Satya Narain And (3) Ors. vs State Of U.P.
2021 Latest Caselaw 92 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

      						    A.F.R.
 
						       Reserved
 
Court No. - 31
 

 
Case :- CRIMINAL APPEAL No. - 1450 of 2003
 

 
Appellant :- Satya Narain And (3) Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Raza Zaheer,R.U. Verma,S P Singh,Sheo Prakash Singh,Vijay Kumar Yadav
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. The instant criminal appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code'), has been preferred against the judgment and order dated 04.09.2003, passed by IInd Additional Sessions Judge, Faizabad in Sessions Trial No.26 of 2001, arising out of Case Crime No.123 of 1999, under Sections-307/504/506/435 and 427 I.P.C., P.S.-Tanda, District-Ambedkar Nagar, whereby the appellants-Satya Narain, Amarjeet, Pawan Kumar and Ashok Kumar (hereinafter referred to as appellants) have been convicted and sentenced for offence under Section 307 read with 34 I.P.C. for four years rigorous imprisonment and fine of Rs.2000/- each and for offence under Section 435 read with 34 I.P.C. for two years rigorous imprisonment and fine of Rs.1000/- each. It has been further directed that the appellants will have to undergo six months imprisonment for both the offences. All the sentences of the appellants will run concurrently.

2. The prosecution case, in brief, is that the informant (Ram Milan) (P.W.-1) and the appellants are resident of Village-Shapur Kurmaul, Police Station-Kotwali Tanda, District-Ambedkar Nagar and civil suits pertaining to agricultural land i.e. Gata Nos.1095, 1096, 1047, 1146, 1230, 1065, were pending between them to which both parties were claiming as Bhumidhar with transferable rights along with possession. On 05.05.1999, Ram Milan (P.W.-1) was harvesting his wheat crops since 6:00 a.m. along with his nephew-Devdhar, uncle-Ramashray and cousin- Ramajore. Meanwhile, the appellants-Satya Narain, Ashok Kumar, Pawan Kumar and Amarjeet came there at about 12:30 a.m. The appellants-Satya Narain and Amarjeet were carrying bombs, the appellant-Ashok Kumar was carrying a katta (countrymade pistol) whereas the appellant-Pawan Kumar was carrying lathi. Upon exhortation of the appellant-Pawan Kumar, all the appellants hurled abuses and threatened to kill Ram Milan (P.W.-1) and his family members who were harvesting the crops ; the appellants-Satya Narain and Amarjeet threw the bomb with intention to kill them ; and the appellant-Ashok Kumar fired with Katta (countrymade pistol). Hearing the explosion of bomb, firing of Katta (countrymade pistol) and alarm raised by the informant of his family members, Ram Daur (P.W.-2), Ram Charitra (P.W.-3) and Ramajore and so many co-villagers came there and saw the occurrence. The appellants fled away from the place of occurrence by setting ablaze the field of wheat and sugarcane crops. A typed written information (Ext.-Ka-1) was lodged by the informant (Ram Milan) (P.W.-1) at Police Station-Tanda at about 4:35 p.m. which was entered into General Diary (Ext.-Ka-3) by S.I., Sheetla Prasad Upadhyaya (P.W.-4), the then Head Constable, who registered Chik F.I.R. (Ext.-Ka-2), as Case Crime No.123/99 under Sections-307, 435, 504, 506, 427 I.P.C., against the appellants.

3. Investigation of the case was handed over to S.I., Bhuvneshwar Prasad (not examined), who visited the place of occurrence, collected sample of exploded bomb and ashes, prepared its recovery memo (Ext.-Ka-4 and Ext.-Ka-5), prepared site plan (Ext.-Ka-6) and after conclusion of investigation, filed charge sheet (Ext.-Ka-7) against the appellants, for offence under Sections-307, 435, 504, 506, 427 I.P.C., before the concerned Magistrate, who took the cognizance of the offence and since the offence was exclusively triable by the Court of Sessions, after providing the copy of relevant police papers as required under Section 207 of the Code, committed the case to the Court of Sessions, Faizabad for trial.

