The State Of U.P. vs Damodar And Others
2022 Latest Caselaw 12110 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							      Reserved Judgement
 
 Reserved On : 22.04.2022
 
Delivered on : 06.09.2022 
 

 
Case :- GOVERNMENT APPEAL No. - 874 of 1984
 
Appellant :- The State Of U.P.
 
Respondent :- Damodar And Others
 
Counsel for Appellant :- Addl. Govt. Advocate,Kuldeep Johri,Punya Sheel Pandey
 
Counsel for Respondent :- Sanjay Goswami,Prabhat Kumar Srivastava
 

 
Hon'ble Om Prakash-VII,J.

Hon'ble Narendra Kumar Johari, J.

(Per : Narendra Kumar Johari,J.)

1. The present Government Appeal has been filed by the State of U.P. (appellant) against judgment and order dated 21.12.1983, passed by learned IIIrd Additional Sessions Judge, Mathura in S.T. No. 225 of 1983, under Sections 147, 323/149, 324/149, 452, 302/149 I.P.C., Police Station Chatta, District Mathura. By the impugned judgment and order, learned trial court has acquitted the accused/respondents Damodar, Chhote and Bata from the charges under Sections 148, 323/149, 324/149, 452 and 302/149 I.P.C.; accused-respondents Munni, Budhi and Ramkali for the offence under Sections 147, 323/149, 324/149, 452 and 302/149 I.P.C. and accused-respondent Braham Singh for the offence under Section 302 I.P.C.

2. Briefly, the case of the prosecution is that on 06.06.1983, there was a quarrel between the children of accused-respondents and that of complainant's family while they were playing together. Complainant Harchandi and his brother Tejpal objected and made a complaint on the beating of his children by the children of accused persons, which they not felt good. Consequently, an altercation took place. Soon thereafter in night when Harchandi was taking his meal in his house, all the accused persons formed an unlawful assembly and raided the house of the deceased Teja @ Tejpal. Accused Brham Singh, Chhote and Bata were armed with Farsas (a sharp edged cutting weapon) while accused Damodar was armed with Ballam and Munni with Lathi. Brham Singh attacked Tejpal with Farsa on his head and gluteal area as a result whereof Tejpal fell down and became unconscious. Damodar attacked Akali with Ballam and injured him. Chhote attached on Ramkali with Farsa. Bata attacked Harchandi with Farsa and Munni attacked Keshi with Lathi. Having received the injuries, victims shouted their voice for help. Many persons of the village including Nanhe, Meva, Karua, Chhattar, etc. reached on the spot, they interfered, mediated and saved the informant and other members of his family from further attack. After this attack, Tejpal was found seriously injured with poor general condition. All the injured persons were rushed to Primary Health Center, Chatta, where condition of Tejpal deteriorated, hence on the advice of doctors, he was taken to District Hospital, Mathura but before receiving any medical aid Tejpal breathed his last.

3. The First Information Report of the occurrence was lodged by informant Harchandi at Police Station Chatta at 10.30A.M. The investigation of the case was entrusted to Sub Inspector V.N. Verma, who recorded the statement of prosecution witnesses, prepared spot map and recovery memo of lantern and Gadda (cushion). Inquest of the dead body was conducted by S.I. Dinesh Singh and autopsy of the cadaver was done by Dr. N.K. Srivastava in District Hospital, Mathura. After conclusion of investigation, the Investigating Officer submitted the charge sheet against accused respondents.

4. Cognizance of the offence was taken by the Magistrate and the case was committed to the Court of Sessions, where charges under Sections 147, 323/149, 324/149,452, 302/149 IPC were framed against accused persons Brahm Singh, Buddhi, Munni, Ramwati, Damodar, Chhote and Bata. Accused persons abjured and denied the charges, pleaded not guilty and requested for trial.

5. During trial, as witness of fact, Harchandi as PW 1, Ramkali as PW 3, Keshi as PW 4, Mewa as PW 5 deposed and as formal witnesses Dr. R.C. Gupta as PW 2, Dr. M.K. Srivastava as PW 6, S.I. Dinesh Singh as PW 7, Constable Phool Singh as PW 8, S.I. V.N. Verma as PW 9. They gave their oral evidence as prosecution witnesses.

