Jawahar & Others vs State
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                               Reserved
 
Case :- CRIMINAL APPEAL No. - 1811 of 1991            AFR
 
Appellant :- Jawahar & Others
 
Respondent :- State
 
Counsel for Appellant :- Siddharth Shukla
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

The instant criminal appeal has been preferred by the appellants Jawahar and Sagar, both sons of Kalahu, resident of Village Kathaicha, Police Station Khajni, Post Office-Unwar, District Gorakhpur against the judgment and order of conviction and sentence dated 21.9.1991 passed by VIIIth Additional Sessions Judge, Gorakhpur in Session Trial No.334 of 1990 (State vs. Kalahu & Others) arising out of Case Crime No.46 of 1989, under Sections 323 and 307 IPC, Police Station Khajni, District Gorakhpur, whereby appellant no.1 Jawahar was sentenced to seven years rigorous imprisonment under Section 307 IPC, whereas, appellant no.2 Sagar was sentenced to six months rigorous imprisonment under Section 323 IPC.

Heard Sri Sandeep Kumar, learned counsel for the appellants as well as Sri Om Narain Tripathi, learned A.G.A. for the State and perused the record.

Stream of events leading up to this stage as gathered from the record is found to be rooted in the written report Exhibit Ka-1 lodged by informant Harish Chandra s/o Ram Awadh Bhar resident of Village Kathaicha Bindan, Police Station Khajni, District Gorakhpur on 19.5.1989 at 12:40 hours against the appellants with the allegations that the informant and his brother Jai Narain are resident of same village. Jai Narain s/o Dwarika is his cousin brother. Accused Kalahu is his uncle. A long drawn enmity on account of landed property was existing between Kalahu and Jai Narain and litigation was going on between them. Harish Chandra works at some brick-kiln and is engaged to mould bricks. It so happened on 18.5.1989 at about 10:00 p.m. Satyadeo Dubey, who is 'munim' (one who takes care of account of any institution) at the brick-kiln came to the spot along with Jai Narain and said to the informant that he had taken Rs.900/- in advance from the owner of the brick-kiln but he is not working at the brick-kiln. Satyadeo Dubey began to abuse him. At this moment, the aforesaid two accused Jawahar and Sagar arrived at the house of Harish Chandra. Sagar was possessing lathi while Jawahar was possessing spear in his hand and said that they (informant side) are humiliating them by calling Satyadeo Dubey there on the spot and altercation ensued place between them, whereupon Dukh Haran, and Ram Pratap son of Harish Chandra's uncle also reached on the spot and tried to intervene and pacify them, but the accused did not listen to them. In the meanwhile, accused Sagar gave lathi blow on the head of the informant Harish Chandra causing injury on his person. Jai Narain tried to control the situation by interfering when he was assaulted with spear by Jawahar, which caused injuries on his left side of chest, on the arm and head. The incident was witnessed by the persons present over there.

After committing the offence, the accused ran away from the spot. Jai Narain was seriously injured. Therefore, he was brought to the District Hospital, Gorakhpur for treatment where he was medically examined by the Medical Officer on emergency duty, at 2:30 a.m. on 19.05.1989, the very same night. He prepared injury report of Jai Narain (Exhibit Ka-11). Looking to the nature of injuries he was referred for further treatment to the Medical College, Gorakhpur, then Jai Narain was shifted to Medical College, Gorakhpur where he was admitted and given treatment. It was also described in the report that after disengaging himself from above schedule of treatment and sparing time the informant has come to the police station to lodge the report.

Record reflects that contents of this written report were noted down in the concerned Check FIR at Case Crime No.46 of 1989 under Sections 323, 307 and 504 IPC, at Police Station-Khajni, District Gorakhpur, at 12:40 hours on 19.5.1989. Check FIR is Exhibit Ka-4. Consequently, relevant entries were also made in the concerned general diary of the aforesaid date and time at aforesaid police station at Serial No. 20 and the case was registered on 19.05.1989 at aforesaid crime number under aforesaid sections of IPC at Police Station-Khajni, District Gorakhpur A copy of G.D.

is Exhibit Ka-5.