4. The learned trial Court framed charges for the offence under Sections 307 read with 34, 504, 506 and 435 I.P.C against the appellants to which they denied and claimed for trial.

5. The prosecution, in order to prove its case, examined Ram Milan (P.W.-1), Ram Daur (P.W.-2), Ram Charitra (P.W.-3), S.I. Sheetla Prasad Upadhyaya (P.W.-4) wherein P.W.-1 to P.W.-3 are witnesses of facts and P.W.4 is formal witnesses.

6. After conclusion of the prosecution evidence, the statement of the appellants were recorded under Section 313 of the Code wherein they denied the prosecution evidence alleging that they have been falsely implicated due to previous enmity.

7. After conclusion of the trial, learned trial Court convicted and sentenced the appellants as above by the impugned judgment. Aggrieved by the impugned judgment, the appellants have preferred this appeal.

8. Heard Sri Sheo Prakash Singh, learned counsel for the appellants and Sri Brijendra Singh-I, learned A.G.A. for the State.

9. Learned counsel for the appellants has submitted that the appellants are innocent and have been falsely implicated due to previous enmity of civil disputes. Learned counsel further submitted that all the witnesses are interested witnesses and were not present at the time of occurrence. Learned counsel further submitted that in the said occurrence, no injury was caused either to Ram Milan (P.W.-1) or his family members. Learned counsel further submitted that the alleged residue of exploded bomb was not sent for chemical examination in order to prove whether it was residue of exploded bomb or not. Learned counsel further submitted that the first information report (in short F.I.R.) was not written by any person and the same was prepared on type writer machine by typist which shows that the F.I.R. was ante-timed and was lodged after due consultation. Learned counsel further submitted that all the appellants are family members and are aged about 50-70 years having no criminal history. Learned counsel further submitted that the trial Court, without considering the material and evidence available on record, has passed the impugned judgment, which is against the settled principles of criminal jurisprudence and is liable to be set aside.

10. Per contra, learned A.G.A., vehemently opposing the submissions made by learned counsel for the appellants, has submitted that in this case, the F.I.R. was lodged without any delay and the prosecution case cannot be thrown only on the ground that the prosecution witnesses are relative of the informant. Learned A.G.A. further submitted that just twenty days before the said occurrence, an order for interim injunction against the appellants and in favour of the informant was passed by the concerned Court whereby the appellant had annoyed, set fire to crops of the informant and caused the alleged offence. Learned A.G.A. further submitted that the appellants had not denied the factum of destruction of crops in their statement under Section 313 of the Code and it cannot be presumed that the informant by setting fire on his crops, would falsely implicate the appellants. Learned A.G.A. further submitted that the impugned judgment is well reasoned and well discussed having no infirmity and is liable to be affirmed.

11. I have considered the rival submissions made by both the parties and perused the record.

12. Admittedly, both the parties were belligerent at the time of occurrence in civil dispute pertaining the disputed land and the name of Ramashray, father of appellant-Satya Narain was recorded on the disputed land as Bhumidhar which was set aside by Deputy Director of Consolidation vide order dated 12.04.1999. In addition to above, the informant (P.W.-1) had also filed Civil Suit No.227 of 1999 (Ram Milan and others vs. Satyanarayan) wherein vide interim injunction order dated 15.04.1999, passed by Civil Judge (J.D.), Tanda, District-Ambedkar Nagar, the appellants were injected to interfere in the peaceful possession of informant. From perusal of two records, filed by the informant (P.W.-1) before the trial Court on 11.10.2002, it appears that before the order dated 12.04.1999, passed by Deputy Director of Consolidation, Faizabad, the appellants were recorded as tenure holder and whose name was deleted by the aforesaid order.