6. The medical examination report of injured persons Tejpal, Akali, Harchandi, Ramkali and Keshi have been procured which have been submitted and proved as Ext. Ka-3 to Ext.Ka-7. The Post Mortem Report of deceased Tejpal also filed as Ext. Ka-8, genuineness of which has been admitted by the learned counsel for defence.

7. After conclusion of prosecution evidence, statement of accused persons was recorded under Section 313 Cr.P.C. in which they denied the facts and evidence of the case and submitted that they had falsely been implicated in the case due to enmity. They produced Ramesh Chand as DW 1 and Balbir Singh as DW 2 as defence witnesses. Learned trial court after considering the facts and evidence of the case and arguments of rival sides acquitted all the accused persons from the charges leveled. The judgment and order of acquittal was challenged by the State Government in the present appeal.

8. Learned A.G.A. has submitted that accused-respondents have committed the offence in which one person had died and other 06 persons received injuries on different parts of their body. The injured witnesses have been presumed as stamped witnesses. The occurrence has been witnessed by eye witnesses. The eye witnesses as well as injured witnesses have proved the prosecution case against accused persons. There was no material contradiction in the evidence. If there was any laches in the investigation, it was not fatal for prosecution case, particularly, in the light of evidence of injured as well as eye witnesses. The genuineness of Post Mortem Report had been accepted by the counsel for accused persons. Learned trial court had wrongly assessed the evidence and acquitted the accused persons. The finding of learned trial court is illegal and perverse, therefore, the judgment and order passed by trial court deserves to be set aside and appeal is liable to be allowed.

9. In reply, learned counsel for the accused-respondents has submitted that the occurrence was committed by some unknown persons and the respondents have been implicated in the case due to the enmity of village. Occurrence took place in the darkness of night and there was no source of light. The lantern had been planted falsely, the witnesses on behalf of the prosecution had given false evidence. Statements of witnesses were full of material discrepancies. There were serious laches in the investigation, which casts serious doubt on the veracity of prosecution story. Learned trial court has properly discussed the facts and evidence of the case and concluded that prosecution was failed to prove its case against accused persons beyond reasonable doubt. The order of acquittal is just and proper. The appeal has no force, which is liable to be dismissed.

10. We have heard the arguments of both the side and perused the record.

11. The present appeal has been filed by the State of U.P. against the accused-respondents Damodar, Brahma Singh, Munni, Chhote, Bata, Budhi and Ramvati. During pendency of appeal, accused-respondent Damodar, Brahma Singh, Budhi and Ramwati have died, consequently, the appeal has been abated for the above deceased accused-respondents. At present only accused-respondents Munni, Chhote and Bata are alive.

12. Before proceeding to deal with the submissions raised across the bar, we would like to prefer to point out the findings arrived at by the trial court in the impugned judgment and order. Learned trial court has concluded that the F.I.R. of the case was lodged with inordinate delay which could not be explained. The injured Tejpal had succumbed before lodging the F.I.R., yet there is no mention of his death in the F.I.R. There is material contradiction in the F.I.R. and evidence of witnesses regarding, time, and genesis of the occurrence. The occurrence took place in darkness of night in between 8-9.00 P.M. but the source of light was not mentioned in the F.I.R. There was overwriting in medical examination report of injured persons as well as in the date mentioned in the Tehrir, on the basis of which F.I.R. of the ocurrence was lodged. The F.I.R. as well as Tehreer have not been proved in accordance with law. The doctor who examined medically the injured persons has not tried to inform the police persons. The testimony of eye witness is not believable. No independent witness has been examined. There was material discrepancies in the statement of witnesses and serious laches in investigation of the case. The statement of material witnesses under Section 161 Cr.P.C. had not been recorded by the Investigating Officer. Also the statement under Section 161 Cr.P.C. of injured as well as eye witnesses had been recorded after the considerable delay.

13. In post mortem report of deceased Tejpal the following ante mortem injures were found on his body :-

(i) stitched wound 2.5 C.M. on left side of head, 13 C.M. above left ear (two stitches present).

(ii) stitched wound 1.5 C.M. on posterio part of left upper thigh (one stitch present).

The fracture of both parietal bones and a big blood clot on right side of the brain on extra dural part, subdural haematoma on left side and laceration was also found on left side.

The cause of death has been shown as coma due to sustained head injury by deceased. The age of deceased was shown as above 40 years.