The Investigation ensued and the same was conducted by the Investigating Officer S.I. Baijnath Ram, PW-7.

However, the record reflects that Jai Narain was examined by Dr. A.K. Singh, PW-9 at 2:30 a.m. at District Hospital, Gorakhpur on 19.5.1989 wherein the following injuries were found:-

1. Lacerated wound 5 cm x 2 cm x scalp deep on the left side of top of the head, 6 cm above from the nose.

2. Traumatic swelling 7 cm x 2 cm on the left side forehead just above from the left eyebrow.

3. Punctured wound 2.5 cm x 1 cm x cavity deep on the left side chest, 5 cm below from the left nipple. Injury was kept under observation. X-ray advised.

4. Punctured wound 4 cm x .75 cm x cavity deep on the left side chest 1 cm below from injury no.3.

5. Punctured wound 2 cm x 2 cm x cavity deep on the left side axilla, injury was kept under observation. Advised X-ray.

Duration was fresh. It was opined by the doctor that injury nos.1 and 2 were caused by blunt object and injury nos.3,4 and 5 were caused by sharp pointed weapon. This Injury report is Exhibit Ka-11.

Record further reflects that injured Harish Chandra was examined by Dr. S.C. Gupta PW-8 at District Hospital, Gorakhpur on 20.5.1989 at 6:10 p.m. wherein the following injury was noted:-

Septic wound injury on the right side head 11 cm above of right ear.

In the opinion of the doctor, cause, nature and duration of the injury cannot be mentioned since there was septic in the wound. Injury report of Harish Chandra is Exhibit Ka-10.

Since the investigation was under way, the Investigating Officer (PW-7) reached to the spot accompanying the informant Harish Chandra from the police station itself and at the instance of Harish Chandra prepared the site plan of the place of occurrence Exhibit Ka-7-and collected simple and blood stained clay roll from the spot and prepared a memo of the same Exhibit Ka-2. The Investigating Officer also recorded statement of various persons and arrested both the accused on 20.5.1989 and effectuated recovery of spear and lathi at the pointing out of Jawahar. The recovery memo is Exhibit Ka-3. Lathi was recovered at the pointing out of Sagar, whereas, spear was recovered at the pointing out of Jai Narain. The Investigating Officer also prepared the site plan of the place of recovery Exhibit - Ka-8 and the accused along with recovered weapons were taken to the police station (Khajni) and entry whereof was made in the concerned general diary at the police station, which is Exhibit - Ka-6 and accused were placed under detention. The Investigating Officer after completing rest of the formalities, filed the charge sheet against the accused Exhibit Ka-9.

As a sequel to that, the case was committed to the court of Sessions from where it was transferred for conduction and disposal of the trial to the aforesaid trial court - i.e. - VIII Additional Sessions Judge, Gorakhpur, who after hearing the accused and the prosecution on point of charge and perusing the record was satisfied with prima facie case against the accused and, accordingly, framed charges under Sections 323, 307, 323/34 and 307/34 IPC. Charges were read over and explained to the accused who abjured the charges and opted for trial.

Thereafter, the prosecution was required to adduce its testimony in support of the charge in order to establish guilt of the accused beyond reasonable doubt. In turn, the prosecution produced in all nine witnesses, reference of whom is given here in below:

Harish Chandra (PW-1) is the injured-informant, he has lodged the written report. Dukh Haran (PW-2) is witness of fact. Jai Narain PW-3 is another injured witness. Hari Lal (PW-4) is witness of fact of collection of simple and blood stained soil from the place of occurrence and also fact of arrest and recovery made from the accused. Poojan (PW-5) has turned hostile. He has not supported factum of recovery imputed against the appellants. Badama Yadav PW-6 has noted relevant entries in the concerned Check FIR and the concerned G.D. on 19.5.1989 at Police Station-Khajni at 12:40 hours. S.I. Baijnath Ram (PW-7) is the Investigating officer, he has detailed about the various steps, he took in completing the investigation. Dr. S.C. Gupta PW-8 has medically examined the injured Harish Chandra and has proved his injury report as Exhibit Ka-8. Dr. A.K. Singh PW-9 has medically examined another injured Jai Narain on 19.5.1989 at District Hospital, Gorakhpur at 2:30 a.m. and has proved his injury report-Exhibit Ka-11.

Except as above, no other testimony was adduced, therefore evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein they gave various reasons for their false implication and denied fact of recovery from them and claimed that they have been arrested from their home. Their implication in this case is on account of enmity.

No evidence, whatsoever, was adduced by the defence.

The Trial Court after hearing the parties and considering the various aspects of the case recorded aforesaid finding of conviction and sentenced the accused Sagar to six months rigorous imprisonment under Section 323 IPC and the accused Jawahar to seven years rigorous imprisonment under Section 307 IPC.

Resultantly, this appeal.

it has been claimed on behalf of the appellant that in this case the incident itself is dubious. The testimony of the injured witnesses does not inspire confidence and does not prove actual participation of the accused in the commission of the crime. The first information report is ante time and contradicts the version of the injured-informant Harish Chandra PW-1 as the time of lodging of the report has been mentioned as 12:40 hours on 19.5.1989 at Police Station Khajni, copy whereof is Exhibit Ka-4. The lodging of the first information report at 12:40 hours on 19.5.1989 is indicative of fact that police personnels were consulted by the informant prior to the lodging of the first information report as he had reached to the Police Station-Khajni in the very night of the incident (18.5.1989) itself. The trial court failed to take note of aforesaid vital aspects of the case and erroneously convicted the appellants.

The learned AGA has replied to the aforesaid contention by submitting on various legal as well as factual aspects of the case and has summed up that the incident has been very much proved by the testimony of the injured witnesses PW-1 and PW-3. The first information report was lodged by the informant after taking precaution for treatment of the injured Jai Narain. Therefore, lodging of the first information report cannot be said to be ante time.

It has been further added by the learned AGA that the incident has been described by the prosecution witnesses with all particulars. The learned trial Judge while appreciating merit of the case was impressed by consistency of the aforesaid facts and proof of the same, therefore, rightly recorded conviction and awarded just sentence against the appellants.

Also considered the rival submissions.

In the light of the submission raised by both the sides, the moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to establish the charges against the accused under Sections 323, 307 IPC beyond all reasonable doubt?

From perusal of the first information report, it is gathered that the first information report was lodged at 12:40 hours on 19.5.1989 at Case Crime No. 46 of 1989 under Sections 323, 307, 504 IPC at Police Station-Khajni, District Gorakhpur. Copy of Check FIR is Exhibit Ka-4. The contents of the written report Exhibit Ka-1 are explicitly indicative of fact that after the incident took place, the informant - say Harish Chandra PW-1 - was busy in the treatment of the injured Jai Narain as the injured Jai Narain was first taken to Sadar Hospital, Gorakhpur where his condition deteriorated, therefore, he was referred by the Doctor to Medical College, Gorakhpur then the injured was taken to the Medical College, Gorakhpur, where he was admitted and was undergoing treatment.

It was after all that, the informant came to the Police Station Khajni to lodge the first information report. If it is the correct fact situation then the specific fact of the time of occurrence may be taken note of at this juncture. The incident took place at 10:00 p.m. on 18.5.1989 in Village-Kathaicha, Bindan and the first information report was lodged next day on 19.5.1989 at 12:40 hours. It means that the first information report was lodged by the informant in the afternoon of 19.5.1989 due to fact that he was busy in treatment of Jai Narain.