13. Ram Milan (P.W.-1) has stated that on 05.05.1999, he was harvesting his wheat crops which was situated 60-70 meters towards north of his house since 6'o clock with his nephew-Devdhar, uncle-Ramashray and cousin-Ram Ajor. Meanwhile, the appellants came there at about 12:30 p.m. The appellants-Satya Narain and Amarjeet were carrying bombs, the appellant-Ashok Kumar was carrying katta (countrymade pistol) and the appelant-Pawan Kumar was carrying lathi. He further stated that upon exhortation of the appellant-Pawan Kumar, all the appellants hurled abuses with intention to kill them ; the appellants, carrying bomb, threw upon them ; and the appellant-Ashok Kumar, carrying katta (countrymade pistol), fired upon them. He further stated that upon hearing the noise, Ram Charita (P.W.-3), Ram Daur (P.W.-2) and Ramajore (co-villager), who were also harvesting the field with him (P.W.-1) but had gone to drink water, reached there. He further stated that the appellants, by hurling abuses, reached at chak No.1230 wherein wheat crops was sown, they set fire around (charo taraf) by match box and also set fire in another chak no.1047, wherein wheat crops was also sown, and thereafter they fled away. He further stated that about 45 minutes was taken in extinguishing the fire and thereafter he went Tanda through pagdandi (footpath) by hiding his identity (lukte chipate), dictated a written report to one typist and after putting his signature on the typed written report (Ext.-Ka-1), he filed it at concerned police station. In cross-examination, he admitted that he had not shown the place of occurrence to Investigating Officer. He further admitted that after the occurrence, he did not go to concerned police station directly and after getting report typed, he appeared at concerned police station with typed report (Ext.-Ka-1). He further admitted that no person had received any injury in the said occurrence. He further admitted that there was enmity of civil dispute with the appellant regarding Chak Nos.1146, 1230, 1047, 1065, 1095, 1096 and 1134. He further admitted that he had not mentioned in the F.I.R. either number of disputed field or number of said field wherein the occurrence was taken place. He further admitted that at the time of occurrence, he had taken 2-5 steps back out from the place of occurrence but did not flee away from there. He further stated that the appellants had threw bomb from a distance of 20-21 meters which had fallen just one feet near to him. He denied the suggestion that after explosion of bombs, he fled away from the place of occurrence. Stating that firstly the appellant had set fire in wheat crops and thereafter sugarcane crops, he further admitted that the appellant had set fire from one side only. He further stated that he had not mentioned in the F.I.R. that he had gone at concerned police station by hiding (lukte chipate) his identity.

14. Ram Daur (P.W.-2) has stated that at the time of occurrence, he was threshing (dauri) his wheat crops since 10'o clock at his threshing floor (khaliyan), situated towards east of Ram Milan's (P.W.-1) chak. Stating that at the time of occurrence, Ram Milan (P.W.-1), Ramashreay and Devdhar were harvesting wheat crops in their chak, he further stated that at about 12:00 p.m. the appellants came there, the appellants-Satynarayan and Amarjeet threw bombs at Ram Milan (P.W.-1) and others family members, with intention to kill them and the appellant-Ashok Kumar fired Katta upon them but no one received any injury. He further stated that upon hearing the noise, he, Ram Charitra (P.W.-3) along with other people, reached there and thereafter the appellants fled away from the place of occurrence by setting fire in wheat crops and sugarcane crops situated east to place of occurrence. In cross-examination, he admitted that father of the appellants belong to his common ancestor. Stating that at the place of occurrence, he had seen that the appellants throwing the bomb and firing with katta (countrymade pistol), he further stated that he had seen the empty cartridges and residue of exploded bomb. Stating further that fire was set on only two chaks which expanded due to month of May (Chait month) in two other chaks also, he denied that fire was set from four side. He further admitted that the appellant had not fled away after throwing the bomb and firing with katta (countrymade pistol) even till the extinguishing the fire. Stating further that 1-1/2 hour would have been taken to extinguish the fire, he further stated that appellants fled away from the place of occurrence when people reached there. He further stated that Investigating Officer had come in the evening on the place of occurrence and after collecting the ashes, sutli and residue of exploded bomb, had taken his signature on a paper at 6:00-7:00 p.m.