In small intestine pasty food was present and in large intestine there was faecal matter.

14. The occurrence took place on 06.06.1983 at 8-9 O'clock night and the F.I.R. of the case was registered on 07.06.1983 at 10.15 A.M. The distance from the place of occurrence has been shown in the F.I.R. as 06 Kms. (from the police station to the place of occurrence). The Tehrir for the F.I.R. was produced at police station as typed application. The F.I.R. has been lodged by Harchandi, who was having injury of Incised wound 6.5 C.M. X 0.3 C.M. X skin deep on the left middle forehead along with mid line (which has been caused by sharp edged weapon). According to the facts mentioned in the F.I.R., the F.I.R. was lodged after medical aid to the injured persons. The background of informant as well as injured is of rural. They are illiterate and unexperienced also. Taking into consideration all the above facts and circumstances, it can be concluded that the F.I.R. has been lodged soon after the occurrence.

15. In the occurrence it has been shown that 07 persons have received injury and out of 07, 06 injured persons were surviving, injured Harchandi as witness PW 1, Ramkali as PW 3, Keshi as PW 4 have deposed whereas PW 5 Meva has given his oral testimony as eye witness. All the injured witnesses belong to the same family and they are interested witnesses. PW 5 is also a relative of informant. In the eye of law, the witnesses, who received the injuries in the same occurrence, have been treated at stampted witnesses and in general their testimony is liable to be believed, unless some different facts come on surface or the material contradictions are found in their statements. For placing reliance, their statements should be free from shadow of doubt and should be supported with other documentary evidence of prosecution.

16. In the F.I.R. it has been mentioned that the children of both the sides were playing on the way at 8-9.00 P.M. but witness PW 1 in his statement at page no.3 had mentioned that the quarrel between children took place in day time at 10-11 O'clock. Witness PW 3 Ramkali had stated in her cross examination that the quarrel between children took place at approximately 12 O'clock. So, there is discrepancy in the F.I.R. version as well as in the statements of prosecution witnesses. In F.I.R. it had been mentioned that the children were playing on the pathway at about 8-9 evening. In F.I.R. it has also been mentioned that at the time of occurrence, informant Harchandi was taking meal at his house but in the statement at page 1, in his examination-in-chief the witness PW 1 has mentioned that at the time of occurrence he was present in the house of Tejpal, on the other hand the witness PW 3 Ramkali has stated that at the time of occurrence informant Harchandi was taking meal along with Tejpal in the courtyard of her house. Contrary to the same, witness PW 1 has again stated at page no.3 of his statement that at the time of occurrence he was not taking food at the house of Tejpal. Here is another contradiction in the facts mentioned in the F.I.R. as well as in the statement of witnesses.

17. Witness PW 1 has stated in his examination in chief that when accused Bata attacked him by Ballam, he became unconscious thereafter what happened, he does not know and in his cross-examination at page no.2 he had mentioned that he regained consciousness at 2.50-3.00 in night (2.50-3.00 A.M.). If the witness PW 1 is speaking truth, then how he mentioned in the F.I.R. as to who attacked on whom and with which weapon. Although it transpires that witness PW 1 is again speaking lie as in his medical examination report, his injury has been shown as simple in nature. In this report he has not been mentioned unconscious also, whereas he had gone under medical examination at 12.50 A.M. So far as the condition of informant is concerned, witness PW 5 had mentioned that at the time of occurrence Harchandi (PW 1) was sitting on the cot, after receiving the injury he fell down from the cot and very soon he again sat down. Although, contrary to it, witness PW 4-Keshi has stated in his statement at page No.2 that at the time of occurrence Harchandi who was sitting on cot, after receiving injury fell down, became unconscious and after 1-2 minutes he regained his consciousness again.