The injury report of the injured Jai Narain Exhibit Ka-11 is indicative of fact that Jai Narain was examined at District Hospital, Gorakhpur on 19.5.1989 at 2:30 a.m. and he was brought by his son Devendra. As per testimony of Jai Narain PW-3, after the incident took place, he was taken to the District Hospital, Gorakhpur by his wife, Devendra, Harish Chandra where he was given treatment and considering his serious condition he was referred to the Medical College, Gorakhpur. If it is exactly so, that Harish Chandra accompanied him to the District Hospital Gorakhpur, and from there to Medical College Gorakhpur then the testimony of Harish Chandra PW-1 appears to be in direct contrast to the fact that the report was lodged at 12:40 hours on 19.5.1989 at Case Crime No. 46 of 1989 at Police Station-Khajni, District Gorakhpur.

Here testimony of the informant Harish Chandra PW-1 may be taken note of. Bare perusal of his testimony reflects that he (Harish Chandra) lodged the first information report in the night of the incident itself and he went to the Police Station-Khajni after the incident where he lodged the report and obtained a copy of the report. The description of the incident appears in his testimony on page 20 of the paper book, wherein he has stated that after the incident took place, the injured Jai Narain was taken to the District Hospital Gorakhpur by his family members, whereas, he started for the police station, he met with a person of Village - Phutahana and narrated him the entire incident then he wrote the report and after hearing its contents - the informant Harish Chandra PW-1 made his endorsement on it and lodged the written report at the Police Station-Khajni in the very night itself and he was given a copy of the report by the Constable at the very moment. Daroga Ji was also present at the police station. Daroga Ji inquired about the incident from him at the police station itself.

In this view of the matter, either of the two versions may be correct but not both the versions. As per FIR if after taking the injured Jai Narain first to the District Hospital Gorakhpur then from there to the Medical College, Gorakhpur and it was only after getting him admitted there, the informant spared time for himself and the report was lodged at the police station then the description appearing in the testimony of Harish Chandra PW-1 runs counter to and in sheer contrast in explicit terms to the contents and description of the report lodged at the Police Station-Khajni, the very same night soon after the occurrence.

Further, if the report was lodged on 19.5.1989 at 12:40 hours then there is no plausible reason as to how and why the medical examination of Harish Chandra PW-1 was deferred till the evening of 20th May, 1989 when he was medically examined by Dr. S.C. Gupta at District Hospital, Gorakhpur at 6:10 p.m. (on 20.5.1989). Surprisingly, he presented himself for medical examination and no majroobi chitthi (letter) was sent for the same to the hospital from the police station. Here, the testimony of the Investigating Officer PW-7 S.I. Baijnath Ram becomes relevant. In his cross-examination on Page 40 of the paper book, he has testified to the ambit that he did not see any injury on the person of the injured-informant-Harish Chandra-at the time of the lodging of the first information report although he recorded statement of PW-1-Harish Chandra soon after the lodging of the first information report. He has further testified to the extent that after taking statement of the informant, he went to the spot along with the informant, whereas, Harish Chandra PW-1 has categorically stated on Page 26 of the paper book, in his cross examination, that after lodging of the report at the police station in the night, he returned to his home on foot around 5:00 a.m. and then he started for Gorakhpur. He has further testified that his medical examination was not conducted after he lodged the report, but it was conducted after two days. But no explanation worthy of its sort has been extended for his belated medical examination.

Harish Chandra PW-1 has denied the fact that he ever dictated in the written report Exhibit Ka-1 about the fact that he took Jai Narain first to Sadar Hospital from where he was referred to the medical college after his condition deteriorated and then he took Jai Narain to Medical College from the District Hospital. He has been suggested by the defence about aforesaid contents appearing in his report whereupon he has testified that in case any such description is contained in the written report - Exhibit Ka-1 - that he accompanied injured Jai Narain to the District Hospital and to the Medical College Gorakhpur then he cannot assign any plausible reason/explanation for the same.