15. Ram Charitra (P.W.-3)- has also stated that at the time of occurrence, Ram Milan (P.W.-1), Devdhar, Ramashray, Ramajore were harvesting their wheat crops and he was threshing wheat at his Khaliyan. Stating further that the appellants-Satyanarayan and Amarjeet, Ashok Kumar and Pawan Kumar appeared at about 12'o clock in the chak of Ram Milan, hurled abuses ; the appellant-Ashok Kumar fired with katta (countrymade pistol) ; the appellants-Satyanarayan and Amarjeet threw bomb upon Ram Milan (P.W.-1) and others with intention to kill them whereas the appellant-Pawan Kumar, carrying lathi, was exhorting. Stating that no injury was caused to any person, he further stated that Ram Daur (P.W.-2) also reached there and saw the occurrence. He further stated that as they arrived, the appellants fled away by setting fire in the wheat and sugarcane crops of Ram Milan (P.W.-1). In cross-examination, he admitted that 1-2 hours would have been taken in extinguishing the fire . He further admitted that after throwing the bomb and firing with katta (countrymade pistol), when the appellants set fire on crops, he (P.W.-3) reached there and thereafter the appellants fled away.

16. Sheetla Prasad Upadhyaya (P.W.-4) had stated that on 05.05.1999, he was posted as Head Constable at Police Station-Tanda, District-Ambedkar Nagar and entered the written information lodged by Ram Milan (P.W.-1) and registered a Criminal Case Crime No.123/1999 under Sections-307, 504, 435, 506 and 427 I.P.C. against the appellants. He also proved a recovery memo (Ext.-Ka-4 and Ext.-Ka-5), residue of exploded bomb, site plan of place of occurrence (Ext.-ka-6) and charge sheet (Ext.-Ka-7) filed by S.I.-Bhuvneshwar Prasad (Investigating Officer).

17. It is settled principle of law that first information report is the first version in the shape of complaint, lodged by the aggrieved persons at concerned police station, in order to get the investigating agency into motion and to take action against the guilty person. If it is lodged promptly without any unreasonable delay, it strengthen the prosecution story whereas if it is lodged after unreasonable and unexplained delay, it looses the veracity of the prosecution story. Sometimes it is seen that the first information report is lodged after much delay with due deliberation and consultation but in order to show the reliability of first information report, the time of lodging the F.I.R. is shown much earlier to its actual time because the first informant or his legal advisor or police personnel knew that delay in lodging the F.I.R., will destroy the reliability of the prosecution story. There is no settled criteria to determine as to whether the F.I.R. was anti timed or not and it varies to facts and circumstances of each case. For example, if the informant was educated and able to write the F.I.R. but instead of going to police station to lodge the F.I.R., he went to another place to consult and F.I.R. was prepared with the help of machine i.e. typewriter etc. and thereafter had gone to police station and from the fact and circumstances of the case, it appears that actual time between occurrence and time of lodging the F.I.R. was more than time shown by prosecution, similarly, if it is proved that name of accused or witness or any facts were not known to the informant at the time of lodging the F.I.R. and it had come after the time shown in lodging the F.I.R., it can be said that the F.I.R. was lodged by delay after the time, which was shown in lodging the F.I.R. by concealing such delay to avoid to give explanation.

18. Hon'ble Supreme Court, in Mohan Lal Gehani vs. State of Madhya Pradesh, AIR 1982 SC 839 where the name of accused was not known to the informant till the time of lodging of F.I.R. and it came in knowledge, after the time mentioned in the F.I.R. but his name was shown in the first information report, held that prosecution story was not reliable as F.I.R. was ante time.