18. Witness PW 1 has also stated that on the reference of doctor, injured Tejpal and Akali were brought to District Hospital Mathura at 3.30-4.00 hours but Tejpal was admitted in hospital at 11.00 O'clock and died at 2.30-3.00 O'clock. The above statement of witness also seems to be unbelievable in the light of fact that if Tejpal had reached in District Hospital Mathura, why he had not been admitted immediately. In the medical examination report, it has not been shown that wounds of Tejpal were stitched in P.H.C., whereas in P.M.R. both the injuries have been found stitched. If Tejpal had died without providing any medical aid, then how his wounds got stitched, it has not been shown by the prosecution. Witness PW 1 had also mentioned that he had not lodged any report in police station at Mathura after visiting in Mathura hospital he again came at Chatta and got application scribed by an application writer in Chatta Tehsil. Arzi Navis at first got Tehreer scribd in hand writing and thereafter it was typed by a typist. The Tehrir upon which the F.I.R. had been lodged in police station Chatta, was typed one. No name of scribe as well as typist is mentioned in typed Tehrir. The I.O. had not taken any statement of scribe as well as typist under Section 161 Cr.P.C., nor they have been produced as prosecution witness. There is overwriting in the date of typed Tehrir also. Contrary to the statement of witness PW 1 regarding written application, witness PW 3-Ramkali had mentioned in her evidence at page 3 that the report was written by Keshi in the night. Taking into consideration the two different version on the point of application (Tehreer) and in the facts and circumstances, it was proper and necessary for prosecution to produce scribe as well as typist of application in evidence but the prosecution was failed to produce them.

19. Witness PW 1 had also mentioned that when he had gone at Police Station to lodge the F.I.R., S.I. had recorded his statement. Contrary to the same, the Investigating Officer (PW 9) mentioned in his evidence at page 2 that he had not recorded any statement of informant at that time, rather he had recorded the same on 14.06.1983. Witness PW 9 further stated that he had recorded the statement of Keshi on 8th June and by his statement the fact came in his knowledge that Tejpal had died. At that time he had not amended the sections as he had not received the Post Mortem Report. Again contrary to the same, witness PW 1 had mentioned in his evidence that when he reached at police station Mathura to lodge the report, he had informed to S.I. that Tejpal had died at Mathura and the dead body of Tejpal had been sent for post mortem by police persons of Mathura. Witness PW 1 further stated that when he was present at police station for lodging the report, a person of his village had informed that Tejpal succumbed by the injuries received, at police station but he did not communicate the above fact to anybody. In this way, the witness PW 1 is giving the contrary statement himself. The witness PW 1 had further stated that the I.O. had seen the lantern on 8th June, and mentioned its description in his record, at that time he was not present in the village, rather he was on his duty at Chatta. He was called at police station where the police persons took his thumb impression on a piece of paper, at that time he had seen the lantern at police station. Contrary to the same, witness PW 9 had stated that on 14.06.1983 he had inspected the lantern which was produced before him by Harchandi himself. There is a recovery memo of lantern on record, which has been proved as Ext. Ka-2 wherein the date has been mentioned as 14.06.1983. It is pertinent to mention here that in this memo of recovery, the thumb impression of Harchandi as shown at memo of recovery of lantern seems very doubtful. Apparently it can be seen on Ext. Ka-2 that many marks of fingers have been affixed showing the thumb impression of Harchandi.

20. Witness PW 1 has further stated in his statement that at the time of occurrence, no noise was raised whereas witness PW 4 and witness PW 5 had stated that they had reached at the house of Tejpal after hearing noise at the time of occurrence and had seen the occurrence. Witness PW 1 further mentioned that he had received the injury report of injured persons after medical investigation, he tried to deliver the aforesaid reports at the police station but the police person did not receive the same. Contrary to the same witness PW 2 Dr. R.C. Gupta had mentioned in his statement that he had delivered the report of injured on the next day for which a police man had come in hospital. There is one more fact creates the doubt that as witness PW 2 had mentioned in his evidence that for such medical examination of injured persons usually he gives information to the police station concerned but in the present case he had not given any such information to the police persons. Why and under what circumstances he could not give the information of occurrence/injury to police it has not been explained by the prosecution.

21. Witness PW 3 had mentioned in her evidence that Ramvati had given lathi blow her as well as to Teja but this fact is not mentioned in the F.I.R. Witness PW 3 had further stated that after altercation, as a consequence of quarrel between children, a Panchayat meeting took place. The Panchas were persons of his caste but this material fact has neither been mentioned in the F.I.R., nor has been stated by witness PW 1 or by any other witness of fact. Witness PW 3 had further stated that they had moved from Chatta to Mathura at dawn as they reached at Mathura, within half an hour, Tejpal had died, whereas witness PW 1 stated that he along with injured persons had reached Mathura by 3.30-4.00 A.M. and Tejpal died at 2.30-3.00 O'clock. Contrary to the same witness PW 4 Keshi had stated that he had moved from Mathura Hospital for his village at 6 O'clock (A.M.), when he moved, the injured Tejpal was alive. Contrary to the same, witness PW 5 Meva had stated that they moved from Mathura hospital to Chatta at 1.00-2.00 A.M. in the night. He had further stated that at the dawn Tejpal had died. This witness PW 5 also has not corroborated the statement of PW 3, rather he had stated in his evidence that after the quarrel between children no persons for Panchayat were gathered.