He has further stated, on Page 25 of the paper-book, that Daroga Ji visited his village the following day after the lodging of the first information report and at that point of time, he was at his home. On page 26 of the paper-book, he has testified to the effect that he was at his home around 5.30 a.m. If it is exactly so, then the lodging of the FIR at 12:40 hours on 19.5.1989 per se becomes ante-time.

Surprisingly, on the same page, he has testified in his cross-examination that Daroga Ji never recorded his statement. Thus, the time of the lodging of the FIR does not match with the testimonial version of PW-1. Statement of the Investigating Officer (PW-7) does not match with the testimony of PW-1 that the Investigating Officer accompanied the informant to his village after the report had been lodged. It means that the police acted in collusion with the informant and it cannot be believed that the first information report was lodged at 12:40 hours on 19.05.1989. The investigating officer has not spelled a single word in his testimony about the lodging of the FIR around mid night of 18/19.5.1989.

Similar is the case with the testimony of Constable Badama Yadav PW-6. He has categorically stated that on 19.5.1989 he was posted at Police Station-Khajni as Constable-Moharrir and on the basis of the written report, he prepared the Check FIR at 12:40 hours and he has proved the Check FIR Exhibit (Ka-4). He has also proved the entry made by him in the concerned general diary on the basis of which the case was registered against the accused and he has proved carbon copy of the same as Exhibit Ka-5. Both these documents also refer to the same time and date say 12:40 hours on 19.5.1989. Obviously, the things are in utter disarray on point of lodging of the FIR by PW-1 Harish Chandra in the mid night and it cannot be gathered with precision as to when the first information report in fact was registered against the accused in the mid-night of 18/19.5.1989.

If the testimonial version of Harish Chandra PW-1 is taken to be correct that he lodged the report at the police station sometime in the mid-night soon after the incident (at 10:00 p.m. on 18.5.1989) then version of Constable Badama Yadav PW-6 who noted the FIR and the concerned general diary entry, cannot be believed to be correct. In case Constable Badama Yadav PW-6 is believed to be correct then testimony of Harish Chandra PW-1 regarding lodging of FIR in the mid-night is rendered wholly unbelievable and he becomes unreliable witness.

It is surprising that the prosecution witnesses have not come out specifically about the exact time when the first information report was lodged. This aspect renders FIR ante time and the incident becomes dubious as to when it, in fact, took place. Medical examination of Harish Chandra PW-1 done by PW-8 on 20.5.1989 at 6:10 p.m., obviously, appears to be part of some conspiracy to deliberately implicate the accused-appellants in this case on account of long drawn enmity based on landed property and on going litigation between the informant's side and the accused-appellants.

In view of above scrutiny, it is established that the FIR in this case becomes ante-time thus rendering the entire incident dubious. The surprising aspect of the case is that the Investigating Officer PW-7 S.I. Baijnath Ram though recovered the blood stained spear on 20.5.1989, did not send the same for examination to the Forensic Science Laboratory.

Similarly, the blood stained soil and the simple soil which were allegedly collected on the spot by the investigating officer were also not sent for examination to the Forensic Science Laboratory. Therefore, the fact of the very recovery of the spear imputed against Jawahar fades away into oblivion.

Poojan PW-5 who is stated to be a witness of fact of recovery of the weapon at the instance of accused Jawahar has turned hostile and he has denied fact that he ever witnessed any such recovery, whereas, testimony of the Investigating Officer PW-7 has come forth to the ambit that at the time of recovery, two witnesses Hari Ram and Poojan were present on the spot. The factum of recovery would have been consistently proved if the recovered spear having blood stain on it would have been sent for chemical examination to the Forensic Science Laboratory but the same has not been done in the present case. Therefore, it cannot be said with certainty that the blood mark found on the spear was blood of a human being.

It is surprising that the investigating officer PW-7 has not noted the relevant time as to when he stared from the police station to the place of occurrence and when he completed part of the investigation on the particular date on the spot.