19. Hon'ble Supreme Court in Sudarshan vs. State of Maharashtra, 2014 Cri LJ 3232 (SC) where the informant after the occurrence did not go to the police station to lodge the F.I.R. but went to an Advocate at a distance of 15 kms. from the place of occurrence, for consultation and the copy of F.I.R. was not sent to the concerned Magistrate, held the F.I.R. was anti-timed and the prosecution story was not reliable.

20. Coming to the facts of this case, admittedly the first information report is not in writing of the Ram Milan (P.W.-1), though, he was educated and was able to write the same. Stating that after the occurrence he had not gone directly to the concerned police station to make complaint or to lodge the F.I.R., he admitted that before approaching the concerned police station to lodge the F.I.R., he had approached a person to dictate him the occurrence and get written report typed and thereafter, putting his signature had gone to police station. Stating that said occurrence was started at about 12:30 p.m., he further stated that 45 minutes was taken to extinguishing the fire whereas Ram Daur (P.W.-2) and Ram Charitra (P.W.-3) have admitted that 1-1/2 hrs. would have been taken in extinguishing the fire.

21. From perusal of chik F.I.R. (Ext.-Ka-2), it is clear that the place of occurrence is situated 5 kms. away from the concerned police station. Ram Milan (P.W.-1) has also stated that due to fear, he had not gone Tanda by road and he, by hiding (lukte chipate) his identity, had reached at Tanda through pagdandi (footpath). According to prosecution, the said occurrence was taken at about 12:30 p.m. in the month of May. Generally, during this period, summer temperature is presumed too high that people do not harvest wheat crops at this time, they usually start the harvesting at or before sunrise and conclude before 11-12'o clock in order to avoid heat stroke. In addition to above, if fire was set on four fields of wheat crops including sugarcane crops by the appellants which damaged the crops of worth Rs.5000-6000/- in the year 1999, it means that the fire was caught in huge area of the crops and the statement of prosecution witneses that the said fire was put off in only 45 minutes as stated by P.W.-1 or within one and half hour as stated by P.W.-2 and P.W.-3 is not reliable.

22. Further, in F.I.R. (Ext.-Ka-1), it was mentioned by P.W.-1 that the appellants appeared at the place of occurrence and due to previous enmity of civil suits, they hurling abuses, threw bombs, whereupon Ram Milan (P.W.-1) and his family members, harvesting the crops, fled away from the place of occurrence, in order to save their lives and thereafter the appellant-Ashok Kumar fired with Katta (countrymade pistol). Thus, in the F.I.R. (Ext.-Ka-1), it was not mentioned that only appellants-Amarjeet and Satya Narain were carrying bombs and Pawan Kumar was carrying lathi whereas all the eye-witnesses i.e. P.W.-1, P.W.-2 and P.W.-3 had stated that only appellant-Amarjeet and Satya Narain were carrying bombs and the appellant-Pawan Kumar was carrying lathi. P.W.-1 further stated that after explosion of bombs, he had not fled away from the place of occurrence. The contradiction between F.I.R. (Ext.-Ka-1) and statements of these prosecution witnesses further creates doubt in the F.I.R. as well as prosecution story.

23. In view of the above discussion, it appears that either the alleged wheat crops were put on fire at any time before the time, as alleged by the prosecution or the first information report was lodged after due consultation and deliberation and was not lodged on 05.05.1999 at about 16:15 p.m. rather it was lodged after the said time as mentioned in Ext.-Ka-2 and Ext.-ka-3. Thus, in my view, the time of occurrence, including the time of lodging the F.I.R. is doubtful. It is ante-timed, hence, the prosecution story is doubtful.

