and this Court does not see any good reason to disagree with him.

For all these reasons as have been discussed above, this Court finds that the findings arrived at by the trial court are not sustainable either on facts or on law. The prosecution has failed to prove the charges beyond all reasonable doubts. The appeal therefore, deserves to be allowed.

The appeal is allowed and the impugned judgment and order dated 7.6.2016 recording conviction is set aside. The appellants are acquitted from all the charges under Sections 323,324 and 504 IPC. They are on bail, their bail bonds and surety bonds are hereby discharged.

Let a copy of this judgment be certified to the trial court for it's intimation.

Office is directed to send the lower court record to the trial court concerned forthwith.

Dated 18.7.2018

CPP/-