In view of fact that the blood stained soil was not sent for chemical examination, the place of occurrence also becomes dubious. Surprisingly, the recovery memo which was prepared by the Investigating Officer on 20.5.1989 does not contain the actual time when the arrest was made and the recovery was effectuated by him. This by itself puts into dark the very validity and the authenticity of the recovery memo itself. Thus, the recovery memo Exhibit Ka-3 loses its legal force and becomes piece of waste paper.

It is noticeable that the description of the incident surfacing in the testimony of both the injured witnesses Harish Chandra and Jai Narain, PW-1 and PW-3, respectively indicates that the weapon apart from 'lathi', spear (Bhala) was also used for causing injury nos.3,4 and 5 as noted by the doctor witness (PW-9) in the medical examination of the injured Jai Narain PW-3. PW-9 has expressed opinion in his cross examination to the ambit that possibility of causing two injuries namely injuries no.4 and 5 give way to use of two different weapons. It means that both these injuries might have been caused by two different weapons. This specific testimony goes to show that it is not clear as to how, and in what manner and by what weapon, injury nos.3, 4 and 5 were inflicted upon the injured Jai Narain. This piece of testimony of PW-9 goes unimpeachable. Therefore, ocular testimony in the shape of description of the incident given by the injured witnesses cannot be said to be consistent version of the incident in view of categorical testimony of PW-9 in his cross examination when he expressed opinion about use of two weapons for causing injury nos.4 and 5 upon the injured.

The above discussion is fair enough to throw lot of doubt on the actual occurrence particularly as to the time when the incident took place and when the first information report was lodged infact by the informant. May be that two injured sustained injuries, but it cannot be said that the injury was received by both the injured at the time and place alleged in the written report because the lodging of the first information report becomes ante time and the testimony of the Investigating Officer is fraught with a number of contradictions which allude to the inference that the police was hand in glove with the informant side. Admittedly, it is a case wherein the dispute on account of landed property and long drawn litigation was existing between both the sides. The possibility of false implication cannot be ruled out.

Lot of doubts are created because of inconsistent description of the prosecution witnesses when compared with the prevailing facts and circumstances of the case. Consequently, the conviction recorded by the trial Judge appears to be erroneous and against material on record and the trial Judge misread into evidence vis-a-vis facts and circumstances of the case when he recorded conviction and passed sentence. The prosecution was not able to prove its case beyond reasonable doubt.

In criminal jurisprudence, it is settled principle of law that testimony and circumstances of the case must positively point out guilt of the accused beyond reasonable doubt and in case the evidence when taken as a whole and applied to the facts and circumstance of the case appears to be shaky, vacillating and full of improvements then charge framed against the accused will lose its legal significance and the accused will be entitled for acquittal. In this case, there is no worthy evidence which may reasonably connect the accused with the commission of the crime but the trial court while taking stock of merit of the case overlooked vital factual aspects of the case and erroneously recorded finding of conviction and passed sentence against the appellants under Sections 323, 307 IPC which is not sustainable in the eye of law.

Consequently, the arguments advanced by the learned counsel for the appellants carry force. Therefore, the judgment and order of conviction dated 21.09.1991 passed by the VIII Additional Sessions Judge, Gorakhpur, in Sessions Trial No.334 of 1990 State of U.P. Vs. Kalahu and others, arising out of Case Crime No.46 of 1989, under Sections 323, 307 IPC, Police Station Khajni, District- Gorakhpur, is set aside. Accordingly, the present appeal succeeds and the same is allowed.

The appellants Jawahar and Sagar are acquitted of charges under Sections 307, 323 IPC, respectively.

In this case, the appellants are on bail. They need not surrender before the court below. Their personal bonds and bail bonds are cancelled and sureties are discharged. However, the appellants shall ensure compliance of Section 437A Cr.P.C.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Order Date:- 20.07.2018

S Rawat