24. In addition to above, admittedly no person had received any injury although the P.W.-1 had stated that two bombs were thrown upon them by the appellants and the bombs were fallen and exploded just 1-2 step away from him. None of the prosecution witness stated that any fire was caught in the field wherein Ram Milan (P.W.-1) and his family members were harvesting the wheat crops. In my opinion, if the bombs were exploded just 1-2 feet away from Ram Milan (P.W.-1) and his family members wherein wheat crops was also lying, it would have either caused some serious injury to them or had damaged the wheat crops also. Neither causing any injury to any person nor causing any damage to the crops in the field where Ram Milan (P.W.-1) was harvesting, further creates doubt in the prosecution story.

25. In addition to above, in F.I.R. (Ext.-Ka-1) it has also been mentioned that upon hearing the noise, Ram Daur (P.W.-2), Ram Chaitra (P.W.-3) and one Ramajore came there and saw the occurrence. In this report, it has not been mentioned that these witnesses were harvesting the crops with Ram Milan (P.W.-1) whereas P.W.-1, during examination, stated that Ram Daur (P.W.-2) Ram Chaitra (P.W.-3) and Ramajore were harvesting the crops with him (P.W.-1) ; they had gone to drink water and upon hearing the noise, they came there and saw the occurrence but Ram Daur (P.W.-2) and Ram Charitra (P.W.-3) had stated that at the time of occurrence, they were threshing their own wheat crops at their threshing floor (khaliyan). Thus, the statement of P.W.-1, that Ram Daur (P.W.-2) and Ram Charitra (P.W.-3) were harvesting the crops with Ram Milan (P.W.-1) and at the time of occurrence, they had gone to drink water and upon hearing the noise come back, is contradictory to the statement of Ram Daur (P.W.-2) and Ram Charitra (P.W.-3) and also with the fact mentioned in F.I.R. which makes the prosecution case further doubtful in the present case where there is enmity between the appellants and Ram Milan (P.W.-1).

26. Further in the first information report (Ext.-Ka-1) it has been clearly mentioned that when the bombs were thrown by the appellants upon Ram Milan (P.W.-1) and his family members, P.W.-1 along with his family members fled away from the place of occurrence but P.W.-1 has stated that he had not fled away from the place of occurrence after the explosion of bomb. According to prosecution, Devdhar, Ramashray and Ramajore were also harvesting the wheat crops with Ram Milan (P.W.-1). These witnesses are nephew, uncle and cousin of Ram Milan (P.W.-1). Their presence would be natural but the prosecution has neither produced them nor placed any justification for their non examination. Although the prosecution is not bound to produce so many prosecution witnesses and the prosecution case can succeed only on the evidence of a single witness if he is reliable, but non examination of such witnesses, without any justification whose presence at the time of occurrence was natural and examination such witnesses whose presence has been doubtful, further creates doubtful in the prosecution case.

27. In addition to above, the prosecution has not examined the Investigating Officer who collected the sample of ashes of crops and residue of exploded bombs and further recovered ashes or residue of bombs were neither produced before the trial Court nor were sent for chemical examination to prove whether it was ashes of crops or not or whether it was residue of any exploded bombs. Failure of prosecution to produce such important evidence, further creates doubt in prosecution story.

28. In the light of above discussion, I am of the view that the prosecution has miserably failed to prove its case beyond reasonable doubt. The impugned judgment and order passed by trial Court is liable to be set aside and the appellants are entitled to be acquitted.

29. I am, therefore, unable to uphold the conviction and sentence of the appellants. The impugned judgment and order, passed by the Trial Court, is accordingly set aside. The appellants are acquitted. Consequently appeal is allowed.

30. The appellants are on bail, their bail bonds are cancelled and sureties are discharged.

31. Keeping in view the provision of Section 437-A of the Code, appellants are hereby directed forthwith to furnish a personal bond of a sum of Rs.20,000/- each and two reliable sureties each of the like amount before the trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, appellants on receipt of notice thereof, shall appear before Hon'ble Supreme Court.

32. A copy of this judgment along with lower court record be sent to Trial Court by FAX for immediate compliance.

Order Date :-05.01.2021

Mahesh