22. As it has been discussed above, it has been found that there were material contradictions in the statement of witnesses on substantial points, hence no definite conclusion can be drawn due to the reason that on vital points one witness of fact is not corroborating the statement of other witness.

23. The record also indicates that there are serious laches in investigation of the case. The default committed by the Investigating Officer is such a vital that in place of collecting the evidence in accordance with the prosecution case, it creates a doubt on the facts narrated in the F.I.R. The witness PW 9, Investigating Officer had mentioned in his evidence that on 08.06.1983 he had inspected the place of occurrence on the pointing out of witness PW 4 Keshi and had prepared site map whereas witness PW 3 had stated that Investigating Officer had reached at the place of occurrence after 5-6 days. He had seen the blood spot but he had not collected any blood stained soil from the spot. Witness PW 4 Keshi had stated that the Investigating Officer had recorded his statement after 6 or 7 days at the police station. The statement of PW 9 and PW 4 are contrary to each other. The fact had come in the knowledge of Investigating Officer on 8th June that injured Tejpal had died but even then he had not amended the sections in the papers of investigation. The witness PW 9 had admitted that he had neither called nor recorded the statements of scribe and typist. The Investigating Officer had recorded the statement of material witnesses after a long gap, the reason of delay has not been explained. He had not tried to get specimen of blood stained soil or blood stained cloth of injured/deceased. He had prepared the site map with great irresponsibility and in a casual manner. He had not shown the house of material witnesses as well as the source of light. Preparation of Fard lantern after the delay of considerable period creates doubt about the availability of light at the time of occurrence. He had not shown the direction in the spot map. The doctor who had examined the injured persons including injured Tejpal his statement under Section 161 Cr.P.C. has not been recorded by the Investigating Officer. No averments were made by him to search the accused persons just after the occurrence, rather he has taken their statement after they had been sent to jail. The eye witnesses have stated that their thumb impressions were taken by the Investigating Officer on some papers but those papers have not been made part of investigation.

24. It is the established legal position that motive loses its significance when there is a direct evidence, yet in the present case the reason for causing such fatal attack on the persons of victim has been shown the quarrel between the children of tender age, this is very common in a society and without any special reason it cannot be presumed that such quarrel which took place 8-9 hours prior to the occurrence was the genesis/cause of such serious attack on victims.

25. In the light of facts, circumstances and close scrutiny of evidence on record as discussed above, we are of the considered view that the finding of trial court is based on correct appreciation of facts and evidence. The view taken by the learned trial court in the impugned judgment and order is a possible view. The finding recorded by learned trial court is well reasoned and no illegality, irregularity or perversity is found in the judgment and order of learned trial court.

26. It is pertinent to mention here that the powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible and no perversity is found, the appellate court cannot substitute its finding in the place of trial court's finding. It is only when the approach of the trial court in acquitting an accused is found to be apparently erroneous in the consideration of evidence on record and in deducing conclusions therefrom then in that case the appellate court can interfere with the finding of acquittal. It is also golden thread which runs through the web of administration of justice in criminal cases that if two views are possible on the basis of evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is also settled principle of law that paramount consideration of the Court is to ensure that miscarriage of justice be avoided. The case of the prosecution must be judged as a whole. The approach of the court must be an integrated one and not truncated or isolated. Thus, the accused-respondents are not found guilty for the charges of offence leveled, as such the impugned judgment and order passed by learned trial court deserves to be upheld and government appeal having no force is liable to be dismissed.

27. Accordingly, present government appeal is dismissed and the impugned judgment and order passed by the learned trial court is affirmed.

28. Let a copy of the judgment be sent to the trial court along with the record of the case.

Date :    6th September, 2022
 
ML/-